author: Steere, J.

text:
    CHAPIN v. ANN ARBOR RAILROAD CO.
    1. Pleading — Demurrer—Sufficiency of Declaration — Trial.
    A declaration not demurred to, charging defendant railroad company with not maintaining a cattle guard sufficient to prevent cattle from straying on its right of way, or such as the Michigan railroad commission had approved, warranted the admission of evidence and of proof that the guard constructed did not conform to the plan presented by defendant to and approved by the Michigan railroad commission.
    2. Railroads — Trial—Rebuttal.
    On the trial of such issue it was not error, on rebuttal, after the defense had shown that the guard used was in accordance with the plan submitted to and approved by the railroad commission, no motion to direct a verdict having been made at the close of plaintiff’s evidence, which tended to establish the insufficiency of the cattle guard, to permit plaintiff to introduce testimony to meet the defense and prove that the guard did not conform to such plan.
    3. Same — Negligence—Contributory Negligence — Proximate Cause — Animals.
    The mere negligence of plaintiff in permitting his cattle to run at large did not constitute a defense to an action under the statute; 2 Comp. Laws, § 6294, Act No. 308, Pub. Acts 1909.
    4. Same — Instructions to Jury — Value.
    Upon plaintiff’s uncontradicted evidence that the horse was worth $250, the court rightly directed the jury that its value was the amount claimed.
    5. Same — Sufficiency of Cattle Guard.
    Standing alone, instructions that the plaintiff must recover on the ground that defendant was negligent in not having a sufficient guard were questionable, but the instructions were proper when considered with the remainder of the charge which advised the jury that if defendant installed a cattle guard in accordance with a plan approved by the railroad commission it was not negligent.
    6. Same.
    Nor was it incorrect for the court to instruct the jury that if the cattle guard did not conform to the plan submitted to and approved by the commission or was different in dimensions or in structure and that thereby it was insufficient to turn stock, and did not turn the horse in question, the plaintiff was entitled to recover, since plaintiff’s evidence as to ownership, value, circumstances of its death, insufficiency of the guard, etc., was uncontroverted.
    Error to Osceola; Withey, J.
    Submitted November 14,1911.
    (Docket No. 106.)
    Decided December 8,1911.
    Case by Delanson Chapin against the Ann Arbor Railroad Company for the killing of a horse. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Sawyer & Penny, for appellant.

      B. N. Savidge, for appellee.
   Steere, J.

Plaintiff’s horse was killed by defendant’s train near a highway crossing in Marion township, Osceola county, September 18, 1909. The highway runs east and west and the railway nearly north and south at that point. Plaintiff lived on a farm, about 60 rods east of said crossing. On the day mentioned he returned from the village of Marion at about sundown, unharnessed the horses he had driven, and turned them out near the house in a yard containing two or three acres, which was sometimes used as a pasture. While he was eating his supper, to which he went immediately after turning out his team, a passenger train went south on defendant’s road and killed one of the horses which had strayed onto the right of way. He learned of this accident shortly after it happened from a neighbor, who, in passing along the track from doing his chores, discovered it. They proceeded to make an investigation, which disclosed, by tracks and other conclusive evidence, that the horse had wandered from the yard upon the highway, thence'across the cattle guard onto defendant’s railway track to the north of the highway, walking along it some six or eight rods, when it suddenly wheeled around and ran toward the cattle guard which it had crossed, but, before reaching it, was struck by the train, carried across the highway over both cattle guards and 100 feet beyond, where it rolled down an embankment and lay dead. The wing fences on both sides of the highway were broken and partly tom away.

These cattle guards were put in about six months before the accident and were in good condition. On July 29, 1909, some months after the guards were put in, defendant submitted a plan of cattle guard to the State railroad commission, which was approved. A print of the approved plan of cattle guard was put in evidence by defendant. Defendant claimed, and introduced testimony tending to show, that the cattle guard where the horse was killed corresponded with the plans as approved by the railroad commission. Plaintiff disputed this, and on rebuttal introduced testimony to the effect that there was a marked difference, in the particular that in the cattle guard over which plaintiff’s horse passed, shortly before it was killed, the sections outside the rails contained a less number of bars, that these bars were each wider and all closer together, and not beveled as deeply nor pointed as sharply as indicated and required by the approved plan. The undisputed testimony showed the value of the horse, when killed, was $250.

Plaintiff’s declaration contained two counts; the first charging negligence in failing to maintain a proper cattle guard, and the second in failing to ring the bell and blow the whistle when approaching the crossing. The second count was not relied on. The first count, to which the proofs were directed, and under which recovery was had, alleges defendant’s negligence as follows:

“Yet the defendant, regardless of the statute in such case made and provided, did not, before that time, erect and maintain cattle guards at all highway and street crossings, sufficient to prevent cattle and other animals from going on said railway there, nor did the said defendant erect and maintain such cattle guards as were approved by the railroad commission of the State of Michigan, and keep said cattle guards in proper repair and condition, sufficient to prevent cattle, horses, and other animals from going on such railroad track there, to wit, at the crossing of said railroad and a certain highway running east and west between the townships of Marion and Middle Branch in said county of Osceola, * * * in said township of Marion, in consequence of which fault and negligence, and for want of said cattle guards, and the keeping of said cattle guards in proper repair and condition, one certain horse of plaintiff then and there strayed and went upon said railroad,” etc.

To this declaration defendant pleaded the general issue and gave special notice that on the trial of the cause it would offer in evidence and insist upon as part of its defense the certificate of approval by the railroad commission of the cattle guards complained of, that they were “in every particular lawful and in good repair, * * * that the injury to the animal as alleged in plaintiff’s declaration was due to the negligence of the plaintiff in habitually allowing and permitting his said animal to run at large upon the public highway,” and that it was unlawfully on the public highway when injured, owing to the negligence of the plaintiff.

Objection is made to the declaration; it being said in defendant’s brief that it is not sufficient to allow the introduction of testimony “as to claimed defects in the cattle guards at any stage of the case.”

While the declaration is rather meager, and somewhat inartistically drawn, it does allege positively that defendant did not maintain a cattle guard sufficient to keep horses and cattle from going onto the right of way, and that by reason of such negligence the horse was killed. Defendant did not demur to the declaration, but pleaded the general issue and gave notice of the special defense that a proper guard, which had been approved by the commission, was maintained. The parties went to trial upon the pleadings, with no objections raised to them by either side. If the declaration was faulty, we think the case of Smead v. Railway Co., 58 Mich. 200 (24 N. W. 761), sustains plaintiff’s contention that the objection comes too late. In passing on a similar declaration the court there said:

" No demurrer was interposed in this case and this subject cannot be further considered.”

On the trial plaintiff introduced testimony tending to' show the circumstances of the accident, the value of the horse killed, and that the guard over which it passed onto' defendant’s right of way was not sufficient to turn animals. He offered no proof of his negative allegation, that' defendant did not maintain a guard approved by the railroad commission. After plaintiff rested, no motion was made for the court to direct a verdict, but the defense was immediately begun before the jury and testimony introduced to show that the cattle guard in question was sufficient, in good repair, and had been approved by the railroad commission; documentary evidence being introduced, in that connection. After defendant rested, plaintiff introduced evidence in rebuttal, showing the character and. dimension of the cattle guard in detail, for the purpose of establishing the fact that it was not of the kind which had been approved by the railroad commission, as shown by the plan introduced by the defendant. This testimony was objected to and its admission is alleged as error. It is said:

"To rule that the reception of this testimony in rebuttal is proper is to allow a plaintiff to rest his entire case and compel defendant to assume the initiative and the burden of proof.”

It is generally understood that the fact of the railroad commission having approved a cattle guard is a matter of defense; but, whatever rule might generally be contended for as to the buden of proof upon that issue, defendant has disposed of the question in this case by assuming that burden and first introducing testimony upon the subject, opening the door for the plaintiff to introduce testimony in rebuttal. We do not see how the court could have ruled otherwise than he did.

It is alleged as error that the court allowed witnesses to testify to cattle passing readily back and forth over the guard in question before the accident complained of, without it being shown that the guard was in the same condition as at the time the horse was killed. It appears from the record that plaintiff did introduce testimony of that nature under objection, stating, however, when the question was raised, that he would later make the requisite proof. This proof was subsequently made; witnesses for both plaintiff and defendant testifying fully that the guard was in the same condition. In fact, the testimony is undisputed that the cattle guard, constructed some six months before, had always been in a good state of repair, unchanged, and substantially in the same condition during the entire time since its construction. The subsequent testimony entirely did away with the ground of the objection, and there was no abuse of discretion on the part of the court in receiving testimony out of order as he did, under the assurance of counsel that the proper proofs subsequently would be made, as they were.

An objection to the following question, asked by the defense, was sustained, which ruling is alleged as error :

“Do you know whether or not he (plaintiff) allowed his horses to run on the road — where those guards were, and at the place where it was killed ? ”

It is undisputed that this horse was killed on defendant’s right of way, to which it passed over a cattle guard, not on the public highway at a crossing. In Flint, etc., R. Co. v. Lull, 28 Mich. 510, Lull sued to recover the value of a cow killed by a passing train of defendant. It was claimed that she had been allowed to run at large on the highway and wandered from it across a cattle guard where she was killed. The defense urged that she was negligently allowed to run at large. On the trial of the case the court charged that if the cow passed upon the railroad track in consequence of the neglect of the defendant to have there a sufficient cattle guard to prevent her passing from the highway to its right of way, and she was there killed, the verdict must be for the plaintiff without regard to any question of negligence in leaving her to run at large. This charge was sustained in the following language:

“ The decisions may almost be said to be uniform that in cases like the present, arising under such statutes, the mere negligence of the plaintiff in the care of his property can constitute no defense.”

It can yet be said that the decisions are almost uniform to the same effect.

It is alleged as error that in his charge the court stated to the jury the value of the horse killed. The record shows that no issue was raised upon that question. Defendant conceded the qualifications of a witness called to prove value and offered no testimony to the contrary. The testimony was positive, undisputed, and unchallenged on that point. If the jury found for the plaintiff, the verdict could be only for the amount stated. We see no error in the charge in that particular.

Error is also alleged upon the following sentence in the charge:

“ If the plaintiff recovers in this case, he must recover on this ground, that the railroad company was negligent in not having a cattle guard in place there sufficient to turn stock, and for the purpose for which the cattle guard is intended.”

Standing alone this portion of the charge would be questionable, but, as has often been held, it must be considered in connection with the rest of the charge, taken as a whole. It was introductory, and immediately elaborated and explained as follows:

“We have a statute in this State which makes it the duty of the railroad company to guard the approaches to the highway on either side by cattle guards sufficient to turn domestic stock, under ordinary circumstances, from the right of way, so the cattle cannot pass over the guard, and from there down on to the right of way. We have another statute in this State which enables a railroad company to adopt a given structure of a cattle guard, and submit it to the railroad commissioners of the State, and if that commission approves of the cattle guard submitted, and the railroad company puts in a guard in conformity with the plan submitted and approved, then it is a complete answer to a case like this, even though as a matter of fact it is not sufficient to turn stock.”

Error is also alleged upon the following portion of the charge:

“ “ The only material, or at least the main material, dispute in this case is whether or not the cattle guard in question did conform in specification and in structure and in dimension to the way in which it was to go under the plan submitted and approved by the State railroad commission. If it did, the plaintiff is not entitled to recover, and your verdict should be for defendant. But, if the cattle guard there which was in use and in place, as shown without dispute in the testimony on both sides, did not conform to the plan submitted and approved by the State authorities, the railroad commission, was different in dimension and different in structure, and because of that difference it was insufficient to turn stock, and did not turn the horse in question, then the plaintiff is entitled to recover, and your verdict should be for him.”

At the trial the controlling issue was whether or not the cattle guard in question corresponded with plans approved by the railroad commission. Plaintiff’s testimony as to the ownership and value of the horse, the circumstances of its death, and that the guard over which it passed to the right of way was insufficient to turn stock, was met by no testimony to the contrary and stood uncontroverted.

That the plan defendant offered in evidence was one approved by the railroad commission was undisputed. Defendant’s testimony that the cattle guard in question corresponded with this plan was controverted by the testimony of plaintiff that it did not, in the particular that the bars were fewer, thicker, placed closer together, not beveled as tapering, and not so sharp on the upper edge, rendering it easier and more inviting for stock to cross. This presented for the consideration of the jury a square issue of fact.

This suit was planted and the defense made under section 6294, 2 Comp. Laws, as amended by Act No. 308, Pub. Acts 1909. The charge, taken as a whole, clearly explained to the jury the provisions of this statute, pointed out the issues of fact applicable to the case, for them to determine, and the rules of law by which they should be governed in passing upon the conflicting testimony.

We find no reversible error in this case, and the judgment is affirmed.

Ostrander, C. J., and McAlvay, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    THURBER v. ALDRICH.
    1. Appeal and Error — Trial by Court — Findings oe Fact and Law — Presumptions.
    Findings made by the court upon a trial without a jury are presumed to have been made by request, if no showing to the contrary appears.
    3. Contracts — Option—Acceptance.
    A contract whereby the owners of a patent agreed to convey the same to one who afterwards died, in consideration of the payment of a sum named, and of the issuance to them of stock in a corporation to be thereafter formed, was not binding upon the estate of decedent who did not appear to have executed the contract or to have accepted it.
    3. Estates oe Decedents — Statutes—Presentation oe Claims.
    A olaim for a sum of money due from a decedent upon a contract to purchase a patent should be presented to the commissioners on claims and is barred by 8 Comp. Laws, § 9380, in an action by the administrator against defendant and claimant who seeks to set off the amount claimed to be due.
    4. Appeal and Error — Findings—Sueeioienoy.
    Findings of the trial court of a general and informal character, in an action upon a promissory note which the court determined by its findings was proved and was a valid and existing obligation, sufficiently support the judgment.
    5. Same — Amendments—Time to Present.
    Proposed amendments to the findings of the court were properly refused because not presented within ten days as required by Circuit Court Rule 26.
    Error to Wayne; Mandell, J.
    Submitted November 14, 1911.
    (Docket No. 99.)
    Decided December 8, 1911.
    Assumpsit in justice’s court by Jefferson M. Thurber, as administrator of the estate of Henry T. Thurber, deceased, upon a promissory note. From a judgment for defendant plaintiff appealed to the circuit court where the issue was tried by the court without a jury. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Andrew G. Paterson, for appellant.

      Jefferson G-. Thurber, for appellee.
   Stone, J.

This action was commenced in justice’s court in the city of Detroit. The plaintiff declared in an action of assumpsit on all the common counts and specially on a promissory note, and claimed damages of $500, or under. The promissory note was as follows:

“$100.00. Detroit, Mich., Sept. 10, 1903.
“ Three months after date I promise to pay to Henry T. Thurber or order one. hundred dollars at his office. Value received with int. at 6%.
“Frank Aldrich,
“ 1227 Warren W.”

The defendant pleaded the general issue, with notice of set-off and recoupment, and filed a bill of particulars of his claim, as follows:

“ Balance due on an agreement or contract for sale of patent on car lock, which agreement was fully performed on the part of defendant, and aceepted by deceased. $900.00.”

There was evidence of the death of Henry T. Thurber, and that the plaintiff was appointed administrator of the estate of the deceased on May 11, 1904.

The record is silent as to whether or not defendant’s counsel made a written demand for special findings of fact and law, as provided by Circuit Court Rule 26. But as a finding by the circuit judge appears in the record, it will be presumed, in the absence of any showing to the contrary, that it was made upon request. See Delashman v. Berry, 20 Mich. 292 (4 Am. Rep. 392).

The following is the finding:

“ There seems to be no doubt that leaving out the question of the claim of set-off, which is urged as a defense to the action in this case, that plaintiff is entitled to recover the full amount of the note and interest, so there remains nothing but the consideration of the set-off and recoupment that is urged as a defense, and which will have to be determined by the court, as matter of law, whether or not that is a proper defense to the action or not. Considering all the evidence that is offered, we are left in serious doubt as to what the exact transaction between Frank Aid-rich and Henry T. Thurber was. There has been offered in this case, in evidence, Exhibit E, an agreement between Frank Aldrich and Sarah E., his wife, on the one part, and Henry T. Thurber, acting as trustee for certain unnamed persons on the other part. The evidence in this case does not disclose who the real parties in interest were. The defendant in this case urges by inference simply that the real parties in interest were Frank Aldrich on the one part and Henry T. Thurber on the other. It cannot be permitted to do that in the absence of testimony of Henry T. Thurber, whose lips are sealed by death, because by reason of his death Mr. Aldrich himself is not permitted to testify, and we are left, therefore, to determine who the real parties in interest are, by the document itself, and the document itself shows that Mr. Aldrich and his wife on the one part and Mr. Thurber was acting for certain persons who were desirous of forming a corporation. The paper shows that Henry T. Thurber was acting as trustee for certain parties in interest with him. The other proofs offered here indicate that quite a sum of money was advanced for the purpose evidently, and obviously of forming this corporation by Mr. Thurber and Mr. Aldrich, for traveling and for other expenses. If they were not advanced in this manner it is not shown by the proofs here why they were advanced. If there is any inference to be drawn from the proofs, the only proper inference is that they were drawn for the purpose of taking care of the formation of a stock company, and exploiting the patent owned by Mr. Aldrich and his wife. If we say that is not established by the proofs — if we are not permitted to draw that inference from the proofs — to draw any other inference would be simply speculation and guesswork. There is no evidence here that would justify in a court of law the inference that Mr. Thurber was at any time indebted to Mr. Aldrich. Mr. Henry T. Thurber, because the very fact of the existence of this note, the very fact that it had not been canceled or destroyed, and the very fact that its execution is not denied under oath by the defendant, or anybody who could deny it, is evidence that there was a valid and existing indebtedness on the part of Mr. Aldrich to Mr. Thurber, individually. What their business relations were and what Mr. Thurber on behalf of others in a business way with Mr. Aldrich and the purpose of advancing the money to Mr. Aldrich for his benefit as well as Mr. Thurber and his associate’s benefit, we do not know. These matters are all left in the dark. This case is not free from legal difficulty, nevertheless, in this matter, it being a suit at law and not in equity, we are bound strictly by principles of law. The note having been proved and there being no defense offered by legal proof, although there is a good deal that would be the basis, perhaps, of speculation and guesswork, I think in a court of law nothing remains but to enter a verdict or a judgment for the plaintiff for the full amount of the note, and that amount is $140. I find the defendant is not entitled to his set-off, and a judgment will be entered in favor of the plaintiff against the defendant for $140.”

A judgment was thereupon entered for the plaintiff in said amount.

“ Exhibit E — Agreement.
“ Whereas, Frank Aldrich and Sarah E. Aldrich, his wife, of Detroit, are the owners of a certain patent indicator lock for which they hold letters patent for the United States numbered 585,016, and whereas the said Frank Aid-rich is the sole owner of letters patent for the Dominion of Canada numbered-;
“And whereas, the said parties, hereinafter called parties of the first part, are desirous of forming a stock company in conjunction with other parties for the utilization of the said patented invention and for its introduction and sale to the public;
“ And whereas, he has consulted on different occasions with Henry T. Thurber with reference to the organization of such corporation and the flotation of its stock:
“ Now, therefore, in consideration of the premises and of the sum of one ($1.00) dollar in hand paid, the receipt whereof is hereby confessed, the said parties of the first part do hereby agree in consideration of the payment to them of the sum of one thousand ($1,000.00) dollars and also the delivery to them of ten per cent, of the capital stock of said corporation — said stock to be fully paid and nonassessable — to convey, assign, transfer and set over by proper instruments the said letters patent and any improvement or improvements heretofore or hereinafter made upon said invention unto the said Henry T. Thurber, as trustee for certain parties in interest with him; and to hold any such improvement or improvements in secret and in confidence; so that on the formation of the said corporation it can make application in any and all foreign countries for letters patent upon the said invention or any improvement or improvements upon the same.
“In witness whereof, the said parties of the first part have hereunto set their hands and seals this 10th day of January, A. D. 1903.
“Frank Aldrich. [L. S.]
“Sarah E. Aldrich. [L. S.]
“Exceptions to Findings.
“And now comes the defendant and excepts to the findings of the court, that is to say:
“(1) The defendant excepts and assigns error thereon, that the court did not find an acceptance by Henry T. Thurber of the option contained in the contract Exhibit E.
“(2) That defendant excepts and assigns error thereon, that the court failed to find that there was payable to said defendant from said Henry T. Thurber the sum payable to said defendant as expressed in said contract Exhibit E.
“That defendant excepts and assigns error thereon, that said court failed to find that there was money, payable by said Henry T. Thurber to said defendant, sufficient in amount to pay said promissory note in full.
“ That said defendant excepts and assigns error thereon, that said court failed to find that from the evidence the presumption was that said note was paid.
“ (5) That defendant excepts and assigns error thereon, to the findings of the court, that the contract Exhibit E and the money payable thereon was not a personal obligation of Henry T. Thurber.
“(6) That the defendant excepts and assigns error thereon, to the findings of the court, that the plaintiff was entitled to a judgment against the defendant.
“ (7) That defendant excepts and assigns error thereon, to the entry of judgment in favor of plaintiff and against defendant.
“ (8) That defendant excepts and assigns error thereon, that the findings of fact and law are so uncertain and indefinite and are not separated as to'distinguish one from the other.
“ (9) That defendant excepts and assigns error thereon, that the court refused to make amended findings as requested by defendant.”

The notice under the general issue was that of set-off and recoupment.

We are of opinion that the first five exceptions and assignments of error are not well taken, for the reason that an examination of the record fails to disclose any competent evidence of any acceptance of the agreement Exhibit E by Mr. Thurber, and, until accepted, it was not binding on him.

It is also urged by plaintiff that the alleged agreement was void for want of mutuality, applying the doctrine of Wilkinson v. Heavenrich, 58 Mich. 574 (26 N. W. 139, 55 Am. Rep. 708), and Furniture Co. v. Norris, 129 Mich. 11 (87 N. W. 1041). We are satisfied that until accepted by Mr. Thurber it was not binding upon him. 9 Cyc. p. 327 et seq. Cooper v. Wheel Co., 94 Mich. 272 (54 N. W. 39, 34 Am. St. Rep. 341); McColl v. Iron Co., 98 Mich. 482 (57 N. W. 578).

We are also of opinion that defendant’s claim should have been presented to the commissioners on claims in the estate of plaintiff’s decedent, and that it is barred by the statute. Section 9380, 3 Comp. Laws; Quinn v. McGovern, 97 Mich. 114 (56 N. W. 226); First Nat. Bank v. Sherman Estate, 117 Mich. 602 (76 N. W. 97); Benjamin v. Early, 123 Mich. 93 (81 N. W. 973); Draper v. Brown, 153 Mich. 120 (117 N. W. 213).

We gather from the sixth, seventh, and eighth exceptions and assignments of error that the defendant claims that the finding was not sufficient to support a judgment against the defendant upon the note.

It is true that the findings are very general and informal, but we are of opinion that they are sufficient to support the judgment. The first sentence of the finding holds that the plaintiff is entitled to recover the full amount of the note and interest. The note had been offered in evidence and was received. Again, the circuit judge finds that:

“The very fact of the existence of this note, the very fact that it had not been canceled or destroyed, and the very fact that its execution is not denied under oath by the defendant, or anybody who could deny it, is evidence that there was a valid and existing indebtedness on the part of Mr. Aldrich to Mr. Thurber, individually.”

The closing paragraphs of the finding begin with the words: “The note having been proved, and there being no defense offered by legal proof,” etc. These references, with the conclusion as stated, are, we think, a sufficient finding and conclusion to support the judgment.

The last exception and assignment are to the effect that the court refused to make amended findings. The circuit court rule already referred to provides that if either party considers the findings not sufficiently full or definite on facts or law, or both, he shall within 10 days after the judgment (or such other time as may be granted by the court) propose such amendments to the findings as he may see fit, etc. The record shows that the circuit judge declined to sign the proposed amended findings, one reason being that they were not seasonably presented. The findings and judgment appear to be of date May 2á, 1910. Appellee’s counsel state that the proposed amended findings were presented to the court August 10, 1910. The calendar entries do. not appear in the record, but the correctness of this statement is not challenged. The circuit judge did not err in refusing to sign the proposed amended findings.

We find no reversible error in the record, and the judgment of the circuit court is affirmed.

Ostrander, C. J., and Steere, McAlvay, and Blair, JJ., concurred.


author: Per Curiam.

text:
    SULLIVAN v. GODKIN.
    Appeal and Error — Evidenoe—Exhibits.
    An order requiring appellee to produce oertain exhibits which the parties stipulated might be used on appeal, and which had been accidentally lost, and ordering that appellee in default thereof be subjected to the reversal of his judgment, is not the proper remedy in behalf of the appellant, but an order may be entered permitting him to remit the record and amend the bill of exceptions so as to show the contents of such exhibits.
    Trespass guare clausum fregit by Thomas G. Sullivan against John Godkin for cutting and removing timber. On motion of defendant to compel plaintiff to file certain exhibits with the clerk of the court, to stay proceedings until the order should be complied with, and to reverse a judgment appealed from in default of such compliance.

      Submitted December 11, 1911.
    (Calendar No. 24,683.)
    Motion denied and partial relief granted December 11, 1911.

      Frank 8. Pratt, for the motion.

      Weadock & Weadock, contra.

   Per Curiam.

The bill of exceptions has been settled in this cause, and the record is now in this court. The appellant moves this court for an order as follows:

(1) Requiring the plaintiff to file with the clerk of this court, or serve upon the attorney for the defendant, the three tally books, designated as “Book 1,” “Book 2,” and “Book 3,” in the records in this cause, on or before the 2d day of January, 1912, or on or before such other date as to the court may seem reasonable and proper; and that meantime all proceedings in the cause be stayed, including the printing of the record.

(2) That in default of the filing or service of said tally books, on or before the 2d day of January, 1912, or on or before such other date as the court may fix, the judgment of the court below be reversed, with costs to the appellant, for the following reasons:

(а) By stipulation contained in the bill of exceptions, the appellee was required to file the three tally books, mentioned in paragraph 1, with the clerk of this court, or deliver the same to attorney for appellant, as hereinafter stated, and said books have not been so filed or delivered.

(б) Until said hooks are filed, or served according to said stipulation, appellant ought not to be required to go to any further expense, or to do anything more toward bringing said cause to hearing in this court.

(c) Appellant cannot safely go to hearing, unless his counsel has an opportunity to examine said books preparatory to argument in this court, and the production of the same upon the hearing is necessary to the proper presentation and understanding of appellant’s case.

(d) Unless said tally books are produced and filed, or delivered to appellant’s attorney, the judgment of the court below ought to be reversed; the plaintiff being responsible for the safe-keeping and production of his own exhibits.

The motion is based on the files and records in the cause, and on the affidavits of counsel.

The reference to the said tally books in the bill of exceptions is in the following language:

“ These three books, marked as ‘ Exhibits A, B, and 0,’ by the stenographer taking Mr. Brown’s deposition, are referred to in this record as ‘Book 1,’ ‘Book $},’ and ‘Book 8.’ And inasmuch as a copy of the same cannot be made, so as to show the appearance of the books and the copy attached to the bill of exceptions, and an examination of the original books being necessary to an understanding of the points raised, it is therefore stipulated and agreed that the original books shall be filed with the clerk of the Supreme Court, or delivered to the attorney for defendant, on or before August 15, 1911, and that such original books shall be used upon the hearing in the Supreme Court as constituting a part of this bill of exceptions and the record of this case.”

It appears by the affidavits of the plaintiff and one of his attorneys and another witness that these tally books, which were present at the trial of the cause, and were introduced in evidence, have since become lost. We are satisfied by these affidavits that the books have accidentally disappeared, and so far, after diligent search, they have not been found. The attorney for plaintiff who conducted the trial has since become ill, and is in such a condition that he is unable to render any assistance in the discovery of the books. We do not find that the present condition is due to the fault of any of the parties or their attorneys. We cannot grant the motion in either of its aspects, but may treat it, at the option of the appellant, as an application to remit the record, to enable either party to apply to the circuit judge to make such amendment to the bill of exceptions as may throw such further light upon the contents of these books as they may be advised; but consideration of the legal questions involved in the case must be deferred until the hearing of the case.

An order will be entered at the option of the appellant, remitting the record to the circuit court, for the purpose of permitting either party to move for an amendment of the bill of exceptions as indicated; and proceedings in the case may be stayed for the period of 20 days for that purpose. See Evans v. Norris, 6 Mich. 69, and cases cited in note; Niagara Fire Ins. Co. v. De Graff, 13 Mich. 10, and cases cited in the note. No costs will be allowed on the motion.


author: McAlvay, J.

text:
    ATTORNEY GENERAL, ex rel. GREENFIELD, v. BOARD OF SUPERVISORS OF ALCONA COUNTY.
    1. Mandamus — Board of Supervisors — Funds of Municipal Corporations — Jail.
    It was correctly determined by the court to whom issues of fact were referred, in mandamus to compel the board of supervisors of Alcona county to rebuild the county jail, that the money received by the county treasurer from insurance policies on the building, which was destroyed by fire, remained unexpended in the hands of the country treasurer, though testimony was offered tending to show that the fund was intermingled with other public moneys and employed for public purposes, it appearing that no orders had been drawn upon the fund since it was created and that the treasurer had in his hands more than the amount of the insurance money.
    3. Same — Statutes.
    Under section 3511, 1 Comp. Laws, the supervisors have no authority to expend money received from insurance upon public buildings for any other purpose than the reconstruction of the same.

      3. Same.
    Mandamus is the proper remedy to compel such board to rebuild the jail, for which the county possessed a site, no question of the style and character of the building being involved.
    Mandamus by Franz C. Kuhn, attorney general, on the relation of John Greenfield and others, to compel the board of supervisors of the county of Alcona to rebuild the jail of said county previously destroyed by fire.
    Submitted June 27, 1911.
    (Calendar No. 23,975.)
    Writ granted December 20, 1911.

      Franz O. Kuhn, Attorney General, and (Arthur P. Hicks, Assistant Attorney General, of counsel), for relators.

      John A. Stewart, for respondent.
   McAlvay, J.

This proceeding is an application for mandamus made by the attorney general, on relation of several citizens and taxpayers of Alcona county, to compel the board of supervisors of said county to erect and complete a jail building in the city of Harrisville, the county seat. Two answers have been filed to relator’s petition — one on behalf of the board by the prosecuting attorney of Alcona county, duly authorized by a vote of said board; the other on behalf of six individual supervisors upon leave granted by this court. Upon each of these answers issues of fact were duly framed and submitted to the circuit court for the county of Bay for determination.

The county jail of Alcona county burned in January, 1904, and the county received as insurance thereon $2,-812.22, which money so received, under the provisions of section 2544, 1 Comp. Laws, can only be used in rebuilding said jail. It has been impossible to get a necessary two-thirds vote of the board of supervisors to use the insurance money in rebuilding the jail. About $1,500 has been expended upon the jail building by vote of the board of supervisors; this amount being voted from the general fund for repairing the jail by a majority vote of the board in amounts of $500 per year. In 1907 the board was enjoined by one Simmons and other taxpayers from proceeding unlawfully to rebuild the jail under the guise of repairing the same, which injunction has never been dissolved. At present the exterior walls of the jail are completed, partitions set, rafters and roof boards in place, and a temporary tar paper roof constructed. The temporary roof is now in a bad state of repair, the plastering and interior finish have not been put on, there are no cells installed, and the jail is without a heating plant. The present partially constructed jail building has never been used, and cannot be used for the detention or confinement of prisoners. It has remained in its present condition since 1907. The jail of Alpena county was designated for confinement of prisoners after the burning of the old jail, and has been continuously used for that purpose since the fire. The Alpena county jail' is some 35 miles distant from Harrisville. .Under this state of facts, it has been necessary for the sheriff of Alcona county to detain prisoners and insane persons overnight in his own home or at the local hotels at great danger to himself, his deputies, and to the public generally. The county of Alcona has been put to great expense for upwards of seven years in paying for the transportation of prisoners and the sheriff to and from Alpena, and for the board of prisoners while confined in the Alpena county jail. During all of this time the respondent board of supervisors has neglected and refused to perform its statutory duty to expend the insurance money in building the jail.

The following issues of fact were presented to and framed by this court, and referred to the circuit court for Bay county for determination:

On the part of respondent board:

“First. Is the jail site for Alcona county established upon the following described property, situated in the county of Alcona, to wit: Block 14, or park lot, as appears on the plat of the village of Harrisville, Alcona county, Mich., as surveyed and platted by H. G. Rothwell, civil engineer, and of record in the office of the register of deeds for Alcona county, except that portion of said block or lot formerly owned by school district No. 1 of the township of Harrisville ?
“Second. What was the result of the vote of the electors of Alcona county at the special election, held May 31,1910, upon the question submitted by the board of supervisors for said election: Resolved that the board of supervisors of Alcona county are hereby instructed to spend $2,800 now on hand known as the ‘Jail Insurance Fund’ in completing the jail ? ”

On the part of six intervening supervisors the first and third of the issues framed are identical with those just stated. The others were as follows:

Second. What disposition, if any, has been made of the moneys, amounting to $2,812.22, collected as insurance upon the jail building burnt in January, 1904, and paid to the county treasurer pursuant to the provisions of section 2544, Compiled Laws of 1897
Fourth. When other than on May 31, 1910, and in .what form, if at all, has the question of erecting a jail building been submitted to the electors of Alcona county and with what results ?”

The following are the findings of fact of the Bay circuit court upon such issues:

“After hearing the evidence offered in behalf of the relator, respondent, and intervening supervisors, and after due consideration of the same, this court doth find, determine, and answer said issues of fact as follows:
(1) “Upon the issues framed upon the answer of the board of supervisors of Alcona county, the court doth find and determine: First. That the jail site for Alcona county is established on the following described land situated in the county of Alcona, to wit: Block 14 (fourteen) or park lot, as appears on the plat of the village (now city) of Harrisville, Alcona county, Mich., as surveyed and platted by the register of deeds for Alcona county, except that portion of said block or lot formerly owned by school district No. 1 of the township of Harrisville. Second. The result of the vote of the electors of Alcona county at the special election held May 31, 1910, upon the question submitted by the board of supervisors for said election, ‘Resolved that the board of supervisors of Alcona county are hereby instructed to spend $3,800 on hand, known as the “Jail Insurance Fund” in completing the jail,’ was as follows: Total number of votes for said proposition, 637. Number of votes against said proposition, 500. Total number of votes cast for and against the proposition, 1,137.
(3) “ Upon the issues framed upon the answer of the six intervening supervisors of Alcona county, the court doth find and determine: [The first and third of these are identical with the first and second above.] Second. The moneys amounting to $3,813.33 collected as insurance upon the jail building burned in January, 1904, and paid to the county treasurer pursuant to the provisions of section 3544, Compiled Laws of 1897, were set apart on January 8, 1904, into a fund known and carried upon the books of the county treasurer of Alcona county as a jail insurance fund. No orders have ever been drawn upon or paid out of said fund since it was created, and said fund still remains in tact and available for expenditure in accordance with law.” Fourth. [The court found that a proposition to borrow $3,000 to build a new county jail was submitted to the voters in April, 1907, and defeated.]

From the answer of respondent board it appears to be admitted that the sum of about $3,800, “known as the '“Insurance Fund,’ is in the hands of the county treasurer of Alcona county, which funds can only be expended by a two-thirds vote of the members of the board of super, visors, and further says that there is no possible chance for the said board coming to any understanding whereby said money can be expended as aforesaid.”

■ The interveners deny that such money is in the hands of the treasurer.

It also appears from their answer that there is a dispute between factions on this board relative to the location of the county seat, which is now at Harrisville. It is apparent to the court that this dispute has caused the years of delay, and prevention of the application of such fund to the only purpose, as relators claim, for which it may be lawfully used. The portions of the record of respondent board printed clearly show that strenuous efforts to make such application of this fund have been repeatedly defeated until the present time by interveners and their predecessors in office.

None of the questions relative to the removal of the county seat are involved in these proceedings. Nor are any proceedings now pending relative to such removal. There is no dispute as to the remedy by which relators seek relief.

The controversy resolves itself into a dispute upon one question of fact found by the trial court upon the second issue framed upon the answer of interveners as follows:

Second. The moneys amounting to $2,812.22 collected as insurance upon the jail building, burned in January, 1904, and paid to the county treasurer pursuant to the provisions of section 2544, C. L. 1897, were set apart on January 8, 1904, into a fund known and carried upon the books of the county treasurer of Alcona county as a jail insurance fund. No orders have ever been drawn upon or paid out of said fund since it was created, and said fund still remains intact and available for expenditure in accordance with law.”

The interveners proposed certain findings of fact for adoption by the court upon this issue, and claim that this finding by the court is not supported by the record. While not denying that this insurance money was received by the then county treasurer and covered into the treasury, it is urged by them that it was not kept intact as a fund, but was commingled with other moneys from all sources, and has been paid out and expended by respondent board. The testimony presented upon this issue of fact is all returned to this court. The opinion of the court shows that at no time has the cash on hand been less than the amount of this fund. There is no dispute but that over $3,000 was in fact in the treasury. The court has found that the county has this money, and such finding was warranted by the evidence. Under the statute invoked (section 2544, 1 Comp. Laws) there is but one purpose for which this insurance money may be lawfully used, namely, to repair or rebuild the public buildings destroyed or damaged.

These proceedings have been instituted to compel the performance of an act enjoined by law which this respondent has repeatedly refused to do. The question of the adoption of a location, style, and character of the building is not sought to be enforced. These matters have already been determined by respondent board, and it has proceeded to act upon such determination by expending #1,500 voted for the purpose in erecting this jail building which is upon a site owned by the county.

The use of the writ of mandamus directed to such body to compel the performance of an act enjoined by law, and to compel the performance of such official acts as clearly pertain to their duty and are of absolute obligation, is well recognized. Merrill on Mandamus, §§ 21, 108; 26 Cyc. p. 301, and cases cited.' The following cases decided by this court recognize this principle: Bigelow v. Brooks, 119 Mich. 208 (77 N. W. 810); Brophy v. Schindler, 126 Mich. 341 (85 N. W. 1114).

Our conclusion is that relators are entitled to the relief asked. A writ of peremptory mandamus will therefore issue, directed to the respondent board of supervisors of Alcona county, compelling them to forthwith convene, and order the expenditure of this insurance money to the amount found by the court, or so much thereof- as may be necessary, in completing the rebuilding of the jail in question, as provided by law.

Costs of these proceedings are allowed against the intervening supervisors personally.

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


text:
    BURDICK v. HARBOR SPRINGS LUMBER CO.
    1. Res Ad judicata — Injunction—Equity — Decree — Motion to Dissolve.
    The opinion and finding of the court in the preliminary holding (Harbor Springs Lumber Co. v. Emmet Circuit Judge, 160 Mich. 497 [125 N. W. 390]), on mandamus to dissolve an injunction heretofore granted in this cause, is conclusive of the question which was presented and determined as to the propriety of the equitable remedy and jurisdiction to enjoin an alleged trespass.
    2. Equity — Adequacy of Remedy at Law.
    As against the objection that complainant has an adequate remedy at law, equity has jurisdiction to enjoin the unlawful use of complainants’ land as a right of way, under invalid proceedings to open the way by the township board in pursuance of Act No. 283, Pub. Acts 1909.
    8. Constitutional Law — Highways and Streets — Easements— Private Way.
    A private way to timber land over adjoining property must be opened in the manner prescribed by section 3, art. 13, Const, of 1909, requiring a jury of six freeholders or three commissioners to determine the necessity and damages therefor.
    4. Same — Statutes.
    Sections 7, 8, 9 and 10 of Act No. 283, Pub. Acts 1909, providing for the laying out of private ways to timber land over adjoining premises are invalid under the requirements of the Constitution.
    6. Words and Phrases — Highways—Private Way — Easements and Servitudes.
    The term “private highway” as employed in said act, means a private road, not a public thoroughfare.
    Appeal from Emmet; Shepherd, J.
    Submitted November 14, 1911.
    (Docket No. 96.)
    Decided December 20, 1911.
    Bill by Myron Burdick and Rickey Burdick, his wife, against the Harbor Springs Lumber Company to enjoin a trespass. From a decree for complainants, defendant appeals.
    Affirmed.

      Pailthorp & Hackney, for complainants.
    %

      Halstead & Halstead and A. L. Deuel, for defendant.
   Steere, J.

Defendant appealed from a final decree, making permanent a temporary injunction previously granted, restraining it from tearing down and destroying complainants’ fences and entering upon their land. This the defendant was doing while opening and using an alleged private highway, claimed to have been secured under sections 8, 9, and 10 of chapter 9, Act No. 283, Pub. Acts 1909.

Defendant is a private corporation engaged in logging and the manufacture and sale of lumber and kindred products, having its office and principal place of business in the village of Harbor Springs, Little Traverse township, Emmet county.

Complainants are husband and wife, owning jointly the land in question, which is a farm of 80 acres, described as W. i of the S. W. i, section 36, town 36 north, of range 6 west, in West Traverse township, Emmet county. It is fenced and mostly cleared, having upon it the usual farm buildings and appurtenances. Complainants reside upon this land, being engaged in farming and running a dairy. Public highways, opened and traveled by the public, bound this land on all four sides.

Defendant had filed a petition for laying out a temporary highway across said land, directed to the commissioner of highways of the township of West Traverse. It was not signed by a resident of said township. The commissioner of highways certified the petition to the township board, and a determination that a temporary highway was “ necessary for the purpose of removing the timber from the land described in said application ” was thereafter signed by said commissioner and three members of the township board. The return of said commissioner to the determination certifies that he signed the same under a misapprehension. After a preliminary injunction was granted herein, application was made to this court for a writ of mandamus to compel the circuit judge to vacate an order denying a motion to dissolve said injunction. This was denied.

It is the claim of complainants that the act under which defendant endeavored to secure the private highway is unconstitutional, and that, in any event, the proceedings taken under it are irregular and void.

Defendant contends that the law is constitutional, and the proceedings are regular; that, these two questions being the only important ones involved in the case, a review should be had on the law side of the court upon certiorari; that the chancery court has no jurisdiction, and complainants have sought the wrong remedy.

The three questions presented and argued in this case are: The remedy; the constitutionality of that portion of the act under which proceedings were taken to open the highway; and the regularity of those proceedings.

It is claimed on the part of complainants that the first question is foreclosed by the preliminary opinion in this case (Harbor Springs Lumber Co. v. Emmet Circuit Judge, 160 Mich. 497 [125 N. W. 390]), wherein it is said:

“The case stated by the bill of complaint is one properly brought upon the chancery side of the court.”

On the part of defendant it is urged that the propriety of the remedy was not raised in that proceeding; that the quotation relied on by complainants was not essential to a disposition of the case, consequently was pure dictum.

An examination of the printed record and briefs in that case discloses that the petitioner (defendant here) stated in its petition 17 reasons for the dissolution of the temporary injunction, which had been urged in its motion before the trial judge, whose refusal to dissolve said injunction was the grievance sought to be relieved by mandamus. Among these reasons are the following:

(a) There is no equity on the face of the bill.
“ (c) The complainants have an adequate remedy at law.
“(d) The complainants have mistaken their remedy.”

These reasons were not overlooked in the briefs of counsel. The question of jurisdiction appears to have been plainly presented to the court as a vital issue and squarely passed upon. The court there quotes the averments of complainant’s bill, which is the one before us now, and says: •

“ This contention that all questions involved are legal ones is true only in the event that this court should find the law of the case to be as relator claims it to be. In the event that it should find the case is as claimed by complainants in the chancery case, there is the question of damages to be determined. The court below has not passed upon that question, and this court is not in possession of any facts upon which it could intelligently reach a conclusion upon that phase of the case.
“ The case stated by the bill of complaint is one properly brought upon the chancery side of the court.”

The trial court has since passed upon the question of damages, and defendant’s counsel state in their brief:

“If complainants are entitled to recover damages at all, we make no complaint as to the amount awarded by the circuit judge.”

Counsel have furnished us with able and interesting briefs on the question of jurisdiction. It is plainly pointed out by abundant authority that injunction will not lie where there is an adequate remedy at law; that certiorari is a proper and favorite remedy to review proceedings of commissioners in laying out and opening highways, drains, etc.; that such remedy is usually adequate, and when so is the only proper remedy. It is well settled that in those cases where the law affords a plain and adequate remedy for persons aggrieved by the action of commissioners in the opening of highways relief will not be given by injunction; but it is also well settled that—

“When defendants, the road commissioners of a town, acting as public officers under an unfounded claim of authority, are endeavoring to appropriate complainants’ land to the use of the public for a highway, they may be enjoined from entering upon the land and from removing trees, buildings, and fences therefrom. And in such case, the court, having properly acquired jurisdiction for the purposes of the injunction, may, in order to prevent a multiplicity of suits and to do complete justice between the parties, under the prayer for general relief, award damages for the injuries already committed. * * * So, where an award of a board of highway commissioners in laying out a highway is void for want of jurisdiction, because of a failure to give the notice required by law, the giving of such notice being treated as a jurisdictional matter, the court of equity may enjoin further proceedings for the opening of the highway.” 1 High on Injunctions, § 592.

This court held that the facts stated in complainant’s bill bring the case within the latter class, and the matter is res adjudieata.

Of the several irregularities which it is claimed invalidate the proceedings taken by defendant to open the private highway, the question of residence seems most worthy of consideration. The act provides that application may be made by a “resident” owner. In most statutes where the matter of residence is deemed important, we find it limited by express language, or conclusive context, to the State, county, township, or other more restricted district. No such express language is found in this act; nor is it fairly inferable from the context. The act states that the owner may apply to the commissioner of highways, not in the township in which the applicant resides, nor of which he is an inhabitant, but of “the proper township.” The word “resident” is of doubtful import when used with no localization. When so used to modify pre-existing laws, we think it should be construed as intending the least, rather than the greatest, possible change, and when no particular locality is designated it means a resident of the State; the restriction as to residence being limited to the jurisdiction of the sovereign, which in this instance is the State.

We next consider complainants’ claim that the portion of chapter 9 of Act No. 283 [Pub. Acts 1909], which relates to temporary highways, and under which defendant seeks to justify, is unconstitutional and void. Said act is entitled—

“An act to revise, consolidate and add to the laws relating to the establishment, opening, improvement, maintenance and use of the public highways and private roads, the condemnation of property and gravel therefor,” etc.

Chapter 9 of said act is entitled “ Opening of private roads and temporary highways.” Sections 1 to 6 of said chapter authorize opening private roads, and prescribe the method in harmony with section 3, art. 13, of the Constitution (1909). Sections 7 to 10, inclusive, of said chapter, being those under consideration, authorize the opening of temporary highways to allow resident owners of timber lands to remove the timber therefrom. It is the contention that the phraseology of these sections limits and restricts such ways to the character of private roads, and the manner prescribed for their opening is in violation of the requirements of section 3, art. 13, of the Constitution. The test of constitutionality is whether the language used in the statute makes the so-called temporary highway a private road, or a highway open to public use. If it is a private road or way, the method of opening it violates the Constitution.

Section 7 of said chapter provides:

“Whenever any resident owner of any timbered land not less than forty acres, shall wish to have a temporary highway laid out, he may, in writing, make application to the commissioner of highways of the proper township for that purpose, who shall proceed to lay out such temporary highway, in all respects as provided by law in relation to laying out public highways, except as hereinafter provided. ”

Section 8 is in part as follows:

“ When any such application shall be made the commissioner of highways of the township in which such road is to be located shall immediately certify the same to the township board of said township, * * * and if the said highway commissioner and the township board shall determine that said highway is necessary for the purpose of removing the timber from such lands they shall certify the same,” etc.

Section 9, after describing the details of laying out such way, and imposing certain restrictions as to the route, says:

“ Such temporary highways shall be private highways and all the expenses of their laying out * * * shall be paid to the commissioner by the persons applying for the same, and upon such payment they may enter upon, open and work such highways at their own and sole expense,” etc.

The word “road” has a varied meaning; it signifies a way of travel, and may mean a private way or a public thoroughfare. As a rule, its meaning is to be ascertained from the context, both in common usage and in statutes and decisions. It is now most commonly used as denoting a way for public travel in, the country, as distinguished from the streets in a village or city. A highway is a way or thoroughfare open to all, a way over which the public at large have a right of passage; the name being derived from alta via, or king’s highway, meaning a thoroughfare opened and maintained by the highest authority common to all, for the free use of the sovereign and all his subjects.

“The term ‘highway ’ is the generic name for all kinds of public ways, including county and township roads, streets and alleys, turnpikes and plank roads, railroads and tramways, bridges and ferries, canals and navigable rivers. In short, every public thoroughfare is a highway. ” Elliott on Roads and Streets, § 1.

While it is common to call a thoroughfare open to the public a public highway, the adjective adds nothing and is mere tautology; the unqualified and unrestricted use of the word “ highway ” in the sections referred to could be construed as an intent on the part of the legislature that the way primarily opened for the use of the owner of timbered lands should also be free to the public.

The public is nowhere mentioned in these sections, and the only possible suggestion that the public is authorized to use the way to be opened, or to have any rights whatever in it, is contained in the use of the word “ highway.” The manifest object of the sections we are. considering is to provide a way by which the owner of timbered lands may conveniently and economically remove the timber therefrom. His necessities only are required to be considered by the authorities in passing on the application. The object is purely private, and there is nothing in the act to indicate that the public is interested. Assuming that these proceedings may be justified and vested with constitutionality by the legislature declaring such temporary way thus opened shall be free to all and a public highway, can such construction be put upon the language used in this act? The legislature expressly declares in section 9 that ‘ ‘ such temporary highways shall be private highways.” Counsel for defendant contend that the name given the way does not necessarily determine its character, especially when the term is self-contradictory, and that the word “private” should not be permitted to emasculate the word “highway,” unless the purpose of the statute or other independent language unavoidably demands it. It is true that the term “private highway” embodies a contradiction which destroys the original significance of the noun, if the adjective is recognized. We would not be justified in holding that the legislature used this expression carelessly or unintentionally; it is peculiar and striking, and of that contradictory class of expressions, containing a negative and affirmative, which are not usually overlooked. The general interpretation of such expressions, and manner in which they are usually understood, is that, where a compound word is qualified by an adjective negativing the significance of the prefix of such word, the independent adjective prevails over the prefix. A private highway is private, just as a tame wildcat is tame, or a white blackbird is white. The inference from the use of the word “ highway ” is further negatived by the provision of section 9, declaring, not only that it shall be private, but that upon payment of all costs and damages the petitioners may enter upon and open and work such highways at their own and sole expense, naming them as a class, to the inferred exclusion of all others.

The object of the law being primarily to open a way of convenience for a private individual to get out his timber, and the only word used in the act from which a public right can be inferred being negatived, we can only construe this act as providing for the opening of a private way or road by methods which are in violation of section 3, art.. 13, of the Constitution. It is a well settled rule of construction that the courts should not undertake to make the legislature say what it has not said. By the same token, they should not undertake to make the legislature say the converse of what it has said. The legislature in this case has clearly said that this way should be private. It is also a rule of construction, recognized by eminent authority, that the courts should not allow themselves to resort to freedom of interpretation or forced construction in order to save a law which is ambiguous or defective, where it can easily be remodeled by legislation; and in that connection we might note in passing that sections 7 and 8 of said chapter have already been amended. Act No. 153, Pub. Acts 1911. We are constrained to hold unconstitutional the provisions of the statute under which defendants seek to justify.

The decree is affirmed, with costs.

Ostrander, 0. J., and McAlvay, Blair, and Stone, JJ., concurred.


author: HcAlvay, J.

text:
    PEOPLE, ex rel. ATTORNEY GENERAL, v. HAGGERTY.
    1. Public Ofeicbrs — Term—Recess Appointment — Governor — Statutes — Approval oe Senate.
    Under section 2081, 1 Comp. Laws, providing that vacancies in the board of control of the State prison at Jackson shall be filled by the governor for the remainder of the term with the consent of the Senate, and if it is not in session the appointment shall continue until the next regular session of the senate, respondent, who was appointed to fill a vacancy caused by death after the adjournment of the legislature and confirmed by the senate at its next regular session, after a new governor had been elected and had qualified, was not entitled thereafter to continue in office to which he was appointed for the remainder of his predecessor’s term; his title ipso faeto ceased when the senate convened.
    2. Statutes — Construction.
    An unambiguous statute is not governed by the rule of construction arising out of the practical usage and interpretation of State officials.
    Information in the nature of quo warranto by the people of the State of Michigan on the relation of Franz C. Kuhn, attorney general, against John S. Haggerty to try respondent’s title to the office of member of the board of control of the State prison.
    Submitted December 12, 1911.
    (Calendar No. 24,821.)
    Decided December 20, 1911;
    judgment of ouster rendered.

      Franz C. Kuhn, Attorney General (George 8. Law, of counsel), for relator.

      Alex J. Qroesbeck, for respondent.
   HcAlvay, J.

To an information in the nature of a quo warranto, filed in this court according to law by the attorney general against the respondent, to answer to the people by what warrant he held the office of a member of the board of control of the State prison at Jackson, a plea was entered of justification and right under an appointment by . the then governor of the State of Michigan, December 20, 1910, to fill a vacancy, upon which appointment a commission issued to him on that date; that he at once took and filed his oath of office and entered upon its duties, and so continued until January 12, 1911, when his said appointment was confirmed by the State senate. To the sufficiency of this plea a demurrer was interposed by the attorney general on the ground that under the law such appointment of respondent, having been made when the State senate was not in session, had terminated, ipso foleto, when the senate convened in regular session on January 4, 1911. Issue was joined upon this demurrer, and in that form the case is before us for determination.

The facts are not in dispute. The appointment was made to fill a vacancy caused by the death of a member of said board whose term of office would not have expired until February 15, 1915. Respondent was appointed by Hon. Fred M. Warner, governor of Michigan, on December 20, 1910, and his commission was at once issued to him for the full unexpired term of his predecessor. Thereupon he qualified and entered upon the exercise of the duties of his office. The appointment was a recess appointment. The State senate was not in session. The term of office of Hon. Fred M. Warner, then governor of this State, who made this appointment, expired December 31, 1910. The term of office of Hon. Chase S. Osborn, his successor as governor, began on January 1, 1911. The new State senate, as provided by the State Constitution, convened in regular session January 4, 1911. On January 10th following, this appointment of respondent was submitted to the State senate by the former governor Fred M. Warner for confirmation. It is conceded that the only question in the case is the construction of the following portion of section 2081, 1 Comp. Laws:

“Whenever a vacancy occurs in either of such boards, otherwise than by the expiration of a term, such vacancy shall be filled by the governor for the remainder of the term, by and with the advice of the senate, if in session. If the senate is not in session, the appointment shall continue until the next regular session of the senate.”

Relator contends that this appointment, having been1 made when the senate was not in session, continued until the next regular session of the senate, and no longer. The contention of the respondent is that, under this statute, this recess appointment made by the outgoing governor, being' specifically for the remainder of the term, after the expiration of the governor’s term of office, might be presented by him to the next regular session of the senate for its confirmation.

An examination of the statute shows that the legislature intended to and did provide for two classes of appointments to fill vacancies in these boards: (a) Appointments made during sessions of the senate. (6) Appointments made when the senate is not in session. The power and authority to make all appointments to fill such, vacancies was given to the governor of the State to be exercised by him as provided by this statute, and not otherwise. In the first class, he is required to fill the vacancy “ for the remainder of the term, by and with the advice of the senate. ” There can arise no controversy upon the construction of this provision. It is clear and specific, unambiguous and complete. It fixes the length of the term of office for which the appointment must be made, and requires a confirmation by the senate. The legislature next proceeded to provide for filling vacancies of the second class, when the senate was not in session, which are commonly called “ recess appointments.” The language used is:

" If the senate is not in session, the appointment shall continue until the next regular session of the senate.”

This sentence contains no provision that the vacancy shall be filled for the full term, or a requirement of confirmation by the senate. It, however, does declare explicitly how long the appointment shall continue. The date of its termination is not indefinite. The date of convening regular sessions of the senate is fixed by the State Constitution.

It is claimed by counsel for respondent that, to construe this provision, “ shall continue until the next regular session of the senate,” as declaring the length of term of the appointee, it is necessary to read into the statute the words “ only ” or “ and no longer.” The language of the legislature does not appear to be obscure. The meaning of the word “ continue” is too well known to require definition. The statute declares that the appointment shall continue until a certain fixed time, yet the contention is that it shall be construed to continue for a longer time. In order to give the construction claimed by respondent, it will be necessary to construe the statute as reading: “If the senate is not in session, the appointment shall continue until the next regular session of the senate, when it shall be transmitted to the senate by the governor who made it for its advice and consentIf it were necessary to add the words “ only ” or “ and no longer ” to the statute to agree with relator’s construction, which of the two required additions is the simpler or more reasonable ?

Counsel for respondent can see no purpose for a provision that the appointment should “continue until the next regular session of the senate ” unless it was intended to be submitted to the senate for confirmation. An obvious purpose would be to provide that it continue during the entire recess of the senate. Another more obvious purpose would be to comply with the earlier provision of the act requiring the governor to present these appointments to the senate for confirmation. The term of office of the governor of this State expires December 31st, before the regular sessions of the senate, which, by constitutional provision, occur on the first Wednesday of the January following. A governor who does not succeed himself, as far as the exercise of the duties and authority of that office are concerned, becomes a private citizen after his term expires. On January 10, 1911, when this appointment was submitted to the senate, by a message for confirmation, Governor Osborn had qualified and entered upon the exercise of the duties of that office. The-former governor who made this appointment was officially dead. No act of the legislature could extend the authority of a governor beyond the term of the office for which, he had been elected as provided by the Constitution, nor can any presumption arise that such was the legislative intent.

Further, it appears from the Senate Journal of January 10, 1911, to which reference has been made by counsel, that “ the following message from former Governor Fred M. Warner was received and read.” This message submitted the name of respondent and 32 other recess appointees for confirmation. This journal shows that at the same time “ the following message from the governor was received and read.” This message from Governor Osborn in his official capacity submitted to the senate 22 names of nominations of appointees for confirmation, some of them for the same offices and for the same terms for which appointees had been named in the message of “ former Governor Fred M. Warner.” A construction from which such a condition inevitably follows, with all the resulting complications attendant upon it, cannot be held to have been within the legislative intent in enacting this law.

Respondent has invoked the principle of contemporaneous practical construction of this statute by the executive and legislative departments, in support of his right to hold this office during the unexpired term. An examination of all the cases referred to shows that but two of them are similar to the instant case. The others were all instances where the governor making the appointments was his own successor to that office, and submitted such appointments to the senate as governor, and cannot be invoked as applicable to this case. This principle has no application even if the contemporaneous construction was established, for the reason that this statute is not ambiguous. Lewis, Sutherland, Stat. Const. § 474. Our construction of this provision of the statute, as to the length of the term of appointees made under it to fill vacancies occurring when the senate is not in session, can he stated in no simpler or plainer terms than the words used by the legislature, namely, “the appointment shall continue until the next regular session of the senate.” Respondent’s title to this office, ipso facto, ceased when the senate of 1911 convened. The subsequent action of the senate upon this appointment was therefore of no force or effect.

It follows that the demurrer of relator to respondent’s plea is sustained, and a judgment of ouster will be entered.

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


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    PHILLIPS v. ATTORNEY GENERAL.
    Mandamus — Quo Warranto — Attorney General — Discretion to Sign Information.
    Since the attorney general, in the exercise of a proper discretion, may refuse to sign an information in the nature of a quo warranto to test title to office of an officer of the State, he will not be compelled by writ of mandamus so to do in a cause which has been practically decided since his refusal, by an opinion of the court in another cause deciding the legal question involved in relator’s case against the contention of relator.
    Mandamus by Edward A. Phillips against Franz C. Kuhn, attorney general, to require respondent to sign an information in the nature a quo warranto and authorize the filing thereof for the purpose of determining relator’s title to office as member of the board of control of the Michigan reformatory at Ionia.
    Submitted December 12,1911.
    (Calendar No. 24,821.)
    Writ denied December 20, 1911.

      Roy E. Brownell (Farley & Selby, of counsel), for relator.

      Franz G. Kuhn, Attorney General (George S. Law, of counsel), in pro. per.

   McAlvay, J.

The principal question in this case involves the construction of section 2081,1 Comp. Laws, and has been passed upon in the case of People, ex rel. Attorney General, v. Haggerty, ante, 682 (133 N. W. 828), and that case is therefore controlling and decisive of this one. These cases were under consideration by the attorney general during the same period, upon inquiries from the governor relative to these recess appointments, and he officially had advised the executive department contrary to the contention of relator in the instant case prior to the appointment of Mr. Parker, whose title to office relator attacks. When requested by relator to sign an information in the nature of a quo warranto to test the title of Mr. Parker to the office of member of the board of control of the Michigan reformatory, to which he had been appointed by Governor Osborn, respondent attorney general refused because he could not consistently do so, for the reason above stated. Upon the application of relator, this court issued an order to show cause why the attorney general should not comply with such request. The briefs of both parties discuss the real merits of the controversy relative to the title to this office and give but little attention to the question of the right of the respondent to refuse the request of relator, presumably upon the theory that the case would turn upon the construction of the statute.

This court has recognized that cases arise where the attorney general may, in the exercise of a proper discretion, decline to institute quo warranto proceedings. In the instant case, the contention of relator upon the construction of this statute having been adversely decided, the court declines to issue the writ.

Ostrander, O. J., and Brooke, Blair, and Stone, JJ., concurred.


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      In re COURTRIGHT.
    1. Infants — Adoption—Guardian and Ward — Statutes—Jurisdiction of Probate Court.
    Under the provisions of 3 Comp.Laws, §8777, adoption proceedings in probate court were valid where a consent thereto was signed by the principal officer of the House of Providence, an incorporated institution which had the care of, and retained the right of control over, the child although the institution had placed the child in petitioner’s hands more than four years previously, with the purpose of ultimate adoption, retaining only the right to secure possession of the infant at any time; since the custody of the child was temporary and subordinate to the right of the institution, its control would not in contemplation of law terminate until the child was adopted.
    2. S a me — Evidence—Suitability of Guardian.
    In habeas corpus proceedings the suitability of the petitioner, after the completion of proceedings for the adoption of the child, was sufficiently established by a showing of his financial responsibility, of affection between the child and the adopting parents and the good character and standing of petitioner and by the good results of his previous care and training of the child.
    Habeas corpus proceedings by Frank Courtright against Euphemia S. Jewell to test the right to the care and custody of Margaret L. Courtright, an infant.
    Submitted October 17, 1911.
    (Calendar No. 24,678.)
    Decided December 21,1911.

      ChawTce & Lee, for petitioner.

      Ewing & Dalton, for respondent.
   Per Curiam.

In the year 1907 Margaret Fitzpatrick, an infant about two years of age, was taken by her mother, with the approval of her father, to and placed in the House of Providence, an incorporated institution under the care and management of the Sisters of Charity of the Catholic Church in Detroit. Her father testified that it was the intention of himself and wife to abandon the child to the institution. In the month of January, 1909, the petitioner, Frank Courtright, and his wife, Laura Court-right, obtained the child from the House of Providence with the intention of adoption, but without any formal agreement with the institution. Petitioner claims that the institution declined to permanently surrender its rights to the custody and control of the child until satisfied that the parents would not wish to resume their parental rights. In March, 1911, Mrs. Courtright took the child to Grand Rapids, where her mother lived, and turned her over to Mrs. Euphemia S. Jewell to find a home for her, but on the same day changed her mind, and Mrs. Jewell returned the child. In May, 1911, the child, having gone with Mrs. Courtright’s son, Harold, 14 years of age, to visit their grandmother, was by the grandmother again turned over to Mrs. Jewell, the chairman of the adoption committee of the D. A. Blodgett Home for Children; she telling Mrs. Jewell that she did so by direction of Mrs. Court-right. Some time about the 18th of May Mrs. Courtright again desired the return of the child, which Mrs. Jewell declined. Mrs. Jewell testified that in her talks with her Mrs. Courtright had repeatedly told her that she was of a very nervous temperament; that her son, Harold, was not her husband’s child; that she was very jealous of her husband’s love for Margaret; that, if Margaret were adopted, she would inherit in preference to her son, and that she could not stand it to have her in the house, but Mr. Court-right insisted on keeping her. The 3d or 4th of May Mr. Courtright had an interview with Mrs. Jewell at Grand Rapids. She testifies:

“He asked me if I would give her back to him. I said in my judgment their home was not suited to bring up the child, and that I would not give her up to him, unless I was convinced I was mistaken in my supposition.”

Habeas corpus proceedings were thereupon instituted in the circuit court for Kent county, which were after-wards, on June 20, 1911, discontinued by stipulation, and on June 21st habeas corpus proceedings were instituted in this court. Return having been made to the writ by the respondent, Mrs. Jewell, issues of fact were settled and—

“Referred to the circuit court for the county of Wayne, with privilege of taking testimony in Grand Rapids by deposition. When finished, the testimony to be returned and reported to this court with the opinion of the circuit judge thereon. The issues referred to are as follows: First. Was the child legally adopted by Frank L. Court-right ? Second. Are the foster parents proper persons to have the custody of the child ? Third. What do the best interests of the child require ?”

The opinion of the circuit judge, returned with the testimony, answers the first and second questions in the affirmative, and, as to the third question, finds that the best interests of the child will be subserved by her return to her foster parents.

The correctness of the answer to the first question depends upon the legality of proceedings in the probate court for Wayne county. The legality of the proceedings is assailed for the reasons that: (1) The House of Providence did not have a present care, custody, and control of said child so as to qualify its president and principal officer, Sister Laura, to give the consent required by 3 Comp. Laws, § 81}"?"}', subd. “d.” (2) The probate court had no authority or power to cure this jurisdictional defect by its order of confirmation. (3) The Wayne probate court had no jurisdiction because of (a) adverse possession of said child in another jurisdiction; (6) prior relinquishment of possession of said child by Mrs. Courtright; (c) pendency in the Kent county probate court of a petition for guardianship of said child; (d) pendency of the habeas corpus proceedings in the Kent circuit court and the unrevoked order of the circuit judge remanding the child to the custody of respondent till the final order of the court; (e) failure to notify respondent of the probate proceedings for adoption.

The serious question presented is as to the legality of the consent of Sister Laura. Her consent as stated in the declaration which she executed on June 12, 1911, is as follows:

“I, Sister Laura, president and principal officer of the House of Providence of the city of Detroit, said institution having had the care, custody, and control and to which the above-named minor was abandoned, do hereby join in the execution of said instrument,” etc.

The affidavit of Sister Laura filed in support of the proceedings made on June 12, 1911, contains the following:

“That said infant was abandoned and left at the said House of Providence, and its parents are unknown. Deponent further says that the said House of Providence has had the care and custody of said infant from date of abandonment until February, 1909, when said child was turned over to Mr. and Mrs. Frank Courtright, of the city of Detroit, county of Wayne, and State of Michigan, for the purpose of adoption by them.”

The declaration was sufficient to confer jurisdiction, unless it was so qualified by the affidavit as to indicate that the House of Providence had absolutely abandoned all right to the care and custody of the child. The petitioner testified that the occasion of the delay in adopting the child was that the House of Providence was unwilling to execute the declaration of its consent until satisfied that the parents would not return and ask for the child, and that he recognized the right of the House of Providence to the custody of the child if desired, and that his custody was temporary and subject to the rights of the institution. Under such circumstances, the care of the House of Providence in legal contemplation would not terminate until the child was adopted under the mutual arrangement. We therefore concur in the opinion of the circuit judge as to this question.

The opinion of the circuit judge as to the second and third issues was as follows:

“ (2) Are the foster parents proper persons to have the custody of the child ? A considerable amount of testimony has been presented upon this point, especially in the testimony taken in Detroit. The witnesses presented by petitioner are of excellent standing and unite in their belief of the good character of the Courtrights in every respect, and the excellent atmosphere of the home and surroundings. The uncontradicted testimony shows the financial ability of the foster parents to rear the child properly, and I believe from the testimony and the appearance of the parties upon the stand that beyond question they are proper persons to have the custody of the child. The only question that has been raised in the case is as to the actions of Mrs. Courtright at the time the little girl was sent to the Blodgett Home at Grand Rapids. The testimony, however, shows to me that this act was more the act of the mother, Mrs. Watts, than that of Mrs. Courtright, and whatever was done by Mrs. Courtright at the time was caused by an attack of a nervous ailment, from which she had been suffering, but which, as testified by the doctor, is not of a permanent character.
“ (3) What do the interests of the child require ? The testimony of the witnesses on this point show that a real affection has sprung up between the little girl and the foster parents, such an one as, in my judgment, it would be wrong to sever. The testimony concerning the present condition of the little girl, her deportment, and character, reflect credit upon the past two years of training she has had at the hands of the foster parents. The interests of the child in my judgment would not be best subserved by the' breaking of these ties and the building up of new affections in changed surroundings.”

While this opinion is not conclusive of the facts found, we do attach weight and importance to it because of the superior advantages possessed by the circuit judge in having the principal witnesses in the case before him and observing them and their manner of giving their testimony. But, independent of this, we are satisfied from our examination of the testimony that his findings of fact are fully sustained, and that the best interests of the child require that she be restored to her foster parents.

The respondent is ordered to restore the child to the petitioner, Frank Courtright.

Bird, J., being ill, took no part in this decision.