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    WATTLES, ex rel. JOHNSON, v. UPJOHN.
    1. Municipal Corporations — Kalamazoo Charter — Elections — ■ Constitutional Law — Proportional Voting.
    ■ The provisions of the charter of the city of Kalamazoo (sections 41a, 182, 183), adopted under the “home rule” act, providing substantially for the use of the “Hare system” of proportional and ’preferential voting in the election of city commissioners, are in contravention of section 25, Art. 8, of the Constitution of Michigan, which provides that “no city or village shall have power to abridge the right of elective franchise.”
    2. Same — Partial Invalidity — Elimination.
    Where, after eliminating the sections which contain all the objectionable election features, a complete, practical charter, including independent, workable election provisions, yet remains, the whole charter will not be held void.
    3. Same — Quo Warranto — Moot Question — Review.
    ■ Where the information in the nature of quo warranto was filed by the prosecuting attorney on the relation of an-alderman whose office was abolished by the charter, but it is stated in the information that it was not alone founded upon plaintiff’s right to office, but also as a citizen and taxpayer, and upon the right of the people to test the right of defendant commissioners to hold office under the charter, the Supreme Court in reviewing the proceedings will not pass upon plaintiff’s right to the expired term of an abolished office, which has become a moot question.
    4. Same — De Facto Oeetcers — Vaeidity oe Acts.
    Defendants and all other city officers legally nominated and formally found elected under color of the voting system provided in the charter, who qualified and acted as such, were and are de facto officers whose official actions within the scope of the charter are valid until they are legally deposed.
    Error to Kalamazoo; Root (Jesse H.), J., presiding.
    Submitted April 27, 1920.
    (Docket No. 100.)
    Decided September 30, 1920.

      Quo warranto• by Stephen H. Watties, prosecuting attorney, on the relation of William H. Johnson, against William E. Upjohn and others to try the title to the offices of commissioners of the city of Kalamazoo. Judgment of ouster. Defendants bring error.
    Affirmed.

      Marvin J. Schaberg, for appellants.

      Mason & Sharpe, for appellee.

      Thomas R. White and Albert B. Maris, amici curiae.

   Steere, J.

The primary purpose of this proceeding, as emphasized in the arguments and briefs of counsel, is to test the validity of the voting system for electing members of the governing body of the city of Kalamazoo-under a recently adopted charter. The motives, which are somewhat discussed we regard as wholly immaterial. The controversy was brought before the circuit court of Kalamazoo county by an information in the nature of quo warranto filed, by the prosecuting attorney on the relation of one Johnson, an alderman of the city under its preceding charter, against the mayor and commissioners elected pursuant to the provisions of the present charter, to test their right to such offices. It is also contended that the proceeding resultantly involves the validity of the entire present charter of the city. Counsel for plaintiff concede defendants were “regularly elected as commissioners in so far as their election could be regular under this charter.”

From 1838 to 1883 Kalamazoo was incorporated as a village. In the latter year it was incorporated as a city. From then until 1918 it continued as a city incorporated under special acts of the legislature. In February, 1918, the electors adopted a new charter under the so-called home rule provisions of the Constitution and supplemental legislation. Details of proceedings to that end need not be reviewed, as it is conceded all prescribed steps leading up to the adoption of the present charter were regularly taken, and that in so far as a charter could be legally adopted with the claimed invalid provisions in it, every requirement has been fully complied with.

At the provided April election which followed adoption of the present charter by electors of the city, defendants were elected city commissioners, superseding the board of aldermen and mayor who up to that time constituted the governing body of the city under its old charter. Plaintiff Johnson was then a member of the board of aldermen, aiid deposed before the term for which he was elected expired by the newly elected city commissioners when they qualified and assumed their duties under the new charter.

While several other more or less technical questions were raised in the pleadings, counsel for appellants states the two questions to be decided are:

“First. Is the provision of the new charter, which provides for the election of commissioners by the proportional representation system contained therein, unconstitutional?
“Second. If so, does that render the entire charter unconstitutional ?”

Plaintiff’s contention before the circuit court and here is that the system of electing commissioners provided in the charter is unconstitutional because—

“(a) The elector is deprived of the right to vote for every office to be filled.
“(b) The elector is not protected in his right to voting power equal to that of every other elector.”

The provisions of the Constitution which it is claimed this voting system contravenes are section 1 of article 3 which under the heading “Elective Franchise” provides, so far as applicable here:

“In all elections every * * * (defining at length qualified voters) shall be an elector entitled to vote.” * * *

And the provision in section 25, article 8, under the heading “Cities and Villages” which provides that—

“No city or village shall have power to abridge the right of elective franchise, to loan its credit, etc.”

The charter adopts the general’ laws of the State relative to the registration of voters, nominations and elections, “except as herein otherwise provided.”

Section 35 recognizes as qualified electors all inhabitants of the city “having the qualifications, of electors under the Constitution and general laws of the State,” and section 41, on the “Conduct of Elections,” introduces the system of voting in controversy as follows:

(a) The members of the city commission shall be elected by. the proportional representation system. The form of the ballots, the method of conducting elections and thei rules, for counting the ballots shall be governed by ordinance to be enacted by the city commission, which ordinance shall contain all the provisions relating thereto hereinafter prescribed in the schedule to this charter.”

Whether any ordinance following the “schedule” was ever enacted does not appear, but section 181 returns to the subject and provides that “The first election of officers under this schedule shall be held on the first Monday in April, 1918,” specifies officers to be elected, etc., and section 182 prescribes rules for the first and succeeding elections under “this schedule,” directs how-ballots shall be printed with names of candidates “rotated” and directions to voters at top in part as follows :

“Put the figure 1 opposite the name of your first choice, do so by putting the figure 2 opposite the name-of your second choice, the figure 3 opposite the name of your third choice, and so on. Express thus as many choices as you please.”

It may perhaps be assumed, in the absence of further mention, that the schedule foreshadowed in previous sections materializes in section 183, which, under the heading “Rules for Counting Ballots,” enlarges upon the subject in a series of directory and explanatory paragraphs from (a) to (t) inclusive, which may be said to furnish the groundwork for this litigation. The commissioners who prepared this charter for submission to the electors state in their explanatory foreword “to the voters of Kalamazoo,” that it had been the aim and policy of the commission “to write this charter so that the fundamental laws of the city will be brief, simple and understandable to all. In carrying out this policy all detail and immaterial matter has been excluded.”

Whether that portion of the fundamental law of the city found in section 183 is simple and understandable to all, and whether if applied as it should be understood the result is constitutional, are debated issues of importance, and to approximate an understanding of the controversy it seems advisable, inasmuch as “all detail and immaterial matter has been “excluded,” to quote the section in full, as follows:

“Section 183. Ballots cast for the election of members of the city commission shall be counted and the results determined by the central election board according to the following rules:
“(a) On all ballots a cross shall be considered equivalent to the figure 1. So far as may be consistent with the general election laws, every ballot from which the first choice of the voter can be clearly ascertained shall be considered valid.
“(5) The ballots shall be first sorted and counted at the several voting precincts according to the first choices of the voters. At each voting precinct the ballots cast for each candidate as first choice shall be put up in a separate package which shall be properly marked on the outside to show the number of ballots therein and the name of the candidate for whom they were cast. The ballots declared invalid by the precinct officials shall also be put up in a separate package, properly marked on the outside. All the packages of the precinct, together with a record of the precinct count, shall be forwarded to the central election board as directed by it and the counting of the ballots shall proceed under its direction.
“(c) First choice votes for each candidate shall be added and tabulated. This completes the first count.
“(d) The whole number of valid ballots shall then be divided by a number greater by one than the number of seats to be filled. The next whole number larger than the resulting quotient is the quota or constituency that suffices to elect a member.
“(e) All candidates the number of . whose votes bn the first count is equal to or greater than the quota shall then be declared elected.
“ (/) All votes obtained by any candidate in excess of the quota shall be termed his surplus.
“(g) The surpluses shall be transferred, the largest surplus first, then the next largest, and so on, according to the following rules:
“(h) Ballots capable of transfer up to the number of votes in the surplus, shall be successively transferred to the continuing candidates marked on them as next choice. The particular ballots to be taken for transfer as the surplus of a candidate shall be obtained by taking as nearly an equal number of ballots as possible from the ballots capable of transfer that have been cast for him in each of the different precincts. All such surplus, ballots shall be taken as they happen to come without selection.
“(i) ‘Ballots capable of transfer’ means ballots from which 'the next choice of the voter for some continuing candidate can be clearly ascertained. A ‘continuing candidate’ is a candidate as yet neither elected nor defeated. ‘Successively’ means one after another separately so far as the work of one electoral official or clerk is concerned;'but nothing in this section is meant to prevent the transfer of ballots by two or more officials or clerks simultaneously, provided only that precautions are taken to avoid transferring any ballot to a candidate who has already received the quota.
“ (/) The transfer of each ballot shall be tallied by the tally clerk assigned to the candidate to whom the ballot is being transferred.
“(k) After ''the transfer of all surpluses, the votes standing to the credit of each candidate shall be added up and tabulated as the second count.
“(i) After the tabulation of the second count (or after that of the first count if no candidate received a surplus on the first) every candidate who has no votes to his credit shall be declared defeated. Thereupon the candidate lowest on the poll as it then stands shall be declared defeated, and all of his ballots capable of transfer shall be transferred successively to continuing candidates, each ballot being transferred to the credit of that continuing candidate next preferred by the voter. After the transfer of these ballots a fresh tabulation of results shall be made. In this manner candidates shall be successively declared defeated, and their ballots capable of transfer, transferred to continuing candidates, and fresh tabulations of results made. After any tabulation the candidate next to be declared defeated shall be the one then lowest on the poll.
“(m) If, after the second or any later count (or after the first count if no candidate receives a surplus on the first) the total of the votes, of two or more candidates lowest on the poll is less than the vote of the next higher candidate, those lowest candidates may be declared defeated simultaneously, and all their ballots capable of transfer, transferred successively to continuing candidates, each ballot being transferred to the credit of that continuing candidate next preferred by the voter. In this operation the ballots of the lowest candidate shall be transferred first, then those of the candidate next higher, and so on. No fresh tabulation of results shall be made until the ballots of all the candidates thus simultaneously defeated have been transferred.
“ (n) Whenever in the transfer of a surplus or of ballots of a defeated candidate the votes of any candidate become equal to the quota, he shall immediately be declared elected and no further transfer to him shall be made.
“(o) When candidates to the number of the seats to be filled have received a quota and have therefore been declared elected, all other candidates shall be declared defeated and the election shall be at an end; and when the number of continuing candidates, is reduced to the number of seats to be filled, those candidates shall be declared elected whether they have received the full quota or not and the election shall be at an end.
“ip) If at any* count two or more candidates at the bottom of the poll have the same number of votes, that candidate shall be declared defeated first, who was lowest at the next preceding count at which the number of their votes was different. Should it happen that the number is. the same on all counts, lots shall be drawn to decide which candidate shall next be declared defeated.
“(q) In the transfer of the ballots of any candidate who has received ballots by transfer, those ballots shall first be transferred upon which he was first choice, and the remaining ballots shall be transferred in the order of the counts, by which they were received by him.
(r) On each tabulation a record shall be kept under the designation ‘non-transferable ballots’ of those ballots which have not been used in the election of any candidate and which are not capable of transfer.
“(s) Every ballot that is. transferred from one candidate to another shall be stamped or marked so that its entire course from candidate to candidate throughout the counting can be conveniently traced. The ballots, shall be preserved by the central election board until the end of the term for which the members of the city commission are being elected. In case a recount of the ballots is made, every ballot shall be made to take in the recount the same course that it took in the original count unless there is discovered a mistake that requires its taking a different course, in which case the mistake shall be corrected and also any further changes made in the course taken by ballots that may be required as a result of the correction. These principles shall apply to the correction of any error that may be discovered during the original count.
“(f) The candidates or their duly authorized representatives, and, so far as may be consistent with good order and convenience in the counting and transferring of the ballots, representatives of the press and the public shall be afforded every facility for being present and witnessing these operations.”

It is said, and conceded, that these provisions outline correctly in its “essential principles,” and adopt for the city, what is called the “Hare system” of proportional and preferential voting. At the election in question, as we understand the situation, there were 23 candidates nominated for the 7 offices of city commissioner to be filled under the new charter. Of the over 9,000 registered voters within the city only 4,461 took the trouble to visit the polls and vote; 157 ballots were declared invalid, leaving 4,304 to be counted and manipulated as prescribed in the charter. The quota found necessary to elect under that method was determined to be 539. Two of the 23 candidates had more than their full quota on first choice ballots. Then distribution of the surpluses and recounts as to the rest began. From that point, for the sake of brevity and accuracy, the narrative of what further was done by the election board in “counting ballots” pursuant to the provisions of section 183 will be found continued in Exhibit “A,” herewith quoted, which is said to delineate plainly and concisely the count, tabulation and result of the vote at that election.

Whether this system proved to be “simple and understandable to all” the electors, who voted in the city of Kalamazoo on that occasion is not disclosed, but over 30 years ago it was named in Maynard v. Board of Canvassers, 84 Mich. 228 (11 L. R. A. 332), as one of four different classes of schemes advocated by those proposing to effect what they claimed would be a reform in existing modes of election to secure for the minority a proportionate representation, as follows:

“4. The ‘Hare’ plan, or ‘single vote.’ This method is too intricate and tedious ever to be adopted for popular elections by the people. It requires successive counts and redistribution of the votes until an election is reached.”

■ It does appear, however, that since 1859, when Thomas. Hare first published a book in England explaining his system, three cities in the United States have adopted it, as “Leaflet No. 5” of the “American P. R. League,” made a part of appellants’ brief, informs us. Of the progress made by the Hare system of voting in this republic it advises:

“In America it is used for the election of the council or commission in three cities, Ashtabula, Ohio (since 1915), Boulder, Colorado (since 1917), and Kalamazoo, Michigan (since 1918). It is also used for the election of the representative bodies of many private organizations, including those of several great trade unions in England and Canada and that of the National Women’s Trade Union League of America.”

This leaflet illustrates at length and elaborately explains the system as claimed, states it is a method which results in “no division of voters,” but instead “condensation by voluntary unanimous quotas”; and asserts, partly in italics, that the Hare system “makes it possible to adopt the ‘city manager plan’ of government without sacrificing democracy.” If in this republic adoption of the city manager plan without resort to the Hare system actually sacrifices democracy, numerous cities throughout the United States have already made the sacrifice. In that connection it may be noted that the immediate question for determination is limited to the validity of the Hare system of voting, which is but one of numerous proposed methods for practical application of that theory for reform; in representative government known as “proportional representation.” That conception, underlying a variety of proposed systems to materialize it, is based on representation in governmental affairs in proportion to numerical strength of parties or constituencies under some method of grouping,the electors according to parties, interests, ideas, or, perhaps, other elements of affiliation, so that such grouped minorities may have representation in legislative and other official deliberative bodies as well as majorities. Though fundamental to the Hare system of voting and in that aspect indirectly material here, it does not follow, and is not conceded by many advocates of the principle of proportional representation, that the Hare system solves the problem of its practical application.

The theory of proportional representation as an instrumentality for political reforms is not of recent origin. In 1780, almost contemporaneous with the birth of this republic, the Duke of Richmond introduced a bill in the English parliament which contained a clause providing for minority representation, and, as noted in the Maynard Case, in 1844 Mr. Gilpin published a pamphlet in Philadelphia advocating its adoption according to a plan he had originated. Since then the attention of men of inquiring minds in the field of political science has been attracted to the subject from time to time by earnest advocates who have espoused it and devised systems claimed practical for its application, while others of apparently equal sincerity and ability have deprecated the conception as unsound in theory, impractical and visionary. Certain of its supporters have been energetic and prolific publicists. A list of books and references to periodicals relating to proportional representation published by the library of congress shows, abundant reading matter in more than one language for those seeking information upon the subject, which has been much augmented by periodicals, pamphlets, leaflets and other publications, in a recent renaissance of propaganda according to latest approved methods by its advocates, here and abroad. It has apparently been more favorably received, or at least made greater progress, in countries free from constitutional limitations and with a newer or different form of government than that of the United States. Commenting on that fact, The Survey, “A Journal of Social Exploration,” under the interrogatory heading, “Are we really too stupid?” says:

“Proportional representation may be too difficult to be understood in America, but the newer democracies in Europe ‘will use no other.’ In Poland, Premier Paderewski and the members of the constitutional assembly have just been elected by that method. It was the first election in 140 years without foreign rule, and for the Jews, who constitute an appreciable portion of the urban population, practically the first participation in politics.”

The Proportional Representation Review, a periodical published by the American P. R. League, tells, in the April, 1918, issue of its adoption by Russia, saying in part:

“The revolution which brought about the democratization of Russia introduced the principle of proportional representation into all elections in Russia. * * * There were from a dozen to a score of tickets nominated in various districts of the elections to local representative bodies and to the constitutional convention, and most of the political factions, except those with very small following, received representation.”

Adoption of proportional representation by those and other war disturbed countries but recently liberated, for self-determination and adoption of a government by and for their people, perhaps throws little light thus far upon the subject, in theory or practice, beyond showing that it does not in práctico always operate for the healing of nations as basically and promptly as many of its propagandists have prophesied, and that those countries least experienced in systems of government with the sovereign power vested, in the people adopt that political policy with greater avidity than older nations of long experience which have made that form of government fairly successful and stable. In that connection there is ground for saying that the slow progress of this attractive theory for political reform here, and elsewhere in older and more stabilized representative governments, can be attributed in part, at least, to misgivings, even by many recognizing the merits of the theory, as to a feasible method for its practical application which will correctly, and true to the theory, work out the beneficent results indicated.

In an able article advocating proportional representation contributed to The Nineteenth Century by Earl Grey in 1884, at a time when a proposition to embody it in a reform bill of the English parliament was agitated, he expressed an “honest desire to arrive at the nearest possible approach to the realization of the radical formula .‘to every vote an equal value/ ” and argued that objections to the doctrine “depended entirely upon the alleged complexity of its methods,” but contended they could be overcome through a system of voting devised by the “joint labors of Mr. Seebohm and Mr. Parker Smith.” Upon that phase of the inquiry the searcher after truth in the abundance of controversial literature upon the subject will find many advocates of proportional representation confusingly inharmonious. Many of their books, pamphlets, and magazine articles are largely devoted to some scheme or system, bearing the name of the author or its inventor, at marked variance with and pointing out the inadequacy of other systems by other inventors or authors equally earnest in urging theirs as the only logically correct and true system.

Recognizing this situation, the Proportional Representation Review advises its readers that the American P. R. League, under whose auspices Leaflet No. 5 was issued, “is not committed exclusively to any system of proportional representation,” though it regards the Hare system best for most purposes, and will be glad to furnish detailed provisions for carrying out any other system which it regards favorably. A bulletin on proportional representation, prepared by R. Curtis under auspices of the political science department of Wisconsin university, in classifying the various plans, promulgated- for voting to materialize that theory, groups them into seven general classes under separate headings, instead of four as in the Maynard Case, as. follows: “Limited Vote,” “Cumulative Vote,” “Proxy System,” “Single Untransferable Vote System,” “The Quota,” “List System,” and “Preferential Systems.” Under the last named, with a subheading, “single transferable vote,” appears “Hare System (Andrae, Courtney, Lubbock, Spence, etc.).” The description of that subclass concludes with the information that, “The d’Hondt quota is not applicable to ‘single transferable vote’ systems,” and consideration of the “preferential systems” then passes to that subclass called “Graduated Systems (preponderance of choice).”

To this but scant suggestion of the field open for study of comparative systems it may be added that the inquirer will often find arguments upon the merits of the various systems of voting devised to effectuate it and arguments upon the merits of proportional representation itself in the abstract quite confusingly, but perhaps unavoidably, intermingled. Analytic comparison of these various systems is beyond the question, but as one further differentiation we note the caution by a writer in that line not to confuse the “Hare system” with the “Ware system.” The latter was devised and promulgated by Professor Ware of Harvard university, who, from his major premises, reasons forcibly that if proportional representation had then obtained in the United States slavery would have been abolished without a civil war, against the contention of John Bright that had proportional representation been the accepted policy and settled practice in the States it would have been impossible to abolish slavery. Bright also broadly contended apparently even against its adoption in England that it involved “departure from the old lines of the Constitution,” and was an “unconstitutional innovation.” The question for determination here is narrowed to whether the Hare system is such in this land of recognized constitutional limitations.

But little relevant authority is to be found on the constitutionality of that system of exercising the franchise in this country. The determination is eoncededly contingent on the constitutional provisions of the several States where the question arises. The peopie of Oregon disposed of the constitutional question in 1908 by an amendment to their constitution authorizing proportional representation in the discretion of the legislature. In McCrary on Elections (4th Ed.), § 212, the author notes that Illinois has provided in its constitution for minority representation in its State legislature to be accomplished by a system of “cumulative voting,” while in New York and Ohio attempts were made to provide by statute for minority representation, and the constitutionality of the method provided was seriously questioned in the former, and altogether denied in the latter. Following further discussion of the subject the section ends with the reflection:

“It would seem, therefore, that minority representation and cumulative voting can be provided for only by constitutional provision.”

In a general foot note under this section on the sub- ’ ject of minority representation there is enumerated the various schemes for voting to accomplish this purpose, amongst which appears, “Preferential voting, a plan devised by Mr. Thomas Hare, and advocated by him in a book upon the subject published in 1859,” the theory of which is omitted, as in the Maynard Case, “because too complicated and intricate to be useful in popular elections.” The author attributes the scant progress made in securing minority representation in State legislatures “partly to inherent deficiences and objections, which are found in every one of the schemes outlined, and partly to the irregularities and impropriety of the proceedings taken to incorporate the system into the State election laws where their introduction would be repugnant to the existing constitution.”

The provision of section 1, Art. 3, of our presentí Constitution that “In all elections (a qualified voter) j shall be an elector and entitled to vote,” retains the Í language of section 1, Art. 7, of the preceding Constitution of 1850. When under section 21, Art. 8, of our present Constitution, authority was conferred upon the electors of cities and villages to frame, adopt and amend their charters “subject to the Constitution and general laws of this State,” it is significant that precaution was taken in that connection to withhold from them the power “to abridge the right of elective franchise.”

Our present Constitution of 1908 is for the most part, as sometimes called, a revision of the former Constitution of 1850 which it follows closely in letter and spirit, the chief alterations relating to the manner of amending the Constitution, adapting it to certain changed conditions general throughout the State, and giving increased power to political subdivisions in matters of strictly local concern. Six of the seven new sections in article 8 relating to cities and villages authorize and direct legislation by a general law conferring upon them autonomy as' fully as seemed’ con- - sistent with the established fundamental principles of State government, the seventh and last briefly stating a few limitations beyond which they could not go; the first named being that they should, not have power to , abridge the elective franchise, which can fairly be con- : strued to mean in the light of established conditions and laws that the right of each elector to exercise the ; franchise and the relative value of his vote should be j preserved as it existed under the Constitution and gen-:/! eral laws of the State. Subject to this the officers to be \ elected, subjects to be voted upon, time, place, manner of nominations, conduct of elections, etc., are in the main left open for charter provision.

In State v. Constantine, 42 Ohio St. 437, under a constitutional provision prescribing the, qualifications of an elector, providing elections should be by ballot and that each elector “shall be entitled to vote at all elections,” it was said the fair implication of the language, made certain in the light of State policy and existing circumstances when the constitution was adopted, entitled each elector Of a district to vote for a candidate for each office to be filled.

In Maynard v. Board, of Canvassers, supra, touching upon the provisions of our first Constitution of 1835, the policy, practice and legislation as to elections in this State thereafter, it was said of the provision yet retained in our Constitution:

“These laws were in force at the time of the adoption of the present Constitution, and have been continued in force ever since. They afford a practical construction of the right of every elector to vote for every officer to be elected, and that his vote shall be of equal effect with, and no more than, the vote of every other elector for every officer to be elected. * * *
“Giving to the language of the Constitution its ordinary signification, it declares the principle that each elector is entitled to express his choice for representative, as well as all other officers, which is by his vote, and the manner of expressing such choice is by ballot. When he has expressed his preference in this manner, he has exhausted his privilege; and it is not in the power of the legislature, to give to his preference or choice, without conflicting with these provisions of the Constitution, more than a single expression of opinion or choice. * * *
“If the people of this State desire to provide fo'r some different means to secure minority representation than that which is in a measure secured by the single district system under the present Constitution, they must do so through an amendment to that instrument, by which a proposition so vitally interesting to them may be passed upon by the popular vote.”

The constitution of Minnesota provides elections shall be by ballot and that qualified electors “shall be entitled to vote at such elections * * * for all officers that now are or hereafter may be elective by the people,” which is in substance the meaning of the language of our Constitution as construed in the Maynard Case. In Brown v. Smallwood, 130 Minn. 492 (153 N. W. 953, L. R. A. 1916B, 931, Ann. Cas. 1917C, 474), it was held that a preferential system of voting contained in the city charter of Duluth wherein first, second, and additional choice votes are authorized, to be counted in a provided contingently consecutive manner, was unconstitutional. The court there cites and quotes liberally from the Maynard Case, saying of the quoted constitutional provision:

“It was never meant that the ballot of one elector, cast for one candidate, could be of greater or, less effect than the ballot of another elector cast for another candidate. It was to be of the same effect. * * * The preferential system directly diminishes the right of an elector to give an effective vote for the candidate of his choice. • If he votes for him once, his power to help him is exhausted. If he votes for other candidates he may harm his choice but cannot help him. * * * The mathematical possibilities of the application of the system to different situations are infinite.”

Counsel for appellants urges that the objectionable features pointed out by this court in the Maynard Case, found in the “cumulative” system then under consideration, are eliminated in the Hare system, of which the comments there made were not essential to a determination of the case; and that Brown v. Smallwood, supra, is not in point since, under the Hare system, it is impossible for a voter’s second choice to be used to defeat his first choice, as may occur under “the so-called ‘preferential system’ which has no similarity to the Hare system except so far as the voter expresses his preference.”

It may be conceded that what was directly said of the Hare system in the Maynard Case was in the nature of dictum, and even that those classifying it as a preferential system are technically inaccurate, but a similarity of the Hare system to the preferential system before the Minnesota court seems apparent in the particular that 'to the finite mind “the mathematical possibilities of the application of the system to different situations are infinite,” and back of all those contentions over names, systems and methods, is the underlying and directly pertinent question of whether this system as scheduled in the Kalamazoo charter invades the constitutional right of every voter to vote for every officer to be elected and to have his vote so counted as to have equal value and potentiality with the vote of every other elector who votes. The clearly stated conclusions of this court in the Maynard Case when construing the language of the Constitution upon that proposition were relevant there and to be recognized as acceptable precedent here. Under the Kalamazoo charter seven commissioners were to be elected at large. Each elector had the right to vote for seven candidates, by a vote not only “of. equal effect with, and no more than, the vote of every other elector for every officer to be elected,” but of equal potential value as to each of the seven candidates he voted for. As construed in the Maynard Case, the Constitution gave him the right to express his choice by a ballot vote for each of the seven commissioners to be elected; and having done so, he “exhausted his privilege.” The Hare* system limits his power to express his preference “in this manner’? to but one candidate of the seven, only permitting him to express a second choice for one other, and so on by numerically dwindling and weakening choices until the elector has expressed thus “as many choices as you (he) please.” As said in the Maynard Case, “it is not in the power of the legislature (nor a city adopting a charter under the home rule act) to give his preference or choice, without conflicting with these provisions of the Constitution, more than a single expression of opinion or choice”; and he has the right to express that single choice as to each of the officers to be elected in his district. While each voter can under the Hare system vote for all candidates to express sequential choices as provided, it is evident that his vote is primarily and positively effective for only one candidate.

It is true that the right of an elector to vote for all officers to be elected is limited to all officers to be voted for in or elected from his own political district, constituency or territory geographically defined by law for choosing or electing officers who serve and represent it. Under its present charter Kalamazoo. city constitutes a single district or constituency with seven commissioners elected from the city at large, for .all of whom under the rule stated each elector of the city is entitled to vote; but appellants in avoidance of that apparent infirmity in the Hare system urge that the charter, of which the Hare system is a part, does in legal effect divide the electorate into seven districts or constituencies “based on common opinion instead of arbitrary geographical lines,” with a system of voting and counting by which “every man’s ballot is counted for one man who is his representative among the candidates on the legislative body,” which would be all he could do were the city divided into seven wards, and therefore it cannot be said his right of elective franchise has been abridged. Counsel very interestingly discusses the advantages .of that theoretical method of districting constituencies by boundary lines of opinion, belief or policy, but however alluring in theory, such intangible, undefined theoretical demarkation by; similar thought or views is not a legal substitute for what is in law recognized to be a voting constituency ¡ or geographically defined representative district, as the right of franchise has become established under our j Constitution.

While we cannot accept to the full extent urged appellee’s contention that under the Hare' system one elector’s vote is necessarily of greater weight or counts for more candidates than that of another, the system does contain an element of the chance that it may, so result. The framers of the Kalamazoo charter appear to have copied its rules for counting ballots as scheduled in section 183 practically verbatim from those set out in the January, 1917 (3d series), number of the. Proportional Representation Review. An examination of rule (h) discloses a method of transfer of surplus votes involving an element of chance by which the result can readily vary according to the shuffle, or chance position of ballots. This is recognized by the advocates of the Hare system, who call it the “Chance method,” as distinguished from another proposed form for rule (h), called the “Exact method.” This subject is discussed in a July, 1917, supplement sheet of the Review, stated as “not'intended for the general reader.” The leaflet contains illustrative or hypothetical elections and developed mathematical problems by which it is claimed to be demonstrated that the element of chance is comparatively slight. An actuary, mathematically skilled in the application of the doctrine of chances to financial and other affairs, might work with confidence upon the possibilities of this system, but to the non-expert there is force in the dictum of the Maynard Case that it appears “too intricate and tedious to be adopted for popular elections by the people.” To the average elector the destiny of his vote is a mystery, however easy it may be for him to follow instructions in markingj, his ballot. In abridging the right of elective franchise as pointed out, we conclude the election method prescribed in section 183 of the charter is in contravention of our State Constitution and invalid.

In support of the claim that invalidity of the voting system appearing in the charter renders the entire charter void, the following reasons are urged:

“(a) The new charter was adopted as a whole and the provisions for a commission and the method of election of same must be construed as inseparable and mutually dependent upon each other, and as so intended by the people who adopted the charter.
“(b) The elimination of the objectionable features providing for elections does not leave a workable instrument.”

We find nothing in the charter impelling a construction that the prescribed method of election, fouftd invalid, and other parts of the charter are so inseparable and interdependent as to vitiate the whole, or that the charter would have been rejected by the electorate had the rejected provisions not been included. In the main this charter is an exceedingly well worked out and carefully prepared commission form of city government charter, evidently the result of much labor and study of the authorities upon the subject and of the charters of other cities where that form of government had been adopted. For the most part it travels within beaten lines, many of which have stood the test of the courts. As to any experimental features the commissioners took the precaution to put an anchor to the windward by a section providing that if any section or part section of the charter proved invalid or unconstitutional it should not invalidate or impair the force and effect of any other unless it plainly appeared such other section or part was necessarily dependent upon the section or part found invalid. It would seem that the election provisions of the charter were carefully formulated to meet such a contingency, for entirely eliminating subdivision (a) of section 41, and sections 182 and 183, which contain all the election features questioned, a complete, practical charter, including independent, workable election provisions, yet remains. Section 5 of the charter provides for a. city commission of seven members, elected for a term of two years from the city at large on a general ticket; section 31, as before noted, provides for registration of voters, nominations and elections to be held according to the general laws of the State; except as otherwise provided; section 33, a plan for nomination of candidates; section 34, the date of elections; and sections from 35 to 40, inclusive, contain appropriate provisions for a city election supplemental to the State election laws.

With the invalid election features stricken out the charter yet contains ample machinery for nomination and election of all elective city officers. As applied to the situation presented here, we think the law well settled that rejection of those provisions held invalid does not affect the rest of the charter. Attorney General v. Loomis, 141 Mich. 547; City of Battle Creek v. Barnes, 143 Mich. 400; 36 Cyc. p. 976.

The trial court held the charter provisions relating to the Hare system of election unconstitutional, rendering the election of defendants invalid, and in a supplemental opinion concluded, “the court does not hold by reason of such unconstitutional provisions that the whole charter is invalid.”

This information was filed and summons issued on September 13,1919. Johnson’s term of office as aider-man, to which he was elected under the old charter, commenced April 10, 1916, and was for two years. The new charter abolishing said office was adopted February 4, 1918. He was a candidate for the office of city commissioner under the new charter at the first election, held on the first Monday of April, 1918, under the Hare system, and declared defeated by the election board. He did not then or before interpose any objection in legal form, or otherwise, so far as shown, to the new charter under which he ran, nor to the method of election, nor did he take any steps to do so thereafter until September 12,1919, when he made application as a plaintiff, supported by his affidavit, to the prosecuting attorney for the information filed herein. Defendants’ then terms as commissioners under the new charter expired on the second Monday of November, 1919. This case was heard in the circuit court of Kalamazoo county, October 29,1919. An opinion was filed in that court January 7, 1920, and judgment of ouster entered January 17, 1920. So far as Johnson’s right to the office he claims under such a state of affairs is concerned the court might well refuse to entertain the proceeding under its discretionary power. Osterhous v. Van, Duren, 168 Mich. 464. But the prosecuting attorney states in the information he filed that his action is not alone founded upon plaintiff’s right to office, but “also as such citizen and taxpayer, and upon the right of the people of the State of Michigan to test the rights of respondents, etc.,” and defendants urge with reason that an authoritative determination of the issues involving the validity of'its charter is “of the utmost public interest to the city of Kalamazob.” Therefore, because public interest seems to require such course, the case is entertained only to pass upon those constitutional questions of public interest involved. Neither public interest, nor rules of practice, require us to pass upon the now in effect moot question of Johnson’s right’to the expired term of an abolished office (2 Stevens’ Michigan Practice, § 498; People v. Miles, 2 Mich. 349; People v. Mayworm, 5 Mich. 148), and it may be added as a matter of public interest that upon the facts disclosed in this record it is fairly evident defendants and all city officers legally nominated and formally found elected under color of the voting system provided in the charter, who qualified and acted as such, were and are de facto officers whose official actions within the scope of the charter are valid until they are legally deposed from such positions.

As only questions of public interest are entertained and passed upon in this opinion, the conclusions of the trial court as to them are affirmed, without costs to either party.

Moore, C. J., and Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred. Sharpe, J., did not sit.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    LAKE SHORE STONE CO. v. WESTGATE.
    1. Appeal and Error — Request for Directed Verdict — Saving Question for Review — Estoppel.
    Where counsel for both plaintiff and defendants asked for a directed verdict, and the judge’s statement to the jury that they were agreed upon the record that there was nothing to submit to the jury was not questioned, and no request made for correction when settling hill, of exceptions, defendants cannot question in this court the correctness of the trial judge’s statement.
    2. Public Officers — Liability for Failure to Require Statutory Bond.
    The individual members of a township board, who omitted to require of a contractor constructing a stone road the bond for protection of materialmen and others required by 3 Comp. Laws 1915, § 14827, are liable for material furnished the contractor for said road for which he failed to pay.
    3. Same — Notice—Credit to Materialman.
    If knowledge of plaintiff’s salesman that no bond was given by the contractor is imputable to plaintiff, that fact is immaterial in the absence of evidence that after such knowledge or notice plaintiff furnished material to the contractor in reliance on his financial responsibility.
    4. Same — No Legal Reason for Not Requiring Bond — Defenses.
    The conclusion of the trial judge that defendants had shown no legal reasons exculpating them from their failure to require the statutory bond, held, justified by the record.
    5. Same — Liability of Member Whose Term Ended Before Material Furnished.
    The liability of one member of the board who participated in awarding the contract without requiring a bond, held, to be no less than that of the others, although his term of office expired and he retired from the board before any material was furnished under the contract.
    On the question of personal liability of public officer for failure to take bond, or for taking insufficient bond, from contractor conditioned for payment of claims of subcontractors, material-men, and laborers, see 49 L. R. A. (N. S.) 1199.

      6. Same — Liability Based on Tort — Combining Two Distinct Actions Against Different Defendants.
    Where there were two separate contracts awarded at different times without requiring a bond in either case, the personnel of the board having changed in the meantime, plaintiff’s contention that the unpaid balance on both contracts could be combined in one action against those members who participated in awarding the first contract, field, untenable, since the action is based upon two separate and distinct torts.
    7. Same — Dismissal as to One Defendant — Statutes.
    In view of 3 Comp. Laws 1915, § 12364, providing that new parties may be added, and that parties misjoined may be dropped, the trial judge was not in error in granting defendants’ motion that the case be dismissed as to the one defendant who participated in awarding the first contract, but who was not a member of the board when the second contract was awarded; after dismissal of said defendant there remaining two compatible causes of action between the same plaintiff and defendants, joined in one, a practice expressly authorized by 3 Comp.- Laws 1915, § 12309.
    8. Appeal and Error — Request for Directed Verdict — Estoppel.
    Where plaintiff claimed in the court below that it was entitled to a judgment against all of the defendants, even though it appeared that the material was furnished under two contracts, and it not being conclusive that all material under the second contract was paid for, as plaintiff now contends, it cannot complain in this court of the action of the trial judge in disposing of the question, it having committed same to his determination by asking for a directed verdict.
    Error to Van Burén; Des Voignes (L. Burget), J.
    Submitted June 10, 1920.
    (Docket No. 40.)
    Decided September 30, 1920.
    Case by the Lake Shore Stone Company against Orlo Westgate and others, members of the township board of South Haven township, for an unpaid balance due from a contractor who had not given a statutory bond. Judgment for plaintiff on a directed verdict. Both parties, bring error.
    Affirmed.

      Fred C. Cogshall and Thomas J. Cavanaugh, for plaintiff.

      James E. Chandler and W. J. Barnard, for defendants.
   Steere, J.

This action was begun by declaration against the township of South Haven, Van Burén county, and the above named defendants who were its township board to recover an unpaid balance due for stone sold to contractors engaged in construction of highways in said township. Plaintiff’s lengthy declaration contains three counts; the first alleges that on June 24, 1916, one Parr entered into a contract with said township for the construction of 2% miles of 16-foot stone road for $20,500, performance of which he entered upon but before completing it went 'into bankruptcy and his eqntraet was taken over and completed by the Parr Construction Company with the consent of the township; that in addition to said contract Parr and his successor built 1,800 feet of another road for said township upon the same terms as in the written contract; that plaintiff furnished to said Parr and the Parr Construction Company all stone used on said roads, for which there remains an unpaid balance of over $4,000 which it is unable to collect from them. The second count is based on a claim for work and material furnished and done by Parr and the Parr Construction Company, at the township’s, request, which claim was assigned to- plaintiff and covers the same road construction as in the first count. The third count relates more directly to the issues involved here and is directed against the named township offieers, alleging that they as a township board entered into a written contract with Parr as set out in the first count, for the construction of 2% miles of road, and later entered into a further contract with him for the construction of 1,800 feet more of road upon the same terms; that after partial performance Parr became and was adjudged a bankrupt and the contracts, taken over by the Parr Construction Company with the consent of said township, were thereafter completed and accepted by the highway commissioner; that plaintiff furnished the contractors the stone they used in said work for which an unpaid balance remains due from them; that the four named defendants as members of said township board “carelessly and negligently failed and neglected to require the said S. L. Parr, contractor, and his successor the Parr Construction Company to furnish a bond” as required by statute, which neglect of duty by said township officers was unknown to plaintiff and it furnished the material in reliance upon said officers requiring such bond in performance of their duties; that said Parr and the Parr Construction Company are insolvent and uncollectible, wherefore by reason of such neglect and failure of the township officers to require a bond as provided by statute for its protection plaintiff claims damages against them in the sum of $5,000.

Defendants under a plea of the general issue gave notice of special defense, claiming that when the contract was let by the township board an agent and representative of plaintiff named .Spies attended the board meeting in company with Parr, prepared his bid for him claiming that he was a reliable man and urging the township board to accept his bid, stating that in such case plaintiff would sell the necessary stone to Parr and thereby expedite the work; that after some negotiations Parr’s bid was accepted and a suggestion made by one of the officers that he furnish a bond as contractor was objected to by Spies, who contended that the same was unnecessary and need not be required because the township would under the contract retain 20 per cent, of the amount due thereon from time to time, while Spies as agent of plaintiff would be on the job looking after its interests and the town board need only look after payment of small bills; by reason of which representations defendants say they required no bond and plaintiff, at the insistence of whose agent they refrained from doing so, is therefore estopped from asking a judgment against them.

When the case was brought on for trial it was by agreement of court and counsel treated as and separated for trial into two actions. Plaintiff’s claim against the township was first tried, resulting in a verdict and judgment for $616.51 in plaintiff’s favor, being the amount of the contract price found retained by the township after completing the unfinished contracts.

The parties then proceeded to try the issue against the four defendants named herein, as members of the township board. At conclusion of proofs both parties moved the court for a directed verdict in their favor. After listening to the arguments of counsel the court directed a verdict in favor of plaintiff against defendants Westgate, Heald and Poorman for the sum of $8,484.68 and entered judgment, concluding as follows:

“On motion of James E. Chandler, attorney for said defendants, the dismissal of defendant C. Leisenring, one of the defendants, was ordered.”

Both parties appealed by writs of error, plaintiff from that portion of the judgment dismissing the action as to defendant Leisenring, and defendants West-gate, Heald and Poorman from the judgment for damages against them.

Plaintiff assigns error on refusal of the court to hold alike liable all four members of. the township board who participated in awarding and signed the contract of June 24, 1916, without requiring a bond as required by statute.

The points relied on for reversal by defendants are stated as follows:

“1. Error in the court’s refusing to direct a verdict in favor of the defendants.
“2. Error in the court directing a verdict in favor of the plaintiff.
“3. Error in the court’s refusing to submit the case to the jury.”

Upon the last assignment of defendants, counsel are at variance as to whether it was agreed there was no question to be submitted to the jury. Defendants contend that Spies’ authority as plaintiff’s agent and its estoppel by what he did and said, if not conclusively shown as claimed, were at least made by the testimony questions of fact for the jury and say that although they asked a directed verdict, “nowhere in the record did defendants’ counsel make a statement that there was no question of fact for the jury.” ■

The record does show that both parties moved for and insisted upon a directed verdict. We do not find in the record that defendants’ counsel made to the court any direct statement that there was a question of fact to submit to the jury, or claimed the right to go to the jury on any question of fact in the event of an adverse ruling on their motion for a directed verdict. In directing a verdict the court said to the jury:

“Both the counsel for plaintiff and defendant state upon the record that there is nothing to submit to the jury in this case. Upon this statement, no matter what may be the view of the court, the parties have affirmatively waived a submission of any question of fact to the jury.”

And in concluding the charge the court again referred to the fact, saying:

“You have heard me, gentlemen, give my reasons for this. It is purely a proposition of law, and both have so conceded it.”

The record does not show that these statements by the court were questioned by counsel at the time, or any request made to the court to correct them either then or when settling a bill of exceptions in the case. Under such circumstances defendants cannot question the correctness, of the trial court’s statement here.

The statute making it mandatory for the township board to require a bond when contracting for this road construction is as follows:

“When public buildings or other public works are about to be built, repaired or ornamented under contract at the expense of the State, or of any county, city, village, township or school district thereof, it shall be the duty of the board of officers or agents, contracting on behalf of the State, county, city, village, township or school district, to require sufficient security by bond for the payment by the contractor of all sub-contractors and for the payment for all labor performed and materials furnished in the erection, repairing or ornamenting of such building or works/’ 3 Comp. Laws 1915, § 14827.

It is undisputed that on June 24, 1916, these defendants constituted the township board of South Haven township. Westgate was supervisor, Poorman township clerk, Heald and Leisenring being the two justices of the township who by seniority were members of the board. On that day they met as a board, accepted Parr’s bid and entered into a written contract with him to construct 2% miles of road for a consideration of $20,500 to be paid by their township, in total disregard of their plain statutory duty to require of him an adequate bond to pay. for all labor performed and material furnished in its construction.

Their excuse for such palpable disregard of a plain official duty, given in a letter written by their clerk to plaintiff prior to commencement of this action, was:

“Our board required no bonds of S. L. Parr for the fact that we held back a. percentage of the cost per mile till the road was inspected by State inspector and accepted.
“We have had our trouble with this contractor and are in hopes of coming out all right and hope you will the same.
“We cannot see how we are concerned about this statement of stone purchased by Mr. Parr and the balance left unpaid.”

Their excuse since this action was brought is that plaintiff’s agent, Spies, told them “it was not necessary to give a bond.”

We need spend no time on the well-settled general rule that by failure to require' a bond such officers, make themselves liable to respond in damages to laborers and material men injured thereby. Owen v. Hill, 67 Mich. 43; Plummer v. Kennedy, 72 Mich. 295; Wells v. Board of Education, 78 Mich. 260; Michaels v. McRoy, 148 Mich. 577, 158 Mich. 605; City of Alpena v. Surety Co., 158 Mich. 678. 1

When the township board met on July 24, 1916, to receive bids on this road work Parr was the only bidder and his bid was accepted. Its business was with him only. The Lake Shore Stone. Company was not a bidder for the road work, nor was the township proposing to buy stone; they had no contract relations with each other, present or prospective. Plaintiff’s sales agent, Spies, had no legitimate business to transact with the board for his principal. It was no concern of the township or defendants from whom or where Parr obtained the stone so long as it met the test imposed by State highway specifications, which the contract he bid on and was awarded required. Other concerns than plaintiff could have and had furnished satisfactory stone for roads in that township., Spies’ only excuse for being there was as an advocate for Parr to whom he hoped to sell some of plaintiff’s stone if he secured the contract. When the contract was awarded to Parr, the township clerk called for a bond, as the law requires, and the supervisor said he thought they ought to go to an attorney who had been their adviser before, and have the contract drawn up. To this stage of the proceedings the board seems to have conducted its meeting legally, with an indicated understanding of the responsibility and duty of its members as officers of the township when transacting important public business; but, as they tell it, the stone agent, Spies, with whom they had no legitimate business, then “spoke up” or “jumped up>” as they respectively stated it, and told them they did not need a bond, because they were “holding back 20 per cent.,” nor a lawyer to draw up the contract, because “he had made lots of them” and could make Parr’s out for them, which with their acquiescence he proceeded to do and thereafter, as their testimony indicates, took charge of the meeting, the clerk, however, taking the responsibility of making a copy of the contract Spies prepared so that it could be signed in duplicate and each party have one. Accepting Spies as their legal adviser they concluded that business of the board under his guidance, relying on his assurance, as they testified, that with him looking after the business no bond or attorney was necessary.

Soon after the contract was entered into and before any material was furnished under it Leisenring ceased to be a member of the board, by expiration of his term of office as justice on July 4, 1916. He was succeeded by a justice named Hoskins, not named as a defendant herein.

On September 12,1916, the township board consisting -of Westgate, Poorman, Heald and Hoskins let an oral contract to Parr for construction of 1,800 feet additional road for a consideration of $2,400 without requiring any bond. The balance due plaintiff for stone furnished the contractors, less the amount of the judgment for $616.51 against the township, was found without apparent dispute to be $3,434.68, for which amount the court directed verdict and entered judgment against the three defendants who were members of the board during the letting of both contracts and furnishing stone therefor by plaintiff, releasing Leisenring from liability on the ground that no material was furnished by plaintiff while he was a member of the board, as stated in plaintiff’s brief.

It is urged a verdict should have been directed in favor of defendants because plaintiff’s agent Spies advised the board no bond was necessary; and knew from the beginning that none was required by the board or furnished by the contractor, which knowledge is imputable to plaintiff as his principal.

Spies, whose testimony is vacillating and in certain particulars, self-contradictory, admitted he knew no bond was furnished by Parr, and had that knowledge from the beginning through all the time plaintiff was furnishing the stone; but denied that he advised the board no bond was necessary, and asserted “there was nothing mentioned about a bond.” Accepting, however, defendants’ contention that he did so advise the board, except as it may reflect on the credulity and intelligence if not good faith of the members, that fact is of little materiality. There is no evidence or presumption that to give legal advice, or any other, to a township board as to its rights and duties was within the scope of Spies’ agency to sell stone for plaintiff. Plaintiff’s general manager and treasurer denied that its officers had any knowledge of the fact that no bond was required by the board or given by the contractor until so advised by the township clerk after the material was furnished, in reply to his letter giving notice of claim after the contractors proved otherwise uncollectible. But assuming that knowledge of Spies was imputable to his principal, the record contains no' direct evidence, or imperative inference requiring the trial court to conclude as a matter of law that after such knowledge or notice plaintiff furnished stone to the contractors in reliance on their financial responsibility. In Michaels v. McRoy, 158 Mich. 605, it is said:

“Under our view of the case, it is of no consequence whether the plaintiffs knew, or did not know, that no statutory bond had been required, in the absence of testimony tending to show that the plaintiffs had furnished the material after such alleged notice, in reliance upon the financial responsibility of the contractors.”

As an excuse for their delinquency, members of the board testify that they did not know of this statutory requirement. It is indicated they at least had sufficient knowledge on the subject to put them on inquiry, for the township clerk “spoke about giving a bond,” but after listening to the unsolicited legal advice of the stone vendor, Spies, with whom they had no legitimate business to transact, township highway commissioner, Malbone, testified:

“They all took it for granted that there wasn’t any need of giving any bond. The bond as near as we could figure out would cost probably a couple of hundred dollars. Spies said something about the cost.”

We agree with the conclusion of the trial court that defendants have shown no legal reasons exculpating them from their admitted failure to require a bond in direct violation of the official duty imposed upon them by the plain provision of this mandatory statute. But as to the contract of April 24, 1916, in which he participated we see no legal distinction in point of liability between Leisenring and the others with whom he acted as a member of the board, the wrong which created the liability and gave rise to plaintiff’s claim for resulting damages was consummated when he with the other members, as a board, in disregard of the statute entered into and executed the contract for that public improvement at the township’s expense without requiring a bond of the contractor.

Counsel for defendants point out that the verdict directed and judgment entered by the court against three of the four defendants was for the entire unpaid balance due on stone plaintiff furnished for the two separate contracts, entered into by two different town boards composed in part of different members, and contend:

“There is nothing in the record to show what part of the material went into the roads covered by the written contract of June 24, 1916, or that went into the road covered by the oral agreement of September 12, 1916,”—

and there was not only a misjoinder of actions but no proper proof of distinct damages as to either upon which to base a verdict.

Plaintiff’s declaration, sounding in tort, charges the four named defendants as responsible under the two contracts for the entire unpaid balance. The case was tried by its counsel upon that theory. It was urged before the trial court that plaintiff having proved the entire unpaid balance there was, as the case then stood, “only one contract,” and argued that if defendants claimed “any credit for the 1,800 feet it is for them to say what that credit should be, not for us.” In their brief the theory is reiterated as follows:

“There was no change in the board so far as the rights of the parties- under the facts in this case are involved. Poorman, Heald, Westgate and Leisenring were members of the town board on June 24, 1916. They all signed the contract in question. The giving of the contract set the machinery in motion whereby the contractor, Parr, was enabled to secure from the plaintiff the stone to build the road.”

We are cited to and can find no authority to sustain this theory. It is not tenable. The complex law of torts does not yield to solution of the complications developed in this case on any theory of overlapping liability as to a defendant not participating in both torts. Plaintiff in its declaration has combined two separate' and distinct-torts, committed at different times by different township boards differently constituted. No one member of either of these boards could separately do plaintiff the injury charged, nor be held as a joint tort feasor in the unlawful action of the board of which he was not a member. It would be as logical to hold Hoskins liable for the consequence of failure by the first board, of which he was not a member, to require a bond when making the contract of June 24, 1916, as to hold Leisenring for the delinquency of the second board, of which he was not a member when it let the contract of September 12; 1916, without requiring a bond.

It is an elementary rule in that branch of the law that a tort gives rise to a several liability as to each one participating in it. The plaintiff, if he so desires, may sue one or more of joint tort feasors without impleading all. As to the first tort charged plaintiff impleaded all members of the board participating. In the second, Hoskins was omitted. The burden of proof rested upon plaintiff to prove the tort or torts charged against each defendant charged. Counsel introduced plaintiff’s evidence on the theory that “there was no change in the board so far as the rights of the parties under the facts in this case are involved,” and contended that if defendants claimed “there should be any credit for the 1,800 feet” it was for them to prove it. At conclusion of the proofs defendants’ counsel moved, amongst other things, that Leisenring “be dismissed as one of the defendants.” While plaintiff’s counsel state in their brief that this was granted on the theory that Leisenring was not liable, “since no work had been performed upon the highway during the time he yras in office,” we do not find in the record that defendants’ counsel admit this reason was given by the court, or that the court so stated. The only authoritative statement by the court we discover upon that subject was directed to the jury. Referring to this motion as previously made and not then granted, the court said:

“But I think at this time on the record that, in view of the facts here, that the court will now grant that motion and the defendant Leisenring is no longer considered as one of the defendants in this case.”

But the important question here is the validity of what the court did. Under the. judicature act (3 Comp. Laws 1915, § 12364) it is provided:

“No action at law or in equity shall be defeated by the non-joinder or mis-joinder of parties. New parties may be added and parties mis-joined may be dropped, by order of the court, at any stage of the cause, as the ends of justice may require.”

Leisenring was dropped by order of the court and the case proceeded to judgment on a directed verdict against the remaining defendants who as members had participated in both board meetings which let the two contracts without requiring bonds, in violation of the statute. As to them there remained two compatible causes of action between the same plaintiff and defendants joined in one, the liability being asserted and equally shown “against all the material defendants,” a practice expressly authorized by the judicature act in such cases. 3 Comp. Laws 1915, § 12309. Vide Otto v. Village of Highland Park, 204 Mich. 74.

As to the error assigned by plaintiff against the court dropping Leisenring from the case, it is now claimed there is proof that all the unpaid balance was for material used in performance of the contract of June 24, 1916, in letting which he participated.

No claim is made that any witness in this case testified as to where or when or in which contract the stone for which an unpaid balance remains was used, but quoting the testimony of Township Clerk Poorman that “Parr began first on the Bangor road. The south mile was finished first and the 1,800 feet was completed the first of October, I think,” and referring to the dates of invoices of stone set out in an account rendered by plaintiff to the Parr Construction Company on June 1, 1917, counsel argue that stone furnished for the second contract must have been all paid for first because that contract was first finished, and therefore the unpaid balance was for material used upon the contract of June 24, 1916, which was not entirely completed until the next year.

Plaintiffs 'position before the trial court was that having shown the unpaid balance on all stone furnished for that road work, it was entitled to a judgment against all four defendants, although it appeared that the stone was furnished under two contracts; that it was not for the plaintiff “to separate, but for defendants to show the 1,800 feet was not paid for.” etc.

If the incidental, collateral circumstances counsel rely on to show full payment for stone furnished under the second contract carry beyond the field of mere conjecture to permissible inferential evidence, it falls far short of being conclusive of the fact as a matter of law, and, as in the case of defendants, by moving for. a directed verdict without reservation plaintiff committed determination of that claimed inference to the trial court, whose conclusions in that particular this court will not disturb.

For the reasons above stated we find, as the record of the case comes to this court, no prejudicial error demanding reversal, and the judgment will stand affirmed.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    COLLETTE v. COLLETTE.
    1. Divorce — Separation by Consent — Desertion — Extreme Cruelty.
    Where a husband and wife agreed to separate, she to live with her parents and he with his, his leaving her, if it could be said to amount to legal desertion, would not constitute such “extreme cruelty” as to warrant a divorce short of the statutory two-year period.
    2. Same — Financial Condition op Husband No Ground por Divorce.
    That defendant husband was financially unable to do as much for his wife, and furnish her as comfortable a home after marriage as her parents had, would not constitute grounds for divorce.
    S. Same — Evidence—Sufficiency.
    The conclusion of the court below, that plaintiff had not established her right to a divorce, held, justified by the record.
    Appeal from Menominee; Flannigan (Richard C.), J.
    Submitted June 9, 1920.
    (Docket No. 24.)
    Decided September 30, 1920.
    On failure to furnish support as grounds for divorce or separation, see notes in 29 L. R. A. (N. S.) 618; 43 L. R. A. (N. S.) 262.
    On inability of husband to support wife as excuse for her refusal to live with him, see note in L. R. A. 1915A, 222.

      Bill by Myrtle Irene Collette against William Joseph. Collette for a divorce. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Doyle & Barstow, for plaintiff.

      John J. O’Hara, for defendant.
   Steere, J.

The parties, to this suit were married on December 27, 1916, in Menominee, Michigan. Plaintiff was then about 20 and defendant about 24 years of age. They separated about April 20, 1918, following an understanding, indefinite as to time, that they should live apart, she to remain with her parents in. Menominee, as she desired and he did not, while he went to stay with his parents, in Marinette, Wisconsin. They never thereafter lived together or assumed the relations of husband and wife. One child was born of their marriage, a girl 16 months old when this suit was begun, on April 28, 1919.

The grounds for divorce charged in plaintiff’s bill of complaint are failure to support and extreme cruelty, alleged as follows:

“V.
“And the plaintiff further shows unto the court that the said defendant disregarding the solemnity of his marriage vows has grossly and wantonly and cruelly refused and neglected to provide a suitable maintenance for this plaintiff and said child; and said defendant during all of which time being of sufficient ability to provide such suitable maintenance.
“VI.
“The defendant has likewise, as, plaintiff charges, been guilty of extreme cruelty to this plaintiff, and the plaintiff specifies the following facts as instances of the refusal to maintain, and cruelty herein charged, to wit:
“On the 20th of April, 1919, the defendant abandoned the plaintiff and said child and has never since said time visited either the plaintiff or said child, nor has he at any time during such period contributed one penny to either the said plaintiff or her said child.”

In his answer defendant makes denial and meets her charges as follows;

“V.
“To the fifth paragraph of the said bill of complaint the defendant says that he did not disregard the solemnity of his marriage vows or grossly or wantonly refuse to support the plaintiff and her child, and that he was ready and willing to provide support in a home for themselves, but she refused to live with him, choosing to remain with her parents instead of keeping house with him as he had urged and requested her to do.
“VI.
“In answer to paragraph six, the defendant says that he did leave her on or about the 12th day of February, 1918, because she refused to leave the home of her parents, and that he could not live peacefully or harmoniously in the home of the mother and father of the plaintiff, and that he gave her plenty of opportunities to take up her abode with him, but she: steadily refused and still refuses to live apart from her mother and father, although the defendant has offered! to provide the plaintiff with a suitable home in accordance with his means and earnings.” i

The case was heard in the circuit court of Menominee county July 22,1919, on pleadings and proofs taken in open court, resulting in dismissal of plaintiff’s bill of complaint, but with costs to plaintiff, It incidentally appears from the testimony that under some order of the court not in the record defendant had made other payments to or for his wife and child.

Three witnesses testified in the case, plaintiff, her father, and defendant. It was shown that plaintiff was the only child of her parents with whom she lived up to the time of her marriage, well provided and cared for. Her father was a business man of indicated responsibility and good standing in the city of Menominee, where he had been located for over 20 years. Defendant had worked for her father for a time before they were married. He was a common laborer, working for day wages, when and after they were married, mostly in sawmills, and when he could not get work in them in such other employment as he could obtain. Five months before their marriage he had obtained a position with a manufacturing concern in Racine, Wisconsin, called the Harvey Spring Works, and soon after they were married returned to that employment, taking his wife to Racine with him. While there they lived in furnished rooms secured at a rental of $8 per week. He worked steadily, taking his earnings home to his wife. His wages were raised from $15 to $19 per week after his return, but he gave up his position at- the end of three months and went back to Menominee on her insistence, because, as she claimed, the damp climate at Racine was injurious to her health and she could not stand it. He then secured work in Menominee with a lumber company at less wages. There they rented rooms and kept house in a place on Dunlap- avenue, which she testified was “pleasant enough” and she would have “thoroughly enjoyed it” if it had been their own home. Prior to the birth of their child they moved to other quarters to economize, as she said, preparatory to her going to a hospital during her confinement. Of this she testi- • fied:

“I and Mr. Collette previous to the birth of the baby were saving up sufficient funds to take care of the expense at that time and he was giving me what he made and I was saving it.”

When confined she was taken to a hospital where she remained 10 days and defendant visited her every •evening while she was there. She was then taken with their baby to her parents’ home where she desired to go and they lived together there in rooms upstairs for some time, when he began to urge her to go from there with him and live by themselves, which he claimed would be pleasanter and better for them. This she declined to do, telling him, as he testified: “She wasn’t strong enough to keep house and that I couldn’t afford to hire help.” This he conceded was true, but said he could help her and thought they could get along.

Previous to making their home with her parents, at which time he says “things started to go wrong,” they appear to have lived together agreeably as husband and wife mutually interested in each other and their own family affairs. Her own testimony shows that he had until then deferred to her wishes as to where they should live and turned his earnings over to her. She admits of him:

“He never called me bad names. He did not stay out late at night, not so bad. He never was a drinking man. * * * When he would go out he would tell me where he was going. * * * William to some extent is an ambitious fellow and likes to get along and make good money. * * * He is a good boy that works hard and always has worked hard since we have been married. He has spoken of wanting to be a machinist several times. I discouraged him. I told him he should not do it at the baby’s and my expense.”

He also during the war, after they had separated, wanted to be a soldier and tried to enlist in the marines, when she again successfully “discouraged him” and caused his rejection by refusing her consent as his wife.

Defendant’s anxiety to leave her parents’ home with his wife and live by themselves was stimulated largely, as he claims, by his equivocal position there and treatment of him by her mother, with whom he frankly said he “could not get along,” although he spoke highly of her father, saying, “He treated me all right all the way through. He is all right.” Some of the causes of his desire to leave with his wife were, as he tells them, that objections were made to his visiting his own parents and his wife insisted on their having Sunday dinner “down with the old folks,” which for himself he did not desire “because she objected to go to my folks for dinner”; that her mother told him, “Myrtle shouldn’t have married a poor man, that I never could make enough money for her,” etc. He said he liked his wife as well as ever, but admitted the charge of lack of love and affection for their child, giving as a reason lack of opportunity, complaining That while he was there, “They wouldn’t allow 'me to take the baby up. They told me I was awkward with it; when they wanted to name the baby they never asked me what the name was; I never knew what they were going to name it until the minister came to name it; that is the first I knew about it.”

Some of his stated reasons for desiring to live elsewhere with his wife are explained or denied by her, but that it was then impressed on him that his wife had made a mistake when she married a poor man, and into his family, we do not find denied. Her father, who was the only other witness in the case, added little to the undisputed facts. He told in outline of what he had done for his daughter, of her marriage to defendant,'of where they lived together, the birth of their child and of their thereafter living for a time at his home, when defendant left, and witness from that time supported his daughter and her child at his own home. But he told of no unkindness on defendant’s part or domestic troubles while they were together, and in a spirit of regret rather than bitterness spoke of his limited capacity and inability to learn a skilled trade, or mechanical work, saying, in part, “He is a quick, working man, but as far as any head work, he is entirely lost.” It may be said that to some extent defendant’s testimony seems to sustain that view, when adroitly cross-examined by skillful counsel.

The diversity of opinion between these parties as to their leaving her parents’ home apparently led to some estrangement, but finally ended, as both testify, in an understanding that she would remain with her parents and he would go and make his home with his folks. He left her parents’ home April 20, 1918, and called there shortly after to see her but did not find her at home. He testified that he then intended to support his wife and child, but soon thereafter received a letter from her “telling me I could go where I wanted to and she could stay with her folks. Her dad was willing to take care of her,” and he then went away, going to Clintonville, Wisconsin. This letter was identified, introduced in evidence and marked “Exhibit 1” but is not printed in the record, having been mislaid by his attorney, as we are advised. That such letter was written by her and before the trial court is not disputed. This court is only advised of its contents in a fragmentary way as the same crops out in direct • or cross-examination of the parties. Asked about her statement in it that she “couldn’t think of living up there as long as he carried such an ungrateful feeling in his heart for your mother,” she replied, “He was ungrateful to her for the hard work she did.” Extracts evidently read to her from the letter, which she said she wrote on April 22, 1918, are: “I was over to Ed Channing’s when you called yesterday * * * and I am going to store my belongings in my parents’ attic today * * * now you have your earnings all for your own use.” Mention was also made in the letter of ai liberty bond which he left for her at her parents’ home and she returned. It appears from her testimony that soon after they began living apart he came over from Marinette one stormy Sunday to give this bond to her, and she not being at home heJeft it in their mail box for her. She states he obtained it from his father to be used with one she had to meet the expense of an operation which it was thought she might have to undergo, and not needing it for that purpose she returned it. What she said about it in the letter is not shown. It does appear that his first and fairly prompt but unsuccessful attempt to see his wife after they separated was followed by her returning his contribution to her support and writing him a letter of the tenor disclosed. It was upon receipt of this letter and return of his contribution that his alleged wanton and extreme cruelty in failure to support began and he left that part of the country for Clintonville, where he' found work for a time and then tried to enlist. Up to that time he was not entirely forgetful of his family ties, for he sent his wife, or her father, over $30, but after she headed off his attempt to enter the military service he apparently made no further effort in that direction or to communicate with her until this suit brought after he drifted back into that jurisdiction.

Counsel for plaintiff contend that such desertion by defendant of his wife and child, “without provocation, justification or even extenuating conditions, but gratifying the caprice of his own arbitrary will,” in itself “constitutes a species of cruelty,” to which is • added as a further ground of divorce that he has since “neglected and refused to support his wife and child or either of them.”

If defendant’s leaving his wife by mutual consent at the home of her parents under the circumstances shown could in any legal sense be said to constitute desertion, it, as such, would furnish no ground for divorce until after the expiration of two years; neither could it as a matter of law constitute any such “extreme cruelty” as to afford a short cut to divorce in avoidance of the prescribed statutory period for desertion.

Defendant’s, contention in his pleadings and testimony is that he has always been ready and willing to live with and support his wife and child to the best of his ability in such home of their own as he was able to provide, and oifers to do so according to his means and earnings. He admits that she was a faithful wife, except in respect to refusing to live with him “and choosing her parents.” He testified that he liked her as well as he ever did and said if she would leave her parents’ home and go with him, “I am willing to doanything for her.” He appears to have done all he could for her during the ordeal of her confinement, for which they prepared and broke up their home that she might have the benefit of hospital care and service. That he was unable to do as much for her, and furnish her as comfortable a home thereafter and before, as her parents could and did is quite apparent. He was but a working man with limited earning capacity when he married her and at the time of the trial. She admitted she knew when they were married that he was a poor man working for a living, without “any money to fall back on,” who could only earn with his hands, and said while they lived together she “never had any complaint about his not working steadily and turning his money over to me.” The cruelty of his conduct in the particulars charged is stressed in that connection by her counsel as causing their matrimonial relations to become “intolerable to her,” since he well knew before he married her that she had always “enjoyed a happy home with her parents under refined and refining conditions,” and this he apparently was not allowed to forget when at her parents’ home with her. But such suggested distinctions in refinement and financial resources, capacity to provide, or rank in life, lie outside the provided causes for divorce. As this court, speaking through Justice BROOKE, said in Carson v. Carson, 173 Mich. 452:

“Neither misfortune nor incompetence resulting in failure to support affords the wife any grounds for relief under the law. The possibility of such a result was one of the hazards complainant undertook when she assumed the burdens incident to the contract.”

In foot notes to this case as reported in 43 L. R. A. (N. S.) 255, it is said:

“It is practically unanimous opinion of the authorities that a mere failure to support is not of itself a substantive ground of divorce, and in construing statutes making ‘gross, wanton, or cruel neglect’ of duty, or to provide a suitable maintenance, a ground for divorce, the weight of opinion is to the same effect as. Carson v. Carson, that, unless there is some circumstance of aggravation, mere failure to support is not within the meaning of the statute.”

In the early case of Randall v. Randall, 37 Mich. 563, it was said, by Chief Justice Cooley, of the husband’s duty to support his wife:

“But this obligation was to support her in his family and not elsewhere; and co-extensive with it was her obligation to render family services. An obligation on his part to support her elsewhere could only arise by his turning her out of doors, or by his being guilty of such misconduct as would justify her in leaving him.”

Defendant had provided for his wife in a home by themselves apparently to the best of his ability up to the time they disagreed about leaving her parents’ home to live together as before. Then in contravention to his wishes she elected her own place of residence, advising him by letter, after they had agreed to live apart and he tried to see her again, that her father was willing to take care of her, she would stay with her own parents and he could go where he wanted to, as he states and as.is not denied in this record.

The trial judge had the benefit of reading that letter, and of seeing and interrogating the parties, which this court does not have. He did not find plaintiff had established her right to a divorce under the allegations in her bill and dismissed the same, but without prejudice. We find no occasion upon the record before us to disturb that result and the decree will stand affirmed, without costs to either party.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.