text:
    TRUMBULL v. BOARD OF CANVASSERS OF THE CITY OF JACKSON.
    1. Elections — Canvass—Recount—'Voting Machines — Presumptions.
    The legal presumption that ballot boxes are preserved in their integrity, arising from the various provisions of law for their sealing and custody, finds no parallel in the case of voting machines authorized to be used by sections 3804-3823, 1 Comp. Laws, there being no similar law to prevent their being changed subsequent to the election.
    2. Same — Recount—Statutory Provisions.
    The statute (§ 3725, 1 Comp. Laws) providing for a recount of the ballots of an election by the board of canvassers has no application to a rereading of the totals shown by a voting machine, the remedy, if there be one in such a case, being by quo warranto as provided by that section.
    Certiorari to Jackson; Parkinson, J.
    Submitted June 6, 1905.
    (Calendar No. 21,090.)
    Decided June 21, 1905.
    Mandamus by Lyman B. Trumbull to compel the board of canvassers of the city of Jackson to reconvene and re-canvass the vote of a city election. There was an order granting the writ, and respondent brings certiorari.
    Reversed.
    Prom the petition for the writ of certiorari and from the return to the writ the following statement of 'facts is made:
    In the city of Jackson, at the election held April 3, 1905, Abbott voting machines were used. 1 Comp. Laws, §§ 3804-3823. The office of city attorney is an elective office, and relator (appellee) was one of the candidates for this office at said election. According to the returns of the inspectors of election, it appeared that relator had been defeated by 23 votes. To the board of canvassers, which met on April 6th to canvass the returns of said election, relator presented a verified petition and demand for a recount of the votes cast for the office in question in the first precinct of the Second ward of the city. The petition set out, in substance, that a mistake had been made by the precinct inspectors in crediting to relator the votes given for his opponent and in crediting to his opponent the votes given for relator, thereby depriving relator of 27 votes which were cast for him, and giving to his opponent 27 more votes than were actually cast for him. The board of canvassers declined to act as requested, and relator presented in the circuit court for the county of Jackson his petition for a writ of mandamus to compel the said board to reconvene and proceed to investigate the matter according to the provisions of Act No. 208, Pub. Acts 1887. Accompanying this petition were (1) a copy of the demand made upon the board of canvassers; (2) affidavits of three persons, tending and calculated to show that the voting machine used was, after the vote was declared, locked, and that it had not been changed or interfered with. An order to show cause was granted, in answer to which the board of canvassers raise the questions in issue by the following statements:

      “Sixth. Said respondents further answering, say that they took no other or further proceedings upon the petition of said Lyman B. Trumbull, presented to them as aforesaid, because they are advised and believe that the said petition did not call for any further or other proceedings on the part of said board of canvassers, and that there is no law authorizing the said board to take any proceedings towards the correction of the alleged mistake referred to by said Trumbull in said petition. They further say that the election returns from the said first precinct of the Second ward were complete, and showed that John F. Henigan received twenty-seven more votes in said precinct than said Trumbull did, and were signed and sworn to by four inspectors of election, two of whom belonged to the same political party with said Trumbull, including the chairman of said board, George W. Scotford; that these returns were on file with the city recorder, the clerk of said board, and that respondents were advised and believe that the provisions of Act No. 208 of the Public Acts of 1887, referred to in the fifth paragraph of the petition of said Trumbull to this court, are inapplicable to the matters set forth in the petition of said Trumbull to the said board of canvassers, or to any precinct where the Abbott voting machine is used under the laws of the State and the charter of said city.
    “Seventh. These respondents, further answering, say that they are advised and believe that said voting machine could have been tampered with and altered so as to show a different result as to the vote for any particular office after the closing of the polls on election day without leaving any evidences that the machine had been meddled with or tampered with, and they refer to the affidavit of said Charles Worden, hereto annexed, in support of that fact; and they further say that they are advised and believe that there is no law which requires the Abbott voting machine to be kept, after the polls are closed, in such condition as to show what the vote was at the closing of the polls, and refer to and make a part of this answer the provisions of subdivision 7 of section 4 of title 18 of said charter, and all other provisions of said charter relating to the use of and care and custody of said machines.
    “ Eighth. Further answering, the respondents say that there were no affidavits accompanying the said petition of said Trumbull presented to said board, and no proof made as to what had been done with said machine after the closing of the polls on the 3d day of April, 1905; that it is a fact, and it was known to said board at the meeting thereof, that the machine which had been used in the first precinct of the Second ward had been allowed to remain from Monday until some time in the afternoon of Wednesday following in the voting hall of the Second ward where it had been used on election day, unguax’ded by anybody; that this fact was mentioned at the meeting of said board, and was not contradicted by said Trumbull or any one in his behalf, and comments were also made at the meeting of said board upoix the fact that it would be an easy matter to tamper with the vote upon said machine, and it was stated that the vote upon the same might become changed by transporting the machine from one place to another and the keys and padlocks on said machine, as respondents are informed and believe, are very ordinary affairs, and could be easily duplicated, or the padlocks unlocked by other keys or instruments.”

      There accompanied this answer an affidavit, made by one of the same persons whose affidavit had been attached to the petition for mandamus, which sets out facts tending to show'that it was possible to tamper with the machine in question after the vote was declared and before the machine came to the custody of deponent. From none of the papers before us does it appear that it is probable or that it is suspected that any person did change or alter the machine in any way, or that it does not now record the votes cast by it precisely as it did when, on the night of election, the machine was opened and the votes declared.
    The court below heard the matter on petition and answer, and ordered that the writ of mandamus issue to the board of canvassers,—
    “ Commanding them upon pain and peril that shall fall thereon to reconvene within five days after service of said writ upon them by delivering a certified copy thereof to the president and clerk of said board, and investigate the matters set forth in the petition filed with them by said relator according to provision of Act No. 208 of the Public Acts of 1887; that they appoint a committee in accordance with law, who shall be authorized to open the voting machine used in the first precinct of the Second ward of said city to investigate and to make correct and full returns of the vote cast for the office of city attorney in writing under their hands* to said board as required by said act, and commanding said board of canvassers thereupon to canvass and certify the vote upon the office of city attorney in accordance with report of said committee.”
    Respondent, the board of canvassers, thereupon applied for and was allowed a writ of certiorari to review the action of the circuit court. °
    The law permitting the use of the Abbott voting machines reads in part as follows:
    “(3808) Sec. 5. Said township board, council or common council, shall make rules and regulations for the care and use of said voting machine, but the arrangement of the room in which the election is being conducted, the duties of the election commissioners and officers of the election before, during and after the election, and the manner of conducting the election and canvassing the vote thereat shall not be changed except as is necessary in consequence of the substitution of the voting machine for the ballots, ballot boxes and booths used under existing laws.”
    “ (3822) Sec. 14. The provisions of the election laws of the State not inconsistent with the provisions of this act shall apply to all townships, villages and cities that use the Abbott voting machine.”
    No rules or regulations have been made by the common council of Jackson to insure the machines, for any period after an election, from change.
    Act No. 208, Pub. Acts 1887, as amended by Act No. 267, Pub. Acts 1897 (1 Comp. Laws, § 3725), is here given in full:
    “ An act to provide for the correction of frauds and mistakes in the canvass and returns made by inspectors of elections.
    “ (3725) Section 1. The People of the State of Michigan enact, That any candidate voted for at any election, conceiving himself aggrieved on account of any fraud or mistake in the canvass of the votes by the inspectors of election, or in the returns made, may (within three days after the conclusion of a township canvass, if a township office) or on or before the close of the last day upon which the board of city canvassers meet, if a city or ward office, or board of village canvassers, if a village office, present to and file with the clerk of such board a written petition, which shall be sworn to, setting forth, as near as may be, the errors, mistakes or frauds complained of, and the township, ward or village in which they occur, and asking for ■a correction thereof. He shall at the same time deposit with the clerk of said board the sum of ten dollars for each and every township, ward or village referred to in his petition: Provided, that no candidate shall be required to deposit more than one hundred dollars, which sum shall be paid in case such petitioner does not establish a fraud or mistake, as set forth in his petition, by the clerk of the board of city canvassers, to the city treasurer for the use of the city and by the clerk of the village to the village treasurer and by the township clerk to the township treasurer for the use of the city, villags or township, as the case may be. Upon filing such petition, making such deposit and giving at least twelve hours’ written notice thereof to the opposing candidate by handing to such candidate a copy thereof, or if such candidate cannot be found, by leaving such copy at the last place of residence, it shall be the duty of such board of canvassers to proceed to make an investigation of the facts set forth in said petition. For which purpose the clerk, if no meeting be already appointed, shall call a meeting of such board of canvassers and the said board shall have power to cause the ballot boxes used in such election districts to be brought before them. The said board shall thereupon appoint a committee of their own number as follows: The said board shall designate a. member who shall be the chairman of said committee, the candidate presenting such petition and the candidate opposed thereto shall each choose a member, and if such-candidates, or either of them, decline to choose a member, then the board shall designate, and the three thus chosen shall constitute a committee to investigate the errors, mistakes or frauds complained of. Said committee shall, in some public place, where such candidates and their counsel may be present, if they so desire, without unnecessary delay proceed to open the ballot boxes from such village, townships or wards, and to make a recount thereof as to such candidates, and make correct and full returns in writing under their hands to said board, showing the whole number of votes given, the names of the candidates, and the number of votes given to each, written out in words and figures as upon the ballots. Said committee, upon making such recount, shall at once return the ballots to their respective boxes, carefully fasten and seal the same and deliver them to the officer having the care and custody thereof. Said board of canvassers, upon receiving the report of such committee, shall accept the same as correct, anything in the previous declaration, certificate or returns from such township, ward or village to the contrary notwithstanding. Any candidate not receiving a certificate of election, may for errors apparent upon the face of the returns have the same examined and corrected upon certiorari to the circuit court of the county, according to the rules and practice applicable to such writs. In all cases where, by reason of such recount, the petitioner succeeds in establishing a fraud or mistake, as set forth in his petition, and receive a certificate of election, the money deposited by him shall be refunded. For fraudulent or illegal voting, or tampering with the ballot boxes before a recount by the board of canvassers, the remedy by quo warranto shall remain in full force, together with , any other remedies now existing. The usual final adjournment of a township board of canvassers shall be deemed subject to the recall of the board as herein provided.”

      Wilson & Cobb, for relator.

      Richard A. Price, for respondent.
   Ostrander, J.

(after stating the facts). As adopted, the act above quoted provided for the application by an aggrieved candidate to the board of city canvassers if a city or ward office was in question, to district boards (whatever that may have been intended to mean) and to the board of county canvassers in all other cases. In other respects, the provisions of the act were substantially-the same as they now appear. Before the act was amended to its present form, the legislature in 1891 (Act No. 190, Pub. Act 1891) provided for an official ballot upon which the names of all candidates for office are to be printed. Later the case of May v. Board of Canvassers, 94 Mich. 505, was before this court. It was said in -the opinion in that case:

“We deem it proper to add that the law in its present form is not well adapted to our present system of voting. The chief purpose of the act was to furnish a way for the correction of mistakes in the original count. At the time of its enactment candidates were voted for on separate tickets, and it could rarely occur that any ground of difference would exist as to what ballots should be counted for a particular candidate. Since its enactment the general election law of 1891 has provided for an official ballot, upon which the names of all the candidates are printed, and prohibiting distinguishing marks. It has come within the observation of this court that this provision has resulted in bitter controversies, and has furnished ample opportunity for radical disagreements as to what constitutes distinguishing marks, and the power thus vested in partisan tribunals arbitrarily to determine this question is liable to result in future scandal, unless some means of direct judicial review be provided. ”

In the case before us we are confronted with another difficulty. The act in terms makes it the duty of the board of canvassers, upon receiving the petition of an aggrieved candidate, “to proceed to make an investigation of the facts set forth in said petition;” For such purpose the power is expressly given to the board to cause ballot boxes to be brought before it, to appoint a committee to make a recount of ballots. It was said'in May v. Board of Canvassers, supra, that the board, in the absence of suggestion to the contrary, might indulge the legal presumption that the ballot boxes called for had been preserved in their integrity. This presumption is, of course, based upon the various provisions of law for returning the ballots to boxes by the inspectors and the sealing and custody of the boxes.

“We have no doubt,” the opinion proceeds, “ that, if it had been brought to the attention of the board that the ballot boxes were claimed to have been tampered with, it would have become the duty of the board to cause the boxes to be brought before it and make an investigation. Such investigation would, by the terms of thé statute, evidently be confined to an inspection of the boxes themselves, and the board would be authorized to exercise the quasi judicial function of determining whether a recount of the ballots as cast could be had. If an inspection of the boxes show that they have not been preserved in their integrity, we think it would be extravagant to claim that the law is so imperative in its requirements that the official return, presumably correct, could be overcome by any such experiment as a count of ballots which are not apparently the same as those cast at the election.”

It is true that this court has decided that a vote cast by a machine is a constitutional ballot. City of Detroit v. Board of Election Inspectors, 139 Mich. 548. It is true that the Abbott voting machine is one used by express legislative permission. But there is no basis in the statute authorizing its use, or- in any rules or regulations of the city of Jackson, for the legal presumption that, after the inspectors of election have read the machine at the close of an election and declared the result, the machine and the registers of votes remains unchanged. It may be that, as in* the case before us, a showing of facts can be presented from which the board of canvassers may presume that in fact the machine has remained unchanged. If the fact is contested, may the board of canvassers determine the truth of the matter ? This question must be answered with reference to the other provisions of the statute, as well as to general rales concerning the exercise of judicial functions by tribunals such as a board of city canvassers.

A provision of the statute to which we direct attention is the one reading:

“ For fraudulent or illegal voting or tampering with the ballot boxes before a recount by the board of canvassers, the remedy by quo warranto shall remain in full force together with any other remedies now existing.” 1 Comp. Laws, § 3725.

Whatever our view may be of the legal force of the provision of the statute referred to, its presence in the law is bound to affect our judgment concerning the applicability of the law to the case of a contested election when the voting is by machine. There being no legal presumption that the machine has remained unchanged, the fact must be, in some cases at least, determined by the testimony of those supposed to have information. This involves the weighing of testimony, and generally the exercise of judicial power.

Plainly, the act in question was not intended for elections conducted by machines. This being so, in view of the difficulties in applying the statute to the case before us —difficulties which we have rather suggested than discussed — we are of opinion that the order of the court below directing the board of canvassers to examine the voting machine should not have been made. It is reversed, and set aside. No costs are awarded.

Moore, C. J., and Carpenter, McAlvat, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Caepentee, J.

license: Public Domain

text:
    HUNT v. RIVERSIDE CO-OPERATIVE CLUB.
    1. Monopolies — Combinations in Restraint oe Trade — Statutes.
    All the wholesale dealers in plumbers’ supplies and a large majority of the master plumbers of Detroit and its suburbs organized a club, the rules of which provided that the wholesalers should sell to no one not a master plumber, and should sell to members at prices fixed by a certain list and charge nonmembers a higher price than members; that members would buy all their supplies of the wholesale members, and in figuring estimates on jobs would be governed by the price list supplied by the club, and submit their estimates to the secretary of the club before putting in their bids. Held, that the club constituted a combination in restraint of trade within the anti-trust law of 1899 (Act No. 355).

    3. Same — Combination Agreement — Construction.
    The fact that several of the agreements contained in the rules of the club considered by themselves are not illegal is immaterial where they are merely steps to effect the accomplishment of an illegal object.
    8. Same — Club Rules — Amendment.
    Amending the club rules on the eve of suit by abrogating the provisions requiring the wholesalers to discriminate against
    . nonmembers, and requiring master plumbers not to sell labor and materials below the schedule rate, was ineffectual to remove the legal objections to the club since their object remained the same, and in determining that object the eliminated provisions may be considered.
    4. Same — Contract Work — Statute—Construction.
    The claim that the statute (Act No. 355, Pub. Acts 1899) does not apply to “ contract work,” i. e., in which work is done and materials furnished for a lump sum, on the theory that the statute does not prohibit regulating the price of labor, is untenable, since it does prohibit contracts which restrict competition by fixing the price of the supplies installed.

      5. Same — Effectiveness of Combination.
    An agreement restrictive of competition in trade is not legalized by the fact that competition is not entirely abolished by it.
    6. Same — Effect on Prices.
    A combination in restraint of trade is not legalized by the fact that its effect has been to lower instead of raise prices of the commodities affected.
    7. Same — Completeness of Monopoly.
    That an unlawful combination of the master plumbers of a city does not include all the persons engaged in the trade has no effect to legalize it.
    8. Same — Common Law.
    An agreement among the dealers in certain commodities to keep the selling price thereof at a fixed or graduated figure is void at common law as against public policy.
    9. Same — Labor—Agreements Fixing Prioe — Statute.
    An agreement fixing and regulating the price of labor is not prohibited by the common law nor by the anti-trust law of 1899 (Act No. 255).
    10. Same — Suit to Enjoin — Proseouting Attorney — Authority.
    Where the prosecuting attorney brings suit to enjoin a violation of the anti-trust law of 1899 (Act No. 255), the objection that he did not have authority, or did not prove his authority, to institute it, is a technical one which, being first raised on appeal, will be overruled.
    Appeal from Wayne; Brooke and Frazer, JJ.
    Submitted February 9, 1905.
    (Docket No. 44.)
    Decided June 29, 1905.
    Information in equity by Ormond F. Hunt, prosecuting attorney of Wayne county, against the Riverside CoOperative Club and the Master Plumbers’ Association to restrain further violation of the anti-trust law. From a decree for complainant, defendants appeal.
    Modified and affirmed.

      Ormond F. Hunt, in pro. per.

      J. J. & B. T. Speed, for defendants.

       As to illegal trusts under modern anti-trust laws, see note to Whitwell v. Continental Tobacco Co. (C. C. A. 8th C.), 64 L. R. A. 689.

   Caepentee, J.

Section 1, Act No. 255, Pub. Acts 1899, reads as follows:

"That a trust is a combination of capital, skill or arts by two or more persons, firms, partnerships, corporations or associations of persons, or of any two or more of them, for either, any or all of the following purposes:
“ 1. To create or carry out restrictions in trade or commerce.
“2. To limit or reduce the production, or increase or reduce the price of, merchandise or any commodity.
“3. To prevent competition in manufacturing, making, transportation, sale or purchase of merchandise, produce or any commodity.
“4. To fix any standard or figure, whereby its price to the public or consumer shall be in any manner controlled or established, any article or commodity of merchandise, produce or commerce intended for sale, barter, use or consumption in this State.
“5. It shall hereafter be unlawful for two or more persons, firms, partnerships, corporations or associations of persons, or of any two or more of them, to make or enter into or execute or carry out any contracts, obligations or agreements of any kind or description, by which they shall bind or have bound themselves not to sell, dispose of or transport any article or any commodity or any article of trade, use, merchandise, commerce or consumption below a common standard figure or fixed value, or by which they shall agree in any manner to keep the price of such article, commodity or transportation at a fixed or graduated figure, or by which they shall in any manner establish or settle the price of any article, commodity or transportation between them or themselves and others, so as to directly or indirectly preclude a free and unrestricted com petition among themselves, or any purchasers or consumers, in the sale or transportation of any such article or commodity, or by which they shall agree to pool, combine or directly or indirectly unite any interests that they may have connected with the sale or transportation of any such article or commodity, that its price might in any manner be affected. Every such trust as is defined herein is declared to be unlawful, against public policy and void.”

Under the claim that the purpose of the organization of the first two named defendants was to violate the above-quoted section, relator filed this information in equity-asking a decree restraining their further operation. Defendants answered, and the case was heard in the court below on pleadings and proof. A decree was granted in conformity with the prayer of the bill. Defendants appeal to this court.

Each of said first two named defendants is an unincorporated association. The Master Plumbers’ Exchange was organized in January, 1902. The Riverside Co-operative Club was organized in the following July. The members of the exchange are master plumbers doing business in the city of Detroit and its vicinity. The importance .of that organization is shown by the fact that, of the 168 master plumbers doing business in Detroit, 131 — and these ‘ ‘the most reputable ” modestly states one of defendant’s witnesses — are members of the exchange. The membership of the Riverside Club consists of the master plumbers belonging to the exchange and seven wholesale dealers and manufacturers in plumbers’ supplies. (These seven comprise all the manufacturers and dealers in plumbers’ supplies in the city of Detroit.) According to the rules and regulations of the Riverside Co-operative Club (these rules and regulations constitute an agreement between the members of said club), the price of plumbers’ supplies is to be fixed by a committee consisting of one wholesaler and one master plumber. At this price the wholesale members agree to sell without discrimination'to the master plumber members, and the master plumber members agree to buy their entire supplies, distributing their trade equitably, from the wholesale members. The wholesalers agree to sell only to qualified master plumbers (this includes plumbers who are not, as well as those who are, members of the club) whose names appear on a list approved by the officers of the club. They also agree to charge nonmembers 15 to 30 per cent, more than members. The master plumber members agree that they will not sell labor or material at prices below those fixed by a schedule approved by the club. The master plumbers agree to do no contract work for, and the wholesale members agree to furnish no supplies to, one who has failed to make a satisfactory settlement with any member of the club. According to the rules and regulations of the Master Plumbers’ Exchange, each member agrees — and a heavy penalty is provided for the failure to perform this agreement — that in bidding for contract work he will estimate materials according to the cost price fixed by said Riverside Club, and labor at wages specified in said rules; that he will add to these prices at least 30 per cent, for plumbers’ and helpers’ time, add to this total 5 per cent, to be paid to the exchange, and then add to this total at least 25 per cent, for profit. Each member also agreed to submit such estimate to the clerk of the exchange, who was also clerk of the Riverside Club. While defendants claim that the object of submitting these estimates was to correct errors of computation, there was a more important object, viz., to prevent competition and to enhance the plumbers’ profit. This is shown by the following letters from the clerk to one of the members:

October 27, 1902. “I am quite anxious to have the estimates on that Penberthy Injector Company job thoroughly examined. * * * The estimates as they now stand seem to indicate that if the job had been figured fairly by all the competitors on it, you could just as well have secured it at an advance of from $250 to $400 over the price at which you did secure it. * * * In this connection I may also state that some time ago we compared the estimate of the Forrester and Cheney job. Two of these estimates were low and yours the lowest of all, seemed to be very low. We felt at the time these estimates were examined that the cost figures on the job should have been from $100 to $150 higher than your cost figure which would have given you a profit of from $120 to $180 more than you are now making on the job.”

May 7,1903. (Another letter from the clerk to the same member.)

“ Referring again to the letting of that Ford job, I beg to advise you that I am sure that if I could have told Mr. Harrigan that his figure was much too low compared with your figure and the figures of Mr. Dickson and Mr. Ryan, he would have £ pulled ’ his bid and have let the job go to one of the other three men.”

There are other agreements between the members of these two associations, but it may be said of them that they are either inconsequential, or that they are designed to further the object shown by the agreements herein stated. The business of the various members was carried on under this agreement for more than a year, or until the filing of this bill, in December, 1903. Was this agreement forbidden by the statute ?

In determining the legality of defendants’ undertaking it would be confusing, rather than helpful, to examine and determine the legality of each specific agreement. If it may be said that many of -these agreements, considered by themselves, are legal, it may also be said (and this will be made to appear hereafter) that these agreements are merely steps to effect the accomplishment of an illegal object, and for that reason they are also illegal. See Pacific Factor Co. v. Adler, 90 Cal. 110. The legality of defendants’ undertaking is to be determined by ascertaining "their central and controlling object. We cannot determine this object by looking at either organization as an entity apart from the other. The two organizations are intimately connected — so intimately that their common clerk testifies that he does not know whether the fund derived from the 5 per cent, addition to contracts by master plumbers, which aggregates 111,000, belongs to the one or to the other. The two organizations co-operate, and were intended to co-operate. As members of the Riverside Club the plumbers arrange to purchase their supplies. Under that • arrangement each member secures the same prices, and prices more favorable than competing nonmembers can secure. As members of the Master Plumbers’ Exchange, these plumbers fix the price at which they will sell these supplies. It is scarcely necessary to say that this agreement restricts, if it does not destroy, competition between these members. The advantage that this arrangement gives the plumber members over the plumber nonmembers is obvious. The latter must buy their supplies either in the local markets at excessive prices, or abroad at a great disadvantage. It is scarcely necessary to say that this arrangement was designed to create, and tends to create, a practical, though possibly incomplete, monopoly in favor of the plumber members. As members of the Master Plumbers’ Exchange, the plumbers fixed the prices — thereby restricting competition among themselves — at which they will sell the supplies, of which they had a practical monopoly. The manifest purpose of the two organizations, then, is to give to the master plumber members a monopoly of selling plumbers’ supplies in the city of Detroit, and at the same time to restrict competition among themselves in effecting such sales.

Much stress is placed on the fact that on December 22, 1903, the day before this bill was filed, defendants’ trustees, acting on the advice of their attorney, abrogated the provision which obligated wholesalers to discriminate against nonmember plumbers, and the provision which obligated master plumbers not to sell labor and material below a schedule rate. It is insisted that with these provisions eliminated nothing objectionable remains. As a matter of fact, the trustees had, under the by-laws, no authority to abrogate these provisions. Their action in undertaking to abrogate them was utterly ineffectual until approved at a meeting of defendants’ members. This approval did not take place until January 5,1904, and therefore, at the time this suit was instituted, the objectionable provisions were in full force. If the public authorities had the right to institute this suit and obtain a decree enjoining defendants from enforcing those objectionable provisions, it is difficult to believe that they were bound to dismiss their suit the moment defendants eliminated them from their plan of organization. It may well be said in such a case that the public has a right to some other security than defendants’ statement that they would thereafter desist from their illegal undertaking. But we do not base our decision upon that proposition, for, as I shall endeavor to show, the elimination of these objectionable provisions did not materially change the character of defendants’ undertaking. The master plumbers, though no longer obligated to refrain from competition in selling supplies and labor, remained obligated to refrain from free and unrestricted competition when they installed plumbers’ supplies on contracts. In other words, the elimination of the objectionable provisions did not restore freedom of competition. It merely limited the field of restricted competition. After the elimination of the provision expressly obligating the wholesalers to discriminate against nonmembers, they still remained bound to sell only to such nonmembers as should be approved by the joint representatives of the wholesalers and the master plumbers, and they also remained bound to sell to the master plumbers at prices fixed by such joint representatives.

It is obvious that by these remaining provisions the parties to the contract may, if they choose, insure discrimination in favor of the plumber members against the plumber nonmembers. Is it the purpose of the parties to use these provisions to secure discriminations ? This may be determined by considering their financial advantages and desires. Discrimination is certainly to their financial advantage. Only by such discrimination can the plumber members control the business of selling plumbers’ supplies in the city of Detroit. By controlling that business, both the wholesalers and their associates, the master plumbers, may hope to increase their trade and their profits. Do the parties desire discrimination ? If we have not answered this by showing that discrimination was to their financial advantage (and the object of the contract was to secure financial advantage to the parties), additional evidence is furnished by the original provision requiring discrimination. It is true that by the advice of their counsel they have eliminated that provision, but we may still, under the circumstances of this case, look to it as evidence of their purpose. See Detroit Salt Co. v. National Salt Co., 134 Mich. 103. Indeed, one must be blind if he does not see that the essential object of the parties in organizing the Riverside Club was to secure such discrimination. When they struck from their rules the provision requiring discrimination they did not change that object. Their purpose remained unchanged. The only effect of eliminating the provision expressly requiring discrimination was to make discrimination an implied, instead of an expressed, part of the contract. We are warranted, therefore, in declaring that the parties now intend, by means of appropriate provisions still remaining in their contract, to secure discrimination. It should be construed in accordance with that intention. I conclude, therefore, that by the agreement between defendants they have attempted to create a monopoly in the business of selling plumbers’ supplies in the city of Detroit and restricted competition among themselves.

It is insisted that agreements restricting competition “for contract work — that is to say, to work for which work is to be done and materials furnished for a certain lump sum — are not within the statute of 1899.” It is true that a plumber who, under contract, installs his supplies in a building, furnishes the labor which installs said supplies ; but it is also true that by the performance of his contract, the title of such supplies passes from him to the owner or occupant of the building. These supplies are thus either sold or disposed of. It is unnecessary to determine whether or not the statute prohibits contracts fixing and regulating the price of labor employed in installing the supplies sold, for it certainly does prohibit contracts which restrict competition by fixing the price of the supplies installed; and the statute was therefore violated when defendants agreed to restrict competition in contract work, for the effect and intent of that agreement was “ to keep the price ” of their supplies “ at a fixed or graduated figure, * * * so as to * * * preclude a free and unrestricted competition among themselves.”

Nor is the agreement of the master plumbers unobjectionable because it leaves some opportunity for competition between them. They have agreed “not to sell * * * an article of merchandise * * * below a common standard figure or fixed value, * * * so as to * * * preclude a free and unrestricted competition among themselves;” and this the statute in express terms forbids. Moreover, this record warrants our saying that it is the aim and purpose of defendants (and this purpose may be accomplished by their contract) to altogether abolish competition between themselves. But the justification for enjoining the further prosecution of defendants’ undertaking does not rest upon the narrow ground that the agreement restricting competition among the master plumbers was unlawful. As heretofore indicated, that rests upon the ground that defendants have undertaken, by means forbidden by the statute, viz., by agreeing to keep the selling price for both wholesale and retail dealers at a fixed or graduated figure, to create a monopoly in the business of selling plumbers’ supplies in the city of Detroit, and to secure to themselves the profits of that monopoly.

Defendants’ testimony tends to prove that, instead of raising, they have lowered, prices. It is our duty to disregard that testimony.

“It is no answer to say that this monopoly has in fact reduced the price. * * * That policy may have been necessary to crush competition. The fact exists that it rests in the discretion of this company at any time to raise the price to an exorbitant degree. Such combinations have frequently been condemned by courts as unlawful and against public policy.” Richardson v. Buhl, 77 Mich., at pages 660, 661 (6 L. R. A. 457).

See, also, People v. Sheldon, 139 N. Y. 251 (23 L. R. A. 221). Neither is it an answer to say that the monopoly created, or attempted to be created, is not a complete and perfect monopoly.

“ All the authorities agree that in order to vitiate a contract or combination it is not essential that its result should be a complete monopoly; it is sufficient if it really tends to that end, and to deprive the public of the advantages which flow from free competition.” U. S. v. E. C. Knight Co., 156 U. S., at page 16.

Did defendants violate the statute of 1899 when, by agreeing to keep the selling price — both the wholesale and retail selling price — at a fixed or graduated figure, they undertook to create a monopoly of the business of selling plumbers’ supplies in the city of Detroit, and to secure to themselves the profits of that monopoly ? To answer this question we are not required to enter into a critical examination of the statute. At common law such an agreement was against public policy, and*between the parties thereto was void. See Richardson v. Buhl, supra; Detroit Salt Co. v. National Salt Co., supra; Bailey v. Master Plumbers, 103 Tenn. 99 (46 L. R. A. 561). If the statute of 1899 is constitutional — and its constitutionality is not questioned — it was violated by defendants when they made the arrangement set forth in this opinion. Decisions from other courts based upon statutes either precisely like or similar to our own may be cited to sustain this conclusion. See San Antonio Gas Co. v. Texas, 22 Tex. Civ. App. 118; State v. Ice Co., 96 Tex. 461; Harding v. Glucose Co., 182 Ill. 551; State v. Armour Packing Co., 173 Mo. 356 (61 L. R. A. 464); Walsh v. Ass’n of Master Plumbers, 97 Mo. App. 280.

The decree in this case not only enjoined defendants from continuing the undertaking heretofore described and all similar undertakings, but it also enjoined them “ from fixing and regulating, or attempting to fix and regulate, the price of labor employed in installing plumbing supplies and goods in the city of Detroit and its vicinity.” This provision goes further than to enjoin defendants from fixing and regulating the price of labor employed in executing a contract for the installment of supplies unlawfully sold by them. Indeed, if it did not go further than that, it was unnecessary to insert it in the decree, because such regulation of the price of labor is sufficiently enjoined by other provisions, viz., provisions which have the effect of enjoining defendants from proceeding with their undertaking and with all similar undertakings. The provision in question prevents defendants, as employers of labor, from making an agreement fixing the wages they will pay their employés for installing supplies. I think it clear that prior to the enactment of the statute of 1899 courts had no authority, at the instance of a representative of the people, to enjoin the making of such agreements. See Beck v. Protective Union, 118 Mich. 516, 517 (42 L. R. A. 407). They have now, then, no such authority unless such agreements are forbidden by that statute. If that statute forbids such agreements, it follows that it'forbids all agreements fixing and regulating the price of labor, and that associations, whether of employés or employers, when endeavoring to fix and regulate the price of labor, are engaged in a criminal undertaking. Does that statute forbid such agreements ? In general, it may be said that the statute forbids certain contracts and certain defined trusts. An agreement fixing and regulating the price of labor is not one of these contracts, nor one of these trusts. See Cleland v. Anderson, 66 Neb. 258. If it may be said that an agreement fixing the price of labor violates the statute when it forms part of an undertaking which the statute forbids, it must also be said that it does not violate the statute unless it does form part of some undertaking forbidden by the statute. As defendants are, by the provision under consideration, enjoined from fixing or regulating the price of labor when it does not form a part of an ■undertaking forbidden by the statute, they are entitled to have that provision eliminated from the decree.

This suit is brought “by Ormond F. Hunt, prosecuting attorney in and for the county of Wayne, State of Michigan, who sues for the people of the State of Michigan.” Defendants insist that the prosecuting attorney has no right to maintain this suit. They insist that he had no such right before the statute of 1899 was enacted, and that section 2 of that act gives him such right only in cases where the law is violated by some association incorporated under the laws of this State. If we assume that defendants are right in this contention, it by no means follows that the decree should be reversed. The real complainant in this case is the people of the State of Michigan. The prosecuting attorney of Wayne county is merely the representative of the people. Except in form, this is a suit by the people of the State of Michigan, by Ormond F. Hunt, their attorney. The complaint, then, of defendants is this: That the prosecuting attorney who instituted this suit did not have authority or did not prove his authority to institute it. Had this objection been made in the lower court, it may, be assumed that it would have been obviated either by an amendment or by an exhibition of proof of authority. No such objection was made until the case was heard in this court. It may therefore be said that, as the objection is only a formal one, raised for the first time in this court, it should be disregarded. Wright v. Wright, 37 Mich. 55.

The decree appealed from will be modified as heretofore indicated, and, as so modified, it will be affirmed.

Moore, C. J., and McAlvay, Grant, and Hooker, JJ., concurred.


author: Blair, J.

text:
    LOHRSTORFER v. LOHRSTORFER.
    Constitutional Law — Vested Rights — Dismissed Appeal — Reinstatement.
    Act No. 15, Pub. Acts 1905, so amending section 552, .1 Comp. Laws, as to provide that where a chancery appeal shall have been dismissed, “ either before or after” the passage of the act, for nonpayment of the register’s fee, the Supreme Court may reinstate it on a proper showing, is unconstitutional as applied to appeals dismissed before its passage, because of interference with the vested right conferred by the decree appealed from.
    Bill by Alice N. Lohrstorfer against Frederick Lohrstorfer for a divorce. There was a decree for complainant, and defendant took ah appeal, which was, on com-. plainant’s motion, dismissed: On petition to reinstate said appeal.
    Submitted March 21, 1905.
    (Calendar No. 20,447.)
    Denied June 29, 1905.

      Hovey & StocJcwell (Avery & Walsh, of counsel), for the motion.

      Lee & Parker. {Moore & Brown, of counsel), contra.
   Blair, J.

A decree for a divorce from the bond of matrimony was granted in favor of the complainant in this cause. The defendant took all of the steps necessary to perfect an appeal from the decree, except that he did not pay to the register the $5 fee for making his return until after the expiration of the 30 days within which the statute requires its payment. For this reason the appeal was dismissed by this court on motion of complainant’s solicitors, and thereupon a motion was’ made on'behalf of defendant to reinstate his appeal, on the ground that complainant’s solicitors had waived the right to insist upon a dismissal of the appeal. This application was denied. After the foregoing proceedings were had, the legislature enacted Act No. 15 of the Public Acts of 1905, which was given immediate effect, and was approved by the governor on March 10, 1905. This act amended section 552 of the Compiled Laws of 1897, relative to the payment of the register’s fee on appeal, and contains the following proviso:

“Provided, however, That when any such appeal shall, either before or after the passage of this act, have been dismissed for nonpayment of said register’s fee within said period of thirty days, if the appellant shall by petition and competent proof make it appear to the Supreme Court that said fee has since been paid, and that justice requires a revision of the case upon the merits, said court may reinstate such appeal upon such terms as may be just,” etc.

Under this statute defendant now petitions this court for a reinstatement of his appeal, filing a petition under oath and accompanied by affidavits showing the payment of the register’s fee, containing a full showing of merits, and setting up facts which, considered in connection with the answer of complainant, satisfy us that there is a substantial controversy between the parties, and that justice requires a revision of the case upon the merits within the meaning of the act above quoted. See Jerome v. Wayne Circuit Judge, 117 Mich. 19.

Complainant’s counsel contend, however, that the matter has been finally adjudicated by this court in its previous decisions, and that we ought not, therefore, to entertain this application. This contention would be well founded except for the statute above referred to. If that statute is operative as being within the constitutional powers of the legislature, the jurisdiction of this court to entertain the application in question is undoubted. Counsel for defendant argue for the constitutionality of the statute; that there is no constitutional provision in Michigan prohibiting retrospective laws, and they are therefore valid, when no other objection than their retrospective character exists; that a party has no vested right in a defense not affecting his substantial equities; that courts do not regard rights as vested contrary to the justice and equity of the case; that the act in question does not affect vested rights, but merely a particular remedy; and cite in support of their position the following authorities: Cooley on Constitutional Limitations (7th Ed.), p. 529; Danforth v. Groton Water Co., 178 Mass. 472; State v. Railway Co., 54 N. J. Law, 185, 187; Gibson v. Hibbard, 13 Mich. 214; Beebe v. Birkett, 108 Mich. 234; Hauser v. Burbank, 117 Mich. 463; Judd v. Judd, 125 Mich. 228; Henderson, etc., R. Co. v. Dickerson, 17 B. Mon. (Ky.) 173.

In Cooley on Constitutional Limitations, at page 528, of the seventh edition, the learned author says:

“ Regarding the circumstances under which a man may be said to have a vested right to a defense against a demand made by another, it is somewhat difficult to lay down a comprehensive rule which the authorities will justify. It is certain that he who has satisfied a demand cannot have it revived against him, and he who has become released from a demand by the operation of the statute of limitations is equally protected. In both cases the demand is gone, and to restore it would be to create a new contract for the parties; a thing quite beyond the power of legislation. So he who was never bound, either legally or equitably, cannot have a demand created against him by mere legislative enactment. But there are many cases in which by existing laws defenses based upon mere informalities are allowed in suits upon contracts or in respect to legal proceedings, in some of which a regard to substantial justice would warrant the legislature in interfering to take away the defense, if it possesses the power to do so.”

And on page 529 he proceeds:

“In regard to these cases we think investigation of the authorities will show that a party has no vested right in a defense based upon an informality not affecting his substantial equities. * * * There are numerous cases which hold that retrospective laws are not obnoxious to constitutional Objection, while in others they have been held to be void. The different decisions have been based upon di-. versifies in the facts which make different principles applicable. There is no doubt of the right of the legislature to pass statutes which reach back to and change or modify the effect of prior transactions, provided retrospective laws are not forbidden, eo nomine, by the State constitution, and provided further, that no other objection exists to them than their retrospective character. Nevertheless, legislation of this character is exceedingly liable to abuse; and it is a sound rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively.”

In the case of Danforth v. Groton Water Co., 178 Mass. 472, petitions had been presented to the superior court for a jury to assess damages for the taking of water rights. The respondent filed motions to dismiss on the ground that the petitioners had not applied first to the county commissioners, as required by the statute. The superior court dismissed the petitions. To this ruling the petitioners excepted, and at the request of the parties the judge reported the case to the supreme court for its determination. On May 17, 1900, the supreme court sustained the ruling of the superior court, and directed that the petitions be dismissed on the ground that the petitioners should first have made application to the county commissioners. Between the time of the submission of the cases and the handing down of the decision the legislature, on May 4, 1900, passed a statute providing that no petition now or hereafter pending in a superior court for the assessment by a jury of damages sustained by any person in such cases should be dismissed for want of jurisdiction solely on the ground that no previous application for the assessment of such damages had been made to a board of county commissioners. The water, the taking of which was- complained of, was actually withdrawn in November, 1897, and by the respondent’s charter the right of the petitioners to apply for the assessment of damages was limited to one year from the taking. Therefore, as the law stood prior to the statute of May 4,1900, the petitioners had lost their chance of recovery from respondent, because it was then too late to file new applications, and, as the court had decided, petitions on file could not be entertained. The court say, among other things:

‘ ‘ The statute provides that no such petition as the present ‘ now or heareafter pending in the superior court * * * shall be dismissed for want of jurisdiction in said court solely on the ground that no previous application for the assessment of such damages had been made to a board of county commissioners.’ These words seem to us plainly to apply to the present petitions. It is true that the petitions had been ordered to be dismissed, but the orders were made subject to a report to this court, as we have said, and the cases were still pending in the superior court.”

And finally the court say:

“The constitutional difficulties in the way of the present statute are as small as they well can be. Its effect in saving the petitioners from being barred by the statute of limitations in the respondent’s charter is only secondary and accidental. All that it does directly which is open to question is to enact that parties having a case in court shall not be turned out for neglect of what under the circumstances was a naked and useless form.”

In Gibson v. Hibbard, 13 Mich. 214, the holder of a draft drawn by defendant on a banking firm made a gift of it causa mortis to her mother, the validity of which was disputed on the ground that the draft was void, because at the time it was drawn the draft had placed upon it only a two-cent revenue stamp, while the law then in force (Act March 3, 1863, chap. 74, § 6, 12 Stat. 720) required one of three cents, and another provision made the instrument invalid and of no effect if a sufficient stamp was wanting. On the trial the draft was produced, a proper stamp placed upon it and canceled by defendant’s counsel, whereupon the court rendered judgment for defendant. A later act of Congress provided (Act June 30, 1864, chap. 173, § 163, 13 Stat. 295) that “no instrument, document or paper made, signed or issued prior to the passage of this act, without being duly stamped, or having thereon an adhesive stamp or stamps, to denote the duty imposed thereon, shall for that cause, if the stamp or stamps required shall be subsequently affixed, be deemed invalid and of no effect.” Mr. Justice Cooley, in delivering the opinion of the court, said:

“ The question of the validity of this draft would arise primarily between the drawer and the holder. The drawer might have insisted upon its invalidity, if he saw fit to do so. But I do not understand that any person has such a vested right to have his contract declared void for want of compliance with some statutory requisite as will preclude the legislature from dispensing with the requisite and affirming the contract which he has attempted to make. A right to avoid one’s contract because the party himself has neglected to perform the duty he owed to the government in respect to it is not ‘ property,’ and the contractor is not in a position to complain when, for the furtherance of justice, the government allows the other party to perform the duty, and hold him to his contract. Retrospective laws of a similar character are by no means uncommon, and where they only give effect to the intentions of the parties they are not often unjust. See Satterlee v. Matthewson, 2 Pet. (U. S.) 380; Wilkinson v. Leland, 2 Pet. (U. S.) 627. And it would be difficult to imagine a lav/ of this kind less objectionable than this. The purpose of the original act was to enforce, by a penalty, the payment of national dues. In many cases the law operated harshly upon persons not yet accustomed to the new mode of doing business. The subsequent act, instead of operating unjustly upon any one, simply relieved the holder of the paper from the penal consequences on the proper stamp being affixed. Instead of being an attempt to interfere with private rights, it was in the nature of a waiver by government of a penalty which had been affixed for reasons of State policy.”

In Beebe v. Birkett, 108 Mich. 234, it was held that the act of 1895 (Act No. 186, Pub. Acts 1895), extending the time for settling cases in chancery, dealt with procedure only, and therefore applied to both pending and future cases. As the law stood at the time of the passage of this act, the circuit court had power to extend the time within which to settle a case for a period not exceeding three months from the date of entering the decree. By the act of 1895 the court was empowered to increase the period for settling a case to four months, instead of three. This act took effect on August 29, 1895, at which date the time for appealing from the decree in question, which was filed July 31st, had not expired, and the rights of the parties had not become fixed and determined, but the case was still pending in court, and might still have been appealed under the old law.

In Hauser v. Burbank, 117 Mich. 463, after considerable work had been done under a drain contract, the circuit court of Berrien county, in chancery, adjudged all the proceedings subsequent to the first order of determination to be void. The commissioner then proceeded anew to make application to the probate court for the appointment of commissioners to determine the necessity of taking certain lands for the purpose of the drain. This was opposed on the ground that the original application was a nullity, and failed' to give the commissioner jurisdiction. The probate judge so held. A new petition was then filed under the statute providing:

“Whenever any drain has been located, established and the work of construction completed or partially completed and any court has declared such proceeding to be illegal or void for any cause other than that such drain is unnecessary and not conducive to the public health, convenience or welfare, the commissioner shall, without unnecessary delay, proceed to relay and complete such drain under the provisions of this act.” 3 How. Stat. § 1740 g 3.

Mr. Justice Montgomery, in delivering the opinion of the court, said:

“ This provision would appear to be broad enough to warrant this proceeding if the statute is valid. We see no reason why this equitable provision should not be sustained. It is not a proceeding to declare valid and effectual proceedings already had. If it were, the power of the legislature would he limited to dispensing with nonessentials. Jurisdictional essentials could not be dispensed with. Cooley on Constitutional Limitations, (6th Ed.), p. 471. The rule is that the legislature may validate acts which it might previously have authorized, but can go no further. As the legislature could not provide in advance that the steps to acquire jurisdiction might be omitted, so it cannot, by direct enactment, after failure to comply with adjudicated prerequisites, declare the proceedings valid notwithstanding. But this is not an attempt to validate these proceedings without giving the parties concerned an opportunity to be heard.”

In the case of Judd v. Judd, 125 Mich. 228, it was held by this court that Act No. 230 of the Public Acts of 1899, giving the circuit court the power to punish as for contempt a person refusing to comply with an order for the payment of alimony, relates only to the remedy, and therefore applies to a defendant in a divorce suit wherein the decree for divorce and alimony was rendered prior to the passage of the act. Mr. Justice Moore, in delivering the opinion of the court, said:

“There can be no doubt that, if the terms of that act apply to the facts of this case, it is within the provisions of the act. It is claimed by the solicitor on the part of the defendant that, as the decree was entered before this act. was passed this case is not within its provisions. It is said that the statute is penal in its nature, and is not retrospective.” .

After quoting from the brief of the solicitor for the defendant, Mr. Justice Moore proceeds:

“It is true the legislature cannot interfere with vested rights; but is the act in question an interference with vested rights? It does not change the amount of the decree. It does not increase the liability of defendant. It simply provides a remedy for the collection of a decree which defendant is legally and morally bound to pay.”

So in State Savings Bank of Detroit v. Matthews, 123 Mich. 56, it was held that Act No. 200, Pub. Acts 1899, which amended the mortgage foreclosure law so as to authorize the circuit judge to decree a sale of the land after the lapse of six months, instead of one year, as theretofore provided, from the filing of the bill to foreclose, and allowed the mortgagor six months in which to redeem, affected the remedy only, and did not amount to an impairment of the obligation of existing contracts, and that "therefore, foreclosure decrees entered after the amendatory law became operative should conform to the provisions of the amendment, even though the suits in which they were rendered were commenced before the amendment took effect.

The case of Jamison v. Ramsey, 128 Mich. 315, was decided upon the same principle.

In the case of Henderson, etc., R. Co. v. Dickerson, 17 B. Mon. (Ky.) 173, we quote from the opinion of the court, as follows:

‘' The appellee obtained a judgment against the appellants for the injury he had sustained by the passage through his land of the railroad which they were constructing. The appellants, being dissatisfied with the judgment he had recovered against them, brought the case to this court to reverse it. Their appeal was, however, dismissed upon the ground that it was not authorized by their charter. Afterwards, by an act of the legislature passed at the session 1855-56 (1 Sess. Acts, chap. 366) the act incorporating the Henderson & Nashville Railroad Company was amended as follows: ,
“‘Where any assessmént of damages for the right of way has been or shall hereafter be made, it shall be lawful for either of the parties, the person whose land has been condemned, or the said company, to prosecute an appeal to the court of appeals, at any time within three years from the time such assessment was made, for the correction of any errors that may have been made to the prejudice of the party appealing.’
“Since the passage of this amendatory act, the appellants have again brought the case to this court; and the counsel for the appellee contends that the amended act, so far as it is intended to operate retrospectively, is unconstitutional and void.
“Asa general principle, retrospective legislation is undoubtedly impolitic; but with the wisdom or policy of that part of the act under consideration which operates retrospectively we have no concern. The question that we have to decide is whether that part of the act violates any of the provisions of the constitution of this State or of the United States.
“Retrospective legislation is not expressly prohibited by any of the provisions contained in either of the Constitutions. Where it affects or impairs the obligation of a contract, it is prohibited. But it does not have that effect in this case, because there was no contract existing between the parties. It is not an ex post facto law, for such laws relate exclusively to offenses against the public, and not to private wrongs and injuries. Calder v. Bull, 3 Dall. (U. S.) 386.
“No constitutional provision has been designated as prohibiting this species of legislation. But it is said that at the time of the passage of the amendatory act the judgment appealed from was, by the laws then in force, final and conclusive, and that, consequently, the appellee had a vested right to the amount thereof, of which he has been deprived by the legislation in question, which must for that reason be deemed to be unconstitutional.
“A vested right may be considered as the power to do certain actions or to possess certain things lawfully. In its latter aspect it is substantially a right of property, and as such is protected by those provisions in the Constitution which apply to such rights. But a right to property is a perfect and exclusive right, and a right, therefore, to recover the amount of a judgment, cannot be called a perfect or a vested right. Calder v. Bull, 3 Dall. (U. S.) 386, 394. The appellee has a vested right in his land. This right he cannot be divested of under the Constitution until just compensation has been made him for it. The judgment which he obtained did not divest him of his right to his property, nor did it enlarge his rights, nor invest him with any additional ones. He could not have a vested right to the land and also to the amount of the judgment. A vested right to the latter, in the proper sense of the term, could not accrue until the money was collected. He has a constitutional right to have just compensation made him before he shall be deprived of his property; but the legislature has the power to prescribe the mode in which such compensation shall be ascertained and determined in a fair and just manner. The amendatory act under consideration did not violate nor impair any vested right, but only furnished to either party the same opportunity which other litigants had to correct any errors that may have been committed by the court below. We do not, therefore, regard the act as unconstitutional.”

If this decision of the Kentucky court is not to be restricted to judgments for damages in proceedings for the condemnation of lands under the power of eminent domain, where the owner of the lands can only be deprived of his land by the payment of the judgment, then it would seem to be an authority directly in support of the petitioner’s contention. None of the other cases cited and above referred to does, however, in our opinion, sustain petitioner’s contention. In the case at bar the appeal had been dismissed for the reason that under a mandatory statute the right to appeal had been irrevocably lost, as the law existed, when this court entered its order dismissing such' appeal. The case was as much at an end as though no appeal had been taken at all, and the decree of the circuit court in chancery for Genesee county had become a final decree, entitling the complainant to all the rights thereby given. The appeal was not pending at the time the statute was passed, as in Beebe v. Birkett, and Danforth v. Groton Water Co., supra, so that the complainant had no final decree, and therefore was invested with none of its rights, but was wholly determined, and at an end, so far as the courts are able in the exercise of their orderly jurisdiction to put an end to litigation. The amendatory statute applies to all cases in which the petition shall be filed within one year after the dismissal of the appeal. It is manifest that in that interval of time important personal and property rights may have come into existence and vested by virtue of decrees which the effect of the reinstating of appeals in such cases may entirely change and destroy. We think the rights obtained under such decrees become vested rights which neither the legislature nor this court can impair. In our opinion, the great weight of authority supports our ruling in this regard.

In Hill v. Town of Sunderland, 3 Vt. 507, it was held that a statute allowing an appeal from decisions of road commissioners made before the passing of the statute was unconstitutional as respectsthe damages and costs awarded to individuals. The court, in its opinion, uses the following language:

“ Under this statute, which clearly undertakes to give the right in a case like the present, the town of Sunder-land took this appeal. And if the committee appointed by the county court should reverse the proceedings of the road commissioners, and if this statute is operative as applied to such case, instead of the appellees collecting and retaining the costs awarded them by the road commissioners the town of Sunderland must recover their costs against these appellees. The effect of the statute would then be to provide a course of proceedings by which a judgment, final and conclusive between the parties long before the statute had existence, might be reversed, and the opposite party recover costs. The very supposition that a statute could have such a deleterious effect to unsettle controversies long settled according to existing laws, exhibits the doctrine of nullification in a form by no means pleasant or useful. * * * As well might the legislature have passed a law at the same session granting new trials before new panels of jurors in all actions tried by jury for the year next preceding. The judgments in all those cases were no more final between the parties than was this judgment in favor of the appellees and against the town of Sunderland for their costs. You might say the same of all judgments rendered by single magistrates in any given year; so of all judgments rendered by any courts whatever; and that whether on trial or by default. The truth is, there must be an end of strife somewhere. And where will it be if not when a judgment is recovered which is final by the laws then existing ? What, indeed, makes a judgment final but its being declared so by.the laws then existing ? ”

This question came before the court of appeals of New York in the case of Germania Savings Bank v. Village of Suspension Bridge, 159 N. Y. 362. In the course of the opinion the court say:

“If the act under consideration does not operate retrospectively, the appeal is not regularly before us, and should be dismissed. If it does act retrospectively, it may deprive the defendant of a vested right in property, and to that extent is forbidden by the constitution. Const, art. 1, § 6. The legislature has control of remedies so far as they affect existing actions. This control includes the power to extend the time to appeal, or to grant a new right of appeal, provided some time yet remained, according to the law in force when the legislature acted, within which an appeal might have been taken. If, however, according to the law existing when the statute extending the time to appeal or granting a new right of appeal .was passed, the judgment had become final and unalterable, because no further right of appeal existed, then the judgment conferred a vested right, and was property, of which the owner could not be deprived by an act of the legislature, or otherwise than through due process of law. An appeal brought pursuant to a statute which authorizes an appeal after the time provided by.law had expired, or authorizes a further appeal after the only appeal authorized by law had been brought and finally decided, although it might result in the reversal of the judgment, and be in form a judicial proceeding, would not be what is known as ‘ due process of law,’ which is not satisfied by a judgment based upon an unconstitutional statute.
“ A judgment is a contract which is subject to interference by the courts so long as the right of appeal therefrom exists; but when the time within which an appeal may be brought has expired it ripens into an unchangeable contract, and becomes property, which can be disposed of or affected only by the act of the owner, or through the power of eminent domain. It is then beyond the reach of legislation affecting the remedy, because it has become an absolute right, which cannot be impaired by statute. Remedies may be modified even as to pending actions, but no action can be regarded as pending when it has expanded into a judgment, and the time to appeal has expired, or the only appeal allowed by law has been taken and decided. It is then no longer depending, because there is nothing further that can be done to affect the rights of the parties. As a claim against which the statute of limitations has fully run cannot be revived by legislation, so a right to appeal from a judgment which has passed through all the appellate courts that have jurisdiction to hear it cannot be conferred by legislation. According to the law in existence when the statute under consideration was passed, the judgment which we are now asked to review had become final in every sense, and was the property of the defendant, the same as the money in its treasury. The following authorities sustain the principle upon which these conclusions rest: Burch v. Newbury, 10 N. Y. 374, 394; Dunlop v. Edwards, 3 N. Y. 341; Benton v. Wickwire, 54 N. Y. 226; People v. Fowler, 55 N. Y. 675; New York, etc., R. Co. v. Van Horn, 57 N. Y. 473; Luhrs v. Eimer, 80 N. Y. 171; Wheeler v. Jackson, 137 U. S. 245; Piatt v. Vattier, 1 McLean (U. S.), 146; Bigelow v. Bemis, 2 Allen (Mass.), 496; Ryder v. Wilson’s Ex’rs, 41 N. J. Law, 9, 11; Davis v. Minor, 1 How. (Miss.) 183; Town of Bradford v. Brooks, 2 Aiken (Vt.), 284; Stipp v. Brown, 2 Ind. 647; Cooley on Constitutional Limitations (5th Ed.), 448, 455.”

To the same effect are Johnson v. Gebhauer, 159 Ind. 271; Gompf v. Wolfinger, 67 Ohio St. 144; Wieland v. Shillock, 24 Minn. 345, and Atkinson v. Dunlap, 50 Me. 111.

It follows that as to appeals which had been determined when the act took effect, the act is unconstitutional, and of no effect.

The petition is denied, without costs.

Moore, C. J., and Carpenter, McAlvay, Grant, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Carpenter, J.

text:
    HINTZ v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Injuries at Crossing — Contributory Negligence.
    'In an action against a railroad company for injuries to plaintiff at a crossing, evidence examined, and held, that the question of contributory negligence was for the jury.
    3. Same — Evidence—Sufficiency.
    In an action against a railroad company for injuries to plaintiff . at a crossing, evidence examined, and held, that the evidence was sufficient to warrant a finding that the injuries arose from a collision between defendant’s train and plaintiff’s vehicle rather than from plaintiff’s team running away.
    3. Trial — Instructions—Credibility of Witnesses.
    In an action against a railroad company for injuries, it was not error to refuse to charge that the jury had no right to disregard the testimony of any witness through caprice or without cause, merely because the witness was employed by the railroad company; there not having been anything to indicate that the jury would disregard the testimony of any witness, and the court having instructed that the testimony of each witness should receive such credit as it seemed to be entitled to under all the circumstances.
    Error to Saginaw; Snow, J.
    Submitted April 5, 1905.
    (Docket No. 18.)
    Decided June 29, 1905.
    Case by Anna Hintz against the Michigan Central Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Watts S. Humphrey, for appellant.

      Rowland Connor, for appellee.
   Carpenter, J.

It is the claim of plaintiff that as she and her husband were driving across defendant’s railroad on Davenport street, in the city of Saginaw, on the evening of September 8, 1898, a train of defendant, negligently operated, struck their wagon, thereby seriously injuring her and killing her husband. She brings this suit to recover compensation for said injuries. She obtained a verdict and judgment in the lower court. This case was before us on a former occasion, and is reported in 13& Mich. 305. At that time we reversed a judgment in plaintiff’s favor on the ground that the verdict was against the weight of testimony. Since then this case has been tried twice (on the first trial the jury disagreed), and a suit to recover damages for the death of plaintiff’s husband has also been tried. The latter trial — a trial of the same issue as that in this case — resulted in a verdict for the plaintiff, which was afterward set aside by the trial court. Defendant contends that a verdict should have been directed in its favor on the ground that the undisputed testimony proves that plaintiff was guilty of contributory negligence. Plaintiff testified that as she and her husband approached the crossing, and a short distance therefrom, they stopped, looked, and listened; and it is to be inferred from her testimony that they listened as they moved from this point to the place of collision. She also testifies that cars standing upon a siding of defendant obstructed their view of the approaching train. It is claimed by defendant that, notwithstanding this testimony, the surroundings of the crossing, as shown by the undisputed evidence, establish contributory negligence. I state that claim in the language of defendant’s counsel:

“All the witnesses, both for plaintiff and defendant, who testify at all upon these points, agree that, even if the siding were full of box cars, when a traveler gets to a point at least 30 feet west of the main track, and from there until he crosses the track, there is nothing to prevent his seeing and hearing an approaching train in time to take the necessary precautions for his safety, provided he looks and listens attentively. * * * The proof is positive and uncontradicted that when plaintiff and her husband reached the point where the box cars, if there were any upon the siding, no longer obstructed their view, they had a clear view of the track for a distance of over half a mile.”

We cannot agree with defendant’s counsel that the foregoing facts were proved by the undisputed testimony. On the contrary, witnesses for the plaintiff testified that, immediately after passing the box cars on the siding, one seated in a vehicle could see in the direction from which the train came only 175 or 200 feet, and that at that time his team would be within 15 or 20 feet of the track. If the jury believed this testimony — and they certainly had a right to believe it — after they passed the cars on the siding plaintiff and her husband had a very limited opportunity indeed to discover the approaching train. We cannot say — and this is precisely what defendant asks us to say — that the opportunity was such that failure to discover and avoid the train was negligence, as a matter of law. See Coffee v. Railroad Co., 139 Mich. 378; Guggenheim v. Railway Co., 66 Mich. 150. In reaching this conclusion, we have considered defendant’s claim that certain photographs introduced in evidence conclusively proved that the cars on the siding did not seriously obstruct plaintiff’s view of the approaching train. We do not think these photographs conclusively prove what is claimed for them. As shown by said photographs, that part of defendant’s siding nearest to the highway and to the main track was vacant. According to plaintiff’s testimony, this part of the siding was occupied by box cars which obstructed the view of the approaching train. The photographs, with these cars omitted, did not, therefore, according to plaintiff’s testimony, show the situation as it existed.

2. We are asked to set aside this verdict, as we did the verdict in the former trial, on the ground that it is against the weight of the testimony. We thought the weight of the testimony as shown by the former record proved that plaintiff’s injuries resulted, not from a collision with defendant’s train, but from a runaway which occurred after defendant’s train had passed Davenport street. On this occasion, and on this record, we are less confident of the correctness of that conclusion. Our confidence is somewhat lessened by the fact that since that time two juries, who are the ultimate triers of the issue of fact, have decided that plaintiff’s injuries did result from such collision. It may also be said that on the last trial plaintiff’s evidence was corroborated by the following testimony not introduced on the first trial, viz.: The testimony of disinterested witnesses tending to prove that the injury to plaintiff and her husband was reported to the police authorities earlier than it would have been reported had that injury resulted from a runaway occurring after the train had passed. There is also other corroborating testimony not contained in the former record. We decline, therefore, to again set aside the verdict as against the weight of testimony.

Complaint is made because the trial court did not give to the jury the following request preferred by defendant:

“ The jury are instructed that they have no right to disregard the testimony of any of defendant’s witnesses through caprice or without cause, merely for the reason that they are in the employ of a railroad company. The credibility of defendant’s witnesses should be judged by the jury precisely the same as they judge the credibility of other witnesses.”

This request might very properly have been given. See Gregory v. Railway, 138 Mich. 368. But it does not follow that it was error to refuse it. The record does not show that anything occurred to indicate to the trial judge that the jury would, and it does not show anything to indicate to us that the jury did, “disregard the testimony of any of defendant’s witnesses through caprice or without cause, merely for the reason that they are in the employ of a railroad company.” Moreover, the trial court charged the jury to “give such credit to the testimony of each witness as, under all the circumstances, such witnesses seem to be entitied to,” and that “it is your imperative duty to try this case and decide the same precisely the same as you would if it were a suit between two individuals, and the fact that the plaintiff is an individual and the defendant a corporation should make no difference.” Under these circumstances, the refusal of the trial judge to give the request under consideration was not error. He was justified in deciding that he had already sufficiently covered the subject, and that the request Would not be helpful to the jury. I think it may also be presumed that the defendant was not prejudiced by such refusal. See Shatter v. Railway, 139 Mich. 171.

Defendant’s counsel was denied the right, in cross-examining both plaintiff and her sister, to ask certain questions which related to their credibility as witnesses. We think the trial court has a discretion respecting such matters which was not abused in this case.

No other complaint demands consideration.

The judgment is affirmed.

McAlvay, Grant, Montgomery, and Hooker, JJ., concurred.


author: Montgomery, J.

text:
    MODERN MATCH CO. v. BALTIMORE & OHIO RAILROAD CO.
    1. Carriers — Carriage of Goods — Delivery to Carrier — Condition of Goods.
    In an action against a connecting carrier for damages arising from injuries to goods while in transit, evidence that they were in good condition when loaded on the car, and that defendant receipted for the car as in apparent good condition when it reached defendant’s road, tends to show that the goods were in good condition when received by defendant.
    2. Same — Negligence—Evidence—Question for Jury.
    In an action against a carrier for damages arising from injuries to goods while in transit, evidence examined, and held, that the question of the carrier’s negligence in handling the car in which they were loaded was for the jury.
    3. Same — Harmless Error.
    Where, in an action against a carrier for damages to matches transported, due to the rough handling of the car, causing the matches to ignite, and due to the use of water in excessive quantities in quenching the flames, the jury did not award damages due to the use of the water, an error in submitting the question of the carrier’s negligence in the use of water in putting out the fire was harmless.
    4. Same — Evidenoe—Records—Admissibility.
    The books of a railroad company, in which are entered, in the regular course of business, the movements of cars, are admissible to show that a car was delivered and receipted for at a transfer point in good condition.
    Error to Wayne; Frazer, J.
    Submitted April 6, 1905.
    (Docket No. 22.)
    Decided June 29, 1905.
    Case by the Modern Match Company, Limited, against the Baltimore & Ohio Railroad Company for damages to goods while in transit. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Clark, Jones & Bryant, for appellant.

      Maybury, Lucking, Emmons & Helfman, for appellee.
   Montgomery, J.

Under a bill of lading exempting the carrier from loss of damage by fire, plaintiff shipped a carload of matches over defendant’s road. The parties are agreed that this exemption by contract relieves the defendant from, liability as an insurer, but that it does not relieve defendant from liability for its negligent conduct. The case was submitted to the jury on this theory. The negligence alleged was of two classes: (1) Rough handling of the car, causing the matches to ignite; and (2) the unnecessary use of water in excessive quantities in quenching the flames. The defendant contends that there was no evidence of negligence in handling the car. The plaintiff’s testimony tended to show that the matches were packed in cartons which were air-tight, that these cartons were packed in pine boxes securely nailed, and that the matches could not have ignited unless these boxes were broken open, and the matches scattered. The evidence was that they were so found. There was testimony that after the car came into the defendant’s possession, and prior to reaching Cumberland, the two couplers at either end of the car were cracked so that they had to be replaced. It is contended that plaintiff failed to show that the matches were in good condition when received by defendant road. How is this to be shown? Plaintiff did show that they wero in good condition when loaded, and that tho car was receipted for in good condition when it reached defendant’s road. The testimony tending to establish that the car was in good condition when it reached defendant’s road, would also tend to show that the matches were in the same condition as when shipped. There was evidence which strongly tended to show that nothing short of very rough treatment would have broken the boxes and scattered the matches. It was open to the jury to find that the car was subjected to such treatment after it came into the hands of defendant company.

We do not overlook the contention that the evidence fails to show that the couplers were cracked after the car came into defendant’s possession, but we think the testimony that the car was receipted for • in good condition, when considered in connection with the testimony of the C., H. & D. agent that, if the car had not been in good condition, that fact would have been noted, was sufficient to present a question for the jury. The contention that there was not sufficient evidence of defendant’s negligence to carry the case to the jury must be overruled. This view is entertained in full recognition of the rule that the burden rested upon the plaintiff to show that defendant was negligent.

Complaint is made of the manner of submitting to the jury the question of defendant’s negligence in the use of water in putting out the fire when discovered, and it is further contended that that question should not have been submitted to the jury at all. It is manifest from the amount of the verdict that the jury found negligence in causing the fire, and did not award damages for negligence in the use of water in extinguishing the fire.

Objection to the records of the railroad agents showing shipment of the car in good condition was made. The case of Meyer v. Brown, 130 Mich. 449, answers this objection.

Error is assigned upon the argument of counsel. In view of the court’s charge, we find no prejudicial error committed in this regard. Nor do we think any prejudicial error has been pointed out in the judge’s charge.

The judgment is affirmed.

Carpenter, McAlvay, Grant, and Hooker, JJ., concurred.