author: McAlvay, J. Ostrander, J.

text:
    McCURDY v. COUNTY OF SHIAWASSEE.
    1. Counties — Boards of Supervisors — Power to Borrow Money — Notes—Liability.
    Boards of supervisors have no power to borrow money necessary to defray the current expenses of their counties, but the same must be raised by taxation.
    2. Same — Promissory Notes — Validity.
    Promissory notes given by the treasurer of a county, pursuant to a resolution of the board of supervisors assuming to authorize him to borrow money to defray the current expenses of the county, are unauthorized by law, and no recovery can be had against the county upon them.
    3. Same — Notes—Action —Pleading — Execution — Denial Under Oath.
    Where notes upon which suit was brought against a county were void because their execution was unauthorized by law, the defendant was not obliged to deny their execution under oath in order to defeat recovery upon them. Per MoAlvay, J., Grant, C. J., Blair and Moore, JJ.
    4. Same — Liability—Money Received — Implied Contract.
    No recovery oan be had against a county upon equitable grounds upon a count for money had and received unless the facts indicate that it would be inequitable to deny recovery and the case is one in which the general law, independent of express contract, imposes an obligation to do justice; nor will equitable reasons control against any well-settled rule of law, or against public policy. Per MoAlvay, J., Grant, C. J., Blair and Moore, JJ.
    5. Same — Contracts—Powers.
    All persons dealing with counties are bound to ascertain the limits of their authority fixed by statute or organic law, and are chargeable with knowledge of such limits. Per MoAlvay, J., Grant, C. J., Blair and Moore, JJ.
    6. Same — Liability—Money Borrowed.
    No recovery oan be had against a county upon equitable grounds on a count for money had and received for money borrowed by the board of supervisors without authority of law.

      Error to Shiawassee; Wisner, J., presiding.
    Submitted June 16, 1908.
    (Docket No 59.)
    Decided November 30, 1908.
    Assumpsit by John T. McCurdy against the county of Shiawassee on promissory notes. There was judgment for plaintiff, and defendant brings error.
    Reversed, and judgment entered for defendant.

      B. P. Hicks (T. E. Barkworth, of counsel), for appellant.

      Lyon & Moinet, for appellee.
   McAlvay, J.

Plaintiff, in an action of assumpsit on two certain promissory notes on all the common counts, brought suit in Shiawassee circuit court against defendant. The case was tried before the Honorable Charles H. Wisner, circuit judge, presiding, without a jury, the court finding the facts and conclusions of law in writing, as follows:

“ Finding of Facts.
“For more than 20 years last past it has been the habit and custom of Shiawassee county to borrow money from time to time, as in the case at bar, said moneys being received and used by the county in the payment of its ordinary expenses, and, previous to the date of the notes mentioned in the declaration herein, no question has ever been raised as to the validity of such loans. The moneys realized from such loans, with interest thereon, have been repaid by the county from time to time as the same matured. The proceedings of the board of supervisors were from time to time duly published, as the law requires. The plaintiff had knowledge of the facts aforesaid at the time he made the loan represented by the note herein mentioned, and he, as did also the county, acted in the utmbst good faith in the transactions. Since the notes in the case at bar became due, the question of issuing bonds for the purpose of paying the floating indebtedness of Shiawassee county, including the amount involved in this case, has three times been, submitted to the electors of said county, and on each of said occasions the proposition has been lost. At a regular meeting of the board of supervisors, held at the court-house of said Shiawassee county April 10, 1900, a quorum of said board being present, Supervisor Morrice offered the following resolution, and moved its adoption:
“ ‘ Whereas it is believed that the occasion may arise whereby it may be necessary to borrow money to meet the ordinary expenses of this county, be it therefore resolved by the board of supervisors of Shiawassee oounty that the treasurer of said county be authorized to borrow from time to time as the treasury demands such sums as may be necessary not to exceed eleven thousand dollars.’

“Such motion was carried by a yea and nay vote; total — yeas 23, nays none. The board was then composed of 24 members. Acting under authority of the foregoing resolution, Richard F. Kay, then treasurer of Shiawassee county, and so acting on April 13, 1900, borrowed from John T. McCurdy the sum of $5,000 for the use of Shiawassee county, giving a note therefor, which was taken up by the treasurer (and cannot now be found), and a renewal note given January 15,1901, which was as follows:

“ ‘$5,000.00 Corunna, Michigan, January 15, 1901. '
“ ‘July 15, A. D. 1901, for value received, I promise to pay to John T. McCurdy or bearer, at his office in the city of Corunna, the sum of five thousand dollars together with interest thereon at the rate of six per cent, per annum.
[Signed] “ ‘Richard F. Kay,
“ ‘County Treasurer.’
[Seal of the Treasurer of Shiawassee county, Michigan.]
“ Indorsed on the back:
“ * I request an extension of the within note for six months from date, July 15, 1901.
[Signed] “ ‘R. F. Kay.
“ ‘ I hereby extend said note six months.
[Signed] “ ‘John T. McCurdy.
“ ‘Interest paid in full January 15, 1902.
“ ‘Interest paid to March 15, 1902.
“ ‘Interest paid to October 1, 1902.’
“Indorsed stamped upon the face:
“ ‘Paid December 15,1902, treasurer’s office, Shiawassee county.’

‘ ‘ This note was paid by renewal note as follows (which is one of the notes sued upon):

“ ‘$5,000.00 Corunna, Michigan, December 15, 1902.
“ ‘One year after date for value received I promise to pay John T. McCurdy or bearer at his office in the city of Corunna the sum of five thousand dollars together with .interest thereon at the rate of six per cent, per annum from this date until paid. Authorized by the board of supervisors. This note is given as renewal of a note of like amount dated January 15, 1901.
[Signed] “ ‘ Richard F. Kay,
“ ‘ County Treasurer.’
[Seal of the Treasurer of Shiawassee County, Michigan.]
“ The interest was paid upon this note by the treasurer to December 15,1905, and indorsed upon the back thereof. In like manner as aforesaid, and on October 18, 1901, the said treasurer, and so acting, borrowed from said John T. McCurdy the further sum of $5,000 and gave a note therefor as follows:
“ ‘$5,000.00 ' Corunna, Michigan, October 18,1901.
‘ ‘ ‘ March 1,1902, for value received I promise to pay to John T. Mc-Curdy or bearer at his office in the city of Corunna the sum of five thousand dollars together with interest thereon at the rate of six per centum per annum from date until paid. Authorized by the board of supervisors.
[Signed] “ ‘ R. F. Kay,
“‘Shiawassee County Treasurer.’
“ Indorsed on the back:
“ ‘ Interest paid to March 1, 1902.
“ ‘ Interest paid to May 1, 1902.
“ ‘Interest paid to October 1,1902.’
“Stamped across the face:
“ ‘Paid December 15, 1902, treasurer’s office, Shiawassee county.’

“ The above note was paid by renewal note as follows (which is the second of the two notes herein sued upon):

“ ‘$5,000.00 Corunna, Michigan, December 15, 1902;
“ ‘One year after date for value received I promise to pay to John T. McCurdy or bearer at his office in the city of Corunna the sum of five thousand dollars together with interest thereon at the rate of six per cent, per annum from date until paid. Authorized by the board of supervisors. This note is given as renewal of a note of like amount dated October 18, 1901.
[Signed] “ ‘Richard F. Kay,
“ ‘ County Treasurer.’
[Seal of the Treasurer of Shiawassee county, Michigan.]

The interest was paid on this note by the treasurer to December 15, 1905, and indorsed thereon. The moneys borrowed from Mr. McCurdy, and for which the notes were given, were placed in the contingent fund of the county, and used to pay the ordinary running expenses of the county. October 17,1901, the board of supervisors at a regular meeting, with a quorum present, duly passed the following resolution:

“ ‘On motion of Supervisor Wert the county treasurer was authorized to borrow necessary funds not to exceed $10,000.’

“The payments of interest by the treasurer upon both the notes in the suit were by him reported to the board of supervisors, which reports were referred by the board to its regular committee on settlement with the county treasurer, by said committee returned to the board with the recommendation that such report be accepted and approved, and it was duly accepted and approved. The two loans, aggregating $10,000, were also in due course reported to the board by the treasurer, by the board referred to its regular committee on settlement with the county treasurer, and by said committee reported back to the board, with recommendation that such report be accepted and approved, and the same was so accepted and approved. Both Mr. McCurdy and the treasurer acted in good faith in the entire transaction, both understanding and believing that the same were perfectly legal and binding. Mr. McCurdy had no knowledge or notice whatsoever that the county of Shiawassee made any claim whatsoever that the statute of limitations had run, or was running, against any portion of his claim until he was notified by his attorney that such statute had been pleaded in this case. December 15, 1905, at the time of the last payments of interest on the two notes, plaintiff had such notes present with him at the office of the treasurer of Shiawassee county, and then asked the treasurer to pay the principal of the notes, which the treasurer refused to do, on the grounds that the county had no funds with which to pay the same, and also for the reason that he had been enjoined from paying the outstanding indebtedness of the county. On the trial of this cause the plaintiff produced the two notes in court, and surrendered them to the clerk, to be by him canceled, upon the rendition of judgment, either for plaintiff or for defendant. The plaintiff never appeared before the board of supervisors and asked for allowance of his claim, and never sought to have them audited or provide for the payment of the same. The injunction restraining the treasurer from paying any of the outstanding indebtedness of the county was granted, and in a cause to which the plaintiff herein was not a party.

“Opinion and Conclusions of Law.

“ It is the defendant’s first contention that the suit cannot be maintained against the county, for the reason that the claim was not presented for audit by the board of supervisors. This is not an unliquidated claim, but the amount thereof is fixed and determined by the action of the board of supervisors in authorizing the loan, in confirming and ratifying the action of the treasurer in making the loans, and the payment of interest thereon from time to time. There was nothing whatever for the board to pass upon. No question of discretion was open to the board, and it had repeatedly acknowledged, fixed, and determined the amount of the county’s indebtedness to the plaintiff. The law does not require the performance of an idle ceremony where substantial rights are in no way affected. The county either owed the plaintiff the full amount of his claim, or it owed him nothing. The board had already determined that it owed the claim, and when the debt had matured, and demand was made and payment refused for any reason, plaintiff had a right to sue and have the question of the county’s liability judicially determined. The right to bring an action in assumpsit declaring on the common counts by an individual against the county is sustained in Weston v. County of Luce, 102 Mich. 528, and cases cited. The writ of mandamus is not the proper remedy where an action of law will lie. Board of Sup’rs of Bay County v. Board of Sup’rs of Arenac Co., 111 Mich. 105, and cases cited.

“ While it is conceded that the county of Shiawassee received into its treasury $10,000 of the plaintiff’s money and mingled it with its contingent funds, yet it is claimed that in no event can he recover, not having shown that the money was actually paid out for the legitimate expenses of the county. I think it a sufficient answer to this claim to suggest that the law presumes that all public officers are honest and act within and do their duty, under the law; and, the" money having been shown to have reached the contingent fund of the county, the law presumes that it was used for proper purposes, or is still on hand. If the defendant seeks to set up the defense (if such would in fact be a defense) that the money was improperly withdrawn, and the county had no benefit from it, the burden shifts to the defendant to show such fact. Scott v. Detroit Young Men’s Society, 1 Doug. (Mich.) 119, 150; Peck v. Cavell, 16 Mich. 9; Hall v. Kellogg, 16 Mich. 135; Downing v. Rugar, 21 Wend. (N. Y.) 178, 184.

“ Our Supreme Court have held:

“ ‘A board of supervisors has no power, under 1 How. Stat. § 483, subds. 7, 10, to borrow the money necessary to defray the current expenses and charges of the county, but the same must be raised by taxation.’ Board of Sup’rs of Dickinson Co. v. Warren, 98 Mich. 144.

“Plaintiff’s counsel contend that the Supreme Court’s attention was not called to sections 2441 or 2484, subd. 16, 1 Comp. Laws; and that, had the court considered these sections and section 2493 (as to the use of the word ‘raise’), they would have necessarily reached a different conclusion. While the case above, cited was a mandamus proceeding brought to compel the chairman of the board of supervisors to execute bonds to consummate a loan for the purpose of raising money for current expenses, and was not such a case as that at bar, where a party’s money has actually been appropriated to the use of the county, both parties acting in good faith, yet the case covers the broad ground above stated, and I am not prepared to say that a consideration of the sections mentioned would have necessarily caused it to reach a different conclusion. I am therefore constrained to hold that, in so far as plaintiff’s right to recover rests upon a special contract (the two notes ), such contracts are void, and no recovery can be had upon them.

“ May recovery be had under the count for money had and received by the defendant for use of the plaintiff ?

‘An action for money had and received is an equitable action, and can be maintained in all cases for money which, in equity and good conscience, belongs to the plaintiff. It has been much extended in modern times, and is founded solely upon the equitable rights of the parties.’ Beardslee v. Horton, 3 Mich. 560.

“See, also, Moore v. Mandlebaum, 8 Mich. 434; Atkin. son v. Scott, 36 Mich. 18; Walker v. Conant, 65 Mich. 194.

“ ‘The obligation to do justice rests upon all persons, natural and artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.’ Marsh v. County of Fulton, 10 Wall. (U. S.) 676, 684.

“ The city of Port Huron, under the provisions of a statute authorizing it to do so, issued a bond to a railroad company, and took the railroad company’s bond in exchange therefor. Suit was brought on the city’s bond. Mr. Justice Cooley, writing the opinion of the court, held the act unconstitutional and the bond void, but used this language:

“ ‘ It is not claimed that the city has ever received from the railroad company any payment upon the bonds of the latter, either by way of principal or of interest. If it had, we should agree with counsel that it could not retain such payments and at the same time refuse to pay its own bonds.’ Thomas v. City of Port Huron, 27 Mich. 820.

“It is claimed that the language quoted from the two cases above cited was not necessary to a decision of the respective cases, and it is therefore of no binding force as authority. But it comes from such eminent authority, has such a ring of common sense, and points to the attainment of such an equitable and just result, that I believe I will pay some attention to it. In many similar cases the highest courts of the States and Nation have held, in effect, that the money of the individual cannot be appropriated to the use of municipal corporations and the true owner thereof be without remedy merely because the original contract, under which the money was obtained, was made without authority of law. City of Parkersburg v. Brown, 106 U. S. 487; Reed v. City of Plattsmouth, 107 U. S. 568; Paul v. City of Kenosha, 22 Wis. 266, 271, 273; Nelson v. Mayor, etc., of New York, 63 N. Y. 535, 544, 545; Louisiana v. Wood, 102 U. S. 294; Hitchcock v. City of Galveston, 96 U. S. 341; Chapman v. County of Douglas, 107 U. S. 348; Logan County Nat. Bank v. Townsend, 139 U. S. 67; 2 Dillon on Municipal Corporations (4th Ed.) § 938, and cases cited. Prom the foregoing I reach the conclusion that the plaintiff is entitled to recovery upon the equitable count for money had and received. What is the measure of his recovery ? It is the claim of the defendant that in any event plaintiff can recover but the sum of $5,000; that the first loan of that amount is barred by the statute of limitations, and when the notes are held void the payments of interest cannot be held to keep the debt alive. The county by its board of supervisors and treasurer treated the notes as valid, subsisting claims against the county, paid interest thereon, reported to the people of Shiawassee county through the published reports of the board the entire situation from time to time, and did all that any debtor could do to assure his creditor that his investment was alive and safe. Can.the county now say, ‘Your day is past; we have lulled you into security and your money is now ours ’ ? If such be the rule, I am very glad indeed that the tender-hearted fathers of the law decided to give a corporation no soul that might suffer in the days that are to come. In my judgment the case of Bogart v. Township of Lamotte, 79 Mich. 294, does not rule the proposition under all the facts in this case. I believe the defendant is estopped from interposing the defense of the statute of limitations, and that the claim was renewed, from time to time, as interest was paid or renewal notes given, and the statute did not begin to run finally until December 15, 1905. Plaintiff is entitled to recover the sum of $10,000, with interest at 5 per cent, from December 15, 1905, and judgment will be entered as of February 14,1908, for the sum of $11,081.95, with costs to be taxed, the same to be collected as in case of judgment against counties.”

To these findings of fact and conclusions of law defendant duly excepted, and assigns error thereon. Three general propositions are advanced and discussed on the part of the defendant in its brief and argument to show that the judgment appealed from is erroneous.

(1) The claim should have been presented to and acted upon by the board of supervisors.

(2) Defendant is not liable, either upon the notes or upon an implied contract.

(3) The statute of limitations bars one-half of the claim.

The important, and, we think, the determining, question is whether defendant is liable under the facts as found in the case. Plaintiff’s case shows that the money was loaned by plaintiff to defendant, under authority of a resolution of the board of supervisors, which appears in the finding of facts, the purpose being “ to meet the ordinary expenses of the county,” and that the proposition was not submitted to a vote to raise the same by taxation. In a case where a construction of the sections of the statute defining the powers of boards of supervisors was under consideration, this court held that a board of supervisors has no power to borrow money necessary to defray the current expenses and charges of the county, but the same must be raised by taxation. Board of Sup’rs of Dickinson Co. v. Warren, 98 Mich. 144. The statutory provisions considered are contained in section 2484, 1 Comp. Laws. It appearing that the notes were given without authority of law, the trial court correctly held that under this decision the notes were void, and no recovery could be had upon them. The evidence in the case was all introduced by plaintiff. The case as made discloses that the court was correct in holding the notes void, and there is therefore no force in plaintiff’s contention before this court that a recovery may be had on the notes, for the reason defendant had not denied their execution under oath. Freeman v. Ellison, 37 Mich. 459. If liability attaches to the county in this case, it will be under the count for money had and received contained in plaintiff’s declaration, and upon purely equitable grounds. The liability must be imposed by implication. This was the view taken by the learned circuit judge, and upon which he based his reasoning in rendering a judgment for plaintiff. Plaintiff cannot recover unless the facts indicate that it would be inequitable to deny recovery. The case must be one where the general law, independent of express contract, imposes an obligation to do justice. Nor will equitable reasons control against any well-settled rule of law, or against public policy. A county has no power to borrow money in the manner and for the purposes proposed in the case at bar, unless the same is granted by statute. No power having been granted by statute, none will be implied. 11 Cyc. p. 502, and cases cited. All persons dealing with counties are bound to ascertain the limits of their authority fixed by statute or organic law, and are chargeable with knowledge of such limits. 11 Cyc. p. 468, and cases cited. This court has held that the doctrine of implied liability as upon implied contracts has no application to cases where the liability can only be created in a certain way. McBrian v. City of Grand Rapids, 56 Mich. 95, and cases cited and digested. The conscience of the court is appealed to in this equitable action, and it is argued that exact justice demands the return of money to plaintiff which the county has received. That the case is a hard one is apparent, but that hard cases make bad law has become a proverb with the courts. The proposition contended for should have, and does have, the hearty support of the courts, subject to certain limitations or restrictions heretofore stated.

The knowledge of plaintiff of the custom of 20 years, by the officers of this county, to enter into like transactions, is urged as showing good faith on his part, as a factor weighing in his favor in this action. The record shows that other cases like the one at bar are pending, and that in this irregular way large sums of money have been received by the county. The court below finds that this has been the custom for 20 years, and we hold that such transactions have all been without authority of law. That a custom of this nature has existed for 20 years does not appeal very strongly to the court as a reason for granting equitable relief. There is no proof in the record that the money in this case has been used by the county. The finding of fact to the effect that it had been used was based, as the court states, upon his presumption. We do not think such presumption was warranted. It was not supported by the proofs. As we view the case, however, we think the point not of material significance.

The intimation is strong from the pleadings that these loans were not made for the purposes set forth in the resolutions. What this court has said in a former case relative to the dangers of holding municipalities liable in dealings where the. clear provisions of the law have been ignored is well illustrated, in the case at bar, in the reckless conduct of the officers of the defendant. The court said:

“We have had occasion several times to hold that all persons dealing with public corporations are bound to make their contracts according to law, and will not be protected unless they do so. This case illustrates the necessity of such a rule. The doctrine was applied, under the statute applying to townships, in Mackenzie v. Baraga Township Treasurer, 39 Mich. 554. It had already been held, in City of Detroit v. Paving Co., 36 Mich. 335, and in City of Detroit v. Robinson, 38 Mich. 108, that there could be no liability against a municipality upon contracts not made in conformity with the statutes. And in Niles Waterworks v. Mayor, etc., of Niles, 59 Mich. 311, the law was laid down strictly on the same principles. It is the only rule which can be relied on to prevent fraud and collusion. Contractors have ample means to protect themselves; and, if a township can be held on implied contract, or estopped by the acts of its officers, when there is no valid contract, it would enable these persons to disregard the law entirely, and collifcde with their friends to do indirectly what, if directly done, would be a plain illegality.” Mackey v. Township of Columbus, 71 Mich. 227.

In cases where equitable reasons are urged for the purpose of placing liability upon a municipality, consideration of the rights and interests of those most seriously interested must not be lost sight of. The taxpayer is entitled to the protection of all constitutional and statutory restrictions. In the aggregate he is the public for whose benefit the municipality exists, and which bears all the burdens put upon it, but which is not consulted when such burdens, as in this case, are assumed.

In the case at bar the record shows that three times the electors have at special elections refused to vote to bond the .county to pay floating indebtedness, which includes the amount in suit. Whether this was done before or after the notes in suit became due is immaterial. In the only constitutional way provided these electors have repudiated the illegal acts of the officers of the county. If this court should undertake to say that this indebtedness, admittedly illegal, must be paid by this county, it will practically declare the restrictions above mentioned to be inoperative, and subject the treasuries of all the municipalities of this State to the rapacity of designing and dishonest officials, leaving no protection whatever against recklessness, extravagance, crime, and bankruptcy. Such holding would be contrary to the spirit of previous decisions of this court, and against public policy. There is a line of authorities, Federal and State, including a Michigan case (Thomas v. City of Port Huron, 27 Mich. 320), which are relied upon by the trial court as warranting a recovery, which we think can be distinguished from the case at bar. The case of Thomas v. City of Port Huron does not decide the question in this case. What was said is admitted to be dictum. The question before us was not passed upon. The case was held to be controlled by People v. Township Board of Salem, 20 Mich. 452, and People v. State Treasurer, 23 Mich. 499. The court refused to apply the doctrine of implied liability, as also it did later in Highway Commissioners of Sault Ste. Marie v. Van Busan, 40 Mich. 429. In all these cases, except Thomas v. City of Port Huron, the thing done had been, to a certain extent, authorized, or something had been sold, or property was exchanged by the municipality. In the case at bar an ordinary loan of money was made to the county. It was without any authority of law. Of the illegality of the transaction and the disability of defendant, the plaintiff is presumed to have had knowledge. There is nothing in the transaction which amounts to a conversion of property, or a holding out of something for sale of implied value, or any conduct amounting to actual or constructive fraud, deceit, or misrepresentation.

The facts in this case do not indicate that it would be inequitable to deny relief; nor is this a case where the general law, independent of the special contracts, imposes an obligation to do justice, and it would clearly be against public policy to allow a recovery. Our conclusion, therefore, is that the court was in error in holding, as a conclusion of law, defendant under the equitable count was liable for money had and received. This conclusion is in harmony with former decisions of this court. See Bogart v. Township of Lamotte, 79 Mich. 294; Spitzer v. Village of Blanchard, 82 Mich. 234; Affeld v. City of Detroit, 112 Mich. 560; McBrian v. City of Grand Rapids, supra; Mackey v. Township of Columbus, supra; City of Detroit v. Paving Co., 36 Mich. 335; City of Detroit v. Robinson, 38 Mich. 108.

The first and third contentions of plaintiff need not be considered.

The judgment is reversed, and no new trial granted.

Grant, C. J., and Blair and Moore, JJ., concurred.

Ostrander, J.

(concurring). I do not find in the record any evidence of bad faith upon the part of the plaintiff, the board of supervisors, or the treasurer who issued to the plaintiff the notes of the county. It is not an unusual thing for boards of supervisors to borrow money in anticipation of taxes, and to authorize the giving of notes of the county as evidence of the loans so made. Usually such temporary loans are paid as fast as taxes are collected. If it had appeared in the case of Board of Sup’rs of Dickinson Co. v. Warren, 98 Mich. 144, that, instead of being about to bond the county for a large sum, the supervisors had voted the necessary moneys, and proposed to borrow only until such time as the taxes could be received, I think a different question would have been presented than the one decided. In any event, however, the decision of that case goes upon the ground, not merely that the county had no power given it to borrow money to pay current expenses, but that a proper construction of the statute indicated that the exercise of such power is prohibited. In the case at bar it does not appear that the loans were temporary or in anticipation merely of the collection of taxes already voted. The reasonable inference is rather that the loan was not merely temporary, but was such a one as this court held, in the case referred to, the supervisors had no power to make. Nor does it appear for what purposes the money was disbursed. I think, therefore, that the only debatable question presented is whether plaintiff may recover upon the count for moneys had and received — so much of his money as was received by the county treasurer within the period of the statute of limitations.

If we eliminate the theory of a recovery upon the original contracts, or upon a renewal or extension thereof, we must also eliminate the idea that the county has, by any acknowledgment of indebtedness, waived the provisions and operation of the statute of limitations. It is undisputed that as to one-half the sum claimed it was not received into the treasury of the county within six years before suit was begun. A careful examination of cases adjudicated by the Federal courts, and by the courts of this and other States, has convinced me, contrary to my first impressions, that plaintiff cannot be permitted to recover without setting aside rules as salutary as they are well established. Counties have no inherent general power to borrow money. They have no power to borrow money to pay current expenses. For such expenses they are remitted to the exercise of the power to tax. If, notwithstanding this want of power, money is borrowed to pay current expenses, it is of small consequence to deny the right of the lender to recover upon the express contract while raising an implied and enforceable duty on the part of the municipality to pay. The board of supervisors, having no authority to make the loan, have no authority to ratify the making of it, or to create a liability of the county by applying the money to the payment of expenses or to any other use. The people of the county have declined to ratify the transaction, in so far as a refusal to vote an issue of bonds for that purpose can be so considered. The rules which should govern the decision of the case are also well stated, with abundant references to authority, in the opinions in Agawam Nat. Bank v. Inhabitants of South Hadley, 128 Mass. 503, in Wells v. Town of Salina, 119 N. Y. 280 (7 L. R. A. 759), and in McDonald v. Mayor, etc., of New York, 68 N. Y. 23. See, also, Bogart v. Township of Lamotte, 79 Mich. 294. In Coit v. City of Grand Rapids, 115 Mich. 493, a case supposed to be favorable to the position of plaintiff, the court uses this pertinent language:

“If we conceded the premises assumed by defendant, viz., that the contract was wholly ultra vires, we might be compelled to reach the conclusion that the city could not be estopped to set up its invalidity.”

A distinction is drawn in argument, and there áre adjudicated cases which appear to recognize it, between an obligation implied by law to do what the illegal contract requires to be done and a duty to restore — give back— whatever has been received in pursuance of the original illegal contract; between the contractor an implied obligation to perform and the legal obligation to refrain from disaffirming the contract while keeping the benefit derived from it. There also are decided cases which are supposed to go upon the idea that a want of power to do a particular thing is to be distinguished from a prohibition of, or an express denial of the right to, the exercise of the power. The opinions in Argenti v. City of San Francisco, 16 Cal. 255; Allen v. Intendant, etc., of La Fayette, 89 Ala. 641 (9 L. R. A. 497), Hitchcock v. City of Galveston, 96 U. S. 341, and many others, among them some of our own decisions, contain statements which seem to support one or both of these propositions, while in Paul v. City of Kenosha, 22 Wis. 266, and in some other decisions, the theory of a total failure of consideration is made to support a recovery. In that case the city issued and sold its bonds, which were void for want of power to issue them. They were a part of an issue of bonds in aid of the construction of a railroad, were originally delivered to the railroad company, but in some manner afterwards came into the possession and ownership of the city, which sold them as the property of the city to the plaintiff, who paid into the city treasury cash or its equivalent therefor. In Hitchcock v. City of Galveston it was determined that the city had the power to make and to pay for the particular improvements and so to contract therefor. What it had no power to do was to issue bonds in payment of the contract price, and it was held that, while specific performance of its engagement to do the un-: authorized thing would not be enforced, the city was l liable upon its contract. So in Argenti v. City of San Francisco, it was found that the city had authority to order the improvements which were made, and in the opinion of Chief Justice Field, rendered upon an application for rehearing, he places his concurrence in the judgment theretofore rendered expressly upon the ground that the contracts made were valid. Page 282. He concludes his opinion thus:

“I admit that there are numerous authorities which conflict with these views. Indeed, upon the general subject of the extent of the liability of a municipal corporation, the authorities are a tangled web of contradictions, and it is difficult to assert any proposition with respect to the same for which adjudications on both sides may not be cited. As a general rule, undoubtedly the city is only liable upon express contracts authorized by ordinance. The exceptions relate to liabilities from the use of money or other property, which does not belong to her, and to liabilities springing from neglect of duties imposed by the charter, from which injuries to parties are produced. There are limitations even to these exceptions in many instances, as where the property or money is received in disregard of positive prohibitions; as, for example, she would not be liable for moneys received upon the issuance of bills of credit, as this would be, in effect, to support a proceeding in direct contravention of the inhibition of the charter. Other limitations may exist, but it is unnecessary to pursue the matter any further.”

In Allen v. Intendant, etc., of La Fayette, a bill was filed by the taxpayers to restrain the payment of warrants given for borrowed money. It appeared that the town purchased a schoolhouse and land, for which it took a quitclaim deed, paying a small part of the purchase price from funds on hand, and borrowing the remainder from one to whom warrants were issued. It was determined, first of all, that the town had power to own and maintain public schools. It is found, also, affirming previous rulings of the court, that the power to borrow money is not incident to municipal corporations, and that if it exists, it must be by force of express legislative enactment, or by force of the bestowing of other powers, coupled with the imposition of duties incapable of exercise or performance without borrowing money. It is further determined that the officers of the town had no authority to borrow the particular money or to issue the warrants which were drawn and delivered. But a legal liability is asserted to repay the money borrowed; it having been used for authorized corporate purposes. The court, in reaching this conclusion, relies upon Gause v. City of Clarksville, 5 Dill. (U. S.) 180, which in turn affirms Wood v. City of Louisiana 5 Dill. (U. S.) 122. The opinion thus concludes :

4 ‘ We cannot perceive that the doctrine is open to objection on the ground of its supposed evil tendencies and consequences. It is shorn of all perilous possibilities by the limitations which hedge it about. It cannot obtain where the charter, or other statute operating in the premises, contains a prohibition of the power to borrow money, since a promise cannot be implied in the face of express law, but only in cases where, as in this one, there is merely a defect of power. 1 Dillon on Municipal Corporations (4th Ed.), § 451. It involves no danger of the municipality being charged with moneys which have been appropriated by its officers to their own use, or even to the use of the corporation, except in the manner, to the extent, and for the purposes authorized by the charter, as in either case the implication will not arise, and corporate liability will not attach. None of the evils which are justly supposed to result from the power to borrow money, which are not also attendant upon the capacity to incur debts, and which therefore have led to a denial of the former power, unless expressly, or by necessary intendment, conferred, while the latter is admitted as incident to ordinary municipal functions, can possibly supervene, where the money which has been borrowed has also been honestly devoted to expenditures for which the corporate authorities might have incurred debt; and to declare liability in the one instance, and deny it in the other, on the ground of evils which pertain alike to both, would be an anomaly to which we cannot subscribe. Indeed we apprehend that the power to create debts may be productive of more evils in municipal government than could, in the nature of things, result from the doctrine we are considering, when would-be lenders of money come to understand that the return of their proverbially timid capital depends, not upon the contracts they make, but on the faithful application of the loan to certain specific objects, by persons over whom they have no control.
“From every point of view, therefore, we feel safe in affirming that, under the case presented by the bill and answer — there really being no dispute about the facts in this regard — Mrs. Frederick has a valid demand against the town of La Fayette for the amount of money advanced by her, not because the corporate authorities agreed to repay it to her, but because they have legitimately used it for the benefit of the town, in a way, and to an end fully authorized by its charter. The warrants she holds are not enforceable as such, yet they truly represent the amount of her claim; and, in the payment of that amount, the corporate authorities would do no more than equity and justice require of them. It would be an idle and useless thing, therefore, to enjoin their payment; and exercising that discretion which may always be indulged with reference to the grant or refusal of an injunction, when substantial equity does not demand the issuance of the writ, we decline to reinstate it in this case.”

Cases may be found where a like result has been arrived at by holding that the plaintiff, lender, was subrogated to the rights of the debtor, who had been paid with the borrowed money. If we were to admit the force of the reasoning employed by the Alabama court, and if the point for decision was now first presented to this court, it is manifest that plaintiff has not made a like case upon the facts. The case might be rested here. But the point presented, while important, is not novel. And if it appeared that the money borrowed from the plaintiff was lawfully disbursed for current expenses of the county, the decision must still be against the plaintiff. Some statements of the judges, unnecessary to the decision, aside the decisions of this court, have, with a single exception, recognized and enforced rules which deny, as between the municipality and an individual dealing with it, any remedy for municipal default in cases where the power to deal at all is lacking, as well as in cases where express statutory restrictions upon the manner of dealing have been ignored. The exception is found in Peterson v. City of Ionia, 152 Mich. 678, which is cited and relied upon by plaintiff. While the precise question involved in that case cannot be said to have been decided in McBrian v. City of Grand Rapids, 56 Mich. 95, the legal theory, according to which the case was determined, is precisely opposed to the one adopted in deciding Ely v. City of Grand Rapids, 84 Mich. 336, and Auditor General v. Stoddard, 147 Mich. 329. Both of these cases affirm that the charter requirement that certain public work shall be let to the lowest bidder is mandatory, and that a contract, made without complying with the charter provision, is void. In East Jordan Lumber Co. v. Village of East Jordan, 100 Mich. 201, 205, the rule is stated in this way:

“If, on the other hand, the contract be one which it was within the power of the corporation to make, the fact that informalities may be found in the proceedings does not prevent recovery, in a case where, as in the present, the , municipal corporation has had the benefit of performance by the other contracting party, and has from time to time ratified the contract, and audited the bills presented. * * * This rule is, of course, not applicable where express statutory restrictions have been ignored in making the original contract.”

That, when a municipality is forbidden to execute public works, except under contract with the lowest bidder, there can be no recovery, as upon an implied contract, for work done for the benefit of the municipality, but not actually contracted for, and that, to state the rule differently, a promise will not be implied, as against a municipal corporation, where it cannot contract expressly, is affirmed in City of Detroit v. Paving Co., 36 Mich. 335; City of Detroit v. Robinson, 38 Mich. 108; Niles Water Works v. Mayor, etc., of Niles, 59 Mich. 311; Mackey v. Township of Columbus, 71 Mich. 227; Spitzer v. Village of Blanchard, 82 Mich. 234; East Jordan Lumber Co. v. Village of East Jordan, 100 Mich. 201; and in other decisions of this court. The decision in Peterson v. City of Ionia, clearly lays down an opposed rule, and has the effect of overruling, without expressly so announcing, a large number of previous decisions. I think Peterson v. City of Ionia should be now expressly overruled. The case at bar does not present the question whether a municipal corporation may not be required to restore to the owner specific property which it has attempted without authority to buy or take, or whether an action lies for money paid by mistake, or upon a consideration which fails, or which was obtained through imposition. It is apparent, however, that in such cases a remedy might be afforded without in any way affirming the exercise by the municipality of a power it did not possess, and without rendering nugatory the express provisions of a statute. There is here neither failure of consideration, imposition, nor mistake. An express contract was voluntarily made. Recovery upon the express contract being denied, it is sought to recover the money upon an implied contract, as money had and received for the use and benefit of the lender. Except for the operation of the statute of limitations, the effect, in either case, would be the same, and the consequences those which the decisions of this court which have been referred to seek to avert.

I concur in reversing the judgment of the circuit court. Appellant will recover costs of both courts.

Montgomery and Hooker, JJ., concurred with Ostrander, J.


source: Caselaw Access Project

author: Grant, C. J. Moore, J.

license: Public Domain

text:
    PEOPLE v. OWEN.
    1. Criminal Law — Evidence—Confessions—Propriety of Taking Under Oath.
    The practice of taking confessions before a notary and under oath is not to be commended.
    3.Homicide — Murderous Assault — Evidence — Confessions — Admission — Nonprejudicial Error.
    Where, in a prosecution for assault with intent to murder accused’s wife, the circumstances surrounding the assault are not in dispute and leave no doubt of accused’s intent, the erroneous admission of a confession, in which the only harmful statement is that he intended to kill his wife and then himself, is not prejudicial, since it supports the only theory upon which a defense was, or could be, made, i. e., insanity. Moore and MoAlvay, JJ., dissenting.
    3. Criminal Law — Evidence—Admission—Harmless Error.
    A conviction should not be reversed for the. erroneous admission of testimony without which it is perfectly evident that a verdict of guilty should have been rendered.
    4. Same — Evidence—Confessions—Admissibility.
    A confession was not rendered inadmissible by the fact that it was made to and in the presence of police officers, there having been no threats, promises, or circumstances amounting to duress attending its making.
    5. Same — Confessions — Under Oath —Self Incrimination — Constitutional Law.
    The fact that a confession, made immediately after accused’s arrest and before any complaint had been made against him, was made under oath, did not change it from a confession into a deposition in a judicial proceeding, prohibited by section 33 of article 6 of the Constitution, and thereby render it inadmissible. Moore and MoAlvay, JJ., dissenting.
    6. Homicide — Murderous Assault — Instructions — Manslaughter-Propriety.
    Where, in a prosecution for assault with intent to kill and murder accused’s wife, it was undisputed that accused lay in wait for his victim, seized her without warning, and with a deadly weapon nearly ended her life, and the only defense attempted was insanity, there was no occasion for an instruction on manslaughter, and the refusal of such an instruction was not error.
    7. Same — Evidence—Previous Attempts and Threats.
    That accused previously went to the house of his wife’s parents with the expectation of finding her there and attacked them with a deadly weapon, and his previous threats against his wife and child, were competent.
    Error to the recorder’s court of Detroit; Connolly, J.
    Submitted June 12, 1908.
    (Docket No. 116.)
    Decided November 30, 1908.
    Charles. Owen was convicted of an assault with intent to commit the crime of murder, and sentenced to imprisonment for life in the State prison at Marquette.
    Affirmed.

      Louis H. Wolfe {Fred H. Aldrich, of counsel), .for appellant.

      George B. Yerkes, Prosecuting Attorney, and Frank D. Eaman, Assistant Prosecuting Attorney, for the people.
    The respondent was convicted of the crime of assault with intent to kill and murder his wife. The facts are undisputed and are admitted. His wife had left him, and had filed a bill for a divorce. He had previously assaulted her, and had made threats to kill her. She was living with her mother. She and her mother were returning from the office of her solicitor, and were on their way to the police court to obtain a warrant for the respondent’s arrest. He lay in wait for her behind a pile of bricks. As she passed, he jumped from his hiding place, seized her, and with a razor cut her throat from ear to ear nearly severing the windpipe. A deputy sheriff and others were passing at the time. They immediately seized him before he accomplished his purpose to kill his wife, and the deputy sheriff at once took him to police headquarters, a short distance away, and he was there immediately questioned by the chief detective, and made a statement under oath, which was introduced in evidence upon the trial. A notary public was called in who administered the oath, took down his testimony, and respondent signed it. He made no objection, when asked, to making a statement or to being sworn. On the night previous he had gone to his mother-in-law’s, where his wife and little child were then living, and made an assault upon his father and mother-in-law. He was then armed with a revolver, which they succeeded in wresting from him. He then threatened to kill the whole family. Mrs. Owen came in shortly after the struggle was over, and found her mother with her clothes badly torn and covered with blood.
   Grant, C. J.

{after stating the facts). 1. Was this written and sworn confession admissible in evidence? is the principal question in the case. No threats were made; no inducements held out. There was no duress, unless the mere fact that he was under arrest and in the presence of some police officers constitutes duress. There were no facts for him to conceal. The ceremony of taking his statement was a useless one, and the practice is not to be commended. His answers were intelligent, and bear no evidence of having been made under duress or any misapprehension of his rights or reluctance to answer. The only language in the statement which can possibly be construed as prejudicial is that he said he intended to kill his wife and then himself. All the circumstances surrounding the assault, the instrument used, the wound inflicted, and the manner of inflicting it, leave no possible doubt of his intent in this regard. The sole ground upon which he could be acquitted of the crime charged, or of murder, if death had resulted, was insanity, the defense interposed by counsel. Certainly the statement that he intended to kill himself after killing his wife could not have prejudiced the jury. On the contrary, the intent to take one’s own lifeis evidenceof insanity as was admitted by counsel for the prisoner upon the argument. Under these circumstances, if it were error to admit this statement, it is, in my judgment, clearly an error without prejudice. In this regard I concur in the holding of the supreme court of Illinois in Hoge v. People, 117 Ill. 36:

“ Where the court can see from the record that the evidence is so overwhelmingly against a defendant tried for a criminal offense, that had the jury been instructed correctly, they must still have found against him, it would not reverse a judgment of conviction for a mere error of instruction.”

For the same reason a conviction should not be reversed for admitting testimony without which it is perfectly evident that a verdict of guilty should have been rendered.

Was the confession admissible ? It was not rendered inadmissible by the fact that it was made to and in the presence of police officers. Only when confessions are obtained by threats or promises, or under circumstances which legally constitute duress are they inadmissible. Otherwise they are' admissible for the consideration of the jury under proper instructions by the court. This rule is sustained by an unbroken line of authorities. We, therefore, refrain from discussing it, and refer only to some authorities. This court has so uniformly held. People v. Simpson, 48 Mich. 474; People v. Barker, 60 Mich. 299; People v. Gastro, 75 Mich. 127; People v. McCullough, 81 Mich. 25; People v. Flynn, 96 Mich. 276; People v. Warner, 104 Mich. 337.

“ In this country the orthodox English and Irish doctrine, declining to consider the mere fact of arrest as sufficient to exclude a confession, has been universally accepted.” 1 Wigmore on Evidence, § 851.
“ The modern rule that the mere fact of accused person’s being under arrest at the time of making the confession does not exclude it seems generally conceded.” 1 Greenleaf on Evidence (16th Ed.), p. 360.
“A confession voluntarily made, without the influence of hope or fear, is admissible in evidence, although it was made by a party under arrest, and to the person having him in custody at the time. ” 6 Am. St. Rep. 243, note, and authorities there cited.

There is not even a scintilla of evidence in this case to justify the conclusion, either by a court or jury, that this confession was involuntarily made, or that respondent was unwilling to make it, or that any inducement whatever was held out by the officers for him to make it. If it became inadmissible, it became so by the bare fact that it was made under oath.

The fact that the confession was made under oath does not change it from a confession into a deposition in a judicial proceeding, prohibited by section 32 of article 6 of the Constitution. Respondent was no more a witness against himself by making a confession under oath without objection, than he would have been by making a confession without an oath. Respondent was not compelled to be a witness in “any criminal case against himself.” No case was pending. No complaint had been made. He had not been charged with any crime. True he had been caught “red-handed ” in attempting to take the life of a human being, and was promptly arrested. Within a few moments thereafter he made the confession of an act5 the commission of which was not in dispute. The administering of the oath was a circumstance which the jury might consider in connection with the other circumstances in determining what effect they would give to the confession. To me it is entirely plain that the constitutional provision does not include statements or confessions by one suspected of, or charged with, the crime, when the confession is not made in the course of a judicial procedure. Had a complaint been made, and the respondent brought before an examining magistrate, and had he then been asked under oath the questions the respondent in this case was asked, it might well be held to be within the constitutional prohibition. The authorities recognize this distinction. That a confession under oath is admissible is held by the following authorities: Com. v. Wesley, 166 Mass. 248; Schoeffler v. State, 3 Wis. 823; Com. v. Clark, 130 Pa. 641; State v. Legg, 59 W. Va. 315 (3 L. R. A. [N. S. ] 1152); United States v. Brown, 40 Fed. 457.

I quote with approval the language of Com. v. Clark, 130 Pa., at pages 650, 651:

“The remaining specification refers to the admission of the defendant’s confession or statement. We do not think the objections that it was obtained by duress, and was sworn to, are of much importance. The testimony upon this point is given in the commonwealth’s paper book, and it shows very conclusively that the statement — it was not a confession — was made of his own free will, and without either threats, or the promise of reward or benefit in the future. The law is always tender and merciful to a defendant. It will protect him against the use of a confession drawn from him by holding out inducements to make it; but when a criminal wants to ease his mind by a voluntary confession, it would be a weak sentimentalism to interfere with his doing so. Nor do I see that its force as a statement is impaired by the fact that the justice of the peace administered an oath to him. It was a foolish, blundering act on the part of the justice, but it was voluntarily taken by the defendant. The facts bear no analogy to Com. v. Harman, 4 Pa. 269. In that case a prisoner was brought before the justice, charged with homicide. The justice administered an oath to the prisoner, and then told him: ‘ If you do not tell the truth, I will commit you.’ Under such circumstances we are not surprised that Chief Justice Gibson condemned the conduct of the justice in this strong language:

“ ‘ The administering of an oath by a magistrate, under such circumstances, was a gross outrage upon the accused. Any information drawn by it, or subsequently given on its basis, is inadmissible.’
“ The fact must not be overlooked that a defendant in a homicide case may now take the stand, and be sworn as a witness in his own behalf. There would seem to be no good reason why he may not of his own motion go before a magistrate, and make a voluntary statement under oath. It is quite a different matter where the oath is administered against his will. We see nothing, then, in the circumstances under which this statement was made to exclude it.”

In Schoeffler v. State, it is said:

“ The general rule is that what a party says in relation to the offense is admissible in evidence against him, whether on oath or not.”

In People v. McMahon, 15 N. Y. 384, one of the cases relied upon by respondent’s counsel, the respondent was arrested on suspicion of being the murderer of his wife, was brought before the coroner, sworn and examined as a witness. The evidence was held inadmissible, not because “any right or privilege had been violated, but because it is deemed unsafe to rely upon it as evidence of guilt.” It may be that the language that I have quoted from Com. v. Clark was not essential to the decision of the case, but it was intended as an authoritative declaration of the law, and as such entitled to much consideration.

Counsel for the prisoner rely upon the case of People v. McMahon, supra, decided in 1857. That court had maintained the opposite doctrine in Hendrickson v. People, 10 N. Y. 13, decided in 1854, wherein it was held that statements made by the prisoner as a witness at the coroner’s inquest were admissible in evidence against him, Judge Selden dissenting. The personnel of the court had largely changed before the décision of People v. McMahon. The question again came up before that court in 1869, in Teachout v. People, 41 N. Y. 7. It was there held that the statements by a prisoner, under oath, at a coroner’s inquest, are admissible against him, although he knew that he himself would probably be arrested for the crime, and the ruling in the Hendrickson Case affirmed, two of the judges dissenting. Again in 1883 the question came before that court in People v. McGloin, 91 N. Y. 241. The facts in that case are quite similar to those here. The prisoner had been arrested by an inspector of police, and charged with the crime. He thereupon said he would make a statement. A coroner was sent for, who came to police headquarters where the prisoner was in custody, and a confession made. The coroner in that case, as,in this, was not acting in any official capacity, but simply as a clerk to take down the confession. Some question was made whether it was under oath, but the court held that it made no difference. It was held that the examination was not judicial within the law of that State. The prior cases were cited and discussed, the court saying:

“Without discussing or referring to the authorities on this subject at length, it may be said that the following propositions were, prior to the adoption of the criminal code, well settled by law in this State:
“First. That all confessions material to the issue, voluntarily made by a party, whether oral or written, and however authenticated, were admissible as evidence against him on a trial for a criminal offense. People v. Wentz, 37 N. Y. 303.
“Second. It was no objection to the admissibility of such confessions that they had . been taken under oath from a person attending before a coroner, in obedience to a subpoena, upon an inquiry conducted pursuant to law, into the causes of a homicide. Hendrickson v. People, supra; Teachout v. People, supra.
Third. That the confession or declaration sought to be given in evidence was in writing, and purported to be sworn to, was no objection to its admissibility, unless it also appeared that it was taken before a magistrate upon a judicial investigation against the person accused of the commission of the crime.”

It seems apparent from these last two cases that the McMahon Case is overruled, or at least its doctrine is repudiated, by the court of appeals of that State. Wig-more so understands it, for he says:

“ The rulings in New York are of first importance, because the comparatively early promulgation there of the Selden theory in the Hendrickson and McMahon Cases, and its repudiation in the Teachout Case, greatly influenced the discussion in the other jurisdictions, in most of which the controversy is comparatively recent.” 1 Wigmore on Evidence, § 852.

An exhaustive history of this subject is found in Wig-more on Evidence (section 849 et seq.). Mr. Wigmore states:

“ Down to 1816, we find no exclusion (of sworn confessions). Between that time and 1840 occurs a long and tangled series of rulings, representing conflicting views, and furnishing a fruitful source of later misunderstanding.”

He there also states:

“It was thus not the oath, but the specific statutory illegality of its application, that prevented the admission, for there was no method of enforcing the prohibition except by rejecting the statement so obtained.”

The question is before this court for the first time. The authorities are not harmonious. The facts of one case differing in important respects from others may partly account for the conflict. I think the sound rule to be that confessions made under oath should not be rejected when they are not made in the course of judicial proceedings, and when the respondent is in no sense a witness, and such confessions are not prohibited by statute. The case of People v. Thomas, 9 Mich. 814, has no application here. That case was tried before the statute was enacted permitting respondents to be sworn in their own behalf. Defendant desired to be sworn as a witness. The court refused, holding that he was only entitled to make a statement. Under the statute, if one charged with crime chooses to become a witness in his own behalf, he is subject to the same rules of evidence as govern any other witness.

2. The court instructed the jury very fully and correctly as to the four verdicts which they could render (1) guilty of assault with intent to murder; (2) guilty of assault with intent to do great bodily harm less than murder; (3) assault and battery; and (4) not guilty. It is now urged that the court should have defined to the jury the crime of manslaughter, claiming that, if death had resulted, there was evidence from which the jury might have found the respondent guilty of manslaughter. There is nothing shown upon the record to justify such conclusion. The respondent lay in wait for his victim. He seized her without warning, and with a deadly weapon nearly ended her life. A verdict of manslaughter under such circumstances would have been without excuse. If the respondent was insane, he was entitled to an acquittal, but the jury found that he was sane. The court, in a very full and fair charge, submitted the case to the jury, and we find no error in the instructions given.

8. It is urged that there was error committed in permitting evidence that the defendant went to the house of his father- and mother-in-law, where his wife was staying, and assaulted them with a deadly weapon, and also of previous threats made against his wife and child. That he went there in the expectation of finding his wife, is clear. His conduct and threats on that occasion were competent. The witness testified that the defendant wanted to kill the whole family. His declarations before the crime, indicating enmity towards his wife and child and her parents, and that he was contemplating an assault upon some one of the family, are admissible. Underhill on Criminal Evidence, p. 394; Parker v. State, 136 Ind. 384; State v. Pierce, 90 Iowa, 511; People v. Haxer, 144 Mich. 575.

Counsel allege other errors in the rulings of the court in admitting and rejecting testimony. They are not of sufficient importance to discuss, and it is sufficient to say that we find no error upon the record, and the conviction should be affirmed.

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

Moore, J.

(dissenting). The respondent was convicted of the crime of assault ■ with intent to kill and murder tiis wife. The defense is the insanity of the respondent. It is claimed that, because of his insane condition, he had no intent to commit any crime. There are a number of assignments of error. We think it necessary to discuss at length but one of them. The respondent sprang upon his wife as she was coming from her solicitor’s office, on the way to the police court to obtain a warrant for respondent, grabbed her by the throat, and slashed her throat with a razor. He was arrested at once, with the razor still in his hand, by Deputy Sheriff Bellyea, who was passing, and was taken at once to police headquarters a short distance away. Instead of taking respondent to a magistrate and holding an examination according to the forms of law, a shorthand reporter, who is called the “official stenographer of the police department,” and who is also a notary public, was sent for. The respondent had not indicated any desire to give his version of the occurrences of the morning, but an examination, unknown to the law, was at once entered upon at police headquarters, before the police commissioner, two police officers, the chief of detectives, the above-mentioned stenographer, the deputy sheriff, and no one else. The respondent was not cautioned that any statement he might make could be used against him. He had no friend or counsel present. He was sworn, and the chief of detectives examined him at length, putting to him direct and leading questions. All this occurred on the same morning and shortly after the assault was made. This examination was received in evidence over the objection of the attorneys for the respondent. The substance of it was that respondent had attacked his wife with a razor and intended to kill her, and that he then intended to kill himself, and that he still intended to kill himself. It contained the following:

“Q. Nobody made you any promises or any threats to make this statement ? This is true; and you intended to kill the woman this morning and then kill yourself ? Is that right ? i
“A. That is right.
“Q. I guess that is all the statement that is necessary. That is all. Take him downstairs, and register him, Charley. (Witness leaves room).”

It is now argued upon the part of the people that the statement was voluntary and admissible under People v. Gastro, 75 Mich. 127, People v. Flynn, 96 Mich. 276, and People v. Warner, 104 Mich. 337. In the first of these cases it appeared the statement was made without question or suggestion, and was entirely respondent’s own offer. An examination of the other two cases will show them easily distinguishable from the one at bar. To say that the part taken in this proceeding by the respondent was voluntary is to make a misuse of words. It is perfectly apparent that its purpose was to obtain from the respondent some statement that could later be used against him. When the chief of detectives thought that purpose was accomplished, the inquisition, for so it should be characterized, was brought to an end. In the case of People v. Thomas, 9 Mich. 314, there is an interesting discussion by Justice Campbell of the difference in the procedure in criminal cases in the American and English courts, upon the one hand, and the Scottish and French courts, upon the other, and he also alludes to the fact that the Constitution of this State does not permit any respondent to be compelled to be a witness against himself. The proceeding under review is more in keeping with the Scottish and French systems which have never prevailed in the American and English courts. The sweat-box procedure, so called, is un-American, unauthorized, and unlawful, and cannot be too severely condemned. See, as bearing somewhat upon the question involved, Flagg v. People, 40 Mich. 706; People v. Wolcott, 51 Mich. 612; People v. McArron, 121 Mich. 1. Section 32, of article 6 of the State Constitution reads:

“No person shall be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty or property, without due process of law.”

Section 10211, 3 Comp. Laws, reads in part as follows:

“Provided, however, That a defendant in any criminal case or proceedings shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.”

The procedure by means of which the statement was obtained was in violation of the constitutional provision above quoted, and the reception of the statement in evidence was in violation of both the constitutional and the statutory provisions quoted.

It is urged, however, that though the statement was obtained by unlawful means, and its reception as evidence was error, it is harmless error, because the other evidence shows the guilt of the accused. There was no dispute about the assault, the seriousness of the wound, and the instrument with which it was inflicted. But it was, and is, insisted by way of defense, that respondent was so insane that he was not actuated by an unlawful intent, so that the question of intent became the very gist of the inquiry. It is stated by the prosecuting attorney in his brief, and rightly stated, that a necessary element to be proven by the people under the charge is the intent which actuated the respondent when he made the assault. How can it then be said that the reception of a written admission under oath, unlawfully obtained, that respondent intended to kill his wife when he made the assault was harmless error? We think a simple statement of the proposition is its own answer.

The assignments of error upon the admission of testimony of previous threats are not well taken. This testimony bore upon the question of intent. The errors assigned in relation to the cross-examination of witnesses will not be discussed, as some of them were within the discretion of the court, and the others are not likely to arise on a new trial.

For the reason stated the case should be reversed, and • a new trial ordered.

McAlvay, J., concurred with Moore, J.


author: Grant, C. J.

text:
    ATTORNEY GENERAL, ex rel. ZACHARIAS, v. BOARD OF EDUCATION OF CITY OF DETROIT.
    1. Statutes — Construction—Giving Effect to Whole.
    Statutes should be so construed, if possible, as to give full effect to every part and render no portion nugatory, every clause and word being presumed to have some force and meaning.
    2. Schools — Detroit Schools — Superintendent — Salary — Amendment of Statute. .
    Act No. 406, Local Acts 1907, amending Act No. 392, Local Acts 1903, section 7, by omitting therefrom the proviso limiting the salary payable to the superintendent of schools of Detroit to $4,000 per annum, which was given immediate effect, authorized the board of education to inorease the salary of the superintendent then holding office and whose term of office does not expire until 1909, since otherwise there would be nothing upon which the immediate effect clause could operate. Grant, C. J., dissenting.
    3. Same — Constitutional Law — Local Self-Government.
    The Constitution of Michigan turns the whole subject of education over to the legislature and the subject is no part of the local self-government inherent in townships and municipalities, except so far as the legislature may choose to make it such.
    4. Same — Detroit Charter — Teachers’ Wages — Action of Board of Estimates.
    Since the primary school fund must, under the general laws of the State, be used to pay teachers’ salaries, and the superintendent of schools of Detroit may, under the law authorizing his appointment, be a teacher, the action of the board of estimates in fixing the amount to be raised for the payment of his salary for a particular year is not binding on the school board, otherwise having legislative authority to fix his salary.
    5. Same — Constitutional Law — Detroit Schools — Superintendent — Salary—Increase After Appointment.
    The superintendent of schools of Detroit is not a contractor, and an increase in his salary after appointment for a particular term, effective during the unexpired portion of the term, looks to the future and not to the past, and hence does not violate section 21 article 4, of the Constitution. Grant, C. J., dissenting.

      Appeal from Wayne; Hosmer, Murphy, Rohnert, and Donovan, JJ.
    Submitted June 10, 1908.
    (Docket No. 56.)
    Decided November 30, 1908.
    Bill by John E. Bird, attorney general, on the relation of Allen H. Zacharias and others, to enjoin the board of education of the city of Detroit and Frank E. Doremus, controller, from paying an increase of. salary. From a decree sustaining a demurrer to the bill, complainant appeals.
    Affirmed.

      Elbridge E. Bacon, for complainant.

      P. J. M. Hally {T. E. Tarsney, of counsel), for defendants.
    Section 7, Act No. 392, Local Acts 1903, reads as follows:
    “The said board shall, at the first regular meeting in July after the passage of this act, and on the first regular meeting in July of every third year thereafter, appoint a suitable person as superintendent of the public schools under their control, who shall hold his office for the term of three years, or until his successor shall be appointed and enter upon the performance of his duties: Provided, That if such appointment shall not be made at the first regular meeting in July, the same may be made at any subsequent regular meeting; but the term of office of the appointee shall commence and date from said first regular meeting in July: And provided further, That the office of the present incumbent shall not be deemed to have been vacated by this act, but he shall hold his office until the first regular meeting in July subsequent to the time when this act shall take effect, or until his successor shall be elected and enter upon the performance of his duties. The superintendent shall receive such salary as shall be fixed by the board: Provided, That the same shall not exceed four thousand dollars per annum. The said board may appoint a secretary of said board, who shall hold his office during the pleasure of said board, or until his office shall otherwise become vacant. The board may prescribe his duties and compensation: Provided, That when the office of secretary and superintendent shall be held by the same person, lie shall receive no compensation for his services as secretary. The board, if it deem it expedient, may direct the superintendent to perform the duties of said office of secretary, and he shall thereupon be ex officio secretary of said board.”
    Under that act on July 12, 1906, Mr. Wales C. Martin-dale was, by appropriate resolution of the board, appointed “superintendent for the ensuing term of three years, at the sum of $4,000 per year.” The legislature'in 190?, by Act No. 406, Local Acts 1907, amended this section so as to read as follows:
    “The board shall, at the first regular meeting in July in the year nineteen hundred nine after the passage of this act, and on the first regular meeting in July of every third year thereafter, appoint a suitable person as superintendent of the public schools under their control, who shall hold his office for the term of three years, or until his successor shall be appointed and enter upon the performance of his duties: Provided, That if such appointment shall not be made at the said first regular meeting in July, the same may be made at any subsequent regular meeting, but the term of office of the appointee shall commence and date from said first regular meeting in July: And provided further, That the office of the present incumbent shall not be deemed to have been vacated by this act, but he shall hold his office until the first regular meeting in July, nineteen hundred nine, as aforesaid, or until his successor shall be elected and enter upon the performance of his duties. The superintendent shall receive such salary as shall be fixed by the board. The said board may appoint a secretary of said board, who shall hold his office during the pleasure of said board, or until his office shall otherwise become vacant. The board may prescribe his duties and compensation: Provided, That when the office of secretary and superintendent shall be held by the same person, he shall receive no compensation for his services as secretary. The boa,rd, if it deem it expedient, may direct the superintendent to perform the duties of said office of secretary, and he shall thereupon be ex officio secretary of said board.”
    On July 11, 1907, the board of education, assuming that they had authority under the latter act, passed a resolution increasing the salary of Mr. Martindale to |6,000 per year, during the balance of the term for which he was elected; said increase to take effect from and after June 15, 1907. The attorney general, upon the relation of certain citizens and taxpayers of the city of Detroit, filed this bill of complaint to enjoin the defendants from paying this increase of salary. A demurrer was interposed, sustained, and the bill dismissed.
   Grant, C. J.

(after stating the facts). It will be observed that both the original and the- amended section relate exclusively to the office of superintendent of schools, except that they also authorize the appointment of a secretary who may be the superintendent. The amended act amends the old act only in providing for the election of a new superintendent in 1909, at the termination of the term of the then superintendent. It does not in terms, and was not intended to, affect the term of office or the conditions under which the then incumbent was holding. I think that clause of the amended act reading: “ The superintendent shall receive such salary as shall be fixed by the board ” refers exclusively to the superintendent to be appointed under the act. The intent to authorize the expenditure of money and to increase the salary of an officer or employé who has been appointed for a specified term and at a specified salary, under a law which continues him in office for a specified time and at a specified salary, ought very clearly to appear. The act in question preserves the status quo of the superintendent who was then in office. It gives authority to appoint a new superintendent at or after a given time, and at such salary as the board may then authorize. This court said in Perrin v. Kellogg, 37 Mich. 316:

“Statutes can apply to future transactions only, unless they are expressly given effect on previous transactions, or unless some of their terms cannot be met otherwise.”

I am unable to discern how any intention to change the status of Mr. Martindale’s tenure or terms of service can be extorted from tbe clear language of this act. It plainly leaves both in force, to be completed under the law under which he was appointed for a definite time and at a definite salary, and leaves that law in force for that purpose, and enacts a new law to be applied only to his successor. But it is urged — and this is the sole basis for the support of defendants’ claim — that the sole object of the legislature in giving the act immediate effect was to authorize immediate action under it. The order giving an act immediate effect is no part of the act. The bill was passed before the motion to give it immediate effect was made, and as passed it referred solely to future action by the board of education, to be taken more than two years thereafter. Can the plain intent and meaning of an act be changed by a motion which is no part of it and is made and carried after the bill has passed ? Suppose the act had not been given immediate effect. It would then, under the Constitution, have become ,a law within 90 days after the adjournment of the legislature; that is, it would have become a law on September 27, 1907. In that case it might as well be contended that the act was passed two years before any action could be taken under it to employ Mr. Martindale’s successor, for the sole purpose of authorizing the board to change Mr. Martindale’s salary. Suppose Mr. Martin-dale’s tenure and contract were to expire in July, 1907, and this act had been passed early in the session of that year, providing for the appointment of his successor in July following, and given immediate effect, would it be contended that it conferred authority upon the board to increase or diminish his salary for the remainder of his term ? I cannot give my assent to this construction of an order to give a bill immediate effect, when the bill is clearly prospective in its provision. Mr. Endlich says:

The office of each [viz., a saving clause or proviso in a statute] is to except some particular case from a general principle, where, from peculiar circumstances attending the case, there would be some hardship, if it were not excepted, to qualify, restrain, or otherwise modify the general language of an enacting clause, or to exclude some possible ground of misinterpretation which might exist if cases, which the legislature did not mean to include, were brought within the statute. And as to a proviso, it has been said its function is that of limiting the language of the lawmaker, not of enlarging or extending the act or section of which it is a part, and its effect that of negativing an authority granted beyond its prescribed and clearly defined limits.” Endlich on Interpretation of Statutes, § 184.

I think the decree should be reversed, and the case remanded for further proceedings in accordance with the practice of the court.

Moore, J. A sufficient statement of the facts appears in the opinion of Chief Justice Grant. This case was heard before four of the judges of the circuit court for the county of Wayne, all of whom joined in a written opinion, part of which expresses the views which I think ought to control. I quote from the opinion as follows:

“After the passage of the act, the board of education increased the salary of the superintendent from $4,000 to $6,000 per annum. Complainant contends that the board exhausted its power of fixing the salary at the time of appointment; that no power existed at the time of the raising of the salary to take such action; that the submission to and the action of the board of estimates upon the matter of annual -salary precluded any action during the current year, and that to give the construction to the act claimed by the board would be in violation of article 4, § 21, of the Constitution.
“ It is a cardinal rule of statutory construction that full effect shall be given to every part of the act under consideration. Every clause and every word is presumed to have some force and meaning. No portion should be rendered nugatory. If the complainant’s construction were tenable, it would render the immediate effect clause useless. The only possible object the legislature could have had in the giving of immediate effect is to empower the board to increase the salary which theretofore had been under limitation. To no other part of the act as amended is this clause apposite. Viewed in this light, the citation of counsel to establish the proposition that the power of the board, having been once exercised, was exhausted, does not seem appropriate. In our opinion the very purpose of the amendment was but a new grant of power.
“Education in Michigan belongs to the State. It is no part of the local self-government inherent in the township or municipality, except so far as the legislature may choose to make it such. The Constitution has turned the whole subject over to the legislature. Belles v. Burr, 76 Mich. 1. The primary school fund may be used for teachers’ salaries, and the superintendent is by the terms of the act a teacher. Eor these reasons the action of the board of estimates does not control.
“The superintendent is in no sense a contractor, and the increase of salary looks to the future, and not to the past. The demurrer to the bill must be sustained, and the bill dismissed.”

See Hunt, ex rel. Snow, v. Buhrer, 133 Mich. 107, and the cases there cited; Hudson v. Attorney General, 150 Mich. 67, and the cases there cited.

I think the decree should be affirmed, with costs.

Blair, Montgomery, Ostrander, Hooker, and McAlvay, JJ., concurred with Moore, J


author: Moore, J.

text:
    BENIE v. WAYNE CIRCUIT JUDGE.
    Arrest —Civil Actions — Capias ad Respondendum — Affidavit —Sufficiency.
    A writ of capias ad respondendum, sued out in commencement of an action not on contract, under sections 9998, 9999,8 Comp. Laws, is not subject to quashal for not showing a statement in the attached affidavit that plaintiff has a claim for dam- ■ ages in an amount exceeding §100, as required by section 9996, relative to actions on contracts commenced by capias.
    Mandamus by George Benie to compel Henry A. Man-dell, circuit judge of Wayne county, to vacate an order denying a motion to quash capias ad respondendum proceedings.
    Submitted October 6, 1908.
    (Calendar No. 22,985.)
    Writ denied November 30, 1908.

      James B. Neill, for relator.
   Moore, J.

William Larges instituted a suit by capias against the relator, charging him in a sworn affidavit with an assault upon the affiant, his wife, and daughter. In the affidavit was a detailed statement of the assault, which it is claimed was accompanied by threats, and was - made by shooting a gun toward the affiant, his wife, and daughter, which frightened him, his wife, and daughter. It was further stated in the affidavit that, as a result of her fright, affiant’s wife became sick and was confined to her bed, and that affiant was deprived of her society and her services, and was compelled to pay large sums of money for medical and other services. The affidavit was attached to the writ of capias, in which writ a. claim of damages to the amount of $5,000 was made. The relator was arrested and required to give bail in the sum of $500. Afterward a motion was made to quash the writ for several reasons. The motion was denied, and this is a proceeding to review that action.

Counsel for relator states in his brief:

“ Although several reasons were assigned in the naotion to quash, we submit the all-important one was contained in the claim that the court had no jurisdiction to order the relator to furnish bail in the sum of $500, as there was no amount stated in the affidavit showing the amount plaintiff claimed as damages as the result of the assault.”

Counsel argue no other question in the brief. He does not cite any authorities in support of his position.

Section 9996, 3 Comp. Laws, authorizes the commencement by capias ad respondendum of certain personal actions arising upon contract, express or implied. This section requires a statement in the affidavit that the plaintiff has a claim for damages “upon which he believes that the plaintiff is entitled to recover a certain sum being more than one hundred dollars.” This suit, however, is not commenced under the provisions of the above section, but is brought under the provisions of sections 9998, 9999, 3 Comp. Laws, which require the affidavit to be attached to the writ, and to show the nature of the plaintiff’s claim. These sections do not require the affidavit to contain a statement of a belief that the. plaintiff is entitled to recover a certain sum exceeding $100. The affidavit contained all the essentials required by the statute under which the proceeding was instituted.

The order of the court below is affirmed, with costs.

Grant, C. J., and Blair, Montgomery, and Mc-Alvay, JJ., concurred.