text:
    BALDWIN v. BOARD OF SUPERVISORS OF ALGER COUNTY.
    1. Mandamus — Intoxicating Liquors — Parties—Public Interest —Elections—Recount of Ballots.
    Relators, who were qualified electors of the city in which a recount of ballots cast in a local option election was asked and made, were proper parties, in the discretion of the circuit court, to institute mandamus proceedings to test the propriety of recounting certain precincts, for the recognized rule against the intervention of private parties to redress grievances that affect the public is not absolute, but discretionary.
    2. Same — Prosecuting Attorney.
    And where the election was close and the interest of the electors general, and intense, the trial court did not err in determining that the prosecuting attorney was juot the only proper party to file a petition for mandamus and that private individuals might ask the intervention of the court.
    S. Same — Proper Remedy — Recount.
    Mandamus is the appropriate remedy of such relators to test the right of the board of supervisors to recount the ballots in boxes that had not been lawfully sealed; the duty of the board in canvassing returns and recounting the votes is ministerial and may be enforced in a proper case by the court.
    4. Same — Statutory Requirements.
    The apparent purpose of Act No. 327, Pub. Acts 1913, providing for a recount of votes by boards of supervisors, was to change the previously existing law, as to the power of the board to ascertain whether or not the statutory requirements relative to sealing and preserving the ballots had been observed.
    5. Same — Judgment—Conclusiveness.
    Where the board in recounting the ballots in certain districts took testimony to ascertain what was the condition of the ballots and whether they had been tampered with, and where no claim was made to the board that they had been tampered with, but objection was raised only to the condition of the ballot boxes, or manner of sealing them, the determination to open the boxes was a decision of fact, and, whether right or wrong, was conclusive upon the court.
    Certiorari to Alger; Fead, J.
    Submitted October 19, 1915.
    (Calendar No. 26,945.)
    Decided December 21, 1915.
    Mandamus by Frederick J. Baldwin and others against the board of supervisors of Alger county to compel respondents to amend their return of a recount of the ballots cast at a local option election. From an order denying the writ, relators bring certiorari.
    Affirmed.

      H. B. Freeman (William P. Belden, of counsel), for relators.

      F. T. McDonald (William F. McKnight, of counsel), for respondent.
   Ostrander, J.

Although issues of fact were framed and tried by the court, none of the testimony is returned or made part of the record. The plaintiffs in certiorari (relators) adopt the finding made by the circuit judge as “a true, correct, and adequate statement of the facts relative to this controversy.”

A local option election was held in. Alger county in April, 1915. The board of supervisors canvassed the returns, and from them found that 768 votes had been cast in favor of and 766 votes against prohibition. Petitions for a recount of the votes in several precincts were filed. One asked for a recount of votes in Au Train, Onota, Rock River, Limestone, Mathias, and precinct No. 1 of Munising; another for a recount of votes cast in precinct No. 2 of Munising; another for a recount of votes cast in the city of Munising; another for a recount of votes cast in precinct No. 3 of Munising. Acting as a committee of the whole, the board recounted the votes in these several precincts, and submitted to the board a majority and minority report. A change of 5 votes in favor of nonprohibition was the result of the recount, and the board declared that 764 had been cast in favor of and 766 votes against prohibition.

“It is conceded by the parties that the boxes in Rock River township and the city of Munising were properly sealed, and the recount returns therefrom are correct. This controversy, therefore, rests upon the recount of Limestone township and precincts No; 2 and 3 of Munising township, and the whole question involved is as to whether the committee was justified^ in recounting the votes therein in view of the condition of the ballot boxes; there being no testimony here to indicate that the recount committee did not properly count the ballots found in said boxes.”

The circuit judge found and stated in detail the condition of the ballot boxes in the precincts in question. Omitting the details* the substance of the finding is that, while the boxes were not sealed in the manner required by the statute, there was no evidence that the ballots found in the boxes and recounted, were not the original ballots cast at the election.

Relators are qualified electors of the city of Munising, signed the original local option petition, and were actively interested in favor of prohibition in the county of Alger. Before asking the circuit court to compel respondents (defendants in certiorari) to reassemble and declare a correct result of the election, they applied to the attorney general to begin the proceeding or to permit the use of his name in that behalf. The request was refused. The prosecuting attorney of the county attended the sessions of the board of supervisors and the recount committee—

“advised them three or more times upon matters connected with the recount, and at the conclusion prepared the resolutions finally adopted by respondents. He states he prepared the resolutions in a clerical capacity, not advising the board as to the action it should take. His attitude was to remain neutral, and he only advised the board upon a direct request from them. Among other things, he advised the committee it might legally open the box from precinct No. 2 if satisfied with the sufficiency of the seal, that it was for the committee to determine whether or not the seal would answer the purpose of an official seal, and also advised it that the box from Limestone township was not a proper ballot box to be opened. Mr. Simmons also appeared as attorney of record for said respondents in mandamus proceedings brought by Thomas B. Wyman et al. against the respondents herein, in this court, relative to their action in connection with the recount of the ballots cast at said election in Mathias township, which action is still pending, but he took no- active part in the case at any time. He was not requested by relators to permit his name to be used in bringing these proceedings, never refused to permit his name to be used, and testified that he officially held no views adverse to relators’ position in this proceeding.”

The contentions made and decided in the court below involve the right of relators to institute the proceeding, the conclusiveness of the supervisors’ action, the propriety of the remedy sought, and the powers of the board of supervisors in recounting votes.

Upon the facts found by the court, which are controlling, it was properly held that relators might institute the proceeding, and that mandamus was a proper remedy. In Ayres v. Board of State Auditors, 42 Mich. 422, 429 (4 N. W. 274, 279), this court said:

“The rule which rejects the intervention of private complainants against public grievances is one of discretion, and not of law. There are serious objections against allowing mere interlopers to meddle with the affairs of the State, and it is not usually allowed unless under circumstances where the public injury by its refusal will be serious. In the cases of People, ex rel. Drake, v. Regents of the University, 4 Mich. 98, and People, ex rel. Russell, v. Inspectors and Agent of the State Prison, 4 Mich. 187, the court took pains to guard against any decision that would prevent complaint by a private relator, where the public interests require prompt action, and where the public prosecutors will not interfere. There is, as there shown, more liberality in some States than in others. But we find no reason to consider the matter as one lying outside of judicial discretion, which is always involved in mandamus cases concerning the relief as well as other questions.”

See, also, Giddings v. Secretary of State, 93 Mich. 1 (52 N. W. 944, 16 L. R. A. 402).

The almost even division of the electors upon the question in issue in the election is manifest from the vote which was cast, “indicating,” to use the language of the circuit judge, “that the interest of the electors was general and intense.” Under the circumstances disclosed, the discretion of the court was properly exercised in permitting citizens to institute this proceeding.

The relief sought by relators was not merely the setting aside of the determination of the board of supervisors. Affirmative action of the board was sought, including a determination and resolution and record which would have the effect of suspending the operation of the general liquor law of the State in the county of Alger. The duty of the board in canvassing returns and in recounting votes is ministerial. Assuming that the board acted beyond its powers in recounting the ballots in certain precincts, its plain duty was to declare a result other than the one complained of, and to pass and spread upon the record of the proceedings the appropriate resolution. To this end the writ of mandamus is the appropriate, and indeed the only, remedy of persons aggrieved by the unlawful action of the board.

The principal contention of relators is that the board had no power to open and recount the ballots found in a ballot box not closed and sealed in conformity with statutory requirements. This is a contention presented, but held not to be involved, and not determined, in Alward v. Board of Supervisors, 187 Mich. 573 (153 N. W. 1001).

There is a general law, according to which liquors may be manufactured and sold, in force in every county in the State, unless by the votes of the electors of the county its operation is locally suspended, and such manufacture and sale is prohibited in the county. The vote being in the affirmative, it is the duty of the board of supervisors to declare that from and after the 1st day of May succeeding the election it shall be unlawful to manufacture or sell liquors in the county. It is the duty of the board of supervisors to canvass the votes and declare the result of the election. In Paul v. Circuit Judge, 169 Mich. 452 (135 N. W. 283), it was held that the vote was the vital thing; the ministerial duty of the board to pass or not to pass the statutory preamble and resolution and publish the same depending upon the vote. Prior to the year 1913 no recount of such votes was provided for. The conclusion of the board, fraud or apparent mistake being excluded, was final. Thomas v. Abbott, 105 Mich. 687 (63 N. W. 984); Haehnle Brewing Co. v. Board of Supervisors, 156 Mich. 493 (121 N. W. 209).

Various provisions of the law are calculated, if obeyed, to preserve ballots cast at an election so that they may be re-examined and recounted. There is in the general election law (1 Comp. Laws, §3725) a provision for a recount of votes. Power is given to cancassing boards, upon proper petitions being filed, to investigate the facts set forth in the petitions, to cause the ballot boxes used in the contested districts to be brought before the board, to make up a committee to recount, to open the ballot boxes and make a recount thereof, and make returns in writing to the canvassing boards. Considering these provisions, it was held that a recount could be had only in cases where the recounting board could find, from an inspection of the ballot box, that the statutory requirements for the preservation of the ballots, as cast, had been observed. May v. Board of Canvassers, 94 Mich. 505, 511 (54 N. W. 377); Keith v. Wendt, 144 Mich. 49 (107 N. W. 443); Ward v. Culver, 144 Mich. 57 (107 N. W. 444). The primary election law (Act No. 4, Extra Session 1907, and Act No. 281, Pub. Acts 1909) provides for a recount of votes. Ritze v. Board of Canvassers, 172 Mich. 428 (137 N. W. 964). See, also, Bradley v. Board of State Canvassers, 154 Mich. 274 (117 N. W. €49). In Keith v. Wendt, supra, it was said:

“We held, in May v. Board of Canvassers of Wayne Co., 94 Mich. 511 [54 N. W. 377], that, where it claimed that the ballot box had been tampered with, it was the duty of the board to cause the box to be brought before it and make an investigation. It was also said that such investigation would be confined to an inspection of the box itself. It was not determined in terms that the board must, as a prerequisite to a recount, find that the box had been sealed as the statute requires; but we think such a view was foreshadowed. Further consideration has strengthened our belief that there can be no certainty in proceedings under this statute, if boards are permitted to set up standards of their own in regard to the steps necessary for the preservation of the ballots cast. The test must be this: Have the ballots been preserved as the law directs ?”

In Ritze v. Board of Canvassers, supra, it was said:

“The board of canvassers took the testimony of the primary election inspectors with reference to the condition of the box. They likewise compared the poll list used in said precinct with the enrollment book. They had no authority to do either.”

The law of the State being as here indicated, the legislature in 1913 made certain changes in the statutes. By Act No. 352, Pub. Acts 1913, the law which provides for the election of boards of county canvassers and defines their duties was amended so as to provide that any candidate voted for at an election, or any qualified elector voting at the last preceding election, where a constitutional amendment or any other proposition had been voted on, may secure a recount of votes, and for this purpose the board is given power to cause ballot boxes to be brought before it and make a recount. No power is conferred to subpoena witnesses or to do more than recount the votes. But the returns made by the board upon recount are deemed to be correct, anything in the previous returns from said township, ward, or district to the contrary notwithstanding; and for error apparent upon the face of the returns they may be “examined and corrected upon certiorari to the circuit court of the county.” Act No. 320, Pub. Acts 1913, is entitled:

“An act to provide for a recount of votes cast at an election for candidates for office, or proposed amendments to the Constitution or any other question or proposition which are canvassed by the board of State canvassers.”

This act empowers the board of State canvassers to recount votes and to require “any inspector of election, county officer, or other person, to appear for any such purpose as may be desired,” to demand and cause the ballot boxes “and returns in connection with any such election to be brought before it.”

“The returns made by the said board of State canvassers of any recount shall be deemed to be correct, anything in the return of any board of election inspectors, or any county or district canvassing board to the contrary notwithstanding.”

Act No. 327, Pub. Acts 1913, is entitled:

“An act to provide for a recount of votes canvassed by boards of supervisors.”

It contains three sections. In the first it is provided that, whenever a proposition is submitted to the electors, and the votes cast are canvassed by the board of supervisors of the county, any person voting in the county at the election who considers himself aggrieved “on account of any fraud or mistaké in the canvass of the votes by inspectors of election or the returns made by said inspectors,” may ask for, and, upon .complying with certain conditions, may have, a correction •of the mistakes or frauds complained of. The petition must be in writing, and set forth as near as may be the nature of the mistakes or frauds. By section 2 it is made the duty of the supervisors to appoint a committee from its members—

“to investigate the facts set forth in said petition. For such purpose the said board shall have power to cause the ballot boxes used in such election districts to be brought before said committee. Said committee shall thereupon in some public place where the persons interested, and their counsel, if they so desire, may be present, proceed forthwith to open the ballot boxes from such districts, townships or wards and to make a recount thereof as to said proposition, and for the purpose of recounting the votes upon said question, said board shall have the right to subpoena witnesses, administer oaths, and take all necessary proceedings to insure a correct count of the votes cast upon the proposition and make correct and full return in writing under their hands to said board, showing the full number of votes given, the number of votes in favor of said proposition, and the number of votes against said proposition. As soon as the recount is completed, said board 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. The returns made by the said board of supervisors upon recount shall be deemed to be correct, anything in the previous return from such township, ward or district to the contrary notwithstanding.”

By section 3 it is provided that:

“Any person may, for error apparent upon the face of the returns, have the same examined and corrected upon certiorari to the circuit court of said county according to the rules and practices applicable to such rights. * * * For fraudulent or illegal voting or tampering with the ballot boxes before a recount by the board of supervisors, all legal remedies now existing shall remain in full force.”

It is Act No. 327 that we are concerned about,'and the others have been referred to for the purpose of contrasting the provisions for a recount of votes, and to show that, so far as intention can be determined from language, it was the intention of the legislature to give to boards of supervisors in recounting votes canvassed by such boards greater powers than are given to the recounting boards referred to in the other statutes. Some effect must be given to the provision that:

“For the purpose of recounting the votes upon said question, said board shall have the right to subpoena' witnesses, administer oaths, and take all necessary proceedings to insure a correct count of the votes cast upon the proposition.”

It may be assumed that the. legislature intended a speedy determination of the results of local option elections. It is notorious that ballot boxes used at elections are not secured with their contents, in the statute manner. As has been stated, it was the law when the statute in question was passed that, unless it appeared that the ballots had been sq secured, they could not be recounted; that the recounting boards were not authorized to ascertain whether, in fact, the statute precautions for the preservation of ballots having been omitted, the original ballots had been preserved. What possible purpose could be subserved in empowering boards to subpmna witnesses, administer oaths, and take all necessary proceedings to insure a correct count of the votes, if, as theretofore, the evidences of the lack of statutory sealing of the boxes was conclusive of the right to recount the votes? It is plain, in my opinion, that the legislature intended in this act to abolish the test, “Have the ballots been preserved as the law directs?” and to substitute therefor the test one of pure fact, “Have the ballots been, in fact, preserved, notwithstanding the failure to observe the legal requirements for their preservation?”" Satisfied by the evidence that the original ballots canvassed by the inspectors of election, and all of them, and no others, are in fact in the box, the board may recount them. Satisfied that .they cannot perform the purely ministerial duty of recounting the original ballots in a particular box, they must accept the returns of the election inspectors. This meaning gives effect to the general purpose and all of the provisions of the act. No judicial powers are given to the board. It is not a novel thing to give to boards and commissions power to determine facts and to determine them finally. '

In concluding his findings, the learned circuit judge, in agreement with the views I have expressed, said:

“It thus appears that the act in question was intended to and does confer upon the board of supervisors, in recount proceedings, power more like that possessed by courts in quo warranto proceedings than that of the usual board of canvassers; that the board is not confined to the determination of questions regarding the formality of sealing the box, but may make an investigation and determination of all questions pertaining to the integrity of the ballots in the precincts for which recount petitions are filed, for the purpose of making a correct count of the votes east in such precincts; that in the decision of all questions of fact in connection with its investigations of fraud or error the determination of the board is final and conclusive, and not subject to review'by the courts.
“(In the case at bar it appears the board made an inspection of the boxes from Limestone township and precincts Nos. 2 and 3 of Munising township, and took testimony as to the latter. No objection was made to their being opened, except for formal defects as to the condition of the boxes or the manner of sealing. There was no indication or claim made before the board that they had been tampered with in any way. The board determined to and did open the boxes, made the recount, and adopted the result formally. It thereby passed upon the integrity of the ballots and declared them intact and inviolate. This decision, being purely one of fact, whether right or wrong, is conclusive upon this court. (It might be remarked incidentally that there was no evidence on the hearing of the instant case to show that the ballots had been tampered with or changed since the election.)
“Having authority, under the statute, to pass upon such question and to make the count of the ballots in such boxes, and it not appearing that the recount itself was erroneous (in fact, no question is raised as to the accuracy of the count of the ballots) the determination of the board must stand."

The judgment is affirmed, but without costs.

Brooke, C. J., and Person, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    GOURLAY v. INSURANCE COMPANY OF NORTH AMERICA.
    1. Appeal and Error — Divided Court — Res Judicata — Law of Case.
    While a decision by an equally divided court may not be conclusive in other subsequent causes, having different parties, it operates as a rule of law binding upon the same litigants in a later appeal; hence, after such opinion sustaining the trial court which overruled a demurrer to plaintiff’s declaration, the Supreme Court will treat the parties as concluded by the determination in the former appellate proceedings upon a review of the evidence offered in support of plaintiff’s averments.
    2. Insurance — Burden of Prooi> — Want of Consideration — Evidence.
    In an action upon an insurance policy the burden was not upon plaintiff to show a consideration for attaching a loss payable clause stating that the insurance should be payable to the insured or his vendor as their interests might appear; it rested upon the defendant to establish its contention if it relied upon lack of consideration, — an affirmative defense.

      Error to Eaton; Smith, J.
    Submitted October 20, 1915.
    (Docket No. 35.)
    Decided December 21, 1915.
    Assumpsit by Joseph G. Gourlay and another against the Insurance Company of North America on a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Walters & Hicks, for appellant.

      Cummins & Nichols, for appellees.
   Ostrander, J.

This cause was here upon demurrer. The demurrer challenged the right of plaintiffs to recover upon the policy of insurance and the facts alleged in the declaration. The trial court overruled the demurrer, resolving against defendant every point relied upon. The judgment of the trial court was affirmed by this court, the justices being evenly divided. 181 Mich. 286 (148 Ñ. W. 258). The judgment of this court was that the judgment below be.affirmed. A rehearing was denied.

Defendant pleaded issuably and the cause was tried, resulting in a judgment for plaintiffs; plaintiffs proving, substantially, the facts stated in their declaration. In seeking a review of the judgment, no questions are presented which were not involved upon the consideration of the demurrer. (A claim and concession appear which will be noticed later.) It is said by appellant that because the judges were evenly divided upon .the questions of law presented upon the hearing of the demurrer, so that by operation of law the judgment of the lower court was affirmed, no controlling rulé of law and no controlling decision of the questions now presented were announced. Undoubtedly, no rule was made by the decision for other like cases. It may be conceded,.too, that this cou'rt has the power to now reverse its former judgment and, for that purpose power to consider again the questions and arguments heretofore and now presented by appellant.

It has been the practice to regard the judgment of this court when entered of necessity and not by a concurrence of the opinions of the justices as no different, in effect, from a judgment entered by the vote of a majority of the justices. As was said in Lyon v. Circuit Judge, 37 Mich. 377:

“The same reasons of public policy, in favor of the conclusiveness of the judgment, apply to such cases as to others. The case has been heard and determined, and the public interest and the interest of the parties alike demands that there shall be an end of litigation.”

There has been no departure from this rule. There are exceptions, as when a prior decision is erroneous, recognized in some of the States; but the weight of authority and of reason is in support of the rule that a prior decision is conclusive of the same question on a subsequent appeal; is the law of the case. See the cases collected in a note, 34 L. R. A. 321.

Conceding this to be the rule, what difference does it make that the former judgment of this court was entered upon a demurrer to the declaration, which demurrer denied the right of plaintiffs to recover upon the state of facts alleged in the declaration ? No good reason is suggested for holding the judgment of this court conclusive in one case and not in the other, although counsel for appellant plausibly urge various reasons for so doing. In the last analysis, the argument is, and in any like case it must be, addressed to the proposition that the former decision was erroneous, for whatever reason entered, and that by a concurrence of opinion the justices should have agreed to a different conclusion and result.

It is conceded by appellees that one question is open to appellant, which is whether there was consideration for the addition to the policy of the loss payable clause. As ground for a directed verdict in its favor, defendant urged:

“Ninth. That the ‘loss payable’ clause attached to the policy of insurance declared upon was attached after the issuance of said policy, and that no consideration passed from the plaintiff to the defendant which could support a policy running to the plaintiffs.
“Tenth. That no consideration passed from plaintiff to defendant at the time the ‘loss payable’ clause was attached, which would support a waiver of defendant’s rights under the policy of insurance sued upon.”

It is said by appellant, in argument:

“There is no escape from the conclusion that, if a new insured party is brought into the policy contract by the loss payable clause, then there must be a new consideration shown therefor, for the entering into of the new contract, and for the waiver by the company of the important safety clauses of the policy.”

The point is not open, is ruled by the former decision and judgment. The language employed in the opinion of Mr. Justice Moore affirms the right of the plaintiffs to recover upon the policy of insurance in view of the facts alleged and proven. As I read it, it cannot be construed as making plaintiffs’ right to recover dependent upon proof of any new consideration moving to defendant for attaching the rider, whatever the legal consequences of attaching it may be.

Assuming the question to be undecided, and important as a question of fact, upon whom rested the obligation to prove a want of consideration ? Not upon the plaintiffs. Defendant offered no testimony, and elicited none from plaintiffs, tending to prove a want of consideration.

It follows that the judgment must be, and it is, affirmed.

Brooke, C. J., and Person, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


author: Stone, J.

text:
    LITTLEWOOD v. DETROIT UNITED RAILWAY.
    1. Street Railways — Negligence—Death — Automobiles — Contributory Negiigence. '
    In an action for the negligent killing of plaintiff’s intestate, at a crossing, evidence that the deceased stopped his automobile three or four yards from the interurban track, that the view was obstructed by a house in the direction from which the car approached, that when he saw the car he tried to back up, but his automobile went ahead then started back, and that the interurban car was operated at a speed of about 50 miles an hour, without signals of any kind, though one of plaintiff’s witnesses testified that the automobile was only seven or eight inches from the car track when it stopped, supported a verdict for plaintiff and raised an issue of fact as to the questions of negligence and contributory negligence.
    2. Same — Evidence.
    That the testimony of the witnesses was negative rather than affirmative upon the subject of sounding the signals, did not require the court to direct a verdict, when it was uncontradicted by any testimony offered by defendant railway company.
    Error to Wayne; Van Zile, J.
    Submitted October 21, 1915.
    (Docket No. 43.)
    Decided December 21, 1915.
    Case by Margaret H. Littlewood, as- special administratrix of the estate of Charles F. Littlewood, deceased, against the Detroit United Railway for the unlawful killing of the plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Affirmed.
    The following is the blueprint referred to in the opinion.

      Corliss, Leete & Moody (Frederic T. Harward, of counsel), for appellant.

      Bishop & Kilpatrick, for appellee.
   Stone, J.

This is an action to recover damages for injuries sustained by plaintiffs decedent, resulting in his death two days after the injuries complained of, and in the destruction of his automobile, occasioned by a collision of an interurban car belonging to the defendant with the automobile owned and being driven by plaintiff’s decedent on August 31, 1913, on Connors Creek road, at its intersection with Gratiot road, in Wayne county. Plaintiff’s decedent and husband was 50 years of age. On the day of the accident he had been engaged in carrying passengers, for hire, in his automobile, which had been his business for some time. He was familiar with the crossing and location. About 4 o’clock in the afternoon of said day plaintiff’s decedent was driving alone in his automobile northerly on Connors Creek road toward its intersection with Gratiot road. The attached blueprint is taken from the record, and will aid in understanding the locus in quo, and its surroundings. Connors Creek road runs in a northwesterly direction, although the witnesses speak of it as running north. It is 50 feet wide. Gratiot road runs northeasterly, and, is 55 feet wide. The house spoken of as the “Trombley house” is a two-story frame dwelling situated on the northeast corner of these roads. It is 9.7 feet from the front of this house to the easterly lot line of Gratiot road, and 12.9 feet from said lot line to the first rail of the interurban track upon Gratiot road, making 22.6 feet from the front of the house to the easterly rail of the car track. The switch is northerly of the intersection. It is 101.4 feet from the southerly point of the switch — that is, the point nearest to Detroit — to Connors Creek road, and 597.6 feet from the northerly point of the switch, that is, the point nearest Mt. Clemens, to said Connors Creek road. Vanderbeck’s saloon was situated on the southwest corner of the roads, with steps fronting on Gratiot road.

The declaration, after stating the duty of the defendant, alleges that its servants, agents, and employees did not exercise reasonable care, caution, and diligence, in that they did not ring a bell or sound a gong, or give any notice or warning of the approach of said car, and did not approach with care and caution, and did not have said car under control, and did not stop said car when plaintiff’s intestate with said automobile was being driven, or about to be driven, upon said track; that the crossing was of a dangerous character, and that the defendant did not when approaching said Connors Creek road keep any lookout or keep said car under control so that it could be immediately stopped and controlled; that there were obstructions in the nature of buildings adjacent to said intersection, and that defendant did not provide any safe, adequate, and effective signal to warn the public and plaintiff’s intestate of the approach of said car, failed to employ and station a watchman, or to install gates at said dangerous crossing, or to take any other safe, adequate, and effective means to protect the public and plaintiff’s intestate from danger and injury arising from the operating and running of its said cars on Gratiot avenue. The declaration proceeds in the following language; and plaintiff avers that on the day and year aforesaid the defendant, its

“agents, servants, and employees, wholly disregarding their duty in the premises, and while plaintiff’s intestate was lawfully operating and driving his automobile as aforesaid, and without any notice or warning, and without ringing a bell or sounding a gong, and in total and utter disregard of the rights of plaintiff’s intestate, and without his knowledge, carelessly, negligently, wilfully, and recklessly propelled said car towards plaintiff’s said intestate on said Gratiot avenue at a rate of speed, to wit, 50 miles per hour, causing said car to run into and collide with said automobile and plaintiff’s said intestate, whereby said intestate was then and there violently hurled and thrown with great force and violence out of said automobile and upon the ground adjacent to said car track,”

alleging that he received injuries from which he died two days thereafter.

The witnesses to the collision who testified were either sitting upon the steps in front of Vanderbeck’s saloon or near by.

At the close of plaintiff’s case defendant’s counsel moved the court for a directed verdict in its favor on the grounds that the plaintiff’s decedent was guilty of contributory negligence, and that the defendant had not been shown guilty of any negligence. The court .refused to grant this motion, to which ruling defendant duly excepted, and the case was thereupon, without any evidence upon the part of the defendant, submitted to the jury upon the questions whether plaintiff’s decedent approached the crossing with the care which a reasonably prudent man would have used under the circumstances, and whether defendant was guilty of negligence.

It was the contention of the defendant, in the court below and in this court, that the record shows, as matter of law, that plaintiff’s decedent did not use that care in approaching this crossing in his automobile which the law requires; and it is upon the alleged error of the court in refusing to direct a verdict upon the grounds aforesaid, as requested by defendant’s counsel, that the case is before this court. The trial resulted in a verdict for the plaintiff for $3,635 damages.

The eyewitnesses who testified were foreigners— Belgians — and it is evident, from a perusal of the record, that they did not readily understand the English language, and there is considerable confusion in their testimony.

Upon the question of contributory negligence, it is the claim of defendant, gathered from the testimony of plaintiff’s witnesses, from thé blueprint, and certain photographs that were offered in evidence, that it is undisputed that, when the plaintiff’s decedent made his first stop, he was not out from behind the Trombley house; that he drove up toward the track without stopping after he got out from behind the Trombley house until he was within 7 or 8 inches of the track, and within the danger zone; also, it is urged that it appears from the record that decedent not only failed to look for a car after getting out from behind Trombley’s house, where he could have seen one, but proceeded either upon or so close to the track that he was hit by the car, which was within 100 feet or less of him when he neared the track, and whose approach then, by a mere glance to the right, he would have detected had he been in the exercise of ordinary care.

The question of the contributory negligence of plaintiff’s decedent was first discussed by counsel. In order-for the defendant to prevail upon this point, it must appear, taking the most favorable view of the testimony of plaintiff’s witnesses, that there was no evidence of the exercise on the part of plaintiff’s decedent of the care which a reasonably prudent person would be expected to use under the circumstances.

Ella Blumdele, one of the principal witnesses for the plaintiff, testified that at the time of the collision she was sitting on the front steps of Vanderbeck’s saloon with Mrs. Vanderbeek and another witness, who had ■died before the trial. She testified that she saw the plaintiff’s decedent approaching the intersection of the roads, riding in his automobile, coming in a northwesterly direction; that he was running pretty slow. In her direct examination the following occurs:

“Q. How was it running when you saw it, Mrs. Blumdele?
“A. Pretty slow.
“Q. What did it do when it came up towards the car track?
“A. Well, at the corner of the house he stopped and he looked. He seen nothing, and he ran a little further. Then he stopped again. Then he started ahead a little further, and the car catch him. He stop the machine.
“Defendant’s Counsel: What is that; I didn’t understand that?
(The answer was repeated by the stenographer.)
“A. (Continuing.) When he was there a few yards away from the car track he stopped his machine. He did not see anything, and he started again. When he came near to the car track, he stopped again, and he tried to brake this machine, to back up, but the car hit him.
“Q. Where was the street car when you first saw it?
“A. On the switch.
“Plaintiff’s Counsel: Ask her that again.
(The question was here repeated by the stenographer.)
“A. I couldn’t exactly tell you how far it was.
“Q. Was it near the switch?
“A. Yes.
“Q. Did you know there was a switch up above there, did you?
“A. Yes; it comes near to Trombley’s house there.
“Q. How fast was the street car going when you saw it first?
“A. It was pretty fast. * * *
“Q. This automobile when it was coming on Connors Creek road towards you, can you tell how fast it was going before it stopped?
“A. Just like a horse would run, easily.
“Q. Where did it stop first?
“A. Three or four yards away from the road.
“Q. Well, do you mean the street car track?
“A. Yes.
“Q. When the automobile stopped, what did the man do at the time?
“A. He looked up the way to Mt. Clemens, and he looks that way.
“Q. Then what did he do ?
“A. Well, he started again.
“Q. He started his machine up?
“A. Yes.
“Q. How far did he go then ?
“A. Well, not far from the track; close to the track.
“Q. Did he get his machine up close to the track?
“A. Yes.
“The Court: No; ask her if he got his machine up on the track.
“A. No; he was not on the rails yet.
“Q. When the street car hit him, where was the automobile?
“A. Just struck the track then.
“Q. Was his automobile moving or was it standing still when the street car hit it?
“A. He was standing still.
“Q. What was the man in the automobile doing when his car was on the street car track?
“A. He did something with his feet.
“Q. How much of the automobile was over on the street car track; could you tell?
“A. About four or five fingers.
“Q. What part of the automobile was on the street car track?
“A. The front.”

This witness afterwards testified that the car, as it approached, was running at least 50 miles an hour and hit the automobile; and she described how the automobile was struck and demolished and the car thrown from the track.

“Q. Did this street car that came down here and hit the automobile give any alarm or blow any whistle?
“A. I didn’t hear nothing. I was looking at the street car when the automobile was there. I was near enough to the street car to hear it if it blew a whistle. There was nothing between me and the street car that was coming. It was a nice day. The sun was shining.”

Upon cross-examination this witness testified, among other things, as follows:

“* * * The track is perfectly straight along there towards Mt. Clemens.
“Q. Well, now, when you saw the automobile first, how far from the track was it?
“A. There was a big tree there.
“Q. How far would that be; how many yards?
“A. I don’t know; I didn’t measure it.
“Q. Well, you seem quite expert. How far would you say; how many yards?
“A. I don’t know; I couldn’t tell you that.
“Q. How far in, this room; as far from you over to the end of the room?
“A. I couldn’t tell you; I don’t know.
“Q. Do you know how far the tree is? Would it be as far from you as to the clock there on the wall?
“A. Yes; I guess so; so far as from here to the wall.
(The record shows that the deputy sheriff measured the distance and found it to be 52 feet.)
“Q. You saw that automobile that distance away from the track? Where was the street car then?
“A. I didn’t see the street car at that time. I could not exactly tell you where the street car was then.
“Q. Was it in sight?
“A. I couldn’t tell you that; I didn’t see it.
“Q. Well, did the automobile come right on?
“A. No; he stopped first.
“Q. Well, how far from the track did he stop ?
“A. Three or four yards.
“Q. Twelve or fifteen feet?
“A. Yes.
“Q. Well, was he out from behind Trombley’s house when he stopped?
“A. No; no; he was not behind Trombley’s house when he first stopped. He could see the car.
“Q. Did you see the car then?
“A. I didn’t look at the street car at that time.
“Q. Had you seen the street car then?
“A. No; I didn’t see her yet.
“Q. Well, after that time did he go right over to the track, or did he stop again?
“A. He stopped again.
“Q. Where was that when he stopped again?
“A. Close by the track.
“Q. Was he on the track the last time that he stopped there; the second or the next time after he stopped, was he then on the track?
“A. Four or five fingers from the track.
“Q. What does she mean by four or five fingers?
“A. Why, put your hand like this (indicating); four or five fingers like that.
“Q. Was the front of the automobile on the track?
“A. No; he was not on it yet. * * *
“Q. Was there any part of his machine on the track?
“A. No.
“Q. But you put your hands up how far the front of the automobile was from the rail?
“A. (Witness indicates.)
“Q. The very front?
“A. Like that (indicating).
“The Court: About six or eight inches.
“Q. About six or eight inches? Well, now, where was the car then?
“A. She was then on the switch. I have seen her then.
“Q. What did she say then? When this man came up in the automobile and stopped there, you say four or five fingers from the track, the street car, you say, was then at the switch; that is the end of the switch nearest you; is that right?
“A. Yes.
“Q. Was that the first time that you had seen the street car?
“A. Yes.
“Q. And it was one hundred feet? By this map it was one hundred and one feet away. Now, you say it was coming fifty miles an hour, do you?
“A. Yes. * * *
“Q. Now, let’s see if we understand each other. This man came up, and he stopped about three or four yards from the track.
“The Court: No; five yards the first time.
“Plaintiff’s Counsel: No; three or four, your honor.
“Defendant’s Counsel: Three or four.
“Q. Now, this man is coming north on Connors Creek road — the man in the automobile?
“A. Yes; towards the track.
“Q. You saw him when he was fifty-four feet away, as far as from you to that wall?
“A. Yes.
“Q. He was coming slowly, you say, very slowly?
“A. Very slow.
“Q. What kind of an automobile did he have, an open car or a closed car, or what?
“A. It was an open car.
“Q. And he came up towards the track? When he was three or four yards from the track you say he. stopped?
“A. The first time; yes.
“Q. You did not know where the car was then? <
“A. No.
“Q. You did not see the car; you did not look at the car?
“A. No, sir.
“Q. Meaning the street car, did you ?
“A. No, sir.
“Q. Then the man came right on, and he stopped when the front of his car was, say a foot, from the track?
“A. Yes. * * *
“Q. When he came to a stop the second time the street car was on the switch?
“A. Yes, sir.
“Q. Coming down at 50 miles an hour; is that right?
“A. Yes, sir.
“Q. It struck the automobile while it was in that position; is that right? The street car hit the automobile while the automobile was, as you say, that far from the track, about eight inches?
“A. No; this man saw the street car coming, and he tried to back up. I think it was, something what he tried to do with his feet. But, in place of when the machine was there going backwards, she went a little frontwards, then started back. Then he was hit.
“Q. Well, then, the way it looked to you that the man in the automobile did not see the street car until he was up there about six or seven inches from the track; is that right? (Strike that out.) When he saw the street car, what did the automobile man do?
“A. That is it; he tried to press something down with his foot. * * *
“Q. So that, when this man in the automobile, Mrs. Blumdele, stopped the first time, he could not see up the track, could he?
“A. Well, he could see the switch, though, but not very far.
“Q. You could not see very far up the track until you got beyond the porch?
“A. No.
“Q. This man didn’t stop again with his automobile until he got up within eight inches of the track, did he ?
“A. When he came eight inches from the track.
“Q. When this man stopped his automobile the first time, what did he do?
“A. He looked.
“Q. Which way did he look?
“A. On the side of Trombley’s house.
“Q. Then at the time did you see the street car ?
“A. No.”

This testimony is followed by that of the witness Mary Vanderbeck. From the testimony of this witness counsel for defendant contends that it appears that plaintiff’s decedent made no stop until he was about seven inches from the track. It appears, however, that this witness testified that the driver stopped his automobile near the fence, and, although it is true she used the expression “six or seven inches” in estimating the distance from the track, she later testified that she did not know how long a foot was. In her cross-examination the following appears:

“Q. And then he gets within six or seven inches of the track—
“A. Until he gets up to the fence.
“Q. Well, is it the fence now?
“A. That is, the front part; it is the front part. The fence is the front part of Trombléy’s house.
“Q. What does he do when he gets to the fence?
“A. He stopped and looked.
“Q. How far was he from the track?
“A. It is almost up to the track; the fence and the car track is almost together.
“Q. The fence is not on the track?
“A. No; it is a very little between, when he started up again. * * *
“Q. Did he stop twice before he got to the railroad track?
“A. No; he came along slowly.
“Q. You say he stopped by the fence down there?
“A. That is the fence, is near to the track.
“Q. Is near to the car'track?
“A. Yes, sir.
“Q. But it is not six or seven inches.
“A. It looks to me it is that much.
“Q. There would not be any fence there along if it was six or seven inches from the track?
“A. I couldn’t tell you exactly.
“Q. That is the only time he stopped, was it?
“A. He stopped right close on the corner, right on the corner.
“Q. Close to the car track?
“A. Close to the car track.” •

The plaintiff claims that there was evidence showing that the plaintiff’s decedent stopped and made his first observation after he had passed from behind the Trombley house, being at a point less than 22.6 feet from the nearest rail, and variously described by the witnesses as being 3 or 4 yards from the rail, or beyond the corner of the house, or near the fence; that he made the first stop at a proper point of observation, and, although he looked, he did not see the car, the inference being that the car was not then in sight. There was evidence that there was a northbound car on the side track at the time, although the photographs, taken 20 days later, do not show this car. The court, counsel,, and jury visited the place of the accident and viewed the premises. The solution of the question of contributory negligence is found in the answer to the question: Did plaintiff’s decedent do what a reasonably prudent man would have done under the circumstances ?

1. Confusing as some of the testimony is, we are unable to say that there was no evidence tending to show that plaintiff’s decedent stopped his car and looked in the direction of Mt. Clemens when within 3 or 4 yards of the first rail of the track; in fact, there is positive testimony that he did so stop and look. If he stopped and looked at that place, afid saw no car approaching, we cannot say, as matter of law, that he did not act as an ordinarily prudent person should in then proceeding toward the track. Palmer v. Railroad Co., 56 Mich. 1 (22 N. W. 88); Coffee v. Railroad Co., 139 Mich. 378-381 (102 N. W. 953). The evidence is undisputed that, when he made his final stop, he endeavored to move his car backward, but that, in the confusion, it went forward and then back. He doubtless saw his perilous condition at that time, and was unable to extricate himself. In our opinion, the question of contributory negligence was one for the jury, and the trial court did not err in submitting it as a question of fact.

2. Upon the subject of signals two other witnesses besides Mrs. Blumdele testified that they heard no signal. One of such witnesses testified.

“He didn’t blow; me think the car did not blow, or I hear it that way. If a car blow, me think I can hear it right away. It was nice weather; there was no wind. I didn’t hear any blow.”

There seems to be no question upon this record that the speed of this car as it approached the automobile was from 50 to 60 miles an hour. Counsel for defendant urged that this court had held that it was not per se negligence for cars to run at the rate this car was shown to have been running, and cites cases, including that of Folkmire v. Railways Co., 157 Mich. 159 (121 N. W. 811, 17 Am. & Eng. Ann. Cas. 979). It is true that in that case this court held that the rate of speed of 40 or 50 miles an hour was not per se neglD gence, but the court further said it did not follow that it was not negligence; that that must depend upon other considerations. In that case Justice Hooker, speaking for the court, said:

“Counsel say that we have decided that it is not negligence to drive a car at a high rate of speed in the country, citing the cases of Robinson v. Railroad Co., 79 Mich. 328 [44 N. W. 779, 19 Am. St. Rep. 174]; Shufelt v. Railroad Co., 96 Mich. 329 [55 N. W. 1013]; Tobias v. Railroad Co., 103 Mich. 339 [61 N. W. 514]. These cases do not hold that the exigencies of modern travel require rapid transit, and sustain the statement hereinbefore made that a steam car is not necessarily negligently run when a high rate of speed is attained, and that speed alone is not per se negligence. It does not follow that a rate of speed making it impossible to get off from a track in safety after it is possible to discover a car is not a negligent rate of speed, nor that it is not negligent to maintain a highway crossing exceptionally dangerous without some provision for preventing such accidents. It is true that the whistle and incessant ringing of the bell, together with the noise accompanying a heavy train on a steam road, has generally been deemed sufficient care without placing flagmen or electric bells on the crossings, but there are cases where the contrary has been held.”

We are not aware that this court has ever held that it might not be negligence to run a car in a public highway, over a frequented crossing, even in the country, at a rate of speed of 50 miles an hour, without signals of any kind. But it is urged by counsel for defendant that there' was no evidence here that the whistle was not sounded or signal given; the only evidence being negative evidence. We are not prepared to say that this evidence, standing uncontradicted, is no evidence to be submitted to the jury, in the absence of affirmative evidence opposed to it. In our opinion, the question of negligence was properly submitted to the jury.

We find no reversible error in the record,, and the judgment below is affirmed.

Brooke, C. J., and Person, Kuhn, Ostrander, Bird, MOORE, and Steere, JJ., concurred.


author: Kuhn, J.

text:
    CARLSON v. WYMAN.
    Appeal and Error — Certiorari—Intoxicating Liquors — Moot Point.
    A cause that presents only a moot point, relating to merely abstract questions of law, will not be passed upon by the Supreme Court; hence, on certiorari to review mandamus proceedings in which the court denied the writ of mandamus to compel village officials to approve relator’s liquor bond, this- court will not decide the point after expiration of the period covered by the license.

      Certiorari to Alger; Fead, J.
    Submitted October 27, 1915.
    (Calendar No. 26,699.)
    Decided December 21, 1915.
    Mandamus by Charles J. Carlson against Thomas IB. Wyman and others to compel the respondents to approve the bond and liquor license of relator. From an order denying the writ relator brings certiorari.
    Writ dismissed.

      R. R. Stewart, for appellant.
   Kuhn, J.

This is a certiorari proceeding by which it is sought to review the action of the circuit judge in denying the relator’s prayer for a writ of mandamus to compel the respondents, who are the president and board of trustees-of the village of Munising, to reconvene and approve his application filed October 1, 1914, and bond filed October 10, 1914, to engage in the retail liquor business for the remainder of the license year.

A meeting of the council was held on October 20, 1914, at which time the relator’s application was rejected without any reason being given, and no action was taken with reference to the bond. It now appears, and is conceded by counsel for relator in his brief, that the period covered by the relator Carlson’s application has passed, and that therefore no relief can now be granted him. This litigation, therefore, at this time presents simply abstract questions of law which do not rest upon existing facts or rights. This of necessity renders it a “moot case,” which we will decline to determine.

The writ of certiorari having been improvidently issued, it will be dismissed, without costs.

Brooke, C. J., and Person, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Kuhn, J. Brooke, C. J.

text:
    PEOPLE v. EAGLE.
    Criminal Law — Evidence—Larceny—Harmless Error.
    Where a witness, in a prosecution for the larceny of a cow,, had positively identified respondent as the man who sold him a cow answering the description of the one lost, evidence as to his conversation with the sheriff and the circumstances leading up to his identification of respondent by a photograph, was harmless error.
    Error to Alpena; Emerick, J.
    Submitted October 28, 1915.
    (Docket No. 106.)
    Decided December 21, 1915.
    George Eagle was convicted of larceny.
    Affirmed.

      Grant Fellows, Attorney General, and Carl R. Henry, Prosecuting Attorney, for the people.

      I. S. Canfield, for respondent.
   Kuhn, J.

The respondent was placed on trial in September, 1913, under an information charging him with having, on the 29th of June of that year, committed the crime of larceny of one “Jersey colored milch cow, of the value of $50, of the property of Mary E. King.” The jury were unable to agree upon a verdict and the court discharged them from further consideration of the case. He was again placed on trial in the following December term of the court for the same offense, and was then convicted by the verdict of the jury and sentenced to be confined in the State prison at Jackson for a period of not less than 2% years and not more than 5 years from and including the 13th day of December, 1913. A review of the case is sought here by writ of error.

The assignments of error which counsel for respondent urges to reverse the case are grouped by him in his brief under three headings:

(1) Exclusion by the court of competent evidence in favor of the respondent.
(2) Admission by the court of incompetent evidence against the respondent.
(B) Prejudicial errors by the court in charging the jury.

The cow alleged to have been stolen was 11 or 12 years of age, and had been raised by Mrs. King, the owner, from a calf. Some 6 or 7 years before the trial the cow had been dehorned, and' the horn on the right side was three or four inches long, while the horn on the left side was a mere stub. Upon the trial the people produced a skull, to which some hair was still attached, and two witnesses (Mrs. King, the owner, and William King, a neighbor) identified the skull as that of the lost cow by the peculiarities of the horns. Mrs. King further stated that she was able to identify it by “what little hair is left on there, and I can almost see the expression of the cow just in them bones, as she looked to me when alive.”

A witness named Boilore, who was in the business of buying and selling cattle, was asked the following questions by respondent’s counsel on cross-examination :

“Q. Could anybody tell anything about that particular skull belonging to any particular cow ?
“A. Well, I couldn’t.
“Q. Well, would you think so?
*‘A. I couldn’t say.

The court thereupon ruled:

“I don’t think that that testimony is competent, Mr. Canfield. A mere matter of opinion for the jury to say.”

It is urged that this is error, and that he should have been allowed to testify. It seems to us clear, however, that the witness had already said that he “could not say.” There could not, therefore, have been any error in thé court’s ruling.

Error is also urged because of the refusal of the court to permit certain evidence on the cross-examination of the people’s witness John Simmons, the sheriff, which was offered to show that the sheriff had associated with him a mind reader in his efforts to apprehend the offender. He was sworn to show where and how he located the skull, and further, to establish the custody of the skull from the time it was exhibited to the witnesses until the time it was produced in court. The court, with reference to this testimony, said:

“The people of this State, the prosecution in this case, have not placed any reliance on any mind readers, nor other readers, that I can see. Noboby is trying to tell fortunes or anything of that kind. They are just telling you — Mr. Simmons is telling you what he did. Of course, you would have a right to cross-examine, if you dispute the fact that he got the head up there. I don’t see what this mind reader has got to do with the case myself. If he didn’t get the head up there, .that is all right. But he says it is where he got the head; and there has been some witnesses that expressed the opinion that this is the head of Mrs. King’s cow. There are no mind readers in here, and I would like to keep them out, if I could, because it hasn’t got a thing to do with this case.”

We are of the opinion that no error was committed by the court in restricting the cross-examination of the witness in the way he did, and excluding testimony which was clearly incompetent and immaterial.

The witness Boilore testified that he purchased a cow answering the description of the cow Mrs. King claimed to have lost, and positively identified the respondent as the man from whom he purchased the cow. The witness had never seen the respondent before he purchased the cow from him, and the next occasion of his seeing him was in the office of the prosecuting attorney, at which time, he testified, the following took place:

“I was setting in the office and Mr.-, our sheriff, come in and got talking about — about this case. I didn’t know anything about it, and the sheriff put his hand in his pocket and give me a photograph. I looked at the photograph. I .says: ‘I bought a cow from this man.’ I didn’t know anything more about it than I did anything. So the sheriff says: ‘Come on with me; I want you.’ Took me out doors and fetched me over to the court. They asked me — Mr. Henry asked me if this was the man. ‘Do you know the man?’ I says: ■‘Yes; that is the man, right standing out doors there, standing right there.’ I was fetched upstairs in court; never knew any more about it; put on the examination stand right away.”

It is urged that this testimony was incompetent, irrelevant, and immaterial, and that its admissior was therefore error. We cannot agree with this contention of counsel, and think that it was entirely proper to show how and in what manner the respondent was identified by the witness as the person from whom he purchased the cow.

Other assignments urged relate largely to the charge of the court, and it is urged that the court, in referring to certain facts, gave undue prominence to the testimony of certain witnesses, and that parts of his charge were argumentative in nature. It is true that some parts of the charge taken by themselves might be subject to the criticism made of them by counsel. Nevertheless, taking the charge in its entirety, we are impressed that it carefully conserved the rights of the respondent and submitted the issue to the jury with the proper instructions.

After a careful examination of this record, we are not convinced that any prejudicial error was committed in the trial of this case, and therefore affirm the judgment of the court below.

Bird .and Moore, JJ., concurred with Kuhn, J.

Brooke, C. J.

We are of opinion that the admission of the testimony last quoted of the witness Boilore was harmless- error, and we therefore concur in the result.

Person, Stone, Ostrander, and Steere, JJ., concurred with Brooke, C. J.


text:
    ST. JOSEPH’S CHURCH v. CITY OF DETROIT.
    1. Taxation — Exemption—Church Property.
    A lot owned by a city church and used as a tennis court for a part of the time after its purchase, being intended for a parsonage, which the plaintiff commenced to erect after the taxes for the year had been assessed and which was occupied by its rector in November of that year, was properly assessed, and could not be treated as exempt property until it was actually used for religious purposes. 1 Comp. Laws, § 3830, subd. 5, as amended by Act No. 174, Pub. Acts 1911.
    2. Same — Definition.
    A parsonage may be defined as a house in which a minister of the gospel resides; it may be with land or without it.
    3. Same — Assessment—Detroit Charter.
    Under the charter of the city of Detroit, property is required to be assessed before the first of April, and the taxes become an indebtedness of the owner from the time of listing the land for assessment. The taxes levied become a lien on the first of July.
    4. Same — Strict Construction.
    It is a cardinal rule that exemption statutes, unlike homestead statutes, should receive a strict construction.

      5. Same.
    A grant of exemption from taxation is never presumed; on tlie contrary, in all cases of doubt as to the legislative intention, or as to the inclusion of particular property within the terms of the statute, the presumption is in favor of the taxing power and the burden is on the claimant to establish clearly his right to exemption.
    Error to Wayne; Codd, J.
    Submitted October 27, 1915.
    (Docket No. 150.)
    Decided December 21, 1915.
    Rehearing denied June 23, 1916.
    Assumpsit by St. Joseph’s church against the city of Detroit to recover back taxes paid under protest. Judgment for plaintiff. Defendant brings error.
    Reversed ; new trial denied.

      Walter Barlow (Harry J. Dingeman, of counsel), for appellant.

      John J. Gafill, for appellee.
   Stone, J.

This is an action in assumpsit to recover certain general city taxes assessed upon certain real estate of the plaintiff for the year 1913, and paid under protest by the plaintiff. There are no disputed facts in the case. They were agreed, by stipulation filed, to be as follows:

“Plaintiff is an Episcopal Church, organized under the .laws of the State of Michigan, in the year A. D. 1887, for purposes of public worship, and has continuously conducted religious services from the date of its organization down to the present.
“That from and after its. organization, religious services were conducted in the church building on the northeast corner of Medbury and Woodward avenues, and so continued until on or about, to wit, the year 1907. The property at the corner of Medbury and Woodward avenues was sold in 1907 and the money received for the equity in the property at the corner of Medbury and Woodward avenues was used to apply on the purchase of the following described property:
“Lot 1 of J. W. McLaughlin’s subdivision of the westerly 1,492 feet of the northerly half of lot 4, and the westerly 1,492 feet of lot 5 of the subdivision of quarter section 44, 10,000-acre tract, in the city of Detroit, this lot having a frontage of 117.44 feet on Woodward avenue, and 200 feet deep on Holbrook avenue;
“Also lot two of J. W. McLaughlin’s subdivision of the westerly 1,492 feet of the northerly half of lot 4 and the westerly 1,492 feet of lot 5 of the subdivision of quarter section 44, 10,000-acre tract, in the city of Detroit, Wayne county, Michigan, this property having a depth of 130 feet on Woodward avenue and 200 feet on King avenue.
“The above-described lots 1 and 2 are located on Woodward avenue, between Holbrook and King avenues, being adjoining lots and having a frontage of 247.44 feet on Woodward avenue, and having a depth of 200 feet on Holbrook and King avenues, as above set forth.
“That the church property at the corner of Med-bury and Woodward avenues was never assessed or taxed, during the time it was used and occupied as a church, that is, from 1887 down to the date of sale, the same being treated as exempt under the law.
“That the property on Woodward avenue between Holbrook and King avenues was purchased in 1907. That this property was purchased exclusively for church purposes, and for constructing thereon church buildings, and the plan at the time of purchase was to utilize the property, by putting a large church building in the center of the property, facing Woodward avenue, and the parsonage on the King avenue side of the property, and the church house on the Holbrook avenue side, and sketches were made at the time of purchase of this general plan. On account of the expense involved in putting up the large building, the church built temporarily, a church house, for religious services on the Holbrook side of the property. This was done in 1907, and religious services have been conducted in. this building down to the present time, this church building occupying lot 1 hereinbefore described. On or about the 1st day of April, 1912, the establishment of a tennis court was authorized by the vestry, upon lot 2, and this tennis court was established for the benefit of the members of the church, and at the church expense. The tennis court is still in existence and maintained by the church and used by the church members.
“That on or about the 22d day of July, A. D. 1912, a resolution was p.assed authorizing the construction of the parsonage on lot 2, and the contract for the construction of the parsonage was let on or about, to wit, the 7th day of April, A. D. 1913, and the actual work begun on or about, to wit, April 10, 1913, and the rector moved into the parsonage on or about, to wit, November 15, 1913. None of the property above described was assessed or taxed from the time the church acquired same until 1912, when the assessing officers placed on the rolls lot No. 2 above described, and the tax was paid by the church in 1912. Lot 2 was again assessed for the year 1913. This tax the church refused to pay, and presented the matter to the board of review for cancellation, on the grounds that the property was exempt, as the construction of the parsonage had actually been started about, to wit, April 10, 1913. The board of review, however, declined to remove the assessment. Later the matter was presented by petition to the common council for cancellation, which petition was denied, and the following resolution passed by the common council February 16, 1915, to wit,
“ ‘To the Honorable tbe Common Council—
‘Gentlemen:
‘Your committee on taxes, to whom was referred tbe petition of tbe St. Joseph’s Episcopal Church, asking for the cancellation of the taxes on lot 2, Joseph R. McLaughlin’s subdivision of the w’ly 1,492.92 ft. of the N. y2 of lot 4 and the w’ly 1,492.92 ft. of lot B of the sub. of % sec. 44, 10,000-acre tract, for the year 1913, respectfully report that we find this property was purchased by the society prior to the year 1908, and that the building of a parsonage thereon was done in 1913, the property was prematurely exempted from taxation for the years 1908, 1909, 1910, 1911, and 1912. The assessors, finding it still vacant in 1913, placed it on the rolls, but, in 1914, finding that a parsonage had been built, and was at that time occupied, exempted the property from further taxation.
“ ‘Your committee have, for many years, taken the position that under the laws of the State of Michigan, which exempts-from taxation such properties as are owned and occupied by religious societies for religious purposes, that such exemption applies only to such properties, after the building is occupied, and used for religious services therein, or as a parsonage.
“ ‘The St. Joseph’s Church, due to the premature exemption, mentioned, has already received a benefit of five years’ exemption from taxation on this lot, to which, in our opinion, they were not really entitled. Your committee, however, owing to-the existing misunderstanding, as this tax for the year 1913-having been levied, recommend that the society be permitted to-pay the taxes due for that year, without the penalty and interest charges, and we herewith submit the proper resolution and recommend its adoption. [Signed by Committee.]’ ”

Thereupon a resolution of the common council was unanimously adopted, directing the city treasurer to accept the actual amount of the tax, canceling all penalty and interest charges thereon, provided the same should be paid within 30 days from the adoption of the resolution. Thereafter, and on April 6, 1915, the full tax, with -penalty and interest, was paid by plaintiff, under protest, claiming that the property was exempt from taxation, under the statute.

Upon the foregoing statement of facts, and the pleadings, each party moved the trial court for a directed verdict in its favor. The court directed the jury to return a verdict for the plaintiff, for the full amount claimed, which was done, and a judgment was entered thereon. The defendant has brought error. The only errors assigned are, to the refusal to direct a verdict for the defendant, and the direction of a verdict for the plaintiff. The only question presented by the record is whether said lot 2 was properly assessed for general city taxes for the year 1913.

The taxation, or exemption from taxation, of said lot 2 for said year, depends on the construction to be placed upon section 3830, subd. 5, 1 Comp. Laws, as amended by Act No. 174, Pub. Acts 1911, which reads as follows:

“The following real property shall be exempt from taxation: * * *

“5. All houses of public worship with the land on which they stand, the furniture therein and all rights, .in the pews, and also any parsonage owned by any religious society of this State and occupied as such.”

A parsonage may be defined as a house in which a minister of the gospel resides. In its ecclesiastical .sense the word was “glebe (or land) and house” belonging to a parish appropriated to the maintenance •of the incumbent, or. settled pastor of a church; but its modern general signification is in the sense of its being the residence of a parson, and it may be with land or without it. 29 Cyc. p. 1693; Wells Estate v. Church, 63 Vt. 116 (21 Atl. 270).

It will be borne in mind that the contract for the construction of the parsonage in the instant case was let on or about April 7, 1913, and the actual work begun on or about April 10, 1913, and the rector moved into the parsonage on or about November 15, 1913.

We agree with the claim of appellant that the dominant feature of the statute is that such parsonage must first be occupied as a parsonage, before it can be held to be exempt from taxation. In other words, it is an essential requirement of the statute that the parsonage must be occupied as such before it can be legally exempted from taxation. Whether, after such occupancy, a mere temporary vacancy would render it subject to taxation, we need not decide.

The Detroit city charter requires that:

“The board of assessors shall before the first day of April in each fiscal year, assess at its true cash value all the real and personal property subject to taxation by the laws of this State, within the limits of .each ward, respectively, of said city.”

Also that:

“All city taxes shall become a debt against the owner from the time of the listing of property for assessment by the board of assessors, and shall become due and payable forthwith upon the receipt of the tax roll by the receiver of taxes.”

As we understand the charter, the assessment becomes conclusive April 1st, unless it is modified by the board of review. City of Detroit v. Patten, 143 Mich. 243 (106 N. W. 884). And the taxes levied become a lien on the real estate assessed on July 1st, when the tax rolls go into the hands of the city treasurer for collection. Eaton v. Chesebrough, 82 Mich. 214 (46 N. W. 365); Jacobs v. Trust Co., 155 Mich. 233, 235 (118 N. W. 921); Crawford v. Koch, 169 Mich. 372, 380 (135 N. W. 339).

It is a cardinal rule that exemption statutes — unlike homestead statutes — should receive a strict construction. Cooley on Taxation (2d Ed.), p. 205. Statutes providing for exemption from taxation must be understood as exempting only as therein specified.

A grant of exemption is never presumed; on the contrary, in all cases of doubt as to the legislative intention, or as' to the inclusion of particular property within the terms of the statute, the presumption is in favor of the taxing power, and the burden is on the claimant to establish clearly his right to exemption. See 37 Cyc. pp. 891, 892, and cases cited, including East Saginaw Manfg. Co. v. City of East Saginaw, 19 Mich. 259 (2 Am. Rep. 82); Attorney General v. Common Council, 113 Mich. 388 (71 N. W. 632). We have accordingly held that only such lands of a railroad company as are held and presently used for railroad purposes are exempt from taxation on the general roll; the exemption not applying to lands acquired by the company, with a view to future use. Auditor General v. Railroad Co., 119 Mich. 682 (78 N. W. 889); Auditor General v. Railroad Co., 114 Mich. 682 (72 N. W. 992).

The statute there under consideration provided that the specific taxes on a railroad company should be in lieu of all other taxes, except such land as was “not actually occupied in the exercise of its franchise, and not necessary, or in use in the proper operation of the road.” A careful examination of the statute, and the authorities cited, lead us to the conclusion that the lot involved in the instant case was legally taxed for the year 1918.

The judgment of the circuit court is therefore reversed, and no new trial will-be granted.

Brooke, C. J., and Person, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    PEOPLE v. PLUMMER.
    1. Criminal Law — Intoxicating Liquors — Evidence — Illegal Sales — Other Offenses.
    In a prosecution for the unlawful sale of beer in a local option county, testimony that another party present purchased and paid for beer on the same occasion was admissible to refute the contention that the act was merely one of a hospitable nature, and to impeach respondent who testified to the defense alleged.
    2. Same — Witnesses—Requiring Prosecution to Produce.
    The trial court did not commit error in refusing to compel the people to indorse as a witness, on the information, the name of one who lived with respondent and upon whom marked money was found that the police had procured to be used in the buying of beer, and who was not, in fact, present when the liquor was furnished; the record also showing that the respondent had objected to the testimony relating to the finding of the marked money, and ■ that the court had struck it out, later, on respondent’s motion, restoring the proof to form the basis of the motion to indorse the additional name on the information. The subject was a matter that rested in the discretion of the courvt.
    3. Same — Witnesses.
    An agent of the police, employed to secure, not evidence of a crime committed, but evidence of a crime to be committed by the procurement of the agent, is not a person whose testimony upon the subject of the crime is generally received, in or out of court, without close scrutiny; but it is not the right of a respondent to have the jury instructed to regard his testimony favorably or unfavorably.
    Exceptions from Ingham; Wiest, J.
    Submitted October 28, 1915.
    (Docket No. 108.)
    Decided December 21, 1915.
    Rosetta Plummer was convicted of unlawfully selling intoxicating liquor in a county in which prohibition was in force.
    Affirmed.

      Grant Fellows, Attorney General, and William C. Brown, Prosecuting Attorney, for the people.

      Warner, Raudabaugh & Person, for the respondent.
    Respondent is charged with having sold and furnished beer to one Charles Hill, she not being a pharmacist, the sale being made in Ingham county, in which county selling and furnishing liquor was forbidden, pursuant to the provisions of Act No. 207, Pub. Acts 1889, as amended. The testimony for the people tended to prove the sale of beer as alleged and the payment for the same in marked money, afterwards recovered, but not from respondent. The witness Charles Hill was an agent of the police of the city of Lansing for the special purpose of trying to purchase liquor of respondent upon the particular occasion. By-1 an arrangement members of the police force visited respondent’s residence at or about midnight, found evidences of the drinking of beer, arrested all inmates of the house, and took them and some beer found on the premises to police headquarters.
    The people produced as a witness Arthur Rossman, one of the men found at respondent’s house upon the occasion in question, and without objection he gave testimony to the effect that upon the same evening he had beer served him by respondent and paid her 50 cents for two pint bottles of beer.
    The marked money which the witness Hill claimed to have paid to respondent for the beer he purchased was found by the police at the police station in the possession of Charles Garver. The name of Garver was not indorsed upon the information, and he was not produced by the people as a witness. The court refused to require the people to indorse the name or produce him as a witness.
    The testimony being concluded, respondent moved to strike out the testimony of Arthur Rossman as incompetent, irrelevant, and immaterial, the point which was made being that it tended to prove an offense other than the one which respondent is charged with having committed, for which purpose it was not admissible. The motion was denied. Respondent admitted having furnished beer to Hill and his companion Cook, but as an act of hospitality to guests. She denied having accepted any money for it; denied knowledge of any sale or furnishing of beer to Ross-man ; testified that the beer belonged in any event to a man rooming at her house, to whom it appears to have been consigned. The court left to the jury the question whether respondent sold or furnished the beer as charged, or furnished it as an act of hospitality, saying:
    “One may in his own home, as an act of hospitality in good faith, and not as a subterfuge, but an act of entertainment and kindness, give a visitor intoxicating liquors, and not be guilty of a violation of the local option law.”
    And the jury was instructed that, if they entertained a reasonable doubt upon the question of her good faith, she was entitled to the benefit of the doubt. As to the testimony of Rossman the jury was instructed that respondent was not charged with having furnished him nor any one but Hill with liquor, but that, if they found that during the evening she furnished liquor to others, they might consider the fact as affecting her motive and purpose in furnishing liquor to Hill. As to the witness Hill the court said to the jury, in substance, that he went to respondent's house to induce her to violate the law, to be a party to such violation of the law, and in considering his testimony they should consider what he undertook to do as bearing upon the credit which should be given him, and should bear in mind that his services had been enlisted for the purpose of securing evidence against the respondent; that the credit to be given to his testimony was for them to determine.
    The exceptions urged in this court are:
    (1) To the ruling refusing to strike out the testimony of Rossman.
    (2) To the charge as relating to his testimony.
    (3) To the ruling respecting the indorsement of Carver's, name on the information and to calling him as a witness for the people.
    (4) Refusal to give the substance of respondent’s third and fourth requests to charge, which relate to the favor or disfavor with which the testimony of Hill should be viewed.
   Ostrander, J.

(after stating the facts). None of the exceptions can be sustained. In view of the positive testimony of sales of liquor to Hill and his companion, the admission that liquor was furnished to them, and the claim that it was a mere act of hospitality, it was material and pertinent to consider the testimony that during the same evening respondent furnished liquor to another male acquaintance and received pay for it, as affecting the credit to be given to her testimony. People v. Giddings, 159 Mich. 523 (124 N. W. 546, 18 Am. & Eng. Ann. Cas. 844); People v. Hancock, 166 Mich. 654 (132 N. W. 443).

It is not contended that Garver was present when the alleged furnishing of liquor occurred. He was a boarder, or roomer, in the house, and was taken, with all the others, by the police. The testimony of a police officer is that the marked bills which Hill testifies he paid to respondent for liquor were found in Garver’s possession. How he got them does not appear. It is said in argument that, having laid a trap for respondent, the plan including the use of marked money to be found in her possession, the people should in fairness account for this failure of the plan; that in laying the plan the police themselves determined the res gestse, and the people have not developed the res gestse. But it is plain that Garver was not a necessary witness in making out the case for the people. The case alleged in the information was a particular sale and furnishing of liquor, of which the witness Garver personally had no knowledge. But beyond this it appears that Garver was an inmate of respondent’s home; that he completed dressing himself in respondent’s room when ordered to accompany the police to headquarters. It is also to be considered that upon the application of respondent the court struck out the testimony relating to the finding of the money with Garver, and later, on motion of respondent, restored the testimony, when it was made the basis of the motion to produce him as a witness. Considered as a matter resting within the sound discretion of the trial court, discretion was not abused by the ruling.

The requests to charge which have been referred to, if they had been given as preferred, would have more pointedly directed attention to the testimony of the witness Hill, and included the advice that the jury regard his testimony with disfavor. In People v. Everts, 112 Mich. 194 (70 N. W. 430), the trial court instructed the jury substantially as requested by respondent in the case at bar. It was said the charge was as favorable as respondent was justified in asking.

In the administration .of the law the courts usually take notice of matters of which every one takes notice. An agent of the police, employed to secure, not evidence of a crime committed, but evidence of a crime to be committed by the connivance and procurement of the agent, is not a person whose testimony upon the subject of the crime is generally received, in or out of court, without close scrutiny. Given upon the trial of the cause, its weight and the credit to be given to him are for the jury. People v. Rice, 103 Mich. 350, 353, 354 (61 N. W. 540). It is proper, indeed, it may be the duty of the court, to direct the attention of the jury to the witness and testimony. It is not the right of the respondent to have the jury advised to regard the testimony of such a witness favorably or unfavorably.

The exceptions are overruled, and the court advised to proceed to judgment.

Brooke, C. J., and Person, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    SHEVCHENKO v. DETROIT UNITED RAILWAY.
    1. Master and Servant — Workmen’s Compensation — Jurisdiction to Make Award.
    Claimant was injured while he was employed hy the defendant as a common laborer and made application for an award under the workmen’s compensation act. The injury took place before the employer had filed its notice of intention to take the benefit of the statute. Held, that the filing of such notice was essential to the jurisdiction of the accident board, and unless the employer consented to the proceedings they were invalid.
    2. Same — Notice—Industrial Accident Board.
    No right to recover for personal injuries that may have occurred before the filing of the statutory application and its approval by the accident board existed without the employer’s consent.
    3. Same — Consent.
    The fact that the employer did not object formally to the jurisdiction of the Industrial Accident Board until the entry of the decree did not warrant the granting of an award, when it was made to appear that the point was brought up and discussed at the close of claimant’s testimony before the board and was raised before the arbitration committee.
    Certiorari to the Industrial Accident Board.
    Submitted October 27, 1915.
    (Docket No. 157.)
    Decided December 21, 1915.
    Jacob Shevchenko presented his claim for an award under the workmen’s compensation act. From the award made, the Detroit United Railway brings certiorari.
    Reversed.

      Corliss, Leete & Moody and Benjamin S. Pagel, for appellant.'

      Rosenberg, Cornelius & Ring, for appellee.
    Claimant was a common laborer, employed by the respondent railway company, and claims he was injured October 7,1912, in the course of his employment. As appears by the affidavit for the writ of certiorari and the return to the writ, on November 17, 1914, he filed with the Industrial Accident Board an application for adjustment of claim for the injuries he had received, in which he stated that his injury was received October 7, 1912. A copy of the application was served on respondent, with notice from the board to appoint an arbitrator. Respondent appointed an arbitrator, claimant appointed one, and these, with a member of the board, constituted a committee which met December 22, 1914. Claimant and respondent were represented by counsel. Testimony was introduced by claimant, and was concluded.' None was introduced for respondent. A colloquy ensued, in the course of which the chairman inquired of counsel for respondent:
    “Does the Detroit United Railway claim that they were not under the act at the time?”
    —and counsel replied:
    “As I understand it, I have been told that they were not. I can say positively that we were not at the time.”
    The chairman said:
    “Well, if that question was brought up, I want time to investigate it.

      “Mr. Pagel: Of course, if we are under the act, it is a different situation.

      “Chairman Gloster: I would like to make the suggestion that if you will both present your cases complete, we will postpone this argument until some other day, or until this matter is .looked up. * * *”

      An adjournment for two days was taken, and on the adjourned day, as appears by the return, no further proofs were offered, and an award was made- in favor of claimant. It is further certified in the return that respondent—
    “elected to come under the terms of the workmen's compensation law on the 23d day of December, 1912, of which election this board was duly notified by letter of respondent of the same date, and that upon the 27th day of December, 1912, this board notified the said respondent * * * of the acceptance by the said board of the offerof the said respondent. * * *”
    Respondent claimed a review upon the ground that the proofs produced at the arbitration hearing conclusively show that respondent had not accepted and come under the terms of the aforesaid act at the time of the alleged injury to claimant. A review was had; and the award was affirmed. An opinion of the board is returned, to- the effect that the sole ground of “appeal” is as above stated, and that:
    “In the correspondence before the case was set for arbitration, respondent treated it as an accident occurring while the company was under the compensation law. At the arbitration respondent appeared and defended on the merits, going through to the end of the hearing without raising the question, and then it was only raised in colloquy between the attorneys and the chairman of the committee on arbitration; no proof whatever being offered. The arbitration was held in the city of Detroit, and the records of the board, relating to the acceptance of the act by respondent, were at the offices of the board in the city of Lansing. There was no proof offered tending to show that the respondent was not under the act at the date of the accident, and respondent, having treated it as a compensation case, selected its arbitrator, and gone through the entire hearing without raising the question, was held to have waived the point.”
    It is stated in the petition for the writ of certiorari that a copy of the letter of respondent to the board and the original letter of acceptance, dated December 27, 1912, were presented to the committee on arbitration; that the Industrial Accident Board erred in finding that respondent did not offer such proof and in holding that respondent had waived its right to raise the question by appointing an arbitrator.
   Ostrander, J.

(after stating the facts). The necessity for a construction of the provisions of Act No. 10, Extra Session 1912, which will enable both employer and employee to know when the act does and when it does not apply, was illustrated in Bernard v. Traction Co., 188 Mich 504 (154 N. W. 565), and is again illustrated in this proceeding. In that case, the injury complained about was received at a date intervening the notice by the employer of election to be bound by the act and the date of the approval of the application by the board. The employer, presenting the facts, urged them as a defense to an action at law brought by the injured employee. It urged, further, and proved, that the plaintiff had given a notice to the board of a claim under the act. We held that the trial court was right in rejecting the defense. In doing so, we said:

“We are satisfied that if a new status was created between these parties, it must be by virtue of the terms of the statute.”

It is clear that the relations existing between respondent and claimant when the injury was received were not affected by the workmen’s compensation act, a fact which was known to the Industrial Accident Board when its final order was made. Jurisdiction to make the order was then challenged, and was challenged before the arbitration committee. Being disputed, it is plain that jurisdiction was not admitted, and was therefore a thing to be in some way made to. appear before the board could make an award. The board possesses special and limited powers, defined in the act creating it. These powers it exceeded in making, or affirming, the award in question. Therefore the award must be, and it is, set aside.

Brooke, C. J., and Person, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.