author: Ostrander, C. J.

text:
    ANDERSON v. HENDERSON.
    1. Appeal and Error — Replevin—Surety in Replevin BondEstoppel — Motions.
    On motion to set aside a default judgment, on appeal from justice’s court, entered as providediby Act No. 246, Pub. Acts 1899, against the surety in the replevin bond given by plaintiff before the justice, the finding of the circuit oourt, supported by affidavits that the surety was estopped to question his liability thereon because he had notice that the bond, which he claimed was altered without his consent, had been thereafter used and relied upon in the action, was not subject to review on error.
    2. Replevin — Bonds—Judgment—Vacating—Want oe Jurisdiction.
    Judgment entered against the surety upon the replevin bond of a plaintiff who failed to appear on the trial in circuit court of a cause appealed from justice’s court and was non-suited by defendant, who took judgment for the amount of a lien asserted against the property seized, was regular and within the jurisdiction of the court, though no notice thereof was given the surety. 8 Oomp. Laws, §§ 10675, 10680, 10681, and Act No. 246, Pub. Acts 1899.
    8. Same — Constitutional Law — Statutes.
    The objection suggested but not fully discussed by appellant, the surety, that the statute so authorizing the entry of judgment is unconstitutional since it deprives appellant of his property without due process of law, is overruled.

      Error to Lapeer; Smith, J.
    Submitted June 26, 1911.
    ( Docket No. 66. )
    Decided November 3, 1911.
    Replevin in justice’s court by Charles H. Anderson against David Henderson. On appeal by defendant from an adverse judgment to the circuit court, plaintiff was nonsuited for his failure to appear, and judgment entered against plaintiff and his surety, Orin Travis, who brings error.
    Affirmed.

      William E. Brown, for appellant.

      H. W. Smith, for appellee.
   Ostrander, C. J.

In an action of replevin, in justice’s court, a judgment was rendered in favor of the plaintiff. The defendant appealed to the circuit court, in which court, the cause being regularly upon the calendar for trial, and the plaintiff not appearing, he was called in open court, and, still not appearing, was nonsuited, and, the defendant claiming a lien on the property described in the writ of replevin taken on the writ and delivered to the plaintiff, a jury was then and there impaneled, a verdict was returned in favor of the defendant for his special lien and interest in said property, and a judgment was entered on the verdict for said defendant against the plaintiff and the surety who signed the replevin bond in justice’s court.

Afterwards the surety moved to set aside the judgment, assigning as reasons that (1) no notice was served upon him that the cause was pending, or that a judgment would be taken against him upon default of the plaintiff; (2) the surety did not execute the bond, and was not liable thereon; (3) the act authorizing the taking of the judgment against said surety without notice to him was unconstitutional and void.

In support of the motion, various affidavits were presented. Counter affidavits were filed. The motion was denied. The said surety reviews the action of the trial court upon writ of error. Various errors are assigned, questioning the conclusion of the court upon the facts; one upon the refusal to hold that the act authorizing the taking of judgment against the surety without notice to him was unconstitutional, and one upon the refusal of the court to set aside the judgment and grant the surety a new trial to determine his liability upon the bond.

It is the claim of the appellant that after signing the bond in the replevin suit a writ of replevin was issued and returned without service; that thereafter a new affidavit was made and a new writ issued, the old bond being amended by inserting new dates therein; and that he was not consulted and did not consent to such use of the bond signed by him, nor to become surety in the suit last begun. It is his further claim that if proper practice had been pursued in the circuit court — that is to say, if he had been notified that a judgment was to be taken against him — he could in that court and proceeding have made the defense asserted. The court below was unable to find, and so stated, whether appellant did or did not consent to the use of the old bond in the new suit, and did find that appellant knew, before the cause was determined in justice’s court, and after judgment was rendered therein, that the cause was proceeding in reliance upon the bond thus filed; that he was estopped to now assert nonliability upon the bond. The conclusion was supported by the affidavits, and we find nothing in it subject to review on error.

Is the judgment liable to be set aside because irregularly entered, or because of want of jurisdiction to render it ? Previous to 1899, the statute did not provide for entering a judgment in replevin against any one, except the plaintiff or the defendant. There was no provision for rendering a judgment against the surety in the replevin bond in any case. In 1899 (Act No. 246, Pub. Acts 1899) considerable amendments were made to the statute, relating to replevin proceedings in circuit courts. Among others is a provision for returning property taken on the writ to the custody of the defendant, and one permitting either party, before the delivery of the property by the officer to the opposite party, to claim and to secure a determination of his claim, that the property replevined had a special value' to him which could not be satisfied in money, for which reason he ought not to be deprived of its custody. The' sheriff, having seized the property, could surrender its custody to neither of the parties, except upon the execution of a bond running to the officer.

Before the amendment of 1899, section 34 of the act (Rev. Stat. 1846, chap. 134; 3 Comp. Laws, § 10680) read as follows:

“ Whenever the defendant shall be entitled to a return of the property replevied, instead of taking judgment for such return, as above provided, he may take judgment for the value of the property replevied, in which case such, value shall be assessed on the trial, or upon the assessment of damages, as the case may be, subject to the provisions of section twenty-nine of this chapter.”

The legislature added the following:

“And in such case he shall be entitled to a judgment against the sureties in the bond given by the opposite party, on the delivery of the property to him by the officer, as well as against the principal. When judgment shall be rendered against a party and his sureties, pursuant to the provisions of this section, any execution issued thereon shall direct the officer to whom it is directed to make the amount thereof out of the goods, chattels, lands and tenements of the principal, naming him, and for want thereof, out of the goods, chattels, lands and tenements of the sureties.”

This section was and is relied upon to sustain the judgment. The section 39 referred to in'said section 34, is the section (3 Comp. Laws, § 10675) which provides that:

“ When either of the parties to an action of replevin, at the time of the commencement of the suit, shall have only a lien upon * * * the goods and chattels described in the writ, and is not the general owner thereof, that fact may be proved on the trial, or on the assessment of value, or on the assessment of damages, in all cases arising under this chapter; and the finding of the jury, or court, as the case may be, shall be according to such fact, and the court shall thereupon render such judgment as shall be just between the parties.”

We do not understand that it is claimed that this provision for determining and giving judgment for a lien or special interest in the goods seized is not applicable to justices’ courts, or to the determination of causes heard on appeal from justices’ courts. It is not claimed, either, that section 34 of the act (section 10680) does not in terms permit a judgment for the amount of the special lien to be entered against the surety in the replevin bond. We therefore give no attention to either of these propositions. It is claimed that because plaintiff became nonsuited no determination of the amount of the lien could be made without some further notice; that only a judgment of nonsuit could be entered, and thereafter a 14-day notice to plaintiff of assessment of damages was required. This claim is predicated on the provisions of 3 Comp. Laws, § 10681, which reads:

“Whenever any damages shall be assessed, pursuant to any provisions contained in this chapter, the same notice thereof shall be given to the adverse party, as is required by law, and the practice of the court in the like cases in personal actions.”

In Wheeler v. Wilkins, 19 Mich. 78, relied upon by appellant, the proceedings in replevin were quashed on motion of defendant. In the order which was made was the provision that the cause “stand for assessment of damages.” No notice of assessment was given, and no judgment of waiver of return of the goods was entered, but at a subsequent term the court heard testimony and assessed damages for detention.

In Hill v. Webber, 50 Mich. 142 (15 N. W. 52), also relied upon by appellant, it appeared that neither party had noticed the cause for trial, although notices for two terms of court might have been given. Three days in advance of the opening of the second term defendants moved specially for nonsuit, filing and serving copy of .affidavit and entering the motion in the special motion book. Later, in the absence of attorneys for plaintiff, the motion was granted, defendants filed a waiver of return of the property and submitted proofs of its value, for the amount of which the court at once entered judgment.. These cases are not controlling of the present case.

In this case, the cause was noticed for trial at two terms of court, and, we assume, at the third term. The record is not very complete upon the subject, but we assume from what appears and from the arguments which are made that at the third term the cause was regularly on the calendar and reached for trial. A jury was selected; the plaintiff was called and did not appear. It is provided in. 3 Comp. Laws, § 10673, that:

“After issue joined in any action of replevin either party may give notice of trial and if neither party shall have noticed the cause for trial, the defendant may move for judgment as in case of nonsuit, in the same manner as in personal actions.”

We have no such case. We do not understand that defendant was required to accept merely a judgment of nonsuit with such interlocutory order as would continue the cause to some subsequent date; but that, being in court ready for trial, he had the right to then proceed as he might be advised to have his rights determined.

The point that the law violates the Constitution is not much discussed in the brief for appellant. It is suggested, rather than urged, that the appellant will be deprived of his property without due process of law, and, further, that the surety in a replevin bond in justice’s court cannot be presumed to have contemplated that in the circuit court, on an appeal, judgment might be rendered against him without a hearing. We shall not seek for infirmity in the statute, and, as it appears to be admitted that if it is constitutional it is applicable, we find no reason for overruling the action of the circuit court.

It is affirmed.

Bird, Moore, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    MINOR v. ESCANABA LUMBER CO.
    1. Negligence —Railroads —Lumbering Railway — Licensees on Track.
    Under testimony tending to show that plaintiff was the wife of a contractor engaged in cutting timber for defendant, a corporation owning a private railway that it used for the purposes of its business; that the contractor was permitted by the company to use a hand car on defendant’s road to go to and from defendant’s store in purchasing supplies; that while he and plaintiff were going from their lumber oamp to a neighboring village for their private convenience on a dark night, they were struck by a train of defendant running without lights, and no whistle was blown or bell rung or other warning given, the plaintiff was a mere licensee in the use of the track, and the evidence did not support the theory that the plaintiff was invited to use the car and track.
    2. Same.
    There was a different duty to a mere licensee than would be required of defendant in behalf of persons invited to use the track, so that a charge to the jury imposing on defendant the duty towards an invited person was improper.
    Error to Mackinac; Shepherd, J.
    Submitted June 21, 1911.
    ( Docket No. 37.)
    Decided November 3, 1911.
    Case by Mary E. Minor against the Escanaba Lumber Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Frank D. Mead, for appellant.

      Henry Hoffman (J. J. Brown, of counsel), for appellee.
   Blair, J.

Plaintiff brought suit against the defendant for personal injuries received by her on the 3d day of November, 1909, while riding on the logging railroad of the defendant on a hand car owned and controlled by her husband, David Minor; the car colliding with a train which was backing out of Bryan.

It. appeared that in the winter of 1906-06 David Minor had acted as a jobber for the defendant company, and was so employed at the time of the accident. He was not an employé of the company, but was an independent contractor, getting out the material for the company at a specified price. He employed his own labor and furnished his own supplies, purchasing them from defendant company. He had a camp about two miles north of Bryan, the headquarters camp of the defendant company.

The defendant was a lumber company organized under the laws of this State, and owned and operated a logging railroad running south from Bryan to Pike Lake, where it connected with the Minneapolis, St. Paul & Sault Ste. Marie Railway Company, and north from Bryan to its camps. At the time of the accident, this railroad, together with its spurs- and branches, was about 14 miles in length. The defendant was not a common carrier; it ran no trains on schedule time, and carried no passengers. The trains were operated entirely in its own business, carrying logs and pulpwood from its camps to Pike Lake, and from there the logs were taken by the Minneapolis, St. Paul & Sault Ste. Marie Railway Company and carried to the mill of the company at Masonville, Mich.

On the night of the accident, Minor, his wife, and two employés started for Bryan from the camp. It was a dark night. They were all pumping on the hand car; Mrs. Minor stood on the front of the hand car nest to her husband, between the handle bars. They were facing south, towards Bryan. They had a lantern standing on the front of the hand car. When between 40 and 50 rods from Bryan, they collided with the train, which was going north; the engine backing up, shoving ahead of it 14 empty flat cars. There was no light displayed at the north end of the train, nor were any signals given of its approach. Mrs. Minor was thrown into the ditch and seriously injured. The train was getting under way when the collision occurred. Charles Case, the conductor and brakeman, was about the middle of the train of 14 flat cars, walking toward the forward end of the train with his lantern. He intended to stand on the end of the car with this lantern, but before he reached the front end of the train it had collided with the hand car, between 40 and 50 rods north of the store. The train was moving north at the rate of from six to eight miles an hour. Plaintiff testified that the hand car “was running pretty fast; as fast as we could propel it. We could pump it, I think, about eight or ten miles an hour.”

Her husband testified:

“ I let the car to other people. Any one that came there and asked for the car, I let them have it, and they didn’t pay anything for it.”

Mr. Minor testified as to the hand car:

“ The hand car was purchased by the company for me, charged to me, and paid for by me. * * * The hand car was got for what we wanted to use it; there was nothing said about it. When they got the hand car for me, there was nothing mentioned; it was got to get supplies, or whatever we wanted to use it for.
“Q. Nothing was said about it one way or the other?
“it. Nothing was said as to what we wanted to use it for; we used to have some kind of a road — some kind of a tote road. I used the hand car and my employés used it. I lent it to a lot of people around there. * * * The reason why I told Mr. Coyne I wanted to get a car was so that I could get my supplies in there. I took a lot of supplies in on the car. The only talk I had was with Mr. Coyne and Mr. McEwen. The first talk was with Mr. Coyne. The talk I had with Mr. McEwen was when the car was ordered. I didn’t talk with Mr. Hopkins about the car at that time. All the trouble I had in getting my supplies was that they didn’t run up there every day, and I couldn’t get fresh meat. The engine didn’t run up there every day. Whenever they ran up, they took supplies for me on the engine, but in the summer time we couldn’t get fresh meat when we wanted it, so when we got the car we could run down and get 40 or 50 pounds of fresh meat, or something. We usually ran the car after working hours; whether it was daylight or not, it depended. It would be after 6 o’clock. When the days were short, it was dark after 6 o’clock. We didn’t very often go down in the daytime, because we had nobody to run the car. * * * We were pumping about as fast as we were able to pump it. The car was going at a fair speed; I don’t know how fast it was going. We had our eyes pealed to see what we could see ahead of us. The lantern stood on the platform of the hand car. It was just a common lantern; there was no reflector on it to throw the light ahead on the track; if there had been, we could have saved ourselves. * * *
“Q. You were asked if this hand car was not purchased for your own convenience, and you said, ‘Yes.’ Now, what do you mean by your own convenience ?
“A. Why, it was for both of us.
“Q. What do you mean by ‘both of us’ ?
“A. The company and me; the company bought that car to save them from running up there with their train. The company ran their trains up there for my convenience; there may not be anything in the contract requiring them to deliver the supplies at my camp, but they agreed to do it. I bought the supplies at their own store. Sometimes they wouldn’t send them up on the engine; sometimes I carried them up myself, and that is the reason I got the car. It was a saving to the company to carry these supplies up on the hand car. They ran up there especially to carry supplies. There was no road there; there used to be a tote road at one time, but not then. * * * I got the hand car for to haul supplies; whenever we went for supplies, we got the mail. I don’t talk very good English, and maybe I don’t understand what the word ‘ convenience ’ means. * * *
“Q. Now, that is all the hand car was used for, anyway ?
“A. That is all it was used for.
“Q. For getting your supplies and mail ?
“A. Getting the mail, and whenever we felt like putting it on the track to go to Bryan, why we went, even if there was no mail to bring up. * * * I didn’t tell Mr. Bowman that I didn’t blame anybody, or that I should have been more careful. I told him that I didn’t want to go, but went to please my wife, because she wanted to go to church.”

Mr. Coyne, superintendent of defendant’s work in the woods, testified for plaintiff:

“ Minor’s camp was about two miles north and west of Bryan; he put his material out on the railroad; his camp was close to the railroad. When he went in there, he had some trouble in getting supplies; he moved them in on wagons, and for that reason he asked me if he could have a hand car to take his supplies in, and then I told him that I would have to see Mr. Hopkins. Mr. Hopkins said he thought it would be all right. I don’t know what else took place; I don’t remember that I told Mr. Minor what Mr. Hopkins said; I don’t remember of talking the matter over with him again. * * * It was customary to drop a car on the track; to leave cars on the line to load at certain places back and forth; and they left cars standing around on the main line at Bryan, or near there. I have seen their tracks all filled in with cars. It was customary to have a good many cars standing around Bryan, and north of Bryan a short distance, at night.”

Plaintiff testified:

“ Í have been at the camp a good deal in the last five or six years. I have seen them shoving trains of cars back and forth on this railroad, and at any time we were on the track with our hand car and saw the train coming we got off the track. They always shoved the cars, ahead of the engine in going with the empties north to the camps from Bryan. I knew that there was no regular time for the train to come; that they didn’t have any schedule time. I knew that the train was used by the company for carrying the company’s logs. I was listening for the train. I didn’t know at that time that they were switching cars at night 40 or 50 rods north of Bryan, and moving trains at night; I didn’t know it when I was hurt last November. * * * We were going to church at Bryan, and I was standing up and pumping the hand car, looking right toward Bryan and watching out for the train, and I was listening to see if we could hear the train coming. We did not hear it; we had no warning whatever. We did not see any lights; there were no lights on the train. I didn’t hear any whistle blown. The train was right on us before we ever saw it.”

Mr. Minor testified:

‘ ‘ My camp was right close to the track. I knew how the company ran their trains; the engine would be backing up with the cars ahead of it. It would shove the cars ahead of the engine, taking the empties back to the camps, then running the loaded cars behind the engine back south to Bryan; that was their method of operating; they came at any time they saw fit. They didn’t have any regular schedule of time for running; once in a great while they would drop a car anywhere on the road, leaving it standing there. Sometimes when we would come down with the hand car in the daytime we would have to carry our hand car around the car. Sometimes they did switching at Bryan in the nighttime, and sometimes they didn’t; they done a lot of it in the evening, and they generally took a loaded train of cars down to Pike Lake, to be shipped on the Soo Line, generally after supper, and then they would bring the empties back, and would leave them there at Bryan until next morning. Once in a great while they would take the cars back to the camps at night, but not every night. This night we came down to go to church; that was the only reason we went for; that and to get the mail.”

The declaration avers that it was—

“The duty of the defendant to drive and operate said locomotive engine in backing up said flat cars as aforesaid upon said railroad with great care, caution, and diligence, and at dark, and during the continuance of such a condition, then and there to show or display a light on said train of flat cars as a signal of its approach, and to blow a whistle or ring a bell, and to give warning of its approach, and keep a lookout or watch for other cars operating upon and along said railroad.”

The violation of the duty is averred as follows:

“* * * Not regarding its duty in that behalf, but negligently and carelessly failed to show or display any light upon said train of cars as a signal of its approach, and negligently and carelessly failed to blow any whistle or ring a bell, or give any warning of its approach, and negligently and carelessly failed to keep a lookout or watch for other cars operating upon and along said track, and did by its servants then and there so carelessly and negligently cause the said locomotive engine which was then and there backing up said long train of flat cars attached to said locomotive engine, to wit, 14, to be driven along and upon the track of the said defendant’s railroad; that the said train of cars then and there struck with great force and violence the said hand car,” etc.

At the close of plaintiff’s case and again at the close of the whole case, defendant’s counsel moved for a directed verdict. The motions were denied, and the case submitted to the jury, resulting in a verdict and judgment for plaintiff for $4,000.

The court instructed the jury, among other things, as follows:

“It is the theory of the plaintiff that the use of the hand car, and as the testimony shows it was used, under the circumstances as shown by the testimony, was invited by the defendant, and it was the duty of the defendant to keep the way reasonably safe for those who should ride on the hand car, as shown by the testimony, upon the principle that such safeguards are due to invited persons. And if you find from the testimony that that hand car was used by the plaintiff on the night in question in the way claimed by her, and her injury was occasioned by the negligence of the defendant, and there was no fault or negligence^ on the part of the plaintiff or her husband, the plaintiff is entitled to recover for the injuries sustained.”

This instruction is made the basis of the twelfth assignment of error. This instruction was not qualified in any other part of the charge, and contains all that was said as to the legal relations of the parties at the time of the accident. The jury would naturally understand from the language used that the court adopted the plaintiff’s theory that plaintiff was using the hand car at the time of the accident by invitation of the defendant, and that they were to determine defendant’s negligence upon the theory that it was the duty of the defendant to keep the way reasonably safe for those who should ride on the hand car. There is no evidence in this record of an express invitation to use the hand car for any purpose. Assuming that the testimony justifies an inference of an implied invitation to use the hand car in purchasing supplies at the defendant’s store, or in other matters relating to their business affairs, such invitation would not authorize plaintiff to use the car, as it was used on the night in question, for the mere private convenience of plaintiff and her husband, Kinney v. Onsted, 113 Mich. 96 (71 N. W. 482, 38 L. R. A. 665, 67 Am. St. Rep. 455).

The most favorable view for plaintiff that the testimony will admit of is that, in the use of the car which she was making at the time of the accident,- she was a mere licensee, to whom the defendant owed a different duty from that which would rest upon it in case she had been invited to use the car and track. Stewart v. Railway Co., 89 Mich. 315 (50 N. W. 852, 17 L. R. A. 539).

The judgment is reversed, and a new trial granted.

Bird, Moore, McAlvay, and Brooke, JJ., concurred.


text:
      In re FORSCUTT.
    1. Criminal Law — Indeterminate Sentence — Burglary—Statutes — 1Term op Imprisonment.
    One convicted of statutory burglary committed after Act No. 136, Pub. Acts 1903, went into effect, providing for an indeterminate sentence and before the passage of Act No. 184, Pub. Acts 1905, but convicted after the latter act went into effect, is subject to sentence not exceeding 15 years as provided by the general law which was not repealed by either statute. 3 Comp. Laws, §§ 11546, 11547.
    2. Same — Sentence—Repeal op Statutes.
    Since the previous statute (Act No. 136, Pub. Acts 1903), is wholly repealed by the later act, and no provision is made for the punishment of persons convicted of crimes committed during the intervening period, no authority for imposing an indeterminate sentence on one so convicted was given by the legislature.

      8. Same — Judgment—Habeas Corpus — Appeal and Error.
    As an order or judgment commanding the restraint of a person may in most cases be corrected, if it is irregular, habeas corpus will not lie to perform the office of the writ of error.
    4. Same.
    While the general purposes of both acts are the same, there are numerous provisions in Act No. 184, Pub. Acts 1905, not found in the prior statute, which may not therefore be treated as re-enacted by the law of 1905.
    5. Same.
    A prisoner having served his minimum sentence as imposed by the court for a crime committed before the enactment of the indeterminate sentence law of 1905, is entitled to his release.
    Petition for habeas corpus by William Forscutt to obtain his release from confinement in the State prison under an indeterminate sentence.
    Submitted October 4, 1911.
    (Calendar No. 24,778.)
    Petitioner discharged November 3, 1911.

      Frank A. Lyon, for petitioner.

      George 8. Law, Assistant Attorney General, for the people.
   Ostrander, C. J.

Upon the 15th day of September, 1905, in the circuit court for the county of Hillsdale, petitioner was convicted of the crime of burglary, alleged to have been committed December 23, 1904. It is assumed that it was determined by the verdict that he had committed an act defined in 3 Comp. Laws, in either section 11546 or in section 11547, as a crime; the penalty prescribed in either section being imprisonment in the State prison not more than 15 years. He was sentenced to be confined “in the State prison at Jackson for the minimum period of seven years and six months and a maximum period of fifteen years from and including this day. The court recommends a maximum sentence of ten years.

Petitioner has since been, and is now, in the custody of the warden of the State prison at Jackson, Mich. The warden of the prison returns that the conduct of the petitioner at the prison has been such that he is entitled to all good time allowed by law and the rules of the prison, and that if his good time should be deducted from the minimum term of his sentence such minimum term has expired.

At the time of the commission of the alleged offense, Act No. 186, Pub. Acts 1903, in effect after September 16, 1903, was in force, and said act repealed all acts and parts of acts in conflict with its provisions. The last mentioned act was followed by Act No. 184, Pub. Acts 1905, approved June 7, 1905, taking immediate effect and in force at the time of the conviction and sentence. These acts provide, among other things, for indeterminate sentences. It is contended that no indeterminate sentence could lawfully have been imposed upon petitioner. It is a further contention that the sentence imposed can be held valid only for the minimum period therein stated.

It will be assumed that the legislature did not intend to relieve from punishment, or from indeterminate sentence, persons who, during the period from September 16, 1903, to June 7, 1905, committed offenses, punishable when committed, for which they were not, during the same period, convicted and sentenced.

The title and first section of the acts of 1903 and 1905 read, respectively, as follows:

“An act to provide for the indeterminate sentence, and for the disposition, management and release of criminals under such sentence, and for the expense attending the same.
“ The people of the State of Michigan enact:
‘ ‘ Section 1. Every sentence to the State prison at Jackson, to the Michigan reformatory at Ionia, to the State house of correction and branch of the State prison in the Upper Peninsula, and to the Detroit house of correction, of any person hereafter convicted of a crime, except of a person sentenced for life, or a child under fifteen years of age, shall be an indeterminate sentence as hereinafter provided. The term of imprisonment of any person so convicted and sentenced shall not exceed the maximum term provided by law for the crime for which the prisoner was convicted and sentenced, and no prisoner shall be discharged until after he shall have served at least the minimum term as provided by law for the crime for which he was convicted: Provided, that in all cases where the maximum sentence, in the discretion of the court, may be for life or any number of years, the court imposing sentence shall fix the maximum sentence: Provided, further, that in all cases where no minimum sentence is fixed by law, the court imposing sentence shall fix such minimum, which minimum shall not be less than six months.”
“ An act to provide for the indeterminate sentence as a punishment for crime, upon the conviction thereof, and for the detention and release of persons in prison or detained on such sentence, and for the expense attending the same.
“The people of the State of Michigan enact:
“Section 1. That when any person shall hereafter be convicted of crime committed after this act takes effect, the punishment for which prescribed by law, may be imprisonment in the State prison at Jackson, the Michigan reformatory at Ionia, the State house of correction and branch of the State prison in the Upper Peninsula, or the Detroit house of correction, the court imposing sentence, shall not fix a definite term of imprisonment, but shall fix a minimum term of imprisonment Which shall not be less than six months in any case. The maximum penalty provided by law shall be the maximum sentence in all cases except as herein provided and shall be stated by the judge in passing sentence. The judge shall at the time of pronouncing such sentence recommend and state therein what, in his judgment, would be a proper maximum penalty in the case at bar not exceeding the maximum penalty provided by law. He shall before or at the time of passing such sentence ascertain by examination of such convict on oath, or otherwise, and in addition to such oath, by such other evidence as can be obtained tending to indicate briefly the causes of the criminal character or conduct of such convict, which facts, and such other facts as shall appear to be pertinent in the case, he shall cause to be entered upon the minutes of the court.”

It thus appears that the provisions of these statutes are made applicable to persons convicted of crime. Neither act contains definitions of crimes, and in neither is the penalty for any crime either fixed or recited. On the contrary, we are referred, in both acts, to existing definitions and to penalties already fixed.

It was held in Re Lambrecht, 137 Mich. 450 (100 N. W. 606) (see, also, In re Marion, 140 Mich. 219 [ 103 N. W. 512]; People v. Fisher, 144 Mich. 570 [108 N. W. 280]; Peoples Vitali, 156 Mich. 370 [120 N. W. 1003]), that the general law was not repealed by the act of 1903. It is equally manifest that the sections of the general law above referred to were not repealed by the act of 1905. It follows that the act committed by petitioner was, when committed, and is, a crime, which may be punished by imprisonment for a period not exceeding 15 years.

The restraint of one convicted of crime is permitted only when there is an order, warrant, or judgment of a court or magistrate commanding it. And, if such order, warrant, or judgment is irregular merely, it may be in most cases corrected. To secure such a correction, the writ of habeas corpus will not be permitted to perform the office of a writ of error. In re Esther Coffeen, 38 Mich. 311; In re Underwood, 30 Mich. 502; In re Ellen Bushey, 105 Mich. 64 (62 N. W. 1036); In re Lewis, 124 Mich. 199 ( 82 N. W. 816); In re Butler, 138 Mich. 453 (101 N. W. 630); In re Maguire, 114 Mich. 80 ( 72 N. W. 15); In re Satt, 164 Mich. 472 (129 N. W. 863). In this case, petitioner, by his conduct, has treated the judgment of the court as valid to the extent that the punishment imposed is certain. He contends only that, so far as it is valid, he has paid the penalty. If petitioner had been tried and sentenced while the act of 1903 was in force, an indeterminate sentence, pursuant to the provisions of that act, would have been a lawful sentence. But this act was repealed by the act of 1905. Not only does the later act in terms repeal the earlier one, but the provisions of section 1, above quoted, as well as the provision found in section 14, forbid the conclusion that the act of 1903 is repealed, in so far only as the provisions of the two are not in harmony. Section 14 reads:

“The provisions of this act, in so far as they pertain to the paroling of prisoners, shall apply to all convicts now serving sentence in any of said penal institutions whose offenses come under the provisions of this act.”

The general purpose of these statutes is the same, but there are many provisions in the later law which are not found in the one repealed. We refer to a single one. Under both, the maximum period of imprisonment fixed by law must be observed, and under both the court is required to fix a minimum period of imprisonment, where the law does not fix one. Under the law of 1903, the court might in such cases fix any minimum, not less than six months. Under the law of 1905, it cannot fix a minimum exceeding one-half the lawful maximum. The considerations stated require us to hold, also, that the act of 1905 is not a re-enactment of the act of 1903.

Petitioner should not have been sentenced under the provisions of the act of 1905, because his case is expressly excluded by the terms of the act. There was therefore no lawful authority for imposing upon petitioner an indeterminate sentence. The sentence imposed cannot be treated as a certain, determinate sentence for any period beyond the minimum period fixed therein; and, as it appears that petitioner, with proper allowances for good time, has served the minimum period, there is no lawful warrant for his further detention.

It will be certified to the warden of the State prison at Jackson that petitioner is entitled to an immediate discharge.

Bird, Steebe, Moore, McAlvay, Brooke, Blair, and Stone, JJ., concurred.


author: Steers, J.

text:
    BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN v. AUDITOR GENERAL.
    1. Statutes — Construction—Conflicting Clauses.
    In passing upon statutory provisions which are obscure or conflicting, the practical construction which State officials with a duty to perform thereunder have during a long period followed, and which has been acquiesced in by all parties in interest, is entitled to weight and has been favored by the-courts when not manifestly in conflict with the intent and spirit of the act.
    2. Same.
    It is an elementary rule of construction that all words found in the act are presumed to be used for some purpose, and, so far as possible, effect must be given to every clause and sentence.
    3. Same.
    The proper function of a proviso is to restrain or in some manner modify the general provisions of an enacting clause: it is not to be extended or enlarged by inference but is to be strictly construed and limited to the object plainly within its terms.
    4. Same — Constitutional Law — Schools and Colleges.
    Under the provisions of the Constitution of 1909, art. 11, § 5,. the board of regents of the State University has independent-control of the affairs of the University (Constitution of 1850, art. 13, § 8).
    5. Colleges and Universities — Board op Regents — Corporations— Statutes — Conditional Appropriations.
    Conditions may be attached to appropriations for the University by the legislature, and the board of regents may aocept or reject the appropriations in their discretion.
    6. Same.
    Act No. 102, Pub. Acts 1899, providing a one-fourth mill tax for the maintenance of the State University, to be paid to the board of regents when collected in the same manner as interest on the University fund, containing the proviso that the State treasurer pay the regents upon the warrant of the auditor general the amount of the tax, in the manner provided by law, was not intended by the legislature to change the settled policy of the State and to subject the constitutional control of the board of regents to the judgment of the auditor general; nor was it intended to engraft upon the appropriation all the conditions and restrictions of the accounting laws under which the auditor general is required to audit expenditures for lawful purposes.

    7. Same — Mandamus.
    The auditor general will be compelled by the writ of mandamus to perform the ministerial duty devolving upon him under said act, and to'approve and issue warrants upon the State treasurer to pay for the expenditure of moneys authorized by the board of regents for the purpose of enabling the president of the University to attend alumni meetings, inaugurations, etc., and other like University purposes.
    Mandamus proceedings by the board of regents of the University of Michigan against James B. Bradley, auditor general of the State of Michigan, to compel the issuance of a warrant upon the treasurer for certain expenditures and disbursements.
    Submitted October 4, 1911.
    (Calendar No. 21,703.)
    Writ granted November 3, 1911.

      Henry M. Campbell, for relator.

      John E. Bird, Attorney General, Franz C. Kuhn, Attorney General, Henry E. Chase, Deputy Attorney General, and Thomas A. Lawler, Assistant Attorney General, for respondent.
   Steers, J.

In this proceeding the court is asked to decide whether the judgment of the auditor general or that of the board of regents shall prevail respecting the expenditure of moneys appropriated for the use and maintenance of the University by Act No. 102, Pub. Acts 1899. On April 30, 1906, the treasurer of the University made requisition upon the respondent for monthly expenditures from the appropriation of the so-ealled quarter-mill tax, amounting to $39,452.50, for the payment of current expenses. In making this requisition he followed the usual practice, which was in harmony with the methods prescribed by the accounting laws. The auditor general refused to draw his warrant upon the State treasurer for the amount of such requisition, for the reason that certain vouchers made by the regents for prior expenditures, which in his opinion were unlawful, had not been audited and allowed by him. These prior expenditures, amounting to $557.54, were for traveling expenses of Dr. Angelí, president of the University, in attending alumni meetings and inaugurations of presidents of other universities, and for traveling expenses of other members of the faculty and officers, acting under the authority of the president and regents, in attending intercollegiate meetings and conferences as delegates or representatives of the University, and for the expenses of instructors in accompanying students in inspecting mechanical engineering plants, the same being a part of the prescribed course for certain engineering students. It was the opinion of the auditor general that such expenditures were not for the use and maintenance of the University, as contemplated by Act No. 102, Pub. Acts 1899, and consequently not for lawful purposes under the accounting laws of this State. The petitioner claims it has exclusive direction and control of all University expenditures, and asks for a writ of mandamus to compel respondent to draw his warrant on the State treasurer for the amount of the requisition above mentioned.

On behalf of the respondent it is urged that the writ should be denied for the following reasons:

“First. Because the quarter-mill tax appropriation must be dispersed in accordance with the accounting and appropriation laws of this State, and in refusing to comply with the conditions therein expressed the board of regents has violated the conditions upon which the appropriation was made.
“ Second. Because it is the judgment of the auditor general, whose determination is final and conclusive, that the disbursements represented by the vouchers in question are for unlawful purposes.
“Third. Because the auditor general is prohibited by law from drawing his warrant upon the State treasurer for future requisitions until the amounts represented by the vouchers in question are returned to the institution treasury.”

The moneys available for support and maintenance of the University consist of, first, interest on the University fund so called, being a fund derived from the sale of lands donated by the general government; second, fees received from students; third, appropriations made from time to time by the legislature of the State.

The funds in question are of the latter class, being appropriated by Act No. 102, Pub. Acts 1899, providing for a tax of one-quarter mill upon the taxable property of the State. This act, which is an amendment of a former act of similar import, consists of but one section, and reads as follows:

“Section 1. There shall be assessed upon the taxable property of the State as fixed by the State board of equalization, in the year 1899 and in each year thereafter, for the use and maintenance of the University of Michigan, the sum of one-fourth of a mill on each dollar of said taxable property to be assessed and paid into the State treasury of the State in like manner as other State taxes are by law levied, assessed and paid; which tax, when collected, shall be paid by the State treasurer to the board of regents of the University in like manner as the interest on the university fund is paid to the treasurer of said board; and the regents of the University shall make an annual report to the governor of the State of all the receipts and expenditures of the University: Provided, that the board of regents shall not authorize the building or the commencement of any additional building or buildings or other extraordinary repairs until the accumulation of savings from this fund shall be sufficient to complete such building or other extraordinary expense. Also provided, that the board of regents of the University shall maintain at all times a sufficient corps of instructors in all the departments of said University as at present constituted, shall afford proper means and facilities for instruction and graduation in each department of said University, and shall make a fair and equitable division of the funds provided for the support of the University in accord with the wants and needs of said departments as they shall become apparent; said departments being known as the departments of literature, science and art, department of medicine and surgery, department of law, school of pharmacy, homeopathic medical college and the department of dental surgery. Should the board of regents fail to maintain any of said departments herein provided, then at such time shall only one-twentieth of a mill be so assessed: Provided, further, that the State treasurer be and is hereby authorized and directed to pay to the regents of the University, in the year 1899 and each year thereafter, in such manner as is now provided by law, upon the warrant of the auditor general, the amount of the mill tax provided for by this act; and that the State treasury be reimbursed out of the taxes annually received from said mill tax when collected; and said auditor general shall issue his warrants therefor as in the case of special appropriations.”

Manifestly there cannot be a strict compliance with the two somewhat contradictory provisions as to time and manner of payment. In the enacting clause of the statute under consideration, the legislature provides for a quarter-mill tax, appropriates it to the use and maintenance of the University, and specifies that, when collected, it shall be paid to the regents in like manner as interest on the University fund is paid. It further requires that the regents shall annually make report of receipts and expenditures to the governor. Following this, in separate provisos, are two distinct conditions as to expenditure of this appropriation. First, it prohibits the use of savings, accumulated from the appropriation, for any new buildings or extraordinary repairs or expenses until such accumulations are sufficient to complete the same; second, the departments of the University are to be maintained in a certain manner, and by a final proviso the State treasurer is directed to each year advance from the State treasury the amount of the mill tax provided by the act, to be reimbursed from said tax when collected, and he is to pay the same ‘1 in such manner as is now provided by law.” The respondent and his predecessors have construed this proviso as requiring payments to be made under the general accounting laws of the State, and have followed the procedure there pointed out, which course has been acquiesced in by the regents until this controversy arose over the authority of the auditor general to reject vouchers for expenditures authorized by the board when in his judgment they were not for lawful purposes.

He claims such authority under sections 3 and 5 of the accounting laws, being sections 1207 and 1209, 1 Comp. Laws; the material portions reading as follows:

“Sec. 3. Such account current, abstract, vouchers, and receipts, when received by the auditor general, shall be examined by him, and if found correct shall be so endorsed by him; and all vouchers for expenditures, so far as the amount thereof shall appear to be for lawful purposes, he shall audit. * * *
“Sec. 5. Money appropriated by any act of the legislature for the use or benefit of any State educational, charitable, reformatory or penal institution, or to be disbursed by any officer, may be drawn from the State treasury upon the warrant of the auditor general, as follows, viz.: Under appropriations for current expenses monthly for pro rata amounts: * * * Provided, that when appropriations are made for current expenses, or general purposes, where no itemized estimates were furnished as a basis {therefor, then the class of disbursements shall be determined by the officer, or board of the institution making them, and if the same shall appear to the auditor general to be within the range of reasonable purposes he shall approve the account. * * * ”

In passing upon statutory provisions which are obscure or conflicting, the practical construction which State officials, with a duty to perform thereunder, have, during a long period adopted and followed with reference to their meaning, and which has been acquiesced in by all parties in interest, is entitled to weight, and has been favored by the courts when not manifestly in conflict with the intent and spirit of the act. In harmony with that rule of construction, we are disposed to accept the interpretation of the law adopted and acted upon by respondent and relator as to the time and manner of payment; but, in the light of constitutional provisions, legislation, and decisions of this court touching the authority of the board of regents to control the affairs of the University, cannot hold that the judgment of the regents as to the legality and expediency of expenditures for the use and maintenance of the institution is subordinate to that of the auditor general.

The leading thought and clearly expressed object of the final proviso under consideration is the advancement during each year of this appropriation from the State treasury for current expenses, to be later replaced when the tax is collected. To that extent it clearly modifies the enacting clause, but words found in the body of the act, following the phraseology of previous acts of like nature, paralleling the appropriations made, with the University interest fund, have a significant bearing on the intent of the legislature. It is an elementary rule of construction that all words found in the act are presumed to be made use of for some purpose, and, so far as possible, effect must be given to every clause and sentence.

The proper function of a proviso is to restrain, or in some manner modify, the general provisions of an enacting clause. It is not to be extended or enlarged by inference, but strictly construed and limited to the object plainly within its terms.

By the provisions of the Constitution of 1850, repeated in the new Constitution of 1909, the board of regents is made the highest form of juristic person known to the law, a constitutional corporation of independent authority, which, within the scope of its functions, is co-ordinate with and equal to that of the legislature. By the old Constitution it is given “direction and control of all expenditures from the University interest fund ” (section 8, art. 18); and by the new Constitution “general supervision of the University, and the direction and control of all expenditures from the University funds.” Section 5, art. 11. That the board of regents has independent control of the affairs of the University by authority of these constitutional provisions is well settled by former decisions of this court. People v. Regents, 4 Mich. 98; Weinberg v. Regents, 97 Mich. 254 (56 N. W. 605); Sterling v. Regents, 110 Mich. 382 (68 N. W. 253, 34 L. R. A. 150); Bauer v. State Board of Agriculture, 164 Mich. 415 (129 N. W. 713). Strong and unequivocal language is used in these decisions.

“The respondents are constitutional officers to whom are confided by the Constitution ‘the general supervision of the University, and the direction and control of all expenditures from the University interest fund.’ * * * To their judgment and discretion as a body is committed the supervision of the financial and all other interests of an institution in which all the people of this State have a very great interest.” People v. Regents, supra.
‘ ‘ But the general supervision of the University is by Constitution vested in the regents. * * * So, when the State appropriates money to the University ■ it passes to the regents and becomes the property of the University, to be expended under the exclusive direction of the regents, and passes beyond the control of the State through its legislative department. * * * Under the Constitution, the State cannot control the action of the regents. * * * It cannot add to or take away from its property without the consent of the regents. In making appropriations for its support the legislature may attach any conditions it may deem expedient and wise, and the regents cannot receive the appropriation without complying with the conditions. This has been done in several instances.” Weinberg v. Regents, supra.

The able and exhaustive opinion by Justice Grant in Sterling v. Regents, supra, reviews the causes which led up to these former decisions and reaffirms them. In the recent case of Bauer v. State Board of Agriculture, supra, the Sterling Case is cited with approval.

That conditions may be attached by the legislature to appropriations for the University is well settled. In such case the regents may accept or reject such appropriation, as they see fit. If they accept, the conditions are binding upon them. In this act appropriating the quarter-mill tax, now three-eighths of a mill (Act No. 303, Pub. Acts 1907), are specific conditions as to reporting to the governor, maintaining the departments, and use of accumulations. With these the regents must comply. For a failure to maintain any of said departments the penalty is a reduction of the tax to one-twentieth of a mill, but beyond that the money passes to the regents, and becomes the property of the University, to be expended under the exclusive direction of the regents.

We cannot construe the language of the final proviso of the act in question as an intent on the part of the legislature to overthrow the public policy of over half a century, plainly deducible from the general course of legislation and adjudication relating thereto, or as a purpose on their part to refuse aid to the University, unless the regents surrender their constitutional right to control the affairs and finances of the institution, and submit their judgment as to the wisdom and expediency of detailed expenditures for current expenses to that of the auditor general. Neither in construing this proviso can we interpret it as an intent thus by indirection to enlarge the scope of the enacting clause and ingraft upon this appropriation all conditions and restrictions found in the accounting laws of the State, together with any legislation which may be read in connection therewith.

No money is paid out of the State treasury except on the warrant of the auditor general. In this case, as in many others, his duties are purely ministerial. As against the discretion of the regents in expenditure of the University funds he exercises no judicial functions. As to him, in the performance of his official duties, vouchers for expenditures made within the amount of the appropriation, when authorized by the board of regents and properly authenticated by the duly constituted officials, are, within the meaning of the law, “for lawful purposes.”

A writ of mandamus will issue as prayed.

Ostrander, 0. J., and Moore, McAlvay, Brooke, Blair, and Stone, JJ., concurred. Bird, J., did not sit.


author: Stone, J.

text:
    AUDITOR GENERAL v. MONROE COUNTY TREASURER.
    1. Evidence — Presumptions—Public Officers.
    It is presumed that a public officer performs his duty.
    2. Same — Taxation—Mandamus—Special Assessments — Drain Tax.
    In mandamus proceedings to compel a county treasurer to pay to the State with interest the amount of a drain tax charged back by the auditor general, it will be presumed, in the absence of proof as to whether the tax was a county or township drain tax; that in making return of the same to the auditor general, the treasurer performed his duty to return unpaid county drain taxes and that it was not a township drain tax whioh the officer should not return.
    8. Taxation — County Accounts — State Bids.
    After the State had bid in the land for such tax, which appeared to be regular on the face of the return, the auditor general correctly credited the amount thereof to the county and carried it as a credit until the tax was adjudged to be invalid by the decree of a court of chancery.
    4. Same —Interest — State Tax Lands — Auditor General — Counties.
    Having received credit for the amount of the tax as so much cash, the county was chargeable with interest on the same unless it could show that the auditor had notice of facts or reasons justifying him in canceling the tax before he did so.
    5. Same — Demand—Judgment.
    Until the tax was held to be invalid by the decree of a court in chancery or by some other competent authority, the auditor general was under no duty to charge it back to the county. Auditor General v. Supervisors, 36 Mich. 70-77.
    6. Same.
    And the interest was properly computed by the method of annual rests, with interest upon the yearly balances.
    Mandamus by Oramel B. Fuller, auditor general of the State of Michigan, to compel Edward L. Cousino, treasurer of the county of Monroe, to pay to the State a certain tax charged back to said county by the auditor.
    Submitted October 4, 1911.
    (Calendar No. 24,050.)
    Writ granted November 3, 1911.

      Franz C. Kuhn, Attorney General (Charles W. McGill and George L. Hauser, of counsel), for relator.

      Jesse H. Boot, Prosecuting Attorney (Willis Baldwin, of counsel), for respondent.
   Stone, J.

The petition of the relator for a writ of mandamus represents:

(1) That he is the auditor general of this State, and that it is his duty to collect from the several county treasurers in the State such sums of money as may be found due from the several counties on general account, and for taxes charged back to said counties, where sales to the State have been canceled under decrees of a court of competent jurisdiction.
(2) That in the year 1873 the S. W. £ of the S. W. £• of section 18, in town 5 S., range 10 E., being in the township of Berlin, in the county of Monroe, was assessed for a certain drain tax known as the Moore drain or ditch for the sum of #68. That the said tax was not paid to the treasurer of the said township of Berlin within the time prescribed by law, or at any other time, and on or before the 1st day of March, 1874, was returned delinquent to the county treasurer of said county,, and subsequently said description was returned to the auditor general by the county treasurer of said county as delinquent for said tax, which return was received by the auditor general under date of March 30, 1874, and a copy of said return is annexed to the petition.
(3) That said description having been returned delinquent to the auditor general, as aforesaid, the county of Monroe was given credit upon the books of the auditor general for the amount of said tax, to wit, $68, as so much cash, which said credit continued upon the records of the auditor general’s office until the 29th day of January, 1909, as will more fully appear.
(4) That on the 5th day of October, 1874, said description was sold and bid to the State at the county treasurer’s sale for said tax of $68, together with interest and expense of sale, the amount of the said bid being $83.10; and, after the expiration of the period for redemption, said description was held on the records of the auditor general’s office as State tax land down to the 29th of January, 1909, and during all of which period the county of Monroe was given credit on the books of the auditor general’s department for said tax as so much cash.
(5) That under date of January 29, 1909, the circuit court for the county of Monroe, in chancery, in a certain cause pending therein, rendered a decree wherein it was ordered, adjudged, and decreed that “The ditch tax pretended to have been assessed in the general tax roll of the township of Berlin, in said county, for the year 1873, upon the S. W. J of the S. W. J of section 18, town 5 S., range 10 E., in said township of Berlin, is illegal and void, and is hereby set aside and vacated as a cloud upon the title of the claimant to said land.” And the auditor general and other defendants and their successors in office were perpetually enjoined from taking any steps or proceedings to enforce the collection of said tax by the sale of said lands, or otherwise.
(6) That upon receipt of a certified copy of said decree at his office the relator, as auditor general, caused a cancellation of said sale to the State to be made, and the tax for which said land was returned delinquent to his office, to be charged back to the county of Monroe, together with the expense of sale and interest as provided by law, under date of June 30, 1909, amounting to the sum of $556.90.
(7) That under and by virtue of the provision of section 87 of the general tax law (1 Comp. Laws, § 3910), being Act No. 206, Pub. Acts 1893, as amended, it became and was the duty of the county treasurer of the county of Monroe to pay to the State of Michigan the said sum of $556.90 at the quarterly settlement ending June 30, 1909, between the State and said county, as provided in said section, in order to balance the account between the State of Michigan and Monroe county for such quarter. That said item of $556.90 was included in the statement of account made by the relator, as auditor general, between the State and said county as rendered to the county treasurer of said county for the quarter ending June 30, 1909, but that said county treasurer then and ever since has refused to make such payment, as it was and is his duty to do. That subsequent statements were made for the quarters ending September 30, 1909, December 31, 1909, and March 31, 1910.
(11) That on the 4th day of May, 1910, there was due the State from said county by reason of the cancellation of said sale for said taxes and the charging back thereof, together with interest and expenses to the county of Monroe, the sum of $582.42. That relator caused a demand to be made upon Edward L. Cousino, county treasurer of said county, on said May 4th, to pay said sum forthwith to the State in settlement of the account, which he then and ever since has refused to do. The method of computation of interest with annual rests is set forth.

Relator prays that a writ of mandamus may be issued directed to said respondent commanding him forthwith to pay to the State of Michigan said sum, together with interest after May 31, 1910, which sum is now claimed to be due the State. An order that respondent show cause why a mandamus should not issue was made. In his answer the respondent admits the first paragraph of the petition; he denies the second paragraph; he admits that said description was returned delinquent to the auditor general of the State of Michigan, but is uninformed as to whether or not the county of Monroe was given credit for $68, and leaves relator to his proof in this regard. He is uninformed as to the fourth paragraph of the petition, and leaves relator to his proof. He admits the fifth paragraph of the petition. He is uninformed as to the sixth, and leaves relator to his proof, except that he admits demand for the sum of $556.90, made in the summer of 1909. He denies that it became and was his duty to pay the said sum. He admits the several demands made upon him as alleged in the petition.

Respondent alleges that, if the county of Monroe was given any credit for $68, it was a mistake, and that, in any event, the county could not be charged with the interest until after the discovery of the mistake and demand made on the treasurer, and that no such demand was made until after June 30, 1909. He further alleges that the relator, as auditor general, and said county, have made about 30 settlements since 1874, and each time had supposed such statements to be full and complete between the State and the county. He alleges that all drains in said township of Berlin were laid out by a township drain commissioner, and not by highway commissioners of said township acting as drain commissioners, nor by a county drain commissioner; that, if the township drain commissioner did lay out and establish any drain in the year 1873, he did so under Act No. 98, Pub. Acts 1871; and that under said act there was no authority on the part of the county treasurer to bid in lands for such a tax for the State, but, on the contrary, it was the duty of the county treasurer under said act not to return said lands to the auditor general, but to hold said lands indefinitely for sale by himself for such delinquent tax; that the said act did not authorize the auditor general to receive returns for such delinquent township drain taxes, and did not authorize him to give the county credit for such delinquent drain taxes; that, if the county received credit for the alleged delinquent drain tax, it was a mistake. He further claims that the State is now estopped from disputing the correctness of such numerous settlements; and, after recapitulating the reasons why the respondent should not pay such sum so demanded, he claims the benefit of a demurrer to the petition, because it does not appear therein that the alleged tax was not a township drain tax.

Upon the proper showing, the following issues of fact were framed and sent down to be tried and determined by the circuit court for the county of Monroe:

“First. Is it true, as set forth in paragraph 2 of relator’s petition, that the description of land [describing it] was returned delinquent to the auditor general of the State of Michigan by the treasurer of the county of Monroe under date of March 80, 1874, or any other date, for a certain drain tax known as the ‘ Moore Drain,’amounting to $68, assessed in the year 1873 ? ”

The return of the circuit court for said county answers the above question in the affirmative.

“Second. Is Exhibit A, attached to said petition, a correct copy of the return of said land for said tax to the auditor general under said date; and, if not a correct copy, in what respect does it differ from the original return?”

This question is answered by the circuit court as follows:

“Exhibit A, attached to the auditor general’s petition, is a correct copy of the return of the county teasurer to the auditor general in the year 1874.”
“Third. If said land was returned delinquent under ' date of March 30,1874, for said tax to the auditor general of the State of Michigan, was the county of Monroe given credit as so much cash for said sum of $68, or any sum, by reason of the return of said land, and was said credit, if so given, continued upon the records of the auditor general’s office until the 29th day of January, 1909 ? ”

This question is answered by the circuit court as follows:

Third. Under date of March 30, 1874, the county of Monroe was given credit on the books of the auditor general, by reason of such return, to the amount of $68; that said land was advertised and sold October 5, 1874, at which sale said description was bid to the State; that thereafter it was held on the State tax land list until the 29th day of January, 1909, when said sale was decreed invalid by the circuit court for the county of Monroe, in chancery; that from March 30, 1874, until 1909, no further entry, reference, or demand was made to or for said tax or said sum, and such sum was not included in any balance or demand made upon Monroe county until June, 1909.”
“jFourth. Did the amount of taxes for which said description was returned delinquent to the auditor general in 1874 enter into any of the subsequent settlements between the auditor general, representing the State of Michigan, and the county treasurer of Monroe county, representing the county of Monroe, other than as a continuing credit given the county of Monroe in 1874 ? ”

The return of the circuit court states that the answer to this issue is fully covered by the answer to the third, above set forth.

“Fifth. If the county of Monroe was given credit in 1874 by reason of a return of said land delinquent for any tax of 1873 to the auditor general, has any part or portion thereof been paid to the State of Michigan or otherwise in any of the settlements between the State of Michigan and the county of Monroe, or in any other manner?”

The circuit court answers this issue in the negative.

f,Sixth. Was not this description assessed $68 on the original roll under the column headed ‘Ditch Tax,’the name of the drain not appearing in nor on the roll, and the roll not showing whether this drain was a township or county drain?”

This issue is answered, “Yes.”

“Seventh. Was this $68 assessed for a township or county drain ? ”

This issue is answered in the following language by the circuit court:

“ It does not appear from the evidence whether it was a county or township drain.”
“Eighth. If said land was returned delinquent under date of March 30, 1874, for said tax to the auditor general of the State of Michigan, was the county of Monroe given credit as so much cash for the said sum of $68, or any sum, by reason of the return of said land, and was such credit, if so given, continued upon the records of the auditor general’s office until the 29th day of January, 1909? When was the first demand made upon Monroe county for this sum ? ”

The circuit court returns as follows:

“ The answer to this issue is fully covered by the answer to the third above.”

It appears from Exhibit A, the statement of delinquent lands made by the county treasurer to the auditor general, that the $68 were assessed upon the land in question for the “Moore ditch tax.” It appears by the answer to the sixth issue that this land was assessed on the original tax roll under the column headed “ Ditch Tax,” the name of the drain not appearing in or on the roll. It may be stated that under the law the auditor general had no access to the original tax roll. It was sufficient for him to know that the tax was assessed as the “ Moore ditch tax ” in the delinquent return. It appears from the answers to the issue sent down to the circuit to be tried that the land in question was assessed in 1878 for what was known as the “Moore ditch tax,” amounting to $68, and that said description was returned delinquent thereafter to the auditor general. There was nothing in the return of the county treasurer to the auditor general which in any way disclosed to the latter that the assessment in question was not made under and pursuant to the county drain law then in force, being section 1756 of the Compiled Laws of 1871, which reads as follows:

“It shall be the duty of the county treasurer to return all lands upon which a tax shall be levied under this act, delinquent for such tax, to the auditor general, and the same shall be advertised and sold therefor, at the same time, and in the same manner, and subject to the like redemption as lands delinquent for other taxes. In case any lands belonging to individuals charged with a drain tax shall be bid off to the State, or sold to other parties, at the tax sales, the State treasurer shall pay over to the proper county treasurer the amount of such drain taxes.”

This return to the auditor general was made in the month of March, as required by law. See Act No. 90 of the Laws of 1873. That statute provided that the amount of the taxes so returned should be placed to the credit of the county on the books in the office of the auditor general,which requirement seems to have been complied with by the auditor general.

The answer of the respondent having claimed that the assessment was under the township drain law as distinguished from the county drain law then in force, the seventh issue of fact was framed for the purpose of determining whether said tax was assessed for a township or county drain. As above indicated, the circuit court was unable to determine whether it was a township or county drain. In the absence of direct proof upon the subject, what is the presumption ? It seems very clear to us that the presumption is that a public officer performs his duty. It appearing that the county treasurer made return of this tax to the auditor general, and that the auditor general gave credit to the county of Monroe therefor, it will be presumed that it was a proper tax to be so returned and credited. Prima facie, at least, this conduct of these officers indicates that the assessment was under the county drain law. It was treated as such by the auditor general in subsequent proceedings instituted for the purpose of foreclosing the lien under the general tax law then in force; the land appearing to have been advertised and bid in to the State.

It was properly carried on the records of the auditor general’s office as State tax land until the decree of the circuit court for the county of Monroe, in chancery, on the 29th day of January, 1909, adjudged the said tax to be void. Until said tax and sale to the State had been decreed void in the manner set forth, said sum of $68 stood as a credit to the county of Monroe the same as so much cash. After said decree was made, the auditor general, acting pursuant thereto, canceled the said sale and charged back to the county of Monroe the amount of said tax for which the county had been given credit in 1874, together with the expense of sale and interest charges, which it was the duty of the county to pay under section 87 of the general tax law now in force. (1 Comp. Laws, § 3910, as amended by Act No. 83, Pub. Acts 1899.)

It is urged by respondent that because said matter remained in statu quo from March 30, 1874, until 1909, with no further entry, reference, or demand upon Monroe county, that the relator should not charge interest upon this sum. It is very evident from this record that the county of Monroe in 1874 received credit for this sum of $68 as so much cash, and has had the use of that money during all these intervening years. It entered into and became absorbed in the general account. The lands had been sold to the State and were held as State tax lands. This record does not disclose that the auditor general had any knowledge or information which would have justified him in canceling this tax before he did so. It does not appear that he owed the county of Monroe any duty in relation thereto that he did not perform. As was said by this court in Auditor General v. Supervisors of Monroe County, 36 Mich. 70, 77:

“In regard to taxes charged back because of injunctions, there is nothing in any tax law which allows any taxes to be so charged back until they have been rejected or held invalid by some competent authority.”

The general working of the tax system of this State is clearly set forth by Justice Campbell in the case above cited. The auditor general, upon receiving notice of this decree, promptly canceled this tax and charged it back to Monroe county, together with the expense of sale and interest charges in pursuance of the provisions of section 87 of the general tax law now in force. It is conceded that the demand was made as alleged in the petition. Respondent’s counsel insist that the whole proceeding from beginning to end was founded in a mistake. We are unable to agree with counsel in that contention.

Under the foregoing statement there appears to be but one other question to be considered, and that is the question of the computation of interest. The manner in which interest was computed by the auditor general on the original tax of $68 is fully set forth in an exhibit attached to the petition of relator. It is the claim of the attorney general that this method of computing interest with annual rests is the identical one that has been followed for many years, and that it has been fully approved by this court in the following cases: Auditor General v. Board of Supervisors of Shiawassee County, 74 Mich. 536 (42 N. W. 143); Id., 76 Mich. 295 (42 N. W. 1101); Mason v. Supervisor of Hazleton Township, 82 Mich. 440 (46 N. W. 784); Auditor General v. Board of Supervisors of Bay County, 106 Mich. 662 (64 N. W. 570); Auditor General v. Bolt, 124 Mich. 185 (82 N. W. 845); Oppenborn v. Auditor General, 140 Mich. 92 (103 N. W. 515). In Auditor General v. Board of Supervisors of Shiawassee County, supra, the subject of interest and annual balances is fully discussed by Justice Long, speaking for the majority of this court. The case of Mason v. Supervisor of Hazleton Township, supra, seems to be directly in point. It was a proceeding between the treasurer of Shiawassee county and the township of Hazleton. An item of drain taxes was returned in 1871 for the taxes of 1870, and in 1872 for the taxes of 1871, as delinquent, by the township treasurer to the county treasurer of Shiawassee county upon certain lands. These lands were returned by the county treasurer to the auditor general, and, upon his books, the amount of the taxes was credited to the county in its account with the State. These taxes, being subsequently declared void by the circuit court of Shiawassee county, were charged back to the county with interest and expenses, as appears by a statement of the auditor general found in [Mason v. Supervisor of Hazleton Township] 82 Mich., on page 443 (46 N. W. 785) of the case. This table shows conclusively that interest was computed on the total item of tax for each year in identically the same manner as the auditor general has computed interest in the instant case. This method of computing interest was approved by this court, and held to be a charge against the township as charged back to the county by the auditor general, in the following language:

“JI can see no reason, under the law of 1869 — the ditch law heretofore referred to — why it cannot also be held for rejected or void drain taxes, when it has had the benefit, not only of a credit for them, but the actual money, and has disbursed it. And, under our system of taxation, if there can be no outlawry as between the State and the county, there ought not to be any between the county and the township. Then, as we have held in Auditor General v. Supervisors, 74 Mich. 536 [42 N. W. 143], that it was competent for the State to charge interest upon annual balances, and that this item was properly chargeable back to the county, it follows that the township must pay it back to the county.”

It is difficult for us to escape from the claim of the attorney general that this case is directly in point and controls the instant case. This course having been followed for many years by the auditor general with the sanction of this court, we do not feel authorized to depart from the rule. No demand could have been made by the auditor general upon the county of Monroe until the tax had been declared void by competent authority.

We think that the writ of mandamus should issue as prayed for, but without coats.

Ostrander, 0. J., and Steers, Moore, and McAlvay, JJ., concurred.