text:
      In re TAYLOR’S ESTATE. TAYLOR v. TAYLOR.
    1. Banks and Banking — Joint Deposits — Survivorship—Statutes — Presumptions.
    Section 3, Act No. 248, Pub. Acts 1909 (2 Comp. Laws 1915, § 8040), providing that deposits in bank in joint name should be paid to the survivor, is valid, and, in the absence of competent evidence to the contrary, the presumption created by, the statute is sufficient to establish the title to the deposit in the survivor.
    2. Evidence — Oral Testimony — Letter oe Instructions — Banks and Banking.
    In proceedings involving the ownership of a bank account in joint names of deceased and wife, testimony of the bank cashier to oral instructions from decedent to so place his bank account, in addition to the letter of instructions to the bank from decedent, which was received in evidence, was admissible, the rule that parol evidence may not be received to vary a written instrument not being applicable, since said letter was not a contract in any sense.
    3. Banks and Banking — Joint Deposits — Evidence—Directed Verdict.
    Undisputed testimony of a bank cashier that decedent orally instructed him to so place his bank account that it would be payable to the survivor of himself and wife confirmed the presumption established by the statute and rendered the question of the ownership of said deposit one of law for the court.
    4. Diets — Inter Vivos — Evidence—Sufficiency.
    Undisputed testimony by witness that decedent told her to count the money taken in in his business, and deposit it in the bank for his wife, which was done, and, when so informed, he said “all right,” held, sufficient to establish a gift inter vivos.

    5. Teiai, — Evidence—Directed Verdict.
    Where an automobile and a launch were in the possession of the widow, and there was no evidence that deceased husband ever made any claim to them in his lifetime, there was no evidence to justify the submission of the question of ownership to the jury.
    Error to Muskegon; Williams (Benjamin), J., presiding.
    Submitted January 4, 1921.
    (Docket No. 18.)
    Decided March 30, 1921.
    Harry A. Morris presented his first annual account as administrator of the estate of James C. Taylor, deceased. The account was allowed in the probate court, and Henry B. Taylor and William P. Taylor appealed to the circuit court. Judgment sustaining probate order on a directed verdict. Defendants bring error.
    Affirmed.

      R. J. MacDonald and James E. Sullivan, for appellants.

      Oscar E. Waer, for appellee.
    This is a companion case to Taylor v. Taylor, 206 Mich. 73. In that case the transfer of certain real estate by decedent James C. Taylor was involved. Here the questions arise on the settlement of the account of the administrator of his estate. Without repeating all the facts there enumerated but stating only such as have a bearing on the present case, it should be said that deceased had for some time been engaged in the saloon and hotel business at Muskegon Heights; defendant Anna G. Taylor is his widow. They had no children. He was a stockholder and director of the first State Savings Bank of Muskegon Heights. Upon his death it was learned that there was on deposit in this bank $8,542.28 under the following entry on the books of the bank: “James C. Taylor and Anna G. Taylor (wife). Joint account to be paid to either or the survivor of them — Sec. 3 — Act 248 — 1909.” There was also found to be deposited in this bank $1,802.50 in a savings book in the name of defendant. These items were placed in the inventory of the estate as was. an automobile worth $900, together with a launch worth $250, but none of these four items was reduced to possession by the administrator. The money was so placed in the inventory, according to the testimony of the administrator, “so that they would know that it was around some place- and they could fight it out, and they are fighting it out. I wanted to make a record of it.” This seems to apply equally to all the items now involved. It does not appear that the administrator ever claimed that any of the property here involved belonged to the estate, although it would appear that he claimed and reduced to his possession considerable other personal property, as the personal property' in the inventory amounted to $26,554.89. The four items above mentioned were claimed by the widow, while two brothers of deceased insisted they belonged to the estate and that the administrator should account for them. This question was first tried out in the probate court which found that the property belonged to the widow and therefore should not be charged to the administrator, and settled the account accordingly. From this order of the probate court the brothers appealed. Since the appeal to the circuit the brother William P. died and his executrix and the brother Henry B. continue the litigation. They will be hereafter referred to as the appellants.
   Fellows, J.

(after stating the facts). We shall consider the items involved under three heads:

(1) The deposit of $8,542.28.

(2) The deposit of $1,802.50.

(3) The automobile and launch.

At the close of the appellants’ testimony a verdict was directed for the defendant upon all of these items and the main questions in the case revolve around the correctness of these rulings.

Section 3, Act No. 248, Public Acts 1909 (2 Comp. Laws 1915, § 8040), provides:

“When a deposit shall be made in any bank or trust company by any person in the name of such depositor or any other person, and in form to be paid to either or the survivor of them, such deposits thereupon and any additions thereto, made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same together with all interest thereon, shall be held for the exclusive use of the persons so named and may be paid to either during the lifetime of both, or to the survivor after the death of one of them, and such payment and the receipt or acquittance of the same to whom such payment is made shall be valid and sufficient release and discharge to said bank for all payments made on account of such deposits prior to the receipt by said bank of notice in writing not to pay such deposit in accordance with the terms thereof.”

We have had occasion to consider the provisions of this section. See In re Rehfeld’s Estate, 198 Mich. 249; Powell v. Pennock, 198 Mich. 573; People’s State Bank v. Miller’s Estate, 198 Mich. 783; In re Sadler’s Estate, 201 Mich. 281; Ludwig v. Bruner, 203 Mich. 556. In Wayne County & Home Savings Bank v. Smith, 194 Mich. 151, we held this statute) was not applicable to the case before us, and in Negaunee National Bank v. LeBeau, 195 Mich. 502 (L. R. A. 1917D, 852), we found it unnecessary to determine its validity. In Re Rehfeld’s Estate, supra, its validity was upheld and it was said:

“We are of opinion that in enacting the legislation in question it was the legislative intent not only to protect banks in the payments of deposits made in the manner indicated by the statute, but, in the first instance and in the absence of competent evidence to the contrary, to actually fix the ownership of the fund in persons named as joint tenants with the attendant right of survivorship therein.”

And in Ludwig v. Bruner, supra, when considering the money in the bank which was a joint deposit, we said:

“There is not sufficient evidence in the case to lead us to conclude that the presumption created by the statute (Act No. 248, § 3, Public Acts 1909; 2 Comp. Laws. 1915, § 8040) has been overcome.”

It must, therefore, be regarded as settled by the former decisions of this court that the section is a valid one, and that in the absence of competent evidence to the contrary the presumption created by it is sufficient to establish the title to the deposit in the survivor. The infirmity in the argument of appellants’ counsel lies in the fact that it is bottomed on language found in the prevailing opinion in Ludwig v. Bruner, supra, which was used when we were there considering the item of the mortgage and which had no reference to the deposit in the bank. In the instant case a bank deposit alone is involved in this item. An examination of that case will disclose that two items were there involved: one a joint bank deposit, and the other a mortgage. The entire court agreed that the bank deposit went to the survivor, and a majority of the court agreed that the mortgage did not. Obviously language used by the court when discussing the mortgage was not and is not applicable to a deposit made under the provisions of the act.

As applied to the instant case it was competent for the appellants to rebut the presumption created by the statute by showing that the deposit in. the bank was placed in the joint names of deceased and his wife without authority from deceased so to do. They called as a witness Mr. Morris, cashier of the bank and administrator of the estate of decedent, and had him identify a paper signed by Mr. Taylor in his lifetime. It was as follows:

“February 27, 1917.
“First State Savings Bank,
“Of Muskegon Heights.
“Gentlemen: I wish my account in your bank to be placed in the joint names of myself and wife, Anna Taylor, and hereby authorize you to make proper entries in your bank to accomplish said purpose.
(Signed) “James C. Taylor.
“In presence of:
“Mrs. M. Foley.”

Upon cross-examination of this witness defendant’s counsel was permitted over objection of appellants to prove that the witness had further and other instructions from Mr.' Taylor with reference to the bank deposit. This is assigned as error and appellants, to support their contention, invoke the rule that parol evidence may not be received to vary a written instrument. We think that rule is not applicable here. The paper before us is not a contract in any sense; at most it is but a letter of instruction to the bank. That decedent orally gave instructions to the cashier in greater detail so as to authorize the deposit in the form it was found was a proper subject of inquiry. See Anson v. Savings Bank, 155 App. Div. 939 (140 N. Y. Supp. 1017), cited by us in Re Rehfeld’s Estate, supra. There is much force in the contention of defendant’s counsel that the letter of instruction alone was sufficient to authorize the entry made by direction of the cashier in the books of the bank. Mr. Taylor directed the bank account to be. placed in the joint names of himself and wife and authorized the making’ of proper entries to accomplish such purpose. But we do not find it necessary to. rest decision on this alone. Mr. Morris testified in substance as follows: He had two interviews with deceased on the same day and shortly before his death. Mr. Taylor had a farm, the title to which stood in the name of himself and his wife as tenants by the entirety, so that the survivor would take the title; he wanted the hotel property and the bank deposit fixed in the same way. The deed to the hotel property was before us in Taylor v. Taylor, supra, and was sustained by us. At the same time it was executed Mr. Taylor signed the letter of instruction to the bank. The cashier, pursuant to it and the more detailed oral instructions, made the change upon the books of the bank. Mr. Morris’ testimony was in no way disputed. It confirmed the presumption of the statute, and being undisputed made the question one of lawi for the court. There was no error in directing a verdict for the defendant as to this item.

The appellants called as a witness a niece of Mrs. Taylor, who was at the home of deceased during his sickness. She testified that the living rooms of Mr. and Mrs. Taylor were over the saloon; that the money taken in at the saloon was brought upstairs and put in a drawer; that deceased requested her to “count the money in the drawer and put it in the bank for Anna.” That she did so, the amount being $1,802.50, the item under consideration; she testified that she took the money to the bank and deposited it as directed by deceased in the name of defendant; that when she returned she informed Mr. Taylor what she had done and he said, “All right.” This was all the testimony on the subject of this item. It established a gift inter vivos, and the trial judge was right in so holding.

The record is barren of any evidence that deceased in his lifetime owned an automobile or a launch. From what the record does contain we may infer, if anything on the subject may be inferred, that the widow has in her possession an automobile and launch which she claims to own. There is no testimony in the record that they were ever claimed by decedent in Ms lifetime. Upon this state of the record the trial judge was correct in holding that the evidence did not justify the submission of the question of ownership of the automobile and launch to the jury.

There is no evidence in the record justifying the submission of the question of decedent’s mental capacity to the jury. The trial judge correctly disposed of the case.

The judgment is affirmed.

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

The late Justice Brooke took no part in this decision.


source: Caselaw Access Project

author: Fellows, J.

license: Public Domain

text:
    ZEILMAN v. FRY.
    1. Appeal and Error — Amount Claimed in Counts — Declaration —Amendment in Supreme Court.
    Where, in an action of assumpsit on the common counts, the claim is first made in the Supreme Court that the judgment was erroneous because it exceeded the amount claimed, and defendant was fully advised of plaintiffs claim by the bill of particulars, and no request made to limit the amount of recovery to the amount stated in the counts, and no mention of it made in the motion for new trial or motion for rehearing of motion for new trial, this court will exercise its discretion and grant plaintiffs motion to amend the declaration as to amount claimed, and will treat the case as if said amendment had been made in the court below, under 3 Comp. Laws 1915, § 12478.

      2. Reference — Trial—Discretion of Court to Send Case to Referee.
    Where, in an action on the common counts for an amount claimed to be due on real estate deals, for work and labor, and for material furnished, no jury had been demanded by either party, the trial court had the power, in the exercise of its discretion under 3 Comp. Laws 1915, § 12640 et seq., to send the ease to a referee instead of trying it with a jury.
    3. Appeal and Error — Discretion of Court — Failure to Send Case to Referee.
    Where there was no request for an order referring the case to a referee, it will not be reversed because of failure of the trial court to exercise its discretion in this respect, since cases may not be reversed for failure of the trial court to exercise a discretion it was not asked to exercise nor upon rulings that were never made.
    4. Same — Suggestion of Court Not a Ruling.
    That defendant’s counsel was discouraged from offering in evidence a large number of checks given by defendant by the suggestion of the trial judge that considerable time would be consumed in identifying each check, is no cause for reversal, since no ruling was made and no evidence offered.
    5. Same — Refusal to Grant New Trial — Reasons Thebefok— Review.
    Assignments of error based on the refusal to grant a motion for a new trial will not be considered where the record does not show the reasons for the court’s refusal upon timely requests theretofore made.
    6. New Trial — Discretion of Court.
    The trial judge has a wide discretion in granting or refusing to grant new trials either upon his own motion~or upon the motion of a party.
    7. Same — Extension of Time — Denial of Motion — Abuse of Discretion.
    Where the trial judge once extended the time under Circuit Court Rule No. 48 for filing a motion for a new trial, which motion was made and denied, the denial of a so-called “motion for rehearing of motion for a new trial and motion for new trial,” which was in fact a motion for a new trial containing the grounds found in the former motion and additional grounds, was not an abuse of discretion.
    8. Same — Failure to Introduce Evidence Not Ground for New Teual — Miscarriage of Justice.
    The failure of defendant’s counsel to put in evidence certain checks which he then had in his possession, and which might have been of advantage to defendant, held, insufficient ground for a new trial, in view of the facts that they are not newly-discovered evidence, and an examination of the record is not convincing that the result is a miscarriage of justice.
    9. Appeal and Error — Cases Reviewed on Record Made.
    Cases in ,the Supreme Court must be disposed of upon the record as made and not upon post trial ex parte affidavits.
    Error to Wayne; Marschner (Adolph F.), J.
    Submitted January 20, 1921.
    (Docket No. 32.)
    Decided March 30, 1921.
    Assumpsit by John Zeilman against Vernon C. Fry for work and labor. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Welsh, Bebout & Kahn, for appellant.

      Frederic T. Harward, for appellee.
   Fellows, J.

Plaintiff brings this action to recover a small balance due on some real estate deals he had with defendant and for an amount claimed to- be due for work and labor and a small amount of material furnished. . The balance due on the real estate deal is in dispute, plaintiff claiming $194.70, defendant insisting it was but $166. The principal contentions, however, on the trial revolved around the amount and value of plaintiff’s work as a carpenter and that of the men in his employ in extra work on the erection of buildings for defendant. Plaintiff had verbally agreed with defendant to do the carpenter work on 8 houses to be erected by defendant at a stipulated price. There is no claim that this contract was not properly performed by plaintiff or that any of the work was improperly done. There were several changes made in the plans, and it is over the extras on these houses occasioned by these changes, the erection of 6 garages, and repairs on 2 other houses that the principal disagreement arises. Plaintiff claimed upon the trial that there was a balance due him of $1,844.38, while defendant insisted he had been overpaid $894.13. The conflicting claims of the parties were submitted to the jury in a charge not complained of and a verdict was rendered for plaintiff for $2,028.21, being the amount of his claim with interest.

Plaintiffs declaration is upon the common counts, the amount named in each count being $1,200; the ad damnum clause being in the sum of $5,000. It is first insisted as a ground of reversal that inasmuch as the judgment exceeds the amount claimed in each of the counts it should be reversed. There was no request preferred in the court below to limit the amount of the recovery to the amount stated in the counts; the bill of particulars was very ample and fully advised defendant of plaintiff’s claim and its amount; in the motion for a new trial and in the so-called “motion for rehearing of motion for new trial and motion for new trial” no specific mention was made of this point, and it was not until the case reached this court that the question was raised. Under these circumstances, in the exercise of our discretion the motion of plaintiff’s counsel made at the hearing in this court.to amend the declaration to meet this question will be granted and the case treated as though such amendment had been made in the court below. Section 12478, 3 Comp. Laws 1915; Borden v. Clark, 26 Mich. 410; Smith v. Pinney, 86 Mich. 484; Enright v. Insurance Co., 91 Mich. 288; Peacock v. Railway Co., 208 Mich. 403.

It is next urged that the case should be reversed because the court did not on its own motion send the case to a referee under the provisions of section 12640 et seq., 3 Comp. Laws 1915, instead of trying it with a jury. No jury had been demanded by either party and it is quite possible as defendant’s counsel suggested that it would have been a proper case to send to a referee. Undoubtedly the trial court had such power in the exercise of its discretion. Hollands v. Wayne Circuit Judge, 117 Mich. 326. But there was. no request for such an order or for the exercise of such discretion. Cases may not be reversed in this court for a failure on the part of the trial court to exercise a discretion he was not asked to exercise nor upon rulings that were never made.

Error is assigned because a large number of checks given by the defendant to the plaintiff were not received in evidence. It should be a sufficient answer to this contention that these checks were not offered in evidence either singly or in a bunch. It is said by defendant’s present counsel that the trial judge discouraged counsel who tried the case from introducing the checks in evidence. What the trial judge suggested, and all that he suggested, was that considerable time would be consumed by identifying and offering in evidence each separate check. He did not rule that counsel could not pursue such course if he so desired. It would seem, although the record on this point is not as clear as might be desired, that a list of all these checks was given to the jury. But the checks themselves were never offered. We cannot reverse a case upon a ruling that was not made nor determine the admissibility of testimony that was not offered.

A motion for a new trial was made within the time allowed by the trial judge. It was overruled as appears by the calendar, but the reasons therefor do not appear in the record, nor does it appear that defendant requested this filing, nor does exception appear to have been taken to such ruling. Some months thereafter and after substitution of present counsel, without leave of the court or without any extension of time, another motion called a “motion for rehearing of motion for new trial and motion for new trial” was filed. This was accompanied by affidavits, some of which were denied by counter affidavits. In this motion it is insisted that counsel who tried the case should have introduced the checks and other evidence then in his possession and that of defendant, that the verdict was against the weight of the evidence and excessive. The trial judge overruled this motion, principally on the ground that it was not seasonably filed, but he did add that the case was one for a jury and that it had been properly submitted. He found no reason for setting aside the verdict. Error is assigned upon the refusal to grant the first motion for a new trial and also to the refusal to grant the second motion. Counsel for the plaintiff insists that neither of these motions is before the court upon this record. He points out the fact that in the first motion for new trial no request was made for the filing of written reasons in case of denial of the motion, nor were any written reasons filed, nor was any exception taken to the denial of this motion. He also points to the fact that the second motion was not seasonably filed and that no exception was filed to the refusal to grant it.

This court has uniformly held that assignments of error based on the refusal to grant a motion for a new trial would not be considered where the record did not show the reasons for the court’s refusal upon timely requests theretofore made. Among the numerous cases, see Stevenson v. Railway Co., 118 Mich. 651; Tobin v. Modern Woodmen, 126 Mich. 161; Gillett v. Burns, 131 Mich. 616; Wilbur v. Railroad Co., 145 Mich. 344; Bennett v. Denton, 194 Mich. 610.

Circuit Court Rule No. 48 provides:

“Motions for a new trial and motions in arrest of judgment, with the reasons on which they are founded, shall be filed and a copy thereof be served on the opposite party within five days after the rendition of a verdict, in the case of a trial by jury, and within a like time after the decision of the court, when the cause has been tried by the court, or within such further time as shall be allowed therefor by the court or judge. Such motions may be brought on for hearing by either party before the court, and the decisions on such motion may be made by the judge and entered in vacation or in term. It shall be the duty of the clerk to notify the attorneys for both parties that such decision has been made, immediately thereafter/”

There is no doubt the trial judge has a wide discretion in granting or refusing to grant new; trials either upon his own motion or upon the motion of a party. Manufacturers’ Mut. Fire Ins. Co. v. Gratiot Circuit Judge, 79 Mich. 241; Reynolds v. Newaygo Circuit Judge, 109 Mich. 403. Under this rule time in which to file the motion may be extended by him beyond the period of 5 days. In the instant case it was extended to 20 days and a motion for a new trial was filed within such extended time. In this motion no claim was made with reference to the checks. This motion was denied and no further time was granted or asked for in which to make any other or further motion for a new trial. Without such further extension, and several months after the time had expired, another motion for a new trial was made. True it was indorsed and called “motion for rehearing of motion for new trial and motion for new trial,” but it was in truth and in fact a motion for a new trial containing the grounds found in the former motion and additional grounds. We are pointed to no statute or rule of practice which, permits this to be done without first obtaining leave of the court so to do. The rule fixes the time within which a motion for a, new trial may be filed as matter of right at 5 days. The trial judge in the exercise of his discretion could and did extend that time. Having once extended the time and having once overruled a motion for a new trial it was not an abuse of discretion to refuse to grant another motion for a new trial filed several months after the extended time had expired.

Defendant’s counsel complain most bitterly that the verdict of the jury worked a miscarriage of justice in this case. Such complaints are not uncommon in this court. Counsel insist that had the checks been put in evidence a different result would have been reached. The introduction of the checks themselves might have been of advantage to defendant, but he then had them in his possession at the trial, they are not newly-discovered evidence. Had they been introduced plaintiff, of course, would have been permitted to explain upon what account they were paid or applied, whether upon the land' deal or the matters here in issue, and to have fully explained them. Upon the trial it was not deemed necessary or important to introduce them. In the first motion for a new trial no mention was made of them and it was not until several months after the verdict that defendant discovered and claimed that a mistake had been made to his disadvantage in not introducing them in evidence. As we read this record each juror was given a copy of the bill of particulars of both parties and they had before them the claim of the defendant and all of it, and no material testimony offered by him was excluded by the court. Defendant has had his day in court; a careful examination of this record, is not convincing that the great injustice has been done that he and his counsel seem to have persuaded themselves was inflicted upon him. Cases in this court must be disposed of upon the record as made and not upon post trial ex parte affidavits. People v. Pretswell, 202 Mich. 1.

There is upon this record no reversible error and the judgment must be affirmed.

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


text:
    OTTAWAY v. GUTMAN.
    Trial — Instructions—Isolated Excerpts.
    Where the charge, considered as a whole, fairly submitted to the jury the issue presented by the testimony, the case will not be reversed, although an isolated excerpt, standing alone and disconnected from the balance of the sentence or the balance of the charge, may be considered objectionable.
    Error to Wayne; Wiest (Howard), J., presiding.
    Submitted January 6, 1921.
    (Docket No. 74.)
    Decided March 30, 1921.
    Case by James Ottaway against William Gutman for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Lau, Edwards, Eyster & French, for appellant.

      Schmalzriedt & Toms, for appellee.
   Fellows, J.

This is the second appearance of this case in this court. See Ottaway v. Gutman, 207 Mich. 393. A reference to the former opinion will disclose the facts which need not be here repeated. Upon the first trial a verdict was directed for the defendant at the close of plaintiff’s proofs. We held that, notwithstanding the improbability of the plaintiff’s testimony, he was entitled to take the verdict of a jury. Another trial has been had and the case submitted to a jury. The result was a verdict for the defendant. Plaintiff again brings the case here and in one assignment of error groups four excerpts from the charge. We do not determine whether this assignment of error is sufficient under Supreme Court Rule No. 11, as we are satisfied that the charge as a whole fairly submitted the case to the jury. Two of the excerpts are but a portion of a sentence; and while one of these portions standing alone and disconnected from the balance of the sentence or the balance of the charge may be considered objectionable, that alone is not sufficient to work a reversal. What precedes and what follows— the context — must be read in connection with the objectionable excerpt, and the charge as a whole with the testimony must be considered to determine whether the case was fairly submitted to the jury, whether there is reversible error. In Provost v. Brueck, 110 Mich. 136, it was said:

“Isolated sentences might be selected which in themselves would be objectionable, but to which no valid objection can be made when they are considered in connection with the entire instruction.”

See, also, Beattie v. City of Detroit, 137 Mich. 319; Smalley v. Railway Co., 131 Mich. 560; Anderson Carriage Co. v. Pungs, 153 Mich. 580; Custard v. Hodges, 155 Mich. 361; Wegner v. Herkimer, 167 Mich. 587; Bouma v. Dubois, 169 Mich. 422.

When we consider the charge as a whole, the sentences as a whole, we are persuaded that the case was fairly submitted to the jury. Plaintiff’s testimony, as we held when the case was here before, took his case to the jury. Defendant’s testimony not only made a strong case of contributory negligence, but also supported the inference that his automobile did not strike the plaintiff at all. The trial judge did not err in submitting the claims of the parties to the jury. His charge taken in its entirety fairly submitted to the jury the conflicting claims of the parties and the law applicable thereto.

There is no reversible error upon this record and the judgment is affirmed.

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

The late Justice Brooke took no part in this decision.


text:
    CHAPIN v. J. E. BOLLES IRON & WIRE WORKS.
    1. Brokers — Real Estate Brokers — Notice oe Restrictions in Title — Right to Recover Commission.
    A broker who has knowledge of restrictions in the seller’s title may not recover his commission where the sale fails of consummation because of such restriction.
    2. Same — Exceptions to General Rule.
    But said rule is not applicable where the testimony shows that it was the intention of the parties that the seller should perfect the title by removing the incumbrances in the form of leases, and the sale failed of consummation because of its failure to do so.

      3. Frauds, Statute of — Brokers—Moral Obligation — Consideration.
    The moral obligation to pay a real estate broker for services rendered in the sale of real estate resulting in pecuniary benefit to the seller will support a promise in writing in the form of a note to pay “in consideration of services rendered,” etc., although said writing was insufficient to comply with the statute of frauds (3 Comp. Laws 1915, § 11981).
    4. Interest — Brokers—Seller’s Breach No Defense to Delay Interest.
    Where the consummation of a sale of real estate was delayed by reason of defendant’s breach in failing to have an incumbrance removed, it cannot interpose said breach to defer the date of the maturity of its contract with plaintiff broker for the payment of the commission, and plaintiff is therefore entitled to interest from the date of tender of payment.
    Error to Wayne, Goff (John H.), J.
    Submitted January 14, 1921.
    (Docket No. 21.)
    Decided March 30, 1921.
    Assumpsit by Albert E. Chapin against J. E. Bolles Iron & Wire Works for commissions on the sale of real estate. Judgment for plaintiff on a directed verdict. Defendant brings, error.
    Affirmed.

      Bishop & Kilpatrick (R. R. Weaver, of counsel), for appellant.

      Munro & Powell and Ralph M. Tate, for appellee.
    Plaintiff is a Detroit real estate broker. Defendant owned property at 53 and 55 Porter street available for a manufacturing plant which it desired to sell. It, through its manager, Mr. Mansfield, engaged plaintiff who had performed similar services for it before to handle the deal. He with the assistance of others succeeded in. interesting the Mutual Electric & Machine Company, of which. Mr. Frank was president, and on August 14, 1918, Mr. Frank on behalf of his company made a written offer to buy the premises for the sum of $95,000, and deposited with the Security Trust Company $5,000 to apply on the purchase price. The deal was. to be closed on or before November 1st following, when possession free from tenants was to be given and “a good and merchantable title” was to be conveyed. • Upon delivery of this offer to the defendant it executed and delivered to plaintiff the following memorandum:
    “Detroit, Mich., August 14th, 1918.
    “Mr. A. E. Chapin,
    “City.

      “Dear Sir: In consideration of services rendered by you in the sale of our property known as 53 and 55 Porter street, Detroit, Michigan, to the Mutual Electric Machine Company, of Detroit, we hereby agree to pay you for such services a sum equal to three per cent, of the total consideration we accept for said premises and agree to pay said sum to you simultaneously upon payment to us for said property.
    “Yours truly,
    “J. E. Bolles Iron & Wire Works,
    “J. B. Mansfield,
    “Prest, and Gen’l Mgr.”
    The premises were then occupied by two separate tenants: The Doble-Detroit Steam Motors Company and H. L. Willing Company. Of this all the parties, including the plaintiff, had knowledge. None of the parties seem to have regarded the lease of the DobleDetroit Company as a serious impediment to carrying out the deal. This company was in financial straits, its rent was past due .and it was doing little, if any, business. The Willing Company lease had some years to run and trouble was anticipated from this source. On August 30th the Mutual Electric & Machine Company made a supplemental offer agreeing to pay one-half of the excess of $2,500 up to $5,000 that might be necessary to be paid to secure the release of the Willing Company lease. This supplemental offer concluding with the following:
    “In all other respects our proposition still holds good, provided you accept same at once, and your acceptance hereunder constitutes an acceptance of our offer of August 14th, 1918, as supplemented herewith.”
    On the same day. it was made it was accepted by the defendant, it having on August 22d obtained an agreement from the Willing Company to surrender its lease for the sum of $5,000.
    No steps appear to have been taken by defendant to secure a release from the Doble-Detroit Company of its leasehold interest, although its president had indicated that the company could get out very easily. Plaintiff did, however, serve a notice to quit on this company; it was signed by defendant, the grounds of the notice being nonpayment of rent. So sure did defendant’s officers seem to- feel that the Doble-Detroit Company lease could be gotten rid of that they neglected to get it out of the way until it was too late. They assured Mr. Frank by letter, and it would seem otherwise, that no difficulty would be experienced from that source, and he understood they had arrangements already made with reference to their vacating the property. Indeed, all the parties seem to have regarded this lease as no impediment to the consummation of the deal.
    Defendant was considerably indebted to one of its principal stockholders, a Mr. Kolb of Saginaw, and had assigned the lease of the Doble-Detroit Company to him as security. After the notice to quit had been served on the Doble-Detroit Company its officers got in touch with Mr. Kolb and secured from him an extension of time in which to pay the rent which prevented defendant from ousting the Doble-Detroit Company by November 1st. On that day Mr. Frank on behalf of his company made tender and demanded performance by defendant of its contract. Defendant was unable to perform, due to the situation which had been created by the Doble-Detroit Company. A few days after this the president of this company told Mr. Mansfield that “we have played horse with you long enough,” and an arrangement was made for the surrender of the lease. • On November 25th the premises were deeded to Mr. Kolb. Thereupon the Mutual Electric & Machine Company filed its bill against this defendant and Mr. Kolb for the specific performance of the contract. This case was settled and the property deeded to the Mutual Electric & Machine Company. The present action brought by plaintiff on this state of facts, there being no testimony offered by defendant, resulted in a directed verdict for plaintiff.
   Fellows, J.

(after stating the facts). We do not understand it to be contended that the memorandum signed by defendant does not satisfy the statute of frauds. The principal defense that is interposed to plaintiff’s claim may be summarized as follows: There were two incumbrances on the premises, the Willing Company lease and the Doble-Detroit Company lease; of these leases the plaintiff had actual knowledge; he did not procure a customer ready, able and willing to purchase these premises with these incumbrances existing, but procured one who would accept only a free and unrestricted title and the sale failed because of one of these incumbrances. Defendant, therefore, invokes the rule that a broker who has knowledge of restrictions in the seller’s title may not recover his commission where the sale fails of consummation because of such restriction. The existence of the general rule has been recognized by this court and it has been applied in the following cases: Appleby v. Sperling, 194 Mich. 681; Cain v. Masurette, 196 Mich. 7; Gettleson v. Lewis, 206 Mich. 113. The question which here confronts us is whether the rule as broadly contended for by defendant’s counsel is applicable to the facts of the instant case, whether the rule as thus broadly contended for has any limitations, exceptions or qualifications which prevent its application to the case before us. A consideration, therefore, of these three eases and of the facts involved in them and what was stated by this court in considering them is of prime importance.

In Appleby v. Sperling, supra, the plaintiff, a real estate broker, had by one of his employees, Mr. Smith, procured an agency contract from the land owner in which he agreed to furnish an abstract and tax history showing clear title. It was there claimed by the defendant that Mr. Smith was fully advised as to the mineral reservations, and that defendant was induced to sign the agency agreement on Mr. Smith’s representations made after knowledge of such reservations that—

“Your title is all right; lots of farms with such claims on, and never any trouble. It ain’t necessary to put it in the contract.”

And we there said: .

“Whatever effort he put forth to make a sale of the land, plaintiff knew that the alleged infirmity in the title to the land would be eventually confronted, and that it might result in defeating a sale. He says it did defeat a sale. The injustice of permitting him to now claim that the commission has been earned is manifest.”

This case was followed by Cain v. Masurette, supra, which was likewise an action brought to recover commissions. We quote from what was there said by Mr. Justice STONE, italicizing the language applicable to the instant case:

“While the weight of authority is to the effect that it Is no defense to an action brought by an agent against his principal to recover commissions for negotiating a sale of land that the principal does not hold title to the land, or cannot convey a perfect title (see 19 Cyc. p. 240, and cases cited in note), yet the decisions generally hold that where a broker, who at the time he makes his contract with the owner, knows of defects in the employer’s title, or who knows of facts sufficient to put a prudent person on inquiry, which, if followed with reasonable diligence, would have resulted in such knowledge, he is not entitled to recover where the sale failed because of such facts, unless it was the intention of the parties that the employer should subsequently perfect his title in order to be able to perform.”

The latest speaking of the court was in Gettleson v. Lewis, supra. There the restrictions were of a character that could not be removed. We there said:

“But where the principal’s title is defective and the agent has knowledge of such defect and it is not such a defect as may be removed by the principal, the agent does not earn his commission by producing as a purchaser one who is willing to and does contract for only a good or a merchantable title or an ‘absolutely unrestricted’ one.”

Authorities were there cited, and the language above quoted from the Cain Case was quoted, and it was further said:

“In the instant case there is no claim that the title was or could be perfected, and the sale fell through by reason of the restrictions.”

This resume of these three cases demonstrates that while we have recognized the general rule we have at the same time recognized that it has its limitations and qualifications. In the Cain and the Gettleson Cases we cited 4 R. C. L. p. 313. We now quote what was there said on this subject:

“Accordingly, although it has been held that the fact that the broker knew of the defect in the principal’s title and of the equitable estate of a third person therein would not defeat his right to commissions, the decisions generally hold that a broker who at the time he makes Ms contract with the owner knows of defects in the employer’s title, or knows of facts sufficient to put a prudent person on inquiry, which, if followed with reasonable diligence, would have resulted in such knowledge, is not entitled to recover where the sale fails because of such facts, unless it was the intention of the parties that the employer should subsequently perfect Ms title in order to be able to perform.”

In the instant case all of the testimony shows that it was the intention of the parties that defendant should perfect the title by removing the incumbrances in the form of the leases in order to be able to per-from. Everyone connected with the transaction knew of these leases. The contracts, the letters and other written evidence, the oral testimony, all tended in but one direction, all tend to establish such intention, and no claim or request was made in the court below that the question of intention of the parties should be submitted to the jury, both parties having asked for a directed verdict. Under these facts the case falls within the exception we have noted to the rule, rather than within the rule as broadly stated and as broadly contended for by defendant.

While the precise point here involved was not involved in the recent case of Bagaeff v. Prokopik, 212 Mich. 265, where we held that services of a real estate broker performed without the written memorandum required by the statute of frauds if resulting in a pecuniary benefit to the promissor created such a moral obligation as to furnish a consideration for a promise in writing in the form of a note, it should be noted that we there declined to follow the holdings of the New Jersey court but did follow the holding of the Washington court in Muir v. Kane, 55 Wash. 131 (104 Pac. 153, 26 L. R. A. [N. S.] 519, 19 Ann. Cas. 1180). An examination of the Washington case will disclose that that court had under consideration a contract whose language was held not to comply with the statute of frauds of that State which is somewhat dissimilar to ours but which language is in essential effect similar to the language of the contract before us. The language there was

“and pay two hundred dollars ($200) of the purchase price to B. L. Muir & Company for services rendered.”

In the contract-before us the language is:

“In consideration of services rendered,” etc.

The Washington court there held (we quote the syllabus) :

“The moral obligation to pay for services of a real estate broker under a contract unenforceable, because not in writing, is sufficient to support a subsequent written agreement to make such payment.”

This suit was instituted on November 25th, the day the property was deeded to Kolb, and plaintiff was permitted to recover interest from that date. It is insisted that this was error and that the suit was prematurely brought. It would seem to be the claim of defendant that if it is liable at all that liability did not become due until the settlement of the suit for specific performance. By the terms of defendant’s contract with the Mutual Electric & Machine Company payment of the purchase price was due to it on November 1st. On that day Mr. Frank made the tender. Defendant did not accept the tender because through its own negligence in failing to procure a release of the Doble-Det-roit Company it was obliged to breach its contract with the Mutual Electric & Machine Company. It cannot now be heard to interpose its own breach, its own negligence, to defer the date of maturity of the contract. If there was any error it was to the prejudice of the plaintiff.

It follows from what has been said that the judgment must be affirmed.

Steere, C. J., and Moore, Wiest, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    UNIVERSAL SERVICE CO. v. AMERICAN INSURANCE CO.
    Insurance — Collision Insurance — Automobiles.
    In an action on a policy insuring an automobile truck against collision, where the truck was damaged by a heavily laden scoop, with which it was being loaded, falling on it from above, there was a “collision” within the meaning of the policy rendering the insurance company liable; the common, understanding of the word “collision” not being limited to violent impacts on the same plane or level. Clark, J., dissenting.
    Error to Wayne; Shepherd (Frank), J., presiding.
    Submitted January 5, 1921.
    (Docket No. 34.)
    Decided March 30, 1921.
    Rehearing denied May 5, 1921.
    Assumpsit by the Universal Service Company and others against the American Insurance Company of Newark, New Jersey, on a policy of collision insurance. Judgment for plaintiffs. Defendant brings error.
    Affirmed.
    On insurance covering automobiles or indemnifying against injury or liability for injury caused thereby, see notes in 44 L. R. A. (N. S.) 70; 51 L. R. A. (N. S.) 585; L. R. A. 1915E, 575.

      Seymour Edgerton and William P. Dredge, for appellant.

      Stevenson, Carpenter, Butzel & Backus (Rockwell T. Gust, of counsel), for appellees.
   Fellows, J.

Plaintiff corporation was in the business of selling trucks on installment contracts. It entered into a contract of insurance with defendant insurance company insuring it, among other things, from loss and damage occasioned by collision. Collision insurance, as we understand the record and briefs, is usually accomplished by attaching a rider to the policy. The record does not contain a copy of the rider, so we have not its specific language before us, the case having been submitted on an agreed statement of facts from which it appears that there was “full coverage collision” insurance. Plaintiff corporation had sold to plaintiff partnership' a truck on installment, and had an insurable interest in it. The accident and the question presented is thus fairly stated by defendant’s counsel in their brief:

“The truck was loaded by means of a steam shovel; that is, by a scoop connected with and swinging from the arm of a derrick. The scoop' was filled with crushed stone, lifted by the derrick arm, swung over the truck, lowered to the proper position, and opened to allow the stone to fall into the truck body. At the time of the accident, the loaded scoop, while over and above the truck, fell from some unexplained reason upon the truck, causing damage to the truck in the agreed sum of $483.45.
“The intent of the parties, in entering into this stipulation of facts, was to submit to the court the question of law' of whether the accident above described was a ‘collision’ within the meaning of the insurance contract, and within the contemplation and intent of the parties when said contract was made, and such question is the only question before this court.”

We, therefore, address ourselves directly to the one question here involved: Does the fact that the truck was struck by an object coming from above it instead of on a level with it remove the accident from the field of “collision” and relieve the defendant from liability? Until the advent of the automobile insurance against collision was practically, if not wholly, confined to maritime insurance. Many authorities will be found in this field of the law determining when vessels are “in collision,” and the holdings are far from uniform. Two extreme ones will be noted: The Moxey, 17 Fed. Cas. p. 940, and Wright v. Brown, 4 Ind. 95 (58 Am. Dec. 622). In the first of these cases the injury had been done to the vessel at its mooring by being violently rubbed against by another craft. In disposing of it Judge Betts said:

“I do not think the term 'collision/ as used in the maritime law, is to be construed with the' absolute strictness contended for by the claimant’s counsel. An injury received by a vessel from being violently rubbed by another, or pressed by her with force against a pier or wharf, as in this case, may, I am inclined to think, be recovered for in admiralty under the general charge of collision, as well as where the injury is derived directly from the headway of a vessel under navigation, or drifted against her.”

In the second of these cases a flat boat was sunk- at its wharf by violent waves produced by the steamboat Wisconsin owned by the defendants. The court treated it as a case of collision, saying:

“We shall consider this ease as one of collision between the vessels; for it must- be the same thing in principle whether the steamboat ran upon the flat boat or forced some other object upon it to produce the injury.”

These are undoubtedly extreme cases. The language of the court in London Assurance v. Companhia De Moagens, 167 U. S. 149 (17 Sup. Ct. 785), seems more in consonance with the generally accepted understanding of the term. It was there said:

“As to the first, we think that the vessel was ‘in collision’ within the meaning of the language used in the certificate which represented and took the place of the policy. It was not necessary that the vessel should itself be in motion at the time of the collision. If while anchored in the harbor a vessel is run into by another vessel, it would certainly be said that the two vessels had been, in collision, although one was at anchor and the other was in motion. We see no distinction, so far as this question is concerned, between a vessel at anchor and one at the wharf fully loaded and in entire readiness to proceed upon her voyage, with steam up and simply awaiting the regulation of some insignificant matter about the machinery before moving out. If, while so stationary (at anchor or at wharf), the vessel is run into by another, we should certainly, in the ordinary use of language, say that she had been in collision. * * *
“It is impossible, as we think, to give a certain and •definite meaning to the words ‘in collision,’ or to so limit their meaning- as to plainly describe in advance that which shall and that which shall not amount to a collision, within the meaning of this policy.”

And the general tendency of the decisions involving maritime insurance is that a vessel is “in collision” when it is struck by another, although one may not be under motion. With some slight modifications the word “collision” is given by the courts, in maritime insurance cases the meaning . given it by the lexicographers.

Cases involving automobile insurance, however, are not wanting. Defendant’s chief reliance is upon O’Leary v. Insurance Co. (Tex.), 196 S. W. 575, and Wettengel v. United States “Lloyds” 157 Wis. 433 (147 N. W. 360, Ann. Cas. 1915A, 626). In the Texas case the automobile was injured while standing in a garage by the falling of the second floor. It was held that the insurance company was not liable upon a policy insuring against damage and loss by collision. In the Wisconsin case the language of the policy was “by being in collision * * * with any other automobile vehicle or object.” That court adopting the doctrine ejusdem generis held that there was no liability where the automobile ran down a bank three or four feet into the river. The Missouri court, however, where a similar provision in a policy was before it, declined to adopt the doctrine ejusdem generis and sustained a liability. Rouse v. Insurance Co., 203 Mo. App. 603 (219 S. W. 688).

Plaintiffs’ chief reliance is upon the case of Harris v. Casualty Co., 83 N. J. Law, 641 (85 Atl. 194, 44 L. R. A. [N. S.] 70, Ann. Cas. 1914B, 846). In this case the automobile crashed through the guard rails of a bridge and was precipitated into the stream below. The defense there, as here, was that there had been no collision. This defense was overruled by the court. After considering the definitions found in the dictionaries and what was said in London Assurance v. Companhia De Moagens, supra, and speaking of the plaintiff, the court said:

“Therefore, he is entitled to damages (stipulated as to amount), unless within the meaning of the policy the moving or stationary object must be perpendicular instead of horizontal. There are no words in the policy which limit the meaning of the object to a perpendicular one.
“Suppose a person driving an automobile along a road comes to a place where a highway bridge oyer a chasm had fallen away, and the machine be precipitated to the ground below, can it be said that there could be no recovery under such a policy as is here sued on because the damage to the machine was caused by collision with the flat earth instead of some upright or perpendicular object on the earth? We think not. To hold that there could be, no recovery under such circumstances would be to 'misconstrue terms of a contract concerning which there is no room for construction, because the meaning is perfectly plain.”

In Wetherill v. Insurance Co., 60 Pa. Sup. Ct. Rep. 37, the automobile was injured by backing into an open elevator shaft, thus precipitating it to the floor below. It was held that this was a collision within the meaning of a policy of insurance similar to the one here involved. Lepman v. Assurance Corp., 170 Ill. App. 379, is in consonance with Bouse v. Insurance Co., supra, and opposed to Wettengel v. United States “Lloyds ” supra. What is said by the court in Hardenburgh v. Assurance Corp., 138 N. Y. Supp. 662, as to what constitutes a collision sustains the plaintiff. This case was later reversed (see 141 N. Y. Supp. 502), but upon the ground that the testimony as to the cause of the accident did not take the case out of the domain of conjecture and speculation. While not directly in point, Stix v. Indemnity Co., 175 Mo. App. 171 (157 S. W. 870), and Hanvey v. Insurance Co., 141 Ga. 389 (81 S. E. 206), tend to sustain plaintiffs’ contention.

In 14 Ruling Case Law, p. 1273, under the head of automobile insurance will be found the following:

“A. provision in an automobile policy for indemnity against ‘collision’ covers striking against a stationary object, and according to some courts water and land are ‘objects,’ and an automobile which runs into either or both collides with an object or objects, though the objects are horizontal^ rather than perpendicular, but other courts have limited a provision as to collisions with any vehicle or other object to like objects, so as to preclude a recovery for injury caused by running off a bank. A provision in such a policy that damages resulting from collision due wholly or in part to upsets shall be excluded does not operate to defeat recovery where an automobile runs off a bridge, is precipitated into the water, below, and lands at the bottom of the stream upside down, the collision not being due to the upset; the upset being rather the result of the collision.”

In Babbitt on Motor Vehicles (2d Ed.), § 788, it is said:

“The first question arising in collision cases is as to the meaning of the word ‘collision’ and it has been commonly held to include striking stationary objects like trees, or even a portion of the ground itself. * * *
“However, under an insurance policy including loss or damage to an automobile ‘resulting solely from collision with any moving or stationary object excluding, however, damage resulting from collision due wholly or in part to upsets’ there is liability where an automobile runs through a guard rail of a bridge and falls into the stream beneath. Hitting the ground is a collision with a stationary object and hitting the water is collision with a moving object. The court remarks that to show a collision both bodies need not be in motion. Water is an object, and it moves. Words used in an insurance policy should be interpreted most strongly against the insurer. The collision with the water and ground cannot be said to be caused by an upset. The upset may have been the result of the collision. The policy does not mean that where a collision has first taken place there can be no recovery because as the result of the collision the machine is upset.”

Let us now turn to the definitions given the word “collision”:

“Collision is defined to be a dashing or violently running together. In maritime law ‘collision’ is the act of ships or vessels striking together.” 7 Cyc. p. 302.
“The term ‘collision’ is derived from the Latin ‘colliso, collidere,’ to dash together, and may be defined generally as the act of colliding; a dashing or violently running together; injuries from one thing being rubbed or pressed against another; a striking against, as where the object struck is a brick, stone or other solid substance; a striking together; a striking together or an impact of two bodies, vehicles or vessels, more commonly the latter; violent contact.” 11 C. J. p. 1011.
“A policy insuring automobiles from damage from the ‘collisions’ of such automobiles with other vehicles or objects means, by the word ‘collisions’ cases of "striking against’ vehicles or objects not in motion.” 1 Pope Legal Definitions.
“The act of colliding; condition of having collided; a striking together; violent contact, as of trains or steamships.” Funk & Wagnalls New Standard Diet.
“The act of striking together; a striking together, as of two hard bodies, a violent meeting, as of railroad trains; a clashing.” Webster’s Diet.
“The act of striking or dashing together; a striking together of two bodies; the meeting and mutual striking or clashing of two or more moving bodies, or of a moving body with a stationary one; the dashing together of two railroad trains or of two boats or ships.” Century Diet.
“The action of colliding or forcibly striking or dashing together; violent encounter of a moving body with another, in recent use especially, of railway trains or ships.” Murray’s Eng. Diet.
“The act of striking two bodies violently together * * * ‘it is the hitting and collision of them that must make them strike fire.’ ” American Encyclopaedic Diet.

Most collisions occur in the violent impact of two bodies on the same plane or level and it is undoubtedly true that the word is more frequently used to express such impacts than other violent impacts. But we doubt that this fact has given to the word such a common understanding of its meaning as to exclude violent impacts unless upon the same plane or level. If one machine was going up. and another going down a steep hill and they came violently together, no one would hesitate for a moment in using the word collision. At what angle must the impact occur to make the use of the word collision inappropriate and relieve-the insurance company from liability? We are persuaded that the better rule, the safe rule, is to treat and consider the word as having the meaning given it uniformly by the lexicographers; that where there is a striking together, a violent contact or meeting of two bodies, there is a collision between them and that the angle from which the impact occurs is unimportant. In the instant case there was the violent striking together of the truck and the heavily ladened scoop; this was a collision within the meaning of the policy and rendered the defendant liable.

Since coming to the conclusion here arrived at and since the preparation of the foregoing opinion the supreme court of Wisconsin has handed down an opinion in Bell v. Insurance Co., 181 N. W. 738, in which that court has reached a contrary conclusion than the one we have arrived at. Notwithstanding our high regard for the opinions of that court, we are constrained to adhere to our original conclusion.

The judgment is affirmed.

Steere, C. J., and Moore, Wiest, Stone, Bird, and Sharpe, JJ., concurred with Fellows, J.

Clark, J. There is no evidence of collision. Judgment should be reversed without a new trial.


author: Stone, J.

text:
    ATTORNEY GENERAL v. BRUCE.
    1. Mandamus — Township Supervisor — Tax Rolls — Defeat of Mandamus Proceedings — Moot Case.
    In mandamus proceedings to compel the supervisor of a township to spread upon the tax rolls the sum expended by the State highway commissioner in repairing a State rewarded highway in said township, the supervisor could not deliberately put it out of his power to comply with said order by delivering, the roll to the treasurer after the order to show cause was served upon him.
    2. Highways and Streets — State Road Reward Law — Repairs to Highway — Duty of Supervisor to Spread Tax.
    The duty of the supervisor of a township to spread upon the rolls a tax to repay to the State the sum expended by the State highway commissioner in repairing a State rewarded highway in said township, which the township failed to repair after being notified so to do, follows as a matter of course the exercise by the State highway commissioner of the power granted him by the statute (1 Comp. Laws 1915, § 4389, as amended by Act No. 356, Pub. Acts 1917), and it is immateria,l that the clerk of the hoard of supervisors failed to certify to said supervisor the action of said hoard in ordering the tax spread.
    3. Same — State Highway Commissioner’s Acts Not Reviewable.
    The action of the State highway commissioner, being authorized by. statute, is not subject to review by the recalcitrant township, nor may such township stay the spread of the expense upon the tax roll until it he given an opportunity to litigate the charge.
    4. Mandamus — Tax to Repay Repair of State Rewarded Road— Doty to Spread.
    Mandamus is the proper remedy to compel the supervisor of a township to spread upon the tax rolls the stun expended by the State highway commissioner in repairing a State rewarded highway in said township under the power given him by the statute (1 Comp. Laws 1915, § 4389, as amended by Act No. 356, Pub. Acts 1917), since there are no contractual relations between the State and the township, and the claim is a liquidated one.
    5. Same — Public Officer — Discretion—Determination Pinal— Not Confined to Judicial Acts.
    The doctrine that where an officer has particular authority to exercise his judgment, after investigating the facts of which he is made judge, his findings of such facts are conclusive, is not confined to judicial and qitosi-judicial officers.
    6. Highways and Streets — Repair of Road — Determination of Highway Commissioner Pinal.
    The determination of the State highway commissioner as to the necessity for said highway repairs and also as to the nature and extent of same is final and conclusive, in the absence of fraud, it being the intent of the legislature, under said statute, that he should exercise his judgment and discretion.
    7. Same — Constitutional Law — State Legislature — Powers.
    Under the broad powers conferred upon it by section 26 of article 8 of the Constitution, the legislature has the power to make the determination of highway officials as to the necessity for doing work final and not subject to judicial review, in the absence of fraud or its equivalent.
    8. Constitutional Law — Retrospective Statutes — Remedies.
    The legislature may give a retrospective effect to statutes having reference to matters of remedy or procedure.
    9. Highways and Streets — Enforcing Duty to Repair — Retrospective Statutes.
    Where no greater duty was imposed upon a township in regard to keeping a State rewarded highway in repair by amendments to the statute under which the township applied for and obtained the State reward than was provided therein, it cannot be said that said amendatory statutes are retrospective because they provided additional methods of enforcing that duty.
    10. Same — General Highway Law — Townships—Restriction of Amount for Repairs — Conflict of Statutes.
    The claim of the township that said statute conflicts with and practically repeals the provision of the State highway law restricting townships to a tax of one-half of one per cent, for repairs and maintenance cannot be sustained, since it provides for a tax to meet a specific obligation, the same as though it were a judgment against the township, and, the township having availed itself of the benefits, is bound by its terms.
    11. Same — Constitutional Law — Local Self-Government.
    Said statute is not in conflict with section 28 of article 8 of the Constitution, reserving to cities, villages, and townships the reasonable control of their streets, alleys, and public places, since the improvement or repair of a road is not one of merely local concern, but is one in which the entire State is interested.
    12. Constitutional Law — Specific Provisions — Statutes.
    Where a statute is claimed to be unconstitutional, the specific provisions of the Constitution claimed to be vitiated should be pointed out.
    Certiorari to Ingham; Wiest (Howard), J.
    Submitted February 15, 1921.
    (Calendar No. 29,552.)
    Decided March 30, 1921.
    Mandamus by Alex. J. Groesbeck, attorney general, to compel Helmer Bruce, supervisor of Bark River township, to spread and levy a tax. From an order granting the writ, defendant brings certiorari.
    Affirmed.

      Ryall & Frost (Walter S. Foster, of counsel), for appellant.

      Merlin Wiley, Attorney General (Leland W. Carr, of counsel), for appellee.
   Stone, J.

This case has been brought here by certiorari to review a proceeding by mandamus in the circuit court for the county of Ingham, upon the petition of the attorney general, to compel the defendant, as supervisor of Bark River township, Delta county, to spread and levy a tax of $9,315.27 for the purpose of enabling the township to pay into the treasury of the State the sum expended by the State in repairing a State rewarded highway in the township. It appears that the road was constructed by the township/ and reward was paid thereon, during the years 1909 to 1912, all proceedings being taken after Act No. 283 of the Public Acts of 1909 (1 Comp. Laws 1915, § 4287 et seq.) went into effect. At the time when the road was built by the township the general statute required the highway commissioner to keep all township roads and bridges in reasonable repair, and in condition reasonably safe and fit for public travel. Section 12 of chapter 5 (1 Comp. Laws 1915, § 4389) of the said highway law further emphasized the duty in so far as the State rewarded roads were concerned, by granting authority to the State highway commissioner to refuse further road reward to any township or county that did not keep its State rewarded roads in proper repair.

In 1913, by Act No. 355 of the Public Acts, said section 12 of chapter 5 was amended so as to provide that if the repairs were not made by the township or the county within a reasonable time, after being ordered by the State highway commissioner, he should make such repairs and cause the same to be paid out of reward money earned by the township or county. The section was again amended by Act No. 75 of the Public Acts of 1915, which added the further provision that if no reward was due to the county, district, or township, the State highway commissioner should render his bill to the proper township authorities, which bill, was required to be paid, and the supervisor was directed to include the amount in the next tax roll of the township. In 1917 the legislature again amended the section by Act No. 356, adding provisions with reference to the organization of a system of maintenance. The act as so amended was in effect at the time the action of the State highway commissioner herein involved was taken. It is set forth ik the petition for the writ of mandamus, and not denied by the -answer, that the State highway commissioner examined the road in Bark River township' and found and determined that such road was not in a condition of proper repair, and was not safe and suitable for public travel thereon. Accordingly, on September 7, 1917, pursuant to said section 12, the said commissioner made and served on the township' board and highway-commissioner of the township a formal order, reciting that the road v/as not in a condition of proper repair, and specifying what repairs should be made by the township. A period of 60 days was given by the order in which to make these repairs. It is claimed in the answer of defendant that such time was not sufficient; but it is not claimed that the township officials made any effort or attempt whatever to repair the road, or that they sought to do so after the expiration of the 60-day period. It affirmatively appears that the State highway commissioner did not take any further action until the summer of 1918. It being obvious that the townskip authorities did not intend to comply with the order of the previous September, the State highway commissioner entered into a contract with the Delta Construction Company of Escanaba for the doing of the work that had been determined to be necessary to put the road in proper condition for the traffic using it. The State paid the contractor for the actual repair of the road the sum of $9,315.27. Such payment is not disputed. It is also admitted by the answer that payment of the bill was refused by the township officers, and that the township did not have sufficient money on hand to make the payment.

At its October session of 1919 the board of supervisors of Delta county, on presentation to it of the situation, ordered the supervisor of Bark River township to include the amount of the State’s claim in the tax for his township. The supervisor, however, did not comply with the order and direction of the board, claiming before the board, as appears by the allegations of the answer, that he was not legally required to do so. At its session of 1920 the board of supervisors substantially repeated its action of the preceding year, and again ordered the tax spread, which order was not complied with. The mandamus proceeding was begun November 24, 1920, to compel the supervisor to place the tax on his roll, in order that the amount due the State might be collected and paid into the State treasury. An order to show cause on November 30, 1920, why a peremptory writ of mandamus should not be issued was made and duly served. The case was heard in the court below on the petition and answer, and for the reasons set forth in the opinion of the learned circuit judge, which appears in the record, it was ordered on December 18, 1920, that the writ of mandamus should issue. From this determination and order defendant has brought the case to this court on a writ of certiorari, alleging in his petition therefor many errors which are discussed by counsel.

By their brief in this court, counsel for defendant first urge that the case is a moot case, and that the petition should be dismissed, since no writ can now be directed against the supervisor with which he could comply, or which would authorize him to place this assessment on the 1920 tax roll, as that roll is out of his possession, and he has no further jurisdiction over it, and his term of office will expire before the 1921 tax roll is prepared. Counsel urge that the court will not do a vain thing or grant a writ which cannot be effective, and the collection of authorities in Anway v. Railway Co., 211 Mich. 592-622, is cited.

Counsel for the plaintiff claim that this question is not properly before the court; that the original answer did not claim that the roll had been turned over, but merely asserted that it would be the duty of the defendant to so deliver his roll. Subsequently, and on December 9, 1920, defendant appears to have filed (without leave of the court and without serving a copy on counsel for plaintiff) a so-called supplemental answer in which he claimed that he had turned over his roll to the treasurer of the township. In his opinion the circuit judge referring to this matter, and treating the question as though it were properly raised, said:

“Counsel for respondent calls attention to the case of Ferton v. Feller, 33 Mich. 199, as authority in support of the contention that the supervisor may not alter the tax roll after it has passed from his hands to the treasurer. It may be conceded that the supervisor may not, on his own motion, recall the tax roll after delivery to the treasurer and alter the same; but it does not follow that, with an order to show cause why he should not be ordered to include the tax, served upon him at a time when the roll was still in his hands, and subject to the inclusion of this tax, he can make this proceeding a moot case by deliberately not including the tax, and passing the roll to the treasurer. Respondent has taken the language of the statute as mandatory, when it is directory only. Barnes v. Board of Sup’rs of Wayne Co., 194 Mich. 540, 550. The case has not become a moot one by reason of such action by respondent in the face of the proceeding pending against him in this court to compel him to do the very thing he now says he has by his act cut himself off from doing. It would bring reproach upon the law to hold that the supervisor, after being ordered by the court to show cause why he should not spread a tax, may not spread the tax, and may defeat the proceeding by sending the tax roll, to the treasurer. He should have held the tax roll until a determination herein, and he could have done so under the law; and his claim that he had complied with the letter of the law goes for naught when it appears that his haste was wholly unnecessary, and that the letter of the law, as well as the spirit thereof, would have been met, and much better served, by respect for this proceeding, and in waiting determination herein. The question raised by respondent was before the court in the case of State, ex rel. Evers, v. Byren, 32 Wash. 264 (73 Pac. 394), and it was held that the surrender of the roll did not defeat the power of the court to order the tax spread.”

We call attention to the lengthy excerpt from the Washington case, given by the circuit judge in his opinion. We held in the Barnes Case that such provisions as to time of delivery of roll were directory merely. If defendant, after the time of showing-cause on November 30th, deliberately put the roll out of his control, he did so at his peril. The courts will not permit their jurisdiction to be trifled with in this manner. Material delay in the preparation of rolls is frequently necessary, and is practiced in cases of litigation. Attorney General v. Midland County Sup’rs, 178 Mich. 513. See, also, State, ex rel. Taggart, v. Holcomb, 81 Kan. 879 (106 Pac. 1030, 28 L. R. A. [N. S.] 251). We agree with the circuit judge that there is no merit in this claim.

The next point urged by defendant is that the board of supervisors had no jurisdiction in the matter, and that plaintiff is not in position to ask for a writ of mandamus requiring the levying of this tax until through some legal process the township has had its day in court, and the claim in question has been paid by the township. Touching these matters the circuit judge in his opinion said:

“Respondent contends that the board of supervisors for Delta county had no duty to perform with respect to the tax in question; and if action by such board was necessary, the clerk of the board of supervisors did not certify the direction of the board to the township. It may be doubtful whether this particular tax must be certified to the board of supervisors by the township clerk, because the law provides that the supervisor shall include the amount in the next regular tax roll, and there may be some question whether the amount and purpose of the tax should be certified by the township clerk to the board of supervisors, under other provisions of law, and then come back under direction from the board, but this does not avail respondent at all. It may be that action by the board of supervisors was not necessary, or it may be held that such action was necessary, and not at all affect the duty of respondent in the premises. If direction by the board of supervisors was necessary, such action was had, and while it may be somewhat perfunctory in nature, because under the law the tax partakes wholly of a township matter, it is no excuse to say that the clerk of the board of supervisors failed to certify the same, and in the same breath urge that the board of supervisors could not take action at all. Both positions are answered, however, by the law making it the duty of the township supervisor to take notice of this township obligation, and to spread the tax, regardless of the failure of the clerk of the board of supervisors to certify the same to him. It is claimed that, if the board of supervisors may order the tax spread upon the township roll, the board cannot act at all until all questions of difference between the township and the State highway commissioner have been settled, and the right, of the township to litigate the legality of the claim has been afforded; and it is urged that a bill for such repairs rendered to the township is required to be paid by such township in advance of the levying of a tax therefor. Must-the bill be presented to the township, and the right to contest the need of repairs, and the expense thereof be given to the township before collection can be enforced by tax levy? This is undoubtedly true of private claims, but does not hold good under the statute creating the liability and affording the remedy for repairing a State rewarded road. The action of the State highway commissioner, being authorized by statute, is not subject to review by a recalcitrant township, neither may such township _ stay the spread of the expense upon the tax roll, until it be given an opportunity to litigate the charge. The law prescribes the power of the commissioner, and the duty of the township supervisor; and the power of the commissioner when exercised makes the duty of the supervisor follow as a matter of course.”

We think that in the above excerpt the second point urged is fully answered.

It is next urged by defendant that mandamus is not the proper proceeding, and it is said that mandamus will not be used to enforce mere contractual rights where there is an adequate remedy at law, and the following cases are cited: Township of Ross v. Railway Co., 165 Mich. 28; Hartz v. Wayne Circuit Judge, 164 Mich. 231; Board of Sup’rs of Arenac Co. v. Board of Sup’rs of Iosco Co., 144 Mich. 52, 158 Mich. 344.

It should be borne in mind, as stated by the circuit judge,- that the relations between the township and the State arising under the road reward law are in no sense contractual. We do not think that the cases above cited are controlling of the instant case. Here the claim is a liquidated one. The statute makes it the duty of the State highway commissioner, on the failure of the township authorities to act, to proceed to put the road in proper condition. This is a ministerial duty, and the resulting duties on the part of the township authorities, with reference to the payment of the cost of the work are also ministerial. The amount to be paid by the township- authorities, and to be raised by taxation, is fixed. If a judgment in assumpsit were obtained it would add nothing. The judgment would be no more liquidated than is the claim. The case of Pape v. Township of Benton, 140 Mich. 165, seems to be authority in support of the plaintiffs claim upon this question. There the highway commissioner had purchased road machinery under Act No, 178, Pub. Acts 1897, an act intended to permit such purchases, and which provided the method that should be followed in raising the money by taxation. Suit in assumpsit was brought against the township by the seller of such machinery. The trial court held that assumpsit would not lie and that mandamus was the proper remedy, and that holding was here affirmed. Mr. Justice McAlvay, speaking for the court, said:

“No proceeding is necessary to determine the amount of such indebtedness. That amount is fixed by the proper township officers, who certify to the board of supervisors. The contract fixes the purchase price. Payment can be made only through official channels. Everything is a matter of record. At no time can the balance due be a matter of doubt. The township is not primarily liable. No contract relations exist between the seller of the road machines and the township.”

The following cases are also pertinent: Mackenzie v. Baraga Township Treasurer, 39 Mich. 554; Just v. Wise Township, 42 Mich. 573; Township of Hart v. County of Oceana, 44 Mich. 417; County of Oceana v. Hart Township, 48 Mich. 319; Auditor General v. Supervisors, 76 Mich. 295; Auditor General v. Board of Sup’rs of Bay Co., 106 Mich. 662; Smith v. Jones, 136 Mich. 532.

In our opinion mandamus is the proper remedy here.

It is next urged by defendant that he has not'had his day in court, and an opportunity to present his defense. It is claimed that it cannot be said that the legislature intended to give the State highway commissioner the absolute right to arbitrarily decide when such expenditures should be made without any limit as to the amount, or to make his mere statement, both as to the necessity and the amount of the expenditure, conclusive. Counsel cite Attorney General v. Board of Sup’rs of Bay Co., 106 Mich. 662, 680; Mixer v. Board of Sup’rs of Manistee Co., 26 Mich. 422; Endriss v. County of Chippewa, 43 Mich. 317.

Upon this branch of the case the circuit judge in his opinion said:

“Respondent seeks to raise issues of fact upon the necessity for the repairs made by the State highway commissioner, and asserts that the action taken by the commissioner was arbitrary, and the expense incurred excessive. No such issue of fact can now be raised'; the law provides for none, and the purpose of the law negatives such issues. The law gave the township an opportunity to make the repairs, and upon its failure to do so, vested power in the State highway commissioner, and if the determination of the commissioner was ever open to question at all, it could only be for fraud, or for exceeding his authority, and not for a review of his judgment. The township was ordered by proper authority to make the repairs and neglected to comply with the order, and did not then contest the need of, and the extent and nature of the repairs as a fraudulent determination, and does not do so now, and it never could bring the judgment of the State highway commissioner before a court for review. The law provides power for keeping a rewarded road in repair, and if the township pays no attention to an order of the State highway commissioner, the necessity therefor, and the cost thereof, are not subjects to be litigated between the commissioner and the township, unless fraud is alleged;-for the commissioner acts as an administrative officer clothed with full power of determination, and his acts are not open to review in any court.”

The circuit judge quoted the statute as amended. It has been repeatedly held by this court that where an officer has particular authority to exercise his judgment, after investigating the facts of which he is made judge, his findings of such facts are conclusive. And this doctrine, in its application, is not confined to judicial and gmsi-judicial officers. For a collection of authorities on this subject see Belknap v. Township of Benton, 169 Mich. 58, 64.

It seems to be the claim of appellant that the determination of the State highway commissioner is subject to review, and that in consequence, if the commissioner erred in judgment the township is relieved from all responsibility and the State is without remedy. We invite attention to the language of the statute. By its terms the State highway commissioner was empowered to take the action which he did take, and his determination as to the matter of necessity was final, and we think the circuit judge was correct in his determination that no triable issue of fact was presented. It seems to us clear that the legislature intended that the State highway commissioner should exercise his judgment and discretion as to whether a State rewarded road needs to be repaired or not, and also as to the nature and extent of the repairs necessary to put it in proper condition. It will be noted that no method of appeal is provided for, to review the decision of the State highway commissioner to the effect that repairs are necessary and must be made in a certain manner under the statute. The legislature recognized that the matter is administrative. A similar situation is found under the drain law, where it is provided that in case of an appeal to the State highway commissioner, to determine a dispute arising between drain commissioners in the construction of an intercounty drain, the finding of the State commissioner is conclusive. Necessarily, matters of this kind, being administrative, must be left to the judgment and discretion of the officers who are charged with the performance of the duty involved; and in the absence of fraud or its equivalent such determination must be final. If the rule is otherwise, highway authorities who are charged with the duty of repairing a road must determine, at their peril, when the necessity arises and what repairs shall be made. If their determination in these respects is to be subject to review by a court, a situation is presented at variance with the entire theory of the highway law. The proposition here raised affects not only the general highway law itself and the duties of all highway officials thereunder, but also the trunk lines and Federal aided road acts. Under the former statute (Act No. 19, Pub. Acts 1919), the final determination with respect to the improvement and maintenance of a trunk line road is vested in the State highway commissioner. The duty of maintaining such roads is placed on him, and with it is conferred the right to determine when repairs shall be made and what repairs are necessary. Townships and counties are required to raise their share of the cost of such work. If a township or county, or any taxpayer thereof, may insist on a review in a judicial proceeding as to whether the work deemed necessary by the State highway commissioner was in fact necessary, or whether any repairs at all were called for, the act is for all practical purposes nullified.

That the legislature has the power to make the determination of highway officials as to the necessity for doing the work final, and not subject to judicial review in the absence of fraud or its equivalent, cannot, we think, be questioned. We invite attention to section 26 of article 8 of the Constitution, which invests the legislature with very broad powers in this regard. The general rule is stated in 13 R. C. L. at page 82, as follows:

“The propriety and necessity of improving streets and sidewalks, and the character and extent of the work to be done, are matters resting in the discretion of the public authorities to whom the decision of those questions is committed by law, and the courts will not interfere with the exercise of such discretion, except where the power is exceeded, or fraud is charged and shown to exist, or where there has been a manifest invasion of private rights.”

See cases cited in notes.

So in 37 Cyc. page 222, it is said:

“The method or plan of work is in the discretion of the road officers within the restrictions of law, and subject to the rights of abutting owners.”

A decision strongly in point is Reuter v. Contracting Co., 143 Ky. 557 (136 S. W. 1028, Ann. Cas. 1912D, 265). That was an action brought by the contractor who had done the work, the purpose being to enforce a lien on the property in accordance with the Kentucky statute. It was urged, by way of defense, that the work should not have been done. The court said:

. “Appellant’s final contention that the work done by appellee under his contract with the common council was unnecessary, is a matter with which neither the circuit court nor this court is concerned. The complaint constitutes no defense to the action. The question of whether the streets or sidewalks of a city shall be repaired, changed or improved, is a matter that addresses itself solely to the discretion of the common council of the city; as is the further question as to what the character and extent of the work should be; and the courts will not interfere with the exercise of such discretion”; citing cases.

The case of Auditor General v. Board of Sup’rs of Bay Co., supra, cited by defendant, we think supports the contention of the plaintiff. It was a mandamus proceeding, and involved, among other things, the right of the State to recover for money expended in maintaining the State militia while engaged in duty in Bay county. It was contended on behalf of the respondent board that the county could not be charged without giving an opportunity to be heard, — substantially the same claim as is made in the instant case. At page 680 this court said:

“The law fixes the compensation, and provides for payment by the State, upon allowance by the proper State officers. When paid, the liability of the county does not depend on the opinion of the board of supervisors, either as to the sufficiency of the requisition, the nature of the emergency, or the amount to be paid by the State. All of these things are now definitely fixed by law. It is a charge on behalf of the State, and can be disputed only in the courts, if thought illegal or excessive.”

Counsel for defendant lay stress upon the last sentence. An examination of the entire opinion shows that the court had in mind the contesting of liability in a case where the bill rendered was in excess of the money actually expended, or where the action taken was unlawful because of fraud or its equivalent. In our opinion the assertions in the answer that the action of the State highway commissionér was arbitrary, uncalled for, etc., present no issue of fact. Similar expressions were used in Barnes v. Board of Sup’rs of Wayne Co., supra. We call attention to the language of this court upon the subject. So in the instant case, we think, it must be said that the fact that the judgment of the State highway commissioner differed from that of the defendant, with reference to the extent of the repairs necessary to put the road in proper condition, does not render the determination of the commissioner subject to review.

5. It is next claimed by appellant that the several amendments of the statute are not retrospective, and Board of Sup’rs of Arenac Co. v. Board of Sup’rs of Iosco Co., 158 Mich. 344, and Davis v. Railroad Co., 147 Mich. 479, are cited. Upon this question the circuit judge said:

“The respondent claims that the obligation of the township is to be determined in accordance with section 12 of chapter 5, Act No. 283, Public Acts of 1909, and not by any amendments thereto.”

After referring in detail to the several amendments he said:

“The point is made that the rights, duties and obligations of the township, and the remedy to compel performance of such duties and obligation must be measured and determined by the statute in force when the township applied for, and obtained the State reward, and that subsequent amendments to the statute cannot be invoked by the State, for, to do so would violate the contractual relations between the township and the State, arising out of the tender of,, and under the provisions of the statute, and acceptance by the township.
“The relations between the township and the State, arising under the road reward law, are in no sense contractual. Board of Sup’rs of Saginaw Co. v. Hubinger, 137 Mich. 72. The township is but a subdivision of the State, and is incapable of establishing contractual relations with the State, under the road reward law, and is at all times amenable to the laws of the State.
“The application for, and receipt of road reward money by the township, was under general law, and cannot partake of the nature of a contract. The law placed the obligation upon the township to keep its road upon which it has been paid reward money and which becomes thereby impressed with State supervision, in repair, and this obligation comes to the township by law, and not by contract to do so, and the obligation imposed by law has not been changed by subsequent legislation, and even if it had been changed by law, it would have to be obeyed by the township. The means of enforcing obedience has been amplified," and of this the township cannot complain, and could not complain successfully even if its relations with the State, under the statute should be held. to be contractual in nature. C. H. Little Co. v. L. P. Hazen Co.. 185 Mich. 316; Heineman v. Schloss, 83 Mich. 153.”

The amendments affect the remedy only. No greater duty with respect to roads was imposed on the township or the township authorities, under these amendments, than was imposed under the law in its original form. The only change made had to do entirely with the manner of enforcing that duty on behalf of the public, or to provide an additional method for such enforcement. There is no legal objection preventing the legislature from giving a retrospective effect to statutes having reference to matters of remedy or procedure. Township of Clearwater v. Board of Sup’rs of Kalkaska Co., 187 Mich. 516, 524. There is no merit in this claim of appellant.

The next claim of appellant is that the highway law attempts to repeal the géneral law with reference to the raising of money by townships for road purposes. And it is said that any construction making this law retrospective would operate to modify and practically repeal those provisions of the State highway law restricting townships to a tax of one-half of one per cent, for repairs and maintenance, and would, in effect, place the matter entirely within the discretion of the State highway commissioner. The defendant cites People v. Hanrahan, 75 Mich. 611 (4 L. R. A. 751), and Tillotson v. City of Saginaw, 94 Mich. 240. We are unable to see wherein either of the cited cases sustains appellant’s claim. The statute we are considering does not conflict with the general statute. It provides for the spreading of a sum or tax to meet an obligation of the township, the same as though it were a judgment against the township. The statute we are dealing with is a substantive and independent enactment. The township having availed itself of its provisions, it is bound by its terms dealing with the levy of the amount due the State. Menominee Water Co. v. City of Menominee, 124 Mich. 386, 395.

Finally it is urged by appellant that plaintiff’s construction of said section 12 makes it unconstitutional, and the case of Board of Sup’rs of Arenac Co. v. Board of Sup’rs of Iosco Co., supra, is cited, as well as section 28 of article 8 of the Constitution. Neither in his answer nor in the petition for certiorari does defendant point out any specific provisions of the Constitution claimed to be vitiated. Upon the question of local self-government we shall refer to the language of Mr. Justice Steere in Loomis v. Rogers, 197 Mich. 265, at page 276 et seq., and his quotation from 18 R. C. L. p. 159, and the following cases cited by the attorney general in his brief in this case: Williams v. Eggleston, 170 U. S. 304 (18 Sup. Ct. 617); Attorney General v. McClear, 146 Mich. 45; Cilley v. Sullivan, 187 Mich. 447; Bulkeley v. Williams, 68 Conn. 181 (35 Atl. 24, 421, 48 L. R. A. 465).

We conclude this lengthy consideration of this case by quoting with approval the following language of the attorney general in his brief:

“The matter of the improvement or the repair of a road is not one of merely local concern. All of the highway legislation now on the statute books is based on the theory that the entire State is interested. The reward law itself is no exception.
“We are not confronted here with a case in which an attempt is made by the legislature to authorize action by one who is not representative in any way of the municipality. The State highway commissioner is an officer of the State, represents all and each part of it, including the township of Bark River. It is competent for the legislature to empower and require him to act in the manner provided for in the statute here involved, just as- under the assessment district road law, he may bind a township, or a county, or an assessment district, by the issuance of bonds, the preparation of the assessment rolls and other matters of procedure provided for in that act.”

The judgment of the circuit court is affirmed.

Steere, C. J., and Moore, Fellows, Clark, Bird, and Sharpe, JJ., .concurred. Wiest, J., did not sit.