author: Long, J.

text:
    August Govaski v. John B. Downey and The Wabash Railroad Company.

      Malicious prosecution — Legal advice — Justification—Complaint by agent — Liability of principal.

    1. Where, in an action for malicious prosecution, the evidence is conflicting as to whether the defendant made a full and fail-statement to the magistrate who issued the warrant of all of the facts within his knowledge tending to cause or to exclude belief in plaintiff’s guilt, the question whether he made such a disclosure should be submitted to the jury.

      2. Where in an action for malicious prosecution against a railroad company and one of its employés for the arrest of the plaintiff, on the complaint of such émployé, for the alleged larceny of property belonging to the company, there is no evidence showing or tending to show that the employe was instructed by any officer or employe of the company to make the complaint, or that he was acting in the line of his duty to the company in making it, a verdict is properly directed in favor of the company; citing Travis v. Insurance Go., 86 Mich. 288.
    Error to Wayne. (Gartner, J.) Submitted on briefs April 12, 1894. Decided May 22, 1894.
    Case. Plaintiff brings error.
    Reversed as to defendant Downey, and affirmed as to the other defendant.
    The facts are stated in the opinion.

      II. P. Davoclc (F. F. Bacon, of counsel), for appellant.

      Alfred Bussell, for defendants.
   Long, J.

This is an action for malicious prosecution. The case was tried before a jury, and a verdict directed in favor of the defendants. Plaintiff brings error.

It appears that on July 19, 1892, the defendant Downey made a complaint in writing before one of the police justices of the city of Detroit, charging the plaintiff with the larceny of a wheelbarrow, the property of the defendant railroad company. The warrant was issued by the police justice, and the plaintiff, while not actually arrested, was brought before the justice, and answered the complaint, and upon trial was discharged.

Dpon the trial of the case the court below instructed the jury that there was nothing to connect the railroad company with the complaint made by Downey; and, also, that there was nothing to show that Downey did not honestly and fairly submit the matter to the justice, or that he was actuated by malice.

The facts, as they appeared upon the trial by the testimony oí the plaintiff and his witnesses, are as follows: That on the 16th day of July, 1892, the plaintiff borrowed a wheelbarrow from the night watchman of the railroad company, and said that he would return it in the morning; that he did not return it as agreed; that, on the 18th, Mr. Hill, who was local freight agent of the railroad company, sent for him, and asked him what he had done with the wheelbarrow; that he replied that he had borrowed it from the night watchman (Mr. Hoeflein), and had returned it in the morning, and that it was then in the warehouse, when Mr. Hill said, “If you don’t bring that wheelbarrow back again by Monday noon, you will be in trouble;” that he worked until Monday night, when Mr. Hill sent him an order of discharge from the service of the company; that, when he went to Hill’s office on the 18th, defendant Downey was there, and he told Downey that he had brought the wheelbarrow back, and that it was in the warehouse; that Downey went with him to the warehouse, and he pointed out the wheelbarrow which he had returned. Plaintiff also testified to his arrest and discharge by the police court. Mr. Hoeflein testified that he was the night watchman; that he saw the plaintiff bring the wheelbarrow-back, and so advised defendant Downey; that he also told Mr. Hill of that fact, when Hill said, “Well, it is all right; the wheelbarrow ain’t here;” that Mr. Hill at that time was local freight agent for the railroad company, and had charge of all matters concerning the depot, and charge of the company’s property.

The defendants called the police justice, who testified that defendant Downey came before him on July 19, and presented the facts against the plaintiff. The police justice said further:

“I examined Downey at the time, and determined to issue a warrant against Goyaski. I made that determination upon my own responsibility, based upon the statements Downey made to me.”

Upon cross-examination, he was asked to state what facts Downey stated to him at that time before the warrant was issued, and in answer said:

“ My recollection is that he stated that the wheelbarrow was the property of the Wabash Railroad Company; that he was special agent for that company; that he had learned that the defendant [Govaski] had got a wheelbarrow, and that he had seen him in the presence of some one élse, and accused him of taking it, and that Govaski admitted that he had taken it, and Downey gave him a couple of days to return it, and he had not returned it.”

Andrew Sine was called as a witness upon the part of the defendants, and testified that he was the day watchman of the defendant company; that the wheelbarrow disappeared, and he was told that Govaski had taken it away; that it had never been returned; and that he stated to Downey that it had not been returned. .

Another employé of the defendant company testified that the plaintiff took the wheelbarrow away, and that he notified Mr. Hill of the fact.

Mr. Hill testified that, learning that the wheelbarrow had been taken away, he sent for plaintiff, and told him he must return it, or he would have trouble, and it must be returned within 48 hours; that Downey was present at the time of this talk. Mr. Hill further testified that after that he saw the witn'ess Hoeflein, and was told by him that plaintiff had returned the wheelbarrow; that Downey was not present at that conversation, but that he told Downey what Hoeflein had said, and that this was the same day he had the talk with plaintiff and Hoeflein; that he thereafter discharged the plaintiff from the employ of the railroad company.

The police officer who had the warrant testified that he notified the plaintiff to appear before the justice, and that plaintiff' appeared at the time he was notified to be there.

Defendant Downey testified that he was a watchman for the defendant company at the time of this occurrence, and was told July 10, by the foreman of the warehouse, that he had lost a wheelbarrow, and could not find it; that he inquired for it, and found that the plaintiff had taken it home on the night of the 14th; that he went to the freight agent (Mr. Hill), and stated the case to him, who sent a boy for Govaski to come in; that Hill asked the plaintiff if he had taken the wheelbarrow home, -and he said he had, but had brought it back again; that Hill told him he would give him two days to bring it back, or he would get himself into trouble; that he waited two days for plaintiff to bring it back, and on the morning of the 19th went down and stated the case to the police judge. Witness sai’s:

“I told the judge that we had lost a wheelbarrow, and that Ryan had seen this man going away with the wheelbarrow; that Sine could not find it; that it was not there; and that Nichols had seen him with the wheelbarrow between those two streets in that alley, and called to him, but he did not pay any attention to him; and I also stated to him that Govaski claimed that he fetched the wheelbarrow back, but did not; and the judge gave me a complaint, and I took it to the clerk, and the clerk made the complaint.*'’

This is substantially all the testimony given in the case.

The claim of defendants* counsel is that Downey could not be held liable, for the reason that he stated to the police justice all the facts within his knowledge, and upon which statement the justice testified that he acted upon his own responsibility. It will be seen that the plaintiff testified that he told Downey where the wheelbarrow was, and pointed it out to him. This statement is not denied by Downey; neither does he deny that he was told by Iioeflein, and also by Hill, who obtained his information from Iioeflein, that.the latter claimed to have seen Govaski bring it back; and it does not appear from Downey's statement that he communicated these facts to the joolice justice. On the other hand, he admits that, while he told the justice of Govaski's claim that he brought the wheelbarrow back, yet he (Downey) told the'justice that Govaski did not bring it back. The testimony of the police justice does not show that he had any recollection of being told by Downey of these circumstances, but simply of being advised' that Govaski had admitted having taken the wheelbarrow, had been given a certain length of time to return it, and had not done so. We think the court was in error in directing the jury that no recovery could be had as against Downey. That should have been left to them. If the. police justice gave in detail all that Downey stated to him, then Downey did not state the case fully to the justice. There were other facts within Downey's knowledge that he should have stated in order to relieve himself of the responsibility of the arrest. It cannot bo said that, if the justice had known all that Downey knew, he would have issued the warrant for the arrest of the plaintiff. It was a question of fact to determine whether defendant Downey had made a full and fair statement of the facts in the case to the justice.

In Webster v. Fowler, 89 Mich. 304, it was said:

“It is a well-established rule of law that the advice and concurrence of a public prosecutor is not a good defense to an action for ihalicious prosecution unless it appears that the defendant fully and fairly disclosed to such officer everything within defendant's knowledge which would tend to cause or to exclude belief in plaintiff's guilt; and whether the defendant did make a full and fair disclosure to the district attorney was a matter for the jury to determine, and not for the trial court or this Court."

The defense made for the railroad company is that the relation of Downey to the company was not such as to make it liable for Downey’s act in making the complaint. The claim upon the part of* plaintiff’s 'counsel is that Downey was a detective in the employ of the railroad comparn*, and, as such, was in the office of Hill, who was the local freight agent of the company; that Downey was governed entirely by Hill; and that from these facts it must be held that Downey was acting in the line of his duty in making the complaint for the larceny of the defendant company’s property, and that the jury .would be authorized in finding the company liable. There is no evidence in the case that Mr. Hill, who had general charge of the company’s property, ever directed Downey to make the complaint, or suggested to him that the complaint should be made. So far as Hill is concerned, it only appears that he proposed to discharge plaintiff from the defendant company’s eipploy. It does not appear, either, from any testimony in the case, that Downey was instructed by any officer or employé of the company to make the complaint. Neither does it appear what Downey’s duties were. In the record he is sometimes called a detective for the company. He says of himself that he was a watchman. As to what authority he had to make this complaint there is no proof. We think there was nothing showing or tending to show that he was acting in the line of his duty to the defendant company in' making the complaint, or that his employment was such that it became his duty to the company to make it.

In Travis v. Insurance Co., 86 Mich. 288, it appeared that Patton, the State ag,ent of the insurance company, made a complaint against Travis for obtaining money by false pretenses from the company. In a suit brought by him against the company for false imprisonment, the court directed a verdict for the defendant. It was said by the Court that the complainant did not show that Patton was acting as agent for the company in making it; that plaintiff introduced no evidence of direct authority conferred upon Patton to make the complaint, nor of ratification of his act in so doing. Mr. Patton testified that he acted individually, with no authority from the defendant, and wholly upon his individual authority. .The court below was sustained.

Had there been anjr evidence in the present case showing or pending to show that Downey acted in the line of his duty under his employment in making this complaint, there might be some question whether the court should have taken the case from the jury as to the defendant company; but Ave think, under the evidence, the court properly directed that the defendant company could not be held liable. Bank v. Owston, L. R. 4 App. Cas. 270; Edwards v. Railway Co., L. R. 5 C. P. 446.

For the errors pointed out, the judgment Avill be reversed, Avith costs, as to defendant Downey, and affirmed, with costs against the plaintiff, as to defendant railroad company.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    A. Schuyler Montgomery et al. v. John H. Palmer, Presiding Judge of the Muskegon Circuit Court.

      Contempt — Detaining witness— Order to show cause — Dismissal-Affidavits —Mandamus.

      1. Mandamus will lie to review the decision of a circuit judge quashing- proceedings for contempt, commenced before his predecessor in office, on the ground of a want of jurisdiction to try the question of fact involved.

      3. Affidavits used on the hearing of a motion for a new trial, one of the grounds of which was the alleged action of an officer of the defendant corporation, in whose favor judgment had been rendered, in inducing witnesses for the plaintiff to leave the State during- the trial of the cause, may be made the basis of proceedings against the offending officer for contempt.

      3. The rule which requires that the charges against a party alleged to have been guilty of contempt must be supported by positive statements, in affidavits made by persons having knowledge of the facts,' does not exclude the drawing of inferences by the circuit judge from established facts, and his decision as to whether there was a sufficient basis for issuing an order to show cause can only be reversed in case of a total absence of a showing of facts justifying such action.
    4. The contention that the attempt to prevent the attendance of one not yet subpoenaed as a witness is not a contempt of court, under How. Stat. § 7357, subd. 4, which provides for the punishment of any person guilty of unlawfully detaining any witness to a suit while going to, remaining at, or returning from the court where such suit shall be noticed for trial, is untenable.

      Mandamus. Argued April 24, 1894. Granted May 22, 1894.
    Helators applied for mandamus to compel respondent to set aside an order quashing contempt proceedings, and to proceed with the hearing of the question of contempt. The facts are stated in the opinion.

      Bunker & Carpenter, for relators. g

      FitzGerald é Barry (Francis A. Stace, of counsel), for respondent.
   Montgomery, J.

On the 7th day of October, 1893, Judge Albert Dickerman, then presiding judge of the Muskegon circuit court, made an order directed to Herman O. Lange, requiring him to show cause why he should not be punished for contempt of court, the offense charged being an interference with and inducing witnesses for the plaintiffs to leave the jurisdiction of the court during the trial of a cause in which the relators were plaintiffs and the Muskegon Booming Company was defendant. Judge Dickermam’s term having expired, Judge Palmer, of the twenty-seventh circuit, sitting in place of Judge Bussell, the present incumbent of the fourteenth circuit, heard and determined a motion ’to quash the contempt proceedings for the following reasons:

1. That the order was improvidently granted.
2. That the order was made upon affidavits made1 for another and a different purpose, and upon what purported to be testimony of two witnesses, not taken in the proceedings, but purporting to have been taken before the stenographer of the court.
3. That there was no lawful evidence showing that Lange had been guilty of any contempt.
4. That there was no evidence tending to show that he caused the removal of the witness Edward Bennett beyond the jurisdiction of the court, or participated in such removal.
5. That, as to the witness Frank Burd, said Herman O. Lange has not been guilty of any contempt, for the reason that it does not appear that said Burd had been served with any subpoena issued in said cause, and it does affirmatively appear' from the petition and affidavits upon which the order was made that no subpoena was or could have been lawfully issued for said Frank Burd at the time he is alleged to have left the State of Michigan.
6. That the affidavits are entitled in the cause pending before the court, and not in the contempt proceedings..
7. That, the alleged contempt having been committed at a time when another judge was presiding, the judge now presiding has no jurisdiction.
8. That, if the respondent is guilty as claimed, plaintiffs in the civil case have an adequate remedy at law, and, under such circumstances, the court will not entertain the proceeding.

The order was granted dismissing the proceedings, and an order is now asked to require the circuit judge to set aside that order, and to proceed to hear and determine the question of coRtempt.

' There are returned with the answer certain affidavits from the files of the case, which, it is claimed, tend to negative the showing made by the affidavits upon which the order was based. But we do not consider these affidavits of any special importance, for the reason that the question which Judge Palmer was called upon to decide was not 'whether the respondent was able to purge himself of contempt, but whether there was enough before Judge Diokerman to warrant him in citing the respondent in to answer the charge of contqmpt. This consideration also applies to the suggestion that the Court will not by mandamus review the decision of a trial judge in contempt proceedings. This is the rule in any case where the determination of the judge calls for the exercise of judgment in determining the fact. State v. Horner, 16 Mo. App. 191; Heilbron v. Superior Court, 72 Cal. 96. But, where the question which the judge determines is whether there is jurisdiction to proceed to try the question of fact, his ruling is open to review, and, as mandamus is the only adequate remedy, it may properly be employed. Ex parte Chamberlain, 4 Cow. 49; Ortman v. Dixon, 9 Cal. 23; Kimball v. Morris, 2 Metc. 573.

It is unnecessary to set out at length the reasons that influenced the action of the circuit judge, and which are set forth in his opinion. But we will refer briefly to those urged by counsel for respondent as justifying the ruling.

It is claimed that certain of the affidavits upon which the order to show cause was based had already been used in the same case on a motion for a new trial, and that they were funclus officio, and could not be made the basis of other action. We think the objection not tenable. The authorities sustain the action of Judge Diokerman in treating these affidavits as a basis for the order made. Langston v. Wetherell, 14 Mees. & W. 104; Barnard v. Heydrick, 49 Barb. 70; Mojarrieta v. Saenz, 80 N. Y. 553. The case of Sherwood v. Circuit Judge, 80 Mich. 270, does not sustain respondent's position. The opinion of Mr. Justice Ohaiiplin recognizes the rule as herein stated, but distinctly bases the conclusion reached upon the peculiar wording of the statute relative to certiorari. See page 274, 80 Mich.

It is claimed that the affidavits fail to show a contempt. As to the alleged contempt in counseling and inducing Frank Burd to depart from the jurisdiction of the court, to avoid the service of subpoena, it appears sufficiently that the plaintiffs' counsel learned on Sunday that Burd was a material witness in the plaintiffs' behalf; that Lange, for some reason, made inquiry of the deputy-sheriff if he had a subpoena for Burd, and was told by the deputy that he had not; that, early on Monday morning, two men, who were afterwards recognized as Lange and Burd, were seen with a livery team at Kent City and Cedar Springs; that there Lange gave Burd monej'’; that Lange was conveyed to Grand Iiapids by a liveryman, and Burd was driven to Gowan, a station on the Detroit, Lansing & Northern road, from which point he proceeded to Chicago. It is said by respondent that, after the discovery that Burd was a witness, plaintiffs could not lawfully have obtained a subpoena for him before, he left, and that, before Lange left Muskegon with Burd, he was informed by an officer that he did not have a subpoena for Burd; that it does not appear that Lange had any knowledge or reason to believe that plaintiffs desired the attendance of Burd as a witness, nor that they had procured, or had any intention of procuring, a subpoena for him; and that charges must be supported by positive statements in affidavits made by persons having knowledge of the facts, — that statements on information and belief are not sufficient. This is true, but the rule does not exclude the drawing of inferences from established facts. Each of the facts recited was shown by positive testimony, and the inference to be drawn from these statements was one which Judge Dickerman certainly had the right to draw; and his decision as to whether there was sufficient basis for issuing the order to show cause can only be reversed in case of a total absence of a showing of facts justifying such action.

It is contended that the attempt to prevent the attendance of one not yet subpoenaed as a witness is not a contempt of court. The statute (How. Stat. § 7257) provides that—

Every court of record shall have power to punish by fine and imprisonment, or either, any neglect or violation of duty, or any misconduct, by which the rights or remedies of a party in a cause or matter depending in such court, or triable therein, may be defeated, impaired, impeded, or prejudiced, in the following cases: * * * Eor unlawfully detaining any witness or party to a suit while going to, remaining at, or returning from the court where such suit shall be noticed for trial; and for any other unlawful interference with the process or proceedings in any action."

It is contended that one cannot be guilty of detaining a witness until subpoenaed to appear, and this seems to have been the ground of the circuit judge's decision. But we do not think the statute should be so construed. A statute of Louisiana (section 880, Bev. Stat.) provides that—

Whoever shall be convicted of bribery or attempting to bribe any witness, or by any force, or threat, or intimidation of any kind, or by persuasion, to prevent any witness in a criminal case, in any of the stages of prosecution, from making the oath in any order to obtain a warrant of arrest to the final trial, inclusive, from appearing or testifying as a witness, shall be sentenced," etc.

It was contended that a person is not to be deemed a witness under this section until a summons has been served on such pei-son to appear at some stage of a civil or criminal trial or prosecution. The court say:

The construction of this statute which is insisted upon by the defendant’s counsel is too strained and technical, and the requested instruction to the jury was properly refused. While it is true that, for many purposes in the course of judicial proceedings, one cannot be' treated as a witness until he has been regularly summoned, it does not follow that he may riot be a witness, notwithstanding process has not been issued for his attendance as such in a given case. For instance, one cannot be attached arid fined for non-attendance until a summons is first produced, and the service of it duly proved. Until a summons is produced, and due proof made of attendance as a witness, one cannot obtain a certificate entitling him to compensation for services. Yet' such person may be called and sworn as a witness, ■ and his testimony taken in a case, though he has not been summoned. * * * Surely, it does not require argument to demonstrate that the conduct of Tisdale was just as. reprehensible as though Oliver had been regularly summoned as a witness to appear before the grand jury, and that,to his knowledge. The effect of intimidation in either case is just the same, and the motive which superinduced it likewise the same. Evidently the legislature intended to prevent and suppress such practices, and imposed severe penalties upon those violating its behest; and we deem it our imperative duty to rigorously enforce them.” State v. Tisdale, 41 La. Ann. 339.

We fully approve of the reasoning in this case. See, also, State v. Keyes, 8 Vt. 57; State v. Horner (Del.), 26 Alt. Rep. 73.

Nor do we think that, under the circumstances of this case, the fact that the parties might have enforced their remedy in an aption should prevent the court below from maintaining jurisdiction. The question of the expediency of permitting a resort to this remedy had once been considered, and, we think, not unwisely determined, by Judge Diekerman. The only justification which his successor could have for reversing his order without going into the case on the merits would be a want of jurisdiction on the part of Judge Dickerman. As already stated, we do not think there was such a want of jurisdiction. It follows that the court below should proceed to the determination of the question of fact.

The writ will be granted.

The other Justices concurred.


author: Grant, J.

text:
    Lester B. French v. The Talbot Paving Company.

      Bills and notes — Consideration—Public policy — Bona fide holder— Burden of proof.

    1. A promissory note given without consideration, and upon the threat of the payee to prevent the allowance by the city council of the claim of the maker for paving a street, is absolutely void in the hands of the original payee.
    2. Where, in a. suit by an indorsee, it conclusively appears that the note upon which the suit is brought was given without consideration, and that the transaction upon which it was based was contrary to public policy, the burden of proof is upon the plaintiff to show that he is a bona fide holder, and that he purchased the note without knowledge of the corrupt and illegal character of the transaction; citing Tilden v. Barnard, 43 Mich. 376; Goodrich v. McDonald, 77 Id. 486; Banh v. Dill, 84 Id. 549; Horrigan v Wyman, 90 Id. 121.

    Error to Wayne. (Reilly, J.) Submitted on briefs April 25, 1894. Decided May 22, 1894.

      Assumpsit. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      Brennan, Donnelly é Van DeMark, for appellant.

      Browse T. Prentis, for plaintiff.

       See Little v. Mills, 98 Mich. 423.

   Grant, J.

Plaintiff recovered verdict and judgment .upon a promissory note for $541.65, dated January 15, 1890, and payable June 1 thereafter, to Eugene Eobinson or order. It is indorsed upon the back: “Pay to the order of L. B. French. Eugene Eobinson.” Plaintiff made his case by introducing the note and proving the indorsement.

Defendant then proved by John F. Talbot, the president of the defendant, that no consideration was paid for the note. On cross-examination the witness testified that he gave this note to Eobinson, “rather than have him do what he intended to do. He [Eobinson] claimed he could prevent its going through the council; said he could prevent us getting paid for that paving of Fort street. Mr. Eobinson said he intended to use his influence with the council to prevent the payment of defendant’s claim for the pavement of Fort street unless defendant gave him the note.” This witness further testified that plaintiff, after the note was due, came to him, and stated that Eobinson wanted him (French) to collect this note for him. Defendant then rested its case.

Plaintiff was recalled, and testified that he told the witness Talbot that he owned the note himself, and that he in fact did own it.

John F. Talbot was then recalled for the defendant, and testified that Eobinson claimed that he (Talbot) ought to pay him a percentage of 2 per cent, on the Fort-street contract; that Eobinson threatened to break up the contract, and stop it in the council; and that for this reason he gave the note. Both parties then rested.

Counsel for defendant then requested the court to direct a verdict for the defendant, for the reason that it was established beyond controversy that the note was given without consideration, and that plaintiff had failed to show either that he paid value or was a ion a fide purchaser. The court thereupon permitted plaintiff to be recalled, who then testified that he paid the full face value of the note by giving a piece of land for it. He gave no other evidence-tending to show that he was a bona fide holder, or that he acquired the note without notice of the fraud.

The note was absolutely void in the hands of the original payee. No consideration was iu fact paid. The transaction upon which it was based was contrary to public policy. This having been conclusively established by the evidence, the court should have instructed the jury that the burden of proof was upon the plaintiff to show that he was a bona fide holder, and that he purchased the note without knowledge of the corrupt and illegal character of the transaction. Goodrich v. McDonald, 77 Mich. 486; Tilden v. Barnard, 43 Id. 376; City Bank v. Dill, 84 Id. 549; Horrigan v. Wyman, 90 Id. 121; Giberson v. Jolley, 120 Ind. 301. Several authorities on this question are cited in the opinion written by Mr. Justice Montgomery in Horrigan v. Wyman.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    Reid, Murdoch & Company v. Orlo R. Johnson.

      Fraudulent purchase — Replevin—Kollce—Evidence.
    Plaintiffs brought replevin for goods sold to a merchant by the - name of Richards, who, soon after their purchase, exchanged his stock of goods and business with the defendant for a farm in Kansas, plaintiffs claiming that Richards purchased the goods without intending to pay for them. On the trial plaintiffs sought to show by the cashier of a bank in the village where Richards kept his store that, 14 days after the purchase of the last bill of goods from plaintiffs, and shortly before Richards exchanged his stock for the farm, an account was opened at the bank in the name of R. Richards & Co.; that no such partnership was in fact entered into; and that defendant checked out this account. Plaintiffs further offered to show that Richards, during the month preceding- the sale to the defendant, and prior to purchasing the last bill of goods from plaintiffs, advertised his stock of goods for sale, not in his own name, but by reference to the number of a certain post-office box; plaintiffs’ theory being- that the advertisement and the alleged partnership arrangement were a scheme entered into between Richards and the defendant for the purpose of preventing creditors from obtaining any knowledge of the proposed deal until it was accomplished. And it is held that the evidence was competent as a link in the chain of testimony to establish the alleged fraudulent piurchase, and to charge defendant with notice thereof.
    Error to Allegan. (Padgham, J.) Submitted on briefs April 27, 1804. Decided May 22, 1894.
    Replevin. Plaintiffs bring error.
    Reversed.
    The facts are stated in the opinion.

      Williams, Williams é Butler, for appellants.

      Hannibal Hart, for defendant..
   Grant, J.

On November 9, 1892, and December 6, following, plaintiffs, through their salesman, sold two bills of goods to one Eicliards, a merchant doing business in Allegan, the total amount of such sales being $126.06. Some time in December following the last sale (but the precise day does not appear) Eicliards sold his stock of goods and business to defendant, in exchange for a farm in Kansas. December 31 plaintiffs’ agent went to Allegan, and finding that Eicliards had gone, and Johnson refusing to pay the bill, sued out the writ of replevin in this case, upon which the goods were taken. The goods -were sold on four months’ time. Plaintiffs’ theory was that Richards fraudulently purchased the goods without intending to pay for them; that, in consequence thereof, the title did not pass; that defendant was not a bona fide purchaser, but purchased with knowledge of facts sufficient to put him on inquiry. The court directed a verdict for the defendant. The direction was right, and the judgment should stand, provided no error was committed in the rejection of testimony, for there was no evidence to show that defendant did not pay value, or that he purchased with any knowledge of fraud on the part of Iticliards.

We think the court comm i I ted one error for which the ease must be reversed. Plaintiffs sought to show by the cashier of a bank that on December 20, 1892, an account was opened with the bank in the name of E. Eichards & Oo.; that no partnership was in fact entered into; and that defendant checked out this account. The court refused to permit the inquiry to go any further than to state that such an account was opened December 20. Plaintiffs also offered evidence tending to show that Eicliards, in November, advertised this stock of goods for sale, not in his own name, but by reference to the number of a certain post-office box. The theory of the plaintiffs was that the advertisement and the alleged partnership arrangement were a scheme entered into between Eichards and Johnson for the purpose of preventing creditors from obtaining any knowledge of the proposed deal until it was accomplished. We think the court should have admitted the evidence. It might not, of itself, have been sufficient to connect Johnson with the fraud of Eichards, but may have been a competent link in-the chain of testimony to establish such connection.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


text:
    In the Matter of the Assignment of the George T. Smith Middlings Purifier Company. Appeal of Myron W. Clark.
    [See 80 Mich. 200; 83 Id. 513; 84 Id. 364; 86 Id. 149; 100 Id. 127.]

      Insol vent debtor — Labor debts — Preference—Jurisdiction.
    1. The general and collecting agent of a corporation engaged in the manufacture and sale of flouring-mills and milling machinery, who receives an annual salary and his necessary and reasonable traveling expenses, and who occasionally, in the performance of his duties, performs some manual labor in fixing the machines that have been sold, in operating a new mill and securing its satisfactory running, and in giving instructions to others, is not a “laborer,” within the meaning of Act No. 94, Laws of 1887 (3 How. Stat. § 8749«i), which prefers labor debts due from insolvent corporations.

    2. Whether a claim against an insolvent corporation which has made an assignment for the benefit of iís creditors is entitled to preference as a labor debt, under 3 How. Stat. § 8749m, is a question to be determined by the court in which the assignment proceedings are pending, and neither the receivers nor their solicitors possess the power either to determine the question themselves or to stipulate that it may be determined by any other court.

      Appeal from Wayne. (Hosmer, J.) Submitted on briefs April, 27, 1894. Decided May 22, 1894.
    Petition that the receivers of an insolvent corporation be directed to pay to the petitioner the amount of a decree in his favor as a preferred claim, under Act No. 94, Laws of 1887. Petitioner appeals.
    Affirmed.
    The facts are stated in the opinion.

      Barlcworl'h & Blair, for petitioner.

      Edwin E. Conely, for receivers.

       Por cases construing Act No. 94, Laws of 1887 (3 How. Stat. § 8749m), which provides that the labor debts of an insolvent person or corporation shall be preferred claims against his or its estate, see:
      1. Black's Appeal, 83 Mich. 513, holding that services rendered by a practical miller at a monthly salary and expenses, for a corporation engaged in the manufacture and sale of flouring-mills and milling machinery, in going from place to x>lace after sales were made, and putting the machinery in running order, and giving it a trial to see if it performed the contract of sale satisfactorily, are labor performed for the corporation, within the letter and spirit of the statute.
      2. In re Sayles' Petition, 92 Mich. 354, holding that the services of a lumber inspector in passing upon and determining the grades of lumber and logs, he being employed by both purchaser and seller, and receiving his pay in part from each, and determining the grades finally between them, do not constitute labor within the meaning of the statute.

   Grant, J.

The petitioner was for several years in the-employ of the George T. Smith Middlings Purifier Company as its general collecting agent. He had a written contract during the year 1.883, which was renewed in 1884. He continued in the same employment under the terms of the written contract uuti.1 he was discharged, in January, 1887. February 11, of that year, he commenced an action at law in the circuit court for Jackson county. The declaration ivas on the common counts. A bill of particulars was filed, the items of which are substantially as follows:

For salary as agent for one year.................$5,500 00
For the value of the use of an invention by plaintiff of a tilting cup used by the defendant in 1883 and 1884__________________-......... — . 1,000 00
For commissions earned from Nordyke & Harmon, and claimed to have been collected by the purifier company............................. 768 80
For expenses and disbursements as agent........ 4,330 74
For interest on annual balances of salary not drawn 1,500 00

To this declaration a plea of the general issue, with notice of set-off, was interposed. The items of the set-off were as follows:

Balance of account against plaintiff..............$5,618 15
Moneys drawn by plaintiff from Hr. Kreiss, of Germany, a customer of the defendant------- 1,081 44
Moneys drawn by plaintiff while managing defendant’s business in Canada.........'............. 1,787 41

November 12, 1888, the purifier company filed a bill of complaint in the circuit court for the county of Jackson, in chancery, against Clark, setting forth that, in the course of his employment for the company, Clark had received and disbursed large amounts of money, for which he had not accounted, and praying for an accounting, and that the suit at law be enjoined. Clark was enjoined from prosecuting his suit at law upon the company’s filing an approved bond in the penal sum of $10,000, with sufficient sureties, as required by the statute to restrain an action at law. Clark, on January 24, 1889, answered the bill, and filed a cross-bill asking for affirmative relief. The case was referred to a circuit court commissioner to take testimony, and report it to the court.

January 14, 1890, the purifier company made a common-law assignment for the benefit of its creditors. April 15, 1890, the cause was removed from the circuit court for the county of Jackson to the circuit court for the county of Wayne, in chancery. ■ At the time of this assignment the chancery suit between the purifier company and Clark was undetermined. It was stipulated between the respective parties that the cause should proceed to a final hearing upon the merits, and a final decree be entered. The hearing was concluded, and a decree entered February 29, 1892, in favor of Clark, and against the purifier compan3r, for $4,222.30. This decree also recited that this indebtedness was on account of personal labor and services of said defendant rendered to said complainant; that said complainant had made a voluntary assignment for the benefit of its creditors; and decreed that the amount be given preference in the winding up of the affairs.of said complainant under the statute. No appeal was taken from that decree. Mr. Clark then filed his petition in the circuit court for the county of Wayne, in chancery, in the assignment case, asking that the receivers be decreed to pay him this amount as a preferred claim. The court refused to allow the claim as preferred, and the petitioner appeals.

It is insisted on behalf of the petitioner (1) that the question of preference is res judicata by the decree in the Jackson circuit court; and (2), if this be not so, still the claim is one entitled to preference, under Act No. 94, Laws of 1887.

We do not think the claim is res judicata. The suits brought by Clark against the company, and by the cbmpany against Clark, were commenced about three years before the assignment. Issue was joined and proofs were taken in the chancery suit before the assignment. The purpose of that suit was the determination of the amount due upon an accounting. No reference is anywhere made in the pleadings to any clsjim of preference given by the statute. The pleadings were not framed with any view to determining this question. The assignment did not change or modify the issue. While the stipulation, in haec verba-, is not before us, yet it is not claimed that it included any reference to this subject. That was a question for the sole determination of the court having jurisdiction under the assignment. No order from that court was obtained permitting this question to be determined in the other forum. Neither the receivers nor their solicitors possessed .the power either to determine this question of preference themselves or to stipulate that it might be determined by any other court. The rights of the general creditors were involved, and they were entitled to a hearing before the court in which the assignment proceedings were pending. We must, therefore, hold that the Jackson circuit court had no jurisdiction to determine the question of preference.

Petitioner’s contract for employment is in the following language:

“The party of the second part [Clark] is to actas gen-•feral agent for the said purifier company during the year 1884, at a yearly salary of $4,500, which the party of the first ¡Dart agrees to pay: Provided, however, that, if the gross amount of sales of machines by said purifier company during the- year 1884 is as large as the gross amount of such sales by said company in 1883, then, and in consideration of such sales, the salary of the party of the second part shall be $5,000, instead of $4,500, and the party of the first part agrees to pay the same accordingly.'”'

Under this and similar contracts, Mr. Clark traveled in nearly all of the United States, in Canada, and in Europe. We think it clear that this is not a labor debt, within the statute, which will be found quoted in Black’s Appeal, 83 Mich. 517, Occasionally, Mr. Clark, in the performance of his duty, did some manual work in fixing the machines that had been sold, in operating a new mill, in securing 'its satisfactory running, and in giving instructions to others; but he was not a “laborer,” within the decision of Black's Appeal. Mr. Black was engaged exclusively in putting the machinery in running order after it had been sold. lie had nothing to do with its sale, nor with any collections. His work was entirely manual and mechanical. The manual work -which Mr. Clark performed did not constitute his general employment. His contract did not require the performance of.any such labor as that which is preferred by this statute. In re Sayles’ Petition, 92 Mich. 354.

The decree must be affirmed, with costs.

The other Justices concurred.


text:
      John T. Rich, Governor, etc., v. The Board of State Canvassers.

    Elections&emdash;Returns&emdash; Constitutional amendment&emdash; Canvass&emdash;Mandamus.

    .1. Where, after the Board of State Canvassers has canvassed the votes cast for and against the adoption of a constitutional amendment, and after the officers composing the board have gone out of office, it is made to appear that a palpable mistake was committed, due in part to the unauthorized rejection of the returns from one county, and in part to a fraudulent and criminal alteration of the returns from another county, thereby changing the result of the vote in the State, the succeeding board has authority to right the wrong thus committed by a recanvass of the vote, and may be required by mandamus to do so.
    2. How. Stat. § 205, which provides that, in case no certified copy of the statement of the votes cast for and against the adoption of a constitutional amendment shall have been received from any county clerk by the Secretary of State, Governor, or State Treasurer within the time limited therefor, such Secretary shall forthwith send a special messenger to obtain such statement, evidences the intention of the Legislature that the error or omission of duty by the cle»k should not result in disfranchising the voters of any county, and, if the instrument returned by the clerk is not conceived to be a sufficient return, it is the duty of the Board of State Canvassers to dispatch a messenger to obtain a correct copy of the canvass.
    3. The failure to write out in words at length, in the statement of the votes cast for and against the adoption of a constitutional amendment, the number of votes given, and the use of numerals instead, is not such a departure from the provision of the statute as will justify the Board of State Canvassers in excluding the returns from a county so offending.
    4. The provision of How. Stat. § 187, relative to writing out the result of the canvass in words at length, is mandatory, in the sense that the neglect to do so renders the parties guilty of such neglect liable to the penalty provided by the statute; but the people’s remedy in such case lies in the punishment ,of the offenders, rather than in the disfranchisement of voters innocent^ of fraud.

      Mandamus. Argued February 20, 1894. Granted May 22, 1894.
    Relator applied for mandamus to Compel the respondent board to reconvene, and recanvass the votes bast upon the question of the adoption of a proposed amendment to the Constitution relative to the salary of the Attorney General. The facts are stated in the opinion.

      Geer é Williams (Gahill <& Ostrander, of counsel), for relator.

      Smilli, Lee & Day, for respondent.

      A. A. Ellis, Attorney General, in pro. per.; Otto Kir diner, of counsel.
   Montgomery, J.

At the election held in this State in the spring of 1891, there was submitted to the electors a proposed amendment to section 1, article 9, of the Constitution, relative to the salaries of State officers, the effect of the amendment, if adopted, being to increase the salary of the Attorney General to $2,500 per annum. Upon the canvass as made by the Board of State Canvassers, the amendment appeared to have received a majority of 1,287 votes in the State, and the result was so determined and declared by the board. On the 29th of January of the present year, a petition was filed by the Governor, the Attorney General being the interested party, asking that the Board of State Canvassers be reconvened and required to recanvass the votes cast, the petition alleging that the board of 1891 failed in its duty, in that no canvass of the vote cast in the county of Gratiot was made, and that this county gave 1,316 negative votes on the proposition, and but 626 in its favor. The petition also alleges that the returns from the county of Gogebic were fraudulently changed by adding 1,000 to the affirma-. tive vote, so that, as a matter of fact, the amendment was defeated in the State by more than 400 votes.

There can be no question that the returns from Gogebic county were falsified. ' But it is insisted by the Attorney General that, the Board of State Canvassers having actually determined the result, there is no power to review its proceedings, either directly or collaterally, and that the determination must stand; and, secondly, that the returns from the county of Gratiot were irregular, and therefore-the board was justified in throwing out the returns wholly, and was not bound to send a messenger for an amended return; and, thirdly, that, if it be held that the board neglected a duty in this last respect, the record of the canvass in Gratiot county shows that the statute relative to the canvass of votes was not complied with, and that a return taken from such record would not have been in a form which could have been recognized by the Board of State Canvassers, and hence that the forgery of the Gogebic returns did not in fact change the result, and that the-' recanvass of the returns would not result in reversing' the determination reached by the board in its original canvass, as announced.

It is contended that the authority of the Board of State Canvassers in determining the question of whether a constitutional amendment has been adopted is similar to-that exercised by a board of supervisors in canvassing the votes, and determining whether a proposition to remove a county-seat has been adopted; and that it has been held under various conditions that the Court will not review the decision of the board of supervisors in determining such result. Attorney General v. Board of Supervisors, 33 Mich. 289; People v. Board of Supervisors, 34 Id. 211; People v. County Treasurer, 41 Id. 6; Hipp v. Board of Supervisors, 62 Id. 456; Attorney General v. Board of Canvassers, 64 Id. 612; Double v. McQueen, 96 Id. 45.

The authority conferred upon the board of supervisors is defined in How. Stat. § 491, which, after providing for the submission of the question, the manner of voting, the canvass of the votes,'and the transmission of the statement of the result to the county clerk, further provides as follows:

“The board of supervisors, for the purpose of ascertaining the result of such vote in such county, shall examine such statements and certificates, and canvass the votes therein certified, and shall determine and declare the result of the vote in the county, and such result shall be entered upon their record; and, in case the result shall be in favor of the proposed removal, they shall provide for such removal, together with all the records and papers of such county, within one year after such result shall be ascertained and determined, as aforesaid, by them, and shall remove the same as soon as suitable buildings shall have been provided for the reception thereof, and they shall enter upon their records the, time token such removal shall be deemed to have taken place, and from and after that time the place so designated shall be and continue the county-seat of said county for all purposes whatsoever

In the first case cited, this statute was construed, and it was said:

“It is impossible, as it seems to us, to give due force to this language without holding that the decision of the supervisors was meant to be, and must be, conclusive. There is no intimation that any right to contest it was to be left open afterwards; but their action is to settle the question of the removal ‘for all purposes whatsoever/ It could not settle that question if a judicial review were still the right of dissatisfied parties. The question was one of a nature peculiarly proper to be submitted finally to their determination, and this consideration is not without its force when the question is one of construction.
“But there are other considerations bearing in the same direction, which may be well illustrated by the present ease. The diligence of the relator enabled him to present his complaint before the removal to Baldwin had been perfected,_ but that is a circumstance that may not exist in the next case that arises. The circuit judge is required to hold his courts in the court-house provided for him, and he cannot lawfully hold them elsewhere, except when the county has no court-house at all. The officers of the court — the sheriff and clerk — are required to keep their offices and records at the county-seat. If the circuit court in chancery could take cognizance of this case, it can of any similar case; and perhaps in the next case, sitting at the new county-seat, it will be called upon by information to make solemn decision that it has no authority to decide, and to take jurisdiction for the purpose of holding that, sitting where it does, it has no jurisdiction at all. This would be the anomalous and absurd position in which a judge might be placed if he should assume to take cognizance of such a question.”

It will be observed that not only is the board to make the determination, but the same section provides for action by the board based upon this determination. The reasons for holding its decision final, which do not obtain in favor of the construction of the statute governing the board of canvassers which is contended for by counsel for the Attorney General, are strongly stated in the language of Chief Justice Cooley, above cited.

Turning to the provisions for canvassing the votes on a constitutional amendment, we find that they read as follows:

I-Iow. Stat. § 213. <l The secretary shall lay before the board the statement received by him of the votes given in the several counties for or against such amendment to the Constitution.”
‘'•'Sec. 214. The board shall then proceed to examine such statements, and to ascertain and determine the result, and shall make and certify under their hands a statement of the whole number of votes given for, and the whole number of votes given against, such amendment of the Constitution, * * * and they shall thereupon determine whether such amendment to the Constitution * * * has been approved and ratified by a majority of the electors voting thereon, and shall make and subscribe on such statement a certificate of such determination, and deliver the same to the Secretary of State.”

No action by the board, as a board, is to be predicated upon this finding. The language is almost identical with that which provides for- the canvass of votes for State officers and members of Congress, — sections 207, 208, and 209; the last section providing that—

“The said canvassers shall certify each statement made by them to be correct, and subscribe their names thereto; and they shall thereupon determine what persons have been, by the greatest number of votes, duly elected to each respective office, and make and subscribe on each statement a certificate of such determination, and deliver the same to 'the Secretary of State.”

So, it will be seen that the duty is imposed upon the board of determining what person has been elected representative to' Congress, by language just as imperative as that contained in section 214, relative to the determination of the question r of whether an amendment to the Constitution has been adopted; yet we held in Belknap v. Board of Canvassers, 95 Mich. 155, that a recanvass of the vote for member of Congress might be directed by mandamus after the expiration of the term of office of the old board, and after such board had made the canvass, entered its determination, and issued a certificate.

It is contended that the determination of the question whether an amendment to the Constitution has been' carried involves the exercise of political, and not judicial, power. If this be so, it follows that the promulgation of any purported amendment by the executive or any executive department is final, and that the action cannot be questioned by the judiciary. But, with reference to the conditions precedent to submitting a proposed amendment to a vote of the people, it has been repeatedly held, by courts of the highest respectability, that- it is within the power of the judiciary to inquire into the question, even in a collateral proceeding. See Koehler v. Hill, 60 Iowa, 543; State v. Tufly, 19 Nev. 391; Collier v. Frierson, 24 Ala. 107; Opinion of the Justices, 6 Cush. 573; State v. McBride, 4 Mo. 303; State v. Swift, 69 Ind. 505; Westinghausen v. People, 44 Mich. 269. It is to be noted that, under section 1 of article 20 of the Constitution of the State, no amendment can become a part of the Constitution until ratified by a vote of the people. One prerequisite is equally as essential as the other. The amendment must first receive the requisite majority in the Legislature, and afterwards be adopted by the requisite vote. The question here involved is not whether the Court will, in a collateral proceeding, go into proofs to ascertain whether the board of canvassers has committed an error, :but whether in a direct proceeding, when it appears that a palpable mistake has been committed, due in part to an omission of duty and in part to a fraudulent and criminal alteration of the returns upon which the determination of the board is based, the board itself may not right the wrong committed, and may not be required to do so. It is not to be implied that the present board requires the mandate of this Court, except as an assurance of authority.

We have recently,. in an unreported case of Rich v. Board of State Canvassers, passed upon the identical question here involved. It is true this case was not argued, and, in view of the importance of the question, we shonld not’feel bound to follow this holding, if convinced that we were 'then in error. But the consequences of holding that the determination of the board of canvassers is forever conclusive, and that no matter how flagrant the fraud perpetrated upon the board, or how gross its owp neglect of duty, the determination is to stand for all time, and an alleged amendment become a part of the organic law, which, it can be demonstrated beyond peradventure, never received the requisite vote from the electors, are such that we should adopt such construction of the statute only when convinced that no 'other is open. The able argument of counsel for the Attorney General has failed to convince us that the action of the board is not subject to direction by the Court by its process of mandamus. We are not able to find sufficient evidence of the legislative intention that the first determination of the board, induced by fraud, or reached by disregarding the mandates of the statute, is to be forever final. It is the fact oí a majority vote which makes the amendment a part of the Constitution. We therefore adhere to the conclusion reached in the case of Rich v. Board of State Canvassers, above referred to.

There is abundant authority, not only in this State, but in other states, asserting the power of the court to compel by mandamus the reconvening of a board of canvassers and a recanvass of the vote. See Smith v. Lawrence, 2 S.D. 185; Long v. State, 17 Neb. 60; State v. Hill, 10 Id. 58; People v. Hilliard, 29 Ill. 413; Ex parte Strong, 20 Pick. 484; State v. Garesche, 65 Mo. 480; State v. Board of State Canvassers, 36 Wis. 498; People v. Nordheim, 99 Ill. 553; State v. Berg, 76 Mo. 136; Cooley, Const. Lim. (6th ed.) 784, note 5, and cases cited.

As the canyass made by the board, with the Gogebic vote corrected, would still show a majority in favor of the amendment if the vote of Gratiot county be not counted, it becomes necessary to inquire whether the hoard properly excluded the vote of this county. The only report from Gratiot county was as follows:

“Ithaca, Mich., fourteenth of April, 1891.
“Amendment to the - Constitution relative to the salary of the Attorney General: Yes, 626 votes. Amendment to the Constitution relative to the salary of the Attorney General: No, 1,316 votes.
[Signed] “I. N. Cowdrey, Clerk."

(With the seal attached.)

The statute provides (section 187):

In each of said statements, the whole number of votes given, the names of the candidates, and the number of votes given to each shall be written out in words at length; and each statement shall be certified as correct, and attested by the signatures of the chairman and secretary of the respective boards, and a copy of each, thus certified and attested, shall be delivered to the county clerk, and recorded by him in a suitable book to be provided by him for that purpose, at the expense of the county, and kept in his office.”

Section 190 provides that—

“■The county clerk shall prepare and certify under his hand and seal of office three copies of the statement of votes given, * * * after he shall have received such statement from the board of county canvassers; each of which statements he shall seal up in an envelope, and dii'ect one of each to the Governor, one of each to the Secretary of State, and one of each to the State Treasurer, and transmit the same by mail, within five days after the county canvass.”

Section 193 provides that—

Whenever any amendment shall have been proposed to the Constitution, and agreed to, and submitted to the people, pursuant to the provisions of the Constitution, the votes of' the electors for and against such amendments shall be taken, canvassed, certified, and recorded, and certified copies of the statement thereof shall be made and transmitted by the several county clerks to the Governor, Secretary of State, and State Treasurer, within the same time and in the same manner as the votes for State officers' are by law required to be taken and canvassed, and the statements thereof to be certified, recorded, and transmitted.”

Section 205 provides that—

If from any county clerk no such statement shall have been received by the Secretary o State, the Governor, nor the State Treasurer, within the times limited, the Secretary of State shall forthwith send a special messenger to obtain such statements and certificates from' such county clerk; and such clerk shall immediately, on demand being made by such messenger at his office, make out and deliver to him the statements and certificates required.”

This last provision clearly evidences the intention of the Legislature that the error or omission of duty by the county clerk should not result in disfranchising the voters of any county. Under this section, if the instrument returned was not conceived to be a sufficient return, it was the plain duty of the board to dispatch a messenger to obtain a correct copy of the canvass. It is mockery to say that the paper is of sufficient authenticity to be treated as a return for the purpose of disfranchising the voters, and yet is not sufficiently formal to be recognized by the board. If it was so invalid as not to be considered a return for the purpose of being considered in the canvass, it was no return. Speaking to precisely the same point, the supreme court of Illinois, in People v. Nordheim, 99 Ill. 553, said:

“Inasmuch as these inconqDlete returns were, in contemplation of law, no returns at all, it follows that, at the time of this application, the judges and clerks of the election in those precincts had made no returns to the town clerk, as required by the statute.”

It is apparent that the return was not a copy of the canvass, but it does not appear that it was excluded for this reason; but bjr a marginal entry in red ink it was stated that it was thrown out because of having no certificate of a notary public. In referring to a similar statute, the terms of which were that “the board may dispatch a messenger to the inspectors who made the returns, commanding them to complete the returns in the manner specified by law,” the supreme court of Wisconsin, in State v. Board of State Canvassers, 36 Wis. 498, say:

“It is not necessary that a person should be a lawyer in order to know that the word ‘ may/ as first used in the statute above quoted, means ‘must/ Any one would so read it who has sufficient intelligence to comprehend that the preservation of our system of free government is impossible unless the will of the people, lawfully expressed through the ballot-box, is respected and obeyed.”

We think it ite altogether clear that there was a plain neglect of duty in failing to send a messenger for corrected returns.

It is insisted, however, that the mandamus ought not to issue, for the reason that the original canvass of Gratiot county appears so imperfect that, if a copy of the same had been before the board, the vote should not have been counted. We have before us a duly-authenticated copy of the canvass, a copy' of which has been also returned to the Governor, Secretary of State, and State Treasurer. So much of the canvass as relates to the constitutional amende ment is as follows:

“At the general election held on Monday, the sixth of April, in the year 1891. ********
“ The whole number of votes given for the amendment to the Constitution relative to the Attorney General’s ■salary was 1,942, and they were given as follows:
“Amendment to the Constitution: Yes, 626.
“Amendment to the Constitution: No, 1,316.”

Appended to this is a certificate that the statement of votes is correct. On the opposite page also appears a tubulated statement of the .votes cast in the townships and wards of the county. The particular infirmity alleged in the canvass is that the number of votes cast for and against the amendment is not written out in words at length, but numerals are employed instead. We think this is not such a departure from the provision of the statute as would have justified the Board of Canvassers, or will now justify it, in excluding the returns of this county. The provisions relating to the canvass and return are usually held so far directory as that if, from the returns, the true facts scan be ascertained, they will not be excluded in the canvass. As is stated in Paine on Elections (section 585):

An election will not be invalidated bj' mere neglect or irregularity on the part of the officers in making up the returns, if the will of the voters, legally expressed, can be ascertained with certainty.”

See, also, State v. Bailey, 7 Iowa, 390; Opinion of Justices, 70 Me. 560; and Easton v. Scott, 1 Cong. Elect. Cas. 273, in which last case this precise question is ruled.

It should be stated, however, that the provision of the statute relative to writing out the result of the canvass in words is mandatory, in the sense that the neglect to do so renders the parties guilty of such neglect liable to the penalty provided by the statute. The people's remedy in such case lies in the punishment of the offenders, rather than in the disfranchisement of voters innocent of fraud.

Since this case was submitted, a motion has been made to amend the answer, based upon an affidavit of the former clerk of Gratiot county, I. N. Cowdrey, which tends to-show that the board of canvassers never completed and signed a proper canvass of the votes on the amendment, but that, after tabulating the returns and ascertaining the-result; it was left with the clerk to make up the statement, and that he did so, attaching the name of the chairman. The clerk files a subsequent affidavit, stating that he never made oath to the first purported affidavit, and also stating that the vote on the Attorney General's salary was canvassed in the.same manner as the vote on Justice of the Supreme Court and Regents of the University, except that the signature of the chairman of the board was not attached to the return made to the Governor, Secretary of State, and State Treasurer. There is nothing to impeach the substantial correctness of the canvass as made, and, if the second affidavit of Mr. Cowdrey be accepted, there was no irregularity which would not have been cured by the performance of a duty imposed by statute upon the Board of State Canvassers; for, while it does appear that, the return to the State officials was not signed by the chairman, it does not appear but that the county canvass, which is a distinct thing, was. But a less technical answer is that if this irregularity had, at the time, been called to the attention of the court, any imperfections in the canvass could have been directed to be corrected by mandamus; and it is not too much to assume that the State officials, having imposed upon them the duty of recording the will of the voters of the State, would, if necessary, have resorted to this course. After the lapse of this length of time, when the remedy is possibly lost to the State, we Avill not permit the record to be impeached except by shoAVing that there has been an actual substantial error, Avorking prejudice, which fact does not appear here. On the contrary, it appears that the record shows substantially the correct state of the vote. If any clerical error exists, it is not sufficient to affect the result in any way. Inasmuch as the error, if any, consists simply in a - want of due authentication, Ave adopt the course pursued in People v. Nordheim, supra, and treat the record as sufficient, Avithout going through the form of reconvening the board.

■Whether the State is entitled to recover any portion of the salary paid during the period since the determination made by the Board of Canvassers, in 1891, if the services were rendered in good faith, and in the belief that the amendment had in fact received the requisite vote, Ave do not determine, as the question is an important one, and has not been discussed.

The writ, of mandamus will issue.

The other Justices concurred.

       In this case, on January 18, 1894, a writ of mandamus was granted, requiring the board to reconvene, and recanvass the votes oast at the preceding April election upon four several proposed amendments to the Constitution, the same having been erroneously canvassed.