author: Cooley J.

text:
    The People ex rel. Hudson et al., v. P. E. DeMill et al.

      Quo warranto: Pleading: Misjoinder. The information charged defendants with intrusion into the offices of Wardens and Vestrymen, of St. Paul’s Church, Detroit, “ a corporation created by the authority of this State." Held,
    1. That inasmuch as the court had no judicial knowledge of the existence of any such, corporation, the information was defective in not setting forth such facts as in connection with the public statutes, of which the court can take judicial notice, would show such corporate existence.

      % Where a corporation is created by special statute, such existence need not in general be shown by further averment; but where not so created it must be made out according to the facts.
    3. Where an information is filed for usurpation of office, the existence of the corporation is a jurisdictional fact, which must be averred unless judicially known.

      4. When, the court is not judicially informed concerning- the nature of an alleged office in a corporation, it must be so described as to its nature and duties as to show whether it is such an office as comes within the purview of the law relative to the usurpation of franchises.
    5. Persons claiming to be wardens and vestrymen of a church can not join as relators to test in one proceeding their rights to the offices respectively, against adverse claimants.

      Heard January 10th and 11th,

      Decided January 14th.

    Information in the nature of a quo warranto.
    The information was filed to determine the legality of the election of the wardens and vestrymen of St. Paul’s Church, in the city of Detroit.
    The pleadings were as follows:

      Information.

    “ Albert Williams, Attorney General of the State of Michigan, who sues for the people of the said State, in this behalf, comes here before the Justices of the Supreme Court of the same people, on the eighteenth day of October, in the year one thousand eight hundred and sixty-six, and upon the relation of Elon W. Hudson, Frederick A. Stokes, ICirkland C. Barker, Thomas J. Cram, Alonzo D. Denny, Alexander W. Copland, Marcus Stevens, Thomas Woodhams, Israel Mowry and Charles F. Clark,' according to the form of the statute in such case provided, gives the court here to understand and be informed that Peter E. DeMill, Benjamin Vernor, James V. Campbell, Thomas Radcliff, Allen S. Sweet, Willard Parker, Lorenzo M. . Mason, Edward LeFavour, Robert P. Toms and Richard II. Hall, of the city of Detroit, in the county of Wayne, and state aforesaid, for the' space of one month now last past, have held, used and exercised, and. still do hold, use and exercise, without any legal election, appointment, warrant, or authority whatsoever, the office of wardens and vestrymen, to wit, the said Peter E. DeMill and Benjamin Vernor the office of wardens, and the said James V. Campbell, Thomas Radcliff, Allen S. Sweet, Willard Parker, Lorenzo M. Mason,- Edward LeFavonr, Robert P. Toms and Richard H. Hall the office of vestrymen, in St. Paul’s Church in the said city, a corporation created by the authority of the said state, under the name and style of “The Rector, Wardens and Vestrymen of St. Paul’s Church, in the city of Detroit.”
    And the said Attorney. General further gives the court here to understand and be informed, that at an election for wardens and vestrymen, held on the sixth day of September now last past, the said Elon W. Hudson and Frederick A. Stokes were duly elected and chosen Wardens of said corporation, and Kirkland C. Barker, Thomas J. Cram, Alonzo D. Denny, Alexander W. Copland, Marcus Stevens, Thomas Woodhams, Israel Mo wry and Charles F. Clark, were duly elected and chosen vestrymen of said corporation, and that the said Elon W. Hudson and Frederick A. Stokes, have ever since been and still are rightfully entitled to hold, use and exercise the said office of wardens; and Kirkland C. Barker, Thomas J. Cram, Alonzo D. Denny, Alexander W. Copland, Marcus Stevens, Thomas Woodhams, Israel Mo wry and Challes E. Clark, have ever since been, and still are rightfully entitled to hold, use and exercise the said office of vestrymen in said corporation; which said office of wardens the said Peter E. DeMill and Benjamin Vernor, during all the time aforesaid, have usurped, intruded into, and unlawfully held and exercised, and still do usurp, intrude into, and unlawfully hold and exercise; and which said office of vestrymen the said James V. Campbell, Thomas Radcliff, Allen S. Sweet, Willard Parker, Lorenzo M. Mason, Edward LeFavour, Robert P. Toms and Richard H. Hall, during all the time aforesaid, have usurped, intruded into, and unlawfully held and exercised, and still do usurp, intrude into, and unlawfully hold and exercise, to wit, in the state and county aforesaid, in contempt of the people of the State of Michigan, and to their great damage and prejudice.
    Whereupon the said Attorney General prays the advice of the court here in the premises, and for due process of law against the said Péter E. DeMill, Benjamin Vernor, James V. Campbell, Thomas Radcliff, Allen S. Sweet, Willard Parker, Lorenzo M. Mason, Edward LeFavour, Robert P. Toms and Richard H. Hall, in this behalf to be made to answer to the said people by what' warrant they, the said Peter E. DeMill and Benjamin Vernor, claim to hold, use, exercise and enjoy the said office of wardens in said coloration; and the said James V. Campbell, Thomas Radcliff, Allen S. Sweet, Willard Parker, Lorenzo M. Mason, Edward LeFavour, Robert P. Toms and Richard H. Hall, claim to hold, use, exercise and enjoy the said office of vestrymen in said corporation.
    ALBEET WILLIAMS,

      Attwney General, Michigan.

    HOVEY K. CLAEKE,

      Of Counsel”

      Demurrer.

      “ And now come the said defendants, by Levi Bishop, their attorney, and having heard the said information read, they severally say that they do not think that the said People ought to impeach or trouble them, or any of them, by reason of the premises in said information specified or' mentioned; because they severally say that the said information, and the matters therein contained, are insufficient in law, and that they need, not, nor are any of them obliged by the law of the land to answer thereto; whereupon, for the insufficiency thereof, they severally pray judgment, and that they, and every one of them, be discharged and dismissed by the court hereof, and from the premises above charged upon them with costs. And the said defendants would further severally say, that in addition to all grounds competent to be urged under the above demurrer to said information, they will also insist on the following special causes, viz.:
    1. It is not averred with sufficient certainty and precision in said information, that the “Rector, Wardens and Vestrymen, of St. Paul’s Church, in the city of Detroit,” mentioned in said information, had actually been “ created a corporation by the authority of this state,” and continued
    'to be such until said information was filed, so as to bring the case within the purview of the statute.
    2. It is not averred in said information by or under what law, special or general, or when said parties had been so incorporated.
    S. Neither is it averred that said offices of wardens and vestrymen had been created or provided for in such act of incorporation; what the nature of their duties, or how appointed or elected, and the tenures of their office.

      4. It does not appear from said information whether the said relators had been elected as a vestry at an annual or special election or not, or whether the said election was authorized by the provisions of the alleged act of incorporation, or what the provisions of such act were.
    5. It is not averred in said information that any particular defendant usurped or exercised any office claimed by any designated, relator.
    6. That the information presents the pretended rights of several relators to several distinct and separate offices, and of different classes, who, however, are not averred to have accepted or claimed said offices.

      1. The alleged corporation is .of a private nature; has no concern with the government or the administration of justice; has nothing of a public nature about it, and does not come within the purview of the statute on which the proceedings are based.
    And also, that said information is in other respects uncertain, informal and insufficient, etc.”

      To which, a general replication was filed.

      A. JD. Fraser and L. Bishop, for defendants, in support of demurrer.
    1. It is not averred in a direct, positive and affirmative manner, and with sufficient certainty and precision, that said corporation had been created, and still' existed, so as to bring the case within the purview of the statute.
    The information is radically defective in not setting forth all the facts necessary to be alleged, to show that the officers of St. Paul’s Church had been incorporated according to the laws of this state. It has been held by the courts of New York, from which we have adopted the statute, regulating these proceedings, that all grounds of complaint under it must be set out with all the exactness of pleading required in an action for a penalty, or for a libel, etc. 23 Wend 193, 217, 221, 223, in which the case of the 9 Wend. 374, 376, laying down the same rule is fully approved of. To the same effect are the following authorities:— 5 Bacon's Ah. Information 0,, p. 178, 179; Comyn's Big. Plead. G. 76; 1 Lord Raymond, 107, 478; 1 Salk. 139; 2 Mass. 444; 4 Id. 471.
    This is essential, that it may appear, whether or not the act charged, comes within the purview of the statute. 1 GMtty's PI. 322, 324, and notes; 2 Boug. 159, 278; 5 T. R. 70.
    Judge Buller says: “The allegations must set forth everything, which is matter of substance, material or essential, to the plaintiff’s demand.” — 1 Fsp. 299; Buller's JST. P. 167.
    The information must state, directly and affirmatively, the grounds of complaint, so that they may be traversed. 7 Bacon's Ah. Information, B. Becln. 510; Graham's Pr. 211; Philip's Do. 165, 166; 2 Sir. 1151, 1162; 2 Salk, 636; 1 GMtty's PI. 216, 217, 228.

      Facts only are to be stated, and not arguments or inferences, or matters of law.— 1 Chitty’s PI. 196; Gowp. 684; 5 East, 275; 10 Id. 205; 1 Johns. 468; Willcoch on Gorp. 466; 7 M O. L. 168; 4 Blachf. 392; 6 Ala. 169.
    It ought in all matters to state that which is the essence of the action — 7 Bacon’s Ab. Pleas and Pleadings, 510, 465, 477 — and this must be done by positive and express averments. — Ibid. 510, 579.
    If these principles are applied to this information, it will be found that it is destitute of those elements, which are essentially necessary for the object in view.
    2. It is not averred in the information by or under what law, private or public, general or special, or when the said parties had been created a corporation.
    It is not pretended that the officers of said church had been incorporated' by any special statute, and assuming the creation of such corporation, under one of the numerous general acts adopted in this state since the year 1807, relative to “Religious Corporations,” it is still more necessary that the information should state the precise law under which it claims to have been organized. Hence it was held in Indiana that the information should inform the court, under what statute a company was organized, so that the court might be acquainted with its charter, and know its powers and duties, 16 Ind. 456; all the precedents too, both English and American, are to this effect, 4 Cow. 107; 5 Bay, 329 ; 1 Benio, 389; 13 Penn. 133, 136 ; 6 Wentw. 154. In 16 IVend. 658, the decision turned upon the effect of precedents. In prosecutions for an offense created by statute, a reference to it is indispensable, and so in penal áctions.T — 3 Gomst. 188.
    Even in civil actions, on our own statutes, under our present system, a reference to the particular statute on which a suit is based, is essentially necessary, 2 Gomp. B. §§ 5115, 5117, 5116, 4156 to 4158, and in ordinary actions by or against corporations a party must set forth the title to the act under which the corporation was created, and the date of its approval.— 2 G. L. 1291, §§ 6, 7.
    The 18th subdivision of the 3d section of the chapter on statutes, (1 O. L. 89,) does not dispense with the necessity of such reference, even in actions based on special statutes; besides, this provision has no applicability whatever to a corporation organized under a general law, of which the court can not take notice until pleaded, for its creation is merely a matter in pais, and must be shown by pleading.
    3. Neither is it averred that such officers, as wardens and vestrymen, had been created or provided for in such act of incorporation, or the nature of their duties.
    A simple act of incorporation is often applied for in order to enable a company to sue by a general name; to have a common seal; to transmit their rights, property, etc., to succeeding members, without conveyances, and without any other aim. These attributes alone are sufficient to constitute a corporation: neither the possession of property, nor the actual enjoyment of franchises is necessary. — Angelí & Ames, p. 26.
    But this is not enough to give jurisdiction to this court. It is necessary, in addition to its corporate character, to confer upon it certain privileges and immunities, which are to be enjoyed by the corporators in common.— 1 Kyd, 70; 6 East. 359, 361, 363; 5 T. B. 85; Slcinner, 311; 15 Johns. 358, 386; 10. Co. 31a/ 3 Id. 75, 5/4 Gomyn Dig. 450, 452, 465, 474; 1 Black. Gom. 475, 476; Angelí & Ames, 365, 66.
    “It is true,” say the court, in the case of Regina v. Mousley, (55 E. G. D. 945,) “that a charter was obtained from the Crown, according to the founder, in order to incorporate the members of his foundation; but that alone is quite immaterial, as the Crown neither added anything to the foundation, nor reserved to itself any control over it.” But, if on this corporation be conferred á “franchise,” then it is this franchise which is protected by the courts, 1 Kyd, 14, 15; Angelí & Ames, 618; hence the necessity of setting out this “franchise” in this information, especially as some of the general laws above alluded to, contemplated little more than the mere act of creating a, body corporate, without any franchise^ and in others, powers were delegated to the corporations to create officers, prescribe their duties and terms of office. The information in this case is entirely inapplicable to the case, and was designed merely to apply to an officer, whose office and duties were prescribed by public law. All the precedénts already cited support this view. Aside from these considerations, it is highly proper, that this legal document should contain a full statement of all the facts connected with the case. The English courts, impressed with the propriety of this course, have adopted stringent rules, requiring the rule nisi, granted in such cases to contain a statement of the intended objections, in the nature of a bill of particulars; and no objection can be raised by the prosecution on the pleadings not so specified. — 48 M C. L. 96, note B; 64 Id. 939.
    The sole object of this proceeding is to resume a franchise; hence the necessity of showing in what it consists; and if it springs from a general law, or a by-law, then the whole matter must be set out.— 2 Kyd, 16 V, 424, 425 ; Angelí & Ames, 30V, 308; 6 Gomyn's Big. 15V; 2 Johns. Gh. 377.
    4. There is a misjoinder in this information, not only as regards the relators and defendants, but, also, as'respects the causes of complaint, or offenses charged; and, especially, in embracing the wardens with the vestrymen, although each and every of them hold separate and distinct offices, and that they are distinct classes, having to perform distinct duties.
    This is the most extraordinary feature of this case. The course adopted here is inadmissible in either civil or criminal proceedings, except when the peculiar nature of the case or the statute law permits it. The statute governing these proceedings very distinctly contemplates only a contest for one office in any one information. In the nineteenth section of 2 C. L. p. 1394, it is laid down that “ when several persons claim to be entitled to the same office or franchise, one information may be filed against all such persons, in order to try their respective rights to such office or franchise.” But here are ten different persons, holding as many distinct offices, which are claimed by as many distinct relators. Nor is it permitted in practice. It is a misjoinder-as regards relators and defendants. — 5 Daeon's Ab. Information G. 179, 183, 187; Gomyn’s Dig. 196; Willcoch, 481, 482; Angelí <& Ames, 633; 2 Ilyd, 413; 4 Gow. 109. The nature of the trial and the judgment show that there should be separate informations.— 2 Comp. L. §§ 5310, 5312.
    The same rule obtains in civil actions, and the objection is available, either on general demurrer, arrest of judgment, or on error. — 1 Qkitty’s PI. 178, 188, 394; 1 Tidcl. 12, 694; 1 Taunt. 212; 2 Dos. & P. 424; 2 Saund. 210, notes; 18 M G. L. 461.
    5. All the defendants are charged jointly with having intruded into and usurped ten offices, and with having held, used and exercised the same, although said offices are manifestly separate and distinct in their natures. This objection is as fatal as the last, and may be availed of in the same way.— 1 Ghitty’s PI. 34, 73, 74, 182, 183, 187; 7 Paeon’s Ab. Pleas and Plead. 471.
    “ If in legal consideration,” says Chitty, 73, “ several can not concur in the act complained of, separate actions must be brought against each.” And in criminal cases several offenses can not be joined, as for perjury (2 Str. 921), or for seditious words or the like, because such offenses are, in their nature, several. “Even where several commit a joint act, not of itself illegal, but which became so, by reason of some circumstances applicable to each severally, and not jointly, they must be indicted separately.”— 1 Barb. Gr. L. 338; 2 IlawJc. G. 25, § 89. Thus several partners can not be indicted jointly for exercising their trade, without having served an apprenticeship. — Ibid. 1 Salic.' 382; Str. 623. And when several defendants are permitted to be included, the word “several” must be inserted, which makes the offense several as to each. — 1 Barb. Gr. L. 338. And so are the precedents. — 6 Wentworth ; 4 Gow. 107.
    On a joint charge there must be proof of a joint offense. — 1 Barb. 338; Buss. By. G. G. 257, in receiving stolen goods.

    It required a special provision in our code to sanction a joint indictment in certain cases. — 2 Comp. L. § 6052.
    6. The alleged corporation is of a strictly private na-^ ture; has no concern with the government, or the administration of justice; has nothing of a public nature about it, nor does it enjoin any public duty, or come within the statute on which the proceedings are based.
    We are aware that Angelí & Ames (from 614, 618, and also at p. 627), take somewhat of a different view of the subject; but a series of decisions of the English courts, on a statute somewhat similar to ours, we apprehend, puts this question at rest. It has been held that no case is embraced in the statute, except such as were cognizable at common law, and we have several decisions in which this writ has been denied against wardens and vestrymen. — 2 Str. 1196; 4 T. B. 381; 11 Sergt. & B. 73.

      Vide on the general doctrine. — Willcoch, 457, 464; 3 Burr. 1615; 1 Bow. & By. 426; 16 JE. O. L. 45; 30 Id. 132; 21 Id. 61, 62; 33 Id. 210.
    In this case Lord Denman said: “We are not at liberty to depart from the case of Ramsden, which was decided after much consideration.” — Also, 55 IE. G. L. 945, already cited; see, also, 11 8. & B. 73, 74; 21 III, 65.

      The case referred to from S. & R. presents very strong reasons why the court should not interfere with this class of cases. Beside, there is a remedy by civil action. — Andrew’s B. 14; 3 Kent, 459, 618^ 3 Burr. 1821, 1822; 10 ■ Wend. 327.
    7. It is not averred in the information that any particular defendant usurped or exercised any office claimed by any of the designated relators; but it presents the supposed rights of several relators to several distinct and separate offices, and of different classes, who are not even averred to have accepted of said offices, or to claim them, which we apprehend to be necessary. — 5 Bay, 529.
    8. It does not appear from said information whether said relators had been elected at an annual or special election or not, or whether said election was authorized by the provisions of the alleged charter, or what the provisions of such act were, in this regard.

      H. K. Clarke, for relator.
    1. A demurrer to an information in the nature of a quo warranto is an unusual proceeding. It may be conceded that it is the proper method for obtaining an adjudication of the court upon an information, substantially defective; but it is unusual, because the information rarely, if ever, tenders the precise issue to be tried. It is more in the nature of a rule to show cause than a pleading to be treated by technical rules. The defendant must either disclaim or justify.
    If he disclaim, there is, of course, no occasion for an issue. If he justify, he must do it by plea, in which he must accurately set forth his title and aver specifically every fact necessary to show his present continuing right.— A. & A. on Corp. (4th ed.) Ch. 21, § 756; 3 Arle. 570; 15 III. 213; 1 Benio, 388.
    The defendant is obliged to assume the affirmative, and . his plea tenders the issue. This explains why a demurrer to an information is so unusual, and it shows, also, that the most general averments are all that is necessary to require the defendant to disclose the authority under which he claims to act. — 2 Mich. 348; 5 Id. 146; 13 Id. 384.
    All the causes assigned for the demurrer, except the last, seem to be founded upon an opposite theory, namely, that it is the duty of the Attorney General to aver every fact necessary to exclude every inference in favor of the defendant’s right. It demands the highest degree of certainty— “certainty to a certain intent in every particular.” This theory of the defendant’s counsel is not supported by any of the authorities, and being erroneous, all the causes of demurrer founded upon it, fall with it.
    2. The seventh of the assigned causes of demurrer is that “ the alleged corporation is of a private nature, * * * and does not come within the purview of the statute on which the proceedings are based.”
    At common law, the right of the Attorney General to file the information, without asking leave of the court, was not denied. In cases where it was necessary to ask the leave of the court to file the information, and the franchise was not of a public character, leave has been refused. It was only in such cases that the private or public character of the franchise became material. — A. & A. on Gorp. (4th ed.) Gh. 21, §§134-5-6; 10 Mass. 290.
    The courts of Pennsylvania, however, in which state the statute of Anne had never been enacted, entertained jurisdiction of just such cases as this, — 3 iS. é> B. 28; 5 Id. 510; 11 Id. 13; 15 Id. 121.
    The statute of this state leaves no room for doubt as to what constitutes a proper case for the action of the Attorney General — “when any person shall exercise any office in any corporation created by the authority of this state.” — Comp. laws, §5291.
    The proceeding ■ here is against persons claiming office in a corporation; and the usurpation complained of is averred' in the precise words of the statute, namely, that they “ exercise ” an “ office in ” a “ corporation created by the authority of this state.”
    This averment is as certain as that required in the United States courts in averring the existence of a corporation. — 16 Sow. 314; 20 Id. 227; 6 Pet. 761.
    These are averments of jurisdictional facts. If they be sufficient for that purpose, there can be no doubt of the sufficiency of the averments in this information.
    Acts of incorporation in this state are deemed public acts, and do not require to be specially pleaded. — Comp. Z. p. 89, § 18.

      C. I. Walker, on the same side.
    1. Although the proceedings by quo warranto are criminal in form, they are to determine civil rights, and the principles applicable to pleadings in civil cases measurably prevail. — Angelí and Aines on Corp. (3d Sd.) 686 and 687; 28 Penn. 387; 4 Seld. 70.
    Thus certainty only to a common intent is required. — 1 Slaekf. 271.
    Then, too, in these proceedings the state is bound to make no showing, and the averments of the information may be* of the most general character; the object being to require the defendant to show cause. — Angelí and Ames on Goip. 717; 5 Mich. 148; 12 Id. 394; 3 Ark. 570; 15 III. 217.
    As to the general nature of these averments see Green's Prac. pp. 486, 492 ; 4 Gow. 106; 10 Mass. 290.
    In the light of these general principles let us look at the special grounds of demurrer in this case.
    2. -The creation of the corporation by the authority , of the state is clearly and distinctly averred in the very language of the statute, and with as much fullness and clearness, as would be required, if the corporation were the plaintiff in a civil action. — 2 Comp. P. § 5290 ; Gould's PI. Gh. 3, §61; 1 Glvitty's PI. 256, 382; 2 Id. 29, 34.

    The origin of the corporation having been clearly-stated, its continuance will be presumed. — 2 Poug. 364.
    3. It Avas not required by any knoAvn rule of pleading, either to set out by what laiv or Avhen the incorporation took place.
    The fact of the incorporation by the authority of this state was the only fact necessary to be averred; and that is averred in a clearly issuable' form.
    4. It was unnecessary to aver the nature or tenure of the office, or Avhether it be one created by the act itself or under the act by its authority.
    It is distinctly aAerred that the defendants have intruded themselves into, and unlawfully hold the offices named; and that they are offices in the corporation.
    The statute makes no distinction betAveen offices created by the act of incorporation itself, and those created by virtue of its authority.
    If the defendants hold such offices, as they are charged with doing, they haAe no need to be informed of the duty or tenure of the office. They are called upon to justify their holding.
    If they do not hold the offices they may disclaim.
    5. It was entirely unnecessary to set forth any more specifically the claim of the relators to said offices. Indeed, it Avas not necessary to set them forth at all, and no issue can be taken upon these averments. — 2 Gomp. L. § 5293 ; 2 Mich. 348.
    6. The statute applies as Avell to offices in private as in public corporations. And in this country it is settled independently of the statute, that a quo Avarranto will lie for intruding into the office of a private corporation.— Angelí and Ames on Gorp. 694, 696, and cases there cited; 15 S. and P. 127.
   Cooley J.

It is commonly a source of regret when, a court is compelled to dispose of the case before it without passing upon the main questions raised; but the nature of the record in the present case is such as to leave us no alternative. We are clearly of opinion that the information is fatally defective in two particulars.

It is defective, firstly, in not showing in what manner the organization in which the defendants are accused of having usurped office became a body corporate. When any person, or association of persons, is charged with usurping the franchise of a corporation, it is sufficient for the Attorney General to call upon them, in general terms, to show by what authority they claim the right to exercise such franchise; but when the very nature of the proceeding is such as to assume the actual existence of a corporation, and it is alleged that defendants usurp some authority therein, no ground whatever is shown for calling upon defendants to show their right until it is made to appear that a corporation exists. The claim to a corporate franchise, which does not exist in fact, may be a great public wrong, demanding immediate redress; but the claim to an office in a corporation which has no existence, can hardly be a matter of public concern, unless accompanied with the attempt to exercise a corporate franchise; in which ease the remedy would be an information, not for the unlawful intrusion into an office, but for the usurpation of the franchise. The information in a case like the present must, therefore, show that a corporation exists; for until that is shown, it is not made to appear that there is any office into which the defendants can intrude. The precedents in proceedings against public officers, are not applicable, in all particulars, to the case before us; since those are cases where the courts must judicially take notice of the existence of the offices, and no allegations are necessary to show how they were created.

The statute under which this information is filed — Comp. L. § 5291 — authorizes this proceeding in the case of usurpation of office “ in any coi’poration created by the authority of this state.” The information avers, in the words of the statute, that the corporation known as the “ The Rector, Wardens and Vestrymen of St. Paul’s Church, in the city of Detroit,” of which the defendants claim to he wardens and vestrymen, is “a corporation created by the authority of this stateand we might infer it to be the view of the pleader that the statute establishes a rule of pleading; whereas, in our opinion, it only points out the cases in which an information may be filed, leaving the mode of showing that the case is one within the statute, to be governed by the rules of pleading before in force.

Where a corporation has been created by special charter, we do not regard it necessary, though perhaps usual, to do more in the information than to aver its existence in general terms; since the court is bound to take judicial notice of the charter — Comp. L. § 2, clause 18 — and is thus informed of the actual corporate existence. But as the body in question has no such charter, and if it exists as a corporation at all, must have been constituted such under some general law of the territory or state, by acts in pais, it is obvious that there is nothing upon the face of this information by which the court can see that the allegation that the church is a corporation, is true in fact. The bare averment that it is one, is but a conclusion of law drawn by the pleader, but which the court ought to have the means of drawing for itself from the facts set forth.

We were referred upon the argument to several cases in which it has been held that when the state calls upon one to show cause why he claims to exercise a corporate franchise, or to possess a public office, the allegations of the Attorney General may be of the most general character, while the defendant is required to set forth specifically, and with particularity, the grounds of his claim, and the continued existence of his right. — People v. Mayworm, 5 Mich. 148; People v. River Raisin & Lake Erie R. R. Co. 12 Mich. 398. We have no disposition to qualify these decisions in any way. The state has always a right to demand of any one assuming a public office or franchise to show his authority therefor; but the state has no concern with the unfounded claims which parties may make to an office not existing in fact. The existence of the corporation in the present case is a jurisdictional fact which must be set forth; while there was no corresponding jurisdictional fact to be alleged in the cases cited. The right to file information, in those cases depended solely upon the discretion of the Attorney General; while in this case there must be corporate existence, or he is not authorized to call upon defendants to show ground for their claims. Jurisdiction appearing, the facts relating to the usurpation or intrusion may be alleged here as they were in those cases, in very general terms; and similar allegations to those referred to in the cases cited have not been objected to in the present case.

There is also a broad distinction in respect to this particular point' between the cases now before us, and those cited by counsel from' the federal decisions, where the question related to the averment of citizenship, where one of the parties was a corporation. That question affected either personal rights to sue, or personal exemptions from being sued in the particular court; and the fact was one of which the court would take no notice in any stage of the case unless it was specially put in issue. But here the fact of corporate existence is the basis of any authority at all in the court to act in respect to the subject of controversy, and it is not one in respect to which there can be a waiver by the parties. This proceeding by information is of a prerogative character, to enable the court to see that privileges or franchises granted by or pertaining to the sovereignty of the state are not usurped, intruded upon or abused; and it pertains to the dignity of the court to see that parties do not use it, even by consent, for private purposes. If the general allegation employed in this case were sufficient, and the proof could be waived by the parties, it would be easy to impose upon the court the disputes as to offices in voluntary associations, in no way affecting prerogatives of sovereignty, and to which this proceeding has no application whatever.

But if this were not a jurisdictional defect, there would still be reasons why the mode in which the corporation became such should be pointed out. Although the statute says the information may be filed against “any person” usurping office in “ any corporation,” created by authority of this state, yet there must be very many oases in which the court would be at liberty to refuse to listen to the controversy. When the proprietors of a country store, or the members of a village library association, or the participants in a district school debating society, or an association of musical amateurs, may incorporate themselves under our general laws, and establish various grades of offices for the purposes of their organization, it can scarcely be seriously urged that the Supreme Court can be. required to settle all their contested elections and appointments in this proceeding. There are grades of positions denominated offices which do not rise to the dignity of being entitled to the notice of the Attorney General by information, if in fact there be not corpoi’ations which are not within the intention of the statute — upon which we express no opinion. An ixxformation filed in a case not proper for the consideration of the court, it should have the opportunity to dismiss in soxne preliminary stage of the case; and for that reason, if for no other1, it ought to have the facts set forth which would direct it to the law authorizing the corporation, prescribing its functions, and indicating the powers and duties of its officers. We ought to be able to see whether the office is one provided for by the statute, or whether, instead, it is created by some derivative authority; so that we may draw the line of distinction between those which are “ offices ” within the meaning of -the statute, and those which are rather the positions of agents or servants merely.

But the information is bad secondly, because of misjoinder of parties, and of causes of complaint. It may be proper that the two parties claiming to be wardens should unite in a proceeding to test the right of those in possession, and that the eight vestrymen should do the same. This might depend upon the mode of election. But no mode of election or appointment could authorize persons claiming different offices to unite their complaints and seek to determine the title to both offices in one proceeding, without a statute specially permitting it. There is no such statute in this state, and the difficulties in the way of making it of service are so great, that it could hardly be desirable that one should be passed. It is just as competent to test in one suit the right to the offices of sheriff and tréasurer of a county, as to those of wardens and vestrymen in a church. They may derive tlieir title from the same election, and the questions in dispute may be the same; but this is no more than will often happen when several offices of the same municipality are in contest at the same time. The misjoinder is as fatal as it would be for two persons having distinct and separate claims for trespasses committed by two others, to join in a suit to recover damages therefor. The similarity of. duties in the two offices, or the fact that the incumbents participate in the same duties, if such be the fact, can not change this fundamental rule in pleading.

We are of opinion that the demurrer is well taken. As on the ground of the misjoinder, if for no other reason, an amendment could not be allowed, the judgment must be final.

Christiancy J. and Martin Ch. J. concurred.

Campbell J. being a party, did not sit in this case.


source: Caselaw Access Project

license: Public Domain

text:
    People ex. rel. William H. Chapman v. Horatio Pratt.

      Quo warranto; Practice in signing stipulations. The Attorney General having control of the proceedings in quo wan'anto, he alone is authorized to sign stipulations of fact on the part of the people.

      Heard and decided July 10th.

    Quo warranto.
   This was an information in the nature of a quo warranto, to try the right to a public office. The case was sought to be heard upon a stipulation of facts, signed by the relator and defendant. It was held that as the Attorney General has control of the proceedings in such cases, that he alone is authorized to sign admissions of fact on the part of the people.

The case was continued as not in readiness for hearing.


author:
      Christiancy J.
      Campbell J.

text:
    Maria Chaffee v. Amos Chaffee.

      Divorce a mema et thoro: Alimony. The principles which should determine whether alimony should be allowed when a divorce a mema et thoro is applied for and denied, discussed, but not decided; the court being equally divided.

      Heard November 1st, 2d, 3d, 1866.

      Decided January 14th.

    Appeal in Chancery from Wayne Circuit.
    The bill in this cause was filed by complainant for a divorce a mensa et thoro, and for alimony.
    The cause was heard in the court below on the pleadings and proofs, and the bill was dismissed.
    The complainant appealed.

      Levi Bishop and G-.V.N. Lothrop, for complainant.

      JD. C. Holbrook and S. T. Douglass, for defendant.
   Christiancy J.

The bill was filed for a divorce a mensa et thoro, and for alimony, or a reasonable support and maintenance for complainant and her daughter Lizzie, a young lady about twenty-two years of age, alleged to be an invalid, unable to support herself, and compelled by the defendant to leave her home. . '

The case was heard in the court below upon pleadings and proofs, and the bill being dismissed, the case comes to this court upon appeal. A preliminary objection is taken by the defendant, that the bill does not make a case warranting the relief prayed. As we are all of opinion that the case made by the bill and sustained by the proof does not warrant a decree for the divorce prayed for, the objection to the sufficiency of the bill is only important so far as relates to the question of support and maintenance. The statute — Comp. L. §8268 —provides, “In case of an application for a divorce from bed and board, although a decree for such divorce be not made, the court may make such order or decree for the support and maintenance of the wife and children, or any of them, by the husband, or out of his property, as the nature of the case may render suitable and proper.” The denial of the divorce, therefore, does not of itself dispose of the case, and the court are bound to examine the evidence and consider the circumstances of the case with reference to the question whether a support and maintenance should not be ordered, notwithstanding the divorce is denied. This allowance for support and maintenance without a decree of divorce, is not a new feature found for the first time in this statute; it comes precisely within the original definition of alimony in the English law, which did not extend to cases of divorce, but was confined to cases where the wife lived separate without a divorce. — See Bishop on M. & Divorce, booh 5, chap. 19, §§ 350 and 351, and cases there cited.

But this allowance can only be made under this statute in case of an “application for a divorce from bed and board.” This must be such an “application” as is contemplated by the statute, and that is a proper bill for a divorce. The bill should, therefore, be one which, if sustained by proof, would warrant a decree for divorce from bed and board. In this view, and this only, the sufficiency of the bill becomes important in the present case.

There are but two grounds upon which it is or can be claimed that the bill makes a case for a divorce. First, cruelty to the wife; and, second, that the husband being of sufficient ability, has grossly or wantonly and cruelly refused or neglected to provide her a suitable maintenance.

The bill does not expressly charge cruelty to the wife, though it does charge “that for several years past the defendant has been exceedingly morose, irritable, captious, quarrelsome, abusive and tyrannical in his family; treating his children with great harshness, and sometimes with unnecessary violence, thus rendering his home and that of complainant exceedingly uncomfortable and unpleasant, as well for her and the family as for himself;” that during a severe and dangerous fit of sickness of their daughter Lizzie, he treated her with unkindness and harshness, and showed a determination either to turn her out of his house or to break up housekeeping, so as to deprive her of a home and its comforts. It also alleges that his temper has become so soured that he seems to hate all his children, and complainant with them; that he has frequently ordered them out of the house, and put them out by violence. (This last allegation is not claimed to apply to the wife, though from the context it might be so construed. )

Now, I do not wish to be understood to say that cruelty to children might not be carried to such an extent as to constitute cruelty to the wife, especially under our statute, which does not, like the Eng-lish decisions, restrict the definition to acts of personal violence to the wife, or bodily harm' actually inflicted or reasonably apprehended — a definition which, like some other relics of barbarism in the English law, ignores the human soul, with all its susceptibilities of suffering tortures more intense than physical pain, and more certainly destructive of health and life. — See Evans v. Evans, (1 Hag. Con. 35) 4 Eng. Eg. 310, 312; Lockwood v. Lockwood, (2 Curt. Ec. 281) 7 Eng. Ec. 114, 115; 1 Bishop M. & Div. §§715 to 733; Rice v. Rice, 6 Ind. 105. And while I fully admit that the objection to the bill in this stage of the case is not to be treated with the same favor as if made by demurrer, yet I am inclined to think the allegation of cruelty as respects the wife is not sufficient to sustain the bill on this ground. But I think this point immaterial, because the bill is clearly sufficient on the second ground, of cruelty and wantonly neglecting and refusing to provide a suitable maintenance. His ability to do this is distinctly alleged, and that he was worth from $75,000 to $100,000; that he had a comfortable residence in the city of Detroit, reasonably well furnished, where he had lived for years; it also substantially charges that defendant had, without any fault on her part, and without just cause or excuse, turned her off and refused to allow her to live with him; that he peremptorily ordered her to quit the house, and go and board elsewhere; that she- did leave, in obedience to this order, taking with her such of the furniture as he permitted her to take, but, for sufficient reasons which she states, instead of going to board, that she hired a house, removed into it, etc., he remaining alone in his residence; that they have not since lived together, and that he has been requested to furnish her a support, but he has wantonly and cruelly neglected and refused so to do.

It is claimed by the defense that the allegations of the bill on this .point amount only to a charge that he determined to break up housekeeping, and ordered her to leave and go 'and board with him in some other place. I do not find anything ill the bill to warrant this construction.

Having thus driven her from him, and from her house, it was his clear duty to provide for her a sufficient support and maintenance, and his neglect or refusal to do so was, under the circumstances stated in the bill, both wanton and cruel.

The bill, therefore, sets forth sufficient ground for the divorce, if sustained by the evidence.

But the evidence does not sustain the bill, especially in reference to the charge that she was driven from him or her home by his peremptory order and against her will; and that she left solely in consequence of such order. This is the main ground upon which the divorce is claimed by the bill. Nor, if the bill could be held sufficient on the ground of cruelty, do we think the evidence shows a state of facts which, under all the circumstances of the case, would authorize a divorce on that ground alone. In fact the defendant so far from using any violence or threats against complainant is not shown to have used toward her any harsh language; but he was severe to his children, and had driven off two of them; one son and one daughter, and forbidden them to return; he had also intimated an intention of expelling a third, the last daughter who remained at home. The mother was warmly attached to the expelled children and to all her other children, and they were equally attached to her. She wished the children to be allowed to visit her, and felt the need of their society. The husband was displeased at this. It was a matter which weighed heavily upon the mother’s mind, and in some measure affected her health. The father, by nature of a severe and gloomy cast of mind, with little inclination to conversation, and little conversational power, jealous of his marital and parental authority; requiring most implicit obedience, firm even to obstinacy, never allowing himself to be questioned; Avith none of that delicacy of sentiment or of attention calculated to make him sympathize with her feelings or sufferings — was for some years before the separation in ill health, of a dyspeptic habit, and becoming more nervous, irritable, and gloomy — brooding over fancied wrongs, and less and less fitted to enjoy life himself, or to render himself in any respect agreeable to his wife and family. The difficulty in respect to the children had produced a state of Lill feeling between the husband and wife, and great mental suffering on her part. She had always been obedient and respectful to him, never using an unkind Avord. But this state of feeling continuing to grow worse, both parties, it seems, had for some time been thinking of a separation, or at least he had for some time contemplated breaking up house keeping and having her go and board at a public hotel or boarding house; whether he intended to board with her is quite problematical. And she on her part, though opposed to boarding out, was desirous of separating from him and keeping house with her daughter, where her other children, driven away by the husband, might visit her and make it their home.

And without going into a detail of the evidence, after a careful examination of it I am entirely satisfied that the separation finally took place by mutual consent; she, with his full concurrence, taking a large part of the furniture, and he assisting in the removal of a part of it; she going to keep house with her daughter, and he, remaining at his OAvn house and residing alone. And without, here, intimating an opinion Avhich party was most to blame for the separation, I am satisfied from the evidence that the parties could not longer have continued to live and cohabit together with any such degree of harmony as to render such cohabitation desirable. And that now after what has occurred, and this long, not to say, bitter litigation in which all the members of the family have been involved, there can be no reasonable liojje of such reconciliation as would render it desirable to attempt again to live together.

For these reasons I think it better for the welfare of both, and of the family in general that the parties should continue to live separate.

Under these circumstances and the separation having been by mutual consent the husband is bound, I think, to furnish the wife a support and maintenance to enable her to keep a separate establishment — that being necessary to her comfort — and to enable her to live in a style corresponding with the station in society to which they had attained, and in due proportion to his means.

He has refused to furnish her any support, and she has been compelled to rely for her support upon the liberality of her two sons, who have, much to their credit, supplied her wants and those of her daughter from their own earnings : she having no property of her own. This the defendant admits it is not reasonable the sons should be required to do. The evidence shows that he is amply able to furnish this support. It also shows that she has by hex steady industry, frugality and privations contributed largely to the competence he has acquired, and that such support and maintenance are therefore equitably her due, as a part of the fund acquired by their joint efforts.

But the maintenance should, I think, be confined to the wife. The daughter is above the age of majority, and however desirable it might be that she should be provided for with the mother, I can discover no recognized principle upon which it can be done by a decree in this proceeding.

I see no -reason for a reference to take proof and and report upon the property and means of the defendant or other circumstance affecting the amount of alimony. These matters were fully and specifically set forth in the bill, and distinctly put in issue, by the answer, and the proof taken is before us. (See 2 Bish. Mar. and Div. § 495.)

The bill alleges his property to be worth from $75,000 to $100,000, and his annual income to be $4,000 or $5,000. The answer states his property to be worth only from $30,000 to $35,000, and his income varying from $770 to $1,441 per year. Complainant’s testimony shows his property to be worth from $60,000 to $75,000, and his annual income nearly $3,000.

The defendant has offered no evidence upon the point. From the best estimate I have been able to make from the evidence I think one thousand dollars per year a reasonable allowance for her support and maintenance, taking into consideration the condition in life of the parties, and his ability.

The defendant among the other costs was, by this court, (14 Mich. 463,) ordered to pay the costs of making and printing the return; subject however to the final determination of this court upon the hearing, whether the same or part of the same should not be returned on account yof the unreasonable length of the record arising froin the great amount of irrelevant testimony introduced by complainant. And being now satisfied that the record was increased one-half by such irrelevant testimony and that induced by it, I think one-half the cost of making and printing the record must be paid by the complainant, or at her option deducted from the first installment of alimony under this decree. Such alimony should be paid quarterly in advance.

The decree of the court below dismissing the bill should be reversed so far as relates to alimony, and a decree entered in this court in accordance with the conclusions above stated.

Cooley J, concurred.

Campbell J.

I think with my brethren that no ground exists for a decree of divorce in this case.

Nor do I think it a proper case for alimony. Without' stopping to inquire whether the bill was maintainable on its face, I think the court should never allow alimony in the absence of a divorce, unless upon a very strong case of fault which should not fall short of gross and wanton misconduct. I feel very sensible of the extremely unfortunate condition of this family, but it is not owing to any desire to oppress or injure the wife. And I am not willing to establish a precedent which will tend in any degree to lessen the obligation of mutual forbearance between those who are joined for better and for worse. It is not contended that the separation was involuntary on the part of the wife, and while I can not but see that this litigation has made an unfortunate state of things still more difficult, yet I do not think defendant should suffer for any such consequences. No such family difficulty ought to be beyond reconciliation; but if it should continue so, I do not think that justice would be subserved by compelling defendant to bear the consequences of the household division, under the decree of a court charging such a responsibility upon him.

I fully agree that a more sorrowful state of affairs is not often brought before a court, but I believe that the policy of justice will be best subserved by leaving the parties to make such arrangements for the future as a proper sense of their past relations and calm reflection should dictate to both of them.

Martin Ch. J. concurred.

The court being equally divided, the judgment of the court below was affirmed.


author: Cooley J. Campbell J.

text:
    The People v. Jerome Slack.

      Marriage undo' the age of consent: Separation: Bigamy. When persons are. married, one of whom is over and the other under the age of consent, the former by the statutes of this State is bound by the marriage unless they separate by consent before the other reaches lawful age, and do not co-habit afterwards; or, unless the other refuses consent on arriving at that age. And a second marriage by the former, in the absence of such mutual separation, or of such refusal to consent, is bigamy.

      Heard January 9th.

      Decided January 14th.

    Error to Kalamazoo Circuit.
    The defendant was tried and convicted upon an information for bigamy.
    The facts and the exceptions to the ruling of the court are stated in the opinion.

      'William L. Stoughton, Attorney General, and A. Williams, for People: .
    I. There is but one question for consideration in this case, to wit:
    "Was" the said charge of the court a true reflection of the object of Sec. 3223, Comp. Laws, (considered in connection with Secs. 3224 and 3255, Comp. Laws,) as applied to this case?
    We think it was, and hold that to warrant a different charge, or to constitute such a separation as is contemplated by said Sec. 3223, it must affirmatively appear, from testimony introduced on the trial.

      a. That the separation, was the single fruit of the judgment and action of the party within the age of consent, at the time of the marriage.
    5. That the party within such age, occasioned the separation, as aforesaid, with the fixed intent of -avoiding or annulling the marriage forever.

      c. That such separation and intent were continued by the party within such age, till arrived at the age of consent; and that thereupon such party then deliberately annulled and determined the marriage. ■

      d. That the separation and annulling of the marriage, were in no wise induced by the fraud, fault, or procurement of the party who, at the time of the marriage, had arrived at the age of consent; and,

      e. That the party who was of full age at the time of the marriage, will not be allowed, at any time thereafter, by word or act, directly or indirectly, to annul or resolve the marriage void; thereby taking advantage of the nonage of the other party, or of his own wrong. — 1 Mich. 42.
    2. The foregoing views are strengthened by turning to and considering Secs. 3224 and 3255 Comp. L. Though provision is made by said Sec. 3224 for having a marriage supposed to be void or illegal, where the parties have separated during the nonage of one of them, “ upon the proof of the nullity of the marriage, declared void by a decree or sentence of nullity; ” yet, this privilege, by said Sec. 3255,- is expressly denied to the party who was of the age of legal consent at the time of the marriage,; ” and also denied to both parties “ when it shall appear that the parties, after they had attained the age of consent, had freely cohabited as man and wife.” —'Comp. L. § 3225. And looking at the common law which fixes the age of competency for marrying at twelve years for females, and fourteen for males; and at Sec. 3204, Comp. L. which changes those ages, for such purpose to sixteen and eighteen years, respectively; and carefully considering them in connection with said Secs. 3224 and 3255, it seems quite unsatisfactory to conclude otherwise than that the legislature, in incorporating these two sections, last recited, into our statutes, upon the subject of marriage and divorce, intended,

      a. That at no time, ancl in no manner, shall the party of full age when the marriage was solemnized, be at liberty to avoid or annul it; and,

      b. That the party within such age, at the time of the marriage, is also deprived of that privilege till reaching full age, and not then unless a separation, of the description aforesaid, had occurred before reaching such age, and was not followed by free cohabitation afterwards.
    Indeed, the construction of our statutes, as herein claimed, will be found, we think, to be the doctrine of the books, or in accordance with the weight of authorities. — Bishop on Marriage and Divorce, §19 to 29; Bars, on Con. 277-8, 568-4-5; 2 Green, Iowa, 879.
    8. The important and sacred character of the institution of matrimony, considered with respect to its divine origin and purposes in promoting morality, Christianity, and a well ordered society, can tolerate no easier, or less rigid construction of our statutes, touching marriage and divorce than that insisted upon by us. — 1 Bishop, Cr. B. §§876-9; Bishop on Marriage and Divorce, §§31-40. .
    The following authorities were cited as to the construction of statutes.- — -6 Johns. 103 ; 7 Id. .482, 492, 503 ; 8 Id. 41; 9 Id. 356; 10 Id. 461; 12 Id. 175; 15 Id. 510; 3 Mass. 523 ; 5 Id. 380 ; 7 Id. 451; 22 Pick. 571; 3 Beam. 158 ; 4 Md. 335; Black, on Tax Titles, 600-627.
    We submit, therefore, in conclusion, that the defendant has no right to a construction which will evade the purposes of said Bees. 3223-4 and 3255. Coming here as he does, for aught we can see, with unclean hands, seeking to take advantage of his own wrong, by and through a construction of our statutes which would be fruitful in crime, we most respectfully, but earnestly, submit that he should be sent back from this court, with his request denied, and to receive the pains and penalties which a just and violated law pronounces upon him.

      Stuart, Edwards & Severens, for defendant.
    There is hut a single question in this case, and that is one of statutory construction.
    The court helow, held for the purpose of that trial, that the age of legal consent referred to in section 3223, Compiled Laws, is the age of legal consent as fixed by the common law — that being twelve years, in the case of a female.
    We insist that this was erroneous.
    Marriage, under the law of this state, so far as its validity in law is concerned, is a civil contract, to which the consent of parties capable in law of contracting, is essential. — Comp. Laws, § 3205.
    The section immediately preceding (3204) declares who are capable in law of contracting, namely, males of the age of eighteen, and females of the age of sixteen, if otherwise competent.
    Now, this last cited section supercedes the common law rule, or it is senseless.
    1. The chapters upon marriage and divorce, from which the preceding sections are taken, are in pari materia, and it is a cardinal rule, that all acts on the same subject-matter are to be taken together and examined, and construed with reference to each other. — Sedg. on Stat. and Const. Law, 247, 251; Doug. 30; 1 Burr. 445.
    Where there are different statutes in pari materia, though made at different times, or even expired, and not referring to each other, they shall be taken and construed together as one system, and as explanatory of each other. 20 Johns. 735 ; 9 Cow. 437; 15 Barb. 627; 6 Id. 60, 75; 9 Id. 161; Smith’s Com. 751, §§ 736, 639; 1 Kent’s Com. 463-4; 3 Mass. 21, 296; 8 Id. 423; 1 Fielc. 254; 10 Id. 235; 20 Id. 267, 407.
    2. Another fundamental rule of interpretation is that all the provisions of the statute upon the subject are to have their weight in fixing the construction of each, and such a construction of the whole is to be adopted as shall give effect to every provision, if possible; and shall make no part nugatory or senseless. — 2 Mich. 138; 5 Id. 114; 7 Gush. 53; 22 Pick. 573; 15 JL. T. 532; 1 Binn. 601.
    These rules plainly point to the conclusion that when the legislature in one section speaks of the “age of legal consent,” and they have already in another section fixed that age, they must have referred to the standard they had established. Any other rule of interpretation would make these statutes a snare to the common understanding.
    The Supreme Court of Ohio have held upon provisions in their statutes very similar, if not substantially identical with ours, that the common law was superseded, and that in a case where one of the parties was under the age of legal consent, as fixed by statute, at the time of the marriage, and there had been no cohabitation after arriving at that age — such marriage was void, and the parties might lawfully marry again. — 20 Ohio, 1; 2 Wharton, Grim. Law, § 2628 (5th ed.)
   Cooley J.

The defendant was informed against in the court below for bigamy. It was admitted by him on the trial that on the 29th day of May, 1864, he intermarried with one Electa A. Ogden, at Oshtemo, in this state, who was at the time under the age of sixteen years, and that before she arrived at that age she and the said defendant separated, and that they have not, since such separation, cohabited; and that said defendant, claiming such marriage to be void, afterwards, on the 4th day of November, 1865, was again married to one Auleda Beecher — the said Electa being then living. Upon this admission, and certain evidence supporting it, and which also showed that said Electa was more than twelve years of age at the time of the first marriage, the Circuit Judge was asked to charge the jury, that if said Electa was under the age of sixteen at the time of the first marriage, and that the parties separated before she arrived at that age, and did not at any time afterwards cohabit, they must find the defendant not guilty. This request the judge refused, and charged the jury, among other things, as follows:

It is proved that the said Electa Ogden was, at the time of her said marriage with the defendant, over the age of twelve years, and under the age of sixteen years, and that they cohabited as husband and wife from the time of said marriage for a short time, when, and before the the said Electa had attained the age of sixteen years, the parties became separated and ceased to cohabit as husband and wife, and have not cohabited as husband and wife, or lived together since. The defendant’s counsel, on these facts, aslcs the court to advise you that the marriage with said Electa Avas and is void, and that, therefore, you should find the defendant not guilty. Having serious doubts upon this question, and believing that it ought to be considered by the court of last resort, for the purposes of this trial, I advise you that, the said facts do not show said marriage with said Electa to have been void, and that, therefore, you ought to find the defendant guilty.” The defendant Avas accordingly convicted, and the correctness of this charge is the sole question brought up for review.

We are all agi’eed that this charge cannot be supported, and that a new trial should be directed. The age of legal consent is fixed by our statute at eighteen in males, and sixteen in females — Comp. L. § 3204 — and it is provided by another section that, “In case of a marriage solemnized Avhen either of the parties was under the age of legal consent, if they shall separate during such nonage, and not cohabit together afterwards, * * * the marriage shall be deemed void without any decree of divorce or other legal process.” — Comp. L. §3223. It was suggested rather than urged, on the argument, that the age of legal consent intended by the section quoted, was that of the common law, which, in the case of females would be twelve years; but we think there is no foundation for this suggestion. When one part of the statute fixes the age of consent, we should do violence to the plain intent of the legislature if we should hold that the “ age of legal consent ” mentioned in any other part of the same statute meant anything else than the legal age thus fixed. The common law rule having been abrogated in this state, there is nothing to which we can refer this phraseology but the rule which the statute has thus substituted.

The only doubt any of us have had upon this point arises from the someAvhat ambiguous character of the admission in regard to the separation, and the charge based upon it. We are all agreed that if the separation takes place Avith consent of the party under age, and cohabitation is not resumed after such party attains the age of consent, the marriage is thereby rendered null, while we are not agreed that the party who is of competent age can, by his OAAn act, annul it. But as the charge of the court would cover the case where the separation Avas by mutual consent, as well as a case of desertion by the competent party, we think there should be a new trial, that the jury may have an opportunity to determine Avhether this case was the one or the other.

The question then arises as to the directions to be given for the conduct of the new trial. It is insisted by the defendant that, under the statute' quoted, either party is at liberty to annul the marriage at any time before the one under the age of legal consent shall attain it, and that either is then at liberty to marry again. I do. not think this is the law under our statute.

At the common law, it was undoubtedly the rule that the right to annul the marriage continued with one party as long as it did with the other. — Reeves Dom. Rel. p. 200. But as this subject is fully covered by statutory provisions in this state, we .have only to see Avhether those provisions have introduced any change in this particular. That they were intended to do so, seems to me very clear.

If we look no further than the statute above quoted, it is difficult, I think, to avoid the conclusion that the separation spoken of is something other than the abandonment by the party over age of the person who is within the age of consent, and who will usually be induced to enter into the marriage by the arts and solicitations of the other. There are so many and so powerful reasons against a rule which leaves females who have reached the age of puberty,'but are not yet sixteen, at the mercy of the wiles of designing men, who, after enticing them into a marriage with all the solemnities of the law, may then desert and abandon them with impunity, that we are not disposed lightly to conclude that it was designed to adopt it as a. statutory rule. And I do not think apt words are employed for the purpose, if such was the intent. Where a man competent to contract marriage enters into the relation with one who lacks the capacity to give binding assent, and. after a brief cohabitation, against her will abandons her, the act is not properly a separation, but a desertion; and the latter is the proper term to apply to it. And as such a desertion would commonly be a great wrong to the female, and shock the moral sense of the community, we should naturally look in the statute for penal provisions, rather than for those which would not only exempt the wrong doer from any punishment, but allow him with like impunity to repeat the process elsewhere so often as he may find a confiding female who will yield to the proposals he makes, accompanied as they are with all the appearance and form of honesty and honor. For the marriage being only voidable, and' not absolutely void, all the consequences of a legal marriage flow from it until it is avoided; it could not be punished as seduction, nor has any statute in any way attempted to make it criminal. I do not think this section can fairly be held to protect such a desertion; but, on the contrary, that it refers only to the separations which are brought about by the mutual consent of both, or by the refusal of the party under legal age to assent to further cohabitation.

But another section of the statute seems to me to place the construction of this beyond question. Section 3255 of the Compiled Laws provides that “A bill to annul a marriage on the ground that one of the parties was under the age of legal consent, may be exhibited by the parent or guardian entitled to the custody of such minor, or by the next friend of such minor; but in no case shall such marriage be annulled on the application of the party who was of the age of legal consent at the time of the marriage, nor when it skall^ appear that the parties, after they had attained the age of consent, had freely cohabited as man and wife.”

Here is an express prohibition of the judicial annulment of the marriage on the application of the party who was competent to contract. It seems to me incredible that legislature could ever have enacted this provision if they supposed that by another section in the same statute they had empowered such party to annul the marriage upon his own motion alone. There are manifest reasons why it would be proper that a judicial decree should be had in any such case; and I am unable to conceive of any for prohibiting it. If the marriage is to be annulled at the option of the competent party, it would still seem desirable that he should apply to the proper court for its decree in the premises, that any doubtful question of fact might be judicially settled, and also that the court might be enabled to direct the making of proper provision for the children of the marriage, if any. There are the same reasons for his filing a bill for the purpose, as for the other party or her natural or legal protectors doing so, unless the intention was to make the marriage absolutely binding upon him at her option. And it appears to me from the statute first above quoted, taken in connection with this, that such was clearly the legislative intent. Prohibiting the party from applying to have the marriage annulled in equity, if he has the power in his own hands, was, to say the least, a work of supererogation, as parties are not likely to ask permission of the courts to do an act which they have the right to do without permission, especially when the proceeding would be accompanied with considerable expense to themselves.

I think the .circuit court should' be advised that it is the opinion of this court that a new trial should be granted, and that it is also the opinion of this court that the said first marriage was binding upon the defendant upon the facts shown, unless the separation was by the mutual consent of the parties, or by the refusal of said Electa to continue the cohabitation after reaching the age of consent.

Ciiristiancy J. concurred.

Martin Ch. J. did not sit in this case.

Campbell J.

I concur with my brethren in granting a new trial in this cause, for the reason that the marriage with prisoner’s first wife was before the statutory age of consent had been attained, which has superseded the common law period. I concur, also, that a separation by mutual consent before such age was reached, and without subsequent cohabitation, would prevent the marriage from having legal validity.' But I think the statute goes somewhat further in this respect than it seems to them to extend, and that defendant would not be required to show on the new trial that the separation was by mutual consent.

At the common law, there can be no doubt but that a marriage contracted while either party was under the age of consent might be annulled by either, and no preference was given to the person- under age 'over the older one.

And I understand the effect to have been $hat the marriage was of no complete and absolute validity, until the arrival of both parties at the legal age enabled them by their conduct to affirm it, if they so desired. Up to that time, it was always subject to defeat by either. And, while there are undoubtedly many reasons which render such an unsettled condition very unfortunate, yet it would be, in my judgment, a greater and more dangerous anomaly, to have marriages which bind one party and do not bind the other. Our statutes, after fixing the age of consent, proceed to declare expressly that “marriage, so far as its validity in law is concerned, is a civil contract, to which the consent of parties capable in law of contracting is essential. — 2 G. L. § 3205.” I can not reconcile this language with the idea that the legal consent of one party can create a marriage, when the consent of the other is wanting. And I think the provisions on this subject in the next chapter of the statutes, concerning divorces, do not weaken this conclusion, but rather strengthen it. The second section (§ 3223 of the Compiled Laws), if standing alone, would, as it appears to me, hardly admit of any other meaning. It declares that in case of a marriage solemnized when either of the parties was under the age of legal consent, “if they shall sepa/rate during such nonage, and not cohabit together afterwards, the marriage shall be deemed void without any decree of divorce, or other legal process.”

This language is not consistent with the idea that the marriage is voidable only, nor does it seem intended to introduce any new rule on the subject. “ Separation” does not in itself mean necessarily that both parties agree to it. Such is not its popular meaning, nor has it any such settled legal meaning. The validity of the marriage must depend on consent give# after reaching the legal age, by the acts or conduct of the parties; and if they are not then, or subsequently, living in marital relations, there is nothing to reach back to the previous union, and nothing which can make it valid, therefore, by ratification. A marriage once valid can only be dissolved by a divorce, and the statute expressly declares no legal process shall be required in these cases.

It is, however, held by my brethren that the subsequent sections, which authorize parties to bring suits to establish the nullity of the marriage, inasmuch as they are confined to the party under age, govern the previous section, or at least signify the intent which should be deduced from the •entire statute. I do not copcur in this view. If such was the meaning of the second section, I think there could have been no reason to make an express provision prohibiting suits in chancery from being brought by any except the minor under the age of consent. And the fact that this prohibition is confined to proceedings in chancery, furnishes a strong argument against its applicability to cases where no such proceedings are sought or needed. For while we may very well say, as a matter of prudence, that a decree of nullity is always desirable to avoid difficulty, yet the statute declares expressly that it is unnecessary, and only permits, without requiring or recommending it. If there were not other cases where a remedy in equity is confined under analogous conditions, I should concede the very great force of the argument in favor of confining the election to the party under age. But it is one of the most familiar principles of equity that there are many contracts and liabilities which equity as well as law regards as void, but against which equity affords no relief whatever, or, in some cases, affords only modified relief upon equitable conditions.

There are very many illegal and void acts which equity will not relieve against at all, and others where it will only relieve one party. For ex&xple, where usury avoids an agreement, equity will not enforce it; but, on the other hand, it will not relieve the borrower unless he will pay the debt with legal interest. And in relation to marriages, while the policy of the law is certainly very clear against allowing them to be contracted by persons under age, yet I can very well conceive why a court of equity, even without any statute, might decline to aid a party who has been in fault. And this statute, while it does not profess to go upon the ground of fault (because the older party may have acted in perfect good faith), has doubtless assumed that in most cases the person under age is least to blame, and has, therefore, given to that person a privilege of suit which it has denied to the other.

The question of interpretation is not one upon which our ideas of policy can have very much bearing, as, after all, the language of the statutes must govern. There is, it must be admitted, a great danger of abuse, but even here it does not seem at all certain that the evils are’not as incident to one interpretation as the other. While males of over eighteen may abuse the confidence of young women under sixteen, yet if this is done, and they then desert them, I can see no difficulty in reaching such cases under the laws punishing seduction. And where the female is over sixteen, and the male under eighteen, then it is, under this construction, entirely at his option, and not at hérs, to repudiate the connection. In other countries, and I suspect here, also, there is as much fraud committed by entrapping young persons over the age of consent into undesirable marriages with those who are under, as there is by any other misconduct concerning such marriages; and both parties are often mere puppets in the hands of others. Our laws, by raising the ages, have lessened this danger, but the woman is still able to marry at an age when she is easily imposed upon, and her husband may be within the smallest period less than two years older, and have a means of avoiding a marriage which she can not, under this rule, recede from.

In this, as in other relations, parties must be held to a knowledge of the law; and the cases can not be very-numerous which would render it desirable to enable one party rather than the other to recede from an illegal marriage. But be this as it may, I can not but regard our statutes as placing them upon an entire equality, except in the one case of commencing suits in equity.

While, therefore, I agree in ordering a new trial, I think it is not necessary that the marriage in the case at bar should have been repudiated by the wife.