author: Hookeb, C. J.

text:
      In re COX.
    1. Criminal Law — Violation or City Ordinance — Eight to Jury Trial — Constitutional Law.
    One charged with a violation of a city ordinance regulating the use of public places, though subject to imprisonment therefor, is not within the constitutional guaranty of the right to trial by jury.
    2. Same — Waiver.
    A provision of a city charter to the effect that, in prosecutions for violations of the local ordinances, a failure to demand a jury trial shall be deemed a waiver of the right thereto, is not repugnant to the Constitution.
    3. Same — Unreasonable Punishment.
    The fact that the legislature has seen fit to permit the sentence of felons to the Detroit hopse of correction, provided by that city for the reception of offenders against its ordinances, does not render an ordinance prescribing confinement in that institution as the penalty for its violation void for unreasonableness.

      Certiorari to recorder’s court of Detroit; Phelan, J.
    Submitted March 11, 1902.
    Decided March 13, 1902.

      Habeas corpus and ancillary writ of certiorari by Blanche B. Cox to secure her release from imprisonment in the Detroit house of correction.
    Writs dismissed.

      James H. Pound, for petitioner.

      Charles E. Love, Assistant Corporation Counsel, for respondent.
   Hookeb, C. J.

Blanche B. Cox, a leader in a religious society known as the “Salvation Army,” was convicted of violating an ordinance of the city of Detroit which restricts the use of public places. The validity of this ordinance is attacked, but this was sustained in the recent case of Love v. Judge of Recorder’s Court, 128 Mich. 545 (87 N. W. 785). The defendant was tried by the recorder without a jury, and upon conviction she was sentenced on the 3d day of March to pay a fine of $15 forthwith, in default of which she be confined for 12 days in the Detroit house of correction, and that, pending certain proceedings in the Supreme Court, she be remanded to the sheriff of Wayne county. Her counsel questions the validity of the conviction, upon the ground that she should have been tried by jury; and that of the sentence, upon the ground that, in providing for imprisonment in the Detroit house of correction, it is unreasonable, the house of correction being a place where felons are confined.

The fourteenth amendment provides that “no State shall deprive any person of life, liberty, or property without due process of law;” and our own Constitution, of earlier date, contains a similar provision. Due process of law is quite uniformly held to give to all persons on trial upon criminal charges the right of jury trial; but it has, perhaps, been as uniformly decided that trial by jury was not included in due process of law as applicable to violations of municipal by-laws, proper, which relate to acts and omissions that are not embraced in the general criminal legislation of the State, and punishable by fine. Among these are municipal regulations concerning markets, streets,- waterworks, parks, and various other matters regarding which local conditions and interests demand different regulations than are called for in rural communities ; and many authorities hold that such acts and omissions are not crimes and misdemeanors to which the constitutional right of trial by jury extends. Due process of law antedated our Constitutions, which protect and preserve it, as pre-existing, and such due process of law recognized summary enforcement of municipal by-laws. In England the distinction has been between offenses known as “pleas of the crown,” when the trial must be by jury, and petty offenses, punishable by fine or amercement. Judge Dillon, in discussing the question, says:

“ If no imprisonment for the violation of the municipal regulation is authorized, it is clear that the prosecution is not criminal, and there is no constitutional right to a trial by jury. But if a limited imprisonment on default of paying a fine, or even as part of the punishment, is authorized by the' legislature, this does not necessarily make the case, if it be for a violation of a mere municipal regulation, one to which the right of a trial by jury extends. The question depends, rather, we think, upon the intrinsic nature of the offense.” 1 Dill. Mun. Corp. (4th Ed.) § 433.

See, also, Id. § 411.

There is some conflict of authority when the violations are punishable by imprisonment, and where the proceedings are in form criminal, but we think the weight of authority sustains summary conviction, even in such cases. See 1 Steph. Hist. Cr. Law, chap. 4, p. 122. In Byers v. Com., 42 Pa. St. 89, it was held that a person arrested and tried under an ordinance of the city of Philadelphia providing for the commitment to prison of professional thieves, burglars, etc., had not the right to trial by jury. See, also, Rhines v. Clark, 51 Pa. St. 96, and Callan v. Wilson, 127 U. S. 553 (8 Sup. Ct. 1301). This court has held that cases under municipal ordinances proper do not rise to the dignity of criminal proceedings, and that neither a writ of error nor exceptions before sentence would lie. People v. Jackson, 8 Mich. 78, 110, 262; Cooper v. People, 41 Mich. 403 (2 N. W. 51); Webster v. City of Lansing, 47 Mich. 192 (10 N. W. 196). In this connection, see People v. Vinton, 82 Mich. 39, 45 (46 N. W. 31); Village of Northville v. Westfall, 75 Mich. 603 (42 N. W. 1068).

As a corollary to the absence of a constitutional right of trial by jury, it is competent for the legislature to provide that a failure to demand a trial by jury should be a waiver of the right to such a trial. Again, in Ward v. People, 30 Mich. 116, it is held that trial by jury may be waived, and this doctrine has been since recognized in City of Grand Rapids v. Bateman, 93 Mich. 135 (53 N. W. 6), and People v. Steele, 94 Mich. 437 (54 N. W. 171); and while the language of Mr. Justice Christiancy in Ward v. People, supra, indicates that a waiver cannot be implied, but must be express, his associates did not assent to so strict a rule, and the question was not passed upon. The statute applicable to this case provides, in substance, that a failure to demand a jury trial shall be a waiver of the right, and we think it competent for the legislature to prescribe a rule upon this subject. It would not be in accord with common experience to suppose that one sufficiently posted in criminal procedure to stand mute, or to advise a client to do so, would be ignorant of the right to jury trial, and no hardship can be expected to follow such a law.

The other questions relate to the reasonableness of an ordinance providing for confinement in the house of correction. This is a penal charge. The ordinance imposes a penalty upon certain conduct. The- law has never drawn a line between acts malum prohibitum and acts malum in se, as to the place of punishment. The public interest may require that private persons forego certain of their rights, and may punish acts involving no moral turpitude; and a conscientious belief that the law is unwise or unjust does not excuse disobedience. If, as counsel sought to urge upon us, the method adopted by the society of which the prisoner was a member was to seek men upon the highways and in the public places, by holding public meetings there, they were still amenable to the will of the majority in the regulation of such places, just as any other person or society is. We can discern a great difference between a common tramp, vagrant, or disorderly person, and this respondent, and appreciate her reluctance to be put on a level with them as to place of confinement; but a community cannot have a different place of confinement for each class of offenders. The jail is the place where all petty offenders expiate their offenses, or await trial for more heinous crimes. The city of Detroit has provided a house of correction for the reception of offenders against her ordinances. The legislature has seen fit to permit felons to be sentenced to the same place. The expediency of such legislation is a question for the legislative branch. It might be a wise public policy to pass laws for the separation of classes, and, to some extent, this has been done; but the lockup or jail has always been the place of confinement for all classes of petty offenders, regardless of their degrees of degradation, and as to adults, at least, there is some force in the suggestion that there is a way to avoid such contamination, and that is by obedience to law, even though it be believed to be unjust or invalid, until it can be repealed, or tested in some other way. We cannot assume, however, that it is the practice of the city authorities to confine civil debtors, juvenile offenders, or others entitled to consideration, with the greater criminals or lower characters, although in the same building or public institution. This record raises no question of that kind, and, being silent upon the subject, we must assume that the officers of the house of correction obey the law in the disposition of offenders committed to their custody.

We have attempted to discuss all reasons suggested which would entitle the defendant to a discharge from imprisonment.

The writs will be dismissed.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    WATERS v. UNION TRUST CO.
    1. Church Building — Conditional Subscription — Presumption.
    Where a sum is subscribed for the building of a church on condition that other subscriptions, aggregating a certain amount, axe obtained, and subsequent subscribers know of the former subscription, it will be presumed that their subscriptions are made in reliance on the earlier subscription, though it is an instrument complete in itself, and separate from the other subscriptions.
    2. Same — Consideration.
    Unconditional subscriptions to a church building fund, made after the making of a subscription conditioned on the obtaining of other subscriptions aggregating a certain sum, and in reliance on the conditional subscription, constitute a sufficient consideration to support the conditional subscription.
    3. Same — Death of Subscriber — Revocation.
    Where a subscription to a church building fund is supported by a good consideration, the death of the subscriber does not operate as a revocation thereof.
    4. Same — Construction of Subscription Contract.
    Where a subscription to a church building fund is conditioned on the obtaining of other subscriptions aggregating a certain sum, an option therein giving the subscriber the privilege of paying his subscription in annual installments does not operate to require the other subscriptions, which are a condition precedent to his liability, to be all made prior to his death, in order to render his subscription binding.
    5. Same — Performance of Condition — Question for Jury.
    Where a subscription to a church building fund, conditioned on the obtaining of other subscriptions aggregating a certain sum, does not fix the time for the performance of the condition, the question whether a performance thereof 3£ years later was within a reasonable time is for the jury, in a proceeding to enforce the conditional subscription; in determining which question the fact that the conditional subscriber was himself a' member of the building committee, to whom the subscription was payable, and paid an installment of his subscription shortly before the proceeding was instituted, may be taken into consideration.

      Error to Wayne; Brooke, J.
    Submitted November 13, 1901.
    Decided March 18, 1902.
    William 0. Waters and others presented a claim against the estate of Hervey C. Parke, deceased, upon a subscription. The claim was disallowed by the commissioners, and claimants appealed to the circuit court. Prom a judgment for claimants on verdict directed by the court, the Union Trust Company, executor of the last will and testament of decedent, brings error.
    Reversed.

      Wells, Angelí, Boynton & McMillan (Edwin E. Conely and Orla B. Taylor, of counsel), for appellant.

      Elliott 6r. Stevenson and Leo M. Butzel, for appellees.
   Montgomery, J.

Decedent subscribed $5,000 to assist in the building of a church, to be paid to the building committee “only when the full sum of $30,000 shall be subscribed for the purpose stated above; and said $5,000 to be paid, at my option, in installments of $1,000 annually.” There was no other subscription attached to the same paper. At the time of decedent’s death, about three years later, less than $15,000 had been subscribed, in addition to Mr. Parke’s $5,000. There was testimony that, in soliciting subscriptions, use was made of the fact that Mr. Parke had made this subscription, and that most of those who subscribed knew of that fact. Subsequent to Mr. Parke’s death, and before the hearing of the claim by the commissioners, though not before the filing of the claim, enough additional subscriptions were obtained to bring the total above the required $30,000. Claimants’ witnesses testified that all the subscriptions were made in good faith, and were collectible, and there was no testimony introduced to the contrary. Mr. Parke paid $1,000 upon his subscription in his lifetime. The construction of the church has been going on since the date of this subscription, and most of the money paid in on the subscriptions at the time of Mr. Parke’s death (about $14,000) had been devoted to construction. No debt has been incurred. The circuit judge directed a verdict for claimants.

The principal question in the case is whether, at the time of Mr. Parke’s death, his subscription amounted to a contract upon a sufficient consideration, of was a mere revocable offer. Where subscribers to an object such as this all sign the same agreement, upon the same paper, it is not necessary to prove that the contested subscription was an inducement to others to subscribe and pay their money, or that they subscribed and paid in reliance upon it. That fact is presumed. As was said by Mr. Justice Christiancy in Comstock v. Mowd, 15 Mich. 244:

“None of them would be so likely to subscribe or pay but for this reliance [upon the payment to be made by each of the other subscribers], as without'it they would not expect the attainment of the common object.”

See, also, Underwood v. Waldron, 12 Mich. 73; Allen v. Duffie, 43 Mich. 1 (4 N. W. 427, 38 Am. Rep. 159); Conrad v. La Rue, 52 Mich. 83 (17 N. W. 706); First Universalist Church v. Pungs, 126 Mich. 670 (86 N. W. 235).

In the present case it seems to us that there is as much reason to presume that those subscribers who knew of Mr. Parke’s subscription made their subscriptions in reliance upon the performance of his promise as in reliance upon the subscriptions of those who signed the same paper with them. It is contended that, because his was the only conditional subscription, the other subscriptions were not made in reliance upon his, they being payable regardless of whether his subscription should become binding or not. But we think Mr. Justice Christiancy’s language, above quoted, aptly expresses what is meant by a subscription in reliance upon the subscription of another. Without Mr. Parke’s subscription, and without the performance of the condition upon which it depended, the other subscribers could not expect the attainment of the common object.

It is contended by counsel for the estate that, however the contract of Mr. Parke is construed, death worked a revocation of the contract. If the subscription were regarded as a mere offer, this contention would be sound. But, as we have seen, it is something more; it is a contract upon consideration. The cases cited by appellant to support the claim that death revokes such a promise as this are all cases where the decedent might himself have revoked the promise at the time of his death, and we think that the rule should apply only to such cases. It is very ingeniously argued that, because decedent had the option of paying the money in annual installments, he should have the right to fix the method of payment during his own lifetime, and the condition precedent to his liability was to be fulfilled before his death. The reference to the condition precedent shows the fallacy in this argument. If there were no condition precedent the option could cut no figure, even though it were to be exercised at a later date, which might fall after the death of the subscriber,

But we think the court was in error' in one respect. There can be no doubt that, to make this promise binding upon the deceased, it is essential that the condition precedent be performed within a reasonable time. The circuit judge evidently treated this question as purely a question of law. We think, however, that it involved a question of fact for the jury. In determining this fact, the jury would have a right to take into account the fact that Mr. Parke was himself a member of the building committee, and that he made two payments upon his subscription, •one of them only three months before his death. See Greenwood v. Davis, 106 Mich. 230 (64 N. W. 26).

For the error in withdrawing this question from the jury, the judgment will be' reversed, and a new trial ordered.

Hooker, C. J., Moore and Grant, JJ., concurred. JjONG, J., did not sit.


author: Grant, J.

text:
    RUMNEY v. DETROIT & MONTANA CATTLE CO.
    1. Contracts — Joint Liability — Set-Off.
    A contract between defendant corporation and plaintiff and his brother provided that the latter persons should, for an agreed compensation, take charge of cattle belonging to the corporation, provide sustenance therefor, and market them, keeping and rendering an account of their receipts and disbursements. Held, that there was no several liability on the part of plaintiff and his brother, entitling the corporation to set off alleged claims under the contract against plaintiff’s claim for dividends on stock owned by him.
    2. Appeal — Evidence—Presumption.
    Where the evidence is not contained in the record, it will be presumed that there was evidence to support the judgment.
    Error to Wayne; Hosmer, J.
    Submitted November 22, 1901.
    Decided March 18, 1902.

      Assumpsit by John G. Rumney against the Detroit & Montana Cattle Company to recover certain dividends on stock in defendant corporation. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff was the owner of some of the capital stock of the defendant company, and was entitled to a dividend upon the same for $4,736. To recover this sum, he instituted this suit, upon the refusal of defendant to pay. The defendant admitted the plaintiff’s claim, but sought to defeat recovery by a set-off. This set-off arises out of a contract made October 15, 1887, between plaintiff and his brother and the defendant, by the terms of which the defendant agreed to sell and convey to the Messrs. Rumney certain real estate and certain personal property then situated in Montana. The Messrs. Rumney were' to take charge of the cattle and other property of the defendant situated upon its ranch in Montana, for which they were' to receive an agreed compensation. The Messrs. Rumney were to provide hay, grain, and fodder on the ranch át cost prices. They were to market the live stock, the expenses thereof to be paid by the defendant. They agreed, also, to keep a full and complete account of moneys received and disbursed, and render an account thereof. The contract was not assignable without the written assent of the defendant. Further statement of the terms of the contract is unnecessary. The Messrs. Rumney entered upon the performance of the 'contract, and continued therein until September 26, 1888, when they, by the written assent of the defendant, assigned their interest in the contract to the Rumney Land & Cattle Company, which was organized by them, and of which they owned the most of the stock. • In their written consent it was expressly stated that the personal obligations of the Messrs. Rumney, imposed by the contract, were in no wise waived.
    The cause was referred to a referee. Testimony was taken before him, and he made a long finding of facts and law, covering 40 pages; finding for the plaintiff for the amount of his dividends and interest thereon. Exceptions were taken to this report, and were heard by the court below, overruled, and judgment entered for plaintiff. No testimony taken by the referee is returned. In his finding are the contract; certain proceedings taken by the directors of the defendant, as appears by the record kept by them; certain letters written by the secretary of the defendant to the plaintiff; and copies of the accounts rendered by the Rumney Land & Cattle Company, covering the years 1888 to 1893. It appears from the proceedings of the directors that on January 26, 1891, the accounts for March and September, 1890, and January, 1891, were referred to Mr. S. T. Douglas, a director, with authority to investigate as he deemed best as to the correctness, under the contract, of the items of the accounts, and his finding was to be final as between the parties to the contract; the finding to be submitted to the acting president for his approval. The defendant at the same time gave its note to the Rumney Land & Cattle Company for $3,581.74, but upon the agreement and stipulation that the note should not constitute ah approval of the items of the account until they had been examined and passed upon according to the above resolution. This note was renewed April 25, 1891, for $3,916.51. Mr. Douglas reported that the accounts up to January 1, 1891, showing a balance due the Rumney Land & Cattle Company of $3,581.74, were substantially correct. The referee reports that “there were some corrections to be made, but what they were, or whether they were in fact made, the proofs do not show.” He also reported that there was no proof as to whether Mr. Douglas submitted his findings to the acting president. There has been no other adjustment of accounts between the parties. The referee stated in his report:
    “Amounts charged the defendant company in the accounts rendered, at cost of production of hay, are estimates of such cost made by the plaintiff. The details of cost were not furnished the defendant, and the proofs do not show what the actual cost of production was, nor the details which the estimates include. The moneys collected by the Messrs. Rumney or by the Rumney Land & Cattle Company were not remitted to the defendant, but were credited to it in the various statements of account herein-before set forth.”

      Charles W. Casgrain, Edwin E. Conely, and Orla B. Taylor, for appellant.

      Russel & Campbell, for appellee.
   Grant, J.

(after stating the facts). 1. "Was the defendant entitled to set off against the individual claim of the plaintiff the joint debt of plaintiff and his brother, if it could establish such debt? The contract upon which defendant’s set-off is based is not a several contract. The learned counsel for defendant call the Messrs. Rumney “trustees,” and argue that each is individually responsible for what came into his hands, or for his transactions with the defendant. The contract contains not a sentence from which an individual liability can be implied. They jointly, and not severally, agreed to carry out the contract. Any act of each in pursuance thereof was the act of both. Each was liable for the acts of the other. Naturally, each would be engaged in performing different acts from the other, in performing the contract. Defendant could not sue each separately, and probably would not attempt to do so, in bringing a suit upon the contract.It is immaterial whether you call the Messrs. Rumney “trustees” or “contractors.” They are no more trustees than are any other parties to a contract whereby they agree to manage the property of another, and to render an account therefor. The contract creates no such trust as would be enforceable in a court of equity. Equity could only obtain jurisdiction on the ground of an accounting, which can as well be had at law, as was done here, by referring it to a referee. This is not a case of a joint and several note, which may be set off against the demand of either of the makers, as was done in Ferguson v. Millikin, 42 Mich. 441 (4 N. W. 185). For this reason alone the judgment of the court below is correct.

2. The merits of the set-off cannot be considered by this court. The evidence is not reported. The defendant’s claim appears to be based upon the theory that, under the contract, defendant was to pay the actual cost, only, of hay and other articles purchased and furnished by the Messrs. Rumney. The contract itself expressly provided that it shall pay them only the cost. The referee reports that the details of the cost were not furnished, etc.; but why they were not furnished does not appear. There may have been good reasons. The case was tried some 10 years after the goods were purchased. Were the original bills lost, without fault of the Messrs. Rumney ? If so, would they not be entitled to resort to proof, by those who are familiar, “of the estimates of such cost,” which means, we assume, testimony by those who knew the cost of such articles at the time and place ? Certainly the referee must have had testimony to satisfy him that the Messrs. Rumney had complied substantially with the contract in this regard, and had legally excused themselves for not producing the items of actual cost. In the absence of any statement to the contrary, we must assume that such proof was before him. To illustrate: In these accounts are items of hay furnished from September 30, 1888, to October 15, 1893, amounting in all to $18,860, according to the bills, which appear to have been seasonably rendered. These were objected to by the defendant because their actual cost was not shown. This large account must certainly have been the subject of testimony which satisfied the referee and the court below as to its correctness, and that the items therein mentioned were furnished substantially in accordance with the contract.

Other questions are raised, but, as the above is conclusive of the result, we need not discuss them.

Judgment affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. -Long, J., did not sit.


author: Moore, J.

text:
    WARNER v. AUDITOR GENERAL.
    State Officers — Salary— Increase — Constitutionality—Board of Auditors — Duties.
    Article 9, § 1, of the Constitution, provides that the State treasurer, secretary of State, and commissioner of the land office shall receive stipulated annual salaries, but no fees or perquisites whatever for the performance of any duties connected with their offices, and that the legislature shall not increase their salaries. Article 8, § 1, provides that such officers shall perform such duties as may be prescribed by law. Article 8, § 4, provides that the officers named shall constitute a board of State auditors, to adjust all claims against the State not otherwise provided for by general law. Act No. 171, Pub. Acts 1901, provides that the officers constituting the board of State auditors shall be paid annually $1,800 each, as compensation for services performed by them as members of such board not contemplated by the Constitution, and as a reimbursement for their traveling expenses as such members. Held, that the compensation provided for by the Constitution covers all duties lawfully imposed on such officers as members of such board, whether by the Constitution or by statute; and, the legislature not having undertaken to impose any duties not germane to the purpose for which the board was created, the act mentioned is unconstitutional and void.

      Mandamus by Fred M. Warner, Daniel McCoy, and Edwin A. Wildey to compel Perry F. Powers, auditor general, to issue warrants for the payment of salaries to relators as members of the board of State auditors.
    Submitted December 3, 1901.
    Writ denied March 18, 1902.

      Horace M. Oren, Attorney General (Roger Irving Wykes, of counsel), for relators.

      E. Eugene Haskins and Eugene F. Sawyer, for respondent.
   Moore, J.

This is an application for a mandamus to ■compel the respondent to issue warrants in favor of relators as members of the board of State auditors. The question involved is the constitutionality of Act No. 171 of the Public Acts of 1901. In considering the very important question involved, we have been greatly aided by briefs of exceptional ability by counsel on both sides of the case.

The act under consideration reads as follows:

“The several State officers constituting the board of State auditors shall be paid for the year nineteen hundred ■one, and annually thereafter, the sum of eighteen hundred dollars each as compensation for the services performed by them as members of said board of State auditors not contemplated by the Constitution of this State, and as a reimbursement for their necessary traveling expenses and hotel bills when traveling on State business, and in attending meetings of the hoard of State auditors, and meetings of other boards of which said officers are members, said amount to be in lieu of the reimbursement provided for in sections one hundred sixty-nine and one hundred seventy of the compiled laws of eighteen hundred ninety-seven, for dis[reim]bursement of expenses, and to be paid from the general fund on the warrant of the auditor general in the same manner in which salaries of the State officers are now paid.”
Its constitutionality is assailed upon three grounds, only one of which we deem it necessary to discuss, to wit, Is the act in conflict with section 1, art. 9, of the Constitution, which reads as follows:
“* * * The State treasurer shall receive an annual salary of one thousand dollars; * * * the secretary of State shall receive an annual salary of eight hundred dollars; the commissioner of the land office shall receive an annual salary of eight hundred dollars. * * * They shall receive no fees or perquisites whatever for the performance of any duties connected with their offices. It shall not be competent for the legislature to increase the salaries herein provided.”

Before this question can be answered, it is necessary to call attention to two other sections of the Constitution, which read as follows:

Section 1, art. 8. “There shall be elected at each general biennial election a secretary of State, * * * a State treasurer, a commissioner of the land office, * * * for the term of two years. They shall keep their offices at the seat of government, and shall perform such duties as may be prescribed by law.”
Section 4, art. 8. “The secretary of State, State treasurer, and commissioner of the State land office shall constitute a board of State auditors, to examine and adjust all claims against the State not otherwise provided for by' general law.”

This section also provides that these officials shall constitute a board of State canvassers, to determine the result of certain elections.

The attorney general contends — and there is a good deal of force in his argument — that:

“The duties performed by the State officers constituting the board of State auditors may be divided into three classes:
“1. Those imposed upon and pertaining to their duties as State ■officers.
“2. Those constitutionally imposed upon them as members of the board of State auditors.
“3. Those legislatively imposed upon them as members of the board of State auditors, being of a class not contemplated by the Constitution, but foreign to that instrument, and of a different and alien nature to those thereby imposed.

“The first two classes of duties are those imposed by the Constitution, and are within the prohibition against receiving fees or perquisites, and the inhibition upon the legislature to increase salaries.”

In an appendix to his brief he calls attention to a long list of duties imposed by statute upon the board of State auditors, and claims they come under the third class, and insists that, as to the duties imposed upon the board under the third class, the prohibition does not exist; that —

“ As the act in question limits the compensation which it awards to those services performed by the board of State auditors which are not contemplated by the Constitution, this is a legislative determination that duties not contemplated by the Constitution have been imposed upon this board, and that it is within the authority of the legislature to award compensation therefor.
“The early case of People v. Auditor General, 5 Mich. 193, supports the contention that the salary given by the Constitution was intended as payment only for duties constitutionally imposed, and those germane thereto; and in that case, which must be regarded as a contemporaneous judicial construction of the Constitution here in question, after speaking of the State officers constituting the board of State auditors and the duties imposed upon it by the Constitution, it was said:
“ ‘The salary is not given for one thing or for another. It is given to the governor, to the auditor, to the judge; and it must be understood, as it is plainly expressed, to be the salary for such duties as are imposed upon them officially by the Constitution. The same instrument creating the office, the duties, and the emoluments, they must all be held as belonging together, and constituting a complete guide to the whole matter.’
“Love v. Baehr, 47 Cal. 364; Melone v. State, 51 Cal. 549; Green v. State, 51 Cal. 577; State v. Weston, 4 Neb. 234.”

We will have occasion to refer to the case of People v. Auditor General, supra, further on, but it may be well to turn our attention for a moment to the other cases.

State v. Weston, supra, was a case which holds that the secretary of State is not ineligible to the appointive office of adjutant general, and there is nothing incompatible in the duties of the two offices, and there is nothing in the constitution of Nebraska standing in the way of his holding both offices, and therefore he is entitled to both salaries. In the same case it was said that, as to all acts or duties required of, the relator as secretary of State, he is confined to his salary of $3,000 per annum as compensation.

Melone v. State and Green v. State grow out of the same state of facts as the case of Love v. Baehr, and are controlled by it. In the last-named case Mr. Love, who was attorney general, sought to obtain, and was allowed, a salary as a member of the board of examiners. The case shows that the constitution of California is wholly silent as to the duties to be performed by the attorney general. Bearing this in mind, it may, perhaps, be useful to quote from the case:

“The constitution provides for the election of a secretary of State, controller, treasurer, attorney general, and surveyor general, but,is wholly silent in respect to the duties to be performed by either, leaving these to be prescribed by the legislature. The first question to be determined is whether the legislature has an unlimited discretion in respect to the nature of the duties which it may require to be performed by these officers.”

The court answered this question in the negative. As to what duties the legislature may impose on a State officer the court say:

“In the performance of this duty the legislature may rightfully exercise a wide discretion. It may assign to each of these officers any duties which, by the most liberal interpretation, can be held to come within the general scope of that class of duties which have usually appertained to such offices, as they were understood by the framers of the constitution. In cases of doubt it would be the duty of the courts, in deference to the legislative authority, to solve the doubt in favor of the power as exercised ; and they ought to interfere only in a clear case, when the legislature has manifestly transcended its authority by imposing upon one of these officers duties which, in their nature, are wholly foreign to his office. We proceed to inquire whether this is such a case.”

After enumerating the things which the legislature ordered the attorney general to do, the court proceeds as follows:

“Some of these services have not the slightest relation, even upon the most liberal construction, to the duties of an attorney general, as such duties were generally understood at the adoption of the State constitution, and as they were doubtless understood by the framers of that instrument. The business of counting money in the treasury, examining boobs of account, requiring the skill of an expert accountant rather than the professional learning of a lawyer, and the investment of public money in bonds, is wholly foreign to the duties of an attorney, and is no more cognate to them than the management of a State prison or lunatic asylum. The legislature has no more power to compel the attorney general to peform such service, as a part of the duties of his office, than it has to compel the superintendent of public instruction to take charge of the State prison, or to perform the duties of State gauger. The attorney general is, therefore, under no obligation to perform such services, and he may decline to perform them, without any breach of his official duty as attorney general.”

The court held that, though the legislature could not compel the attorney general to perform these new duties, still, if he voluntarily performed them, it might compensate him for this unofficial service by allowing him compensation in addition to his salary as attorney general.

As germane to the same subject, and to the proposition that, where a public officer is required to perform duties entirely outside of the line of his official duties, he is entitled to compensation therefor, and, in cases of those municipalities which are subject to suit, a claim arises which can be enforced in the courts, counsel cite City of Detroit v. Redfield, 19 Mich. 376; Ten Eyck v. Railroad Co., 74 Mich. 226 (41 N. W. 905, 3 L. R. A. 378, 16 Am. St. Rep. 633); Roulo v. Board of Auditors of Wayne Co., 74 Mich. 129, 134 (41 N. W. 879); Mayor, etc., of Niles v. Muzzy, 33 Mich. 61 (20 Am. Rep. 670); McBride v. City of Grand Rapids, 47 Mich. 236 (10 N. W. 353); Converse v. United States, 21 How. 463.

An examination of all of these cases, except Roulo v. Board of Auditors of Wayne Co., will show the duties imposed were not germane to those required by law to be done by the officer as an officer. He could do them or not, as he chose. They were duties outside of and different from his duties as an officer, which he might refuse to do if he desired; and it was held that, if he performed the duties, he might receive compensation for so doing. In the Boulo Case the right to compensation was upheld by a divided court; Justices Campbell and Sherwood being of the opinion he could not recover. The other Justices were of the opinion that, as the law of 1887 gave compensation for the additional service to all the counties in the State, not excepting Wayne county, the register of the latter county was not excluded from the compensation fixed by the law of 1887 because of the provisions of the local act 'passed in 1879. None of these cases establish the position of the relators.

Can it be said that any duties have been imposed upon the relators which they might lawfully refuse to perform? If so, our attention has not been called to them. It is true that more duties have been imposed upon them than they were called to do when the Constitution was adopted, more than 50 years ago, because of the fact that they are officers of a great and growing State. Nearly all of these new duties are requirements providing for the examination and auditing of claims against the State not otherwise provided for by general law. The others are of a transient character, and are germane to the duties of the office.

In this discussion it will not do to overlook the fact that not only are the offices of State treasurer, secretary of State, and land commissioner constitutional ones, but the board of State auditors is a constitutional board, made up of these constitutional officers. It comes into being because the Constitution created it. Its membership may not be added to or diminished except by a change in the Constitution. The relators are members of that board simply because they are State officers, and it is because they are State officers that the duties which devolve upon the board must be discharged by them. The one cannot be disassociated from the other. The identity of the board member and the State officer is the same. As long as he is a State officer he is, because of that fact, a board member, and the moment he ceases to be a State officer that moment he ceases to be a member of the board. It is because the relators hold the State offices which they hold that they constitute the board of State auditors, charged with the performance of the duties imposed upon that board.

In this connection it may be well to again refer to the case of People v. Auditor General, supra. Prior to the present organization of this court, under the Constitution of 1850, Judge Whipple was a circuit judge from January 1, 1852, until his death, in September, 1855, for which he received his pay as circuit judge. During all of that time he was also a member of the Supreme Court. After his death it was claimed by the administrator of his estate that he was also entitled to the amount of his salary as a member of the Supreme Court, inasmuch as there was a salary attached to that office. This claim was resisted, for the reason that, having received his salary as circuit judge, he could not receive compensation as a member of the Supreme Court. The Constitution at this time provided that the judges of the several circuit courts should be judges of the Supreme Court, four of whom should constitute a quorum. It was provided the circuit judges should receive a salary payable quarterly. Article 9, § 1, fixed the salary of the circuit judges, and also of the State officers, and then proceeds:

“ They shall receive no fees or perquisites whatever for the performance of any duties connected with their offices. It shall not be competent for the legislature to increase the salaries herein provided.”

It will be observed this is the same section of the Constitution we are considering. In the act of April Í, 1851, a salary was provided for the judges of the Supreme Court, and it was argued that, as Judge Whipple had discharged, the duties of both offices, he was entitled to both salaries. •Justice Campbell, speaking for the court, said:

“ ‘The judges of the several circuit courts shall be judges of the Supreme Court ’ is an exclusive provision, not open to qualification. They hold no separate commission. As judges of the circuit court, and in no other way, they hold the Supreme Court. Together they constitute the court; separately they are circuit judges. There is' under the Constitution, as applied to the Supreme Court first organized, no such thing as a Supreme Court judge, properly so called, out of court. Whoever, by the vote of the electors in any judicial circuit, was chosen to be judge of the circuit court, became, without further ceremony, invested with all the authority conferred by the Constitution in both courts. Every judicial officer is required by article 18, before entering upon the duties of his office, to take an oath to discharge its duties faithfully. An oath to perform the duties of the office of a judge of the circuit court would certainly cover any duty devolving upon the person elected.
“If the clause in question simply authorized a circuit judge to perform the duties of the office of a judge of the Supreme Court, there would, perhaps, be room for verbal criticism, the correctness of which it would require a comparison of the whole instrument to determine. As we must, in any case, regard the whole instrument, the difference would not be very serious. But when the law says the judge of one court shall he judge of another, it uses the strongest words the language affords to express absolute identity. When one ceases to exist, there is no survivorship. The language being so appropriate to convey this idea, and the judicial system being substantially as it was when a judge of the Supreme Court, who by law could hold no other office whatever, was nevertheless circuit judge, the most reasonable conclusion at which we can arrive is that there is but one office, properly so called, created by the Constitution.
“Is, then, the salary payable for the performance of one class of duties, or is it a remuneration for all ? As before remarked, it is payable by the State among the salaries of State officers. Three of those officers, in addition to their separate duties, constitute two boards, — a board of State auditors and a board of State canvassers, each-having many and onerous duties. Another is, ex officio, a member and secretary of the board of education. These duties are affixed to the offices by the Constitution itself. The provision against increase of salaries and fees and perquisites applies to all of them. It is very true that in their case, as in the case of circuit judges, it is said the officers shall constitute the boards; but if the officer must perform the duties, and if no one else can, it can require no reasoning to prove that what is thus incumbent on him is one of ‘the duties of his office.’ The salary is not given for one thing or for another. It is given to the governor, to the auditor, to the judge; and it must be understood, as it is plainly expressed, to be the salary for such duties as are imposed upon them officially by the Constitution. The same instrument creating the office, the duties, and the emoluments, they must all be held as belonging together, and constituting a complete guide to the whole matter.”

It is clear no one, under the Constitution, except the State treasurer, the secretary of State, and the commissioner of the land office, can discharge the duties of the board of State auditors. If Justice Campbell is right when he says, “But if the officer must perform the duties, and if no one else can, it can require no reasoning to prove that what is thus incumbent on him is one of ‘the duties of his office.’ The salary is not given for one thing or for another. It is given to the governor, to the auditor, to the judge,” — how can it be said the duties imposed upon the board of State auditors are not duties which pertain to the offices of State treasurer, secretary of State, and commissioner of the land office, who make up the .board of State auditors? Paraphrasing the language of Justice Campbell, “as State officers, and in no other way, they hold the sessions of the board of State auditors. Together they constitute the board; separately they are State officers.” Indeed, the act itself provides the compensation shall be paid to “the several State officers constituting the board of State auditors.” When the Constitution provides these officers “shall perform such duties as may be prescribed by law,” we are compelled to say it means, not simply such duties as are imposed by the Constitution, but such as are imposed by the statute as well. However much we may regret that the onerous duties so capably performed by the relators are not more amply rewarded, the conclusion is unavoidable that the people meant to control the salaries of the various State officers by fixing the amount thereof in the Constitution, and the remedy is with the people, and not with the legislature or the courts. If the contention of the relators can be sustained, the legislature, by imposing some duty upon any State officer not now required of him, may grant him such compensation as it deems wise, and thus render the provisions of the Constitution inoperative. See State v. Raine, 49 Ohio St. 580 (31 N. E. 741).

We are not unmindful of the rule of law that legislative acts are presumed to be constitutional, and that the power of declaring them unconstitutional should be exercised with extreme caution. Sears v. Cottrell, 5 Mich. 259; People v. Blodgett, 13 Mich. 127; Attorney General v. Preston, 56 Mich. 177 (22 N. W. 261); Cooley, Const. Lim. (6th Ed.) 218. On the other hand, when the legislature has exceeded its power under the Constitution, disagreeable as the duty may be, this court has no choice except to hold the law unconstitutional. McPherson v. Secretary of State, 92 Mich. 377 (52 N. W. 469, 16 L. R. A. 475, 31 Am. St. Rep. 587); Attorney General v. Pingree, 120 Mich. 550 (79 N. W. 814, 46 L. R. A. 407). We cannot resist the conviction that the effect of this legislation is to increase the salaries of three State officers, contrary to the provisions of the Constitution.

The writ is denied.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    ZIBBELL v. CITY OF GRAND RAPIDS.
    1. Municipal Corporations — Defective Sidewalk — Negligence —Evidence.
    In an action for injuries caused by a defective sidewalk, evidence of repairs to the walk subsequent to the accident is inadmissible as substantive evidence of negligence on the part of defendant.
    3. Same — Witnesses—Impeachment.
    A person injured by a defective sidewalk, who appears before the city council, and is examined orally in relation to the injury, her statements being reduced to writing, may be interrogated by the city, in an action against it for the injury, with reference to statements so made, without introducing the entire examination.
    3. Personal Injuries — Aggravation—Damages.
    Recovery cannot be had in a personal injury case for an aggravation of plaintiff’s injuries, due to her failure to follow the instructions of her physician.

      4. Same — Question for Jury.
    Where, in a personal injury case, there was evidence that plaintiff’s physician advised rest for the injured limb, and that plaintiff used the limb to a certain extent, it was error to instruct the jury that she did nothing to aggravate her condition, as the effect of the evidence was for the jury.
    Error to superior court of Grand Rapids; Newnham, J.
    Submitted December 12, 1901.
    Decided March 18, 1902.

      Case by Seddie Zibbell against the city of Grand Rapids for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Lant K. Salsbury, for appellant.

      E. J. Adams (Kirk E. Wicks and C. P. Campbell, of counsel), for appellee.
   Montgomery, J.

Plaintiff recovered a judgment of $3,500 for injuries received by a fall on a sidewalk alleged to have been defective. The testimony relative to the condition of the walk was in sharp conflict. It is conceded by defendant’s counsel that there was a case for the jury to pass upon, but numerous errors are assigned upon rulings during the trial, which are claimed to have prejudiced the rights of the city. We shall not attempt to discuss all the questions presented, as we do not think the same questions are likely to arise on a new trial.

Evidence was received of repairs to the walk, made after the injury to plaintiff. We have repeatedly held that such testimony is not admissible as substantive testimony of the negligence of the city. Fulton Iron Works v. Township of Kimball, 52 Mich. 149 (17 N. W. 733); Lombar v. Village of East Tawas, 86 Mich. 14 (48 N. W. 947). It is contended that the testimony was introduced in this case, not for the purpose of showing negligence, but to account for the manner in which the defective plank came into the possession of plaintiff’s witness. As the judgment must be reversed on other grounds, we need not determine whether the receipt of this testimony was prejudicial error, as its introduction on a new trial can be readily avoided.

The plaintiff appeared before a committee of the common council, and stated the circumstances of her injury, and her statement was taken down by a stenographer. On her cross-examination on the trial of the present case defendant’s counsel asked her as to certain statements alleged to have been made by her on the occasion referred to. The court ruled that these questions were improper, unless the entire transcript from the stenographer’s minutes was introduced. This ruling was error. Seligman v. Ten Eyck’s Estate, 53 Mich. 289 (18 N. W. 818); Toohey v. Plummer, 69 Mich. 345 (37 N. W. 297).

There was testimony that plaintiff, after receiving the injury, called a surgeon to treat her limb, and that he advised rest for the knee. There was also testimony that she did use her limb to some extent. The circuit judge charged:

“ The plaintiff is not entitled to recover any damages for any disability, suffering, or expense that resulted from her own failure to exercise proper and reasonable care after she received the injury of which she complains, which aggravated her condition, by failure to observe the instructions of her physician; and the city is not to be held responsible for any damages resulting from such neglect on her part.”

This instruction correctly embodied the law. Moore v. City of Kalamazoo, 109 Mich. 179 (66 N. W. 1089); Reed v. City of Detroit, 108 Mich. 224 (65 N. W. 967). But the difficulty arises out of the fact that, when counsel attempted to argue this question to the jury, he was stopped with the statement that the court would charge that there was no act of the plaintiff which aggravated her condition. This was error. The testimony was for the jury; and, while it may not have been very convincing that she had been guilty of any imprudence, it should not have been wholly withdrawn from the consideration of the jury.

The other questions do not require discussion.

Judgment reversed, and new trial ordered.

Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.


author: Hooker, C. J.

text:
    POUPARD v. JUDGE OF RECORDER’S COURT.
    1. Mandamus — When Lies — Interlocutory Orders.
    Interlocutory questions of pleading and practice are not reviewable on mandamus,
    2. Same — Contempt—Misconduct of Juror — Interrogatories— Privilege.
    Thus: Mandamus will not lie to compel the vacation of an order requiring a juror to answer interrogatories propounded to him in proceedings against' him for contempt of court consisting of improper conduct as a juror, on the ground that such interrogatories relate to occurrences in the jury room, which are privileged.

      Mandamus by Henry G. Poupard to compel Robert E. Frazer, acting judge of the recorder’s court of Detroit, to vacate an order requiring relator to answer certain interrogatories in a proceeding for contempt.
    Submitted January 7, 1902.
    Writ denied March 18, 1902.

      Charles W. Casgrain, for relator.

      Alfred Lucking, for respondent.
   Hooker, C. J.

The relator was a juror upon the trial of Edward Ascher for murder, duly sworn. At the conclusion of the trial he was arrested by order of the judge of the recorder’s court to answer for contempt of court upon charges of improper conduct as a juror upon said trial. In the course of this proceeding interrogatories were filed and served, whereupon a motion was made by counsel for the relator to strike out from the interrogatories Nos. 11 to 50, inclusive, upon the ground that whatever occurred in the jury room and between jurors during the course of the trial was privileged, and upon the further ground that to answer the same might tend to criminate him. The learned circuit judge, who was called upon to hear the proceedings in place of the judge of the recorder’s court, denied the motion, and made an order that relator answer said interrogatories by December 11, 1901. An application to this court for a mandamus to compel the vacation of said order was then made, and an order to show cause issued. The return shows that the second ground of the motion stated was abandoned at the hearing, and that the relator has not been required to make any answer that would tend to criminate him, but admits the making of the order that the relator answer said interrogatories.

This case does not differ from others in regard to the principles of practice applicable to it. We have frequently held that it is not the province of this court to intervene to review interlocutory questions of pleadings and practice by mandamus. The court must and will interfere, where necessary, to compel a court to proceed with a cause; but where it has jurisdiction, and is disposed to proceed, the appellate court awaits final disposition before reviewing the proceedings’. Counsel asserts that the importance and exigency of the case give relator the right to a decision of this question by the appellate court at this j uncture. We think this an exaggerated view of the importance of this question. Had these questions been put to a witness on the stand, and he required by the presiding judge to answer, his only remedy would be upon his exception, and no serious consequences of a public nature would be likely to follow from an improper invasion of the sanctity of the jury room. In this case the testimony is taken by a different method. If any serious errors have been or shall be committed by the judge (which he does not correct ) to the injury of the relator, he can call upon this court to correct them in the usual way in case of his conviction.

The writ is denied.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    GLOBE & RUTGERS FIRE-INSURANCE CO. v. JONES.

    Master and Servant —Corporations—Merger —Contract oe Employment — Breach.
    Where a corporation, which has contracted with an employé for a fixed term, voluntarily merges with another corporation, pursuant to the statute, before the expiration of that term, so as to form an entirely new corporation, such merger constitutes a breach of the contract, entitling the employé to damages, notwithstanding the statute authorizing the merger was in force when the contract was entered into. So held with reference to a contract between an insurance company and its general agent.
    Error to Wayne; Donovan, J.
    Submitted January 7, 1902.
    Decided March 18, 1902.

      Assumpsit by the Globe & Rutgers Fire-Insurance Company against James A. Jones for money had and received. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      John H. Bissell, for appellant.

      Chamberlain & Guise (A. C. Angelí, of counsel), for appellee.

      Rehearing denied June 11, 1902.

   Moore, J.

This is an action for money had and received. The defense is a set-off for damages from a breach of contract alleged by defendant to have been committed by the plaintiff.

Prior to March 1, 1898, the defendant, James A. Jones, was the local agent in Detroit for the Rutgers Fire-Insurance Company. On that date he was appointed general agent of the same company for the State of Michigan, under a written contract. The term of the appointment and the contract was five years from March 1, 1898. The defendant worked under the appointment from its date until about March 1, 1899, continuing his local agency for the same company. By the contract he was to render an account to the company monthly “on or before the 20th, and forward to said Rutgers Fire-Insurance Company a check to balance within 60 days of the close of each month.” Defendant, Jones, rendered statements of account as required by the contract, showing balances aggregating $1,464.01, but failed to make remittance to the company. The balances are the amounts, less all deductions, except for the returned premiums, of which there were $62.50 in March and April, and $295.32, Jones’ contingent commission of 10 per cent, on net profits at the end of each year, provided he continued in the performance of his duties under the contract. The balance due, allowing the items just mentioned, is $1,106.19, with interest from March 1, 1899.

On the 20th day of December, 1898, the Globe Fire-Insurance Company and the Rutgers Fire-Insurance Company, both corporations of the State of New York, doing business in the city of New York, were consolidated and merged in the Globe & Rutgers Fire-Insurance Company, the plaintiff in this case. This consolidation was effected under section 129, chap. 38, 2 Rev. Stat. N. Y., the material portion of which is as follows:

“ Upon filing such agreement, with such assent of the directors and stockholders and approval of the superintendent, or a duplicate thereof, in the office of the clerk of the county where the office of the corporation is located, and in the office of the superintendent, such corporations shall be merged into the corporation provided for in the agreement. The details of such agreement shall be carried into effect as provided therein. The corporation may require the return of the original certificates of stock held by each stockholder in each of the merging corporations, and issue in lieu thereof new certificates for such number of shares of its own stock as such stockholders may be entitled to receive.
“Upon such merger, all the rights, franchises, and interests of the merging corporations in and to every species of property and things in action belonging to them, or either of them, shall be deemed to be transferred to and vested in the new corporation, without any other deed or transfer, and the new corporation shall hold and enjoy the same to the same extent as if the merging corporations, or either of them, should have continued to retain the title and transact business. The new corporation shall succeed to all the obligations and liabilities of the merging corporations, or either of them, and shall be held liable to pay and discharge all such debts and liabilities in the same manner as if they had been incurred or contracted by it. The stockholders of the merging corporations shall continue subject to all the liabilities, claims, and demands existing against them, or either of them, at or before such merger.”

The defense to the plaintiff’s claim is that the Rutgers Fire-Insurance Company ceased to do business in the State of Michigan on or about the 30th day o'f December, 1898, and afterwards, by its voluntary act and deed, became consolidated with the Globe Fire-Insurance Company of New Yoi’k, and the said Rutgers Fire-Insurance Company wholly incapacitated itself by its voluntary act from performing its contract aforesaid. The defendant claimed to have heard rumors in September or October, 1898, that the stock of the Rutgers Fire-Insurance Company was to be purchased by persons connected with the Globe; that he first learned that the Rutgers had ceased to do business in Michigan in March, 1899, and learned about the same time of the consolidation; that he then — in March, 1899 — stopped all business under his contract, and took up all policies he had written in 1899. The general agency contract ran for five years from March, 1898. By it Mr. Jones was to be general agent for the Rutgers Company during that period. That company’s State license expired January 31, 1899, and was never renewed. The plaintiff did not qualify itself in Michigan till April 17, 1899, and its license expired January 31, 1900, and was never renewed. Mr. Jones had long been local agent for the Rutgers Company, and general agent from March, 1898. He testified the officers of that company were fine men, and the company a fine company, while he had objection to the men in control of the Globe. He said their reputation was that of wreckers, and that he objected to the character and reputation of the whole concern. He declined the general agency of the new company when offered him in May, 1S99, after he had severed his connection with the company in March, when he recalled the policies written during that year. Mr. Jones did not pay over to the company any of the moneys in his hands after October, 1898, and did not notify the company of any reason for failure to do so. The circuit judge ruled that the consolidation of the Rutgers Fire-Insurance Company with the Globe Fire-Insurance Company on the 20th of December, 1898, was a breach of the contract on its part, and that the defendant was entitled to recover damages therefor to the amount of the plaintiff’s claim against him for its money which he had withheld, if the jury found he had sustained that amount of damages.

Counsel for plaintiff says in his brief:

“The only question, then, to be reviewed on this record is: Was the consolidation of these two New York corporations a breach of the contract of March 1, 1898, between the Rutgers Fire-Insurance Company and the defendant, Jones?”

The following request states the claim of the plaintiff:

“The Rutgers Fire-Insurance Company is a corporation under the laws of New York. The defendant, in dealing with that company, and in making the contract of March 1, 1898, must be conclusively presumed to have dealt with the said company with full knowledge of its power and rights under the laws of the State of New York, and any act of said company authorized by the law of New York cannot constitute a breach of this contract.”

It will be noticed that, by the terms of the New York statute, the two corporations were merged in the corporation provided for in the agreement. This made a new corporation. 3 Cook, Corp. § 89?; Smith v. Railway Co., 114 Mich. 460 (72 N. W. 328). Is it true, as contended here, that, because one has contracted to render personal service for one corporation for a definite period of time, his contract for personal service may pass to a new corporation, made up of two or more corporations, by virtue of the merger of the two or more companies? In Wood, Mast. & S. § 91, it is said:

“When a person contracts to work for another for a term, the parties are treated as having contracted in reference to the personal qualities of each other, and the master cannot shift his liability by turning the servant over to another master before the term is ended, nor can the servant compel the master to accept the services of another person in lieu of his own. The consent of the parties is essential to effect a substitution, and this is true even though the servant is ill, and unable to labor himself.”

Litka v. Wilcox, 39 Mich. 94; Randall v. Chubb, 46 Mich. 311 (9 N. W. 429, 41 Am. Rep. 165); Lewis v. Sheldon, 103 Mich. 102 (61 N. W. 269); Edison v. Babka, 111 Mich. 235 (69 N. W. 499); City of Marquette v. Wilkinson, 119 Mich. 413 (78 N. W. 474, 43 L. R. A. 840).

Every one knows that insurance companies, like individuals, differ in reputation and methods of doing business. An insurance agent of large experience might be quite willing to act as State agent for one insurance company, when he would not be willing to work for another upon any terms. He has a right to say for whom he will work, and under a contract to work for one company he cannot be required to work for an entirely different company.

Judgment is affirmed.

Hooker, C. J., and Grant, J., concurred. Long and Montgomery, JJ., did not sit.


author: G-eant, J.

text:
    STEADMAN v. KEETS.
    1. Malicious Prosecution — Pleading—Probable Cause.
    Where the declaration in an action for malicious prosecution sets out fully the affidavit, warrant, and records of the alleged malicious suit, the defense of probable cause is admissible under the general issue.
    2 Same — Appeal—Questions Considered.
    On appeal in an action for maliciously suing out a capias for trespass to land, an objection that there was no proper proof of title in defendant to the land on which the trespass was charged will not be considered, where parol evidence of title was not objected to below, and the court was not asked to charge on that point.
    3. Same — Instructions—Proof of Malice.
    In an action for maliciously suing out a capias for trespass in removing timber from defendant’s land, a request to charge that “the willful overstatement in the affidavit for capias of the amount of timber taken by plaintiff * * * is competent evidence of malice” was properly refused, where the fact of an overstatement was not conclusively shown.
    Case made from Newaygo; Palmer, J.
    Submitted January 8, 1902.
    Decided March 18, 1902.
    Case by Charles Steadman against Edward Keets for malicious prosecution. There was a judgment for defendant, and plaintiff assigns error.
    Affirmed.
    This is an action for malicious prosecution. The declaration alleged that plaintiff was arrested upon a capias issued in a suit commenced by the defendant and one Loveless, charging him (plaintiff) with trespass upon certain lands owned by defendant and Loveless, and with cutting and removing certain cedar and pine timber therefrom, of the value of $215; that the affidavit for capias was made by defendant, and charged him with willfully and maliciously committing such trespass, and claimed treble damages; that plaintiff was held to bail by the order of the circuit court commissioner in the sum of $700; that he was arrested by virtue thereof, and imprisoned in the county jail from October 10, 1895, to February 1, 1896; that he was duly tried and acquitted. The declaration contains the other usual allegations in suits of this character. The plea was the general issue. The jury rendered a verdict for the defendant.

      E. L. Gray, for appellant.

      A. E. Tibbitts, for appellee.
   G-eant, J.

(after stating the facts). 1. The defendant was permitted to testify that he told his attorney all the essential facts, and that the suit was brought and affidavit made upon the advice of his attorney that the facts stated were sufficient to justify the affidavit and arrest upon a capias. This was objected to because no notice was given, with the plea, of the defense of probable cause. Counsel cites and relies upon White v. McQueen, 96 Mich. 249, 253 (55 N. W. 843). In that case the plaintiff was arrested without a warrant and incarcerated. The following day, complaint was made against him for a misdemeanor. The defendant sought to justify his arrest by showing that he had probable cause to believe that White had been guilty of a felony. This was held inadmissible under the general issue. That case has no application to a case like the present, where the declaration sets out fully the affidavit, warrant, and records of the suit the institution of which is claimed to be malicious. In such case the plea of the general issue covers the defense of probable cause. 13 Enc. PL & Prac. 458.

2. It is urged that there was no proper proof of title in defendant and Loveless to the land on which the trespass was charged. The parol evidence of title was not objected to, and the court was not asked to charge upon this point. Plaintiff will not, therefore, be heard in this court to make the claim.

3. Plaintiff requested the court to instruct the jury that “‘the Willful overstatement in affidavit for capias of amount of timber taken by plaintiff off of land by plaintiff in former suit is competent evidence of malice on the part Of the defendant in this action for malicious prosecution.” The request involves clearly a statement of fact, viz., that the affidavit contained an overstatement of the' amount of timber taken. This was not a fact conclusively proven. It was a question for the jury. If the request had been to instruct the jury that, if they found such overstatement, it was competent evidence of malice, the request should have been given.

The judgment is affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.