author: Brooke, J. Bird, J.

text:
    SAULT STE. MARIE HOSPITAL v. CHIPPEWA COUNTY TREASURER.
    1. Hospitals — Contagious or Infectious Diseases — Appropriating Public Money — Constitutional Law.
    Under section 11, Art. 8, of the Constitution, the power granted to counties to appropriate money, for the construction and maintenance or assistance of public and charitable hospitals, is limited to those institutions only where persons suffering from contagious or infectious diseases are treated.
    2. Same — Statutes.
    In so far as Act No. 139, Pub. Acts 1909 (3 Comp. Laws 1915, § 10854 eU seq.), purports to authorize counties to make appropriations for hospitals generally, where contagious and infectious diseases are not treated, it is' invalid.
    3. Same — Words and Phrases.
    The words “public and charitable institutions” as used in said section of the Constitution, held, not intended to refer exclusively to those institutions owned wholly by the municipality.

      4. Same — Municipal Corporations.
    Section 11, Art. 8, of the Constitution, held, to be self-executing and sufficient to warrant an appropriation of money by a county to a hospital within its terms, even though Act No. 139, Pub. Acts 1909, fails because it is broader than the grant of power in said section.
    5. Same — Mandamus.
    Where it affirmatively appears from the record that plaintiff, a legally incorporated public charitable hospital, receives patients suffering from contagious diseases, and that the board of supervisors of Chippewa county adopted a resolution appropriating to- it a certain sum of money which had been authorized by a vote of the people, mandamus will issue to compel the treasurer of said county to pay the same.
    Certiorari to Chippewa; Barton (Joseph), J.
    Submitted January 13, 1920.
    (Calendar No. 28,784.)
    Decided April 10, 1920.
    Mandamus by the Sault Ste. Marie Hospital to compel Albert E. Sharpe, treasurer of Chippewa county, to pay an appropriation voted by the board of supervisors. From an order granting the writ, defendant brings certiorari.
    Affirmed.

      Thomas J. Green, for appellant.

      Sherman T. Handy, for appellee.
   Brooke, J.

The action is certiorari to review mandamus. In the year 1903, the Sault Ste. Marie Hospital was incorporated under the provisions of Act No. 171 of the Public Acts of 1903 (2 Comp. Laws 1915, § 9054 et seq.). The purpose or purposes of the institution are set out in the articles of the institution as follows:

“* * * To construct, maintain, and conduct a public and charitable hospital in the city of Sault Ste. Marie, Chippewa county, Michigan, for the treatment of persons suffering from infectious or other diseases”; etc.

Hospital buildings were obtained and from that time to the present a public and charitable hospital has been conducted.

In the year 1917 the board of supervisors of Chippewa county caused to be submitted to the electors of that county a proposition which, if approved, would authorize the board of supervisors to appropriate a sum not to exceed $5,000 per annum for five years “for the purpose of assisting to construct a< public and charitable hospital to be erected and maintained within said county of Chippewa.” A substantial majority of the electors of said county approved of said proposition and thereafter, and in the year 1917, a resolution was passed by said board authorizing and instructing the treasurer of the county to pay to the Sault Ste. Marie Hospital, upon proper warrant, the sum of $5,000.

The legality of the appropriation having been questioned, the treasurer refused to comply with the mandate of the board, whereupon application was made to the circuit court for the county of Chippewa for a writ of mandamus, requiring him to pay to the hospital the sum of' $5,000 as directed in said resolution. After due consideration of the petition for mandamus, the answer thereto, and testimony taken in open court from which it appeared that the hospital received as patients persons suffering from contagious diseases as well as those suffering from other diseases, and that by an amendment to the by-laws the chairman of the board of supervisors of Chippewa county, four members of said board, the mayor of the city of Sault Ste. Marie, and two commissioners of said city were made ex-officio members of the hospital as well as members of the board of trustees or board of directors, the court concluded that the appropriation was a legal one and directed the issuance of the writ of mandamus as prayed. Defendant now reviews such determination in this court.

The governing constitutional provision will be found in section 11, Art. 8, Constitution of 1909, which reads as follows:

“Sec. 11. Any county in this State, either separately or in conjunction with other counties, may appropriate money for the construction and maintenance or assistance of public and charitable hospitals, sanatoria or other institutions for the treatment of persons suffering from contagious or infectious diseases. Each county may also maintain an infirmary for the care and support of its indigent poor and unfortunate, and all county poor houses shall hereafter be designated and maintained as county infirmaries.”

Following the adoption of that Constitution, the legislature passed an act (Act No. 139, Pub. Acts 1909, 3 Comp. Laws 1915, § 10854 et seq.), entitled:

“An act relative to the maintenance and construction of hospitals and sanatoria within the counties of this State and to provide a tax to raise moneys therefor.”

The relative portion of the first section follows

“The several boards of county supervisors of this State may raise by a tax to be levied on the property of said county, subject to taxation for county purposes, a sum of money to be used for constructing or maintaining or assisting to construct or maintain any hospital or sanatorium within said county.” * * *

There is no question that the power given to the supervisors by the act is plenary and a sufficient warrant for the action of the board of supervisors, provided the act itself is within the constitutional grant. This is denied by counsel for the defendant and it is asserted that the question here under consideration is decisively controlled by our decision in the case of Detroit Museum of Art v. Engel, 187 Mich. 432. We there had under consideration the inhibition created by article 10, section 12, which provides:

“The credit of the State shall not be granted to, nor in aid of any person, association or corporation, public or private.”

Also, that contained in article 8, section 25, which provides:

“No city or village shall have power * * * to loan its credit, nor to assess, levy or collect any tax or assessment for other than a public purpose.”

In the case at bar, we have for construction a specific grant of authority instead of a general limitation upon the right of the State or its constituent municipalities to grant credit or levy assessments for other than a public purpose.

In the grant of power found in section 11 of article 8, it is apparent that the Constitutional Convention recognized the essential public and charitable character of hospitals and the necessity for their maintenance in order to preserve the social and economic life of the State. However, we think it is plain from the language of the constitutional provision itself, as well as from an examination of the debates of the Constitutional Convention (2 Proc. & Deb., Const. Conven.', page 883 et seq.), that the grant of power to make appropriations is limited to those institutions only where persons suffering from contagious or infectious diseases are treated. The act, therefore, must be held to be broader than the grant of power in the provision itself and invalid so far as it purports to authorize counties to make appropriations for hospitals generally where contagious and infectious diseases are not treated. We are of the opinion that the case of Detroit Museum of Art v. Engel, supra, is not controlling; The words “public and charitable institutions” were not intended to refer exclusively to those institutions owned wholly by the municipality. Publicly owned institutions are not aided by the municipalities; they are supported by them.

Inasmuch as it affirmatively appears from the record that the Sault Ste. Marie Hospital receives patients suffering from contagious diseases, we are of the opinion that it comes within the purview of the constitutional provision in question and that that provision may fairly be said to be self-executing and to warrant the appropriation under consideration, even though the legislative enactment fails.

The grant of power is to the county. The county, through its board of supervisors, by adopting the resolution, and the people, in voting for the appropriation, have enacted the legislation necessary for the completion of the appropriation under the grant.

Upon review of the whole question, we are of the opinion that the conclusion of the learned trial judge should be affirmed and that the writ of mandamus should issue.

Moore, C. J., and Steere, Fellows, Stone, Clark, and Sharpe, JJ., concurred with Brooke, J.

Bird, J.

I concur with Mr. Justice Brooke that a writ of mandamus should issue in this cause as prayed. I am in accord with him upon the proposition that the constitutional provision involved is self-executing. And I agree with him that the legislature exceeded its power in authorizing boards of supervisors to appropriate money to assist any hospital or sanitarium within the county. But I disagree with him in his conclusion that the entire act is void for that reason. The act is too broad because it authorizes boards of supervisors to extend aid to any hospital in the county instead of restricting it to hospitals which treat contagious and infectious diseases. If the act be restricted in this respect by construction to conform to the authority granted by the Constitution then the rest of the act can stand and be enforced. It is not uncommon for courts to eliminate unconstitutional features of an act, if what remains is a workable and enforceable law. It is said in 6 Ruling Case Law, pp. 121, 128, that:

. “It is a fundamental principle that a statute may be constitutional in one part and unconstitutional in another part, and that if the invalid part-is severable from the rest the portion which is constitutional may stand while that which is unconstitutional is stricken out and rejected.
“Exclusion of Cases Beyond Legislative Jurisdiction. - — Another class of cases in which a statute may be in part valid and in part invalid consists of laws enacted by a legislature in broad, general terms, covering not only persons and property as to which the legislature clearly has the right to make regulations, but apparently applying also to individuals and property protected from such legislation. A law may be unconstitutional, and void, in relation to particular cases, and yet valid to all intents and purposes in its application to other cases which diifer from the former in material characteristics. In,other words, when a statute has been passed by the legislature, some part of which is- not within the competency of the legislative power, or is repugnant to some provision1 of the Constitution, such part may be adjudged voidl and of no avail, while all other parts of the act not' obnoxious to the same objection' may be upheld as1 valid and have the force of law. The courts in some' instances by a restrictive construction have limited the effect of a statute to cases clearly within the field of legislative control. For example, a State tax law, general in its terms, and on its face applying alike to all taxpayers, may be restricted by the court so as to exempt from its operation stockholders in national banks. Such a statute would not for that reason be declared void as a whole, but should be given effect in reference to all persons embraced within the general language employed, with the exception of those outside the proper field of such legislation.”

Mr. Justice Cooley, in discussing this question, in Attorney General v. Common Council of Detroit, 29 Mich. 108, said:

“It is a familiar principle that a law is. not to be held void because it attempts too much. A board is not an illegal board because with many admissible powers an attempt has been made to confer upon it some that are inadmissible. The lawful powers in such a case may be exercised, and the unlawful may be contested whenever an attempt is made to put them in force.”

For a further illustration of this principle see Robison v. Miner, 68 Mich. 549.

It has been held by the Colorado court that a statute void in part does not render inoperative the valid portion, when enacted in pursuance of a self-executing constitutional provision. Frost v. Pfeiffer, 26 Colo. 338 (58 Pac. 147).

In considering whether the act should be restricted by construction there is no room for the argument that had the act been so restricted it would not have been passed by the legislature, because the legislature went as far as the Constitution permitted, and farther,

in passing the act, and because the excess legislation was of the same kind and character as that within its authority. In other words, it is fair to assume that if the legislature was willing to give more aid than was permissible, it would be willing to give what it had the authority to give.

Notwithstanding the constitutional provision is self-executing, the legislature very wisely supplemented it with legislation which safeguards, in some measure, the interest of the county which contributes to the support of a hospital. This is quite essential where public funds are contributed to aid private corporations. By restricting the scope of the act, as indicated, these beneficial features can be preserved, and the safeguards which the act now affords, the public interest will doubtless be increased by .future legislatures as experience shows the necessity therefor.

I think the suggested restriction should be read into, the act. When this is done the constitutional objection will disappear.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    REX BEACH PICTURES CO. v. HARRY I. GARSON PRODUCTIONS.
    1. Corporations — Foreign Corporations — Doing Business in State.
    Where plaintiff, a foreign corporation, without having secured a certificate of authority to do business in this State, under 2 Comp.. Laws 1915, § 9063, made a contract with an agent to secure contracts to show its motion pictures in the theaters of various cities in this State, said contracts being subject to plaintiff’s approval, it was carrying on business in this State without authority so to do.
    2. Same — Void Contracts — Right to Maintain Action.
    A penalty being provided by section 9067 for any corporation subject to the provisions of the act which shall neglect to comply therewith, said contract was void, and against the settled policy of the State, and no action thereon could be maintained, under 3 Comp. Laws 1915, § 12370.
    3. Replevin — Tort Action.
    Replevin is an action of tort.
    The question as to when a foreign corporation which has entered into a contract for the local handling of its product may be considered as doing business within the State within the meaning of a statute prescribing the conditions upon which foreign corporations may transact business therein, is discussed in a note in L. R. A. 1916F, 334.
    On establishment of agency to handle a corporation’s product within the State as doing business therein, see note in 18 L R. A. (N. S.) 142. .

      4. Corporations — Foreign Corporations — Right to Maintain Replevin.
    An action of replevin, brought by plaintiff against its Michigan agent to recover possession of prints of a certain motion picture belonging to it, held, not repugnant to the provisions of 3 Comp. Laws 1915, § 12370, since plaintiff’s right to the possession of the property in question does not depend upon the void contract.
    5. Same — Evidence—Soteioienot.
    Evidence that plaintiff was the owner, and was entitled to the possession of the property, and that a proper demand therefor had been made, held, sufficient to send the case to the jury.
    Error to Wayne; Murphy (Alfred J.), J.
    Submitted January 22, 1920.
    (Docket No. 11.)
    Decided April 10, 1920.
    Replevin by the Rex Beach Pictures Company against Harry I. Garson Productions, and others for the possession of certain pictures. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Reversed.

      Angelí & Turner, for appellant.

      Robert M. Brownson (Frederick S. Baker, of counsel), for appellees.
   Stone, J.

This is an action of replevin to recover possession of prints of a motion picture, known as “The Barrier.” The circuit court directed a verdict and judgment for the defendant, on the ground that the plaintiff was a foreign corporation which had not been admitted to do business in Michigan. The plaintiff is a Maine corporation. There is no question that it had not applied for admission to Michigan. The writ ran against three defendants, upon one of whom service was not had. The trial court dismissed the case as to the individual defendant Harry I. Garson (of which no complaint is made), and directed a verdict and judgment in favor of the defendant Harry I. Garson Productions, a Michigan corporation, which had possession of the prints at the time the suit was brought, for the reasons stated.

The declaration is in the usual form in replevin. The plea was the general issue, with notice that plaintiff is a foreign corporation, not admitted to do business in Michigan. It appeared at the trial that the plaintiff is engaged in the business of producing motion pictures, and is the owner of a motion picture photoplay entitled “The Barrier.” On April 24, 1917, the plaintiff entered into a contract with the Lewis J. Selznick Enterprises, Inc., a New York corporation, for the distribution of “The Barrier.” That contract appears as exhibit 1 in the record and is as follows:

“Agreement made and entered into the 24th day of April, 1917, by and between the Rex Beach Pictures Company, Inc., a corporation formed and existing under the laws of the State of Maine, and duly authorized to conduct its business within the State of New York, party of the first part (hereinafter called the ‘Beach Company’), and Lewis J. Selznick Enterprises, Inc., a corporation formed and existing under the laws of the State of New York, party of the second part (hereinafter referred to as the ‘Selznick Company’):
“Witnesseth:
“Whereas, the Beach Company is the owner of the photoplay entitled, ‘The Barrier,’ by assignment from Benjamin B. Hampton heretofore duly executed and delivered; and
, “Whereas, the Beach Company desires the use and facilities of the exchanges owned, operated by or affiliated with the Selznick Company, in the exploitation and rental of such photoplay, and is willing to pay therefor upon the basis hereinafter provided:
“Now, therefore, in consideration of the premise^ and one dollar ($1.00) paid by the Beach Company to the Selznick Company, receipt whereof is hereby acknowledged, the Beach Company and the Selznick Company agree as follows:
“First:- The Beach Company shall deliver to the branch exchanges of Selznick Company the necessary positive prints of the said photoplay, paying transportation charges on such positive prints from the manufacturer to the exchanges, and paying transportation charges on film shipped from one branch to another on Beach Company’s order. Beach Company shall pay similar charges whenever film is ordered returned to its office from exchanges; it being understood that other transportation charges, if any, between exchanges and exhibitors shall be at the expense of Selznick Company.
“Second: Selznick Company shall book the said photoplay through its regular channels and affiliated exchanges, but as agent of the owner, on special forms of contract drawn so that all contracts shall appear as made by Lewis J. Selznick Enterprises, Inc., as agent of the Rex Beach Pictures Company. Such special forms of contract shall be furnished to Selznick Company by Beach Company, and shall be executed in •quadruplicate one copy to be left with the exhibitor, one with the branch exchange and two copies to be forwarded to the Selznick Company at its New York office, one of which shall be transmitted forthwith to Beach Company. All booking made by Selznick Company or its affiliated exchanges shall be approved in writing by Beach Company, or its duly authorized representative, and shall not be effective Until such approval has been properly indorsed upon at least one copy of such contract.
“Third: Settlements shall be made to the parties in interest in accordance with contract of October 10, 1916, and April 24, 1917, referring thereto on _Thursday of each week, and shall include all collections on rentals of film and advance payments on bookings, less the commission due Selznick Company for its services as hereinafter stated, up to and including the Saturday prior to such settlement; it being understood that collections are to be accounted for as received at the main office; it being understood that all moneys collected shall be transmitted as the same are received, so far as possible, especially in the case of large collections, ]ess commissions due Selznick Company for its services as hereinafter stated, but that a complete settlement as hereinabove set forth shall be made on Thursday of each week. It is understood that the funds in the hands of Selzniek Company shall be regarded as trust funds, which, however, may be commingled with its own funds and that no title thereto shall vest in Selzniek Company as the same shall pass through its hands, and that Selzniek Company does not guarantee collections and shall not be responsible for unpaid bills for rentals of film, nor shall it be responsible for theft of film (except where such theft is committed, aided or abetted by Selzniek Company employees), duplication, loss in transit, or by fire, or for any other losses beyond its control.
“Fourth: Selzniek Company shall keep accurate records of contracts and accounts, and Beach Company shall have the right at all reasonable times to examine the books and records of Selzniek Company, showing rental contracts and all other items in connection with the subject-matter of this contract.
“Fifth: Selzniek Company shall keep all positive prints in good repair; it being understood, however, that replacements of missing and worn parts shall be made by (and) at the expense of Beach Company, to be charged at current rates for such replacements.
“Sixth: Selzniek Company shall afford Beach Company full benefit of the facilities which it has in its press agents and publicity work.
“Seventh: In consideration of the services rendered and facilities, afforded by Selzniek Company, it shall be entitled to receive an amount equal to thirty-five vper cent. (35%) of the gross rentals collected by it or its affiliated exchanges from exhibitors. It is understood and agreed that this compensation shall apply also to gross rentals heretofore received by the previous distributor or distributors of this photoplay except that on bookings actually executed by previous distributors and paid for, Selzniek Company shall allow credits of twenty per cent. (20%), and upon bookings received and approved by Beach Company or B. B. Hampton, up. to the date of transfer to the superseding distributor, but which have not been executed, Selzniek Company shall allow credits of ten per cent. (10%) as collections are made. It is understood that on previous theatrical exhibitions, where a profit has been shown, Selznick Company’s commission shall be computed upon the net profit.
“Eighth: Selznick Company acquires no title of any nature whatsoever to the films consigned by Beach Company, and Beach Company shall be entitled to immediate possession of all films consigned and distributed through the various exchanges at any time, subject to any right of distribution herein conferred.
“Ninth: In the event that an exhibitor shall not play said picture upon the dates contracted for, for any reason beyond his control and satisfactory to Beach Company and Selznick Company, any prepayment may be refunded, in part or in full.
“Tenth: The Beach Company agrees to pay all censorship fees and other taxes which may be imposed by municipalities, State or national governments, upon positive prints or negative of ‘The Barrier’; provided, however, that no such tax shall be paid until such payment is directly authorised by Beach Company.
“Eleventh: It is understood and agreed that Selznick Company shall buy and sell all advertising material and distribute the same for its own account, subject to the approval of the proper officer of Beach Company, concerning the prices charged for such advertising material; the purpose of this clause being to prevent overcharging for advertising material which would prevent a proper circulation of such matter.
“Twelfth: This contract shall operate for a period of three (3) years, provided rentals amounting to two hundred thousand dollars ($200,000) shall have been secured and collected during the first year of such contract, and three hundred thousand dollars ($300,000) in the aggregate prior to the end of the second year.
“It is further understood and agreed that in case of the death, incapacity or disability of Lewis J. Selznick personally to attend to, manage and generally supervise the business and operations of Lewis J. Selznick Enterprises, Inc., and its affiliated agencies, that the Beach Company may, upon thirty (30) days’ written notice and upon condition that it assume and discharge the guarantee of said Selznick under said contract of April 24th, 1917, hereinabove referred to, cancel this contract, and the same shall thereupon, at the expiration of such time, be at an end, and neither party shall have any further rights as against the other except for an accounting of business already undertaken and completed.
“In witness whereof, Beach Company has caused its corporate name to be hereunto subscribed by its president, thereunto duly authorized, and its corporate seal to be affixed, and Selznick Company has caused its corporate name to be hereunto subscribed by its president, thereunto duly authorized, and its corporate seal to be affixed, the day and year first above written.
“Rex Beach Pictures Company, Inc.,
“By Benjamin B. Hampton, President.
“Lewis J. Selznick Enterprises, Inc.,
“By Lewis J. Selznick, President-.”

In acting as plaintiff’s agent under the above contract, the Selznick Company, through its president, Lewis J. Selznick, negotiated with Harry I. Garson Productions, a Michigan corporation, through Harry I. ■ Garson, for the distribution of “The Barrier” in the State of Michigan. The uncontradicted testimony as to the employment of the defendant Harry I. Gar-son Productions by the plaintiff, through Mr. Hampton, its president, and the Selznick Company, plaintiff’s agent, is too lengthy to be here inserted, but has been carefully read. The contract form with exhibitors was shown Mr. Garson. It contained the method of doing business by plaintiff. By this contract form agreements were to be entered into between the Rex Beach Pictures Company, Inc., therein designated as the “owner” of the motion picture photoplay entitled “The Barrier,” and local exhibitors within the State of Michigan, whereby such owner would rent such photoplay direct to such exhibitors for exhibition in local theaters for a designated number of days at an agreed rental price. The contract form provided that the agreements with local exhibitors' should be executed and approved in the following manner:

“Rex Beach Pictures Co., Inc.,
By........................
Exhibitor..................
By........................
“"Approved by N. Y. Office of Rex Beach Pictures Co., Inc.,
By.....................”

Numerous contracts in pursuance of the above arrangement were entered into for the exhibition of “The Barrier” in Michigan. Prints of such motion picture for use by local exhibitors were forwarded from New York through the Selznick Company and the General Film Company early in May, 1917. Mr. Selznick testified:

“The contract I entered into with Garson Productions as distributor of ‘The Barrier’ was being operated under, on May 3d. The Garson Productions got one of these prints of ‘The Barrier’ from the General Film Company, under my instructions. The other print was shipped from our office in New York. The advertising matter they got either from the General Film Company or through us.”

It is said disputes between the Selznick Company and Garson Productions about other matters arose which resulted in litigation, and on June 14, 1917, the plaintiff, by letter, demanded possession of “The Barrier.” That letter was addressed to Harry I. Gar-son Productions, Inc., and was in substance as follows :

“We understand that you have in your possession certain positive prints and advertising matter of the motion picture entitled ‘The Barrier,’ and that you have been exhibiting said motion picture. Please deliver all such positive prints and advertising matter, to Mr. D. Leo Dennison, care of Pontchartrain Hotel, Detroit, Michigan, and account to us for the receipts from such exhibition.
“Yours very truly,
“Rex Beach Pictuees Company, Inc.,
“Benj. B. Hampton, President.”

Upon failure to comply with, this demand this suit was brought. Plaintiff bases its right to maintain this, action upon two propositions:

(1) That at no time did it ever transact its business within this State.

(2) That if it was so transacting, in Michigan, its business it has the right to bring an action of replevin for the recovery of what was confessedly its own property, withheld from it without right.

1. A careful reading of the record leads us to the-conclusion that the evidence sustained the following claims of the defendant:

(») Plaintiff, the owner of a certain motion picture, desiring to use the facilities of the Selznick Company, a distributing agency, in marketing this picture among theater owners, made a contract with such distributor for the exploitation and distribution of such motion picture, and “in consideration of such services rendered and facilities afforded,” agreed to pay the Selznick Company an amount equal to 35 per cent, of the gross rentals collected by it.

(b) The Selznick Company, as agent of plaintiff, agreed to book such photoplay through its regular channels and affiliated exchanges on special contract forms, to be supplied by plaintiff. All such bookings were to be approved in writing by plaintiff and were not to be effective until so approved.

(c) All funds and revenues derived from rentals to exhibitors were to be regarded as trust funds in the hands of Selznick Company, and no title thereto was to vest in the Selznick Company, as the same should pass through its hands.

(d) The Selznick Company acquired no title of any nature whatsoever to the films consigned to it by plaintiff.

(e) The Selznick Company, as agent of plaintiff, and with its express consent and approval, designated and employed the defendant, the Garson Productions, as the Michigan agent of the plaintiff, with express instructions that all Michigan bookings were subject to plaintiff’s supervision and approval and were to be made on contract forms, where the local exhibitor was to be brought into direct contract relations with the plaintiff as owner.

(/) No attempt was made nor was it ever contemplated, that the Garson Productions should purchase or rent prints or films of plaintiff’s motion picture. The Garson Productions was to be paid for distributing such picture 20 per cent, of the revenue derived from local exhibitions in Michigan.

(g) The Garson Productions was employed by plaintiff through its authorized agent (Selznick) to exploit and distribute “The Barrier” in the State of Michigan for a term of one year, and to solicit and procure contracts with local theaters in the name of the plaintiff, a foreign corporation, as owner, at prices and terms to be approved by such foreign corporation in each and every instance.

(h) The sole purpose of this agreement between these parties was to create an agency or means whereby the plaintiff, a foreign corporation, in the conduct of its ordinary business, was to derive a continued revenue from the exhibition of its motion picture (of which it always and at all times remained the absolute owner) to audiences assembled in different Michigan theaters, and from revenues so derived to receive as its share of the income produced by such acts performed in Michigan, 80 per cent, of the gross receipts, income and revenue.

(i) The contract employing the Garson Productions to distribute plaintiff’s motion picture in Michigan, made with the plaintiff through its authorized agent, the Selznick Company, as testified to by Mr. Selznick, was being operated under on May 3, 1917, and two prints of “The Barrier” and advertising matter in connection therewith were furnished to the Gar-son Productions by the plaintiff or its agents, and in pursuance of the agreement between the parties at least 29 contracts were procured for the plaintiff on contract forms, of which at least four or five were entered into, prior to plaintiff’s letter of June 14, 1917, demanding the return of such property, and an accounting- for the receipts from such exhibitions.

The plaintiff has brought the case here for review. Its first assignment of error is:

(1) That the court erred in charging the jury that plaintiff was a foreign corporation carrying on business in the State of Michigan, without having authority so to do.

(2) That the court erred in directing a verdict in favor of the defendant Harry I. Garson Productions, upon the grounds stated in its charge.

(3) That the court erred in directing a verdict in favor of the defendant Harry I. Garson Productions, upon the ground that plaintiff was a foreign corporation carrying on business in the State of Michigan without having received authority so to do.

1. In our opinion the court did not err in charging the jury that plaintiff was a foreign corporation cárrying on business in the State of Michigan, without having authority so to do.

In Neyens v. Worthington, 150 Mich. 580, 587 (18 L. R. A. [N. S.] 142), the following language was used by this court, which we think applicable to the instant case:

“This agreement by its terms was an invasion of this State by a foreign corporation, not simply to make sales of products manufactured and delivered in a foreign State, nor was it a single act of business without intent or purpose to do any other business'; but it was for the express purpose of extending and establishing its business permanently within the State.”

The following authorities, are also applicable: E. A. Lange Medical Co. v. Brace, 186 Mich. 453; Nernst Lamp Co. v. Conrad, 165 Mich. 604, 609; Imperial Curtain Co. v. Jacob, 163 Mich. 72, 77.

In our opinion, under our authorities, it appears very plainly that the plaintiff was carrying on business in this State without having authority so to do. In this connection attention is called to sections 9063, 9067 and 9068, 2 Comp. Laws 1915. In section 9067 it will be noted that every corporation subject to the provisions of the act which shall neglect to comply with its requirements shall be subject to a penalty as therein prescribed.

2. While, as we have said, the court did not err in holding that plaintiff was a foreign corporation carrying on business in this State without having authority so to do,-the question arises, whether for that reason the court was justified in directing a verdict for the defendant? It should be borne in mind that this is an action in tort for the recovery of the possession of property confessedly belonging to the plaintiff, áfter proper demand had been made therefor. The authorities are uniform in holding that replevin is a personal action ex delicto, brought to recover goods unlawfully taken or detained. Unless the statute says so, the non-compliance by a foreign corporation with the terms and conditions upon which the domestic law allows it to enter the State and do business will not preclude it, or anyone claiming through it, from maintaining an action which is purely ex delicto. We have no doubt that under the provisions of our statute, above referred to, it was unlawful for the plaintiff to carry on its business in this State; and it was incapable of making a valid contract for such purpose until it had complied with the requirements of the statute. A penalty is provided for the violation .of these provisions, and, in our opinion, the contract was void, and against the settled policy of this State.

In Cashin v. Pliter, 168 Mich. 386 (Ann. Cas. 1913C, 697), this court quoted, with approval from a former opinion, the following language:

“It is a well settled principle of law that all contracts which are founded on an act prohibited by a statute under a penalty are void, although, not expressly declared to be so.”

Conceding that the contract was void and the doing of business unlawful, must the property of the plaintiff be forfeited because of the provisions of the statute? In this connection defendant’s counsel call attention to section 12370, 3 Comp. Laws 1915, which reads as follows:

“But when, by the laws of this State, any act is forbidden to be done by any corporation, or by any association of individuals, without express authority by law", and such act shall have been done by a foreign corporation, it shall not be authorized to maintain any action founded upon such act, or upon any liability or obligation, express or implied, arising out of, or made or- entered into in consideration of such act.”

We have examined, and invite attention to, our decisions. found in the note appended to this' section. They are to the effect that no action can be maintained to recover from an agent moneys collected by him under such contracts. Many of them are insurance cases in which it was held that a foreign company could not sue in this State to collect assessments upon policies so made. Such contracts are prohibited, and are at variance with the settled policy of the State.

The following language, found in 2 Elliott on Contracts, § 665, is pertinent here:

“Again it has been said:

‘“It is no doubt the general rule of law, that no right of action can spring out of an illegal contract. And the rule that an illegal contract cannot be enforced, applies as well to contracts malum prohibitum, as to contracts malum in se. But it does not necessarily follow that all the consequences attending a contract, -which is contrary to public morals, or founded on an immoral consideration, attend and affect a contract malum prohibitum merely. The law in the former case will not undertake to relieve parties from the position in which they have placed themselves, or to adjust the equities between them. But in the latter case, while the law will not enforce the prohibited contract, it will take notice of the circumstances, and if justice and equity require a restoration of money or property, received by either party thereunder, it will give, and in many cases has given relief.’ ”

—citing, among other cases, Pratt v. Short, 79 N. Y. 437; In re T. H. Bunch Co., 180 Fed. 519.

In 13 Am. & Eng. Enc. Law (2d Ed.), at p. 892, appears the following language:

“Even where the corporation is doing business within the State without complying with the statutory provision it is not thereby prevented from suing in tort”;

—and the following cases are cited: St. Louis, etc., R. Co. v. Fire Ass’n, 60 Ark. 325 (30 S. W. 350, 28 L. R. A. 83) ; Utley v. Mining Co., 4 Colo. 369 (an action of trespass); American Typefounders Co. v. Conner, 26 N. Y. Supp. 742 (action of replevin); Probst v. Trustees, 3 N. Mex. 373 (5 Pac. 702); Smith v. Little, 67 Ind. 549 (action of replevin); Powder River Cattle Co. v. Custer County Com’rs, 9 Mont. 145 (22 Pac. 383). See, also, Delaware, etc., Telephone Co. v. Pensauken Township, 116 Fed. 910; Duroth Manfg. Co. v. Cauffiel, 243 Pa. St. 24 (89 Atl. 798); United Shoe Machinery Co. v. Ramlose, 231 Mo. 508 (132 S. W. 1133). We quote from the head note of the last-cited case:

“Notwithstanding the lease in pursuance to which the machines passed into the defendant’s possession was void, because the lessor, being a foreign corporation, had not complied with the laws of this State authorizing it to do business here, the court will not leave the property where the parties have themselves placed it, but will permit the lessor to replevy the machines or to maintain trover for their value; and thereby the court does not indirectly avoid the statute and give practical validity to the lease or contract. Relief is never denied on such ground unless the maintenance of the suit would necessarily result in giving force and effect to the void contract, or unless, the contract itself is tainted with fraud or immorality.
“The statute does not deny to a foreign corporation the right to maintain a suit for the recovery of its property in this State, and if’ it did it would be of doubtful validity; it simply denies to such company the right to do business in this State.”

See, also, Schlitz Brewing Co. v. Ester, 86 Hun, 22 (33 N. Y. Supp. 143), affirmed 157 N. Y. 714 (53 N. E. 1126). Many other authorities to the same effect might be cited.

That replevin is an action of tort, see Witty v. Campbell, 44 N. Y. 410. It should be borne in mind that the contract in this State was simply void because prohibited by statute. It was a contract malum prohibitum. Under such circumstances, as was said by the court in the Powder River Cattle Co. Case, it does not mean that the corporation cannot protect its property, and does not allow others to confiscate the property of the corporation.

Is it the necessary and inevitable effect of the invalid or unlawful contract (invalid or unlawful because prohibited by the statute) to confiscate and forfeit the property of the plaintiff, and leave it in the hands of the defendant beyond the right of recovery? That does not seem to be just. While our courts will not enforce the prohibited contract, they will take notice of the circumstances, and if justice requires it, restore the plaintiff’s property, received by the defendant under such void contract.

There was, concededly in this case, evidence that the property described in the writ of replevin belonged to the plaintiff and a proper demand therefor had been made, as was held by the trial court. Can it be said that it would be an act of justice that the plaintiff must forfeit this property by reason of the void contract? We think not. The action of replevin, in our opinion, is not repugnant to the terms of section 12370, above quoted. The plaintiff’s case, under the circumstances, is made out when it shows that it is the owner of the property and entitled to its. possession, and that a proper demand has been made therefor. Plaintiff’s right to the possession of the property in question does not depend upon the void contract, but is rather in spite of, or notwithstanding such contract and the doing of business thereunder. The defendant is in no position to claim that it holds this property by authority of a void contract;, the moment that void contract is shown, it then appears that the property is unlawfully detained by the; defendant. There was at least sufficient evidence that the plaintiff was the owner, and was entitled to the possession of this property, and that a proper demand therefor had been made, to have sent this case to the jury-

In our opinion the court erred in directing a verdict for the defendant, and the third assignment of error is well alleged. The judgment of the court below is therefore reversed and a new trial granted, with costs to the plaintiff.

Moore, C: J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred.


text:
    John Torrent v. The Muskegon Booming Co.

      Practice in the Supreme Court: Premature Notice. It is irregular to notice an appeal in Chancery, before the expiration of the time for filing the transcript.

      Heard and decided July 6.

   D. D. Hughes moves to strike this cause from the docket for bearing at this term, for the reason that it was noticed for bearing before tbo expiration of the time for filing tbe transcript.

Motion granted.


author: Christiancy, J.

text:
    Aaron Fisher et al. v. Isabelle F. Thirkell.

      Excavations under public streets. Excavations, properly and safely constructed under the public streets in cities, for the convenience of the owners of premises adjoining, arc not unlawful; and they are not liable to be treated as nuisances if kept in repair, and tbe use of the street is not interrupted for an unreasonable length of time.

      Street obstructions: Nuisances: Who liable. A party will not he liable for an injury occasioned by a nuisance, on the ground of his possession of the premises where the nuisance is shown to exist, unless* his possession ho such as to give him the legal control of the premises.
    The owner of premises in possession of a tenant will not he liable for an injury occasioned by the premises becoming, subsequently to the leasing; out of repair, in a case where the obligation to repair is upon the tenant and not upon the landlord.

      Possession: Charge of Court. Where the liability of a defendant depends upon possession, and there is no evidence of any such possession as will justify a recovery, it is error for the Court to leave tlie question of possession to tho jury.

      Assignment of errors: Joint or several. In an action of tort, where Beveral defendants unite in bringing a writ of error, and. assign errors jointly, the assignment will bo considered joint and several, or joint or several, as the nature of tlie errors assigned, and the interest of the respective parties require.

      Heard April 20.

      Decided July 7.

    Error to Wayne Circuity
    This was an action on the case brought in the Circuit Court for the County of Wayne by Isabelle E. Thirkell against Aaron Fisher, Elam Fisher, John II. Griffith, and William F. Kier, for an injury to the plaintiff occasioned by an opening in the sidewalk in front of premises in the City of Detroit alleged to be owned by the defendants, Aaron and Elam Fisher, and to be in the occupancy of the defendants, Griffith and Kier. The questions to be reviewed arise upon the charge of the Circuit Judge as to the liability of the several defendants. At the request of the plaintiff the Court charged the jury :
    1. If the jury believe, from the evidence, that the defendant, Griffith, was in the use and occupancy of the premises m question, in whole or in part, at the time of, and some days before the injury occurred, taking an inventory or otherwise using the same for his own benefit, and that the wood was put into the vault for the use of the premises by his direction or authority, in whole or in part, in such use of his said premises said Griffith is liable in this case.
    2. If the jury believe, from the evidence, that the Fishers constructed the building, scuttle, and improvements, and that from their construction several years ago down to the timo when the injury occurred, they continued to be and were tire owners of such scuttle and improvements, they are liable in this action, although they may have been only lessees of the ground on which such scuttle and improvements were situated, and may have sub-leased the same to other parties; that they were bound to keep the scuttle in good and safe condition while they thus owned the building and improvements, and it makes no difference that they may not have known that such scuttle was not in good and safe condition at the time.
    To this charge the defendants excepted.
    The defendants requested the Court to charge :
    1. That the mere parol bargain between Mrs. 1-Till and Griffith for the sale of the stock of goods, and the transfer of the lease thereof, did not make a valid binding contract until there was either a part payment for said goods and lease or a written contract of sale between the parties thereto, or a delivery of said goods or a portion thereof.
    2. That there is no evidence tending to prove that, previous to the time when the injury happened, there had been either such part payment or written contract or such delivery.
    3. That even if, under the instructions of the Court, the jury should find that Griffith had actually gone into possession, yet he would not be liable in this action for negligence unless he knew of a defect in the scuttle, or had been in possession such a period of time that his Avant of knowledge Avould be negligence.
    4. That it was not the duty of the Messrs. Fisher, as owners of the building in question, to keep the same in repair while it was occupied by tenants, unless there was an agreement made with the tenants that they (the Fishers) should make the repairs.
    5. In the absence of any such agreement the defendants Fisher are not liable in this action for injuries -to the plaintiff caused by Avant of repair of the scuttle, which was broken or put out of order during the possession of tenants.
    6. That there is no OA'idence tending to show that the scuttle was out of repair when the premises were leased by defendants Fisher, or that the defendants Fisher have since been in the actual occupation of said premises, and for this reason the defendants Fisher cannot be held liable in this action.
    7. That the Fishers had a perfect right in erecting their store to excavate under the sidewalk if they put the same in a perfectly secure and unobstructed condition, and if the accident to the plaintiff occurred by reason of the negligence of the Fishers’ tenants in permitting the scuttle to get out of repair, and not by reason of any original defect in the manner of making the same, then the Fishers are not liable in this action.
    The Circuit Judge charged as requested in the first request made by defendants’ counsel, but refused to charge as requested in the remaining requests. To which the defendants excepted.
    The jury rendered a verdict for the plaintiff against the said defendants, Aaron Fisher, Elam Fisher and John H. Griffith, who bring the judgment entered thereon into this Court, by writ of error.

      C. I: Walker, for plaintiffs in error.
    I. There is no evidence tending to show that Griffith was in possession at the time of the accident to plaintiff, and therefore the Court erred in giving the charge to the jury in accordance with the first request made by plaintiff’s counsel.
    This charge was also erroneous, because it assumes that there was evidence tending to show that the wood was put in by the direction of Griffith.
    There is not the slightest evidence in the case tending to show that the defendant, Griffith, gave any direction or authority to have the wood put iu the vault. On the contrary, the proof is entirely clear that neither Griffith nor Kier ordered the wood.
    By the charge of the Court first given, the jury were permitted to find, as a fact, that Griffith directed or authorized the removal of the scuttle and its careless replacing, and the effect of the'charge could not have been otherwise than prejudicial to the defendant, Griffith. If the evidence tended to show the facts to be as indicated by the first clause of the charge under consideration, still the mere use and occupancy of the premises by Griffith while “taking an inventory,” etc., would not render him liable, unless he also authorized or directed the opening of the scuttle so as to render it dangerous.
    This charge tended also to mislead the jury by leading them to the conclusion that Griffith’s presence in the store with the Hills, for the purpose of assisting in taking the inventory, was such use and occupation as would render him liable for a continuance of the nuisance.
    II. The Court erred in refusing to charge as requested by defendants’ counsel in his third request, Hz: that to make the defendant, Griffith, liable, he must have had knowledge of the defect, or have been in possession such a period of time that his want of knowledge would be negligence.
    At common law, a party injured by a nuisance could not maintain his action against the alienee of the land for the continuance of a nuisance, but the injured party must sue out his writ, “quod permitiat prosternen,” to abate the nuisance complained of. This was changed by statute of 13 Edward I. C. 24; 3 Black. Com., p. 221, After-the passage of said statute, the action could be brought against both the party creating the nuisance, and the party who, upon the alienation of the premises, continued the nuisance. — lb.
    But we submit that there could be no continuance of the^'nuisance by the alienee, until he knew of the nuisance, or would have known of it by the use of ordinary care. It would be carrying the doctrine of constructive negligence to an unreasonable length, to hold that an alienee of premises or tenant for years, upon receiving a conveyance or a lease thereof, becomes co insianli liable for injuries sustained immediately after such change of title or possession, which injuries were caused by the existence of a nuisance then on the premises.
    There is no necessity for any such stringent rule, since the liability of the party who created the nuisance and transferred the premises with it therein is indisputable.— Waggoner v. Jermaine, 3 Denio, 306. The following authorities expressly hold that a tenant for-years, or an alienee of land, is not liable for the continuance of a nuisance existing at the time of the transfer to him, until he has been requested to remove it: Penruddock’s Case, 5 Coke, 100; McDonough v. Gilman, 3 Allen, 264; Nichols v. Boston, 98 Mass., 39; Dodge v. Stacy, 39 Vt., 559; Pittsburg v. Moore, 44 Me., 154; Johnson v. Lewis, 13 Conn. 303; Pierson v. Glean, 2 N. J., 37; Woodman v. Tufts, 9 N. H., 88.

    In the case of Caldwell v. Gale,, 11 Mich., 77, this Court hesitated about applying the above rule as to notice, but did not decide the question, inasmuch as it ivas there held, that if notice was requisite, a sufficient one had been given.
    ÍII. The charge of the Court, and the refusals to charge, as to the liability of the Fishers, arc, in effect, that as builders of the store and owners of the paving and area in front thereof, the Fishers were bound at their peril to keep the scuttle in good order, and their liability is not affected by the fact that they leased the store with the scuttle in a perfectly secure condition, nor by the fact that the injury to the plaintiff was caused by the negligence of Fishers’ tenants, and without the Fishers’ knowledge, while the premises were in the possession of such tenants.
    This charge, and refusals to charge, were, we insist, erroneous.
    1. Landlords who hare leased their premises in good condition, and who hare not covenanted to repair, are not liable for damages caused by a nuisance created on the premises during the existence of the tenancy.
    The decisions on .this point are numerous, and the following are the principal cases in which the question has arisen: Payne v. Rogers, 2 H. Black., 350; Leslie v. Pounds, 4 Taunt., 649; Cheetham v. Hampson, 4 T. R., 318; Bishop v. Bedford Charity, 1 Ellis & Ellis, 697; Chauntler v. Robinson, 4 Ex., 163; Regina v. Watts, 1 Salk., 357; Rich v. Basterfield, 4 M. G. & S., 783; Russell v. Shenton, 3 A. & E. (N. S.) 449; Offerman v. Starr, 2 Penn. S., 394.

    2. In this ease, the Fishers, having caused the area to be made underneath the sidewalk, and the scuttle leading to the area to be put in the sidewalk, in a perfectly secure condition, for the accommodation of the adjacent stores, and haying leased the premises while in such con■dition, are not liable for injuries to the plaintiff, caused by a want of repair of the scuttle during the tenancy. It was the tenant’s duty to repair, and he alone is liable.
    The following authorities are cited in support of this proposition: Bears v. Ambler, 9 Penn. S. 193; City of Lowell v. Spaulding, 4 Cush., 277; Clark v. Fry, 8 Ohio, S., 358.

    In opposition to the whole current of authorities aboye cited, and in direct conflict with the cases in Massachusetts, Pennsylvania, and Ohio, there are some cases in the State of New York, which hold, that where the owner makes an area under the sidewalk, he is bound, at his peril, to keep the street safe at all times, and if an accident happens to any one passing over it, without fault on the part of the injured party, the owner is liable, irrespective of any negligence on his part, or of the fact that others were occupying the building.—Congreve v. Smith, 18 N. Y., 79; Congreve v. Morgan, 18 N. Y., 84.

    The ground on which these decisions rest, is that the act of making the area is “wrongful,” and in the opinion in one case, mention'is made of the fact, that “no license from the city for the. area was proved.” If by the ordinances of the city authorities of New York such license is required, the case differs in that respect from the one under consideration, as in Detroit no such 'ordinance exists ; but, without such requirement, the right of a lot owner to make such excavation is clear.
    The public have only an easement in the land over which the street passes. The proprietor of lots abutting on the street owns to the center of the street, and has the right to make any use of the land to which it can be applied, subject to the public easement.—Washburn on Easements, p. 196. He may sink a drain or water-course below the surface.—Perley v. Chandler, 6 Mass., 454; Woodbury v. Forks Township, 28 Penn., § 355. He may recover in trespass against one who uses the street for any other purpose than the public easement.—Lade v. Shepherd, 2 Strange, 1,004 He may recover against one who cuts the herbage.—Adams v. Emerson, 6. Pick., 56; Robins v. Borman, 1 Pick. 122.

    In Goodtitle v. Alker, 1 Burr., 188, it is said that “the owner of the soil has a right to all above and under ground except only the right of passage for the king- and Ms people.” And the case of Clark v. Fry, 8 Ohio, p. 358, before cited, expressly holds that an excavation in the sidewalk for an area is not unlawful, if properly made.
    The area was, then, a lawful excavation. The evidence shows that the opening into it was properly protected when the Fishers leased the premises to Hill; that the injury to it whereby it was rendered defective, occurred when the premises were in Hill’s possession, and we insist, therefore, that the fourth, fifth, sixth, and seventh requests made by the defendants’ counsel are sustained by the weight of authority as proper to have been made, and the refusal of the Court to charge as requested was error.

      Levi Bishop, for defendant in error.
    I. It is not denied that the title of the adjacent owner extends to the centre of a street, subject to the public •easement.—3 Kent, 572, 3, 4, and note. The second charge for the plaintiff was correct in principle, and it is fully sustained by the authorities.—Heacock v. Sherman, 14 Wend., 58, 60; Dygert v. Schenk, 23 Wend., 446; Congreve v. Morgan et al. 5 Duer, 495; Same, on appeal, 18 N. Y. R., 79; Same, another case, 18 N. Y. R. 85; Davenport v. Ruckman, 10 Bosw., 20, 31, 36-7; Bellinger v. N. Y. C. R. R., 23 N. Y, 43; Selden v. D. & H. Canal Co., 29 N. Y., 634; McMahan v. New York, 33 N. Y., 642; Irvin v. Fowler, 5 Robertson, 482 ; Steele v. Fuller, N. Y. Superior Court.

    II. The first charge, at the request of the plaintiff, with reference to the liability of Griffith, was also correct, as a principle of law, to be applied by the jury to„ the evidence in the case; and we claim, that the authorities cited, upon the finding by the jury of the facts suggested in this charge, render Griffith-clearly liable. The only real question is whether there was testimony in the case, upon which this charge could be based, and which could fairly be left to the jury.
    It is well settled that all, who participate in a wrong, are liable as principal actors. All “who direct or order,”' or “assist on the occasion,” or “assent to the act before or after it is committed,” arc liable for the tort.—1 Chitty, p. 79, 80; 2 Hilliard on Torls, 292, 3, 4; Herring v. Hoppock, 15 N. Y., 413; Judson v. Cook, 11 Bart., 642; Brown v. Perkins, 1 Allen, 89; Stone v. Dickinson, 7 Allen, 26; Clark v. Boles, 15 Ark., 452; Dreyer v. Miry, 23 Mis., 434; Woodruff v. Halsey, 8 Pick., 333; Marram v. Belcher, 4 B. & C., 704. And the question of a joint liability is for the jury.—2 Hilliard, 296, 301.

    III. The first request of the defendants was given as asked, and, as an abstract proposition, was, no doubt, well enough, under the statute of frauds, in regard to parol agreements for the purchase and sale of goods; but it ini reality had nothing to do with the case. The question was not whether Hill and Griffith had so far completed a-contract of purchase, as • to pass the legal title, or give aright to enforce the contract in a dispute as to title; but the question was whether Griffith was so far in the use of the premises for private purposes .as to render him liable for their -unsafe condition, even if the strict legal title to the goods was still in another. In this case the agreement to purchase was complete, only an inventory was to be taken by Griffith, as purchaser, with Hill, the vendor, to ascertain what the purchase would amount to. For the purpose of ascertaining that fact, and even for the general purposes of the sale, there had been a delivery, and Griffith was in possession to every practical intent.
    IV. In this view of the case, the second request of the defendants, in connection with the first, was not true in fact. There was evidence directly tending to show that there was a delivery, and a use and occupation for the purpose of completing the purchase; and this was clearly enough to enable Griffith to commit or wrongfully suffer the mischief. It is settled that the exercise of acts of ownership by the purchaser, with the knowledge and consent of the vendor, amounts to a delivery.—2 Selwyn’s N. P., 868; Parsons on Mercantile Law, 76; Gray v. Davis, 10 N. Y., 285.

    V. As to the third request of the defendants, it was clearly improper under the doctrine of the cases before cited. All who use the public highway for private purposes stand in the character of insurers of the public safety. All who assist, join in, assent to, direct, or order a wrong, are liable for the consequences; and whether they do so or not is a question for the jury. This request, also seems to imply, that if a person is ignorant that he is-committing a wrong, or has no intent to commit it, he is excused. The contrary is the well established rule.—1 Chitty, pp. 82, 129, 339; 1 Hilliard on Torts, 90, 1, 2, and 98; 2 Same, 75, 86, 94, etc.

    VI. I have already answered the fourth request to charge by the defendants, in the argument of my first point. The owner of property, who fixes up a man-trap like this for his own profit and advantage, cannot shirk his responsibility by leasing the premises out to another. If so, he might lease to an irresponsible or a non-resident party, and thus avoid all responsibility, while he should reap a benefit in an increase of rent.
    By leasing the premises to a tenant, who takes possession, as was said by the Supreme Court of Now York, in the McLeod case, another person is simply added to those who are liable.
    VIL The fifth request, although designed to throw the responsibility over on to Hill, is nevertheless, in view of the finding by the jury, rather severe on Griffith. If the occupant or tenant has agreed, as a conclusion or presumption of law, to keep the premises in repair, then Griffith is clearly liable for not doing so, during the two 'weeks in which he was using the premises to perfect his inventory and purchase.
    VIII. Perhaps the two first members of the sentence in the sixth request to charge, are correct; but if the principles and authorities urged under my first point have any weight, the concluding part of the request cannot be law.
    IX. The first part of the seventh request is not correct. If they had any such right it was not a perfect one. It was at least limited as to time, extent, manner, the public safety, and the public convenience; and it was subject to the will and consent of the public authorities having charge and supervision of the streets. The Common Council have the full control of all the streets and alleys of the city.—Charter of 1861, pp. 41, 42; S. L. of 1857, pp. 97, 98; Angell on Highways, § 241. No one may obstruct, excavate, or in any way lessen the public use of a street, except under a license therefor obtained from the proper authorities, and then only in pursuance of, and subject to, such limitations and restrictions as such authorities'-might impose. — Angell on Highways, §§ 237, 241. No license "to excavate this sidewalk and construct a vault there with this coal-hole was shown ever to have been obtained. The fee of the land, simply, remains in the adjacent proprietors, subject to the public easement.—3 Kent, 572-4. The public easement and use are the paramount objects of a street or highway, and all private rights and interests are subordinate to them.
    X. It has occurred to me to enquire into the nature of this proceeding on error, and ascertain what the rights of parties may be under it. It is a familiar doctrine that a writ of error is a new suit.—2 Tidd’s Practice, 1065; 4 Denio, 81¡.. The assignment of errors is in the nature of a declaration. — 2 Tidd’s Practice, 1107. On a writ of error the judgment below may be reversed in whole or in part.— 2 Tidd, 1128. The plaintiffs in error being plaintiffs in fact as well as in name, and the assignment of errors being a declaration of a joint cause of action, must not the plaintiffs fail as to errors in which they are not jointly interested, the same as plaintiffs fail in all other cases, where they sue jointly, but fail to make out a joint cause' of action ? In this case there is no joint cause of action in any one assignment of error, or in any one of the charges asked and given or refused in the court below; and yet we have here a joint declaration by all the plaintiffs in error. The cause of action here, of the plaintiffs in error, if any they or either of them have, is also clearly several and not joint. In such a condition of things ought not the plaintiffs in error to have severed in their assignments of errors under the rules of the court ? — Rules 35, 36, 37.

    And furthermore, as the cause of action below was seyeral in its nature, and might be severed by the verdict and judgment, and as all the requests to charge were several as to different defendants, why might not and why would not the court, if there had been a proper several assignment of errors, and if error should be. found in the record, sever the judgment here as to different parties, affirming as to part and reversing as to others ?
    And if the Court might and would do this, a joint assignment of errors; as on this record, ought to be fatal to these proceedings, even if errors should be found, provided the plaintiffs in error cannot jointly complain of them.

      If the plaintiffs in error here have linked themselves together in a series of complaints, as to all of which some one or more of the plaintiffs in error have no right to 'complain, they ought to fail as to the whole; the same as .a plurality of plaintiffs generally, in an action at law, must fail if any one or more of them have no cause of action.
   Christiancy, J.

This was an action on the case brought by the defendant in error, against the plaintiffs in' error, to recover damages received by her by falling into a scuttle or hole in the sidewalk on Woodward avenue, Detroit, in front of .a store in what is known as Fishers’ Block, of which said Fishers were the owners, and which they had erected some jears before. The scuttle opened into a vault beneath the sidewalk (as usual in such cases), connecting with the cellar, and was constructed and used for putting wood and •coal into the cellar for the use of the store. It was constructed by the owners in the usual manner, by putting in an iron ring or thimble through the stone sidewalk, and fitting into this an iron cover, coming up even with the surface of the walk, and forming part of it. Some time prior to this accident the thimble had been broken by throwing wood against it, which loosened the cap or cover in such a manner that by stepping on the side of it, it would turn down; and in this way the plaintiff received ■the injury, about dusk on the evening of the 28th December, 1868.

The premises were not in the occupation of the Fishers, the owners, and never had been occupied by them, having always been occupied by tenants - under them. And, some time previous to the accident, this store had been leased to a Mr. and Mrs. Hill, or one of them (it does not definitely appear whether the lease was to Hill or wife, or both, though the wife seems to have owned the stock), and was occupied by them as a drug store, under the lease, up to about the time of, if not after the' accident, which is one of the questions in the case.

On the 16th day of December, 1868, the defendant, John H. Griffith, entered into a verbal negotiation or arrangement with Hill and wife for the purchase of the stock at cost, and for the purchase of the lease and fixtures. The inventory of the stock was completed on the 26th, having been made by Hill and wife and Griffith, and persons employed by them, one of them, Kier, having been employed by Griffith, but paid out of the drawer from sales made prior to the completion of the sale to Griffith; and during the time of making the inventory all the parties had, of course, access to the store, but the key was kept by Iiill, he opening the store in the morning and locking it at night. After the inventory of the stock was completed, delays occurred, in reference to the fixtures, and in reference to the title of a lot in Detroit which the brother of Griffith was to mortgage to secure a part of the purchase money, a search and abstract of which had to be made, and there were consequent delays in executing the bond and mortgage and the bill of sale of the stock. And on the 26th, Hill, seeming to apprehend that the proper securities might not be given, and the sale not be completed, appointed Kier (who had been aiding in taking the inventory) to take charge of the key and the money in the store, till the matter, of the sale should be finally decided^ It seems some goods had been sold from time to time after being placed on the inventory, and these sales still continued, with the apparent understanding that if the sale to Griffith should be completed, the money would be his in place of the goods sold, otherwise it would belong to the Hills.

On the evening of the 28th, about half past five, or between that and six o’clock (which the evidence tends to show was after, — though but a little after the accident), the papers having been examined by Cleaveland Hunt, an attorney in his office, were delivered, and the money and securities handed over, — except the bill of sale of the goods^ to be yet executed by Mrs. Hill, who was not present with her husband at the attorney’s office. The bill of sale was executed afterwards, that evening or the next morning, and received by Griffith in the morning. ' Up to the time of the delivery of the other papers at the attorney’s office, no money or other consideration had been paid by Griffith, and there had been no delivery of the goods or any part of them, nor of the key. And there is no evidence in the record tending to show that Griffith had any possession or control of the premises otherwise than being there by the mere permission of the Hills, as already stated, making the inventory and settling the preliminaries of the purchase.

But after the payment and the delivery of the papers, which took place at the attorney’s office, Griffith, about six o’clock in the evening, and some time after the accident, came to the store and assumed the possession, though he did not receive the bill.of sale of the goods till the next morning

There was no evidence in the -case tending in the least degree to controvert any of the facts above stated, as to the time of the completion of the purchase, or the time when Griffith became entitled to, or took the possession, unless the admission made by him to Wilkins, after the accident, can be construed as such.

Understanding that Wilkins was concerned on the part of the plaintiff in her claim against him for damages, and that he was acting in her behalf,' Griffith, in the course of a conversation with Wilkins (as testified by the latter), said, among other things, that there was a question as to his liability, owing to the fact that neither party had possession of the premises at the time; that they were about transferring the title or lease; that the papers were nearly made out; that they had been executed; and the attorney of the opposite party wished to see them again for the purpose of examining them again, to see if they needed correction, and they had been passed across the table for the attorney of the opposite party to see whether they needed correction, and that about that time the accident must have happened; and for this reason he did not know who was liable. Being further examined Wilkins says, “he said he was in actual possession, but doubted whether he was in the legal possession for the reason stated;” and on cross-examination he further says that Griffith said “there was a question of his liability; that he had not assumed possession.”

Now, we think it clear that all Griffith states here in regard to being in possession, refers to the facts, as stated in all the testimony of witnesses who speak to those facts, and about which there is not the shadow of discrepancy, —and if he did say he was in actual possession, it was accompanied with such qualifications as clearly show that it was, in law, neither an actual nor a legal possession; that in other words he was mistaken in his legal opinion of what constituted possession. About the facts there was no dispute and no discrepancy.

But no kind of possession by him which did not give him the control of the premises, as between him and the Hills, could have rendered him responsible for this accident; as no other could impose upon him, instead of them, the duty of keeping the scuttle in repair. And there was not only no evidence tending to show he had such possession at the time of the accident: but the tendency of all the testimony upon this point was to show that he had yet obtained no such possession, and that the Hills still retained the possession and control; that though he was in the store a part of the time, he was there only by the permission of the Hills, and whatever he or his servants did there was only by their permission.

The plaintiff has doubtless suffered an injury for which she ought to be compensated. But Griffith, so far as appears by the evidence, was as guiltless of all wrong, legally and morally, as the plaintiff herself. And it would be no less a violation of morals or of law to compel him to make good the damages than to leave her to bear them herself. She has no more right, upon any legal or equitable principle, to call upon him than she would have to call upon any customer who might have stepped into the store to purchase a box of pills. The Court, therefore, erred in submitting the question of Griffith’s possession, or his liability, to the jury. There was no evidence tending to establish either.

We will next enquire whether there'was any evidence tending to establish the liability of the Fishers, as owners, who made the excavation and put in the scuttle.

The evidence tended to show that it was in good and safe condition when made, and continued so when leased to the Hills, and there was no evidence of an opposite tendency. It does not appear that there was any provision in the lease, or any agreement of the lessor, to keep the premises in repair.

The Court, at the plaintiff’s request, charged, substantially, that if the jury should find from the evidence that the Fishers constructed the building, scuttle, and improvements, and that from their construction, several years ago, down to the time when the injury occurred, they continued to be and were the owners, they are liable in .this action, though they had leased the same to other parties, — that they were bound to keep the scuttle in good and safe condition while they owned the building and improvements, and it makes no difference that they may not have known that the scuttle was unsafe.

And the Court refused to charge as requested by the defendants,—

“1. That it was not the duty of the Messrs. Fisher, as owners of the building in question, to keep the same in repair while it was occupied by tenants, unless there was an agreement made with the tenants that they (the Fishers) should make the repairs; and that, in the absence of such agreement, they are not liable for the injury complained of, caused by a want of repair, while in the possession of their tenants.
“2. That there is no evidence tending to show that the scuttle was out of repair when the premises were leased; and,'
3. That the Fishers had a perfect right, in erecting their store, to excavate under the sidewalk, if they put the same in a perfectly secure and unobstructed condition; and if the accident to the plaintiff occurred by reason of the negligence of their tenants in permitting the scuttle to get out of repair, and not by reason of any original defect in the manner of making the same, then the Fishers are not liable in this action.”

We think the Court erred both in charging as requested by the plaintiff below, and in refusing to charge as requested by the defendants.

There are some cases in the State of New York which apparently sanction this ruling of the Court, and would hold the owners, who made the excavation, and the scuttle responsible for all injuries resulting from the want of its entire safety, though the owner was guilty of no negligence in the manner of its construction; thus making the owner an absolute insurer against all injuries which may arise from it, without reference to his negligence or vigilance.—Congreve v. Morgan el al., 5 Duer, 495, and same case on appeal, 18 N. Y., 79; and this though the work was well and safely constructed, and was afterwards destroyed or injured by the act of a wrong-doer.—Congreve v. Morgan et al., 18 N. Y., 84; and see Davenport v. Ruckman, 10 Bosw., 20; and Irvin v. Fowler, 5 Robertson R., 482.

But these cases go upon the avowed principle that such excavations in the public street are unlawful in themselves, ab initio; and that no person is authorized to make them without affirmative legislative authority (which however I infer might be by resolution or ordinance of the common council.— Milhau v. Sharp, 17 Barb., 435.) And, if it be conceded that the construction itself was a wrongful acty and in violation of law, then the consequences which the New York courts have drawn from this fact would seem naturally enough to follow upon common-law principles.. This .is well illustrated by the case of Ellis v. Sheffield Gas Co., 2 Ellis & Blackburn, 767, which turns upon this distinction. And if there had been an ordinance of the city of Detroit against making such constructions without special permission of the council, which had not been obtained, ox-forbidding their construction except ixx a certain manner, and such ordinance had beeix violated in constructing this, excavation or the scuttle, perhaps the rule of responsibility adopted by the courts of New York might be applicable to the present case. But it is conceded there was no such ordinance of the city of Detroit, applicable to the construction of this wpx-k (and that no license or permission was obtained from the common council fox- its construction), aixd we are satisfied that, at common law, the making of such excavations under sidewalks in cities, and the scuttles therein, for such purposes as this was made and used for, were not treated as nuisances in themselves, or in any respect illegal, unless the walk was allowed to remain broken up for an unreasonable length of time, or the work was improperly or unsafely constructed; though it would afterwards become a nuisance if not kept in repair.

Judging from the reported cases, the usage or custom of constructing such works in cities seems to have been, in England for a long period, . as general as we know it has been in this country. And, though we find many decided cases in the English books, for private injuries caused by these structures being out of repair, and indictments for obstructing highways and streets in a great variety of ways, we have been cited to no English cases, and have discovered none, in which such works have been held illegal, in themselves, when properly and safely made, without any legislative permission, or that of the municipal authorities-Their legality seems, in all the cases, to have been assumed by the courts without any showing of such special authority or any authority. They have been treated as nuisances when allowed to be out of repair, and private actions have frequently been sustained for injuries received in consequence ; but we find no intimation of their original illegality, when safely and properly constructed. This will appeal- from- the cases cited below upon the question, whether the tenant or the landlord is bound to keep them in repair. And the same view seems to have been quite generally taken in this country, outside of the State of New York.

The principles of the common law applicable' to this question are, we think, clearly stated in Clark v. Fry, 8 Ohio State R., 358, which was an action for damages caused by the plaintiff's falling into an excavation made in the sidewalk (or part of the street) in front of the defendant’s lot, in the city of Toledo, communicating with the cellar; and the Supreme Court of Ohio held that the right of transit in the use of the public highways is subject to such incidental, temporary, or partial obstructions, as manifest necessity requires; and that, among these, are the temporary impediments necessarily occasioned in the building and repairing of houses and lots fronting on the streets of a city, and in the construction of sewers and cellars, etc.; that these are not invasions, but qualifications of the right of transit on the public highway; and the limitation on them is, that they must not be unnecessarily interposed or prolonged; that such temporary obstructions upon the highway, when guarded with due care to prevent danger to the public, and not unnecessarily extended or continued, are not nuisances, and do not require a license from the municipal authority to legalize them, although suitable regulations by city authorities requiring such obstructions to be properly guarded and to prevent them from being made in an improper manner or continued unnecessarily, arc usual and highly proper.

The original erection having been- legal and in a proper and safe condition when the Fishers leased the premises to the Hills, and the injury being received in consequence of the scuttle getting out of repair during the tenancy, were the Fishers liable as owners or otherwise for having failed to keep it in safe condition and repair? The lease, so far as appears, being silent as to who should make repairs, it ■was the duty of the lessees to keep the premises in repair. Gott v. Gandy, 22 Eng. L. & Eq., 173; Leavitt v. Fletcher, 10 Allen, 121; Elliott v. Aiken, 45 N. H., 36; Estep v. Estep, 23 Ind., 114; City of Lowell v. Spaulding, 4 Cush., 277.

And the owners, being out- of possession and not bound to repair, are not liable in this action for injuries received in consequence of the neglect to repair. — See Payne v. Rogers, 2 H. Bl., 350 — a case much like the present, except that it appeared the landlord was to make the repairs, and on this ground alone he was held liable to the plaintiff, to avoid circuity of action. And see, as to the last point, City of Lowell v. Spaulding, above cited, Chauntler v. Robinson, 4. Excheq., 163—that owner, as such, out of possession, not bound to repair; Rich v. Basterfield, 4. M. G. & S., 783; Russell v. Shenton, 3 Ad. & E. (N. S.), 449; Bishop v. Bedford Charity, 1 Ellis & Ellis, 697,—injury from falling through grating, — all the judges agree as to this point, though divided as to the evidence.—Cheetham v. Sampson, 4 T. R., 318. Owner not bound to repair fences when premises leased to tenant.—See also Regina v. Watts, 1 Salk., 357.

The same rule seems clearly settled in Pennsylvania.—Offerman v. Starr, 2 Penn. (State) R., 394; and Bears v. Ambler, 9 Penn. (State), 193. The latter is a case like the present in all its material circumstances. Suit against owner, held not liable, premises having been leased in good order. And in Massachusetts, City of Lowell v. Spaulding, cited above, and in Maryland, Owings v. Jones. 9 Md., 108, a very instructive and well considered case for an injury caused by falling through a vault under sidewalk.

But if the scuttle had been out of repair and unsafe when leased to the Hills, the Fishers might, perhaps, have been held liable. Rich v. Basterfield, above cited, and Todd v. Flight, 9 C. B. (N. S.), 377.

There may be good sense and sound policy in the rule adopted in New York, making owners, constructing such works, liable as insurers against all injuries which may arise from them, irrespective of the question of negligence. But we do not think it is the sense or the policy of the common law.

The assignment of errors is objected to by the counsel for the defendant in error, because it appears to be joint in behalf of both the plaintiffs in error; and yet some of the assignments are upon errors which could only affect Griffith, and others are upon grounds which could only affect the Fishers; and it is urged that the parties should have severed in their assignments of error.

We think there is no ground for this objection, and we are aware of no rule or authority requiring such severance in such'a case. The plaintiffs in error were jointly sued and a joint judgment recovered against them, and all join in bringing the writ of error. The assignment should be considered as joint and several, or joint or several, according to the nature of the error assigned, and as affecting the respective plaintiffs in error.

The judgment must be reversed with costs and a new trial awarded.

The other Justices concurred.