text:
    MAHER v. HASTIE.
    1. Assignment of Claim — Rights-of Assignee.
    An assignment of a claim to complainant held to have been colorable only, leaving the case open to the same considerations as though instituted in the name of her assignor.
    2. Debtor and Creditor — Trust Mortgage — Estoppel.
    A creditor of a corporation who has advised and assisted in litigation designed to defeat a trust mortgage given by it for the benefit of creditors, who has made no claim under the mortgage until after the trustee has sold the property, closed his trusteeship, and paid the other creditors, and who has obtained a judgment against the corporation for an amount in excess of his debt, is estopped to claim any benefit under the mortgage.
    Appeal from Wayne; Donovan, J.
    Submitted February 3, 1904.
    (Docket No. 72.)

    Decided March 23, 1904.
    Bill by Carrie B. Maher against William G. Hastie, trustee, for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    In July, 1901, two laundry companies consolidated under the name of the Chicago Sun Laundry Company. Two persons, named Johnson and Dunne, received two-fifths of the stock; one Stewart and defendant, Hastie, received three-fifths. Johnson was one of the directors and the general manager. The business was a failure. On November 15th Johnson transferred his stock to Dunne, and resigned his position as director, manager, and president. About the same time Johnson assigned all his claims, as creditor of the company, to the complainant, Maher. On November 21st complainant instituted a suit against the company for the claim assigned to her by Johnson. Johnson was the witness. The summons was served upon Dunne as vice-president of the company, and judgment was rendered in favor of complainant for $454, besides costs. In fact", the company was indebted to Johnson only to the amount of $274.65.
    On November 23d a meeting of the directors was held, at which Johnson and Dunne were both present. Dunne did not inform the directors of the suit brought by complainant against the company for Johnson’s claim. At that meeting it was decided by unanimous vote to execute a chattel mortgage to defendant, as trustee, to take charge of the business and sell it for the benefit of the creditors. Johnson and Dunne both acquiesced in this arrangement, but did not inform the directors of the suit brought by complainant. The real indebtedness of the company to Johnson was inserted in the mortgage, without objection from him. Four days after this meeting, complainant took judgment against the corporation, as above stated.
    Pursuant to the terms of the mortgage, defendant was proceeding to the sale, when Dunne, by and with the advice of Johnson, filed a bill for an injunction against the sale, charging fraud on the part of defendant, Hastie, and other stockholders. A temporary injunction was issued. In this bill Dunne alleged that Johnson was the largest creditor of the corporation, that he was willing to let his indebtedness run, and that he neither asked for nor accepted said mortgage. Johnson read this bill, and was therefore cognizant of all its contents. Upon the coming in of the answer, with affidavits accompanying it, the court dissolved the injunction, and the suit was never prosecuted further. Mr. Hastie then sold the property under the mortgage, from which he realized nearly enough to pay all the creditors, except Johnson, and the costs. The balance, some $62, Hastie paid himself.
    The object of this bill is to compel an accounting on the part of Mr. Hastie, and a payment in full to complainant, as assignee of Johnson’s-«claim, of $274.65. The case was heard upon, pleadings and proofs in open court, and the bill dismissed.

      James J. McCann (May & O’Brien, of counsel), for complainant.

      Henderson & Martindale, for defendant.
   Grant, J.

(after stating the facts). It is apparent that the complainant has no real interest in this suit. Johnson is the real party in interest, and is seeking to obtain this amount under cover of the assignment by him to her. About enough money was spent in litigating the chancery suit to pay the claim of Johnson. There was no foundation for that suit. He repudiated the mortgage. His actual claim was merged in a judgment for a much larger amount. He made no claim under the mortgage until defendant had sold the property, closed his trusteeship, and paid the creditors. We think the court was right in holding that Johnson, the real party in interest, did not come into court with clean hands, and that he is now estopped to ask for an accounting or assert any claim against defendant.

Decree affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    PEOPLE v. BLANCHARD.
    1. Criminal Law — Appeal—Conflicting Evidence.
    The court, on appeal in a criminal case, will not weigh conflicting evidence'.
    2. Robbery — Assault With Intent to Rob — Evidence.
    A respondent charged with robbery may be convicted of an assault with intent to rob, though the evidence of the people, if believed, shows the commission of the complete offense.
    3. Same — Instructions—Joint Respondents.
    In a prosecution for robbery, a requested instruction that neither of the respondents could be held responsible for what anybody else did was sufficiently included in a charge that, in order to convict either respondent, there must be evidence of the guilt of that particular respondent, and that it was the duty of the jury to consider the case of each respondent separately.
    4. Same — Credibility of 'Witnesses.
    In a prosecution for robbery, an instruction that the credibility of the witnesses was for the jury, that they should consider the interest of each one in the case, his manner of giving testimony, the opportunity he had for observing, etc., was not objectionable on the ground that it cautioned the jury against the testimony of respondents.
    Error to Houghton; Streeter, J.
    Submitted February 26, 1904.
    (Docket No. 196.)
    Decided March 23, 1904.
    Fred Blanchard and John McLeod were convicted of assault with intent to rob.
    Affirmed.

      JP. H. O'Brien, for appellants.

      Oscar J. Larson, Prosecuting Attorney, for the people.
   Grant, J.

Under an information charging the respondents with the robbery of one Mansau, they were convicted of assault with intent to rob. Mansau was a peddler, and claimed to have been robbed at a lumber camp where the respondents were employed. There are numerous assignments of error, but counsel for the respondents divides them into two classes, — those directed against the sufficiency of the evidence, and those directed against the charge of the court and refusals to give certain requests. ■ . .

There is a conflict of evidence. The prosecuting witness, Mansau, testified positively to facts which, if "true, showed that the respondent Blanchard actually took money from his person, and that respondent McLeod attempted to do it. The respondents and other witnesses present at the time of the affair gave testimony tending to show the innocence of the respondents. In criminal -cases, where there is a conflict, this court will not weigh the evidence to determine the guilt or innocence of the accused. People v. Henssler, 48 Mich. 49 (11 N. W. 804); People v. Hubbard, 92 Mich. 322 (52 N. W. 729).

Even though the evidence on the part of the people, if believed, showed that respondent Blanchard was guilty of robbery, he still could be convicted of the lesser offense of assault with intent to rob. Hall v. People, 47 Mich. 636 (11 N. W. 414); People v. Miller, 96 Mich. 119 (55 N. W. 675).

Error is assigned upon the refusal to instruct the jury that there was no testimony tending to show any concerted action between the respondents, or between them or either of them and anybody else, and that neither of the respondents could be held responsible for what anybody else did whilp the peddler was in the camp. The rights of each of the respondents were sufficiently protected by the following instruction of the court:

“ Bearing in mind what I have said, you are to consider the case of the defendants separately. In order to convict either defendant, however, of the charge made against him in this information, there should be evidence against such defendant which convinces you, beyond a reasonable doubt, of the guilt of that particular defendant. While these defendants are tried together and are charged with a joint offense, it is necessary that evidence should be given against each one of them, and it is within the power of the jury, and it is the duty of the jury, to consider the case of each defendant separately, as though he were on. trial here alone; and if the evidence is not sufficient to convict him, no matter whether it is sufficient to convict the other-or not, then you should consider the case of each one just the same as if he were on trial alone, and you can render a verdict with regard to one which may be one way, and'with'regard to the other which may be the other* way. * * *
“Now, if you find from the testimony in this case, beyond a reasonable doubt, that both of the men who are accused in this case, that is, McLeod and Blanchard, had hold of the peddler with the intention of robbing him, and that McLeod did not take anything from the person, and that Blanchard did, you can find both guilty of robbery. If you find from the testimony in the case that they were not engaged in this common purpose, but that McLeod intended to rob, without having any knowledge or taking any part in Blanchard’s acts and intentions, and was prevented from doing so, you can find him guilty of assault with intent to rob. In either case, as I said, you must be satisfied, beyond a reasonable doubt, that they are guilty, or else it is your duty to acquit them.”

The evidence fully justified these instructions.

Error is assigned upon the following instruction:

“You are to determine the questions of fact which are raised by the testimony in this case, and, in determining those questions, I can give you no assistance whatever, except to say that the credibility of the witnesses' — of all the witnesses in this case — is entirely a question for you. You have heard the testimony given on both sides. You are to weigh the testimony, and consider the testimony of each of the witnesses by the same rule. You will consider the interest that each one has in the case. You will consider his manner of giving his testimony, whether it impresses you as being a truthful statement of what he knows or not. You will consider the opportunities he had for observing, because it appears that some of the witnesses had excellent opportunities for observing what was going on, and some had almost no opportunity, very little. * * *”

The objection urged against this instruction is that it cautioned the jury against the testimony of the respondents. We do not think the iástruction is susceptible of that construction. On the contrary, it would seem to be very favorable to the respondents, for they had the best of opportunities for knowing what took place. The charge as a whole was a clear exposition of the law applicable to the case, and we deem it unnecessary to discuss any of the other errors assigned.

The conviction is affirmed.

Moore, C. J., Carpenter and Montgomery, JJ., concurred. Hooker, J., concurred in the result.


author: Hooker, J.

text:
    PORTER v. LONG.
    1. Partnership — Surviving Partner —Wrongful Appropriation of Funds — Liability for Interest.
    Where a surviving partner wrongfully withdraws money as his own from the partnership funds, he cannot claim immunity from the payment of interest thereon under the rule that a copartner is not chargeable with interest on sums-withdrawn until dissolution; the partnership having been dissolved by the death of the copartner.
    2. Same — Compound Interest.
    A surviving partner who wrongfully withdraws sums of money as salary, and also fraudulently misappropriates assets, is properly charged with interest on interest.
    3. Ancillary Executor — Right to Commissions.
    Where an ancillary executor in Michigan, unnecessarily, and without authority from the Michigan court, takes the estate-to Pennsylvania for distribution, and there asks and obtains-a commission in excess of that allowed by the laws of this State, and the estate is closed in Michigan without any claim on his part for commissions, he is not, on a bill for an accounting, entitled thereto.
    Appeal from Kent; Perkins, J.
    Submitted January 14, 1904.
    (Docket No. 11.)
    Decided March 23, 1904.
    Bill by Millie C. Porter and others against George H. Long, executor of the last will and testament of Arthur B. Long, deceased, and surviving partner of the firm of' A. B. Long & Son, impleaded with another, for an accounting. Prom a decree for complainants, defendant, appeals.
    Affirmed.

      Butterfield & Keeney, for complainants.

      Crane, Norris & Drew, for defendant.
   Hooker, J.

Arthur B. Long, a resident of Pennsylvania, was the owner of large tracts of pine and a sawmill in Michigan. He had also a two-thirds interest in a co-partnership lumber business, in which his son George had the remaining one-third interest, the articles of copartnership being in writing. This relation existing, Arthur B. Long entered into a contract on July 9, 1881, with the firm, whereby he allowed the firm to lumber the lands upon its agreement to pay $4 a thousand stumpage for logs. It is claimed, and this court has once found, that this was a contract of' great liberality towards the son, George. See Porter v. Long, 124 Mich. 594 (83 N. W. 601). A. month after the execution of the contract, Arthur B. Long made his will. Lumbering operations began under this contract about May, 1882, and on December 5, 1882, a contract was made between the same parties for shingle stumpage.

George H. Long resided in Michigan, and was active in the management of the copartnership affairs. Arthur B. Long continued to reside in Pennsylvania, where he had large business interests. He died on June 23, 1884. George H. Long carried on the business, as surviving partner, until 1890, in much the same way as it had been conducted before his father’s death, and acted also as one of the executors of his father’s estate. He made annual reports to the orphans’ court in Pennsylvania of the alleged proceeds of the copartnership business, where such proceeds were distributed, and he also filed annual reports in the probate court for Kent county, Mich.

In February, 1895, George H. Long, as executor, mortg’aged the undivided twó-thirds of the mill property in Grand Rapids under an order made by the Kent county probate court. This mortgage was for $2,666.66, and ran to George H. Long’s wife. On the same day he and his said wife mortgaged the other one-third of the property to Mrs. Long’s brother for $1,333.34, and the same day it was assigned to Mrs. Long, who paid over to her husband $4,000 for the two mortgages. These mortgages were afterwards foreclosed. George H. Long’s brothers and sisters resisted the foreclosure proceedings, but without avail. The case came to this court, and will be found reported in 118 Mich. 174 (76 N. W. 374), under the title of Long v. Landman.

The trial of that cause developed much feeling between George H. Long and his brothers and sisters, and its final disposition was followed by the filing of a bill for accounting; i. e., the bill in this cause. A decree was made settling some of the questions raised, and sending the case to a commissioner to state the account. An appeal was taken, and the case is reported in 134 Mich. 584 (83 N. W. 601). The case has since been to the commissioner, whose report to the circuit court was confirmed in most particulars, and we are asked by defendant George H. Long to review the decree.

The questions to be considered are stated in defendant’s brief as follows :

“1. Whether or not the defendant, as surviving partner, is chargeable with the sum of $7,078.70 for additional stumpage, and $8,848.37 interest thereon, or with any sum whatsoever for stumpage, beyond the woods scale of the stumpage, as appears on the books of A. B. Long & Son, and for which he had accounted before bill filed.
“ 3. Whether or not the defendant, as surviving partner, is chargeable with the sum of $34,348.87 for interest upon the sum of $19,300 as part of salary drawn out of the firm, or any sum whatsoever, beyond the sum of $16,775.50, paid into court by the defendant on the 37th day of October, 1900.
“ 3. Whether or not the defendant is chargeable with the sum of $108.05 for a duplicate credit for the taxes of 1884, and $114.40 interest thereon, or any sum whatsoever. '
“4. Whether or not the defendant is chargeable with the sum of $45.73 for the additional stumpage value of 114,396 feet of hemlock cut by the defendant on the land of A. B. Long in Millbrook township, but not under the contract of July 9, 1881, and interest on the same, $36.18, or with any surp whatsoever for hemlock stumpage.
“5. Whether or not the defendant is chargeable with a certain proportion of the rent of the house of A. B. Long situated in Millbrook township, and interest on the same, and the proofs should be again opened to show the rental value, if any.
“ 6. Whether or not the estate of Arthur B. Long, deceased, was administered in the probate court for the county of Kent, in the State of Michigan, by the defendant.
“ 7. Whether or not the defendant was entitled to his statutory commissions upon the sum of $557,048.27, collected and accounted for by him as executor of the estate of A. B. Long, deceased, ih Michigan.
‘ ‘ 8. Whether or not the payment into court by the defendant of the sum of $16,775.50 was not a full payment of the defendant’s liabilities to the complainants.
“9. Whether or not the defendant is chargeable with the bill of Commissioner Brown of the sum of $900 for 45 days’ work at $20 per day.
“ 10. Whether or not the defendant is chargeable with all the costs of the accounting.”

Stumpage. A large amount of testimony appears in the record, and an extended discussion is made in the briefs, of the circumstances which, in the absence of satisfactory bookkeeping, are relied on to determine the amount of stumpage chargeable to the firm. We are of the opinion that the evidence fully justifies the conclusion reached by the circuit court that the estate was defrauded through' a short scale. It is claimed that the will contemplated an annual distribution of the estate’s share of the proceeds of this business, and George H. Long seems to have so construed it, for he claims to have distributed annually the available assets, even to the extent of reducing the same to $134, and making it necessary to mortgage the mill property to provide money to pay taxes and assessments. The sum due the estate for timber not accounted for was converted to other uses, — that is to say, it was treated as profits, and divided as such, George H. Long receiving his one-third as copartner; whereas it should have been paid to the executor, and divided, in which case he would have received but one-fifth of said one-third. It follows that the commissioner was right in finding that four-fifths of the sum so appropriated, with interest, was due to these complainants from George H. Long. It is what rightfully belonged to them of the money given to him from this item in the distribution of estate funds. There is no reason why he should not pay interest upon the same from the various dates upon which he received it.

No controversy should arise over complainants’ claim to a share of the amount wrongfully taken for salary. It was settled by our former decree, and we are of the opinion that the court correctly held, that George H. Long was not entitled to compensation for his services in closing up the copartnership affairs. It was proper to compute interest upon the installments of .interest upon both the shortage and the amount taken as salary, the sums being fraudulently or wrongfully taken in both instances. There is no equity in the claim of immunity from payment of interest under the rule that a copartner is not chargeable with interest until dissolution upon sums withdrawn from the copartnership funds. The sums in each instance were taken by George H. Long as surviving partner under a claim that they were his own, — the salary upon a claim for services, and the remainder as profits upon a distribution. He sustained the relation of trustee, and was recreant to the same, availing himself of his opportunity to despoil the copartnership of its funds and his copartners of their shares. We understand that death dissolved this copartnership, and that the rule is general that a surviving partner who appropriates the funds of the concern to his own use is chargeable with interest, gee Hannahs v. Hannahs, 68 N. Y. 610; Crabtree v. Randall, 133 Mass. 552; Dunlap v. Watson, 124 Mass. 305; Donahue v. McCosh, 70 Iowa, 733 (30 N. W. 14); Allen v. Woonsocket Co., 13 R. I. 146. Our own case of Heath v. Waters, 40 Mich. 457, indicates the fallacy of defendant’s claim. It is there held that a surviving partner is a trustee, and chargeable with interest for misappropriation of the co-partnership-funds. See Loomis v. Armstrong, 49 Mich. 525 (14 N. W. 505); Blodgett v. City of Muskegon, 60 Mich. 589 (27 N. W. 686); Perrin v. Lepper, 72 Mich. 553, 556 (40 N. W. 859); Killefer v. McLain, 78 Mich. 252 (44 N. W. 405).

We think it unnecessary to discuss the small items numbered 3, 4, and 5 further than to indicate our approval of the decree in relation to them.

The eighth item is covered by what has been said. It is obvious that the payment into court of $16,775.50 was not a full payment of defendant’s liabilities.

Items numbered 6 and 7 raise questions relating to the statutory commissions claimed by defendant upon the sum of $557,048.27, collected and accounted for by him as executor of the estate of A. B. Long in Michigan. The commissioner reported:

“I find from the evidence in the case, and hereby certify, that no part of the estate of A. B. Long was administered in the probate court for the county of Kent, Michigan; that the moneys realized by George H. Long, as executor in the State of Michigan, were taken by him directly to the orphans’ court of Mifflin county, Pennsylvania, and that the moneys realized by him as surviving partner of the firm of A. B. Long & Son in Michigan were turned over to himself as executor of the estate of A. B. Long, deceased, for the State of Pennsylvania. It will be observed that the accounts of the executors for each year, as filed in said orphans’ court, Pennsylvania, bear date prior to the date of the accounts file'd in the probate court for the county of Kent, covering the same period, and the Pennsylvania accounts in each instance contain statements of the Michigan business.
“ The executors in the State of Pennsylvania received a commission of 5 per cent, on all of the moneys by them accounted for in that State, except an item of $17,000, farm in Derry township, upon which they received 3 per cent.; and that includes at 5 per cent, certain lots in the city of Grand Rapids and the farm in Millbrook township, which sold for $5,500. No part of the estate of A. B. Long, deceased, thus far realized, has been submitted by the executor in Michigan for administration in the probate court for Kent county.
“I find, as a matter.of law, that George H. Long is not entitled to any commission as executor in Michigan on the moneys there realized from the estate of A. B. Long, deceased. He received in Pennsylvania commissions on the same moneys larger in amount than those authorized by the laws of Michigan, and I find that those commissions allowed in Pennsylvania, and by him received, were designed to cover all services rendered by George H. Long in getting in the money, as well as in distributing the same. It will be observed that the item in the executors’ accounts in Pennsylvania for fees bases its claim therefor for ‘time, trouble, and services,’ etc.”

Counsel for defendant say:

“The orphans’ court of Mifflin county, in the State of Pennsylvania, had no jurisdiction over the estate of the deceased in Michigan, nor over the ancillary executor; while the probate court for the county of Kent, in the State of Michigan, had exclusive jurisprudence over the estate of the deceased in Michigan, over the ancillary executor, and over the settlement of his accounts. The appellees claim that Mr. Long is not- entitled ‘ to plunder the estate ’ with double fees; but the commissions claimed in Michigan are for services not rendered in the State of Pennsylvania, and for services rendered in the State of Michigan by the defendant.”

The testimony shows that the estate in Michigan unnecessarily, and without authority from the Michigan probate court, was taken to Pennsylvania for distribution, and the executors there asked and obtained a maximum commission for a minimum of labor. The estate was afterwards closed in Michigan, and no allowance was made to the executors. The defendant testified that he never claimed any. We think he is not equitably entitled to any, even if, under any circumstances, compensation might be allowed in two jurisdictions, which we do not decide.

We do not overlook complainants’ alleged laches in bringing suit. Neither do we think the point well taken.

We see no occasion to disturb the decree in regard to the allowance to the commissioner and costs. It is therefore affirmed, with costs of this court.

Moore, C. J., Carpenter and Montgomery, JJ., concurred. Grant, J., took no part in the decision.


text:
    AUDITOR GENERAL v. SHERMAN.
    1. Taxation — Sales to State — Cancellation—New Proceedings — Rights of Subsequent Purchaser.
    A purchaser at a tax sale is chargeable with notice of prior outstanding State titles, and liens, and is required by the statute to buy in such titles.at the time of his purchase. Hence, where the auditor general, acting under section 139 of the tax law (Act No. 169, Pub. Acts 1899), canceled certain sales to the State, in consequence of which a purchaser at a sale for the taxes of a subsequent year was relieved from buying such titles, the State was not precluded, as against such purchaser, from taking new proceedings to enforce the taxes for which the sales so canceled were made; nor, in this view, could the purchaser be said to have been prejudiced by the fact that the auditor exceeded his authority in canceling such sales.
    3. Same — Authority of Auditor General.-
    Section 139, aforesaid, did not enlarge the powers of the auditor general as to the grounds on which he might cancel sales.
    3. Same.
    But he has authority to cancel a sale where the decree on which it is based is void upon its face.
    Appeal from Gogebic; Haire, J.
    Submitted February 26, 1904.
    (Docket No. 193.)
    Decided March 23, 1904.
    Petition by Perry F. Powers, auditor general, for the sale of lands delinquent for taxes: On objections filed by James E. Sherman. From a decree for respondent, petitioner appeals.
    Reversed.

      Charles A. Blair, Attorney General, and Samuel S. Cooper, Prosecuting Attorney (Charles W. McGill, of counsel), for petitioner.

      ■M. J. Shemvood (B. J. Brown, of counsel), for respondent.
   Hooker, J.

This cause is before us on appeal from a circuit court decree rendered upon the annual petition of the auditor general for the foreclosure of tax liens, filed in January, 1903.

In 1901 the State was the apparent owner of all of the premises included in this case as State tax lands, covering taxes for the years from 1891 to 1899, inclusive. Becoming satisfied that some of these years’ proceedings could not be sustained, the auditor general canceled them for all years except for the taxes of 1891 to 1894, inclusive, §.nd obtained a new decree, and sold the lands under such decree to the defendant, Sherman, at the delinquent sale held in May, 1902. No question can be raised over the validity of this sale, for, whether regular or not, the decree is final, under the case of Peninsular Sav. Bank v. Ward, 118 Mich. 93 (76 N. W. 161, 79 N. W. 911), not being open to collateral attack. When the petition was filed in such proceeding, it left the State holding title to the land as State tax lands for the years 1891, 1892, 1893, and 1894; and it is now claimed that the effect of this decree and sale was to cut off said title and any lien that the State might otherwise have had for the earlier years of 1891, 1892, 1893, and 1894.

After the petition was filed, but before sale, and possibly before decree, the auditor general canceled the title and decrees for the years 1891, 1892, 1893, and 1894. This occurred March 2, 1902, and the next year such taxes were included in the annual petition. The appellee, Sherman, holding title under the sale of 1902, appeared, and contested said proceedings, which resulted in a decree in his favor, and the State has appealed. He contends:

1. That, by selling the lands at delinquent sale in 1902, the State precluded itself from setting up any title or lien for taxes of earlier years.
2. That, if this is not so, the cancellation was void, and cannot support foreclosure proceedings, the lands still being- State tax lands in such case.
3. That, in any event, he should be allowed to have his sale canceled, and the money paid for his title refunded.

The first contention rests upon the proposition that earlier tax titles and liens are cut off by the later, under section 72 of the tax law (1 Comp. Laws, § 3895), which provides that “such deeds shall convey an absolute title to the land sold, and be conclusive evidence of title in fee in the grantee, subject, however, to all taxes assessed and levied on such lands subsequent to the taxes for which the same was bid off.” It has not been the general policy of the State to cut off its own State tax titles by delinquent or other sales. Thus it always required the purchase of anterior State bids with any particular State hid, where lands were bought from the auditor general. See State Tax Law, § 84 (1 Comp. Laws, § 3907). And the same is true at delinquent sales. See State Tax Law, § 80 (1 Comp. Laws, § 3903). Had not the tax decrees for 1891, 1892, 1893, and 1894 been canceled before sale, the respondent would not have been allowed to make his purchase in 1902 without at the same time purchasing the title for these years 1891, 1892, 1893, and 1894. In relieving him from this requirement, the auditor general proceeded under section 139 of the tax law (Pub. Acts 1899, Act No. 169), which provides:

“ The auditor general may cause an examination to be made of the proceedings under which any lands bid to the State, and which have not been deeded by the auditor general, were sold for delinquent taxes and bid to the State under the provisions of any general tax law, and if lie shall find that such sales, or the decrees under and by virtue of which such sales were made, were in contravention of any provision of the laws in force at the time such decrees were entered or sales made, he may cancel such sales, and proceed at any time to enforce the collection of such taxes under and in accordance with the provisions of this act, as in the case of lands returned or sold thereunder.
“ This act is ordered to take immediate effect.
“Approved June 23, 1899.”

This act attempts to give the auditor general authority to enforce the lien,'which, by reason of defective foreclosure proceedings, is not marketable. Tbe purchaser of land is always chargeable with notice of outstanding taxes and tax liens of the State, and this section was not designed to change this rule, or to relieve the purchaser therefrom. Section 72' should be construed in connection with this section, and so construed as not to permit a purchaser to escape this outstanding lien, which is being enforced under section 139, by a strict construction of section 72. As we said in Schulte v. Auditor General, 131 Mich. 676 (92 N. W. 417), “this land is in a class by itself,” and is governed by sections 138 and 139. It is true that the Schulte Ca'se arose between the State and the original owner of the land, who was under an obligation to pay these taxes; but this was not the case in Auditor General v. Newman, 135 Mich. 288 (97 N. W. 703), which fairty covers this question. The purchaser at delinquent sales is as clearly chargeable with outstanding State titles as is the original owner, and the law does not permit him to buy without providing for them.

This disposes of the main question in the case, but the appellee urges his right to resist the decree upon the ground that the auditor general had no authority to cancel these proceedings, and that they are still State tax lands, which cannot lawfully be included in the petition and decree. It is said also that section 139 does not apply when the land has been sold. We may dispose of the last objection by saying that these lands had not been deeded or sold by the State on March 2, 1902, when this cancellation was made.

Unless section 139 enlarged the powers of the auditor general as to grounds upon which he may cancel sales (and we do not think it had that effect), we must conclude that two of the items would not have been lawfully canceled as against the protest of the State. The other two were lawfully canceled, for the decrees were apparently void upon their faces. See Peninsular Sav. Bank v. Ward, 118 Mich. 94 (76 N. W. 161, 79 N. W. 911), for the rule as to the former; Miller v. Brown, 122 Mich. 147 (80 N. W. 999), McGinley v. Mining Co., 121 Mich. 88 (79 N. W. 928), and Peninsular Sav. Bank v. Ward, supra, as to the latter. If the cancellation is void, the appellee has succeeded in obtaining a deed when not entitled to it, for it was the duty of the treasurer to require payment for all State tax land titles at the time of purchase in 1902, and it would not be unreasonable to hold that even tax liens outstanding are within the spirit of that requirement. The State is not here complaining, and we. do not see that the appellee is injured by the cancellation of the State’s title and the institution of new proceedings to foreclose the original lien.

The third point is substantially covered by what has been said. With notice of the requirements of the law, he must have known that sooner or later, in one form or another, he must pay the lien of the State.

The decree of the circuit court is reversed, and a new decree will be entered in áccordance with the prayer of the petition, with costs of both courts.

Moore, C. J., Carpenter and Montgomert, JJ., concurred. Grant, J., took no part in the decision.


author: Carpenter, J.

text:
    PEOPLE v. SHULER.
    1. Intoxicating Liquors — Local Option Law — Constitutionality — Amendment of Statute — Publication.
    Act No. 183, Pub. Acts 1899, which purports to repeal séction 7 of the local option law, to amend various other sections thereof, and to add a new section, and which re-enacts and publishes at length the new and amended sections, but not those not amended, is not, because of such omission, repugnant to section 25, art. 4, of the Constitution, providing that no law shall be revised, altered, or amended by reference to its title only, but the act revised, and the sections altered or amended, shall be re-enacted and published at length.

      2. Same — Druggists—Reports—Discrimination.
    The provision of the local option law (section 25, Act No. 183, Pub. Acts 1899), requiring druggists in counties where it is in force to make weekly reports to the prosecuting attorney of sales of liquor, is not unconstitutional for discrimination against such druggists as compared with those doing business in other counties.
    3. Same —Witnesses—Self-Incrimination.
    Nor is such provision obnoxious to section 32, art. 6, of the Constitution, providing that no person shall be compelled, in 'any criminal case, to be a witness against himself. People v. Henwood, 123 Mich. 317, followed.

    4. Criminal Law — Preliminary Examination — Separate Offenses.
    The rule that one should not be subjected to trial for two separate and distinct offenses at one time would seem to have no application to preliminary examinations before a justice.
    5. Same — Violation of Local Option Law — Election of Counts.
    In any event, where, in a prosecution for a violation of the local option law, the people were required to elect between counts charging a specific illegal sale of liquor and the keeping of a place for such sale, respectively, respondent was not prejudiced by the fact that he was examined before the justice and held for trial on both charges.
    6. Same — Sufficiency of Information — Negativing Exceptions.
    An information for a violation of the local option law need not negative the exceptions contained in the proviso to section 15 (Act No. 183, Pub. Acts 1899), relative to sales of wine for sacramental xiurposes, of alcohol for medicinal, scientific, etc., purposes, and of wine and cider made from home-grown fruit.

    7. Criminal Law — Trial—Instructions.
    The action of the court in complying with the request of the jury in a criminal case, made after they had retired, for information as to certain testimony which had been produced before them, was within his discretion, and not ground for reversal.
    8. Same — Intoxicating Liquors — Unlawful Sales by Druggist.
    Under 2 Comp. Laws, § 5381, making it unlawful for druggists to sell liquor to be drunk on the premises, the purpose of the sale may be proved by what was said or done before or at the time of the sale; and an instruction that a druggist would not be guilty if nothing was said or done “ after ” the purchase to indicate the buyer’s intention to drink the liquor on the premises was properly refused.
    9. Same — Burden of Proof.
    An instruction that a druggist has no right to rely on the statement of a purchaser of liquor as to the purpose for,which it is desired, without acting in perfect good faith in view of all the circumstances, is not open to the objection that it places on respondent the burden of showing good faith, when considered with other portions of the charge fully and fairly stating the law with reference to reasonable doubt and the presumption of innocence.

    Exceptions before judgment from Eaton; Smith, J.
    Submitted February 26, 1904.
    (Docket No. 200.)
    Decided March 23, 1904.
    Oliver P. Shuler, Sr., was convicted of violating the local option law.
    Affirmed.

      Lyman H. McCall and Frank A. Dean, for appellant.

      Lewis J. Dann, Prosecuting Attorney, for the people.

       See, also, People v. Robinson, 135 Mich. 511 (98 N. W. 12).

       See, also, People v. Rall, 135 Mich. 510 (98 N. W. 3).

       See, also, People v. Robinson, 135 Mich. 512 (98 N. W. 12).

   Carpenter, J.

Respondent, a druggist in the city of Charlotte, was convicted in the court below under an information charging him with keeping a place where intoxicating liquors were sold, in violation of the local option law in force in Eaton county; the same being Act No. 183 of the Public Acts of 1899. We are asked to set aside the conviction for several reasons.

It is contended that Act No. 183 is unconstitutional, for several reasons: '

(a) That it is unconstitutional because it violates section 25 of article 4 of the Constitution of Michigan. This section reads:

“No law shall be revised, altered, or amended by reference to its title only; but the act revised, and the section or sections of the act altered or amended, shall be reenacted and published at length.”

Act No. 183 of the Public Acts of 1899 purports to repeal section 7 of Act No. 207 of the Public Acts of 1889, to amend various sections of said act, and to add a new section, viz., section '25. The amended sections and the new section are re-enacted and published at length. It is the contention of respondent that “the whole of the revised act [that is, the sections not amended, as well as those amended] should and must, under the Constitution, above quoted, be re-enacted and published in full.” We think this contention is answered by People v. Pritchard, 21 Mich., at page 241, where it is said:

“ It is a full compliance with the terms as well as the purpose of that provision [viz., the constitutional provision under consideration] if the section as amended is set forth at length, with such reference to the old law as will show for what the new law is substituted.”

See, also, People v. Judge of Superior Court of Grand Rapids, 39 Mich. 195; Gordon v. People, 44 Mich. 485 (7 N. W. 69); and People v. Mahaney, 13 Mich., at page 496, where it is said:

“ If, whenever a new statute is passed, it is necessary that all prior statutes modified by it by implication should be re-enacted and published at length as modified, then a large portion of the whole code of laws of the State would require to be republished at every session, and parts of it several times over, until, from mere immensity of material, it would be impossible to tell what the law was. If, because an act establishing a police government modifies the powers and duties of sheriffs, constables, water and sewer commissioners, marshals, mayors, and justices, and imposes new duties upon the executive and the citizen, it has thereby become necessary to re-enact and republish the various laws relating to them all as now modified, we shall find, before the act is completed, that it not only embraces a large portion of the general laws of the State, but also that it has become obnoxious to the other provisions referred to, because embracing a large number of objects, only one of which can be covered by its title.”

The case of Mok v. Savings Ass’n, 3Ó Mich. 511, relied upon by defendant, is so obviously different from the case at bar that it has no application.

(6) It is contended that the statute is unconstitutional because it discriminates against druggists doing business in a local option county, like Eaton, as compared with druggists in the counties in which that law is not in force. It seems to us that that contention is answered by the decision of this court holding our local option act constitutional. See Feek v. Bloomingdale Township Board, 82 Mich. 393 (47 N. W. 37, 10 L. R. A. 69). It followed from that decision that, in the judgment of this court, discrimination of this character was lawful, and this decision is in harmony with the decisions of the Supreme Court of the United States. Missouri v. Lewis, 101 U. S. 22; Chappell Chemical & Fertilizer Co. v. Sulphur Mines Co., 172 U. S. 474 (19 Sup. Ct. 268); Magoun v. Savings Bank, 170 U. S. 283 (18 Sup. Ct. 594).

(c) This statute requires the druggist, each week, to make a report to the prosecuting attorney, stating the details of sales of liquor made by him during> the preceding week. It is contended that this, in effect, compels the defendant to be a witness against himself, and therefore violates section 32, art. 6, of our State Constitution. This contention is answered by People v. Henwood, 123 Mich. 317 (82 N. W. 70), with the reasoning of which we are fully satisfied.

The warrant charged two separate and distinct crimes of the same degree, viz., that of making a specific illegal sale of liquor, and that of keeping a place for the illegal sale of liquor. Respondent was examined on both these charges, and the justice bound him over on both, and declined to compel the prosecution .to elect upon which charge it should proceed. Subsequently respondent moved to quash the information on the ground that he had not had the preliminary examination to which he was entitled. It is contended that he did not have this examination because he was examined beforé and bound over by the justice on two charges, instead of on the one upon which he was convicted. In support of this contention, defendant says that he was entitled to know upon what charge he was being held to the "circuit. See Yaner v. People, 34 Mich. 286. This principle and authority manifestly have no application. Respondent did know upon what charge he was held to the circuit court.

It is well settled (see People v. Rohrer, 100 Mich. 126 [58 N. W. 661]; Tiedke v. City of Saginaw, 43 Mich. 64 [4 N. W. 627]; People v. Jackman, 96 Mich., at page 275 [55 N. W. 809]) that one should not be subjected to trial for two separate and distinct offenses at one tim'e. The reason for this rule is stated to be, “ The jury might agree upon a verdict of guilty, while unable to agree upon any one of the charges.” Tiedke v. City of Saginaw and People v. Jackman, supra. So far as we are informed, this rule has never been applied to preliminary examinations before a justice, and the reason for the rule, as stated above, would not make it applicable there. Moreover, the two charges against respondent were not separate and distinct charges. Under 2 Comp. Laws, § 5429, the specific illegal sale was presumptive evidence that respondent kept a place where liquors were sold. The examination before the justice, then, on these two charges, took no wider range than it would have taken had respondent been charged only with keeping a place where intoxicating liquors were sold in violation of law. He cannot complain, therefore, that he did not have,'on this charge, the examination to which he was entitled. His rights were fully protected when the circuit judge compelled the prosecuting attorney to elect on which count the trial should proceed.

It is contended that the information was defective in not negativing se.ction 15 of Act No. 183 of the Public Acts of 1899, which provides as follows:

“Nothing in this act shall be so construed as to prohibit the sale of wine for sacramental purposes, nor shall anything herein contained prohibit druggists or registered pharmacists from selling or furnishing pure alcohol for medicinal, art, scientific, and mechanical purposes, nor prohibit the sale of wine or cider from home-grown fruit in quantities of not less than five gallons.”

We think this contention not well .founded.

“ In declaring on a statute, where there is an exception in the enacting clause, the pleader must negative the exception; but where there is no exception in the enacting clause, but an exemption in a proviso to the enacting clause, or in a subsequent section of the act, it is matter of defense, and must be shown by the defendant.” Myers v. Carr, 12 Mich., at page 71.

See, also, People v. Phippin, 70 Mich., at page 11 (37 N. W. 888); People v. Pendleton, 79 Mich., at page 320 (44 N. W. 615).

After the jury had retired to consider their verdict, they wished information as to certain testimony which had been produced before them, and the court complied with their request. We think this was a matter within the discretion of the court, and that it was not reversible error.

Complaint is made because the trial court did not charge the jury, as requested by respondent, as follows:

“ There is some evidence in the case that the witness who acted in the capacity of alleged detective, after he purchased the beer on the 30th of August, if any such beer was purchased, took the same to the back door of the drug store, and drank a portion of it, and poured the balance on the ground. Now, I charge you that if nothing was said or done after the purchase of the beer which was purchased by them, if at all, to indicate that it was their intention to take such beer into the back yard, and there drink it, then the respondent would not be guilty of the sale of such beer to be drank on the premises, because it is only where a sale is made with knowledge on the part of the seller that the same is to be drank upon the premises that the seller can be convicted.”

This request was properly refused. If respondent sold beer to be drank upon the premises, such sale was illegal, under section 5381 of the Compiled Laws. Yet, under the language of this request, this purpose of respondent could be proved only by something that was said or done after the purchase. Obviously this is wrong. The purpose might be proved by what was said or done before or at the time of the sale.

In charging the jury, the court said:

‘ ‘ If the druggist acts in good faith in making the sale, he has a right to rely upon the statement made by the purchaser as to the purpose to which the liquor is to be applied, and he has a right to rely upon such statement explicitly, unless circumstances or facts known to the druggist show such statement to be false, and are sufficient to satisfy him, acting in good faith, and in an honest endeavor to obey the law, that the purpose is not such as is stated by the purchaser. The law does not require him to enter into an extended investigation, nor to refuse to sell to a stranger without investigation and proof of the truth of the assertion of the purpose by the purchaser; but no druggist in Eaton county has a legal right to sell intoxicating liquors to any person claiming to purchase such liquor of the druggist for any purpose for which he is permitted to sell under the law, relying upon the statement of the purchaser as to the purpose for which such purchase is made, without acting in perfect good faith in view of all the surrounding circumstances of such sale, and with an honest purpose and endeavor to obey the law. ”

We are not called upon to consider the precise accuracy of this statement. We are called upon to determine the justice of defendant’s complaint. That complaint is that the latter clause of this charge improperly placed upon respondent the burden of proof; that it informed the jury “that the defendant had to establish his perfect good faith, etc., when, as a matter of law, the people were required to establish the defendant’s bad faith.” We do not think this complaint well founded. That thought is not conveyed by the language. In passing upon this question, it is to be presumed that the jury would bear in mind the charge of the court that “the respondent is presumed to be innocent until the contrary is proved, and this presumption follows and surrounds him throughout the entire trial, and applies to every element of the offense ■which is necessary to sustain a conviction, until such presumption is removed by proof on the part of the people;” and, “whenever a man is charged with crime, the law requires the people to satisfy you beyond a reasonable doubt that he is guilty of the crime charged, before he can be convicted.”

In our judgment, the record discloses no reversible error, and the conviction will be affirmed.

Moore, C. J., Montgomery 'and Hooker, JJ., concurred. Grant, J., took no part in the decision.

       But see People v. Remus, 135 Mich. 630 798 N. W. 397, 100 N. W. 403).


author: Per Curiam.

text:
    HUGHES v. LOVE.
    1. Chancery Appeals — Settlement op Case — Statutes—Singleness op Object.
    Act No. 186, Pub. Acts 1895 (3 Comp. Laws, § 10188), entitled “An act to provide for the examination of witnesses in open court in causes in chancery, and for the settlement of the evidence taken upon such examination and hearing, and for the settlement of a case where the'evidence is taken before a circuit court commissioner,” does not violate section 20, art. 4, of the Constitution, providing that no law shall embrace more than one object, which shall be expressed in its title; every provision of the act relating to the general object of taking testimony in chancery cases.
    2. Same — Testimony Taken Before Commissioner — Construction op Statute.
    Said act, in so far as it provides for the settlement of a case where the testimony is taken before a commissioner, is permissive only, and such testimony may still be transmitted to the Supreme Court by the register in chancery, as provided by 1 Comp. Laws, § 552.
    3. ' Same — Failure to Transmit Exhibits — Remedy.
    Failure to transmit books and exhibits constituting a part of the testimony taken before a commissioner in a chancery case is not ground for dismissing an appeal, the remedy being to have them transmitted.

      4. Same — Extension op Time to Settle Case.
    , An appellant in a chancery case -who elects to have the testimony transmitted by the register under 1 Comp. Laws, § 553, is not entitled to an extension of time to settle the case under 3 Comp. Laws, § 10188.
    Bill by Fred W. Hughes against William Love for a partnership accounting. There was a decree for complainant, and defendant appealed. On motion by complainant to dismiss the appeal, and by defendant for an order extending the time to make and settle a case.
    Submitted March 15, 1904.
    (Calendar No. 20,242.)
    Motions denied March 23, 1904.

      Crane, Norris & Drew, for complainant.

      B. A. & W. E. Hawley, for defendant.
   Per Curiam.

The testimony upon which this case was heard in the lower court was taken before a circuit court commissioner. From a decree in favor of complainant, defendant appeals to this court.

The testimony taken before the commissioner was not settled as required by Act No. 186, Pub. Acts 1895 (section 10188, 3 Comp. Laws), and a large number of books and exhibits which constituted a part of the testimony taken before the commissioner were not transmitted with said testimony. Because said testimony was not settled as required by said statute, and because said exhibits and books were not transmitted with the appeal, complainant moves to strike said testimony from the files in this court, and to dismiss said appeal. Defendant insists that said act is unconstitutional, and, if not, that, properly construed, it did not require the testimony in this case to be settled". He also moves for an order extending'the time to make and settle the case.

The act in question provides ‘ ‘ for the examination of witnesses in open court in causes in chancery, and for the settlement of the evidence taken upon such examination and hearing; and for the settlement of a case where the evidence is taken before a circuit court commissioner.” It is contended that this violates section 20 of article 4 of the Constitution, which provides, “ No law shall embrace more than one object, which shall be expressed in its title.” We do not think this contention tenable. Every provision of this act relates to the general object of taking testimony in chancery cases. The act, therefore, has but one general object, and is not unconstitutional. See People v. Mahaney, 13 Mich. 481; Kurtz v. People, 33 Mich. 279; Attorney General v. Amos, 60 Mich. 372 (27 N. W. 571); Wardle v. Cummings, 86 Mich. 395 (49 N. W. 212, 538); Bissell v. Heath, 98 Mich. 472 (57 N. W. 585).

Does the act require that testimony taken before a circuit court commissioner shall be settled by the judgó as a condition to a review upon that testimony in this court ? Prior to the passage of this act, it was not necessary to have such testimony settled by the judge, as is shown by section 552, 1 Comp. Laws. Has the act changed that practice ? That. depends upon the construction of this language:

“And provided further, that in all cases, and whether the same shall be so tried in open court, or the testimony shall have been taken by deposition or before a circuit court commissioner, either party shall be entitled to make and settle a case setting forth in substance all the evidence taken or read at the hearing, following as far as practicable the making of cases for review at law before the judge who tried the same, at such time and in such manner as is now provided by rule for the settlement of bills of exceptions in cases at law. And ouch case, so made and filed within sixty days after the entry of the final order or decree therein, shall be deemed and held to be the evidence therein for all purposes of review on appeal to the Supreme Court. * * * And upon the case so made and filed as herein authorized, an appeal may be taken to the Supreme Court by any of the parties to such suit; as in ordinary chancery causes.”

Is this language mandatory or permissive ? We think it permits, but does not require, testimony taken before a commissioner to be settled before the court as a condition of appeal. We do not think the legislature intended to abolish the practice then existing. The concluding words of the section indicate that ordinary chancery causes — and these words, when they were Originally used in this connection, referred to cases in which testimony is taken before a commissioner (see Act No. 26 of the Public Acts of 1877) — can be reviewed by the Supreme Court as provided in section 552, 1 Comp. Laws, without the testimony being settled as required by this statute.

It results from these views that appellee’s motion to strike the testimony from the files and to dismiss the appeal must be denied, unless the failure to transmit the records and books is sufficient ground for granting the motion. We are clearly of the opinion that it is not. The remedy for that failure is to have them transmitted.

Nor do we think that the motion of appellant for an extension of time to settle the case should be granted. Under the construction we place upon this act, he had his choice of two methods. He could have the testimony settled by. the court, or transmitted by the register in chancery. He has chosen the latter of these two methods.' To permit him to change his choice now would occasion delay, which might be injurious to complainant’s interests.

Both motions will therefore be denied. No costs will be awarded.


author: Carpenter, J. Grant, J.

text:
    McEVOY v. CITY OF SAULT STE. MARIE.
    1. Municipal Corporations — Defective Highways — Failure to Remove Obstructions — Personal Injuries — Liability.
    The liability imposed on municipalities by 1 Comp. Laws, § 8441, for bodily injuries sustained by reason of neglect to keep their highways “in reasonable repair, and in condition reasonably safe and fit for travel,” extends to a failure to remove obstructions placed in the street by third persons without the consent of the municipality; the element of notice or knowledge being present as in other cases. So held where building stone were deposited in the paved part of a street by an abutting owner. Joslyn v. City of Detroit, 74 Mich. 458, followed. Grant, J., dissenting.
    2. Same — Notice.
    Actual notice of an obstruction in a street to the city superin- . tendent of streets is notice to the city.
    8. Same — Contributory Negligence — Question for Jury.
    Plaintiff was injured by the collision of a cutter in which he was riding with certain building stone which had been left in the traveled part of the highway. It was after dark, and the stone were covered by snow. l?he driver had discontinued using that street some four months previously, by reason of the presence of the stones, but had since passed daily along the sidewalk. He testified, however, that he had not observed the stones, and supposed, on the occasion in question, that they had been removed. Held, that he was not guilty of contributory negligence as a matter of law.
    4. Same — Presentation of Claim — Computation of Time.
    A charter provision requiring claims for injuries resulting from defective highways to be presented “within 60 days next after such injury” allows 60 days after the day of the injury, for such presentation.
    5. Stare Decisis — Overruling Decisions.
    Before overruling a former decision deliberately made, the court -should be convinced not merely that the case was wrongly decided, but that less injury 'will result from overruling than from following it.
    6. Statutes — Re-enactment—Adoption of Settled Construction.

      It seems that, where a statute is re-enacted which has received a construction by the Supreme Court, such construction becomes a part of the new law.
    Error to Chippewa; Steere, J.
    Submitted November 20, 1903.
    (Docket No. 144.)
    Decided March 23, 1904.
    Case by Bartholomew- McEvoy against the city of Sault Ste. Marie for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      John W. Shine, for appellant.

      George B. Holden, for appellee.
   Carpenter, J.

December 24,1901, while plaintiff was driving on Elizabeth street, in said city, his cutter came in contact with certain stones therein, and plaintiff was thrown heavily to the ground and injured. These stones, amounting to two or three cords, were placed in the street about the middle of the preceding August by one Frank E. Swift, who was building a house at this point. During all this time they were left without a light or other guard to indicate their presence. 'The mayor of the city lived on an adjacent lot, and passed said stones daily. In the month of September the general superintendent of the streets of the city had observed the stones, and had directed the contractors to remove some obstructions on the sidewalk. An ordinance of the city gave the mayor or common council authority to permit the placing of building material in the street." There was no proof that express permission to place these stones where they were had ever been given under this ordinance.

At the time the plaintiff was injured, one William H. King, who was riding with him, was driving the horse. Said King was in the habit of driving on Elizabeth street when the stones were first placed there, and had ceased to drive there on that account. He had not driven there afterwards until the time of the injury. At that time he supposed the stones had all been removed. From the time he ceased driving until the time of the injury he had passed the place daily, walking on the sidewalk, but had not observed the stones.

Within 60 days after his injury, plaintiff served a notice upon the common council of said defendant, and on the 22d of February served a notice on defendant’s comptroller. The trial court directed a verdict for defendant on the ground that it was not liable, under the statute, for failure to remove these stones. The principal question raised on this appeal relates to the correctness of ’this decision.

1. In considering this case, we are not embarrassed by the vexed question of constructive notice. There was actual notice of this obstruction to the superintendent of defendant’s streets. This was notice to defendant. Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457); Moore v. Township of Kenockee, 75 Mich. 332 (42 N. W. 944, 4 L. R. A. 555). We are confronted with the question, not of the duty of the municipality to discover obstructions placed in its streets by a wrong-doer, but of the duty of thé municipality to remove obstructions to travel after knowledge of their existence.

It is clear that, under the principles of the common law, defendant is not liable for plaintiff’s injuries. See City of Detroit v. Blackeby, 21 Mich. 84 (4 Am. Rep. 450). Is it liable under the statute ? The first statute making municipalities liable for injuries to persons upon the highways was passed in 1879. See Pub. Acts 1879, Act No. 244. That statute has been superseded by , another (see Act No. 264, Pub. Acts 1887), which governs this case. These two acts, viz., that of 1879 and that of 1887, so far as the language applicable to this case is concerned, are the same. If defendant is liable under the act of 1879, its liability under the act of 1887 is clear. I first propose, therefore, to consider the question of whether, under the act of 1879, a municipality is liable for such an injury as that received by plaintiff.

Section 1 of the act (see 1 How. Stat. § 1442) made municipalities liable for bodily injuries sustained “by reason of neglect to keep public highways * * * in good repair, and in a condition reasonably safe and fit for travel.” Section 2 made municipalities liable for damages to property by reason of neglect ‘' to keep in repair any public highway,” and contained the provision that, “in-all actions brought under this act, it must be shown that ” the municipality “had reasonable time and opportunity, after such highways * * * became unsafe or unfit for'travel, to put the same in the proper condition for use.” Section 4 made it the duty of municipalities “to keep in good repair, so that they shall be safe and convenient for public travel at all times, all public highways, streets, bridges, cross-walks, and culverts.” The title of the act was “An act for the collection of damages sustained by reason of defective public highways, streets, bridges, crosswalks, and culverts.”

This act was open to two constructions, — one, that it imposed upon municipalities an obligation to use diligence to keep their highways and streets in a condition reasonably safe and fit for public travel; and the other, that it imposed upon municipalities only the obligation to use due diligence to keep their highways and streets in good repair. Under the first construction, there would be an obligation on the part of a municipality to remove obstructions within a reasonable time after it had knowledge or notice of their existence. Under the second construction, there would be no such obligation. In the case of Joslyn v. City of Detroit, 74 Mich. 458 (42 N. W. 50), this court deliberately adopted the first construction. The facts in that case were very similar to those in the case at bar, and were these: On the evening of April 23, 1886, plaintiff was driving on Clifford street, in Detroit. Her carriage came in contact with a pile of sand, and was overthrown, and she was injured. This pile of sand was placed in the street to be used for building purposes. It had been there a month or more, during which time it had not been guarded, nor had signals of warning been placed upon it. There was no evidence, as was pointed out in the brief of defendant, that the defendant city permitted it to be placed in the street. The issue raised by these facts required the court to determine whether municipalities were responsible for negligent failure to remove obstructions placed in the streets by third persons, and this court deliberately determined that the statute created that obligation. Justice Campbell, who took part in that decision, wrote a vigorous dissenting opinion. If we follow that decision, it is decisive of the question now under consideration, and compels us to say that the learned trial judge erred in denying liability. Various reasons are urged why we should not follow that decision.

It is said that the decision was wrong. If this is true,— which I cannot admit, — it was certainly not an unreasonable construction of the statute. It did no more than give effect to the language of the first section, which gives a cause of action for bodily injuries resulting from neglect to keep a street “in a condition reasonably safe alid fit for travel. ”, I cannot agree to the proposition that injuries resulting from obstructions which the municipality negligently permitted to remain in the streets is not one of the mischiefs intended to be remedied by this statute. It is true that in such a case the injured party has a doubtful remedy against the person primarily responsible for the obstruction. But when we consider the difficulty oftentimes of ascertaining who that person is, and his general lack of financial means, as doubtless the legislature did,, this is a remedy of very doubtful value. If the wrongdoer, instead of putting the obstruction in the street, had made an excavation thereifi, the liability of the municipality, after knowledge or notice, is clear. If the latter instance is within the mischief of the statute, why is not the former ? The municipality is equally negligent in both cases, and in each case the party primarily responsible is an independent wrong-doer. Suppose the wrongdoer, in making the excavation in the street, had heaped the material up alongside. In that case the municipality would be responsible for permitting the excavation to remain, but would be under no legal obligation to remove the obstruction. If a pedestrian should encounter the obstruction and fall into the excavation, I do not know how, under the opposing theory, the case would be determined.

Nor am I able to see that the construction of the statute in the Joslyn Case, contended for in this opinion, leads to injustice. The decision does not require a municipality to follow every person in its streets, and see that he does not leave an obstruction therein. It only requires it to remove the obstructions of which it has, in the language of the statute (section 3442, 1 Comp. Laws), knowledge or notice.

The most that can be made of the objections against Joslyn v. City of Detroit is that the court there adopted the less reasonable of two opposing constructions of a statute. If this is true, — which, except for the purpose of this opinion, I should not admit, — it does not furnish a sufficient reason for overruling that case. Before this court overrules a decision deliberately made, it should be convinced not merely that the case was wrongly decided, but also that less injury will result from overruling than from following it. I can see how injury may result from overruling Joslyn v. City of Detroit. We make the law uncertain to individuals and to municipalities who for 15 years have relied upon that decision. Can we expect those who follow us to have more respect for this decision than we evinced for that ? Will litigants and members of the bar have confidence that this court, as at present or as hereafter constituted, will feel itself bound by this decision ? This condition of uncertainty is an evil which works serious injury. In his dissenting opinion in the Joslyn Case, Justice Campbell said:

“ It is hardly necessary to resort to further reasoning on the subject, unless we are prepared to hold that our own decisions do not bind us as precedents. If we do not follow them, it is of very little consequence what we decide.”

I have pointed out some of the injuries which will result from overruling Joslyn v. City of Detroit. What good is there to offset this injury ? At most, this: We place a more harmonious and more reasonable, but not a juster, construction on the statute. I think argument is unnecessary to prove that more injury will result from overruling than from following Joslyn v. City of Detroit.

It is said that Joslyn v. City of Detroit is inconsistent with former decisions of this court. Agnew v. City of Corunna, 55 Mich. 428 (21 N. W. 873, 54 Am. Rep. 383); McKellar v. City of Detroit, 57 Mich. 158 (23 N. W. 621, 58 Am. Rep. 357); McArthur v. City of Saginaw, 58 Mich. 357 (25 N. W. 313, 55 Am. Rep. 687). In McArthur v. City of Saginaw, supra, Chief Justice Morse wrote a separate concurring opinion, in which he foreshadowed the decision announced in Joslyn v. City of Detroit, and in which he undertook to reconcile views in harmony with those subsequently announced in Joslyn v. City of Detroit with the decision in that Gase, and with the decision in Agnew v. City of Corunna. It is a part of the duty which I undertake in this opinion to reconcile the decision in McKellar v. City of Detroit with the Joslyn Case.

If Joslyn v. City of Detroit is inconsistent with the former decisions, it is pone the less binding upon us. Three of the four judges who decided Agnew v. City of Corunna, and all the judges who decided the other cases, participated in deciding Joslyn v. City of Detroit. Respect for these judges, then, who participated in these earlier decisions, should impel us not to follow, but to disregard, them.

It is said that Joslyn v. City of Detroit is inconsistent with later decisions of this court (Hutchinson v. City of Ypsilanti, 103 Mich. 12 [61 N. W. 279] ; Gavett v. City of Jackson, 109 Mich. 408, 414 [67 N. W. 517, 32 L. R. A. 861]), in which it was held that, under the statute in question, the city was not responsible for accumulations of snow and ice. These cases follow the case of McKellar v. City of Detroit, 57 Mich. 158 (23 N. W. 621, 58 Am.Rep. 357), heretofore referred to. I cannot agree that McKellar v. City of Detroit is inconsistent with Joslyn v. City of Detroit. McKellar v. City of Detroit does not proceed upon the view that there is no obligation on the part of a municipality to remove obstructions of any kind. I quote from that case:

The natural meaning of the act, both in the title and in the body-, is to create liability only for having ways out of repair, and defective on that account. Several authorities treat the class of obstructions in question as involving want of repair and defects. But in the absence of statutes which provide for them as such, it is not a natural construction, and the cases are more consistent which deal with these things as acts of negligence at common law. A great deal, however, may fairly depend on local usage in determining duties concerning highways in winter. "Where it is customary to treat the removal of snow and ice as a regular part of highway management, the failure to look after it may be properly regarded as wrongful and negligent.”

The court then proceeds, for two pages, to prove, not that there is no obligation on the part of a municipality to remove obstructions of any kind, but to prove that there is no su,ch obligation to remove snow and ice. It is argued in the opinion that this obligation generally rests, not upon the municipalities, but upon the owners of the abutting property, and that :

“It would be a great hardship, and involve ruinous expense, if all of the multitudinous ways that are subject to be affected by winter storms are to be constantly watched and diligently kept in thoroughly good condition. * * * No amount of diligence can supply an adequate force and adequate means to detect the inevitable accumulations of snow trampled into hardness on every cross-walk or in every roadway. ”

And the opinion concludes:

“It is possible that some legal duty ought to exist for clearing off such ridges as they are raised by the feet of passengers; but to provide for it by means which will be reasonable, and not oppressive on the many towns and municipalities throughout the State, will be a task of some difficulty. We are satisfied no such liability has thus far been provided for.”

In Hutchinson v. City of Ypsilanti, 103 Mich. 12 (61 N. W. 279), Chief Justice McGrath wrote a concurring opinion, in which he favored the overruling of Joslyn v. City of Detroit; and it is a very significant circumstance that none of his associates signed it. They contented themselves with reaffirming the decision of McKellar v. City of Detroit.

I conclude, therefore, that the line of cases now under discussion, holding that a municipality is not responsible for failure to remove snow and ice, is not inconsistent with the decision in Joslyn v. City of Detroit. The obligation of a municipality to keep a street in a condition reasonably safe and fit- for public travel does not require it to do what, in the language of this court, no amount of diligence ” can do.

I do not think we can sustain the decision of Hayes v. City of West Bay City, 91 Mich. 418 (51 N. W. 1067), except upon the principles of Joslyn v. City of Detroit. In that case, plaintiff was injured by colliding with a building being moved through the streets of defendant municipality. The building was being moved by a third person under a license from the municipality, which directed that it should be moved under the supervision of the city marshal. Defendant was held liable. I think the fact that the city gave the above license constitutes the sole distinction between the Hayes Case and the Joslyn Case. I think it clear, however, that this license did not make the city liable for plaintiff’s injuries, according to common-law principles. See Fisher v. Thirkell, 21 Mich. 1 (4 Am. Rep. 422). Indeed, if there ever was any common-law liability in such cases, it was abrogated in 1887. See 1 Comp. Laws, § 3445. The liability of the city for injuries resulting from obstructions, whether created by or despite municipal license, depends, therefore, upon the statute. This was recognized in the Hayes Case. We quote from that opinion:

“It is contended by the city that the right of action relied upon against the defendants La France is based purely upon a common-law liability, while that against the city is purely statutory, and that a statutory action cannot be joined with one at common law in this manner. We do not consider this question important, as the case against the defendants La France was withdrawn by the court from the jury at the close of the plaintiff’s evidence, and thereafter the plaintiff proceeded against the city alone. The declaration was sufficient as against the city without counting upon the statute, as it contained all the necessary averments to bring the case within the statute.”

There is nothing in the statute which enables us to say that a municipality is liable for obstructions which it permits to be placed in the street, and that it is not liable for other obstructions of which it had knowledge or notice. If it is liable for obstructions which it permits to be placed there, it is liable because it has knowledge or notice of such obstructions (see section 3442, 1 Comp. Laws); and we would read into the statute what the legislature never placed in it, if we discriminate between such obstructions and other obstructions of which it has knowledge or notice.

It is true that this court in Hutchinson v. City of Ypsilanti, and in Monje v. City of Grand Rapids, 122 Mich. 649 (81 N. W. 574), and Justice Hooker in his concurring opinion in Gavett v. City of Jackson, indicated that the Hayes Case and the Joslyn Case were based upon the principle that the city was an active agent in causing the danger. This certainly was not true of the Joslyn Case. I do not think it was true of the Hayes Case. I do not think that the mere municipal permission to move a building through a street, under the supervision of the city marshal, makes the municipality an active agent in the resulting injury. Even if it does, its liability depends upon the statute, and there is no ground, as I have already pointed out, for distinguishing such cases from the case now before us.

I have already alluded to the circumstance that this case arose, not under the act of 1879, but under the act of 1887. The act of 1887 repealed the act of 1879, and practically re-enacted it. The main change was to extend the liability to injuries resulting from defective sidewalks, and to change the language respecting knowledge and notice to the municipality. When this legislation was enacted, Joslyn v. City of Detroit had determined the construction of the act of 1879. If some other State had adopted this legislation, it would be held to have adopted it with that construction. Is it not clear that this same reasoning compels us to say that our legislature, in enacting this legislation, adopted the construction placed upon it in Joslyn v. City of Detroit ?

I conclude, therefore, that it is our duty to recognize. Joslyn v. City of Detroit as an authoritative construction of the statute creating municipal liability.

2. It is urged that the judgment of the lower court should be affirmed on the ground that Mr. King was guilty of contributory negligence, and that his negligence is to be imputed to the plaintiff. I do not think, under the facts stated in the record, and heretofore set forth in this opinion, that we can say, as a matter of law, that Mr. King was guilty of contributory negligence.

3. It is urged, also, that the judgment should be affirmed on the ground that plaintiff did not serve notice of his injuries on defendant’s comptroller within 60 days, and that his cause of action was therefore barred. Section 18 of chapter 6, Act No. 468, of the Local Acts of 1901, required plaintiff, “within 60 days next after such injury, to present such claim to the comptroller of said city, in writing and under oath.” It is contended by the defendant that, in computing this 60 days, the day of plaintiff’s injury is to be counted. Under this construction, plaintiff did not present his claim to the comptroller until the 61st day after his injury. We do not think this construction proper. We think he had 60 days after the day of his injury (Gorham v. Wing, 10 Mich., at pages 495, 496; Warren v. Slade, 23 Mich. 1 [9 Am. Rep. 70]j, and therefore the claim was presented within the statutory time.

I think, therefore, that the judgment of the lower court should be reversed, and a new trial granted.

Moore, C. J., Montgomery and Hooker, JJ., concurred with Carpenter, J.

Grant, J.

(dissenting). Elizabeth street, of the defendant city, is about 700 feet in length, extending between Peck and Spruce streets, two of the principal thoroughfares of the city. It was paved to the width of 20 feet, with stone curbs on each side of the paving. It is a residence street. Early in August, 1901, one Swift commenced the erection of a dwelling on the west side of the street. Stone of various sizes were used in erecting the basement walls of the building, and during its erection were piled in the paved portion of the street on the west side. When the building was completed is not shown by the record. It appears that it was completed prior to the time of the accident, the 24th of December following. Some loose stones, estimated to be two or three cords, were left upon the street, extending to within about 4 feet of the center, and from 50 to 60 feet along it. The mayor of the city lived upon this street, on the lot next to the house that was being erected. Plaintiff gave evidence tending to show that the general superintendent of streets had observed the stone. Snow had fallen and covered them.

On the evening of December 24th, after the light of day had partially disappeared, one King invited plaintiff and another to ride with him in his cutter, drawn by one horse. One of the runners struck a stone which was covered by the snow, in consequence of which the cutter was finally overturned and plaintiff injured. Mr. King, the owner and driver of the cutter, frequently both drove and walked along this street. Prom the time the stone were placed there up to the night in question, he had avoided the street, when driving, on account of the obstructions. During that time he passed them daily, walking to and from his residence to his office. He testified that he supposed the stone had all been removed from the street. Neither the contractors nor the owner of the building had obtained permission from the common council of the defendant to place their building material upon this street during the erection of the building. The charter authorized the use of the streets for that purpose only by permission of the mayor or the common council, upon application made. Plaintiff seeks to recover under the statute for negligence in failing to keep the street in reasonable repair and in condition reasonably safe and fit for travel.

When the plaintiff rested, fhe court directed a verdict for the defendant, stating his reasons therefor as follows:

‘ ‘ The actual meaning of the act, both in its title and in the body of the act, is to create a liability only for the street being out of repair, and defective on that account; and it is not a natural construction of that statute to speak of obstructions like building material left on the street as involving a want of repair or a defect in the highway. * * * It is not a defect in the highway, but an obstruction in the highway.”

The main question in the case is, Does the statute, in addition to imposing liability for defects in the streets and highways, impose a liability for the wrongful acts of others in placing obstructions upon streets and highways otherwise in good condition, the municipality being in no sense responsible for placing them there ? The claim of the plaintiff is that, although the municipality has performed its full statutory duty in making its streets and highways reasonably safe and fit for public travel, yet it is also liable for any obstructions wrongfully placed there by others, whenever it can be shown that the proper officers of the city have actual notice or knowledge thereof, or whenever they have remained there so long that constructive notice may be implied.

In construing the act, its title and provisions are important. The title to the act (No. 264, Pub. Acts 1887) is “An act to provide for the recovery of damages for injuries caused or sustained by reason of defective public highways, streets, bridges, sidewalks, cross-walks', or culverts.” Chapter 91, 1 Comp. Laws. Section 1 makes the municipality liable to any person for bodily injury sustained “ by reason of neglect to keep such public highways,” etc., “in reasonable repair, and in condition reasonably safe and fit for travel.” Section 2 makes the municipality liable for injury to any animal or other property, caused “by reason of neglect * * * to keep in repair any public highway,” etc. Section 3 imposes the duty upon municipalities to keep their highways, etc., “in reasonable repair, so that they shall be reasonably safe and convenient for public travel;” and provides that “when the means now provided by law are not sufficient to enable any township,” etc., “to keep its public highways,” etc., “in good repair, such township,” etc., “ is hereby authorized to levy such additional sum ” as maybe necessary, “not exceeding five mills on the dollar.”

“For the sure and true interpretation of all statutes, whether penal or beneficial, four things are to be considered: What was the common law before the act? What was the mischief against which the common law did not provide ? What remedy the Parliament had provided to cure the defect. And the true reason of the remedy.” 1 Kent, Com. p. 464.

Under the decisions of this State, municipalities were not liable at the common law for failure to properly construct or properly repair public streets and highways. City of Detroit v. Blackeby (decided in 1870), 21 Mich. 84 (4 Am. Rep. 450). Individuals and private corporations are liable at the common law for injuries resulting to travelers from their unlawful acts in obstructing highways. Darmstaetter v. Moynahan, 27 Mich. 188. Municipalities were not liable at the common law for these unlawful acts of private parties. Notice or knowledge that another has committed a wrong does not make the party having such notice or knowledge liable for such wrong.

At the common law, municipalities are liable, the same as private parties, for obstructing streets and highways, or in doing work thereon not connected with their construction and repair. City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78). The city in that case was constructing a sewer, and while so doing left an excavation unguarded, into which the plaintiff fell and was injured. The basis of the holding was that the city was not engaged' in a work upon the streets in which the entire public were interested, but was engaged in a quasi private work, in which only a portion of the people of the city were interested. It was held that in such case the common law imposed the same liability in the construction of the work as it did upon an individual or strictly private corporation. In matters of this kind “public corporations are as distinctly legal persons as private corporations.” Sheldon v. Village of Kalamazoo, 24 Mich. 388, 385.

This court has also held in other cases that, where the obstruction in the street was placed there by the express authority or direction of the municipal authorities, the city was liable. Hayes v. City of West Bay City, 91 Mich. 418 (51 N. W. 1007); Finch v. Village of Bangor, 133 Mich. 149 (94 N. W. 738).

In McCool v. City of Grand Rapids, 58 Mich. 41 (24 N. W. 631, 55 Am. Rep. 655), the judgment of the court below was sustained by a divided court. The negligence alleged was the existence of cobble stones upon a street. We infer from the record that the stones were not placed there by private individuals, but were left there by the public authorities, and were to a large extent imbedded in the roadbed.

In Agnew v. City of Corunna, 55 Mich. 428 (21 N. W. 873, 54 Am. Rep. 383), it was held that the natural and correct construction of the statute was that the ‘‘ remedy is confined to cases Where the want of repair is the immediate cause of the injury, as where there are obstructions or defects in a roadway or bridge, where the vehicle in passing over it encounters the mischief complained of. ”

In McKellar v. City of Detroit, 57 Mich. 158 (23 N. W. 621, 58 Am. Rep. 357), it was said:

“ The natural meaning of the act, both in the title and in the body, is to create liability only for having ways out of repair, and defective on that account.”

In McArthur v. City of Saginaw, 58 Mich. 357 (25 N. W. 313, 55 Am. Rep. 687), the negligence charged was the piling of lumber by a private individual in the street, against which plaintiff’s horse, having taken fright, ran. The court said:

“ If the city had put the lumber there and left it, some other considerations might be presented. * * * The whole tenor of the statute is confined to the duties of cities and towns to construct their roads, and repair them when out of order. The duty is the same in regard to all of these corporations. But it is manifest that their powers and means of preventing private parties from doing what may interfere with the safety or convenience of passersby are not at all uniform or coextensive. These private acts may consist of temporary, as well as permanent, nuisances, and may cause damage by fright as well as by physical violence, and neither cities nor towns could effectually prevent them in all cases, without ruinous expense and very large means. But it is always possible, at moderate cost, to keep in repair such streets as are worked at all, and that work must be done by the municipality itself in most cases, and in all cases may be, if ¿neglected by' others. As suggested in Agnew v. City of Corunna, it is constantly permitted to abutters on streets to occupy portions of the street for longer or shorter intervals with lumber and materials. How far this may safely be done without injury to the traveling facilities of the public must be largely a matter of discretion with the city. The unauthorized or excessive use of such privileges, when what is done does not create what is properly a defective way, is an abuse to be rectified under the police powers of the public, and does not belong to the making or repairing of ways. There is no more legal necessity for holding cities liable for the failure to enforce their police laws in favor of travelers than in favor of many other citizens who suffer from nuisances or wrongs.”

Upon the same principle, a municipality, in erecting a market building, is subject to the same degree of care as private individuals would be in its construction. Barron v. City of Detroit, 94 Mich. 601 (54 N. W. 273, 19 L. R. A. 452, 34 Am. St. Rep. 366).

The first act, whose title and provisions upon this subject are the same as in the present act, was enacted in 1879, after the decision in City of Detroit v. Blackeby. Under the rule of construction as above stated by Mr. Kent, the mischief for which the common law provided no remedy was the nonliability of municipal corporations for injuries caused by defects in the construction of highways or in failure to repair them. A remedy did exist, as above shown, at the common law, for other wrongs committed upon the highways. The decisions of this court prior to the passage of the act clearly defined the acts for which municipalities were liable, and those for which they were not liable, upon the public highways. In this condition of the law the first act was passed. Its title spoke only of “defective highways,” etc. Did the legislature mean that a highway is defective when some private individual had wrongfully placed stones, vehicles, or other obstructions upon the street, and left them there ? What language is there in the title of this act to indicate the imposition of a liability for acts of private individuals in obstructing highways ? It seems to me clear that such a liability as now contended for is not within the title of the act, and that the title contains no language from which such a purpose can be inferred. The only language in the body of the act which can be construed into imposing this liability is, “in condition reasonably safe and fit for travel.” This language must be construed with reference to the title to the act, all other provisions of the act, and the previous condition of the law. Section 3 imposes only the duty’to keep the highways, etc., “in reasonable repair, so that they shall be reasonably safe and convenient for public travel.” Reading these two sections and the title together, I think it entirely clear that the legislature had in mind exclusively defects existing for want of repair. I think this language of section 1 refers to the condition of the roadbed, and cannot be held to mean that it is the duty of municipalities to exercise a constant watch and police of their highways, to see that private parties do not unlawfully obstruct the streets. The party injured has a remedy against the obstructor, and the intent on the part of the legislature to give him an additional remedy therefor against the municipality should be very clear indeed.

The only case which can be held to establish this construction is Joslyn v. City of Detroit, 74 Mich. 458 (42 N. W. 50). We cited this case in Hutchinson v. City of Ypsilanti, 103 Mich. 12 (61 N. W. 279), saying that the pile of sand was left in the street by the express authority of the city. Chief Justice McGrath, in a concurring opinion, held that the Joslyn Case was opposed to the early decisions of the court, and should be overruled. That the case is in direct conflict with the former decisions is apparent. See, also, Gavett v. City of Jackson, 109 Mich. 408, 414 (67 N. W. 517, 32 L. R. A. 861); Monje v. City of Grand Rapids, 122 Mich. 645 (81 N. W. 574). The only other cases where Joslyn v. City of Detroit has been cited by this court are Malloy v. Township of Walker, 77 Mich. 448 (43 N. W. 1012, 6 L. R. A. 695), where it was cited with other cases to support the proposition that it was the duty of a municipality, under certain circumstances, to erect barriers or railings in order to make the highway reasonably safe, and in Finch v. Village of Bangor, 133 Mich. 149 (94 N. W. 738), where the village had itself obstructed the street with planks. The Joslyn Case has never been cited with approval to sustain the proposition now contended for. On the contrary, this court, whenever it has been cited to support it, has distinguished it as above stated. It is now contended by the plaintiff’s counsel that the record in Joslyn v. City of Detroit does not show express authority on the part of the city. If it does not, and the case be found to hold that the city is liable for wrongful obstructions placed upon the highways by private individuals, I think it should be overruled.

We have held in many cases that the statute does not apply to accumulations of ice and snow, although they render the highway unsafe and in a condition unfit for public travel. Hutchinson v. City of Ypsilanti, supra. These obstructions render the highway fully as unsafe as obstructions placed there by individuals, and in many cases such obstructions could be removed, and the road rendered safe. I am unable to understand the logic by which the statute can be held not to apply to obstructions caused, by the elements, but to apply to obstructions caused by the wrongful acts of others.

Counsel for plaintiff has cited several decisions from other States. I have examined them, and, in my judgment, they throw no light upon the question here. Nono of them involve the construction of a statute like ours, and most of them contain no reference whatever to any statute. I do not deem further comment upon them necessary.

Judgment should be affirmed.

       Decided April 19, 1889.