text:
    MICHIGAN SALT WORKS v. BAIRD.
    Injunction — Constitutional Law — Criminal Law.
    Equity has jurisdiction, in case irreparable-injury is threatened, to enjoin the enforcement of such criminal laws as are contained in the salt inspection act (2 Comp. Laws, §§ 4911-4953, as amended by Act No. 323, Pub. Acts 1905, 2 How. Stat. [2d Ed.] §§ 2544 et seq.), claimed by a manufacturer to be unconstitutional, and to restrain the collection of fees thereunder by salt inspectors.

    Appeal from St. Clair; Law, J.
    Submitted November 20, 1912.
    (Docket No. 188.)
    Decided February 19, 1913.
    Bill by the Michigan Salt Works against John Baird and another for an injunction. From an order overruling a demurrer to the bill of complaint, defendants appeal.
    Affirmed.

      Frank T. Wolcott and E. 8. Black, for complainant.

      Franz C. Kuhn, Attorney General, and Arthur P. Hicks, Assistant Attorney General, for defendants.

       As to injunction against a prosecution of criminal or quasi criminal nature, see notes in 2 L. R. A. (N. S.) 631; 25 L. R. A. (N. S.) 193; and 34 L. R. A. (N. S.) 454.

   Brooke, J.

The questions .nvolved are, we think, correctly stated as follows in the brief of the attorney general:

“This is an appeal from an order overruling defendant’s demurrer to an injunction bill filed in the circuit court for the county of St. Clair, in chancery, by the Michigan Salt Works. The complainant is a corporation organized under the provisions of Act 232, Public Acts of 1885, on April 18, 1903, and its business, as stated in its articles, is:
“ ' Manufacturing salt and all kinds of products made from salt, operating such other factories as may be required to utilize the extra steam from the salt plants of this company, also generating power from such extra ateam and selling the same.’
“ The bill prays for a perpetual injunction restraining defendants ‘ from attempting to enforce the said salt inspection act hereinbefore set forth, and from inspecting, or attempting to inspect, salt offered for sale by your orator, and from collecting, or attempting to collect, any tax or inspection fees under said act, and from commencing any suits or actions to recover any inspection fees or to recover the penalties and forfeitures provided for in said act, and from attempting to in any way enforce the provisions of said act.’ The defendant John Baird is the salt inspector, duly appointed, qualified, and acting under and pursuant to the provisions of Act 29, Public Acts of 1869 (sections 4911 to 4953, Compiled Laws of 1897), as amended by Act 323, Public Acts of 1905 [2 How. Stat. (2d Ed.) §§ 2544, et seq.]; and the defendant William Hodgson is the duly appointed, qualified, and acting deputy salt inspector of the district comprising St. Clair county, in which complainant’s plant is located. The bill avers further the payment of fees by complainant and other salt manufacturers for the inspection of salt, and that defendants will continue to enforce the provisions of the act; that other food products, such as flour and sugar, manufactured in this State, are not subjected to inspection; that 75 per cent, of salt manufactured in Michigan is shipped into other States and foreign countries; that the act is not adapted to the present system of manufacturing salt, which complainant somewhat fully describes; that the salt inspection act has not been enforced, except to the extent of collecting fees; that the inspection is not beneficial, and that the penalties for violation of act are excessive; that the deputy salt inspectors have in years past threatened complainant that they would enforce every provision of the salt inspection act against it if it did not pay the salt inspection fees; that the fees collected are not sufficient to pay the cost of inspection in accordance with the law; that the act places arbitrary power in the hands of the inspector to specify the quantity of salt to be placed in bags and packages; that the present deputy salt inspector in district No. 8 is engaged in the saloon business in the village of Algonac, and is not familiar with the business of manufacturing salt, and is incompetent; that attempts have been made to secure the repeal of the law, which attempts have been ineffective; 1;hat there is no inspection of table salt manufactured in this State, although required by the statute; that complainant would be menaced with a multiplicity of actions and suits for the collection of penalties and its officers, agents and employés menaced by criminal suits, unless a temporary injunction is granted in accordance with the prayer of the bill. It is averred in the bill that the inspector and his deputies are undertaking to go beyond the plain provisions of the statute in their inspection. The only grounds alleged for the granting of a temporary injunction are the unconstitutionality of the law and the expressed fear that the inspectors will undertake to enforce it.
“ The bill further alleges that the act is unconstitutional in the following particulars:
“ (1) Because it violates section 15 of article 2 of the revised Constitution, which provides that ‘ excessive fines shall not be imposed,’ etc.
“ (2) Because it violates section 16 of article 2 of the revised Constitution, which provides that * no person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law.’
“ (3) Because certain sections of the act, to wit, sections 20, 30, 35, and 36, are without the scope of the title of the act, and therefore in violation of section 21 of article 5 of the revised Constitution which provides:
“ ‘ No law shall embrace more than one object, which shall be ex pressed in its title.’
“ (4) That the act is in violation of section 3 of article 10 of the Constitution, which provides that—
“ ‘ The legislature shall provide, by law, a uniform rule of taxation, except on property paying specific taxes and taxes shall be levied on such property as shall be prescribed by law.’
“(5) That said act violates section 1 of the fourteenth amendment to the United States Constitution, which provides :
“ ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’
“ (6) That it violates paragraph 5 of section 9 of article 1 of the Constitution of the United States, which provides:
“‘No tax or duty shall be laid on articles exported from any State.’
“ (7) That it violates paragraph 2 of section 10 of article 1 of the Constitution of the United States, which provides :
“ ‘No State shall without the consent of Congress lay any impost or duty on imports or exports, except that may be absolutely necessary for executing its inspection laws.’
“And in addition to the constitutional questions, it is alleged:
“(1) That the salt inspection act is repealed by the dairy and food law.
“(2) That the salt inspection act is superseded by the Federal food and drug act.
" (8) That the salt inspection law is obsolete.
" The prayer for relief is as follows:
“ That upon the hearing of said cause, a decree may be entered by this honorable court, declaring and decreeing ' said act, and each and every provision thereof, unconstitutional, null, and void, and that the said defendants, John Baird and William Hodgson, his or their deputies, agents, attorneys, and counselors, may be restrained by the writ of injunction issued out of this court, directed to them and each of them, from attempting to enforce the said salt inspection act, hereinbefore set forth, and from inspecting, or attempting to inspect, salt manufactured or offered for sale by your orator, and from collecting, or attempting to collect, any tax or inspection fees under said act, and from commencing any suits or actions to recover said inspection fees, or to recover the penalties and forfeitures provided for in said act, and from attempting to in any way enforce the provisions of said act.’
" To this bill the defendants demurred upon the following grounds:
“ (1) That a court of equity has no jurisdiction to entertain the bill of complaint and to grant the relief, or any part thereof prayed for in complainant’s bill of complaint.
“ (2) That complainant has a full, adequate, and complete remedy at law.
“ (3) That the said bill of complaint seeks to restrain criminal prosecutions.
“ (4) That the bill of complaint is in effect a suit against the State.
“ (5) That the act (Act 29 of the Public Acts of 1869), as amended, is not unconstitutional for any of the reasons alleged in complainant’s bill.
“On August 25th the demurrer was overruled, and at the same time a temporary injunction was directed to issue.”

The case is here by appeal. The statute involved in this proceeding is a very old one. Its validity has not before been questioned in a legal proceeding. It is contended that the bill of complaint is filed to enjoin State officials from enforcing criminal prosecutions and that upon the proposition of invoking the aid of the chancery court in such cases, while there is a wide disagreement in the authorities, the question is not a new one in this State. It is claimed that in a mandamus case, brought to set aside an injunction which restrained the State game and fish warden from criminally prosecuting violators of a statute upon the ground that it was unconstitutional, the late Justice Hooker, speaking for the court, said:

“It is a general rule that criminal prosecutions cannot be restrained by injunction. Once have it understood that they may be, and the public would labor under additional embarrassment to the already great obstacles to the prevention of crime. There is no excuse, upon reason or authority, for enjoining the prosecution of the complainant for violations of the law providing for a close season. If the law were unconstitutional, it would be available by way of defense to the criminal charge, and therefore no occasion for chancery to take jurisdiction for the want of an adequate remedy at law. See Mechem, Public Officers, § 992, and cases cited. It has never been found necessary or expedient that the validity and construction of criminal laws should be determined in chancery, for the guidance of courts of criminal jurisdiction.” Osborn v. Charlevoix Circuit Judge, 114 Mich. 655 (72 N. W. 982).

In Pratt Food Co. v. Bird, 148 Mich. 631 (112 N. W. 701, 118 Am. St. Rep. 601), it was said:

“A court of equity will not transfer to its own jurisdiction the trial of a criminal case; and this though the prosecution may fall with some hardship upon the accused party.”

It is urged that, unless we are ready to overrule the case of Osborn v. Charlevoix Circuit Judge, supra, it follows that the demurrer should have been sustained.

As we understand the position of the complainant, it is not contended that equity has jurisdiction, as a general rule, to restrain criminal prosecutions, nor is it contended that an equitable proceeding is proper merely for the purpose of determining the constitutionality of an act of the legislature. It is contended, however, that this bill of complaint sets out other grounds for equitable relief than simply the restraining criminal prosecutions as appears from what we have already stated, and that the averments of the bill of complaint are sufficient to clothe the court with jurisdiction, and, having jurisdiction, the court will retain the cause, and, if necessary to meet the ends of justice, will determine the constitutionality of the act of which complaint is made. There can be no question that the general rule is as stated in Osborn v. Charlevoix Circuit Judge, supra. It may be noted that in that case the court went into the merits of the case and held the act to be constitutional. That conclusion disposed of the question upon the merits, and a determination of the jurisdictional point was not necessary, however pertinent and sound it may have been.

While the general rule is as above stated, we think it is established, by the weight of authority, that in certain classes of cases, of which the one at bar is a good example, equity will take jurisdiction. Referring to the contention of defendants that complainant has a full, adequate, and complete remedy at law, it is true that it has a legal remedy. It may refuse to comply with the provisions of the act in question, and so expose itself and its responsible officers to prosecution under the act. Upon such prosecution, it may set up, in its defense, the alleged unconstitutionality of the law; and, if upheld in its contention, it will escape punishment either by way of fines or imprisonment. But suppose complainant should be illy advised, and upon final adjudication it is determined that the law is valid, it then becomes liable to all the penalties provided by the statute.

If a year should be consumed in reaching a legal determination of the question, this complainant, according to the averments in the bill, would (in the event of an adverse decision) be liable to fines aggregating more than $200,000, besides a possible term of imprisonment for some one or more of its responsible officers. It is easily to be supposed that a much longer period of time might elapse between complaint and final conviction. Under such circumstances, it is not difficult to understand that counsel would hesitate to advise a client to take a course involving the possibility of such heavy penalties; and it is easier still to apprehend how reluctant the party himself would be to incur such a grave hazard.

The jurisdiction of a court of equity, in cases like the one at bar, depends, not upon the absence of a legal remedy, but upon its inadequacy, and the exercise of such jurisdiction rests in the sound discretion of the court. In the case of Ex parte Young, 209 U. S. 123 (28 Sup. Ct. 441, 13 L. R. A. [N. S.] 932, 14 Am. & Eng. Cas. 764), where the same contention, upon the question of jurisdiction, as is here insisted upon was urged, Mr. Justice Peck-ham said:

“It is further objected that there is a plain and adequate remedy at law open to the complainants and that a court of equity, therefore, has no jurisdiction in such case. It has been suggested that the proper way to test the constitutionality of the act is to disobey it, at least once, after which the company might obey the act pending subsequent proceedings to test its validity. But, in the event of a single violation the prosecutor might not avail himself of the opportunity to make the test, as obedience to the law was thereafter continued, and he might think it unnecessary to start an inquiry. If however, he should do so while the company was thereafter obeying the law, several years might elapse before there was a final determination of the question; and, if it should be determined that the law was invalid, the property of the company would have been taken during the time, without due process of law, and there would be no possibility of its recovery.
“ Another obstacle to making the test on the part of the company might be to find an agent or employe who would disobey the law, with a possible fine and imprisonment staring him in the face if the act should be held valid. * * * It is true the company might pay the fine, but the imprisonment the agent would have to suffer personally. * * *
“All the objections to a remedy at law as being plainly inadequate are obviated by a suit in equity, making all who are directly interested parties to the suit, and enjoining the enforcement of the act until the decision of the court upon the legal question.”

See, also, Cotting v. Stock Yards Co., 183 U. S. 79 (22 Sup. Ct. 30); Dobbins v. Los Angeles, 195 U. S. 223 (25 Sup. Ct. 18); State, ex rel. Ladd, v. Cass County District Court, 17 N. D. 285 (115 N. W. 675, 15 L. R. A. [N. S.] 331); Bonnett v. Vallier, 136 Wis. 193 (116 N. W. 885, 17 L. R. A. [N. S.] 486, 128 Am. St. Rep. 1061). These cases and those therein cited and discussed, in our opinion, by the weight of authority, establish the principle that equity has jurisdiction to interfere, by injunction, in a case where public officials are proceeding illegally and improperly under claim of right, where it is alleged, as in the instant case, that the complainant thereby suffers irreparable injury.

Upon the meritorious questions presented by the bill, no opinion is expressed. When the defendants have answered and a hearing is had, it will be time enough to consider that phase of the case. In the meantime, the State is suffering no injury, for, while an interim injunction prevents the collection of the fees under the act, an adequate bond seems to have been required by the court below.

The order is affirmed, without costs to either party.

Steere, O. J., and Moore, McAlvay, Stone, and Ostrander, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J. Ostrander, J.

license: Public Domain

text:
    R. J. EDERER CO. v. KAVANAUGH.
    Principal and Agent — Sales—Authority to Purchase.
    Evidence that plaintiff sold to an agent of defendant fishing nets ordered in the name of defendant to be used in a branch of defendant’s business in a town separate from the main office; that the agent had been appointed by defendant to conduct his fishing business at the place in question for half the profits, and was to furnish a gasoline tug whioh should be kept in repair at the expense of the business; that supplies, gasoline and wages should be paid for from the proceeds, the principal to furnish money necessary to run it and allow the agent to check out funds from the bank as such agent, with evidence tending to show notice to defendant of the purchase, warranted judgment for plaintiff against the principal for the price of the nets. Ostrander and Stone, JJ., dissenting.
    Error to Bay; Collins, J.
    Submitted April 2, 1912.
    (Docket No. 152.)
    Decided February 19, 1913.
    Assumpsit by R. J. Ederer Company against William P. Kavanaugh for goods sold and delivered. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Reversed.

      Stoddard & McMillan, for appellant.

      Lewis P. Coumans, for appellee.
   McAlvay, J.

Plaintiff, an Illinois corporation, manufacturer of nets and netting for fishing purposes, brought this suit against defendant, who is engaged in the wholesale fish business, with general offices at Bay City, and at the time this controversy arose was engaged in the same business at Port Huron and Sarnia. The suit was commenced by declaration in assumpsit for certain fish nets and twine alleged to have been sold to defendant by plaintiff in the year 1909. After all the evidence in the case was closed, the court directed a verdict for defendant. Plaintiff has removed the case to this court by writ of error, asking for a reversal of the judgment entered upon such directed verdict.

Evidence was offered in the case tending to prove that defendant, who was doing business under the name of Kavanaugh & Co., of Bay City, and A. W. Selkirk, of Port Huron, entered into a contract in writing as follows:

“Agreement made this 17th day of April, 1909, by A. W. Selkirk, of Port Huron, Mich., party of the first part, and Kavanaugh & Company, of Bay City, Mich., party of the second part, witnesseth: In consideration of the premises party of the first part agrees to take charge of the second party’s fishing business at Port Huron and Sarnia, which is represented largely by existing contracts with individual fishermen, and devote his time and best energies and skill in promoting the same during the fishing season of 1909, as directed from time to time by the second party, and this contract may be extended from year to year if mutually agreeable to the parties hereto. First party further agrees to furnish for use in said business, rent free, properly fitted out for business, his gasoline tug, named W. H. Selkirk, but necessary repairs during the season to be made at the expense of the business. It is agreed also that the business shall pay for gasoline and necessary supplies for operating said fish tug and wages of the men who run the same. First party also furnishes, rent free, for the use of said second party’s business, one-half of his fish house in Port Huron. It is agreed that said first party shall be paid, for his services and the use of his said tug and fish house, a salary equal to one-half of the net profits of the business of said second party, managed by said first party in Port Huron and Sarnia, as aforesaid, after deducting all the expenses incurred in said business. It is agreed that the money necessary for the business shall be furnished by the said second party and shall be kept on deposit, in the name of said second party, in some Port Huron bank, to be hereafter agreed upon, and said first party shall have authority to sign checks on said bank account, as agent of said second party, in the payment for fish and the freight thereon and in payment of wages. All receipts of said business shall first be deposited promptly in said bank account, and all monies paid out shall be paid by checks on said account, and said first party shall have no authority to sign checks for any purpose other than herein enumerated. Adjustment shall be made and wages paid to said first party, if earned, Sept. 1st and Dec. 1st of each year.
[Signed] “ A. W. Selkirk.
“W. P. Kavanaugh.
“Witness: H. C. Hertz.”

The business of defendant at Port Huron was carried on in the same name as that at Bay City and was known as a branch of defendant’s business. Prior to the sale of the goods for which this suit was brought, plaintiff frequently had sold defendant goods. After the contract was entered into between defendant and Selkirk, the latter took charge of the branch business at Port Huron, and operated it during the season of 1909. The goods were ordered by Selkirk in the name of W. P. Kavanaugh & Co., upon the letter heads of defendant, and were shipped by plaintiff in due course of business upon its understanding that Selkirk was acting as the agent of defendant in such transaction. A short time prior to the time these goods were ordered Kavanaugh stated to plaintiff’s general manager that his branch business at Sarnia had been removed to Port Huron, and stated that he was connected with or had Selkirk operating for him. It also appears that the goods were shipped, received, and used upon this tug which was employed in defendant’s business, with other gill nets which defendant had furnished; that bills and statements of account were sent in due course of business to Kavanaugh & Co. at Port Huron; that Kavanaugh came to Port Huron with his bookkeeper from Bay City, who made the entries in defendant’s books of all but one of the items of this account in sundry expense account, in the presence of defendant; that entries were also made on the books of a credit of $118; that of this payment made on this account by Selkirk $18 was cash and $100 a check of W. P. Kavanaugh & Co.; that a trial balance was taken off from these books by the bookkeeper for Kavanaugh; that the bookkeeper was there several times for the purpose of doing necessary work upon these books; that it appears that the balance claimed by plaintiff and testified to by its general manager to be due was $383.46; that the goods were sold in the usual course of business by plaintiff, who dealt with Selkirk in good faith as the agent of defendant who was managing the business at Port Huron.

The instruction by the court of a verdict for defendant was on the ground that no evidence was in the case tending to establish agency or authority upon the part of Selkirk to purchase these goods or that defendant held Selkirk out as his agent to plaintiff. In our opinion the court was in error in instructing a verdict for defendant. All of the testimony in the case referred to, except the written contract, was introduced by plaintiff. Under the rule which prevails where a verdict is instructed, this testimony presented in the case will be considered in the light most favorable to the plaintiff in error. It is not disputed that Selkirk represented the defendant at Port Huron in the conduct and management of his branch business. From the testimony of plaintiff, as above set forth, we, without hesitation, determine that questions of fact were presented which should have been submitted to a jury for consideration. This is the only question to be determined upon this record.

The judgment of the circuit court is reversed, and a new trial ordered.

Steers, C. J., and Moore and Brooke, JJ., concurred with McAlvay, J.

Ostrander, J.

(dissenting). The court having directed a verdict for the defendant, it is the contention of plaintiff—

“ That the action of the court in directing a verdict for the defendant was error because the court should have submitted to the jury the questions of whether or not defendant’s agent, Selkirk, had implied authority to order the goods on behalf of the defendant, whether or not the defendant held out Selkirk as his agent in the matter, and whether or not the purchase of the goods was subsequently ratified by defendant.”

The agreement between defendant and A. W. Selkirk appears from the copy thereof set out in the opinion of Mr. Justice McAlvay. The business of the defendant, formerly conducted from the port of Sarnia, afterwards from that of Port Huron, had never been, in whole or in part, the business of fishing with gill nets. It was the business of buying fish from pond-net fishermen, collecting the fish, and marketing them. No change in this business ever occurred or was ever authorized by the defendant, except that, having on hand a few gill nets, he sent them to his agent, Selkirk, at Port Huron, upon the suggestion of Selkirk that, in going to and from port with the fishing tug which was operated in the business, he could set and raise the gill nets without any particular loss of time and perhaps add some profit to the business. Selkirk was himself engaged with another tug in gill-net fishing, and continued to be so engaged during the fishing season of 1909.

I have examined the record with care and find no testimony therein tending to prove that defendant ever authorized Selkirk to purchase any goods of any kind from plaintiff or from any other person excepting such articles as were necessary for the maintenance of the tug used in the business of collecting and carrying the fish which were purchased. On the contrary, any such authority is expressly denied by Selkirk, who testified to no more than this, that he suggested that more gill nets could be profitably used, a suggestion to which the defendant made no reply. He says he assumed it would be all right if he bought the gill nets. Clearly, Selkirk had no implied authority to order the goods which he did order of the plaintiff. It is just as clear from the testimony that Selkirk was not the general agent of the defendant to buy paraphernalia for the buisiness which defendant had established or apparatus to extend the business into fields into which defendant had not extended it.

Did defendant hold out Selkirk as his agent in the matter ? The defendant had had dealings with the plaintiff for a considerable period of time, had always paid his bills promptly, and at the time the goods were ordered by Selkirk he had an account with the plaintiff. Defendant’s principal office was at Bay City, and the business which he conducted at Port Huron was a branch or subsidiary part of the main business of buying and selling fish. While defendant did business as W. P. Kavanaugh & Co., there was no company, and plaintiff so understood and did not regard Selkirk as the company at Port Huron. No orders were received by the plaintiff from the Bay City office in relation to the goods, and no inquiry was made at that office, and no advices were sent to that office of the fact that goods had been ordered by Selkirk to be sent to Port Huron to defendant. The letters which were written in ordering the goods were signed W. P. Kavanaugh & Co., but after the signature was the letter “S,” and plaintiff knew that the letters so written were written by Mr. Selkirk. The goods were charged by plaintiff, not to the account of W. P. Kavanaugh & Co. already appearing upon their books, but to W. P. Kavanaugh & Co., Port Huron, a new account. The testimony of the representative of plaintiff, through whose hands the business passed, is to the effect already stated, and further:

“Q. Now, Mr. Edsall, W. P. Kavanaugh & Co. is an assumed name, is it not?
“A. I do not know about that.
“ Q. Did you know anybody by that name ?
“A. I knew one W. P. Kavanaugh. Before extending credit or making a charge against W. P. Kavanaugh Company, I remember of Mr. Kavanaugh remarking about an agreement or arrangement or something like that with Selkirk, and furthermore the stationery reads, ‘ Main Office, Bay City.’
“ Q. Is that all of the matter you looked up to ascertain who you were shipping those goods to ?
“A. Yes. * * *
“Q. You knew that Selkirk was the man that was ordering the goods, and you sent them there without consulting Kavanaugh ?
“A. No, sir.
“Q. Do you mean to say that the letters that you have testified and identified as the handwriting of Mr. Selkirk that you didn’t know at the time that they were going to him.
"A. As Mr. Kavanaugh’s representative at Port Huron, yes. I did nothing outside of what I have stated to ascertain the fact whether or not they were going to Kavanaugh & Co., meaning Mr. Kavanaugh.
“Q. So, then, you shipped those goods without making any investigation as to the authority of the agency of Mr. Selkirk?
“A. No, because of the statement made by Mr. Kavanaugh when in our place that he had connection with Mr. Selkirk, I assumed that it was not necessary to inquire further.”

The same witness further testified:

“ Mr. W. P. Kavanaugh was in the factory of R. J. Ederer & Co. a short while prior to the time the nets were ordered and stated that they had had a branch at Sarnia but had removed it to Port Huron.
“Q. Did Mr. Kavanaugh say anything further to you about the matter of who had been in charge of the Sarnia branch, and so on ?
“A. He also remarked that he was connected, as near as I can remember, he was connected or had Selkirk operating for him; the exact words I cannot remember, but it was to that effect.”

There is no testimony tending to show that anybody at any previous time had ordered, or assumed to order, goods from plaintiff or from any other person as agent of the defendant.

It is undoubtedly the rule that the authority of the agent must depend, so far as it involves the rights of innocent third persons who have relied thereon, upon the character bestowed rather than the instructions given. The principal is bound to third persons acting in ignorance of any limitations by the apparent authority given and not by the express authority. Plaintiff says:

“Under this doctrine we contend that defendant is liable because he held out Selkirk as his agent. This holding out began at the time defendant was in the factory of the plaintiff at Chicago and stated to plaintiff’s credit man, Mr. Edsall, that defendant had had a branch at Sarnia but had removed it to Port Huron, and that he was then connected with Selkirk, or had Selkirk operating for him. This conversation was such as to cause the credit man to understand that Selkirk was operating the branch at Port Huron for defendant. The holding out was further continued by defendant allowing Selkirk to use stationery bearing defendant’s name and an inscription showing that the general office was at Bay City and the branch at Port Huron. Relying upon this holding out, plaintiff sold the goods upon the credit of the defendant.”

In my opinion, it must be said, as matter of law, that the conduct of defendant described was not calculated to mislead the plaintiff, did not occur under circumstances which justified the claim that the alleged principal (the defendant) should have expected that the representations would be relied and acted upon, and, this being so, it is immaterial whether what defendant said was relied upon and acted upon in good faith to the injury of the plaintiff. All of these elements of estoppel, and not merely some of them, must be present in such a case. Clark v. Dillman, 108 Mich. 625 (66 N. W. 570); Marx v. King, 162 Mich. 258 (127 N. W. 341). And while, as has been stated, it is immaterial whether the other elements necessary to constitute the estoppel exist, it seems clear that plaintiff did not exercise ordinary business prudence in filling an order made by Selkirk upon defendant’s account.

Was the purchase of the goods subsequently ratified by defendant ? Ratification by partial payment is attempted to be proven by Selkirk, called as a witness by the plaintiff. He testified as follows:

“They have on this bill here I have testified to — that is, on the books — a credit of $118, under date of June 18th. Eighteen dollars of it was paid by cash and $100 paid by check. I paid'the $18 cash to J. R. Ederer, one of the firm R. J. Ederer Co. He ran short that night at dinner and he wanted some money. I paid that out individually. The hundred dollars I paid with a check of W. P. Kavanaugh & Co.
“Q. Who gave you authority to draw a check of W. P. Kavanaugh & Co.?
“A. Well, excuse me — I am not sure, I think it was W. P. Kavanaugh & Co.’s check. It might have been my own, but I would have to look it up. I was not asked to look that up, under my subpoena. Nothing in there about the checks at all.”

The check was not produced, and there is no further testimony upon this subject, beyond this, that Selkirk testified that he took credit upon the books which he kept at Port Huron for the $18. The only other testimony which is supposed to show ratification by the defendant of the action of plaintiff and the agent Selkirk is testimony of the keeping of a set of books at Port Huron. It is the contention of plaintiff that there is a presumption that a person is cognizant of the contents of his own books of account. In this case, the presumption was overcome by the testimony of the defendant. It is true that defendant took his bookkeeper from Bay City to Port Huron upon one occasion, when he found out that Selkirk had not opened a set of books, and where a set was opened by the bookkeeper. Selkirk gave to the bookkeeper such memoranda, bills, and statements of account, as he had preserved, and the bookkeeper without directions made entries upon the books. Defendant was present when the bookkeeper actually made the entries, during a portion of the time. During a portion of the time he was over at Sarnia, and Selkirk testified:

“ I don’t think he took pains to look it over at all. He would have to stand here to look over his shoulder to see that, you know.”

It is true, also, that a trial balance was furnished from the books of defendant, but this was after the goods had been purchased from the plaintiff, and defendant testified, and his testimony is uncontradicted, that the trial balance did not state the names or headings of the accounts. It appears, too, that the bookkeeper entered the transaction with the plaintiff in an account called “ Sundry Expense.” It is true that in one instance Selkirk testified as follows, speaking of the account of the plaintiff:

“ Why didn’t you pay it ?
“A. I didn’t have enough money.
“Q. Why didn’t you call Kavanaugh’s attention that he was in debt over in Chicago and ask him to pay the money as the contract provided he should furnish you the money ?
"A. Mr. Kavanaugh saw the credits on the ledger.”

But he also testified:

“Q. So Kavanaugh hadn’t any knowledge of what was on the books or if the books and accounts was sent to you you did not call his attention to it ?
“A. Only from the trial balance.
“Q. You say he had a trial balance?
“A. Yes, sir.”

But suppose Mr. Kavanaugh did discover, after the fact, that his agent at Port Huron had wrongfully paid out $118 of his money. How can it be said that this discovery of wrongdoing was a ratification of his agent’s act in ordering goods on his account ? It appears, and is undisputed, that some time after the fishing season was over, after defendant had discontinued operating at Port Huron, he was notified by the plaintiff about the account which is in question here, and payment was requested. This was in the fall of 1909. He at once denied any responsibility for the account, paid his own account to plaintiff, and refused to pay the account in question. Thereafter no communication upon the subject appears to have passed between plaintiff and the defendant until the fall of 1910, when they again asked him to pay the account, to recover which they have now brought this action.

Because I do not find in the record any testimony tending to prove either that defendant’s agent, Selkirk, had implied authority to order the goods on his account, or was held out by defendant as his agent in the matter, or that the purchase of the goods was ratified by defendant, I disagree with the conclusion announced by Mr. Justice McAlvay in his opinion, and hold that the judgment of the trial court should be affirmed, with costs to the appellee.

Stone, J., concurred with Ostrander, J.


author: Ostrander, J. Brooke, J.

text:
    GLINNAN v. JUDGE OF THE RECORDER’S COURT OF DETROIT.
    1. Venue — Appeal and Error — Motion for Change — Mandamus — Trial by Jury.
    An order changing the venue of a criminal prosecution on motion of the people is discretionary and may be reversed on mandamus for abuse of the court’s discretion. Steere, C. J., and Stone and Ostrander, JJ., dissenting.
    3. Same — Change of Venue — Cause.
    Showing of the prosecution for change of venue considered, and held, insufficient to justify the exercise of discretion of the trial court in granting the motion.
    3. Constitutional Law — Change of Venue — Jury—Criminal Law.
    A change of venue authorized by 1 Comp. Laws, § 309, as amended (4 How. Stat. [3d Ed.] § 11784), upon motion of the prosecution, is valid, and does not infringe upon the constitutional right of trial by a jury of the vicinage. Constitution, art. 3, §13. MoAlvay and Brooke, JJ., dissenting.
    4. Courts — Recorder’s Court of Detroit — Power to Change Venue — Circuit Courts.
    The recorder’s court of the city of Detroit has the same power on motion for change of venue as any of the circuit courts of the State have. Aot No. 67, Pub. Acts 1909; Detroit Charter (1904), § 290.
    Mandamus by Thomas E. Glinnan and others against James Phelan, one of the judges of the recorder’s court of the city of Detroit, to compel respondent to vacate an order changing the venue in certain criminal cases in which relators were made respondents.
    Submitted January 21, 1913.
    (Calendar No. 25,514.)
    Writ granted February 19, 1913.

      Ormond F. Hunt and James McNamara, for relators.

      Grant Fellows, Attorney General, Edward Waer, Assistant Attorney General, Hugh Shepherd, Prosecuting Attorney, and Charles T. Wilkins, for respondent.
   Ostrander, J.

The relators, 10 in number, are, respectively, respondents in certain criminal cases pending in the recorder’s court of the city of Detroit, in which cases they are severally charged with the crime of bribery. In another information they are charged jointly as conspirators. Informations having been filed and a plea of not guilty entered for each of the relators by order of the court, the prosecuting attorney thereafter asked for an order changing the venue for trial from the said recorder’s court to some county in the State other than the county of Wayne. The application was supported by certain affidavits. The ground upon which a change of venue was asked was that a fair and impartial jury could not be secured. The motion of the prosecuting attorney coming on to be heard, relators presented to the court affidavits of citizens of the city of Detroit in opposition to the motion of the prosecuting attorney, and to the effect that fair and impartial trials could be secured in the city of Detroit. On the 30th of November, 1912, the court entered an order transferring the causes for trial to the sixteenth judicial circuit, which is the county of Macomb. A motion was made to vacate the order, and in support of the motion to vacate, the relators severally filed affidavits, in which, among other things, it is stated that said respondents, because of their financial condition, cannot make a fair, full, and complete defense in the county of Macomb. Upon this motion the prosecuting attorney filed 152 affidavits of residents of Macomb county, which, in substance, state the opinion of the affiants to be that fair and impartial trials can be had in said county of Macomb. The motion was argued, and thereupon the judge of said recorder’s court, on December 27, 1912, made an order denying the motion to vacate the order theretofore entered. Thereupon the relators filed their petition in this court for an order requiring the judge of the recorder’s court to show cause why a peremptory mandamus should not issue, requiring him to vacate and set aside his order changing the venue in said causes, and to proceed with the trials. The order to show cause was issued, and return has been made thereto, and counsel for relators and for the people have been heard.

The propositions presented and argued on the part of the relators are:

(1) That respondent, the judge of the recorder’s court, had no authority or jurisdiction to make the order changing the venue, first, because they are entitled of right, under the Constitution, to a trial by a jury of the county where the crimes charged against them are alleged to have been committed; and, second, because the recorder’s court of the city of Detroit is a municipal court of limited jurisdiction, and is not invested with the power to order a change of venue for the trial of criminal cases.

(2) If the court had jurisdiction to make the order, the power is one involving the exercise of judicial discretion, and in the particular case judicial discretion has been abused.

(3) Mandamus is the only adequate remedy open to relators.

First. The constitutional provision relied upon is section 13 of article 2 of the Constitution of 1909, and appeared as section 27 of article 6 of the Constitution of 1850. The provision is:

“The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases unless demanded by one of the parties in such manner as shall be prescribed by law.”

The legislature, by section 10 of Act No. 157 of the Laws of 1851, provided, with respect to the powers to be exercised by circuit courts:

“ Each of the said courts, upon good cause shown, may change the venue in any cause pending therein, and direct the issue to be tried in the circuit courts of another 'county, and make all necessary rules and orders for the certifying and removing such cause, and all matters relating thereto, to the court in which such issue shall be ordered tobe tried; and the court to which such cause shall be so removed shall proceed to hear, try and determine the same; and execution may thereupon be had, in the same manner as if the same had been originally prosecuted in their county, except that in all criminal cases where the defendant shall he convicted and sentenced to imprisonment in a common jail, the court awarding the sentence, shall have the authority to direct and shall direct that the defendant be imprisoned in the common jail of the county in which the prosecution was commenced.”

This provision of the statute has been, since its enactment, changed by legislation. Act No. 12, Laws of 1871; Act No. 309, Pub. Acts 1905; Act No. 161, Pub. Acts 1907; Act No. 67, Pub. Acts 1909 (4 How. Stat. [2d Ed.] § 11784). But the language which has been quoted has never been changed, and it stands and the statute law is today substantially as it was in 1851. The question presented is not a new one, and was determined against relators’ contention in People v. Peterson, 93 Mich. 27 (52 N. W. 1039), and in People v. Fuhrmann, 103 Mich. 593 (61 N. W. 865). For more than 20 years (the Peterson Case was decided in 1892) the point has been regarded as settled, and we deem it unwise to overrule the decisions which have been referred to.

Second. Among other things, the charter of the city of Detroit provides:

“Thesaid recorder’s court shall have original and exclusive jurisdiction of all prosecutions and proceedings in behalf of the people of this State, for crimes, misdemeanors, and offenses arising under the laws of this State, and committed within the corporate limits of the city of Detroit, except in cases cognizable by the police court of the city of Detroit or by the justices of the peace of said city.”

There is no express provision in the charter of Detroit, as there is in the act providing for a superior court of Grand Rapids (Act No. 11, Pub. Acts 1905, § 30), which confers upon the recorder’s court the power to change the venue in any cause pending therein. The charter of the city of Detroit contains this provision relative to the recorder’s court:

“ Shall have power to issue all lawful writs and process and to do all lawful acts which may be necessary and proper to carry into complete effect the powers and jurisdiction given by this act, and especially to issue all writs and process, and to do all acts which the circuit courts of this State within their respective jurisdictions may, in like cases, issue and do by the laws of this State.”

We are of opinion that the recorder’s court of the city of Detroit, with respect to the matter now in issue, is empowered to do what the circuit courts of the State might do under like circumstances.

The judge of the recorder’s court, it is conceded, was called upon to exercise judicial discretion. It was exercised in favor of the people and against the relators. It is sought to review such exercise in mandamus proceedings; that is to say, to substitute the discretion of this court for that of the judge of the recorder’s court.

In Lyle v. Cass Circuit Judge, 157 Mich. 33 (121 N. W. 306), which was an application for a mandamus to compel the circuit judge to grant a change of venue, an exhaustive opinion was written by the late Justice Hooker, in which the authorities are collected and at considerable length are reviewed. In the opinion it is said:

“ Were it competent for us to review his conclusions upon the merits, I should reach a different conclusion from his; but I think that it is not.”

It is said in argument that this case does not decide that, where the court has jurisdiction, but relinquishes it and refuses to proceed further, this court will not interfere, and that what relators seek to do in this proceeding is, not to compel the trial court to arrive at a particular decision, but to proceed with the trial of the causes — an argument obviously fallacious and based upon premises which are not true in fact. The trials do not proceed in the recorder’s court, because the court has determined that they shall take place in another jurisdiction. The decision in Lyle v. Cass Circuit Judge is controlling, and for reasons stated therein we decline to review the discretion exercised by the recorder’s court.

The writ of mandamus is refused, and no costs are awarded.

Steers, C. J., and Stone, J., concurred with Ostrander, J.

Brooke, J.

(dissenting in part). I agree with my Brother Ostrander in holding that the recorder’s court of the city of Detroit can lawfully make the order in question if a circuit court has power, under the circumstances of this case, to make such an order.

I am further of the opinion that, if the making of said order is a discretionary matter, it cannot be reviewed in this proceeding, if we follow the rule announced in Lyle v. Cass Circuit Judge, 157 Mich. 33 (121 N. W. 306). I am, however, convinced that to hold that a court, either circuit or recorder’s, may make such an order upon the petition of the people, such as we have before us here, is to deny to relators their plain constitutional rights. It seems to me that such a holding strikes at the very foundation of liberty, and makes a mockery of all constitutional safeguards. For it cannot be denied that, had respondent chosen to order these relators to go to trial in Gogebic county, more than 500 miles from the scene of their alleged crimes, the decision of this court must have been the same, if the authority upon which my Brother Ostrander bases his opinion is sound.

In the case of People v. Peterson, 93 Mich. 27 (52 N. W. 1039), cited and relied upon by the people, Mr. Justice Long, who wrote the opinion, quotes a single paragraph from the decision in the case of Swart v. Kimball, 43 Mich. 449 (5 N. W. 638). I think consideration of the whole opinion must lead to a conclusion at variance with the one announced by Mr. Justice Long. Mr. Justice Cooley there said:

“ Now that in jury trial it is implied that the trial shall be by a jury of the vicinage is familiar law. Blackstone says the jurors must be ‘of the visne or neighborhood; which is interpreted to be of the county where the fact is committed.’ 4 Com. 350. This is an old rule of the common law (Hawk. P. C. b. 2, 40; 2 Hale, P. C. 264); and the rule was so strict and imperative that if an offense was committed partly in one county and partly in another the offender was not punishable at all. Hawk. P. C. b. 2, c. 25; 1 Chit. Or. L. 177. This overnicety was long since dispensed with, but the old rule has in the main been preserved in its integrity to this day. It is true that Parliament as the supreme power of the realm made some exceptions, which are enumerated by Mr. Chitty in his treatise on Criminal Law, vol. 1, p. 179; the chief of these being cases of supposed treason or misprision of treason examined before the privy council, and which, under a statute of Henry VIII, might be tried in any county, and offenses of the like character committed out of the realm, and which, by a statute of the same arbitrary reign, were authorized to be tried in any county in England. But it is well known that the existence of such statutes with the threat to enforce them was one of the grievances which led to the separation of the American colonies from the British Empire. If they were forbidden by the unwritten constitution of England, they are certainly unauthorized by the written Constitutions of the American States, in which the utmost pains have been taken to preserve all the securities of individual liberty. It has been doubted in some States whether it was competent even to permit a change of venue on the application of the State, to escape local passion, prejudice and interest (Kirk v. State, 1 Cold. [Tenn.] 844; Osborn v. State, 24 Ark. 629; Wheeler v. State, 24 Wis. 52); but this may be pressing the principle too far. State v. Robinson, 14 Minn. 447 [Gil. 333]; Gut v. Minnesota, 9 Wall. (U. S.) 35. But no one doubts that the right to a trial by a jury of the vicinage is as complete and certain now as it ever was, and that in America it is indefeasible. 1 Bish. Cr. Law (2d Ed.), § 552; Whart. Crim. Law, § 277; Paul v. City of Detroit, 32 Mich. 108; Ward v. People, 30 Mich. 116.
“ If we needed evidence of the value of the right, we wohld find abundance of it in this record. A citizen is arrested on a criminal accusation and carried off to a distant part of the State for trial. If he is poor and relies upon many witnesses for his exculpation, this will almost of necessity put it out of his power to make a complete defense; if he is a man of moderate means, the defense may ruin him. * * * But a disadvantage quite as great as the want of means is likely to be experienced in the fact that the accused is away from his friends and among strangers, who will know of him only this: That he is under arrest upon presumptive proof of being a felon. Of what avail is a man’s good reputation to him under such circumstances, when the neighbors who know it are at a distance, and when the very accusation among strangers will necessarily fix upon him a strong suspicion ?
“We have not the slightest hesitation in declaring that the act of 1857, so far as it undertakes to authorize a trial in some other county than that of the alleged offense, is oppressive, unwarranted by the Constitution, and utterly void.”

The eminent writer of this opinion, in his work on Constitutional Limitations (7th Ed.), p. 459, says:

“ The jury must be summoned from the vicinage where the crime is supposed to have been committed.”

In support of this text a note is appended, where it is said:

“ Offenses against the State are to be tried in the county in which they are charged to have been committed; * * * but courts are generally empowered, on the application of an accused party, to order a change of venue, where for any reason a fair and impartial trial cannot be had in the locality. [Citing cases.] It has been held incompetent to order such a change of venue on the application of the prosecution. Kirk v. State, 1 Cold. [Tenn.] 344; Wheeler v. State, 24 Wis. 52; Osborn v. State, 24 Ark. 629; People v. Powell, 87 Cal. 348 (25 Pac. 481, 11 L. R. A. 75); * * * Armstrong v. State, 1 Cold. [Tenn.] 338; State v. Denton, 6 Cold. [Tenn.] 539. Contra: State v. Robinson, 14 Minn. 447 [Gil. 333]; Willis v. State, 10 Tex. App. 493.”

To these authorities should be added the following: State v. Howard, 31 Vt. 414; Ex parte Rivers, 40 Ala. 712; State v. Knapp, 40 Kan. 148 (19 Pac. 728).

In Hill v. Taylor, 50 Mich. 549 (15 N. W. 899), it is said:

“Although there are some eases where by the rules of law that might be deemed the locus delicti, it cannot be seriously claimed that the prosecution can be had in a county where the crime was not actually or in contemplation of law perpetrated. The constitutional guaranty on this subject is too plain to be controverted.”

In the late case of People v. Brock, 149 Mich. 464 (112 N. W. 1116, 119 Am. St. Rep. 684), the principles laid down in these two cases were distinctly reaffirmed. There the late Justice Hooker said:

“It would be a startling innovation should we say that the legislature has power to subject a person charged with crime to prosecution in any one of several counties. * * * Whatever may have been held by the courts of other States, the cases of Swart v. Kimball, supra [43 Mich. 443 (5 N. W. 635)], and Hill v. Taylor, 50 Mich. 551 [15 N. W. 899], settle the rule for Michigan.”

It is, of course, true that all three of the foregoing decisions dealt with legislative enactments which empowered the people to initiate prosecutions in a county other than that in which the alleged crime was committed; but I challenge attention to the fact that it makes little difference to the accused whether he is originally indicted in a foreign jurisdiction, or, after indictment in his home county, he is, against his protest, removed to such foreign jurisdiction for trial. The result to him is identical in both cases; and if the legislature, by reason of constitutional limitations, may not directly enact a law abridging the rights of the individual I am at a loss to understand how it may do so indirectly by means of a statute relating to change of venue.

The authority upon which the decision in the case of People v. Peterson rests is unquestionably People v. Webb, 1 Hill (N. Y.), 179. This decision was announced in 1841. It is cited as authority in every case where it has been held that a change of venue may be had at the instance of the prosecution. In passing, it should be observed that the indictment had been removed to the supreme court by certiorari, and that the motion for a change of venue was made in the appellate tribunal. It further appears that the court carefully examined the showing made and held it to be sufficient. The court found its authority for making the order in two cases: King v. Nottingham, 4 East. 208, and People v. Vermilyea, 7 Cow. (N. Y.) 108.

I am of opinion that neither case is authority for the holding. In the Nottingham Case the order removing the cause to an adjoining county was made under the Stat. 38 Geo. Ill, chap. 52. Section 1 provides that—

“ In every indictment removed into R. R. by certiorari, and in every information filed by the attorney general if the venue he laid in the county of any city or town corporate, it shall and may be lawful for the court in which such indictment, etc., shall be depending, at the instance of the prosecutor or of any defendant, to direct the issue joined, etc., to be tried by a jury of the county next adjoining to the county of such city.”

Section 12 provides:

“That nothing in this act contained shall extend to enable any person to prefer any bill of indictment for any offense committed within the county of the city, etc., to the jury of such next adjoining county as aforesaid, or to remove any indictment, etc., except the person preferring such bill or applying for such removal shall enter into a recognizance before the court where such bill shall be preferred, or the court or magistrate to whom such application shall be made in the sum of 40 pounds.”

A motion was made to quash the rule directing the removal and trial of the indictment in the county of Lincoln. It was suggested that the twelfth section was meant to include all cases of removal of an indictment for trial into the county at large from the county of the city. The prosecutor, at whose instance the removal had been made, had not entered into the recognizance for 40 pounds. Lord Ellenborough, C. J., said:

“We are all satisfied that the twelfth clause, requiring the recognizance of 40 pounds to be entered into upon the change of venue, does not relate to eases where the indictment has been previously removed into this court by certiorari.”

Two facts became apparent from an examination of this authority: First. The propriety or validity of the legislation was not discussed or questioned; indeed, it could not well be questioned in a jurisdiction where, as in England, the legislative power is supreme. Second. The act under which the order for the change of venue was made simply enlarged the vicinage from the county of the city to the county at large within which such city was located. Such an act, even in this country, and under the most stringent constitutional provisions, would probably be held valid. An act which provided that the trial of an indictment in the recorder’s court of the city of Detroit might be removed to the circuit court for the county of Wayne would, in essence, be identical with the English act.

In the second case, People v. Vermilyea, supra, the court said:

“There is no doubt of our power, upon a proper case, to send a criminal cause down for trial to a county other than that in which the venue is laid. Crimes, however, are essentially local. Hence the venue, as such, cannot be changed. The place of trial must be altered by suggestion, and on clear proof that the cause cannot be tried in the county where the offense is laid, with safety to the rights of the defendant. The present motion rests on a single affidavit of one of the defendants; and, independent of the opposing affidavit, I cannot say I am satisfied there is any danger in a New York jury.”

No authority is cited and none is necessary; for it is apparent that the application was made by the accused, and not by the prosecution.

In the Webb Case, supra, 1 Chitty’s Criminal Law, 201 (Am. Ed. of 1836), is also cited. Upon examination of the text, we find it supported by a reference to the Nottingham Case discussed supra.

Our Constitution provides, “ The right of trial by jury shall remain.” While to these words some of the other States have added words such as “of the vicinage,” “of the county,” “of the county or district,” such words do not enlarge or better define the constitutional safeguard of the individual; they merely express in words what is implied by the language of our Constitution. Watt v. People, 126 Ill. 9 (18 N. E. 340, 1 L. R. A. 403); Flint River Steamboat Co. v. Foster, 5 Ga. 194 (48 Am. Dec. 258); 12 Enc. Pl. & Prac. p. 289, and notes.

While I believe that the decision in Peoples. Peterson, supra, was erroneous, and should not be permitted to stand as the law of this State, I desire to point out that in that case there had been two trials before the order for a change of venue was made. In the case of People v. Fuhrmann, 103 Mich. 593 (61 N. W. 865), an attempt was made to secure a jury in the county where the crime was alleged to have been committed. No jury could be obtained, after all available jurors in the county had been summoned. Whatever may be said about the authority of these two decisions, it is apparent that the facts in each case afforded a cogent argument for the rule adopted.

But no such exigency is presented by the case at bar. Here we have a prosecution launched against relators in a jurisdiction containing a population of half a million. No trial (resulting in a disagreement) has been had. There has not been even an attempt made to secure a fair and impartial jury. The claim, made on behalf of the prosecution, that such a jury cannot be obtained in the city of Detroit I believe to be unwarranted and unsound. It would be a sad commentary upon the decadence of modern civilization, if it were true.

If the rule in the Peterson Case is to remain the law of this State, I am of opinion that we should modify our holding in Lyle v. Cass Circuit Judge, 157 Mich. 33 (121 N. W. 306), to this extent: That, where the order for a change of venue is made upon the petition of the prosecution, and against the protest of the respondent, the discretion of the trial judge making the order may be reviewed upon mandamus.

To remit these petitioners to their remedy upon appeal would, in my opinion, fall far short of justice. In the meantime they will have been compelled to go to trial in a foreign jurisdiction, under the disabilities pointed out. Even if, after conviction, a reversal be had upon appeal, the mischief will have been done, the wrong suffered. Were such a review to be had upon this record, I have no hesitation in saying that the order in question should be set aside as being a gross abuse of discretion.

The writ should issue.

McAlvay, J., concurred with Brooke, J.

Moore, J. It is a well-settled rule of law that the language used in an opinion must be read in connection with the facts and circumstances disclosed by the record in the given case. As shown by the opinion of Mr. Justice Brooke, the cases of People v. Peterson, 93 Mich. 27 (52 N. W. 1039), People v. Fuhrmann, 103 Mich. 593 (61 N. W. 865), and Lyle v. Cass Circuit Judge, 157 Mich. 33 (121 N. W. 306), are distinguishable from the instant case. In the cases where a change of venue was ordered on the application of the people, one of two things was shown: Either that there had been a disagreement of the jury after a trial was had, or that there were not a sufficient number of persons remaining in the county, eligible to act as jurors, from whom a jury could be procured. This showing having been made, it would follow logically that, if there was to be a trial at all which should result in a verdict, a change of venue would be necessary. Otherwise the accused, however guilty, might never be convicted.

In the case of Lyle v. Cass Circuit Judge, supra, the application for a change of venue was made by the respondent. In denying this application, the respondent was not deprived of the right of trial by a jury of the vicinage; and until it was demonstrated that he could not have a fair trial by such a jury he had no just cause of complaint.

In the instant case no trial has been had; indeed, no effort has been made to procure a jury; nor has it been shown there are not plenty of persons in the city of Detroit, eligible as jurors, from whom an impartial jury might be obtained.

The right of the respondent to have his case tried by a jury of the vicinity was discussed at great length in Swart v. Kimball, 43 Mich. 443 (5 N. W. 635), from which opinion Justice Brooke, in his opinion, has quoted at length, making it unnecessary to repeat here what was stated by him. We do not know of any modification of the rule as thus stated.

We do not understand that in all cases, simply because it is said the lower court has exercised a discretion, the writ of mandamus will be refused. If no showing had been made on the part of the people, would it be claimed that in granting a change of venue the trial judge had exercised a discretion which could not be reviewed by mandamus? What was, in fact, done was but little better from a legal standpoint. No effort was made to test out the question of whether a jury could be procured, as was done in the cases to which reference has already been made. Until some effort of that kind has been made, and the effort has resulted in a failure, the trial judge is not authorized to change the venue against the protest of the accused. If he does so act, instead of exercising a legal discretion, the act becomes an arbitrary one.

In Michigan Mut. Fire Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270 (70 N. W. 582), the following language was used:

“ In view of the growing frequency of applications for mandamus asking this court to review the action of subordinate courts, resulting in overloading this court with work which does not finally dispose of the case, it becomes important to decide whether, in a situation like the one at bar, the writ should issue. We are aware that the decisions of this court have not been uniform, and for that reason it is difficult to lay down a rigid rule which shall be followed in all cases. As the writ is a discretionary one, perhaps it is not desirable that an inflexible rule should be established. We think, however, a review of the decisions will indicate, in a general way, when the writ should, and when it should not, issue. It is a general rule that the writ will not lie where the law has provided another remedy. It is said a writ of mandamus issues because there is no other adequate remedy, and justice and good government require a redress of the wrong. A court will not be required by this writ to take any action when another remedy is provided. It will not take the place of an appeal or a writ of error. Merrill, Mand. §§ 201, 209. To this rule an exception is made if the slowness of ordinary legal forms is likely to produce such immediate injury or mischief as ought to be prevented. Merrill, Mand. § 198; People v. Cass Circuit Judge, 39 Mich. 410; Talbot Paving Co. v. Detroit Common Council, 91 Mich. 262 (51 N. W. 933).”

In the instant case, if the order of the trial judge changing the venue stands, the respondents have been deprived of the important right of trial by a jury of the vicinage, without a showing that such a jury could not be procured; and before any other remedy can be invoked the mischief may be done. Under such circumstances, if the writ-of mandamus may not issue, the accused is without remedy.

For these reasons, I think the writ should issue.

Bird, J. For reasons which are historical, the rule that one charged with crime has a right to be tried by a jury of the vicinage has taken a fast hold on our system of jurisprudence. The rule itself is not in dispute; only its exceptions are questioned. The idea behind the rule is a “fair and impartial trial.” Now and then, in the past, conditions have arisen which made a fair and impartial trial impossible, where the rule was rigidly enforced. The inefficiency of the rule under such conditions gave rise to exceptions to the rule. To meet this exigency, the legislature passed Act No. 157 of the Laws of 1851, providing, in substance, that when these extraordinary conditions arose a change of venue might be granted by the circuit court. The statute reads in part:

“ Each of the said courts, upon good cause shown, may change the venue in any cause pending therein, and direct the issue to be tried in the circuit courts of another county.”

This statute has been construed by the court as giving to the circuit courts the right to change the venue upon the application of the people, as well as upon the application of the respondent. People v. Peterson, 93 Mich. 27 (52 N. W. 1039); People v. Fuhrmann, 103 Mich. 593 (61 N. W. 865). In my opinion this was a'proper construction. The people are interested in every man having a fair trial. The safety of the public depends upon this being done; and if a situation presents itself where a fair and impartial trial cannot be had the change should be made at the suggestion of the public prosecutor, as well as at the suggestion of the respondent. Indeed, I think it would be the duty of the public prosecutor to apply for such a change on behalf of an indifferent respondent, if convinced that he could not be afforded a fair trial by a jury of the vicinage.

With this construction placed upon the statute, Mr. Justice Brooke attacks its constitutionality, and cites in support of his contention the cases of Swart v. Kimball, 43 Mich. 443 (5 N. W. 635); People v. Brock, 149 Mich. 464 (112 N. W. 1116, 119 Am. St. Rep. 684). In both of these cases the court was dealing with general laws passed by the legislature, which were in direct conflict with the rule, and which, if enforced, would have resulted in overturning it. What was said in those opinions has no application to the exceptions to the rule.

The power conferred upon circuit courts by this statute is one which ought to be exercised with great care and deliberation; and a change of venue, on behalf of the people, should be made only after a showing which convinces the court that public sentiment is in such a state as to render improbable a fair and impartial trial. And I am of the opinion that this court should stand ready to correct at the earliest moment any abuse of power in this regard, before it has resulted in harm to the accused. If it is necessary to modify the holding of this court in Lyle v. Cass Circuit Judge, 157 Mich. 33 (121 N. W. 306), to conform to this practice, then I am in favor of such modification.

The showing of the prosecuting attorney to obtain the order of removal was very meager. It was not such a showing as is contemplated by the statute, wherein it provides for a change of venue upon good cause shown. Neither was it such a showing as would ordinarily inform the court what the sentiment was among all classes, and in all localities, from which jurors might be drafted in a populous city of a half million people. By reason of the insufficiency of the showing, I am impressed there was an abuse of discretion in ordering the case removed.

The writ should be granted.

Kuhn, J., did not sit.


author: Per Curiam.

text:
    PERKINS v. PERKINS.
    1. Appeal and Error — Time—Dismissal of Appeal.
    After two and a half years from the date of entry of decree, no appeal under Act No. 299, Pub. Acts 1909, will lie, although the delays were for mutual benefit and both parties consented.
    2. Same — Motions.
    On motion such appeal must be dismissed, since neither parties nor trial court can confer jurisdiction beyond the statutory provisions, and the payment of the statutory fee to the register in chancery within the prescribed period is jurisdictional.

      Bill by Frederick L. Perkins, executor of the estate of Harriet M. Perkins, deceased, against Willis J. Perkins and others. From a decree for complainant, defendants appeal. On motion of complainant to dismiss.
    Submitted November 27, 1912.
    (Calendar No. 25,408.)
    Motion granted March 12, 1913.

      A. G. Hindman, for the motion.

      W. F. Keeney, contra.

   Per Curiam.

In this cause the bill of complaint was filed December 27, 1901. February 15, 1902, notice that the cause was at issue, a demand for a hearing in open court, and notice of hearing were given. March 29, 1910, a decree was filed and entered. September 12th of the same year a bond on appeal was filed. March 21, 1911, counsel stipulated that an order might be entered extending the time three months from the date thereof for perfecting an appeal to the Supreme Court “ in accordance with the provisions of section 3 of Act No. 299 of the Public Acts of Michigan for the year 1909.” Upon this stipulation the late Justice Hooker, March 24,1911, made an order extending the time for perfecting an appeal three months from the date of the order. Within the time limited, and on June 23, 1911, counsel for the respective parties stipulated, and we find the stipulation attached to a mass of papers returned to and filed in this court—

“That the foregoing may and hereby is settled as a case on appeal in said cause, in accordance with the statute in such case made and provided. * * * ”

And following this stipulation, and the last paper attached, is the certificate of the register of the circuit court for the county of Kent, in chancery, to the effect that the foregoing attached papers—

“Are the original bill and all process, pleadings, motions, notices, orders, and decrees, which have been filed in the above-entitled cause, and the whole thereof. And also copies of all journal and calendar entries, and other proceedings of record in said cause, not embraced in the original papers hereinbefore mentioned,” etc.

October 14, 1912, the solicitors for the parties made the following stipulation:

“ It is hereby stipulated and agreed by and between the solicitors for the respective parties to the above-entitled cause that a copy of the printed record in said cause may be and hereby is substituted in place of the typewritten record in the case made for appeal in said cause, and that the solicitors for either party may, upon the hearing of said cause in the Supreme Court, refer to and use any exhibit duly received on the hearing of said cause in the circuit court, and also the stenographer’s typewritten report of the testimony, whether the same be printed in the printed record as prepared or not.
“ Providing, however, that the same is set out in full, or specifically referred to in the printed briefs.”

This stipulation was filed on October 16th, on which date a claim of appeal and a printed record were filed in the court below.

A motion was filed in this court November 18,1912, by the solicitors for the complainant and appellee to dismiss the appeal, for the reasons:

(1) That defendants’ claim of appeal was not filed in the circuit court until October 16, 1912; (2) that the clerk’s fee on appeal was not paid until October 16, 1912.

Complainant’s solicitors say they learned the facts assumed in these reasons, and not disputed, after the last and above-quoted stipulation was entered into.

It thus appears that more than two years and six months elapsed between the filing and entering of the decree and the time when this court, upon the face of the papers, became possessed of the matter on appeal. It further appears, and is a fact not referred to by counsel upon either side, that no case for review has been settled by the judge who heard the cause or by any other judge. There is no evidence before the court that any judge has settled and signed the case on appeal.

The statute controlling appeals at the time the decree in this cause was entered was Act No. 299 of the Public Acts of 1909. By the terms of this statute, it was possible to secure in the court below a year from the entry of the decree appealed from to perfect the appeal, and by application to this court, or a justice thereof, an additional six months’ time might have been, for good reasons, secured. Counsel were familiar with the statute because they secured from a justice of this court an extension of the time. It is contended for the appellants that the delays which thereafter occurred were for the mutual benefit of the appellants and the appellee and were consented to, and that compliance with the statute 'governing appeals to this court was waived by the appellee.

If the motion to dismiss was addressed to the discretion of the court, reason might be found for its denial. It is not, however, a matter of discretion. This court has no original jurisdiction to hear and determine appeals in chancery, and appeals lie from decrees of circuit courts, in chancery, only because they are permitted by the legislature. Having the power to permit or refuse appeals to be taken, the legislature has the power to prescribe the conditions which shall attend and control the taking of such appeals. The legislature has not qualified or limited an existing right, but has created a right, to be exercised within a prescribed period of time, in a prescribed manner. Whether an appeal should be allowed in this cause is not a question of discretion of the court, but one of compliance with the conditions which the legislature has prescribed for taking such appeals.

In other words, the jurisdiction of the court to hear and determine the appeal depends upon whether the statute has been followed. Jurisdiction to hear and determine appeals in chancery cannot he conferred by consent of parties; neither the court nor any judge thereof can add to or take from the statutory provisions.

The subject was before the court and discussed with a considerable reference to authority in Waterman v. Bailey, 111 Mich. 571 (69 N. W. 1109). See, also, Wilkinson v. Kneeland, 125 Mich. 261 (84 N. W. 142); Lum v. Fairbanks., 155 Mich. 23 (118 N. W. 578); Bliss v. Saginaw Circuit Judge, 159 Mich. 507 (124 N. W. 561). The matter has been presented on the part of the appellants with reference to the authorities and the reason sustaining the proposition that within the time limited by the statute, noncompliance with various statutory provisions by the appealing party may be waived by the appellee. As has been pointed out, this proposition is not controlling. The legislature has given a possible limit of time amounting to one year and six months from the entry of a decree for perfecting an appeal to this court. In this cause that time has been exceeded by more than a year. It is apparent that, if the parties in such a cause may by consent extend the statutory period for appealing one day, they may exténd it indefinitely, and, if this right could be admitted, appeals in chancery would not be controlled by the authority without which they could not be taken at all, but by the convenience of counsel. There is a class of cases, and they are referred to by Mr. Justice Hooker in Waterman v. Bailey, supra, in which the court refused to dismiss appeals because parties desiring to appeal were prevented from doing so by the default of the court or of some of its officers. Such a case was Cameron v. Calkins, 43 Mich. 191 (5 N. W. 292). Another is City of Kalamazoo v. Power Co., 122 Mich. 489 (81 N. W. 426). In Cameron v. Calkins it was said:

“We cannot think the legislature intended to deprive a party of his right to an appeal because not taken within a time fixed from circumstances beyond his control. Where it is within the power of a party to have his case settled, and he does not do so, he may well be held bound thereby; but where the delay is caused by officers of the court over whom he has no control, and without fault or want of due diligence on his part, we are of opinion that a settlement made after the period of three months will be good.”

This court has repeatedly held that the payment of the register’s fee within the time required by the statute is jurisdictional. Bennett v. Hickey, 110 Mich. 628 (68 N. W. 650); Trombly v. Klersy, 139 Mich. 311 (102 N. W. 736); Thompson v. McKay, 154 Mich. 228 (117 N. W. 624); Lum v. Fairbanks, 155 Mich. 23 (118 N. W. 578).

Although attention has been called to the fact that no case for review has yet been settled and signed by the circuit judge, we do not rest decision upon that fact. We hold, in conformity with repeated decisions of the court, that the statute fixes a time within which appeals in chancery must be perfected, and that a party desiring to appeal must within that time perfect his appeal; for the failure to do which, the right to appeal is lost and cannot be restored by the court.

The motion to dismiss is granted, but without costs.


author: Bird, J.

text:
    WEICKGENANT v. ECCLES.
    1. Contracts — Restraint of Trade — Consideration.
    A written agreement, made after concluding an oral sale of defendant’s business and after payment of a part of the purchase price, might contain an additional clause or promise not included in the parol agreement, and prohibiting the defendant from engaging in business within the city, where the sale took place, while complainant should remain in business there; payment of the purchase price was sufficient consideration to support the covenant.
    2. Same — Evidence.
    In a written contract all previous parol contracts relating to the same matter are merged, and they are not admissible in evidence.

      3. Same — Illegality—Public Policy.
    The clause in restraint of trade was neither unreasonable as to space or time, and was valid, being within the exception of Act No. 329, Pub. Acts 1905 (2 How. Stat. [2d Ed.] § 2942).
    4. Same — Incompetency—Ratification.
    On the ground of alleged incompetency to contract, proof of defendant’s nervous and weakened condition was not a sufficient foundation to invalidate the restrictive covenant in the contract, which, he had not attempted to repudiate as a whole by returning the consideration or by other affirmative action, although he had recovered his health and desired to re-engage in business.
    5. Same — Conspiracy.
    Evidence showing that defendent’s wife opened a furniture business under the name of Eccles Furniture Company, that defendant furnished the money and credit to launch it, and acted as manager, using his wife’s name and the trade name to evade the stipulation against competition with complainant, and that she knew about the agreement, warranted a finding of conspiracy between them to violate the terms of the covenant and justified a decree against both restraining them from violating the contract.
    Appeal from Calhoun; North, J.
    Submitted June 19, 1912.
    (Docket No. 90.)
    Decided March 20, 1913.
    Bill by Jacob Weickgenant against Charles Eccles and Lulu J. Eccles, his wife, for an injunction. From a decree for complainant, defendants appeal.
    Affirmed.

      James H. Mustard, for complainant.
    O. 8. Clark, for defendants.
   Bird, J.

This is an injunction suit to restrain the defendants from carrying on the business of selling furniture at retail, in competition with complainant, in the city of Battle Creek. The trial court granted the relief prayed for in the bill, and the defendants have appealed.

It is charged in the bill that in October, 1908, the defendant Charles W. Eccles was engaged in the business of selling at retail, furniture, carpets, curtains, and draperies, and that on the 22d day of October he conveyed by bill of sale his entire stock of merchandise, together with the good will, fixtures, delivery wagon, horse, and lease of the building in which the business was being carried on, to complainant for a consideration of $7,750. The book accounts were also included in the transfer with a provision that complainant should pay all bills owing by defendant on account of the business. The bill of sale contained the following paragraph with reference to the good will of the business:

“And the said party of the first part for and in consideration of money hereinbefore mentioned received by him further agrees that for the protection of the said Jacob Weickgenant, party of the second part, in carrying on the business of selling furniture and other things connected with said business, and for and in consideration of the good will of said business hereby granted to said party of the second part by said party of .the first part, that he will not at any time while said party of the second part is engaged in the furniture business in the city of Battle Creek, or in the business of selling furniture, carpets, draperies or floor coverings, either directly or indirectly engage in said business in the city of Battle Creek.”

It is further charged that in January, 1911, and in violation of said agreement, the said Charles W. Eccles opened a retail store in Battle Creek for the sale of the same class of goods as he had theretofore sold to complainant, and that he is selling such goods in competition with complainant under the trade-name of “ Eccles Furniture Company;” that, while his wife, Lulu, has filed with the county clerk an affidavit stating that she is the sole owner of said stock of merchandise, the said Charles W. is attending to the business, looking after the advertising, making contracts for the purchase and sale of goods; and that the business has been almost wholly financed by him, and that, in fact, it is his business. It is charged that the said Lulu had knowledge of the contract existing between her husband and complainant, and that she is conspiring with her husband to evade the terms of said contract.

The defendants deny that they are engaged in any conspiracy to defraud complainant, and allege that the said Lulu J. is the sole owner of said stock of goods, and that Charles W. is interested only to the extent of assisting her in carrying on her business. They rely upon the following propositions to reverse the decree of the lower court:

“ (1) The alleged contract. Exhibit A, was not a part of, nor connected with, the sale of the stock which had occurred three days before, was and is void for want of consideration; any promise or agreement contained therein being a mere gratuity and not enforceable.
“(2) The alleged contract, Exhibit A, especially the clause containing the agreement not to engage in business, is an unreasonable restraint of trade, unconscionable and void.
‘‘ (3) At the time of the execution of the alleged contract, Exhibit A, the defendant Charles W. Eccles was of unsound mind, incompetent, and not in a mental condition to enter into a valid and binding agreement.
“ (4) The money received from the sale to complainant was turned over by Mr. Eccles to his wife, about one-half of the original investment having been contributed by her for a valuable and sufficient consideration, viz., her agreement and assuming the responsibility of the care and support of the family consisting of the parties, and four small children to be supported and educated. This fund has since been retained and used by her for the purposes named.
“ (5) There is no claim on the part of the complainant that Mrs. Eccles was a party or had any knowledge of the alleged contract, Exhibit A; nor does complainant claim to have acquired the right to use the name ‘Eccles’; hence she cannot be deprived of the right to conduct business in her own name.
“ (6) The defense is not based on any claim of right to set aside the sale of the stock and business, including the assignment of the lease of the building, and the good will (impersonal) connected therewith, as shown by the evidence of the transaction between the parties on the evening of the 19th, when sale was consummated and possession given, and the acts of the parties immediately following the sale.”

An oral agreement for the sale of the stock was reached on the evening of October 19th. One hundred dollars earnest money was paid thereon, and complainant went into possession on the morning of the 20th. On the 22d they went to a lawyer and had their agreement reduced to writing, and the balance of the purchase price was then paid. It is now insisted by defendant that the testimony shows that no reference was made to an agreement not to re-engage in business before the oral agreement was reached on the evening of the 19th, and that therefore that part of the written agreement is without consideration and void.

The consideration paid for the goods and business was a sufficient consideration to support this promise of the defendant; and no further nor additional consideration was necessary. Hubbard v. Miller, 27 Mich. 15 (15 Am. Rep. 153).

As to the point made that the written promise of October 22d, not to re-engage in business, was not a part of the oral agreement, made on the 19th, it is only necessary to refer to a general rule laid down in Street v. Dow, Har. Oh. 427, where it is said:

“ It is a general rule that a contract cannot rest partly in writing and partly in parol: but, where a contract is reduced to writing, all previous parol contracts relating to the same matter are merged in the written contract.”
We must therefore conclude that the oral agreement of October 19th became merged in the written agreement of October 22d, and that the sole evidence of the agreement of the parties is the written agreement.

To the claim that this contract “ is an unreasonable restraint of trade, unconscionable, and void,” it can be said that similar contracts to the one under consideration have been sustained by this court where they have been reasonably certain and restricted as to time and space. Hubbard v. Miller, supra; Beal v. Chase, 31 Mich. 490; Timmerman v. Dever, 52 Mich. 34 (17 F. W. 230, 50 Am. Rep. 240); Thompson v. Andrus, 73 Mich. 551 (41 F. W. 683); Up River Ice Co. v. Denler, 114 Mich. 296 (72 N. W. 157, 68 Am. St. Rep. 480); Reber v. Pearson, 155 Mich. 593 (119 N. W. 897); C. H. Barrett Co. v. Ainsworth, 156 Mich. 351 (120 N. W. 797); Buckhout v. Witwer, 157 Mich. 406 (122 N. W. 184).

The thing complainant shall refrain from doing is definite. As to space, it is reasonably restricted; and, as to time, it is during the period that complainant is engaged in the business in the city of Battle Creek. Contracts similar as to time have been upheld. 9 Cyc. p. 529. Hubbard v. Miller, supra. We do not think the contract is open to the objections made. It comes clearly within the exception of section 6 of Act No. 329, Pub. Acts 1905. (2 How. Stat. [2d Ed.] § 2942 et seq.)

For a time before and after the sale was made, the defendant Charles W. was troubled with a nervous disorder ; and it is claimed that he was affected to such an extent that he was incapable of making a valid contract. We do think this claim is borne out by the record; but, whatever may be the truth as to his mental condition at the time the contract was made, the record shows that complainant paid all the stock was worth, and no attempt was shown to overreach him in any way. His own testimony since recovery shows that he was and is now satisfied with the sale, and that he has never made any complaint of its unfairness, except that he wanted to go into business again.

We think the testimony shows that substantially all the money and credit used to launch the new business belonged to Charles W., and that he is managing and controlling the business as fully as he did before the sale to complainant, and that he is making use of his wife’s name and the trade-name of “ Eccles Furniture Company ” to evade and sail around the stipulation in his contract. The defendant Lulu was not a party to the contract; but we are persuaded that she had knowledge of its existence, and she has assisted her husband in his attempt to evade its terms, with a due appreciation of its force and effect. Under these circumstances, we approve of the conelusions reached by the chancellor that the permanent injunction should issue as to her as well as to her husband.

The decree is affirmed. Complainant will recover his costs in both courts.

Steers, C. J., and Moore, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred.