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Butzel, J.
In the case of Vukich v. City of Detroit, reported in 318 Mich 515, the jury rendered a verdict in favor of defendant. We reversed the judgment because of erroneous charge, et cetera, and granted a new trial. We refer to the report of the former case for many of the salient facts in the instant case.
However, it might be added that the plaintiff testified in the instant case that he had been out all night with his wife, first attending a dance in Detroit until 2 or 2:30 a.m., that they then drove to a friend’s house in Dearborn where they had lunch including a glass of beer and then proceeded toward home; that it was still dark at 5 a.m. at which time he was driving in a northerly direction on Chase road and had reached the intersection of Tireman avenue in the city of Detroit. He claims he stopped on the south side of the intersection of Tireman avenue before proceeding north on Hubbell avenue (which is an extension of Chase road north of Tireman avenue); that when he stopped he observed defendant’s bus, owned and operated by the department of street railways, a block to the east, and that he estimated that it was proceeding at the rate of from 20 to 25 miles per hour. Vukich claims that he determined he had time to cross the intersection safely and he thereupon started across Tireman avenue; that when he had reached the center of the avenue he noticed the bus was now only about 100 feet away and that it had doubled its speed; and that he had completely crossed the intersection when the bus collided with his car. Other facts are detailed in the former opinion. Fellow passengers of Vukich were all asleep so that there were no other witnesses'to the accident.
In directing a verdict of no cause of action, the trial judge dwelt largely on Vukich’s credibility and referred to his testimony at the former trial of tlie case. The testimony, however, was not introduced in the instant case. The trial judge held that the physical facts could not he reconciled with the testimony of Vukich and therefore there was no showing of negligence on the part of the defendant. Plaintiff has appealed from the verdict directed in favor of defendant. The physical facts largely favor defendant, but we cannot say that it was not possible for the accident to have occurred in the manner described by Vukich.
The facts and all inferences therefrom must be construed most favorably for plaintiff on appeal from a directed verdict, Dasovich v. Longacre, 324 Mich 62. Although we may be in accord with the trial judge as to the improbability of the accident occurring as testified to by plaintiff, this is primarily a question of fact for the jury, and there may be a possibility of reconciling the physical facts with the testimony of plaintiff, considered in the light most favorable to him. Defendant also contends that the verdict was properly directed in its favor as plaintiff was guilty of contributory negligence as a matter of law in not making a proper observation or judgment as to his ability to cross the intersection ahead of the bus. Defendant mainly relies on the statements of law made in the recent case of McDonald v. Skornia, 322 Mich 370, and the cases cited therein, in which the Court fully reviewed the applicable law. However, the testimony of Vukich, construed most favorably for him, distinguishes the facts of the instant case from the facts of the above cases. The trial judge did not pass on this question in directing the verdict. We are unable to say on this record that the plaintiff was guilty of contributory negligence as a matter of law.
Defendant also relies on the impossibility of the accident occurring as testified to by the plaintiff. These are proper arguments to the jury, not to the court. A discussion of the physical facts would not be of any benefit inasmuch as a showing of the possibility, even though not a probability, that the accident occurred in the manner described by Vukich is sufficient to raise a question of fact for the jury. Wright v. Barron, 318 Mich 409.
How far the court was influenced by plaintiff’s testimony at the former trial we are unable to state. Plaintiff was entitled to a retrial of the case, completely free from any reference to evidence entered in the former trial, except as properly introduced for impeachment. Bathke v. City of Traverse City, 308 Mich 1.
The judgment for defendant is reversed, with costs to plaintiff, and a new trial ordered.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Dethmers, and Carr, JJ., concurred. | [
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Carr, J.
In November, 1947, the defendants were the owners of a farm in Menominee county which they desired to sell. They caused to be inserted in a Milwaukee newspaper an advertisement purporting to describe the farm and specifying the purchase price. As a result plaintiffs became interested and entered into negotiations with defendants and with their agent, which culminated in the purchase of the property on January 17,1948, for the sum of $15,000. The consideration was paid in full and plaintiffs went into possession on or about January 31st following, the execution and delivery of the deed.
Claiming that the defendants by themselves and by their agent had made material misrepresentations of fact concerning the property, on which they relied, plaintiffs brought suit in September, 1948, to recover damages. The amended declaration filed alleged that statements in the advertisement were not true, particularly with reference to standing timber on the land. It was further alleged that when plaintiffs were shown the property, timber was pointed out to them as being on the farm. They discovered later that such timber was on adjoining land which .defendants had previously conveyed to another party. Plaintiffs asserted that they did not at the time know the location of the boundaries of the property, and that they were told by defendants’ agent that there was more than $5,000 worth of standing timber tHereon. ‘ The declaration further set forth'that misrepresentations were made with reference to the acreage that had been seeded to wheat and also as to the acreage for which defendants had contracted to be seeded to oats in the spring of 1948; and. that the defendants misrepresented the condition of the dwelling house on the property. It was' charged that the statements made were false, that in fact the value of the standing timber oii the farm as conveyed did not exceed $200, that the acreage seeded, and contracted' to' be "séede'd, was much less than .as represented, and that the house contained serious defects which appeared after plaintiffs went into possession.
Defendants moved to dismiss the declaration on the ground that it failed to allege a cause of action. The motion was denied. A bill of particulars was requested, and was furnished, after which defendants filed an answer denying the material averments in the declaration and denying that plaintiffs were entitled to recover damages. On the trial of the case, following the opening statement of counsel for the plaintiffs, defendants moved for a directed verdict on’ the ground that even if plaintiffs proved all the facts claimed by their counsel they would not be entitled to a verdict in their favor. This motion was also denied.
On the completion of plaintiffs’ proofs a motion for a directed verdict was made and decision thereon reserved by the court. After the introduction of testimony for defendants the motion was renewed, and décision again reserved. The jury returned a verdict of $2,000 in favor of the plaintiffs. Defendants'then moved for judgment notwithstanding the verdict of the jury, which motion the trial judge denied for reasons set forth by him in a carefully considered opinion. Judgment was entered on the verdict and thereupon defendants moved to vacate the judgment and for the entry of judgment in their favor. This motion also was denied. While defendants’ motion for judgment notwithstanding the verdict was pending, plaintiffs filed a motion for the entry of a judgment in their favor in the sum of $10,000, based on the pleadings in the case, notwithstanding the verdict of the jury. It does not appear that the trial judge considered the motion, and the record before us contains no order with reference to it. From the judgment entered defendants have appealed and plaintiffs have cross-appealed.
The first question presented for consideration is whether the amended declaration filed by the plaintiffs, and the opening statement of their counsel on the trial, were each sufficient in substance to set forth a cause of action. As above indicated, plaintiffs’ pleading averred the transaction into which they had entered with the defendants and alleged that they purchased the farm in reliance on the representations made to them which, as they claimed, they subsequently learned were false. It was not set forth in specific terms that the property was actually worth less than it would have been worth if the representations with reference to the standing timber, the grain seeded and to be seeded, and the condition of the house, had been true. The allegations of fact were not inconsistent with the theory on which the plaintiffs were required to rely. We do not understand that defendants claim that they were in any way misled because of the failure to make reference in the declaration to the rule of law as to the measure of damages applicable in the case. The trial judge concluded that sufficient facts were pleaded, and also stated by counsel in his remarks to the jury, to fairly set forth a cause of action. There was no error in overruling defendants’ motions based on the amended declaration and the opening statement of counsel.
The motion for a directed verdict submitted by defendants at the conclusion of plaintiffs’ proofs, renewed after both parties had rested, and further raised by the motion for judgment notwithstanding the verdict, was based primarily on the claim that .the proofs were insufficient to enable the jury to find a verdict in plaintiffs’ favor. The testimony of the plaintiffs and their witnesses tended to substantiate their claims, as set forth in their pleading, with reference to the alleged misrepresentations relating to the quantity and value of the standing timber and the acreage of grain seeded and to be seeded under contract. Prom such testimony the jury might well have concluded that plaintiffs were not .advised as to the boundary line of the farm and that they were in substance told that standing timber shown to them was located thereon although actually on adjoining land. The jury might also have concluded that the acreage of wheat that had been sown was materially overstated and that the contract with reference to the oats had been misrepresented. It is, we think, apparent that if the representations claimed to have been made to them by defendants in the particulars referred to had been in fact true the farm would have been worth appreciably more than its value in the condition that it was in at the.time of the transaction between the parties.
In submitting the case to the jury the trial judge gave the following instruction:
“The general rule of damages in an occasion of this nature is the difference between what the property would have been worth if it had been as represented and the value of such property as it was when conveyed to the plaintiffs. The issue is not whether plaintiffs paid too much or too little for the property. Therefore whether or not plaintiffs received $15,000 worth of property is not material and is not the issue in this case. Plaintiffs were entitled, to get what was represented to them that they should get. And so you will go over each of the claimed representations and first determine whether or not plaintiffs are entitled to recover with respect to any one or more of them and then you will assess plaintiffs’ damages, if any, based upon the difference between what the premises would have been worth if they had been as represented and what their value was when actually conveyed to the plaintiffs, and if you find for the plaintiffs you will render your verdict in such an amount.”
It must be assumed that the jury followed the instructions of the court and returned their verdict accordingly, based on the determination of the disputed factual issues involved in the case. The correctness of the rule as stated is not challenged by either appellants or cross-appellants. See Chapman v. Bible, 171 Mich 663 (43 LRA NS 373); Gloeser v. Moore, 284 Mich 106. The testimony before the jury was sufficient to permit a specific finding in accordance with the rule embodied in .the charge, and the amount of the verdict is well within the scope of the evidence. Whether the plaintiffs relied on the claimed representations in purchasing the farm was a matter for the jury to determine from all the proofs in the case. Dinius v. Bolibrzuch, 270 Mich 618. The factual issues in the case were properly submitted. The charge given fairly and clearly presented the claims of the parties. The trial court was not in error in denying the motion for judgment notwithstanding the verdict.
This brings us to a consideration of the cross appeal of the plaintiffs. It is their claim that the trial judge should have directed a verdict in their favor in the sum of $10,000, and that failure to do so was error. As before mentioned, defendants, following the filing of the amended declaration, demanded a bill of particulars. In response thereto plaintiffs filed a more specific statement of their claims than was set forth in the declaration, discussing all of the paragraphs thereof, leaving some unchanged and explaining in some detail the allegations made in others. As in their amended declaration, they claimed damages in the sum of $10,000, together with costs. It was sworn to by both plaintiffs.
Defendants raised no question as to the form or sufficiency of the bill of particulars furnished, nor did they file a sworn denial of plaintiffs’ claimed right to recover damages in accordance therewith. Court Rule No 20, § 5 (1945), provides that:
“Whenever a bill of particulars is verified by oath, the items thereof shall be deemed admitted except insofar as the opposite party shall file an affidavit within 15 days specifically denying the same.”
Plaintiffs’ motion, above referred to, made after the jury had returned its verdict, was based on the above-quoted rule and on the further claim that the verdict for $2,000 was contrary to the great weight of the evidence. Both claims are urged in this Court.
The record does not indicate that plaintiffs made a motion for a directed verdict on the basis of their sworn bill of particulars, or that the matter was in any other way called to the attention of the trial court, prior to the determination of the case by the jury. Not having made such motion on the trial, the plaintiffs were not in position to avail themselves of the provisions of the statute (CL 1948, § 691.691 [Stat Ann 1951 Cum Supp § 27.1461]) relating to the making and decision of a motion for judgment notwithstanding the verdict. Neither were they entitled to urge at the time of the filing of their -said motion that the court should summarily enter a judgment for them on the basis of the bill of particulars. As before stated, it does not appear that the trial judge considered such motion or that he took any action with reference to it. The record does not show affirmatively that _ it was called to his attention. If so, it is a matter of inference that he considered that plaintiffs were not then entitled to raise the question based on the court rule and that the motion did not require affirmative action.
The situation presented is somewhat unusual. In effect this Court is asked to pass on a matter not seasonably submitted to the trial judge and not passed on by him. In Garbarino v. Lee C. Miller Company, 330 Mich 688, it was said with reference to an analogous situation:
“It does not appear in the record on this appeal that the trial judge passed upon any of the controverted issues — i.e., whether plaintiff’s status was that of a stockholder in the corporation or a creditor of the corporation, whether plaintiff was entitled to an accounting for the value of his services as bookkeeper, or for his alleged loss incident to the motor vehicle transaction. Hence those issues are not before us for review.”
See, also, Dowagiac Manufacturing Co. v. Schneider, 181 Mich 538; Taskey v. Paquette, 324 Mich 143; Cabana v. City of Hart, 327 Mich 287 (19 AHR2d 333). Counsel for plaintiffs cites and relies on Cohen v. Peerless Soda Fountain Service Co., 257 Mich 679. In that case the plaintiff, having filed a sworn bill of particulars, moved for judgment on the pleadings, basing such motion on the failure of the defendant to file a verified answer denying the various items specified in plaintiff’s claim. Defendant relied on its sworn answer to plaintiff’s declaration. The trial court held that such answer was not a compliance with the rule, but granted defendant time to file an amended sworn answer. This the defendant neglected to do, and the trial court rendered judgment in plaintiff’s favor, which this Court reversed. The case does not support plaintiffs’ position in the in sant controversy. "Without reference to the merits of the claim based on the verified bill of particulars, we conclude that because of the failure of the plaintiffs to seasonably call the matter to the attention of the trial court and obtain a ruling thereon they are precluded from raising the matter on appeal in this Court. See, Baldwin v. Nall, 323 Mich 25, 31.
It is further contended, on behalf of plaintiffs that the trial court was in error in not submitting to the jury their claim for damages because of alleged misrepresentations concerning the condition of the house. The ruling of - the trial judge on the matter and his reasons therefor are set forth in the following excerpt from his charge:
“Now as to any claim for damages arising out of fraud with respect to the representations in regard to the dwelling on the premises I cannot submit this to you. There was testimony that now there is ample evidence of defects and damage which can be seen at this time. The house had been remodeled at considerable expense before the negotiations. The difficulties with respect to the dwelling did not become manifest or observable until a considerable time after the negotiations took place and the plaintiffs had moved in. There is not sufficient evidence to submit this issue to the jury as to whether or not defendants were aware of these difficulties at the time of the negotiations or if aware of them to what extent they were aware of them at the time. The testimony upon any claimed issue of damages arising is too indefinite and uncertain. One of the plaintiffs’ witnesses said he estimated the cost of repairs now to be a total of $3,600 or $3,700. Now it is quite clear from the evidence not all of the defects that now can be seen at the house were observable when the negotiations took place and even if you find that some of these defects existed and were known to defendants at that time when the parties met and made this transaction the evidence forms no basis for apportioning any part or parts of this ■$3,600 or $3,700 to sncb part as might have been .known to the defendants at that time. Now the mat¡ters of cost of rehabilitating and remodeling this I house are matters peculiarly in the hands of plasterers, carpenters and other artisans and without testimony from experts of this type there is not sufficient evidence to submit these.issues to the jury. For these and other reasons you will disregard all claim for damages with respect to the dwelling house.”
The claims of plaintiffs with reference to the appearance of the alleged defects in the construction of the house, and the possible reasons therefor, are suggested in the following excerpts from the testimony of plaintiff Lewis Watson:
“We started to-notice a disturbance in the house, in the walls, on account of the many county trucks traveling by our place on [highway] 577, somewhere in April, 1948. I was living there all the time. We noticed damage done around the summer of 1948 when the county began hauling large quantities of gravel and large trucks passed our house. The county, also in April, 1948, was hauling large quantities in heavy trucks on 577.
“Q. The point is, whenever it was that the county was hauling this gravel in the large trucks along 577, that is the time you connected up the damage to the walls of the house? That is right, is it not?
“A. I noticed cracks in the house along in the spring. The time they really became noticeable was at the time the county was hauling gravel in large trucks over 577 in front of our house. A lot of cracks did not appear because the walls were covered with paper and they broke through the wall paper.
“Q. Now, Mr. Watson,- was it that damage to the house that became part of the claim on which you had your attorney write to the Menominee county road commission to look into a cost of $1,700 to repair the house and see if the road commission or- its insurers would pay that ?
“A. Yes, I am talking about that damage. * * ' *
“Q. When the trucks went by on the highway, what effect did they have on the house ?
A. That is what I did not know and I tried to find out.
“Q. Was there any shaking or anything like that?
“A. I didn’t realize it was the trucks until I was on the back porch; when the trucks went past I felt a great vibration.
“Q. There was some vibration?
“A. Yes. That was the only thing I noticed from the highway traffic, the shaking.”
Mrs. Watson testified that defects in the house were first discovered about the 1st of July, 1948, when cracks in the plaster began to appear. The dwelling was in proximity to a county road designated in the record as Highway 577, over which there was during the spring and summer of 1948 rather extended operations by heavily-loaded trucks. It is a fair conclusion that the vibration resulting from such traffic affected' the dwelling, contributing in part at least to the condition that plaintiffs contended necessitated the making of repairs.
As the trial judge pointed out in his statement to the jury, above quoted, the false representations claimed by plaintiffs with reference to the house related to the situation at the time the property was purchased by them. The testimony concerning defects in the structure in the main had reference to the condition developing later. The court was not in error in. holding that there were.no proofs before the jury on which to base a specific finding as to what fraudulent representations, if any, were made in the course of negotiations between the parties with reference to the then condition of the house, or as to the amount of-damage, if any, sustained by plaintiffs because of false statements with respect thereto. It further appears that plaintiffs knew at the time they made the purchase that the house was not a new structure, and that it had been recently remodeled. The testimony indicates that they made a careful examination of it. They were, of course, charged with notice of its proximity to the highway. On the basis of the record before us the trial court properly declined to submit to the jury plaintiffs’ claim of damages to them resulting from misrepresentations concerning the dwelling.
Plaintiffs’ claim that the verdict was against the great weight of the evidence does not require discussion. It does no.t appear that such claim was raised in the circuit court by motion for a new trial. Boran v. New York Life Ins. Co., 274 Mich 638, 642; Csircsu v. Muir, 303 Mich 323.
We find no reversible error and the judgment entered in the trial court is affirmed. Inasmuch as neither plaintiffs nor defendants have prevailed on .their respective appeals, no costs are allowed.
Dethmers, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
The late Chief Justice North did not sit. | [
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Sharpe, J.
Plaintiffs, D. L. Kelley and Hazel Kelley, filed a bill of complaint for specific performance of an oral contract claimed to have been made by A. Wilder Gleason and Marion Gleason, to devise certain real estate located at Hess lake, Newaygo county, Michigan. In 1938, the title to the real estate involved became vested in A. Wilder Gleason and Marion Gleason. The terms of the alleged agreement, as set forth in plaintiff’s bill of complaint, read as follows:
“That during the spring of 1942, the aforementioned A. Wilder Gleason, who was one of the joint, owners of the property described above, made a verbal agreement with the plaintiffs, whereby said A. Wilder Gleason agreed that, commencing as of the year 1942, the plaintiffs would pay to him and his daughter, Marion Gleason, the decedent, the sum of $150 per year, during the lifetime of the aforementioned A. Wilder Gleason and during the lifetime of Marion Gleason, the above named decedent, for the purchase by the plaintiffs of the premises described above; that it was agreed between the plaintiffs and A. Wilder Gleason and Marion Glea son, the decedent, that they, the Gleasons,-would pay the taxes and insurance on the property during the lifetime of the aforementioned A. Wilder Gleason and Marion Gleason; that it was agreed between the plaintiffs and the Gleasons that if the plaintiffs would pay to them the aforementioned sum of $150 per year that they, the Gleasons, would leave said property to the plaintiffs upon the death of the survivor of A. Wilder Gleason and Marion Gleason, the decedent; that the aforementioned Gleasons agreed to give the plaintiffs immediate possession of the property.
“The aforementioned A. Wilder Gleason died July 23, 1946, and, subsequent thereto, Marion Gleason, the above named decedent, again confirmed to the plaintiffs the terms of the agreement, as set forth above, and specifically reagreed with the plaintiffs that if the plaintiffs would pay to her, Marion Gleason, the sum of $150 per year during the period of her lifetime that she, Marion Gleason, would leave the real estate above described to the plaintiffs upon her death; that the aforementioned Marion Gleason agreed to pay the taxes and insurance on the premises during her lifetime, to all of which the plaintiffs agreed, and, in pursuance of said agreement, the plaintiffs continued to pay the sum of $150 per year to Marion Gleason, the above named decedent, subsequent to A. Wilder Gleason’s death on July 23, 1946, said payments having been made for each year from 1942 to 1950, inclusive, the said payment being due in September of each and every year.”
The record shows that A. Wilder Gleason died July 23,1946, and Marion Gleason died February 26, 1951, leaving a will dated May 24, 1949, devising the above property to J. A. Gleason, Esther Parks,' Roma Duff and Erma Dodge.
The will also provided “and D. L. Kelley shall have first option to purchase same.” The cottage property involved in these proceedings had been owned by the Gleason family and used by them as a summer home for nearly 40 years prior to 1942. About the year of 1937 the Gleasons, purchased a summer cottage on another lake. The condition of the cottage in 1942, when plaintiffs first occupied it in 1942 was dilapidated and untenantable. Plaintiffs have occupied the cottage since 1942. Plaintiffs claim that, relying upon the aforesaid agreement, they made extensive and costly improvements consisting of
“(1) Drilling a new water well and installing an electric pump thereon.
“(2) Installing a new sink in the kitchen of the cottage.
“(3) Rewiring of the cottage for electricity.
“(4) Installing electric fixtures in the cottage.
“(5) Painting the cottage inside and out.
“(6) Sealing the cottage with plywood on the inside, both upstairs and downstairs.
“(7) Installing new screens on the cottage on 2 occasions.
“(8) Repairing the roof.
“(9) Repairing the stairs leading from the cottage to the lake.
“(10) Building a new dock at the lake.
“(11) Installing cement steps at the back of the cottage.
“(12)- Installing new linoleum in the kitchen and porch.
“(13) Installing a trap door at the top of the stairs.
“(14) Laying a cement floor in the garage.
“(15) Screening in the back and front porch.
“(16) Repairing the mantel and fireplace.
“The bill of complaint alleges the cost of these improvements to be $2,000.”
The value of the property in 1942 was approximately $900.
The cause came on for trial, and at its conclusion the trial court found as a fact that the evidence .offered by plaintiffs established the oral agreement as claimed by plaintiffs. In an opinion the court made the following finding of facts:
“The proofs are undisputed that the plaintiffs went into possession of the property in the spring of 1942 after the making of the verbal contract which they rely upon and have since been and are still in possession of the property. They have made many improvements and repairs which the bill alleges amount to $2,000 or thereabouts. The proofs are somewhat uncertain as to the exact amount of the expenditures which have been made by way of permanent repairs or improvements upon the property. These improvements under the undisputed proofs, include the installation of a new well and pump, a new sink, rewiring of the cottage for electricity, electric lights, painting the cottage both inside and out and also a garage, new screens, the construction of new cement steps and a cement floor in the garage, a new dock and a new mantel, porch blinds and sealing up of the cottage on the inside, both upstairs and down.
“I am satisfied after a careful examination of all the evidence in this case that there was a contract entered into verbally, as claimed by the plaintiffs. The most clear explanation of that contract is found in the deposition of the witness, Donna Whitehead King. Under the contract as testified to by her there was an obligation on the part of the plaintiffs to keep the property in repair and in addition thereto to pay the sum of $150 per year. The proofs are undisputed that the Kelleys were never asked to vacate the premises at any time prior to the death of either Mr. Gleason or his daughter, Marion Gleason. In other words, the contract remained in effect at the time of the death of Marion Gleason without having been rescinded or terminated by any affirmative action on the part of either Mr. Gleason or his daughter Marion.
“This leads us to the question as to whether there was anything left undone by way of performance on the part of the plaintiffs which they were required to do but had failed to perform at the time of the death of Marion Gleason to entitle them to the relief prayed for in the bill of complaint. The burden of proof rests upon the plaintiffs to show a performance of their part of the contract. Under the contract as interpreted by this court it was the Kelley’s duty to make both the temporary and permanent repairs and to relieve the Gleasons of the necessity of any expenditures whatsoever on the property. I am inclined to allow the claim made by the defendants of a total of $403.23 for such repairs and improvements. It was also the duty of the Kelleys to lceep up the payments in full of the $150 per year. It is a bit difficult to determine with mathematical accuracy just where the parties stand with relation to these payments. The defendants claim there is an unpaid balance in this connection of $335 and they rely upon income tax reports and some rather poorly kept records by Marion Gleason. The plaintiffs, it is true, are handicapped because they are unable to testify and supply their own records. I am forced under the circumstances in view of the fact that the burden of proof is upon the plaintiff to give credence to and allow the amount of $335 as being unpaid upon these annual payments. This makes a total of $738.23. Obviously, some time has elapsed since these accounts became due and payable and some allowance for interest should be made thereon. It is difficult and almost impossible to make an accurate computation of the same. It is, however, the final finding of this court as the nearest approach which I am able to make, that in addition to the sum of $738.23, the plaintiffs should also pay an additional amount to cover any incidentals, including interest that may have accrued, to make a total of $850.”
Defendants appeal and urge that the evidence failed to establish the existence of a fair and equitable contract with sufficient certainty to be capable of specific performance.
It is an established principle that equity courts have jurisdiction to decree the specific performance of verbal agreements to devise land where the verbal agreement is satisfactorily established. It is competent for a person to make a valid agreement to make a particular disposition of his property by last will and testament; see Carmichael v. Carmichael, 72 Mich 76 (1 LRA 596, 16 Am St Rep 528).
In Moore v. Moore, 231 Mich 209, we said:
“We-hear chancery cases de novo; but we do not, and should not, reverse decrees unless we are persuaded they are not in accordance with the just rights of the parties.”
Donna Whitehead King, an ex-school teacher, and a witness produced in behalf of plaintiffs, testified to a conversation she had with A. Wilder Gleason:
: “A. He told me he and Marion had an agreement with Hazel and Dave Kelley wherein they paid a certain amount of money, a certain amount a year, and that in return the Kelleys were to keep up impiovements and repairs and he and Marion were to pay taxes and insurance, because it was such a small amount; and when he and Marion were finished with the cottage, it would belong to Hazel and David.
“Q. That is what Wilder Gleason said the agreement was, to you?
“A. And Marion was there, yes, sir.”
She also testified to a conversation she had with Marion Gleason subsequent to the death of A. Wilder Gleason:
“Q. Will you state what Marion Gleason told you on that occasion concerning the arrangement that she had made with D. L. Kelley and Hazel Kelley concerning this cottage 1
“A. Yes. She said to me, ‘I don’t know why I don’t sign over the cottage to Dave and Hazel now, I think I just keep it for sentimental reasons;’ but she said, ‘We have an agreement that they pay me so much a year and they make improvements and repairs and I have agreed it will be theirs when I pass on.’ ”
Other testimony of like import was given by W. J. Brown, a close friend of Marion Gleason; Ed Henning, township supervisor, Mr. and Mrs. Lee Robey, merchants in Newaygo since 1927, Mary Jerome, who with her husband owned and operated a drugstore, Dulcie Hammond, an employee of the telephone company, Fannie Johnson, a close friend of Marion Gleason for 25 years, and Mrs. "William Faust, a neighbor of Marion Gleason.
We have examined the record and analyzed the testimony of all witnesses, and conclude that the testimony produced in behalf of plaintiffs sustains the finding of the trial judge that A. Wilder Gleason and Marion Gleason did enter into an oral contract with plaintiffs as alleged in their bill of complaint. Defendants also urge that the undisputed acts of the deceased, Marion Gleason, were so inconsistent with the alleged contract as to constitute convincing proof that the oral contract was never entered into. The only act of Marion Gleason that was inconsistent with the oral contract was the making of her will, wherein she failed to devise the property to plaintiffs. Her reasons for so doing are unexplained in the record, but there is convincing proof that after the death of her father she made the oral agreement as alleged by plaintiffs.
The trial court found as a fact that upon the death of Marion Gleason the plaintiffs owed her estate the sum of $335, so-called rent, and the further sum of $403.23 for repairs and improvements made by de ceased upon the property, and the further sum of $111.77 for interest and incidental repairs.
The record justifies these facts, but they do not detract from the fact that plaintiffs and Marion Gleason did enter into an oral agreement concerning the property. The record satisfies us that the agreement was made, and that it was equitable. This case involves issues of fact. In such cases the conclusion of the trial judge will not be disturbed when fairly supported by evidence. We so find. The decree is af- ^ firmed, with costs to plaintiffs.
Dethmers, Butzel, Carr, Bushnell, Boyles, and Reid, JJ., concurred.
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Sharpe,. J.
Petitioner, Benjamin J. Joslin, seeks a writ of habeas corpus and ancillary certiorari to review his conviction on April 1, 1946, in the circuit court for the county of Schoolcraft, upon plea of guilty to an information charging robbery while armed. Penal code, § 529 (CL 1948, § 750.529 [Stat Ann § 28.797]).
It appears that on March 27, 1946, at about 10:30 p.m., petitioner was arrested in the city of Manistique, Schoolcraft county, on the charge of robbery armed. The following day a formal complaint was made by a member of the State Police. Petitioner was arraigned before the examining magistrate, waived examination, and was bound over for trial in the circuit court of Schoolcraft county, to be held in the city of Manistique, Schoolcraft county, on April 8, 1946.
On the same day the prosecuting attorney of Schoolcraft county filed a petition with the judge of probate of said county, and an order was entered upon said petition, by which the probate court waived jurisdiction in the cause. The petitioner was not present in the probate court at the time of the hearing on the petition of the prosecuting attorney. On April 1, 1946, petitioner wras arraigned in the circuit court for the county of Chippewa, at the city of Sault Ste. Marie, on the information filed against him. Upon being arraigned petitioner pleaded guilty to thé charge of robbery armed, and was sentenced to imprisonment. ' At the time petitioner pleaded guilty he was of the age of 16 years, and was not represented by counsel.
In August, 1950, petitioner filed a petition in the Supreme Court for a writ of habeas corpus and ancillary writ of certiorari.
The petition alleges that at the time of his conviction he was 16 years of age, was not represented by an attorney; that the trial court was without jurisdiction to proceed to a determination of the issues involved; that the circuit judge was prohibited from holding an arraignment in Chippewa county for a crime that may have been committed in School-craft county; that petitioner was not afforded an opportunity for a preliminary examination before the examining magistrate in Schoolcraft county; that he was denied the right to have counsel, and that he was afforded “quick justice” in violation of the rule announced in DeMeerleer v. Michigan, 329 US 663 (67 S Ct 596, 91 L ed 584).
The journal entry of arraignment and sentence shows that the proceedings were held “at a special term of the circuit court in the city of Sault Ste. Marie, Chippewa county, Michigan,” which, together with the counties of Alger', Luce, Schoolcraft and Chippewa, form the 11th judicial circuit of the State of Michigan.
CL 1948, § 691.231 (Stat Ann § 27.561), providing “for the holding of special terms of circuit courts in judicial circuits consisting of 3 or more counties,” reads as follows:
“Special terms of circuit court; business and proceedings ; records, filing.
“Sec. 1. Every term in any county is a special term for every other county in the same circuit. At any term in any county which is by law a special .term for any other county or counties, all business .may be done arising in such other county or counties which might be done at a term in the county where the business arose, except the trial of issues of fact by a jury in cases other than those arising in actions of quo warranto and mandamus, and excepting also the trial of issues of fact in actions made local by law and arising in some county other than the one in which such special term is held. All orders, judgments, findings, proofs, testimony and other proceedings had or made at any such special term, being authenticated by the clerk of such' court, shall be filed and entered of record in the office of the clerk of the circuit court in the county where the action or proceeding shall be pending; and no entries need be made in the office of the clerk of the circuit court of any other county.”
The act in question is not a part of the judicature act, nor does it form a portion of the code of criminal procedure. Its provisions apply, to both civil and ■criminal matters within its scope. In criminal matters it covers arraignments, acceptance of pleas, and sentence upon pleas of guilty, all of which could have occurred in Schoolcraft county. To that extent we hold the act constitutional. ’ There is no question of venue,in the case at bar, as the-warrant was issued by a magistrate having jurisdiction within the county of Schoolcraft, preliminary examination was waived, and petitioner was bound over for trial. We also note, that in his return to the ancillary writ of certiorari the circuit judge certified:
“The respondent in this case was arraigned at a special session of the circuit court for the county of Schoolcraft held at the city of Sault Ste. Marie, Michigan. This special session of court was held at the request, of the defendant. Court was duly opened as a special term of circuit court for the county of Schoolcraft and all journal entries were made and signed as in a regular term of court. The defendant was advised as to all of his rights, declined the appointment of an attorney and a jury trial, freely admitted his guilt after both private and public questioning by me. His rights were safeguarded in every ■way. Before his plea of guilty was accepted, he was advised of the nature and consequences of his plea, examination convinced me that his plea was made freely, voluntarily and understandingly without any undue influence, compulsion or duress and without promise of leniency.”
Under such circumstances we hold that the trial court had jurisdiction to arraign petitioner, accept his plea, and impose sentence.
It also appears that petitioner filed a motion for leave to file a delayed motion to vacate his plea o'f guilty. An answer was filed by the prosecuting attorney of Schoolcraft county denying the allegations contained in said petition. It does not appear that a hearing was had on this petition. The motion was denied. The office of habeas corpus does not function as a writ of error. See In re Offill, 293 Mich 416; and In re Kovacivich, 323 Mich 310.
Petitioner has mistaken his remedy. He should have filed an application for leave to appeal from the trial .court’s denial of his motion to vacate sentence and a new trial. The granting of habeas corpus and ancillary certiorari in the case at bar is dependent upon the lack o.f jurisdiction of the trial court to arraign, accept a plea of guilty, and impose sentence upon petitioner. We hold adversely to petitioner on this issue, and the writ is dismissed.
Dethmers, Butzel, Carr, Bushnell, Boyles, and Reid, JJ., concurred.
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Carr, J.
Plaintiff brought suit in circuit court for an accounting and to obtain further incidental equitable relief based on the claim that defendant had been guilty of fraudulent misrepresentations to her prejudice. The case resulted from business transactions between the parties which began early in the year 1927, or perhaps prior thereto, and continued for several years. Plaintiff was at .the time a widow, and was the owner of real estate and of personal property which she had received from the estate of her husband.
Shortly prior to the associations referred to, defendant counseled plaintiff with reference to an investment from which she realized a profit of approximately $31,000. It is her claim that as a result of this transaction she acquired confidence in defendant’s business ability and in his honesty and integrity. In any event, the parties entered into a series of joint ventures toward which plaintiff contributed money from time to time, such transactions being handled by defendant. It is plaintiff’s' claim that they agreed to share equally in the profits resulting from their operations.
Neither party kept a complete and accurate record of the different ventures that were undertaken. On the trial of the case a ledger was introduced in evidence, in which, as the testimony relating thereto indicates, each party made entries during a period of several months beginning March 11, 1927. Many of such entries, however, are not in satisfactory form, and it may well be doubted if the exhibit can be regarded as an accurate account of the dealings of the parties even during the limited period of time covered by it.
While some of the investments made by defendant apparently proved profitable, it is conceded that in 1929 heavy losses were sustained because of expenditures made and indebtedness incurred in the drilling of oil wells. The ventures in this field were unfortunate, and as a result defendant became insolvent. Apparently motivated by a desire to protect plaintiff as far as possible, defendant and Ms wife, on April 29, 1929, executed a written instrument reciting that defendant had borrowed from and was indebted to the plaintiff for large sums of money, and that it was the desire of the parties to secure the repayment thereof. Reference was made to an assignment attached to the agreement which the parties executed, by the terms of which defendant and his wife undertook to convey to plaintiff defendant’s interest in all oil and gas leases, wells, products, drilling equipment, and all personal property used in connection with his oil and gas drilling operations within the State, which he then owned. The assignment was accepted by the plaintiff presumably for the purpose for which it was' executed, that is, to protect her in the repayment of the money that she had advanced to defendant.
On August 1, 1929, defendant gave plaintiff his note," payable on demand, in the sum of $15,000, and on October 15th following 2 notes, in like form, for $10,000 each were executed and delivered. The parties are not in accord as to the aggregate of the amounts advanced by plaintiff to defendant, the former claiming that during their business associations she gave to defendant approximately $65,000, while defendant insists that at the time of the agreement made on April 29, 1929, the aggregate of advances was $35,000, the total of the 3 notes mentioned. In March, 1932, defendant .executed and delivered to plaintiff 2 notes in the sums of $2,000 and $1,138.42 respectively. The precise nature of this transaction is not explained in the record. The same situation obtains with reference to other dealings between the parties of which, apparently, no record was kept and with reference to which their memories have failed.
During the period beginning August 5, 1929, and ending April 1, 1938, plaintiff received a total of $8,886.37 from the Hart Petroleum Company, in which, defendant was financially interested. It was his claim on the trial of the case in circuit court that such payments were in fact made on his obligation to her to enable her to meet her expenses and those of her son. • No other satisfactory explanation is suggested in the proofs. In 1942, defendant paid plaintiff the further sum of $2,000, the receipt of which is admitted. Subsequent to 1932 defendant’s financial situation improved as a result of certain transactions into which he entered, including investments in oil fields that turned out profitably and a contract with the Michigan highway department.
On the 7th of April, 1944, following negotiations between the parties, defendant executed and delivered to plaintiff the following obligation:
“Hart,. Michigan. April 7, 1944.
“After date I promise to pay to the order of Nina N. Flood $40,000 payable at the rate of $3,000 or more per year at the rate of no percent interest. '
“This note is in full payment of any and all moneys due Nina N. Flood by myself and is to supersede any and all other notes & agreements previously executed.
“The shares of stock now held by Nina N. Floód in Hart Petroleum Company and Oceana Oil Producers,1 Inc. to be held as collateral security until payment of this note, and upon payment of this note said shares are to be returned and issued to myself, my heirs or assigns without consideration by Nina N. Flood, her heirs or assigns.
“(s) C. A. Welsh
C. A. Welsh
“App'roved and accepted: April 7, 1944.
(s) Nina N. Flood
Nina N. Flood”
Payments on the foregoing obligation were made from time to time by defendant, in the total sum.of $35,000. The final checks were delivered on December 15,1949, the record indicating that 3 of them were postdated. However, they were cashed by plaintiff, the last payment being received by her shortly before the present suit was instituted. It is the claim of the defendant that the balance of the obligation was paid by his acquiring from the Plart Petroleum Company an obligation owing to it by plaintiff, in the aggregate amount of $6,034.13, which he applied against the debt owing by him to plaintiff. He claims, in consequence, and the trial court so found, that he had actually paid to her, or for her use and benefit, sums of money, in excess of the obligation of April 7, 1944.
. After listening to the proofs of the parties, the trial judge concluded that as a result of the execution and delivery of the security assignment and the 3 notes totalling $35,000 the relationship between the parties thenceforth became that of debtor and creditor, that the aggregate of the amounts turned over to defendant by plaintiff up to that time did not exceed the amount of the notes, that under the proofs the note given on April 7, 1944, for $40,000 was not less than the amount owing to plaintiff by defendant at that time, that plaintiff was bound by her acceptance of such undertaking, and that defendant’s obligation thereunder had been fully paid and satisfied. In accordance with such findings a decree was entered denying to plaintiff the relief that she sought and dismissing the bill of complaint. Prom such decree plaintiff has appealed, claiming in substance that the evidence in the case does not justify the factual conclusions of the trial judge.
While the record with reference to the original agreement of the parties is not entirely clear, it is a fair inference that they contemplated a series of joint ventures which would .continue as long as the arrangement proved mutually satisfactory. How ever, certain of the transactions into which defendant entered on behalf of himself and plaintiff proved ill-advised from the financial standpoint, as a result of which defendant, as before noted, was insolvent, or practically so, at the time of the execution of the security agreement on April 29, 1929. It is a fair conclusion from all the circumstances of the case, including what was actually done by the parties, that it was then intended to change the status of the plaintiff to that of a creditor. Because of the relationship that had existed between them defendant concluded, as he claimed on the trial, that he should protect her as fully as possible. It is obvious that had there been an accounting and final settlement at that time the money that plaintiff had invested in the various joint ventures undertaken would have been largely, if not entirely, lost to her.
The execution of the notes suggests also that the intention of the parties was to give to plaintiff the status of a creditor, and the total of the obligations was presumptively considered at that time as covering the total of plaintiff’s advances. If, as plaintiff claims, such advances exceeded $35,000, it is reasonable to assume that notes would have been executed for the full amount. It does not appear that there was any difference of opinion between the parties at that time. We are in accord with the conclusion of the trial judge that after the 1929 transactions plaintiff’s status was that of a creditor of the defendant. Dealings between the parties thereafter tend to support such finding.
As before noted, defendant in March, 1932, executed and delivered to plaintiff further notes in the aggregate amount of $3,138.42. He also caused to be paid to her through the Hart Petroleum Company, over a period of approximately 9 years, the sum of $8,886.37. It is significant that plaintiff did not during this period insist that defendant account -to her for any portion of the profits from the various operations in which, to her knowledge, he engaged. Plaintiff’s claim, as set forth in her bill of complaint, that such transactions were in fact joint ventures in the profits of which she was entitled to participate is not tenable. Furthermore, the provisions of the note of April 7, 1944, and the acceptance thereof by plaintiff indicate that the parties considered that the relationship existing between them was that of debtor and creditor.
It is further urged on behalf of appellant that she was induced to accept the note for $40,000 in settlement of defendant’s obligations to her because of fraudulent misrepresentations made to her by defendant at that time. In substance, she claims, 1st, that the property now possessed by defendant was all- acquired as the result of joint ventures in the profits of which she was entitled to share, and that in consequence she now is, as alleged in her bill of complaint, “lawfully entitled to a half interest therein,” and, 2d, that if the relationship admittedly existing between the parties prior to 1929 had been changed to that of debtor and creditor, the amount advanced by her to defendant and remaining unpaid on the 7th of April, 1944, greatly exceeded the amount of the note executed and delivered on that date. She contends that defendant, in order to induce her to settle for less than what was actually owing to her, falsely represented that he was financially unable to pay more than $40,000, and that she accepted the note because of such representation. Defendant denies any fraud or misrepresentations whatever on his part, and asserts that the amount of the advances made by plaintiff totalled approximately $35,000 rather than the $65,000 claimed by her. Based on the testimony in the case, the trial court sustained the claim of the defendant as to the amount of his indebtedness to plaintiff.
The argument of plaintiff that she was entitled to share in the proceeds of transactions in which defendant engaged subsequent to 1929 does not require further consideration. Her claim that she was fraudulently induced to accept by way of settlement a note for an amount less than what was actually due to her as a creditor of the defendant must be determined on the basis of the evidence introduced on the trial. Having asserted fraud the burden rested on her of supporting such claim by clear and satisfactory proof. As said in Zimmerman v. Feldman, 217 Mich 390, 399:
“When one bases his claim for relief upon the ground of fraud it becomes his duty to establish the fraud by evidence that is convincing that the fraud was perpetrated.”
See, also, Achenbach v. Mears, 272 Mich 74; Groth v. Singerman, 328 Mich 615. It must be said in the instant case that plaintiff has failed to sustain the burden of proof resting on her with reference to the issue of fraud. Furthermore, if, as claimed by defendant and found by the trial court, she has received the full amount due and owing to her, she has not, in any event, been damaged. She has, it appears, received from defendant payments approximating $52,000. On the basis of the record that is before us we cannot say that such payments did not fully discharge defendant’s obligation to her.
In effect plaintiff asks that she be decreed not bound by the note of April 7, 1944, that for the reason urged by her such obligation, even though fully paid, be disregarded, and that defendant be found indebted to her in accordance with her claim. In Atlantic Delaine Company v. James, 94 US 207, 214 (24 L ed 112), it was said:
“Canceling an executed contract is an exertion of the most extraordinary power of a court of equity. The power ought not to be exercised except in a clear case, and never for an alleged fraud, unless the fraud be made clearly to appear; never for alleged false representations, unless their falsity is certainly proved, and unless the complainant has been deceived and injured by them.”
The foregoing statement was quoted with approval by this Court in Oliver v. Baldwin, 201 Mich 336, 362.
In the case at bar plaintiff has failed to prove that she has been damaged as the result of misrepresentations or fraud on the part of defendant, if there was such. The trial judge saw and heard the witnesses in the case, including .the parties to the suit, and was in consequence in position to pass on the credibility of their testimony. We should not reverse the decree unless satisfied that it is not in accordance with the just rights of the parties. In re George L. Nadell & Co., Inc., 294 Mich 150; Barar v. Phillips, 328 Mich 267. The record in the case does not require or justify a conclusion that plaintiff has established her right to the equitable relief sought.
The decree is affirmed. Defendant may have costs.
Dethmers, Bittzel, Btjshnell, Sharpe, Boyles, and Reid, JJ., concurred.
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Bushnell, J.
Defendant Walter Johnson was granted leave to appeal from a life sentence imposed after his conviction by a jury of murder in the second degree and from the denial of his delayed motion for a new trial.
On October 13, 1937, while working at the Briggs Manufacturing Company, Johnson injured his finger. Shortly thereafter, at about midnight, there was a change of shift. Johnson, a negrp, who urns the last man to check out, was confronted by a mumbling hostile group of white men standing around the door. The testimony is not too clear as to what happened, except that Johnson and John Ozinkowski, whom he had charged with responsibility for his injury, exchanged words and blows. Another employee, Reed Rogers, intervened and either kicked or struck Johnson, or tried to do so. During the affray, Johnson struck Rogers twice with a knife, and walked away. Neither man had known the other prior to the assault.
Rogers did not realize that he had been seriously wounded. However, he was given first aid, and then taken to the receiving hospital. It was determined that he had a lacerated ear and a wound in his abdomen which required an operation.
The next day Rogers was questioned by an assistant prosecuting attorney in the presence of a stenographer. In response to a question he said:
“So he made one lick .at the white fellow, and I caught his arm, and he didn’t touch him, and he turned around and said, ‘You want some, you son-of-a-bitch,’ and that’s when he stabbed me in the belly, and I didn’t realize I was stabbed for a second until I went to raise up my clothes and there was a clot of blood falling out of them.”
He was then asked if he realized that he was a pretty sick man, whether he made “this statement” in fear of impending death, and whether he would make the same statement if he thought he was going to get well. To all these questions, Rogers answered “Yes.” Johnson was then brought in by a police officer and Rogers identified him as the man who cut him.
Rogers died 3 days later. A Wayne county medical examiner who performed the autopsy stated: “The cause of death was a right upper lobar pneumonia following a stab wound of the abdomen.”
Johnson, on appeal, attacks the admission of the so-called “dying declaration,” and the court’s instructions to the jury. He argues denial of due process, the confusion of the trial judge regarding the verdict and the sentence and failure of proof heyond a reasonable doubt.
It is fundamental that a “dying declaration” is inadmissible in evidence, unless made under a solemn belief of impending death. People v. Simpson, 48 Mich 474, 477, and People v. Bradfield, 300 Mich 303, 307. That the declarer lived for several days after making the statement is not controlling. People v. Denton, 312 Mich 32, 35. Neither is it necessary that such statement be taken immediately after the injury nor that notice of an intention to take the statement be given the accused. People v. Beverly, 108 Mich 509, 511. Before admitting the hearsay statement as a dying declaration, the court must make a preliminary investigation in order to determine whether the person making the statement was in fact in extremis at the time and believed that his death was impending. People v. Fritch, 210 Mich 343, 347. These essential facts may be proved like any other facts in the case and in the light of the existing and surrounding circumstances. People v. Simpson, supra, 477.'
The opinions of this Court vary as to the quantum of proof necessary to establish these preliminary facts. Some seem to indicate that any evidence in this respect is enough. Hurd v. People, 25 Mich 405, 417; People v. Knapp, 26 Mich 112, 117; and People v. Lonsdale, 122 Mich 388. Others say that the court must be “satisfied.” People v. Simpson, supra, 478; People v. Weaver, 108 Mich 649; and People v. Fritch, 210 Mich 343. Others seem to indicate a degree of satisfaction. For example: “To say he did not sense impending death would accord him less than ordinary intelligence.” People v. Arnett, 239 Mich 123, 132, and People v. Gorman, 252 Mich 603, 605. Other courts have accepted 3 widely divergent views. See annotated cases in 96 ALR at page 621.
A well stated rule by the New York court of appeals reads as follows:
“ ‘Dying declarations are dangerous, because made with no fear of prosecution for perjury and without the test of cross-examination, which is the best meth7 od known to bring out the full and exact truth.’ * * * It is for those salutary reasons that extreme caution is required of the trial court before a dying declaration is received in evidence — the fundamental requirement being that ‘preliminary to the admission of such evidence # * * there must be clear proof of the certainty of speedy death, and that the declarant had no hope of recovery.’ ” People v. Bartelini, 285 NY 433 (35 NE2d 29, 167 ALR 139).
The guilt of one charged with a crime must be established beyond a reasonable doubt. People v. Franczyk, 315 Mich 384. Because of the dangerous nature of dying declarations, the publib policy of according an accused every possible safeguard consistent with justice and the constitutional guaranties of a fair trial, those preliminary matters necessary to be determined before the admission of a dying-declaration should be clearly established.
The only evidence here, tending to show that Rogers believed he was confronted by impending death, is the- testimony regarding the serious nature of his wounds and his affirmative answers to 3 leading questions put to him by the assistant prosecutor. There is no other evidence in this record regarding Rogers’ condition at the time his statement was taken. His wound had been operated upon and the' cause of death, 3 days later, is stated to be “pneumonia following a stab wound of the abdomen.” The record is silent as to when the pneumonia developed or when Rogers became in fact in extremis. He did not volunteer any fear of impending death and his answers were apparently prompted by the prosecutor’s questions. It may be that Rogers expected to recover at the time he made the statement.
A critical examination of this phase of the evidence does not clearly show, as a matter of law, that Rogers spoke in extremis and under a sense of impending death. The situation presented here is comparable to that in People v. Christmas, 181 Mich 634, 646, where the Court said:
“It is apparent from the proceedings quoted above that the only evidence the court had of the fact that the declaration was made by Cadarean under circumstances entitling it to admission was such as was afforded by the declaration itself. A careful analysis of this paper in our opinion falls far short of establishing the fact that at the time of Cadarean’s examination he believed himself -to be dying.”
We are constrained to hold that it was prejudicial error to admit in evidence the so-called dying declaration in this case. While there is no doubt that Johnson actually wounded Rogers with a knife, the witnesses were extremely hazy as to what actually happened in the affray. The admission of the statement of Rogers might have easily influenced the jury to find that Johnson was guilty of murder rather than the lesser crime of manslaughter, or that he acted in self-defense. In the light of our conclusion, it is unnecessary, to discuss the other claims of error.
The conviction is set aside, the sentence is vacated, and a new trial is granted to the defendant, who is remanded to the custody of the sheriff of Wayne county for further proceedings not inconsistent with this opinion.
Dethmers, Btjtzel, Carr, Sharpe, Boyles, and Reid, JJ., concurred.
North, C. J., did not participate in this decision. | [
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Dethmers, J.
In the case of Irwin v. D. C. Meese, ante, 344, in which the opinion of this Court has this day been filed, the plaintiffs sued the defendant therein, D. C. Meese, for damage resulting from removal of lateral support from plaintiff’s property. In the instant case, plaintiff’s bill of complaint alleges that the defendant herein, Vernell S. Meese, is the son of D. C. Meese, that the father and son were engaged in a joint adventure in furtherance of which said lateral support was removed by or for them both, and that both are liable for the damage for which plaintiff and his wife sued D. C. Meese only in the above-mentioned suit. Plaintiff’s bill further alleges that Vernell S. Méese and his wife, defendant Alice Meese, purchased a home from D. C. Meese during pendency of the law case and that they are now offering it for sale “for the sole purpose of placing the property in the hands of an innocent third party so that the same will not be subject to attachment for the recovery of damage caused the plaintiff herein by defendants D. C. Meese and Vernell S. Meese, who unlawfully and negligently removed, by excavation, the lateral support” from plaintiff’s property. Plaintiff’s bill therefore prays that defendants Vernell S. Meese and his wife,, Alice Meese, be enjoined and restrained from selling the said home until the further order of the court.
From decree dismissing plaintiff’s bill of complaint he brings this appeal.
The general rule is that, in the absence of a statute so authorizing, a court of equity is without jurisdiction to sequester, seize, enjoin transfer of,-.or otherwise provisionally impound assets for application upon a money demand that is not secured by a lien on such assets and has not been reduced to judgment. For annotation of the subject see 116 ALR 270 et seq.
“Equity is without jurisdiction to restrain, at the instance of the plaintiff in a pending action of tort, the conveyance by the defendant in that action of his property for the alleged purpose of defeating the collection of a possible recovery in the tort action.” Friedling v. Freedman (syllabus), 44 App DC 191.
“Equity will not enjoin a defendant from the free disposal of his property on the application of a creditor who sets up no lien upon or title to the property, and who presents no other equity than his simple fear that when he reduces his claim to. judgment, he will not be able to find property on which to levy it.” Dortic v. Dugas (syllabus), 52 Ga 231.
“An injunction to restrain parties from disposing of goods, .pending a trial at law, so that they may be levied upon by virtue of a judgment, which the complainant hopes to obtain, is improper.” Phelps v. Foster (syllabus), 18 Ill 309.
See, also, Dunham v. Kauffman, 385 Ill 79 (52 NE2d 143, 154 ALR 90).
“Equity court is without jurisdiction to sequester defendant’s assets on complaint of tort claimant, whose claim has - not been reduced to judgment at law, or to enjoin defendant from transferring such assets, in absence of authority of rule of court or statute.” Martin v. James B. Berry Sons’ Co., Inc. (syllabus) (CCA), 83 F2d 857.
Decree dismissing plaintiff’s bill of complaint affirmed, with costs to defendants.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Butzel, and Carr, JJ., concurred. | [
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Sharpe, J.
This is an action originally commenced before a circuit court commissioner of Wayne county to recover possession of certain premises in the city of Dearborn. It appears that plaintiffs executed a lease of business property to the' defendant for a term of 5 years, expiring on December 31,1950. The lease contained the following:
“(3) For the term of 5 years from and after the first day of January, 1946, fully to be completed and ended, the tenant yielding and paying during the continuance of this lease unto the landlord for rent of said premises for said term, the sum of $30,000 in lawful money of the United States, payable in monthly instalments in advance, upon the 1st day of each and every month as follows: — Beginning January 1, 1946, and continuing regularly each month thereafter to December 31, 1951 [1950?] — $500 per month. * * *
“(23) The tenant will pay as liquidated damages, double rent for all the time tenant shall- retain possession of said premises or any part thereof after the termination of the term hereby demised, whether by lapse of time or by election of the landlord and will pay all expenses of the landlord incurred in enforcing any of the provisions thereof. No receipt of mo.ney by the landlord from the tenant after the termination of said term in ány way shall reinstate, continue or extend the term above demised, nor affect any notice given by the landlord to the tenant prior to such receipt of money. All rights and remedies of the landlord in this lease shall be cumulative and none shall be exclusive of any other rights and remedies allowed by law.”
In the early part of December, 1950, plaintiffs’ representative called defendant and informed him that the lease terminated at the end of the year 1950, and possession was demanded as of that date.
Subsequent to the expiration of the lease, the defendant continued to pay and the plaintiff to receive rent at the monthly rental of $500 per month for each of the calendar months: January, February, and March, 1951.
On March 27,1951, a complaint to recover possession was filed by plaintiffs against defendant in the office of a circuit court commissioner, and a summons-issued by virtue of said complaint. Upon trial a, verdict for eviction was rendered. Upon appeal to the circuit court of Wayne county, plaintiffs were granted a judgment for possession of the property.
Defendant appeals and urges that the negotiations for a new lease in December, 1950, and plaintiffs’ acceptance of rent for the months of January, February, and March, 1951, resulted in the creation of a tenancy from month to month, requiring plaintiffs to give defendant 1 month’s notice of termination of lease prior to instituting an action for eviction, and that rent was paid to a date 4 days subsequent to the institution of the present action before the circuit court commissioner.
The trial court in an opinion stated :
“The court in arriving at its opinion has in mincl that the plaintiffs at no time solicted the rent for the 3 months of January, February and March, nor that they signified, other than by cashing the checks, that they were accepting them as rent. . The court is of the opinion that the contractual relationship between the parties is set out in the lease and that the lease should govern as between the parties, it being their express agreement, unless altered or changed subsequently, and the court does not find that there has been any such alteration or change in the provisions of the lease. * * *
“It is the position of the defendant that by the .acceptance of this rent for January, February, and March that he was in legal possession of the property for those months and that the suit started as of March 27,1951, is premature and the cause should be dismissed. However, the court is of the opinion that rent can only exist where the relationship of landlord and tenant exists, and the court believes that both parties were bound by the provisions of the lease, and that the mere payment of the money under the circumstances as related in this case did not create a tenancy relationship between the parties. Therefore, the plaintiffs acted within their rights when they instituted the suit as of March 27, 1951.”
It is a general rule that where a tenant under a valid lease for years holds over, the law implies a contract to renew the tenancy on the same terms for another year.
It is also the rule that a presumption arises from the holding over by the tenant and acceptance of rent by the landlord that the parties intend to renew the tenancy. ' See Faraci v. Fassulo, 212 Mich 216.
In Rice v. Atkinson, Deacon, Elliott Co., 215 Mich 371 (19 A HR 1399), we announced the following rule relative to the rights of landlords.:
“Where there is no express agreement for a renewal of an annual lease and the tenant remains in possession after the term has expired, the landlord may-treat him as a trespasser or may acquiesce in his continuing in possession, and in the latter event the law presumes that the tenant holds for another year subject to the terms of the previous lease.”
Under- such circumstances notice to quit was not necessary. See Teft v. Hinchman, 76 Mich 672, and Smith v. Smith, 144 Mich 139.
In the case at bar the parties, by written agreement, have defined the relationship after the lease by providing that no receipt for money by the landlord from the tenant after the termination of said term “in any way shall reinstate, continue, or extend the term above demised.” In the case at bar, at the expiration of the 5-year lease, the parties had negotiations for a new leasé, but no agreement was arrived at. Meanwhile defendant continued to pay what he termed rent for the premises, and plaintiffs accepted it without acknowledging that it was received as rent.
A similar situation existed in Detroit Free Press v. Miller, 217 Mich 118. We there said:
“It was the claim of the defendant in the court below and it is his claim here that, because he occupied the offices after the 3-year lease expired and paid to the plaintiff the monthly rent, he thereby became a tenant from year to year, which tenancy could not be terminated without a year’s notice, citing CL 1915, § 11812, and the case of Faraci v. Fassulo, 212 Mich 216.”
In the case at bar no facts are presented that in any way modify the agreement of the parties. Under the lease the payment and acceptance of so-called rent did not. constitute the relationship • of landlord and tenant. The judgment is affirmed, with costs to plaintiff.
Dethmers, Butzel, Care, Bushnell, Boyles, and Reid, JJ., concurred.
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Bushnell, J.
Yiolet Laude, a resident of Avon township, Oakland county, Michigan, died August 25, 1948, leaving as survivors her daughters, Lolo, Grace and Edna, her sons, George and John, and her husband, Charles Laude, plaintiff herein. Her estate consisted of household furnishings and fixtures, a house and several lots in Avon township.
In her last will and testament, which was admitted to probate on November 12, 1948, she directed that her estate be equally divided between her 3 daughters and her husband. Defendant Lolo Cossins, a daughter, was appointed executrix. No claims were presented against the estate.
Laude, on August 9, 1951, sought a decree assigning all of the property to him, on the theory that it was accumulated out of his earnings and with the understanding and promise that title thereto would be held jointly. He charged that he relied on Violet’s promises, expended about $9,000, and was thus defrauded because Violet took title in her name only. He asked that the court restrain Lolo from selling or assigning the property and closing: the estate. A motion to dismiss his action, on the ground that the circuit court was without jurisdiction, was granted September 26, 1951, in an order which stated that plaintiff’s bill was “dismissed with prejudice.”
On September 20, 1951, Laude began a second action in equity, alleging that in 1937 he and Violet had agreed to purchase property as tenants by the entireties, and that he provided all the funds. In his second bill of complaint Laude asked that the court impose a constructive trust upon the property of which he was defrauded by Violet’s failure to place the title thereto in their joint names. He sought a decree declaring him to be the true and equitable owner of the assets of Violet’s estate.
Two motions to dismiss Laude’s. second bill of complaint were filed; one by Lolo in her capacity as administratrix, and the other by Lolo, Grace and Edna, individually as devisees and legatees under the will. The court stated that it had no jurisdic tion. An order was entered dismissing Lande’s bill of complaint “with prejudice.”
Defendants argue that a court of chancery is without power to set aside the provisions of a will which has been admitted to probate. Laude, however, is not attacking the validity of the will or questioning the order of the probate court. He claims the right to equitable relief on the ground that the assets of Violet’s estate are his property and not that of testatrix. The question, therefore, is whether the trial court has jurisdiction to determine Laude’s adverse claim of ownership of property included in the assets of Violet’s estate.
The probate court is without jurisdiction to determine questions of title. Mitchell v. Bay Probate Judge, 155 Mich 550, 554; Rudolphi v. Gilbert, 209 Mich 141; and In re Estate of Fraser, 288 Mich 392. The proper forum in which to determine questions of title is the circuit court. Plaintiff’s claim is equitable in nature and is based upon allegations of fraud. See, in this connection, Fred Macey Co. v. Macey, 143 Mich 138 (5 LRA NS 1036), and Lewis J. Belznich Enterprises v. Harry I. Garson Productions, 202 Mich 111.
The order dismissing plaintiff’s second bill was not based upon any res judicata theory, hut rather upon a determination of lack of jurisdiction with the added suggestion that the procurement of process and injunction in the second action was a gross abuse of process. The first bill did not clearly state grounds for equitable relief. The second hill of complaint seeks to impose a constructive trust on the property because of the fraudulent acts of and breach of promise by the testatrix.
“Judgment upon a demurrer going to form of the action, defect of pleading or to' jurisdiction- of the court will hot preclude future litigation on the merits of the controversy in a court of competent jurisdiction upon proper pleadings.” Palchi v. Robbins (syllabus), 272 Mich 411.
The words “with prejudice” added nothing to the conclusiveness. of the first judgment. That judgment is not a bar to a different action.
Defendants also claim that plaintiff has not set up proper reasons for his appeal. Plaintiff’s statement of reasons and grounds of appeal reasonably informed the court and defendants as to the errors relied upon. It sufficiently complied with the requirements of Court Rule No 66 (1945).
Plaintiff has been denied his day in court and is entitled thereto.
The order dismissing his bill of complaint is vacated and the cause is remanded for further proceedings not inconsistent with this opinion. Costs to appellant.
Dethmers, Btjtzel, Carr, Sharpe, Boyles, and Reid, JJ., concurred.
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Wiest, J.
Upon trial by jury in the Grand Traverse circuit court defendant was convicted of the crime of uttering and publishing as true a false and forged check with intent to defraud and was sentenced. He reviews by appeal, claiming the verdict was against the great weight of the evidence ; there was no evidence that he abetted or participated in the crime and there was error in admitting testimony of similar acts in other counties immediately preceding the act in question and that such might be considered as bearing upon defendant’s intent. The principal witness against defendant was Louis Weinstein, who pleaded guilty to passing the check, and he testified in behalf of the people that he had blank checks printed in Ohio, purporting to be checks of the Gillette Safety Razor Company of Boston, Massachusetts, and gave, them to defendant who lived in Detroit. There a fictitious payee, G. H. Harris, was typewritten therein by defendant and Weinstein had possession thereof when he and defendant started north toward Traverse City in defendant’s automobile. On the way there Weinstein, at several towns, indorsed and passed the forged checks in making purchases which he placed in defendant’s waiting car. When they reached Traverse City Weinstein went into a drug store, while defendant waited in his automobile outside, and there Weinstein indorsed one of the forged checks in the name of the fictitious paye'e and used the same in purchasing merchandise, which he took out of the store and placed in defendant’s automobile. He also testified that when they returned to Detroit he divided with defendant the proceeds acquired through passing of the forged checks.
Defendant claims that the trip north was to make purchases of merchandise offered for sale. If the jury believed the testimony of Weinstein defendant was an active aider and abettor in the uttering of the forged checks. But, it is urged that on account of the previous prison record of Weinstein he ought not to have been believed. This was for consideration of the jury and we may not use the argument on this review. When evidence was offered of like acts, of uttering the forged checks in other towns on the way to Traverse City, objection was made and the court ruled and instructed the jury that such other acts outside of the county of Grand Traverse could only be considered so far as the same bore . upon the intent of defendant. If defendant aided and abetted the passing of forged checks by Weinstein, then he could be convicted as a principal, and there was no reversible error in the mentioned rul ing and instruction by tbe court. 3 Comp. Laws 1929, § 17253 (Stat. Ann. § 28.979). Defendant’s intent was involved and in such case it was proper to introduce like acts on the trip north to show his motive, intent, absence of mistake, or accident on his part. 3 Comp. Laws 1929, § 17320 (Stat. Ann. §28.1050). We cannot find the evidence failed to establish defendant’s guilt beyond a reasonable doubt.
We find no reversible error and the conviction is affirmed.
North, C. J., and Starr, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
See Aet No. 328, § 249, Pub. Acts 1931 (Comp. Laws Supp. 1940, §17115-249, Stat. Ann. § 28.446).—Reporter. | [
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Williams, J.
This case, Supreme Court No. 53,217, arises from an original complaint for mandamus and damages filed in the Court of Appeals. The complaint alleged the conflict of interests which was the subject matter of In re Schlossberg v State Bar Grievance Board, 388 Mich 389 (Docket No. 53,295 decided July 26, 1972), and in addition alleged a violation of § 35 of the Michigan Employment Security Act (MESA); MCLA 421.35; MSA 17.537, relating to devotion of "full time to the functions of the board.”
This case was consolidated for argument with In re Schlossberg v State Bar Grievance Board. In Schlossberg we reversed the State Bar Grievance Board dismissal of a request for investigation and remanded for a hearing on the question of whether appellee was chargeable with a breach of professional standards of conduct in accordance with principles governing conflict of interest as stated in the opinion.
This appeal questions the propriety of the dismissal by the Court of Appeals "for lack of merit in the grounds presented” of the complaint for mandamus and damages and the dismissal by the Court of Appeals for lack of jurisdiction of the motion for superintending control.
We shall deal first with the issues relating to the charge of conflict of interest.
We need not decide on appeal whether the Court of Appeals’ dismissal of relief by mandamus for lack of jurisdiction was proper. Defendant and appellee is no longer a member of the MESC Appeal Board and so the relief requested concerning an order of removal, or, in the alternative, disqualification from future cases is moot. The prayer for relief and motion for superintending control to this Court on these grounds are denied as moot.
Decision as to whether the Court of Appeals should have assumed jurisdiction to issue an order of superintending control requiring the MESC Appeal Board to notify all claimants adversely affected where an alleged disqualification of O’Rourke existed would be premature. First, such an order would presently be prejudicial to the investigation pending before the State Bar Grievance Board as the result of the Schlossberg case. Second, if the determination of the State Bar Grievance Board case does not result in such notification, then refusal of the MESC Appeal Board to respond to appropriate requests should precede any legal action for judicial relief.
In addition, we do not at this time determine whether the plaintiffs in the complaint before us have standing to request such action. Consequently the existing request for superintending control in this Court to require the MESC Appeal Board notification as aforementioned is dismissed without prejudice, and the Court of Appeals decision hereon is vacated.
We come now to the question of the propriety of the dismissal by the Court of Appeals "for lack of merit in the grounds presented” of an unanswered and undenied complaint for mandamus and damages.
We deal here with the claimed basis for the request for mandamus and damages that §35 of the MESA creates a clear statutory duty ministerial in nature and that defendant O’Rourke, as a state officer, may be compelled by mandamus in the Court of Appeals to comply with the statute. The complaint is based upon the following portion of § 35 of the MESA; MCLA 421.35; MSA 17.537:
"Each member of the board shall devote full time to the functions of the board. Each member shall, therefore, personally perform the duties of his office during the hours generally worked by other officers and employees of the executive department of the state. * * * Such salaries and expenses shall be paid from the administration fund.” (Emphasis added.)
In support of the complaint for mandamus on this issue the plaintiff alleged, inter alia, as follows:
"8. Defendant O’Rourke is also actively engaged in the private practice of law as a general partner in the law firm and Michigan Co-Partnership of Elsman, Young & O’Rourke.
"9. Defendant O’Rourke, as Appeal Board Chairman, does not personally perform the duties of his office during the hours generally worked by other officers and employees of the executive department of the State. More particularly, upon information and belief, said defendant has engaged and does engage in personal business, including the practice of law, at various times during week days between the hours of 9:00 a.m. through 5:00 p.m.” (Emphasis added.)
"21.. Upon information and the belief, defendant Peter E. O’Rourke performs his duty on said Appeal Board during not more than sixty (60%) percent of the hours generally worked by officers and employees of the executive department of the State.”
The relief requested by plaintiffs respecting these alleged violations of statutory duties was the defendant O’Rourke be ordered to:
1) Cease engaging in private practice or other private business while a member of the Appeal Board;
2) Devote full time to the functions of the Appeal Board;
3) Personally perform the duties of the office during the hours generally worked by other officers and employees of the executive department of the State; and
4) Pursuant to § 4431 RJA; MCLA 600.4431; MSA 27A.4431 which provides that "[d]amages and costs may be awarded in an action for mandamus,” the plaintiffs requested as damages, inter alia, that defendant O’Rourke return 40% of his salary to the Employment Security Administration fund from which it was paid. The interest of plaintiff U.A.W. in regard to this is that the U.A.W. is an "employer” and an "employing unit” within the meaning of § 13 of the MESA; MCLA 421.13; MSA 17.513 and contributes to the administration funds from which the salaries are paid.
To all of these allegations pleaded in the complaint, Defendant O’Rourke made no direct answer by responsive pleading as required by OCR 1963, 816.2(2)(b)..
The fact that defendant O’Rourke is no longer a member of the Michigan Employment Security Commission Appeal Board does not render moot the requested relief concerning the refund of some portion of his salary to the administration fund if plaintiffs can make a case for a violation of the statute and if a court determines that plaintiffs are entitled to damages under the law or facts.
On September 1, 1970, the Court of Appeals dismissed the complaint for mandamus "for lack of merit” with no supporting reasons. Application for rehearing was denied by the Court of Appeals in an order of January 12, 1971, in which the Court said that mandamus in the Court of Appeals was the proper remedy for adjudicating the claimed violation of § 35 of the MESA but that all remedy was denied "for lack of merit in the grounds presented.”
On appeal here defendant O’Rourke attempted to argue facts before this Court to show how much he actually worked despite the fact that the allegations in the complaint filed in the Court of Appeals were never denied. We agree with plaintiffs and appellants that the dismissal by the Court of Appeals must be viewed as a dismissal of the claim on the pleadings. The allegations in the amended complaint and affidavits must be viewed in the light most favorable to plaintiffs for purposes of reviewing the propriety of the dismissal by the Court of Appeals for "lack of merit in the grounds presented.”
Thus viewing the complaint, we find ourselves in agreement with the Attorney General who states in brief amicus curiae as follows:
"Having recognized that it has jurisdiction to hear and determine this cause, it is difficult to comprehend the basis upon which the court of appeals decided that there was 'lack of merit in the grounds presented’ * * * »
It may be that the Court of Appeals had in mind some interpretation of the statute that would preclude any and all forms of relief even upon a showing that defendant O’Rourke only worked 60% of the time generally worked by other officers and employees of the executive department of the state.
But even if this were so, plaintiff U.A.W. alleges specifically in count 9 of the amended complaint a violation of the statute in the words of the statute as follows:
"9. Defendant O’Rourke, as Appeal Board Chairman, does not personally perform the duties of his office during the hours generally worked by other officers and employees of the executive department of the State.”
The Court of Appeals did not cite this paragraph for any procedural defect and the allegation was never answered or denied by defendant O’Rourke. If the Court of Appeals holds there is jurisdiction to grant relief for a violation of this statute and, as quoted, plaintiff specifically alleged by complaint the exact violation of the statute for which there was held to be jurisdiction to grant relief, on what theory is there a "lack of merit” in the grounds presented as quoted above?
It may also be that the Court of Appeals accepted defendant’s argument that the Governor must have found that defendant was complying with the statute since defendant was not dismissed and that the Court is then precluded from reviewing this determination because of the doctrine of separation of powers. If that were the basis of the Court’s statement that the complaint lacked merit, it misses the point. The issue before the Governor, as pointed out in the memorandum from his legal adviser, is his power of removal under Const 1963, art 5, § 10 for " * * * gross neglect of duty or for corrupt conduct in office * * * ” (emphasis added). The question before the Court of Appeals in the mandamus action, however, is not whether defendant O’Rourke should be removed for "gross neglect” or for "corrupt conduct” but rather whether defendant O’Rourke should be ordered to comply with a statute creating a duty to perform services full time during certain hours; and whether damages in the form of a salary refund to the administration fund would be appropriate if there were a violation of the duties expressed in the statute. A determination by the Court on this issue would not constitute judicial review of any refusal of the Governor to remove O’Rourke even if such review were precluded by the doctrine of separation of powers in this case.
There may have been some other reason for the Court of Appeals’ determination that the complaint lacked merit in the grounds presented, but this Court will not render a decision based on speculation as to the grounds for their decision:
If plaintiffs would not be entitled to any form of relief under the statute regardless of the facts produced in support of the allegations in the complaint, then the Court of Appeals must explain what construction of the statute precludes any relief. Without such an explanation there is no adequate basis for judicial review of the dismissal of this complaint on the pleadings. If, on the other hand, the complaint is defective under some procedural theory, then the action should not have been dismissed "for lack of merit” since plaintiffs, before dismissal, may amend their complaint to plead the case properly if possible.
The decision of the Court of Appeals is vacated and, in accordance with the alternative relief requested by defendant O’Rourke, the cause is re manded to the Court of Appeals for proceedings not inconsistent with this opinion.
In In re Schlossberg v State Bar Grievance Board we ordered that costs in that case would abide the final results in that case which is still pending. Costs of the appeal in this case to appellants.
T. M. Kavanagh, C. J., and Adams, T. G. Kavanagh, and Swainson, JJ., concurred with Williams, J.
Prayer (e), p 55 appellants’ brief.
Prayers (a) and (b), p 54 appellants’ brief.
Prayer (c), p 54 appellants’ brief.
Prayer (d), p 54 appellants’ brief.
Prayer, p 20 appellee’s brief. | [
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Williams, J.
The question here is one of statutory construction. Did the Legislature intend to authorize home-rule cities to enact zoning ordinances both by legislative action and initiative, or just by legislation?
We adopt the succinct statement of facts by the Court of Appeals:
"Plaintiffs are the owners of approximately 15 acres of land in the City of Livonia. In March 1969, the property was zoned to allow multiple dwellings or apartment houses. In March 1969, petitions were filed with the city clerk, pursuant to the charter of the City of Livonia, to amend the zoning ordinance of the City of Livonia. The initiatory petitions were found to be in proper form and to meet the requirements of the city charter of the defendant city, and subsequently, on September 29, 1969, at a special election the zoning amendment was approved. The effect of the zoning ordinance was to prohibit the multiple dwellings on the plaintiffs’ property. Thereafter, plaintiffs commenced suit in the Wayne County Circuit Court requesting injunctive relief, mandamus, and declaratory and summary judgments. The trial judge found that the case involved purely a legal issue, with no facts being in dispute, and granted a declaratory judgment to the plaintiffs declaring the ordinance adopted by the initiatory petitions to be invalid. The trial court determined the instant case to be controlled by the decision of this Court in Elliott v City of Clawson, 21 Mich App 363 (1970).” 38 Mich App 626, 627-628 (1972).
The Court of Appeals affirmed also believing that the instant case was controlled by Elliott.
There are two statutes under scrutiny here. First the home-rule act, MCLA 117.4i(3)(6); MSA 5.2082(3X6) which provides in part:
"Sec. 4-i. Each city may in its charter provide:
"(3) Zoning, annexation. For the establishment of districts or zones within which the use of land and structures, the height, the area, the size and location of buildings and required open spaces for light and ventilation of such buildings and the density of population may be regulated by ordinance. Such regulations in 1 or more districts may differ from those in other districts. Whenever any city is incorporated, or whenever territory is annexed to any city incorporated pursuant to the provisions of this act, the then existing zoning regulations for the territory within the newly incorporated city or for the annexed territory, shall remain in full force and effect for a period of 2 years after incorpo ration or annexation, unless the legislative body of the city shall lawfully adopt other zoning regulations or ordinances.
"(6) Initiative, referendum, recall. For the initiative and referendum on all matters within the scope of its powers and for the recall of all of its officials.”
Second, the zoning-enabling act, MCLA 125.584; MSA 5.2934 provides:
"Sec. 4. The legislative body of any city or village may provide by ordinance for the manner in which such regulations and boundaries of districts or zones shall be determined and enforced, or from time to time amended, supplemented or changed: Provided, however, That a public hearing shall be held before any such regulations shall become effective: And provided further, That not less than 15 days’ notice of the time and place of such public hearing shall first be published in an official papér or a paper of general circulation in such city or village, and that not less than 15 days’ notice of the time and place of such public hearing shall first be given by registered United States mail to each public utility company and to each railroad company owning or operating any public utility or railroad within the districts or zones affected, and a hearing be granted any person interested at the time and place specified. In cities having a population of 25,000 or more according to the last federal or state census, the legislative body may appoint a commission to recommend in the first instance the boundaries of districts and appropriate regulations to be enforced therein. Such commission shall thereupon make a tentative report and hold public hearings thereon at such times and places as the legislative body shall require before submitting its final report. In cities having a population of 25,000 or more according to the last federal or state census, said legislative body shall not in the first instance determine the boundaries of districts nor impose regulations until after the final report of a commission so appointed. In cities having a population of 25,000 or more according to the last federal or state census, the hearing as above provided before the legislative body shall not take place until such final report of such commission has been received, nor shall the ordinance or maps be amended after they are adopted in the first instance until the proposed amendment has been submitted to such commission and it has made report thereon. In either case the legislative body may adopt such ordinance and maps with or without amendments, or refer same again to the commission for a further report. Where a city has a city plan commission or corresponding commission the legislative body may appoint such commission to perform the duties above specified. After the ordinance and maps have in the first instance been approved by the legislative body of a city or village, amendments or supplements thereto may be made from time to time as above provided, but in case a protest against a proposed amendment, supplement or change be presented, duly signed by the owners of 20 per centum or more of the frontage proposed to be altered, or by the owners of 20 per centum or more of the frontage immediately in the rear thereof, or by the owners of 20 per centum of the frontage directly opposite the frontage proposed to be altered, such amendment.shall not be passed except by the 3/4 vote of such legislative body.”
The question before us is whether these acts are mutually compatible or incompatible, and, if incompatible, which act controls. Resort to legislative history is illuminating.
In 1919, the City of Detroit enacted a zoning ordinance. The city’s power to enact a zoning ordinance was challenged in Clements v McCabe, 210 Mich 207, 216 (1920). The Court held that:
"No such inherent zoning power exists or can be implied in this State from the mere incorporation of a city as such.”
The Court went on to find that the power to zone must be expressly authorized by state enabling legislation.
In response to that ruling, the Michigan Legislature enacted two acts — Acts 207 and 348 of Public Acts of 1921, approved respectively on May 17 and May 18, 1921. Act 207, the zoning enabling act, established the statutory zoning scheme in detail, including not only the municipal powers and limitations, but also the procedures to be followed. Act 348 amended § 4 of the home-rule act with subsection (x) to authorize cities to include the power to zone in their charters.
The power of cities to provide for initiative on all matters within the scope of their powers was also a creature of 1921 PA 348 § 4(m). Prior to this act, cities had only referendum powers.
Thus, the home-rule act reference to zoning was enacted as a companion act to the zoning-enabling act to correct the deficiencies pointed out in Clements. The same home-rule act amendment authorizing zoning also authorized the initiative.
The construction urged upon this Court by the defendant city is that the home-rule act itself vests authority in the city to zone. Further, that the method of enactment of a zoning ordinance is not exclusively controlled by the procedures set forth in the zoning-enabling act. Thus, since zoning is within the scope of its power, the defendant city may use initiative as a procedural method to effectuate the grant of zoning authority.
In support of this position defendant relies upon McKinley v City of Fraser, 366 Mich 104, 105-106 (1962), particularly:
"In our view the quoted general rule cannot be applied to the case before us since the present language of section 4i of the home-rule act, likewise that of the applicable charter provision of the defendant city, unequivocally and unitedly authorize initiation of any kind or type of ordinance.” (Emphasis original opinion.)
The sweep of this language is unlimited standing by itself. Our opinion in McKinley makes clear that is exactly what was meant. However, we there expressed one caveat when we said:
"If the electors of Fraser wish to modify or change the broad power of initiative so granted, they may proceed to amend or repeal as indicated. They voted the power into their municipal law. They alone — unless the legislature in the meantime ordains otherwise — may change or modify such power.” 366 Mich 104, 106-107. (Emphasis added.)
The home-rule act itself is to the same effect. MCLA 117.36; MSA 5.2116. The statute provides:
"Sec. 36. No provision of any city charter shall conflict with or contravene the provisions of any general law of the state.”
In Amberg v Welsh, 325 Mich 285 (1949), this Court ruled that § 4i(6) powers of the home-rule act must be subordinated to the general laws of the state. That case dealt with the recall portion of § 4i(6). The question was whether the recall provisions of the charter as authorized by § 4i(6) or those of the state law should prevail. The Court stated:
"The provisions of PA 1913, No 325, in many respects differ from the recall provisions in the Grand Rapids charter. We have repeatedly held that the provisions of a general statute are paramount, notwithstanding that the provisions of a home-rule city charter on the same subject may differ. 'Where a city charter is silent upon a subject or different from the pertinent statutory provisions, the statute controls and must be read into the charter.’ City of Hazel Park v Municipal Finance Comm. (syllabus), 317 Mich 582 [1947], and the many cases cited therein.” 325 Mich 285, 293.
As a consequence the home-rule act provision for zoning must be read in conjunction with the zoning-enabling act. When so read, the question is whether the exercise of the charter-authorized right to initiative is compatible with the city authority to zone. The answer is it is not, particularly where the city has set up a zoning authority.
The initiative makes no provision that (1) a tentative report on the proposed ordinance be made by the Livonia Planning Commission; (2) a public hearing be held by the Livonia Planning Commission; (3) a final report be made by the Livonia Planning Commission; (4) publication of notice of hearing be made; (5) a public hearing be held by the Livonia City Council; and (6) affected property owners have the opportunity to file a written objection to the proposed zoning change and to force a 3/4 vote of the Livonia City Council.
As was stated by the California Supreme Court in Hurst v City of Burlingame, 207 Cal 134, 141; 277 P 308, 311 (1929):
"The initiative law and the zoning law are hopelessly inconsistent and in conflict as to the manner of the preparation and adoption of a zoning ordinance.”
And in Laguna Beach Taxpayers’ Assn v City Council of Laguna Beach, 187 Cal App 2d 412, 415; 9 Cal Rptr 775, 777 (1960), the Court, after setting forth the rule of Hurst stated:
"The reason for this rule is that the statute which confers upon the legislative body of the city the power to enact zoning laws prescribes the method by which they are to be adopted or amended: that the method of enactment is the measure of the power to enact: and that the initiative process as used in this case does not conform to this method.”
Indeed, this Court has consistently held that the procedures outlined in the zoning-enabling act must be strictly adhered to. Krajenke Buick Sales v Hamtramck City Engineer, 322 Mich 250 (1948); Stevens v Madison Heights, 358 Mich 90 (1959). As we stated in Stevens:
"The statute spells out a certain procedure that must be followed to enact a zoning ordinance; this procedure admittedly was not followed by the city in this case; and therefore the ordinance in question is invalid.” 358 Mich 90, 93.
Therefore, the amendment to the ordinance, having been enacted by a procedure different from and contrary to the procedure required by the zoning-enabling act, is invalid.
The decision of the Court of Appeals is affirmed. A public question being involved, no costs will be allowed.
T. M. Kavanagh, C. J., and Adams, T. E. Brennan, T. G. Kavanagh, and Swainson, JJ., concurred with Williams, J.
Black, J., did not sit in this case.
The current zoning-enabling act procedures are identical to those set forth in 1921 PA 207 but for the requirement that notice must also be given to public utilities and railroads operating within the affected districts which was added by 1941 PA 306.
1921 PA 348 § 4(x) reads as follows:
"(x) For the establishment of districts or zones within which the use of land and structures, the height, the area, the size and location of buildings and required open spaces for light and ventilation of such buildings and the density of population may be regulated by ordinance: Provided, That such regulations in one or more districts may differ from those in other districts.”
1909 PA 279 § 4(m) provided:
"Sec. 4. Each city may in its charter provide:
"(m) For the referendum on all matters within the scope of its powers”.
1929 PA 126 shifted the position of the initiative and referendum provision to § 4i(5). In 1939 PA 175, the Legislature renumbered this section to § 6, thus becoming its present citation § 4i(6).
There is no provision in the Constitution of 1963 reserving to the people the power of initiative and referendum with respect to local ordinances.
We emphasize that the holding of this case is limited to the use of the initiative as a means to amend or enact zoning laws. The issue of whether a referendatory procedure is proper is not before us.
The defendant city relies heavily on the recent case of Fort Collins v Dooney, — Colo —; 496 P2d 316 (1972) in which the Colorado Supreme Court upheld the applicability of charter referendum provisions of a home-rule city to amendatory zoning ordinances. The case is inapplicable to the case at bar since Dooney is a referendum case and sheds no light on the validity of an initiatory procedure for amending a zoning law.
Indeed, initiative and referendum have quite different consequences when considered in the context of zoning laws. As was stated in Johnston v City of Claremont, 49 Cal 2d 826, 836-837; 323 P2d 71, 77 (1958):
"[N]o such objection exists with respect to subjecting a zoning ordinance to the referendum, since the procedural steps prescribed by the Legislature in such a case must be taken before the adoption of the ordinance. On the other hand, the objection would apply where a zoning ordinance was adopted by a general law city by means of an initiative measure without compliance with the general law relating to zoning.” (Emphasis in original opinion.)
For other cases dealing with the question of the validity of the initiative as a tool to amend or enact zoning, ordinances see Elliott v City of Clawson, 21 Mich App 363, 367-374 (1970). See also Smith v Livingston Twp, 106 NJ Super 444; 256 A2d 85 (1969) aff'd 54 NJ 525; 257 A2d 698 (1969). By contrast as to how a referendum is handled see State ex rel Wahlmann v Reim, 445 SW2d 336, 338-339 (Mo, 1969). | [
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Butzel, J.
Plaintiff, Hershel Radio Company, a partnership whose 2 members are residents of the State of Michigan, brought suit against defendants Pennsylvania Railroad Company, a Pennsylvania corporation, and Southern Pacific Railroad Company, a Delaware corporation. Plaintiff claims damage to its goods that, were shipped from Stockyards, California, to Detroit, Michigan, and for which the defendant Southern Pacific Company issued its bill of lading to plaintiff on August 7,1948, at Stockyards, California. The shipment in question was routed over the lines of the Southern Pacific Company by reason of the previous solicitation of business by agents of the Southern Pacific in Detroit at its Detroit offices. These agents made arrangements for the delivery of the goods to Detroit over a connecting carrier, the Pennsylvania Railroad Company.
Defendant Pennsylvania Railroad entered a general appearance, but the Southern Pacific Company, hereinafter referred to as defendant, appeared specially and moved to quash service of summons and to dismiss the action as to it. Defendant made its motion on the grounds that it is a foreign corporation and that it was not, at the time of. service of the summons or at the time of the transaction, engaged in business in the State of Michigan, and that to subject that company to suits in the State of Michigan without its consent would impose an undue burden on interstate commerce in violation of the commerce clause of the Federal Constitution. The trial court granted the motion, and plaintiff appeals.
Southern Pacific sets forth the facts in regard to its activities in Michigan as follows: It maintains an office in Detroit employing 10 men for the purpose of soliciting business, both passenger and freight, from those whose transportation needs could be served by it. It acts as a bureau of information regarding routings, rates and other pertinent facts. Its office address and telephone number in Detroit are listed under the company name. Its Detroit agents have no authority to adjust claims or to issue regular bills of lading. The company operates and owns no track or railroad equipment within the State of Michigan, the most eastern terminus of its operations being New Orleans, Louisiana. No tickets are sold in Michigan, and no other contracts entered into; there is no employee in the State who is authorized to accept service of summons. The Detroit office may also issue exchange bills of lading in place of the original ones. These are either to provide for export shipments and involve charges to be paid for the overseas transportation, or for a diverting of the shipment to a different destination or consignee at the request of the shipper. Any moneys paid for sueli exchange bills of lading are deposited to the credit of the Southern Pacific Company in a bank, but no person in Michigan is authorized to draw upon such bank account, the funds being transferred periodically to the office of the Southern Pacific in California. Plaintiff, on these facts, contends that such activity within the State constitutes presence within the State and doing business within the State, and thus makes the Southern Pacific amenable to process in an action in personam by a citizen of the State, where the cause of the action arises from the very activity of such foreign corporation within the jurisdiction.
The trial court found that the issue herein was determined by Smart v. Florida East Coast Railway Company, 240 Mich 542. The facts therein are quite similar to those in the instant case. Southern Railway Company and B & O Railroad Company brought motions to set aside service of process in action for damages done to plaintiff’s household goods in transporting them from Florida to Detroit over the lines of defendants. Both were foreign corporations, not operating in Michigan. Both maintained offices in Detroit for the solicitation of business, employing clerks, with offices and telephones listed under their names. The B & O sold tickets over its lines outside of Michigan in cooperation with the Pere Marquette Railroad. The Michigan Supreme Court, citing Green v. Chicago, Burlington & Quincy R. Co., 205 US 530 (27 S Ct 595, 51 L ed 915); Philadelphia & Reading R. Co. v. McKibbin, 243 US 264 (37 S Ct 280, 61 L ed 710); and Davis v. Farmers Cooperative Equity Co., 262 US 312 (43 S Ct 556, 67 L ed 996), and most particularly relying on the latter, held that the statute authorizing service on the defendants, as applied, was in conflict with the commerce clause of the Federal Constitution and invalid, because defendants were not “doing business” within the State.
Smart v. Florida East Coast Railway Company will control our decision here unless there has been a substantial change in the prevailing Federal law concerning service on interstate carriers. We said, in the Smart Case (at p 544):
“The case presents the assertion of rights secured by the Federal Constitution, and by the decisions of the final interpreter of that Constitution, the supreme court of the United States, we are and should be bound.”
First we turn to an examination of the case upon which we previously relied, Davis v. Farmers Cooperative Equity Company, supra. A Minnesota statute provided that any foreign corporation having an agent in the State for the solicitation of freight and passenger traffic on lines without the State might be served by delivering copy of the summons to such agent. Defendant, Atchison, Topeka & Santa Fe Railroad, maintained a Minnesota soliciting division similar to that with which we are here concerned. Mr. Justice Brandéis, who wrote for the court, said:
“Solicitation of traffic by railroads, in States remote from their lines, is a recognized part of the business of interstate transportation. * * *
“That the claims against interstate carriers for personal injuries and for loss and damage of freight are numerous; that the amounts demanded are large; that in many cases carriers deem it imperative, or advisable, to leave the determination of their liability to the courts; that litigation in States and jurisdictions remote from that in which the cause of action arose entails absence of employees from their customary occupations; and that this impairs efficiency in operation, and causes, directly and indirectly, heavy expense to the carriers; these are matters of common knowledge. Facts, of which we, also, take judicial notice, indicate that the burden * * * ■ imposed specifically by the statute here assailed is a heavy one; and that the resulting obstruction to commerce must be serious.”
No subsequent' determination applying to service of process upon an interstate carrier has been made by the United States supreme court.
Plaintiff, however, contends that the result reached by the high court in International Shoe Co. v. State of Washington, 326 US 310 (66 S Ct 154, 90 L ed 95), and its application in the lower court decisions, dictate an opposite result in the instant case. In the International Shoe Company Case, the company, had its home offices in Missouri, but employed 11 to 13 salesmen, residents of Washington, for the purpose of soliciting orders from prospective Washington buyers. Each salesman was provided with a line of shoe samples for the display of which temporary and occasionally permanent display rooms were rented. Their activities resulted in a large volume of business and were systematic and continuous. Process was served on one of the salesmen and notice was given by registered mail to the corporation at its home office, pursuant to Washington statute. It was held that the corporation was “doing business” in Washington. Citing former decisions as to amenability of the corporation to service it was reaffirmed that mere solicitation alone was not a basis for jurisdiction, but that a systematic and continuous course of business, in the solicitation of orders and the shipment of a large volume of merchandise and the maintenance of permanent display rooms and residence of salesmen did constitute “doing business” in the jurisdictional sense. The court said:
“It is evident that these operations establish sufficient contacts or ties with the State of the forum to make it reasonable and just, according to our traditional conception of fair play and substantial jus tice, to permit the State to enforce the obligations which appellant has incurred there.”
It should be noted that the court’s decision was predicated on an examination of the due process clause and not on an examination of a possible burden on interstate commerce.'
It is obvious that there existed a scope and permanency of activity in the International Shoe Case not present here. Even if we concede that it manifests a somewhat broadened concept it is significant that no case has decided that a foreign railroad which only solicits business within the State of the forum is amenable to process therein. That there has been no case directly overruling the Davis Case is apparent from the examination of lower court decisions
Lasky Norfolk & W. R. Co. (CCA), 157 F2d 674, involved suit brought in the Northern District of Ohio against a defendant railroad operating only in the Southern District of Ohio. Although the court considered the activities of the railroad in the Northern District and held that it was doing business therein, the basis of its decision was the Federal Rules of Civil Procedure' which have been construed to mean that in such a situation, service may properly be had in any district of a proper State.
Bomze v. Nardis Sportswear, Inc. (CCA), 165 F2d 33, relied on by plaintiff, is not applicable here as it involves the problem of whether or not a finding of agency could be made to justify process. It did not deal with the soliciting activities of a carrier. Similarly, see Bach v. Friden Calculating Machine Co. (CCA), 167 F2d 679. Kilpatrick, v. Texas & P. R. Co. (CCA), 166 F2d 788, although it involved a foreign railroad corporation soliciting freight and passenger business, involved a decision predicated on the provisions of the Federal employers’ liability act and thus is not applicable* here.
Defendants cite Fiorella v. Baltimore & Ohio R. Co., 89 F Supp 850, and Goldstein v. Chicago, R. I. & P. R. Co., 93 F Supp 671. These seem to indicate that the International Shoe Case has not changed the rules applicable to service of process on interstate carriers. Fiorella v. Baltimore & Ohio R. Co. involved action by a resident plaintiff in a Pennsylvania district court against the Chicago, Milwaukee, St. Paul & Pacific Railroad. Defendant had a Philadelphia office with 7 employees engaged in the solicitation of business in-the customary fashion.
The court in the Fiorella Case noted that “the supreme court established-the-‘solicitation doctrine’— that is, a railroad company which has no tracks and runs no trains within a district is not doing business within that district for the purpose of service of process merely because it rents an office, hires an agent, and advertises these facts in order to solicit freight and passenger traffic over its lines in other States.”
In Goldstein v. Chicago, R. I. & P. R. Co., a New York plaintiff,, brought suit in a New York forum against the Rock Island, a foreign carrier. The Rock Island had 3 permanent employees in New York State engaged in the usual business of solicitation. Citing the Green and McKibbin Cases, the eourt applied the “mere solicitation” rule and denied jurisdiction. Backer v. Gonder Ceramic Arts, Inc., 90 F Supp 737, cited by the plaintiff, also involved a finding of agency and did not involve a carrier.
The very recent case of Memphis Steam Laundry Cleaner, Inc., v. Mississippi State Tax Commission, 342 US 389 (72 S Ct 424, 96 L ed 436), decided by the United States supreme court on March 3, 1952, involves an entirely different question but indicates how far the eourt has gone in considering the effect of solicitation in interstate commerce. The case involved the right to demand a privilege fee by the State of Mississippi to be paid by a transient vendor or dealer for the privilege of soliciting business in Mississippi, and exacted a fee of $50 for each vehicle used in carrying on such business. The laundry company operated a laundry and cleaning establishment in Memphis, Tennessee. It sent 10 of its trucks into Mississippi where its drivers, picked up, delivered and collected for laundry and cleaning and also sought to acquire new customers. The laundry resisted the payment of such license fees. A number of questions arose but the amenability of the laundry company to process was not considered. However, in holding in favor of the laundry company, the court held that the solicitation of business by a nonresident corporation in a foreign State did not of itself constitute doing business therein as it was a necessary function in interstate commerce. The court said:
“In the long line of 'drummer’ cases, beginning with Robbins v. Shelby County Taxing District, 120 US 489 (1887) (7 S Ct 592, 30 L ed'694), this court has held that a tax imposed upon the solicitation of interstate business is a tax upon interstate commerce itself. Whether or not solicitation of interstate business may- be regarded as a local incident of interstate commerce, the court has not permitted State taxation to carve out this incident from the integral economic process of interstate commerce. As the court noted last term in a case involving door-to-door solicitation of interstate business, ‘Interstate commerce itself knocks on the local door.’
“If the Mississippi tax is imposed upon the privilege of soliciting interstate business, the tax stands on no better footing than a tax upon the privilege of doing interstate business. A tax so imposed cannot stand under the commerce clause. Spector Motor Service, Inc., v. O’Connor, 340 US 602, 608, 609 (1951) (72 S Ct 425, 95 L ed 573), and cases cited therein.”
We have made a lengthy examination of pertinent decisions and find no reason why onr decision in Smart v. Florida East Coast Railway Company, supra, should be overruled.
The order of the trial court setting aside process as to defendant Southern Pacific Company will be affirmed, with costs to appellee, and the case remanded to the trial court for further proceedings in the main case.
Dethmers, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
North, C. J., did not participate in this decision.
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Carr, J.
On the 10th of May, 1945, the probate court of Wayne county entered an order adjudging Helen Fuller to be an insane person and ordering her committed to the Ypsilanti State Hospital or to the Eloise Hospital. She was confined to the latter institution, now known as the Wayne County General Hospital, and is an inmate thereof at the present time. The instant proceeding was brought by her husband for the purpose of obtaining her release. The petition filed alleges that the order of commitment was unauthorized and illegal in that provisions of the State 'and Federal Constitutions with reference to due process of law were violated; and also that certain mandatory provisions of the statute under which the proceeding was had were not followed.
On October 12, 1951, a writ of habeas corpus was issued.by this Court, directed to the superintendent of the hospital, with ancillary writ of certiorari to the probate court. Returns to both writs have been duly filed. It appears therefrom that the basis for Mrs. Fuller’s detention is the order above mentioned.' The proceedings taken prior to the commitment, insofar as material, are set forth in the return to the writ of certiorari. ¡
The petition seeking an adjudication as to Mrs. Fuller’s sanity was filed by her husband on April 12,1945. It was stated therein as the principal bases for the allégation of insanity that she was depressed and that she had attempted to commit suicide. She was examined by 2 physicians on whose certificates a temporary order for her restraint in Eloise Hospi tal, pending the hearing on the application, was made.
The statutory provisions governing the procedure at the time of the commitment were set forth in CL 1929, § 6888 (Stat Ann § 14.811), as last amended by PA 1943, No 250. Subsequent amendments to the section are not material in the present controversy. Pursuant to the statute the probate court, following the filing of the petition, fixed a date for hearing and appointed 2 physicians to examine Mrs. Puller. The examination was duly held and the physicians filed their respective reports indicating their conclusions as to her mental- condition.
In accordance with the statutory mandate, notice of hearing was given to the husband and sister of Mrs. Puller, and was also, served on her. However, she was under detention in the hospital at the time of the hearing and was not permitted to attend. Neither was she ■ represented unless it can be said that her husband, who filed the petition on which the proceeding was had, was charged with the obligation of protecting her rights. The reasons for Mrs. Puller’s absence will be discussed more fully here-1 after. On the hearing, the only testimony requiring specific consideration was .that of Mr. Puller who was sworn and examined by the probate judge. The order of commitment followed.
It is claimed in the instant proceeding that the requirements of the statute we.re not observed in the probate court, and that in consequence Mrs. Puller’s commitment was unauthorized and void. It is urged that the averments of the petition on which the hearing was held were insufficient to give the court jurisdiction, and that the affidavits of the examining physicians were deficient in that they did not set forth material facts in support of. the conclusions stated therein. It is also urged that precluding her from attending the hearing constituted an invasion of her rights under the statute, and that the testimony taken did not support the conclusion of the probate judge on which his order of commitment was based. It is also argued that the probate proceeding, as actually conducted, failed to satisfy constitutional guaranties as to due process of law.
On behalf of the superintendent of the "Wayne County General Hospital it is claimed that the petition of Mr. Fuller for writs of habeas corpus and 'certiorari should be dismissed on the ground that he was without right or authority to present it to this Court. On the basis of certain affidavits that have been filed in the matter it is argued that Mrs. Fuller is opposed to the proceeding. An attempt has been made to show that she is antagonistic to her husband because of his action in filing the petition in probate court, and perhaps for other reasons, and that it is against her wishes that he undertake at this time to do anything in her behalf. The claim that the husband should not be permitted to maintain the instant proceeding seems to be predicated on the theory that her wishes should be regarded as controlling, and that her mental condition is such that she should be deemed competent to determine what action, if any, should be brought in her behalf and who should represent her.
The statute relating to habea,s corpus proceedings specifically provides for the filing of the petition by “some person” other than the one whose alleged unlawful restraint is in issue. CL 1948, § 637.9 (Stat Ann § 27.2252). For obvious reasons such provision has been liberally construed. In the case of In re Joseph Nowack, 274 Mich 544, 549, in which the petition was filed by an attorney, it was said:
“It is claimed that the attorneys had no right to sue out the petition for habeas corpus. It was proper that an attorney knowing that a former client was unlawfully restrained of his liberty and had been temporarily divested of his property by the appointment of a guardian, all without lawful proceedings, should file a petition for habeas corpus and an ancillary writ of certiorari. Any person may sue out a writ of habeas corpus. In re Mould, 162 Mich 1.”
In the case of In re Mould, cited by the Court in the Nowack Case, supra, the right of an aunt of the child whose custody was in question to institute the proceeding was recognized. A petition filed by a parent, a spouse, a close relative, an attorney, or a friend, has been recognized by this Court as sufficient to confer jurisdiction to inquire into the matter of an alleged illegal restraint. The cases herein cited with reference to other matters involved in the controversy fairly indicate the situation in this regard. In the case at bar, notwithstanding the claimed aversion on the part of Mrs. Puller to any action being taken in her behalf by her husband, we think that his petition was sufficient to charge this Court with the duty of determining the questions raised. It may be noted in passing that the issuance of the writs of habeas corpus and certiorari following the filing of the petition was not opposed on the ground that Mr. Puller was not entitled to file it.
As before noted, Mrs. Puller was given notice of the hearing of May 10, 1945, but was not permitted to be present. The statutory provision as set forth in the section above cited, relating to the procedure to be observed in a matter of this character, is as follows:
“Such alleged mentally diseased person shall have the right to be present at such hearing, unless it shall be made to appear to the court, either by the certificate of the medical superintendent in charge of such hospital, home or retreat to which he may have been temporarily admitted, or by the certificate of 2 reputable physicians, that his condition is such as to render his removal for that purpose, or his appearing at such hearing improper and unsafe.”
The language quoted clearly implies that the court, must, on the basis of the showing made by the certificate of the superintendent of the hospital or by the certificates of 2 physicians, determine whether it would be improper and unsafe to permit the one whose sanity is the subject of the inquiry to appear at the hearing, or to render his removal from the institution improper and unsafe. The statute may not be read as intending to delegate to the hospital superintendent or to physicians the final authority to determine that issue. Such a construction would raise a serious question as to the validity of the provision quoted. Dation v. Ford Motor Co., 314 Mich 152 (19 NCCA NS 158). Under the specific language of the statute the presence at the hearing of the alleged insane person is required unless it is “made to appear to the court” that such appearance would be improper and unsafe. !
The return' to the writ of certiorari contains a' photostatic copy of a letter addressed to the probate court of Wayne county, under date of April 17, 1945, by the superintendent of the Eloise Hospital. Said letter was apparently filed on May 10, 1945, the date of the hearing. It referred to the fact that Mrs.' Fuller was at the time a patient in the hospital under a temporary order issued.by the court, and to the provisions of the statute with reference to her right-to be present at the hearing. Following such references it was stated:
“I hereby certify that it is improper and unsafe for the above mentioned patient to appear in your court at the time of the hearing regarding the alleged mental disease.”
No facts were set forth in the letter as the basis-for the certification. Apparently the probate judge accepted it as a sufficient showing justifying a denial to Mrs. Puller of the right to be present in court and to take such part in the proceeding as she might desire. It is argued on behalf of petitioner that such certificate, which merely indicated the opinion of the superintendent without any reference to facts on which he based it, was wholly insufficient to justify the action taken, and that in legal effect such attempted certification was a mere nullity.
In the case of In re Harold H. Roberts, 310 Mich 560, a petition for a writ of habeas corpus was filed by the mother of an inmate of the Kalamazoo State Hospital. There, as in the case at bar, the alleged insane person was confined in the hospital under an emergency commitment at the time of the hearing in probate court, and was not present at such hearing. There was no showing that his condition was •such' as to render his appearance improper and unsafe. After quoting the provisions of the statute above set forth, it was said:
“Under the above statute Roberts was entitled to .be present at. the hearing unless it was shown to the court that his condition was such as to render his .removal from the hospital for that purpose improper and unsafe. The provisions of the statute are mandatory, and as they were not complied with, the probate court was without jurisdiction to commit him as an insane person. In the case of In re Phillips, 158 Mich 155, 159, we said:
““Proceedings taken for an adjudication of insanity against an individual should require the strictest compliance with all the statutory require.ments provided. The determination affects the rights of the' individual to the enjoyment of life, liberty, and property. Courts will ever protect the rights of the individual who is so unfortunate as to be called upon to make a showing to maintain his or her mental integrity.’
“ ‘The probate court derives its jurisdiction from the statute. To obtain jurisdiction in this case, therefore, the provisions of the statute should have been strictly pursued.’ In re Greenman, 212 Mich 687.
“ ‘The commitment of a person to an insane asylum is too serious to permit any slipshod methods or failure to strictly comply with the provisions of the law. Without such strict compliance, proceedings like those in the instant case are a nullity.’ In re Joseph Nowack, 274 Mich 544, 548.
“See, also, In re Maffett, 304 Mich 173; In re Petition of Martin, 248 Mich 512.”
There being no' basis for a determination by the •probate judge, on any showing of facts made to him, that it would he unsafe and improper, or detrimental to the welfare of Mrs. Fuller, to permit her presence at the hearing, the conclusion necessarily follows that the requirement of the statute was not observed. She was entitled to the right granted to her by the law under which the proceeding was conducted. The failuré to observe the statute in this respect rendered her commitment null and void. .
Another question of a serious nature is raised by petitioner’s claim that at the hearing in the probate court on May 10, 1945, there was no competent testimony tending to prove that Mrs. Fuller was at that time an insane person. The statute, above cited, in force at the time required that:
“The court shall also institute an inquest, and take proofs, as to the alleged insanity, feeble-mindedness, or epilepsy of such person, and fully investigate the facts before making such order, and, if no jury is required, the probate court shall determine the question of such alleged mental disease of such person.”
Thb proofs taken on the hearing in question consisted of a statement made by a deputy sheriff and brief testimony given by the husband of Mrs. Fuller. The deputy stated that Mrs. Fuller was 38 years of age, married, that she was brought to Eloise on an emergency order after a suicide attempt, and that the petition in the case was signed by the husband. The testimony of Mr. Fuller, which is relied on as tending to support the claim of insanity, was as follows, the examination being conducted by the probate judge:
“Q. You are the husband of Helen Fuller ?
“A. Yes, sir, I am.
“Q. She is about 38 years of age ?
“A. Yes, sir.
“Q. On the 12th of April, you signed this petition ■and you said that she was — that- people were talking about her and were against her; is that right!
“A. Yes, sir, to a degree.
“Q. Was she depressed and cries for long periods of time for no apparent reason?
“A. I wouldn’t say that.
“Q. That is in the petition.
“A. Well, I didn’t understand that part of it.
“Q. Did she indulge in fits of crying? You can understand that in plain English.
“A. Yes, sir, but not to a great extent.
“Q. Did she attempt suicide by jumping into a .pond at Plymouth?
“A. That is what I understand; I heard about it.
“Q. Did you think she was in need of hospital care at that time ?
“A. Yes, sir.
“Q. What'is her condition now?
“A. I would like to have it postponed. I was responsible for her making that attempt, that night. _ It was a misunderstanding between us and I would like —it was — I want to do what is right but I sometimes .wonder after seeing her since, I would like to have it postponed, if possible and try to do what is right.
“Q. If she is mentally sick, I think' the public institutions are about as good as you can find anywhere.
“A. I appreciate that.
“Q. It takes a lot of money in a private institution.
“A. Yes, sir.
“Q. Under the circumstances you would like to ■ have it adjourned to see whether or not — according to Mr. Smith—
“Mr. 'Smith: If it is adjourned, they can’t commence the treatment.
“Q. It is a mistake to have it adjourned. They couldn’t cut out a scientific course of treatment for her condition as long as she is there temporarily; they will have to leave her status quo. They can’t treat her. When anyone has a sudden attack or condition of this kind, the earlier that treatment can be obtained, the recovery will be earlier. Yon are not doing anything in her interest by postponing it. They couldn’t treat her if you postpone it. You are holding it up for 2 weeks. The quicker she is committed, the better. If she recovers, she can be returned so there is nothing gained by looking at it in a washy-washy fashion. People must take things as they are, not as they would like them to be. She needs hospital care, it is serious and she needs it now, not 2 weeks from now.
“A. Could I speak to my sister-in-law for a few minutes ? We will be right back in.
“Q. Certainly you.may; go right ahead.”
Subsequently Mr. Puller re-entered the courtroom, and said:
“I guess the best thing to do is what is best for her.”
The testimony has been quoted in full in order that the situation may clearly appear. Apparently the questions propounded by the judge of probate to Mr. Puller were based on the statements contained in the petition, and. his answers tend to indicate that at the time of the hearing he was unwilling to characterize his wife’s conduct in the terms that had been set forth in the petition. He declined to say.that she was depressed and cried for long periods of time without apparent reason. While admitting that she did indulge in fits of crying, he modified it by saying such conduct was not indulged in “to a great extent.” Reference was made to her alleged attempt to commit suicide. The answer of the witness indicated that his knowledge of the occurrence referred to was based on hearsay. His further testimony suggests that Mrs. Puller’s conduct, if she did attempt suicide, resulted from a misunderstanding between the parties. He was not questioned for the purpose -of bringing out the details of the occurrence. Bearing in mind that Mrs. Puller was presumed to be sane until the contrary fact was made to appear, we do not think the testimony was sufficient to overcome that presumption. Whether the attempt tó commit suicide, if there was such, indicated insanity at that time depended on the facts and circumstances involved, concerning which no inquiry was made. It may not be said that the hearing as conducted was a sufficient cqmpliance with the mandate of the statute to the probate judge to “fully investigate the facts before making such order.”
The situation here is analogous to that involved in Re Haines, 315 Mich" 657. There, this Court after considering all of the testimony offered on a sanity hearing "in probate court came to the conclusion .that the testimony “did not in any reasonable sense tend to prove insanity.” The commitment was accordingly held illegal. Attention in the case at bar has been directed to the statements in the affidavits of the examining physicians.. A similar issue was involved in the Haines Case, and with reference thereto it was said:
“In reaching the above conclusion we are mindful that at the hearing the probate judge had before him the certificates of the 2 duly appointed physicians, each of whom certified that Harold H. Haines was an insane person; and doubtless the probate judge in so determining relied mainly, if not wholly, on such certificates. But it is settled law that in the absence of other competent proof an adjudication of insanity may not be based on the certificates of physicians appointed by the court to examine the alleged insane person. In re Clifford, 303 Mich 84; In re Buck, 308 Mich 634.”
The language quoted is applicable in the case at bar. While we do not weigh the testimony taken in a proceeding of this kind, it is our duty to determine whether the requirements of the statute were complied with and whether there was sufficient testimony taken on the hearing to overcome the presumption of sanity and to justify an affirmative finding that Mrs. Puller was at the time insane. Under the holding in the Haines Case, supra, and in other prior decisions of this Court, it must be held that the finding and the commitment based thereon were, not supported by competent proofs. In re Myrtle Davis, 277 Mich 88; In re Ryan, 291 Mich 673; In re Gordon, 301 Mich 224; In re Aslanian, 318 Mich 55; In re Fidrych, 331 Mich 485; In re Floyd Brooks, 331 Mich 628.
In the respects above discussed, it is' our conclusion that the statute was not followed, that in consequence the commitment of Mrs. Puller was illegal, and that she is now entitled to her release. It is unnecessary to discuss the constitutional questions' raised by petitioner, to pass specifically on the sufficiency of the petition initiating the sanity proceeding, or to determine whether the affidáviís of the’ examining physicians were in compliance with the. statutory requirements.
An order will enter in accordance with the foregoing opinion.
Dethmers, Bttshnell, and Reid, JJ., concurred with Carr, J.
Sharpe, J., concurred in the result.
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Butzel, J.
Plaintiff’s decedent, Jacqueline Johnson, an attractive and talented young girl, was slightly- over 15 years and four months of age on May 16, 1941,'when she met with a fatal accident while standing on or walking along the shoulder of trunk line highway M-16 in Muskegon county, Michigan. A Ford'car owned by defendant Lowell E. Colburn and operated by his brother Russell collided with a Chevrolet car owned by defendant Virgil Bryant and driven by his son Francis. All of them are joined as defendants. As a result of the collision, the Colburn car left the paved portion of the highway and struck plaintiff’s decedent. Defendants in their answers deny that they were guilty of negligence and that plaintiff’s decedent was free from' contributory negligence. The jury rendered a verdict in favor of plaintiff for $650. Plaintiff’s chief claim of error is that the verdict was grossly inadequate and contrary to the great and overwhelming weight of the evidence and contrary to the instructions of the court.
The record discloses that plaintiff’s decedent suffered no pain. The doctor who attended her and who was called as a witness by plaintiff stated that decedent suffered a cerebral concussion which immediately rendered her unconscious of pain; that she did not recover consciousness prior- to her death 33 hours later. The ambulance driver, who reached the scene of the accident shortly after its occurrence, found her unconscious. Although the mother of the girl testified that she thought that at the hospital she heard the child once say, “mama,” immediately on objection the court ruled that the testimony must be limited to what the witness knew. The mother then stated that she was making a noise with her feet'on the floor at the time and for that reason was not sure. The doctor upon cross-examination stated that even though the child might have spoken a word and moaned and groaned several hours prior to death, it was all due to reflexes and did not indicate consciousness. He said that the child could not have had any pain from the time of her injuries up to the time of her death. From the testimony there was no basis for a finding of damages because of pain and suffering, and the judge was correct in so stating.
Appellant contends that the girl’s earning capacity would have increased with the years and that the jury should have awarded a substantial amount of damages for the difference between the cost of her support and what she would have earned up to the time she would have reached her majority. The testimony showed that decedent had graduated from the primary schools the day she was injured. The decedent’s father stated that his daughter was planning to go to high school and, subsequently, to take up nursing. She had anticipated going into training and becoming a nurse in order to operate a nursery where people could leave their children while they worked. Two professional nurses were called as witnesses and stated that it would require three years of study after graduating from high school to become a graduate nurse and that there would be no income from the profession until after graduation. Appellant claims that the testimony did not positively show that decedent expected to study to be a professional medical nurse and that it merely showed that she expected to take training to become a children’s nurse. The father did speak about nursing and the training. No testimony was offered to show that it took less or more training to become so proficient as to be able to run a day nursery. We believe that tbe testimony fully justified the jury in finding that had decedent attended high school four years and subsequently taken the training to become a nurse even for the operating of a day nursery, she would not have been able to earn more than she required to support herself until she became 21 years of age.
The medical, hospital, nursing and burial expenses amounted to $596.47. This left only $53.53 of the amount of the verdict as compensation for loss on earnings, provided, of course, the jury found defendants to have been negligent and decedent free from contributory negligence. It frequently is impossible to determine how juries arrive at their conclusions in determining the amount of damages. If, however, such amount is supported by the evidence, we may not interfere.
In Snyder v. Railway Co., 131 Mich. 418, a verdict of $250 was awarded for damages on account of the death of a boy between 11 and 12 years old. There was a showing that at the age of 15 he could have earned $15 a week. We held the verdict not inadequate.
We declined to disturb verdicts of $71 in Sceba v. Manistee Railway Co., 189 Mich. 308 (L. R. A. 1918 C, 1090), and of $300 in Gile v. Hudnutt, 279 Mich. 358. The amount of the verdict was a question upon which different persons might and probably would disagree. Measuring the value of the life of a child in terms of dollars and cents is abhorrent and a jury ordinarily would be prone to place it at a very large amount if the evidence warranted it. Nevertheless the rule of law is that the recovery must be limited to such damages as are proven. The child’s future earnings and whether she would live to be 21 were problematical'. The amount of the verdict in the instant ca'se is justified by the testimony.
Error is claimed because tbe court refused to permit tbe introduction of the mortality tables. As defendants conceded that tbe tables would show ber expectancy extended to 21 years of age, tbe court was not in error in excluding tbe tables.
Error is claimed because the court charged tbe plaintiff could not recover for any possible earnings that tbe girl might contribute to ber parents after reaching tbe age of 21. Such is tbe law of Michigan. The rule was again reiterated in Morris v. Radley, 306 Mich. 689, in which we construed the present death act, 3 Comp. Laws 1929, §§ 14061, 14062, as amended by Act No. 297, Pub. Acts 1939 (Comp. Laws Supp. 1940, §§ 14061, 14062, Stat. Ann. 1943 Cum. Supp. §§ 27.711, 27.712).
We have carefully examined tbe charge of tbe court and find it was fair and there was no error in it even though tbe judge repeated some statements. Tbe grandmother of tbe child testified that she could not tell tbe exact cost of support and maintenance of a girl in these times, since times have changed, whereupon tbe trial judge made tbe statement, “they have not changed for better as far as living prices are concerned;” and she answered, “I mean everything is higher than it was.” Tbe statement, while unnecessary, did not constitute reversible error.
During tbe course of tbe trial, after plaintiff bad rested, tbe attorney for tbe defendants, in tbe absence of tbe jury, offered to pay $651.17, an amount, according to a subsequent affidavit made by one of tbe attorneys, consisting of tbe aggregate expenses for tbe doctor, hospital, nurses and funeral expenses and $54.70 costs. One of tbe attorneys for defendants asserted at tbe time that there could be no question about tbe possible future, earnings, and tbe amount tendered merely covered tbe damages. Tbe court wanted to know whether it was an offer of settlement by defendants, and the attorney for plaintiff asked whether it was made as a confession of liability, to all of which a negative reply was . made. The plaintiff refused the tender. The fact that the tender was $1.17 more than the amount of the verdict in no way affects the verdict. Inasmuch as the tender was refused, it had no evidentiary value to prove what the future earnings over and above the costs of the education and support of the girl would have amounted to.
Judgment affirmed, with costs.
North, C. J., and Starr, Wiest, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Starr, J.
(dissenting). In March, 1942, defendant was convicted under an information charging that in June, 1931, he “feloniously and fraudulently did embezzle and convert to his own use” $480 belonging to the complaining witness, Carlo Migliori.
3 Comp. Laws 1929, § 16911 (reenacted by Act No. 328, § 362, Pub. Acts 1931 [penal code], effective September 18, 1931 [Comp. Laws Supp. 1940, § 17115-362, Stat. Ann. § 28.594]), provides:
“If any person to whom any money, goods, or other property which may be the subject of larceny, shall have been delivered, shall embezzle or fraudulently convert to his own use, or shall secrete with the intent to embezzle, or fraudulently use such goods, money, or other property, or any part thereof, he shall be deemed by so doing to have committed the crime of larceny.”
In 1931 defendant was a stockholder, director, general manager, and president of the United Credit Protective Service Corporation (herein referred to as the corporation) which had offices in Detroit and was engaged in the collection service business. The complainant Migliori, who conducted a grocery store in Detroit, claimed in substance that he paid defendant $500 with which to purchase stock of the corporation and that defendant fraudulently converted the money to his own use. Defendant denied that he received the money, and claimed that Migliori paid it to the corporation and that certificate for $500 of stock was issued and delivered to him.
Upon trial without a jury defendant was convicted and sentenced to from one to five years. His motion for a new trial was denied, and he appeals, contending that there was no proof of felonious intent and that his conviction was against the great weight of the evidence.
In April, 1931, Migliori had entered into a written contract with the corporation for its collection services and paid $20 on the contract. He testified regarding the contract and the purchase of stock and payment therefor in part as follows:
“On June 5, 1931, I gave the defendant $500. First I give him $20 to collect my account at the store. He came back and asked me, ‘Why don’t you buy share?’ * * * I give him $500 to buy share in stock. * * *
“The Court: * * * You gave him $500. Did he give you some stock back?
“A. He give me nothing.
“He did not return the $500. I don’t see him any more. . He run away. * * *
“Q. Did Mr. Martino give you credit for the $20 that you paid for this service?
“A. Yes. * * *
“After I gave Martino the $480, or $500, I received a note signed by Mr. and Mrs. Martino. * * *
“Q. Did you go to Mr. Martino and tell him you wanted a note signed by him and his wife to cover this money that you bought stock with?
“A. Yes.”
The testimony and exhibits indicate that Migliori paid $50 on M.ay 14, 1931, and $430 on June 5, 1931, which, together with the $20 paid on the collection service contract, made a total of $500. The corporation issued and delivered to Migliori its receipt for the $50 payment, which stated, “to be applied on 20 shares of stock he (Migliori) is purchasing,” and its receipt for the $430 payment, which stated, “balance due on 20 shares stock certif. now paid in full.”
Defendant testified regarding the payments by Migliori and the issuance of stock in part as follows:
“We sold a collection service to people with charge accounts. I, or someone in our organization, sold such a service to Carlo Migliori. The fee was $20. * * * Mr. Migliori agreed to purchase 100 shares of stock equivalent par value at the time $25 a share. Later he changed his mind and subscribed for 20 shares of stock at $25 a share or $500. He paid, I believe, $50 to our cashier and partner, Miss Frances Smith. He insisted that the $20 which he paid Mr. Nero for the collection membership be credited on account of the purchase of the stock, so he paid $480 in all, outside of the $20 aforementioned. I signed the receipts. * * * They cover the money that was turned over by Mr. Migliori to the cashier. * * * I was present when this money was paid and represented the balance for the 20 shares. These shares were delivered to Mr. Migliori the same day, June 5th, the day he paid the full balance for the 20 shares. * * *
“Miss Frances Smith was in charge of all books and she kept them in a special compartment of her desk. When she received the balance of the entire transaction of $500, I called her to bring the stock book and I issued a certificate for 20 shares payable to Mr. Carlo Migliori at the same date. I am sure that I actually tore it out of the stock book and handed it to him. I wrote on the stub that remained a part of the company record. * * * First, I wrote the amount of the shares, second, the name of the party issued to, and third, the date and when the certificate was issued to the party named. * * * There was * * * a documentary stamp placed on this stock. * * *
“Frances Smith was our cashier. She made out this receipt. She handled the cash and the deposits in the bank and she had charge of that. Migliori didn’t come in and give me the money — he paid Miss Smith and she gave the receipt.’-’
, Defendant further testified that when he resigned as an officer and manager of the corporation, in Au.-' gust, 1931, lie transferred his entire holdings to Mr. Nero; that the corporation at that time made up a new set of books; and that he took the old stock certificate book, bank book, and cancelled checks and deposited them in the vault in his attorney’s office for safekeeping. Such testimony was corroborated by that of his attorney. A stock certificate stub, which was put in evidence, purported to show that certificate No. 13 for 20 shares was issued to “Carlo Migliori, Director,” June 5,1931. A duly cancelled Federal revenue stamp in the amount of 25 cents was affixed to said certificate stub. The stub also bore on its face the notation “canceled July 10, 1931.” Defendant said he made the notation when he repurchased the $500 of stock from Migliori on July 10th and gave him the following agreement or note:
“Detroit, Mich., July 10, 1931. Agreement:
‘ ‘ The undersigned having received as a loan from Mr. Carlo Migliori the sum of $2,500 to be paid in ' 90 days, hereby authorize Mr. Migliori that in case said money is not paid within 90 days, to take legal -actions against Martino and to attach whatever property or anything of value belonging to Martino either in America or Italy.
“The undersigned also declare not to take any defenses for the payment of said loan.-
“Signed: Carmine J. Martino,
“Josephine F. Martino.”
Defendant claimed that the above agreement covered $1,500 which Migliori loaned him, the $500 payment for the repurchase of the stock in question, and a bonus of $500. He testified in part regarding the agreement and his repurchase of the Migliori stock:
“When I gave the note to Mr. Migliori, I asked ' for him to return the stock certificate. He told me ' * * * that when that note would be paid to him, .he would be only too glad to return tbe stock certif- • icate to me. For my own protection, I cancelled the stub. * * *
“He retained possession of the stock certificate and as far as I know he still has it. * * *
“I gave Mr. Migliori * * * the note or agreement (of July 10, 1931), showing I owed him $2,500, because, shortly after he received a stock certificate he was willing to loan me an additional amount of money, personally. He told me that he didn’t want to bother with stocks— * * * he wanted the money back, — the $500. * * * He was willing to give me an additional $1,500, plus the $500 that he had already paid for the 20 shares of stock, providing I would give him my note written in English and Italian for $2,500. * * *
“I gave him the agreement later in spite of the fact that he had the certificate. ”
Migliori testified in substance that he never received the certificate for $500 of stock; that the agreement or note of July 10,1931, did not cover the repurchase of the stock; and that the agreement related to another and separate transaction whereby he loaned money to defendant to establish certain business branches. It appears that the business of the corporation was continued for several months after defendant left the State in September, 1931, and that he wás absent from the State for a number of years preceding his arrest on the present charge in 1942.
Under the statute hereinbefore quoted, it was incumbent on the prosecution to show that the $480 in question was delivered to defendant personally, either by Migliori or the corporation, and that he converted it to his own use “with the intent to embezzle, or fraudulently use” the same. The prosecution based its case principally on Migliori’s uncorroborated testimony that he paid defendant $500 with, which to purchase stock and that defendant did not deliver the stock to him. The defendant, in effect, denied receiving the money personally and claimed that Migliori paid it to the, corporation, which issued and delivered stock certificate to him. If this conflicting testimony were the only evidence, we would be disposed to affirm defendant’s conviction, as the trial court, sitting without a jury, saw and heard the witnesses and could judge their credibility. People v. Hepner, 285 Mich. 631; People v. Beath, 277 Mich. 473.
However, certain written instruments were presented in evidence which tended to negative Migliori’s testimony. The corporation’s written receipts for the $50 and $430 payments indicated that the money was not paid to defendant personally, but was paid to the corporation. There was no showing that defendant received such money from the corporation. Migliori’s statement that he did not see defendant after he paid him the $500 and that “he (defendant) run away” is refuted by his own testimony that more than a month later he loaned defendant $2,500 for which he received the above-quoted agreement or note of July 10, 1931. The stock certificate stub purporting to show that the certificate attached thereto was issued June 5, 1931, to “Carlo Migliori, Director” was, to some extent, corroborative of defendant’s.testimony that the certificate was issued to Migliori. Migliori’s statement that he did not receive either the certifieáte of stock or repayment of the purchase price must be considered in connection with the agreement or note of July 10th whereby defendant and his wife agreed to pay him $2,500 in 90 days.
The books of the corporation probably would have shown whether or not it actually received and used the $480 in question. However, they were not put in evidence. The prosecution stated that Lowry Nero, an officer of the corporation, and Frances Smith, the officer or employee who appeared to have signed the corporation’s receipts, for payments made by Migliori, were absent from the State and not available as witnesses. Nearly 13 years have elapsed since the alleged offense took place.' The record is quite unsatisfactory and leaves many material facts to inference and conjecture. The complainant’s testimony, when considered in connection with the written instruments and facts and circumstances shown by the record, certainly leaves doubt as to the guilt of defendant. '
To summarize, the record does not, we believe, support the finding that the $480 in question was delivered to defendant personally, and that he converted it to his own use “with the intent to embezzle, or' fraudulently use” the same. With due regard for the determination of the trial court, we conclude that the evidence did not establish defendant’s guilt beyond a reasonable doubt.
The judgment should be reversed and a new trial granted.
Sharpe and Boyles, JJ., concurred with Starr, J. | [
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Dethmers, J.
This is a suit in ejectment testing title to a disputed strip of land approximately 89:7 feet in width located within and immediately south of the north line, of government lot 3, section 7, T 30 N, R 8 W, in Antrim county, on the west shore of Torch lake.
In 1917 defendant purchased and in 1920 received a deed to government lot 2, situated immediately adjacent to and -north of the disputed strip. In 1923 she platted the east portion of lot 2 on the basis of a survey made by the county surveyor. Through error the surveyor staked out the plat as commencing on the north at a line 70 or more feet south of the north line of goyernment lot 2 and extending south, to a line 89.7 feet south of the dividing line between government lots 2 and 3, with the result that the plat encroached by that number of feet on government lot 3. In 1941 plaintiffs purchased and in 1945 received a deed to government lot 3. In 1942 defendant showed plaintiffs the erroneously placed iron stakes which she said marked the south line of her property. Plaintiffs made no objection, having-had no previous knowledge of the true location of the line. In 1949 and again in 1950, after defendant had built and occupied a house on the now disputed strip, plaintiffs -had surveys made, discovered the error and thereupon brought this suit. Prom judgment for defendant plaintiffs appeal.
Relying on Dubois v. Karazin, 315 Mich 598, and cases cited therein, defendant urges that- an old, .established line, long recognized, acquiesced in, and treated as the true line for a period of more than 15 years ought not to be disturbed on the basis of a new survey. The difficulty with defendant’s contention in this regard is that the recognition of and acquiescence in the wrong line for 15 years is only shown to have been on the part of defendant with no such showing as relates to plaintiffs and their predecessors.
The trial court held that defendant had acquired title to the disputed strip by adverse possession for more than the statutory period. The area had béen, in the main, rough, undeveloped, and covered with trees and underbrush. Plaintiffs contend that the inclusion of the disputed strip within the area staked out as defendant’s plat, coupled with her infrequent acts of planting trees and flowers, cutting dead branches, holding picnics, and shoring up the lake bank at places throughout her plat, without actually dwelling upon the disputed strip until 1947, and defendant’s occupation and use of portions of her plat located outside the disputed strip did not con stitute open, notorious, continued, hostile and adverse possession of the strip sufficient -to ripen into title.
The trial court viewed the premises and described all the witnesses in the case as truthful. On that basis it found that, despite the fact that defendant had not actually dwelt upon the disputed strip for the requisite period, nonetheless, she had, for more than such a period, worked on the strip and planted flowers and trees on it, including a row of red and white pines planted, in 1924 and 1925, near and parallel with the lake shore and running north from defendant’s present house; that she had recurrently trimmed and removed dead branches from trees thereon, built a road on the strip leading to the building site, cleared out underbrush, brushed out ■the' creek thereon, cleared a line along the south boundary thereof, shored up the banks of the lake in front of the strip with rocks and boulders3 used the property for picnics, et cetera, and paid taxes on the entire plat; that her son had spent several summer vacations on the disputed strip, and that, for more than the statutory period, defendant had not only done all these things on it but had treated it in every respect as a part of her plat. The court determined that defendant’s use of the strip had been such as was consistent with the character of the property and that she had devoted it to the use to which it was adapted, all under claim of title; that her possession had been visible, open, notorious "and distinct, presumed to be hostile, and sufficient to cause title to ripen in her by adverse possession. The court relied in this connection on Greene v. Anglemire, 77 Mich 168; Dubois v. Karazin, supra, and cases cited therein. Applicable also is Monroe v. Rawlings, 331 Mich 49, and authorities therein cited. We believe the trial court was correct.
Because no point is made of it in the briefs, we need not pass ou the effect of the State’s having acquired title to lot 3 on tax sale in 1939, a subject considered in McCreary v. Shields, 333 Mich 290.
Affirmed, with costs to defendant. .
Butzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
The late Chief Justice North did not sit. | [
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Reid, J.
On leave granted, defendant Ervin Lee appealed from his conviction and sentence pronounced. December 4, 1936, for murder in the first degree. Defendant John Bannerman, who had also, on leave granted, appealed from his conviction and sentence for complicity in and guilt of the same offense, stipulated and agreed that his cause be consolidated with and governed by the same decision as may be rendered in the Lee case. One record but separate briefs for the 2 defendants have been filed and the 2 appeals are herein considered and disposed of.
Beginning on November 18, 1936, defendant Ervin Lee together with codefendants Harvey Davis, John Bannerman, Roy Lorance and Charles Rouse, were fried by a jury in the recorder’s court for the city of Detroit on an information charging (in part) that the said defendants:
“Heretofore, to-wit, on the 25th day of May A.D. 1936 at the said city of Detroit, in the county aforesaid feloniously, wilfully and of their malice aforethought, did kill and murder one Silas Coleman; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”
On arraignment defendants refused to plead; a plea of not guilty was entered by court order.
All of the defendants were convicted of first-degree murder by the jury and sentenced to life imprisonment by the court. In 1937, a motion for new trial was denied by the original trial judge. Approximately 10 years later a motion for new trial was filed with the successor trial judge on September 10, 1947. An amended motion for new trial dated March 16, 1948, was filed by present counsel, heard, taken under advisement and denied on October 12, 1948.
On the trial before court and jury, the people’s witness, Dayton Dean, testified as follows: In the week of May 25, 1935 [1936], one Dayton Dean (not a defendant),'Harvey Davis and Charles Rouse conspired together ky obtain a negro to take out to the lake (Rush lake, Livingston county, Michigan) where Harvey Davis was going to have a party “with some of the boys in his outfit;” he (Davis) wanted to get hold of a negro “to have a little target practice and have a little excitement out there.” On Wednesday or Thursday night of that week the witness Dayton Dean talked to defendant Charles Rouse and told him that Davis and some of the boys were going to have a party out at the lake and that they wanted to get hold of a negro and take him out and “they were - going to kill him.” Rouse stated that he had “just the man for you;” that the fellow was working for him and he had not been working very long; that he would be able to take him out all right; that Rouse would make the arrangements. This conversation took place at 19179 Irvington avenue-at the city of Detroit. On Friday of the same week, Dean in-, formed Davis of the arrangements with Rouse. Davis said he would be out to Rush lake if he was not at home when Dean went over to his home on Saturday night. On Saturday night, May 25th, Charles Rouse picked up the witness, Dayton Dean, at 2764 Second avenue in the city of Detroit; the 2 drove over to the home of Harvey Davis, 775 Ferdinand, city of Detroit; Davis was not at home but the witness, Dayton Dean, knew the way to the lake; Rouse told the witness, Dayton Dean, about Silas Coleman, the negro that he was to meet at 9:30 in the evening on the corner of Meyers road and Grand River in the city of Detroit; the 2 of them then drove to Meyers and Grand River where-they found Silas Coleman waiting for them; Dayton Dean got in the back seat and Silas Coleman got in the front seat with Charles Rouse, and they proceeded out Grand River; Coleman said he had a couple of eases of beer at his landlady’s place and he was going to have a party when he came back; Charles Rouse told Coleman that “the contractor” [the identity of the contractor being otherwise undisclosed] went out to the lake, and that he [Coleman] “would have to go out there to get his money and that he could go along with us.”
The witness, Dayton Dean, further testified: Rouse, Dean and Silas Coleman, the deceased, went to Brighton, turned at the red light there and drove out to Rush lake to the cottage. Dean got out of the car, entered the kitchen and saw a long table at his right where Harvey Davis and his wife, Jack Bannerman and his wife, Lorance and his wife and Ervin Lee and his wife were seated at the table, drinking. Dean told Harvey Davis he wanted to see him' in the front room; Dean told Harvey Davis that “we had the colored fellow out there in the car,” and explained to him that Charley (Rouse) had got him to the lake by telling him he was going to get his money; Davis called Lee, Lorance and Bannerman into the other room and told them, “We’ve got the fellow we were talking about;” Davis told Dean to go out and tell Charley Rouse that this contractor had gone out on the lake fishing and they would lead the way; Davis told the boys (Lee, Lorance and Bannerman) to get their guns and see that they were loaded; they got their guns — 38’s, and Dean had his gun, a .45 automatic, with him; Davis fold Jack Bannerman to get into the car with Dean and that Lee and Davis would ride in Lorance’s car; the defendants got into the 2 cars, drove back on the highway and went to the town of Pinckney, turned left and went up the first road, turned right and drove about a mile; turned right on another road and drove possibly a half a mile or mile, until they came to a bridge that “crossed like a big marsh” and stopped with the r.ear wheels of Lorance’s car on the bridge.
Dean further testified: Davis, Lorance and Lee got out of the car and walked back to the car occupied by Dean, Bannerman, Rouse and Silas Coleman; Bannerman and Dean got out of the car and walked over on the opposite side of the bridge where Davis, Lee and Lorance were; Davis said, “Well, let’s go and get him;” as they started back across the bridge, Silas Coleman came around the back of the car facing them and Davis fired first; then Lorance, Lee and Bannerman fired; the negro attempted to say something, gave a half-right-about face and ran down the road in the direction the cars were facing; the defendants began shooting after him as he ran; he (Coleman) gave a left-face and jumped in the swamp; they emptied their guns after him when he jumped in the swamp; they then drove back to the cottage, had a drink and then Charley Bouse and the witness, Dayton Dean, drove back to Detroit; on the way back Charles Bouse gave Dayton Dean $10 of Silas Coleman’s money and told him to divide it up among the boys; there was $8 for Charles Bouse; Monday morning when Dean went to work he told Davis that he had the money and that Davis said not to say anything to the other fellows about it, so Dean gave him $5 and kept $5.
The defendant John Bannerman claims he was not in the city of Detroit and county of Wayne at the time the alleged murder was committed and he claims he was not in the jurisdiction of the recorder’s court, for the city of Detroit at the time the alleged piare to commit the murder was arranged.
The court charged the jury that the defendant John Bannerman could be found guilty of murder in the first degree if he committed an overt act or participated in the plan within the jurisdiction of the recorder’s court. The trial court charged the jury with regard to the included offenses of murder in the second degree or manslaughter as follows:
“I, therefore, charge you that you cannot find the defendants guilty of either one of the lesser offenses, but that your verdict must be either one of guilty of murder in the first degree or not guilty.”
The prosecution claims that there was a conspiracy to commit the murder, and that an act necessary to and a step toward its accomplishment was committed in the city of Detroit; that defendants were conspirators in the conspiracy though not present in the city of Detroit when the act aforesaid was committed in the city of Detroit, which act consisted of inveigling the murdered man, Coleman, into an automobile and conveying him on the road toward the place where he was afterwards murdered, all within the purview of the conspiracy.
The first question we are to consider is whether the recorder’s court of the city of Detroit, acquired jurisdiction of the murder, if the prosecution’s aforesaid claim has been proven to the satisfaction of the jury-
Our statute, CL 1948, § 767.39 (Stat Ann § 28.979), provides:
“Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.”
Our statute further provides, CL 1948, § 762.8 (Stat Ann § 28.851):
“Whenever a felony consists or is the culmination of 2 or more acts done in the perpetration thereof, said felony may be prosecuted in any county in which any one of said acts was committed.”
'“By the provisions of the Federal Constitution, criminal trials must take place in the State and district wherein the crime was committed, but it was long ago determined that these provisions apply only to prosecutions in Federal courts.” 14 Am Jur, pages 929, 930, citing Burton v. United States, 202 US 344 (26 S Ct 688, 50 L ed 1057, 6 Ann Cas 362), and other cases.
See, also, Nashville, Chattanooga & St. L. R. Co. v. Alabama, 128 US 96 (9 S Ct 28, 32 L ed 352), cited in 24 Fed Digest, § 107, Criminal Law.
“In the absence of any limitation by constitutional provision, it seems to be generally recognized that the power of a State legislature to fix the venue of criminal prosecutions in a county or district other than that in which the crime was committed is unrestricted.” 76 ALE 1035.
The Constitution of Michigan of 1835 contained the provision in article 1, § 9, “The right of trial by jury shall remain inviolate,” and in article 1, § 10, “In all criminal prosecutions, the accused shall have the right to a speedy and public trial by an impartial jury of the vicinage.”
The Constitution of 1850 (art 6, § 28) omitted the words “of the vicinage” and the present Constitution, 1908 (art 2, § 19), likewise does not have the words “of the vicinage” qualifying a jury to try a criminal case. The evident purpose of leaving out of the Michigan Constitution the words “of the vicinage” is to permit the legislature some latitude in legislating as to venue of criminal cases.
Defendants cite and rely upon Swart v. Kimball, 43 Mich 443, which opinion has been criticized on the ground that Justice Cooley overlooked the fact that the Michigan Constitution of 1850 had omitted the words, “of the vicinage.”
In any event, since the decision of the Swart Case, supra, the following cases have shown a departure in certain instances from a strict application of the rule that the jury must be of the vicinage, or of the county, so far that there have been upheld as constitutional, 4 statutes of this State creating exceptions or modifications of the rule as to trial by jury of vicinage: Bayliss v. People, 46 Mich 221; People v. Hubbard, 86 Mich 440; People v. Peterson, 93 Mich 27; Glinnan v. Judge of Recorder’s Court, 173 Mich 674 (a change of venue case); People v. Henderson, 246 Mich 481; People v. Southwick, 272 Mich 258; People v. Coapman, 326 Mich 321. We consider that except as the legislature for the furtherance of justice has otherwise provided reasonably and within the requirements of due process, the trial should be by a jury of the county or city where the offense was committed.
The defendants were tried, not for conspiracy, but for murder. The prosecution claims that a conspiracy was formed by all of the defendants in Detroit to murder some negro, by taking him out to Livingston county and there using him as a target and shooting him; that in pursuance of the conspiracy, Coleman was inveigled into an automobile in the city of Detroit, and transported to Livingston county, where the conspirators, including defendants Lee and Bannerman, fired at the negro, Silas Coleman, and that the death of Coleman was caused by the shots of the conspirators, including both defendants Lee and Bannerman.
Defendant Lee claims that because the information charges that the murder was committed in the city of Detroit, which city is the territorial limit of the criminal jurisdiction of the trial court,- the trial court did not have jurisdiction of murder actually committed in Livingston county.
The statute, last above quoted, CL 1948, § 762.8, is not invalid under the - provisions of either the Federal Constitution or the Constitution of the State, so far as concerns any reasons advanced by defendants, in this case.
The information falls within the meaning of the statute, CL 1948, § 762.8.
The statute validly confers on the trial court venue of the offense, in question in this case.
Further, the defendants in this case were prosecuted in the city of Detroit where they lived. It is not shown that they were put to disadvantage in procuring witnesses or attending the trial in Detroit as compared with a trial in Livingston county. There was no want of due process occasioned by the bringing of the prosecution in Detroit.
Defendant Lee claims the evidence produced on the trial was not sufficient to show defendant Lee implicated in a conspiracy formed in Detroit. There was testimony that the 2 defendants Lee and Bannerman wete in Livingston county when Davis said to them (and a claimed co-conspirator Lorance): “We’ve got the fellow [i.e., Coleman] we were talking about;” and that defendants Lee and Bannerman went with the other alleged conspirators to the place where Coleman was killed, and participated in the killing. There was testimony to support the claim of the prosecution that defendants Lee and Banner-man had made themselves parties to the conspiracy before the commission in Detroit of the act of inveigling Coleman into the automobile and conveying him to Livingston county.
There was testimony to show that 1 act, at least, in carrying out the conspiracy was performed in Detroit, i.e., Coleman was inveigled into the automobile of 1 of the conspirators in Detroit and started toward the scene of his murder.
Defendant Lee further claims that the trial court erred in charging the jury that they could not find the defendants guilty of any of the lesser offenses and that their verdict must be either guilty of murder in the first degree or not guilty. The venue depended on the theory of the prosecution that the murder in Livingston county was committed in carrying out a conspiracy and that 1 act to accomplish the murder occurred in the city of Detroit. The necessary implication was that it was murder of the first degree. If it was found to be not murder of the first degree, in practical effect such finding would eliminate the theory of conspiracy in the form and manner relied on by the prosecution and there would be no offense of which the trial court could have venue. There was no error.
Defendant Lee claims that because we treated witness Dean as discredited, in People v. Hepner, 285 Mich 631, there is not sufficient testimony in the record in the instant case, to warrant the sustaining of a verdict of guilty. "While in the instant case there is not sufficient testimony to convict defendants Lee and' Bannerman without Dean’s testimony, yet the testimony of Dean herein is in several phases corroborated. Dean’s testimony, in the instant case, seems not so inconsistent as his testimony was found to he in the Hepner Case, supra. Dean’s testimony in the instant case gave details difficult to fabricate of the shooting of Coleman, and actions of the parties leading up to the shooting.
The record shows sufficient grounds for the jury’s belief that Dean was telling the actual truth as to. the murder of Coleman and the parties participating in the murder.
We do not conclude to set aside the verdict on the ground that it is not supported by sufficient testimony.
In each case, the conviction and judgment is affirmed.
Dethmers, Btjtzel, Carr, Bushnell, Sharpe, and Boyles, JJ., concurred.
North, C. J., did not participate in this decision.
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Sharpe, J.
Plaintiffs, Earl F. Jacox, Ruth C. Jacox, and Jacox Realty Corporation, began the instant chancery suit in the circuit court of Wayne county, to enjoin Charles M. Ziegler, State highway commissioner, from limiting or prohibiting plaintiffs from access over, from or to the northerly 33-foot strip' of property as described in thein bill of complaint, and from exercising any easement of right-of-way over the south 50 feet of the northerly 83 feet of plaintiffs’ property as a service road, until such time as defendant has acquired the title in fee simple of all service roads, and until such time as defendant has separated the grades of all intersecting county and State roads.
The following facts are agreed upon:
“Settled Case and Record
“1. Plaintiffs are the owners in fee of approximately 40 acres of land in the township of Van Burén, Wayne county, Michigan, situated about one-half mile from the city of Belleville and located at the southeast corner of the intersection of State trunk line highway M-112 abutting on the north and Belleville road, a county road, abutting on the west of the property.
“State trunk line highway M-112 is a 2.-lane highway, formerly called Chase road, a section line road, the center of which is the north boundary of plaintiffs’ property.
“2. That defendant is the duly elected and qualified highway commissioner of the State of Michigan.
“3. On or about May 25, 1950, defendant,-under his designated project No. 82-93, pursuant to the provisions of PA 1925, No 352, § 4, as amended, executed a “Notice of hearing on necessity,” wherein it was proposed to improve Chase road, named as state trunk line highway M-112, by constructing a service road between Belleville road at the west to Hannan road at the east over and across certain lands, including plaintiffs’ lands, designating therein 1 parcel of land 33 feet in width across the northerly end of plaintiffs’ property, to which title in fee simple was to be taken, said strip being part of Chase road, or M-112, and a second parcel 50 feet in width lying south of said 33-foot parcel and across plaintiffs’ property to which a highway easement was to bo taken. Project No. 82-93 includes M-112 from Belleville road on the west to Hannan road on the east, a distance of 2 miles.
. “4. On June 19, 1950, defendant made His determination of necessity and damages for taking such property, and thereafter, on June 28, 1950, duly recorded the same in the county of Wayne.
“5. On July 25, 1950, defendant filed his petition requesting the appointment of court commissioners with the probate court of Wayne county.
“6. Testimony affecting the parcels belonging to plaintiffs was commenced on. February 5, 1953, at which time an employee and engineer of defendant, C. IT. Brown, testified that in the proceedings then in question, it was the intention of defendant to establish a limited access highway of the 33-foot strip, title to which was being taken in fee simple, across the north end of plaintiffs’ property, over, from and to which plaintiffs were to be immediately limited and prohibited from having any access on account of their remaining property abutting on said highway, such limitation to be effected by a ditch, posts, or posts and cables; and that the 50-foot strip abutting and to the- south of said 33-foot strip across plaintiffs’ property, to which a highway easement was to be taken, was to be a service road, a gravel road to be used to serve the abutting, property owners, because access to the cement portion of the highway was to be limited to certain points, presently designated by defendant as Belleville road and Morton Taylor road. Such testimony further disclosed that the said 33-foot strip across the north end of plaintiffs’ property was then and still is approximately the south half of Chase road or the Expressway, so-called, and designated as Michigan State highway M-112, upon which is the eastbound paved lane of said highway.
“7. Such testimony further disclosed that said Belleville road running along-the west side of plaintiffs’ property, and also Morton Taylor road, 1 mile to the east of Belleville road, now intersect Michigan State highway M-112 at grade, and that it is not the intention of defendant in the present project No. 82-93 to separate the grades of Belleville road, and Morton Taylor road from the limited access highway, nor will the same he done for some extended period.
“8. Such testimony also disclosed that Belleville road and Morton Taylor road are county roads and not a part or portion of the proposed limited access highway system.
“9. Immediately upon the disclosure of such testimony, plaintiffs moved the probate court to dismiss the proceedings, but upon reference to the statute (CL 1948, § 213.189 [Stat Ann 1951 Cum Supp § 8.190]) under which such condemnation proceedings were brought, it was disclosed that no such authority rested in the probate court, and said motion was denied without objection. Whereupon the bill of complaint in this case to enjoin defendant from limiting plaintiffs’ access to Michigan State highway M-112, and particularly that part thereof being the north 33 feet of plaintiffs’ property, from the rest of plaintiffs’ property abutting thereon, and from exercising any easement of right of way over the 50-foot strip to the south of said 33-foot strip, until defendant had separated the grades from said proposed limited access highway of Belleville road and Morton Taylor road, and had acquired title in fee simple to service roads and other roads being a part of said limited access highway system, was filed by plaintiffs.
“10. The proceedings in the Wayne county probate court before the court commissioners have been adjourned pending the outcome of these proceedings.
“11. Oil the northwest corner of plaintiffs’ property, the same being the southeast corner of the intersection of Michigan State highway M-112 and Belleville road, plaintiffs in 1946 constructed a large service station, which is the last gasoline station between Belleville road and Wyoming avenue in Detroit along Michigan State highway M-112. Included -in the service station are a restaurant and bus and truck stop. Access to the station off M-112 is made at Belleville road from the eastbound lane of M-112. Access to the eastbound lane of M-112 from the station is at a point some hundreds of feet to the east of Belleville road. There are red and green stop and go traffic lights at the Belleville road intersection above the east and west traffic lanes of M-112. With limited access established, eastbound traffic would enter said station from M-112 by way of Belleville road and could not return to M-112 at a point some hundreds of feet east of the station as at present. It was stipulated at the hearing before the circuit court in this proceeding that there was injury and damage in sufficient amount to confer jurisdiction in the court so far as the amount of injury and damages are concerned, and further stipulated that Belleville road and Morton Taylor road, and Hannan road are county roads and not part of the proposed limited access highway system, and that they are not going to be separated as to grades in the immediately foreseeable future.”
Defendant filed an answer to plaintiffs’ bill of complaint, which contained a motion to dismiss the bill of complaint. The reasons stated in the motion to dismiss are as follows:
“1. The bill of complaint fails to state a cause of action.
“2. The determination of compensation for damages to plaintiffs’ property rests with the probate court of Wayne county under the provisions of PA 1925, No 352, as amended.
“3. No review of the determination of necessity by certiorari has been sought under the provisions of the aforesaid act, said determination having been made by defendant June 19, 1950.
“4. No objection to the petition for the appointment of court commissioners to fix compensation for
damages was made by plaintiffs in said probate court.
“5. Plaintiffs by tlieir aforesaid conduct have waived any and all objections sought to be raised by said bill of complaint.
“6. The provisions of said PA 1925, No 352, as amended, control the rights of the parties herein and a court of equity will not intervene where a specific and appropriate remedy is provided and available.”
On August 7,1951, the trial court entered a decree dismissing plaintiffs’ bill of complaint. Plaintiffs appeal and urge that they are entitled to an injunction against use of the 33 feet for limited access highway purposes until the grades of intersecting roads are separated, and an injunction against the use of the 50 feet until the fee is acquired.
Plaintiffs admit that a taking for limited access purpose is lawful and raise no question concerning the regularity of the procedure adopted to effectuate a taking by determination of necessity pursuant to sections 4, 5 and 6 of PA 1925, No 352, as amended (CL 1948, §§ 213.174, 213.175 and 213.176 [Stat Ann 1951 Cum Supp §§ 8.174, 8.176, 8.177]).
It is the position of defendant that the determination of necessity pursuant to PA 1925, No 352, § 4, as amended (CL. 1948, §213.174), coupled with the right of review by certiorari pursuant to PA 1925, No 352, § 27, as amended (CL 1948, § 213.197 [Stat Ann 1951 Cum Supp § 8.198]), is a prior judgment.
The right to review by certiorari is an adequate review of a determination of necessity; see Ziegel v. Genesee Board of County Road Commissioners, 241 Mich 161. Such right is the exclusive remedy under the statute, see Allen v. Rogers, 246 Mich 501. It follows that the determination of necessity of taking the lands described for limited access highway purposes is a judgment of the necessity of taking for such purposes. In the case at bar the notice of hearing in the condemnation case apprised plaintiffs that “it is proposed to improve State trunk-line highway M-112 by constructing a service road between Belleville and Hannan roads.” The property was designated as “the title in fee simple for limited access highway purposes, in, over and upon, all of the north 33 feet of the parcel of land” and including, “for a highway easement in, over, and upon all of the south 50 feet of the north 83 feet” of the same land as that from which the north 33 feet was to be required.
From the above it clearly appears that plaintiffs were notified of the fact that the State highway commissioner proposed to take certain lands for limited access highway purposes and to take an easement for the construction of a service road.
It also appears that plaintiffs in their suit in equity seek to adjudicate matters which were subject to adjudication in the condemnation case. The claim made by plaintiffs that they had no notice that “access to property” was to be taken, is without merit. In Sandusky Grain Co. v. Sanilac Circuit Judge, 184 Mich 126, we held that all defenses to the proposed taking must be made in the condemnation proceedings. Plaintiffs should have raised this issue in the condemnation proceedings. It now comes too late. See Farmers Fire Insurance Co. v. Johnston, 113 Mich 426.
The decree of the trial court is affirmed, with costs to defendant.
Dethmeks, Butzbl, Carr, Bushnell, Boyles, and Reid, JJ., concurred.
The late Chief Justice North did not sit.
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Bushnell, J.
Plaintiffs Sadik Jaup and Clara Jaup entered into an agreement with defendant Charles M. Olmstead in September of 1949, to purchase 2 stores in the city of Detroit. This agreement stated in part:
“It is understood that the partitions and 2 gas heating plants (are considered as part of the purchase price and shall remain on this property).”
In October, Olmstead conveyed the' property to plaintiffs. He remained in possession as a tenant of plaintiffs until September of 1950, when he vacated the premises. Plaintiffs charge that when he did so he “took with him portions of the heating unit plants, without right or lawful authority, and then fraudulently had this gas unit and services transferred to his new place of occupancy and the gas heat then was removed from the premises that was purchased by the plaintiffs from the defendant.”
Plaintiffs further charge:
“That as a consequence of this unlawful conversion and as a consequence of the breach of the contract and fraud on the part 'of the defendant, Charles M. Olmstead, the Michigan Consolidated G-as Company has refused and will not furnish any gas heat until these units removed by the defendant are restored to the plaintiffs’ premises, as well as a direction by the defendant that the unit and the gas service belong to the plaintiffs rather than to the defendant covering the above described premises.”
Michigan Consolidated G-as Company was joined as a defendant for the reason that it. had, under order of the Michigan Public Service Commission, discontinued selling gas and servicing gas heaters for any new customers.- Since the gas company had a monopoly in the area, plaintiffs were unable to obtain gas after the removal of the heating plant.
Plaintiffs sought a preliminary order to show cause and a final order directing Olmstead to return the heating units and directing the gas company to restore the service. They also asked for the damages resulting from the breach of Olmstead’s agreement.
The judge who heard the order to show cause denied Olmstead’s motion to dismiss, ordered the return of the heating units, and issued a temporary injunction against the gas company. This order recited that if plaintiffs were obliged to purchase new heating units, the gas company should service them.
The pretrial statement indicates that plaintiffs thereafter purchased new equipment which, apparently under the first order, is being serviced by the gas company. The trial judge, however, entered a final order dismissing plaintiffs’ action on the ground that their hill lacked equity and their rights, if any, were enforceable on the law side of the court.
The controlling question presented on appeal is whether plaintiffs’ bill of complaint presents a case for equitable relief.
Under the circumstances. recited in the bill and answer, plaintiffs did not have an adequate and comT píete remedy at law. An action in replevin might have resulted in their regaining possession of' the heating units, but neither that action nor one for damages for breach of contract would secure the relief essential to the operations of the stores, viz., the right to obtain heating gas. The court of law could not require the gas company to furnish service.
“Where the remedy at law is not plain, adequate and complete, but is difficult or doubtful, equity will entertain jurisdiction.” Multiplex Concrete Machinery Co. v. Saxer, 310 Mich 243, 258, and authorities there cited.
See, also, Steggles v. National Discount Corporation, 326 Mich 44, 49 (15 ALR2d 208).
Plaintiffs’ bill is in the nature of an action for specific performance of a contract to sell personal property. Generally, specific performance is not decreed where the subject matter of the contract is personalty. However, if the specific property is not obtainable on the market and damages will not provide adequate compensation, equity may take jurisdiction. Cole v. Cole Realty Co., 169 Mich 347, 351; Gallagher v. Studebaker Corporation, 236 Mich 195. Here the right to possession of the heating units determined the right to the gas service, which was otherwise unobtainable. Plaintiffs’ bill of complaint, therefore, presented a case for equitable relief.
The order is vacated and the cause is remanded for further proceedings not inconsistent with this opinion. Costs to appellants, but only against defendant Olmstead.
Dethmers, Butzel, Carr, Sharpe, Boyles, and Reid, JJ., concurred.
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Butzbl, J.
Frank G. Millard, attorney general of the State of Michigan, plaintiff, brings original quo warranto proceedings in this Court to determine the right of Ralph B. Guy, defendant, to' the occupation of the office of municipal judge in the city of Dear-born, Wayne county. The following facts are conceded. The city of Dearborn has been organized under the home-rule act (PA 1909, No 279, as amended [CL 1948, § 117.1 et seq. (Stat Ann 1949 Rev § 5.2071 et seq.) ]) since January 9,1929. A new charter was adopted for the city in 1942. Chapter 10 thereof created the judicial department of the city of Dear-born and provided that there should be 2 justices of the peace having certain powers and administrative responsibilities - in accordance with sections 28 through 33 of the home-rule act (CL 1948, §§ 117.28-117.33 [Stat Ann 1949 Rev §§ 5.2107-5.2113]).
In 1945 by charter amendment the judicial department was brought under the municipal court act (PA 1933, No 269 [CL 1948, § 730.101 et seq. (Stat Ann and Stat Ann 1951 Cum Supp §27.3831 et seq.)]). In accordance therewith, there were created 2 mu nicipal judges in place of the previous justices of the peace and thereafter 2 judges have acted as municipal court judges of the municipal court of Dearborn.
An initiatory petition setting forth the newly proposed amendments to sections 10.2, 10.10 and. 10.17 of chapter 10 of the charter, as amended in 1945, was circulated in July, 1951, and after securing the opinion of the attorney general of the State of Michigan that the amendments were proper they were placed on the ballot. The amendment was approved by the electorate. For purposes of clarity we set out such sections in full. As first amended at the 1945 election, they read as follows:
“Sec. 10.2. At the regular municipal election in the year 1945 and every 4 years thereafter, there shall be elected 2 municipal judges whose terms of office shall begin on the 4th day of July following their election, and who shall hold office for 4 years; provided, however, that the justices of the peace heretofore elected or appointed, and now holding office, shall be the municipal judges of said court and shall hold office for the remainder of the terms for which they were respectively elected or appointed. * * *
“Sec. 10.10. Until otherwise changed by a charter amendment the municipal judges shall each receive a salary of $6,500 per annum, and shall be required to devote their entire time during office hours to the duties of their offices. The salaries herein provided for the municipal judges shall be in lieu of all fees, costs and charges to which said judges would be entitled but for the provisions of this section, except fees for the performance of marriage ceremonies, and for administering oaths in matters not connected with suits or proceedings in the municipal court in said city. * ■ * *
“Sec. 10.17. The words, ‘justice of the peace,’ and ‘justices of the peace,’ wherever the same may appear in other chapters of this charter shall be eon strued to mean ‘municipal judge,’ or ‘municipal judges,’ as the case may be.”
The amendments enacted in 1951 amended these sections so as to provide as follows:
“Sec. 10.2. At the regular municipal election in the year 1955 and every 6 years thereafter, there shall be elected 1 municipal judge and 1 associate municipal judge whose terms of office shall begin on the fourth day of July following their election, and who shall hold office for 6 years; provided, however, that the municipal judge heretofore elected and now holding office shall be the municipal judge and shall hold office for the remainder of the term for which he was 'elected; and provided moreover that the municipal judge heretofore appointed and now holding office shall be the associate municipal judge and shall hold office as such until an associate municipal judge is elected in the spring election held in the city of Dear-born in the year 1953. The associate municipal judge so elected in the said spring election in 1953 shall immediately assume office following his election, and shall hold office until the fourth of July, 1956.
“Sec. 10.10. Until otherwise changed by a charter amendment, the municipal judge shall receive a salary of $6,500 per annum, and shall be required to devote his entire time during office hours to the duties of his office. The associate municipal judge shall receive $1,000 per annum and such additional compensation as the council may by ordinance provide and shall be required to devote not less than 50 full days or 100 half days per year to the duties of his office. If the work of the court shall require, upon recommendation of the municipal judge, the council shall provide that the associate municipal judge shall sit any number of additional days, or half days, for which he shall receive such compensation as the council may by ordinance or resolution provide. The associate municipal judge shall hear all cases in which the municipal judge' is disqualified and shall hold "court in the absence, disability or on direction of the municipal judge.
“The compensation provided for the municipal judge and the associate municipal judge shall be in lieu of all fees, costs, and charges to which said judges would otherwise be entitled, except fees for the performance of marriage ceremonies, and for administering oaths in matters not connected with suits or proceedings in said city.
“Sec. 10.17. Whenever in this chapter the term ‘municipal judges’ is used, it shall include both the municipal judge and the associate municipal judge. In all his official acts and in all court proceedings, the associate municipal judge shall be designated as ‘municipal judge,’ the word ‘associate’ being herein used to distinguish between the municipal judge required to devote full time and the one required to devote partial time to the duties of his office.
“Whenever the words ‘justice of the peace’ and ‘justices of the peace’ may appear in other chapters of this charter, they shall be construed to mean ‘municipal judge’ or ‘municipal judges’ as the case may be.”
Messrs. George A. Belding and George T. Martin were elected for 6-year terms as municipal judges of Dearborn, such terms to begin July 4, 1950, and to expire July 4, 1956. On May 15, 1951, with 5 years left of his term, Judge Belding" resigned. On May 18, 1951, defendant Ralph B. Guy was appointed by the city council to fill.the vacancy. This appointment was made pursuant to the municipal court act, supra, section 2, being CL 1948, § 730.102 (Stat Ann 1951 Cum Supp § 27.3832), under which his appointment was to run until July 4, 1953, at which time the next regular spring election’s successful candidate toot office. The person who won that spring election would then serve until July 4,1956, at which time the election of a judge and associate judge would be held in the usual manner. The reference in the amend ment to the “municipal judge heretofore elected and now holding office” is thus a reference to Judge Martin ; and the reference to the “municipal judge heretofore appointed” is a reference to defendant. The effect of the amendment thus would be to constitute defendant the new associate judge, with the duties and salary as set forth in the amendment of 1951.
It is agreed that defendant, upon the advice of the corporation counsel of the city of Dearborn and although the amendment distinctly states it was an “economy” measure, has refused to surrender his position, title, prerogatives and duties as a municipal judge and has likewise failed to assume the office of associate judge in accordance with the provisions of the amended charter.
Counsel for defendant dispute the motives and the wisdom of the amendment in question. Suffice it for us to say that our determination must go only to its constitutionality; its propriety is a question for the voters of Dearborn.
Defendant contends that he is properly entitled to the office of municipal judge as the questioned' charter amendments are either invalid insofar as; they purport to take effect before July 1, 1953, or fatally defective because of other alleged defects; therein. He contends that the amendment, if construed to take effect immediately, has the effect of reducing the salary and term of a municipal judge • contrary to the Michigan Constitution and the home-rule cities act; that the amendments represent an illegal delegation of power to the remaining municipal judge; that the associate judges act (PA 1947, No 109 [CL 1948, § 730.321 et seq. (Stat Ann 1951 Cum Supp § 27.4071 et seg.)]) under the authority of which the amendment was framed does not permit a reduction in the number of full-time municipal judges; that the selection by the voters of a specified individual for an interim position was improper as the only means provided by statute was appointment; and that the method of selection of the associate judge was improper being contrary in several respects to the general election laws.
Defendant contends that the questioned amendment has the effect of changing the salary and term of a public officer contrary to the Constitution of Michigan and to the home-rule act, under which Dear-born is organized, if it be held to take effect immediately upon passage of the amendment and before the spring election at which his term would have expired.
Article 16, § 3, Constitution of 1908,- reads as follows:
“Neither the legislature nor any municipal authority shall grant or authorize extra compensation to any public officer, agent, employee or contractor after the service has been rendered or the contract entered into. Salaries of public officers, except circuit judges, shall not be increased, nor shall the salary of any public officer be decreased, after election or appointment.”
The home-rule act, section 5 (CL 1948, § 117.5 [Stat Ann 1949 Rev § 5.2084]), also provides:
“No city shall have power * * *
“(d) To change the salary or emoluments of any public official after his election or appointment or during his term of office; nor shall the term of any public official be shortened or extended beyond the period for which he was elected or appointed, unless he resign or be removed for cause, where such office is held for a fixed term.”
We believe that an intent that the charter amendment is to take immediate effect may be gleaned from that portion of the amendment which provides:
“The municipal judge heretofore appointed and now holding office shall be the associate municipal judge and shall hold office as such until an associate municipal judge is elected in the spring election held in the city of Dearborn in the year 1953.” (Italics ours.)
If the amendment took immediate effect, therefore, and did not abolish the office of municipal judge substituting therefor a new office, that of associate judge, defendant claims the Constitution and statute have been violated.
The office of municipal judge is not a constitutional one. It was created by charter amendment pursuant to provisions of the statutes of Michigan, under legislative authority, and can be legally abolished in the same manner. It need not be abolished by a constitutional amendment. This seems not to be disputed by defendant. Counsel also agree that public offices may be abolished and that no office holder has a contractual right thereto. Sprister v. City of Sturgis, 242 Mich 68. It is not necessary to use actual words of abolition or their equivalent to eliminate or abolish a public office when the only proper reading of the amendment as a whole shows such purpose. The-prime issue thus is whether the office of municipal judge held by defendant was abolished by such amendment or whether it constituted merely a reduction in the salary, term, duties and authority of defendant’s office.
The offices of municipal judge and associate municipal judge, even though it may be claimed carry the same jurisdiction and title for purposes of court procedure, are not the same. The associate judge works only part time and is permitted to practice law on the side; the municipal judge is required to devote his full time to the office and may not practice law. The associate judge is subject to the authority of the municipal judge, who has full-time responsibility for the conduct of the municipal court. The office of associate municipal judge is established un der the associate judges act; the office of municipal judge under the municipal court act. Defendant contends that the intent of the amendment is not clear and claims that the proposition submitted to the voters on the ballot was somewhat ambiguous. However, all voters must be held to have been familiar with the terms of the somewhat lengthy charter amendments when they voted in strict accordance with the usual procedure for charter amendments. The amendments themselves make it clear and not ambiguous that an entirely different office was contemplated for defendant and that Judge Martin was to continue in his office without change, except with some additional authority.
"We find that the amendment provided for a bona fide abolition of the office of one municipal judge to take effect immediately upon the passage thereof.
The amended section 10.10 provides partly as follows :
“If the work of the court shall require, upon the recommendation of the municipal judge, the council shall provide that the associate municipal judge shall sit any number of additional days, or half days, for which he shall receive such compensation as the council may by ordinance or resolution provide. The associate municipal judge shall hear all cases in which the municipal judge is disqualified, and shall hold court in the absence, disability or on direction of the municipal judge.”
Defendant contends that the foregoing provision concerning* the recommendations of the municipal' judge makes them a condition precedent to legislative action and is, therefore, invalid as it represents a delegation of power of the city budget to a person not the legislative body provided for under the home-rule act. However, we do not find that there is any illegal delegation of power. As a presiding judge, the municipal judge would normally be given the right of recommendation as an additional means of supervising the work of the court. The council of the city of Dearborn is given the sole power to provide compensation for extra work and is thus vested with the legislative authority and has the power to act upon the recommendation as it sees fit.
Defendant also contends that the words “on direction” make it possible for the municipal judge to dictate to his colleague and as such are contrary to section 6 of the associate judges act (CL 1948, § 730.326 [Stat Ann 1951 Cum Supp § 27.4076]) which reads:
“The compensation of associate judges, the time and manner of payment of same, the funds from which same shall be paid and the time or times they "shall be required to devote to the duties of the office, maybe determined either by charter or ordinance.”
The administrative responsibility of the municipal judge is such as to properly permit him to direct the details of the docket of the municipal court. The charter sets out the compensation and duties of the associate judge extensively but the exact handling and assignment of cases is an administrative résponsibility which by its nature must be delegated. It would be a most unnatural relationship 'if the associate judge should take no instructions or directions from the full-time municipal judge who has the duty and responsibility of supervising the work of the court.
Defendant contends that the associate judges act does not permit a reduction in the number of full-time municipal judges, only an addition thereto. However, an examination of the statute reveals no requirement that there be more than one municipal judge functioning full time, for section 1 thereof (CL 1948, §730.321 [Stat Ann 1951 Cum Supp § 27.4071]) provides: - • -
“Aliy city having a justice or municipal court, or any court in which the justice or judge, or justices or judges, as the case may be * * * may by charter or by ordinance provide for the election of 1 dr more associate justices or associate judges of such court.”
Neither is there embodied in the associate judges act any prohibition against the abolishment of the office of one or more full-time municipal judges. It in no way limits the right of the city under the home-rule act, section 21 thereof, to amend its charter by initiatory petition of the electors and approved by a majority adoption thereof. In the municipal court act it is provided that a municipality may establish a municipal court by charter amendment, and it follows that changes in the structure of the municipal court are also made by charter amendment. Nothing in the municipal court act prevents an increase or decrease in the number of municipal judges in a municipality although its provisions may first be brought to bear only in a municipality with 2 justices.
"We conclude, therefore, that neither the associate judges act nor the municipal court act can be construed to limit the right of the city to reduce the number of its full-time judges, whether or not this is done concurrently with the establishment of the new office of associate judge.
Defendant contends that the election of an individual (in this case, himself) to an interim position was improper as the municipal court act and associate justices act provide for the appointment of an individual to an interim position by the city council and by no other. The associate judges act provides:
“Sec. 5. In any city having 1 judge, or having more than 1 judge all of whom are elected at the same time, the associates shall be elected at the same time as the judge or judges.” (CL 1948, §730.325 [Stat Ann 1951 Cum Supp § 27.4075])
“Sec. 7. The legislative body of any city whose charter is amended to provide for the election of 1 or more associate judges as provided for in this act or which shall-by ordinance provide therefor shall appoint an associate judge or judges to serve until such are elected.” (CL 1948, §730.327 [Stat Ann 1951 Cum Supp § 27.4077])
The municipal court act provides:
“Sec. 2. * * * Whenever a vacancy shall occur in the office of any judge of any such court by death, resignation, removal from office or from any other cause, such vacancy shall be filled by appointment by the legislative body of such city. Each judge so appointed shall assume office immediately following his appointment, and shall hold the same until his successor has been elected and has qualified. Successors to any judge or judges so appointed shall be nominated and elected at the next spring election held in such city following such appointment, and such successor or successors shall hold office until the expiration of the term to which' such judge or judges removed from office by death, resignation, or otherwise,-was elected.” (CL 1948, §730.102 [Stat Ann 1951 Cum Supp § 27.3832])
“Sec. 3. The qualifications, term of office, time and manner of election * * * shall be goyerned by the provisions of existing laws relating to justices of the peace in such cities.” (CL 1948, § 730.103 [Stat Ann 1951 Cum Supp § 27.3833])
The term of Judge Martin, the remaining municipal judge, expires July 4, 1956. Applying the provisions of the municipal court act to the associate judges act it appears that it was contemplated that first, the associate judge be appointed; that at. the next spring election an associate judge should be elected for the remainder of the term; and that, in 1956 an associate judge should be elected to a full term contemporaneously with the new term of the full-term municipal judge. Was this procedure followed by this charter amendment? Defendant argues that the “legislative body of such city” can only mean the city council, and that the choice by the electors was therefore invalid.
In certain instances the voters themselves may constitute the legislative body for purposes of appointment of city officials. In People, ex rel. Brown, v. Parsons, 200 Mich 39, we referred to the electorate of the city of Lansing as the “legislative body” in a construction of the charter thereof. In Lewicki v. Matulewicz, 321 Mich 388, appointment by the voters through the medium of a system of civil service was authorized instead of appointment under provisions nonapplicable to a home-rule city. In Streat v. Vermilya, 268 Mich 1, we considered an attempt to enjoin the election of city officers of Flint under a pro.posed charter at a special election. The intent was to create city officers under the proposed charter and at the'same time to provide who should fill such city offices. We'held (at page 7):
“In the' absence of constitutional prohibition or legislative limitation it was the right and the duty of the electors of the city to provide for the election of officers under the proposed charter to take office in case of its adoption. Recourse is had to the electors of the city.
“‘According to the'theory of our government, the sovereign power is in the people.’ In re Spangler, 11 Mich 298, 308. * * *
. “As a necessary incident to the broad powers expressly granted by the Constitution and the home-rule act for cities to the electors of a city, the electors of the city of . Flint have the implied power to provide for the effective functioning of the new government under the proposed charter, if adopted, because the greater power necessarily includes the lesser.”
We believe that it was within the powers of the voters to make the appointment directly instead of doing so through their representatives, the city council, in this particular instance. In creating the new office of associate municipal judge, the electorate of Dearborn, like that of Flint in the Streat Case had the right to exercise their "sovereign power by providing for the person who should hold the office in the event the charter amendment should be adopted.
The selection of Judge Guy as an interim appointee to the office of associate judge by the voters of Dearborn was not an election within the meaning of the general election laws. Consequently, we need not consider defendant’s contention that the passage of the charter amendment was in violation of State election laws when it attempted to name Judge Guy to the interim position.
We hold that defendant has no right to the office of municipal judge and that a judgment will be -entered accordingly. No costs, a public question being involved.
Dethmers, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
The late Chief Justice North did not sit. | [
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Plaintiff was employed as an attendant in a gasoline station. Defendant drove his automobile to the station to have its hydraulic brakes repaired. Plaintiff’s employer examined them outside the station and then turned the job over to plaintiff, telling him that either the fluid had leaked from the hydraulic system or the latter needed bleeding to remove accumulated air. Plaintiff testified that he examined the automobile, still outside the station, and found a little brake fluid present; that if there were any fluid to be seen there would still be a full brake, and that if the difficulty were due-to air in the lines then pumping the- brake pedal 3 or-4 times would stop a car going at a “slow gait.” Plaintiff further testified that he “knew the brakes were practically gone when the car came there;” that his employer told him defendant “didn’t have any brakes on that carthat he got in the car and manipulated the brake pedal and then told a bystander that he got no pressure when pumping the pedal; that he knew the brakes were in bad shape; that he knew that if the automobile were driven onto a hoist there was a possibility of its not stopping and that he might have to step in front of the car to stop it himself.
After such examination, and with such knowledge of the condition of the brakes, plaintiff told defendant to drive the automobile over a hoist located inside the station. Defendant maneuvered his automobile into a position directly in front of and about 35 feet from the entrance. The hoist was of a character such that safety required very accurate aligning of the car thereon. It was necessary and the customary practice for the attendant to place himself in the path of the car to guide the driver over the hoist. For that purpose plaintiff walked into the station and stood on a crossbar at the center of the hoist, facing defendant’s car. Defendant proceeded forward toward the entrance at a “creeping” or “crawling” rate of speed, plaintiff directing his progress to right or left by manual motions until defendant reached a point 10 to 15 feet from the entrance. It was necessary and customary for the attendant then to take a position in front of and at the far end of the hoist in order to continue guiding the driver. Consequently, plaintiff waved to defendant to come on in, told him to take it easy, turned to one side and stepped down off the hoist onto the floor next to it. Defendant’s car meanwhile jerked forward to a speed of from 5 to 7 miles per hour. Plaintiff then walked, with his hack to defendant, from the center crossbar along the right side of the hoist to a position opposite the front thereof and thereupon turned to his left and walked in front of the hoist. Prom the time he left the crossbar until he placed himself in front of the hoist he never looked at defendant’s approaching car. When plaintiff reached a point approximately at the center of the front of the hoist he turned to face defendant’s car and found that it had then just about covered the hoist and was but 4 or 5 feet from him, coming too fast for plaintiff to get away. He just had time to holler “Stop” and to jump up, whereupon, there being no device in front of the hoist to stop the car, plaintiff was struck and pinned against a bench, causing him the injuries for which this suit is brought.
The trial court directed a verdict for defendant on the ground that plaintiff was guilty of contributory negligence as a matter of law in failing to maintain a lookout for defendant’s car and in stepping in front of it without looking to see where it was or at what speed it was approaching.
Plaintiff contends that the question of his contributory negligence was one of fact for the jury. A considerable portion of his brief is devoted to the proposition that it was not negligent to stand on or in front of the hoist to guide the approaching automobile because such action was both necessary and customary. There is no evidence, nor could there well be, that it was necessary or customary for an attendant to step from a position of safety alongside the hoist to a position of danger in front of it without making any observations of the approaching automobile or taking any precautions for his own safety. Granting plaintiff’s contention that he had a right to rely on the assumption that defendant would drive over the hoist at a slow rate of speed and in a careful and prudent manner, that right was not absolute so as to relieve plaintiff from the duty of taking heed for his own safety. Dahlerup v. Railroad Co., 319 Mich 96; Union Trust Co. v. Railway Co., 239 Mich 97 (66 ALR 1515); Paquette v. Consumers Power Co., 316 Mich 501. Viewing the testimony in the light most favorable to plaintiff, the fact still remains that plaintiff knew that the automobile was approaching over the hoist, that its brakes were defective, that there was a possibility that the automobile would not stop when it got over the hoist, and that there was nothing in front of the hoist to stop it so that he might have to stop it himself. Knowing all this, plaintiff, nevertheless, without looking or taking any precautions for his own safety whatsoever, stepped into what he knew or should have known was a position of danger in front of the approaching car. In so doing he was guilty of contributory negligence as a matter of law. Dahlerup v. Railroad Co., supra; Selman v. City of Detroit, 283 Mich 413; Johnson v. City of Pontiac, 276 Mich 103; Rice v. Goodspeed Real Estate Co., 254 Mich 49; Evans v. Orttenburger, 242 Mich 57; Malone v. Vining, 313 Mich 315; Beers v. Arnot, 308 Mich 604; Sloan v. Ambrose, 300 Mich 188; Kerr v. Hayes, 250 Mich 19; Smith v. Ormiston, 242 Mich 600.
Plaintiff had acquired over, a year’s experience as an attendant in this station, revealed a comprehensive knowledge of brakes, and admitted that he knew the car might not stop at the end of the hoist. The fact that he was not yet of full age, but only 18 years of age, does not serve, under such circumstances, to make the question of his contributory negligence one of fact for the jury. Zebell v. Buck, 263 Mich 93. For cases in which children considerably younger than plaintiff were held guilty of .con- tributary negligence as a matter of law for stepping into the paths of oncoming vehicles without having made due observation, see Trudell v. Railway Co., 126 Mich 73 (53 LRA 271); Stahl v. Railroad Co., 227 Mich 469; Brinker v. Tobin, 278 Mich 42; Ackerman v. Advance Petroleum Transport, Inc., 304 Mich 96.
Plaintiff urges that irrespective of contributory negligence on his part he should have been permitted “to go to the jury under the last clear chance, or subsequent negligence, doctrine.” In Sloan v. Ambrose, supra, this Court said:
“To apply the theory of subsequent negligence, plaintiff’s negligence must have put him in a position of danger, have left him there, and have ceased to operate as the proximate cause of the accident and defendant must have discovered plaintiff’s peril in time to have been able to avoid the accident and have failed to do so, so that defendant’s negligence operates as the proximate cause of the accident. * * * When the driver saw the peril that plaintiff was in, it was too late to avoid the accident.”
To the same effect, see Mallory v. Pitcairn, 307 Mich 40; Davidson v. City of Detroit, 307 Mich 420; Morrison v. Hall, 314 Mich 522. No proofs were adduced from which it might be concluded that there was any reason for defendant to anticipate, while plaintiff was walking along the right side of the hoist, that he would turn and step in front of it without looking or taking heed for his own safety. There was no evidence to go to the jury from which it could properly have determined that after plaintiff had placed himself in such position of peril, let alone after defendant had discovered, or in the exercise of ordinary care should have discovered, plaintiff in that position, defendant had time sufficient, with the means at hand, to avoid the accident. Defendant was not shown to have proceeded in wilful and wanton disregard of discovered peril rendering Mm guilty of gross negligence.
Affirmed, with, costs to defendant.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Butzel, and Carr, JJ., concurred. | [
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Swainson, J.
On March 27, 1964, Jennifer Jones, aged ten, was taken by her mother, Hazel O’Banner, to see Dr. George Logwood, the family dentist. Dr. Logwood informed Mrs. O’Banner that Jennifer needed oral surgery and referred her to defendants’ clinic. On Saturday, March 28, 1964, Mrs. O’Banner and Jennifer went to defendants’ clinic between 8:00 and 8:30 a.m. They were asked by the receptionist if they had an appointment and they replied that they did not. The receptionist informed them that the clinic was quite busy and that they would not be able to take Jennifer until after lunch. Mrs. O’Banner was then given a white piece of paper to fill out, which she did. She returned the paper to the receptionist.
Plaintiff and her mother then went to a friend’s house in the neighborhood, where they remained until approximately 11:15 a.m. Jennifer said she was hungry, and they stopped at a restaurant about a block from the clinic where Jennifer had a hamburger, a coke, and custard cream pie. They finished eating about 12:45 p.m., and walked back to the clinic. Jennifer was called by the receptionist at approximately 1:50 p.m. Mrs. O’Banner testified that when Jennifer was taken from the reception room to the room where the extractions were to be performed, she was crying and shaking and very agitated. She testified that Jennifer was not given any examination and that neither her blood pressure nor her temperature was taken. The only question the doctor asked upon first seeing Jennifer was why she was crying.
An injection of methol hexitol was administered by Dr. Attenson, in order to induce general anesthesia. Two teeth were removed by Dr. Attenson, which took one and one-half to two minutes. After the extractions, Jennifer suffered a cardiac arrest and stopped breathing. Resuscitative measures were instituted immediately and plaintiff’s heart was started again. It was not until evening that Jennifer was transferred to Sinai Hospital by ambulance. She remained in a coma for ten weeks. Jennifer suffered permanent brain damage, impaired functioning of her arms and legs, body tremors, and a speech defect. Defendants do not dispute the fact that Jennifer sustained extensive damage.
Plaintiff’s complaint, filed on February 27, 1969, alleged malpractice on the part of defendants in administering to plaintiff a general anesthetic after she had ingested a meal and, alternatively, that no premedication was administered prior to the anesthetic, which caused plaintiff to remain over-excited and induced her to go into shock brought on by the general anesthetic.
At the trial, plaintiff’s attorney attempted to cross-examine Dr. Attenson by reading excerpts from textbooks which Dr. Attenson testified he recognized as authoritative. It is conceded that Dr. Attenson had not relied upon these textbooks as authority for answers to previous questions, and the trial court, relying on previous Michigan Supreme Court decisions, refused to permit such cross-examination. The jury returned a verdict of no cause of action. In view of the importance of the issue involved, we granted leave to appeal prior to decision by the Court of Appeals. 384 Mich 760.
Plaintiff lists 13 issues on appeal. The key issue is whether the trial court committed reversible error in refusing to allow plaintiff’s counsel the right to use standard medical textbooks in cross-examining an expert witness when the expert witness recognized the textbooks as authoritative? The other issues, which will be considered together, concern whether the trial court made prejudicial rulings so as to unfairly prejudice plaintiff and to require a new trial?
I.
THE MICHIGAN RULE
The first Michigan case dealing with this issue of reading textbooks to the jury was People v Hall, 48 Mich 482, 490-491 (1882). Defendant Hall had been tried and convicted of murder. On appeal, the Supreme Court reversed. The Court held that it was improper to read medical books to the jury. Justice Campbell, speaking for the Court, stated:
"We observe that resort was had to reading medical books to the jury, the record not showing, however, what matters were thus laid before them. If this was anything it was evidence, and probably evidence which was used with some effect. The practice is not permissible. Scientific or expert testimony must be given by living witnesses who can be cross-examined concerning their means of knowledge and can explain in language open to general comprehension what is necessary for the jury to know. * * * The cases must be very rare in which any but an educated physician could understand detached passages at all, or know how much credit was due to either the author in general or to particular parts of his book. If jurors could be safely trusted with the interpretation of such books, it is hard to see on what principal living witnesses would be required. Scientific men are supposed to be able from their study and experience to give the general results accepted by the scientific world, and the extent of their knowledge is tested by their personal examination. But the continued changes of view brought about by new discoveries in most matters of science, and the necessary assumption by scientific writers of some technical knowledge in their readers, render the use of such works before juries —especially in detached portions and selected passages —not only misleading but dangerous. The weight of authority as well as of reason is against their reception.”
Thus was stated the rule that medical textbooks could not be read to a jury as direct evidence. The rule was at that time accepted by all states except Alabama. However, the reasoning used in Hall, which concerned reading extracts to the jury on direct examination, was applied in later cases to varying fact situations.
The next Michigan case to deal with this issue was Pinney v Cahill, 48 Mich 584 (1882). This has long been cited as one of the leading cases on the subject. Cahill had hired plaintiffs horse and the animal became sick and died. Plaintiff filed suit for damages. The Supreme Court affirmed the jury’s verdict in favor of defendant. Plaintiff’s expert witness, a veterinary surgeon, stated that colic (from which the horse died) was caused by over-driving and feeding when the animal was too warm; that all works of good authority spoke of it, and that Modern Horse Doctor was a work of that kind. Defendant, over plaintiffs objection, introduced a statement from the book tending to discredit plaintiffs expert’s statement. The trial court held that this was not error. The Supreme Court stated (pp 586-587):
"The rule is acknowledged in this State that medical books are not admissible as a substantive medium of proof of the facts they set forth. But the matter in question was not adduced with any such view. The witness assumed to be a person versed in veterinary science; to be familiar with the best books which treat of it and among others with the work of Dodd. He professed himself qualified to give an opinion to the jury from the witness stand on the ailment of the plaintiffs horse and its cause, and the drift of his opinion was to connect the defendant with that ailment. He borrowed credit for the accuracy of his statement by referring his learning to the books before mentioned and by implying that he echoed the standard authorities like Dodd. Under the circumstances it was not improper to resort to the book, not to prove the facts it contained, but to disprove the statement of the witness and enable the jury to see that the book did not contain what he had ascribed to it. The final purpose was to disparage the opinion of the witness and hinder the jury from being imposed upon by a false light. The case is a clear exception to the rule which forbids the reading of books of inductive science as affirmative evidence of the facts treated of. Ripon v Bittel, 30 Wis 614 (1872); 2 Whart. Ev. § 666.”
Two factors of this decision are significant: First, the Court stated, "The final purpose was to disparage the opinion of the witness and hinder the jury from being imposed upon by a false light.” Thus, the Court recognized that the attempt to discredit the witness was a legitimate purpose in the use of textbooks. Second, the Court said: "The case is a clear exception to the rule which forbids the reading of books of inductive science as affirmative evidence of the facts treated of.” By stating that this was "a clear exception,” the Court recognized that there could be other exceptions to the rule.
In Marshall v Brown, 50 Mich 148 (1883), plaintiff had sued defendant, a druggist, for negligence in giving her sulphate of zinc instead of Epsom salts. She recovered at her first trial and the Supreme Court reversed. On retrial, she again recovered a verdict, and the Supreme Court again reversed. The Court stated (p 150):
"One error occurred, however, which it is impossible to overlook. It was decided in People v Hall, 48 Mich 486 (1882), that it was not competent to read professional books to the jury as evidence. The decision had not been made when this case was tried the second time; if it had been the error now complained of would, probably, not have been committed.
"On the cross-examination of Dr. Wood, a witness for the defendant, he was asked if he was acquainted with a certain book. He replied that he had heard of it but had not read it. He was then asked, whether it was considered good authority, and he said it was. He was then requested to read a certain paragraph during the recess of the court. When the court convened again, he was recalled and counsel reading from the book the paragraph to which his attention had been called, asked him whether there was a case reported of taking sulphate of zinc, followed by vomiting, purging, and death? As this was what the paragraph stated, the evident purpose of the question was to put the passage from the book in this indirect manner before the jury, instead of reading from it directly. The witness demurred to this method of examination, but was required to answer and did so.
"The case differs from Pinney v. Cahill, 48 Mich 584 (1882), where a medical book was produced to contradict a witness who professed to be testifying from it.”
The Court thus extended the doctrine of People v Hall which dealt with substantive evidence on direct examination to cases involving cross-examination without any discussion as to whether the reasoning should apply in such situation.
The next case dealing with this issue was People v Millard, 53 Mich 63 (1884). The Court, in excluding excerpts from medical books, pointed out that these excerpts were introduced on direct examination as well as on cross-examination. Thus, to the extent that the excerpts were introduced on direct examination, the Court properly followed the rule laid down in People v Hall. However, it could not be precedent for the view that medical excerpts could not be introduced on cross-examination to test the knowledge of witnesses. A close reading of People v Millard primarily indicates the Court’s concern that textbooks which were not really authoritative on the subject would be introduced in evidence.
In People v Vanderhoof, 71 Mich 158, 179-180 (1888), the Court, in following the rule laid down in earlier cases, recognized the unfair burden that it placed upon the party opposed to the experts, by stating:
"We do not find any error in the rulings as to medical books. The court seems to have followed as consistently as possible the rulings of this Court. See Pinney v. Cahill, 48 Mich. 584 (12 N.W. Rep. 862) [1882]; Marshall v. Brown, 50 Id. 148 (15 N.W. Rep. 55) [1883]; People v. Millard, 53 Id. 77 (18 N.W. Rep. 562) [1884],
"The expert has, or may take, perhaps, advantage of his position, under these authorities, and state that his opinion is derived from standard works; and if he fails to remember what particular books he has read, or what particular books he has culled his authority from, there is, under the previous decisions of this Court, no way in which to contradict the assertion he makes. But it is the settled law of this State that the contents of medical books cannot be got before the jury, unless, as in the case of Pinney v. Cahill, supra, the expert is unwise enough to state that a certain book lays down a certain proposition. The fact that an expert witness can, if he be shrewd enough, carry an idea to the jury that he has fortified his opinion upon a given state of facts by an extensive reading of medical authorities, and yet keep himself clear from any contradictions from the books themselves, is another potent reason why this kind of evidence should be closely hedged and confined within its legitimate sphere, and that no unfairness should be permitted in its presentation to a jury. Unless it is so kept within bounds, and closely scanned and weighed by a jury, there is the greatest danger of a perversion of justice.”
Thus, despite the fact the Court recognized the great dangers in allowing expert witnesses to testify and then not be effectively cross-examined, the Court continued to follow the Michigan rule. The rulings of these earlier cases have been followed by the Court with very little discussion in Fox v Peninsular White Lead & Color Works, 84 Mich 676 (1891); Hall v Murdock, 114 Mich 233 (1897); Foley v Grand Rapids & Indiana R Co, 157 Mich 67 (1909); In re DuBois’ Estate, 164 Mich 8 (1910); Sykes v Portland, 193 Mich 86 (1916); People v McKernan, 236 Mich 226 (1926); DeHaan v Winter, 258 Mich 293 (1932); DeHaan v Winter, 262 Mich 192 (1933); Detroit v Porath, 271 Mich 42 (1935); and Anderson v Jersey Creamery Co, 278 Mich 396 (1936).
In Anderson, the Court said (p 402):
"In People v. Millard, 53 Mich. 63, the reason for this rule is discussed at length. It is shown that the hearsay testimony of written opinions of other persons should not be submitted to a jury which has no means of examining the author as to his learning, honesty and sources of special knowledge. See, also, City of Detroit v. Porath, 271 Mich. 42; People v. McKernan, 236 Mich. 226; DeHaan v. Winter, 258 Mich. 293, and DeHaan v. Winter, 262 Mich. 192.”
Thus, the Court recognized that the Michigan Supreme Court had not extended a thorough consideration to this issue since 1884. Moreover, there has been no case since 1936 which has even mentioned the problem.
The reasons given by the Court for not permitting such cross-examination were that the value of the particular authority was unknown, it could be unfairly used before the jury, and the contents of the book were hearsay.
We will now look at decisions from other jurisdictions which have dealt with this same issue.
II.
The problem of the cross-examination of expert witnesses by the use of textbooks is an issue that has received a great deal of attention by courts and commentators alike. Several objections have been raised to allowing textbooks to be used on cross-examination. The first objection mentioned by the Michigan Supreme Court was that the use of this testimony was hearsay.
One of the earliest cases to deal with this issue was Laird v Boston & Maine R, 80 NH 377, 117 A 591 (1922), which involved a suit for negligence where plaintiff recovered a verdict and judgment. Plaintiff had cross-examined defendant’s experts by the use of textbooks, and the Supreme Court of New Hampshire held this was proper. The Court stated (pp 377-379):
"The exception to evidence has been argued upon the theory that the plaintiff used the published opinion of an acknowledged authority as the basis for the cross-examination of the defendant’s expert witness. The use of standard authorities to discredit such a witness is a matter upon which there is much diversity of opinion. The general practice in this state has been to permit such use upon cross-examination. State v. Wood, 53 N.H. 484 [1873]; Burnham v. Stillings, 76 N.H. 122 [79 A 987 (1911)].
"The objection to such procedure upon the ground that it violates the hearsay rule and permits the use of opinions which are not subject to cross-examination is unsound, or else it proves too much. If the opinion of one who is an authority cannot be used at all unless the holder of it be sworn and be subject to cross-examination, by what logic can the same inadmissible opinion be used as a basis for the admissible opinion of the expert witness? The opinion of the expert, qualified by study, is admitted as an exception to the hearsay rule. It is known to be founded upon the assertions of others. 1 Wig., Ev. s. 687. Whether it shall be admitted or rejected depends upon the witness’ familiarity with the hearsay. Unless he is thoroughly versed in that hearsay, he is not qualified to testify. The reasoning of courts excluding inquiries about the authorities, upon the cross-examination of the expert, leads directly to the conclusion that the opinion of the expert should have been excluded. If the cross-examination puts before the jury the unsworn opinion of the authority, the direct testimony of the expert does the same thing, with the added infirmity involved in his recollection of what the authorities say.
"The objection to this procedure is unsound for another reason. It appearing that certain printed books are received by the profession as authorities and as truly setting forth the views of certain authors, opinions based thereon are admitted in evidence. When the witness is confronted with the contents of one of these books which denies the views he has expressed, the issue presented is not whether the book states the true opinion of the author, but whether the witness has honestly and intelligently read and applied what is set down in the books. Baldwin v. Gaines, 92 Vt. 61 [102 A 338 (1917)].
"The argument which has prevailed in some jurisdictions is that the result of such cross-examination is to put before the jury, as positive evidence, the unsubstantiated opinions of the authorities referred to. The assertion that the object of counsel is not attained unless this is so (Allen v. Railway, 212 Mass. 191 [98 NE 618 (1912)]), is not warranted by the situation presented. The books abound in instances of evidence admissible and received for one purpose, but not for another. Before the improper use, or the objectionable motive, can be dealt with there must be proof of their existence. Neither is to be inferred from the mere fact that it might exist. The view that the opinions used upon cross-examination thereby become positive evidence leaves wholly out of consideration the fact that such opinions, being the foundation for the witness’ opinion, are used solely to test its value, and assumes that trial courts and juries are either unable or unwilling to deal intelligently and fairly with restricted evidence. Darling v. Westmoreland, 52 N.H. 401, 412 [1872]. The inference that such use of the authorities was treated as substantive evidence is not drawn in this state, in the absence of proof. 'It cannot be inferred from the record of the cross-examination of Dr. Beaton that counsel understood he was putting the dispensatory into the case as substantive evidence, or was doing anything except seeking admissions from the witness to weaken the force of his testimony.’ Burnham v. Stillings, supra, 127.
"Neither the illogical rule that hearsay should be received upon the direct testimony of an expert and excluded from his cross-examination, nor the idea that all expert opinion should be excluded because it violates the hearsay rule, has been adopted in this state. Opin ions are here received whenever it appears that they will be helpful. State v. Killeen, 79 N.H. 201, 202 [107 A 601 (1919)], and cases cited. And since the opinions are received, the just and reasonable corollary is that their value is open to investigation. The opponent may be permitted to test this value for various reasons and in various ways. There may be occasion to inquire whether the opinion is an honest one. Does it really express the views of the witness? If it be honest, doés it represent the unanimous hearsay conclusion, or only a fragment of it? Has the witness made himself familiar with all the useful hearsay upon the subject, or only a part? Having testified to the sum of the useful hearsay, he may justly be inquired of touching the units of which the sum is composed.
"Cases where there is an evident abuse of this right by reading extended extracts from the authorities under the pretence of asking questions, or where the standing of the author (the fact that he is one of the authorities) rests upon the assertion of counsel, are not in point here. It was proved that Dr. Wood is an eminent authority, and the question objected to related directly and simply to the point in issue.
"No fact which tends directly to qualify or discredit the opinion given by the witness can be held to be inadmissible upon his cross-examination, as matter of law. The whole field of hearsay knowledge upon the subject is open to such investigation because of the nature of the opinion which has been received. How far this field can profitably be explored in a given case, is a matter to be determined by the justice who presides at the trial. His conclusion one way or the other is one of fact, and therefore not reviewable here. Nawn v. Bail-road, 77 N.H. 299 [91 A 181 (1914)].”
In Darling v Charleston Community Memorial Hospital, 33 Ill 2d 326; 211 NE2d 253; 14 ALR3d 860 (1965), plaintiff sued for damages for allegedly negligent medical and hospital treatment which necessitated the amputation of his right leg below the knee. He recovered a judgment of $150,000 which was reduced by $40,000, the amount of the settlement with the doctor. The Supreme Court affirmed as to the $110,000. One of the issues raised on appeal was the cross-examination of defendant’s expert by the use of textbooks. The court stated (p 336):
"An individual becomes an expert by studying and absorbing a body of knowledge. To prevent cross-examination upon the relevant body of knowledge serves only to protect the ignorant or unscrupulous expert witness. In our opinion expert testimony will be a more effective tool in the attainment of justice if cross-examination is permitted as to the views of recognized authorities, expressed in treatises or periodicals written for professional colleagues. (Cf. Model Code of Evidence, Rule 529.) The author’s competence is established if the judge takes judicial notice of it, or if it is established by a witness expert in the subject.”
Wigmore in his treatise (6 Wigmore, Evidence [3d ed], § 1691), stated that the primary reason for the allowance of this evidence is that of necessity:
"The ordinary expert witness, in perhaps the larger proportion of the topics upon which he may be questioned, has not a knowledge derived from personal observation. He virtually reproduces, literally or in substance, conclusions of others which he accepts on the authority of the eminent names responsible for them. If, whenever this is discovered, we are to reject the evidence absolutely, then on all such matters the only resource is to search for a qualified expert, who may or may not be available within the jurisdiction. Even where such a person is legally procurable (all the chances being against it except in a few centres of population), the expense is frequently disproportionate. Costly litigation is the parasite of justice; and we pay too high a price when we refuse to accept our information from a competent source ready at hand.”
Moreover, Wigmore stated that the circumstances attending publication of a learned treatise gave a fair probability of trustworthiness. Section 1692 reads:
"(a) There is no need of assuming a higher degree of sincerity for learned writers as a class than for other persons; but we may at least say that in the usual instance their state of mind fulfils the ordinary requirement for the Hearsay exceptions, namely, that the declarant should have 'no motive to misrepresent.’ They may have a bias in favor of a theory, but it is a bias in favor of the truth as they see it; it is not a bias in favor of a lawsuit or of an individual. Their statement is made with no view to a litigation or to the interests of a litigable affair. When an expert employed by an electric company using the alternating or the single current writes an essay to show that the alternating current is or is not more dangerous to human life than a single current, the probability of his bias is plain; but this is the exceptional case, and such an essay could be excluded, just as any Hearsay statement would be if such a powerful counter-motive were shown to exist.
"(b) The writer of a learned treatise publishes primarily for his profession. He knows that every conclusion will be subjected to careful professional criticism, and is open ultimately to certain refutation if not well-founded; that his reputation depends on the correctness of his data and the validity of his conclusions; and that he might better not have written than put forth statements in which may be detected a lack of sincerity of method and of accuracy of results. The motive, in other words, is precisely the same in character and is more certain in its influence than that which is accepted as sufficient in some of the other Hearsay exceptions, namely, the unwelcome probability of a detection and exposure of errors * * * .
"(c) Finally, the probabilities of accuracy, such as they are, at least are greater than those which accompany the testimony of so many expert witnesses on the stand. The abuses of expert testimony, arising from the fact that such witnesses are too often in effect paid to take a partisan view and are practically untrustworthy, are too well-known to repeat * * * . It must be conceded that those who write with no view to litigation are at least as trustworthy, though unsworn and unexamined, as perhaps the greater portion of those who take the stand for a fee from one of the litigants.
"It may be concluded, then, that there is in these cases a sufficient circumstantial probability of trustworthiness. The Court in each instance should in its discretion exclude writings which for one reason or another do not seem to be sufficiently worthy of trust.”
Our Court, while not accepting in earlier cases Wigmore’s conclusion of admissibility, has recognized the serious problems of the reliability of the expert’s opinion. Justice Morse, speaking for the Court, further stated in People v Vanderhoof, supra, 168:
"This case illustrates most forcibly the dangerous character of expert testimony, which has so often been called to the attention of the courts, and challenged by them. Here were professors from the University, and eminent physicians from the section of the State where the alleged crime was committed, summoned by the power of the people, and paid high prices per diem, for the purpose of establishing the fact that Vanderhoof must have died from the effects of arsenic administered before death. From the position they were employed to hold they could not be dislodged by the most rigid cross-examination, which laid before and fully presented to them the facts which, for a period of something over two years, by the people’s own witnesses, from the lips of those who knew Vanderhoof while living, tended to show that the deceased was troubled with the same symptoms which culminated in his death, and which, as they admitted, might be attributable to heart disease. Nearly every one of them, at last, was obliged to rest his assumption of death by arsenical poisoning upon the fact that arsenic was found in the body after death.”
The Court continued (p 172):
"It has been declared by the courts that expert testimony is not of the best or highest order, and that it is extremely dangerous, unless well guarded, and closely confined within its legitimate province. It is often necessary, as in this case, in order that justice may be done; and without it the truth cannot always be determined. But it is a fact well known to every practitioner at the bar, and within the judicial knowledge of courts, I think, that latterly the experts, on both sides of a cause, become too often eager attorneys before the trial is ended and before their testimony is given. It therefore becomes desirable, and necessary to the due administration of justice, that the scope and power of their utterances shall not be extended; that they shall be held strictly to the rules laid down for their guidance and control. Especially should this be so in criminal cases, where the liberty for life of the accused is at stake.”
Thus, our Court has consistently recognized that the expert testimony of witnesses is in all probability far less reliable than the testimony that is derived from textbooks. The fact that the textbooks used on cross-examination would contain hearsay material is not a sufficient justification to prevent this type of cross-examination in view of the countervailing arguments in favor of admissibility.
A second argument used to exclude cross-examination of experts by the use of textbooks is that science is shifting; that new discoveries quickly outdate medical textbooks and thus such books are not trustworthy. This, however, is not a satisfactory objection. If a book is outdated, the expert will refuse to recognize it as authority. If a new discovery has occurred since the publication of the textbooks, the expert has the opportunity to ex plain this to the jury. (Indeed, in such a situation, the expert’s credibility would be enhanced since he would appear to be more knowledgeable than the textbooks.)
6 Wigmore, Evidence (3d ed), § 1690, states:
"There is ignorant exaggeration in these charges. They attribute to the entire body of scientific knowledge the instability due to casual rapid progress in certain departments of the sciences; and they ignore even in those departments the small proportion which the field of possible change bears to the large area of established truth. But, leaving this aside, we find that the objection is in itself inconsistent with accepted legal practices, and would if consistently applied exclude all testimony even on the stand from scientific witnesses. For if these works are rejected because they may not embody the latest results of science, what shall be said of specialist witnesses in general? Out of the hundreds of scientific experts who are this month testifying in courts of justice, how many are speaking from a thorough acquaintance with the latest researches in their subjects? For how many of them is it possible to maintain steady pace with the daily progress of science? How many are not testifying on information obtained at a medical or other technical school a decade or more ago, in the standard books of that day? It is true, where conflicting views are advanced and an expert cannot state his views to be founded on the most recent investigations, that his views are naturally entitled to inferior weight; but could it seriously occur to any one to exclude all experts from the stand, not because this or that one has in fact no acquaintance with the recent literature of his profession, but because many among the whole body may not possess such acquaintance?”
Two other reasons not cited by the Michigan Supreme Court, have been offered by other courts in preventing the use of textbooks on cross-examination. They are: 1) that there is danger in confus ing a jury by technical passages without oral comment and simplification; and 2) that the treatises may be used unfairly by taking passages which are explained away or contradicted in other parts of the book.
The simple answer to both of these assertions is that opposing counsel may either ask questions of his client to explain the meaning of technical passages, or point out that the text is inaccurate, or, he may call other experts to take the stand to explain the technical passages.
We, therefore, believe that none of these objections is sufficient to prevent the use of recognized texts as a means of cross-examining expert witnesses. Moreover, another consideration militates in favor of the use of textbooks in the cross-examination of expert witnesses. That consideration is the practical difficulty in obtaining experts to testify in malpractice cases. As our Court recognized in People v Vanderhoof, supra, 172-173:
"In this case the experts were all on one side. It is claimed, and the evidence would seem to warrant the claim, that the respondent was not able to hire experts to testify in her behalf. It is probable that in cases of this kind the truth will ever be clouded with the sophistry of scientists until some way or method is devised by which expert witnesses can be procured who will be, and remain through the trial, entirely uninterested and unbiased, not only in the result of the trial, but also in the maintenance of their own peculiar notions or theories in regard to matters presented to them upon the trial. Until the time comes when experts shall be entirely fair and unbiased, with no desire upon the witness-stand except .to arrive at the truth, it must be the duty of the courts to see that no injustice be done, if that be possible.”
We, therefore, hold that medical textbooks or other publications may be used to cross-examine expert witnesses if the expert recognizes the publication as authoritative, or if the trial court takes judicial notice of the publication as authoritative. See Darling v Charleston Community Memorial Hospital, supra, 336. Dolcin v Federal Trade Comm, 94 US App DC 247, 252 (fn 4); 219 F2d 742, 746 (fn 4) (1954).
Great caution must be exercised by the trial court to ascertain that the authority cited is pertinent to the subject matter under consideration and passages which are irrelevant are not admitted into evidence. See O'Dowd v Linehan, 385 Mich 491 (1971).
III.
Of great persuasion to our rule that the use of textbooks in the cross-examination of the testimony of expert witnesses, even though the expert witness does not state that he relies on the specific authority but does recognize the text as authoritative, are the rulings of the highest tribunals of our sister states in this regard. When our Court last considered this problem in Anderson v Jersey Creamery Co, supra, the states of California, Colorado, Illinois, Iowa, Massachusetts, New Jersey, North Carolina, North Dakota, South Carolina, Vermont and Wisconsin, all supported the Michigan rule. See Annotation — Cross-Examination of Expert, 82 ALR 448. However, since that time, the states of California (Gluckstein v Lipsett, 93 Cal App 2d 391; 209 P2d 98 [1949]; Salgo v Leland Stanford Jr. University Board of Trustees, 154 Cal App 2d 560; 317 P2d 170 [1957]); Illinois (Darling v Charleston Community Memorial Hospital, supra); North Dakota (Iverson v Lancaster, 158 NW2d 507 [ND 1968]); New Jersey (Ruth v Fenchel, 37 NJ Super 295; 117 A2d 284 [1955], aff'd 21 NJ 171; 121 A2d 373 [1956]), have all modified the rule to some extent. Annotation: Expert Witness — Cross Examination, 60 ALR2d 87-95.
The United States Supreme Court, which had recognized the narrow Michigan rule in Davis v United States, 165 US 373; 17 S Ct 360; 41 L Ed 750 (1897), recognized a more liberal approach in Reilly v Pinkus, 338 US 269; 70 S Ct 110; 94 L Ed 63 (1949). Our sister state of Illinois in Darling v Charleston Community Memorial Hospital, supra, recently recognized the rule that we accept today. The Supreme Court of New Jersey in Ruth v Fenchel, supra, also recognized the liberal rule.
Moreover, the drafters of the Model Code of Evidence and the Uniform Rules of Evidence would go beyond this rule and permit the admissibility of textbooks as substantive evidence. Thus, the clear trend of the courts and the commentators is to permit a liberalization of the restrictions against cross-examination and allow the cross-examination of medical experts by the use of authoritative medical textbooks. We, therefore, hold that the trial court committed error in excluding plaintiffs cross-examination of defendants’ expert witness by the use of such textbooks. To the extent that earlier Michigan cases prevented such cross-examination, they are overruled.
We have thoroughly reviewed plaintiffs 12 other allegations of error and find no merit to any of them.
The judgment is reversed and the cause is remanded for a new trial. Costs to plaintiff.
T. M. Kavanagh, C. J., and Adams, T. E. Brennan, T. G. Kavanagh, and Williams, JJ., concurred with Swainson, J.
Stoudenmeier v Williamson, 29 Ala 558 (1857).
This case is distinguishable on its facts from other cases involving cross-examination of medical experts. Plaintiffs counsel stated in their brief to the Supreme Court that their purpose in using medical texts was to prove that their views were sustained by standard medical authorities. This is not a permissible purpose even in states following the most liberal rule.
This is the last case in Michigan which has been cited on the subject of cross-examination of medical experts. In Anderson, the trial court in granting a motion non obstante veredicto relied almost solely on textbooks and on other evidence not introduced at trial. The Supreme Court reversed holding that a decision must be on the record as made at the trial. Thus, this case did not even involve the issue of the cross-examination of medical experts.
People p Hall, supra 490; People v Millard, supra 76; DeHaan v Winter, 262 Mich 192, 197 (1933); Ware v Ware, 8 Me 42, 56 (1831); Ashworth v Kittridge, 12 Cush 193, 194 (Sup Jud Ct; Mass 1853); Gallagher v Market Street R Co of San Francisco, 67 Cal 13; 6 P 869 (1885); Weyh v Chicago City R Co, 148 Ill App 165, 168 (1909); Percoco’s Case, 273 Mass 429, 430-431; 173 NE 515 (1930); Tilghman v Seaboard Air Line R Co, 171 NC 652, 657; 89 SE 71 (1916).
For other authorities dealing with this objection to the use of textbooks to cross-examine expert witnesses, see Holz, Learned Treatises as Evidence in Wisconsin, 51 Marquette L Rev 271 (1967-1968); Dana, Admission of Learned Treatises in Evidence, 1945 Wis L Rev 455, 459-460; Ruth v Fenchel, 37 NJ Super 295; 117 A2d 284 (1955), aff'd 21 NJ 171; 121 A2d 373 (1956).
Wilcox v International Harvester Co of America, 198 Ill App 33, 40 (1916), aff'd 278 Ill 465; 116 NE 151 (1917).
See, also, Kern v Pullen, 138 Or 222, 227; 6 P2d 224 (1931).
This appeared to be a concern of our Court in People v Millard, 53 Mich 63, 76 (1884): "If the opinion of an author could be received at all, it should be from his own words — not in single passages, but in combination.” See, also, Connecticut Mutual Life Insurance Co v Ellis, 89 Ill 516, 519-520 (1878), where the Court stated: "Great care should always be taken by the court to confine such cross-examination within reasonable limits, and to see that the quotations read to the witness are so fairly selected as to present the author’s views on the subject of the examination.”
For an example where counsel for plaintiff was permitted to read a full statement from a textbook on redirect examination after counsel for defendant had read a partial statement on cross-examination, see State v Bess, 60 Mont 558, 569-570; 199 P 426 (1921).
Many cases that do not follow the liberal rule actually are based on the fact that the textbooks in question were not recognized authorities. These decisions are correct on their facts but are often incorrectly used as precedent for a restrictive rule of cross-examination of experts. See Dolan v O’Rourke, 56 ND 416; 217 NW 666 (1928); Drucker v Philadelphia Dairy Products Co, 35 Del 437; 166 A 796, 798 (1933); Farmers Union Federated Cooperative Shipping Assn v McChesney, 251 F2d 441, 445 (CA 8, 1958); Briggs v Chicago Great Western R Co, 238 Minn 472; 57 NW2d 572 (1953); Eckleberry v Kaiser Foundation Northern Hospitals, 226 Or 616; 359 P2d 1090 (1961); Wall v Weaver, 145 Colo 337, 339, 341; 358 P2d 1009 (1961); Ross v Colorado National Bank of Denver, 170 Colo 436, 445; 463 P2d 882 (1969).
The Court stated (p 275): "It certainly is illogical, if not actually unfair, to permit witnesses to give expert opinions based on book knowledge, and then deprive the party challenging such evidence of all opportunity to interrogate them about divergent opinions expressed in other reputable books.” | [
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Starr, J.
This is a will contest. Grace Y. Johnson, a spinster, died at Detroit, January 24,1942, at the- age of 67 years, and her will, executed at Windsor, Ontario, April 3,1940, was presented to the probate court for Wayne county. Contestant and appellant Robert C. Bullard, a nephew, objected to its admission on the ground that the testatrix was not mentally competent to make a valid will. On his request the contest was certified to the circuit court, Act No. 288, chap. 1, .§36, Pub. Acts 1939, as amended by Acts Nos. 26 and 176, Pub. Acts 1941 (Comp. Laws Supp. 1943, § 16289-1 [36], Stat. Ann. 1943 Rev. § 27.3178 [36]).
At the conclusion of contestant’s proofs and again at the conclusion of all proofs, the proponents moved for a directed verdict sustaining the will. The trial court reserved decision on such motions and submitted the case to the jury, which returned a verdict for contestant. On proponents’ motion, the trial court granted judgment non obstante veredicto sustaining the will. Contestant appeals, and in considering such judgment, we view the testimony in the light most favorable to contestant. In re Frazee’s Estate, 307 Mich. 404; In re Estate of Miller, 300 Mich. 703.
Contestant claims that testatrix, his aunt, lacked testamentary capacity; and that he was omitted from her will because she had an insane delusion and false belief that he was a worthless character and was- trying to get her money and property. He con- . tends that the testimony presented an issue of fact for jury determination as to her mental condition; that the testimony supported the jury’s verdict against the will; and that the trial court erred in granting judgment non obstante veredicto. Proponents contend that no issue of fact was presented and that the will, was valid as a matter of law.
The presumption is that testatrix had mental capacity to make the will in question, 3 Comp. Laws 1929, § 14212 (Stat. Ann. § 27.907); In re Getchell’s Estate, 295 Mich. 681; In re Barlum’s Estate, 240 Mich. 393. The burden of proof was upon contestant to show by competent evidence that she did not have such capacity, In re Wawrzyniak’s Estate, 297 Mich. 520; In re Getchell's Estate, supra; In re Rowling’s Estate, 291 Mich. 218.
The testatrix had been reared in a refined home environment and had traveled quite extensively. She lived in Hillsdale, Michigan, until about 10 years preceding her death, when she moved to Detroit. She had inherited a substantial estate and at the time of her death owned income-producing real estate in Hillsdale and Detroit, and in Windsor, Ontario. In April, 1940, while visiting in Windsor, she went to the office of a local attorney who, in pursuance of her instructions, prepared the will in question. At the time she executed such will, her nearest of kin were a sister Ella R. Bullard, the contestant nephew who resided in Detroit, and a nephew and niece who resided in the State of New York. After providing for payment of her debts and funeral expenses and making a specific bequest of her library, the will devised and bequeathed all the rest, residue, and remainder of her estate to one James B. Holes, a druggist of Hillsdale, in trust for the following uses and purposes:
“To pay to my sister Mrs. Ella R. Bullard, of Buffalo New York State, the sum of $15, per week, so long as she shall live, out of the income; provid'ed that if the income shall not be sufficient, then so much of the principal shall be used as may be necessary to cover the deficiency. (Said sister died in May, 1941, preceding the death of testatrix).
“Upon the death-of my sister aforesaid the net income shall thereafter be paid over to the Humane Society for the community of Hillsdale,. Michigan, U. S. A. for the purpose of an ambulance, or if suitable therefor the conversion thereto of my said automobile, to be used in the general work of the said society in collecting and impounding stray and undesirable animals and humanely disposing of them. If no such organization shall then exist in the said county of Hillsdale, then my trustee shall pay over the net income to a responsible organization or group which shall undertake to carry out the terms of this provision, and which, in the judgment of my said trustee shall be qualified to do the said' work.
“Should my aforesaid sister predecease me, then and in that event the whole of the net income of my estate shall forever thereafter be turned over by my said trustee to the Humane Society for the county of Hillsdale, or others as aforesaid, to carry out the work hereinbefore outlined. * * *
“The trustee shall forever hold and manage the pro’perty as a trust fund,” (and is given usual power to sell and reinvest).
There was no medical testimony as to the mental condition of testatrix. The testimony tending to sustain the will indicates that she attended to her business affairs, knew what properties she owned, purchased additional properties, made repairs, collected rents, gave receipts, and paid bills; that she listened to the radio and could discuss radio programs and speeches intelligently. It appears that she was dissatisfied with the provisions of a former will in which a Detroit attorney had designated himself as sole executor. The Windsor attorney who prepared the will in question testified in part:
“I never met Miss Johnson before the day she came in to have this will drawn. * * * I recall who brought her to my office. An old client of mine by the name of Mrs. La Marsh. * * *
“She (testatrix) was in my office altogether about an hour that day. ■ She dictated what she wanted me to put in the will and I rearranged it * * * and brought it in to her, asked her to read it; she read it over and I asked her if there were any corrections, she said no. * * * j * * * asked her then to * * * sign it and she did so. Both Mr. Little and I were there at the time and we pnt our signatures on it as witnesses. * * *
“ Q. Did this lady say anything to you about .her nephew, Robert Bullard (contestant), being a •worthless drunkard, or words to that effect, as to why she was cutting him off from her inheritance? * * #
“A. I asked her, * * * ‘Haven’t you got any relatives,’ and she said, ‘Yes, I have.’ I said, ‘Are you not leaving them anything?’ And she said no. She seemed to be a woman of very strong prejudices.
“Q. What did she say why she was not leaving Robert (contestant) ?
“A. She said — I don’t know which relative it was, it was one of the nephews that she referred to, and she said, ‘He had been trying to get money out of me for a long time, and I am spending everything I get. Nobody is going to get anything and I am not going to leave them anything. ’
“Q. Didn’t she say that he was a drinker?
“A. I can’t recollect the exact expression, but she gave me to understand that he was a worthless character.
“Q. In the way of his drinking habit she referred to?
“A. I can’t remember whether it was drink or what it was — that he couldn’t work or something. Anyway, she seemed to be prejudiced against him because he was trying to get money out of her. That is what she told me. I did not make a list of all the relatives of this woman. She didn’t seem to want me to be interested in them at all.”
The evidence tending to defeat the will indicated that testatrix lived and conducted herself in a rather eccentric and abnormal manner. There was testimony that, as a young woman, she had made several trips to England and while there on one occasion was thrown into jail because of her militant activi ties in the suffragette movement. In the later years of her life her principal interest appears to have been in dogs and cats, which were given free use of her home and premises. Witnesses testified that her house was seldom cleaned and was always in a dirty, unsanitary condition and “smelled terrible;” that it was littered with filth and refuse and the leavings of the dogs and cats; and that after drowning a litter of kittens, she burned them in the stove. There was testimony that her person and clothing were unclean and unkempt; that in the winter she wore long woolen underwear, rubber boots, and other items of male clothing; that in the summer she went barefooted and that she usually slept at night in the same clothing she wore in the daytime. She smoked pipes, cigars, and cigarettes. Witnesses testified that she had extra and unnecessary doors, stairways, and partitions built in the home which she occupied; that she bought large quantities of household furniture and cooking utensils which she did not use or need and which she stored in her home and in other buildings; and that on trips to Windsor, Ontario, she failed to declare dutiable items in her possession. Several witnesses testified that she usually failed to complete a subject of con-' versation and changed frpm one uncompleted subject to another.
There was testimony indicating that testatrix was strong minded and very decided in her desires and opinions. Contestant himself admittéd:
“She had a will of her own, you couldn’t influence her. In other words, if she made up her mind she wanted to do something it was rather a waste of time to argue with her. In other words, we can assume that anything she did was her own doings and none influenced her in any way. ’ ’
Contestant’s wife testified in part as follows:
“You couldn’t really talk with Grace (testatrix), because she would say something to you before you could answer out to her; she was asking or talking about some other subject, she was off on one thing to another.
“She was a woman that had a very strong nature and expect to have her own way. * * * If she would get an idea she would follow it through.”
The Windsor attorney who prepared her will said, ‘ ‘ She seemed to be a woman of very strong prejudices.” Mrs. La Marsh, a close friend, testified that “once Miss Johnson got an idea in her head you couldn’t change her, I never tried to. I used to humor her. * * * She had a mind of her own. * * * At times she had a will of her own.”
The testimony indicated that contestant Bullard was an industrious, sober person who had worked continuously 27 years for the Ford Motor Company; that a friendly relation existed between testatrix and contestant and his wife; that he assisted her in many ways; that despite the unsanitary condition of her home, he and his wife often visited her; that despite her personal appearance and conduct, he and his wife often invited her to their home for dinner; and that he treated her in as kindly a way as could reasonably have been expected.
In her manner of living, personal habits, and acts and doing, testatrix certainly deviated from the usual or normal conduct of people. However, we have held that eccentricities and deviation from usual conduct do not necessarily imply mental incompeteney. In the case of In re Littlejohn’s Estate, 239 Mich. 630, 632, 633, we said:
“Lay witnesses told of testatrix’s habits of personal untidiness in her last years, of her failing to exhaust subjects of conversation, of her arbitrary and dictatorial manner towards her maids, and of her extrem'e particularity relative to certain household duties. But we have held again and again that these trifling matters afford no basis for an opinion of mental incompetency to make a will.”
In Leffingwell v. Bettinghouse, 151 Mich. 513, 515, 516, we said:
“The acts, conduct, and statements of testatrix relied upon as evidence of lack of testamentary capacity are instances of forgetfulness which are neither numerous nor remarkable. Habits of untidiness which increased with advancing years. This was not evidence of insanity. See Hibbard v. Baker, 141 Mich. 124. Stress is laid upon the fact that testatrix in her conversations would pass abruptly from one subject to another. * * *
“The utmost that can he said of this testimony is that she did not discuss a subject as fully as in the opinion of the witness it should have been discussed. According to this test, who would not be judged insane ? ’ ’
In 28 R. C. L. p. 89, § 39, it is stated:
“An eccentric person may make a will, and eccentricity of conduct is not sufficient, of itself, to invalidate a will. Singularity should not be confounded with insanity, and eccentricities, bad manners, and grotesque conduct, generally, are not evidence of insanity, especially where they are normal to the testator.”
The rule for determining mental competency was stated in the case of In re Walker’s Estate, 270 Mich. 33, as follows:
“The test of mental capacity to make a testamentary disposition of one’s property has been stated many times by this court. In general the requisite is that the testator must at the time of making his will have sufficient mentality to enable him to know what property he possesses and of which he is making a testamentary disposition, to consider* and know who are the natural objects of his bounty, and to understand what the disposition is that he is making of his property by his will.”
The above rule was approved in the case of In re Getchell’s Estate, supra. In the ease of In re Ferguson’s Estate, 239 Mich. 616, 627, we said:
“We state the well established rule: If Mrs. Ferguson, at the time she executed the will, had sufficient mental capacity to understand the business in which she was engaged, to know and understand the extent and value of her property, and how she wanted to dispose of it, and to keep these facts in her mind long enough to dictate her will without prompting from others, she had sufficient capacity to make the will. A testator may be suffering physical ills and some degree of mental disease and still execute a valid will, unless the provisions thereof are affected thereby.”
The evidence in the present case shows that testatrix preserved the estate she inherited and generally managed her business affairs. Her will was prepared in pursuance of her instructions, and it should be noted that she expressly directed that certain of her properties were to be sold and others to be held by her trustee “as long as they are drawing good rentals.” Applying the above-quoted test for determining testamentary capacity, it is clear that testatrix knew what properties she possessed, knew of contestant and other relatives, and understood the disposition she wished to make and was making of her estate. In discussing the question of mental incompetency, in the case of In re Ver Vaecke’s Estate, 223 Mich. 419, 425, we said:
“When a man goes to an attorney, and, without aid or suggestion, directs the provisions of his will, and furnishes specific descriptions of all the property he owns, it is a waste of time to discuss the question as to whether he was mentally competent to dispose of his property as he did.”
See, also, In re Littlejohn’s Estate, supra; In re Walz’s Estate, 215 Mich. 118; In re Dowell’s Estate, 152 Mich. 194; 28 R. C. L. p. 86, § 35.
Contestant argues that he was disinherited because his aunt was suffering from a delusion or false belief that he was a worthless character and was trying to get her property and money. He claims there was no basis for such belief or opinion. The only testimony indicating why testatrix omitted contestant from her will was that of the attorney who prepared the will and of her friend Mrs. La Marsh. The attorney’s testimony, hereinbefore quoted, indicates that testatrix told him in substance that she was not leaving her relatives anything ; that contestant had been trying to get money from her for a long time and that she considered him a worthless character. Mrs. La Marsh testified in part:
“Q. Did she (testatrix) ever make any statement as to the reason she was cutting Bob Bullard (contestant), her nephew, from any inheritance in her will?
“A. Well, she told me that at one time he had tried to borrow some money from her, and the reason, she told me, was because all his money went into expensive restaurants, that his wife couldn’t cook. She wouldn’t cook his meals, they ate mostly in expensive restaurants.”
We note that contestant did not deny his aunt’s purported statements that he had attempted to bor row or obtain money from her. From her association with him and his wife and his attempts to obtain money from her, testatrix apparently had formed an opinion that he was a worthless person and was not entitled to any part of her estate. Such opinion may have been erroneous, but it certainly was not an insane delusion evidencing lack of testamentary capacity. Many people, without basis of fact, form uncomplimentary opinions about their relatives, but such opinions are not necessarily insane delusions. In Leffingwell v. Bettinghouse, supra, we said, p. 517:
“There is evidence that testatrix reached the conclusion that the contestants, particularly her son Henry, lacked filial affection for her. It is said that this conclusion was an insane delusion. It is possible that it was an erroneous conclusion, and for that reason a delusion. But it certainly was not an insane delusion. It was a conclusion reached by weighing evidence, and there was evidence to justify it.”
In the case of In re Barium’s Estate, supra, we quoted with approval the following statement of the trial court in directing a verdict sustaining the will:
“The burden of proof is upon the contestant to show by competent evidence that at the time Thomas Barium .executed the will and the various codicils here offered, that he made this will as the result of a delusion — an insane delusion emanating from an unsound mind, and that in the absence of such insane delusions he would not have made this will as he did. An insane delusion exists when a person persistently believes supposed facts which have no real existence, and so believes such supposed facts against all evidence and probabilities and without any foundation or reason for the belief, and conducts himself as if such facts actually existed.
“In considering the question here presented, it is to be borne in mind that no capricious and arbitrary dislikes, unjust suspicions, or prejudices against relatives or mistaken beliefs as to their feelings and designs toward him and his property, however visionary, nor belief of acts or facts which have any evidential basis, constitute in law insane delusions. If there are any facts, however little evidential force they may possess, upon which the testator may in reason have based his belief, it will not be an insane delusion, though on a consideration of the facts themselves, his belief may seem illogical and foundationless to the court; for a will, it is obvious, is not to be overturned because the testator has not reasoned correctly. The ultimate object of the inquiry is whether an insane delusion, destitute of all evidential support, spontaneously arising in testator’s diseased mind, influenced him and operated directly against the contestant in this case.” (Italics ours.)
See In re Balk’s Estate, 298 Mich. 303; Jackson City Bank & Trust Co. v. Townley, 268 Mich. 340; In re Bolger’s Estate, 226 Mich. 545; In re Haslick’s Estate, 195 Mich. 432 (Ann. Cas. 1918D, 466); In re Thayer’s Estate, 188 Mich. 261; O’Dell v. Goff, 149 Mich. 152 (10 L. R. A. [N. S.] 989, 119 Am. St. Rep. 662); Rivard v. Rivard, 109 Mich. 98 (63 Am. St. Rep. 566); Haines v. Hayden, 95. Mich. 332 (35 Am. St. Rep. 566).
In 28 R. C. L. pp. 90, 91, § 40, it is stated:
“An unjust will is, however, not necessarily an irrational act, for a testator possessed of mental capacity may make an unreasonable and unjust will. * , * * His aversion to his relations is not evidence of insanity, especially where he had reasonable grounds for disliking them, and, in general, the mere fact that a testator has exercised his lawful power to disappoint the reasonable expectations of those nearest him * * * is not to be regarded as unreasonable in the sense of evidencing mental incapacity. Although it has been said that a will may contain dispositions which would cause insanity to be presumed, the generally accepted view is that the unnaturalness of a will does not raise a presumption of incapacity, or require the submission of the question to the jury.”
In reviewing the judgment sustaining the will in the present case, we do not interpret or construe the provisions thereof or pass upon their validity.
Careful study of the record convinces us that testatrix was not suffering from an insane delusion regarding contestant. She apparently had formed an opinion that he was a worthless person and was trying to get her property and money. Such opinion or conclusion, which contestant claims caused her to omit him from her will, may have been erroneous, but it was not an insane delusion affecting her testamentary capacity.
We conclude that contestant failed to establish testatrix’ lack of capacity to make the will in question. The testimony presented no question of fact for jury determination. The judgment for proponents is affirmed, with costs.
North, C. J., and Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Butzel, J.
Benjamin Preedland, described in the
indictment as “an accounts examiner of the Michigan State sales tax division,” was charged with accepting bribes so as to make a false audit of the books of Paul Wesner, owner of a tavern in the city of Detroit, in violation of section 118 of the penal code of the State of Michigan, being Act No. 328, § 118, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-118, Stat. Ann. § 28.313). This act refers to acceptance of bribes by an executive, legislative or judicial officer. Preedland had been directed to audit the records of Wesner’s sales for a period of over three years in order to determine and collect the correct amount of sales taxes. He reported a deficiency of only $123.81. It is claimed that a much larger sum was due from Wesner but that defendant, in consideration of the sum of $350 paid to him in three instalments by Wesner, reported the smaller sum. While Wesner also sold groceries, the audit of his liquor sales was principally involved in the proofs.
We must first determine whether defendant was an executive officer of the State of Michigan within the meaning of section 118 under which Preedland was indicted, or whether he was merely an employee having neither the duties nor powers of an executive officer. Section *118 of the penal code provides that any executive, legislative or judicial officer guilty of accepting a bribe shall be punished by imprisonment in the State prison for not more than 10 years, or a fine of not more than $5,000, and shall forfeit his office and he forever disqualified to hold any public office, trust or appointment under tbe Constitution or laws of this State.
Defendant claims on appeal that be was not proven guilty beyond a reasonable doubt, and that should this court find that tbe evidence did sustain tbe verdict and thus find that be accepted a bribe, nevertheless be was not a public officer and tbe charge should have been brought under section 125 of tbe penal code (Comp. Laws Supp. 1940, § 17115-125, Stat. Ann. § 28.320) which covers bribery of agents, employees, or servants of another or any other person, et cetera, and provides that any person violating any of the provisions of such section shall be guilty of a misdemeanor punishable by imprisonment in tbe county jail for not more than one year or by a fine of not more than $500. In People v. Romanski, 213 Mich. 636, a bribery case, we followed People v. Day, 185 Mich. 68, and set aside a conviction and discharged tbe defendant who bad been prosecuted and convicted under a wrong statute.
In order to determine whether- defendant was a public officer of tbe State of Michigan, a brief review of tbe testimony becomes necessary. A former branch manager of tbe Detroit office of tbe department of revenue of tbe Michigan sales tax division testified that Freedland was an employee whose duties were to investigate and audit taxpayers’ records and ascertain whether tbe correct sales tax bad been reported to tbe State of Michigan. Defendant was called a junior field officer with a salary of $200 a month. Tbe title alone, however, would not be determinative of tbe importance of bis position. He was not a certified public accountant. Tbe work sheets in tbe sales tax office were compared with tbe junior auditor’s report. In cases of bars and liquor stores, tbe records of tbe breweries and tbe sources of supply of wine and liquors were examined so as to ascertain tbe amount of purchases by tbe retailer. Tbe number of retail sales could be estimated from tbe number of bottles and barrels purchased. Tbe cost of retail sales together' with tbe profit made thereon could be readily figured out and thus tbe total amount of tbe sales were ascertained with a reasonable degree of accuracy.
Defendant contends that be was not a public officer for tbe following reasons:
(a) He did not fill any position that was established or created by statute or other legislation;
(b) There were no duties conferred upon bis position by law;
(c) He was hired to perform bis work and did not fill an appointive position;
(d) His position was completely lacking* in tbe independence and dignity associated with a public officer;
(e) His position was completely lacking in discretionary powers which usually are inherent in a public, office;
(f) He took no oath of office;
(g) He bad no fixed tenure of office.
Defendant bad no right to hire or discharge employees, nor tbe right to impose, or cancel, tbe taxes provided for by law.
Tbe act creating tbe State board of tax administration, Act No. 167, § 21, Pub. Acts 1933, as amended by Act No. 77, Pub. Acts 1935 (Comp. Laws Supp. 1940, § 3663-21, Stat. Ann. § 7.542), which was in force at tbe time that the- audit was made and has been repealed by Act No. 122, Pub. Acts 1941, provided tbe duties and responsibilities of tbe board and further stated:
“The board may employ such assistants, clerks, stenographers or other employees. * * * Such employees shall receive such compensation.”
It would seem that an auditor whose business was' solely to check books would thus be an employee.
We find but little can be gained by examining the vast number of authorities cited on the question of whether one having the duties of defendant is an officer or not. The peculiar facts in each case distinguish it from the others. Many cases could be cited where persons holding offices similar to the one in the instant case were held to be employees. State, ex rel. Barney, v. Hawkins, 79 Mont. 506 (257 Pac. 411, 53 A. L. R. 583); Hudson v. Annear, 101 Col. 551 (75 Pac. [2d] 587); State, ex rel. Gibson, v. Fernandez, 40 N. M. 288 (58 Pac. [2d] 1197). A very large number of cases have been annotated in 53 A. L. R. 595; 93 A. L. R. 333; 140 A. L. R. 1076. We believe the correct rule is stated in Mechem on Public Offices and Officers, §§1 and 2, as follows:
“A public office is the right, authority and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.”
‘“We apprehend that the term “office,” ’ said the judges of the supreme court of Maine, ‘implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office; and the exercise of such power within legal limits constitutes the correct discharge of the duties of such office. The power thus delegated and possessed may be a portion belonging sometimes to one of the three great departments and sometimes to another, still it is a legal power which may be rightfully exercised, and in its effects it will bind the rights of others, and be subject to revision and correction only according to the standing laws of the ' State.’ ”
The cases indicate that duties of a public officer must be more than those of a mere agent or servant. He must be endowed by law with power and authority to use his own discretion. Freedland could not exercise independent discretion; his duties were largely that of a bookkeeper and consisted of checking over the books of retailers to ascertain whether they had paid a correct tax or not. The work was mainly clerical and could have been performed in the office of the State board of tax administration, had the retailer brought his books and records there. Freedland could not exercise any discretion in omitting sales from his report; if he did so, he was guilty of a neglect of duty, not an abuse of discretion. His figures were subject to rechecking at the main office. This was seldom done. The dishonesty of a bookkeeper does not constitute an abuse of discretion.
Defendant testified'that the auditing of books was to a large extent a mechanical process. He made neither sales nor purchases nor entered into contracts. He had no authority to bargain in order to obtain favorable contracts which had to be approved by others. He did not represent that he had duties and powers beyond those assigned to him. In the course of his work he did have the right to go into other stores, not particularly assigned to him, and make an audit but this also called for a mechanical process with the books. He appears to have been an auditing bookkeeper with but limited powers. Any power he did exercise was performed as an em ployee of the board of tax administration and radiated directly from the board and not from any statute or enabling act. It was not his duty to make recommendations necessary for the determination of the tax, but to ascertain facts from the books of the retail merchants or from the records of others and thus determine the tax in accordance with the law, subject, however, to review by his superiors.
We find a few cases which tend to' uphold the State’s contention that defendant was a public officer. McGrath v. United States (C. C. A.), 275 Fed. 294; Attorney General v. Tillinghast, 203 Mass. 539 (89 N. E. 1058, 17 Ann. Cas. 449); State v. Duncan, 153 Ind. 318 (54 N. E. 1066); People v. Kerns, 9 Cal. App. (2d) 72 (48 Pac. [2d] 750). From the very large number of cases, we quote a very recent one as it seems to state the rule expressed in the majority. In Scofield v. Strain, 142 Ohio St. 290, 295 (51 N. E. [2d] 1012), the court again stresses the rule stated in State, ex rel. Hogan, v. Hunt, 84 Ohio St. 143 (95 N. E. 666):
“Manifestly, however, each case should be decided on its peculiar facts, and involves necessarily a consideration of the legislative intent in framing the particular statute by which the position, whatever it may be, is created.”
The rule is accurately stated in State, ex rel. Barney, v. Hawkins, supra, where the court said:
“After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional. ’ ’
This rule is recognized by both appellants and appellees in their briefs.
In People, ex rel. Throop, v. Langdon, 40 Mich. 673, 682, Mr. Justice Cooley said:
“The officer is distinguished from the employee in the greater importance, dignity and independence of his position; in being required to take an official oath, and perhaps to give an official bond. ’ ’
These factors, while not controlling, are of assistance in doubtful cases.
Applying the rules thus stated to the instant case, we are impressed with the fact that defendant neither had- the dignity nor the discretion usually vested in one holding a public office.
We agree with the defendant in his contention that the entire chapter 17 of the penal code (Comp. Laws Supp. 1940, § 17115-117 et seq., Stat. Ann. § 28.312 et seq.) should be examined. Section 117 provides that any person who shall corruptly give, offer or promise to any public officer, agent-, servant or employee after the election or appointment of such offiper, agent, servant or employee, et cetera, a bribe, shall be guilty of a felony. On the other hand, section 118 of the same chapter of the penal code (Comp. Laws Supp. 1940, § 17115-118, Stat. Add. § 28.313), under which, defendant was indicted, definitely limits the operation of the statute to any executive, legislative or judicial officer who shall corruptly accept any gift or gratuity, et cetera. We are impressed with the fact that the legislature saw fit to use the words “agent, servant or employee” in section 117 but omitted them in section 118. It seems to have been the legislative intent as far as it can be ascertained to punish more severely any executive, legislative or judicial officer who shall accept a bribe. Section 125 of the same chapter makes it unlawful for any agent or employee to accept a bribe and declares it to be a misdemeanor. It is unnecessary to hold that this would grant to an assistant or agent, an alter ego of the main' officers, clothed with high discretionary powers, immunity from section 118, which refers to executive, legislative or judicial officers, but we do not believe that defendant’s position as an accounts examiner without any discretionary power was a public office. The legislature must have intended some distinction to exist between those included as recipients under section 117 and section 118. Because in the former the words agent, servant or employee are used, while in the latter they are omitted, we conclude that the legislature intended an even stricter interpretation of. the term public officer than ordinarily would follow. Evidently some persons who are included under section 117 as recipients would not be included under section 118. While the case approaches the border line, under its particular facts, we cannot hold that defendant was a public officer.
The information filed shows that defendant was charged with being an accounts examiner for the Michigan sales tax division. While at the end of the information, after the signature of the prosecuting attorney, there was a note to “See Sec. 118 M. P. C. 1931,” “28.313 Ann. St.,” nevertheless this constituted no part of the information and was mere surplusage. See People v. Murn, 220 Mich. 555. Defendant should have been proceeded against and, if found guilty, sentenced under section 125 of the Michigan penal code (Comp. Laws Supp. 1940, § 17115-125, Stat. Ann. § 28.320). As the case must go hack for new trial, we need not discuss the other errors claimed by defendant.
The judgment of conviction is reversed and the case remanded for a new trial under the information as filed hut with reference to the proper statute.
North, C. J., and Starr, "Wiest, Btjshnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Williams, J.
This case along with its two companions of Rowland v Detroit Automobile Inter-Insurance Exchange, 34 Mich App 267 (1971) and Boettner v State Farm Mutual Ins Co, 34 Mich App 510 (1971) comprise a trilogy of cases presenting issues of first impression since the passage of 1965 PA 388; MCLA 500.3010; MSA 24.13010. This act provides in pertinent part as follows:
«N0 * * * policy * * * shall be delivered * * * unless coverage is provided therein * * * for the protection of persons insured thereunder * * * in limits * * * set forth in [the Motor Vehicle Code ] * * * unless the named insured rejects such coverage in writing * * * .”
The general question in each of these cases is the extent to which the above statute allows a person injured in an accident by an uninsured motorist to recover on more than one so-called "other insurance” policy where the damages suffered exceed the limits of one or both policies.
The particular issues in this case are:
I. Does the specific language of the "other insurance” limitation against recovery on other insurance policies as well as the primary policy in the uninsured motorist coverage apply to the facts of the instant case?
II. If so, does 1965 PA 388; MCLA 500.3010; MSA 24.13010 invalidate such "other insurance” limitation? Specifically, can the insured guest passenger of an insured host driver, who is injured in an accident through the fault of an uninsured motorist, combine recoveries (i.e. stack or pyramid) from the two different insurance companies which covered the guest passenger and host driver in excess of the limitation provisions?
On August 27, 1966, Jerome Blakeslee was riding as a guest passenger in the car of the host driver and owner Bernard Butcher. A collision occurred between the host driver and an uninsured motorist. The guest passenger suffered fatal, injuries in the automobile collision. The host driver had uninsured motorist liability coverage through Riverside Insurance Company providing benefits of $10,000 payable for injuries to or death of one person occupying the automobile. The guest passenger had a similar policy issued by defendant Farm Bureau which covered the insured while riding as a passenger in an automobile owned and operated by another person.
Decedent’s wife, in her capacity as the administratrix of the decedent’s estate, instituted suit against the driver of the uninsured automobile, to recover damages resulting from the alleged wrongful death of Jerome Blakeslee. She recovered on her suit in the amount of $112,007.71 with a' reduction upon the judgment in the amount of $18,300 as monies received by the administratrix under the host driver’s policy and from the Michigan Motor Vehicle Accident Claims Fund. The net judgment against the driver of the uninsured vehi cle was, therefore, $93,707.71.
Subsequent to the judgment against the uninsured motorist, plaintiff administratrix brought suit against defendant Farm Bureau seeking recovery of the $10,000 uninsured motorist coverage provided for in the policy issued to decedent. The cause was submitted to the circuit court before the Honorable Donald L. Reisig. Defendant denied liability based upon an "other insurance” limitation contained in the policy which provides:
"Other Insurance: With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under Part IV shall apply only as excess insurance over any similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.
"Except as provided in the foregoing paragraph if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.”
Judge Reisig held that this "other insurance” limitation conflicted with the plain language of the uninsured motorist statute and thus was invalid and entered judgment for plaintiff administratrix for the full sum of $10,000. The Court of Appeals affirmed the trial court’s decision, finding that the insurer was no longer free, as he had been prior to the statute, to insert language restricting the coverage to less than the statute requires. 32 Mich App 120.
I.
The limiting language of the other insurance provision of decedent guest passenger’s policy issued to him by the defendant appears to definitely cover a guest passenger insured in a third-party host driver’s car. The relevant language of the policy is:
"Other Insurance: * * * while occupying an automobile not owned by the named insured, the insurance * * * shall apply only as excess insurance over any similar insurance available to such insured and applicable to such automobile as primary insurance * * * .”
Defendant claims nonliability because of this limitation, and cites our decision in Horr v Detroit Automobile Inter-Insurance Exchange, 379 Mich 562 (1967) as controlling in not allowing stacking. In Horr, this Court held that the "other insurance” limitation clauses in two separate policies of insurance required pro-rata contribution by the two insurance companies, but only until a total of $10,000, the maximum average contained in each policy had been paid to the claimant. Thus, each insurance company could be held liable for only $5,000, no matter how large the claimant’s damages were.
The Horr decision is clearly distinguishable. The accident which gave rise to the controversy in Horr occurred in 1963 when there were no statutes requiring the inclusion of an offer of uninsured motorist coverage in policies of insurance. This Court specifically did not take MCLA 500.3010; MSA 24.13010 and MCLA 257.504(d); MSA 9.2204(d) into consideration in arriving at our decision in Horr. The Court noted this in stating:
"We find no statutory or decisional law of this State applicable in 1963 to the insurance clauses requiring our interpretation and the parties assert there were none. Consequently, our task is limited to determining the intent of the contracting parties.” Horr, supra, 566.
II.
Thus, the disposition of this case turns on the effect of 1965 PA 388; MCLA 500.3010; MSA 24.13010 on the "other insurance” limitation in defendant’s policy. In other words, does the "other insurance” limitation contravene the policy of the statute?
Though a matter of first impression with this Court, several other jurisdictions have considered the problem in interpreting similar uninsured mo torist statutes. The cases are divided. There are 19 states plus 1 Federal case applying state law which disallow such limitations as contrary to the statute. There are eight states with a contrary doctrine but only three of them are directly on point — in three there is no uninsured motorist statute involved, in two the statute itself allows prorating. This leaves a heavy preponderance in favor of disallowing such limitations.
The trend of the most recent decisions where an uninsured motorist statute is involved is toward allowing stacking (i.e. voiding "other insurance” clauses). This is persuasive but not decisive. Determinative must be the apparent policy of the Michigan Legislature.
Defendant argues that "the purpose of the statute in making uninsured motorist coverage compulsory * * * is to give the same protection to a person injured by an uninsured motorist as he would have if he had been injured in an accident caused by an automobile covered by a standard liability insurance policy.”
We are unable to accept defendant’s construction of the statute. The language of the statute is plain, unambiguous and mandatory.
It unequivocally requires that "[n]o * * * policy * * * be delivered * * * unless coverage is provided therein”. Stated in the affirmative, every policy must have this coverage. Only after the mandatory offer is made can the insured reject it in writing.
Nowhere in the statute does the Legislature attempt to fix any maximum amount of recovery less than the amount of the loss. The lack of proration language in the statute is conspicuous and can only weigh in favor of an inference of allowing stacking recovery.
As was said in State Farm Mutual Automobile Co v Murphy, 226 Ga 710, 714; 177 SE2d 257, 260 (1970), "The statute is designed to protect the insured as to his actual loss, within the limits of the policy or policies of which he is the beneficiary”.
It would be unconscionable to permit an insurance company offering statutorily required coverage to collect premiums for it with one hand and allow it to take the coverage away with the other by using a self-devised "other insurance” limitation. Nothing could more clearly defeat the intention of the Legislature.
As Judge Levin convincingly argued, concurring in Collins v Motorists Mutual Insurance Co, 36 Mich App 424, 435-436 (1971):
"Read in conjunction with the motor vehicle accident claims act it is apparent that the legislative purpose in adding § 3010 to the insurance code * * * was to reduce claims against the fund.
"Having in mind that legislative purpose, it is clear that allowing insurance carriers to eliminate or reduce their liability in situations where the insured person has or can recover under other insurance would be contrary to the intent of the Legislature and on that ground I agree with my colleagues that an 'other insurance’ clause is invalid to the extent of the statutorily required $10,000/$20,000 uninsured motorist insurance protection.”
Given this clear purpose and the mandatory language of the statute, such language must be read into those provisions of a policy of insurance that differ or vary from the statutory language.
Defendant fails to properly differentiate between reducing insured’s loss and escaping liability. Under the statute, a payment to decedent’s estate from other sources merely reduces the loss of the injured party and not the $10,000 liability of dece dent’s insurer. "If an insured’s loss has been totally compensated by other insurance he is no longer 'legally entitled’ to recover damages.” Collins, supra, 432-433. That is, the insured may pyramid recovery until his judicially determined loss has been satisfied.
If this Court allowed an insured to recover amounts above his actual loss, only then would the insured reap an unjust windfall. This, clearly, is not our holding. The only windfall in this case would be that going to defendant if it were allowed to charge premiums for coverage it would not deliver.
We believe that the rule stated in Safeco Ins Co of America v Jones, 286 Ala 606, 614; 243 So 2d 736, 742 (1970) represents the better reasoning as well as the majority rule, which we now adopt. There the Court stated:
"We hold that our statute sets a minimum amount for recovery, but it does not place a limit on the total amount of recovery so long as that amount does not exceed the amount of the actual loss; that where the loss exceeds the limit of one policy, the insured may proceed under other available policies; and that where the premiums have been paid for uninsured motorist coverage, we cannot permit an insurer to avoid its statutorily imposed liability by its insertion into the policy of a liability limiting clause which restricts the insured from receiving that coverage for which the premium has been paid.”
The decision of the Court of Appeals is affirmed with all costs going to the plaintiff.
T. M. Kavanagh, C. J., and Adams, T. E. Brennan, T. G. Kavanagh, and Swainson, JJ., concurred with Williams, J.
Black, J., did not sit in this case.
MCLA 257.504(d); MSA 9.2204(d) reads in pertinent part as follows:
"Every such policy or bond is subject to a limit, exclusive of interest and costs, of not less than $10,000.00 because of bodily injury to or death of 1 person * * * , to a limit of not less than $20,000.00 because of bodily injury to or death of 2 or more persons in any one accident, and to a limit of not less than $5,000.00 because of injury to or destruction of property of others in any accident.”
Prior to the entry of the judgment against the driver of the uninsured motor vehicle the administratrix had received payment from Riverside Insurance Co. in the amount of $8,604.95, and $9,250.00 from the accident claims fund. The Riverside Insurance Co. paid out all of the $20,000 of its coverage, but since a number of persons were injured in the accident, plaintiff’s pro-rata share came to only $8,604.95.
Although the amounts actually received by the plaintiff totaled only $17,854.95, and the trial judge deducted $18,300 from her judgment, plaintiff, in pre-trial statement, agreed to treat the payments as totaling $18,300.
The language of the "other insurance”' clause of the policy in Horr is not identical to the clause in the case at bar. The "other insurance” clause in Horr’s exchange policy reads, in pertinent part, as follows:
"With respect to bodily injury to an insured sustained while occupying an automobile or through being struck by an uninsured automobile, if such insured is a named insured under other similar insurance available to him, then the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the Exchange shall not be liable under this coverage for a greater proportion of the applicable limit of liability of this coverage than such limit bears to the sum of the applicable limits of liability of this insurance and such other insurance.”
See cases cited in the annotation at 28 ALR3d 551, 556-559.
The following cases hold or recognize that an "other insurance” provision is invalid when contained in a policy providing protection against injuries caused by uninsured motorists (18 jurisdictions):
STATE:
Alabama: Safeco Ins Co of America v Jones, 286 Ala 606; 243 So 2d 736 (1970).
Arizona: Bacchus v Farmers Ins Group Exch, 106 Ariz 280; 475 P2d 264 (1970).
Florida: Sellers v United States Fidelity & Guaranty Co, 185 So 2d 689 (Fla, 1966).
Georgia: State Farm Mutual Automobile Ins Co v Murphy, 226 Ga 710; 177 SE2d 257 (1970).
Illinois: Morelock v Millers’ Mutual Ins Assn, 125 Ill App 2d 283; 260 NE2d 477 (1970) (refusing to follow earlier Illinois Appellate decisions validating such clauses).
Indiana: Patton v Safeco Ins Co of America, 267 NE2d 859 Gnd App, 1971).
Kansas: Sturdy v Allied Mutual Ins Co, 203 Kan 783; 457 P2d 34 (1969).
Kentucky: Meridian Mutual Ins Co v Siddons, 451 SW2d 831 (Ky, 1970).
Massachusetts: Johnson v Travelers Indemnity Co, 71 AS 869; 269 NE2d 700 (Mass, 1971).
Mississippi: Harthcock v State Farm Mutual Automobile Ins Co, 248 So 2d 456 (Miss, 1971).
Nebraska: Bose v American Family Mutual Ins Co, 186 Neb 209; 181 NW2d 839 (1970).
Nevada: United Services Automobile Assn v Dokter, 86 Nev 917; 478 P2d 583 (1970) (stacking permitted although policies prior to uninsured motorist law).
North Carolina: Moore v Hartford Fire Ins Co Group, 270 NC 532; 155 SE2d 128 (1967).
Ohio: Curran v State Automobile Mutual Ins Co, 25 Ohio St 2d 33; 266 NE2d 566 (1971).
Pennsylvania: Harleysville Mutual Casualty Co v Blumling, 429 Pa 389; 241 A2d 112 (1968).
South Carolina: Vernon v Harleysville Mutual Casualty Co, 244 SC 152; 135 SE2d 841 (1964).
Texas: Fidelity & Casualty Co of New York v Gatlin, 470 SW2d 924 (Tex App, 1971).
Virginia: Bryant v State Farm Mutual Automobile Ins Co, 205 Va 897; 140 SE2d 817 (1965) (overruling Travelers Indemnity Co v Wells, 316 F2d 770 [CA4,1963]).
And see Sparling v Allstate Ins Co, 249 Or 471; 439 P2d 616 (1968) (implying that there is nothing offensive about stacking insurance benefits under the "Lamb-Weston” doctrine — there is no statute involved);
Aldcroft v Fidelity & Casualty Co of New York, 106 RI 311; 259 A2d 408 (1969) (which involves denial of workmen’s compensation deduction from uninsured motorist recovery).
FEDERAL:
New Mexico: American Mutual Ins Co v Romero, 428 F2d 870 (CA10,1970) (applying New Mexico law).
The following cases hold or recognize the validity of "other insurance” provisions in a policy providing protection against injuries caused by uninsured motorists (eight jurisdictions):
STATE:
Arkansas: MFA Mutual Ins Co v Wallace, 245 Ark 230; 431 SW2d 742 (1968) (cites the New Hampshire case as authority).
California: Darrah v California State Automobile Assn, 259 Cal App 2d 243; 66 Cal Rptr 374 (1968) (California by statute has expressly provided for proration of damages in the event of multiple coverage in uninsured motorist cases. Cal Ins Code, 11580.2[d]).
Iowa: Burcham v Farmers Ins Exch, 255 Iowa 69; 121 NW2d 500 (1963) (no state uninsured motorist statute involved).
Louisiana: Leblanc v Allstate Ins Co, 194 So 2d 791 (La App, 1967) (Louisiana statute permits limitation of liability).
New Hampshire: Maryland Casualty Co v Howe, 106 NH 422; 213 A2d 420 (1965) (citing the Iowa case and the now overruled Travelers Indemnity Co v Wells, 316 F2d 770 (CA4,1963).
New York: Globe Indemnity Co v Baker’s Estate, 22 App Div 2d 658; 253 NYS2d 170 (1964) (giving effect to an excess insurance provision though not discussing any statute and relying on Burcham v Farmers Ins Exch, Iowa supra).
Utah: Martin v Christensen, 22 Utah 2d 415; 454 P2d 294 (1969).
Washington: Miller v Allstate Ins Co, 66 Wash 2d 871; 405 P2d 712 (1965) (no discussion of the effect of a statutory minimum).
12 Couch on Insurance 2d, § 45:623, p 570.
See also Maryland Casualty Co v Howe, supra (see fn 6).
See MCLA 500.3012; MSA 24.13012 which provides in pertinent part as follows:
"Such a liability insurance policy issued in violation of sections 3004 through 3012 shall, nevertheless be held valid but be deemed to include the provisions required by such sections * * * . ” (Emphasis added.) | [
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North, C. J.
Defendant in this case is a licensed chiropractor. In August, 1940, plaintiff’s decedent, who was plaintiff’s husband, went to defendant’s office and was there professionally treated. ■ Subsequent treatments followed at defendant’s office until October 2d, and thereafter defendant continued to treat plaintiff’s decedent at the latter’s home until October 22, 1940. On October 23d Dr. Carlson, an M. D., “took the case over,” and thereupon plaintiff’s decedent was removed to a hospital where he received medical care and where his death occurred on the 9th day of December, 1940. Defendant diagnosed decedent’s ailment as cirrhosis of the liver and nephritis, accompanied by “swollen ankles, a labored heart, shortness of breath, high blood pressure, nausea, headaches and ascites.” A post mortem disclosed, as stated in appellant’s brief: “an early cardiac type of cirrhosis of the liver. And the immediate cause of death was given as ‘myocardial hypertrophy with right auricular mural thrombosis.’ The nephritis was secondary to the cirrhosis as the cause of heart failure and the esophageal hemorrhage.”
Plaintiff’s declaration in substance is on the theory that defendant improperly treated her decedent for the ailments with which he was afflicted and that defendant undertook to treat decedent in a manner other than is lawful for a chiropractor, i. e., medically; and in so doing defendant caused plaintiff’s decedent to suffer pain, and that defendant aggravated decedent’s illness, injured his internal organs which resulted in his death or brought about • his premature death, and that defendant’s wrongful conduct disabled plaintiff’s decedent from continuing his regular occupation and earning a compensation of about $100 per week, and that defendant wrongfully subjected decedent to great expense for hospital, medical, nurses’ care, et cetera; and further that by his wrongful conduct defendant deprived plaintiff of the portion of decedent’s earnings which she otherwise would have had for her maintenance.
The case was heard by the circuit judge without a jury. There is irreconcilable conflict between the testimony offered in behalf of plaintiff and that offered in behalf of defendant. In brief there is testimony offered in behalf of plaintiff given by Dr. Curtis tending to sustain plaintiff’s contention that defendant in treating plaintiff’s decedent was guilty of such 'negligence or misconduct as would entitle plaintiff to recover damages; but on the other hand there is testimony of one of plaintiff’s witnesses, Dr. Carlson, who was a doctor of medicine and who attended plaintiff’s decedent during the latter part of his illness and was present at the post mortem, that nothing was done by defendant in the course of his treatment of plaintiff’s decedent that was detrimental to the welfare of the decedent or in consequence of which it could be said defendant failed in the performance of his professional duty. The opinion of the circuit judge rendered incident to his decision of the ease discloses that he carefully weighed the testimony and came to the conclusion after so doing that the plaintiff had not sustained the burden of proof which was essential to her right of recovery. Incident to a motion for a new trial a second opinion was rendered by the circuit judge, and here again it is disclosed that he carefully considered the whole record in arriving at his conclusion that plaintiff had not established a right to recover. In this latter opinion the trial judge covered plaintiff’s contention that defendant failed in his duty to recommend that plaintiff’s decedent be removed to a hospital, especially after it became apparent defendant could not successfully treat decédent. It was the contention of plaintiff that defendant did not make such a recommendation, but on the other hand defendant asserted that he had urged the removal of decedent to a hospital, but that plaintiff and her husband did not timely follow defendant’s recommendation. As bearing upon this issue the trial judge in his opinion denying the motion for a new trial notes the following: “It stands out'in my memory now that Mrs. Deacon denied emphatically that the defendant Jaerling had ever suggested to the deceased that he ought to be hospitalized; she denied that, she said he never did; and it was a rather astounding piece of testimony that came from Dr. Carlson that both Mrs. Deacon and her deceased husband had told him that they were sorry they did not come into the hospital before as Dr. Jaerling had advised them to do.” So on this issue, after carefully considering the testimony, the trial judge held, and properly so, that plaintiff had not sustained her contention.
Our review of this record as a whole satisfied us that the trial judge, sitting without a jury, carefully considered the testimony and arrived at the right re- suit. Plaintiff did not establish the essential elements of her case by a preponderance of the testimony. The judgment entered in favor of defendant is affirmed, with costs to appellee.
Starr, Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Wiest, J.
A husband and wife held title to real estate by the entireties. The husband is insane and in an asylum. .For nonpayment of taxes the property was sold at tax sale and title vested in the State. At the subsequent so-called scavenger sale by the State defendant Migdoll was the highest bidder and received a certificate of purchase if his bid was not matched within 30 days by the former owners or some person within the provisions of Act No. 155, § 5a, Pub. Acts 1937, as added by Act No. 363, Pub. Acts 1941 (Comp. Laws Supp. 19^3, § 3723-5a, Stat. Ann. 1943 Cum. Supp. §7.955 [1]), which reads:
‘ ‘ The term ‘ owner ’ as used in this act shall mean, the owner of any estate or enforceable legal interest in the land at the time title thereto vested in the State, or the assignee or grantee thereof by conveyance, assignment or operation of law effective prior to the date of sale under section 6 or 7 hereof or other prior disposition of such land by the board or department, as the case may be.”
Plaintiff under a quitclaim deed executed by the wife, one tenant by the entirety, claims to have such an interest thereunder as to enable him to match the bid of defendant Migdoll at the scavenger sale and filed the bill herein to have it so decreed. He was granted decree to such effect, from which defendant Migdoll prosecutes this appeal.
Plaintiff under the quitclaim deed from one tenant by the entireties did not acquire any estate or interest in the land and was not within the term “owner” as defined and enlarged in meaning* by the mentioned provision of Act No.' 155, Pub. Acts 1937, as added by Act No. 363, Pub. Acts 1941. This court has repeatedly held that when title to real estate is vested in husband and wife by the entireties such an estate bars separate alienation by one spouse only. See Eadus v. Hunter, 249 Mich. 190; Nurmi v. Beardsley, 275 Mich. 328; Long v. Earle, 277 Mich. 505.
The decree in the circuit court is reversed and the bill dismissed, with costs to defendant Migdoll.
North, C. J., and .Starr, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Dethmers, J.
This case makes its second appearance here. Previously we reversed the trial court’s order dismissing plaintiff’s declaration and remanded the cause for trial. 322 Mich .411. Plaintiff now "appeals from judgment for defendant entered upon a verdict of no cause for action.
Suit was. brought for damages allegedly occasioned by claimed interference with plaintiff’s right of privacy by means of publication of her picture in a newspaper advertisement of certain cosmetics without her previous knowledge or consent. Some of the facts may be gathered from our previous opinion. Others will be mentioned in discussion of the questions to which they are pertinent.
Plaintiff first assigns as error the court’s claimed refusal to permit her attorney to state his theory of the law in his opening statement to the jury, citing Fosdick v. Van Arsdale, 74 Mich 302; Edwards v. Common Council of Village of Three Rivers, 96 Mich 625; People v. Smith, 177 Mich 358; Prentis v. Bates, 93 Mich 234 (17 LRA 494); People v. Lee, 258 Mich 618. Examination of the record discloses that counsel attempted to tell the jury what the court’s instructions' would be and, next, what the law was; that, upon defendant’s objection thereto and insistence that plaintiff’s attorney limit himself to a statement of what he claimed the law to be, the court ruled that counsel might state his claim accordingly, but not argue the law in his opening statement. The effect of the court’s ruling was not contrary to the cited cases inasmuch as it did not deprive plaintiff’s attorney of the right to state his claim of the law in his opening statement.
Plaintiff made a request to charge, the substance of which was given except for statements therein contained that “defendant is liable to plaintiff in money damages” and “plaintiff is entitled to an award of ‘substantial’ damages.” Instructions to that effect, amounting to a directed verdict for plaintiff, were properly denied because inconsistent with the holding of our previous opinion that plaintiff’s right to recover depends upon showing, as a matter of fact, an unreasonable and serious interference with her right of privacy. On that point a question of fact was presented by testimony showing that the picture in question was taken by a commercial photographer at the instance of plaintiff’s employer for publicity purposes in connection with her employment as a show girl and that it was available, with plaintiff’s consent, to the photographer, with whom she.had registered as a photographic model, in an effort to get a start as a model.
Plaintiff complains of the court’s submission to the jury of the question of her waiver of the right to privacy. In this connection it must be observed at once that the case at bar does not involve libel or slander nor is it an action for compensation for the unlawful taking or use of plaintiff’s property right in the appearance of her face or features or in the picture itself. Not in point, therefore, are the holdings in cases of that character to the effect that a waiver for 1 purpose or. to 1 class or individual does not constitute a waiver for all purposes and to all classes and individuals. Here action is brought solely for damages claimed to have resulted from invasion of plaintiff’s right of privacy. As we held when the case was here before, recovery is dependent upon a showing of an unreasonable and serious interference with that right. Whether a claimed interference therewith is in fact unreasonable or serious may well depend on whether plaintiff had in any particular or degree abandoned her strictly private character and waived to any extent the right to absolute privacy. The testimony in the case warranted submission to the jury of the question of whether plaintiff had cast aside the cloak of privacy of the ordinary, private person, embraced a public or professional role as show girl or model and thereby waived her right to be free from an invasion of privacy which the jury evidently found, under appro priate instructions, to be neither serious nor unreasonable.
With regard to plaintiff’s complaint that the court’s charge in respect to damages was contradictory and ambiguous, we think that, taken as a whole, it fully and fairly stated the law applicable to the case, and was free from prejudicial error.
Other claims of error in the charge of the court or in admission of testimony are founded on plaintiff’s concept of an absolute liability for the unauthorized publication of her picture. Such is not the rule announced in our previous decision.
Affirmed, with costs to defendant.
Butzel, Carr, Bushnell, Sharpe, ■ Boyles, and Reid, JJ., concurred.
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Swainson, J.
On April 23, 1962, Stanley J. Kush was injured while in the employ of Massey-Ferguson, Inc. On May 10, 1962 he filed a claim for workmen’s compensation benefits. After the defendant in that action and its insurer filed a notice of defenses, Mr. Kush retained the respondent, Mr. Freid, to prosecute the claim.
On October 1, 1962, respondent filed an appearance in the case on behalf of Mr. Kush. Mr. Freid handled the case for Mr. Kush over the next three years. This included three separate hearings on September 24, 1963, April 2, 1964, and December 15, 1964. A decision was mailed on August 6, 1965, awarding Mr. Kush compensation at the rate of $33 per week until further order of the department. Defendant Massey-Ferguson filed an appeal with the Workmen’s Compensation Appeal Board. On July 20, 1967, the Appeal Board reversed the ruling of the referee.
Mr. Kush testified that upon receipt of the Appeal Board’s decision he called Mr. Freid who told him "[i]t don’t look good” but that he would appeal it. Mr. Kush then asked Mr. Freid if he would get a letter on what happened and was told yes. Mr. Kush was informed that an appeal would take two to three months. After seven months of not having heard anything, Mr. Kush called respondent’s office. Mr. Freid was not in and Mr. Kush left a message to call him. After not receiving a return call, Mr. Kush called Mr. Freid the following day. Mr. Kush asked if respondent had received his message and was told that he had. He left another message to return his call and again received no response. Mr. Kush did nothing for 2-1/2 years when he again called respondent, who returned the call and informed him that he had not taken an appeal.
On October 29, 1970, Mr. Kush filed a request for an investigation with the State Bar Grievance Committee. On September 20, 1971 a hearing panel in Wayne County found respondent guilty of violating Canon 21 of the Canons of Professional Ethics and issued a reprimand. On October 13, 1971 the State Bar Grievance Board affirmed the hearing panel. Respondent filed a claim of appeal with this Court on December 29, 1971.
Respondent has raised five separate issues on appeal. However, counsel for the State Bar Grievance Administrator in his brief and at oral argument made certain statements which are sufficient to require a reversal. The brief of the State Bar Grievance Administrator states:
"We think the appellant misconceives the issue in this case. The issue is not whether an attorney is subject to censure for failing to appeal a nonappealable fact case. It is where he has advised his client that he would take an appeal, fails to do so and fails to advise his client that he cannot or will not take such appeal, causing the client to lose an action on an insurance policy. ■’’(Emphasis added.)
The brief further states:
"There was at that time still a year in which Mr. Kush could have pursued his insurance claim. Even seven months later when Mr. Kush called appellant and received no reply, he had five months to pursue his insurance claim. As a result of appellant’s negligence, Mr. Kush lost his rights to insurance beneñts. ” (Emphasis added.)
And further, the State Bar Grievance Administrator stated:
"Appellant is confused. There is no charge that the statute of limitations was involved in the compensation case. The statute of limitations related to Mr. Kush’s insurance claim. ’’(Emphasis added.)
Thus, it appears that Mr. Freid was disciplined because his alleged negligence caused Mr. Kush to lose his rights on an insurance policy. However, the complaint that was filed against Mr. Freid in this case reads as follows:
"4. That the charge of misconduct against said Respondent is as follows:
"a) In acting as counsel for Stanley J. Kush, Respondent violated the Canon of Professional Ethics number 21 in that he failed to prosecute a workmen’s compensation claim after it had been reversed by the Appeal Board thereby permitting the claim to become barred by the statute of limitations.”
Even a cursory reading of the complaint indicates that the claim referred to as barred by the statute of limitations was the workmen’s compen sation claim. No mention is made of the fact of any insurance policy in the complaint. The State Bar alleges that Mr. Freid knew of the insurance policy. However, his knowledge of such a policy did not change the fact that he was not charged with wrongdoing concerning an insurance policy.
In State Bar of Michigan v Woll, 387 Mich 154 (1972), the Court stated (p 161):
"Although it is not necessary to observe all of the rules of criminal law and procedure in a disbarment proceeding, nevertheless our Court has long recognized that a disbarment proceeding is quasi-criminal in character.”
See also: Matter of Hamilton Baluss, 28 Mich 507 (1874) and In re Clink, 117 Mich 619 (1898).
It is a fundamental rule of due process that a person must have notice of the charges against him. Particularly is this true in a proceeding where a person is being challenged as to his right to continue to pursue his professional life. This notice is provided by the filing of the complaint. The complaint in this matter is shamefully defective and should be a source of embarrassment to both the hearing panel and the Grievance Board. In this case, the respondent did not receive the notice that due process requires. The failure on the part of the State Bar to provide such notice violated respondent’s constitutional rights and re quires a reversal of his censure. The judgment is reversed.
T. M. Kavanagh, C. J., and Black, Adams, T. E. Brennan, and T. G. Kavanagh, JJ., concurred with Swainson, J.
Canon 21 of the Canons of Professional Ethics provides:
"It is the duty of the lawyer not only to his client but also the Courts and to the public to be punctual in attendance, and to be concise and direct in the trial and disposition of causes.”
Const 1963, art 1, § 20 provides:
"In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than 12 jurors in all courts not of record; to be informed of the nature of the accusation; to be confronted with the witness against him; to have compulsory process for obtaining witnesses in his favor; to have the assistance of counsel for his defense; to have an appeal as a matter of right; and in courts of record, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.” | [
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Reid, J.
Plaintiff Sol Blumrosen in the first above entitled case (hereinafter ref erred, to as appellant) appeals from a judgment for the appellee Silver Flame Industries, Inc., with costs to appellee, rendered in the circuit court on an appeal to that from the common pleas court of the city of Detroit where verdict for appellee had been directed and judgment entered thereon; and said Blumrosen also appeals from a judgment in favor of appellee Silver Flame Industries, Inc., in the second above entitled case and against Blumrosen (defendant in said second case) in the sum of $625 with costs to Silver Flame Industries, Inc., likewise rendered in circuit court on appeal from the common pleas court of the city of Detroit where verdict had been directed for appellee and judgment entered thereon.
On May 22, 1950, Silver Flame Industries, Inc. (hereinafter referred to as appellee), began suit (the second suit above entitled) in the common pleas court of the city of Detroit to recover for payments past due and unpaid under an agreement in writing with appellant Blumrosen (a practicing attorney since 1913), under which appellee agreed to sell to .appellant 4 ceiling suspended furnaces and 4 oil storage tanks, and install said heaters and tanks in a block of 4 stores owned by appellant at 9141 Dexter, 3701 Joy road, 3703 Joy road, and 3705 Joy road, Detroit, for a gross sum of $1,988.93 payable in specified instalments with interest. The agreement was without acceleration clause for defaulted payments, and contained no express warranties or express 'guaranties.
When appellee began its said suit, appellant had paid a total of $1,096.26 and had defaulted on 5 monthly payments amounting to $625 and still owed a balance of $1,000 on said agreement. The contract 'was an agreement to sell with the vendor retaining the title until payment of the full amount.
In his answer filed June 19,1950, to the declaration in the suit against him, appellant admitted the delivery of the 4 furnaces and tanks, denied his default in payment and claimed that appellee made representations, guaranties and warranties to appellant before appellant signed the agreement, which representations, guaranties and warranties were breached by appellee, and asserted that he, appellant, had notified appellee that he, appellant Blumrosen, had rescinded the agreement and that the agreement was null and void; and in his said answer,' appellant further stated that there was an implied'1 warranty of fitness and suitability of the equipment, which warranty was breached by appellee and that' therefore, he, appellant Blumrosen, had rescinded the agreement, that the heating units were worthless to him. Included with his said answer is appellant’s claim of set-off and' recoupment for $1,100, the amount paid by him on the agreement, also for $400, the.approximate cost of painting the stores damaged by leak of the equipment and for $200, the approximate cost of removing the equipment.
On May 23, 1950 (the next day after he was sued by appellee), appellant Blumrosen started suit (the first suit above entitled) against appellee. In his amended declaration are 3 counts. In count 1, appellant alleged breach by appellee of certain representations, guaranties, warranties and promises (claimed by appellant to be false) made to appellant before he signed the agreement in question and that therefore appellant has rescinded the agreement and that .appellee became indebted to him for about $1,500, the moneys paid by him on the agreement. Count 2 alleged breach of implied warranty, and that for such breach appellant rescinded the contract, and that appellee became indebted to appellant for approximately $1,500 paid by him on the agreement. Count 3 of appellant’s declaration alleges that because of the failure of the heating units “to heat * * * cleanly,” appellant will be obliged to repaint the stores at an approximate cost of $400; and further that because of the failure of the heating units “to heat * * * comfortably and cleanly, and at a cost no greater than gas heating units,” appellant •will be obliged to remove the units at a cost of approximately $200; and further that by reason of those facts, appellee has become indebted to appellant for $1,500, wherefore appellant asks judgment.
The 2 suits were tried together before the common pleas court with a jury, though not technically consolidated for trial.
It will be noted that appellant, consistently in his pleadings in both suits, claimed that he had made rescission and claimed damages consequent upon and consistent only with rescission by him.
After the jury had been sworn, an opening statement was being made by appellant, and it became apparent he was claiming damages which could he awarded only on the theory that the agreement was still valid and binding as an existing contract. Appellant made no offer to amend his pleadings to state that he claimed alternative remedies or awards consistent only with alternative theories. The court required an election. As a conclusion of his opening statement to the jury, appellant said:
“We will show you that sometime in the spring of 1950 I served this Silver Flame Industry with a notice of rescission, that I had rescinded this contract and demanded my money, and asked for the-return of my money. I will show you that thereafter I was forced to expend money in painting and redecorating and removing dirt, and I feel and I maintain, members of the jury, that if I establish these facts to your satisfaction, that I ask for a verdict for the return of the money that I have paid this Silver Flame Industry.”
The trial court in effect ruled that appellant stood upon his claimed' rescission, and was asking for a return of the money that he had paid appellee.
Appellant introduced testimony tending to show damages as for a breach of the contract, among other things. There was undisputed testimony that appellant had removed 3 heating units from his stores, but that 1 of the heating units was retained by the appellant and was still in use as a heating unit in the-drugstore. The agreement contained only a lump-sum as the consideration for the 4 heating units and tanks with no criterion expressed in the contract for the separate values of the units.
The trial court ruled that the contract was indivisible and that under his pleadings and opening statement, appellant Blumrosen could not recover for damages occasioned by breach of the contract.
“ ‘Divisible contract to sell or sale’ means a contract to sell or a sale in which by its terms the price for a portion or portions of the goods less than the whole is fixed or ascertainable by computation.” CL 1948, § 440.76 (Stat Ann § 19.316).
“As a general rule the right to rescind must be exercised in toto. The contract must stand in all its provisions or fall altogether. Accordingly a party cannot repudiate a contract or compromise so far .as its terms are unfavorable to him and claim the benefit of the residue. A partial rescission, however, may be allowed where the contract is a divisible one.” 12 Am Jur, p 1027, § 444.
“A contract to ‘manufacture, transport, deliver, •and set up ready for use’ chairs for equipment of a theater for a stated price per chair payable on completion of the contract, held entire and not divisible.” A. H. Andrews Co. v. Colonial Theatre Co., 283 Fed 471 (per syllabus 2).
There is nothing contained in the contract in question nor in the testimony, to show what proportionate share of the whole cost of furnishing and installing the equipment in question, would be attributable to the heating unit retained in the.drugstore as compared with the value and cost attributable to the 3 units which appellant Blumrosen removed from 3 .stores and held ready for appellee’s call.
The trial court correctly ruled that the contract in question is indivisible. It being indivisible, appellant’s attempt at rescission must fail, for he did not .make a complete rescission. His rescission having .failed, appellant Blumrosen’s case must fail, for he based his whole case upon rescission, in each case.
The judgment in each case is affirmed. Costs of •both courts in each case to appellee Silver Flame Industries, Inc.
Dethmers, Butzel, Carr, Bushnell, Sharpe, and Boyles,. J.J., concurred.
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North, C. J.
This is an appeal from the recorder’s court for the city of Detroit. On De cember 10, 1940, Frank Greco, tbe appellant, together with Frank Amor ello and Kenneth Walker, were jointly charged on two counts, (1) breaking and entering a dwelling in the nighttime with intent to commit a felony, and (2) larceny. Walker pleaded guilty. The other two pleaded not guilty and waived jury trial. After the court heard the evidence, Amorello withdrew his plea of not guilty and on January 25, 1941, pleaded guilty. Upon motion by appellant, the court then declared a mistrial as to Greco. Thereafter, on March 21, 1941, Greco was tried before a jury, found guilty and later sentenced.
On December 7, 1940, Greco gave a statement to police officers admitting participation in the crime.. The stenographic record of this confession was made by Ann Seniclc who was later indorsed on the information as a witness for the people. After the mistrial, the prosecutor’s motion that the name of this stenographer be stricken from the information was granted. Counsel for defendant was advised of this' procedure before the second trial. It is a fair inference from the record that defendant’s counsel at the time of the jury trial made a motion to have Ann Seniclc’s name indorsed on the information, and that this motion was denied. Defendant made no showing that Ann Seniclc was a res gestae witness. She was not an eyewitness. The confession appears in the record only through the testimony of the police officer who had charge of the case. Walker, who was a witness at the trial, testified the confession was signed only to expedite getting out of the police station. As Ann Seniclc was not an eyewitness, the prosecution was not obliged to produce her at the trial. The defendant’s attorney knew her name had been stricken from the information but did not take any timely action to obtain her testimony. Hence the defendant is not now in a position to claim error in this regard.
In appellant’s brief the question is also raised as to whether the trial court committed prejudicial error in not having Prank Amorello called as a witness for the State. Amorello’s name was at no time indorsed on the information as a witness. Nor did defendant’s counsel at any time during the trial of the case request that Amorello be produced as a witness. Instead, as hereinafter noted, in defendant’s .motion for a new trial defendant sets up that the testimony which Amorello might have given in behalf of defendant was newly-discovered testimony. Under the circumstances this claim of error is without merit.
The defendant claims error in that the trial judge, in charging the jury, discussed conspiracy notwithstanding the information contained no count charging conspiracy. A careful reading of the charge to the jury persuades us that the reference to conspiracy was not prejudicial (People v. MacCullough, 281 Mich. 15, 28); and further that the charge fully protected the defendant’s rights and properly apprised the jury of its duties and the various verdicts it might return.
Upon motion for new trial on the ground (among others) of newly-discovered evidence, the defendant failed to show by affidavit the nature of such evidence or why it had theretofore been undiscovered. As the evidence claimed to be newly discovered was that of Amorello, one of the three original defendants, we must hold that the defendant had failed to use due diligence in ascertaining such evidence before trial, and also failed to make such a showing as would have justified the court in granting a new • trial on the ground of newly-discovered evidence. There was no error in denying the motion for a new trial.
Nor can we agree with the defendant that error resulted from the same judge hearing this jury case who had previously declared a mistrial. The record is barren of any evidence whatever of disqualification of the judge to continue in the case.
We have examined the other reasons and grounds for appeal and find none which warrant a further discussion of the case.
Judgment is affirmed.
Starr, Wiest, Btjtzel,, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Bushnell, J.
The parties hereto were married on June 18, 1921, and lived and cohabited together until May 1, 1940. One child, a daughter, was born to the parties, and plaintiff had three children by his former marriage. When plaintiff filed his bill of complaint for divorce, the daughter of the parties was 19 years old.
Plaintiff’s bill, which charges extreme and repeated acts of cruelty, was contested by his wife. The trial judge granted a decree of divorce to the husband and the wife appealed.
Much of the testimony pertains to claimed acts of cruelty which occurred shortly after the marriage in 1921, some of which plaintiff insists continued until the separation of the parties 19 years there: after. We refrain from a discussion of the details of those matters, which are so remote in time that they should be ignored. See McGonegal v. McGonegal, 46 Mich. 66.
Plaintiff testified that during the last 10 years his wife became irritable and called him vile names. Disputes over matters more or less inconsequential led to a final separation of the parties on May 11, 1941, since which time plaintiff has provided defendant with $75 a month for maintenance and clothes in addition to paying incidental household bills. He said: “This marriage relationship, as far as I am concerned, is impossible and it has been for 10 years.”
Plaintiff’s three children by his first marriage were 11, 9, and 1 years old when he married the defendant. One of these, a son, now married, testified in his father’s behalf as to “tirades of anger” on the part of his stepmother and arguments between the parents over incidental matters, and in addition thereto, vile language used by the defendant towards his father. The testimony of both father and son indicates jealousy over affairs in the father’s dental office, none of which are of much consequence.
The wife in her testimony admitted the occasional use of vile language but said it was under provocation and for which she expressed regret. As to her outbursts of temper she claims justification. Apart from this, the story is that of an inexperienced young woman who raised the three little children of her husband, bore him a daughter, and assisted him according to her ability in the practice of his dental profession by maintaining a home for the family.
The testimony taken in its entirety presents a situation of incompatibility, but one lacking any of the elements of extreme cruelty. It may be that the parties cannot longer live together as man and wife; at least the husband claims it is impossible although the wife seemingly believes reconciliation is possible.
In any event, considering the testimony de novo, we cannot find any justification for granting plaintiff a divorce on the ground of acts of extreme cruelty after more than 20 years of married life, during which the defendant has devoted the best years of her life to the rearing of plaintiff’s children.
Mr. Justice Campbell, speaking for the court in Cooper v. Cooper, 17 Mich. 205 (97 Am. Dec. 182), said:
“The law does not permit courts to sever the marriage bond, and to break up households, merely because parties, from unruly tempers or mutual wranglings, live unhappily together. It requires them to submit to the ordinary consequences of human infirmities, and of unwise selections, and the misconduct which will form a good ground for a legal separation must he very serious, and such as amounts to extreme cruelty, entirely subverting the family relations by rendering the association intolerable. Our statutes do not confine such cruelty to mere physical violence, which is by no means the worst injury that can be inflicted on persons of refined sensibility, but the grievance of whatever kind, must be of the most aggravated nature to justify a divorce.”
See, also, Brewer v. Brewer, 295 Mich. 370.
In LeBlanc v. LeBlanc, 228 Mich. 74, the court quoted with approval from 9 R. C. L. p. 337, as follows:
“As has well been said, the husband and wife are bound to exercise greater efforts for removing misapprehension, allaying quarrels, smoothing the road to concord, and effecting reconciliation, than are people in other relations of life. The marriage status is not merely contractual so as to entitle each of the parties to demand the strict letter of the bond. It is a status wherein the law operates upon the weakness as well as the strength of human nature, and it will not be dissolved except for grave and substantial causes.”
See, also, DeVuist v. DeVuist, 228 Mich. 454, where the following was said:
“The cause of many of the separations leading to suits for divorce may be traced to marriages consummated with haste and lack of consideration as to resulting happiness. * * * It may be safely said that there are few married persons between whom discord does not at some time arise. Trifling disagreements often cause the breaking of engagements, many times to the after regret of the parties interested. Such disagreements after marriage frequently lead to separations, and are magnified as cause for divorce under the claim that they constitute extreme cruelty. Marriage is not a mere temporary agreement to dwell together for a time for the gratification of desires or the performance of service by one for the other. It is entered into with a view to its continuance through life.”
The decree of the trial court is vacated and one may be entered here dismissing plaintiff’s bill of complaint with costs of both courts to appellant.
It is so ordered.
North, C. J., and Starr, Wiest, Btjtzel, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Cárr, J.
On or about January 1, 1941, the plaintiff and Milan D. Coburn formed a partnership to carry on business under the name of Reliable Lumb'er Company. Said business consisted of the purchase and sale of new and used lumber and other building materials, and eventually was extended to include the salvaging of old buildings and the sale of materials obtained therefrom. The parties operated -under the name indicated until 1946, when difficulties arose between them.
Under date of May 8, 1946, plaintiff Kelso filed suit in the circuit court of Wayne county in equity for an accounting of partnership dealings and transactions between himself and Coburn. The appointment of a receiver of the business was asked, together with incidental 'injunctive relief: The bill charged that Coburn acted as office manager of the business and that as such he failed to keep complete and accurate records of business transactions, and without, the knowledge or consent of plaintiff caused assets of the copartnership to be placed in the names of others, particularly his wife and daughter.. It .was alleged that Coburn had improperly withdrawn assets of the partnership without paying therefor and without keeping a record of such transactions. The defendants named in the bill of complaint, other than Milan D. Coburn, were joined on the theory that they might-, because of the manner in which the business had been conducted, claim some ‘interest in the partnership assets, or that they had in their possession or under their control money or property belonging to the partnership.
Milan D. Coburn filed answer to the bill of complaint, in which defendants Laurel M. Coburn and Doris E. Coburn joined, denying the allegations of wrongful conduct’made by plaintiff. A cross bill was filed by said parties in which Kelso was charged with having made withdrawals from partnership funds in excess of the amounts received therefrom by Coburn, that Kelso had exercised poor judgment in conducting partnership business, and that he had withdrawn assets for his personal use for which he had not accounted. The cross bill also alleged that cross-plaintiffs had sought from Kelso and his agent, Clarence M. Elwert, a complete disclosure of their transactions in connection with the business, that the requests had been refused, and that plaintiff had withdrawn from the business substantially all the interest that he had in the assets. Cross-plaintiffs sought an accounting from the plaintiff and cross-defendant, the appointment of a receiver, a dissolution of the partnership, and injunctive relief against the removal of partnership assets or records; and the collection or concealment of accounts due to the partnership, by plaintiff or his agent Elwert. • Answers to 'the bills of complaint were duly filed and also pleadings on behalf of the other parties named as defendants in plaintiff’s bill of complaint. Specific consideration thereof is not required in the determination of the material issues involved in the controversy.
The record before this Court contains a stipulation e'ntered into by and between counsel for plaintiff Kelso and counsel appearing for defendants Co-burn, from which it appears that Milan D. Coburn died January 6, 1947, and that his daughter Doris E. Coburn, as administratrix of his estate, was substituted for him in the litigation. On May 17, 1946, C. Upton Shreve was appointed receiver of the assets of Reliable Lumber Company, and also of assets and books of account of other organizations referred to as Reliable Sales Company, Reliable' Construction Company, Reliable "Wrecking Company, and Reliable Contracting Company, which are claimed to have functioned in connection with, and as a part of, the business of Reliable Lumber Com pany. It further appears that the court on May 28, 1947, appointed a certified public accountant to make an audit of the books and records of the businesses involved in the litigation and to submit such audit to the receiver. It is stipulated that by order of the court dated February 11, 1949, certain preferred claims of the Michigan unemployment compensation commission were allowed and directed to be paid out of receivership funds.
The trial of the case was begun in circuit court on December 9,1947. Because of the death of Milan D. ■Coburn prior thereto, the testimony of plaintiff KelsO' as to matters equally within the knowledge of the deceased was barred under the provisions of the statute (CL 1948, § 617.65 [Stat Ann § 27.914]). The testimony of defendant Clarence M. Elwert, which plaintiff sought to introduce, was excluded on the ground that he was an agent of the plaintiff in the dealings between the latter and Milan D. Coburn, and that the statute, above cited, rendered his testimony incompetent. After listening to the proofs and arguments of the parties, the trial judge entered a decree determining the issues involved, specifically finding that there was no basis for plaintiff’s claim.' that Milan D. Coburn had fraudulently appropriated partnership property to his own use, and that defendant Clarence M. Elwert had, in transactions material to the controversy, acted as agent for the plaintiff. The court further found that plaintiff was indebted to the partnership in the sum of $242.32 and that the estate of Milan D. Coburn was entitled to-a credit in the sum of $24,639.19.
The determination as to the financial situation included a specific finding that the accounts of the organization known as Reliable Wrecking Company, which was evidenced by an assumed name certificate filed January 20,1942, in the office of the county clerk of Macomb county, had been merged with and included in the records of the partnership, and the accounting was made on that basis. It was also decreed that Reliable Lumber Company was entitled to % of the profits of Reliable Contracting Company, but that the proofs failed to establish that the operation of that organization had resulted in profits. The trial court furthér found that Reliable Lumber Company was entitled to a like portion of the profits of the copartnership ostensibly formed between Milan D. Coburn and defendant Maurice Melnick in October, 1944, referred to in the record as the “second” Reliable Wrecking Company. Dissolution of Reliable Lumber Company, and also of the first partnership known as Reliable Wrecking Company, was ordered, and the interest of defendant Sidney McNeil was decreed to be that of a creditor of Reliable Lumber Company. Plaintiff has appealed from the decree, asserting that the findings of the trial judge are not in accordance with the proofs.
Due to the death of Milan D. Coburn and the consequent inability of the plaintiff to testify concerning the transactions between the partners, definite proof on numerous matters in controversy on the trial was impossible. Apparently some records of the business had been kept under the supervision of defendant Elwert, but the testimony of the auditor appointed by the order of the court, as well as the testimony of another auditor who made an examination of such records, indicates that they were incomplete and otherwise not in a satisfactory condition. The testimony further indicates that Coburn kept some records with which Elwert was not familiar. The proofs aré lacking in desirable clarity and certainty.
It clearly appears that plaintiff was not precluded by the partnership agreement from carrying on other business activities in which Coburn had no interest. The latter was entitled to like privileges. Each acted accordingly. There had been prior business dealings between them not entirely of a friendly nature, but apparently they concluded they could operate without the formality of a written contract. The formation of Reliable Wrecking Company, as evidenced by certificate filed January 20, 1942, which was signed by defendants McNeil and Elwert, likewise rested on a verbal understanding. Apparently neither- Milan D. Coburn nor plaintiff Kelso desired his name to appear on the record as a partner. It is a fair inference, that the business- of Reliable Lumber Company, as actually conducted, included a-wrecking business, and it may be assumed that the second partnership was thought expedient for the purposes of the wrecking and salvaging operations. The trial court properly found that it was iii practical effect a part of Reliable Lumber Company, and that the profits of its business should be treated accordingly.. The further conclusion that % of the profits of Reliable Contracting Company and of the second Reliable Wrecking Company formed in 1944, the certificate of copartnership being signed by Milan D. Coburn and defendant Melniek, should be credited to Reliable Lumber Company was based on an admission in the pleadings filed by defendants Coburn indicating that such an agreement had been made.
Reliable Sales Company was formed in April, 1941, the certificate of conducting business under an assumed name being signed by defendants Laurel M. Coburn and Doris E.' Coburn, and also by C. C. Co-burn. Plaintiff insists that its business was included within the scope of the operations of Reliable Lumber Company, and that its profits and assets should be treated accordingly. The record indicates that such partnership was formed for the purpose of handling bank deposits of Reliable Lumber Company and also such deposits belonging to Milan D. Coburn. It is claimed by defendants Co- burn that the accounts were kept separately, and that any deposits made for purposes of convenience in the individual account of Milan D. Coburn were immediately thereafter transferred to the partnership account in a Mt. Clemens hank. There is no showing that funds of the partnership known as Reliable Lumber Company were appropriated by Coburn, or that Reliable Sales Company, or any of the ostensible members thereof, has, or have, assets belonging to Reliable Lumber Company. "We are in accord with the conclusion of the trial court that plaintiff has no interest in Reliable Sales Company. We think •that the conclusions reached, as evidenced by the provisions of the decree, with reference to the connection between Reliable Lumber Company and other business transactions to which Milan D. Coburn was a party, are fully justified by the record. The determination of the matters at issue rests wholly on the proofs introduced by the parties on the trial. '
The business of Reliable Lumber Company was transacted at a yard located at 24155 Schoenherr road, East Detroit. Prior to the formation of the partnership on January 1, 1941, plaintiff was. a vendee under a contract for the purchase of the land from the owner of the record title. Apparently there had been some prior litigation with reference to the property, but it does not appear that such fact has any materiality in the present controversy. It is claimed by defendants Coburn that when the partnership was formed the vendee’s interest of Kelso was turned over to the partnership as a part of his contribution thereto. The proofs disclose that the property was carried as an asset of the partnership and that the amount of the unpaid balance on the contract was treated as a liability. Payments on said contract were made by the partnership. Notwithstanding such facts Kelso claimed before the trial court, and asserts on this appeal, that he con- tinned to be the owner of tbe vendee’s interest and, hence, was entitled to have the land treated accordingly. The trial court determined otherwise, concluding from the proofs that it was the intention of the copartners that the vendee’s interest under the contra-et should become a partnership asset and should be handled thenceforth as such. The proofs are in accord with such determination. Under the facts appellant is not entitled to claim the property.
Complaint is also made by appellant because the trial court found that the vendors’ interest under certain land contracts, executed by Milan D. Coburn and his wife, should not be regarded as assets of Reliable Lumber Company but, rather, should be assigned to Mrs. Coburn as survivor. There is no evidence in the record before us tending to establish that partnership funds were used in connection with acquiring such property interests, or that the contracts were executed by Mr. and Mrs. Coburn for and on behalf of the partnership, or in connection with its business. Under the situation presented, appellant is not in position to complain that the trial court erred in dealing with such property interests in the manner indicated.
As before noted, plaintiff called defendant Elwert as a witness in his behalf. After certain preliminary questions the trial court came to the conclusion that Elwert was in fact the agent of plaintiff in dealings between the latter and Milan D. Coburn, and that, in consequence, he was not a competent witness as to matters equally within the knowledge of the deceased. There had been business associations between Elwert and appellant prior to the partnership arrangement between Kelso and Coburn. It is significant in this connection that neither of the partners signed the certificate of assumed name filed at the outset of the operations of Reliable Lumber Company. It was, in fact, executed by Elwert, Mrs. Coburn, and Walter T. Welch. It seems to be conceded that Welch had no interest in the matter, and likewise that neither Elwert nor Mrs. Cobnrn were parties to the partnership arrangement. It is suggested that neither partner wished his name to appear for reasons concerning his financial situation. In any event, it clearly appears that Mrs. Coburn was acting for her husband and that Elwert was acting for Kelso. It is further in evidence that for the first 2 years following the formation of Reliable Lumber Company Elwert made an income tax return to the Federal government in which he listed as his own income Kelso’s receipts from the business and paid a tax accordingly. This would suggest a rather close and confidential relation between Kelso and Elwert. The latter claimed he was reimbursed subsequently by the partnership. If so, it may be assumed that siich payments were charged to Kelso’s account.
While Elwert contended that he supervised to some extent at least the accounts of the partnership, it is a fair inference, since Coburn kept records of his own, that actually Elwert was acting for plaintiff. The situation suggested by the record was not one in which the partners appear to have evinced confidence in one another. It is apparent also from the questions propounded by the court to Elwert that the latter remained in the courtroom during the trial and manifested an attitude of loyalty to plaintiff. It cannot be said that the conclusion of the court with reference to the matter of agency is not supported by the record.
The further contention by appellant that defendants Coburn waived the right to object to Elwert’s. testimony because of the questions asked by counsel is without merit. The purpose of such questions was obviously to determine the status of Elwert in his dealings with the parties, and between them. The trial court was not in error in holding that El wert was precluded by the statute from testifying to matters concerning the dealings between the partners and equally within the knowledge of Coburn. Perfect Cleaners & Dyers v. Kirschbaum, 257 Mich 430.
While the auditors, above referred to, were not in accord in all respects in their conclusions from such records as were available to them, it is somewhat significant that the final results reached were similar. Each testified as to the unsatisfactory nature of the books of account and other data relied on in the attempt to prepare a satisfactory audit. The trial court determined the respective accounts of .the co-partners from such proofs as were presented. Appellant questions such determination, but we are impressed that the objections raised are not supported by the evidence introduced on the trial. We do not think it can be said that the decree entered is shown to be unfair to plaintiff or inequitable on the basis of the facts established by competent proof.
The trial court, by order entered in the proceeding, directed the receiver to sell real estate constituting an asset of the receivership. The stipulation of counsel for the parties, hereinbefore referred to, sets forth that the notice of sale was duly published in the Detroit Legal News for a period of 7 successive weeks. It was also published in the Daily Monitor Leader, a newspaper published and circulated in Macomb county, for 6 successive weeks beginning on May 6, 1949, and ending on June 17, 1949. Three notices of the sale were posted in Wayne county in public and conspicuous places, and 4 in Macomb county. One of the last named notices was placed at the southerly entrance of the county building in Mt. Clemens, 1 on a box outside the sheriff’s office, 1 on the office building at 24155 Schoenherr road, in East Detroit, and 1 on the lumber yard in East Detroit. It is the claim of appellant that such posting did not comply with the applicable statute (CL 1948, § 623.85 [Stat Ann § 27.1584]) because of the failure to post notices in 3 public places in the township in which the premises were situated. It is also asserted that the decree was enrolled prior to the expiration of the time within which plaintiff could appeal or ask for a rehearing, and, therefore, that the order of the trial court confirming the sale was fatally defective.
With reference to such objections it may be noted that under CL 1948, § 623.90 (Stat Ann § 27.1589) the omission by an officer to give the notice of sale required does not affect the validity of such sale if made to a purchaser in good faith and without notice of the omission. In the instant case there is no showing that the purchaser of the property at the receiver’s sale had notice of the omission to post notices in 3 public places in the township where the premises were situated, nor may such knowledge be assumed. Furthermore, there is no claim that plaintiff was in any way injured or aggrieved by the proceeding that he now undertakes to attack. If he has been prejudiced in any way this record fails to show it. Under the circumstances we do not think that he is in position to seek relief in this equitable proceeding. Solomon v. Neubrecht, 300 Mich 177.
Other matters referred to by counsel in their oral arguments and briefs, incidental to the issues above considered, do not require specific discussion. They are controlled by the conclusions above stated. Appellant’s further objection that the court was in error in excluding the. testimony of defendant Melnick, on the ground that it was incompetent because equally within the knowledge of Milan D. Coburn in his lifetime, is not referred to in appellant’s statement of reasons and grounds for appeal. It is, therefore, unnecessary to pass on the question.
We are in accord with the disposition of the case made by the trial court. The decree is affirmed. Appellees Coburn, being the only defendants who have filed briefs in the case, may have costs.
North, C. J., ánd Dethmers, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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"Wiest, J.
This action at law was commenced April 7, 1938, by plaintiff, in her own behalf and as assignee of 28 other women, against the General Motors Corporation to recover the difference in wages paid them, as women employees, and men engaged in similar industrial employment in the Olds Motor Works Division of defendant at the city of ■Lansing, Michigan. This civil action is based upon Act No. 239, Pub. Acts 1919 (2 Comp. Laws 1929, §§8497, 8498), now section 556 of the penal code, Act No. 328, Pub. Acts 1931 (Comp. Laws Supp. 1940, §17115-556, Stat. Ann. §28.824), which provides :
“Any employer of labor in this State, employing both males and females in. the manufacture ot production of any article, who shall discriminate in any way in the payment of wages as between sexes or who shall pay any female engaged in the manufacture or production of any article of like value, workmanship and production a less wage, by time or piece work, than is being paid to males similarly employed in such manufacture, production or in any employment formerly performed by males, shall be guilty of a misdemeanor: Provided, however, That no female shall be given any task, disproportionate to her strength, nor shall she be employed in any place detrimental to her morals, her health or her potential capacity for motherhood.”
This is an action at law and, upon review, it is not for this court to go through the record of 1,739 pages and point out the specific amount due to each of the 29 claimants.
In General Motors Corp. v. Attorney General, 294 Mich. 558 (130 A. L. R. 429), we held the statute constitutional.
If plaintiff has suffered financial damage by reason of defendant’s noncompliance with the mandatory provisions of the statute applicable to claimants’ employment then civil action may be maintained. Bolden v. Grand Rapids Operating Corp., 239 Mich. 318 (53 A. L. R. 183). The statute establishes specified pergonal civil rights and if there has been discrimination between sexes in the instances at bar the remedy by action at law is available to claimants.
By subpoena duces tecum plaintiff required defendant to produce its employment records at the trial. When offer was made of sneh records defendant objected thereto and claimed the right against self-incrimination. This was overruled by the court. We are here considering a penal statute, inclusive of civil remedy. If the records produced and objected to established, in whole or in part, the fact that defendant had committed a misdemeanor in not paying women wages like wages paid to men in similar employment, was there any merit in the claim of self-incrimination? Of course, the right against self-incrimination is a constitutional right, but does it apply to the situation here involved? It does not apply. In Re Moser, 138 Mich. 302 (5 Ann. Cas. 31), it was held that the privilege against self-incrimination is personal to a witness and cannot be claimed in behalf of another, inclusive of an employing corporation, unless guilt of the witness producing the record is also involved.
Counsel for defendant state that the statute “provides a penalty if an employer pays a less wage to female employees then he does to male employees similarly employed, or a less wage than he formerly paid to male employees similarly employed,” and claims -the “ ‘formerly’ clause prohibits the reducing of the rates, ever, of women employees where they are engaged in work ‘similar’ to that formerly performed by males,” and, therefore, the statute is arbitrary and unconstitutional. The two provisions in the statute are counterparts and, reasonably construed, prevent exploitation of women workers in industrial production. The work formerly performed by men relates to the time when men employees were supplanted by women employees and does not run back indefinitely.
Defendant claims that plaintiff in order to recover had the burden of showing to a computable cer tainty the damage sustained by her and each of her assignors. We think there is merit in this point and the court should have determined, with. reasonable certainty, the amount of damage to be awarded to each of the claimants and the manner in which he has determined the same and, upon such computation, when made, enter judgment in behalf of plaintiff. See Court Rule No. 37, § 11 (c) (1933).
The issue upon right and amount, if any, of recovery by plaintiff depended upon 29 individual instances and in each instance required the court to specifically find as to which of the many rates paid to men should have been paid to plaintiff and each of her assignors. This barred computation of an average differential.
Plaintiff, Florence St. John, testified that she went to work at the defendant’s plant on September 6, 1928, and her employment there terminated March 15, 1938. Just before this suit was started she worked in the press room, department 7EF3, until September, 1937, when the women were moved to what is called the women’s assembling division, but until that time she had worked in the press room of that department. In September, 1937, the women from that department and the paint shop and motor plant went to the women’s division. Men were also employed in department 7EF3. She operated a punch press in that department where stock is blanked out for different parts of am automobile. The stock is put in the press between dies and the press has to be tripped. During those years she operated a punch press. The bonus system stopped in May, 1934, and for the rest of that year her rate of pay was 47 cents an hour, and for 1935, 53 cents an hour. It was around 60 cents an hour in 1936. In the fall of 1937 the women’s division was established, and the rate of pay she received was 76 cents an hour and continued at that rate until her employment terminated.
Claimant Vernice C. Smith never worked in the women’s division and quit her employment June 2, 1937. She claimed in the latter part of 1936 or 1937, she was paid 76 cents an hour. Until sometime in 1937 she had worked in the sheet metal department.
Claimant Clara M. Calhoun quit the employment of defendant in May, 1936. She worked in the sheet metal department from December 4, 1928, until she quit.
Marietta Anderson was employed in the paint shop from July, 1925, to September, 1937, when she went into the women’s division, and “got a raise up to 72 cents and then in April we got a raise to 82 cents, a blanket raise went through the whole plant,” and brought her up to 82 cents an hour. In September, 1937, she went to the women’s department and her pay was cut down to 76 cents an hour.
In actions at law, tried by the court without a jury, Court Eule No. 37, § 11 (c) (1933), provides:
“The trial judge shall sign and file, or dictate to the stenographer, an opinion in which he shall set forth his decision and the substance of the judgment with a concise statement of his reasons therefor, and where he awards damages, the manner in which he has determined the amount.”
The defendant has a right to determination in accordance with the rule. Hudson v. Enichen, 308 Mich. 79.
The defendant in a motion for new trial alleged as one reason:
“Because the above suit was one in which the plaintiff brought action for herself and in behalf of her assignors, and that the suit was comprised of 29 separate and distinct claims, each of which should have been separately determined, and, because the' court erred in failing to find the amount of the damages upon each of the said separate claims.”
In denying the motion the court stated:
“Counsel for defendant complains .that the court did not indicate in its opinion the amount found to be due on each of the wage claims. That might have been done, of course, but it was not requested by counsel, and would be in the nature of a special finding, and the court must decline to attempt to duplicate a very lengthy process of computation. There is but one plaintiff, the assignments to her from the 28 other women are absolute in form and only one judgment can be rendered. Had a request been made seasonably for such a finding the court would have complied with it, even though not required to do so.”
The court was required in this instance to comply with the rule mentioned. Plaintiff, having brought to trial 29 distinct claims based upon varying facts, the defendant has a .right to know the amount allowed the plaintiff for each claim she sued upon.
Under Court Rule No. 72 (1933), we remand the case to the circuit court for compliance, upon the record made, with Court Rule No. 37, § 11 (c) (1933), and certify the same to this court. See Morley Brothers, Inc., v. F. R. Patterson Construction Co., 266 Mich. 52. (When this is done such matter will be added to the record in this court. Upon filing the same, if either party desires oral argument or the filing of further briefs thereon application may be made to this court. Costs of this appeal to abide final decision thereon.
North, C. J., and Starr, Btjshnell, Sharpe, and Boyles, JJ., concurred. Btjtzel, J., did not sit. Reid, J., took no part in the decision of this case.
See Const. 1908, art. 2, § 16. — Reporter. | [
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Carr, J.
Plaintiff brought this action in circuit court to recover damages for injuries suffered by him as the result of being struck by defendant’s automobile. ' The accident occurred about 7:30 p.m. on the 26th of March, 1949, in the village of Cass City. Main street in said village is 74 feet in width from curb to curb, running in- an east and west direction. At the time in question plaintiff undertook to cross said street from the north to the south side at or near the crosswalk on the east side of the intersection of Main and Seager. Defendant approached the scene of the accident from the west, driving through the intersection and striking plaintiff with such force as to knock him to the pavement or to cause him to fall.
The case was tried before a jury, which returned a verdict in favor of the defendant. Judgment was 'entered on the verdict. Plaintiff, moved for a new trial, alleging as one of the grounds therefor that the verdict was against the great weight of the evidence. The motion was denied and plaintiff has appealed.
On the trial of the case the testimony was conflicting as to where the accident happened and as to the circumstances involved. It was plaintiff’s claim that he left the northeast corner of the intersection of Main and Seager streets, that as he did so he observed the traffic light in the center of the intersection, and that it was green for north and south traffic. As he proceeded on his course he looked to the west and saw the headlights of an automobile approaching Seager street. When approximately 20 feet from the north curb he noticed that said car, which was operated by defendant, was proceeding through the intersection. His testimony indicates that the automobile was coming directly toward him, that he was uncertain whether to retrace his steps to the north or to continue south, and in consequence he remained stationary until he was struck by the left front corner of defendant’s car. His claim that the accident happened on the north side of the center line of Main street was corroborated by the testi mony of 2 witnesses who apparently did not see the occurrence hut who stated that when they arrived on the scene plaintiff was lying a short distance from the north curb. One of the witnesses placed such distance at '9 feet, and the other at 14 or 15 feet. Plaintiff’s claim with reference to where the accident happened and his conduct immediately preceding it is indicated by the following excerpt from his testimony:
“Q. Now how far down the street was that car when you first saw it?
“A. The car was possibly 75 feet west from the crosswalk going north and south on the west side of the intersection. He was headed and going east and was in the center of the road. There is no center line on Main street and I saw the car coming and I stopped and was about 20 feet from the north curb.
“Q. What did you do then?
“A. Well, I figured the man was going to stop on the corner for the red light which was east and west, understand me?
“Q. Yes.
“A. But consequently that ear went through.
“Q. As I remember on your direct examination you made a remark like this, that you stopped to let the car pass by?
“A. Well, what else could I do. That is what I said, when the car was coming at me right close to me I couldn’t step one way and couldn’t jump back the other way. There I was. I figured he would go around me and miss me, that is what I figured he would do.
“Q. He was going against the red light, was he?
“A. He was. * * *
“Q. Then Mr. .Skiprick continued right on crossing the intersection while you were standing there 20 feet out- and he drove right towards you?
“A. Must have done it because he hit me there.
“Q. That is what I want to know.
“A. I would say that he did. I wouldn’t say he run straight for me. I know the car was coming right direct at me, and I could not make a move. That I do know.
“Q. Then would you say you never moved from your spot 20 feet out from the time you saw Mr. Skiprick down here 75 feet west of the west crosswalk, that yon never moved from that spot until the time he hit you?
“A. I didn’t have a chance.”
Defendant testified in substance that immediately prior to striking plaintiff he was driving in an easterly direction on Main street, also referred to in the record as M-81, at approximately 15 miles per hour, and that he was proceeding slowly because it was raining and the visibility was poor. Cars were parked along both sides of the street. Defendant ’claimed that he was at all times on the south side of the center line of Main street, that when he went through the intersection of that street with Seager he had the green light, and that he did not see plaintiff until the instant of the impact. He stated further that he stopped his car within a distance of 4 or 5 feet, and that it remained in that position for approximately one-half hour. It was his further claim that the accident did not happen on or near the crosswalk but, rather, approximately 70 feet to the east thereof, and that the plaintiff stepped in front of the automobile. His testimony fairly indicates the claim that plaintiff, immediately prior to the impact, was approaching from the north and that he did not see plaintiff because of the poor visibility and the fact the he was observing the highway to the east.
Defendant’s testimony was corroborated by that of a witness who was riding with him at the time of the accident. Other witnesses claimed that the automobile, following the accident, was on the south side of the center line of Main street. The village marshal arrived on the scene some 10 or 15 minutes after the accident occurred. He stated that at the time plaintiff was lying 3 to 4 feet north of the center line of th§ street, and that defendant’s car was at least 3 feet to the south of the center line. This witness noticed skid marks on the pavement, approximately 3 feet in length, south of the center line. The testimony of the marshal further indicated that there was no evidence to the effect that defendant had crossed the center line. He testified also to measurements made by him 2 or 3 days after the accident, and corroborated the claim of the defendant that the point of impact was some distance -east of the crosswalk.
In view- of the testimony of the various witnesses in the case, including the parties, we think that the issues of fact involved were properly submitted to the jury for determination. Apparently the jury concluded that plaintiff had not sustained the burden of proof resting on him and was, in consequence, hot.entitled to recover damages. On the record before us it cannot be said that such finding was against the great weight of the evidence. Black v. Ambs, 307 Mich 644.
Appellant further argues that the trial judge in submitting the case to the jury unduly emphasized the issue of contributory negligence. Our examination .of the charge as a whole brings us to the conclusion that the claim is not well founded. Whether defendant was negligent and whether plaintiff had established his freedom from contributory negligence were the principal issues in the case, and it is apparent that the judge in his charge sought to avoid the possibility of any confusion arising in the minds of the jurors with reference thereto. It cannot be said that more stress was placed on the duties resting on plaintiff for his own well-being than -on defendant’s obligation to observe applicable provisions of tbe statute governing tbe operation of motor vehicles on public highways and to exercise due and proper care in the operation of his automobile on the occasion in question. As given, the charge fairly submitted plaintiff’s claims and he was not, under the record in the case, entitled to a more favorable presentation of the issues. The claim of error is without merit.
At the conclusion of the proofs counsel for plaintiff orally requested the court to charge the jury that the defendant was guilty of negligence as a matter of law because he was driving at such a rate of speed that he was not able to stop his car within the assured clear distance ahead, and because of his failure to see the plaintiff prior to the impact. The first ground for the request apparently was based on the theory that under the evidence in the case defendant was guilty of a violation of CL 1948, § 256.305(a) (Stat Ann 1947 Cum Supp § 9.1565[a]), in force at the time of the accident, which read as follows:
“Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having dué regard to the traffic, surface and width of the highway and of any other condition then existing, and no person shall drive any vehicle upon'a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead.”
The provision above quoted now appears in the present Michigan vehicle code, PA 1949, No 300, as section 627(a) thereof (Stat Ann 1952 Bev § 9.2327).
The second ground alleged in the request for the instruction was obviously predicated on the theory that it was the duty of the defendant to discover plaintiff in time to stop before striking Mm, and. that because be did not do so be was guilty of negligence as a matter of law. However, defendant was not an insurer against accidents. It may not be said that the duty rested on the defendant as a matter of law to avoid a collision with plaintiff regardless of circumstances. Nickels v. Hallen, 247 Mich 291, 295. The request seems to have rested on the claim of plaintiff, as made in his testimony on the trial, that he was standing on the highway immediately in front of defendant’s automobile as the latter approached him and that he- did not, for the reason given by him, undertake to move from Ms position. Such claim was not in accord with the testimony of the defendant and his witnesses. It was in effect defendant’s claim that he was watching the highway in front of his vehicle and that plaintiff approached from the north side of the car and stepped in front of the left front fender.
In view of the conflict in the proofs as to how and where the accident happened, plaintiff was not entitled to the instruction requested by him. Under defendant’s proofs plaintiff was not, prior to the impact, ahead of the automobile. Rather, he was at one side. If such was the situation, and the jury might well have concluded that it was, whether defendant was guilty of negligence because of his failure to observe plaintiff approaching from Ms left was, under all the circumstances of the case, an issue of fact. It may not be said that the statutory “assured clear distance ahead” rule was necessarily applicable in the case. Fisher v. Grand Trunk Western R. Co., 306 Mich 95. In Malone v. Vining, 313 Mich 315, 320, it appears that the defendant driver saw the plaintiff standing on the north side of the pavement, and although her view was not obstructed she did not again observe him until the instant of the impact. Commenting on the situation, it was said:
“Iier testimony, together with other evidence and the physical facts and circumstances surrounding the accident, clearly presented a question of fact for jury determination as to whether or not she was negligent.”
At the time of the request the trial judge stated in effect that he would endeavor to take care of the matter in his general charge. He did so by specifically calling attention to the duties resting on defendant in the operation of his automobile, which duties plaintiff claimed had been violated, and charging that if defendant failed to operate his car accordingly he was guilty of negligence. Plaintiff was not entitled to a presentation more favorable to him. Without reference to the form in which the request for an instruction that defendant was guilty of .negligence as a matter of law was made, the court was not in error in failing to so charge.
It may be noted in passing that the statute, relating to requests to charge at the conclusion of the-proofs .in a trial before a jury, provides for written, requests but makes no mention of any right to' verbally ask a specific instruction. CL 1948, § 691.-432 (Stat Ann § 27.1039). The trial judge is entitled to a reasonable opportunity to examine requests and determine whether they are in proper form. He may, of course, comply with an oral request if he thinks it proper to do so, but, if he declines, such refusal is not a proper basis for an assignment of error. As suggested by this Court in Anthony v. Cass County Home Telephone Co., 165 Mich 388, 401, such practice “is not to be commended for many reasons that must be apparent to the profession.” However, without reference to the form in which the request was made in the instant case, its denial was not erroneous.
We find no reversible error in the case, and the Defendant judgment of the trial court is affirmed, may have costs.
Dethmers, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
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Sharpe, C. J.
Plaintiff began an action for injuries claimed to have been received in an automobile accident on July 18, 1947. The essential facts are not in dispute. Prior to and at the time of the accident, plaintiff and defendant were living in Bay City and worked for the same employer in Saginaw, a distance of approximately 15 miles from their home.
About a week after plaintiff began working in Saginaw, the parties entered into an agreement relative to transportation to and from work. It was agreed that each, party would drive his automobile for one week alternately, that the other would be a passenger receiving rides from his home to his place of employment and return and if the driver failed to carry the other party as passenger, as required by the agreement, then the party so required to drive would pay $5 for the week to the opposite party or $1 for each day that he failed to drive. The agreement was to operate during the time the parties were employed at their present employment. The bus fare for the round trip between Saginaw and Bay City was 55 cents, but as the driver was picking his passenger up at his home and taking him direct ly to the job, the parties agreed upon $1 per day in the event the passenger failed to get his ride.
Plaintiff drove his car for a full week in accordance with the agreement and defendant had started driving on the second week when his car broke down and had to be taken to the garage for repairs. Defendant then informed plaintiff that because of the expense necessary for the repair of his car and because of his wife’s physical condition, he was unable to pay the $1 per day as agreed. It was then agreed that defendant would not be required to pay the $1 per day for that week, that plaintiff would finish out the week, and that thereafter defendant would drive for 2 consecutive weeks in order to equalize the period that plaintiff drove his car.
On July 18,1947, defendant was driving his car on the second week, after having had it returned to him from the garage. On the date in question and while defendant was driving on the return trip from Saginaw to Bay City, defendant’s car came into collision with another car resulting in severe injuries to plaintiff.
The cause came on for trial before the judge without a jury, tlpon the conclusion of plaintiff’s proofs, defendant made a motion for judgment for defendant on the theory that plaintiff, being a guest passenger, is barred from recovery by' the provisions of the guest-passenger act (CL 1948, § 256.29 [Stat Ann § 9.1446]).
In granting the motion the trial court stated:
“In the instant case, in the opinion of the court, the original agreement between plaintiff and defendant, made in June, 1947, possessed several of the incidents held in the Ohio case of Miller v. Fairley [141 Ohio St 327 (48 NE2d 217)] to establish plaintiff’s status as a passenger for hire. But, in the instant case, whatever may have been the legal effect of the original agreement, the element of so ciability appears to have become the dominant factor in the relationship as the parties became better acquainted. Plaintiff waived his right to compensation for his second successive week’s driving and accepted in lieu thereof defendant’s promise to drive for the next two successive weeks. It was during this latter period, while the original agreement stood modified or suspended, that the collision and the injuries occurred. Neither the terms of the original agreement nor the possibility of a return thereto control. On the day and at the time of the collision in question, plaintiff was riding, and defendant was driving, under an arrangement identical with that involved in Everett v. Burg [301 Mich 734 (146 ALR 639)], except that the period of alternation of cars in the instant case was two weeks rather than the one-week alternation period found in Everett v. Burg.
“It follows, in the opinion of the court, that under the holding in Everett v. Burg, plaintiff was defendant’s guest passenger at the time of the collision, and is precluded from recovery by the specific provisions of the guest-passenger act. Under this view of the case, it is unnecessary to pass on defendant’s negligence, if any. Verdict and judgment of no cause of action may be entered in favor of the defendant, with defendant to have costs to be taxed.”
Plaintiff appeals and urges that in making the agreement to share rides the parties entered into an agreement whereby each was to use his own automobile on alternate weeks in driving the other party directly from his home to the job and return on each of the 5 working days of the week, that failure to abide by the agreement and to drive when required imposed a liability upon the driver so failing to pay $5 to the other party for any week that he failed to drive, or $1 for any day that he failed to drive, which agreement was to continue in operation during the time the parties worked on the Saginaw job; and that the agreement constituted a passenger-for-hire relationship.
Defendant contends that on the date the accident happened, the original agreement had been modified to the effect that one person would drive for 2 weeks and then the other person would drive for 2 weeks; that the relationship between the parties was that of host and guest.
The trial court held that the accident occurred during the period that the original agreement was modified or suspended. We are in accord with the trial court that the accident happened during the period that the agreement was modified. But, in our opinion, the modified agreement related only to the period of time that each of the parties was to drive. Whether the relationship between parties is that of a guest passenger or a passenger for hire depends upon the facts in each case. It has been held that where the arrangements between the parties are so indefinite and casual that sociability is the dominant element, then a guest relationship exists. See In re Harper’s Estate, 294 Mich 453; Guiney v. Osborn, 295 Mich 559; Brody v. Harris, 308 Mich 234 (155 ALR 573).
It is the general rule that whenever transportation is for the pecuniary benefit of the defendant, the transaction is not gratuitous and a passenger-for-hire relationship may exist. See Foley v. McDonald, 283 Mass 96 (185 NE 926); Bushouse v. Brom, 297 Mich 616; Everett v. Burg, 301 Mich 734 (146 ALR 639); Miller v. Fairley, 141 Ohio St 327 (48 NE2d 217).
Defendant relies upon Everett v. Burg, supra. In that case 6 fellow employees residing in Saline, Michigan, arranged for their joint transportation to and from their place of employment at Milan, Michigan, by 5 of them alternating each week in driving their respective automobiles for that purpose, the sixth person paying the driver for each week the sum of 75 cents for his transportation. One of the fellow passengers who took turns in driving was killed while riding to work in the car operated by another one of the 5 drivers. "We held in that case that decedent was not a passenger for. hire, basing our opinion upon the reasoning found in Fisher v. Johnson, 238 Ill App 25, wherein the court said:
“We regard the circumstances in no different light than if on each occasion when one drove the other in his car to and from their place of business it was upon an express invitation from the former to the latter to be his guest, and therefore negligence could not be imputed to the latter on the theory that because they were accustomed to exchange the courtesies and ride together they were engaged in a joint enterprise or undertaking.”
In Bushouse v. Brom, supra, 627, we said:
“But each case must be decided in the light of its own facts; and we think it is always important to ascertain, if possible, what it was that primarily motivated the undertaking.”
In the case at bar the primary objective of the agreement was to transport the parties to and from their place of employment. In determining whether the arrangement for exchange of rides was for pleasure or social purposes we must examine the facts and circumstances at the time the agreement was entered into. We quote from plaintiff’s testimony:
“Q. Did you know Mr. Sharp in any other way than working with him on the jobs?
“A. No.
“Q. Did you go out socially together after work?
“A. No, we did not.
“Q. Did you. see Sharp at any other times, or associate with him other than during the business-employment ?
“A. No.”
It is also an established fact that the agreement was not for a single trip, but was to continue so long as the parties were employed in the same factory. The amount of the payment in case either party defaulted on the agreement was definite and approximately the cost of bus fare between the two cities. The agreement was not for social purposes, but purely a business arrangement. The benefit accruing to each party as a result of it was the right to demand a corresponding service or to enforce payment of $1 a day for failure to perform. In our opinion the agreement created a passenger-for-hire relationship.
The judgment of the trial court is reversed and the cause remanded to the circuit court for further proceedings. Plaintiff may recover costs.
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Boyles, J.
Plaintiff sued for damages resulting from personal injury claimed to have been caused by the negligence of defendant’s driver in the operation of one of defendant’s trucks. The case was tried by jury, resulting in verdict of $12,500 for plaintiff. At the close of plaintiff’s testimony and again at the close of all the testimony, the defendant moved for a directed verdict, decision being reserved by the court. After verdict the above motions were denied, whereupon the defendant moved for judgment non obstante veredicto, and also for a new trial, which motions were also denied. The defendant appeals.
Under the above circumstances we review the testimony in the light most favorable to the plaintiff. The essential claim of the defendant in the trial court was, and still is, that the plaintiff failed to prove negligence of the defendant, and failed to prove that the plaintiff was free from contributory negligence. The most serious question presented here is whether the testimony was sufficient to have presented a question of fact, to be submitted to the jury, as to whether plaintiff was free from any contributory negligence which was a proximate cause of the injury. For the purpose of considering that question we assume, for the moment, that the proofs were sufficient to present an issue of fact as to the defendant’s negligence.
The accident occurred on the private property of plaintiff’s employer, the International Detrola Corporation, in Detroit;' where plaintiff was the shipping clerk. His work was to take care of orders, have them properly billed out, call in trucks to pick up shipments, and to direct the operations of other employees in the proper loading out and removal of the same. His immediate superior ivas one Arthur Traver to whom reference will be made later. Plaintiff had worked for this same employer for nearly 12 years. He had been a truck driver since 1922, and had driven a truck for this same employer for 5 years previous to taking over his present work as shipping clerk in 1942. At the time of the accident he was 41 years of age, had good eyesight and hearing. He was completely familiar with the condition of his employer’s property at the place where the accident occurred.
On July 11, 1946, he had an order to ship out certain articles but was delayed in being able to obtain a truck for the shipment. After he had “punched out” for the day he had occasion to pass his employer’s place of business on the way home about 7:30 p.m., observed a gate open and knew there must be a truck inside. He went in, found a Norwalk truck backed up to an open door leading into the shipping-room, and saw men loading the truck. He went into the space between the rear end of the truck and the brick wall of the loading dock from which the open door led into the shipping room. Plaintiff’s witnesses testified that the truck was backed up to within approximately 18 inches to 2i feet from the brick Avail, Avith the endgate down. The open door of the loading dock was about on a level with the bed of the truck. Plaintiff had stood in that space between the back of the truck and the brick wall only a few minutes with his back to the truck, facing the open door, when he was injured by the truck rolling back and catching him between the rear end of the truck and the brick wall. When plaintiff entered this narrow space his “boss,” Mr. Traver, was inside the shipping room doing plaintiff’s work of sending out the shipment. Other employees who were present, together with the driver of the truck, had been loading out the shipment and this work was almost, if not entirely, completed when plaintiff first entered the narrow space. Plaintiff entered into conversation with Mr. Traver, but apparently the work was. done and plaintiff did not perform any of his usual duties. After the work was completed the truck driver returned to his seat in the truck, released the brake and the clutch, but had not started the motor when the truck rolled backward and plaintiff was-caught between the truck and the wall. He sustained serious injuries and was hospitalized, but later returned to the same work at higher wages.
Paralleling the loading dock was a railroad track and 4 rails (for a switch track), with the inner rail at a distance of about 6 feet from the brick wall of the dock. The rear wheels of the truck backing up-to the dock either had to cross or stop on or very near this inner track rail. It was about 4 inches-higher than the ground. The driver of defendant’struck, in backing up to the dock, had been directed by another employee of plaintiff’s employer how far to back up and when to stop. When the employee (one Wells) called “stop,” the driver set his emergency brake and left the truck in gear. When the brake and clutch were released the truck rolled back of its own weight while plaintiff was standing between the rear of the truck and the brick wall, with his back to the truck.
The testimony of plaintiff’s witnesses fairly establishes that the loading had been completed at about the time when the plaintiff went in between the truck and the wall. There remained only the work of re ceipting for the shipment. Plaintiff’s superior, Mr. Traver, and another employee were inside the door and one or both were in conversation with plaintiff while he stood there, until the truck rolled back. Plaintiff claims he did not, at any time, see the driver of the truck, although finally admitting that the driver must have completed his work and returned to his seat in the truck before it rolled back. Other witnesses for the plaintiff testified to the presence of the truck driver while the truck was being loaded, and while plaintiff was between the truck and the brick wall. There was testimony as to plaintiff’s concern when told that Mr. Traver, his superior, was inside, that he was “excited” because of the presence of Mr. Traver, and his doing plaintiff’s work in connection with the shipment. Plaintiff was supposed to have obtained a truck to send out the shipment sometime that day. One of plaintiff’s witnesses testified that he heard an employee call to plaintiff to get out from behind the truck. There were at least 3 other places where plaintiff could have been, to see about the work or to converse with Mr. Traver and other employees, besides going in between the back of the truck and the wall. He admitted that he could have stood at either side of the truck, or could have gone up into the loading dock. It appears that while he was there he did not do any of the work, sending out the shipment. It was done by Mr. Traver.
Disregarding entirely the testimony of the truck driver, who claimed that he told plaintiff to move out from his place between the truck and the wall, plaintiff’s lack of recollection in his testimony as to essential details, and the positive testimony of his witnesses, convinces us that he went into a place of obvious danger unnecessarily and without the proper regard that an ordinarily prudent man would have for his own safety. He remained there, oblivious of the fact that the rear wheels of- the truck might be stopped on the rail, or on an incline which might cause the truck to roll backward. He knew, or should have known, that the driver was about to move the truck when the loading was done. He was entirely familiar with the surroundings, and familiar with the operation of trucks. Possibly his concern at finding his superior doing his work may have been the cause of his failure to take ordinary caution for his own safety. There is no evidence that it was necessary or customary for plaintiff or any other-employee of the company to stop or remain where plaintiff stood when he was injured. On the contrary, one of plaintiff’s witnesses testified that it would be dangerous to be between the end of the-truck and the dock if the rear wheels were stopped on the rails. Plaintiff stopped and remained in a position of danger without regard for his own safety. He chose a place which he knew or should have-known was a place of danger, and was guilty of contributory negligence which was a proximate cause-of his injury.
“(2) One who knows or in the exercise of ordinary care should have known the existence of danger from which injury might reasonably be anticipated and who by his voluntary acts or omissions exposes-himself to such danger is guilty of negligence, if under the circumstances an ordinarily prudent person would not have incurred the risk of injury which such conduct involved. (3) Momentary forgetfulness of or inattention to a known danger may, and usually does, amount to negligence.” Rice v. Goodspeed Real Estate Co., 254 Mich 49.
“One who voluntarily places himself in, or remains-in, a position which he knows, or with reasonable care should know, is dangerous, cannot recover for the ensuing injury.” Cadagan v. Great Atlantic & Pacific Tea Co. (syllabus), 298 Mich 207.
“Fact that plaintiff was only 18 years of age held, insufficient to make question of his contributory negligence one of fact for the jury in his action for injuries sustained when he placed himself in front of car being driven onto hoist at gasoline station where he had worked for over a year and knew that a car with defective brakes might not stop at the end of the hoist.” Dulemba v. Tribble (syllabus), 325 Mich 143.
Reversed and remanded for entry of judgment for defendant, with costs.
Sharpe, C. J., and Bushnell, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Reid, J.
The parties to this case were married in the city of Detroit in 1920. There are 2 children born of the marriage. At the time of the hearing before the trial court, October 1, 1947, Betty Jane was 24 and John Bruce was 19. They live with the plaintiff and are not married. Plaintiff obtained a decree of divorce dated April 8, 1948. The decree provided $10 per week to be paid by the defendant to the friend of the court for the benefit of the plaintiff until the further order of the court. At the time of the hearing plaintiff was 51 years of age. Plaintiff appeals from the order only as to the provision of $10 a week for her support, which she claims should have been not less than $30 per week. The friend of the court recommended permanent alimony at $20 per week.
The statement of Edward Krell, paymaster of the Detroit News, the employer of defendant, shows that defendant has an average of something over $80 per week net “take home” pay.
Plaintiff offered testimony that she is suffering from hypertension and angina pectoris. Plaintiff claims she requires treatment on account of the heart condition and high blood pressure and that she should have at least one treatment per week, costing $5 a treatment.
The trial court seems to have been induced in part to come to his conclusion to render a decree of $10 a week because of the partial support given to the plaintiff by the two children and a Mr. Strahl, who also lives in the house, all of the latter three being employed. It further appears that the three persons named pay such expenses of the household as plaintiff is unable to meet, but do not pay any set amount of board. In his opinion the court said:
“It further appearing that the defendant is not interested in a divorce but offers to return home and support his wife if she so desires, it would seem equitable that he should contribute to her support, but not entirely, because she seems to have an arrangement for partial support from her children on the theory that the defendant shall be excluded from the home.
“If the plaintiff, therefore, does not desire to avail herself of full support by the husband as his wife, she may have an allowance of $10 a week as permanent alimony until she remarries or until the further order (of the court.”
The court seems to have tendered to the plaintiff the choice between accepting defendant’s offer to return home and support his wife or that she take the $10 a week and continue on her present arrangements. This opinion was dated March 25, 1948, and we infer that the wife did not accept the alternative offer by the trial judge and, hence, the provisions of the decree for alimony heretofore recited.
We consider that $20 a week until the further order of the court or remarriage of plaintiff should have been awarded to plaintiff instead of $10 a week. In all other particulars the decree appealed from is affirmed. A decree will be entered in this Court in accordance with this opinion. Costs to plaintiff.
Sharpe, C. J., and Bushnell, Boyles, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Carr, J.
Plaintiff brought suit in circuit court to recover damages for injuries sustained by her as a result of being struck by a truck owned and operated by defendant. The accident occurred on the 8th of September, 1943, about 4 o’clock in the afternoon, on a public highway in Benton township, Berrien county. The highway in question runs in a general easterly and westerly direction and was at the time of the accident paved to a width of approximately 18 feet. Plaintiff, who was at the time 8 years and 9 months of age, lived with her parents on the north side of the road. On the date in question she rode home from school with her older sister and her brother in an automobile of a neighbor, referred to in the record as the Valachek car. The driver of said car, a young lad about 14 years of age, stopped on the south side of the pavement with the right wheels of the vehicle on the shoulder, which was at that point approximately 1' 6" in width. After some conversation in the car plaintiff and her sister got out, the latter standing at the south side of the vehicle, which was headed east, while plaintiff went around the rear of the car. The sister followed after a brief interval, and, when she reached a point where her vision was not obscured, saw the body of plaintiff sliding across the pavement in a southwesterly direction, and the truck of the defendant, which had been going toward the west, proceeding to the north side of the highway where it stopped.
None of the witnesses who testified in the case in plaintiff’s behalf saw the accident. Plaintiff was herself a witness, but had no memory as to what occurred at the time. Testimony was introduced tending to show that defendant’s truck, as indicated by the tracks on the pavement, crossed the center line of the highway in proximity to the Valachek car, to a distance of approximately 2 feet, and then swung back to the right side of the road. The condition of the truck after the accident indicated that plaintiff was struck by the left side of the front. There was also testimony that defendant made statements indicating that he may have been driving too rapidly and that he might have avoided the accident by going into the ditch. Following the introduction of plaintiff’s proofs defendant moved for a directed verdict in his favor, assigning as reasons therefor that plaintiff had failed to show negligence on the part of defendant and had also failed to establish freedom from contributory negligence on her part. The motion was granted on the latter ground, the trial judge indicating in his statement to the jury that plaintiff had not sustained the burden resting on her to show freedom from contributory negligence. From the judgment entered on the directed verdict, plaintiff has appealed.
In determining whether defendant’s motion was properly granted the testimony must be construed as strongly as possible in plaintiff’s favor. However, as the trial court indicated, the principal question at issue arises from the lack of proof rather than from the interpretation of the testimony of the witnesses and the inferences to be drawn from such testimony and from the physical facts. There is no showing as to plaintiff’s actions after she left the south side of the V alachek car. Obviously she was not at that time in a place of danger, nor was she in position to make careful observations with reference to traffic on the highway. Whether she looked to the right before passing beyond the protection of the Valachek car does not appear. There is no testimony • from which to determine whether she sought to cross the pavement at right angles to it or obliquely. Neither is there any basis for determining whether plaintiff was walking, running, or standing still, at the time of the accident, or whether she was at the time undertaking to retrace her steps to the south side of the pavement.
Emphasis is placed by counsel for plaintiff on the matter of her age at the time of the accident. It has been repeatedly recognized by this' Court that a young child may not be held to the same measure of care for his or her safety that an adult may be expected to exercise. In Mollica v. Railroad Co., 170 Mich 96 (LRA1917F 118), it was said:
“In the case of a child of the age of deceased (9 years 6 months), the law is well settled in this State that he is responsible for the exercise of such care and vigilance as may reasonably be expected of one of his age and capacity; and the want of that degree of care is negligence. The fact that he may not have as mature judgment as an adult will not excuse bim from exercising the judgment and discretion which he possesses, or from heedlessly rushing into known dangers. Where the dangers are known and understood by him, the rule of contributory negligence is fully applicable.”
Among other cases of like import are Brinker v. Tobin, 278 Mich 42; Clemens v. City of Sault Ste. Marie, 289 Mich 254; Ackerman v. Advance Petroleum Transport, Inc., 304 Mich 96.
The testimony indicates that plaintiff was at the time of the accident a normal child in all respects. She was in the third grade at school. Her father testified that he had warned his children, including plaintiff, with reference to the hazards of traffic on the highway and what was required of children in crossing. Plaintiff stated that she knew that she should not run in front of an approaching automobile, and that she should not cross a road without making sure that she could do so in safety. She further indicated that she had lived on the highway in question for some time before the accident and was familiar with the traffic thereon. The obligation rested on her of exercising for her own safety the measure or degree of care that the ordinary child of her age, experience, judgment, physical and mental development, may reasonably be expected to exercise under similar circumstances.
Counsel for plaintiff contend that in the absence of proof relating to the matter it must be presumed that she was in the exercise of due care for her own safety at the time of the accident. In cases involving the right to recover damages for wrongful death the presumption of due care on the part of the decedent obtains in the absence of witnesses of the material facts involved, unless the physical facts are of such character as to justify an inference of want of proper care. In Breker v. Rosema, 301 Mich 685 (141 ALR 867), it was held that a like presumption should apply for the benefit of a person surviving, but suffering from amnesia, as shown by competent medical testimony, resulting from a brain injury sustained in the accident. In the instant case, however, it is not claimed, and the record does not show, that plaintiff’s inability on the trial to recall what her actions were at the time of the accident was due to any injury sustained therein. In plaintiff’s brief it is suggested that such failure to remember was “due to infancy and 3 years passage of time or some other factors.”
It further appears that there were eyewitnesses of the accident in which plaintiff was injured who were not called as witnesses. Defendant’s daughter was riding with him in his truck at the time of the occurrence, and she and defendant were both in court at the time of the trial. There is nothing to indicate that the daughter was not available as a witness, and it was of course plaintiff’s privilege to call defendant for cross-examination. CL 1948, § 617.66 (Stat Ann § 27.915); Buchel v. Williams, 273 Mich 132. The testimony as to statements claimed to have been made by defendant following the accident indicates that he actually'observed the situation. It is a fair inference that his, daughter did likewise. Under the circumstances plaintiff could not rely on a presumption that she exercised due care for her own safety. The burden rested on her to establish by competent proof that she did so.
In Foote v. Huelster, 272 Mich 194, an action to recover damages for wrongfully causing the death of plaintiff’s decedent, it was held that the plaintiff could not rely on the presumption that the decedent exercised due care for his own safety, for the reason that one of the defendants and a friend who was riding with him were eyewitnesses. A similar conclusion was reached in Frye v. Brinker, 272 Mich 339, in which case defendants, who were eyewitnesses, were called by plaintiff for cross-examination. Foote v. Huelster, supra, was cited and followed in Collar v. Maycroft, 274 Mich 376. It was there held that since the defendant was an eyewitness of the accident, was present at the trial of the cause, and available to plaintiff as a witness, no presumption existed that decedent exercised due care for his own safety. In reversing the judgment of the lower court, and ordering the entry of judgment in favor of defendants, it was said in part:
“If, as must be done in the instant case, it is held that a presumption of the exercise of reasonable care on the part of the driver of the Dodge automobile does not exist because there was an eyewitness to the accident, then the record does not contain any testimony from which it can be determined, except by pure speculation, whether this unfortunate accident was caused by the negligence of the driver of the Dodge car, the negligence of the driver of the Essex car or the combined negligence of the two drivers. The cause may have been, as .appellee contends, the negligence of defendant Maycroft, in failing to properly observe the automobile which he knew was approaching the intersection from the east. On the other hand the sole proximate cause of the accident may have been the failure of the driver of the Dodge car to yield the right of way to the other automobile, as the two simultaneously approached the intersection. CL 1929, § 4712. Or the collision may have resulted from the combined negligence of the two drivers. In other words, the testimony in this case does not disclose what in truth was the proximate cause of the collision. If the sole proximate cause was the negligence of the driver of the Dodge car, plaintiff is not entitled to recover. On such a record it cannot be held that the finding and judgment of the trial court is sustained by the testimony.”
Of like import are Buchel v. Williams, supra; Peck v. Hampel, 293 Mich 252; Black v. Ambs, 307 Mich 644.
The language above quoted from the opinion of the Court in Collar v. Maycroft may well be applied to the situation existing in the case at bar. Here, as there, plaintiff may not rely on the presumption of due care. Likewise, in the absence of testimony as to plaintiff’s actions at the time of the accident it cannot be determined, except on the basis of speculation and conjecture, whether she exercised proper care for her own safety. The burden of establishing the elements of her cause of action, including freedom from contributory negligence, rested on the plaintiff. On the record before us it must be held that she failed to sustain that burden.
The claim is also made that there was evidence in the case indicating willful and wanton misconduct on the part of the defendant. Such claim is predicated on the testimony that defendant stated after the accident that he might have avoided striking plaintiff by going into the ditch. It does not appear from such testimony, however, that defendant admitted that he knew at the time that he could not avoid striking plaintiff except by following that course. Neither was there proof of any admission on his part that he did not, after discovering plaintiff, exercise care to avoid injuring her. There was no evidence requiring the submission of the question of willful and wanton misconduct to the jury. Ackerman v. Advance Petroleum Transport, Inc., supra. A like conclusion follows with reference to possible liability on the ground of subsequent negligence and the application of the last clear chance doctrine.
The judgment of the circuit court is affirmed, with costs to defendant.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Dethmers, and Butzel, JJ., concurred.
CL 1948, § 256.320 (Stat Ann § 9.1580). — Reporter. | [
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North, J.
Alleging that he was discharged by defendant in violation of the veterans’ preferance act (PA 1897, No 205, as amended) plaintiff brought suit and had judgment for unpaid wages, which accrued subsequently to his discharge, in the amount of $2,474.66. The defendant, Alger county board of road commissioners, has appealed.
In the trial court the attorneys for the respective parties stipulated that they would “present the issue on the right to discharge (plaintiff) without cause to the Court, and to that end agree that the defense made herein may be treated * * * in the nature of a proceeding in certiorari from the decision and order of the prosecuting attorney * * * to the end that the parties may have a final judgment declaratory of their legal rights on the question of such discharge without cause having been found under so-called veterans’ preference act.” A hearing, as provided in the statute, had been had before the prosecuting attorney which resulted in an order by him for plaintiff’s reinstatement in his former employment as a maintenance foreman.
Plaintiff is an honorably discharged veteran of World War I. Prom 1919 to 1936 he was employed by defendant as a general laborer. In 1936, he was made a maintenance foreman. As such he had charge of the trucks, roads and road crew of about 15 men. They were charged with the maintenance of the highways in a designated area of Alger county. The county seems to have been divided into 4 separate districts. It is not controverted that plaintiff’s employment was permanent, not temporary. Plaintiff continued in his employment as such maintenance foreman from 1936 until December 31, 1947. On December 1, 1947, defendant road commission by unanimous resolution dismissed plaintiff as of December 31, 1947, and so notified him.
In accordance with the pertinent statute, plaintiff protested his discharge. As noted, the statutory bearing before tbe prosecuting attorney was had. Plaintiff was charged with neglect of duty, incompetency, and lack of co-operation with those working-under him. It is our understanding that by the above noted stipulation these claims are now abandoned. In any event, the hearing before the prosecuting attorney resulted in notice by him to defendant as follows :
“By the authority vested in me by the veterans’ act * * * I hereby reinstate Sam Cremer to his position as foreman of the Alger county road commission, and direct that he be paid compensation from the time of his dismissal at the same rate of ■compensation as was previously paid him.”
At this stage of the controversy all except 1 of the ■employees who worked under plaintiff signed and presented to defendant the following petition:
“February 11, 1948
“We, the undersigned, employees of the Alger •county road commission, hereby request the road commission not to re-employ Sam Cremer as foreman as we absolutely refuse to work under him.”
On February 16, 1948, the county road commission persisted in the former removal of plaintiff as foreman, and plaintiff through defendant’s superintendent was notified of such action by letter, as follows:
“At the regular meeting of the Alger county road commission held on February 16, 1948, it was decided that in view of the fact that a petition has been filed by all, except one, of the employees working under Sam Cremer while he was active foreman, refuse to work under him if he is reinstated to the same position.
“Therefore, it is agreed by this commission that he be employed in another capacity, as of this date, February 16, 1948.
“Very truly yours,
“By George L. Depew, Supt. & Engr.”
To the foregoing plaintiff promptly replied:
“Dear Mr. Depew:
“Kindly be advised that my reinstatement by the prosecuting attorney for Alger county holds that such reinstatement be as foreman and that any other employment with the Alger county road commission would not be within the meaning of the veterans’ preference act.
“It is therefore recommended that the commission officers reconsider its action of February 16, 1948.
“Yours very truly,
“/s/ Samuel Cremer”
There was no reconsideration, and the instant suit followed. Defendant’s first contention is that notwithstanding the hearing before the prosecuting attorney and his determination that plaintiff should be reinstated “to his position as foreman,” defendant had the right to remove plaintiff as foreman. This was on the theory that plaintiff was not protected by the veterans’ preference act because he should be considered as being within the statutory provisions which excepts from its protection “heads of departments * * * and first deputies of such- heads of departments.” This contention is not tenable. Plaintiff was only one of several foremen in defendant’s employ. The highway work with which this case is concerned was, in Alger county, done under a contract beteen the State highway commissioner, as first party, and the board of county road commissioners of Alger county. This contract contained numerous restrictions on the powers of the Alger county board of road commissioners which, as we construe this record, was the head of that department in Alger county; and the contract further provided that George L. Depew, with the approval of the first party, be designated maintenance superintendent. It thus appears that the Alger county board of road commissioners was the head of this department and superintendent Depew was its first deputy. Plaintiff was never designated as the head of a department or as a first deputy of the head of a department. The status of plaintiff was the same as that of at least á of defendant’s foremen and it is farfetched to consider each of the defendant’s numerous foremen as a “first deputy” of the head of a department or of the superintendent of Alger county road commission. Plaintiff had no authority over any of- the other foremen, nor did any of them have authority over him. Under this record plaintiff’s discharge by defendant cannot be considered a lawful discharge as foreman on the theory just above considered.
Defendant also contends that “plaintiff, being hired in 1920 as a general laborer, is not entitled to preference in the job as maintenance foreman to which he was appointed in 1936; ” and says: “The preference lie has is only with reference to the position at which he was originally hired. * * * As we see his preference, it is that he can stay with this department (the maintenance crew), but his duties in connection with this department are to be prescribed by defendant.” Defendant’s contention in this particular is contrary to our decision in Walkling v. Smith, 276 Mich 193, which was heard by 5 justices; and in the opinion signed by 4 it was said: “The veterans’ act does not regulate terms of employment hut relates to the status as established.” This quoted expression was literally repeated by us in McManus v. Genesee County Road Commission, 319 Mich 653, 659. As noted above, for a period of more than 11 years plaintiff was permanently employed as one of defendant’s maintenance foremen. His status as such was fixed; and except for reasons specified in the statute defendant was without authority to remove him. To hold otherwise would lead to an absurd result. For example, an honorably discharged veteran might be employed as an engineer by the public service commission and unless his status as such is protected by the statute he might be demoted by the commission to a mere telephone inspector; but it is plainly intimated in Walkling v. Smith, supra, that such demotion would not be permitted under the terms of the veterans’ preference act. The statute should be so construed.
It is further contended by defendant that: “The veterans’ preference act is contrary to the Fourteenth Amendment to the Constitution of the United States in that it creates a perpetual preference without time limit.” We think there is no merit to this contention. No authority is cited by defendant in support thereof. Mere reading of the statute discloses various grounds upon which a veteran may be lawfully discharged. While it is true that no length of tenure is provided in the statute, we do not find that in consequence thereof the statute is violative of the noted Federal constitutional provision. And it may be observed that under the Federal Constitution Federal judicial officers hold office “during good behaviour.” US Constitution, art 3, § 1. If, as is stated in defendant’s brief: “The veterans would be sufficiently compensated and protected and the public service would be better served by an act which would set a time limit on preferences;" a matter for consideration by the legislature is presented.
There is no merit to defendant’s further contention: “If plaintiff was wrongfully discharged, his recovery should be reduced by the amount he could earn at general labor for the defendant.” The reason defendant urges in support of this contention is that it was plaintiff’s “duty to mitigate the damages by taking other employment.” The answer is that the statute, which is class legislation favoring honorably discharged veterans, in part reads:
“And provided further, That where such veteran has been reinstated to his employment upon the written order of the * * * prosecuting attorney if a county employee, * * * then such veteran shall be entitled to receive compensation for the time lost from date of such dismissal or suspension to the date of reinstatement at the same rate of pay received by him at the date of dismissal or suspension.”
While it fairly appears that plaintiff declined to return to defendant’s employ as a common laborer, he testified he sought employment elsewhere and stated to one to whom he was applying: “I would try anything.”
In our judgment this appeal presents no ground or reason that would justify reversal. The judgment entered in the circuit court is affirmed, with costs to plaintiff herein.
Sharpe, C. J., and Bushnell, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred.
See CL 1948, § 35.401 et seq. (Stat Ann and Stat Ann 1947 Cum Supp § 4.1221 et seq.).—Reporter.
The relevant portion of the statute reads:
“See. 2. No veteran or other soldier * * * holding an office or employment in any public department or public works of the State or any county, * * * except heads of departments, * * * and first deputies of such heads of departments, * * * shall be removed or suspended, or shall, without his consent, be transferred from such office or employment except for official misconduct, habitual, serious or willful neglect in the performance of duty, extortion, conviction of intoxication, conviction of felony, or incompetency; and such veteran shall not be removed, transferred or suspended for any cause above enumerated from any office or employment, except after a full hearing * * * before the prosecuting attorney if a county employee, * * * and at such hearing the veteran shall have the right to be present and be represented by counsel and defend himself against such charges: Provided further, That as a condition precedent to the removal, transfer, or suspension of such veteran, he shall be entitled to a notice in writing stating the cause or causes of removal, transfer, or suspension .at least 15 days prior to the hearing above provided for, and such removal, suspension or transfer shall be made only upon written order of * * * the prosecuting attorney: * * * Provided, however, That where such veteran has been removed, transferred, or suspended other than in accordance with the provisions of this act, he shall file a written protest with the officer whose duty under the provisions of this act it is to make the removal, transfer, or suspension, within 30 days from the day such veteran is removed, transferred, or suspended; otherwise the veteran shall be deemed to have waived the benefits and privileges of this act: * * * And provided further, That where such veteran has been reinstated to his employment upon the written order of the * * * prosecuting attorney if a county employee, * * * then such veteran shall be entitled to receive compensation for the time lost from date of such dismissal or suspension to the date of reinstatement at the same rate of pay received by him at the date of dismissal or suspension.” PA 1897, No 205, § 2, as amended by PA 1944 (1st Ex Sess), No 22 (CL 1948, § 35.402 [Stat Ann 1947 Cum Supp § 4.1222]). | [
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Reid, J.
Plaintiff filed the bill of complaint as assignee of James J. Matz, for specific performance of a written contract to sell defendants’ tavern license and, also, bar to Matz. The trial court on plaintiff’s motion entered a decree on the pleadings, decreeing specific performance. Defendants appeal.
The defendants claim the following to be facts in the case:
On October 7,1948, James J. Matz entered into an option to purchase defendants’ license and bar, which option is as follows:
“Option
“For $100 to us in hand paid by James J. Matz of 854 Laketon avenue, Muskegon, Michigan, optionee, we, John Psiharis and-Harry Balis, doing business as the Puritan Restaurant, optionors, give optionee the exclusive right and option to buy the following:
“Liquor control commission 1948 tavern license No. 2588, issued to the Puritan Restaurant, for the sum of $5,000 less the $100 consideration paid for this option, for 30 days.
“For the same consideration we agree that if optionee buys our license he may also buy our bar for an additional sum of $1,500. It is understood that this sale can only be made with the approval of the city commission of Muskegon and the Michigan liquor control commission, and if the option is exercised we agree to do everything necessary and proper on our part to assist in obtaining the approval of the city commission and the liquor control commission. We agree to protect the license and keep it in good standing for the period of the option and, if option is exercised, for the additional period of time in which arrangements for transfer are being made.
“In order to exercise this option optionee, or his assignee, shall within the 30-day period deposit the purchase price of $4,900 or $6,400 (depending on whether the bar is purchased), in National Lumberman’s Bank to be paid to us. upon approval of transfer of license by the liquor control commission and to be returned to the buyer if approval is refused by the liquor control commission and we shall be promptly notified that the money has been deposited in the bank in accordance with this agreement.
“It is understood that this is a net price and no commissions are to be paid by us.
“Dated: October 7th, 1948.
“John Psiharis
Harry Balis
doing business as the Puritan Restaurant,
252 West Western Avenue, Muskegon, Michigan.
“In the presence of:
Dorothy Kttnish
Virginia Chevos”
James J. Matz paid defendants $100 as part of the purchase price if the option should be exercised. On October 29, 1948, the option was extended through and including December 7, 1948, and Matz paid an additional $100. On December 6, 1948, Matz assigned the option to Berman, plaintiff. On December 7, 1948, Berman deposited the balance of the purchase price, $6,300, in the bank to be paid to defendants on approval of the transfer of license by the State liquor control commission and by the city commission of Muskegon.
On December 28, 1948, defendants signed and delivered an application to the Michigan liquor control commission to approve the transfer to Berman, but defendants claim that they made such application because of misinformation received by them from plaintiff that the Michigan liquor control commission had expressed their willingness to approve the transfer.
Defendants claim that the deposit of $6,300 balance by plaintiff was not bona fide, that plaintiff intended that the required approval by the Michigan' liquor control commission and authorities of the city of Muskegon would not be forthcoming unless and until plaintiff found it to his advantage that the deal should go through; that plaintiff had it within his power because of his retention of his other liquor licenses, to clef eat the approval of the transfer; and that plaintiff “intended to use certain priority rights that attached to defendants’ license to enable him to secure the ‘C’ license. * * * [Plaintiff] would not have exercised the option if he had thought he would have been compelled to take just the ‘A’ license, but he was secure in the knowledge that if he saw that a ‘C’ license would not be approved, he would * * * [by] retaining his interest in the other liquor establishments, bring about a disapproval of the transfer, and receive a refund of the deposit;” and that for such purpose plaintiff caused an undue and unreasonable delay of the required approval and that an unreasonable delay of such approval was due to plaintiff’s actions looking to a change of the license from class “C” to class “A.”
Defendants further claim that the Michigan liquor control commission refused before January 18, 1949 to approve the transfer, unless plaintiff surrendered his other liquor licenses; that thereupon upon learning of the refusal of such approval, defendants on January 18, 1949 rescinded the sale agreement, at a time when plaintiff was not in reality bound to part with the consideration and the agreement was a mere option; that there was want of mutuality in the option and that the option under all the circumstances is not to be considered as in fact exercised or at least was not exercised within a reasonable time.
Plaintiff claims the exercise of the option by him on December 7, 1948, was bona fide and without any intent on his part then or at any time to cause or through any fault of his to delay approval of the transfer of the license on the part of the public authorities, and claims that since the decree was entered, the required approval has been granted and that nothing remains to be done to bring about the transfer except compliance with the decree on the part of defendants, and that all questions herein are moot. The fact of such approval seems not questioned. We would suppose that the decree was an important factor in bring about such approval. The defendants evidently desire to have and exercise a license, which the liquor control commission could still grant defendants if they saw fit, notwithstanding their former action. Defendants consider the decree a hindrance to such grant by the commission and seek to have the decree reversed.
Defendants claim that their answer and cross bill was filed February 14, 1949, that they filed their amended cross bill on February 21, 1949, and still had, under Court Buie No 26, § 1 (1945), 15 days from February 14, 1949, to file further amendments if they so desired, and that the decree of the' lower court of specific performance on the pleadings was prematurely entered on February 21, 1949.
CL 1948, § 616.7 (Stat Ann § 27.844) would require leave of the court to amend a pleading.
Our Court Buie No 26 (1945), §§ 1, 2, is as follows:
“Sec. 1. A plaintiff may at any time before answer is put in, or within 15 days thereafter, amend his declaration or bill of complaint, and a defendant within 15 days after his answer is put in may amend same, without leave of court and without costs.
“Sec. 2. Under this rule new counts or new defenses, set-offs, recoupments, or cross bills may be added to a declaration or answer.”
Notwithstanding the statute, the court rule must be given its full force and effect. See Michigan Constitution 1908, art 7, § 5.
Defendants had a right to amend their answer and cross bill within 15 days after February 14,1949, and the decree was prematurely entered on the pleadings on February 21, 1949, for which reason the decree is reversed.
The option was expressly conditioned upon approval by the public authorities and was not enforceable before such approval, in any case. The public authorities had not as yet approved the transfer when the decree was signed and the decree was premature for that reason also.
There were disputed facts that could be determined only after a hearing on the merits.
The decree appealed from is reversed and cause remanded to the trial court for further proceedings. Defendants may amend their answer and cross bill at any time on or before 9 days after a copy of our decree herein is filed in the trial court. Costs to defendants.
Sharpe, C. J., and Boyles, Dethmers, Bijtzel, and Carr, JJ., concurred with Reid, J.
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North, J.
Plaintiffs are the owners of improved business property fronting approximately 38 feet on Linwood avenue in Detroit. Defendant is the owner of improved business property adjoining plaintiffs’ property on the south and having a Linwood avenue frontage of 77 feet. These properties are.on the westerly side of Linwood. The north 28.91 feet of plaintiffs’ property extends back 119 feet to a paved public alley, but the balance of plain tiffs’ property is only 77 feet deep. Defendant’s property has the same depth of 77 feet back westerly from Linwood, and is bounded on the south by a public street — Virginia Park. Plaintiffs claim that they have as appurtenant to their property a right of driveway 10 feet wide extending from Virginia Park across the rear of defendant’s property; and plaintiffs allege that defendant has interfered with their lawful use of the driveway by parking trucks and other vehicles therein, and that defendant has threatened to permanently close the driveway by erecting a fence thereon and a building. Issue was framed and after hearing the injunctive relief sought by plaintiffs was denied and their bill of complaint dismissed. Plaintiffs have appealed. For both clarity and brevity we accompany our opinion with an outline of the property involved.
Plaintiffs’ property consists of parcels designated A and B. The latter parcel extends back 77 feet to the west side of the 10-foot driveway. Defendant owns parcel C which also extends back to the west side of the driveway. Bnt both parcels B and C are subject to the driveway easement. The owner of parcel D is not a party to this suit, and it is indicated on the outline only because it together with parcels B and C was owned by the common grantor in the chain of title under which these litigants through mesne conveyances became possessed of their respective titles.
Prior to August, 1917, Louis Chernoff and wife became the owners of parcels B, C and D. They never owned parcel A. In August, 1917, the Chernoffs conveyed parcel .C but they reserved for themselves, their heirs and assigns “the right to use * * * as a driveway jointly with the owners of” parcels B and C a strip of land 10 feet in width adjacent to the easterly side .of parcel D.
In September, 1917, the Chernoffs sold and conveyed parcel D, including the right in the grantees, their heirs and assigns, to the 10-foot driveway over the west end of parcels B and C “jointly with the owners of” parcels B and C.
And in 1919 the Chernoffs sold and conveyed the remaining portion of their property, parcel B, which had only 9.73 feet frontage on Linwood and a depth of 77 feet. The warranty deed contained the provision that conveyance was “subject however to an easement in the westerly 10 feet of said parcel of land, which easement consists of a driveway for the use of the owners of” parcels B, C and D.
At the time the Chernoffs owned the parcels hereinbefore referred to the property was unimproved. In none of such conveyances or in any other conveyance disclosed in his record did any right of easement in the driveway become appurtenant to parcel A. Defendant admits that plaintiffs have an easement in this right of way that is appurtenant to parcel B, but strenuously objects to plaintiffs imposing an additional burden on the easement by using the driveway to serve all of plaintiffs’ larger needs incident to the buildings located in part on parcel B but to a much greater extent on parcel A. A restaurant business is conducted in the building which occupies the whole frontage of parcels A and B on Linwood, and a bakery is operated in another -building which occupies the full width of parcel A at the westerly end thereof adjacent to the public alley.
As against defendant’s claim in the respect just above noted plaintiffs assert that by user over a period of 20 odd years, they have a prescriptive right to continue the use of the driveway as an easement subservient to both parcels A and B.
The following facts are pertinent. Plaintiffs, Peter and Pauline Barbaresos, obtained title by quitclaim deed from Bankers Trust Company of Detroit January 24,1941, to parcels A and B, the latter parcel being subject to the driveway easement over the west 10 feet thereof. The whole Linwood frontage of these 2 parcels is occupied by a 2-story brick building. Plaintiff Dan Barbaresos and George Vatsis, as partners, conduct a restaurant business in the first story and there are living quarters above. While the record fails to disclose how plaintiff Dan Barbaresos became vested with any interest in parcels A and B, it was stipulated in the trial court that he is a joint owner with the other two plaintiffs.
In June, 1944, defendant purchased the vendee’s interest in a land contract for parcel C and approximately one year later obtained title from an Illinois corporation. Prior to his purchase of parcel C, defendant as a tenant had occupied one of the 4 stores located thereon since 1922 and had full knowledge of the driveway and its use along the rear of these stores.
The only contested issue in this case is whether plaintiffs are right in their contention which, as stated in their brief, is: “Plaintiffs claim an easement by prescription in favor of Lot 1 (parcel A) by adverse user for a period of more than 20 years.” At the conclusion of plaintiff’s brief their contention and the relief sought by them are stated as follows:
“For the reasons and law cited, we submit that there is an easement for alley purposes in the 10-foot strip which is appurtenant to lot 1 (parcel A), and the 9.73 feet of lot 2 (parcel B) owned by plaintiffs. That the user of this right of way has been under a claim of right for 22 years which is a longer time than is necessary to establish an easement by prescription. * * * And * * * (a decree should be) entered here establishing the rights of the plaintiffs to use this strip for the purpose of all their property (parcels A and B) and an injunction issued restraining defendant from interfering with plaintiffs’ use of this easement.”
The bill of complaint herein was filed and process served in April, 1945. As before noted, plaintiffs did not become the owners of this property until January 24, 1941. Nothing appears in this record which would justify a holding that they are entitled to have tacked onto their claim of easement any rights which their predecessors in title might have acquired. In so stating we are mindful that George Vatsis (who is one of the partners conducting a restaurant business in plaintiffs’ property) from August, 1924, to the time when plaintiffs purchased, conducted the Stafford Lunch Bar which was located on parcel B and possibly also on the southerly part of parcel A, although the record is not clear as to this latter circumstance. It does appear that prior to plaintiffs’ purchase (1941) the brick building on parcels A and B was divided into 2 stores with separate entrances from Linwood. Vatsis conducted his business in the southerly one of these 2 stores. Prom August, 1924, to January, 1941, the 10-foot driveway was continuously used to bring merchandise, milk, coal, et cetera, for Vatsis’ needs in his business, and also to remove garbage and ashes. After plaintiffs’ purchase the 2 stores were opened into 1 which is now occupied as a restaurant conducted by Dan Barbaresos and George Vatsis. Peter Barbaresos was not a witness in the trial court. Until defendant’s purchase of his property the driveway continued to be used as theretofore and without protest. But since defendant’s purchase (1944 or 1945) he has protested plaintiffs’ right to use the driveway incident to serving plaintiffs’ property on parcel A, claiming such use imposed an additional servitude.
It clearly appears that as to parcel A plaintiffs have no right of easement in the 10-foot driveway, either by grant or by reservation of a common grantor. Nor have plaintiffs a right to use this driveway as a matter of necessity; because parcel A extends back to the 18-foot public paved alley, and when plaintiffs purchased parcel A there was access thereto for both vehicles and pedestrians from this, public alley. More recently plaintiffs have so altered their building adjacent to the alley that entrance by vehicles is cut off. But that does not afford plaintiffs a right of way as a matter of necessity. Other reasons resulting in this same conclusion need not be noted.
We are also of the opinion that as to parcel A plaintiffs do not have a right to use the 10-foot driveway by prescription or by reason of use over a period of years. The use of this driveway by Vat-sis since 1924 was, as far as disclosed by the record, purely permissive, except as such use was incident to his occupancy of parcel B. Any further or additional use was never asserted as a right hostile to defendant prior to defendant’s contract purchase in 1944. It was only after such purchase, and possibly after defendant obtained his deed in 1945, that plain-' tiffs asserted such a claim. The testimony on this phase of the case was given by plaintiffs’ witness Vatsis as follows:
“It was about 6 months ago that I first had difficulty about using this driveway with the defendant. He attempted to block the driveway. From 1924 until that time I had no trouble.”
'“The elements necessary to give rise to a prescriptive right (of driveway) are the same as those of title by adverse possession, with the exception that it does not have to be exclusive.” St. Cecelia Society v. Universal Car & Service Co., 213 Mich 569, 576.
“A prescriptive easement does not arise out of a mutual use of a driveway until mutuality ends and adverse user commences and continues for the period essential to the fastening of such a right. If the user was permissive at inception, such permissive character will continue of the same nature and no adverse user can arise until there is a distinct and positive assertion of a right hostile to the owner and brought home to him.” Hopkins v. Parker, 296 Mich 375, 379.
In Bang v. Forman, 244 Mich 571, we quoted with approval from Brossart v. Corlett, 27 Iowa 288, as follows:
“ ‘The rule, we grant, is that an easement appurtenant to an estate is so to every part thereof, whatever the subdivision at the time or subsequently. But it is just as true that the servient estate is not to be burdened to a greater extent than was contemplated at the time of the creation of the easement.’ ”
Under this record plaintiffs did not establish an easement by prescription to nse the 10-foot driveway incident to the needs or conveniences of parcel A, which clearly would impose an additional servitude on the easement. By his decree the circuit judge protected plaintiffs’ right of easement insofar as it was appurtenant to parcel B, which is not contested by defendant; otherwise by the decree entered in the circuit court plaintiffs’ bill of complaint was dismissed. The decree so entered is affirmed, with costs to defendant.
Sharpe, C. J., and Bushnell, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Bushnell, J.
We issued a writ of habeas corpus to inquire into the cause of petitioner’s detention in the Kalamazoo State Hospital. By ancillary writ of certiorari we have the record of the proceedings in the probate court of St. Joseph county which resulted in the commitment. It discloses a situation similar to that shown in Re Miller, 303 Mich. 81, and in Re Clifford, 303 Mich. 84, and decision there is controlling here.
Petitioner was adjudged insane by the probate court on December 9, 1933, upon the certificates of two physicians and without “the taking of proofs and a full investigation of the facts. ” (In re Miller, supra.) Buck was first sent to the State Psychopathic Hospital at Ann Arbor and subsequently transferred to the Kalamazoo State Hospital upon the authority of a subsequent order of the probate court, dated February 13, 1934, based upon the certificate of the medical director of the State Psychopathic Hospital, who had him under observation.
The original order of commitment being a nullity, any subsequent order based thereon is also a nullity, In re Miller and In re Clifford, supra.
An order may be entered releasing the petitioner.
North, C. J., and StARR, Wiest, Butzel, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Carr, J.
On or about May 17, 1941, plaintiff purchased from the defendant Lyon Screw Products, Inc., 1,000 shares of its capital stock for which he paid $1 per share. From time to time he* inquired of defendants concerning the value of the stock and the progress of the company. It is his claim that in response to each such inquiry he was advised that his stock was worth $1.50 per share. On or about September 30, 1943, he sold it to the company for $1,500, indorsing the certificate and acknowledging receipt of the consideration. In December, 1944, he filed suit in equity alleging that defendants had fraudulently misrepresented the value of the stock, that at the time of the sale by him it was worth approximately $30 per share, that the representation was known to defendants to be false, that it was made for the purpose of inducing plaintiff to sell his stock, that he relied thereon, and that he suffered injury in consequence.
The defendants named in the suit filed their answer to the bill of complaint, denying the material allegations thereof and asserting that plaintiff wished to sell his stock for the purpose of obtaining money for business purposes. Thereafter the Equitable Trust Company, as receiver of the Lyon Screw Products, having been added as a party defendant by order of the court, filed its answer likewise denying plaintiff’s right to the relief sought. On the trial of the case, at the conclusion of plaintiff’s proofs, defendants moved to dismiss. The motion was denied.
Following the trial of the case, the circuit judge concluded from the evidence that the value of the stock was in fact misrepresented by defendants, and that it was worth at the time of the transaction in question approximately 6i dollars per share. On motion the case was dismissed as to the defendant Hill. The court being of the opinion that the action was merely one for damages and not properly instituted in equity, it was transferred to the law side and judgment entered accordingly against defend ants Lyon, McCrory, and Lyon Screw Products, Inc. Prom s.uch. judgment defendants Lyon and Lyon Screw Products, Inc., have appealed.
It is the claim of the appellants that plaintiff failed to make out a cause of action in that his proofs did not show that he relied on the alleged misrepresentation of the defendants as to the value of the stock. The facts necessary to be established in order to justify a recovery in a case of this character have been repeatedly considered by this Court. In Candler v. Heigho, 208 Mich 115, in holding that a verdict was properly directed in defendants’ favor on the ground that plaintiffs’ proofs indicated affirmatively that there was no reliance on the alleged false representations made by the defendants, it was said:
“There is no conflict of opinion as to the character of the proofs which plaintiffs must have submitted to entitle them to the verdict of a jury. It is well stated in 20 Cyc, at page 13:
“ ‘The general rule is that to constitute actionable fraud it must appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.’ ”
Plaintiff’s testimony indicates that he did not have confidence in the management of the defendant corporation. It was his claim on the trial that from time to time he sought information with reference to the business but was denied access to the records. He claims that defendants advised him that the Lyon Screw Products, Inc., was a “closed corporation” and under no legal obligation to give information to its shareholders. His explanation as to what occurred at the time of the sale of the stock by him is set forth in his testimony on direct examination, in response to questions by his counsel, as follows:
“A. Well, I usually went there about — oh, every four or five months, just drop in and talked to them. The last time I went down Mr. McCrory asked me— that was October 1, 1943, when I sold my stock— and he asked me if I wanted to sell my stock, and I asked him the usual questions of how much the stock was worth, and he said, ‘I think it is worth a dollar and a half, isn’t it, Jack’ — referring to Mr. Lyon. Mr. Lyon said, ‘The last time you checked in the books that was what the value was, and that was about a week previously.’
“Q. (By Mr. Dairies) This date was the first of October, 1943?
“A. Yes, sir. And at the same time I was there on October 1st, I was kind of suspicious of whether the stock was worth a dollar and a half or what it was worth. Of course, it was never listed on the market, and there was no way of me finding out what it was worth. And I asked Mr. McCrory if I could look at the books. I am not a bookkeeper, but I can kind of get some idea what kind of value it had; and he gave me the answer he had on the financial statements, that it was a closed corporation and nobody was permitted to see the books.
“Q. Did you inquire at that time as to the business conditions of the corporation?
“A. I asked him how things were going, and he said, ‘Well, you can sell your stock now and get out while you can make a $500 profit on your thousand dollar investment.’
“Q. Who told you that?
“A. Mr. McCrory.
“Q. Did you have any further conversation with them that day ?
“A. No, I just sold my stock, and that was all.” '
Interrogated further on cross-examination with reference to the matter, he testified as follows:
“Q. At the time of this sale, you say you made an inquiry of Mr. McCrory again, what the stock was worth ?
“A. Yes, sir.
“Q. And then what did you tell him?
“A. I asked him if there was any way of me finding out exactly what the stock was worth, because all I could do was take their word for it. And he said it was a closed corporation and you had no right to look at any books or anything.
“Q. And how did that make you feel?
“A. That made me more suspicious that something was wrong.
“Q. In other words, that your stock was worth more than that?
“A. Yes.
“Q. And yet you sold it.
“A. I figured if I didn’t get out at that time I would lose the stock I had.
“Q. And maybe you thought the stock was worth less than that.
“A. I thought it was worth more.
“Q. Yet, feeling that it was worth more, you sold it. Why?
“A. The way things were going I thought I would probably take a loss from it. * * *
“Q. Now, at the time that you were down there in October, 1943, the plant had then moved to 12th Street?
“A. Yes, sir.
“Q. There was a lot of business? Machinery was whirling and there was lots of activity, and so you felt at that time that your stock was worth more than a dollar and a half a share ?
‘‘A. I did, yes.
“Q. Then why did you sell it?
“A. It seemed to me that something was wrong, and that if I didn’t get out at the time I would probably lose more than I could get at that time.
“Q. Then you must have thought that maybe the stock wasn’t worth a dollar and a half a share ?
“A. I knew it was worth more, hut I didn’t know how to go about proving it was worth more.”
Plaintiff did not claim in his testimony that he relied on the truth of the representation that he said defendants made to him concerning the value of the stock. On the contrary it clearly appears that he thought something was wrong, that he deemed it advisable to sell his stock, that he was fearful of a loss if he did not do so, and that he believed at the time that the stock was worth more than $1.50 per share. The conclusion cannot be avoided that plaintiff did not at the time have confidence in the defendants, that he did not believe their statement as to the value of the stock, and that he made the sale for the reasons indicated by him rather than in reliance on the alleged misrepresentation.
In Kimble v. Gillard, 177 Mich 250, a somewhat .analogous situation was presented. There plaintiff, who claimed that he had been defrauded in a transaction involving the purchase of property by him, indicated in his testimony on the trial that he had •entered into the contract because one of the defendants was putting his money into the property and he (plaintiff) was willing to do likewise. In commenting on the situation, it was said:
“As far as the representations of appellant to plaintiff, relied upon in the declaration, whereby plaintiff claimed to have been defrauded, are concerned, the foregoing quotation from his testimony fatally varies from the' declaration, and the court was in error in'not so holding.
“It is a well-settled rule, familiar and fundamental, that, in order to make misrepresentation actionable, there must be a reliance upon the representation. Parker v. Armstrong, 55 Mich 176; 20 Cyc, pp 108, 109, and cases cited.
“All the material allegations relied upon in an action for damages for false representations must be proved substantially as alleged. The motion of defendant for a directed verdict should have been granted upon this ground.”
Among other cases recognizing the rule that reliance on alleged false representations must be proved in order to permit recovery of damages are Pratt v. Burhans, 84 Mich 487 (22 Am St Rep 703); Krushew v. Meitz, 276 Mich 553. See, also, Lebeis v. Rutzen, 289 Mich 1; 37 CJS, p 267; 23 Am Jur, p 939 et seq. Knowledge of the falsity of representations is inconsistent with reliance thereon. Candler v. Heigho, supra; De Grasse v. Verona Mining Co., 185 Mich 514; Beverly v. Richards, 255 Mich 508.
The conclusion of the trial court that plaintiff acted in reliance on the alleged misrepresentation as to the value of the stock is not sustained by the proof. The testimony of the plaintiff clearly indicates that such was not the fact. It must be said, therefore, that plaintiff failed to make out his alleged cause of action for fraudulent misrepresentation and is in consequence not entitled to recover. This conclusion renders it unnecessary to consider the competency of the testimony relating to the value of the stock as of September 30, 1943. The cause is remanded to the circuit court with directions to set aside the judgment in iavor of plaintiff, and to enter a judgment in favor of appellants, with costs.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Dethmers, and Butzel, JJ., concurred. | [
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Sharpe, C. J.
This is an appeal from a judgment entered for plaintiff as a result of personal injuries sustained by her on February 8, 1947, while riding as a passenger in a cab owned and operated by defendant Bay City Taxi Cab Company.
It is the claim of plaintiff that defendant company through its employee operated the cab at an excessive speed over an icy street as a consequence of which the vehicle went out of control, crashed into a snow bank and threw plaintiff through the rear door of the cab and out into the street injuring her back, spine, right foot and shoulder. Defendant claims that the cab got stuck on an icy street; that plaintiff voluntarily got out of the cab; and that she fell on the icy street after she left the cab. The cause was submitted to a jury who returned a verdict in the amount of $2,500 in favor of plaintiff.
In a motion for a new trial and upon appeal defendant urges that the trial court was in error in refusing to grant a new trial for the reason that Dr. Stewart was improperly permitted to testify over objection regarding plaintiff’s condition based on X-ray photographs which were not admitted in evidence.
It appears that plaintiff consulted Dr. Stewart for treatment on April 17, 1947, and he continued to treat her on an average of 4 to 6 times a month up to January 18, 1948; that Dr. Stewart was present when the X-rays were taken by Dr. Ziliak; and that Dr. Stewart has had 25 to 30 years experience in reading and interpreting X-rays. It also appears that Dr. Stewart was called as a witness on behalf of plaintiff and testified that his interpretation and examination of the X-rays showed: “Anterior and posterior and lateral studies of the right shoulder show no X-ray evidence of bone pathology. Anterior and posterior and lateral studies of the cervical spine show a posterior displacement of the body of the fifth cervical vertebra on the fourth by approximately one-eighth of an inch. There is marked evidence of arthritis in this region of the spine.” Defendant’s counsel objected to the testimony of Dr. Stewart for the reason that it was based upon X-rays that were not offered in evidence.
In Jolman v. Alberts, 192 Mich 25, it was held that the trial court was not in error in excluding testimony by a doctor as to what a certain X-ray picture showed where the absence of the picture was unaccounted for. We there said:
“The knowledge of the witness was derived from reading — interpreting—a picture. The picture was, of course, the best and only evidence of what it did or did not reveal. And, while it is matter of common knowledge that the correct reading of such a picture is a thing for experts, there could be no proper cross-examination of an expert interpreter in the absence of the thing interpreted.”
In 82 ALR 1340, the rule is stated:
“While there is some conflict on the question, it is held by the weight of authority that an expert witness having personal knowledge, must, before giving his opinion, state the facts upon which he bases it, and that he cannot, without disclosing the facts, give his opinion directly, or take them into consideration in answering hypothetical questions.”
For other authorities having a relation to the above, see White v. Bailey, 10 Mich 155; Hitchcock v. Burgett, 38 Mich 501; Van Deusen v. Newcomer, 40 Mich 90; Fuller v. Mayor, Recorder and Aidermen of the City of Jackson, 92 Mich 197; and Hunter v. Village of Ithaca, 141 Mich 539.
In the case at bar the X-rays were not offered in evidence. While no objections were raised as to their nonproduction neither did plaintiff offer any reason for their nonproduction. There was no di rect evidence of what the X-rays consisted of, bnt the doctor was permitted to testify concerning his conclusions over the objection that the factual bases for them was not shown. In our opinion it was error to permit Dr. Stewart to relate his conclusions from the X-rays, as to what the X-rays disclosed, without producing the pictures upon which his opinion was based or without testimony accounting for their non-production. Other errors are complained of hut in view of our conclusion, we need not discuss them.
The judgment is reversed and a new trial granted. Defendant may recover costs.
Bushnell, Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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On Applications for Rehearing.
Williams, J.
On order of the Court, the applications of the Wayne County Stadium Authority and the County of Wayne for rehearing and purposes of clarification are considered and the same are hereby denied. The opinion heretofore rendered is reaffirmed without change. However, the following is added thereto for the purpose of clarification. Where the county is authorized under appropriate statute to be a "borrower” (unlike present Act 31) then the computation of the county’s indebtedness as a borrower would at any time equal the outstanding principal plus accrued payable interest.
T. M. Kavanagh, C. J., and Adams and Swain-son, JJ., concurred with Williams, J. | [
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North, J.
By the bill of complaint herein plaintiffs seek cancellation of a quitclaim deed given by the State land office board to defendants Gomberg, and to require the State to convey to plaintiffs thé property described in the deed. The property involved is a vacant lot in the city of Ann Arbor, Washtenaw county, Michigan, and may be sufficiently identified herein as lot 19 of Long Shore Heights subdivision. After issue joined and hearing in the circuit court the relief sought by plaintiffs was decreed, conditioned upon plaintiffs paying the 1939 defaulted tax with interest and penalties thereon. Defendants, auditor general of Michigan, Murl K. Aten, and the State land office board, have appealed. The material facts are stipulated. Prior to June 3, 1943, Myrtie Langford Moore Hendershot is asserted to have become the fee owner of this lot 19. As •the result of default in payment of the 1939 tax the lot was sold and bid in by the State of Michigan at the May, 1942, tax sale. There was no redemption, and on June 3, 1943, the auditor general deeded the property to the State of Michigan. The State thereupon became the owner of lot 19. Darby v. Freeman, 304 Mich 459, 467; Lowrie & Webb Lumber Co. v. Ferguson, 312 Mich 331. The State’s deed was recorded August 10, 1943.
On October 22,1943, Myrtie Langford Moore Hendershot gave a warranty deed of this lot to plaintiffs, and they have been in possession since that date. They recorded their deed December 8, 1943. On that date plaintiffs presented their deed to the Washtenaw county treasurer “for the purpose of securing a statement as to the status of taxes on. said property and for the purpose of paying any taxes then unpaid thereon.” The county treasurer erroneously issued the statutory certificate (CL 1948, § 211.135 [Stat Ann 1947 Cum Supp § 7.194]) wherein he stated he had examined the tax records, in his office and “that it does not appear from said records that the State of Michigan or any individual, holds any tax deed or lien upon said premises for a period of 5 years preceding the date of said deed.”
From the foregoing it appears that prior to the-date of plaintiffs’ deed (October 22, 1943) the State-of Michigan on June 3, .1943, had become the absolute owner of the property here involved, and its-, deed was recorded August 10,1943. It is under such circumstances that appellants contend plaintiffs are-not entitled to any relief and that their bill of complaint should be dismissed. But plaintiffs and appellees state the issue as follows and stress additional facts about to be noted:
“Appellees claim there is but one controlling question. (1) Where appellees lost their opportunity to secure timely redemption of their property from the 1942 annual tax sale through intervention of a local taxing unit, by their good faith reliance upon an official county treasurer’s tax certificate issued to-them * * * stating erroneously that according to
Ms records the State held no tax deed or lien, does equity and justice require restoration to appellees of the opportunity to secure such redemption?”
The additional facts stressed by plaintiffs are as follows. Lot 19 was withheld from the sales of tax-reverted lands in 1944 and 1945, but at such sale in February, 1946, this lot was sold for $700 to defendants Gomberg. No attempt was made to match the purchasers’ bid. In the meantime the city of Ann Arbor for 1944 and 1945 erroneously and unlawfully assessed this State-owned lot to plaintiffs, and they paid the taxes as follows: August 15, 1944, $40.67; December 30, 1944, $5.60; August 15, 1945, $39.19; and December 31, 1945, $7.39. Plaintiffs, not having received tax notices for 1946 or 1947, on or about February 11, 1948, upon inquiry from the Washtenaw county treasurer, learned for the first time that defendants Gomberg claimed title to lot 19.
Admittedly, as stated in plaintiffs’ brief, this is a “rather unusual case.” But the controlling question of law is this: When or how did plaintiffs acquire title to lot 19 or any right therein?
Plaintiffs can claim no benefit from the fact that this lot was withheld from the State land office board’s sale of tax-reverted lands in 1944 and 1945, but did sell it at the February, 1946, sale. See Blunt v. Auditor General, 324 Mich 675. It is elementary law that payment of taxes on land, title to which is held by one other than the party making the payment, cannot vest the latter party with title to the taxed property. Nor are plaintiffs entitled to relief on the ground most stressed—i. e., that they were misinformed by the certificate of the county treasurer as to there being any outstanding tax deed or lien which was given or accrued within the next-preceding 5 years. The purpose of the statute requiring the certificate of the county treasurer is the expedition of the collection of taxes. Van Husan v. Heames, 96 Mich 504. It is not the purpose of this statute to obligate the State or any of its officials to certify in any particular the title of the land in question. Even if the county treasurer, instead of having made an erroneous certificate, had revealed the true state of the tax condition of lot 19, plaintiffs could have done nothing about it at that time and would not have been benefited thereby. As matters then stood neither the auditor general nor the county treasurer had the authority to accept the defaulted 1939 tax with interest and penalties thereon and to thereupon release or nullify the State’s title to the property. The right to so redeem from the tax terminated at the expiration 'of 1 year after the fax sale of the property held in May, 1942.
Plaintiffs rely much upon our decision in Oakland County Treasurer v. Auditor General, 292 Mich 58. But that case is not in point with the instant case for the reason that in the cited case the taxing governmental unit intervened and formally requested the State land office board to withhold the property from the regular State land office board sale, which was done and timely thereafter the taxes were paid by the landowner and accepted by the taxing unit. The opportunity to thus redeem the property was afforded solely because the taxing unit requested the withholding of the property from the regular sale of such lands; but in the instant case no such steps were taken, and consequently no such right of redemption accrued to plaintiffs, even if they otherwise might have been entitled thereto, which obviously they were not under the facts of this case.
Governmental powers of taxation are controlled by constitutional and statutory provisions. C. F. Smith Co. v. Fitzgerald, 270 Mich 659. Hence it is not possible to adjudicate issues arising under taxation laws by.the general application of equitable principles. This phase of the law seems to have been overlooked by plaintiffs who stress their right to relief in the instant case on equitable, rather than legal, grounds.
“The collection of duly levied taxes for governmental purposes is a governmental function and the collection officer cannot, by mistake or misinformation, work an estoppel, enforceable in a court of equity. The fact, and not the misinformation, controls.” Lovett v. City of Detroit, 286 Mich 159.
The decree entered in the circuit court is reversed and a decree may be entered in this Court dismissing the bill of complaint. Appellants may have costs of both courts.
Sharpe, C. J., and Bushnell, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Dethmers, J.
Plaintiff sued on an oral agreement for a 5 per cent, commission upon the sale of defendant’s restaurant business, fixtures and good will. At the conclusion of plaintiff’s proofs defendant moved for a directed verdict on the ground that the oral agreement to pay a commission (denied in its entirety by defendant) was void under the statute of frauds (CL 1948, § 566.132 [Stat Ann 1947 Cum Supp § 26.922]) because the sale included an “inte rest in real estate;” viz., a lease for a term of years, citing Hannan Real Estate Exchange v. Traub, 217 Mich 162. The trial court reserved decision under the Empson act and the jury returned a verdict for plaintiff for $1,900, being 5 per cent, of $38,000, the .actual sale price and the figure at which plaintiff claims the business was listed with it for sale. Thereafter the court denied defendant’s motions for a new trial and for judgment non obstante veredicto and defendant appeals.
The statement of questions involved and discussion in defendant’s brief go only to the correctness of the court’s refusal to grant defendant’s motions for a directed verdict and judgment non obstante veredicto and not at all to its denial of his motion for a new trial, which latter motion we, therefore, need not consider. Strong v. Kittenger, 300 Mich 126; E. A. Pierce & Co. v. Sayers, 296 Mich 508.
The meritorious question raised by defendant is whether the agreement sued upon by plaintiff was, in the language of the statute a “contract to pay any commission for or upon the sale of any interest in real estate” and, therefore, void because not in writing. In determining that question the controlling consideration is not, as defendant urges, what was actually sold by plaintiff for defendant, but, rather, whether the terms of the agreement itself were void under the statute when entered into. The trial court’s refusal to grant a directed verdict or a judgment non obstante veredicto being in question, the evidence must be viewed in the light most favorable to plaintiff. So viewed, the testimony shows, as defendant’s brief admits, that the defendant orally agreed to pay plaintiff a 5 per cent, commission for the sale of his restaurant business, fixtures and good will, without any leasehold rights included, for a price of $38,000. Such an agreement, relating only to the payment of a commission for the sale of personalty and not for the sale of an interest in real estate, does not fall within the purview or operation of the statute. For all that appears in the record, the agreement was a perfectly valid one when and as entered into.
Although he has not done'so directly, defendant might well have raised the basic question of whether plaintiff actually did sell the defendant’s restaurant business, fixtures and good will only, without inclusion of defendant’s leasehold rights, for $38,000, and thus become entitled to a commission under the terms of the agreement. Because defendant’s brief states as involved in the case a question which might be considered to suggest it (Court Rule No 67, § 1 [1945]) and there is language in his brief which might be deemed to be at least an oblique reference to this question, we pass upon it to say that under the evidence it was a question of fact for the jury. While the written contract of purchase between defendant and the purchasers of defendant’s business did require defendant to negotiate an extension of his lease with the landlord and to assign all present and extended leases to the purchasers, nevertheless it also appeared from the testimony that at the time of the trial, 7 months after the sale and when the purchasers were long in possession, defendant had not yet negotiated such an extension of lease nor had he succeeded in obtaining from the landlord the latter’s consent to an assignment of the lease as required by its terms. According to the evidence, the purchasers bought for $38,000, the figure at which, as testified for the plaintiff, defendant had listed the property for sale without the lease. Testimony for the plaintiff concerning what occurred in negotiations between the defendant and purchasers in the presence of one of plaintiff’s officers at the time the sale was agreed upon, is susceptible of the construction that the sale covered only the business, fixtures and good will without the lease. Whether defendant’s subsequent written undertaking to assign the lease to the purchasers was a gratuity or constituted part of the consideration for the $38,000 purchase price and, therefore, whether plaintiff did or did not sell for $38,000 precisely what was contemplated by the terms of the oral agreement for payment of a commission was a question of fact for the jury.
Judgment affirmed, with costs to plaintiff.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Butzel, and Carr, JJ., concurred.
CL 1948, § 691.691 et seq. (Stat Ann § 27.914 et seq.). — Reporter. | [
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T. G. Kavanagh, J.
The deféndant was convicted by a jury in Detroit’s Recorder’s Court of breaking and entering a business place with intent to commit larceny.
. His appeal to the Court of Appeals and to this Court raises the question of the propriety of the trial court’s refusal to instruct the jury on the lesser included offenses of entering without breaking with intent to commit larceny and entering without breaking without permission.®
In its opinion affirming the conviction, the Court of Appeals noted the trial court’s error in failing to recognize entry without breaking and entry without permission as lesser offenses included in the principal charge, but excused his refusal to instruct on them on the ground that the request was not made before the judge commenced his charge to the jury and hence was not timely.
We hold that such interpretation of GCR 1963, 516 is unwarranted and erroneous and that the requested charge should have been given.
There is no question here, as there was in People v Wynn, 386 Mich 627 (1972), whether there was in fact a request to charge. The following colloquy took place immediately after the court instructed the jury:
"The Court: * * *
"Now you will retire to the jury room and enter into full discussion of the case. Do not begin your deliberations as there may be further instructions. I’ll instruct you when to begin your deliberations.
"You may retire to the jury room.
♦ # *
"The Court: Are the People satisfied with the instructions?
"Mr. La Bret [assistant prosecuting attorney]: Yes, your Honor.
"Mr. Fink [attorney for defendant]: Your Honor, what about lesser and included offenses involved in this?
"The Court: Well, what would there be?
"Mr. La Bret: Entering without breaking. Is that an included offense?
"The Court: He said he wasn’t going to steal anything so there’s no lesser offense that I can see.
"What lesser offense would there be? He wasn’t committing any crime at all according to him.
"Mr. Fink: Entering without owner’s permission.
* * *
"The Court: Well, I’ll deny it. There was no request prior to this.
"Anything else?
* * *
"The Court: All right. Open the jury room door.
"There are no further instructions. You may begin your deliberations.”
This was a request to charge, made before the jury began deliberations, which was denied by the court.
The trial court’s responsibility for instructing the jury as contained in MCLA 768.29; MSA 28.1052 is:
"The court shall instruct the jury as to the law applicable to the case * * * . The failure of the court to instruct oh any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.”
The law is well established that where a request has been made the duty of the trial judge is determined by the evidence. If the record contains evidence which would support a conviction of a lesser included offense it is reversible error to refuse to give it. People v Jones, 273 Mich 430 (1935).
In the case before us the record contains the defendant’s testimony that he entered the building without breaking in order to get his companion to leave. Miscellaneous papers and the plant manager’s bank book were on his person at the time of his apprehension.
Under these circumstances a jury verdict of guilty to the charge of entry without breaking with intent to commit a larceny, or entry without the owner’s permission would have been clearly sustainable and hence it was error to refuse his request for instruction to that effect.
The Court of Appeals held that the request was not timely made because it was not made before the instruction to the jury was begun.
Neither in the statute nor the applicable court rule, GCR 1963, 516 is the time for such request prescribed. The statute, MCLA 768.29 quoted above, simply charges the court with the responsibility for instructing the jury. The court rule provides that written requests should be made at or before the close of evidence, but neither forecloses oral requests nor limits the time for making them.
That part of the rule (516.2) which touches objections, precludes assigning as error the giving or failing to give an instruction only if the objection is not made before the jury retires to consider its verdict. Here the request was made before the jury began its deliberations, and although no formal objection was made we hold it was not necessary. See People v Shirk, 383 Mich 180, 193 (1970).
In People v Wynn, supra, where a majority of this Court found that no request had in fact been made, there was dicta to the effect that a request for instruction had to be in writing under GCR 1963. We now hold that the court’s obligation to instruct the jury on the applicable law gives rise to a right in the jury to be properly instructed whether requested by counsel or not, and whether or not any request be in writing. When the evidence would support a conviction on lesser included offenses the court’s failure to instruct thereon can neither be excused nor waived by the parties.
Reversed and remanded for new trial.
Swainson, J., concurred with T. G. Kavanagh, J.
T. M. Kavanagh, C. J., and Adams and Williams, JJ., concurred in the result.
MCLA 750.110; MSA 28.305.
MCLA 750.111; MSA 28.306.
MCLA 750.115; MSA 28.310.
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Black, J.
In this prosecution for statutory rape the only question that was raised, saved and is now properly before us is whether the trial judge erred in receiving testimony of the prosecutrix that she and the defendant had sexual intercourse on several occasions subsequent to the date on which, according to her testimony, the offense charged took place.
People v Gengels, 218 Mich 632 (1922) and People v Trzil, 235 Mich 469, 473 (1926), the latter expressly following Gengels, tell us (Gengels at 641):
"In cases involving statutory rape, a qualified exception to the general rule only permits proof of intercourse between the prosecutrix and accused for the purpose of showing opportunity, disposition of the parties and intimate relations tending to break down self-respect and modesty. People v Abbott, 97 Mich. 484 (37 Am St Rep 360) [1893]; People v Williams, 133 Cal. 168 (65 Pac 323) [1901]; State v Lancaster, 10 Idaho, 410 (78 Pac 1081) [1904]; State v Trusty, 122 Iowa, 82 (97 NW 989) [1904].”
Gengels and Trzil were written by Mr. Justice Steere, each time for a united Court. So was People v Ayers, 182 Mich 241 (1914), another unitary decision. Gengels, Trzil and Ayers were prosecutions for statutory rape. Ayers cited and followed People v Davis, 175 Mich 594 (1913); a prosecution of male and female for adultery The following quotation, taken from Ayers, discloses fairly the primary reason for reversal of the Ayers and Da vis convictions (pp 243-244):
"The following question was asked by the prosecution:
" 'Did he have intercourse with you after you knew you were in the family way?’
"An objection to this was overruled, and she answered 'Yes.’ This ruling was error. People v Davis, 175 Mich. 594 (141 N.W. 667), and cases there cited.”
The apparent if not actual conflict between Gen-gels and Trzil on the one hand, and Ayers and Davis on the other, led to our order granting leave to review the instant defendant’s conviction for statutory rape (385 Mich 778).
Conceding that there is room for doubt, not of clarity of the recorded writings of our distinguished predecessors but of the selectively rightful occasions for evidentiary employment thereof, our reports show that trial judges have experienced near to an approximate century of difficulty in determining when and when not the relevant rulings of the Court, starting with People v Jenness, 5 Mich 305, 319-325 (1858), should be applied.
Upon reading Justice Fellows’ opinion of People v Rice, 206 Mich 644, 650-658 (1919), one might well have concluded that all such misgivings had been brought to a prosperous conclusion. The opinion was endorsed by the entire Court. In my view the language employed was deliberately designed to enlarge a known exception to the "well established” general rule; such rule being "that upon trial for felony the prosecution will not be permitted to give evidence tending to establish the guilt of defendant of another distinct and independent crime.” (p 650.) Whatever our thoughts in such regard, it is readily perceivable that People v Rice was — languagewise and otherwise — the forerunner of that which was enacted as part of the criminal code of 1927, No 175, ch VIII, § 27, p 321 (1929 CL 17320; MCLA 768.27; MSA 28.1050). The section has remained unchanged ever since. It reads:
"Sec. 27. In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”
Justices of the Court who were "around” when the Code of 1927 was drafted, debated and enacted, not Justices seated 40-odd years later, presumably knew best the legislative purpose of section 27 of chapter VIII. In 1934 they wrote of one mind, regarding what is now § 768.27:
"The object of the statute above quoted was to make testimony relevant which might otherwise not be so; to broaden the scope of inquiry as to similar transactions; to make relevant evidence of transactions which in the absence of the statute would not be relevant. Ordinarily a witness may not be impeached upon questions relating to a separate and distinct offense at another time and place. A witness may not be impeached upon a collateral issue. Mills v Warner, 167 Mich. 619 [1911]. But the purpose and object of the statute above quoted was to do away with the rule as to proof of other offenses and permit the introduction of such testimony even though it might show or tend to show the commission of another prior or subsequent offense by defendant.” (People v Rose, 268 Mich 529, 535-536 [1934].)
Upon strength of § 768.27 I vote to affirm. The subsequent acts were admissible as tending to prove the defendants’ "scheme, plan or system in doing an act” which the testimonial record — if believed by the jury — portrays vividly. It was simply that of arranging a marriage between the male defendant and underage Jacqueline so that the whole family might live better, in defendant Smith’s house, in a financial way.
Adams, T. E. Brennan, Swainson, and Williams, JJ., concurred with Black, J.
T. M. Kavanagh, C. J., and T. G. Kavanagh, J. concurred in the result.
Justice Christiancy commenced his discussion (Jenness at 320):
"The general rule in criminal cases is well settled, that the commission of other, though similar offenses, by the defendant, can not be proved for the purpose of showing that he was more likely to have committed the offense for which he is on trial, nor as corroborating the testimony relating to the commission of such principal offense. But the courts in several of the states have shown a disposition to relax the rule in cases where the offense consists of illicit intercourse between the sexes; and it is principally to the American cases that we are to look for authorities upon this subject, as such intercourse is not generally rendered criminal in England, or prosecuted by indictment; being only of ecclesiastical cognizance.”
We have agreed, unanimously (Husted v Consumers Power Co, 376 Mich 41, 54 [1965]):
"Bearing in mind that legislative intent is determinable properly by what was at the time of enactment, rather than what might appear a half century later — by hindsight (Wayne County Road Commissioners v Wayne County Clerk, 293 Mich 229, 235 [1940]; Platt v Union Pacific R. Co, 99 US 48, 63-64 [25 L Ed 424] [1878]; 50 Am Jur, Statutes, § 236, p 224), we depend much upon what members of the Court wrote at the time of or shortly after enactment of statutory provisions which, considered then as to purpose and intent, have remained unamended in substance (see comment, Dyer v Sears, Roebuck & Co, 350 Mich 92, 95 [1957]).” | [
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North, C. J.
The bill of complaint herein was filed by the township of Dearborn, Wayne county, to obtain an accounting and contribution from the city of Dearborn of a proportion of the general liability incurred by the township incident to the' payment of certain refunded special assessment bonds of the township for each of four water districts. The defendant denies all liability. After hearing in the circuit court in chancery a decree was entered dismissing the bill of complaint. Plaintiff has appealed.
The background of defendant’s alleged liability is that a substantial portion of Dearborn township territory was taken out of the township and annexed to the city of Dearborn. With the exception of a very trifling area in district No. 3 (which circumstance has no bearing upon decision herein), none of the township lands included in any of the special assessment districts has become a part of the city. The original village of Dearborn, located entirely in the township of Dearborn, was incorporated prior to May 26, 1925. On that date the village area was enlarged. The city of Dearborn was first incorporated in 1927; and included all of the territory constituting the village of Dearborn. The city of Dear-born was reincorporated and enlarged in 1928. At that time additional township territory was annexed to the city. In 1938 the township issued general obligation bonds in refunding the outstanding special assessment bonds. However this refunding operation does not materially influence decision herein because this suit is for a statutory accounting on the basis of the original bonds issued in anticipation of collection of the special assessments.
Liability for contribution towards the payment of the indebtedness of a township by a city which has taken over a part of the township’s territory is governed by statute:
‘ ‘ Seo. 14. * * * The indebtedness and liabilities of every city, village and township, a part of which shall be annexed to a city shall be assumed by the city to which the same is annexed in the same proportion which the assessed valuation of the taxable property in the territory annexed bears to the assessed valuation of the taxable property in the entire city, village or township from which such territory is taken.” 1 Comp. Laws 1929, §2250 (Stat. Ann. § 5.2093).
The city of Dearborn is a home rule city; and the question of its liability in the instant case is to be determined under the provisions of the home rule act from which we have just above quoted, rather than by the provisions of I Comp. Laws 1929', § 2344 (Stat. Ann. § 5.2231), which is not a part of the home rule act but instead a 1909 amendment to Act No. 38, Pub. Acts 1883. The circuit judge held otherwise ; but in so doing an error was committed.
It is too plain for argument that the city to which township territory is annexed becomes liable for contribution to only such township indebtedness as exists at the time of annexation. The city could not be held liable to the township for indebtedness it subsequently contracted. Hence it becomes important in the instant case to determine whether the township had become actually or contingently liable on the special assessment bonds prior to the annexation of the township territory by the city of Dear-born.
District No. 1. The special assessment bonds were issued in this water district on August 1,1927. This was prior to the date of the annexation of any of the township territory by the city of Dearborn. It was prior to the incorporation of the city of Dearborn. Therefore, subject to the consideration hereinafter given to other defenses, it is obvious that since the territory, was taken from the township and incorporated within the city subsequent to the issuance of the bonds in district No. 1, the city, together with the remaining portion of the township, is liable for the full satisfaction of this bonded obligation.
District No. 2. This water district was created in April, 1928; and the bonds were issued in July, 1928. Here again liability of the city to contribute towards the satisfaction of the deficit of the special assessment bonds for district No. 2 will depend upon whether the township territory was annexed to the city prior to the issuance of the bonds (subject of course to other possible defenses above noted). Hence it becomes important to determine the time when in the course of annexation proceedings the territory involved becomes a part of the annexing municipality and ceases to be a part of the munic ipality from which it is taken. This we think is specifically controlled by the following statute.
“Sec. 13. On the filing in the office of the secretary of State and the clerk of the county or counties within which the city is located, of a copy of the petition (for annexation), and of every resolution, affidavit or certificate necessarily following such petition, with the certificate of the board of county canvassers attached, showing that the purposes of such petition have been approved by a majority of the electors voting thereon, as provided in this act, which shall also give the number of votes cast on such proposition and the number cast for and against the same, the city shall be from that date duly and legally incorporated under and by the name designated in said petition, or the territory described in said petition shall be duly and legally consolidated as one city, .or attached to or detached from the city named in such petition as the case may be.” 1 Comp. Laws 1929, §2249 (Stat. Ann. § 5.2092).
From the foregoing portion of section 2249 it appears that the determinative date of annexation is the date of filing the result of the election on the petition for annexation with the secretary of State and the county clerk. Such result as to the second incorporation of the city of Dearborn was filed with the secretary of State and with the clerk of Wayne county in September, 1928. It therefore appears that the township territory was not annexed to the new city of Dearborn until after July 1, 1928, the date on which the special assessment bonds in this district were issued. Subject to other possible defenses hereinafter considered, it follows that the city is liable for its proportionate share of the unpaid bonds of district No. 2.
The question as to what is the city’s proportionate share, or the basis of its contribution thereof, is somewhat complicated as to the bonds of district No. 2 by the following facts. The city of Dearborn was first incorporated in 1927. Incident to this first incorporation the city took over a part of the township territory. The results of this annexation election were filed September 20,1927. Thus it appears that the city had annexed a certain portion of township territory prior to the date (July, 1928) when the bonds for district No. 2 were issued. In fixing the proportionate share of the city’s contribution to the payment of these bonds, the assessed valuation of the township territory annexed to the city incident to the 1927 incorporation cannot be included. But the city of Dearborn was later enlarged by a reincorporation, and in so doing the city annexed an additional portion of the township territory. As noted above, the result of this additional annexation elec-, tion was filed in September, 1928. This was subsequent to the issuance of the bonds in district No. 2 (July, 1928). It follows that the determination of-the city’s contribution to the payment of the bonds of this district must be based solely upon the assessed valuation of the additional township territory annexed by the city of Dearborn incident to its reincorporation and enlargement in 1928.
Districts Nos. 3 and 4. These water districts were created in October, 1928, and the bonds for these districts were issued in December, 1928. But, as noted above, prior to the foregoing dates, and in September, 1928, the result of the second annexation election had been filed with the secretary of State and with the clerk of Wayne county. In other words, the township territory taken into the city of Dearborn was annexed thereto, and ceased to be a part of the township, prior to the issuance of the special assessment bonds in water districts Nos. 3 and 4. It follows that the city is not liable for con-. tribution on the bonds of district No. 3 or district No. 4. Incident to so holding it should be noted that we are not in accord with plaintiff’s contention that the annexation of township territory to the city was not fully consummated until the city adopted a city charter and caused the same to become a matter of record. This was not done in the instant case until January 14,1929, and this was after the issuance of the bonds in districts 3 and 4. We hold that this circumstance does not alter the effective annexation date provided in the statute above quoted. 1 Comp. Laws 1929, § 2249 (Stat. Ann. § 5.2092).
Because of its bearing upon the city’s liability on the bonds of districts No. 1 and No. 2, it should be observed that Act No. 58, Pub. Acts 1927, amending Act No. 116,- Pub. Acts 1923, became effective April 21, 1927. As noted above, the bonds for these two districts were issued subsequent to this date. Section 3 of the act in part provides:
“If any such special assessment fund is insufficient to pay such bonds and interest thereon when due, the township board shall advance the amount necessary to pay such bonds, and shall be reimbursed from such assessments when collected, or by reassessment of the deficiency if necessary.” (1 Comp. Laws 1929, § 2387.)
A contingent liability to advance funds sufficient to satisfy any past due special assessment bond obligations was imposed upon and assumed by the township on the date the bonds were issued. Such liability continues, under the circumstances of this case, until the bond obligation is satisfied, including liability on refunding bonds issued in lieu of the special assessment bonds. And this liability must be shared proportionately by the city, .which has annexed part of the township territory after the spe cial assessment bonds were issued, and tbe remaining portion of the township. The right of the township to enforce contribution by the city, which subsequent to issuing the bonds annexed part of the township, accrued as soon as it became reasonably certain that receipts from the special assessments would be inadequate to satisfy in full the bond obligation. That condition arose in the instant case prior to the commencement of this suit. In effect it' is so stipulated by the parties litigant.
It is in the above particular that the instant case . can be and should be distinguished from Township of Royal Oak v. City of Pleasant Ridge, 295 Mich. 284. In that case we held that the record did not disclose a condition of the plaintiff township’s liability which then sustained its claim that it was presently entitled to a contribution and an accounting from the defendant city incident to this type of contingent liability. We there said:
“The circuit judge found: ‘It is undisputed that the plaintiff township has advanced no money out of its general funds for the redemption of any of said bonds.’ Nor does it appear from this record that because of inability to obtain from the special assessments or reassessments funds sufficient to pay the bonds in full, the township may eventually have to pay a balance due on these bonds from its general funds. Should such a condition ultimately come about, there might then be room for the contention that the .contingent statutory' liability to advance money from the township’s general funds had accrued and that payment, when made, was necessitated because it was then a general obligation of the township contracted before the severance of township territory by the defendant city. * * * Suffice to say that on this appeal we do not have before us nor are we herein passing upon such a case; but a reservation might well be made in the decree to be entered in this case covering such a contingency.”
While it does not appear in the instant case that the township has actually paid from its general funds the amount in default on the special assessment bonds of districts 1 and 2, nonetheless it does convincingly appear that the township is presently obligated to make such payment. In 1938 it issued general obligation township bonds in refunding outstanding special assessment bonds. And further it appears quite beyond doubt that funds sufficient to meet the default on the special assessment bonds' cannot be obtained either from unpaid special assessments already levied or from reassessments. In fact it is so stipulated by counsel. For the purpose of plaintiff’s right to bring the instant suit, the above circumstances are, we think, tantamount to plaintiff township having actually paid the defaulted assessments from its general funds. But for the purpose of covering the contingency of future payment of special assessments or reassessments in either district 1 or 2, and in event defendant city has contributed its proportionate share to the payment of these bonded obligations, the decree to be entered in the instant case may provide that any money subsequently collected on the special assessments or on reassessments in either of these two districts by the township shall be shared proportionately by the township and the city.
Defendant has pleaded laches in bar of plaintiff’s right to recover. This defense is not sustainable. The record discloses no action or course of conduct on the part of plaintiff which has prejudiced defendant’s rights or that was inconsistent with plaintiff’s presently asserted right of recovery. The lapse of time prior to December 1, 1941, when this suit was instituted, is not shown to have worked a prejudice to defendant. Plaintiff’s right to recover could not accrue except incident to an accounting between the parties as provided by statute. We are mindful that an accounting was had between these litigants both following the city’s first incorporation in 1927 and its second incorporation in 1929. But at that time the liability to which plaintiff now seeks contribution by defendant was not a fixed liability, but at most only a contingent liability. And counsel have stipulated that incident to such accountings “no specific or definite action whatever * * * (was) taken however with the reference to possible liability of either of the parties to this suit by reason of the issuance-of the bonds in question.” This phase of the defense asserted is controlled by our holding in Walker v. Schultz, 175 Mich. 280. See, also, Township of Grant v. Township of Reno, 107 Mich. 409. And it may further be noted -that until our decision in City of Highland Park v. Dearborn Township, 285 Mich. 440, June 30, 1938, a township’s liability to pay out of its general funds the amounts in default, on special assessment bonds was a debatable question in this jurisdiction. Other phases of the record bearing upon the question of laches might be noted, but we deem it unnecessary. There is no merit to defendant’s claim of laches.
As bearing upon such other of defendant’s contentions as merit discussion we note the following.
1. The organization of the village of Dearborn prior to the date of issuing any of the bonds in suit did not result in detaching any of the township’s territory, nor relieve the area within the village boundaries from its proportion of contingent liability on the special assessment bonds. In the sense which is controlling in the instant case, none of the township’s territory was annexed by any municipality concerned in this litigation until the first incorporation of the city of Dearborn. Prior to that event the village area continued to be a part of the township and subject to assessment to meet township obligations. Bray v. Stewart, 239 Mich. 340, 344; Village of DeWitt v. Township of DeWitt, 248 Mich. 483.
2. Defendant’s liability in the instant case is not satisfied or minimized by reason of the fact that since the installation of its water system the township of Dearborn has encumbered the same by issuing a series of self-liquidating bonds payable from the proceeds of operating the water department, nor by the further fact that the water department of the township is being operated at a profit.. This is true because the bonds out of which defendant’s liability for contribution arises were only bonds issued in anticipation of the collection of special assessments in the respective water districts, herein designated as special assessment bonds. These bonds in no way created a lien upon the township water system or upon the proceeds or profits which may be derived from the operation of the township’s water system.
3. Other contentions set forth in the briefs of the respective parties are either without merit or are such as would not affect decision herein; and for that reason need not be determined.
As appears from the foregoing, we reverse the decree of the trial court and hold that defendant is liable for its proportionate share of the payment of special assessment bonds issued in water districts Nos. 1 and 2; but defendant is not liable for contribution on bonds issued in water districts Nos. 3 and
4. For the purpose of determining the amount of such contribution the case must be remanded to the circuit court in accord with the stipulation of counsel which reads as follows:
“It is further stipulated and agreed that precise figures as to the amount of outstanding indebtedness on said special assessment districts, assessed valuations of pertinent territory, respective percentages of liabilities, and like matters will be determined by audit, had, if necessary, by agreement between the parties hereto or by order of the Court.”
The matter of the township’s liability for contribution incident to payment of bonds in another water district designated as No. 5 is not controverted or determined herein. That district is wholly within Dearborn city. It is conceded in the township’s brief: “The city may be entitled to contribution from the township as to that district, to which we consent if the city had (has) been compelled to pay out of general funds. ’ ’
The case is remanded to the circuit court in chancery for further proceedings therein in accordance herewith. Since plaintiff will recover contributions as to districts Nos. 1 and 2, it will have costs of both courts. A decree in accordance with the foregoing will be entered in this Court.
Starr, Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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North, C. J.
This is an appeal from an award of compensation to plaintiff. In October, 1938, plaintiff, while in defendant’s employ, suffered a compensable accident, the loss of or injury to his right hand. Plaintiff and defendant entered into an agreement providing for the payment of compensation at the rate of $18 per week for 150 weeks. The agreement was approved by the department of labor and industry. This was the statutory compensation for the specific loss of a hand. 2 Comp. Laws 1929, §8426 (Stat. Ann. §17.160). A check drawn on a local bank in the proper amount was delivered by defendant to plaintiff each week for 150 weeks. These checks were indorsed by plaintiff and cashed. Incident to the delivery to him of each cheek plaintiff signed the required “Receipt on account of compensation.” These receipts were duly filed with the department of labor and industry. The last of the 150 checks was delivered to plaintiff September 5, 1941.
■ On September 10, 1941, plaintiff filed the instant “Petition for further compensation,” but which the department “treated as a petition for review of payments. ” Plaintiff makes no claim that his condition has become worse since the 1938 award was made. Instead the present proceeding arises from the following facts disclosed by the record.
Seventeen or eighteen days after his injury plaintiff returned to his former employment with defendant. He was engaged in the same type of work, i. e., a millwright; and he was still in such employment at the time this proceeding was heard by the department. At the time of his injury plaintiff was paid at the rate of $137.50 per month, his wages being paid semimonthly. Upon returning to his employment subsequent to his injury his pay envelope purported to show that he was being paid the same wages, but in addition to small deductions for Federal old age benefit and for insurance, defendant also deducted an item specified as: “Advanced Comp. $36,” this being the amount of two of plaintiff’s weekly compensation payments. After the above deductions were made, the amount of plaintiff’s semimonthly pay was $31.46.
At the conclusion of plaintiff’s proof before the deputy commissioner he determined that the record conclusively disclosed payment in full of the award to plaintiff and that under the circumstances the department did not have jurisdiction to grant plaintiff any relief. In consequence of such determination of the controversy, no witnesses were produced in support of defendant’s contention which, as set forth in the pleadings, is that plaintiff’s injury greatly impaired his capacity to render services and defendant voluntarily agreed with plaintiff that the latter might continue in its service and his wages were paid at the same figure as prior to his accident but with the deduction of the amount of compensation paid as a measure of the impairment of plaintiff’s ability to render services.
Following the dismissal of plaintiff’s petition by the deputy commissioner there was review by the department of labor and industry. -This resulted in a new award of compensation to plaintiff in 1943 at the rate of $18 per week for 150 weeks. This appeal followed.
The conclusion reached by the deputy commissioner must be sustained. The undisputed and conclusive testimony discloses that plaintiff’s 1938 award has been paid in full. Under the record in this case, it follows as a matter of law that the department of labor and industry was without jurisdiction to enter a second award in 1943 for the same injury. Whether or not defendant unlawfully withheld payment of a portion of plaintiff’s earned wages was an issue of which the department of labor and industry had no jurisdiction, and that issue is not before us on this appeal, nor is our determination herein res judicata thereof.
Plaintiff’s petition for further compensation or for review of payments is dismissed, with costs to appellant. The case is remanded to the department for further proceedings, in accord herewith.
Starr, Wiest, Btttzel, Bushnell, Boyles, and Reid, JJ., concurred. Sharpe, J., did not sit. | [
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North, C. J.
This is an appeal by defendants from an award of compensation to plaintiff, based upon his claim that while in the employ of the defendant, Chicago Pneumatic Tool Company, he suffered a compensable accident as a result of which .he is totally incapacitated by reason of traumatic psychoneurosis.
Except as otherwise indicated, we refer to Chicago Pneumatic Tool Company as the defendant. Prior to February 9, 1935, plaintiff had been in defendant’s employ for upwards of six years. On the mentioned date plaintiff sustained a compensable accident under circumstances which he describes in the record as follows: “I was pulling a pan of stock with 247 chisel blanks of alloyed steel which would range from ‘400 to 600 pounds. I was pulling it backward because I wasn’t capable of pulling it forward.” Plaintiff testified that while pulling this pan of stock he slipped and at once “felt something tear” in his right side. Defendant filed a report of a compensable accident, and on an agreement between the parties approved by the department on March 15, 1935, compensation was to be paid for total disability at $18 per week beginning on the date of the accident and to continue during total disability. Payments were made to May 11, 1935. Defendant filed a petition to 'stop compensation dated May 20, 1935. "While this petition was pending before the deputy commissioner, plaintiff’s attorney filed a stipulation wherein he stated that, “being duly authorized so to do,” he “agrees that an award should be entered denying further compensation upon the ground that disability does not result from an accident.” An order stopping compensation, from which no appeal was taken, was accordingly entered on the 4th day of September, 1935. The following is embodied in the deputy commissioner’s award:
“Remarks: Inasmuch as plaintiff’s disability, if any, is not due to the accident, the defendant’s petition to stop compensation ought to be and the same is hereby granted. ’ ’
Plaintiff filed a petition for further compensation which was subscribed and sworn to April 28, 1936. Therein plaintiff set forth “that he is unable to do any kind of work and has been so disabled 'since the date of the accident and that his condition is worse than it was at the time compensation was stopped. ’ ’ Defendant’s answer to this petition denied plaintiff was entitled to further compensation. On Au gust 20, 1936, the foregoing petition was disposed of by granting plaintiff’s motion to withdraw the same. Because plaintiff’s petition of April 28, 1936, was withdrawn, nothing was adjudicated in that proceeding, and it has no effect on plaintiff’s present petition.
Plaintiff instituted no subsequent proceeding until he filed his present petition for further compensation which was subscribed and sworn to February 10, 1941. Defendant.answered, denying plaintiff’s claim for further compensation, and among other defenses urged that the award of September 4, 1935, is res judicata of plaintiff’s present petition. Upon hearing before the deputy commissioner plaintiff’s petition was dismissed “for the reason that the unappealed award of September 4, 1935, adjudicated that the plaintiff’s then disability, which I now find to be the same disability, was not related to his accident.” On review by the department of labor and industry the deputy commissioner’s award was reversed and plaintiff awarded compensation for total disability at the rate of $18 per week from September 5,1935, until the further order of the department, with the exception of certain short intervals during which plaintiff was employed. The foregoing award was based on the department’s finding that plaintiff has suffered from traumatic neurosis since 1935 and that when plaintiff’s case was before the department on former occasions neither he nor his attorneys were aware of plaintiff’s neurotic condition; and further that plaintiff’s “mental derangement” was not placed in issue at any of the former hearings and therefore there could not be res judicata of that issue. In consequence thereof compensation was awarded plaintiff, notwithstanding defendant’s contention that the unappealed award of September 4, 1935, was res judicata of tbe instant petition.
Under the record before us the above holding must be affirmed. As already noted plaintiff sustained a compensable injury February 9', 1935. Defendant through its insurer promptly agreed to an award of compensation for total disability which was paid until May, 1935. In the agreement filed with the department and upon which the award was based the sole injury set forth was “injured side.” May 20, 1935, defendant filed a petition to stop. Aside from writing a letter to the department wherein plaintiff stated he was still disabled from the accident, he made no answer to defendant’s petition to stop compensation, although plaintiff and a physician as his witness testified at the hearing. The order finally entered was based on the stipulation of plaintiff’s counsel that “disability does not result from an accident.” It is important to note that thus far in the proceedings between plaintiff and defendant the former had not asserted that he was entitled to compensation on, the ground that he was suffering from traumatic psychoneurosis. It necessarily follows that whether plaintiff was suffering from neurosis under circumstances entitling him to compensation was not adjudicated in the prior proceedings because that issue was not presented; especially in view of the fact that the department found in the instant proceedings plaintiff’s disability of that character was not then known to plaintiff or his counsel. In so holding we are not unmindful that it appears in the record plaintiff had been in the Ford Hospital where his condition was under observation and investigation, and that in hospital reports some reference was made to plaintiff’s neurotic condition. Nor are we unmindful that on the hearing of defendant’s petition to stop, Dr. Caldwell, upon being asked whether plaintiff herein “was malingering at all,” testified:
“I do not believe so; but I beliéve he borders on the type of the individual who is aesthetic (asthenic). I believe he believes himself to have a disability which we cannot find an objective reason to substantiate. * * * In other words he believes himself to have a disability for which we can find no authentic objective reason.”
The fact still remains that in each of the proceedings prior to and including the order of September 4, 1935, stopping compensation, adjudication* so far as disclosed by the record, turned entirely upon whether plaintiff had physical injuries in consequence of which he was disabled. In this aspect Boyich v. J. A. Utley Co., 306 Mich. 625, upon which defendant relies, must be distinguished from the case now under consideration. In the Boyich Case prior to the proceedings before the department which were reviewed in this Court, there had been denial of the employee’s petition for further, compensation wherein he asserted neurotic disability, and it was adjudicated that there was no causal relation between Boyich’s accident and his claimed neurosis. Clearly this was an adjudication of the same issue presented in Boyich’s later petition. But in the instant petition for further compensation plaintiff alleges: “that he is and has been unable to work as a result of the injuries he suffered and profound traumatic psychoneurosis which the accident caused.” This is the first time that plaintiff in his proceedings to obtain compensation has asserted a right thereto on the ground that he is disabled by traumatic neurosis or psychoneurosis caused by the accident. As noted above under such a record it cannot be held that the award of September 4,1935, was res judicata of the present proceedings.
The only other question raised by appellant is whether plaintiff’s disability, if. any, is collateral to plaintiff’s injury. Whether plaintiff’s present alleged disability is only collateral to the injury he received in February, 1935, or whether there is a causal relation between the two presents a question of fact. There is testimony supporting the following from the department’s finding:
“He (Dr. Hurst), further definitely testified that the injury of February 9,1935, was the precipitating factor in the cause of the plaintiff’s mental condition and that plaintiff had a definite traumatic neurosis. He further indicated that it could not be considered as collateral and due to worry. ’ ’
We are bound by the foregoing finding by the department of labor and industry of this fact issue. The award of the department is affirmed, with costs to appellee.
Starr, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred with North, C. J. | [
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Sharpe, J.
This is a suit for the specific performance of a contract. In May, 1941, plaintiff, doing business as Gibson Specialty Company, entered into an agreement with defendant whereby Gibson Specialty Company was given the “sole and exclusive right for a period of 13 years to own and operate any and all pin-ball or other coin-operated amusement machines, in any and all places of business owned or operated by the * * * (defendant) and any and all other places of business the * * * (defendant) may in the future own, control or operate where such machines may be placed. ’ ’ The pin-ball games were installed by plaintiff and continued in operation in defendant’s restaurants until defendant put the machines in the back room and disconnected them.
The pin-ball machines have five balls which are propelled by a lever released by the player. The balls hit various bumpers which cause the machine to register numbers, the sums being automatically totaled. If a total over a certain designated amount is registered, the player wins the number of games designated and he can either play free games or obtain cash for the number of games won.
When the cause came on for trial and at the close of plaintiff’s case, the defendant made a motion to dismiss plaintiff’s bill of complaint on the ground that the contract was against public policy. The motion was denied. Further testimony was taken which indicated that some of the machines were used as gambling devices.
The trial court entered a decree ordering the contract to be specifically performed and restraining defendant from using any coin-operated machines in his place of business other than those furnished or provided by plaintiff until the terminatioil of the contract on May 19, 1954
Defendant appeals and urges that any contract which seeks the installation of these machines in any place of business is void as being against public policy.
In Henry v. Kuney, 280 Mich. 188, we held that a pin or bagatelle game where the player stands to win or lose money, trade checks or prizes is a gambling device. We there adopted the following rule:
“ ‘Perhaps the most satisfactory rule that can be formulated, in the light of the authorities, is the most obvious one, that where there is an element of chance in the operation of the slot machine — where the one who plays the machine stands to win or lose money, trade checks, or prizes, by a chance, — the machine is a gambling device and obnoxious to statutes directed against gaming or gambling devices.’ ”
In our opinion the pin-ball machines mentioned in the contract are gaming devices. The amusement given by the machine is the chance to get either money or free games. Plaintiff participated in the promotion of this illegal purpose by supplying and servicing the machines, and making allowance or giving credit for money paid out as “winnings.” Under such circumstances we must hold the contract void as being against public policy.
Plaintiff urges that the failure of defendant to plead the illegality of the contract as an affirmative defense precludes him from relying on such defense in order to void the contract.
In Meek v. Wilson, 283 Mich. 679, 690, plaintiff brought suit to foreclose a second mortgage of $3,500 given by defendants to plaintiff’s assignor. The mortgage was void as being in contravention of public policy for reasons stated in the opinion, but which need not be here repeated. In that case the question of public policy was not raised in the pleadings or passed upon by the trial court, but was argued by both parties in the briefs filed and upon argument in the Supreme Court. We there said:
“It would be anomalous, indeed, if this court were required to enforce a contract which the record discloses to be against public policy and in contravention of the purposes and provisions of a statute. The rule that a contract against public policy is unenforceable is for the protection of the public at large, and this protection should not be lost because of the lack of diligence of a party to the suit. ’ ’
In the case at bar, the question of public policy was raised before the trial court and again in the briefs filed in the. Supreme Court. We hold that Court Rule No. 23, § 3 (1933), does not preclude our consideration of this question under the facts of the case.
The decree of the trial court is reversed and a decree will be entered dismissing plaintiff’s bill of complaint. Costs to defendant.
North, C. J., and Starr, Wiest, Butzel, Bushnell, Boyles, and Reid, JJ., concurred.
See Act No. 328, § 303, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-303, Stat. Aun. § 28.535.) — Reporter. | [
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Butzel, J.
The facts in this case are not controverted, most of them having been stipulated by the parties. The city hall of Detroit, the county seat of Wayne county, was built over three-quarters of a century ago, when the city had only 80,000 inhabitants. It was a comparatively small building, 4 stories in height, but at the time it was erected it was spacious enough to take care of city needs and provide office space for the various county offices and also court rooms for the Wayne circuit court. Evidently the advantage of the joint use of one building by both the city and the county was already recognized years ago. However, the building soon became too small and inadequate to care for the growing needs of the city and county, and in 1898 a county building, primarily designed as a courthouse, was erected.
The city has constantly grown. It now has a population of over 1,800,000 inhabitants. The city hall has become too small to take care of the city needs. The public offices are scattered in 31 locations, and much time is wasted by the public in going from place to place to consult city and county officers and records. The population of the county has also increased. In addition to Detroit, the cities of Highland Park, Hamtramck, Dearborn, several small municipalities as well as rural districts are situated within its borders. The county building also has become too small to care for the county needs. At the present time the city annually is paying $100,-397.59 to private owners for office space. The county is likewise paying to private owners approximately $233,132.61 per year for like purposes. The annual cost of city office space, including rent paid to private owners, the expense of operation and maintenance of city property, a fair rental from buildings owned and used by the city, exclusive of the city hall, and the annual cost of renting 60,000 square feet of additional space needed by the city, amounts to $791,963.41. The annual rent paid by the county for space outside the county building together with the cost of maintenance and operation of its building amounts to approximately $687,373.97. Together they aggregate $1,479,346.38.
It is estimated that the annual cost to the city for adequate space in a joint county and city building will be approximately $175,351.59 in excess of the present cost, while that to the county will be less than at present. This estimate is on the basis of plans for a new joint county-city building to be erected by an authority and principally financed by a revenue bond issue of $10,000,000 bearing interest'at the rate of 3 per cent, per annum, to be retired over a period of 30 years. The city is to occupy approximately 60 per cent, of the space, and the county about 40 per cent, of the space in such new joint building. A joint building would also result in economy of space and time, save many duplications of certain activities, properly safeguard irreplaceable and most important public records, and provide much needed court rooms and proper offices in which to conduct governmental activities. We need not elaborate on the benefits that all parties concede would result from a joint county-city building.
A majority of the electors of Wayne county, at the November 1947 election, voted for propositions, in favor of a building for the joint use of county and city, and an $8,000,000 bond issue to defray its cost. A like majority voted to increase the millage, but the proposition was not carried as it did not receive the required two-thirds vote.
The demand for an adequate building for the joint use of city and county continued. The city condemned an entire city block centrally located at the intersection of two main thoroughfares. The award was $1,574,950 for the land and $53,850 for moving and incidental expenses and damages. The city now owns the property. At the 1948 first extra session of the State legislature, the governor sent to the legislature 2 messages in which he stated:
“17. County-city buildings. It is claimed in certain Michigan communities that enabling legislation-should be enacted to permit county and city governments to construct buildings for their joint use. It is further claimed that it will add to the convenience of the public; will increase to a marked degree the efficiency of both county and city government, and will provide an economy of operation. I therefore submit the matter for your consideration.” (March 30, 1948.)
“To the members of the State legislature:
“I have previously submitted a message intended to allow enabling legislation for the construction of buildings for joint city-county use. ' A question has now arisen as to whether this would permit construction of a building for the separate use of a county, a city, or a village, either jointly or separately. I intend this subject to be open for consideration.” (April 16, 1948.)
The legislature at this session enacted PA 1948 (1st Ex Sess), No 31 (CL 1948, § 123.95Í et seq.) referred to herein as the enabling act. We quote some of its provisions:
“Sec. 2. Any county and any city or village which is the county seat thereof, may incorporate an authority for the purpose of acquiring, furnishing, equipping, owning, improving, enlarging, operating and/or maintaining a building or buildings and the necessary site or sites therefor, for the use of such county and city or village.”
“Sec. 4. The incorporation of such an authority .shall be accomplished by the adoption of articles of incorporation by the legislative body of each incorporating unit. For such adoption, the affirmative vote of the majority of the members elect of each such legislative body shall be required. The articles ■of incorporation shall be executed for and on behalf ■of each incorporating unit by the following officers, to-wit: For the county, by the chairman of the board •of supervisors and county clerk; for the city, by its mayor and city clerk and for the villages by its president and clerk. The clerk of each incorporating unit shall also affix to said articles of incorporation following the signatures thereto, a certificate in form •substantially as follows: (gives the form used by the parties in the record)”
“Sec. 7. Such authority shall be a body corporate with power to sue and be sued in any court of this State. It shall possess all the powers necessary to carry out the purpose of its incorporation and those incident thereto. The enumeration of any powers in this act shall not be construed as a limitation upon such general powers.
“Sec. 8. The authority and any incorporating unit or units shall have power to enter into a contract or contracts whereby the authority will acquire property contemplated by the terms of this act and lease the same to the incorporating unit or units for a period not to exceed 40 years. ' The consideration specified in such contract for such use shall be subject to increase by the authority if necessary in order to provide funds to meet its obligations.”
“Sec. 11. For the purpose of acquiring, improving and/or enlarging any such building or buildings and the necessary site or sites therefor, and furnishing and equipping the same, the authority may issue self-liquidating revenue bonds in accordance with and subject to the provisions of Act No 94 of the Public Acts of 1933, as now or hereafter amended r Provided, That such bonds shall be payable solely from the revenues of such property, which revenues shall be deemed to include payments made under any lease or other contract for the use of such property: And provided further, That no such bonds shall be issued unless the property whose revenues are pledged has been leased by the authority for .a, period extending beyond the last maturity of the bonds. For the purpose of section 33 of said act, the limits of the authority shall be deemed to coincide with those of the county creating or joining in the creation thereof. If a sufficient referendum petition shall be filed as provided in said section requesting* a referendum upon the question of the issuance of revenue bonds by the authority, then such question may be submitted by the commission of the authority at any general or special election to be held in the county.”
“Sec. 13. When all bonds issued pursuant to the provisions of this act shall have been retired, then the authority may convey the title to the property acquired thereunder to the incorporating unit or units in accordance with the provisions therefor contained in the articles of incorporation, or, if there be no such provisions, then in accordance with any agreement adopted by the respective governing bodies of the incorporating units.”
It also sets forth the procedure which was duly followed by the city of Detroit and county of Wayne in incorporating a nonprofit corporation under the name of the “Detroit-Wayne Joint Building Authority,” referred to herein as the authority, with the following powers and duties:
“Article 4.
“Powers and duties of the authority.
“Sec. 1. The authority shall be a body corporate with power to sue and be sued in any court of the State of Michigan.
“Sec. 2. The authority and any incorporating unit or units shall have power to enter into a contract or contracts whereby the authority will acquire property necessary to accomplish the purposes of this incorporation, and lease the said property to the incorporating units for a period not to exceed 40 years.
“Sec. 3. The authority shall have power to increase the consideration specified in any contracts of lease with the incorporating unit or units whenever during the term of the lease or leases an increase of rent is necessary to provide funds to meet its obligations.
“Sec. 4. For the purpose of accomplishing the objects of its incorporation the authority may acquire property by purchase, construction, lease, gift, devise or condemnation, and for the purpose of condemnation, it may proceed under the provisions of Act No 149 of the Public Acts of 1911, as now or hereafter amended,- or any other appropriate statute.
“Sec. 5. For the purpose of acquiring, improving and/or enlarging any such building or buildings and the necessary site or sites therefor, and for furnishing and equipping the same, the authority may issue self-liquidating revenue bonds in accordance with and subject to the provisions of Act No 94 of the Public Acts of 1933, as amended: Provided, That such bonds shall be payable solely from the revenue of such property, which revenues shall be deemed to include payments made under any lease or other contract for the use of such property; And provided further, That no such bonds shall be issued unless the property whose revenues are pledged has been leased by the authority for a period extending beyond the last maturity of the bonds. For the purpose of section 33 of said act, the limits of the authority shall be deemed to coincide with those of the county creating or joining in the creation thereof. If a sufficient referendum petition shall be filed as provided in said section requesting a referendum upon the question of the issuance of revenue bonds by the authority, then such question may be submitted by the commission of the authority at any general or special election to be held in the county.
“Sec. 6. When all bonds issued pursuant to the provisions of the enabling act under which the authority is incorporated shall have been retired, the authority shall convey the title to the property acquired hereunder to the incorporating units in accordance with any agreement adopted by the respective governing bodies of the incorporating units.
“Sec. 7. All property owned by the authority shall be exempt from taxation by the State or any taxing unit therein.
“Sec. 8. The authority shall possess all the powers necessary to carry out the purpose of its incorporation, including the incidental powers necessary thereto. The powers herein granted shall be in addition to those granted by any statute or charter, and the enumeration of any power either in these articles of incorporation or in the enabling act shall not be construed as a limitation upon such general powers.
“Sec. 9. Tbe term of this corporation shall be 50 years.”
The authority and the city and county, the incorporating units, thereupon entered into an interim contract. The county agreed to appropriate the sum of $350,000 and to pay to the authority said sum ór such portion of it up to $240,000 for professional contracts, and not to exceed 7 per cent, of $240,000, as the authority should specify from time to time, for the purpose of meeting 40 per cent, of the necessary incidental expenses of the authority. The city agreed to appropriate $450,000 for like purposes, of which it was to pay such portions up to $360,000 for professional contracts, and 7 per cent, of the latter amount for operational expenses, the city thereby paying 60 per cent, of the professional expenses, et cetera, the same as the county was to pay 40 per cent. It was stated that the building was to provide an estimated gross area of 1,000,000 square feet. The authority agreed to apply the amount so paid by the city and county on future rentals, to proceed to have the necessary plans, drawings, designs and specifications prepared, and to lease 60 per cent, of the building to the city and 40 per cent, to the county. The lease has not yet been executed.
If, and when, the proposed bond issue has been retired, the authority would become the owner of the building. The statute, quoted above, provides that the authority may convey the title to the property, after the bonds have been retired, to the incorporating units. The articles of incorporation, quoted above, provide it shall be so conveyed, after the 'bonds have been retired according to agreement of the incorporating units at such time. The eventual disposition of the building is not now before us.
Questions naturally arose as to this method of erecting said building and the financing thereof, as well as the validity of the enabling act itself. Before proceeding, it was deemed advisable to have a declaration of rights. Edward Walinske, plaintiff, filed a bill in which the authority, the city and the county are named defendants. Some controversial questions had arisen and a declaratory judgment as well as an injunction to prevent all parties from further proceedings was sought by the bill. Plaintiff alleged that he is a citizen and taxpayer of Detroit and Wayne county. He further alleged that the authority contemplates the erection of the building at the cost of $10,000,000, which it expects to raise through revenue bonds secured by the proceeds from the proposed leases to the city and the county; that the city proposes to transfer to the authority the city block it has acquired for the site of a joint county-city building in consideration of credit for rent under the proposed lease. Defendants filed a joint sworn answer. After considering and discussing the law as applied to the facts in the case as shown by the pleadings, the exhibits, and a stipulation in regard to certain facts, the trial judge held the enabling act to be valid and found the proceedings taken and proposed to be taken to be regular and in accordance with the law, and dismissed the bill of complaint. Plaintiff has appealed and we shall discuss the various contentions he has raised on appeal.
Plaintiff contends that a vote of the electorate is required by the Constitution, the State statutes and the charter of the city of Detroit to authorize the proposed construction and issuance of bonds. He claims that the city and county by entering into a lease binding them for a long term of years to pay a rental sufficiently large to pay the operational cost of the contemplated building, the interest on the rev enue bonds as it becomes due, and also tbe principal of the bonds as it becomes due over tbe period of .the lease, and tbe fact that tbe lease and the bonds are to be for tbe same term and when tbe bonds are retired tbe authority must convey tbe building to tbe city and tbe county, is in effect a contract to pay tbe cost of tbe building. He further claims that tbe proposed bonds to be issued by the authority are in fact full faith and credit bonds of tbe city and county and subject to their bond debt limitations. He admits that tbe bonds are to be issued by tbe authority, and that tbe city and county do not pledge their credit to pay tbe interest and principal directly, but that they do so indirectly by agreeing to pay rent to tbe authority sufficient to pay such interest and principal over a long period of years. He further claims that this is an illegal method of circumventing tbe law and constitutional provisions, as tbe city and county are attempting to do indirectly what they could not do directly. Defendants contend that tbe authority is tbe sole obligor on tbe bonds, and, as a separate corporate entity, is tbe builder and owner of tbe proposed building. That it does not propose to charge tbe city and county any exorbitant rental, it being estimated that tbe charge to tbe county may even be less than it is now paying for operational expenses and rental to private owners, while tbe cost of adequate quarters to tbe city will be less than $200,000 more than its present outlay as hereinbefore stated. And in addition tbe city and county will be able to function much more effectively and economically in adequate and spacious quarters, not only at tbe present time but for many years to come. They further claim there is no different legal effect in their leasing such quarters from tbe authority than there is in their present leases of space from private owners. .
Plaintiff relies on Ironwood Water-Works Co. v. City of Ironwood, 99 Mich 454, where the city attempted to purchase certain property subject to a large mortgage by making a small cash payment for the equity. The city did not assume the mortgage. The Court said:
“A municipal corporation cannot, either expressly or impliedly, incur a debt beyond the charter restriction. * * * In regard to its debts, a municipal corporation occupies a very different position from that of a private individual. If a city or county were authorized to purchase lands for city or county buildings, with a restriction upon the amount to be raised or the indebtedness to be incurred, and either should buy them subject to an existing mortgage, it would result, from relators’ contention, that the public corporation was under no legal obligation to pay the mortgage, and it might be foreclosed, and the lands and buildings erected thereon sold upon the foreclosure. It needs no argument to show that this is contrary to public policy, and to the policy universally pursued in this State. * *
“Obviously, the city of Ironwood will have no way to protect the property thus purchased except by payment of the lien thereon. * * * The city must pay the mortgage, or lose all the benefits to be derived from the purchase. It is expected and understood that it will pay it and the interest on it. Such was the evident intention of all parties.
“We therefore have reached the following conclusions :
“1. The charter does not authorize the purchase of this property subject to the mortgage.
“2. Municipal corporations cannot avoid restrictions upon the amount of indebtedness they may incur by buying property for public purposes subject to liens.”
Appellees, however, call attention to the fact that this case involved an outright purchase of property, while in the present case there is a proposed lease by which the city undertakes to pay an annual rental for much needed space.
Appellees further claim that the case was overruled at least in part by Ludington Water-Supply Co. v. City of Ludington, 119 Mich 480, which is somewhat similar to the case at bar. The Ludington Water-Supply Company made a contract with the city to supply water for 30 years, the city to pay an annual fee for each hydrant and watering trough installed and used. Subsequently a new contract was made for a period of 30 years, unless sooner terminated, on new terms and the city further agreeing to enter into a new contract or purchase the waterworks plant at the end of 30 years. The city was given an option to buy the plant, exercisable during 5-year periods, on notice. In holding the contract valid, we stated:
“The charter does limit the authority of the council in respect to incurring indebtedness, but the rule (recognized in Putnam v. City of Grand Rapids, 58 Mich 416) that a contract for future services, to be paid for as rendered, is not an incurring of indebtedness, is supported by abundant authority. Smith v. Inhabitants of Dedham, 144 Mass 177 (10 NE 782) ; Davis v. City of Des Moines, 71 Iowa 500 (32 NW 470); Crowder v. Town of Sullivan, 128 Ind 486 (28 NE 94, 13 LRA 647); Davenport v. Kleinschmidt, 6 Mont 502 (13 Pac 249); Carlyle Water, Light & Power Co. v. City of Carlyle, 31 Ill App 325; Seward v. Town of Liberty, 142 Ind 551 (42 NE 39); Stedman v. City of Berlin, 97 Wis 505 (73 NW 57); 1 Dillon, Municipal Corporations, § 136a.”
A somewhat similar situation arose in Bacon v. City of Detroit, 282 Mich 150, when the county of Wayne, with borrowed funds, built an incinerator which the city of Detroit contracted to use for 10 years at an annual charge which it was claimed was so large that the city would have paid for the plant within 10 years. It was agreed that the charges were subject to adjustment and that the county might permit others to use the incinerator plant. The city could not build the incinerator because of its bond limitations. Garbage had to be disposed of. The Court held it was proper for the city to contract for future services, and that in so doing it did not increase its funded and bonded debt. There was no agreement as to the eventual ownership of the incinerator. The Court held that “The terms of the contract are not for our consideration in the absence of actual fraud.” And further that, “There is no fraud in reaching a desired end by legal means even though other means to that end would be illegal.”
Plaintiff: further relies on a series of cases holding that when a city contracts or leases a building at an annual rental sufficient, to pay the cost of the building over the period of the lease, and providing that at the end of the term of the lease the building shall be conveyed to the city, it is in fact a contract to purchase the building by instalments and so subject to the debt limitations of the city for the full amount of the payments to be made under the lease. We cannot pass on the lease in the instant case as it has not been executed and is not before us, but we do find the main provisions as outlined are proper. There is no showing that the lease when executed will be subject to the objections of the above cases cited by the plaintiff.
In the instant case there is not even the slightest intent to increase the bonded debt. It is an administrative function of the city and county to enter into contracts for rental of space for governmental purposes, and without which they presently are, and as the population grows will continue to be in a much greater degree lacking the necessaiy facilities for functioning. Revenue bonds -were authorized by the legislature, making it possible for governmental units, limited in the amount that could be raised by taxes and the issuance of bonds, to furnish many public facilities without increasing their bonded debt, as they were to be paid for by the users thereof. PA 1933, No 94, as amended (CL 1948, § 141.101 et seq. [Stat Ann 1949 Rev § 5.2731 et seq.]). The validity of this method of raising funds has been repeatedly upheld. Young v. City of Ann Arbor, 267 Mich 241; Attorney General, ex rel. Eaves, v. State Bridge Commission, 277 Mich 373; Oakland County Drain Commissioner v. City of Royal Oak, 306 Mich 124. Both counsel for plaintiff and defendants cite many cases to uphold their contentions, but we believe the Michigan cases referred to as well as the majority of decisions from other jurisdictions uphold the legality of the proceedings under attack. See citations of cases in 71 ALR 1318 and 145 ALR 1362. The majority rule is stated in 71 ALR 1326 as follows:
“Where the lease is, in fact, intended as a lease, and the rentals are in fact such, rather than payments on the purchase price, the courts, without exception, hold that such a lease of property by a city, county, school district, or other political subdivision, with an option to purchase the same at a fixed price in addition to the rentals, does not create an indebtedness or liability within the meaning of a constitutional or statutory limitation of indebtedness. * * *
“And some of the cases reach this conclusion, even where the rentals paid are to be applied or credited on the amount of the purchase price, in the event the municipality elects to exercise the option to purchase. * * *
“But a contract which, though denominated and purporting to be a lease with .option to purchase, is in fact a contract of purchase by payments in instalments, is treated as a contract of purchase rather than as a lease; and, according to the great weight of authority, the fact that the so-called rentals are sufficient, if paid throughout the term of the lease, to cover the entire purchase price, and to enable the municipality to acquire the property without further payment, renders .the contract one of purchase rather than lease, and gives rise to an indebtedness, within the meaning of a constitutional or statutory debt limitation.”
The recent case of Kelley v. Earle, 320 Pa 449 (182 A 501), on rehearing 325 Pa 337 (190 A 140), in many ways resembles the instant case and raises the same questions. The court stated the law so fully and tersely that we quote therefrom as follows:
, “As far as municipalities are concerned if such obligations are met from current revenues from year to year, they cannot be considered debts in the constitutional sense, even though the aggregate or sum total of all payments should exceed the constitutional limitations. See Wade v. Oakmont Borough, 165 Pa 479 (30 A 959). The same rule applies to the State. * * *
“The Commonwealth is at present renting a number of structures throughout the State, paying at times high rental therefor. Many of these leases are for long terms and must be so, otherwise they could not be secured. Their validity has been sustained by our cases. The leased properties are essential to the conduct of governmental business and the comfort, health and security of our people.- When the case was first here the difference between such leases and the one under consideration was that at the end of a definite period, upon compliance with the contract, the property leased was to be deeded to the Commonwealth. This the court held was a sale not a lease. We now have a very different situation; The instrument before us is a straight lease for a recurring necessity. The land leased is not deeded to the Commonwealth; it is still held by the authority, an independent public corporation. * * *
“It is urged that the transaction is in effect a purchase of capital assets by instalments. To sustain this conclusion; of necessity we must hold the agreement a sale; we have held the agreement is a lease and nothing more. If this were an outright purchase of property to be paid for in the future it would undoubtedly be within the constitutional objection, but it is not a purchase nor does it have the attributes of a purchase. * * * The fact that the proposed plan might be termed an evasion of the Constitution, would not condemn it unless such evasion was illegal. Tt is never an illegal evasion to accomplish a desired result, lawful in itself, by discovering a legal way to do it.’ Tranter v. Allegheny County Authority, 316 Pa 65, 84 (173 A 289). The bonds of the authority are to be paid out of its revenues. The credit of the State is not pledged or bargained away.”
The authority, not the city and county, is to pay for and erect the proposed building, and is to be the sole obligor on the proposed revenue bonds. The city and county will not pledge their full faith and credit, but they merely agree to pay over a term of years a reasonable annual rental for an absolute necessity the same as they would for any other services. It is true that a prudent investor in the revenue bonds will be attracted by the fact that the city and county agree to pay sufficient rent so as to pay the bonds and interest, that the moral risk of the lessors is the very best, and that a quasi-municipal corporation, like the authority is the obligor on the bonds. The method is new, but is being adopted by municipal corporations, under enabling acts, to provide for much needed facilities which they otherwise could not have without raising the tax rates they could charge or because of bond debt limitations. Inasmuch as the bonds proposed to be issued by the authority are not faith and credit obligations of its incorporators, they need not be voted on by the electorate, nor are they subject to the debt limitations of the municipalities.
The plaintiff further contends that the bonds proposed to be issued by the authority must be approved by the municipal finance commission. The municipal finance act, CL 1948, § 131.1 et seq. (Stat Ann 1949 Rev § 5.3188[1] et seq.), only refers to bonds issued by a municipality as there defined. It does not apply to those issued by the authority.
Plaintiff next contends that prior to the execution of the proposed lease, the city must make an appropriation or levy a tax for the full amount of its commitments under the lease. Title 6, chap 7, § 2, of the charter of the city of Detroit (1918):
“No contract shall be let or entered into for the construction of any public work or for any work to be done or for the purchasing or furnishing of supplies for said city not herein provided for, and no such public work, performance, purchasing or supplying shall be commenced until approved by the common council, and until the contract therefor has been duly approved and confirmed by the common council, and a tax or assessment levied to defray the cost and expense of the same, and no such work, supplies and materials shall be paid for or contracted to be paid for, except out of the proceeds of the tax or the assessment thus levied.”
This provision does not apply to the making of the proposed lease where in consideration of annual rental, the city receives services each year of the term. It is similar to the acquiring of any other future services by a contract. They must have the space and undoubtedly will make proper provision from year to year the same as it does for other services and as it does under present leases of property from- private owners. It merely will rent from the authority instead of private owners.
Plaintiff further contends that the enabling act offends article 10, § 12, and article 8, § 25, of the Constitution, which forbids the city and county “to loan their credit.” These provisions do not apply to the leasing of a building for a term of years. Bacon v. City of Detroit, supra. PA 1948 (1st Ex Sess), No 31, § 8, the enabling act, permits the increase of the consideration under the proposed lease. This is not at all unusual in long term leases which often provide for readjustment of the rent from year to year. The authority is a nonprofit corporation authorized by the statute, quasi-municipal in nature and in some respects similar to a drain district that issues revenue bonds. It neither can nor will charge an exorbitant rental, with 2 of the 3 directors named by the city and county respectively. The enabling act provides for the issuances of revenue bonds. The revenue bond act, CL 1948, § 141.121 (Stat Ann 1949 Rev § 5.2751), distinctly provides that the rates may be fixed and revised from time to time and shall provide sufficient return to pay the expenses of maintenance, payment of interest and principal on the bonds as they become due and payable.
Plaintiff further contends that the annual payments under the proposed lease may exceed the millage limitations prescribed by the Constitution and the charter. We have already reviewed the amount the city and county will be called upon to pay as compared with what they are expending at the present time for similar services. This is primarily an administrative question to be met by the city and county in the normal course of providing for expenses of operating. The danger of it exceeding the millage limitations is so remote that it requires no further consideration.
Plaintiff’s next contention i's that in deeding the-city block, which the city has acquired for the site of the building, to the authority in payment of future rent, without a vote of the electorate, the city will violate its charter. Title 3, chap 1, § 12(h), only authorizes the common council to sell and dispose of city-owned property having a value less than $1 per capita according to the last preceding census without approval of the electors. According to such census (1940) the city had a population of 1,623,432. As the jury in the recent condemnation case found the value of the land to be $1,574,950, a vote of the electorate was unnecessary.
Plaintiff next contends that the amounts the city and county are advancing under the interim contract for professional services, et cetera, are improper. Such expenditures are undoubtedly in the interest of the city and the county, for a lawful purpose, and for a full consideration. It is not a loan of credit to the authority nor the appropriation of tax money to be expended by others than the taxing authorities. It is an expenditure by the city and county and so primarily an administrative question as to the terms of the contract and the consideration received for such expenditure. See Bowler v. Nagel, 228 Mich 434 (37 ALR 1154); Hays v. City of Kalamazoo, 316 Mich 443 (169 ALR 1218).
Plaintiff’s further contention that the lease for a period of 30 years is contrary to public policy is answered by the fact that the legislature in the enabling act prescribed a term of not over 40 years as being legal. All other contentions of the parties have been considered and are without merit and warrant no further discussion.
The bill should not have been dismissed as plaintiff is entitled to a declaration of rights and a decree may be entered in accordance with this opinion: otherwise the holding of the court below is affirmed and the plaintiff is not entitled to any further relief. A public question being involved, no costs will be allowed.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Dethmers, and Carr, JJ., concurred.
See “The City of Detroit — Michigan,” by O. M. Burton, Vol. 1, pp 346 and 352. | [
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North, J.
Plaintiffs, commonly known and herein designated as UAW-CIO, and others, sought and obtained a decree enjoining the prosecuting attorney of Wayne county and the attorney general, who intervened as a defendant, from prosecuting criminal proceedings under PA 1947, No 318, which criminal prosecutions were threatened under circumstances hereinafter noted. From the decree entered in the circuit court the defendants have appealed.
A dispute involving- wages arose between UAW-CIO union employees and their employer, the Chrysler Corporation. Resort was had to collective bargaining. The notices required by State and Federal law regulating labor disputes were given and mediation sessions between the respective parties followed. While such sessions were pending the union officers concluded that further mediation would be of no avail and thereupon gave notice to the representatives of the Chrysler Corporation that a strike would be called, and such strike did go into effect on the forenoon of the following day. The calling and putting into effect of this strike was obviously in violation of the terms of the statute about to be noted and rendered plaintiffs subject to threatened criminal prosecution, providing the statute is valid.
PA 1947, No 318, commonly known as the Bonine-Tripp act, provides that in the event the parties to a controversy such as here involved are not able to agree among themselves or that a solution and determination of their controversy cannot be reached by mediation or arbitration, before a strike may be called an election shall he held in accordance with the terms of the statute and the strike shall not be instituted unless “a majority of all employees in such bargaining unit * * * vote in favor of such action.” PA 1947, No 318, § 9a (CL 1948, § 423.9a). Section 22 of the act (CL 1948, § 423.22) in part reads:
“Any person who either individually or as 1 of a group of persons instigates a strike, or who shall call or cause a strike to be placed in effect, * * * while mediation is pending, * * * or while an election is pending, * * * shall upon conviction thereof be punished by a fine of not more than $1,-000 or by imprisonment in the county jail for not more than 6 months, or by both such fine and imprisonment.”
It is plaintiffs’ contention that insofar as the statute makes the calling of an election and the affirmative vote of a majority of all employees in the bargaining unit involved in the labor controversy a prerequisite to calling or instituting a strike and provides a penalty for violation of the statute, it impairs the rights of plaintiffs in violation of article 2, §§ 4, 16, of the Michigan Constitution, and the due process clause of the Fourteenth Amendment of the Federal Constitution, and further that the noted statutory provision is repugnant to the right of collective bargaining granted to unions under the national labor management relations act, i.e. — the TaftHartley act. (61 Stat 136; 29 USCA 1948 Cum Supp §§ 141-197.) On this appeal defendants have presented 2 questions, as follows:
“1. Do the election requirements of PA 1947, No 318, §§ 9, 9a, 9b and 9e, known as the Bonine-Tripp act, and the penal provisions thereof, § 22, violate plaintiffs’ and appellees’ rights of freedom of speech and due process of law as guaranteed by article 2, §§ 4 and 16 of the Constitution of Michigan, 1908, and Amendments 1 and 14, U. S. Constitution?”
“2. Has Congress, in the national labor relations management act (Taf t-Hartley act), by its expressed intent therein, so preempted the field of regulation of labor-management relations in industries affecting commerce that.any State police power regulation of such relations in industries affecting commerce must necessarily be in conflict with such Federal law and therefore null and void?”
In granting plaintiffs the. injunctive relief prayed, the circuit judge placed decision on 3 grounds: That the statutory requirement of an election was (1) in violation of article 2, §§ 4 and 16 of the Michigan Constitution; (2) in violation of the Fourteenth Amendment of the Federal Constitution; and (3) as affecting interstate commerce in violation of article 1, § 8 (3) of the Federal Constitution — in view of the national labor management relations (Taft-Hartley) act.
.The recent decision of the United States supreme court in International Union, U.A.W., A.F. of L., Local 232, v. Wisconsin Employment Relations Board, 336 US 245 (69 S Ct 516, 93 L ed 651), is informative in the field of law pertinent to the instant case. For brevity we refer to the cited case as the Wisconsin Case. That suit involved the constitutionality of the Wisconsin employment peace act, the pertinent portion of which we quote in the accompanying footnote. At the outset of the United States supreme court’s opinion it is stated that the validity of the Wisconsin statute “is challenged because it is said to transgress constitutional limitations imposed by the Thirteenth and Fourteenth Amendments and by the commerce clause as implemented by the national labor relations act (49 Stat 449) and the labor- management relations act of 1947.” (61 Stat 136; 29 USCA 1948 Cum Supp §§ 141-197.) Negotiations incident to a new collective bargaining contract between the employer, the Briggs & Stratton Corporation, and its employees reached a deadlock. Thereupon the union resorted to repeatedly calling union meetings during working hours and without warning the employees would leave their work and return at their pleasure. This occurred 26 times within approximately four and one-half months. This procedure had the desired effect of disrupting the employer’s business, and as described by the union leaders was “a new technique for bringing pressure upon the employer” to obtain concessions incident to the union’s demands made in the collective bargaining proceedings.
The employer instituted proceedings before the Wisconsin employment relations board. After prescribed procedure that board ordered the union to cease and desist from “engaging in any concerted efforts to interfere with production by arbitrarily calling union meetings and inducing work stoppages during regularly scheduled working hours; or engaging in any other concerted effort to interfere with production of the complainant except by leaving the premises in an orderly manner for the purpose of going on strike.”
The union sought and obtained in the Wisconsin courts review of the board’s order. In the particular above noted the Wisconsin supreme court affirmed the board’s order (International Union, U.A.W., A.F. of L., Local 232, v. Wisconsin Employment Relations Board, 250 Wis 550 [27 NW2d 875, 28 NW2d 254]); and in that respect the United States supreme court affirmed the holding of the Wisconsin supreme court. While the issue in the Wisconsin Case was not identical with that in the instant case, the reasoning and holding in that ease are applicable to the case at bar.
Plaintiffs’ first argument in support of their contention that the statute here involved is unconstitutional is stated in their brief as follows: “To prohibit by law calling or instigating a strike without distinction as to object or other circumstances is so unreasonable as to deny freedom of speech and due process of law.”
As a sufficient refutation of this contention it need only be noted that the Bonine-Tripp act does not prohibit calling or instituting a strike incident to any legitimate labor controversy. Instead the act merely requires as a condition precedent to calling or instituting a strike the approval so to do expressed at an election by the vote of a majority of the employees in the bargaining unit. Quite universally there are 3 parties interested in and affected by a strike — the employer, ■ the employees, and the public. Plaintiffs’ statement in their brief concerning picketing is equally applicable to a strike:
“Nobody is really confused into thinking that picketing is not something more than speech or that the right to picket as supported by freedom of speech is not without limits.”
In the Wisconsin Case, supra, the ultimate decision was that the State might provide against undue coercion. A strike is not only a means of exercising the right of free speech, but it is likewise a medium of exercising coercion. As such it is subject to reasonable regulation by the State in the exercise of its police power. It may well be inferred that the legislature in enacting the statutory provision under consideration was at least to some extent motivated by a desire to prevent stoppage of work in a plant as to all of the employees, which stoppage was caused by a small number of employees in a key position going on strike. The detriment in such cases to the remaining majority of the employees, to the employer, and also generally to the public, is obvious; and the legislature might well have considered it a justifiable reason for restricting or limiting the union’s right to institute a strike incident to collective bargaining proceedings as prescribed in the Bonine-Tripp act.
“Being a legislative judgment it is presumed to be supported by facts known to the legislature unless facts judicially known or proved preclude that possibility.” South Carolina State Highway Department v. Barnwell Brothers, Inc., 303 US 177, 191 (58 S Ct 510, 82 Led 734).
“The most that can be said is that whether that determination was an unreasonable, arbitrary or unequal exercise of power is fairly debatable. In such 'circumstances, the settled rule of this court is that it will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining the question.” Zahn v. Board of Public Works of Citij of Los Angeles, 274 US 325 (47 S Ct 594, 71 L ed 1074).
“The right of the State to determine whether the common interest is best served by imposing some restrictions upon the use of weapons for inflicting economic injury in the struggle of conflicting industrial forces has not previously been doubted. * * *
“But the circumstance that a labor dispute is the occasion of exercising freedom of expression does not give that freedom any greater constitutional sanction or render it completely inviolable. * * *
“We must be mindful that ‘the rights of employers and employees to conduct their economic affairs and to compete with others for a share in the products of industry are subject to modification or qualification in the interests of the society in which they exist.’ ” Carpenters & Joiners Union of America, Local No. 213, v. Ritter’s Cafe, 315 US 722 (62 S Ct 807, 86 L ed 1143).
We think it is not an unreasonable exercise of the State’s police power to forbid resort to a strike which is not approved by a majority of the employees involved, and thereby protecting both the majority of the employees in the bargaining unit and the public. Nor is it a denial of free speech any more than is the limitation of certain other phases of action in labor controversies. Carpenters & Joiners Union of America, Local No. 213, v. Ritter’s Cafe, supra; Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 US 525 (69 S Ct 251, 93 L ed 212). In disposing of a like contention in the Wisconsin Case, supra, the court said:
“It is further contended that the statute as applied invades rights of free speech and public assemblage guaranteed by the Fourteenth Amendment. We recently considered a similar contention in connection with other State action concerning labor relations. Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., and Whitaker v. North Carolina, 335 US 525 (69 S Ct 251, 93 L ed 212), and American Federation of Labor v. American Sash & Door Co., 335 US 538 (69 S Ct 258, 93 L ed 222). For reasons there stated, these contentions are without merit.”
The Wisconsin statute, which in its requirement of a majority vote of the employees of the bargaining unit is quite identical with the like provision in the Bonine-Tripp act, was held valid as against like contentions as herein presented, and rehearing was later denied, in Hotel & Restaurant Employees’ International Alliance, Local No. 122, v. Wisconsin Employment Relations Board, 236 Wis 329 (294 NW 632, 295 NW 634). On appeal to the United States supreme court the decision of the Wisconsin court was affirmed. See Hotel & Restaurant Employees’ International Alliance, Local No. 122, v. Wisconsin Employment Relations Board, 315 US 437 (62 S Ct 706, 86 L ed 946). In its opinion the supreme court of the United States said:
“The specific question for decision is the constitutional validity of an order made by the Wisconsin employment relations board acting under the employment peace act, Wisconsin Laws of 1939, chap 57. * * *
“What public policy Wisconsin should adopt in furthering desirable industrial relations is for it to say, so long as rights guaranteed by the Constitution are respected. Aikens v. Wisconsin, 195 US 194 (25 S Ct 3, 49 L ed 154); Senn v. Tile Layers Protective Union, 301 US 468 (57 S Ct 857, 81 L ed 1229). As the order and the appropriate provisions of the statute upon which it was based leave the petitioners’ freedom of speech unimpaired, the judgment below must be affirmed.”
It is worthy of note that the United States supreme court in its opinion literally quoted the provision of the Wisconsin statute which makes it “ ‘an unfair labor practice’ ” to “ ‘co-operate in engaging in, promoting or inducing picketing, boycotting or any other overt concomitant of a strike unless a ma jority in a collective bargaining unit of the employees of an employer against whom such acts are primarily directed have voted by secret ballot to call a strike.’ ”
As pertinent to the issue in the instant case we quote the following from the opinion of the Wisconsin supreme court in the Hotel & Restaurant Employees’ Local No. 122 Case, 236 Wis 329, 345 (294 NW 632, 295 NW 634):
“We find nothing in the act which prevents a minority of a collective-bargaining unit from withdrawing from employment either singly or in concert. (For like provision in the Bonine-Tripp act, see section 13a.) * * *
“The petitioners complain that the characterization of the acts of employees as unfair labor practices cannot be made to depend on the action of a majority of a collective-bargaining unit; that the legislature cannot place it within the power of a majority of the collective-bargaining unit to authorize a strike. This argument is an attack upon a principle which is fundamental in the attempt of the legislature and of congress to regulate labor relations. The principle upon which authorized collective bargaining depends is that the rule of the majority within an appropriate collective-bargaining unit shall bind the minority. We see no way by which the principle of collective bargaining can be maintained unless this right of a majority of a collective-bargaining unit to speak for the unit including the minority is maintained. A bargain on behalf of a collective-bargaining unit amounts to nothing, if after it is made the individuals or some of them comprising that unit are not affected thereby. This principle is explicit in the national labor relations act (29 USCA, § 151 et seq.), in the railway labor peace act (45 USCA, § 151 et seq.), and in the act now under consideration. If the majority of a collective-bargaining unit can thus coerce the minority in the matter of bargaining, we see no reason why the legisla ture may not vest in a majority of the unit power to determine whether such conditions obtain in the employment as warrant the calling of a strike in an effort to remedy them. * * *
“In providing for ‘industrial peace, regular and adequate income for the employee, and uninterrupted production of goods and services,’ * * * we see no reason why the legislature may not forbid concerted picketing and boycotting in aid of an unauthorized strike. * * * All these questions relating to rights of employees to organize, conduct strikes, boycotts, and other coercive measures are in the field of public policy. As the court of appeals of New York said in the case already cited (May’s Furs & Ready-To-Wear, Inc., v. Bauer [1940], 282 NY 331 [26 NE2d 279]), and as this court has said many, many times, these questions are for the legislature. Courts do not sit to pass upon the wisdom or unwisdom of the acts of the legislature. * * *
“Both parties to a labor dispute are under the same constitution and both are subject to the valid acts of the legislature. Just where the line should be drawn in an effort to balance the bargaining power of the parties is primarily a matter of public policy for the legislature and not a question of law for the courts.”
While seemingly quite unnecessary, it may be noted that section 19 of the Bonine-Tripp act provides :
“This act shall be deemed an exercise of the police power of the State of Michigan for the protection of the public welfare, safety, prosperity, health and peace of the people; and all the provisions of this act shall be liberally construed for the accomplishment of said purposes.”
In the light of the authorities hereinbefore cited we are of the opinion that, contrary to appellees’ contention, the provision of the act under consideration is not “so unreasonable as to deny freedom of speech and due process of law.”
In so concluding we are mindful that in a case decided by the Federal district court in Kansas an opposite conclusion was reached. See Stapleton v. Mitchell, 60 Fed Supp 51. We also note the decision in Alabama State Federation of Labor v. McAdory, 246 Ala 1 (18 So2d 810); and American Federation of Labor v. Bain, 165 Ore 183 (106 P2d 544,130 ALR 1278), cited by appellees and relied upon in the opinion of the trial judge. But the statutory provision considered in the Alabama Case was materially different than the Michigan statute in the following-respect. The vote required to authorize a strike was “the vote of the majority of the regular employees working in the business, plant, or in such unit thereof.” In construing this provision, the court said:
“The denial of the right to strike is made to rest, not upon the rule of the majority of any bargaining-unit or in any craft to which the workmen belong, but upon the whim or caprice of others who may be employed in the business, plant, or unit thereof,-whoever they may be and whatever views they may entertain as to labor or labor unions.”
In the remaining case, American Federation of Labor v. Bain, supra, the court held invalid the Oregon statute which prohibited picketing by a minority of the employees of a given employer. The court said: “The controversy has resolved itself largely into the question whether the regulation, or, as the plaintiffs would have it, the prohibition, of picketing- and boycotting in sections 1 and 3, invades the plaintiffs’ fundamental rights and liberties of freedom of speech and of assemblage.” Obviously the issue in the Oregon Case was quite materially different than that in the instant case, and, hence, the holding in the Oregon Case is not persuasively material to decision herein.
As earlier noted herein the remaining question as restated in appellees’ brief is as follows:
“2. In view of the national labor management relations act and the provisions requiring collective bargaining by representatives in industries affecting commerce, was it within State authority to make a strike unlawful if not approved by a majority of the employees in the collective bargaining unit?”
On this issue the position of appellees is stated in their brief as follows: “The strike election provisions of the Bonine-Tripp act conflict with the national labor management relations act.”
Admittedly, as applied to interstate commerce, if the Bonine-Tripp act does conflict with the provisions of the national labor management relations act, the former is not enforceable; but if there is no conflict the validity and enforceability of the Bonine-Tripp act is not impaired on this ground. In appellees’ brief it is pointed out that as related to collective bargaining the national labor management relations act contains specific provisions, and it is asserted “it covers the field of the strike in consequence of failure to reach an agreement.” And appellees’ brief continues:
“It (the Federal act) sets the following conditions precedent to striking: (1) 60 days notice of contract termination; (2) Offer to negotiate new contract; (3) Notice to Federal and State conciliation boards of existence of a dispute; and (4) continues in full force and effect without resorting to strike or lockout all the terms and conditions of the existing contract for a period of 60-days.” See national labor management relations act (1947), § 8.
We do not discover in the foregoing any provisions which are inconsistent with or in conflict, either expressly or by necessary inference, with the requirement of the Bonine-Tripp act that as precedent to calling a strike there shall be a vote of the employees of the bargaining unit; nor has there otherwise been called to our attention any such inconsistent or conflicting provisions in the Bonine-Tripp act. The very fact that subdivision 3 of the above quotation requires notice to “State conciliation boards” indicates that the Federal act was not thought to be exclusive of permissible State regulations. Further, it is difficult, if not quite impossible, to read the decision in the Wisconsin Case hereinbefore noted without coming to the conclusion that in the exercise of its police power a State may by legislation regulate the exercise of the right of employees to strike, providing such regulations are not in conflict with or inconsistent with Federal regulations.
As stated by Justice Brandeis in Dorchy v. Kansas, 272 US 306 (47 S Ct 86, 71 L ed 248): “Neither the common law, nor the Fourteenth Amendment, confers the absolute right to strike.” That individual States have the right within the valid exercise of police power to regulate the calling of a strike, and that restrictions of that character do not violate the constitutional liberty possessed by employees or union labor organizations has been adjudicated by highest authority. See Nebbia v. New York, 291 US 502 (54 S Ct 505, 78 L ed 940, 89 ALR 1469). In Allen-Bradley Local No. 1111, United Electrical, Radio & Machine Workers of America, v. Wisconsin Employment Relations Board, 315 US 740, 749 (62 S Ct 820, 86 L ed 1154), it was said:
“Furthermore, this court has long insisted that an ‘intention of congress to exclude States from exerting their police power must be clearly manifested.’ * * * We will not lightly infer that congress by the mere passage of a Federal act has impaired the traditional sovereignty of the several States in that regard.”
That congress in passing the labor management relations act of 1947 did not intend thereby to deprive the States of any and all power to limit or qualify the right to strike, is persuasively indicated by section 13 of the act which reads:
“Nothing in this act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.”
And in Kelly v. Washington, ex rel. Foss Co., 302 US 1, 10 (58 S Ct 87, 82 L ed 3, 10), the court said:
“The principle is thoroughly established that the exercise by the State of its police power, which would be valid if not superseded by Federal action, is superseded only where the repugnance or conflict is so ‘direct and positive’ that the two acts cannot ‘be reconciled or consistently stand together.’ ”
We conclude that in the particular under consideration the Michigan statute is not in conflict with the national labor management relations (Taft-Hartley) act.
In considering this case we have not overlooked appellees’ contention that enforcement of the statutory provision herein involved would be in conflict with the commerce clause of the United States Constitution, art. 1, § 8(3). The test would be: — Does this statutory provision impose an undue burden upon interstate commerce ? We think it does not. This issue was quite fully considered in International Union, U.A.W., A.F. of L., Local 232, v. Wisconsin Employment Relations Board, supra, and decision therein was adverse to appellees’ contention herein. In reaching a like conclusion we are content to rest decision on the holding of the Wisconsin court, incident to which it was said:
“But if the contention of the respondents on the ground now under consideration is upheld, then every order of the board based on violation of unfair labor practices of employees (and we might add every pertinent act of the legislature) may be ignored and there will be nothing left that the board can effectively do, as some products of every manufacturer inevitably reach interstate commerce.”
To hold otherwise than in the cited case in practical effect would be to say that in this type of cases the commerce clause of the United States Constitution largely, if not wholly, nullifies the inherent rights of States to exercise police power. We are not prepared to so hold. In this connection it may be noted that appellees call attention to the fact that some employees of the Chrysler Corporation who would be classed in the same bargaining unit are employed by the corporation in Indiana and some in California. Even so, we are of the opinion that this circumstance cannot be held to be a restriction upon the exercise in Michigan of the State’s inherent police power incident to a strike which is located in this State. Otherwise diversity of State location of employees would limit the right of any of the States, wherein the employees were located, in the exercise of inherent police power in the particular with which we are here concerned. We know of no authority sustaining such conclusion and consider it not tenable.
“Under our constitutional system, there necessarily remains to the States, until congress acts, a wide range for the permissible exercise of power appropriate to their territorial jurisdiction although interstate commerce may be affected. Minnesota Rate Cases, 230 US 352, 402 (33 S Ct 729, 57 L ed 1511, 48 LRA NS 1151, Ann Cas 1916A, 18). States are thus enabled to deal with local exigencies and to exert in the absence of conflict with Federal leg islation an essential protective power. * * * Congress may circumscribe its regulation and occupy only a limited field. When it does so, State regulation outside that limited field and otherwise admissible is not forbidden or displaced.” Kelly v. Washington, ex rel. Foss Co., supra.
Incident to appellees’ challenge of the validity of the statutory provision here involved, we find no merit in their contention that: “It is equally obvious that the statute is not saved by the delegation of authority to a majority of the bargaining unit. The character of the right (to strike) under discussion pertains to each individual.” The right of an individual to terminate his employment is expressly preserved to the employee by the portion of section 13a of the Bonine-Tripp act, which reads:
“Nothing in this act shall be construed to require an employee to continue rendering labor or service without his consent or to make illegal the quitting of his employment.” . . •
In granting the injunctive relief prayed in the instant case the circuit judge was in error. The decree entered in the circuit court is reversed and a decree dismissing the bill of complaint may be entered in this Court. Since the constitutionality of the statute and an important question are here involved, no costs are awarded.
Sharpe, C. J., and Bushnell, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred.
PA 1939, No 176, as amended; CL 1948, § 423.1 et seq. (Stat Ann 1947 Cum Supp § 17.454[1] et seq.). We are not herein concerned with the latest amendment to this statute. See PA 1949, No 230.
CL 1948, §§ 423.9, 423.9a, 423.91), 423.9e, 423.22. — Reporter.
Question number two is restated by appellees as follows:
“2. In view of the national labor management relations act and the provisions requiring colleetive bargaining by representatives in industries affecting commerce, was it within State authority to make a strike unlawful if not approved by a majority of the employees in the collective bargaining unit?”
The Wisconsin employment peace act provides in part as follows:
“(2) It shall be an unfair labor practice for an employee individually or in concert with others: (a) To coerce or intimidate an employee in the enjoyment of his legal rights, including those guaranteed in section 111.04, or to intimidate his family, picket his domicile, or injure the person or property of such employee or Ms family. ** * * (e) To co-operate in engaging in, promoting or inducing picketing (not constituting an exercise of constitutionally-guaranteed free speech), boycotting or any other overt concomitant of a strike unless a majority in a collective bargaining unit of the employees of an employer against whom such acts are primarily directed have voted by secret ballot to call a strike. * * * (h) To take unauthorized possession of property of the employer or to engage in any concerted effort to interfere with production except by leaving the premises in an orderly manner for the purpose of going on strike.” Wisconsin Statute 1947, chap 111, § 111.06. | [
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Sharpe, C. J.
This is an appeal from an award granting plaintiff compensation.
The facts are undisputed. Defendant is a regularly constituted school district of Barry county, Michigan. Plaintiff was its schoolteacher and only employee. On January 29, 1948, she sustained an accidental injury arising out of and in the course of her employment by defendant and her disability is a direct result of the injury sustained.
On November 12, 1948, the department of labor and industry granted her an award of $21 per week compensation for total disability and $408 for hospital and medical services. Upon leave being granted, defendant appeals and urges that the amendment contained in PA 1912 (1st Ex Sess), No 10, pt 1, §§ 2-5, as amended by PA 1943, No 245, and PA 1945, No 325, and particularly sections 2, 2a, 3, 4 and 5 thereof (CL 1948, §§ 411.2-411.5 [Stat Ann 1947 Cum Supp §§ 17.142-17.145]) expressly removed from the operation of the compensation act all employers, whether public or private, who regularly had less than 8 employees.
Prior to the amendment by PA 1943, No 245, pt 1, § 5, of the compensation act (CL 1929, § 8411), read as follows:
“The following shall constitute employers subject to the provisions of this act:
“Public 1. The State, and each county, city, township, incorporated village and school district therein, and each incorporated public board or public commission in this State authorized by law to hold property and to sue or be sued generally;
“Private 2. Every person, firm and private corporation, including any public service corporation, who has any person in. service under any contract of hire, express or implied, oral or written, and who, at or prior to the time of the accident to the employee for which compensation under this act may be claimed, shall in the manner provided in the next section, have elected to become subject to the provisions of this act, and who shall not, prior to such accident, have effected a withdrawal of such election, in the manner provided in the next section.”
Prior to the 1943 amendment, the act was compulsory for all public employers and elective for all private employers.
PA 1943, No 245, amended several sections of the compensation law. Section 5 of part 1 was amended to read as follows:
“The following shall constitute employers subject to the provisions of this act:
“Public 1. The State, and each county, city, township, incorporated village and school district therein, and each incorporated public board or public commission in this State authorized by law to hold property and to sue or be sued generally;
“Private 2. Every person, firm and private corporation, including any public service corporation, who has any person in service under any contract of hire, express or implied, oral or written.”
PA 1945, No 325, amended pt 1, §§ 2a, 3 and other sections of the compensation law as amended in 1943. Of particular interest to the issue involved in this case is part 1, § 2a, which was amended to read:
“This act excepting section 1 hereof shall not apply to employers who regularly employ less than 8 employees at 1 time nor to domestic servants or farm laborers.”
PA 1943, No 245, is entitled:
“An act to amend sections 2, 3, 4, 5, 7 and 10 of part 1 * * * of Act No 10 of the Public Acts of the First Extra Session of 1912, entitled as amended ‘An act to promote the welfare of the people of this State, relating to the liability of employers for injuries or death sustained by their employees, providing compensation for the disability or death resulting from occupational injuries or disease or accidental injury to or death of employees and methods for the payment, and apportionment of the same, establishing an industrial accident board, defining its powers, providing for a review of its awards, making an appropriation to carry out the provisions of this act, and restricting the right to compensation or damages in such cases to such as are provided by this act,’ as amended and added * * * to add to such act 10 new sections to stand as section 2a of part 1 * * * to repeal sections 6 and 8 of part 1 of said act, being sections 8412 and 8414 of the Compiled Laws of 1929.”
Section 1 of the 1943 amendatory act enumerates the sections amended, among them being part 1, § 5 herein before noted, and the new sections added, one of which was part 1, § 2a. Section 2 of the 1943 amendatory act also notes the sections repealed and reads:
“Sections 6 and 8 of part 1 of Act No 10 of the Public Acts of the First Extra Session of 1912, be ing sections 8412 and 8414 of the Compiled Laws of 1929, are hereby repealed; section 5 of part'7 of Act No 10 of the Public Acts of the First Extra Session of 1912, as added by Act No 61 of the Public Acts of 1937, is hereby repealed; and all other acts or parts of acts in so far as inconsistent with the provisions of this act are hereby repealed.”
Under and by virtue of the above act the provisions of the law became compulsory as to both private and public employment, with the following exception:
“2a. This act shall not apply to employers subject to the provisions of any Federal employers liability law and who have elected to come under the provisions of such Federal law, nor to employers who regularly employ less than 8 employees at one time nor to casual employees or domestic servants or farm laborers.”
The above part 1, § 2a, was amended by PA 1945, No 325, in the following manner:
“Sec. 2(a). This act excepting section 1 hereof shall not apply to employers who regularly employ less than 8 employees at 1 time nor to domestic servants or farm laborers.”
It is noted that the above section makes no distinction between public and private employment. There is no language in the amendment that the legislature intended this section to apply only to private employers. Courts are not concerned with the wisdom or policy of legislation. The province of a court is to interpret legislation. Nor may we give effect to an intent contrary to the language of the statute as written. In our opinion it was the intention of the legislature, as expressed in the above amendment, to except both public and private employment from the. provisions of the compensa tion act when less than 8 people were regularly employed.
The award is vacated, but without costs as an interpretation of a statute is involved.
Bushnell, Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., conenrred. | [
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Dethmers, J.
Plaintiffs, as owners of a house and lot occupied by them as their home, sued defendant for damages resulting from the latter’s excavation of his adjacent lot' and removal of lateral and subjacent support from plaintiffs’ land. At the conclusion of plaintiffs’ proofs defendant moved for a directed verdict on the ground that it was not shown that defendant was the owner or occupant of the adjacent property or had done or had anything to do with or was in any way responsible for the excavating. Plaintiffs moved to reopen the proofs for the purpose of establishing the point. The court denied plaintiffs’ motion, reserved decision on defendant’s motion under the Empson act, permitted the defense to proceed with its proofs and, after verdict by the jury for plaintiffs in the amount of $1,850, granted defendant’s motion for judgment non obstante veredicto for the reason advanced in behalf of his motion for a directed verdict.
At the outset it should be said that if the trial court, at the conclusion of plaintiffs’ proofs, entertained doubt that plaintiffs had established defendant’s connection with the cause of action, it should have granted plaintiffs’ motion to reopen the proofs at that time.
At the conclusion of plaintiffs’ proofs the testimony included the following:
(Examination of plaintiff Harold "W. Irwin.)
“To my knowledge the defendant or his agents did not establish any props to support my land while they were excavating * * * The defendant did not perform any act, to my knowledge, that would serve to replace the land he removed as a support. # * #
“Q. (Drawing diagram on blackboard.)
Now, letting this represent your property, I believe it is Lot 24 is the one to the east, is that correct, or is it 25, of your two lots'?
“A. Lot 24 is the one with the house on it.
“Q. 24. All right. And this the property here that you claim was owned by Mr, Meese (drawing on blackboard).
“A. To the east.
“Q. We will call that ‘X’ for the time being. * * *
“A. I was there from day to day as the work was being done on the property to the east. * * *
“Q. * * * Now, you were there at all times while Mr. Meese or any other person under his direction did work there, weren’t you, from day to day, as you told us ?
“A. Yes. * * *
“I do not know how far it is from the west side of the house on Meese and Kissinger’s lot to the lot line. * * *
“Q. You have alleged that you need a wall 65 feet long to stop the erosion created by the defendant’s excavation, have you not?
“A. Yes.
“Q. Is that all the wall you are going to need to correct this condition?
“A. No.
“Q. How much more wall are you going to need other than what you are alleging as damages from the defendant?
“A. Another 10 feet.
“Q. And why do you need an additional 10 feet?
“A. For the excavation that was — that took place after Mr. Meese left it. * * *
“Q. Now, lets go hack to the time this excavation was made by Mr. Meese, the defendant.
“Mr. Conley: Well, just a moment. If the court please, there hasn’t been any testimony to that effect yet.
“Q. Well, did or did not Mr. Meese excavate the land adjoining your property on the east?
“Mr. Conley: If he knows.
“A. Not himself.
“Q. Did he or his agents?
“A. His agents. * * *
“A. I called Mr. Meese on the telephone. * * *
“A. As a result of that telephone conversation, Mr. Meese came over to see me. * * *
“Q. What did you say to him, and what did he say to you? * * *'
“A. I asked him what he was going to do about the situation that existed along the west wall.
“Q. Yes.
“A. And he said it was his understanding that it was my responsibility to build a wall, and I didn’t agree with him. And after we talked the whole thing over, I don’t remember the exact words, it was quite a long time ago, but a few things I do remember about the conversation were that he at no time said that he did not make the excavation. * * *■
“A. All right. He did at that time say that he would contact his lawyer to find out more about it, whether it was his responsibility or not. Then subsequently after that — that was all that took place at that one, as near as I can remember. After that he came over to see me again shortly after that, and .agreed— * * *
“A. He said that he would build a wall, a retaining wall, during that conversation, * * *
“A.'* * * Mr. Meese did not build a wall there. I talked to Mr. Meese’s son. He approached me on the excavation and brought a paper that Mr. Meese had written for me to sign. I saw the paper and read it. I did not sign the paper.”
The above constituted ample evidence from which the jury might conclude that defendant was the owner of the lot to the east adjacent to plaintiffs’ property, responsible for the excavation thereon and liable for removal of plaintiffs’ lateral support. In truth, that conclusion is well-nigh inescapable, without regard to defendant’s explicit admissions thereof on the witness stand after his motion for directed verdict.
The judgment non obstante veredicto is reversed and the cause remanded for entry of judgment on the jury’s ve'rdict for plaintiffs in the amount of $1,850. Costs of both courts to plaintiffs.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Butzel, and Carr, JJ., concurred.
CL 1948, § 691.691 et seq. (Stat Ann § 27.1461 et seq.).— Reporter. | [
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Dethmers, J.
Defendant appeals from conviction on a charge, as alleged in the amended information, that he “did convey into the Kalamazoo county jail certain hacksaw blades, adapted and useful to aid * * * a prisoner lawfully committed and detained in said Kalamazoo county jail” awaiting trial on a charge of “wilfully and maliciously injuring and destroying by breaking a bed, bed springs, table, windows, window frame, chair, ventilator and door in the juvenile home for Kalamazoo county, property of Kalamazoo county, said damage resulting from said injury and destruction exceeding the sum of $50, to wit $115, that being a felony punish-' able in the State prison, in making his escape therefrom, with intent to facilitate the escape.” The complaint, warrant and original information did not contain, as above set forth in the amended information, the description of the felony with which the prisoner stood charged at the time defendant allegedly undertook to aid his escape, but stated merely that he was detained on a felony charge.
Defendant contends that the complaint, warrant and original information were defective for failure to allege a crime known to the law because they did not set forth what felony it was with which the prisoner stood charged, and that, in consequence, it was error to permit amendment of the information for the purpose of causing it to adequately charge a crime, citing People v. Donovan, 228 Mich 149. We do..not agree. The allegation that defendant committed the mentioned overt act.with intent to aid the escape of a prisoner lawfully detained in the county jail on a felony charge punishable in the-State prison charged an offense known to the law, namely, violation of CL 1948, §750.183 (Stat Ann §28.380). The trial court properly allowed the amendment designed to more fully describe the felony with which the prisoner stood charged.
Neither the original nor the amended informations suffered from the infirmity considered in People v. Westerberg, 274 Mich 647, cited by defendant, in which the charge of breaking and entering in the nighttime with intent to commit a felony was held defective for failure to specify the intended felony. The substance of the holding there was that because a particular intent had been made by the statute an essential element of the offense, it needed to be alleged in the information so that the defendant might prepare his defense thereto with full and precise knowledge of what it was that he was accused of having done and intended. In the instant case that purpose was satisfactorily served by the allegations of the informations.
Defendant’s next contention seems to boil down to the claim that the amended information is insufficient for' the reason that its allegations describing the offense with which the prisoner stood charged failed to disclose that he was lawfully detained on a charge of having committed a felony punishable by imprisonment in State prison. See People v. Hamaker, 92 Mich 11. This contention appears to be predicated on the fact that the. property which the prisoner was charged with injuring consisted in part of personal and in part of real property. CL 1948, § 750.377a (Stat Ann 1951 Cum Supp § 28.-609 [1]) provides, as relates to personal property, and CL 1948, §750.380 (Stat Ann §28.612), as relates to certain real property, that malicious injury thereto shall constitute a felony if the resultant damage exceeds the amount of $50, or a misdemeanor if $50 or less. Accordingly, the difficulty in the Hamaker Case is not presented by the instant record because here the prisoner was lawfully detained on a criminal charge regardless of whether he was accused of destroying real or personal property.
In this connection defendant also states that it could not he determined from the language of the charge filed against the prisoner whether he was accused of a felony or misdemeanor. This is of significance only as relates to the penalty to which defendant was subject for aiding the prisoner’s escape. Under the statute the .crime of aiding the escape of one lawfully detained on a felony charge constitutes a felony, while aiding the escape of one lawfully detained on a charge not punishable by imprisonment in State prison constitutes a circuit court misdemeanor. In either event, the circuit court had jurisdiction over defendant and the subject matter of the offense with which he stood charged. Furthermore, a reading of the charge against the prisoner makes it manifest that he was accused of a felony, inasmuch as the amount of damage to real and personal property charged to have been done by the prisoner was of the amount of, to wit, $115. Whatever may have heen the proportionate amount of that injury done to real and personal property, respectively, under the mentioned charge the damage done to one or the other, of necessity, exceeded the statutory dividing line of $50.
The fact that the information in the prisoner’s case was subsequently amended to charge him with malicious injury to personal property only and that he was subsequently convicted of a misdemeanor rather than a felony is of no consequence to defendant’s case, inasmuch as the prisoner was lawfully detained on a felony charge at the time defendant undertook to aid his escape. j
We have no hesitancy in holding that the legisla-' ture, in enacting the statute making it an offense to maliciously injure the “property of another,” intended to include within the meaning of the quoted term the property of bodies politic and corporate as well as of individuals. See People v. Ferguson, 119 Mich 373.
Conviction and sentence affirmed.
Btjtzel, Carr, Btjshnell, Sharpe, Boyles, and Reid, JJ., concurred.
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Dethmers, J.
Plaintiffs owned household furnishings located in'their'home and insured by defendant against loss by’ explosion. During midwinter they left their home unoccupied for 9 days. It was locked, up and no one had access to it except a caretaker engaged to look after .the furnace, who had access to the basement only. Hé was not called as a witness at trial, nor was his whereabouts then known. When plaintiffs returned they found carpeting, furniture, and walls wet, plaster'and wallpaper loosened, paint, on woodwork, chipped,, water, steam and vapor on the windows, and evidence that water had come down through the, ceiling and along the walls. In the bathroom the- wa'shbowl, which, was attached to the wall by wood screws, was somewhat loosened and ajar about three eighths of an inch; a faucet on the.; bowl had become:: disconnected from- the hot water pipe and it was evident that water had sprayed out from the , latter.
The disconnection of the pipe from the faucet had' occurred at a slip joint. This was not a threaded joint, nor had the pipe been screwed onto the faucet but merely slipped .into it and held in place by pressure from packing. and a packing nut around the pipe.- The. pipé had been .inserted only one half to three-fourths-of an inch, while in good plumbing-practice it is customary to insert it about 2 inches. The pipe, as inserted- in the slip joint, could have been pulled out by exerting pressure on it and' a' gradual separation- could have resulted .from constant exertion of internal pressure, which would not necessarily be an explosion. It would also have been possible for an explosive separation to occur if-there had been internal pressure of steam or expanding hot water.
The hot water pipe ran to an electrically heated, 52-gallon hot water tank, which was controlled by a thermostat set at 150 degrees. Thermostats can get out of order and thus permit steam to be created, but there was no proof that this had occurred. The thermostat apparently was working all right. There was no evidence that the bowl was any looser on the wall or more ajar when plaintiffs returned to their home than it had been at the time of their departure. 'There is not one shred of affirmative proof to show what caused the pipe to separate from the faucet at the slip joint. Plaintiffs not only failed to prove internal pressure or explosion but even to produce any evidence from which the same could reasonably ■have been inferred. The most that can be said.fo'r their case, construing the. evidence, as we- must, in the light most favorable to them, is that the pipe was disconnected at the slip joint, that it could have been caused by an explosion from the internal pressure of steam or water expansion, had these factors existed as they might have had the thermostat failed to function, and that it was not shown that the separation was caused in some other way, thus leaving it within the realm of possibility that it was. caused by explosion. . This, apparently, was the reasoning employed by the jury in arriving at its verdict for -plaintiffs. As such, the verdict rests on sheer -conjecture and-guess.
For utter lack of proof of explosion or showing of any facts from which an explosion could reasonably have been inferred, the court-should have granted defendant’s motions for a directed verdict and judgment non' obstante veredicto. See Williams v. Detroit Fire & Marine Insurance Co. 280 Mich 215, and A. J. Brown & Son., Inc., v. City of Grand Rapids, 265 Mich 465.
Judgment for plaintiffs entered upon jury verdict, from which defendant appeals, is reversed without new trial, and with costs to defendant.
North, C. J., and Btttzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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North, J.
Plaintiff in' this suit in equity, commenced in June, 1947, sought to have the defendant company restrained from cancelling or discontinuing a policy issued by defendant to plaintiff in June, 1930. Hearing was had and plaintiff was decreed the relief sought. Defendant has appealed.
The policy in the principal sum of $1,000 provided for a monthly accident and monthly sickness indemnity, and also life insurance in event of death resulting from accident which in the instant case had accumulated from the initial amount of $1,000 to $1,500. The reason that defendant attempted to cancel plaintiff’s policy appears from 2 letters written by defendant to plaintiff, from which we qudte:
“February 26, 1947 * * *
“Dear Mr. DeLand:
“In order that the company may completé plans for a change of charter to include life insurance in the near future, it will be necessary to discontinue by March 1 certain types of policies that were issued years ago. We do sincerely regret to inform you that your Policy No. C14186 is one of those. Since you have paid beyond the above date, we are enclosing our check for $52 representing full return of your premium to the renewal date, July 1, 1946.
“The nonrenewal action is taken in accordance with the following sentence which you will find under Additional Provisions on page 3 of your policy. ‘The acceptance of any renewal premium shall be optional with the company.’ ”
“May 1, 1947 * * *
“Dear Mr. DeLand:
“I have been advised by our home office cashier that the company’s check for $52 which was sent to you with our letter of February 26, 1947, has not been cashed.
“We assume it is not your intention to cash the check and want you to know that your Policy Number C14186 is still in full force and effect and will remain so until July 1, 1947. However, we wish to point out that no more premiums will be accepted on your policy.”
The trial judge, the late G-eorge V. Weimer, in a filed memorandum so succinctly stated additional facts and the grounds for his conclusion that we quote from it quite at length:
“Plaintiff asks this court to restrain defendant from cancelling policy, exhibit A, sold and delivered to him June 11, 1930. On that day plaintiff signed an application for insurance, obviously prepared and presented by E. L. Huntington, as defendant’s agent. Therein appears: ‘Kind of policy desired life income disability, class A.’ * * *
“On the exterior face of the policy in heavy type appears: ‘Noncancellable life income disability policy.’
“At the top of first page appears in large bold type: ‘Noncancellable life income disability policy.’
“Part 5, at the top of page 2, under the heading ‘50 percent accumulation’ provides ‘Each consecutive annual renewal of this policy shall add 10 percent to the amount payable for loss of life, but in no case shall the increased indemnity exceed 50 percent of the original sum for loss of life.’ Under this provision the death benefit has now increased from $1,000 to $1,500.
“The last paragraph of the policy reads: ‘This policy is issued in consideration of a policy fee of $4 and the premium of $52 for the period herein stated, taking effect at 12 o’clock noon standard time * * * and terminates at noon on the 1st day of July, 1931, but may be renewed for a like term or terms subject to all the conditions and provisions of this policy from term to term by the payment of annual premiums of $52 each, et cetera.’
“Nowhere in the policy appears anything in conflict with the foregoing, unless it can be found, as claimed by defendant company, in the short sentence (on page 3 of the policy): ‘The acceptance of any renewal premium shall be optional with the company,’ which is contained in the center of the second ■of 3 paragraphs * * * under the heading ‘Additional Provisions.’ This 1 sentence upon which defendant relies for its claimed right to cancel the policy, must be considered together with the other numerous provisions in these 3 paragraphs, and must be held to have been included therein in its relation to the context of those provisions. If there is any ambiguity or uncertainty, it must be resolved .against the defendant company.
“On February 26, 1947, J. F. Hinkley, on behalf of defendant company, wrote plaintiff the letter, exhibit B. In that letter he expressed the real reason for seeking to cancel the policy as follows: ‘In order that the company may complete plans for a change of charter to include life insurance in the near future,’ and then he apparently recognized that plaintiff would be baffled by such action and added: ‘The nonrenewal action is taken in accordance with the following sentence which you will find under “Additional Provisions” on page 3 of your policy.’ He realized, of course, that plaintiff probably never during the 17 years had discovered that sentence, almost hidden as it was in that long paragraph.
“On May 1, 1947, Hex Edmunds, president of defendant company, wrote the plaintiff the letter, exhibit C. In that letter he retracted in part from the position taken in the former letter. * * *
“Clearly the action attempted in these 2 letters was never contemplated by the defendant when the policy was issued, nor during the ensuing 17 years, nor until it appeared essential to the proposed change of the charter of defendant company. The company never indicated in any way any intention that plaintiff should construe that 1 short sentence as now claimed by defendant. For 17 years plaintiff was lulled into a feeling of security by the continued acceptance of renewal premiums. * * * In my opinion the plaintiff is entitled to a decree.”
Since they are closely interrelated we consider together the first 2 questions presented in appellant’s brief:
“1. Bid the defendant have the right under its policy issued to plaintiff to refuse to renew the policy by refusing to accept renewal premium due July 1, 1947?”
“2. Is the sentence contained in the policy of insurance issued by defendant to plaintiff under the heading of ‘Additional Provisions’ on page 3 of said policy, reading as follows: ‘The acceptance of any renewal premium shall be optional with the company,’ inconsistent with the words on said policy reading: ‘Noncancellable life income disability policy’?”
The policy here in suit is one for health and accident insurance. The issuance of such insurance is governed in Michigan by provisions of the insurance code. CL 1929, § 12388, as amended by PA 1945, No 223 (CLS 1945, § 12388, Stat Ann 1947 Cum Supp §. 24.211). Part 3, ch 2, § 15 of the code (CL 1929, § 12442 [Stat Ann 1943 Rev § 24.278]) provides that if done in the manner specified in the statute, the insurer may include in its policies of this type a provision for “cancellation at the instance of tire insurer.” But in its brief appellant says:
“The above cancellation provision if inserted in the policy issued the plaintiff would have given the defendant company the right to cancel the policy at any time. The defendant company did not choose to put this optional clause of cancellation in its policy. It therefore designated this policy ‘noncancellable’ and as far as the right of termination of the policy is concerned, the defendant company relied on the. provision in the paragraph called ‘Additional Provisions’ which provided that the acceptance of any renewal premium was optional with the company. * * *
“The policy does not contain any provision, standard or otherwise, as to cancellation, but does contain a clause relative to nonrenewal.”
Incident to decision herein it may he conceded, as appellant contends, that there is a distinction between the words “cancellation” and “renewal” in “year to year” policies. But the very pertinent query in the instant case is this: In view of the char acter of this policy both as to the manner in which it is printed and its provisions, can appellant be permitted to say either that it should be held to be a “year-to-year” policy, or one the insurer could terminate by refusing payment of an annual premium? We think not, because, as noted by the circuit judge, plaintiff’s application accepted by the insurance company was for a policy which provided “Life Income Disability” insurance; and on the exterior face of the policy when folded there appears in large type: “noncancellable like income disability policy,” and this same designation of the policy appears again in like large type at the top of page 1 of the policy. And the last sentence in the policy in smaller type provides: “This policy * * * terminates at noon on the 1st day of July, 1931 but may be renewed for a like term or terms, subject to all the conditions and provisions of this policy from term to term by the payment of annual premiums of $52.”
Notwithstanding its conspicuous label as being “life” insurance, this contract is not a life policy. Also notwithstanding it is prominently labeled “noncancellable,” the claimed right of defendant to refuse renewals would render the policy annually cancellable — i.e., nonrenewable. We are not impressed with defendant’s contention that the conspicuous use of the word “noncancellable,” as embodied in this policy, was justifiable as meaning only that the policy was noncancellable during a period for which a premium had been paid.
As against the construction that an insured would' naturally put on the quoted provision to the effect that by paying his annual premiums his policy would “be renewed” from year to year, instead of being a term policy which the insurer might terminate at the expiration of any annual premium period, appellant relies upon a short sentence embodied in the middle of a rather long second paragraph under the heading “Additional Provisions,” which are numerous, which sentence reads: “The acceptance of any renewal premium shall be optional with the company.” As above noted appellant now states: “The defendant company did not choose to put this optional (statutory) clause of cancellation in its policy. It therefore designated this policy ‘noncancellable.’
In our judgment the much obscured sentence: “The acceptance of any renewal premium shall be optional with the company” is inconsistent with the much more prominently printed words of the policy heretofore noted and renders the policy not only ambiguous but deceptive. And while it does not have a controlling bearing upon decision of the instant case, it may well be noted that for 17 years defendant has accepted and retained $52 annually paid by plaintiff as the premium on this policy; and that plaintiff has arrived at an age which renders him ineligible to obtain like insurance.
“While the name that a policy bears does not necessarily determine its actual character, yet it may be considered, together with other facts and statements contained in said policy, in determining its true character. Doty v. American National Insurance Company, 350 Mo 192 (165 SW2d 862, 143 ALK 1062). * * *
“One year term, and ordinary or whole life insurance, may be legally combined in one contract of life insurance (citing cases); but if this is done it must be done without rendering the policy ambiguous. * * * Where, as here, an attempt to effect such a combination results in an ambiguity in the policy, so that same is susceptible of two constructions, one of which is more favorable to insured than the other, the court will give it that construction which is most favorable to the insured.” Casebolt v. Central Life Ins. Co. (Mo App), 180 SW2d 265.
In Schultz v. Benefit Ass’n of Railway Employees of Chicago, Ill., 175 SC 182 (178 SE 867), the policy in bold print was termed “NONCANCELLABLE,” and in some miscellaneous provisions provided in smaller type that the insurer had the right to refuse to accept premiums for any renewal period. The following is from the court’s opinion:
“The wording of the policy itself is confusing, ambiguous, and not at all clear. As before stated, in one place the policies are termed noncancelable, and down in the miscellaneous provisions, which are written in small type, the right is given to refuse to accept premiums on the policy for a renewal period. The two theories of the policy are inconsistent and the terms of the same are at least inconsistent. * * * The policy is ambiguous. It is a trap to catch the unwary. It was conceived, according to the undisputed testimony, for the purpose of competing with other companies in an effort to hold out the belief that the policy was substantial and noncancelable. '* * * Under the well-recognized rules of this and of other enlightened jurisdictions, the policyholder must be protected against confusing statements in policies, and, wherever there are two constructions that can be placed upon the policy, the construction most favorable to the policyholder will be adopted.”
For a similar decision sustaining the insured’s contention, see Harwell v. Mutual Benefit Health & Accident Association, 207 SC 150 (35 SE2d 160, 161 ALR 183), wherein it is said:
“It seems to us only fair that an insurer acting in good faith should insert in a conspicuous place in a policy an express unequivocal provision with respect to the right of renewal, especially where, as in this case, no provision is made for the cancellation of the policy.”
In Pietrantonio v. Travelers Ins. Co. of Hartford, Conn., 282 Mich 111, law applicable to the instant case is stated as follows: '
“It is a principle of law too well established in this jurisdiction and others to need discussion or citation of authorities, that a policy of insurance couched in language chosen by the insurer must be given the construction of which it is susceptible most favorable to the insured; that technical constructions of policies of insurance are not favored; and that exceptions in an insurance policy to the general liability provided for are to be strictly construed against the insurer. Pawlicki v. Hollenbeck, 250 Mich 38.”
Cases, too numerous to permit detailed review herein, from other jurisdictions are relied upon by appellant wherein a somewhat stricter construction is placed upon insurance contracts by holding that such contracts must be construed as a whole and each provision therein rendered effective; but in this jurisdiction a more liberal rule of construction has been adopted, as noted in the Pietrantonio Case, supra. This rule of construction more favorable to the insured should be followed on the ground indicated in the Harwell Case, supra. And further, many of appellant’s cited cases do not involve an insurance contract which, as in the instant case, is ambiguous or deceptive.
The. contention of appellant hereinbefore considered cannot be sustained; but appellant asserts non-liability on the further ground that although the policy issued by it did not comply with the statutory provision about to be noted, that provision of the" statute should be read into the policy for defendant’s protection, since appellant substantially complied with the statute by giving notice to plaintiff of termination of his policy. The pertinent portion of the statute (insurance code, part 3, chapter 2, §. 34) reads:
“No policy of casualty insurance, excepting workmen’s compensation, but including all classes of automobile coverage, shall be issued or delivered in this State by any corporation or other insurer authorized to do business in this State for which a premium or advance assessment is charged, unless there shall be contained within such policy a provision * * * whereby the policy may be cancelled at any time by the company by giving to the insured a 5 days’ written notice of cancellation,” with provision for tender of subsequent payment of unearned premium. CL 1929, § 12461 (Stat Ann § 24.298).
In appellant’s brief it is stated: “It is the contention of the defendant company that actually under the statutes of the State of Michigan there should have been a clause in this policy issued to plaintiff giving the defendant company the right to cancel the policy upon a 5-day written notice to the plaintiff;” and defendant asserts there was substantial compliance with the statutory provision for written notice in the 2 letters written by defendant to plaintiff. And “defendant therefore submits that this policy should be actually construed to have a cancellation clause in it.” It would be a strange application of equitable principles to hold herein that in consequence of defendant’s having issued a policy which was violative of law, it should be granted protection from liability under its policy. Obviously this statute was enacted not only as a requirement in policies of this type, but more particularly that one carrying casualty insurance should be definitely advised by the terms of his policy that it is subject to cancellation. Appellant’s counsel concedes that this policy issued by defendant to plaintiff does not contain a cancellation clause. In consequence thereof we are not in accord with the contention that de fendant should profit by its failure to comply with the statutory provision that: “No policy of casualty insurance * * * shall be issued or delivered in this State by any * * * insurer * * * unless there shall be contained within such policy a provision * * * whereby the policy may be cancelled at any time by the company” after giving proper notice.
The remaining question presented by appellant is: “Should the policy be construed to be noncancellable during the lifetime of the plaintiff” Incident to this issue it is said in appellant’s brief:
“Even if this contention (that plaintiff’s bill should be dismissed) is not approved by this Court, we wish to point out that the trial court went much further in its decree than was justified even if plaintiff was entitled to relief under the facts of this case.”
In the respect just noted there is merit to appellant’s contention. Appellant objected to the proposed decree at the time it was settled by the trial court. One of the grounds asserted by appellant in support of this appeal reads:
“The court erred in said decree in construing said policy to be noncancellable by the defendant during the lifetime of the plaintiff, subject only to the obligation of the plaintiff to make timely payments of premiums.”
One of the provisions of the above character in the decree is worded as follows:
“It is further ordered, adjudged and decreed that said policy of health and accident insurance No. C14186 shall continue in full force and effect throughout the lifetime of the plaintiff,” subject to payment of premiums.
This and other like provisions in the decree are evidently too broad in view of the terms of the policy. For example, in part 2 of the policy, provision is made for loss of “Either hand or foot or sight of one eye” for which the indemnity is one-third of the principal sum of $1,000; and in close proximity to this provision the policy contains the following: “The occurrence of any loss for which indemnity is payable under the terms of this part shall at once terminate the insurance affected by this policy.” In view of the terms of the policy just above noted, it seems clear that under certain circumstances other than nonpayment of premiums this policy would not “continue in full force and effect throughout the lifetime of the plaintiff.” For the reasons just indicated the decree may be modified in this Court. It would seem this might be easily and adequately accomplished by merely inserting a paragraph just preceding the last paragraph of the decree entered, which insertion could be substantially as follows:
But it is ordered, adjudged and decreed that none of the foregoing provisions of this decree shall bar the defendant insurance company, its employees, agents, successors or assigns, from asserting termination or cancellation of plaintiff’s policy or refusing to accept payment of premiums thereon, provided so doing is within the provisions of plaintiff’s policy other than the provision that: “The acceptance of any renewal premium shall be optional with the company” and not otherwise in conflict with decision in the instant case.
A decree in accordance with our opinion herein may be entered in this Court, but without costs to either party since neither has fully prevailed.
Sharpe, C. J., and Bushnell, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred.
CL 1948, § 521.1.—Reporter.
CL 1948, § 522.15.—Reporter.
CL 1948, § 522.34.—Reporter. | [
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Butzel, J.
Fred Freleigh, defendant, was convicted of-a -felony, and on supplemental information charging him with being a second offender, he was fomld guilty and: sentenced to serve a term of -not less' than 2 years, 4 months, 3 days to years, the/statutory maximum, with a recommendation of 1 year. Although the conviction was over 10 years ago, he has not fully served his sentence .owing to the fact that hp was released on parole for an interim period and later, returned to custody for parole violation. He presented,a petition for review on October 4,1951, pursuant to CL 1948, § 769.14, as added by PA 1951, No 159 (Stat Ann 1951 Cum Supp § 28.1085[1] ), which provides:
’ “Any person now. incarcerated in any State prison, or on parole from-a sentence thereto, .who was sentenced under the terms of sections 10, li, 12 or 13 of this chapter’ as in effect prior to the effective date of Act No 56 of the Public Acts of 1949, Shall be entitled.to a. review of sentence upon-application to the court in which he was sentenced.,. tJptm.'srich application any judge of such court mafc vacate thb previous sentence and impose any lesser sentence which in his judgment might have ffeen imposed' under sections 10, 11, 12 or 13 of this chapter, as •amended by Act No 56 of the .Public Acts'of 1949, had such sections as amended been, in.- force at the date of the previous sentence imposed upon said prisoner: ■ Provided, That any sentence so imposed shall be deemed to have begun as of the date of the ■previous sentence, and the rights of such prisoner under the laws shall be governed by the lesser sentence as then imposed.”
The Hon. George Murphy, judge of the recorder’s court for the city of Detroit, doubting the validity of Act No 159 and basing his decision on an opinion of the attorney general of the State of Michigan, held the act to be unconstitutional and denied appellant’s petition. We allowed an appeal.
Article 6, § 9, of the Constitution of 1908 provides:
“He [the governor] may grant reprieves, commutations and pardons after convictions for all offenses, except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to regulations provided by law relative to the manner of applying for pardons. Upon conviction for treason, he may suspend the execution of the sentence until the case shall be reported to the legislature at its next session, when the legislature shall either pardon or commute the sentence, direct the execution of the sentence or grant a further reprieve. He shall communicate to the legislature at each session information of each case of reprieve, commutation or pardon granted and the reasons therefor.”
Article 5, § 28, of the Constitution of 1908 provides :
“The legislature may provide by law for indeterminate sentences, so called, as a punishment for crime, on conviction thereof, and for the detention and release of persons imprisoned or detained on said sentences.”
This latter section was added to the Constitution after this Court, in the absence of such a provision, had held the indeterminate sentence law unconstitutional.
PA 1927, No 175, chap 9, §§ 10-13, being CL 1948, §§ 769.10-769.13 (Stat Ann §§ 28.1082-28.1085), provided for certain mandatory sentences to be imposed on criminals convicted of more than 1 felony. The statutes provided for sentencing on an indeterminate basis for second, third and fourth offenders.
PA 1949, No 56, amending CL 1948, §§769.10-769.13 (Stat Ann 1951 Cum Supp §§ 28:1082-28.1085) made new provisions for' the sentencing of habitual criminals, giving the trial court in its discretion the power to impose less than the former mandatory sentence upon the offender.
Subsequently PA 1951, No 159, was passed by the legislature. Both parties concede that Act No 159, supra, is a legislative attempt to give PA 1949, No 56, retroactive effect upon sentences which were mandatory on the trial judge under the habitual criminal act prior to the effective date of Act No 56, supra, and under which prior act defendant was sentenced. Defendant, claiming Act No 159, supra, to .be constitutional under article 5, § 28, supra, maintains that the legislature may provide for the release of persons imprisoned or detained on indeterminate sentence, Act No 159, supra, providing for such release. Defendant relies chiefly on People v. Cook, 147 Mich 127, and In re Casella,, 313, Mich 393. .The question in those cases was whether or not prisoners could be released on parole prior to the time they had served their maximum term. We only held that such release by parole was not a commutation of the sentence as such parolees remained under the surveillance of the prison authorities and upon violation of the parole would be returned to the prison to serve the balance of the sentences without any deduction of the time during which they had been released on parole. Defendant was so released until he violated the terms of his parole.
The power of pardon and commutation of sentence rests in the governor alone, article 6, § 9, supra. As stated in Rich v. Chamberlain, 104 Mich 436 (27 LRA 573), at 446, snch “power is vested exclusively in the governor of the State, and any law which restricted this power would he unconstitutional and void.”
In People v. Fox, 312 Mich 577 (168 ALR 703), we held at pp 581, 582:
“To hold with defendant under the circumstances of this case that the court has power to amend a sentence after the prisoner has served a part of it would infringe upon the exclusive power of the.governor under the Constitution to commute sentence.”
The Constitution by implication forbids the judiciary to commute a sentence. It does not enable the legislature to pass a law that will infringe upon the exclusive power of the governor to commute a sentence.
The trial judge was correct in denying defendant’s petition and the order of denial is affirmed.
Dethmers, Carr, Btjshnell, Sharpe, Boyles, and Reid, J J., concurred.
The late Chief Justice. North did not sit.
See People v. Cummings (1891), 88 Mich 249 (14 LRA 285); Const 1850, art 4, § 47, as amended in 1902.—Reporter. | [
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Boyles, J.
On April 1, 1948, while plaintiff was employed by the defendant cleaning automobile tires with a revolving wire brush, a steel wire flew from the brush and penetrated the cornea of plaintiff’s left eye. He was hospitalized for several weeks, a traumatic cataract and scar tissue developed as a result of the injury, the cataract was surgically removed, and plaintiff’s eye was bandaged for about 2 months. He was paid compensation for total disability from April 1st to June 20th, at which time he returned to work, almost blind in the left eye. He had lost 98 per cent, vision in that eye. Plaintiff filed application with the workmen’s compensation commission for 150 weeks’ compensation for specific loss of an eye, under CL 1948, § 412.10 (Stat Ann 1947 Cum Supp § 17.160). An award was allowed by the deputy, affirmed by the commission on review, and the defendant, on leave granted, appeals.
Undisputed testimony shows that the vision in the injured eye might be corrected by the use of a cataract lens to the extent that plaintiff by the use of such lens would have 75 per cent, vision in said eye, but that it would not be co-ordinated with the right eye. Appellant claims that under such circumstances plaintiff is not entitled to an award of compensation for specific loss of an eye. That is the sole question raised by the appellant for reversal.
Prior to the 1943 amendment, the question of whether or not an employee was entitled to compensation for the loss of an eye was determined by the test as to whether there was any useful industrial vision remaining after the injury. Henderson v. Consumers Power Co., 301 Mich 564. In 1943, however, the statute was amended, and now contains the following provision:
“For the purpose of this act 80 per cent, loss of vision of 1 eye shall constitute the total loss of that eye.” CL 1948, § 412.10 (Stat Ann 1947 Cum Supp § 17.160).
Appellant relies on Marrs v. Ford Motor Co., 315 Mich 211, and Dyer v. Abrasive Dressing & Tool Co., 315 Mich 215. In those cases we pointed out that the legislature, by adding the above definition to the statute, has given the Court a rule to follow in determining'whether there has been the loss of an eye. In the Dyer Case, this Court stated, p 217:
“The statute quoted above provides a definite standard or basis to be used in determining whether or not there is total loss of an eye. We construe the statute to mean (1) that if an employee has more than 20 per cent, of vision in an eye before an injury, but less than 20 per cent, remaining after the injury, he has sustained an ‘80 per cent, loss of vision’ or a total loss of the eye; and (2) that if an employee has more than 20 per cent, of vision remaining in an eye after an injury, he has not sustained ‘80 per cent, loss of vision’ or total loss of the eye.”
Thus it is clear that if the plaintiff in this case has more than 20 per cent, vision in his left eye after the injury, he has not lost an eye within the meaning of the act. Appellant argues that whether the employee has industrial or useful vision after an injury is to be measured by the remaining corrected vision by the use of a lens, and in support thereof relies on Cline v. Studebaker Corporation (1915), 189 Mich 514 (LRA1916C, 1139). In that case we held (syllabus):
“However, for the partial loss of the sight of claimant’s eye, which could be minimized by the use of glasses, so that no diminution of earnings took place, and no impairment of his earning capacity appeared from the testimony, the board was not authorized to award compensation (PA 1912 [1st Ex Sess], No 10, pt 2, § 10) though without glasses he had only 10 per cent, of normal vision but 50 per cent, with them.”
In the Cline Case, the employee was awarded compensation for the loss of an eye injured March 2, 1913, at which time PA 1912 (1st Ex Sess), No 10, pt 2, § 10, supra, provided compensation “for the loss of an eye, 50 per centum of average weekly wages during 100 weeks.” Passing the question whether the Cline Case, decided before the 1943 amendment, now has any force, in that case the proofs showed that without glasses the employee had only 10 per cent, vision in the injured eye, but that with glasses he had 50 per cent, vision therein. To that extent the Cline Case is a parallel to the case at bar except as to the percentages of vision remaining in the injured eye with and without corrective aid. The important distinction between the Cline Case and the ease at bar lies in the fact, in so far as it appears from the opinion in that case, that Cline had co-ordinated vision between the injured eye and his remaining good eye after the injury had been corrected by the use of glasses; which the plaintiff in the instant case would not have. In the Cline Case, the plaintiff had at one and the same time the co-ordinated use of the vision of two eyes, with more than 20 per cent, vision in each, including the injured eye. In the case at bar, the situation is otherwise. Plaintiff, by the use of a cataract lens for the injured eye, would not have co-ordinated vision, and still could not effectively use more than one eye at any one time. Under such circumstances, he has suffered the loss of the injured eye, under the 1943 amendment.
“An- employee, who, in the course of his employment, received an accidental injury to his right eye, which left him with but one-sixtieth of his normal vision therein, was properly awarded compensation, under the workmen’s compensation act, as for the loss of an eye, although it was shown that, with the use of a strong glass, the vision of said eye was above normal, where it was also shown that, when the glass was so used, said eye would not co-ordinate with the left eye.” Suggs v. Ternstedt Manfg. Co. (syllabus), 232 Mich 599.
“Where injury to employee’s eye rendered it useless for industrial purposes, there being no co-ordination between the eyes either with or without glasses, department of labor and industry was justified in awarding compensation for loss of eye, under workmen’s compensation act.
“Where issue of fact is presented as to whether injury to employee resulted in loss of eye, decision of department is final.” Lindhout v. Brochu & Hass (syllabi), 255 Mich 234.
In the instant case, the only way that the plaintiff conld nse his left eye, even with the addition of a cataract lens, would be at snch time as he did not use his right eye, due to lack of co-ordination. The doctor testified:
“Q. Then in his present condition, Doctor, how will he be able to get, medically, Doctor, the use of his left eye?
“A. With one good eye, his right eye good, he can’t actually use that eye at the present time. * * *
“The Commissioner: That is, he cannot use the left eye?
“A. Yes. * * *
“Q. (By Mr. Leach [attorney for plaintiff]): What stage of the game, then, will come about that will permit him to nse the vision of the left eye, as you say?
“A. Well, in the future, something may be 'developed which may be useful in that case, yes, but at the present time we don’t have anything. The only way he can use his left eye would be to lose his right eye, his good eye. * * *
“Q. It follows, therefore, that the only time he will be able to attain vision of the left eye is when he loses his right eye; is that correct?
“A. Yes, sir.”
In its brief the defendant concedes:
“Admittedly, plaintiff has less than 20 per cent, uncorrected vision in his injured eye. * * *
“It is admitted by defendant that plaintiff is unable to use this corrected vision at the present time, because, with correction, the left eye will not coordinate with the uninjured right eye.”
The commission found — and it is not disputed— that before the injury plaintiff had more than 20 per cent, vision in the left eye. This brings him within the Dyer Case, supra, where we said, p 217:
“Plaintiff contends that the only question of fact before the department was whether or not he had ‘any useful vision remaining before the injury’ on October 9, 1943. We cannot agree with this contention, because, under the statute as above interpreted, the question before the department was, what per cent, of vision did plaintiff have in his left eye before the injury? It is clear that if he had less than 20 per cent, of vision before the injury, he did not have an eye to lose within the meaning of the statute.”
Hence, the appellant argues that the identical question now before us, although in reverse, was presented in the Marrs Case, supra. In that case, Marrs had suffered an injury to his right eye, a cataract developed which had been removed, and Marrs had at least 20 per cent, vision in the injured eye by using glasses. However, with the use of the corrective lens, the plaintiff did not have co-ordinated vision. As in the case at bar, he had only the use of one eye at any one time. All of this'had occurred prior to the effective date of the 1943 amendment. Subsequently he suffered an accident to the injured eye, after the effective date of the 1943 amendment, causing a total loss of vision in said eye. The commission held that the plaintiff “did not have an eye to lose” at the time of the accident, and denied him compensation for the loss of an eye. This Court set aside the denial of the award, and allowed compensation; i.e., in effect holding that he then did have “an eye to lose.” It was apparent that after the injury, which occurred after the 1943 amendment, the plaintiff did not have 20 per cent, of vision left in the injured eye, either with or without corrective lens. We held that total loss of vision of this one eye, at that time, entitled him to compensation. Appellant points out that as a result of our holding in that case the plaintiff, who had more than 20 per cent, corrected vision in the injured eye, but without co-ordination, still had an eye to lose; and from such result in that case appellant now argues that in the case at bar, where the plaintiff still would have 20/40 corrected vision by the use of a cataract lens, even though without co-ordination, he still now has “an eye to lose” within the meaning of our decisions, wherefore it cannot now be said that plaintiff has lost an eye by the accident herein referred to.
The crux of appellant’s reasoning is as follows: If plaintiff should later lose completely and permanently the sight in his right eye, he would still have an “eye to lose” inasmuch as he would still have his left eye with 75 per cent, vision, by use of a cataract lens, with no necessity then for co-ordination. From that premise, appellant argues that plaintiff might ultimately obtain compensation for the loss of three eyes, if at some later time he again lost 80 per cent, use of his left eye.
It must be admitted that there is a measure of logic in such argument, assuming that the 1943 amendment be construed in consonance with appellant’s theory. However, there is no merit in the result which would follow. In the Marrs Case, compensation was awarded for the specific loss of an eye. Such compensation had not been previously awarded to that employee for the loss of that eye. In the case at bar, the employee has not yet had compensation for the specific loss of his left eye. In the final analysis, an employee who has suffered 80 per cent, loss of vision of one eye, since the 1943 amendment, has suffered the total loss of that eye and is entitled to compensation. It is the injury to an eye, resulting in 80 per cent, loss of vision in the eye itself, for which the statute now allows compensation for the specific loss of an eye. It is hardly conceivable that an employee who had been awarded compensation for the specific loss of an eye, before corrective lens had been put to use to result in more than 20 per cent, vision in the injured eye, would again be awarded compensation for loss of the same eye, which might result from an injury to the same eye after the correction. Certainly an employee would not be entitled to compensation twice, for the specific loss of the same eye'. Notwithstanding anything said in our previous opinions, nothing in the present act would justify a conclusion that an accident to or the loss of a cataract lens would be considered as the loss of an eye. Nor should an employee who sustains an injury to an eye resulting in 80 per cent, loss of vision therein be denied compensation for the specific loss of an eye until such later time as corrective vision, which might be obtained by use of a cataract lens, be lost either by inability to obtain a cataract lens, or an injury to or the loss of such cataract lens. Nothing in previous decisions of the Court should be construed to deny compensation for the first time, since the 1943 amendment, where “80 per cent, loss of vision of 1 eye” is shown. The 1943 amendment declares that it “shall constitute the total loss of that eye.”
The commission has found that plaintiff has suffered the loss of an eye, within the meaning of the 1943 amendment, by an injury arising out of and in the course of his employment by the defendant. There is competent testimony to support the award.
The award is affirmed, with costs to appellee, and the case remanded.
Sharpe, C. J., and Bushnell, Reid, North, Butzel, and Carr, JJ., concurred with Boyles, J.
Dethmers, J., concurred in the result.
See PA 1912 (1st Ex Sess), No 10, pt 2, § 10 (CL 1929, §. 8426 .[Stat Ann § 17.160]).
The powers and duties of the industrial accident board, here referred to, are now vested in the workmen's compensation commission. See CL 1948, §§ 408.1, 408.6 (Stat Ann 1947 Cum Supp §§ 17.6[1], 17.6[6], — Reporter.
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Carr, J.
This is an appeal from a decree of the circuit court of Wayne County approving a settlement of a controversy with reference to the construction of certain provisions of the will of Frederick G. Clayton, deceased. Mr. Clayton died on the 24th of May, 1946. The will in question was admitted to probate by the probate court of Wayne County, which action was affirmed by the circuit court, and by this Court in Re Clayton’s Estate, 320 Mich 152.
The testator provided in the will for the creating of a trust for the benefit of certain named individuals and for the gift of stock owned by the testator in the F. Gr. Clayton Company to employees who were actively engaged in carrying on the business at the time of Mr. Clayton’s death. Among the employees named in the will was the defendant James H. Neubauer, referred to in the will as testator’s nephew, who was also one of the principal recipients of the income arising from the trust property. He was not in the employ of the company, however, at the time the testator died, which fact resulted in certain questions being raised as to his rights under the will.
An explanation of the situation out of which the case arises requires references to, and somewhat extended quotations from, the will and,- also, the agreement. Paragraphs 9 and 12 of the will, which are directly involved in the present controversy, are as follows:
“Paragraph 9: It is my wish and intention, and I so direct, that the business of the F. G-. Clayton Company, which business I founded, shall be carried on after my death so long as the same shall be deemed profitable by my trustees, as hereinafter more fully set forth, and I create the trust in this paragraph for the protection of those of my faithful employees who now own stock or who may hereafter acquire stock by purchase or otherwise, and in protecting my own interest in said business.
“(A) Subject to the prior gifts of stock hereinbefore made, I therefore give, devise and bequeath to the Security Trust Company, of Detroit, and to Samuel T. Douglas, of Detroit, Michigan, all of the capital stock that I may own in the F. G. Clayton Company at the time of my decease, In Trust nevertheless, for the purpose herein set forth. And I direct my trustees, in conjunction with those of the company’s employees who may own stock in the F. G. Clayton Company, to carry on the business now carried on by the F. G. Clayton Company for a period of 20 years or until such time as my said trustees shall think fit and wise, according to their best judgment, to dispose of my interest as represented by said stock in said business, and for that purpose I authorize my said trustees to retain and employ therein the capital which at my death will be represented by the stock that I then hold in the F. G. Clayton Company. In order that the said F. G. Clayton Company may have the proper financial backing which it now has by reason of my interest therein, I authorize my said trustees to let the income from my stock accumulate in their hands as dividends may be from time to time paid until said sum shall amount of [to?] $250,000; and I further direct and anthorize my executor to turn over to said trustees securities out of my general estate or to sell the said securities as they may deem best for that purpose to the amount of $250,000, which fund together with the accumulations from income coming from my interest in said business as a stockholder I authorize my said trustees to loan from time to time to the said F. G-. Clayton Company, during the period of this trust, and to use said fund in such amounts as will be necessary to continue and maintain the credit of the F. G. Clayton Company, taking from the F. G. Clayton Company for such advances, notes or other obligations in the name of said trustees, the avails of which notes when paid shall continue or be part of the trust herein created.
“I give to my said trustees full power and authority to vote such stock for all purposes, and further to indorse or guarantee any note or obligation that it may be necessary to give in the usual conduct of the business of said company, but not to exceed the amount of said accumulations plus the fund herein directed to be turned over by my executor to the trustees as in this paragraph provided. And whenever necessary they are hereby authorized to use said securities as collateral to any indorsement of any paper or loan that they may make to the F. G. Clayton Company to the amount mentioned. As such funds may accumulate from the profits of the business, I authorize my said trustees to invest in safe interest-bearing bonds such as are permissible for savings banks in the State of Michigan, my intention being to leave it to the discretion of my said trustees to permit the whole or any part of the sum due to my estate as my share or interest in the F. G. Clayton Company to remain in said business for such period as they may think proper, either at the fixed rate of interest or at the rate varying with or dependent upon the profits of the business, and from time to time to renew or continue any note or loan of the F. G. Clayton Company that they may make to the said company.
“(C) I give to my said trustees power to act in all matters relating to said business as if they were beneficially entitled thereto, with power to delegate all or any of the powers vested therein in relation to said business to any person or persons whom they may think fit, having in mind at all times the best interests of my estate, together with the best interests of all the employees of said company who may at the time of my death or later be stockholders in said company; and I further declare that in case my said trustees shall at any time be of the opinion that said business cannot be continued to the advantage of my estate, they shall be at liberty and hereby directly authorized to sell or dispose of the stock so owned by me and so held in trust, giving first to all employees who may then be stockholders the right to purchase in proportion to their holdings said stock then held in trust, at the then book value thereof, provided said employee shall then be in the employ and practically and personally interested in the said F. G. Clayton Company. Said right, however, to purchase said stock shall not be assignable in any manner. For the purpose of protecting the interest of all employee stockholders, as well as my own interests, I direct that any stock, either belonging to me or so held in trust, which may be sold to any employee, shall bear the same indorsement as to the right to purchase as is referred to and fully set forth in subclause (E) of this paragraph. And I give to my trustees full power and authority to sell or dispose of at any time to any employee who has shown proper interest in the conduct of said business any of the stock so held by me at the time of my decease and so held in trust, as they may think advisable, giving to my said trustees full power and authority to repurchase any stock that I or my estate may have a right to purchase under the paragraph indorsed on said stock so held by any employee.
“(D) Provided always, and I hereby declare, that if the trustees herein constituted, or either of them, shall for any reason whatsoever be unable or unwilling to act as such trustee in carrying out the trusts herein mentioned, then I request that the probate court for Wayne county appoint a suitable person, satisfactory to the surviving trustee and at his or its request, to act in the place of said trustee, who shall be vested with all the powers, duties and obligations herein given. Upon the appointment of such cotrustee, it is my urgent request that the person so appointed shall be some person best acquainted with my business, and upon the appointment the trust property shall, so far as the nature of the property or other circumstance shall require, be considered as transferred to the trustee than [then?] acting so that the same power and authority as herein contained may be vested in the person or persons for the time being, and every trustee when appointed as aforesaid, as well before as after such transfer of said property, may act and assist in the execution of the trust and powers of this my will as fully and effectually as if I hereby constituted him such trustee.
“(E) All of the certificates of stock of the F. U. Clayton Company now held or which hereafter may be held by the employees shall have indorsed thereon the clause providing:
“ ‘This certificate of stock is sold or issued and accepted with the express understanding and agreement that if at any time, for any cause whatsoever, the said............... shall cease to be in the employment of the F. G. Clayton Company, then the said vendor, F. G. Clayton, his heirs, administrators, executors or assigns, shall have the right and option, for a period of 60 days from the date when said employment ceases, to purchase said stock by paying therefor the book value thereof at the date of the termination of said employment as shown on the books of the company.’
“I expressly give to my said trustees power aud authority to carry out the provisions of this indorsement and to purchase any stock that may come within the terms of said restriction mentioned, and to pay therefor in cash and to charge the same against any trust funds that may be in their possession.
“(F) At the expiration of said trust, or whenever the same shall be terminated, or if my interest as represented by capital stock in the F. Gr. Clayton Company shall for any reason be sold, then all of the trust funds so held in trust, together with any accumulations thereon arising out of the dividends or otherwise, shall be given by my said trustees to my residuary legatees and devisees as herein mentioned, and I give to my said trustees full power and authority to make, execute and deliver any conveyance or any other instrument that may be necessary or, in the option of my trustees, advisable for the purpose of carrying out this trust. * * *
“Paragraph 12: Subject to the provisions heretofore made in this will, I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal or mixed, and wherever the same may be situated, to the Security Trust Company, of Detroit, Michigan, In Trust, for the lives of Caroline O. Donohue, my sister, and James H. Neubauer, my nephew. I direct that the net income from said trust property shall be paid one-half to my sister during the term of her natural life, to be paid to her at least quarterly or more often if necessary and advisable, and the other one-half of the net income from said trust property I direct shall be paid to my nephew, James H. Neubauer, during the term of his natural life, to be paid to him at least quarterly or more often if necessary and advisable. On the death of either of said beneficiaries the one-half interest so held in trust for the deceased beneficiary shall be continued in said trust property for the benefit of the surviving beneficiary, the net income of the whole trust property to be paid to her or him as herein provided, the intention being that the property so held in trust shall continue to be held in trust for the lives of the two persons mentioned in this paragraph. On the death of both of said beneficiaries, Caroline 0. Donohue and James H. Neubauer, all of the property so remaining in trust I give, devise and bequeath one-half to the legal heirs of Caroline 0. Donohue, share and share alike, and the other half to the heirs of James H. Neubauer, share and share alike.
“I give to my said trustees full power and authority to manage said trust property and to improve the same if in the judgment of said trustees it is wise so to do; and if such improvements require additional funds, to borrow money for the same and give security therefor by way of mortgage; if a mortgage shall become necessary to make such improvements then the income from said trust property shall, for the time being, be retained by said trustees to pay the principal of said mortgage. And I give to my trustees full authority to sell, convey or exchange the said trust property, to make and execute all necessary conveyances therefor, and to invest and reinvest and exchange any of said trust property during the life of this trust.”
The will further nominated the Security Trust Company of Detroit as executor thereof. Said corporation was succeeded by the Detroit Trust Company, which is now acting in that capacity. It further. appears that James H. Neubauer is still living but that testator’s sister, whose correct name, it is conceded, was Caroline O’Donohue, was not living at the time of Mr. Clayton’s death.
The settlement agreement in question was entered into between Mr. Neubauer, as the party of the first part, the heirs of Mrs. O’Donohue, as parties of the second and third parts, and the Detroit Trust Company as executor and sole surviving trustee under the will. It further appears that Samuel T. Douglas, the other named trustee, is deceased, and the agree- meat designated his successor, Harold B. Desenberg, as a party to the agreement, together with the duly appointed guardian ad litem “of the unborn, undetermined, unascertained, unknown, contingent, incompetent and unascertainable beneficiaries of the trusts provided by paragraphs 9 and 12 of the last will and testament of Frederick G. Clayton, deceased, and of the present and future, unknown, unborn, unascertained, undetermined, contingent, incompetent and unascertainable heirs at law of Caroline O’Donohue and of James H. Neubauer, and of all .inalienable and future contingent estates and interests which may be affected hereby.” The decree of the trial court named Mr. Desenberg as trustee, in accordance with the agreement of the parties. Said trustees and the guardian ad litem previously appointed were expressly authorized to join in the settlement agreement.
The bill of complaint by which the approval of the agreement was sought was filed by the Detroit Trust Company as executor -and trustee, and by Harold B. Desenberg as substitute cotrustee under the will. Said bill, after referring to the probate proceedings and the parties alleged to be interested under the will, alleged that a good-faith controversy had arisen with reference to the construction, validity, and effect of the will, and of certain provisions thereof, and of the rights and interests of the defendants as beneficiaries. A further controversy as to the administration of the estate and of the trusts created by the will was also averred, it being’ claimed that litigation involving such matters had been instituted. The court was asked to approve the submitted agreement and to authorize its execution by those parties subject to the direction of the court, in accordance with CL 1948, § 702.45 et seq. (Stat Ann § 27.3178[115] et seq.). The settlement agreement, after reciting the controversies between the parties with, reference to the construction of the will and the administration of the trusts created thereby, and also other matters not directly involved in this controversy, provided for the distribution of income from the estate as follows:
“3. That exhibit A attached hereto is a correct condensed statement of the income from the estate of said decedent from the date of his death to January 1, 1948, and that all of said net income in the sum of $167,849.87 shall be distributed 75 per cent., or $125,887.40, to first party, and 25 per cent., or $41,962.47, to said second and third parties, of which said 25 per cent., 1/7 shall be paid to each of said second parties and 1/56 shall be paid to each of said third parties.
“4. That the entire net-income from the estate of said decedent, and from the trusts created pursuant to his last will and testament during the lifetime of said James H. Neubauer, except the income mentioned in the last preceding paragraph, shall be accounted for by the executor of said estate, and by the fiduciaries of said trusts in accordance with the same general accounting practice used in determining the income for the period ended December 31, 1947, and all of such net income shall be distributed as hereinafter set forth, subject to the rights of the trustees to use such income to preserve, protect or improve any property in said estate or in said trusts, as hereinafter provided.
“5. That during the lifetime of James H. Neubauer, the distribution of the net income shall be made quarterly, as follows:
“(a) The first $7,500 each quarter-annual period to James H. Neubauer;
“(b) The next $7,500 each quarter-annual period to the parties of the second and third parts ;
“(c) 50 per cent, of the excess quarter-annual income over and above the amount distributed pursuant to (a) and (b) to James H. Neubauer;
“(d) The entire balance of the net income to the parties of the second and third parts.
“The income payable to the parties of the second and third parts, as set forth in subsections (b) and (d) of this paragraph 5, shall be divided and distributed 1/7 to each of said second parties, and 1/56 to each of said third parties. In the event of the death of James H. Neubauer prior to the termination of any quarter-annual period, then the distribution of the income for that quarter-annual period under (a) and (b) above shall be reduced to the same proportions that the number of days included in such quarter-annual period to the date of his death bears to the total number of days in the entire quarter. The distribution hereunder for the six-months period ended June 30, 1948 shall be made on the basis that 1/2 of the net income during such period was received in each of the quarter-annual periods included therein.
“6. That following the death of the said James H. Neubauer the entire net income from any of the trusts which are not thereby terminated, determined in the manner above set forth, shall be paid and distributed 1/2 to the heirs of James H. Neubauer, and the remaining 1/2 to the parties of the second and third parts to be divided among them 12/112 to each of said second parties, and 5/112 to each of said third parties.
“7. In view of the provisions herein made for distribution of the entire income from said estate and trusts, and in contemplation of the possible necessity or advisability of providing funds for the preservation, protection and improvement of the property, assets and corpus of said estate and trusts, the trustees may, in the event that funds are not readily available or obtainable on favorable terms from any other source, withhold from the distribution of income a sufficient amount to pay such costs, charges and expenses and deduct such amount from the income otherwise distributable to the parties entitled to receive the same in the same proportions that their respective shares may bear to the aggregate of the distributable income, and such amounts shall be appropriately credited to each of said parties as deferred income, payable to them if and as funds for such purpose become available; provided, however, that prior to making any such deduction from distributable income, the trustees shall file a petition with the Wayne county probate court, or any court which may succeed to the jurisdiction of that court, requesting approval of such action, and they shall give notice of the date set for hearing thereon to each person then entitled to share in the distribution of income from said estate or trust by registered mail, directed to the last address designated by such persons in the manner hereinafter set forth.”
The agreement also made provision for the distribution of the principal of the trusts on the termination thereof in accordance with the will, specifying in this connection that the rights of the heirs of Mrs. O’Donohue became vested as of the death of Frederick G-. Clayton. It was also provided that the provisions of paragraph 9 of the will should be deemed to be satisfied by the transfer to the trustees of securities having a face or market value of $250,-000, such securities to be selected by the trustees from the general estate, and that the income therefrom should be distributed in accordance with the provisions above quoted relating to the income from the trust created by paragraph 12 of the will.
On the filing of the bill of complaint an order to show cause directed to the defendants was issued on August 16, 1948, in accordance with the prayer of the bill. On the same day an order was entered appointing Gerald Kane as guardian ad litem for the various persons, classes' of persons, and interests, for the protection of which such appointment was requested by the plaintiffs, as hereinbefore set forth. Following his appointment the guardian ad litem filed a report discussing at some length the various provisions of the agreement, particularly with reference to the distribution of the income from the estate.
On November 26, 1948, Louis A. Archambeau, a nephew of James H. Neubauer, filed objections to the settlement agreement, alleging therein that the guardian ad litem was not authorized to represent or appear for him and that he claimed a vested estate or at least a contingent interest in all of the property contemplated by the trusts created by the will. 'He made specific objection also to the payments of income to James H. Neubauer in accordance with the agreement, asserting that Mr. Neubauer was not entitled thereto. Mr. Archambeau is the son of Mr. Neubauer’s sister, who died subsequently to the death of Mr. Clayton.
On the hearing of the matter before the trial court it was urged on behalf of Mr. Archambeau that he was a necessary party to any settlement of controversies arising in connection with the probating of the will of Mr. Clayton or the administration of the trusts created thereby. The trial court, however, rejected such claim, and entered a decree approving the proposed settlement. As the provisions of such decree indicate, it was expressly found by the trial judge from the testimony offered on the hearing that a good-faith controversy existed with reference to the construction of the will, and that the defendants named in the suit comprised all who were affected by such controversy. Archambeau has appealed, relying on the claims advanced by him before the circuit court.
It is the position of the appellees that the settlement agreement and all proceedings taken in connection with the approval thereof by the decree of the trial court were in accordance with the statutory provisions above cited, commonly referred to as the Dodge act, now contained in the probate code. That a good-faith controversy existed at the time of the agreement is scarcely open to question. It has been the policy of this State for many years to regard favorably the settlement of litigation in situations of the nature here involved. Thus in Layer v. Layer, 184 Mich 663, it was said:
“The courts, as a general rule, favor the settlement of disputed matters and controversies, and more particularly are the settlements of disputes among those interested in the estates of deceased persons favored. It is a well-settled rule of law in this State and many other States that a promise to forbear the contest of a will, when made in good faith, is a sufficient consideration to support a contract. Conklin v. Conklin, 165 Mich 571, 580.”
To the same effect is Baas v. Zinke, 218 Mich 552, where the following language was used:
“Settlement of family difficulties or controversies arising out of the distribution of estates are favored, both at law and in equity, if at all reasonable and entered into understandingly.”
The Dodge act sets forth a definite method of procedure in accordance with the principle declared in the Layer Case. Its purpose and scope is clearly indicated by its title as originally enacted (PA 1921, No 249), which read as follows:
“An Act to provide for the compromise, settlement or adjustment of any contest of the probate of any instrument propounded for probate as the last will of a deceased person or of any controversy arising concerning the interpretation, effect or validity of any such instrument, or arising in the administration of an estate under a will or under a trust created by a will, when there is or may be any per son interested who is a minor or otherwise without legal capacity to act in person or whose present existence or whereabouts cannot be ascertained, or when there is ¿ny inalienable estate or interest or future contingent estate or interest which will or may be affected by such compromise, settlement or adjustment.”
Section 2 of the act requires the appointment of a guardian ad litem to represent minors, interested persons whose whereabouts or present existence cannot be ascertained, and, in proper cases, to represent future contingent interests and trusts. The legislature also saw fit to include in the final section of the act (section 4) as originally enacted a declaration that, if necessary to its validity or operative effect, it should be regarded as a grant of power and jurisdiction. The intent is manifest. The rights of all interested in an estate who are under disability to represent themselves, and all interests of such a nature that those who will be the ultimate recipients may not be in being or cannot be ascertained, shall be protected by the court through the guardian ad litem. Such representation does not preclude, nor is it inconsistent with, further representation by a trustee, or by others having like interest with the one so represented. Certain phases of the Dodge act were under consideration in Re Marxhausen's Estate, 247 Mich 192; Rose v. Southern Michigan National Bank, 255 Mich 275; and Dodge v. Detroit Trust Co., 300 Mich 575. See, also, Metzner v. Newman, 224 Mich 324 (33 ALR 98), and In re Milner’s Estate, 324 Mich 269. In the Rose Case it was said:
“That an equity court has the power under our statute to modify a trust or in some circumstances to extinguish, it entirely with or without the consent of the trustee, there can be no doubt.”
The court further pointed out that some trusts are of such nature that they may not be terminated until their objects and purposes have been accomplished. The case came within the exceptions, the trust being a “spendthrift trust”. In the Dodge Case, p 614, it was held that “where a doubt as to what the law is has been settled by a compromise, a subsequent judicial decision by the highest court of the jurisdiction upholding the view adhered to by one of the parties affords no basis for a suit by him to upset the compromise.” The prior decisions of the court in cases arising under the Dodge act indicate that the construction placed on its provisions is in keeping with the purpose sought to be accomplished.
Has the appellant such an interest under the will of the decedent that a valid settlement agreement in accordance with the provisions of the Dodge act may not be made except with his concurrence? It is his claim in substance that he has a vested interest acquired by inheritance from his mother who, as above noted, was living at the time of Mr. Clayton’s death. Appellees contend that Archambeau has merely a possibility of an interest, that the heirs of James H. Neubauer cannot be determined until his death, and that it may not be assumed at this time that appellant will be one of such heirs and as such entitled to share in the distribution of the trust under paragraph 12 of the will. It is insisted in consequence that the interest that appellant has is a mere possibility of sharing in the distribution of property in the trust created by paragraph 12 of the will, that the persons who will on the termination of said trust receive the property therein were properly represented by the guardian ad litem, and that such rep- reservation is in accord with the letter and the spirit of the Dodge act.
The suggestion is made by counsel for appellant in his brief that the will of Mr. Clayton should be construed as indicating an intent on his part that the residuary beneficiaries under the trust should be determined as of the time of his (Clayton’s) death, and that the “heirs presumptive .or apparent” of James H. Neubauer and of Mrs. O’Donohue were intended to take vested estates or interests as of such time. With this contention we are unable to agree. The language in the will does not tend to support it. Under the specific provisions title to the property did not vest in testator’s heirs, or in the heirs of James H. Neubauer and Mrs. O’Donohue, but rather in the trustees named in the will. Hay v. Hay, 317 Mich 370, 408. Distribution is required to be made to those entitled thereto at the. termination of the trust. It is, of course, within the range of possibilities that James H. Neubauer may leave children surviving him who, with his widow, will be his heirs. Whether the appellant will be one of those entitled to share in the distribution of the assets in the trust as provided in the will is wholly speculative.
It has been recognized in prior decisions of this Court that a person having such an interest in an estate as entitles him to contest a will may enter into an agreement to forbear from making any such contest. Sellers v. Perry, 191 Mich 619, 627; Hansbarger v. Hansbarger, 206 Mich 281. We do not think that appellant in the present case had such an interest. He could not, in other words, have contested the will. Butts v. Ruthven, 292 Mich 602. See, also, Annotation, 149 ALR 1270; 57 Am Jur, p 548 et seq.
It is conceded that under paragraph 9 of the will the trustees designated therein had discretionary authority to accumulate income from the stock in the F. G. Clayton Company to the extent of $250,- 000, or to decline to follow such, course if they did not think it desirable. Greenawalt’s Estate, 343 Pa 413, 417 (21 A2d 890). The Detroit Trust Company, successor trustees to the Security Trust Company, and Mr. Desenberg as successor to trustee Samuel T. Douglas, have indicated their belief that the accumulation of dividends on the stock is not required for the protection of the business of the F. G. Clayton Company. There is no suggestion that such conclusion was not reached in good faith.
As noted at the outset, the Detroit Trust Company as executor and as trustee filed the bill of complaint seeking the approval of the settlement agreement, and Mr. Desenberg also appears as a party plaintiff. It will also be borne in mind that the Detroit Trust Company is sole trustee under the provisions of paragraph 12 of the will. It does not appear that either trustee has any interest under the will other than in a representative capacity. It must be assumed, therefore, that their action in the proceeding was taken on behalf of the respective trusts created by paragraphs 9 and 12 of the will, and the beneficiaries and interests contemplated thereby. It thus appears that such beneficiaries, including appellant if he survives James H. Neubauer and is one of his heirs, were represented in the making of the agreement and in the subsequent proceedings not only by the guardian ad litem but by the trustees also. In discussing a somewhat analogous situation, the supreme court of Illinois in Easton v. Hall, 323 Ill 397, 424 (154 NE 216) said in part:
“The general rule that the interest of parties not before the court will not be bound by the decree is subject to the exception of the case where a party, though not before the court in person, is so far represented by others that his interest receives actual and efficient protection. The doctrine is especially applicable where the .persons who are not before the court are only possible parties not in being and where the interest of all parties requires a decree which will completely and finally dispose of all the subject matter of the litigation. In such cases the doctrine of representation has been recognized, by which, if persons are before the court who have the same interest and are equally certain to bring forward the entire merits of the question so as to give the contingent interests effective protection, the court will render a complete decree, which will be binding upon the contingent interests in revertion or remainder. This doctrine was announced in Hale v. Hale, 146 Ill 227 (33 NE 858, 20 LRA 247), and was followed in McCampbell v. Mason, 151 Ill 500 (38 NE 672), and Longworth v. Duff, 297 Ill 479 (130 NE 690). In the last case it was applied to living persons who were contingent remaindermen in case of the death of a life tenant without descendants surviving him. The cousins of the testatrix are in precisely the same situation as the nephew and niece and the grandnephews and grandnieces, except that they are one or two degrees further removed. The protection of the previous estates necessarily inures to the benefit of the contingent interests of the cousins, and they are within the doctrine of representation as it has been heretofore decided.
“The possible widow of Charles S. Easton, other than his present wife, is necessarily an unknown person and her interest contingent. Unborn children cannot be made parties to litigation or their contingent interests bound by the result of litigation to which they were not parties and in which they were not represented. (Mortimore v. Bashore, 317 Ill 535 [148 NE 317].) This contingent future interest, —a mere expectancy in the trust estate, — would not require the impossibility of making the holder a party to every suit the trustees might be called upon to bring or defend in order to preserve their trust. As was said in American Bible Society v. Price, 115 Ill 623 (5 NE 126): ‘The title is in the trustees, and the duty is imposed upon them to protect and preserve this interest for whomsoever shall be ultimately entitled to it. They are parties to the suit, and they stand for and represent, in this litigation, the ownership ultimately entitled to this fund, and such ownership is bound by their representation.’ Green v. Grant, 143 Ill 61 (32 NE 369, 18 LRA 381); Temple v. Scott, 143 Ill 290 (32 NE 366).”
The language above quoted by the Illinois court may, we think, be properly applied to the situation in the case at bar. It is the duty of the trustees under the will to protect the interests of all who are or may be beneficiaries under the trust provisions of the will. Easton v. Hall, supra, was followed in Northern Trust Co. v. Thompson, 336 Ill 137, 157 (168 NE 116). In Geiger v. Geer, 395 Ill 367, 381 (69 NE2d 848) it was said:
“Despite the age of Thomas L. Geiger, a prophesy as to who his heirs-at-law will be upon his eventual death would be sheer speculation in which we decline to indulge.”
Geiger v. Bardwell, 255 Ill 320 (99 NE 582), may be differentiated on the facts from the other decisions by the Illinois court on the ground that the interests of contingent remaindermen, involved in the suit, were not represented by anyone. A similar situation was involved in Crow Creek Gravel & Sand Co. v. Dooley, 182 Ark 1009 (33 SW2d 369).
The supreme court of Missouri in Naylor v. McRuer, 248 Mo 423, 467 (154 SW 772) pointed out the difficulty involved in determining who will ultimately be the heirs of a living person, saying in part:
“If the law does not require an unborn child to be a party, then how could it require in this case the natural heirs of Mrs. Olmstead and Randall B. Naylor to be parties? The taking of the fee depends upon the contingency, both of the prior death of Lucy Naylor and upon the prior death of either Elite Olmstead or Randall B. Naylor. When these deaths shall occur who can say who will be the natural heirs of Mrs. Olmstead and Randall B. Naylor? The four presently living children of the two latter persons may all be dead, and another four, or even another dozen, may then be in esse.”
In the case at bar those who will participate in the distribution of the trust fund under paragraph 12 of the will cannot be ascertained until the death of James H. Neubauer. At the present time he has no heirs. Certain persons, including the appellant, may perhaps fall in that' category but we cannot guess or speculate that such will be the fact. Those who will be the ultimate recipients of the testator’s bounty under the trust were represented by the trustee in the making of the settlement agreement, and subsequently thereto by the trustee and the guardian ad litem. As before noted, there is no claim of fraud. Under the circumstances appellant may not claim that he has been deprived of any right to which he was entitled. The proceeding followed the express provisions of the Dodge act, and each step requisite to due process of law was observed. The settlement agreement was not invalid because appellant did not join in its execution.
Appellant further seeks to question the fairness of the settlement agreement, claiming in substance that James H. Neubauer will benefit thereunder at the expense of the ultimate beneficiaries under the trust. It appears, however, .that Mr. Neubauer’s rights were challenged in the litigation that brought about the execution of the agreement. It appears that he was -not an employee of the F. Gr. Clayton Company at the time of the testator’s death. The record does not contain the pleadings in- that litigation. Neither have we any detailed statement indicating the precise issue. However, the finding of the trial judge that a “good faith” controversy existed is not challenged. In the agreement certain concessions were made to the heirs of Mrs. O’Donohue, apparently in derogation of the rights of Mr. Neubauer. That it was for the benefit of all parties interested in the estate, presently or prospectively, to avoid litigation that might perhaps prove expensive and protracted is obvious.
The provisions of the will with reference to the disposition of a portion of the income were lacking in certainty and definiteness. Counsel for appellees indicate the situation by the following statement in their brief:
“There is no provision in paragraph 9 of decedent’s will for distribution of income from the Claytion Company stock over and above the dividends which might be accumulated, nor for the distribution of income from securities having a face value of $250,000 which were to be held by the trustees nominated under that paragraph. This deficiency would provide fertile ground for litigation.”
The question was presented, in consequence, as to the rule that should be adopted to govern the distribution, assuming that the testator intended that it should be disposed of under the will. Obviously the parties ultimately agreed to accept the theory of the so-called Massachusetts rule, and to provide for payment to the life beneficiaries. Counsel agree that whether such rule is preferable to the rule formerly followed by the New York courts, under which income derived from property that is used in the payment of legacies and administration expense is to be added to principal and ultimately distributed accordingly, has not been settled in this State. It is unnecessary in this case to pass on the conflicting theories. For the purposes of the agreement the parties adopted the theory favoring the life beneficiaries, and all parties to such agreement, including the various interests represented thereby, are bound. Dodge v. Detroit Trust Co., supra (p 614). We concur in the holding of the trial court that the agreement was fair from the standpoint of all parties concerned.
The conclusions reached with reference to the questions above discussed are decisive of the case. It is unnecessary to discuss other matters which counsel have raised in their briefs and on the oral argument. The decree of the trial court is affirmed, with costs to appellees.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Dethmers, and Butzel, JJ., concurred.
PA 1939, No 288, as amended (CL 1948, § 701.1 et seq. [Stat Ann 1943 Rev § 27.3178(1) et seq.]).
Re-enacted as PA 1939, No 288, ch 2, § 46 (CL 1948, § 702.46 [Stat Ann 1943 Rev § 27.3178(116)]). — Reporter.
See PA 1939, No 288, ch 2, .§ 48 (CL 1948, § 702.48 [Stat Ann 1943 Rev § 27.3178(118)]). — Reporter. | [
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Bushnell, J.
(for affirmance). Plaintiff Ronald Kaiser, then 5 years and 8 months of age, was struck by an automobile driven by defendant Nelson Good-en on the Bolt highway, also known as Apple avenue. The accident occurred about 1:30 p.m. on March 27, 1946. This through highway between Grand Rapids and Muskegon has a 22-foot pavement with 6-foot gravel and clay shoulders on either side.
Gooden was traveling at a speed between 35 and 45 miles per hour in a westerly direction, with nothing to obstruct his vision for over 500 feet. He first saw Ronald at a distance of about 150 to 200 feet, standing about 4 feet north of the pavement, on the shoulder, facing north, with another boy who was facing south. While Gooden was watching them and as he approached closer, Ronald whirled around and ran in front of Gooden’s car. Gooden testified that the day was clear, the pavement dry, and that his brakes and horn were in good condition.
Just before the accident a little girl was standing-near a mail box on the south side near the highway. Gooden said he took his foot off the accelerator as he approached the boys and, when Ronald darted into the road, he applied his brakes and swerved a little, but was unable to avoid the accident. Ronald was struck by the front of the Gooden car between its headlight and grill, and was thrown to the center of the road. The Gooden car stopped within 20 or 25 feet and Ronald was put in another car and taken to the hospital.
Ronald, who was severely injured, was on his way to school. He remembered running across the pavement and that he looked when he got to the center of the highway and said he did not see any car coming. He admitted running with his head down.
The only eyewitness who testified, other than Mr. and Mrs. Gooden, was Mrs. Jean Post, who lived in the neighborhood and who was driving her car in the opposite direction of the Gooden car. She noticed the boys and the speed of the approaching car and saw Eonald run ont and said she knew he was going to be hit. She screamed bnt without avail. She testified that Eonald “turned around and darted on the highway” when the Gooden car was “nearly right there,” and that she was only about 40 feet from the point of impact.
On his direct examination, Gooden said in part:
“I knew there were boys on my right hand side. I didn’t take my attention off the boys long enough to take a good look at the little girl on the other side of the road and then looked back to see the boy in-front of my car. I didn’t tell people after the accident that I had looked at this little girl at the mail box on my left and when I looked back the little boy was in front of my car. That isn’t what happened.”
At the close of plaintiff’s testimony the court denied defendant’s motion for a directed verdict for the reason that 1 witness stated that Gooden admitted “that his attention and gaze was attracted to a girl mailing a letter, and when he looked back, the child was right in front of him.”
The court permitted a re-argument on the motion after making this statement and then took the motion for directed verdict under advisement.
After the jury’s verdict of $5,000, plaintiff’s motion, together with one for a judgment notwithstanding the verdict was considered and granted, the court relying on Braxton v. Gazdecki, 255 Mich 518. In granting the judgment non obstante veredicto the trial judge said:
“The court has carefully reviewed the stenographic record of the proceedings had on the trial -of the cause and the decisions cited by .counsel for the respective parties in their briefs. I am of the opinion that though the evidence be reviewed in the light most favorable to plaintiff, it nevertheless fails to establish that defendant was negligent in any of the respects alleged against him and that he was therefore free from negligence as a matter of law. To -hold otherwise would, in effect, require defendant to have operated his motor vehicle in such a manner as to have guaranteed the safety of the plaintiff. The law does not require defendant to exercise more than ordinary care in the operations of his motor vehicle and the evidence does not warrant the conclusion or inference that he failed so to do.”
The record does not show that the withdrawal of Gooden’s attention from the boys was the proximate cause of Ronald’s injury. It shows rather that the proximate cause was Ronald’s sudden and unforeseen action in darting into the path of Gooden’s automobile at a time when it was so close to him that Gooden was powerless to prevent the accident.
The situation is not unlike that disclosed in Colvaruso’s Guardian v. Stroh Brewery Co., 301 Mich 245, and the law as stated there and in Braxton v. Gazdecki, supra, is applicable.
The testimony in the instant case requires a concurrence in the conclusion reached by the trial judge, and we observe here, as we did in Foster v. Rinz, 202 Mich 601, that—
“One cannot read this record without being overwhelmingly convinced that this was a mishap pure and simple, and that there was nothing done by the driver which caused the accident and nothing he could have done to have prevented it.”
The judgment is affirmed, with costs to appellee.
Reid, North, and Butzel, JJ., concurred with Bushnell, J.
Dethmers, J.
(for reversal). I do not concur in Mr. Justice Bushnell’s opinion.
Although there is testimony in the ease in behalf of the defendant to the effect that, as stated in Justice Bushnell’s opinion, plaintiff darted “into the path of Gooden’s (defendant’s) automobile at a time when it was so close to him that Gooden was powerless to prevent the accident,” to adopt that version is to accept the evidence most favorable to defendant and reject evidence and reasonable inferences therefrom favorable to plaintiff. This being an appeal from a judgment for defendant non obstante veredicto, based on a holding by the trial court that the defendant was free from, negligence as a matter of law, the evidence must be viewed in the light most favorable to plaintiff. So viewed, the record discloses the following: Defendant’s view of the 5-year-old plaintiff was clear and unobstructed and •defendant first saw him 150 or 200 feet distant standing on the shoulder of the road 4 feet north of the north edge of and with his back toward the pavement; defendant was traveling 35 to 45 miles per hour about 2 feet south of the north edge of the pavement. A witness testified that her small daughter was at that time mailing a letter in a mailbox on the south side of the highway; that immediately after the accident defendant admitted that he was looking at this little girl south of the pavement and that when he looked back the plaintiff was in front of him. Defendant testified that as soon as he saw plaintiff move, not quite 10 feet away, he, the defendant, applied his brakes just before he hit plaintiff and that he brought his automobile down from '35 or 40 miles per hour to a stop within 20 to 25 feet. Plaintiff was at the center of the 22-feet-wide pavement when struck by the front of defendant’s automobile. Applicable here is the following from Anderson v. Kearly, 312 Mich 566:
“In Brown v. Arnold, 303 Mich. 616, 623, we said:
“ ‘The facts we have recited were established by the testimony, and we have repeatedly held that a jury may draw reasonable and legitimate inferences from established facts. Negligence may be inferred from the facts and circumstances. Physical facts may justify a jury finding that defendant is guilty of negligence. Faustman v. Hewitt, 274 Mich 458; Trent v. Pontiac Transportation Co., Inc., 281 Mich 586. Negligence may be inferred from circumstances which place the case within the field of legitimate inferences from established facts. Fish v. Railway, 275 Mich 718.’
“Having in mind that upon a motion to direct a verdict against plaintiff, the testimony and all legitimate inferences which may be drawn from it most favorable to plaintiff must be accepted, we are of the opinion that plaintiff established a prima facie case.”
The physical facts from which the jury might “draw reasonable and legitimate inferences” and from which defendant’s negligence might properly be inferred are that while the small boy plaintiff turned around to face the pavement and thereafter traversed 4 feet of the shoulder and 11 feet of the pavement, a total of 15 feet, before being struck, defendant was traveling such distance as a speed of from 35 to 45 miles per hour would propel his automobile forward during that period of time. Defendant was able to and did stop his automobile in from 20 to 25 feet. Was it unreasonable for the jury to infer that defendant was considerably more than that stopping distance back from the point of impact when first he would have been able to see plaintiff move had the defendant been looking? And yet defendant says he first saw plaintiff moving when he was only 10 feet away. Whether defendant saw the infant plaintiff move toward and on to the pavement and took steps to avoid the accident as soon as an ordinarily careful and prudent person would have done under like circumstances was a question of fact for the jury. If he failed to do so, he was, in fact, guilty of negligence. Whether the accident could have and would have been averted had defendant acted in those respects as an ordinarily careful and prudent person would have done under like circumstances was also a question of fact for the jury, bearing on proximate cause. There was evidence in the ease of physical facts from which the jury could reasonably and legitimately have inferred that defendant was guilty of negligence which was a proximate cause of the accident.
In Braxton v. Gazdecki, 255 Mich 518, cited by Justice Bushnell, this Court affirmed the finding of the trial court, sitting as a trier of the facts without a jury, that defendant was not, as a matter of fact guilty of negligence. Our holding was, in effect, that the evidence did not preponderate against such finding of fact. In so holding this Court did not have occasion to, nor did it pass on the question of whether defendant should have been held to be free from negligence as a matter of law. The case is, therefore, not authority for such holding in the case at bar. Colvaruso’s Guardian v. Stroh Brewery Co., 301 Mich 245, and Foster v. Rinz, 202 Mich 601, are not in point for the reason that in those cases there was no testimony that the defendants were negligent in any respect nor were physical facts established, as in the instant case, from which such negligence could have been inferred.
The judgment non obstante veredicto should be reversed and set aside and the cause remanded for entry of judgment on the verdict for plaintiff. Costs of both courts to plaintiff.
Sharpe, C. J., and Boyles and Carr, JJ., concurred with Dethmers, J. | [
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Reid, J.
This is a divorce suit commenced in the circuit court for Wayne county in chancery, in which the interests of two young children of the parties are involved. From a decree for the plaintiff awarding to her the custody of the two children, both under 17 years of age, and making a property settlement, and also requiring the payment of a specified sum for the support of the children, the defendant appeals.
The parties were married, November 7, 1940. Their two children are Robert, born in 1942, and Thomas, born in 1943. The parties separated in November, 1945. Plaintiff in her bill of complaint, filed February 25, 1946, alleged- extreme cruelty. The defendant filed an answer but subsequently, on December 23, 1947, the parties entered into a stipulation that “an order may be entered * * * withdrawing defendant’s answer, taking plaintiff’s bill of complaint as confessed and permitting plaintiff to proceed, forthwith, in the above entitled cause as a pro confesso case.”
An order was immediately entered on this stipulation and on the same day, December 23, 1947, plaintiff proceeded to her proofs.
Plaintiff married 4 days after the decree and took her 2 children with her to the island of Trinidad, in the West Indies, outside of the United States and outside the jurisdiction of the court.
There was no testimony on the hearing in open court to establish that either of the parties had resided in the State of Michigan for a period of 1 year. See CL 1929, § 12731, as amended by PA 1941, No 2, (CLS 1945, § 12731, Stat Ann 1946 Cum Supp § 25.-89). The only testimony to show the residence of the parties was:
“Q. You have a home owned by the parties? (entireties?)
“A. Yes, sir.
“Q. Where is that located?
“A. 4305 Harvard road.”
While it may be supposed that Harvard road is in Wayne county, there is nothing from which the court can take judicial notice of that fact.
While the defendant withdrew his answer and consented that the bill of complaint be taken as confessed, and consented that the plaintiff proceed at once as in a pro confesso case, still such consent does not establish jurisdiction. In Bradfield v. Bradfield,. 154 Mich 115, 119 (129 Am St Pep 468), we say:
“It is urged that, even should the court hold that complainant was not a resident of this State within the meaning of the statute, defendant by admitting-in his answer the allegation of the bill relative to her residence is precluded from raising the question.. Such admission did not confer jurisdiction upon the court. If the law were otherwise, the very purpose- of the statute would be defeated, and collusive and fraudulent divorces encouraged. Such holding would be against public policy. Upon this question the conclusion of the court is founded upon reason and supported by authority.” (Citing Smith v. Smith, 10 ND 219 [86 NW 721], and Prettyman v. Prettyman, 125 Ind 149 [25 NE 179].)
See Lehman v. Lehman, 312 Mich 102. See, also, Wieser v. Wayne Circuit Judge, 247 Mich 52, syllabus 5:
“The parties to a divorce suit other than the State can waive nothing essential to the validity of the proceedings.”
The testimony in the case at bar to support the charge of extreme cruelty consisted of the following examination of the plaintiff:
“Q. You say in your bill of complaint, amongst other things that your husband was cruel and intolerant ; tell us what actually happened.
“A. X think the biggest thing was his uncontrollable temper, his intolerance towards the children.”
The testimony of the supporting witness, Mrs. Quail, on that subject was as follows:
“Q. What do you know as to the manner in which her husband has treated her ?
“A. I know that he is extremely intolerant of the children. I know he won’t tolerate the children in his room, and on several occasions he has lost his temper.”
There was no other testimony introduced on the hearing on the subject of extreme cruelty.
In Cooper v. Cooper, 17 Mich 205 (97 Am Dec 182), in an opinion written by Justice Campbell and concurred in by the other justices, we say at p 210:
“The law does not permit courts to sever the marriage bond, and to break up households, merely because ..parties, from unruly tempers or . mutual wranglings, live unhappily together. It requires them to submit to the ordinary consequences of humatí infirmities, and of unwise selections, and the misconduct which will 'form a good ground for a legal separation must be very serious, and such as amounts to extreme cruelty, entirely subverting the family relations' by rendering the association intolerable.”
These words were cited with approval in Brewer v. Brewer, 295 Mich 370, 373. The same words were cited with approval in Miller v. Miller, 308 Mich 600, 602, 603, and in Kolberg v. Kolberg, 312 Mich 42, 45, 46. In the latter two cases, additional' words were cited from' the opinion of Justice Campbell.
A careful consideration of these cases is persuasive that the testimony given in the case at bar falls far short of any proof of extreme cruelty under the laws of this State.
In the case at bar, the jurisdiction of the court was not proven; extreme cruelty was not proven. The decree appealed from is reversed. The case is remanded to the circuit court for further proceedings. Defendant is permitted to contest the granting a divorce. No costs.
Sharpe, C. J., and Bushnell, Boyles, Dethmers, Butzel, and Carr, JJ., concurred with Reid, J. North, J., concurred in the result.
As subsequently amended by PA 1947, No 323, see CL 1948,, § 552.9. — Reporter. | [
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Reid, J.
Plaintiff trustee filed the bill in this case to obtain specific performance of an option or agreement for the purchase of land. Prom a decree dismissing the bill, plaintiff appeals.
Subject to certain claimed defects, plaintiff’s bankrupt, Metzger’s, Inc., was the record title owner in September and October, 1945, of the 3 parcels.of land in Lake county which are the subject of the agreement or option. On September 27, 1945, Metzger’s, Inc., entered into a purchase agreement with E. A. Newman, who represented and was acting for defendant Rex Oil & Gas Company (hereinafter referred to as defendant). This agreement is known as exhibit No 1 in the case and is as follows:
“Michigan Processed Poods, Inc.
“OEEICE MEMO
“Date September 27,1945
“Subject — Purchase agreement
“On this 27th day of September, 1945, we hereby agree to sell, convey and transfer all our right and interest in the following described lands. Situated in Lake county, Michigan,
“The El/2 of the El/2 of the SE1/4, section 20, township 19N, range 11W, and the Nl/2 of the W5/8 of the NW1/4 of section 28, township 19N, range HW; and the SW1/4 of section 22, township 19N, range 12W. And containing 250 acres more or less, to E. A. Newman, of Grand Rapids, Michigan, for the sum of $4,100.
“This-sum to be paid in the following manner. $400 on the 27th day of September 1945, and the balance of $3,700 to be escrowed in the Commercial State Savings Bank, Greenville, Michigan, on or before October 2,1945 together with the deeds to the above, described lands, and also mortgage discharges for any encumbrance on the above described land.
“The escrow agreement executed by both parties on or before Oct. 2, 1945 shall allow the purchaser 15 days to secure abstracts, tax searches, and approve the title.
“If the title to any property or all are not merchandisable and acceptable to purchaser, the moneys paid in escrow are to be returned to the purchaser.
“Abstract costs and tax history costs are to be paid by purchaser.
“All back taxes to be paid by seller.
“It is hereby understood that purchaser is aware of the royalties now sold on these properties, and of oil and gas leases now covering said lands.
“Witnesseth our hand and seal this 27th day of September, 1945.
“Metzgers Inc.
“Thomas R. 'Metzger
“E. A. Newman
“Witness — Arthur M. Cook
“Witness — D. 0. Anderson”
On September 28, 1945, defendant ordered aR stracts of each of the described parcels. The order was in the form of a letter written to the Lake county abstract office, which letter was received on September 29, 1945. Metzger’s, Inc., under the terms of the September 27,1945 purchase agreement, deposited with the bank 3 warranty deeds and defendant deposited with the bank its check for $4,100, the agreed price, the proceeds of which check are held by the bank.
The escrow agreement, exhibit No 2, recites that defendant is purchasing for the sum of $4,100 the lands in Lake county, describing the 3 parcels. The escrow agreement further recites 6 specifications of matters to which the warranty deeds to these lands are subject and recites that defendant is placing with the escrow agent check for $4,100 to be paid to Metzger’s, Inc., and further recites that Metzger’s, Inc., is placing in escrow a warranty deed for each of the described parcels of land. The escrow agreement further contains this recital:
“The Rex Oil' :& G-as Company will be allowed a period from this date to October 20, 1945 at 2 p. m. to secure abstracts and examine title to the above lands. If titles are satisfactory and acceptable to the Rex Oil .& G-as Company they are to notify the Commercial State Savings Bank in writing authorizing the payment of the $4,100 to Metzgers’ Inc. [Metzger’s, Inc.] If the titles are not acceptable the money and deeds are to be returned to each respective party. Upon the payment to Metzgers’ Inc. the escrow agent is to forward to the Rex Oil Company or Walter E. Anderson of Muskegon, Michigan, the deeds, mineral deeds and mortgage discharges.”
The escrow agreement was signed by the bank as escrow agent but was not signed by either Metzger’s, Inc., or the defendant.
The purchase agreement and the escrow agreement (together constituting what is hereinafter referred to as the “agreement”) must be read together. The trial court correctly so ruled. The defendant claims that the “agreement” is in effect an option. Defendant was not bound to buy the property and the trial court therefore properly held that the “agreement” was an option. But the defendant had placed its check for the full sum of the purchase price, $4,100, with the escrow agent, and could only repossess itself of its check under and in pursuance of the 'terms of the “agreement.” Hence, we are required to consider the provisions in the “agreement” and especially the portions thereof concerning title.
It is to be especially noted that exhibit No 1, the purchase agreement, contains the words, “If the title to any property or all are not merchandisable and acceptable to purchaser, the moneys paid in escrow are to be returned to the purchaser.”
An important question in the case is: Did defendant have substantial reason for withholding-approval or acceptance of title? We must hear in mind that the “agreement” in the instant ease contemplated not only that the title should be found to be marketable but further contemplated that defendant should find the title acceptable.
“A title may be regarded as unmarketable if a reasonably careful and prudent man, familiar with the facts, would refuse to accept the title in the ordinary course of business. It is not necessary that the title be actually bad in order to render it unmarketable. It is sufficient if there is such a doubt or uncertainty as may reasonably form the basis of litigation.” Bartos v. Czerwinski, 323 Mich 87, 92.
By letter dated November 1, 1945, defendant rejected the titles to said parcels and requested the return of the deposit. The original of said letter was sent to the escrow agent bank and- a copy to Metzger’s, Inc. Plaintiff claims that Metzger’s, Inc., had a marketable title by adverse possession.
The first 2 of the described parcels were occupied as 1 farm. The third parcel has in no respect been occupied and has been “wild” land continuously during the period involved in this litigation. Accordingly there has been no adverse possession of the third parcel.
During the escrow period, under the advice of its attorney, defendant procured some outstanding-strains of title in the name of Prank H. Emig and Ethel A. Emig, as husband and wife.
Plaintiff claims that Metzger’s, Inc., had merchantable title on September 27, 1945, hut that if the title was not merchantable on September 27, 1945, defendant had made it so by fraudulently obtaining an extension of a contract to acquire so-called Buckner and Weiss outstanding interests as represented by the Emig deeds, and that the obtaining of the deeds to Emig and wife constituted an acceptance of the title by defendant.
There was not adverse possession of the third parcel and even as to the other 2 parcels, the title of Metzger’s, Inc., was subject to the objection that the title was acquired through a foreclosure sale of several parcels for one lump sum and though no objection seems to have seasonably been made on that ground to the foreclosure, still a prospective buyer could reasonably require that the title be on clearer or firmer footing. The title of both "Weiss and Buckner depended on the regularity of the foreclosure.
Even if we give to the transaction on the part of defendant in the obtaining of the Emig deeds, all the effect contended for by plaintiff, still the title of Metzger’s, Inc., was apparently incomplete of record. Adverse possession of parcels 1 and 2 seems to have been conceded, but there has been no adverse possession of the third parcel. In any event, the title by adverse possession as to parcels 1 and 2 was not of record. To show a record title by adverse possession requires a suit and the recording of a decree.
Plaintiff argues that because defendant did not make known its objection to the title within the period of the option, that defendant became bound to purchase. The “agreement” contains no stipulation that the failure of defendant to object to the title within the option period, should operate as an acceptance of the title by defendant, and such failure had no such effect as contended for by plaintiff by inference or otherwise. We reject plaintiff’s claim in that particular. Metzger’s, Inc., was not obligated to cure any defect pointed out by defendant and it would have been idle for defendant to indicate its objections to the title unless Metzger’s, Inc., was obligated-to cure the defect. Defendant was at liberty to reject the contemplated purchase of the property upon discovery of a substantial defect. The defect in question was a substantial defect and reasonably required a proceeding to quiet title.
As far as concerns the title to the premises in question, the case was submitted on agreed statements as to certain matters partially showing how the title stood during the option period and some testimony of matters affecting the title. Among other things, plaintiff argues that a letter by defendant’s _ attorney, Mr. Penny, to defendant,, amounts to proof or an admission that when defendant through a third party should obtain deeds of the interests of Weiss and of Buckner, the title of defendant would be complete. A careful perusal of Mr. Penny’s letter, however, does not bear out. such inference. Mr. Penny’s letter says in part,. “Tour third person would obtain the fee which he would convey to you on quieting such title.”' (Italics supplied.) The necessity of quieting title negatives plaintiff’s proposition that upon obtaining-deeds from Weiss and the estate of Buckner through Mr. and Mrs. Emig, defendant was possessed of all. strains of title needed to complete the title of Metzger’s, Inc., in the 3 parcels, at least so far as to meet, all reasonable objections. Mr. and Mrs. Emig did not bring suit to quiet title and of course could not have quieted title during the option period.
It appears from all the record that even after defendant, through the Emigs, obtained the interests-of Weiss and Buckner, there was still a necessity for-bringing proceedings to quiet title, which was a sufficient reason for defendant’s rejecting the title- and terminating the option agreement. Defendant was justified under all the circumstances of this casein refusing to accept a title that reasonably required. a proceeding in court to become a quieted title.
It can be considered that plaintiff concedes there was a “technical defect” in the title of Metzger’s, Inc., during the option period, but claims defendant discovered the defect during the contract period and that defendant should have notified Metzger’s, Inc., of the defect and given Metzger’s, Inc., an opportunity to remedy the defect. The' defect in question, as we have seen, was not possible to be remr edied during the contract period and defendant was not bound to notify plaintiff to remedy the defect.
The title of Metzger’s, Inc., during the escrow period was subject to reasonable objection on the part of defendant and defendant was not bound to .accept such title. The plaintiff is not entitled to recover. The decree appealed from dismissed the bill of complaint with full prejudice, which decree is affirmed, with costs to defendant.
Sharpe, C. J., and Bushnell, Boyles, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Williams, J.
Defendants sought approval for their stadium bonds which could eventually cost the county $371,000,000 on the legal theory:
That Wayne County not the Tigers will be the actual user of the new stadium;
That Wayne County can go ahead and build the new stadium even though neither the Tigers nor any one else will ever play there;
That Wayne County has to pay rent for the stadium for 50 years even though there was a "failure to complete the stadium” or the "destruction of any part or all of the stadium”;
That tax bonds are called revenue bonds;
That Wayne County can issue tax bonds without a vote of the people;
That there is no limit as to the millage Wayne County can raise "to provide the funds necessary to pay said annual rental in anticipation of which these bonds are issued” nor is there any limit to the amount of debt Wayne County can incur in taxing to raise such funds.
This Court finds these propositions to be untenable in regard to revenue bonds under Acts 31 and 94. We have been referred to no court in this country which has approved "revenue bonds” on similar facts under similar law on the basis of such a theory. In fact, defendants’ own expert, who helped put together many other stadiums around the country, testified the financing plan here is unique in the entire country. This Court is asked to hold that the county can tax without millage or debt limitations and without a vote of the people, based on a legal theory that justifies Wayne County building a stadium whether or not there are any paying customers to use and pay for it. This we cannot do under law.
This is another chapter in the efforts of civic and governmental leaders in pursuit of a worthy goal to avoid constitutional and statutory taxpayer protections in the form of spending and debt limitations in order to undertake new projects. The law was pushed not to, but beyond the breaking point. The Municipal Finance Commission as the agency of government created to examine the ability of local government to carry its financial load, for the security of the bond buyer and for the rights of the taxpayer, confused by a novel and ambiguous problem, momentarily stood up to the challenge, then gave way to the rush for what they thought desirable ends at any cost.
The confusion in this bond structure is evident throughout this case. The Stadium Authority advertised the stadium bonds to the taxpayers and public of Michigan as revenue bonds but advertised them to the bond buyers as bonds backed by the obligation of Wayne County to tax without limit.
Even the bonds themselves on the one hand read:
"Each Bond of said series is a self-liquidating revenue Bond, is not a general obligation of said Authority or of said County, and does not constitute an indebtedness of said Authority or of said County * * * .”
But on the other hand read:
"[T]he obligation to pay said annual rental is a general obligation of the said County of Wayne which is authorized and obligated by law to levy an ad valorem tax on all taxable property within the said County, without limitation as to rate or amount, to provide the funds necessary to pay said annual rental in anticipation of which these Bonds are issued.”
The schizophrenic structure of this bond issue was so confusing, not only to the public but to lawyers and judges in this case, that the plaintiffs argued the case, and the trial judge based his first decision on the theory that since the bonds were revenue bonds the Tigers contract should but didn’t bear its fair share of the costs of amortizing and operating the stadium, but the defendants said, "Gentlemen, sorry, but you just don’t understand, these bonds can be perfectly good without the Tigers or any other stadium user paying a red cent, because the county wants to use the stadium all by itself and has agreed unconditionally to pay the fixed rental which pays the $371,000,000 principal and interest to liquidate the bonds.”
This effort to treat tax bonds as revenue bonds has raised a number of serious and important technical issues. Some of these issues involve areas relatively untouched even by previous penetrating judicial review. The principal issues involved are:
1. Do Acts 31 and 94 singly or jointly authorize stadium bonds as revenue bonds or otherwise where the non-user county covenants to permit bondholders to enforce directly the county’s full faith and credit tax obligation to the Authority to pay a "rental” equivalent to the principal and interest on the bonds and where the revenue and revenue producing capacity of the one actual and other potential users are claimed to be of no legal consequence? (Parts II, pp 244-246, III, pp 246-253, IV, pp 253-268.)
2. What is the impact of Const 1963, art 4, § 25 requiring sections of acts altered or amended to be reenacted and republished at length on portions of Act 31 that may alter or amend Act 94 or other acts? (Part V, pp 268-288.)
3. Do constitutional and statutory debt limitations affect the just described stadium bonds or true revenue bonds in any way? (Part VI, pp 288-314.)
4. Do constitutional and statutory millage limitations affect the just described stadium bonds or true revenue bonds in any way? (Part VII, pp 314-317.)
5. Does the stadium bond issue relate to a "public purpose?” (Part VIII, 317-323.)
6. Would the stadium bond issue violate Const 1963, art 9, § 18 "[t]he credit of the state shall not be granted to, nor in aid of any person, association or corporation, public or private, except as authorized in this constitution,” if the Tigers, as alleged, paid less than they should have for their sublease? (Part IX, pp 323-330.)
7. Were the notices given constitutionally sufficient? (Part X, pp 330-355.)
8. Other issues. (Part XI, p 356.)
I.
FACTS.
Wayne County on August 20, 1970, established a Stadium Authority under Act 31 to construct a stadium. On September 23, 1971, the county approved a lease of the proposed stadium from the Authority to the county. In that lease the county made three significant covenants. First, the county obligated its full faith and credit to pay a "Fixed Rental” to the Stadium Authority for the stadium equivalent to the debt service of $371,000,000 on a bond issue which the Authority was to issue. Second, the county covenanted that the bondholders should have the power to enforce the covenants in the Lease, including the county’s covenant of its full faith and credit to pay the fixed rental equivalent to the debt service. Third, the county unconditionally covenanted to pay that fixed rental whether the stadium was completed, destroyed, or whatever.
The county thereupon delegated the operation of the stadium to the Stadium Authority with the duty to sublease. After instituting, but before closing bond negotiations, the Stadium Authority for itself and the county arranged a sublease with the Tigers for the use of the stadium. The county and the Stadium Authority approved this lease March 2, 1972. The proceeds from the Tiger lease were, to be payable to the Stadium Authority.
On March 28, 1972 the Wayne County Stadium Authority Lease, the bond ordinance issued pursuant thereto, the Tiger sublease, data supporting the financial feasibility of the stadium because of Tiger baseball games, other events, concessions, etc., were acted on by the Municipal Finance Commission which after hearing its staff and others voted approval for the stadium bond issue under Acts 31 and 94.
In opening that meeting, the Chairman of the Municipal Finance Commission called on the staff for comment. James F. Marling, Director, Municipal Finance Division, replied:
"I am not ready to recommend approval of this item. * * * I think the two problems deal primarily with the potential revenues from the baseball and the potential revenues from the other events as outlined in my memorandum. I see nothing that changes that. It is a drain on the County’s general fund, the drain is very real.”(Emphasis added.)
Subsequently, an Assistant Attorney General assigned to the project made the following comments among others:
"The effort of the staff has been to develop a basis upon which the commission may approve this project if it sees fit to do so despite the formative legal problems which center around the potential drain upon the Wayne County general fund which at the moment is in a deficit position according to our files and people who spoke on it last week.* * * With respect to the more serious legal objection this I think relates to the potential drain on county general funds and the duty of the MFC to make sure that debt service on this issue as it is approved will not unduly burden the underlying community. We have obtained from bond councel their consent to take out of the form ofthe bond the reference contained therein of which in our opinion would have made the bonds in effect general obligation bonds of the County and as included in the order and notice of the sale that we have recommended to the commission, if it sees fit to approve, we have built in reference to the language which would preserve the revenue nature of the project. Finally, we recommend inclusion in the order of the language requiring the county which is the principal of the authority under the River Rouge case, the authority being agent in issuing these bonds, a requirement that the county rehabilitate its general fund; that it make periodic reports to the MFC during the life of the bond regarding the condition of the general fund — that it make reports to the MFC concerning the payment of rental to the authority, such showing to include a disclosure of the source of the funds; and finally, that before levying any special ad valorem tax for this project which would be a drain on county general funds over and above the millage limitation the county report its inten tion to do so to the MFC and obtain an order from the commission determining the necessity thereof. Now with respect to this provision, I want to be very clear that in the event somewhere down the line ofthe maturity schedule if all our sales and the debt service could only be met by levying a tax upon the county, article I, section 10 of the federal constitution would require that the bondholder would have the debt service. In the hands of the bondholder these bonds will be unlimited tax bonds. The thrust of the requirement which we propose in the order goes to the control of the debt service procedures and habits of the county in coming up with the money for the rent to the authority. This we can and should control. This I think is a brief presentation of the staff position which is and has been designed to make available to the commission a method of approving the bonds while protecting the taxpayer.” (Emphasis added.)
In that order approving the bond issue, the Commission required that before any taxes are levied for the payment of the fixed rental, the county secure permission therefor from the Commission. However, the Attorney General, referring to this requirement subsequently on March 29, 1972, said:
"The language does not affect the security of the bondholder, in whose hands the bonds are unlimited tax bonds * * * .”
The Director of the Municipal Finance Commission was concerned that the baseball and other revenues would be insufficient to meet the financing costs. The discussion by the Attorney General’s staff revealed an internal ambivalence about the bonds because changes were recommended to "preserve the revenue nature of the project” but at the same time there was concern about the level of the county’s general fund, the possibility that any special ad valorem tax levy for this bond project might exceed the millage limitation and the clincher that "in the hands of the bondholder these bonds will be unlimited tax bonds.”
In due course after the Municipal Finance Commission approval of the project, the bonds were advertised on March 30, 1972 and Halsey Stuart won the underwriting bid with delivery for June 19, 1972.
Plaintiffs on April 18, 1972 brought suit under the Public Securities Validation Act to test the validity of these public securities and to pray for the issuance of an injunction restraining the delivery of the bonds and construction of the stadium. At show cause on April 28, 1972, the trial judge refused to issue an injunction but did order the defendants not to deliver the bonds to the low bidder without seven days notice to the court and plaintiffs.
On May 18, 1972, Governor Milliken in an Executive Message to this Court noted that at a pretrial hearing on May 12, 1972, before the Honorable Blair Moody, Jr., the trial judge in this case, "the parties indicated that the pleadings currently on file are satisfactory; consequently, the matter is at issue.” The Governor submitted three questions for certification relating first to whether the bond issue which obligates the county’s full faith and credit to discharge its lease obligation comprises a "public purpose” and second, whether there is a public grant of credit for a private purpose and third whether constitutionally there are adequate statutory standards.
This Court responded to the Governor’s request on May 24, 1972 by assuming appellate jurisdiction, and ordering the trial judge to "[m]ake his findings of fact and conclusions of law and file the same with this Court by June 1, 1972.” We also ordered briefs by May 31, supplemental briefs by June 7 and oral argument on June 8.
The Honorable Blair Moody, Jr. duly filed his findings and opinion on June 1, holding the bond issue invalid because the Tiger contract did not carry its proportionate share of the bonded indebtedness and to the extent it failed to be proportional the county was lending its credit to a private person. He issued a permanent injunction against delivery of the proposed stadium bonds. On June 7 he filed "Supplementary conclusions” holding the bond issue illegal because Acts 31 and 94 require revenue bonds, whereas the stadium bonds "are not presently 'self-liquidating’ bonds.”
This Court issued a unanimous memorandum order on June 16, 1972 affirming the trial court with opinion or opinions to follow.
II.
DO THE WAYNE COUNTY STADIUM AUTHORITY BONDS QUALIFY UNDER ACTS 31 AND 94, SINGLY OR JOINTLY?
It is elementary that a county has only such powers as have been granted to it by the Constitution or the state Legislature. Const 1963, art 7, § 1; art 7, § 8. One such power granted by law is that of incorporating building authorities as provided in Act 31. Another power is that of issuing bonds which in particular needs to be spelled out. Const 1963, art 9, § 13. As a consequence, it is essential to examine Acts 31 and 94 under which the Stadium Authority (incorporated by the county) in this case attempted to issue the bonds to see whether the Stadium Authority can issue the type of bond here in question.
This Court has already held that some kinds of public improvement bonds issued by an authority are authorized by § 11 of Act 31, Rude v Muskegon County Building Authority, 338 Mich 363 (1953); Walinske v Detroit-Wayne Joint Building Authority, 325 Mich 562 (1940). Act 94 from its inception in 1933 has included "stadiums” among the defined "public improvements” in § 3(b). Act 31 was amended specifically for this project in 1970 to include "stadiums.” So the real issue is not whether the Stadium Authority can issue stadium bonds, but what kind of stadium bonds it is authorized to issue.
III.
1933 PA 94 (REVENUE BOND ACT) NO SUPPORT FOR STADIUM BONDS.
Section 7 of Act 94 provides for the issuance of bonds for public improvements including stadiums. Pertinent here is the description and limitation of the type of bond that can be issued that is found in the first sentence of § 7(2) which follows:
"(2) The principal of and interest upon such bonds shall be payable, except as hereinafter provided, solely from the net revenues derived from the operation of the public improvement * * * .” (Emphasis added.)
The words "derived from the operation” are the critical ones. The only kind of bond Act 94 authorizes is one which is paid off by "revenues” which are derived from the "operation” of the proposed public improvement which in this case is the proposed stadium.
Since by § 5 of the Wayne County-Wayne County Stadium Authority Lease, "[t]he County * * * shall operate * * * the Stadium * * * ” or "enter into an operating agreement or sublease with the Authority or others for the operation * * * of the Stadium,” any revenues derived from the operation of the stadium are revenues paid to the county or the Authority, and not so-called "revenue” paid Ay the county.
In other words, the statutorily approved revenues come from those who actually use the stadium for sports or other events — the revenues paid by the Tigers, for example.
That this is a correct interpretation of the source of the revenues derived from the operation of the stadium is further borne out by the definition of "Stadium Revenues” in the Operating Agreement between the County and the Stadium Authority, § l(p) of the Operating Agreement reads in part as follows:
"The term 'Stadium Revenues’ means all income, receipts and revenues derived from the operation or ownership of the Stadium or from the facilities of the Stadium of any nature whatsoever, including, but not limited to, rental payments, user fees and charges, concession fees, parking fees and any payments received by the Authority or the County pursuant to a contract or sublease entered into by the Authority in accordance with Paragraph 2 of the Operating Agreement, and shall also include Supplemental Receipts.”
The conclusion to be drawn from this is that Act 94 authorizes a county to issue bonds the source of payment for which must be "solely from [the] net revenues derived from the operation of the public improvement” which translated to the stadium bond issue refers to the "stadium revenues” derived from the Tigers or similar users. Since the proposed stadium bond issue is based on the "Fixed Rental” paid by the county rather than the revenues paid to the county, the proposed stadium bond issue is not authorized by Act 94.
Defendants Argue County ”Is the 'user ’ of the stadium”
Defendants, in attempting to meet plaintiffs’ argument that the Authority provides "free use or free service” to the county and that the county is not guilty of itself granting "free use or free services,” tried to make the point that the county "is the 'user’ of the stadium, in the Act 94 sense.” Defendants’ brief states:
"Section 8 of Act 31, provides, in the first two sentences as follows:
" 'Sec. 8. The authority and any incorporating unit or units shall have power to enter into a contract or contracts whereby the authority will acquire property contemplated by the terms of this act and lease the same to the incorporating unit or units for a period not to exceed 50 years. The consideration specified in such contract for such use shall be subject to increase by the authority if necessary in order to provide funds to meet its obligations.’
"Since the Authority is the issuer of the revenue bonds, and since the Authority has power only to acquire the Stadium and lease it to the County, the only revenues the Authority can anticipate to pay its revenue Bonds are the rentals under the Lease. Thus, the Lease is the basic document from which springs the power of the Authority to issue its revenue Bonds.
"When correctly analyzed, as above stated, it is clear that the County, not persons attending or promoting events, is the 'user’ of the Stadium, in the Act 94 sense, and for this use the County pays the rentals specified in the lease (Fixed Rental — more than $9,000,000 per year) all expenses of operation and maintenance (about $4,000,000 per year). No free use or free service is provided the County by the Authority and the rates for services are the lease rental required to be paid by the County pursuant to the Lease which have been fixed precedent to the issuance of the Bonds.” (Defendants’ brief, p 23-24.)
Defendants’ argument is faulty for three reasons. First, his "use” reference is out of context, particularly in view of the full text of § 8. Second, the Legislature by amending Act 31 in 1970 specifically distinguished between where the county is and is not (as here) a "user”. Third, the reasons in our own analysis show who is the true "user”.
First, defendants in quoting only the first two sentences of § 8 of Act 31 failed to tell the whole story. There is more "use” in § 8 than defendants permitted to be seen. Quoted hereafter is the pertinent part of § 8 with that portion quoted by defendants in brackets:
["Sec. 8. The authority and any incorporating unit or units shall have power to enter into a contract or contracts whereby the authority will acquire property contemplated by the terms of this act and lease the same to the incorporating unit or units for a period not to exceed 50 years. The consideration specified in such contract for such use shall be subject to increase by the authority if necessary in order to provide funds to meet its obligations] * * * With the consent of the authority * * * any incorporating unit * * * may sublease the property * * * or may contract for the use of the or * * property * * * by any 1 or more persons, firms corporations * * * . Where any stadium * * * is * leased * * * for the use thereof by * * * any owner of a franchise in any professional sports * * * constitutes a benefit to and a legitimate public purpose of such incorporating unit * * * .” (Emphasis added.)
From the italicized portions of § 8 it is immediately apparent that "use” appears three times not just the one time quoted in defendants’ brief.
The first appearance — "[t]he consideration specified in such contract for such use”— does indeed refer, as defendants say it does, to the Lease between the Authority and the county. But what it specifically refers to is the consideration in that Lease and that it may be raised. Section 8 is not a section authorizing bonding and this particular employment of the word "use” does not constitute it a definition of "use” in the bonding part of § 11 of Act 31.
"Consideration * * * for such use” might be "payments made under any lease or contract for the use of such property” or it might not be. It would be if the county actually used the public improvement as an office building or courthouse as in Walinske. It would not be if the county set up an authority with a lease back and a lease to a factory as in the Gaylord case, where the "payments made under any lease or contract for the use of such property” would be from the private corporation not the county.
In any event the specific meaning of the term "use” above must be considered in connection with the two other appearances below of the word "use”.
The second appearance of "use” refers to a sublease and an actual use by "persons, firms or corporations” like the Gaylord case. This would be a § 11 "use of such property.”
The third appearance of "use” perfectly describes the Tiger contract and would be a revenue bond use. If these were the revenues looked to in this case, which they are not, the stadium bonds would be valid self-liquidating bonds under § 11.
To summarize, defendants’ reference to the word "use” in the first two sentences of § 8 is at best ambiguous and not at all persuasive, particularly when viewed in conjunction with the other two appearances of the word "use”, where the meaning refers clearly to the ultimate user and not to the county.
Second, as a matter of fact, 1970 amendments of Act 31 to include stadiums recognized that whereas prior to such amendments the public improvement was "for the use of any county,” thereafter the public improvement might be for the "use” of some ultimate user such as the Tigers and for the "benefit” of the county.
Italics show such amendments in the named sections:
Title: "for the use or benefit of any county”
"for the use or benefit of any city”
Section 1: "for the use for any legitimate public purpose of the county”
Section 2: same as § 1 except for cities, etc.,.
It is important to notice that while the Legislature amended the title and § 1 and § 2 to preserve the public purpose of a stadium even if the county itself was not a "user of ’ it, the Legislature did not amend the self-liquidating revenue bond "use of” requirement in § 11. In other words, while the Legislature opened up Act 31 to permit the Authority either to "use” the public improvement itself or to sublease the public improvement to ultimate actual "users of’ and still preserve the public purpose of the public improvement (here stadium) the Legislature maintained and held inviolate the true self-liquidating revenue character of the § 11 bonds.
The county is, under Act 31, §§ 1 and 8, a "user for” a public purpose but it is not, in this case, a "user of’ the stadium in Act 31, § 11.
There is a further reason why the stadium bonds are not authorized by Act 94. The stadium bonds are backed by the full faith and credit of the county. Act 94 provides for only one type of full faith and credit bonds and the stadium bonds do not fall within that type.
Section 7(2) does have an exception to the pure revenue bond just considered. That exception appears in the second paragraph of § 7(2) and reads in parts as follows:
"As additional security for the payment of such bonds used to finance the local share of projects which receive more than 25% of financing from federal or state grants, a public corporation * * * may include * * * a pledge of its full faith and credit for the payment of principal and interest on such bonds.”
No claim has been made by defendants that the stadium bonds qualify under this exception. And for good reason. This project on the record has received no Federal or state "grant”. Nor do we have judicial notice of any. It has not been argued that the hotel/motel tax act (1971 PA 232; MCLA 141.851 et seq.; MSA 5.3194 [361] et seq.) is a "grant”. All it does is authorize the county to levy a tax after the sale of the stadium bonds. Nor has it been argued that 1972 amendment to the racing act (1972 PA 5; MCLA 431.42-431.44; MSA 18.966[12]-18.966[14] provides a grant. It provides for an annual share of racing funds, which is not a grant, but at the most an expectancy dependant upon the continued existence of the act for the lease term of 50 years and of the horse track or tracks during that time and their developing sufficient revenues to pay off this and other transfers.
As our statement of the facts indicated, in the stadium bond issue the county made "a pledge of its full faith and credit for the payment of principal and interest on such bonds.” Since the project had not received "more than 25% of financing from federal or state grants,” the county was not authorized to add its full faith and credit to "bonds payable * * * solely from such net revenues derived from the operation of the public improvement.”
On the principle of expressio unius est exclusio alterius, this is another reason why the stadium bonds do not qualify under Act 94. Sebewaing Industries, Inc v Village of Sebewaing, 337 Mich 530, 545 (1953).
IV.
1948 PA (1ST EX SESS) 31 (BUILDING AUTHORITY ACT) ALONE OR WITH 1933 PA 94 NO SUPPORT FOR STADIUM BONDS.
Section 11, Act 31 provides:
[a] "[T]he authority may issue self-liquidating revenue bonds in accordance with and subject to the provisions of Act No. 94 of the Public Acts of 1933 * * *
[b] "except that the bonds may be either serial bonds or term bonds or any combination thereof, as shall be determined by the authority.
[c] "Such bonds shall be payable solely from the revenues of such property, which revenues shall be deemed to include payments made under any lease or contract for the use of such property.
[d] "Where and to the extent that the bonds are payable from revenues derived from payments to be made pursuant to any lease or other contract obligations, the bonds shall be deemed to be issued in anticipation of contract obligations and such obligations shall be deemed to be contract obligations in anticipation of which bonds are issued, within the meaning of section 6 of article 9 of the constitution.” (Bracketed a, b, c, d added for convenience herein.)
[a] "Self-liquidating revenue bonds * * * Act No 94”
That part of § 11 included in [a] above provides "the authority may issue self-liquidating revenue bonds in accordance with and subject to the provisions of Act No. 94 of the Public Acts of 1933”. Part [a] of § 11 does not authorize the stadium bonds for two reasons. First, the stadium bonds, as we have seen, are not "self-liquidating revenue bonds”. Second, the stadium bonds, we have just held, are not "in accordance with and subject to the provisions of Act 94.”
Nothing in [a] therefore authorizes the stadium bonds.
[b] "[EJxcept that the bonds may be either serial * * * or term * * * .” Defendants’ claim this authorizes a different bond from Act 94.
On argument defendants try to reason that § 11 evidences an intent to create a different kind of bond by this "exception” to § 7(2) of Act 94 and in support they point out differences between § 11 and certain sections of Act 94. We will deal fully below with the question of whether "exceptions” can be lawfully created in this manner but for now, assuming they could, we believe defendants argue a non sequitur.
First, defendants point to sentence [b] above and point out that it allows "either serial or term bonds or any combination thereof,” while Act 94, § 7(2) allows only "serial” bonds. In addition to what we have said above that everything in sentence [a] points to a conclusion that no "exception” is created and assuming this method of creating an exception is lawful, the very sentence defendants point to cuts against their argument.
Sentences [a] and [b] say the bonds shall be issued "in accordance with and subject to the provision of Act 94 * * * except that the bonds may be either serial or term bonds.” Here, it is true, an intent and attempt to create an "exception” is evident. There is, however, no further statement in sentence [b] to the effect that:
"If revenue bonds are issued under [Act 94] they shall be payable solely from revenues pledged for their payment as provided in this act”
nor any statement that:
"the charges and rates for service * * * under section [8] of this act shall be sufficient to satisfy the provision of [Act 94]”
nor is there any statement that:
"the term 'revenues of the project’ * * * means revenue derived from contract with municipalities * * * .”
The above quoted "exceptions” are from the joint sewage authority act, 1955 PA 233, §§ 4(f), 12, and 12(b)(2); MCLA 124.284(f), 124.292, 124.292(b)(2). Here the legislative intent to create an exception to Act 94’s § 7(2) definition of "revenue derived from the operation” is clearly expressed. If the Legislature intended by sentence [b] above of Act 31’s § 11 to create such an "exception” the method to describe this intent was available in 1955 PA 233 and a multitude of similar expressions in others acts.
The failure of the Legislature to incorporate these specific usages of other acts only provides further evidence that no new type bond exception to Act 94 was intended beyond adding term or combination bonds to serial bonds. Also, this latter speciñc exception in Act 31 to the bond type provided in Act 94 read against the absence of any specific exception for "revenue” calls into play once again the principles quoted in Sebewaing Industries:
"' "It is well established rule of statutory construction that where powers are speciñcally conferred they cannot be extended by inference, but the inference is that it was intended that no other or greater power was given than that specified.” ’ ” 337 Mich 530, 546. (Emphasis added.)
If part [b], or [d] later considered, were authority in whole or in conjunction with other language for the issuance of full faith and credit bonds under Act 31 that subject should appear in the title of Act 31. However, the only bond section of the title of Act 31 reads: "to provide for the issuance of revenue bonds by such authorities”. Obviously the title of Act 31 does not include the concept of bonds other than revenue bonds, or bonds provided for in Act 94.
It is to be noted that when Act 94 was amended to permit an exception to revenue bonds and allow the pledging of full faith and credit where there is more than a 25% Federal or state grant, the title to the Act was appropriately amended as follows:
"[T]o provide for a pledge by public corporations of their full faith and credit for payment of the bonds }Jc * *
The net result of all these interpretative factors is that defendants’ argument that Act 31 contem plated any other than the revenue bond described in § ll[a] and in Act 94 § 7(2) is invalid.
[c] "Such bonds * * * payable * * * under lease or contract for the use of such property”. Defendants’ contention "lease” refers § 8 "lease”.
That part of § 11 included in [c] above emphasizes two things: First, "fsjuch bonds shall be payable solely from the revenues of such property”. (Emphasis added.) Second, "[w]hich revenues shall be deemed to include payments made under any lease or contract for the use of such property.” (Emphasis added.)
There are two critical points. First, the words "such bonds” in the first phrase. "Such bonds” obviously refers to the bonds in the previous sentence. "Such bonds,” therefore, are the kind that may be issued under Act 94, which are "payable * * * solely from [the] net revenues derived from the operation of the public improvement”. This then fills out the meaning of the "revenues of such property”, particularly since there is no definition of "revenues” in Act 31, the definition of revenues in Act 94 having already been incorporated by reference in § ll[a]. Since the stadium bonds are not "payable * * * solely from [the] revenues derived from the operation” of the public improvement but by the county as a "Fixed Rental” the first clause in part [c] does not authorize the proposed stadium bonds.
The second clause in part [c] "which revenues shall be deemed to include payments made under any lease or contract for the use of such property” likewise does not authorize the proposed stadium bonds for similar reasons. "Use of such property” certainly as between the county and the Tigers refers to the Tigers. The county is at best a con duit. Our interpretation certainly is reinforced by a remark made in defendants’ supplemental brief. There they chided the trial judge for enjoining the issuance of the stadium bonds on the basis of his finding the Tiger contract invalid "because he is holding that the County and the Authority have power to acquire the stadium as a public purpose and public facility, but they lose this power if they permit a use of the stadium in the only way it can be used.’’(Emphasis added.)
This is not an attempt to use the defendants’ words against them but to borrow a good articulation of the most cogent reason that could be advanced. In any event such an interpretation is the only reasonable way to read both clauses of sentence [c] together; and sentence [a] and sentence [c] together to make sense. The net result is that we conclude sentence [c] does not authorize the proposed stadium bonds. (See also our discussion of "user” under Act 94 above, Part III, pp 248-252.)
Defendants’ counsel on oral argument concedes there is not specific authority in § 11 sentence [c] to change the definitions of Act 94 and § 7(2) but asks us to "infer” it from the other parts of § 11 such as the sentence [b] bond exception. This we cannot do without ignoring rational principles of statutory construction.
He then argues that since the Authority can only lease to the county under § 8, the lease or contract deferred to in sentence [c] must of necessity be the one — and only the one — with the county.
This argument, like defendants’ other arguments, does more than ask us to construe § 11 as a whole. Defendants ask us to look everywhere but the plain language of sentence [a] and [c] and in effect let the tail wag the dog. What defendants ignore about § 8 is that the powers therein may be exercised whether or not bonds are issued pursuant to the enabling power of § 11 so the "leases” in § 8 are not automatically the leases in § ll.
In addition, the Authority, under §8, has the power and duty to review any county subleases and withhold consent if necessary. The only purpose for such a provision is to insure that the revenues paid by sublessees (when the county is not the actual user) will provide a sufficient "pledge” for bonds to be issued under § 11.
If, as defendants’ counsel argues, the subleases are completely irrelevant from the Authority’s standpoint, why the requirement that the Authority must consent to sublease? The answer is simply that the consent is a security device for the Authority and bondholders. The Authority must police the adequacy of subleases or it could not, as issuer, honestly tell bondholders that the revenue pledges from subleases will be sufficient to pay debt service.
[d] Defendants’ claim § ll[d] (quoted below) plus Const 1963, art 9 § 6 permits county to tax without reference to 15 mill and infers the stadium bonds are tax supported.
Since the claim that § ll[d] in conjunction with Const 1963, art 9, § 6 is a key pillar to defendants’ justification of the tax supported "Fixed Rental” base of the stadium bonds, let us consider § ll[d] first through their brief. Defendants articulate their case as follows (excerpts from defendants’ brief pp 33-35):
"The legislative body of the County of Wayne (its Board of Commissioners) has determined that the acquisition and construction of the Stadium is a desirable public purpose of the County and as a result thereof has entered into the lease obligation in accordance with Section 8 of the Act. This obligation must be paid just as the rental obligation of the County under the lease of the County with the Detroit-Wayne Joint Building Authority must be paid for the City-County Building and the Frank Murphy Hall of Justice. As stated in case Betz v. Berrien County Building Authority, 12 Mich. App. 304 (1968):
" 'Const 1963, art 9, § 6 provides in the first portion of the second paragraph after a statement of the general 15-mill limitation):
"' "The foregoing limitations shall not apply to taxes imposed for the payment of principal and interest on bonds or other evidences of indebtedness or for the payment of assessments or contract obligations in anticipation of which bonds are issued, which taxes may be imposed without limitation as to rate or amount.”
" 'The language is applicable to the situation here. The county is, thus, authorized to levy annually such ad valorem taxes as may be necessary to meet its obligations to the Authority under the contractual arrangements of the parties. ’ (Emphasis supplied.) [Defendants’ emphasis.]
"Section 11 of the Act, in characterizing the nature of the obligation of the County to pay the rental to the Authority, states in part as follows:
" 'Where and to the extent that the bonds are payable from revenues derived from payments to be made pursuant to any lease or any [sic] [other] contract obligations, the bonds shall be deemed to be issued in anticipation of contract obligations and such obligations shall be deemed to be contract obligations in anticipation of which bonds are issued, within the meaning of section 6 of article 9 of the constitution.’ [§ ll[d].]
"The Stadium Bonds are payable from revenues derived from payments to be made by the County pursuant to the Lease and, accordingly, the Bonds of the Authority are deemed to be issued in anticipation of contractual obligations. The reference to Article IX, Section 6, of the Michigan Constitution of 1963, is a clear legislative declaration that under the circumstances herein described the County has authority, if it is necessary to exercise it, to levy ad valorem taxes on all taxable property in the County in addition to the tax rate limitation imposed by the ñrst paragraph of Article IX, Section 6, of the Michigan Constitution. In this connection see Butcher v. Grosse He Township, et al., 387 Mich 42 (1972). The purpose of the above described language which was added to Section 11 of Act 31 was to conñrm the decision in the Betz case that the County is authorized, if necessary, to levy ad valorem taxes to pay the rental just as it could for other County obligations represented by bonds or in anticipation of which bonds are authorized to be issued. ” (Emphasis added.)
Defendants’ position certainly has the color and verisimilitude of the real thing and merits our careful consideration. Defendants’ argument must be considered from two points of view. First, it is obvious that defendants contend that Betz reads § ll[d] quoted in their brief above along with Const 1963, art 9 § 6 for the rule "that the county is authorized, if necessary, to levy ad valorem taxes to pay the rental * * ■ * .” Up to that point defendants contend that Betz authorizes Wayne County in this case to levy necessary taxes to pay the "Fixed Rental”. Second, defendants contend, it appears, that Betz stands for the rule that § ll[d] with art 9, § 6 authorizes not only taxes to pay the "Fixed Rental” but to issue tax bonds. The sentence from the brief above in which we stopped short from completion reads more fully "that the County is authorized, if necessary, to levy ad valorem taxes to pay the rental [ — ] just as it could for other County obligations represented by bonds or in anticipation of which bonds are authorized to be issued.” "Taxes * * * for * * * bonds” certainly sounds as though defendants contend § ll[d] with art 9, § 6 authorize tax bonds.
Let us look, at the tax bond part first. Does § ll[d] authorize tax bonds?
There is nothing in § ll[d] which even remotely suggests authorizing a bond issue. The words "shall issue” or "may issue” do not appear. The only time the verb "to issue” is used in sentence [d] is to say that certain described "bonds shall be deemed to be issued * * * within the meaning of section 6 of article 9 of the constitution,” or outside the 15-mill limitation. Section 6, art 9 refers to "taxes imposed for the payment of principal and interest on bonds” and says the 15-mill limitation does not apply to them. It imposes no taxes. It in no way authorizes the issuance of bonds.
Sentence [d] above was added prior to the 1970 "stadium” amendments. It was added by 1968 PA 96 in what might be called the "school package”. In other words sentence [d] was incorporated with the intent that the school (governmental) use of a building would be considered a self-liquidating revenue use outside the 15-mill limitation. In other words, sentence [d] was to import the actual ; occupier/user rather than being specially added for a non-user conduit such as Wayne County in the stadium bond structure. This is the purpose of sentence [d].
Sentence [d] begins "[w]here and to the extent the bonds are payable from revenues derived from payments to be made pursuant to any lease or other contract * * * .” (Emphasis added.)
Following as it does two sentences one authorizing and the other describing bonds, i.e. true "revenue bonds,” "the bonds” logically refers to the bonds just discussed in the previous two sentences and says they do not come within the 15-mill limitation. This analysis makes particular sense because the immediately preceding sentence contains practically the same reference to " * * * bonds * * * payable solely from the revenues * * * which revenues shall be deemed to include payments made under any lease or contract * * * .” (Emphasis added.)
Let us now look to see whether § ll[d] authorizes a tax.
As in the case of authorizing bond issuance there is nary a word about authorizing taxes in § ll[d]. In defendants’ Brief quoted above, defendants state:
”The reference to Article IX, Section 6, of the Michigan Constitution of 1963, is a clear legislative declaration that under the circumstances herein described the County has authority, if it is necessary to exercise it, to levy ad valorem taxes on all taxable property in the County in addition to the tax rate limitation imposed by the ñrst paragraph of Article IX, Section 6, of the Michigan Constitution. ”
Furthermore, defendants quote Betz to the same effect as follows:
"The county is, thus, authorized to levy annually such ad valorem taxes as may be necessary to meet its obligations to the Authority under the contractual arrangements of the parties. ” 12 Mich App 304, 312.
Assuming § ll[d] intends to do what defendants and Betz claim it does, and as it gives appearance of doing, there are two reasons why it does not.
First as my Brother Justice Black thundered in Olympian prose in his opinion concurring specially hereto (p 374):
"If anything in this welter of words is construable as empowering an appointed authority to issue bonds other than 'self-liquidating revenue bonds’, such as bonds secured in whole or in part by property taxation, that construction must fall before the title of the Act as it stands; § 24 being supremely controlling.”
Second, as Justice Cooley said in Detroit Building & Savings Association v Mok, 30 Mich 511 (1875) (discussed below):
"Alterations made in the statutes by mere reference, and amendments by the striking out or insertion of words, without reproducing the statute in its amended form, were well calculated to deceive and mislead, not only the legislature as to the effect of the law proposed, but also the people as to the law they were to obey, and were perhaps sometimes presented in this obscure form from a doubt on the part of those desiring or proposing them of their being accepted if the exact change to be made were clearly understood.”
The Act inserting § ll[d] in Act 31 offended Const 1963, art 4, § 25 if it purported to substitute full faith and credit for the normal revenue from the property as the source of payment for the authorized bonds, unless it "re-enacted and published at length” any part of Act 94 as well as Act 31 amended, which in fact it did not. See Part V, infra,, pp 271-275 and 281. This is because Act 31 incorporates the revenue bond § 7(2) of Act 94 by reference (see § ll[a] p 253 et seq. supra) and therefore under Mok, supra anything in Act 31 or any act to amend Act 31 that purports "to dispense with something required by that Act, and to make some changes” offends Const 1963, art 4, §25.
In short, without offending Const 1963, art 4, § 24 requiring unity of title and text or Const 1963, art 4, § 25 requiring appropriate methods of amendment, it is not possible to read § ll[d] to authorize either tax support of the "Fixed Rental” or tax bonds. Consequently, the stadium bonds, which are tax bonds are not valid and we are unable to accept defendants’ able and vigorous contentions.
In conclusion it is clear that parts [a], [b], [c], and [d] of § 11, the operative parts of Act 31 as far as authorizing a bond issue are concerned, authorize only self-liquidating revenue bonds pursuant to Act 94 and that all of defendants’ arguments and inferences that tax bonds may be issued under Act 31 or Act 94 are without valid foundation. Therefore neither Act 31 nor Act 94 authorizes the stadium bonds which are tax bonds.
Even if we could interpret § 11 Act 31 to authorize the county to pledge its full faith and credit to pay rent, we could not hold that the county by pledging its full faith and credit to pay the rent was only doing that and not also pledging its full faith and credit to pay the bonds, thereby making them tax bonds and invalid under Acts 31 and 94.
Defendants’ theory, of course, is that the contract between the county and the Authority to pay the rent and the contract between the Authority and bondholders are absolutely separate and distinct. Furthermore, they can quote Rude (338 Mich 363, 366) that there is no alter ego relationship between the county and the Authority which would "pierce the corporate veil,” as it were.
The fact of the matter is that the bondholder does look directly to the county to pay off his bonds. On oral argument Bond Counsel said "[t]he record shows [the bonds] wouldn’t have been sold at all without the good faith of the County behind them * * * .”
"Chief Justice: There’s a practical matter of looking through [the Authority] to the good faith and credit.
"Bond Counsel: That’s right * * * The Tiger Agreement wasn’t what sold these bonds nor the possibility of any other use of the stadium.”
Furthermore, we note that in Dearborn v Michigan Turnpike Authority, 344 Mich 37, 58 (1955) we held there was no alter ego where, as in Rude:
"[T]he full faith and credit of the government is not pledged and * * * the activities of the authority are not tax supported, the authority is separate from the government and autonomous.” (Emphasis added.)
See also Herman v Mobile Homes Corp, 317 Mich 233, 243 (1947), and an "agency” case, Smith, Hinchman & Grylls Associates, Inc v River Rouge Building Authority, 374 Mich 514, 519-523 (1965).
Here the county’s full faith and credit is pledged and we hold "the Authority is [not] separate from the government and autonomous” but is acting as an alter ego. This means the county is pledging its full faith and credit not only to pay the rent but also to pay the bonds, neither of which Acts 31 and 94 permit.
Of course, in the stadium bond case the county has directly covenanted to give the bondholder the power to enforce the Lease contract (Lease, § 14, Trial Exhibit 2A, pp 20-21), which is another reason why the county’s full faith and credit pledge ran directly to the bondholder and was not insulated by the interposition of the Authority.
V.
AMENDMENT BY IMPLICATION. MAY ACT 31 AMEND ACT 94 AS DEFENSE COUNSEL SUGGESTS?
We have held by internal statutory interpretation that Act 31 does not amend or alter Act 94 and here we shall consider the constitutional reasons why it cannot do so in the way defense counsel urges, even if Act 31 intended to do so, viz, to permit the levy of taxes to pay off revenue bonds or the creation of tax bonds.
We begin with certain sections of Act 94 which on their face preclude its amendment by the oper-. ation of other statutes:
"Sec. 11. The bonds authorized hereunder shall not be subject to any limitations or provisions contained in the laws of the state of Michigan, pertaining to public corporations or in the charters of public corporations, as now in force or hereafter amended, other than as provided for in this act.”(Emphasis added.)
"Sec. 2. * * * The powers conferred by this act shall not be affected or limited by any other statute or by any charter, except as otherwise herein provided. ” (Emphasis added.)
As we have already held, Act 94 does not "provide herein” for the "exception” urged upon us by defense counsel. They ask us to amend it by implication. There are constitutional reasons why we cannot do this, however, as the following provisions will indicate: Const 1963, art 4, §§ 24 and 25:
"Sec. 24. No law shall embrace more than one object, which shall be expressed in its title.”
"Sec. 25. No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length.”
In brief comments above we have heretofore noted that if Act 31 authorizes the bonds here under consideration, then Act 31 embraces an object not expressed in its title and is to that extent an unlawful authorization of such bonds. We concur with and adopt as our view the views on this subject stated by Justice Black, concurring specially.
We also concur with and adopt the views of Justice Black regarding the failure of Act 31 to distinctly state the tax as required by Const 1963, art 4, § 32.
We come now to the question of Part V.
May § 11 of Act 31 lawfully amend or alter the provisions of Act 94, the Revenue Bond Act, by creating "exceptions” to it without reenacting and publishing the section or sections amended?
The question here affects not only Act 31 but many other acts in our current labyrinth of municipal finance law which amend or purport to amend the Revenue Bond Act by changing or altering its definitions and/or application.
Our job here is to determine the meaning and application of Const 1963, art 4, § 25:
"No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length.”
We have held above that Act 31 does not create the tax bond "exception” to Act 94 as defendants urge because there is no expressed legislative intent to create such exception.
Our ensuing discussion will deal with that part of § 11 which does purport to specifically create an exception (i.e. regarding serial or term bonds) and we also assume for purposes of decision what would be the case had the Legislature specifically attempted to create exceptions to Act 94 (with respect to "tax bonds”) in the manner done in other statutes, for example the joint sewage authority act referred to in Part IV above, pp 255-256.
This is not a case of so-called "amendment by implication” such as the cases which were considered and held valid in People v Mahaney, 13 Mich 481, 496 (1865) (transfer of powers from one statute to another is not an "amendment” requiring republication); Underwood v McDuffee, 15 Mich 361, 366 (1867) (overall revision of statute and system of references adding new sections with the reference number of an old one is permissible where new section is not foreign to subject indicated by title of law in which inserted); People v Wands, 23 Mich 384, 388-389 (1871) (an amending act which properly amends two sections of law may have the effect of amending by implication other parts of the same body of law); Swartwout v Mich Airline R Co, 24 Mich 388, 399 (1872) (following Wands in holding that a new statute which adds a new section to a body of law may amend by implication other sections of the same body of law); and a continuing line of cases not cited here.
The cases cited above and others like them deal with kinds of "amendment by implication” held not subject to Const 1963, art 4, § 25 and its predecessors. Insofar as these previously mentioned lines of cases are distinguishable in their facts from the case presently at bar, those cases will still be the law to the extent not inconsistent with the principles enunciated in this opinion, which stem from the case of Mok v The Detroit Building & Savings Association No. 4, 30 Mich 511 (1875). In Mok there were three statutes which provided the grist of decision.
First, an act of 1853 authorized the formation of corporations for mining, smelting or manufacturing iron and "for other manufacturing purposes”.
Second, an act of 1855 authorized the formation of corporations for "building and leasing houses and other tenements”. The act of 1855 provided that corporations under that act could be formed under the provisions of the act of 1853 and these building and leasing corporations thus formed should have and possess all the rights and be subject to all the liabilities provided in the act of 1853 and any amendments thereto.
Third, an act of 1869 provided for the. incorporation of building and savings association "under the provisions” of the act of 1855.
The Court noted that it was confusing to be sent by the act of 1869 to the act of 1855 only to be told to go in turn to the act of 1853, when it would have been much less confusing and questionable if there had been a direct reference to ‘the act of 1853. This, however, was not the ground upon which this Court struck down the legislative labyrinth in question.
Assuming that the act of 1869 referred parties lawfully to the act of 1853 for the requirements in organization, the Court held that it could not at the same time make changes or exceptions in the act referred to without reenacting the sections changed or modified. Describing the purported amendment of the act of 1853 the Mok Court said:
"But while the act of 1869 referred, parties in this circuitous manner to that of 1853 for the requirements in organization, it undertook at the same time to dispense with some things required by that act, and to make some changes. It provided that the articles of association need not state the amount of capital stock actually paid in; that it should be contributed in initiation fees and in weekly or monthly sums as should be provided by by-laws * * * etc.” Mok, 521-522. (Emphasis added.)
"Amendments of statutes by implication, we have held, are not forbidden by it [art 4, § 25]: People v Mahaney, 13 Mich., 481 [1865]; Underwood v McDuffee, 15 Mich., 361 [1867]. But this is not a case of that nature * * * .” Id, 522.
"The act of 1853 has been, for the purposes of building and savings associations, incorporated in and made a part of the act of1869, but with several changes and modifications, and these not made by the re-enactment of the changed or modified, but only by indicating the extent of the changes, leaving the parties concerned to fit the new act to the old as best they may. ” Id, 523. (Emphasis added.)
"What has been attempted here is, to duplicate an act, but at the same time to accommodate it by indirect amendments to a new class of cases, in disregard of the constitutional provision which requires each act of legislation to be complete in itself, and forbids the enactment of fragments which are incapable of having effect or of being understood until fitted in to other acts after by construction or otherwise places have been made for them. No such legislation can be sustained. Persons claiming such extraordinary powers and privileges as some which are claimed here, should be able to claim them under legislation which is clear and unequivocal, and which leaves no doubt of the purpose of the legislature to grant them.” Id, 529 (Emphasis added.)
Const 1963, art 4, § 25 was also art 4, § 25 of the Constitution of 1850. In writing the Mok case Justice Cooley began by quoting the provision and explaining the reasons for its existence:
"No one questions the great importance and value of provision, nor that the evil it was meant to remedy was one perpetually recurring, and often serious. Alterations made in the statutes by mere reference, and amendments by the striking out or insertion of words, without reproducing the statute in its amended form, were well calculated to deceive and mislead, not only the legislature as to the effect of the law proposed, but also the people as to the law they were to obey, and were perhaps sometimes presented in this obscure form from a doubt on the part of those desiring or proposing them of their being accepted if the exact change to be made were clearly understood. Harmony and consistency in the statute law, and such a clear and consecutive expression of the legislative will on any given subject as was desirable, it had been found impracticable to secure without some provision of this nature; and as the section requires nothing in legislation that is not perfectly simple and easily followed, and nothing that a due regard to clearness, certainty and simplicity in the law would not favor, * * * .” Mok, 515-517. (Emphasis added.)
See also Clay v Penoyer Creek Improvement Co, 34 Mich 204, 208-210 (1876), a case similar to Mok where the Court had under consideration a statute providing for the appointment of commissioners by reference to another act. Parties claimed that by virtue of the referring act the appointment of commissioners could be had in a way different from the act referred to. Of this the Court said:
"While we do not question the right or power of the legislature to thus refer to the provisions of another statute, and render them applicable and binding as though incorporated and re-enacted in the act under consideration, yet such a method of incorporating certain sections of previous statutes in subsequent acts, must be conñned to cases where the sections so referred to are germane to the latter act; where it will not be necessary that parties should either omit from or add important words or provisions to the sections referred to in order to render them applicable. When such changes become necessary, it is leaving to each party acting under the statute the power to change it to suit his convenience, and thus to legislate for himself. And when he has done so there is no certainty at all that the legislature, had its attention been specially called thereto, would have made like changes, or if it had, that the act would have become a law by receiving the approval of the governor." Id, 208-209. (Emphasis added.)
And in conclusion the Court summed up the rule of Mok which is still the law of this state:
’’The sections referred to must be treated as though they had been re-enacted at length in this act, and without any changes having been made therein. Had this been done, then the inquiry of the commissioners would have been limited as we have just stated. A reference merely to a section of another statute, in this manner, can no more broaden it or enlarge its scope than could its literal reenactment in the new statute in the place it was designed to £11. In neither case, without some change in the phraseology, [of the act referred to] can its provisions be materially enlarged, while it may very materially limit the effect of the act of which it has thus become a part. Mok v Detroit Building, etc., Co., 30 Mich., 511; United States v Bassett, 2 Story, 403 [CA1, 1843].” Id, 210-211. (Emphasis added.)
An analogous case is In re Petition of Auditor General, 275 Mich 462, 467-468 (1936). This case did not involve the incorporation by reference of another statute, but the amendment of a previous statute (regarding publication lists of delinquent taxes on land) in the same statute in which a new method for providing notice was enacted.
The Legislature had purported to repeal the section but actually only amended it and, whether or not the act exceeded the scope of its title, this Court held the amended section should have been reenacted:
"The so-called repeal of section 66 (section 3458) actually is an amendment of this section for a large portion of it remains unaffected, and provides for the publication in the instant case. This section, as amended, should have been reenacted and published at length in the amended form so as to conform with the constitutional mandate, hereinbefore quoted. People v. Stimer, 248 Mich. 272 (67 A.L.R. 552) [1929]. The confusion that has arisen through failure to reenact the amended section can be readily seen when in Mason’s 1935 Supplement to Compiled Laws of 1929, §3458 is referred to as repealed although as a matter of fact it was only amended. ” Id, 468. (Emphasis added.)
This case, which like Mok has never been overruled, holds that when the Legislature intends to amend a previous act, it must do so in conformance with the plain and unequivocal requirements of now Const 1963, art 4, § 25.
We are aware of cases such as People v Stimer, 248 Mich 272 (1929). In that case there was an act on the books that created the Department of Animal Industry and the duties of its commissioner. Other sections dealt with criminal penalties for failing to allow the commissioner to examine diseased animals. A later act abolished the Department of Animal Industry, created the State Department of Agriculture and provided that the Department of Agriculture would exercise the powers "now vested by law in the Department of Animal Industry.” In answer to the suggestion that the former act was amended without repassing and republishing it, the Court said:
"Except to the extent that it was expressly done by a provision in the act of 1921, we do not understand that there was any attempt or intention thereby to revise, alter, or amend the provisions of the act of 1919. By the express terms of the 1921 enactment, the department of animal industry was abolished; and the powers and duties of that department were transferred to the State department of agriculture. The portion of Act No. 181, Pub. Acts 1919, which prescribes these powers and duties was not 'revised, altered, or amended.’ It still stands as a part of the statutory law of the State, and therefore there was no occasion for the re-enactment or republication of that portion of the statute.” Id, 278.
"In so far as the act under consideration revises, alters or amends Act No. 181, Pub. Acts 1919, it does so in express language, published at length; and in so far as the change or alteration is by implication merely, it does not offend the constitutional provision.” Id, 280.
In support, the Stimer Court (pp 278-280) relied on language of Justice Cooley in People v Mahaney, 13 Mich 481 (1865). We quote part of the Mahaney language relied on as follows:
"It is next objected that the law is invalid because in conflict with section twenty-five of article four of the constitution, which provides that '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 re-enacted and published at length.’
"The act before us does not assume in terms, to revise, alter or amend any prior act, or section of an act, but by various transfers of duties it has an amendatory effect by implication, and by its last section it repeals all inconsistent acts. * * *
"This constitutional provision must receive a reasonable construction, with a view to give its effect. The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to but not republished, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation. But an act complete in itself is not within the mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain intent.” Mahaney, 496-497. (Emphasis added.)
Leaving aside for the moment the continuing validity of cases such as Stimer, it is plain that these words we have emphasized above apply to precisely the fact situation in the stadium bond case. If an act is to be referred to or incorporated by reference then it will be treated as incorporated without any changes unless the sections intended to be altered or amended are reenacted and published at length as required by Const 1963, art 4, §25.
Although Stimer clearly recognized the principles we have been stating, Stimer seems to be another case where hard facts (public health and safety) make bad law. On the facts as well as the law, we find ourselves in agreement with Justice Potter, dissenting. He held the later act in viola tion of the constitutional provision requiring reenactment and republication and concluded:
"(b) Act No. 13 * * * amends not only Act No. 181 * * * as we have seen, but a great number of other acts. Any one, upon consulting Act No. 13 * * * which does not refer to the acts amended by title or number, must search through the previous enactments of the legislature in order to ascertain the powers and duties of the State department of agriculture created by Act No. 13 * * * .
"(c) Act No. 13 * * * clearly amends Act No. 181 * * * by abolishing the enforcing officers provided in Act No. 181 * * * and their subordinates, and transferring their powers and duties to new enforcing officers created by Act No. 13 * * * or provided to be created by the commissioner of agriculture.
"(d) It is entirely immaterial whether Act No. 13 * * * purports to amend Act No. 181 * * * . It in fact does alter and amend it, and therefore it must comply with constitutional provision of republication.
"(e) Defendant, to ascertain the rights and duties of the agents and employees of the department of agriculture and of himself, must extricate such knowledge from the repugnant provisions of conflicting statutes, new and old, and from their overlapping, inconsistent, and obscure provisions, obtain that clear knowledge of his rights and duties which the people by the Constitution sought to make available by his reading the last statute upon the subject. ” (Emphasis added.)
Justice Potter then deals with the permissibility of so-called amendment by implication of other statutes, when these other statutes are not specifically mentioned either by number, title or otherwise. Among the pertinent authorities collected is the following:
"'The character of an act, whether amendatory or complete in itself, is to be determined not by its title, alone, nor by the question whether it professes to be an amendment of existing laws, but by comparison of its provisions with prior laws left in force, and if it is complete on the subject with which it deals it will not be subject to the constitutional objection, but if it attempts to amend the old law by intermingling new and different provisions with the old ones or by adding new provisions, the law on that subject must be regarded as amendatory of the old law and the law amended must be inserted at length in the new act.’ Nelson v Hoffman, 314 Ill. 616 (145 N.E. 688, 690) [1924]; People v Knopf, 183 Ill. 410 (56 N.E. 155) [1900].” Stimer, 293. (Emphasis added by this writer.)
Another line of cases created an aberration of the doctrine of amendment by implication by the practice of hair spliting the meaning of the constitution so that only the specific act directly amended need be published while others that were affected need not be published. An example is the often cited case of Burton v Koch, 184 Mich 250 (1915).
In that case an amendment was added to one set of laws which was unquestionably intended to change or create a proviso regarding qualifications for voters in another set of laws. The Court approved this result by a process of reasoning that allows the Legislature to amend, repeal, revise or alter any statutes on the books without reenacting and republishing them so long as they publish the single statute which is intended to affect all the others. What this Court said in Burton was:
"We ought not to confuse the effect of the amendment with the constitutional duties of the legislature to indicate an amendment in a particular way. * * * The section amended was re-enacted and republished at length as the Constitution provides. The constitution has been precisely obeyed and the effect of the amendment is, and was intended to be * * * to provide uniform qualifications for voters in all school districts of the State.” Id, 255. (Emphasis by the Burton Court.)
Whether or not the result in the case is good law under some other theory we cannot approve a construction that allows the purpose and spirit of the constitution to be evaded by seizing on particular words and following them "precisely” to the detriment of the plain meaning of the full text.
In the Burton case the statute involved was a bill physically amending an existing statute. This existing statute as physically amended was intended to amend and alter other statutes. By virtue of Const 1963, art 4, § 35 any bill enacted into law must be published. But that section of the constitution does not require the existing statute which was physically amended to be reenacted and republished in full. By virtue of Const 1963, art 4, §25, however, the specific section amended in terms by the new bill must be reenacted and published just as any other law must be published. The Burton Court held that this publication of the section specifically amended in its words was a "precise” following of the constitution and no other statute need be reenacted and republished even if the plain intention of the statute specifically amended by words is to revise, alter, amend or abrogate one or hundreds of parts of existing statutes.
The absurdity of this rule becomes more apparent in its logical extention. Suppose (instead of introducing bill A which amended statute B in its words, and statute B in turn was intended to amend numerous others as in Burton) the Legislature introduced a bill which did not amend any statute in its words but merely was to stand by itself but it is intended and its only purpose is that it should revise, alter and amend hundreds of statutory provisions.
Under the logic and rule of the Burton case none of the other sections need be reenacted regardless of how much and in what way they are affected, because no statute has been amended in its specific words. In other words, under the rule of Burton and similar cases nothing need be reenacted and republished so long as you don’t march directly up to it and strike out words or add other words.
Mok stands for the rule that you cannot amend statute C even by putting in statute B specific words to amend statute C, unless you republish statute C as well as statute B under Const 1963, art 4, § 25.
Burton, on the other hand, stands for the rule that you can amend statute C by putting in statute B words for the purpose of amending statute C so long as you make no specific reference to C, merely by republishing statute B under Const 1963, art 4, § 25, but without republishing statute C.
Mok says the constitution requires you to do the whole job right. Burton says it is good enough to do the job half right. Furthermore, Burton says you can avoid the second half of the job of republication if you hide your purpose whereas Mok requires the second half of the job of republication even though you disclose your purpose.
This Court is convinced the constitution is not satisfied with halfway measures and does not prefer dissimulation to straightforwardness. We adopt the rule of Mok and overrule Burton.
It is argued, however, that it would be unreasonable to require the Legislature to reenact and republish statutes which they intend to amend and that the constitution should not be read to require the doing of what it plainly states on its face. What must be underscored, it is said, is other language in People v Mahaney:
" '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 re-published 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.’ ” Stimer, 279, quoting Mahaney, 497.
Several answers are appropriate to this objection. First, we do not have such a case before us now. Second, this objection, even if valid, should not be extended to the point where it produces just the result it seeks to avoid — it should not be impossible to tell what the law is. Third, where the Legislature really intends to amend previous statutes so that their operation is narrower or broader than stated or previously construed to be, then this intent as expressed is not amendment by implication and cannot be rendered amendment by "implication” by the device of failing to point out the specific section intended to be altered or amended.
Fourth, and of most importance, is that constitutional duties and requirements may not be avoided on the ground that it might be a lot of work to comply with the constitution. This objection is treated forthrightly by Justice Potter in his dissenting opinion in People v Stimer at p 295:
"The people contend that if defendant’s contention is well taken, the legislature has been proceeding upon a theory which, if overturned, will seriously affect the governmental activities of the State, * * * . So far as this question is entitled to consideration:
"The legislature must comply with the constitutional provision so long as it remains in force.
"If the people of the State are not desirous of having the legislature comply with the constitutional provision above quoted, then such provision may be abolished by an amendment to the Constitution; * * * .” (Emphasis is present writer’s.)
There are presently further reasons why the objection that it will be hard work to comply with the constitution is not well taken. At the time the so-much relied on language of Mahaney was written, we were barely into the age of the typewriter and practical printing methods.
We need not recount the remarkable advances in printing and copying technology available and in current use that permit rapid, inexpensive and efficient high volume reproduction.
The Michigan Legislature of today, moreover, does have its own sophisticated bill drafting and research services that are mandated by Const 1963, art 4, § 15:
"There shall be a bi-partisan legislative council consisting of legislators appointed in the manner prescribed by law. The legislature shall appropriate funds for the council’s operations and provide for its staff which shall maintain bill drafting, research and other services for the members of the legislature. The council shall periodically examine and recommend to the legislature revision of the various laws of the state.”
This section of the constitution is implemented by MCLA 4.311; MSA 2.138(1). One of the services provided by the legislative research bureau under the mandate of constitution and statutes is a full-text computer research and retrieval system containing all the law’s of the State of Michigan.
Through the gracious assistance of this bureau and legislative analyst Edward J. Gaffney, Jr., we were able by simple computer requests to quickly retrieve every statute making reference in any way to Act 94. By the same method it is possible to retrieve every statute making reference to a word or particular combination of words in Acts 31 and 94 used in any conceivable context.
In short, it is a simple and speedy task to determine which of all statutes in existence may be affected in any direct or substantial way by a bill currently under consideration — in fact it takes much less time and effort to do this job than it takes a reader to wade through this opinion.
If the search reveals statutes which appear to be affected and are not intended to be so, then this should be made clear by simply inserting appropriate language into the bill under consideration spécifically excluding its operation upon the other statutes revealed in the search. But whether or not this is done we hold that in the absence of specific legislative intent to amend or alter other statutes we will treat them as in existence and interpret them as they are written unaffected by subsequent statutes. If, on the other hand, it is intended to amend or alter those other statutes revealed in this search, then it should be stated specifically and those statutes must be amended or altered directly and republished as contemplated by Const 1963, art 4, § 25.
There is nothing complicated, burdensome, unreasonable or obscure about what we say here today. If a bill under consideration is intended whether directly or indirectly to revise, alter, or amend the operation of previous statutes, then the constitution, unless and until appropriately amended, requires that the Legislature do in fact what it intends to do by operation.
What we say in no way affects those limited kinds of cases where because of a special fact situation a court is faced with two accidently absolutely conflicting statutes requiring a determination that one or the other applies (and thus an amendment or repeal of the other by implication follows in the fact circumstances). These kinds of cases do not result from any deliberate misleading by the Legislature or failure to make all reasonable efforts to make clear in the statutes what is intended, but rather, as we said in Mok, 517 "[i]t is probable that if the requirement has at any time been disregarded by the legislature, the default has proceeded from inadvertence merely.”
In sum, we agree with Justice Cooley in Mahaney that the constitution must be given a reasonable interpretation and we do no more than that. Whereas the Mahaney Court felt compelled to shy from the plain words of the constitution in light of then available tools, we construe the provision to mean what it says in light of the tools available today and required to be used under the injunction of Const 1963, art 4, § 15.
It may not be answered here that the people when adopting the Constitution of 1963 did so with the existing law stemming from Mahaney in mind. It is true that in some instances existing case law on a particular subject was brought to the attention of the delegates and it was pointed out to them that a particular transaction that might seem to be covered would probably not be covered because of case law exempting certain fact situations from the operation of the predecessor provision of the constitution. This, for example, was the case with respect to the discussion of Const 1963, art 3, § 6 relating to "internal improvements”. It was pointed out to the delegates that judicial definition had excepted truly self-supporting or "self-liquidating” projects from the operation of the predecessor, Const 1908, art 10, § 14. The delegates passed the provision anyway and froze the exception into § 6 of the present constitution. See the discussion by Justice Adams in City of Gaylord v Gaylord City Clerk, 378 Mich 273, 289-291 (1966).
In contrast, with respect to the requirement of reenactment and publication of Const 1963, art 4, § 25 there was no mention of previous case law nor was there any debate or discussion by the delegates of what situations the provisions should not cover. See 2 Official Record, Constitutional Convention 1961, p 2416.
For the reasons stated above, what we hold here with respect to Act 31 is as follows:
1) The reference to Act 94 has the legal effect of incorporating that act in all of its terms without amendment or alteration into § 11 of Act 31.
2) The proviso in § 11 of Act 31 which says that the bonds may be term bonds is of no effect and the bonds may only be the serial bonds authorized in § 7(1) of Act 94.
3) The definitions of "revenue” in Act 94 are not and cannot be excepted by any statements in § 11 of Act 31 no matter how specific these provisos might be phrased. In order to change the definition of "revenue” in Act 94 direct amendments would be required at least to §§ 3 and 7 of Act 94.
4) The purported authorization in § 11 of Act 31 of unlimited taxes to support the contract obligation in anticipation of which bonds are issued under Act 94 can be of no effect without direct amendments to at least §§ 7(2) and 13 of Act 94, as well as the title to Act 31.
5) The reference in § 11 of Act 31 to the limits of the authority for purposes of voting in § 33 of Act 94 does not amend, alter or revise anything in § 33 of Act 94, because it merely restates in other words what is stated in § 33 of Act 94.
6) We do not decide here whether 1969 PA 342, as amended by 1971 PA 40, (which provides for a 8% interest rate at which "any public corporation .may issue bonds” until July of 1973 notwithstanding any other provision of law) is a permissible method of amending, temporarily, § 12 of Act 94 which provides for a maximum 6% net interest cost.
VI.
ARE REVENUE BONDS SUBJECT TO DEBT LIMITATIONS?
In the foregoing part of this opinion we have held that the stadium bonds are illegal because the Stadium Authority had no statutory or constitutional power under the circumstances to issue bonds of that type, i.e. non-revenue bonds. In doing so we were not compelled to consider the implication of certain statements made in the stadium bonds and in the arguments relative to debt and millage limitations. We do so now as an important part of the decision of this case.
Also in this part of the opinion, we will consider the implication of constitutional and statutory debt and millage limitations on revenue bonds for the use of the profession and especially for the Municipal Finance Commission which the Legislature has created as the watch dog of the state’s credit. We will divide our consideration of the matter into two separate sections, Part VI, relating to the constitutional "debt” issue, Part VII to the constitutional "millage” issue. Statutory debt limitations will be considered here in Part VI.
A. Constitutional Debt Limitation
According to defendants, the status of the stadium bonds is as follows:
"Official Statement of Wayne County Stadium Authority:”
"The bonds are not general obligations of the Authority or the County and do not constitute indebtedness of the Authority or the County within any constitutional provision or statutory limitation.”
"Official Notice of Sale” Approved by Municipal Finance Commission:”
"Each bond is a self-liquidating revenue bond, is not a general obligation of said Authority or of said County, and does not constitute an indebtedness of said Authority or of said County, within any constitutional provisions or statutory limitation.”
We have held above that the stadium bonds, are, contrary to the above statement, not self-liquidating revenue bonds but are in fact unlimited tax bonds and general, direct obligations of Wayne County. The above quoted statements are therefore false as to premise if not as to the indebtedness conclusions. But since the stadium bonds are tax bonds, the stadium bonds are subject to debt limitations as are all other similar tax bonds.
We shall set forth pertinent constitutional and statutory debt limitation provisions (1, infra) and consider what the relationship of true "revenue” bonds is to these provisions under case law (2, infra). Then we shall apply these principles to the revenue bond structure viewed alternatively as a lease of property (as defendants ask us to view it) and as a sale (3, infra). Finally, we will attempt to develop certain benchmarks to determine "debt” under the constitutional debt limitation provisions for true revenue bonds. (4, infra.)
1. CONSTITUTIONAL AND STATUTORY PROVISIONS:
a. Const 1963, art 7, § 11:
"Sec. 11. No county shall incur any indebtedness which shall increase its total debt beyond 10 percent of its assessed valuation.”
b. Act 31, §8; MCLA 123.958; MSA 5.301(8) states in part:
"Any rental obligation or consideration applicable to the incorporating unit or units under such contract, shall not be considered as indebtedness of the incorporating unit or units within the meaning of any statutory or charter debt limitation of such incorporating unit or units.”
c. Act 94 § 7(2); MCLA 141.107(2); MSA 5.2737(2) states in part:
"No bond or coupon issüed pursuant to this act shall be a general obligation or constitute an indebtedness of the borrower unless its full faith and credit are so pledged. Whether or not a public corporation pledges its full faith and credit for the payment of bonds issued pursuant to this act, the amount of the bonds shall not be included in computing the net bonded indebtedness of the public corporation for the purposes of debt limitations imposed by any statutory or charter provisions.”
d. Act 94 §13; MCLA 141.113; MSA 5.2743 states in part:
"There shall be plainly stated on the face of each such bond * * * that it is a self-liquidating bond and is not a general obligation of the borrower, unless the full faith and credit of the issuer are pledged and also plainly stated on the face of each bond; that it does not constitute an indebtedness of the borrower within any constitutional or statutory limitation * * * there shall also be plainly stated on the face of each interest coupon substantially as follows: This coupon is not a general obligation of the borrower * * *
e. MCLA 46.7; MSA 5.327 relating to the powers of county states as follows:
"The board of supervisors of any county may in any 1 year levy a tax of 1/10 of 1 mill on the assessed valuation of said county for the construction or repair of public buildings or bridges, or may borrow an equal sum for such purposes; * * * but no greater sum shall be raised for such purposes in any county in any 1 year, unless submitted to the electors of the county and approved by a majority of those voting thereon: * * * .” (Emphasis added.)
f. MCLA 141.71; MSA 5.2301 has exactly this same language as MCLA 46.7 except it adds "for purchase of real estate sites for”.
2. THE CASES — YOUNG AND ITS PROGENY; WALINSKE; RUDE; DOYLE; BETZ
a. Young v Ann Arbor, 267 Mich 241 (1934).
Young, involving a contract for a sewage disposal plant was the first case under the Revenue Bond Act (Act 94) and was a test of its validity. It was claimed that the "statement” on the face of the bonds required by § 13 of Act 94, supra, violated the debt restrictions of constitution and statute. This Court first spoke to the reasons why "special assessments” are not constitutional debt, quoting Dillon, Municipal Corporations (5th ed), § 198 as follows:
" 'Under such a contract no judgment in personam against the city for non-payment of the cost is justified, no charge can be enforced against its general assets, nor can a resort be had to general taxation for the purpose of satisfying the claim. When the rights of the contractor are so limited, there is no debt within the debt-limit provision of the Constitution. ’ ” (Emphasis added.) 267 Mich 241, 251.
This Court then said that the same reasoning was applicable to "self-liquidating revenue bonds,” quoting from Winston v Spokane, 12 Wash 524; 41 P 888 (1895) in part as follows:
" 'The general credit of the city is in no manner pledged except for the performance of its duty in the creation of such special fund.’ ”
In conclusion, this Court in effect created a constitutional definition of a "self-liquidating revenue bond” under Act 94 and constitutional debt limits. Bonds issued under Act 94 do escape inclu sion as "debt” not simply because they have been issued under Act 94, but rather because of the character of the bonds required by Act 94:
"Such bonds are not payable by the city. It does not assume and agree to pay them. It can levy no tax upon the people for their payment. They are exactly what they purport to be, self-liquidating revenue bonds, and the purchaser thereof can have recourse for their payment only to the revenues to be derived from the operation of the sewage disposal plant. These revenues must be disbursed in accordance with the statute.” 267 Mich 241, 253-254. (Emphasis added.)
And in addition the Court noted:
"[T]he bonds which it issues are not secured by the property of the sewage disposal plant; there can be no foreclosure under these bonds; the lien granted by the statute is solely upon the revenues to be derived from its operation. ”265 Mich 241, 254. (Emphasis added.)
A continuing line of cases since Young reaffirm the principle that as a constitutional deñnition, "self-liquidating revenue bonds” do not obligate the general taxing power and hence do not create a debt subject to debt limitations. See Gilbert v Traverse City, 267 Mich 257, 260-261 (1934); Attorney General ex rel Eaves v State Bridge Commission, 277 Mich 373, 383 (1936); Michigan Gas & Electric Co v Dowagiac, 278 Mich 522, 526ff (1936); In re Brewster Street Housing Site, 291 Mich 313, 341-342 (1939); State Highway Commissioner v Detroit City Controller, 331 Mich 337, 348-349 (1951); Cleveland v Detroit, 324 Mich 526, 538-539 (1949); and see City of Gaylord v Gaylord City Clerk, 378 Mich 273, 290, 292, 302 (1966) and cases cited there.
b. Walinske v Detroit-Wayne Joint Building Authority, 325 Mich 562 (1949).
Defendant claims, however, that this stadium transaction is just like those considered in Walinske, Rude and Betz all of which involved construction of a municipal building for use by the municipality or municipalities, with the bonds being retired by municipally paid rent, and therefore outside debt limits.
As the analysis below will show, these cases create no exception to the constitutional definition that "self-liquidating revenue bonds” do not obligate the general taxing power and, are therefore outside debt limitations.
In support of the contention that the county’s obligation here is not "debt” are the following quotations from Walinske:
"[A] contract for future services to be paid for as rendered, is not an incurring of indebtedness * * * .” Id, 577.
"Inasmuch as the bonds proposed to be issued by the authority are not faith and credit obligations of its incorporators, they need not be voted on by the electorate, nor are they subject to the debt limitations of the municipalities.” Id, 581-582.
Walinske is not all that useful to the stadium bonds as bond counsel cracks it up to be, however, as the case is limited by the following crucial differences between that transaction and this stadium transaction.
(1). Ultimate Ownership of Building Not Before Court in Walinske
Of great significance in Walinske is the fact that the lease was not before this Court so consideration of the cases supporting plaintiffs’ contention that this was a "sale” could be avoided and this Court in Walinske took great pains to repeatedly point this out:
"The eventual disposition of the building is not now before us.” Id, 573.
"Plaintiff further relies on a series of cases holding that when a city contracts or leases a building at an annual rental sufficient to pay the cost of the building over the period of the lease, and providing that at the end of the term of the lease the building shall be conveyed to the city, it is in fact a contract to purchase the building by instalments and so subject to the debt limitations of the city for the full amount of the payments to be made under the lease. We cannot pass on the lease in the instant case as it has not been executed and is not now before us * * * . There is no showing that the lease when executed will be subject to the objections of the above cases cited by plaintiff.” Id, 578. (Emphasis added.)
The cases relied on by this Court and quoted in Walinske make plain that there would be a sale if title were to pass and the rents were geared to the bond debt retirement:
" 'But a contract which, though denominated and purporting to be a lease with option to purchase, is in fact a contract of purchase by payments in instalments, is treated as a contract of purchase rather than as a lease; and, according to the great weight of authority, the fact that the so-called rentals are sufficient, if paid throughout the term of the lease, to cover the entire purchase price, and to enable the municipality to acquire the property without further payment, renders the contract one of purchase rather than lease, and gives rise to an indebtedness, within the meaning of a constitutional or statutory debt limitation.’ ” Id, 579-580 quoting 71 ALR 1326.
" 'When the case was first here the difference between such leases and the one under consideration was that at the end of a definite period, upon compliance with the contract, the property leased was to be deeded to the Commonwealth. This the court held was a sale not a lease. We now have a very different situation. The instrument before us is a straight lease for a recurring necessity. The land leased is not deeded to the Commonwealth; it is still held by the authority, an independent public corporation.’ ” Id, 580 quoting Kelley v Earle, 320 Pa 449; 182 A 501 (1936).
In addition to the fact that the lease was not before this Court in Walinske and is before us now, there is another reason why the eventual disposition of the building is before us whether or not the lease is executed.
At the time of Walinske and up until June 6th, 1968, § 13 of Act 31 provided that the building "may” be conveyed to the incorporating unit after the retirement of bonds. Under 1968 PA 96, Act 31, § 13 was amended, substituting "shall” for "may”. Ownership of the building by the incorporator is now mandatory.
This amendment was no doubt in response to the holding of Betz v Berrien County Building Authority, 12 Mich App 304 (1968) which was never appealed to this Court. The reasoning of this case will be considered below.
(2). Walinske Under Millage Limit
There is an interesting facet of Walinske which may account for that Court’s willingness to explicitly ignore the nature of the transaction and the disposition of the building thus avoiding the restrictive bond and debt limits of Const 1908, art 8, §10.
What we are referring to is that the lease payments in Walinske would be made within present operating millage. The city and county were not undertaking any new obligation and of most importance is that under the 1908 Constitution the county could not pledge to levy any taxes beyond the 15 mill limit without special action. The Wal inske Court assumed the county must pay for the rentals as they do other services within their operating millage:
"Plaintiff further contends that the annual payments under the proposed lease may exceed the millage limitations prescribed by the Constitution and the charter. We have already reviewed the amount the city and county will be called upon to pay as compared with what they are expending at the present time for similar services. This is primarily an administrative question to be met by the city and county in the normal course of providing for expenses of operating. The danger of it exceeding the millage limitations is so remote that it requires no further consideration.” (Emphasis added.) Id, 583.
Whatever criticism may be had of the willingness of the Walinske Court to avoid harsh constitutional restrictions by reliance upon fiction, it must be recognized that the constitutional environment influencing that Court was vastly different than our present document.
Today there is no constitutional 1/10 of 1 mill limit, although there remain statutes to the same effect, MCLA 46.7; MCLA 141.71, supra.
Today there are the exceptions to the 15 mill limit of now art 9, § 6 that we construed in Butcher v Grosse Ile Twp, 387 Mich 42 (1972), aspects of which will be considered below.
c. Rude v Muskegon County Building Authority, 338 Mich 363 (1953).
In Rude we also noted that the lease and eventual disposition of the building were not before us. Id, 367. In Rude we focused on what "reasonable” rental was and rejected an argument that the authority may bind the county to "pay the indebtedness about to be incurred of $200,000 regardless of the value to the county of the rental use to be provided in the building or buildings proposed to be acquired or built.” Id, 367. (Emphasis added.)
What this Court said in Rude relative to the right and power under § 8 of Act 31 to increase the rental payment further emphasizes that the rent has to be reasonable. We said, such right and power:
"[D]o not mean that the authority can under any circumstances increase the rent beyond what would be reasonable, but can raise its rent charges up to a reasonable amount if below what is reasonable and if necessary to meet its obligations and may continue the lease if necessary to meet its debts.” Id, 369.
And later the Court spoke of the possible terms of the as yet unexecuted contract and said:
"If Muskegon county should bind itself to pay in a contract or lease more than a reasonable rental, in a total amount of $200,000, this would amount to a plain evasion of [the 1908 Const, art 8, § 10 provision for vote if more than 1/10 of 1 mill is raised for building purposes] because the county in the year in which the county signed such a lease would make itself liable for that total amount on the county’s faith and credit, and by that means raise $200,000 in that year.” Id, 370. (Emphasis added except the word "raise” wherein emphasis in original.)
What we there said was that the county may not unconditionally pledge to pay the total amount regardless of the reasonableness of the rent because then on the one hand the county has created an obligation independent of the value of the county’s use of the building, and on the other hand such a pledge would not be "reasonable rental” but would be an unconditional assumption of the whole contract and a "debt”.
In summary, this case means that (1) rent pay ments must be reasonable and (2) even if the county does not get title at the end of the lease, that it may not incur an unconditional "rental” obligation without obligating its full faith and credit and hence incurring "debt” in the constitutional sense.
d. State v Doyle & Associates, Inc, 374 Mich 222 (1965).
In this case the county dealt directly with a builder who constructed a building for sick and aged people and "leased” it to the county for its use and the county agreed to pay a monthly specified sum "and, as well, pay all other operating expenses and costs which normally are payable by the owner of a building, and at the end of 10 years, title to the building and equipment would be in the county free and clear of any encumbrances.” Id, 224.
Of this transaction Justice Souris said for a unanimous Court at p 226:
"We cannot read the documents executed by the county and Doyle as other than an agreement for the construction and equipping of a medical facility by Doyle and its purchase by deferred payments by the county. By such agreement the county has incurred a debt in the total amount of the monthly sums it has agreed to pay Doyle over a 10-year period plus other expenses it has assumed to pay, such as taxes and assessments, charges for utilities, and insurance premiums.”
Describing the so-called "rent,” Justice Souris said:
"Labeling the monthly payments required to be made by the county as 'rentals’ does not affect their essential nature as purchase payments.” Id, 226-227.
Thus, in the only case where this Court had the eventual disposition of the building before it, we said:
"That the county undertook to incur an indebtedness cannot be questioned seriously. It agreed to make monthly payments and to pay other charges and expenses for a 10-year period certain during which time it forswore termination of the agreement. It pledged it would budget sufficient funds each year for the monthly payments required to be made and, indeed, it pledged to levy sufficient taxes and to collect sufficient revenues from other sources to make such payments. In short, it assumed an indebtedness to Doyle repayable in installments over a 10-year term.” Id, 227-228. (Emphasis added.)
In this case on appeal defense counsel says that Doyle was decided under Const 1908, art 8, § 10, and that this Court found this transaction would not violate the 1963 Constitution.
This is only true in that Constitution 1963, art 7, § 11 provides now for a liberal 10% debt limit for all purposes rather than a 1/10 of 1 mill limit for building purposes. The rule of the case still applies, however, and such contracts or leases are within the constitutional and applicable statutory debt limits quoted above.
e. Betz v Berrien County Building Authority, 12 Mich App 304 (1968).
This is another case, like Walinske, where the county would be the actual user of the office and court building under the lease from the authority.
In Betz, the plaintiffs claimed that the issuance of additional bonds and the consequent raising of the county’s "rental” obligation made the transaction a disguised purchase and that the aggregate amount of rentals were a present debt in excess of the statutory limits for Berrien County.
The Court of Appeals dismissed these contentions without recognizing the limitations of Walinske, Rude and Doyle. That Court never really analyzed the cases but rather stated:
"Had the county attempted to build this building directly, it most likely would have been illegal. See State v Doyle & Associates (1965), 374 Mich 222. The agreement and procedure in the case at bar must be judged in the light of the Building Authority Act. In effect the Act has been held valid.” (Citing Walinske and Rude.) 12 Mich App 304, 308.
In answer to the charge that the rents the first year, the cost of which was about 20% of the cost of the entire building-shades of reasonable rent in Rude, were not reasonable, the Betz Court answered not that they were reasonable but that "[t]he short term will save the county a substantial sum in interest costs.” Id, 309. This reasoning is completely inconsistent with the premise of the Court’s ruling — i.e., that it is a lease and not a purchase. Interest is paid on capital — not on a lease.
The Betz Court definition of reasonableness of rent in terms of payment of principal and interest alone (Id, 313) does not follow Rude and is wrong. The rents must be reasonable in a "market” sense.
That Court also ignored the plain limitations of Walinske and Rude with respect to (a) the passing of title and (b) the assumption of obligations unrelated to the value to the county of its use of the building:
"The conveyance of the premises to the county on the expiration of the lease does not convert it to a contract of sale, for such result is anticipated and specifically authorized by the statute. Conveyance by the Authority to the county at the expiration of the lease was involved in both the Walinske and Rude cases. * * * It is a • logical disposition of the building to give it to the incorporating unit after the financing is paid.” Id, 309-310.
However "logical” it might be to convey the building to the incorporators has nothing whatever to do with answering the question of whether the transaction was a sale. The statements of the Court of Appeals in Betz are without support in precedent, for, as we have noted, the Walinske, Rude and Doyle cases are significantly different:
In Walinske there was:
(1) no passage of title — we expressly decided the case as though title wouldn’t pass,
(2) no pledge of full faith and credit to either the bonds or the rental obligation. There could not have been under the 1908 Constitution and the payments had to come from within the county’s part of the 15 mill tax limit. (See also on this the briefs in Walinske.)
In Rude there was:
(1) and (2) as in Walinske plus
(3) we said that the county could not presently and unconditionally pledge to pay the fixed rentals. If it did the payments would not be rent at all but a "debt” in the total amount of the lease rentals — whether or not title passed.
Doyle cannot be meaningfully distinguished on the ground that in Doyle there is a builder-lessor who is a private corporation and in Betz the builder-lessor is a public corporation — the Authority.
The holding in Doyle is that a transaction which was in substance identical to the Betz transaction was in legal effect the direct "building” or purchase of the structure by the county, subject to all. provisions of law applicable to the direct purchase or "building” of improvements by the county.
Betz is significantly different from Walinske and Rude in another matter. Defendants point out on p 35 of defendants’ brief:
"[T]he decision in the Betz case that the County is authorized, if necessary, to levy ad valorem taxes to pay the rental just as it could for other County obligations represented by bonds or in anticipation of which bonds are to be issued.”
Betz does indeed say after referring to Const 1963, art 9, § 6:
"The language is applicable to the situation here. The county is, thus, authorized to levy annually such ad valorem taxes as may be necessary to meet its obligations to the Authority under the contractual arrangements of the parties.” 12 Mich App 304, 312.
If defense counsel and Betz are right Michigan has a new rule permitting a full faith and credit tax obligation to be attached to a rent obligation in a so-called "revenue bond” and that this addition would permit levying ad valorem taxes without limitation as to rate or amount.
We have already considered both of these quotations above in Part IV, pp 260-266, in connection with whether § ll[d] with art 9, § 6 authorized issuing tax bonds. We concluded there was no language in § ll[d] authorizing bonds, but that art 9, § 6 to which § ll[d] refers does indeed deal with taxes. For that reason, because of the failure of the title of Act 31 to authorize taxing, and because of the rule on amendment by implication in Const 1963, art 4, § 25, as heretofore discussed above, we hold that Betz is wrong and that § ll[d] and art 9, § 6 do not authorize the levy of taxes under Act 31 much less taxes "without limitation as to rate or amount.”
Betz is overruled as it would have been reversed had it been appealed to this Court. The rights of bona ñde bondholders, of course, remain inviolate.
3. PRINCIPLES APPLIED TO COUNTY "RENT” OF STADIUM VIEWED ALTERNATIVELY AS LEASE OR PURCHASE
The county’s obligation in the stadium bonds is to pay whatever amounts are required to pay interest and retire the original bonds and any additional bonds. This obligation is unconditional and subject to no conditions precedent. If the stadium is destroyed, never built, never rented, filled with cement — come what may — the county agrees to tax without limit to pay the "rent”. (See Lease, § 13; Trial Exhibit 2A, pp 18-20.)
Viewed As A Lease.
Under Rude, this obligation described above is not "reasonable” rent and it is not even "rent” because it is completely unrelated to the value to the county of any use it may make of the building. (In fact, we have held above the payments cannot be rent at all for another reason — the county is not a user of the stadium under § 11 of Act 31.)
So viewing this transaction as a lease, as defendants’ counsel asks us to, and whether or not title passes, the assumption of such an unconditional "rent” obligation is "debt” within the contemplation of Const 1963, art 7, § 11 and a "raising of money” within MCLA 46.7 and 141.71, supra, for the entire amount of payments due regardless of any self-serving disclaimers written into Acts 31 and 94.
This obligation is in a gross amount of 371 minion dollars. The assessed valuation of Wayne County is 12-1/4 billion dollars.
We do not know whether this unconditional contract debt would raise total county debt above ten per cent of assessed valuation but the approval of the Municipal Finance Commission was premised upon this obligation not being debt. That approval is consequently without legal effect and the bonds are illegal since approval is required as a condition precedent to their issuance by § 27 of Act 94; MCLA 141.127; MSA 5.2757.
We do know that 1/10 of 1 mill of the assessed valuation of Wayne County is far below 371 million dollars and the "raising” of this amount for building purposes requires, under MCLA 46.7 and MCLA 141.71 a vote of the people which has not been had so the contract (and, therefore, the bond security) is void.
Viewed As Purchase
If this really is a purchase, however, then the bonds are illegal (a) since the county has presently borrowed or "raised” more than 1/10 of 1 mill for a building purchase without a vote of the people in violation of MCLA 46.7; 141.71 and, (b) since, as we have held above, the bonds are not revenue bonds under Act 94 and Act 31, since the bonds are not secured by "revenue” derived from the operation of the property and (c) since the bonds do not conform either to § 13 of Act 94, supra, or to the statement on their face that they do not create debt within any statute or constitutional provision.
4. SUMMARY OF CONSTITUTIONAL AND STATUTORY DEBT RULES
A. CONSTITUTIONAL "INDEBTEDNESS"
The provision we are concerned with here is Const 1963, art 7, § 11:
"No county shall incur any indebtedness which shall increase its total debt beyond 10 percent of its assessed valuation.”
In construing this section we are mindful of Const 1963, art 7, § 34 which states:
"The provisions of this constitution and law concerning counties * * * shall be liberally construed in their favor. Powers granted to counties * * * by this constitution and by law shall include those fairly implied and not prohibited by this constitution.”
However, we must also pay heed to the historic rule that powers of municipalities involving the imposition of public burdens should be strictly construed, Bogart v Lamotte Twp, 79 Mich 294 (1890).
From that duty comes what we have called in Lockwood v Commissioner of Revenue, 357 Mich 517, 557 (1959) the "most pressing rule” of constitutional construction:
"We come face to face, then, with what has been termed 'the most pressing rule for constitutional con struction,’ namely, that 'the provisions for the protection of life, liberty and property are to be largely and liberally construed in favor of the citizen.’,>
The injunction of Const 1963, art 7, § 11 must be treated as we treat any other protection of the constitution for as we said in Lockwood:
"That this is 'merely’ a tax limitation and not one on freedom of speech, or worship, is immaterial. There are no differences in degrees of protection afforded in the constitutional safeguards. With equal alacrity we halt in its tracks, once his foot crosses the line, the inquisitor, the policeman, the tax collector, the legislator or the executive. Our question is not how far he has passed over the forbidden line, how serious his encroachment, or how aggravated the arrogance. Our duty arises with the trespass itself.” 357 Mich 517, 558.
And so our job is to determine what the people mean when they say "any indebtedness” in Const 1963, art 7, § 11.
Formerly this provision limited debt to 3% under Const 1908, art 8, § 12. Cases under Const 1963, art 7, § 11 and its predecessors are few and not of great assistance so we must look also to cases under analogous constitutional and statutory provisions.
In Young v Ann Arbor, 267 Mich 241, 248-249 (1934) we said:
"The term 'indebtedness’ may be said to include obligations of every character whereby a municipality agrees, or is bound, to pay a sum of money to another. Usually one of the incidents of municipal indebtedness is that there is a legal right upon its maturity to coerce payment.”
In Young, we said "revenue” bonds were not "debt” because the creditor as obligee would have no recourse against the municipality. This was merely an application of the "special fund” doctrine operating with respect to special assessment bonds. See quoted material above (p 292).
This Young definition of "indebtedness” was adopted by the Court in Detroit Edison Co v Public Service Commission, 359 Mich 137, 147 (1960) for purposes of determining whether a guaranty contract was an "evidence of indebtedness” requiring a fee to be paid for its issuance.
This Court said that the Young definition quoted above includes the contingent liability of Detroit Edison to pay loans if the primary obligor did not. This Court in ruling said that "indebtedness” should be given a "broad” interpretation under the statute in question and therefore • guaranty contracts were included.
We believe the constitutional phrase "any indebtedness” also requires a broad construction so as to include the so-called "secondary obligation” of counties when they back up the bonds of other units of government with a pledge of full faith and credit.
The convention comment to Const 1963, art 7, § 11 indicates that the inclusion of these secondary obligations as "indebtedness” was clearly in mind. That, in fact, was the main reason the county debt limit was raised from three percent to ten percent of assessed valuation. See Convention Comment to art 7, § 11; 1 Official Record, Constitutional Convention 1961, p 930, "section i comments”. The county’s pledge of credit behind "revenue bonds” is within Const 1963, art 7, § 11 to the extent pledged. Anything to the contrary in statutes or previous case law is of no effect.
Other cases have focused not so much on what debt is but what it isn’t.
These cases, for the most part, were decided under statutory or charter debt limits and the questions were whether the Legislature may except certain debts from these limits under the constitutional injunction that the Legislature "shall restrict the powers of cities and villages to borrow money and contract debts.” Const 1963, art 7, § 21 (Const 1908, art 8, § 20) See, e.g., Callahan v City of Berkley, 307 Mich 701 (1943). Other cases considered only Const 1908, art 8, § 10 and/or corresponding statutes, MCLA 46.7; MCLA 141.71 or similar charter provisions which restrict the power of counties to tax, "borrow” or "raise” any sum for building purposes in any one year beyond 1/10 of 1 mill of assessed valuation without a vote of the electorate. See e.g., Walinske; Rude; Oakland County Taxpayers’ League v Oakland County Supervisors, 355 Mich 305 (1959).
These cases are of little or no help, however, in determining "any indebtedness” with Const 1963, art 7, § 11 because the Legislature has no power to determine by statute the meaning of "indebtedness” for constitutional purposes. These cases are of limited help for a further reason — we are faced with a provision broader in application than what is suggested by the words "borrow” or "raise”. Here the broad words are "any indebtedness”.
State v Doyle & Associates, Inc, 374 Mich 222 (1965) was discussed above. We raise it again to point out that although this case too was directly concerned only with the 1/10 of 1 mill limit in Const 1908, art 8, § 10, the principles stated in Doyle, are applicable to the determination of "indebtedness” under Const 1963, art 7, § 11, and under MCLA 46.7, MCLA 141.71, supra.
This is not to say that Doyle states the only principles for determining constitutional debt but merely that any transactions like those described in Doyle are one of the things to be included as indebtedness.
For purposes of this case we are not and cannot be charged with defining what of all possible transactions are or are not "debts” under the constitution. It is enough here to give notice that restrictive and technical definitions of debt do not suffice in the face of the language of Const 1963, art 7, § 11 — "any indebtedness”.
We also give notice that the responsibility for seeking determination of what is indebtedness does not rest merely in the lap of chance that someone may contest the issuance of bonds or the incurring of some other obligation.
The governmental units who may incur "obligations” and the Municipal Finance Commission who must approve some of these obligations (i.e. those which involve certain kinds of bonds) are forewarned that this Court will not bend and twist the constitution in response to emergencies or pleaded necessity. We will not construe "debt” to mean something just below whatever the aggregate total of obligations a particular distressed municipality has. We will construe debt to mean what the people intended it to mean regardless of its effect on municipal contracts, debts, liabilities, bonds etc.
However nicely a transaction is labeled we will look through labels to substance. The constitution was not adopted for the benefit of specialists or technicians. It was adopted by and for the people. We must all consider it in that light and act accordingly. This Court certainly intends to.
The impact of our holding upon future bond issues by communities who are at or may be over their debt limits is not before this Court. In such a future case, however, the assistance of the Municipal Finance Commission in determining the amount and nature of debt will be needed by this Court.
DEBT BENCH MARKS — DEBT LIMITA TIONS
From the foregoing analysis we summarize the following benchmarks in judging the creation of debt in connection with a public bond issue.
1. A true revenue bond or "true rent” creates no indebtedness.
2. A true revenue bond is one that is payable solely from the revenues derived from the operation or use of the public improvement in question.
3. The municipality must for a true rent situation be the actual user of the public improvement except where it acts merely as a conduit and the actual users, such as the Tigers here, pay the rent. See also Gaylordsupra.
4. A true rent payment must be reasonable in that it must bear a direct relation to the economic or market value to the county of its actual use of the public improvement.
5. A true rent payment may include operating costs if they are a normal part of such a rental and the total payment of rent and/or including operating costs is reasonable as above defined.
6. Whether the addition of passage of title to the public improvement at the conclusion of the "rent” payments creates a debt is something on which we express no present opinion except to say that the rent payment may under no circumstances be increased above what would otherwise be a reasonable rent without considering the factor of passage of title and still remain a valid rent.
7. The municipality in connection with its contract to pay "rent” may make no unconditional covenant to pay despite such contingencies as would make the facility unavailable for use by the renter without creating a debt whether or not title passes.
8. The municipality may not pledge its full faith and credit to support its rent without creating a debt.
9. Secondary debt involves the county’s full faith and credit to support bonds of other units of government in certain contingencies and is a debt within Const 1963, art 7, § 11.
PREVIOUS BOND ISSUES
The impact of our holding on previous bond issues is not before this Court but whether or not they are valid under the law as stated herein, the rights of bona ñde purchasers of such bonds to be paid according to the tenor of the obligations cannot be impaired by the holding of this opinion, Green County v Conness, 109 US 104; 3 S Ct 69; 27 L Ed 872 (1883); Gentzler v Constantine Village Clerk, 320 Mich 394 (1948); 15 McQuillin, Municipal Corporations, §§ 43.15, 43.16, 43.78, 43.80.
B. STATUTORY
MCLA 46.7 and MCLA 141.71 in identical language provide (except MCLA 141.71 also provides for purchase of real estate sites):
"The board of supervisors of any county may in any one year levy a tax of 1/10 of 1 mill on the assessed valuation of said county for the construction and repair of public buildings or bridges or may borrow an equal sum for such purposes * * * but no greater sum shall be raised for such purposes in any one year unless submitted to the electors of the county and approved by a majority of those voting thereon ***.”.
Section 8 of Act 31 provides in part:
"Any rental obligation or consideration applicable to the incorporating unit or units under such contract, shall not be considered as indebtedness of the incorporating unit or units within the meaning of any statutory or charter debt limitation of such incorporating unit or units.”
As already noted Const 1963, art 7, § 11 provides:
"Sec. 11. No county shall incur any indebtedness which shall increase its total debt beyond 10 per cent of its assessed valuation.”
These three provisions together raise two questions:
1. May the Legislature in Act 31 change the constitutional definition of debt?
2. May the stadium bonds which are tax bonds exceed the one tenth of one mill levy without a vote of the people?
1
It is clear that the Constitution not only in art 7, § 11 but elsewhere (e.g. art 7, § 2) has spoken to debt limitations. The meaning of debt in the constitution cannot be altered by legislative action.
2
On the assumption that Act 31 could have authorized the stadium bonds, which we have held it can not, the question is whether it could establish a different debt limit from that already contained in MCLA 46.7. We conclude that the Legislature has the authority to establish or alter debt limitations for unchartered counties within the 10% limit of art 7, § 11. However, the Legislature failed to observe the requirements of Const 1963, art 4, § 25 on amendments. See Part V above. Therefore the quoted part of § 8, Act 31 is void and of no effect as to unchartered counties.
VII.
APPLICATION OF CONSTITUTIONAL MILLAGE LIMITS TO COUNTY’S RENT OBLIGATION.
We have made reference before to that portion of § 11 of Act 31 which states:
"Where and to the extent that the bonds are payable from revenues derived from payments to be made pursuant to any lease or other contract obligations, the bonds shall be deemed to be issued in anticipation of contract obligations in anticipation of which bonds are issued, within the meaning of section 6 of article 9 of the constitution.”
The relevant portion of Const 1963, art 9, § 6 states:
"The foregoing limitations [15-18-50 mills for counties, townships and school districts] shall not apply to taxes imposed * * * for the payment of * * * contract obligations in anticipation of which bonds are issued, which taxes may be imposed without limitation as to rate or amount.”
We have heretofore considered § 11 and art 9, § 6 and defendants’ arguments based thereon with respect to the possibility these provisions might authorize the county to issue bonds different from those elsewhere authorized in Act 31 or Act 94 and to permit pledge of the government’s full faith and credit to support the "fixed rental”. We held there was no such authorization. Part IV, pp 260-263.
We now consider these same provisions and defendants’ arguments and the statement made in the stadium bonds from the standpoint of whether (a) revenue bonds and (b) tax bonds are subject to or excepted from the limitations of Const 1963, art 9, §6.
A. Revenue Bonds
The exceptions to the first paragraph of art 9, § 6 are enumerated in the second paragraph in the language quoted above. The critical words are here repeated:
"The foregoing limitations shall not apply to taxes imposed * * * for the payment of * * * contract obligations in anticipation of which bonds are issued.” (Emphasis added.)
Since revenue bonds, including those issued under Acts 31 and 94 in connection with governmental rentals, are in no way tax obligation bonds, payment of rents under Act 31 and Act 94 bonds are a part of the municipality’s normal operating expenses and must come from the municipality’s normal revenues, whether they are Federal or state grants, excises or ad valorem taxes, or whatever. Walinske, supra; Rude, supra.
Since normal taxes for operating purposes are subject to art 9, § 6 limitations, likewise any ad valorem taxes producing the municipality’s funds from which rents are paid in revenue bond situations must be and are subject to art 9, § 6 limitations.
Acts 31 and 94 authorize the issuance of revenue bonds solely, with the exception of permitting the municipalities who receive more than 25% Federal or state grant to pledge their full faith and credit to the bonds. Therefore all Act 31 and 94 bonds with the exception noted are subject to the limitations of art 9, § 6 for the reasons herein noted. (This pledge of full faith and credit exception, however, to be valid may be subject to statutory debt limit provisions discussed above.)
B. Tax Bonds
Reference to the language of art 9, § 6 quoted above would indicate that all tax bonds where the taxes were imposed for the payment of any of the indicated categories would be free of the limitations in the first paragraph of art 9, § 6. However, they would all be subject to the 10% limitation of art 7, § 11.
If that part of § 11 of Act 31 above quoted (elsewhere referred to as § ll[d]) purports to remove the revenue bonds issuable under Acts 31 and 94 from the millage limitations of art 9, § 6, it is invalid. If it purports to free tax bonds from such limitations, since Acts 31 and 94 do not authorize tax bonds it is of no force and effect.
VIII.
PUBLIC PURPOSE ISSUES.
Plaintiffs in this case expended many pages of brief and many hours of argument at trial and here on the question of whether the building of the proposed stadium is a public purpose. Their argument has three prongs: (a) this stadium is not a public purpose under the constitution; (b) that § 11 of Act 31 under the continuing rule of Walinske and Rude requires a showing of "absolute necessity” before the authority may build this stadium and lease it to the county; (c) that § 8 of Act 31 evidences a legislative intent that before a stadium can be built, there must be competent proof that it will in fact increase business activity and employment.
A. Constitutional Public Purpose
We held in City of Gaylord v Gaylord City Clerk, 378 Mich 273, 294-295 (1966) that despite the absence of specified general limits on legislative power, and because the theme of public purpose runs through the constitution, the power of the Legislature and of government generally are limited "to such acts and such governmental powers as exhibit a public purpose.” Id, 295.
Plaintiffs do not contend that the building of a stadium may never be a public purpose but that the authorizing statute is not adequately governed by appropriate standards and principles to protect the public interest and to assure public use thereof.
In support they rely on Opinions of the Justices, 356 Mass 775; 250 NE2d 547 (1969). In that case the Court held in an advisory opinion that a proposed stadium statute lacked adequate statutory guidance and provisions for reviewing compliance with guidelines the Court felt were necessary to constitute a public purpose under the Massachusetts Constitution:
"We are of opinion that a large multi-purpose stadium * * * may be for a public purpose if the expenditure of public funds, the extension of public privileges, powers and exemptions, and the use, rental and operation of the projects are adequately governed by appropriate standards and principles set out in the legislation.” Id, 795.
The statute in question did not meet the principles since:
"No provisions in the bill seem designed to protect the public interest in having the stadium complex and arena used for all the activities mentioned in § 2, without having any one (e.g. professional athletics) fostered to the exclusion of other activities (e.g. civic, philanthropic, and educational meetings, conventions, labor meetings, amateur and school athletics, and the like) * * * .” Id, 797.
"There is no requirement that, in leasing the facilities, the Authority protect whatever public interest there may be in having the facilities available to a diversity of users * * * .” Id, 798.
Defendants counter by saying that the determination of what constitutes a public purpose is primarily a function of the Legislature, relying on statements from one of the opinions in Gregory Marina Inc v Detroit, 378 Mich 364 (1966).
In Gregory Marina there was a claim that the restricting of boat well leases to a limited number of private users under renewable leases was not a public purpose.
In that case Chief Justice Thomas M. Kavanagh in an opinion concurred in by Justice Black, quoted and emphasized the rule in 37 Am Jur, Municipal Corporations, § 120, pp 734-735 as follows:
" ’The determination of what constitutes a public purpose is primarily a legislative function, subject to review by the courts when abused, and the determination of the legislative body of that matter should not be reversed except in instances where such determination is palpable and manifestly arbitrary and incorrect.’ ” 378 Mich 364, 396 (Emphasis added in the case quoted from.)
In Gregory Marina Justice Adams dissented on grounds unrelated to the public purpose aspect of which he said:
"I agree that the determination of what constitutes a public purpose is primarily a legislative function and that there has been no abuse by the legislature of that function in its determination [here].” 378 Mich 364, 409.
Defendants then point out that § 8 of Act 31; MCLA 123.958; MSA 5.301(8) specifically declares that leases to professional sports organizations are declared to be a legitimate public purpose. This legislative determination does not constitute an abuse of the legislative function.
But plaintiffs counter that there still are no standards to insure that other mentioned activities and other groups will have a reasonable opportunity to use the stadium.
Thus put the question is whether the stadium can be a public purpose if used and intended only for use primarily by private profit-making sports organizations. Apparently such a use would not be a public purpose under the Massachusetts Constitution.
On the other hand defendants show us that such use of a stadium is permissible under the constitutions of other states, citing Bazell v Cincinnati, 13 Ohio St 2d 63, 70; 233 NE2d 864, 870 (1968); Martin v Philadelphia, 420 Pa 14, 17-18; 215 A2d 894, 896 (1966); Los Angeles v Superior Court, 51 Cal 2d 423, 436; 333 P2d 745, 752 (1959); Ginsberg v City and County of Denver, 164 Col 572; 436 P2d 685 (1968). See also the cases collected in 173 ALR 415 § 1 and supplements; 15 McQuillin, Municipal Corporations, §§ 39.21 (note 30), 39.31.
Defendants also point out that the stadium has had special design features included to provide for many other kinds of activities and public uses and that there is no showing that the stadium will not benefit and be used by the public for other purposes than professional sports.
Whether the stadium could be a public purpose if used only for profit by professional sports teams is settled by the analogous Gaylord case, supra.
There a majority of the Court held that the exclusive use of a factory by U.S. Plywood under a lease purchase arrangement with the City of Gay-lord issuing revenue bonds under. 1963 PA 62; MCLA 125.1251 et seq.; MSA 5.3533(21) et seq. was a public purpose.
In that case the bonds were payable exclusively by U.S. Plywood and the city pledged to do nothing but collect the "rent” and pass it on to bondholders. We noted in Gaylord:
"The requirement of public purpose has been most rigid when public money or property is involved. [Cites omitted.] The requirement has been less rigid when there was no chance the general taxing power could be reached. [Cite omitted.]” 378 Mich 273, 295, note 8.
B. "Absolute Necessity”
Plaintiffs contend that, even if the stadium is a public purpose in the broad sense, § 11 of Act 31 under Walinske and Rude, requires a showing of "absolute necessity.” Whatever continuing validity this concept has for governmental users in a revenue bond situation is not before this Court but it is plain that the concept makes no sense when applied to private users of the stadium who must, as we have held, pay sufficient revenues to provide for the retirement of principal and interest on the bonds.
As the trial judge pointed out in his opinion at page 43:
"Now, Section 1 of the Building Authority Act permits any County to establish an authority for the purpose of acquiring a stadium or for the effective use thereof 'for use for any legitimate public purpose of the county.’ Previously the Building Act was primarily restated [sic —restricted] to buildings for government use. Such broad amendment language squares in no way with the previous stern judicial construction requiring 'absolute necessity’.”
The trial judge in this statement sees the rule of "absolute necessity” being too strict in a Gaylord case where the user was a private corporation or if in this stadium case the bond structure looked to the alternate users like the Tigers rather than the county as the source of revenue. We are in agreement.
However, the "absolute necessity” rule of Walinske and Rude related not to a private user but a user by government itself. Here the "absolute necessity” rule may well have continuing validity. Part of the reasoning in Walinske was that the revenue supporting the bond issue was a reasonable rental for a normal on-going governmental service. If the equivalent of such rent were not paid to the Building Authority it would have to be paid to someone else. This concept certainly has been useful in this field to date and there is no reason to abandon it here, where because of a distinguishable fact situation it is not squarely in issue.
C. Proof Of Increased Business Activity
Plaintiffs argue further that § 8 of the building authority act; MCLA 123.958; MSA 5.301(8) requires competent proof that the stadium will increase business activity and employment and that the record is devoid of such proof.
In support plaintiffs rely on the language of § 8 declaring that subleases to private corporations "thus to increase business activity and employment” are a legitimate public purpose. This language, say plaintiffs, is not a legislative determination but rather a "condition” which has not been met by adequate proof. We cannot agree. Reading of the statute without plaintiffs’ strained construction shows that this was a legislative conclusion and not a condition. Even if it were the latter, the record indicates that it is at least arguable that such increased activity will take place. Under such circumstances even a legislative "condition” would be met.
IX.
TIGER CONTRACT AND GRANT OF STATE CREDIT: CONST 1963, ART 9, § 6.
The trial judge, the Honorable Blair Moody, Jr., based his first opinion on the perfectly logical reason that since bond counsel claimed the bonds were revenue bonds all the users of the stadium should pay their proportionate share of the cost of liquidating the self-liquidating revenue bonds. He found that the Tigers were a user, or potential user of the stadium, and that their agreement with the county failed to require them to pay their proportionate share to liquidate the bonds. He therefore concluded that since the Tigers weren’t carrying their share of the load, the county was carrying the Tigers to the extent of the shortfall. He held the bonds illegal as a violation of Const 1963, art 9, § 18:
"Sec. 18. The credit of the state shall not be granted to, nor in aid of any person, association or corporation, public or private, except as authorized in the constitution.”
Some time later Judge Moody, who had been set an impossible time schedule by this Court in order to accommodate the bond sale schedule, concluded in a supplementary opinion that the stadium bonds are not revenue bonds under Acts 31 and 94 and hence are illegal. We have heretofore in Parts III, IV and V confirmed this opinion.
Let us now examine Judge Moody’s conclusion that the Tiger contract violates Const 1963, art 9, § 18. We respect his concern but on the record can neither affirm nor disapprove his conclusion.
If the stadium bonds are revenue bonds Const 1963, art 9, § 18 is not pertinent. This Court has several times held neither debt nor credit is involved in a true revenue bond situation. City of Gaylord v City Clerk, 378 Mich 273, 293-294 (1966). Consequently the credit of the state or county — state includes its subdivision county, Attorney General ex rel Barbour v Pingree, 120 Mich 550, 561 (1899); Oakland Drain Commissioner v Royal Oak, 306 Mich 124, 142 (1943) — is not involved in a true revenue bond situation. However, the stadium bonds are not revenue bonds and we shall examine how the Tiger contract affects them as tax bonds presently.
But first we come back to Judge Moody’s proper concern. If the stadium bonds were in truth revenue bonds, then any shortfall in the Tigers’ meeting their proportionate share of paying off the bonded indebtedness would be or should have been of very grave concern, not directly to the county, who under a revenue bond situation would be only morally involved, but directly and financially to the bondholders. Under a true revenue bond situation, the bondholders could look only to the actual users of the stadium, chief of which obviously were the Tigers, and not to the non-user county, to pay off the bonded indebtedness. If the Tigers weren’t going to pay their share, then the bondholders either would lose that much of their investment or, more likely, wouldn’t have bought the bonds in the first place.
This brings us naturally to considering the impact of Const 1963, art 9, § 18 on tax bonds, but we must pause one more moment. If the stadium bonds were revenue bonds and the bondholders had to look to such revenues for their payoff, then the state’s watchdog for the credit of the state, the Municipal Finance Commission, would be required by law to inquire whether the revenues from the users including the Tigers would pay off the bonds before approving the bond issue. There was obviously no such finding.
Now let us turn our attention to the stadium bonds as the tax bonds they really are, and examine what impact, if any, Const 1963, art 9, § 18 has on them.
Michigan case law interpreting Const 1963, art 9, § 18 is neither ample nor precise. It is clear the state or its subdivision the county cannot give anything away without consideration. Detroit Museum of Art v Engel, 187 Mich 432 (1915) (salary of employee of private museum, no consideration, no public purpose); Younglas v Flint, 345 Mich 576 (1956) (transfer of city park to US reserve armory) but see contra Sommers v Flint, 355 Mich 655, 663 (1959). See generally 15 McQuillin Municipal Corporations (3rd ed), § 39.30. Note that the constitution as far as the state and county are concerned makes no difference between a public and a private purpose in this regard. When the state acquires or transfers something of value in return for value the state does not offend Const 1963, art 9, § 18. Walinske v Detroit-Wayne Joint Building Authority, 325 Mich 562, 583 (1949) (lease of building); Jackson Broadcasting Television Corp v State Board of Agriculture, 360 Mich 481, 498 (1960) (time-sharing on rental basis of studio); Hays v Kalamazoo, 316 Mich 443 (1947) (Michigan Municipal League membership).
Now the nub of the problem in all probability is the value received by the state in return for the value transferred. So our inquiry goes to what is the value and who determines it. While the cases definitely describing all the earmarks of the value to be received appear yet to be written, it is probably because any citizen would immediately prescribe full value, and this Court is not going to argue with so logical, reasonable and just a standard.
Research has revealed only one case where this Court spoke on who shall determine the full value to be received by the government in connection with Const 1963, art 9, § 18. It assumed that a state contribution by the Legislature to a joint state-local highway project was a fair value and not a violation of the constitution. In State Highway Commissioner v Detroit City Controller, 331 Mich 337, 357 (1951), we said:
"However, the legislature has recognized that limited access highways will benefit the State as a whole and has provided for an apportionment of the cost. This is not a lending of credit within the meaning of article 10, § 12.”
Defendants have referred us to White v Grand Rapids, 260 Mich 267, 275 (1932), and other cases, where neither Const 1963, art 9, § 18 nor art 7, § 26 were discussed, for the rule that "under the circumstances it is immaterial whether the County made a good bargain or a bad one * * * .”
This Court will assume that the officers of the Legislative and Executive Branches will do their duty and exercise a proper judgment. The courts will respect that judgment unless there has been a clear abuse of discretion. Obviously, if the state or county were to make a valuable grant for next to no consideration, the courts would be forced to regard that not as an exercise of discretion, but an abuse of discretion.
Since the stadium bonds have already been held invalid by this Court for a number of reasons, it would serve no purpose to remand the case back to the trial court to review whether there was indeed a violation of Const 1963, art 9, § 18 under the rules we have enunciated or the observations we are about to make. In any event in the case of a tax bond, an invalid Tiger lease, while embarrassing to the county, would not invalidate the stadium bonds.
This Court must point out that with the stadium bonds in the posture of valid tax bonds the value to be delivered by the Tiger contract has to be judged by a different standard from a revenue bond case. In a revenue bond situation, the Tigers as users would have to pay their proportionate share to liquidate the bonded indebtedness, because in a real sense they are the obligors. In a valid tax bond situation, the Tigers aren’t bond obligors at all. The county is.
The county in the case of the stadium bonds as valid tax bonds would presumably have gone to the people for authority to issue the bonds for the purpose only incidentally of providing the public a first-class place to view sporting and other events but particularly to revitalize downtown Detroit and bring prosperity to the citizens of the community. The citizens in voting approval of the bond issue presumably would have been persuaded by the County Fathers that the Tigers and others would by their fair payments for stadium use pay for the largest percentage of the cost of erecting the stadium but that in order to achieve the benefits of revitalizing downtown Detroit and bringing renewed prosperity to the community and its citizens a minimum of property taxation was a contingent possibility and a good bargain at that.
Since under these circumstances everyone would have recognized from the beginning that this was a multi-purpose project the citizens would recognize it would be unfair to require the Tigers to pay more for their stadium use than the stadium was fairly worth to them to play ball in. However, the citizens would expect the Tigers to pay every cent it was worth to play in such a fine stadium that would attract such large crowds. The citizens would be content to pay whatever little that was necessary to make up the difference in retiring the bonds that would build the stadium that would do so much for them and the City of Detroit and Wayne County.
Our standard of value then for the Tiger contract would not be a proportionate share of the bonded indebtedness. The County Fathers might have to build a monument beyond the highest requirements of a ball club’s playing field to revitalize Detroit and it would be unfair and unrealistic to try to require the Tigers to carry the load of the general citizenry having such a monument. On the other hand, the County Fathers with great sagacity and prudence might design and build a stadium to revitalize Detroit which would supply a playing field on which the Tigers could win the pennant and draw huge crowds and pay a fair value in relation to the worth of the stadium to them which would nonetheless bring profitable revenues to the county to liquidate the bonds. In short in a valid tax bond situation, the Tiger contract must be judged not as paying its proportionate share of liquidating the bonded indebtedness for whatever kind of stadium but as paying a fair market value for the use of the practical facilities they needed according to the going rate under similar circumstances elsewhere in the country and with a view to the peculiar circumstances in connection with the Tigers and the local stadium which would be fair to consider.
To summarize:
1. Judge Moody’s holding the stadium bonds invalid under Mich Const 1963, art 9, § 6 evidenced a proper concern but until reflection beyond the impossible time frame dictated by the bond sale schedule permitted him to analyze that the stadium bonds were not the advertised revenue bonds but invalid tax bonds, the impact of Mich Const 1963, art 9, § 6 could not be wholly clear.
2. A Tiger contract not paying its full share under a revenue bond situation would either shortchange the bond buyers or make the bonds unsaleable. This would deflate the credibility of the county if not its credit. It should also have triggered the Municipal Finance Commission into disapproving the bonds in the first place. Under a revenue bond situation, there is no Const 1963, art 9, § 6 question.
3. Under a valid tax bond situation an alleged inadequate Tiger contract would be judged not by whether it was supplying its proportionate share of retirement of bonded indebtedness, which might be either too much or too little to ask according to whether the stadium was overpriced or a bargain for baseball playing purposes but by whether the Tiger contract was returning full value to the county for the value to the Tigers of the stadium facilities leased to them. The Tiger contract might violate Const 1963, art 9, § 6, but this would not invalidate the stadium bonds.
4. The Const 1963, art 9, § 18 proscription against state or county grant of credit is not offended by a fair exchange of value for value. Under normal circumstances the Legislative or Executive Branch is the judge of what is fair value in matters in which it is concerned, as the Tiger contract here, being answerable to the people for its good or poor judgment. Their judgment, however, is subject to judicial review for abuse of judgment.
X.
THE QUESTION OF NOTICE TO TAXPAYERS AND THE RIGHT OF REFERENDUM.
Because of the necessary great haste with which these appeals were briefed and argued, this Court made an independent framing of issues on appeal that were not adequately raised in the trial court. As was said in the Gaylord case by Justice Souris:
"[T]his Court cannot succumb to the tactical strategems of litigants which artifically restrict the Court’s performance of its duty when constitutional issues of public importance are involved.” Gaylord, 343.
One of the issues framed by the Court and argued by counsel in oral argument and supplemental briefs is as follows:
"What is the legal impact of the fact that 'notice’ to the public spoke of 'revenue bonds’ and 'notice’ to the bond buyers referred to the same bonds as bonds secured by the general obligation of the County?”
There is no absolute constitutional right to a vote on revenue bonds but under § 33 of Act 94; MCLA 141.133; MSA 5.2763 a vote must be held if, within 30 days of the publication of a "Notice of Intent to Issue Bonds,” a petition is filed signed by 10% of the electors of the borrower.
Before discussion of any legal questions raised by the content of the Notice of Intent to Issue Bonds, we shall set out facts showing who was told the real, unlimited-tax-obligation nature of these bonds and when they were told and who was lulled to sleep by being told the stadium would be built by revenue bonds, meaning no cost to the taxpayer. The importance of this cannot be minimized since the taxpayers’ right to a referendum under § 33 of Act 94 accrues upon the publication of the Notice of Intent and expires 30 days thereafter.
The purpose of this presentation is to make clear what information a reasonable elector had available from an official source to act upon at the time his right to seek a referendum accrued.
A. Comparison of Official Bond Descriptions to Taxpayers and Bond Buyers
What the facts below will show is that the taxpayer was never made aware in any official way — that his taxes in unlimited amounts might pay the minimum $371,000,000 bill for the stadium. The key language describing the real nature of these bonds is one short paragraph that was neatly excised from notices to taxpayers but prominently displayed in notices to bondholders. For shorthand reference we shall call this paragraph the "Tax Paragraph” and we will refer to it as such in this discussion. The Tax Paragraph with its important language follows:
"By the terms of the Lease the County of Wayne has agreed to pay annually as the Fixed Rental for the said Stadium such amount as is necessary to pay the principal of and interest on these bonds and additional bonds of equal standing and the obligation to pay said rental is a general obligation of the said County of Wayne which is authorized and obligated by law to levy an ad valorem tax on all taxable property within the said county, without limitation as to rate or amount, to provide the funds necessary to pay said annual rental in anticipation of which these bonds have been issued.” (Emphasis added.)
The following discussion will show how in each notice to the taxpayers the eye-opening and wallet-jolting message of the Tax Paragraph was curiously absent. At the same time the message of this Tax Paragraph was conspicuously present and brought home over and over again in notices to bondholders. We shall begin by looking at what was said in the articles of incorporation of the Wayne County Stadium Authority.
1). ARTICLES OF INCORPORATION (Public Notice)
These articles were adopted on August 20, 1970 and were published in the Detroit Free Press on November 5, 1970 as notice to, and for the benefit of the public.
The only section of the articles dealing with the possibility of issuing bonds makes no mention whatsoever of the fact that Wayne County and the Authority were laying plans to issue unlimited tax bonds. In fact, the articles suggest plainly that any bonds would be paid by the actual users of the Stadium:
"For the purpose of acquiring, improving * * * (etc.) the Authority may issue self-liquidating revenue bonds in accordance with and subject to the provisions of Act 94 * * * and Act 31: provided, that such bonds shall be payable solely from the revenue of such properties, which revenues shall be deemed to include payments made under any lease or other contract for the use of such properties: and provided further, that no such bonds shall be issued unless the properties whose revenues are pledged have been leased by the Authority for a period extending beyond the last maturity of the bonds.” (Emphasis added.)
The average taxpayer, or for that matter even the average judge or lawyer, would have no idea that the language above is a verbatim quote— almost — from § 11 of Act 31. What the average taxpayer or judge or lawyer would not recognize is that the conveniently omitted part of § 11 is the only part that might lead a taxpayer to fear for his pocketbook. Here is what the articles of incorporation might look like if they included the omitted part of § 11 of Act 31 (omitted parts in CAPS):
"For the purpose of acquiring, improving * * * (etc.) the Authority may issue self-liquidating revenue bonds in accordance with and subject to the provisions of Act 94 * * * and Act 31: provided, that such bonds shall be payable solely from the revenue of such properties, which revenues shall be deemed to include payments made under any lease or other contract for the use of such property: WHERE * * * BONDS ARE PAYABLE FROM REVENUES DERIVED FROM PAYMENTS * * * PURSUANT TO ANY LEASE OR OTHER CONTRACT OBLIGATIONS, THE BONDS SHALL BE DEEMED TO BE ISSUED IN ANTICIPATION OF CONTRACT OBLIGATIONS * * * WITHIN THE MEANING OF SECTION 6 OF ARTICLE 9 OF THE CONSTITUTION and provided further, that no such bonds shall be issued unless the property whose revenues are pledged has been leased by the Authority for a period extending beyond the last maturity of the bonds.” (Emphasis added.)
Now there appears a little more puzzling situation! Assuming that a studious taxpayer might immediately reach for his handy copy of the constitution, he could turn to § 6 of article 9. Our reasonable taxpayer may not know — just as the legal profession doesn’t know — precisely what this section of the constitution means, but there is little question that anyone looking at it would get some idea that it has something to do with unlimited taxes paying for bonds. Looking in Const 1963, art 9, § 6 for words dealing with "contract obligations,” the taxpayer would find the following:
"The foregoing limitations [limits on ad valorem taxes] shall not apply to taxes imposed for the payment of * * * contract obligations in anticipation of which bonds are issued, which taxes may be imposed without limitation as to rate or amount * * * (Emphasis added.)
Had the articles of incorporation included the language above, then a very studious taxpayer (or lawyer) might have gotten some idea that unlimited taxes could be involved and might have started asking questions so that this project could be put into perspective before it got too far along.
If the reader will recall, the Tax Paragraph first quoted above mentioned that the county was "authorized and obligated” to tax without limitation as to rate or amount. We point out that conveniently absent from the articles’ words, capitalized above, are the words that do the "authorizing and obligating” in the Tax Paragraph. That missing language is what is supposed to make the Tax Paragraph legal. That absent language has been the linchpin of bond counsel’s arguments on appeal.
2). LEASE BETWEEN COUNTY AND AUTHORITY (Privately circulated)
The Lease between the county and the Authority was approved on September 23, 1971, and to this day has never been published for benefit of taxpayers. As the Michigan Education Association noted in their brief amicus curiae (p 8):
"Until trial of this cause, no citizen could readily comprehend the magnitude of this project, and the burdens which will now be placed on the public to finance the same. To this day such minor details as the actual cost of the Stadium, the rental payments required of the County, and the operational revenue, remain a mystery.”
Although the Lease was filed with the county clerk, there was no way a citizen could know it was on file there. It was a different story with respect to bond buyers and underwriters, however, for they were given not only succinct summaries of the parts of the Lease describing the county’s tax obligation but they were also hand-delivered neatly bound copies of the Lease and all other important documents. What in the Lease would be of such material interest to bond buyers that it should be summarized in the "Prospectus” and the bond buyers also given bound copies of the Lease? Following are pertinent quotations of some of the more interesting provisions of the Lease as quoted and summarized in the Prospectus given to bond buyers:
"The Fixed Rental shall be deemed to be a general obligation of the county and the other expenses to be essential operating expenses of the county.” Prospectus, p 11; Lease, § 4(d) (trial exhibit 10; trial exhibit 2a, p 9).
Another interesting provision is § 8 of the Lease which tells the reader that the stadium must be built and paid for by the county no matter how much it costs and if the county does not choose to pay for it in cash the Authority must issue additional bonds and increase the county’s tax-supported rent obligation. See Prospectus, pp 12-13; Lease, § 8; bond ordinance §§ 1101-1102 (trial exhibit 10; trial exhibit 2a, pp 13-14; trial exhibit 2c, pp 31-32).
The Prospectus and Lease get right down to particulars and make clear that the county has to pay for these bonds no matter what happens:
"So long as any of the Bonds remain outstanding, unless their payment has been provided for, the obligation of the County to pay the Fixed Rental shall be absolute and unconditional and shall not be abated, reduced, abrogated, waived, diminished or otherwise modified in any manner or to any extent whatsoever, regardless of any rights of setoff, recoupment or counterclaim that the County might otherwise have against the Authority or any other party or parties and regardless of any contingency, act of God, event or cause whatsoever, notwithstanding any circumstances or occurrence that may arise or take place before, during or after the acquisition of the Stadium, including, but without limiting the absolute and unconditional obligation of the County described above: (a) destruction of the stadium * * * ; (b) the taking * * * of * * * the * * * Stadium * * * by * * * eminent domain or otherwise; (c) any assignment * * * subleasing or other similar transaction * * * ; (d) the expiration of the term of the Lease; (e) any failure of the Authority to perform * * * any agreement or covenant ***;(£) the failure to complete * * * the Stadium, whether due to the fault or negligence of the Authority or any other cause or reason; (g) any acts or circumstances that my constitute an eviction * * * Prospectus, p 11; Lease, § 13 (emphasis added). (Trial exhibit 10; trial exhibit 2a, pp 18-20.)
From here on things begin to be more complicated so let us summarize what has happened so far:
a) The articles of incorporation were published for the benefit of the public and in the minimum form required by the statute. A key section of a statute was quoted almost verbatim in the articles, but left out any hint of power for unlimited taxes.
b) Then, relying upon the part of the statute left out of the articles, the county made a Lease with the authority to create unlimited tax bonds. The Lease has never been published but has been given to bondbuyers.
3). NOTICE OF SALE (bondbuyer notice)
Four days after the approval of the Lease the Authority held a meeting on September 27, 1971. At this meeting an "Official Notice of Sale” prepared by bond counsel was reviewed by the Authority and approved for later publication in a limited circulation paper known as the Daily Bond Buyer. The notice of sale was ultimately published on March 30, 1972, over five months after taxpayers’ rights of referendum had expired.
Significantly, the Authority and bond counsel thought the readers of the notice of sale in the Daily Bond Buyer (months hence) should have the information in the Tax Paragraph, but that the taxpayers of Wayne County should not have any official published description of the real nature of these bonds as contained in that private paragraph.
So far we have seen:
a) That in the Articles of Incorporation § 11 of Act 31 was quoted almost verbatim but the language left out is the language which is supposed to authorize the county to make a Lease which creates general obligation bonds supported by unlimited taxes.
b) Then we saw that the county approved a Lease that is supposed to create this general obligation.
c) On the same day with the help of the drafting skills of bond counsel, the Authority prepared the official notice to bond buyers including the Tax Paragraph to make sure — as required by Federal law — that bond buyers would not be misled about what the County promises to do, but never pub lished this until five months after tax payers’ rights of referendum had expired.
Read again the words of the Tax Paragraph, so helpfully edited out of public notices, and see how well it describes the Lease:
"By the terms of the Lease the County of Wayne has agreed to pay annually as the Fixed Rental for the said Stadium such amount as is necessary to pay the principal of and interest on these bonds and additional bonds of equal standing and the obligation to pay said rental is a general obligation of the said County of Wayne which is authorized and obligated by law to levy ad valorem tax on all taxabfe property within the said county, without limitation as to rate or amount, to provide the funds necessary to pay said annual rental in anticipation of which these bonds have been issued.” (Emphasis added.)
4). TAXPAYERS’ NOTICE OF VOTING RIGHTS ("Notice of Intent”)
As far as taxpayers are concerned this is the only important document because it triggers a 30-day right of referendum. Once the notice appears the taxpayer, after reading the notice, can decide whether he objects to the project. If he does object he has the right to collect signatures and bring the matter to a full vote.
This "Notice of Intent”, also drafted by bond counsel, was considered and approved by the Authority at the very same meeting the Tax Paragraph was approved. The Notice of Intent was published in the Detroit Free Press on September 29, 1971. Recall that at this date the Tax Paragraph, the Lease and any other documents suggesting "tax bonds” were still resting safely in the files of the Authority.
To this point the only documents prepared and published for taxpayers were the articles of incor poration. They suggest no tax. On September 23, the Lease was approved containing the tax bond structure. It was not and has not been published. On September 27, both the "Notice of Sale” for bond buyers and the "Notice of Intent” for the public were reviewed and approved. The "Notice of Sale” contains the Tax Paragraph. "The Notice of Intent” contains no Tax Paragraph or other suggestion of taxes. The "Notice of Sale” was filed away for later publication to bondbuyers and the Notice of Intent was approved for immediate publication to the people.
Here is what the taxpayers were told about these bonds and all they ever officially learned until it was too late:
"PLEASE TAKE NOTICE that the Commission of the Wayne County Stadium Authority intends to issue and sell Revenue Bonds of the Authority, pursuant to Act 94, Public Acts of Michigan, 1933, as amended, and Act 31, Public Acts of Michigan, 1948 (First Extra Session), as amended, in an amount not to exceed One Hundred Twenty-Six Million ($126,000,000.00) Dollars, for the purpose of paying the cost of acquiring, constructing, furnishing and equipping a new stadium in downtown Detroit together with a separate parking facility therefore and appurtenant properties and facilities necessary or convenient for the effective use of the stadium and parking facility and acquiring the site for the separate parking facility all for the use of the County of Wayne.
'Said bonds shall be payable from rental to be paid by the County of Wayne to the Authority.
"THIS NOTICE is given pursuant to the requirements of Section 33, of Act 94, Public Acts of Michigan, 1933, as amended.”
This notice tells the taxpayer four things:
1) The Authority intends to issue "revenue bonds” under Act 94 and Act 31;
2) for building a $126,000,000 stadium for Wayne County;
3) the bonds will be paid by rentals to be paid by the County to the Authority;
4) § 33 of Act 94 requires the notice to be published.
1. What is a "revenue bond”? If he didn’t already know, a studious taxpayer could find from the city library how to look up the acts and the laws construing them and he would be comforted by the words found over and again in cases such as Gaylord:
"[S]elf-liquidating bonds * * * do not obligate the general taxing power.” Gaylord, supra, 290.
2. How much will the stadium cost? There was no official public statement that the real cost of the stadium would be $371,000,000. This information was in the Lease, but the notice above makes no reference to that Lease.
3. How will these bonds be paid? The studious taxpayer already knows that a general tax will not be levied. What does this neatly equivocal paragraph tell him? Bonds will be paid from "rentals” that the County of Wayne will pay to the Authority. The stadium is for baseball and football games, conventions, etc., so it must mean that the football teams, baseball teams and the like will pay rentals to the county and these rentals will be "paid by the County of Wayne to the Authority.”
But we now know that what was really meant was that the bonds shall be payable from "rentals to be paid by the County of Wayne to the Authority” under a Lease in which the County of Wayne pledges to tax without limitation as to rate or amount and under which any payments from baseball teams, football teams and the like are irrele vant and the county must tax even if the stadium is empty.
4. Why was the notice given? The notice states that it was given because § 33 of Act 94 requires it. There is not a single word in the notice suggesting that the taxpayers have a right to seek a vote on these bonds. Nothing in the notice says that the whole purpose and reason this notice is required is to trigger a right of referendum.
This Notice of Intent contained the only official description of these bonds to taxpayers. The legal purpose of the Notice is to provide information so a taxpayer can decide whether to seek a vote. Upon reading this "Notice of Intent” are there any words which by any reasonable stretch of the imagination suggest an unlimited tax obligation of potentially $371,000,000? Is there anything suggesting a right to vote? In short, can a reasonable taxpayer upon reading this notice make any informed judgment about whether he should start organizing his friends and neighbors for a petition drive to prevent the imposition of potentially enormous additional tax burdens?
5). THE BOND FORM (Published wording of the Bonds)
We would now end this discussion of the selective description of these bonds except bond counsel tells us that a "Bond Ordinance” was published on October 1, 1971, two days after the publication of "Notice of Intent” and during the period of taxpayers’ rights of referendum. He says this describes the bonds to them. He is wrong.
First, if it describes the bonds so well the question arises of why it wasn’t published with the "Notice of Intent” since the Bond Ordinance was also considered and approved at the same meeting as the Notice of Intent and "Official Notice of Sale,” on September 27, 1971. Why separate the two in publications two days apart? Second, we note that the Bond Ordinance is a meaningless document without the unpublished Lease because they incorporate provisions of each other. The body of the Bond Ordinance makes no mention whatsoever of unlimited tax obligations. But all of this is not so important because the key description of the bonds is in the "Bond Form” at the end of the bond ordinance.
In the Bond Form is the following paragraph which we shall call the "Revenue Paragraph”: It reads as follows:
"Each Bond is a self-liquidating revenue Bond, is not a general obligation of said Authority or of said County, and does not constitute an indebtedness of said Authority or of said County, within any constitutional provision or statutory limitation. The principal of and interest (except capitalized interest) on the Bonds of this series are payable solely from the Fixed Rental to be paid by said County under the terms of said Lease, and the payment of both the principal of and interest on said Bonds, and on any additional Bonds of equal standing which may be issued pursuant to their terms of said Ordinance, is secured by a statutory first lien on such Fixed Rental.” (Emphasis added.)
This is what was published on October 1st, 1971. There is no mention of the unlimited tax obligation and the Tax Paragraph is not in this public Bond Ordinance #1. There is another bond ordinance, however, Bond Ordinance #2.
Four months after taxpayers’ referendum rights expired, the Authority held a meeting and amended the Bond Ordinance and published Bond Ordinance #2. The description of the bonds in Bond Ordinance #2 is word-for-word the same (almost) as the description of the bonds in Bond Ordinance #1. The Revenue Paragraph was left exactly the same and the paragraph following it (the words of which are not important here) was also exactly the same. But in this Bond Ordinance #2 the Authority was able to push these two paragraphs just far enough apart to insert the Tax Paragraph. So finally, 4 months after rights of referendum expired, the real unlimited tax nature of these bonds was placed in an official notice published on March 4, 1972 in the Detroit News.
This is the way the taxpayers were dealt with. Now we will consider whether this selective dealing, as reprehensible as it might be, is a case where the law can only say it is regretable but legal, or whether there is some principle of law which would hold that the taxpayers were legally shortchanged by these disclosure practices.
B. Is The Notice of Intent Legal?
In oral argument and supplemental briefs plaintiffs argue that constitutional due process was denied to taxpayers by misleading notices. Their position is well summarized by the Michigan Education Association in their brief amicus curiae, pp 7-8:
"The MEA does not oppose the construction of a riverfront stadium in Detroit. It does oppose the procedures utilized herein, however, and in particular points to the lack of notice to its members and the general public. Although "notice” was given to the general public and MEA members of the pendency of a "revenue” bond issue, said notice was inherently deceptive and misleading. The guarantee of due process seems somewhat less than adequate when we now realize that a good share of the revenues required to fund this project will, in all likelihood, be generated by ad valorem taxes levied against the taxpayers of Wayne County.
"We protest the lack of notice given, and the form of the same. The notice itself is violative of the due process clauses of both Michigan and Federal Constitutions.” (Emphasis added.)
Defendants have not tried to argue that the taxpayers’ notices were models of full and candid disclosure. Defendants’ counsel chose, wisely, not to meet head-on the charge that the notices were misleading and a denial of due process. Instead they make an argument in the nature of confession and avoidance. It goes like this:
(a) The requirement of notice is purely statutory since the Michigan Constitution permits, but does not require that any "Notice” be given or any referendum held to issue these bonds, City of Gaylord v Gaylord City Clerk, 378 Mich 273, 304 (1966).
(b) Since a notice is not required by the constitution then, even though Act 94 requires Notice of Intent, it is sufficient in law to include in the Notice only what Act 94 specifically requires and no more, Gaylord, Id.
(c) The only thing specifically required by Act 94 to be included in the Notice is the "amount of the issue,” so this notice more than satisfies the requirements.
(d) The Municipal Finance Commission approved this Notice and has approved many others like it as adequate and sufficient compliance with constitutional and statutory requirements.
Undressed of legal finery and phrased starkly, but nonetheless accurately in legal contemplation, the position of the parties is as follows. Plaintiffs say on behalf of the taxpayers:
"The 'Notice’ was so deceptive and misleading that it is not really 'notice’ of the truth at all. We were deprived of our chance to vote.”
Bond Counsel answers on behalf of the government:
"There’s no constitutional requirement for notice. We have complied with the statute. If we didn’t tell you the bonds were tax bonds before the referendum rights expired we didn’t have to and it’s your tough luck.”
Arguments like that of defendants have long been uniformly rejected by the courts. The argument usually crops up in cases where a citizen complains that the government or someone acting pursuant to government blessing and regulation has dealt unfairly with the citizen respecting such things as his driver’s license, his government job, or some other government-citizen legal relationship.
We recently had occasion to consider this "take-it-or-leave-it” argument in Viculin v Department of Civil Service, 386 Mich 375, 386-388 (1971).
One of the claims of defendant Civil Service Commission was that since Donald Viculin had no constitutional right to his job he had no right to review of his dismissal under Const 1963, art 6, § 28 which guarantees review of administrative determination affecting "private rights or licenses”. In answer, a unanimous Court adopted the principle stated in Cafeteria & Restaurant Workers Union v McElroy, 367 US 886, 894; 81 S Ct 1743; 6 L Ed 2d 1230 (1961):
" 'This question cannot be answered by easy assertion that, because she had no constitutional right to be there in the first place, she was not deprived of liberty or property by the superintendent’s action. "One may not have a constitutional right to go to Baghdad, but the Government may not prohibit one from going there unless by means consonant with due process of law. ” ’ ” Viculin, 387. (Emphasis added.)
See also Goldberg v Kelly, 397 US 254, 262; 90 S Ct 1011; 25 L Ed 2d 287 (1970); Fuentes v Shevin, 407 US 67; 92 S Ct 1983, 32 L Ed 2d 556 (1972).
In Wilkins v Ann Arbor City Clerk, 385 Mich 670, 678, (1971) we noted the rule of Kramer v Union Free School District, 395 US 621; 89 S Ct 1886; 23 L Ed 2d 583 (1969). There the Court said that even though there is no Federal constitutional right to vote in certain school elections, once the right is given, lines cannot be drawn inconsistent with equal protection. Id, 629. The same rule applies to voting on revenue bond issues, Cipriano v City of Houma, 395 US 701; 89 S Ct 1897; 23 L Ed 2d 647 (1969); Phoenix v Kolodziejski, 399 US 204; 90 S Ct 1990; 26 L Ed 2d 523 (1970).
The principles of the cases from Goldberg, Wilkins, to Phoenix and Viculin is simply that a citizen, merely because he has no constitutional right to something, cannot be forced to take that something burdened with whatever classification and unfair procedures the Legislature attaches. Once a right is given, be it a job, the right to vote, a telephone, the right to hold property, the right to bid on government contracts or whatever, that right cannot be restricted by means not consonant with due process. See Viculin, 387-388.
While it is true that many of the voting cases have dealt with claimed denials of equal protection, it must be remembered that every denial of equal protection is a fortiori, a denial of due process. See the analysis of Mr. Justice Stone, concurring in Hague v CIO, 307 US 496, 518 ff; 59 S Ct 954; 83 L Ed 2d 1423, (1938). How then can it be said that the state may not grant a "privilege” in violation of equal protection but that it somehow can grant a "privilege” and burden it with procedures violative of due process? The plain answer is that it cannot.
The state here has granted a right to petition for a vote on revenue bond issues. The right to petition is triggered by a notice required by § 33 of Act 94. Does the notice given comport with due process?
In Ridenour v Bay County, 366 Mich 225 (1962) we had before us the power of a board of public works to determine special assessments against property in a drain district. The statute, 1957 PA 185; MCLA 123.754; MSA 5.570(24) provided that before "confirming” a special assessment roll there would be hearings preceded by publication of notice twice before the hearing. After the hearings and "confirmation” the assessments were final unless attacked in court within 30 days.
Notice was published under the statute and, in addition, was sent by first class mail to all persons who, according to the special assessment roll, owned property in the special assessment district. The "confirmation” occurred on February 16th and was not attacked within the 30 days provided by statute. Suit in equity was started a month later by plaintiffs. The county filed a cross bill under the Public Securities Validation Act, 1959 PA 161, §3; MCLA 691.483; MSA 3.994(3). The Securities Validation Act provided for notice to the public published in a newspaper for three consecutive weeks. We point this latter statute out to make clear that there were two separate "notice” provisions before us in Ridenour; both held invalid.
One was the notice provision of the Public Securities Validation Act, last mentioned, 1959 PA 161, § 7; MCLA 691.487; MSA 3.994(7). The notice there was designed to perfect the ruling of the circuit court determining the validity of bonds secured by special assessments against all objections. We held that the statute violated the Fourteenth amendment of the Federal Constitution and art 2, § 16 of the Michigan Constitution of 1908 for failing to provide adequate notice for known parties. Ridenour, 242-243.
We also held invalid the notice provision of 1957 PA 185, § 24, supra, regarding the hearing by the board of public works. The significance of this is that we applied the requirements of due process for securing personal jurisdiction in a court of law to non-adversary hearings before a board that would, in practical effect, determine the rate of tax on benefited properties — even though provision was made for a later contest in court.
In our decision we relied on the principles of Mullane v Central Hanover Trust Co, 339 US 306; 70 S Ct 652; 94 L Ed 865 (1950):
" 'But when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.’” Ridenour, 241. (Emphasis added.)
In Mullane, the Court held that personal notice to known beneficiaries of a common trust fund must be provided. Respecting the fine print in the published notices the Court said:
"Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper * * * .” Mullane, 315.
The Court also found the notice defective for failure to state its purpose:
"The chance of actual notice is further reduced when as here the notice required does not even name those whose attention it is supposed to attract * * * Mullane, 315.
In Ridenour, the taxpayer had a right to object at a "hearing”. The hearing would cut off rights to object to special assessments subject to 30 days’ opportunity for contest in court. The "notice” served to inform them of the hearing at which they could object. Here, the taxpayers have a right to object by petition within 30 days, which cuts off the right to object further. Here, however, the notice does not serve merely to inform taxpayers of the pendency of some other independently created proceeding at which they may object. Here the notice itself creates the right to object and petition and the notice also determines the cutting off of the right.
The notice here is defective in both its method of reaching taxpayers and its substance.
1) The notice is defective in its method of reaching taxpayers because the right to petition cannot be created and cut off by fine print in the back of a newspaper. As was said in Mullane:
"Publication may theoretically be available for all the world to see but it is too much in our day to suppose that each or any individual beneñciary does or could examine all that is published to see if something may be tucked away in it that affects his property interests. We have before indicated in reference to notice by publication that, 'Great caution should be used not to let ñction deny the fair play that can be secured only by a pretty close adhesion to fact.’” Mullane, 320. (Emphasis added.)
We do not hold that due process requires personal notification of every taxpayer, nor do we hold that there must be any mailed notice or personal notice to everyone. Mullane holds only that the method of notice chosen must give reasonable assurance of actually giving notice in light of other available means:
"The statutory notice to known beneficiaries is inadequate, not because it in fact fails to reach everyone, but because under the circumstances it is not reasonably calculated to reach those who could easily be informed by other means at hand.” Mullane, 319. (Emphasis added.)
The kind of notice required depends on the circumstances of the case and the availability of other means in both a theoretical and economic sense. Here, for example, there is involved not merely a true revenue bond where there is no chance of taxation, but rather bonds secured by the general, unlimited taxing power of the county. The bonded project involves the expenditure of substantial sums of money. It is not unreasonable under the circumstances to consider other available means of notice such as full page advertisements; television; radio; or combination of any of the above. The method may vary but the question always to be asked of itself by the government is whether it has chosen a method it would choose if it were really desirous of actually informing the greatest number of electors of what their rights are.
2) The notice here is also defective in substance because it fails to inform the reader of its purpose and because it is misleading.
The purpose of the notice is to create and determine a method of objecting to a bond issue by petitioning for a vote. That purpose is not served by a simple statement that the notice is given because it is required to be given. It is no answer here to say that these notices "conform to accepted practice in building authority projects.” Customary process is not necessarily due process.
To comport with due process any notice respecting petition rights on bonds supported by any pledge of tax power must state to whom the notice is issued and for what purpose: (a) it must tell, in this case, the electors and taxpayers of Wayne County that it is issued for their benefit; (b) it must contain enough information so that it can be told from its face in plain and understandable language that the notice concerns some particular right or obligation respecting the subject matter of the notice; (c) the notice must explain the nature of the right (or obligation) and what is required to exercise it and the consequence of not exercising it; (d) regarding the subject matter of the notice there must be enough information so that a meaningfully informed decision respecting the right can reasonably be made from information supplied in plain language on the face of the notice.
Defendants’ counsel say, however, that people complained in the past when too much information was printed. We do not require and would not tolerate a magnum opus as misleading in its complexity as this "Notice” is in is brevity. Counsel knows as well as the Court that it takes as few words in plain English to tell taxpayers about potential burdens as it does to mislead them in compact legal phrases of art.
Where public officials are acting under a constitutional and statutory duty to give notice to the public of what the government proposes, and especially where it concerns rights of electors respecting important undertakings of government such as the issuance of bonds secured by taxing powers, then the government and its public officials, in the exercise of the duty of informing, occupy a position of trust and a fiduciary standard should be applied to them. Cf, Barkey v Nick, 11 Mich App 381, 385 (1968).
In giving notice to taxpayers regarding public securities, to comport with due process the notice must be phrased with the general legal sophistication of its beneficiaries in mind. As phrased it must not make any misleading or untrue statement; or fail to explain, or omit any fact which would be important to the taxpayer or elector in deciding to exercise his right. In short, the notice may not be misleading under all the circumstances.
In addition, proper notice cannot reasonably be accomplished until after the terms of the issue have been approved by the Municipal Finance Commission because the terms of the issue about which the notice speaks are not determined until then. The Municipal Finance Commission has an obligation to insure that the notices as well as the bonds themselves comply with the law.
The similarity between this standard and the standards under SEC Rule 10b-5, 17 CFR 240.10b-5 is more than accidental. While much less in the way of detail may be required here, the principle is the same. Misleading statements in connection with the issuance of public securities, even to one who is neither a "purchaser” nor a "seller” but who has a right to try to prevent the securities from being issued, are within the condemnation of Rule 10b-5 (3) which prohibits "any person, directly or indirectly”
"3) to engage in any act * * * which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” (Emphasis added.)
It is contrary to the public policy of this state to permit the officials of our public corporations issuing bonds to act in ways which, under other circumstances, would be actionable if officials of private corporations issued bonds by securing shareholder approval through misleading notices.
The "Notice” here is more than simply against public policy as being contrary to the spirit of Rule 10b-5. Act 94 creates a right to the notice and opportunity for petition. The notice must comport with due process. The notice is misleading. Misleading process is not due process. The bonds are invalid since there has been no valid notice given under § 33 of Act 94.
We do not consider here whether the 10%-in-30 days referendum requirement as applied to Wayne County is an arbitrary and unreasonable condition placed on the right to petition. We note there are now over 1.3 million electors in Wayne County so the 10% requirement amounts to one person getting one signature every 20 seconds, 24 hours a day for 30 days.
By way of comparison, all that is required for statewide legislative referendum is 5% of the total vote cast for Governor in the last election within 90 days after the close of a session (Const 1963, art 2, § 9). If that standard were applied to this local transaction the figures would be as follows. There were approximately 780,000 votes in Wayne County for Governor at the last election. Five per cent of that is 39,000 signatures in 90 days or 13,000 signatures in 30 days. Act 94 required 10% of the registered electors, as of the time of the petition drive within 30 days. In September of 1971 there were approximately 1,200,000 registered electors in Wayne County. Ten per cent of that is 120,000 signatures compared to 13,000 applying the standards of statewide referendum to this local transaction, or about 10% vs 1.1%. In addition, of course, the act to go to referendum might have been passed in the first part of the session which would allow legislative petitions much more time.
Here, however, there has been no allegation that anyone tried and was unable to secure the signatures. On the other hand, there is no allegation that anyone knew they had a right to secure signatures. Nevertheless, we save our consideration of this for a future case in which the issue is raised.
XI.
OTHER ISSUES.
A. Failure to Pre-set Rates & Prohibition of Free Services Under Act 94
Questions raised by Plaintiffs relating to the failure to pre-set rates under Act 94, § 21; MCLA 141.212; MSA 5.2751 and the prohibition of free services under Act 94, § 18; MCLA 141.118; MSA 5.2748 are disposed of by our holdings above.
B. Impact of Alleged Professional Impropriety on Legality of Bonds
The question of possible professional impropriety by attorneys connected with this case was raised before this Court. The matter was brought before us not to raise a disciplinary question but rather as one reason to invalidate the stadium bonds. This Court has held these bonds invalid for direct intrinsic legal reasons so that it would be unnecessary surplusage to now consider the legal impact of such a collateral extrinsic issue on the validity of the bonds. Nonetheless, an open charge of professional misfeasance has been made and the makers of the charge should, in fairness and justice, take appropriate action forthwith.
XII.
CONCLUSIONS.
In summary we reach these principal conclusions:
1. The acquisition, operation and subleasing of a stadium for the use of professional sports organizations may be a legitimate public purpose. It would appear possible to do so under a legally structured revenue bond issue under Acts 31 and 94, alone or in combination, under appropriate circumstances as well as by new legislation.
2. Although the stadium bonds relate to a legitimate public purpose under the Michigan Constitution, the bonds in this case were structured to be general tax bonds, secured by the full faith and credit of the county to tax without limit, rather than the revenue bonds authorized by Acts 31 and 94, which must be secured exclusively by the revenues derived from the operation of the public improvement. The bonds are therefore illegal because they do not comply with the requirements of Acts 31 and 94. Under § 7 (2) of Act 94, the only exception to a pure revenue bond is if more than 25% of financing comes from a Federal or state "grant” and the stadium project does not qualify under this exception.
3. Under the rule of the Michigan Turnpike case when the incorporating authority pledges its general tax power to pay the rental obligation to the Authority, the "alter ego” doctrine comes into play and the county and the Authority are considered as the same entity. Since the county and Authority are therefore considered as the same entity, the county’s pledge of unlimited tax power runs directly to the bondholder. Such a pledge is not permitted under Act 94 so the bonds are illegal.
4. Even if § 11 of Act 31 were exactly precise and specific in evidencing a legislative intent to include the unlimited tax authorizations and immunities from statutory and constitutional tax rate limitations that defendants claim, Act 94 does not provide for these exceptions. In order to incorporate Act 94 into Act 31 and at the same time amend Act 94, the Legislature must have complied with the reenactment and republication requirements of Const 1963, art 4, § 25. Specifically, that part of § 11 of Act 31, which for convenience in this opinion we have labeled § ll[d], reads as follows:
"Where and to the extent that the bonds are payable from revenues derived from payments to be made pursuant to any lease or other contract obligations, the bonds shall be deemed to be issued in anticipation of contract obligations and such obligations shall be deemed to be contract obligations in anticipation of which bonds are issued, within the meaning of section 6 of article 9 of the constitution.”
This part of § 11 of Act 31 quoted above is null and of no effect because the sections of Act 94 to be amended were not reenacted and republished as required by Const 1963, art 4, § 25.
5. If § 11 of Act 31 intends, as defendants claim, to permit taxation without limitation to pay fixed rentals, then § ll[d] quoted above exceeds the scope of the title to Act 31 in violation of Const 1963, art 4, § 24 and also imposes a tax without distinctly stating it in violation of Const 1963, art 4, § 32.
6. Section 13 of Act 94 requires that any bonds issued under Act 94 may not be indebtedness under any constitutional or statutory provision. These bonds state on their face that they do not constitute an indebtedness within any statutory or constitutional provision. The bonds do create an indebtedness within Const 1963, art 7, § 11, however, because the county has created a present unconditional obligation to pay the total debt service secured by their pledge to tax without limit. In addition, the county has created indebtedness on the bonds in two other ways: 1) the county has directly agreed to give bondholders the power to enforce the Lease Contract, one covenant of which is the pledge of unlimited tax support, and 2) the county’s pledge of general taxing power to support the rent places the county in the shoes of the Authority under the rule of Michigan Turnpike so their obligations to the Authority are also their obligations to the bondholders. The bonds are therefore illegal because they do create an indebtedness within the meaning of Const 1963, art 7, §11 contrary to the statement on their face and the requirements of § 13 of Act 94. The approval of the Municipal Finance Commission required under § 27 of Act 94 is without legal eifect since it was premised upon these bonds not being debt.
7. Under MCLA 46.7 an unchartered county such as Wayne County may not "raise” any more than l/10th of 1 mill for building purposes without a vote of the people. Under the rule of the Rude case, the county has "raised” for building purposes the total amount of its obligations under the Lease because it has pledged unconditionally to pay the sums due under the Lease and this is not "rent” nor is it "reasonable rent” under the rule of Rude. Section 8 of Act 31, however, purports to remove this transaction from the operation of MCLA 46.7 when it states:
"Any rental obligation or consideration applicable to the incorporating unit or units under such contract, shall not be considered as indebtedness of the incorporating unit or units within the meaning of any statutory or chartered debt limitation of such incorporating unit or units.”
Insofar as this part of § 8 of Act 31 would except the unconditional rental obligation of this unchartered county from the limitations and conditions of MCLA 46.7, it is unconstitutional because there was not compliance with the reenactment and republication requirements of Const 1963, art 4, § 25 which would require amendment or repeal of MCLA 46.7 in order to escape its limitations and voting requirements.
8. Under present Act 31 a "revenue bond” of an unchartered county may not have its taxing power pledged to pay "rental” payments beyond the operáting millage allowed under the conditions in the first paragraph of Const 1963, art 9, § 6. No tax bond of any county, however structured, may be free from constitutional debt limitations. As tax or revenue bonds, these stadium bonds purport to do both and are illegal.
9. Under a revenue bond structure a Tiger contract must bear its proportionate share of liquidating the bonded indebtedness or the stadium bonds can’t be approved by the Municipal Finance Commission. (It moreover would probably not be sale-able.) Under a proper tax bond situation, the validity of the Tiger contract would not affect the validity of the bonds. However, under Const 1963, art 9, § 18 the state or county may contract for services without an unlawful grant of credit if it receives full and fair value in return. In the first instance, the Legislative or Executive Branch judges what is full and fair value. The courts will respect that judgment unless there has been an abuse of judgment.
10. Although there is no absolute constitutional right to vote on revenue bonds, § 33 of Act 94 requires that a vote be held if a petition is filed by 10% of the electors within 30 days of the publication of a Notice of Intent to Issue Bonds. When the Legislature has provided for notice, the people are entitled to due process in the issuance of the notice. The notice was a denial of due process because it was published in fine print in the classified part of the newspaper and this is not reasonably calculated to actually reach the greatest number of taxpayers. The notice was also a denial of due process because it was inherently deceptive and misleading, and misleading process is not due process. The government and its public officials in exercising a constitutional and statutory duty of informing the public occupy a position of trust with respect to the people and a fiduciary standard should be applied to them.
The issues underlying the Governor’s three questions have been fully considered arid answered above. Specifically:
1. The stadium bonds relate to a public purpose within the Constitution. Part VIII. However, the county cannot support stadium bonds with its full faith and credit under Acts 31 and 94. Parts II, III and IV.
2. The grant of county credit under Const 1963, art 9, § 18 would not arise under a true revenue bond situation, which the stadium bonds are not. With the existing record and invalidity of the bonds and for several other reasons, this Court did not examine whether art 9, § 18 was violated. The rule is set forth in the summary above and in Part IX.
3. There are adequate standards in Michigan law to issue stadium bonds under Acts 31 and 94. Part VIII.
As long and complicated as this opinion is, it only begins to reflect the number and scope of the problems that have developed in the structure and practice of our municipal finance law since the adoption of the Constitution of 1963. Some of the problems brought pointedly to light by the accident of this stadium bond case could have been avoided, or at least mitigated, had there been a more searching inquiry in the Municipal Finance Commission and in the few and far-between cases that have arisen in the courts in the past.
There is a philosophy that cases should be disposed of by decision on the narrowest possible grounds only. This philosophy is often the part of judicial wisdom and good public policy, especially in an area of finely honed legal distinctions. However, in the apparent chaos and confusion in the field of municipal finance law unearthed in this case, such a narrow view of our duty would be a retreat from responsibility and a pusillanimous public policy. There is here great need for the most comprehensive and the best directions possible to give guidance to administration and practice. Such directions are imperative to reduce the amount of future litigation necessary to establish a reasonably understandable and practical, if not precise, framework within which those concerned can operate in the future. It is for this reason that we have explored a number of issues, each of which would have been equally dispositive of the case, but all of which involve necessary check points for guidelines for the future.
Despite our consideration of and ruling on a number of important issues in this case, we have not, nor in the nature of things could we have, fashioned a diamond-cut-sharp template to control all practice and administration for all time to come in this labyrinthian welter of legislation, where the Municipal Finance Commission has been unable to serve either the hopes or the purposes of its original incorporators. Consequently, until the Legislature can bring order out of chaos in this field, so vital to state and local finances and to the concerns of the taxpayer, we declare that the equitable doors of this one court of justice are wide open for direct actions by taxpayers for injunctive protection against more levies "without limitation as to rate or amount” whenever they are able to plead and prove a case of confiscation or irreparable injury. United States Cold Storage Corp v Detroit Board of Assessors, 349 Mich 81, 89 (1957); Detroit v Wayne Circuit Judge, 127 Mich 604, 605 (1901); Woodman v Auditor General, 52 Mich 28 (1883); Marquette H & O R Co v Marquette, 35 Mich 504 (1877); Palmer v Rich, 12 Mich 414 (1864).
Judgment affirmed. No costs, a public question.
T. M. Kavanagh, C. J., and T. G. Kavanagh and Swainson, JJ., concurred with Williams, J.
Adams, J., concurred in the result.
Defendants’ brief, p 23:
"When correctly analyzed * * * it is clear that the County, not persons attending or promoting events, is the 'user’ of the Stadium
Defendants’ supplemental brief, p 25:
"The fact is, that even if the Tiger Agreement is invalid or even non-existent, it would not reduce or eliminate the obligation of the County * * * .” (Emphasis by Defendants.)
Lease, § 13; trial exhibit 2A, pp 18-20 quoted below at p 337.
On oral argument the following exchange occurred:
"The Court: Well you’re telling me then that a revenue bond is really a full faith and credit bond.
"Defendants’ Counsel: * * * this is an example of a type of revenue bond which is not truly a revenue bond * * * .”
Also see description on face of bond set forth infra, p 235; approving opinion of bond counsel, trial exhibit 10; and see fn 26 and accompanying text.
Section 33 of Act 94; MCLA 141.133; MSA 5.2763 does not require submission to voters for "revenue” bonds, although it does provide for a petition. MCLA 46.7; MSA 5.327 does require a vote in order to "raise” more than 1/10 of 1 mill for building purposes.
Defendants’ brief, pp 33-35, quoted below at pp 261-262.
Transcript of trial proceedings, p 184.
See Part X below, pp 330-355 in which the precise nature of the disclosure practices in this case are discussed in detail.
Bond ordinance #2, bond form (trial exhibit 10).
Id.
The trial court, after a searching analysis of the complicated financial structure of the Tiger Contract concluded:
"Even using the most optimistic of evaluations as reflected in the Defendants’ financial progressions for the proposed stadium, it is most apparent that the Club for its contracted use of the stadium is not carrying anywhere near its fair share of retiring the principal and interest on the bonds, not to speak of covering the operating expenses. The aggregate consideration received by the Club substantially outweighs what it gives in return. The difference must be made up by the taxpayer.
"Under such circumstances, taking into consideration the totality of the Baseball League Agreement, such contract transcends into an invalid lending of credit of the County in aid of a private corporation in violation of Article IX, Section 18 of the Michigan Constitution.” (trial court opinion, p 37.)
The principal amount is $126,000,000; interest is $245,000,000. The initial debt service would be paid by bond proceeds, leaving a net debt service of approximately $246,000,000.
1948 PA (1st Ex Sess) 31; MCLA 123.951 et seq.: MSA 5.301(1) et seq., known as the building authority act (hereinafter usually referred to as Act 31).
1933 PA 94; MCLA 141.101 et seq.; MSA 5.2731 et seq., known as the Revenue Bond Act (hereinafter usually referred to as Act 94).
Purportedly pursuant to Act 31, § 8; MCLA 123.958; MSA 5.301(8).
Wayne County — Wayne County Stadium Authority Lease (hereinafter "Lease”), § 4(b); Trial Exhibit 2A, p 8-9.
Lease, § 14; trial exhibit 2A, pp 20-21.
See footnote 3.
The basis for the lease and sublease arrangements is provided by § 8 of Act 31; MCLA 123.958; MSA 5.301(8). The relationship between the county and the Stadium Authority as its operating agent is covered by Lease, § 5; Trial Exhibit 2A, p 11, and Operating Agreement; Trial Exhibit 2E.
The "Tiger Contract;” trial exhibit 2F.
Lease, § 5; Operating Agreement, §§ 1(2) and 3; Bond Ordinance §§ 701(1), 702, 703, 704 (and amendments), 705 (and amendments), 706 (and amendments). The "funds” are established as required by Act 94, §§ 22-26; MCLA 141.122-141.126; MSA 5.2752-5.2756. This highlights further the curious dualism of these bonds since these funds required by Act 94 are to ensure that revenues of actual users pledged to pay the bonds will be properly applied.
Approval of the Municipal Finance Commission is required by § 27 of Act 94; MCLA 141.127; MSA 5.2757. The application was first filed in October of 1971. After amendment to the Lease and Bond Ordinance (discussed in Part X, below) the application was amended and filed on March 6, 1972. The approval of the Municipal Finance Commission is, of course, not to be deemed as approval of the bond issue. See § 28 of Act 94; MCLA 141.128; MSA 5.2758.
Minutes of a Regular Meeting of the Municipal Finance Commission held March 28, 1972, in the office of the Attorney General, pp 1-1A.
Id, pp 6-7.
Order of Approval, dated March 28, 1972, p 2; trial exhibit 10.
Letter from Frank J. Kelley, Attorney General, to Miller, Can-field, Paddock and Stone dated March 29, 1972; trial exhibit 10. The Comptroller of Currency also rendered his opinion which was required to enable National Bank of Detroit to deal in the Bonds under 12 USC 24, ¶ 7:
"It is our conclusion that the $126,000,000 Wayne County Stadium Authority Bonds are general obligations of a state or political subdivision thereof under ¶ 7 of U.S.C. 24 and accordingly are eligible for purchase, dealing in, underwriting and unlimited holding by National Bank.” Letter to National Bank of Detroit, April 12, 1972; trial exhibit 10 (emphasis added).
"Official Notice of Sale” was published on March 30, 1972, in the Daily Bond Buyer. See Trial Exhibit 10 for proof of publication and see discussion below, Part X.
MCLA 600.2942; MSA 27A.2942.
Executive Message of William G. Milliken, Governor, dated May 18, 1972; Joint Appendix 128-132. The questions, as phrased by the Governor, are as follows:
"1. Does the acquisition by a building authority created by a Michigan county of a multi-purpose stadium, which is financed by the authority’s sale of bonds, is rented to the county under a lease which makes the county’s annual rental obligation (which is in an amount not less than the debt service requirements of the bonds) a general obligation and is intended for use, pursuant to a contract duly authorized by the county, by a major league professional baseball team as the sitSof all its home games, and for use by a variety of other athletic teams and performers, and as the site of conventions, trade shows, musical events and other activities, comply with, and comprise a benefit and a legitimate public purpose of the county as determined by, Act No. 31 Public Acts of 1948, as amended, and constitutionally obligate the county to discharge its obligation under said lease through such ad valorem tax levies as may be necessary?
"2. Do the foregoing transactions constitute a grant by the County of its credit to or in aid of a private corporation in violation of the United States Constitution or the Michigan Constitution of 1963?
"3. Does Act No. 31, Public Acts of 1948, as amended, violate the United States Constitution or the Michigan Constitution of 1963, insofar as said Act relates to stadiums, by reason of insufficient standards to protect the public interest and to assure public use thereof?”
Order of Michigan Supreme Court pursuant to GCR 797, dated May 24, 1972; Joint Appendix, p 133. Our order did not limit appeal to only those questions phrased by the Governor, but rather based the appeal on whatever findings and conclusions the trial judge might make:
"Upon due consideration thereof, the Court hereby assumes appellate jurisdiction of said case.
"It is hereby Ordered that the said trial judge make his findings of fact and conclusions of law and file the same with this Court by June 1, 1972.”
Memorandum Order in re Executive Message of Governor i.e. Certification of Questions Pertaining to Wayne Stadium Authority, dated June 16, 1972. Part of the text of that Order follows:
"Because of the many complex legal and constitutional issues raised and the importance of their resolution and lucid description and exposition to the bench, bar and the taxpayers of Michigan, the opinion or opinions of the Court detailing our reasons for the decision will require time beyond June 19, 1972 for the proper marshalling and elucidation of the basic research already done. As a consequence the following order is entered with opinion or opinions to follow.
“Upon due consideration it is hereby ordered that the judgment reached by the trial court enjoining the delivery of these bonds under the present circumstances be, and the same is hereby AFFIRMED.
"Black, J. I concur in aifirmance of the circuit court’s judgment, with advices to the parties that yet unprepared opinions will follow.”
Const 1963, art 7, § 1 reads:
"Each organized county shall be a body corporate with powers and immunities provided by law.”
Const 1963, art 7, § 8 reads:
"Boards of supervisors shall have legislative, administrative and such other powers and duties as provided by law.”
Const 1963, art 9, § 13 reads:
"Public bodies corporate shall have power to borrow money and to issue their securities evidencing debt, subject to this constitution and law.”
Rude and Walinske are discussed at length below in Part VI, pp 293-299.
MCLA 141.103(b); MSA 5.2733(b).
Act 31, title and §§ 1, 2, 8, 11; MCLA 123.951, 123.952, 123.958, 123.961; MSA 5.301(1), 5.301(2), 5.301(8), 5.301(11). Why the county chose to amend the building authority act rather than to amend other available acts to accomplish the same result may have its answer in the fact that other acts require the stadium to be truly self-liquidating (e.g. the industrial development act, 1963 PA 62; MCLA 125.1251 et seq.; MSA 5.3533[21] et seq.) and this particular stadium structure is not truly self-liquidating. The amendments could also have been made to the joint public building act, 1923 PA 150; MCLA 123.921 et seq.; MSA 5.2351 et seq. This act has its hurdles also, however, because it requires an affirmative vote of a majority of the electors.
MCLA 141.107; MSA 5.2737.
The words "derived from the operation” in § 7(2) of Act 94 should be read along with the definitions in § 3(e), (f), and (g) of Act 94; MCLA 141.103(e), (f), and (g); MSA 5.2733(e), (f), and (g):
"(e) The term 'rates’ shall be construed to mean the charges, fees, rentals and rates which may be fixed and imposed for the services, facilities and commodities furnished by any public improvement.
"(f) The term 'revenues’ shall be construed to mean all the income derived from the rates charged for the services, facilities and commodities furnished by any public improvement.
"(g) The term 'net revenues’ shall be construed to mean the reve nues of any public improvement remaining after deducting the reasonable expenses of administration, operation and maintenance of such public improvement.”
See trial exhibit 2A, p 11.
See trial exhibit 2E, p 5.
This conclusion is merely a restating of what we have held in cases under Act 94 to date. See e.g., Young v Ann Arbor, 267 Mich 241 (1934) and cases discussed in Part VI below, pp 292 and following.
MCLA 123.958; MSA 5.301(8).
Section 11 of Act 31 does not say that bonds may be secured by revenues payable under a lease for the use for a legitimate public purpose, but rather it says bonds shall be payable exclusively from the revenues of the property which revenues will include payments made "under any lease or other contract for the use o/such property.” (Emphasis added.)
City of Gaylord v Gaylord City Clerk, 378 Mich 273 (1966).
1970 PA 47, effective July 2nd.
MCLA 124.284(f), 124.292, 124.292(bX2); MSA 5.2769(54X0, 5.2769(62), 5.2769(62bX2).
Compare for example airports, 1957 PA 206, § 8; MCLA 259.628; MSA 10.318. An airport board may issue "self-liquidating bonds of the authority in accordance with Act 94 ** * * .” No liability on the municipality except a maximum possible voted 1 mill levy which "shall be considered to be part of the revenues of the airport authority as that term is deñned in section 3, subsection (f) of Act 94 * * * .” (Emphasis added.) See also on airports MCLA 259.131, 259.131(a); MSA 10.231,10.231(1).
And see county public improvements, MCLA 46.177; MSA 5.2767(7).
County DPW act, MCLA 123.741; MSA 5.570(11).
County & regional parks & recreation commissions, MCLA 46.367; MSA 5.570(117).
Huron-Clinton Metropolitan Authority, MCLA 119.58; MSA 5.2148(8).
Port district improvements, MCLA 120.16, 120.24; MSA 5.2166, 5.2174.
Joint water supply, MCLA 123.155; MSA 5.2532(5).
Joint sewage disposal revenue bond, MCLA 123.235; MSA 5.2769(5).
Rubbish disposal & dog pound bonds, MCLA 123.309; MSA 5.2725(9).
Joint water & sewage bonds, MCLA 123.342; MSA 5.2769(32).
Garbage Disposal Act, MCLA 123.365; MSA 5.2726(5).
Market Authority Act, MCLA 123.676(2); MSA 5.2770(106X2).
Joint public building, MCLA 123.925; MSA 5.2355.
Municipal water supply & sewage disposal systems, MCLA 124.259; MSA 5.2533(9).
Mass transportation system authority, MCLA 124.357; MSA 5.3475(7).
Shopping areas redevelopment, MCLA 125.982; MSA 5.3533(2).
These are only some of the more important statutes making reference to Act 94. There are many more acts which overlap each other and Act 94 by reference and cross-reference. The resulting maze is considered in Part V of this opinion below.
Defendants’ supplemental brief, p 25.
Section 9 of Act 31 provides that the Authority may exercise the powers by acquiring property by purchase, construction, lease, gift, devise or condemnation. The issuance of bonds under § 11 is only one of the contemplated ways for a county to "acquire” the property in question.
Defendants also point to the portion of § 11 of Act 31 which says that before bonds are issued the property must be leased by the Authority for a period greater than 50 years. Defendants then say that since the Authority can only lease to the county under § 8 of Act 31 that the leases referred to in § ll[c] can only mean those between the Authority and county and not those between the Authority as agent and the Tigers or other actual users. Once again, defendants ask the Court to reason backwards and beg the question which we cannot and will not do.
But see Part VII, pp 314-317 for rule that government user revenues come within Í5-mill limitation.
Betz v Berrien County Building Authority, 12 Mich App 304, 312 (1968). We subsequently hold that a county cannot levy taxes on bonds issued under Act 31 and Act 94 which were the purported authority for tax bonds in Betz and this case. See Part VI, pp 300-304.
MCLA 141.111; MSA 5.2741; MCLA 141.102; MSA 5.2732.
Some of these statutes are referred to in footnote 47, above.
The earliest form of printing press was the simple screw hand press. In the 1800’s the flatbed cylinder press was introduced along with the platen press and the rotary press. These allowed for more efficient and speedy printing but did not solve the problem of finding a quick and efficient method to complete the arduous task of setting type. If, every time a statute was amended affecting a number of other laws, it was necessary to republish all of those laws, the "burden” would be very real in the days of Mahaney, because the job of setting type required a person to find the "letters” and put the words together and then to distribute the set-up type to the printing wheel. The first machine for setting type mechanically was not even patented until 1822 in England by Dr. William Kurt. The first machine patent for distributing the type to the printing press after use was taken out by Gouden (England, 1840) and by Rosenberg in America in 1842. The first practical machine for composition and distribution was not even patented until 15 years after the Mahaney case by Joseph Thorne in 1880. The forerunner of modern typesetters was the monotype, invented by Tolbert Lanston in 1885, 20 years after Mahaney. In addition to the burden of republication for the benefit of the public, there was the problem of publication of the statute in its amended form so that the legislature would know what they were doing. It may have seemed quite a burden to require enormous typesetting and printing costs to be incurred for a statute or hundreds of statutes which might never be passed but which were introduced for one reason or another as the rightful prerogative of legislators. At the time there was no alternative (such as Xerox) to typesetting and the first practical typewriters were not even invented until two years after Mahaney in 1867 by three Milwaukee men, Christopher Latham Sholes, Carlos Glidden, and Samuel Soulé.
See footnote 47, above, for some of the statutes extracted from this computer search.
If a lawyer or legislator today wants to find every statute making reference to Act 94, he still cannot do so by the use of a Shepard’s statute citator. At one point the statute section of the citator gave references to all other statutes making reference to any other statute but that service has been discontinued as the practice of cross-referencing mushroomed and the citations became too long for economical reproduction by the publishers of Shepard’s. Even if it would have solved the problem in the days of Mahaney, the Shepard citator did not come into existence until 18 years after Mahaney and the predecessor "sticker” services did not cover statutes.
The only comment in the entire convention record on the application of this section is as follows:
"MR. KUHN: Mr. Chairman and members of the committee, on this particular proposal, we kept it intact as to what the practice is in Michigan today. You will note on line 8 we struck out the words 'the act revised.’ That would mean that if the legislature were to pass any statute today which would affect a statdte in being, that you would have to republish the whole statute. This is not the process in Michigan today. It is not the sensible thing to do. Therefore, these words were deleted by our committee. In practice, what is done if you amend a statute today in a particular section or sections, you reprint those sections in full, which is the correct thing to do, in our judgment. Therefore, we ask that this be adopted.” 2 Official Record, Constitutional Convention 1961, p 2416.
MCLA 141.151 etseq.;MSA 5.2572(1) etseq.
The bonds here were sold at a net interest cost greater than the 6% allowed by § 12 of Act 94 and approval had been given for resale of bonds up to the maximum 8% allowed by MCLA 141.151 et seq.
See trial exhibit 10.
See trial exhibit 10.
Other statutes of possible application here are the bonding and spending limit provisions of MCLA 141.61 and MCLA 141.61a; MSA 5.2251 and 5.2251(1).
In Bond v Cowan, 272 Mich 296 (1935) we held that the absence of a specific requirement for a vote under MCLA 141.61 did not abrogate the requirement of a vote under MCLA 46.7. MCLA 141.61a operates with MCLA 46.7 to provide a limit of l-l/10th mill of monies to be spent for building purposes regardless of where the monies come from unless there has been a vote of the people authorizing a greater expenditure of tax funds over and above the l/10th of 1 mill limitation in MCLA 46.7. See Oakland County Taxpayers League v Oakland County Supervisors, 355 Mich 305, 320-325 (1959).
Const 1908, art 8, § 10 reads as follows:
"The board of supervisors of any county may in any one year levy a tax of one-tenth of one mill on the assessed valuation of said county for the construction or repair of public buildings or bridges, or may borrow an equal sum for such purposes * * * but no greater sum shall be raised for such purposes in any county in any one year, unless submitted to the electors of the county and approved by a majority of those voting thereon.”
MCLA 46.7 and 141.71 are substantially identical to this former constitutional provision.
Lease §§ 4(b) and 8; trial exhibit 2A, pp 8-10 and pp 13-14.
The contract amounts to an extending of money for building purposes within the meaning of MCLA 46.7 because the county is the alter ego of the Authority where it pledges its full faith and credit. See Dearborn v Michigan Turnpike Authority, 344 Mich 37, 56-58 (1955), and discussion above, p 267.
See also Justice Black’s comments in Bacon v Kent-Ottawa Metropolitan Water Authority, 354 Mich 159 (1958); Lockwood v Commissioner of Revenue, 357 Mich 517, 560-576 (1959); Carman v Secretary of State, 384 Mich 443, 451-453 (1971).
"Section i comments: The limitation in section 12 of the present constitution on the power of the county to incur debt is increased from 3 per cent to 10 per cent of its assessed valuation. The exception relating to counties of an assessed valuation of $5 million or less was deleted because there are no longer any such counties. The committee has increased the debt limit to give counties greater flexibility to meet current problems. Our counties are now extending their credit for both primary and secondary purposes. Secondary obligations are incurred by placing the full faith and credit of the county behind bonds of cities and townships to enable them to borrow at the lowest possible interest rate for the construction of water and sewage systems and other public works. The county also backs revenue bonds for airports. This secondary debt may easily exceed the 3 per cent limitation set in the present constitution. Such secondary debt is payable out of the revenues of the water works, sewage fees, airport activities, etc. The committee on finance and taxation, having concurrent jurisdiction, has no objection.” 1 Official Record, Constitutional Convention 1961, p 930.
As to chartered counties the Legislature is under a constitutional duty to restrict their power to borrow money and contract debt. See Const 1963, art 7, § 2. The Legislature is under a similar duty with respect to cities and villages under Const 1963, art 7, § 21. As to chartered counties, cities and villages therefore any statute which provides an unlimited ability to contract "debt” would be in violation of the constitutional provision requiring the Legislature to limit the ability of these entities to contract debt.
See the discussion by Justice T. M. Kavanagh in Butcher v Grosse Ile Twp, 387 Mich 42, 73-76 (1972).
Thus, in order to be "revenue” the payments must be within the 15 (or 18) operating millage in the first paragraph of art 9, § 6. To go above that limit and still be considered "revenue” the operating millage is subject to a vote of the people provided in the first paragraph of Const 1963, art 9, § 6.
Section 7(2) of Act 94 already provides that when the full faith and credit of a public corporation is pledged in the event there is a 25 per cent grant that the bonds are debt "to the extent pledged”.
See plaintiffs’ brief, part II, pp 4-7; plaintiffs’ supplemental brief, pp 8-9.
See plaintiffs’ brief, part II, pp 9-10.
See quoted portion of the trial court opinion at footnote 11, supra.
See also the cases cited above in Part VI, p 293.
As plaintiffs point out in their supplemental brief, p 14, defendants overlooked a very important sentence contained in White v Grand Rapids, 260 Mich 267, 275 (1932):
" '[T]he discretion vested in city officials is not subject to review by the courts. If they transcend their power, the courts may interfere. But if, acting within the scope of their power, they make mistakes, it is not the business of a court to amend or correct their errors.’ ” (Emphasis added.)
See also Veldman v Grand Rapids, 275 Mich 100, 111-112 (1936):
"The power and authority is vested in the commission to govern as its discretion dictates so long as its action is not contrary to law or opposed to sound public policy. * * * It is not the business of courts to act as city regulators and, unless the authority of the representatives of the citizens of Grand Rapids has been illegally exercised, their action cannot be interfered with merely because it may not seem to other persons to have been as wise as it ought to have been.”
And see Kent County Theatre Corp v Grand Rapids, 14 Mich App 362, 366 (1968) where the Court of Appeals, including now Justice T. G. Kavanagh, reviewed the denial of a theatre license by a city agency. The decision of the city agency was reversed and the Court said:
"A court may properly substitute its own judgment for that of a licensing authority where the act of the licensing authority is found to be arbitrary or unreasonable. Veldman v Grand Rapids, supra. ”
This, of course, would make it a different ball game.
Gaylord, p 304.
The articles were adopted on August 20, 1970, by the Wayne County Board of Commissioners pursuant to the authority and procedure prescribed in §§ 1 and 4 of Act 31; MCLA 123.951, 123.954; MSA 5.301(1), 5.301(4). The members of the Board of Commissioners for the Authority are elected pursuant to MCLA 123.955a; MSA 5.301(5a). The articles were filed with the Wayne County Clerk and with the Secretary of State pursuant to § 6 of Act 31; MCLA 123.956; MSA 5.301(6). Under this provision the validity of the incorporation is conclusively presumed 60 days after the filing with the County Clerk and the subsequent filing with the Secretary of State by the County Clerk.
The articles of incorporation, art IV, § 5; Trial Exhibit 10.
We do not decide here whether the absence of this paragraph from the articles of incorporation renders the issuance of the stadium bonds "ultra vires” in view of the numerous other reasons why these bonds are illegal.
See proof of publication, trial exhibit 10.
See Securities and Exchange Commission v Texas Gulf Sulphur Co, 401 F2d 833 (CA 2, 1968); cert den, 394 US 976; 89 S Ct 1454; 22 L Ed 2d 756; on remand 312 F Supp 77 (1970). A lawyer preparing descriptions is as subject to the rules as others, Securities and Exchange Commission v Frank, 388 F2d 486 (CA 2, 1968). "Fraud” under rule 10b-5 includes even so-called "innocent” non-disclosure which can amount to deception. See, e.g, Myzel v Fields, 386 F2d 718 (CA 8, 1967); cert den, 88 S Ct 1043; 390 US 951; 19 L Ed 2d 1143 (1968). See the cases cited under 15 USCA § 78j.
Defendants argue that defects in published forms of notices can be cured by general newspaper coverage. They rely on City Commission of Jackson v Hirschman, 253 Mich 596, 600 (1931) and Michigan Public Service Co v Cheboygan, 324 Mich 309, 339-349 (1949). Hirschman involved a claim of irregularities in the conduct of a charter election required to be held. There are no facts in the opinion regarding these irregularities and the case is at best dicta for the rule defendants find in it. Reliance upon the Cheboygan case is misplaced. That case did not say that a misleading notice could be "cured” by newspaper articles because the Court found that the form of the notice was "comprehensive and not misleading” (p 336, emphasis added). Bay County v Hand, 257 Mich 262, 268 (1932) also does not support defendants’ position. In Hand, the electors had full notice of the regular spring election. Certain questions to be submitted at that election were not published for the full time required by statute. The Court found the notice of the general election was sufficient and did not find any misleading statements.
We cannot approve of any construction of previous law that would allow the government to mislead the people in required notices concerning the elective franchise or the right to petition so long as the misleading is cured by statements in unofficial news reports or by the public rumor mill. The duty of full and straightforward disclosure cannot be delegated to the grapevine.
In addition to the premise stated in the approved Form of the Bond that these bonds would not create indebtedness of the County, the Attorney General’s staff recommended changes in the language of three documents to make sure the bonds would not be "general obligations”:
(1) Bond Form changes: In the order of approval of the Municipal Finance Commission, March 28, 1972, p 1, it is ordered that the paragraph in the Form of the Bond delete the reference to the general obligation of the County to tax without limit as to rate or amount to pay the "Fixed Rentals.” According to this record the changes have not been made and even if they had been it would be bootless if changes were not also made in the entire bond structure and bond contract which include the Lease which creates the general obligation and power to tax. (See explanation in Part X above.)
(2) Official Notice of Sale: The Official Notice of Sale as finally approved by the Municipal Finance Commission for publication without change says that:
"The County of Wayne is authorized and obligated by law to levy ad valorem taxes on all taxable property, etc. * * * without limitation as to rate or amount to provide funds necessary to pay said Fixed Rental * * * .”
For some reason, the Attorney General’s staff thought that this could still be a "revenue” project if the bondbuyers were given the interesting but legally irrelevant information that the County "intended” to pay the Fixed Rental from sources other than taxes even though the County was authorized and obligated to tax without limitation as to rate or amount to pay the Fixed Rental.
(3) Lease: The checklist or "point sheet” used by the Attorney General’s staff contains a recommendation that the Lease be amended to delete the language which creates the unlimited tax obligation to pay the Fixed Rental. This Lease, as Defendants continually stress, is the basic document in this bond structure and is the basis for making any statements in the Bond Form and the Notice of Sale. Somehow, this recommendation never made its way to the Municipal Finance Commission. Since by law and by the terms of the Lease and the ordinance the Lease is a part of the bond contract, if the Attorney General’s staff intended to preserve the revenue nature of the project it would be crucial to delete all power to support the rent obligation by unlimited taxes. | [
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North, C. J.
This is an appeal from the order of the circuit judge appointing a receiver pendente lite. The bill of complaint, filed February 23, 1943, seeks dissolution of a limited partnership created under the name of Tools, Dies & Jigs Company. This will require an accounting. The bill also seeks appointment of a receiver and injunctive relief. The certificate of limited partnership is dated June 23,1942, and the partnership agreement July 14, 1942. A copy of each is attached to the bill of complaint. From the above instruments it appears that defendants Harry Marston and Fred Gr. Christensen are general partners and plaintiff Eleanor DeLong a limited partner. The business was the manufacture and sale of tools, dies, machinery, equipment, et cetera. The partnership agreement recites:
“That Eleanor DeLong, one of the partners, furnished $10,000, the major portion of which was used to purchase the machinery and equipment. * * * That a first mortgage of $10,000 is to be given by the limited partnership to Eleanor DeLong, as security for the investment of the said $10,000.”
It further appears from the record that in the conduct of the business defendants Marston and Christensen, who were experienced tool and die makers, were to have charge of what might be termed the operating or mechanical phase of the enterprise; and that one John P. Denison was to have charge of “the office and administration.” The business was carried on until February, 1943, when, as is alleged in the bill of complaint, defendants Marston and Christensen “seized control of the entire premises and the assets * * * and physically prevented said John P. Denison and James E. Frazer from entering said premises, or taking any action in connection with the business.” In short the bill alleges that plaintiff, who obviously in this business was acting through or for John P. Denison, had been excluded by defendants from participating in the limited partnership’s business.
Defendants Marston and Christensen in their answer to the bill of complaint deny the essential allegations therein and affirmatively set up misconduct on the part of Denison as follows:
“Further * * * these defendants aver that the said John P. Denison attempted to gain all of the right, title and interest of these defendants in and to said business; that he collected all of the moneys on their account, made all the payments of invoices; * * * and the said John P. Denison has never given a true, accurate and complete account to these defendants of the moneys which he now holds in trust for them. They aver that the said John P. Denison, upon information and belief, has now in his possession moneys and assets belonging to them in sums amounting to upwards of $15,000.”
From the foregoing, as well as other matters appearing in the record, it is obvious that, as plaintiff prays in the bill of complaint and defendants allege in their answer, this limited partnership should be dissolved. It is also clearly apparent that in view of the attitude of the respective parties toward each other, as disclosed by the record, the appointment of a receiver is essential to orderly dissolution of the limited partnership. Upon the filing of the bill of complaint an order to show cause why a receiver should not be appointed was served on defendants Marston and Christensen. They answered the bill of complaint, appeared at the hearing of the order to show cause, and opposed the appointment of a receiver pendente lite. As noted above, a receiver was appointed and defendants Marston and Christensen have appealed. The receiver appointed, the Equitable Trust Company, has qualified and has been functioning as a receiver. For the reasons suggested, which clearly indicate the necessity for a receiver, we are of the opinion that the order making such appointment should not be vacated.
In so holding we are mindful of defendants’ objections about to be noted. Simultaneously with their answer defendants Marston and Christensen made a motion to dismiss the bill of complaint for the following reasons: (1) that no equity appears in the bill; (2) that plaintiff does not have legal capacity to sue; (3) that the suit was not brought in the name of the real party; and (4) that the relief sought is unenforceable under the statute regulating doing business under an assumed or fictitious name. 2 Comp. Laws 1929, § 9825 et seq., as amended by Act No. 274, Pub. Acts 1931 (Comp. Laws Supp. 1940, §9825 et seq., Stat. Ann. §19.821 et seq.). From the original court files it appears the motion to dismiss was denied April 27, 1943. Much the same questions, though stated in different form, are presented by appellants on this appeal from the trial court’s order appointing a receiver pendente lite.
Appellants contend that plaintiff’s real name is Eleanor McIntyre, though before her marriage her name was Eleanor DeLong; and they assert that Eleanor DeLong has no interest in the subject matter of this suit. An affidavit of defendant Marston appears in this record in which he states: “He conferred with the plaintiff in this cause, * * * that in said conference the said plaintiff informed this defendant that she knew nothing about the above-entitled cause and had not authorized its institution. She further informed this defendant that she had no financial interest in any of the transactions and had advanced no sums of money. ’ ’ The contents of this affidavit have not been denied; But the bill of complaint was signed and verified in the name of Eleanor DeLong by James E. Frazer, as her attorney in fact. There is no showing that Frazer is not plaintiff’s attorney in fact. In swearing to the bill of complaint Frazer stated “that he signed the foregoing bill of complaint on behalf of the plaintiff therein, as her attorney in fact, and is duly authorized so to do.” From the record it is possible and seemingly quite probable that the real party in interest as plaintiff in this case is John P. Denison, at times doing business as J ohn P. Denison Company. Appellants assert Frazer was Denison’s attorney. Notwithstanding the foregoing, in this suit in equity it may well be doubted whether defendants Marston and Christensen at this late date may successfully take the position above indicated. They entered into a partnership agreement with Eleanor DeLong then acting through James E. Frazer as her attorney in fact; they joined with her in a certificate of limited partnership under the same name, signed by Frazer as attorney in fact; $10,000 of working capital was furnished in the name of Eleanor DeLong; and a chattel mortgage for that amount was given to Eleanor DeLong. All this was done at a time when the contents of the record before us quite persuasively show that John P. Denison was the real party in interest acting in the name of Eleanor DeLong. Appellants must have known Denison was financing the enterprise. The original court files ^how he was joined as a party plaintiff April 2, 1943. If. this suit was brought in the name of a party who is only nominally interested rather than being the real party in interest, it was in the power of the trial court to add or substitute as a party or parties plaintiff the actual parties, rather than to dismiss the bill. Under Court Buie No. 72 (1933) a change or substitution of parties might even be made in this Court. We think all questions raised by appellants on this appeal can be more appropriately considered and disposed of at the hearing of the main case upon the merits. We do not deem any of the grounds relied upon by appellants sufficient, under the circumstances of this case, to justify vacating the order appointing a receiver pendente lite.
While this appeal has been pending in this Court the receiver, as an intervener, has filed a motion to dismiss this appeal and also a motion to supplement the record filed incident to the appeal. In view of our holding, as above indicated, it is unnecessary to pass upon either of these motions. They will be considered as dismissed without costs. The order appointing the receiver pendente lite is affirmed, with costs to intervening appellee. The case is remanded to the circuit court for further proceedings.
Starr, Wiest, Butzel, Bushnell, Sharpe, Boyles, and Beid, JJ., concurred. | [
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Butzel, J.
Jacob Gordon of Petoskey, Michigan, died on December 5, 1940, leaving a last will which was admitted to probate on January 28, 1941. The first four clauses consist of directions in regard to payment of debts, purchasing of cemetery lot, care of the grave and monument and bequests of $1,000 each to two of testator’s sisters. The remaining clauses, some of which give rise to the questions involved in this case, are as follows:
“5. The residue of my estate I leave to my executor, who shall dispose of same as he shall best determine.
“6. I direct that all of my property of which I may have title at the time of my death be sold and. the proceeds disposed of as above outlined.
“7. It is my request that my executor be not required to furnish bond in' the administration of my estate.
“I do hereby name Glen C. Townsend, of Petoskey, Michigan, as executor of this, my last will and testament.”
No question is raised as to the proper execution of the will or the testamentary capacity of the testator. Plaintiff as executor filed a bill asking the court to construe the will. He alleged that defendant and appellant Samuel Gordon of Detroit, Michigan, claimed that he was the son and sole heir at law of testator and entitled to the residue of the estate; that other, defendants are, or claim to be, brothers, sisters, néphews and nieces of testator, and they deny that Samuel Gordon is the son of testator and assert that they are the sole heirs at law. Plaintiff further alleged that disagreement had arisen as to clause 5 of the will, and that Samuel Gordon claims it is so indefinite and-uncertain that it is of no legal effect and results in intestacy as to such residue, and that he, as the sole heir at law, is entitled to receive it. Other defendants allege that Samuel Gordon, whether he be the son and sole heir at law or not, is not entitled under the will or otherwise to any portion of the residue, which, they assert, is left to the plaintiff to dispose of as he shall best determine. Some of the defendants allege that it was the intention of the deceased to leave the residue to the plaintiff so that he could distribute it among those of his family who were most needy and that no part of the residue was to be distributed to any one claiming to be the son of testator.
Defendant Samuel Gordon in his cross bill further alleged that he sought a determination of heirs in the probate court but that his application had been resisted, and that the probate court had failed to make a determination, and he, therefore, asked the chancery court in his cross bill to make such determination.
The main question presented is whether or not plaintiff in his individual capacity is entitled to such residue to dispose of as he shall best determine, or, in other words, as the trial judge held, did he take beneficially so that he may do whatever he pleases with such residue ? On the other hand, is he merely an executor or trustee under a provision which is so indefinite in its terms that intestacy results? The trial judge held that the wording of the will was plain and unambiguous and that it did not require extrinsic evidence to determine its meaning. The question of whether Samuel Gordon was the son of deceased was submitted to the jury on a special record; they found in his favor.
Appellant attacks the finding of the lower court that the plaintiff is entitled beneficially to such residue, and the other defendants cross-appeal from a determination in the chancery suit that appellant is the son of testator. The latter contend that the determination of heirs is solely within the jurisdiction of the probate court. Samuel Gordon in a motion to amend the grounds of appeal also claims that the court erred in excluding a transcript of the testimony of plaintiff in the probate court taken at the hearing on the petition for admission of the will to probate and certified to by a court stenographer. In this testimony, plaintiff, when asked whether he claimed any interest in the residuum, answered: “Not a nickel,” and that it should go to the heirs that the court shall determine. The testimony in the probate court further showed that testator had a joint bank account with Mr. Townsend, the nature of which was not disclosed. In coming to onr conclusion, we have considered the testimony in the probate court.
Deceased at the time of his death was possessed of personal property of the value of $15,000 or thereabouts. Mr. Townsend was vice president of the First State Bank of Petoskey, Michigan. There is no claim that he was a lawyer. He drew the will and it was witnessed by two bank employees. He had been in the confidence of testator for 15 years and had discussed with him his family as well as his financial affairs.
Appellant claims that the words “dispose of same” by leaving it to the executor eo nominee without designating him until later in the will is determinative of the fact that plaintiff took the residue as executor to be turned over by him to testator’s heirs and that it was not to belong to him beneficially. There might be some force in this argument were it not for the words he “shall dispose of the same as he shall test determine.” It is also claimed that the use of the word “leave” instead of the word “give” or “bequeath” shows a. lack of intent to make a beneficial gift. We believe that the popular and ordinary use of the word “leave” is the same as the more technical word “bequeath,” and when followed by words investing one with the right of disposition “as he shall best determine,” the intent clearly appears that the residue was left as a bene-’ ficial bequest to plaintiff whose name appears further down in the will.
The sixth clause directing that the property be sold and the proceeds disposed of as outlined again indicates the fact that the executor was to take the proceeds from the sale of the property and dispose of it as he should deem best. It amounted legally to an absolute bequest to Mr. Townsend.
It is not necessary to cite authority that the established rules of law provide that the will must be read as a whole, that the intent of the testator must prevail, and that where there are bequests in the will as to the disposition of the residue, intestacy will not be presumed unless so provided by the will or the language or lack of language used necessitates such a result.
The real question in the case, as we view it, is whether plaintiff took the residue absolutely and beneficially or merely as a trustee. If he took in the latter capacity, the trust must fail for indefiniteness, ■and the residue would have to be turned over to the legal heirs. Counsel have assisted us with a careful review of many cases on which they rely. We find a bewildering number of authorities. Counsel for Samuel Gordon largely rely on Abrey v. Duffield, 149 Mich. 248. There the will provided that all real estate and personal property was given, devised and bequeathed to Mr. Duffield as executor and trustee to whom testatrix committed it with instructions as far as he could to carry out her wishes as therein expressed. She provided a trust for the support of her son during his lifetime and in case any remainder were left in his hands, her trustee should appropriate it towards defraying the expenses of the trust or in such other or different manner as he might deem best. The court divided five to three, the majority holding that inasmuch as Mr. Duffield was testatrix’s attorney and was familiar with the phrases and language commonly used to create and devise a bequest, the circumstances required circumspection and the provision had to be construed as unfavorable to the trustee as the language used would permit; that when an attorney familiar with legal terms draws a will in which he is named as a beneficiary, he must be punctilious and clearly express the intent of the testator. The court dwelt upon the fact that the will also provided that in case of the death of Mr. Duffield before the trust had been carried into effect, then his son was to succeed him with like powers as conferred upon his father and this would indicate that Mr. Duffield did not take beneficially. The court, therefore, held that Mr. Duffield took as trustee as stated in the will and not as legatee. The case is far different from the instant one.
Appellant claims that the weight of authority from other jurisdictions supports his contention that plaintiff did not take beneficially. On the other hand, the attorney for plaintiff calls attention to the fact that the cases relied upon by plaintiff present entirely different factual backgrounds, and, therefore, cannot be regarded as any authority. We see little to be gained by a discussion of all of the cases. We recognize that there is a conflict of authority. In most all of these cases, the words “in trust” are used. In the following cases, the words “in trust” were not used and the will was interpreted as giving an absolute estate: Manson v. Jack (N. J. Eq.), 62 Atl. 394; Gilman v. Gilman, 99 Conn. 598 (122 Atl. 386); In re Megrue’s Estate, 135 Misc. 16 (237 N. Y. Supp. 523); Hill v. Fiske, 69 Misc. 507 (125 N. Y. Supp. 1026); Fairchild v. Edson, 154 N. Y. 199 (48 N. E. 541, 61 Am. St. Rep. 609). Possibly owing to this uncertainty, the question was reviewed by the American Law Institute and subsequently was set forth in the Restatement of the Law of Trusts of which Professor Scott was the reporter. The committee consisted of very prominent jurists, professors of law, some of whom were textbook writers, and prominent members of the profession, and the entire work was submitted to tbe members of tbe Institute. The law was stated to be as follows (1 Restatement, Trusts, § 125, p. 315 et seq.):
“If property is transferred to a person to be disposed of by him in any manner or to any person be may select, no trust is created and tbe transferee takes tbe property for bis own benefit.”
Tbe comment is as follows:
“a. The general rule. Whether tbe transferor has manifested an intention to give property to a person in trust or to give it to him for bis own benefit is a question of interpretation of tbe transferor’s language in the light of all tbe circumstances.
“No 'trust is created if tbe transferor does not manifest an intention to impose enforceable duties upon the transferee. His intention not to impose enforceable duties may be shown by the fact that be uses precatory rather than mandatory words (see section 25). Even though tbe purpose to which be desires tbe transferee to apply the property is clearly- something other than for tbe personal benefit of the transferee, no trust is created if the settlor manifested an intention to impose merely a moral obligation, and to leave the transferee free from any legal obligation to apply the property to the purpose (see section 25, comment b). His intention not to impose enforceable duties may appear from the fact that tbe purposes to which the property is to be applied are so broad as to show that tbe transferor intended that the transferee should be entitled to use tbe property for bis own benefit.”
“b. Intention to mahe beneficial gift. If tbe transferor manifests an intention to give tbe property to a person for bis own benefit, no trust arises and tbe transferee may do as be likes with tbe property.”
The following illustration is given:
“A bequeaths $100,000 to B to be disposed of to such persons and in such manner and in such sum or sums of money as he in his discretion shall think proper. B takes the money for his own benefit.”
Clause 5 of the will contains a power. The general rule is that an indefinite or general power of appointment or disposition of real estate carries with it a fee unless testator gave the donee an estate for life only by using certain express words annexing to it the power of disposal. Farlin v. Sanborn, 161 Mich. 615 (137 Am. St. Rep. 525), in which Jackson v. Robins, 16 Johns. (N. Y.) 537, 588, is quoted. Also, see 3 Comp. Laws 1929, § 13005 (Stat. Ann. § 26.101), which refers to real property. This statute had its origin in New York State. 1 Rev. Stat. N. Y. (1829), p. 733, § 83. In construing powers, the New'York court stated:
“Powers connected with personal property are now for all practical purposes coextensive with powers in the law of real property of this State, and they are governed by the same rules. ” In re Mayo’s Will, 76 Misc. 416 (136 N. Y. Supp. 1066).
Also, see Smith v. Cigarmakers’ International Union of America, 203 Mich. 249. We believe by logical reasoning, the same rule that applies to real property in the instant case applies to personal property.
In coming to our conclusion, we have not overlooked the fact that the legatee may have had a verbal understanding with the testator which the legatee subsequently may violate. Certain defendants' claimed in their answer that Mr. Townsend was to use the proceeds of the estate in order to assist testator’s needy relatives. Should he fail to do so, they would have no legal redress under the terms of the will. The only way such a breach of a moral understanding could be guarded against would be by a proper legal instrument, or by not using the broad terms contained in the will, which manifest the plain intent of the testator to give the residue to plaintiff in his individual capacity with the right and power to dispose of the proceeds as he may deem best.
Under the language in the will in the instant case, plaintiff took the residue beneficially. For this reason, the judge was correct in holding that there was no ambiguity and, therefore, testimony to construe the plain meaning of the words was unnecessary. Even had the plaintiff testified, as he did in the probate court, that he did not expect to retain any part of the estate, that he would turn it over to the heirs if the court directed, it could not change the plain meaning of-the will. For this reason, we need not consider whether the testimony in the probate court, not offered for impeaching purposes, was admissible or not, nor whether the court had a right to determine in the present proceeding whether plaintiff was the sole son and heir of decedent.
The decree of the trial court is affirmed, with costs to plaintiff.
North, C. J., and Starr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred with Butzel, J. | [
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Swainson, J.
(for reversal). On the evening of December 31, 1969, DeShorn Watkins, the defendant, Crawford Crowell, and Dora Kirks were at the home of Cora Williams, a sister of Dora Kirks. They engaged in some drinking and discussion and left the house late that evening or early on the morning of January the 'first. DeShorn Watkins^ Crawford Crowell, and Dora Kirks agreed to go to DeShorn’s apartment. While walking to the apartment, they met Arnold Penn and Larry Kirk. Larry Kirk, the deceased, was a first cousin of Dora Kirks. Arnold Penn and Larry Kirk joined the others and proceeded to the defendant’s apartment.
When they arrived at the apartment defendant put on a record player. There was continued drinking and general conversation. Dora Kirks danced with Larry Kirk. There was no animosity shown between any of the individuals involved. Larry asked the defendant to show him karate. Defendant proceeded to do so and they engaged in general horseplay. The parties continued to play records and talk and drink for between two and three hours. Arnold Penn fell asleep on the couch. Sometime in the early morning hours, Crawford Crowell and Dora Kirks went into one of the bedrooms and engaged in sexual intercourse. At the time they entered the bedroom, Larry and the defendant were in the bathroom laughing and talking. Precisely what happened thereafter is a matter of dispute.
Dora Kirks testified that when she was in the bedroom she heard Larry and DeShorn laughing and talking but could not make out what they were saying. She stated that the door was not completely closed. She testified that while she was still engaged in sexual intercourse the defendant came into the room and informed Crawford Crowell "you’d better come and get this mother fucker before I kill him.” Defendant then left and came back and said he had cut or stabbed Larry. She testified that the interval between the first and second statements was a matter of seconds. At that point Crawford Crowell left the bedroom and she followed. She went into the living room and saw Larry slumped on the couch. Defendant put Larry in Arnold Penn’s lap. Dora Kirks informed them that she was going to faint and was told that she could leave. She then did so.
Crawford Crowell testified that he closed the door when he entered the bedroom with Dora. He testified that they were in the room 15 to 20 minutes. They had not completed the act of sexual intercourse when defendant entered the room. He denied hearing the statement that Dora said the defendant made. His version was that defendant came into the room and stated "Larry has been cut,” or "Larry has been stabbed.” In response to a question he stated that he could not remember word for word what defendant said but that the essence of the statement was that Larry Kirk had been cut or stabbed. Crowell testified that after an interval of a few seconds, defendant came back and stated "Hey, man, I ain’t playing, come on the guy is hurt.” He then put on his pants and went into the living room. Defendant told him that a guy came up the stairs and started fighting with Larry. Crawford Crowell called an ambulance and was informed that it was on its way. He then went downstairs to meet it. Defendant testified that he was out of the living room and returned and found Larry with a knife. When he asked Kirk to put it down, Kirk challenged him to take it from him. Defendant returned to the kitchen, picked up a butcher knife and returned with the knife pointed toward the deceased. He told the deceased to give him the knife and Larry Kirk lunged at him and was impaled on the knife held by the defendant.
At the conclusion of the people’s proofs defendant made a motion for dismissal of the charge of first-degree murder. A jury found defendant guilty of second-degree murder. The Court of Appeals affirmed with Judge Levin dissenting. 36 Mich App 380. We granted leave to appeal. 386 Mich 782.
Both parties agree that the single issue raised on appeal is whether the trial court erred in failing to grant a motion by defendant to dismiss the charge of first-degree murder on the ground there was insufficient evidence to support the charge?
We are dealing here with a very narrow issue involving submission of a charge of first-degree murder to the jury. Thus, we must determine that if taking the evidence in the light most favorable to the state there was any evidence upon which a jury could predicate a finding of guilty of murder in the first-degree. After a careful review of the transcript in this case, we are unable to find any evidence of premeditation.
The majority opinion of the Court of Appeals cited People v Lem Dumas, 25 Mich App 173 (1970) which cited two of our cases, People v Wolf, 95 Mich 625 (1893) and People v Bauman, 332 Mich 198 (1952).
In Wolf, the Court stated (p 629):
"The learned counsel for the respondent contends that there was no evidence to sustain the verdict, because there was no proof of previous deliberation or premeditation. This would result in holding that deliberation and premeditation cannot be inferred from the character of the weapon used, the wounds inflicted upon vital parts, the circumstances surrounding the killing, the acts, conduct, and language of the accused before and after the killing, and the improbability of the story told by him. * * * If the accused committed the deed, the facts were sufficient to justify the verdict.”
That statement is correct under the facts of that case, but is factually distinguishable from the present situation. The defendant in the Wolf case was convicted of a brutal murder. The Court properly held that those facts surrounding the murder were evidence of deliberation and premeditation. See 95 Mich 627-628 for a detailing of the wounds that were inflicted upon the deceased. Here, it is conceded that there was only one wound made by a knife and this in itself is not evidence of premeditation or even deliberation. Bauman cites the Wolf case for the above quoted proposition but the Court held it was proper to submit a first-degree murder charge based on the direct evidence of the psychiatrist that the murder was premeditated. Hence, these cases are distinguishable on their facts and the fact that the defendant herein killed the deceased with a butcher knife is not evidence of premeditation.
The Court of Appeals’ opinion cites testimony of both Dora Kirks and Crawford Crowell and concludes (36 Mich App 380, 388-389 [1971]):
"We rule that the testimony produced at trial would justify a finding by the jury that defendant deliberately formed in his mind beforehand the intent to kill the deceased. As a result of this determination, we are constrained to rule, viewing the evidence in the light most favorable to the people, that the jury could also have determined that sufficient time had elapsed between the time defendant deliberately formed in his mind the intent to kill the deceased and the act of stabbing the deceased which caused his death, to justify a finding of premeditation.”
However, the Court fails to state precisely what the evidence is. A portion of the testimony of Dora Kirks cited by the Court is as follows (36 Mich App 386-387):
" 'Q. Now, just answer my questions, if you will, please. He went out of the room?
" A. Yes.
" ’Q. And how long before he came back in again?
" A. It wasn’t that long.
” 'Q. How long was it?
" A. Just a few minutes. He just went back out and he came back in again.’ ”
Thus, the Court of Appeals may have inferred that there was a lapse of several minutes which was sufficient time to form premeditation. However, the transcript reads as follows:
”A. Now, just answer my questions, if you will, please. He went out of the room?
"A. Yes.
”Q. And how long before he came back in again?
'A. It wasn’t that long.
”Q. How long was it?
"A. Just a few minutes. He just went back out and he came back in again.
”Q. Was it a matter of seconds or a matter of minutes?
(A. SECONDS. (Emphasis added.)
”Q. Seconds?
’A. Yes.
”Q. So that it was just time enough for him to go back in the living room for a few seconds, and then return?
"A. Yes.”
Thus, it is clear that Dora Kirks never really meant that there was a lapse of a few minutes. Indeed, the prosecutor states in his brief:
"In the instant case the trial judge had to decide whether a jury could have reasonably believed from the evidence that DeShorn Watkins had fatally stabbed Larry Kirks several seconds after stating that he would kill the 'mother fucker’ if he was not removed from the premises.” (Emphasis added.)
Thus, the above quoted passage by the Court of Appeals was not evidence of premeditation.
The Court of Appeals also points out that Crawford Crowell’s testimony when first interrogated and at trial were not the same.
This is true, but it is clearly not evidence of premeditation on the part of the defendant.
Thus, the only possible evidence of premeditation is the one statement of Dora Kirks, "I heard him after he came in there, and he told Crawford Crowell, he said, 'you’d better come and get this mother fucker before I kill him.’ ” The prosecutor in the above quoted portion of the brief likewise asserts that this statement was sufficient to show premeditation. We agree with the dissent that this statement is equivocal and is clearly not evidence of premeditation. As Judge Levin stated (36 Mich App 396 [1971]):
"That statement, attributed by Dora Kirks to Watkins, does not evidence an intention, both premeditated and deliberated upon, to kill Larry Kirk. If anything, the statement would appear to indicate an unwillingness to harm Kirk and a desire by Watkins for Crowell’s aid in preventing a killing.
"The language used by Watkins in referring to Larry Kirk does not necessarily indicate animosity. The term 'motherfucker’ is used by some men in their everyday speech. Just as it cannot be taken as a literal comment on Larry Kirk’s sexual practices, it does not appear to have been used in a pejorative sense.”
Thus, the evidence was insufficient to sustain a judgment of first-degree murder and defendant was entitled to a directed verdict on the charge of first-degree murder.
In People v Stahl, 234 Mich 569 (1926) defendant was charged with first-degree murder and found guilty of manslaughter. The Supreme Court reversed for a new trial holding that there was no evidence of premeditation. The Court stated (p 572):
"But it is urged that defendant was not prejudiced in this respect because the jury acquitted him of the major charge of murder, the verdict being of manslaughter; citing People v. Knapp, 26 Mich. 112 [1872]; People v. Sharp, 163 Mich. 79 [1910]; People v. Lieska, 161 Mich. 630 [1910]; People v. Klise, 166 Mich. 1 [1911]; People v. Collins, 166 Mich. 4 [1911]. These cases are applicable where there is some evidence at least to support the charge, or degrees of crime charged and submitted to the jury. But they ought not to be held as excusing the instruction here respecting the major charge of murder where there is no evidence to support it. Fancied cases to illustrate the point will suggest themselves.
"When twelve jurors agree on amount or degree generally there must be composition of views. Here the jurors to determine degree were required improperly to compose their views between the major charge of murder in its degrees, and manslaughter. Defendant testified; if truly, he was innocent. The case was serious, sad. If the murder feature had been omitted from the instructions, and the case submitted on the theory of manslaughter, it cannot now be said with certainty that the jury would have reached the same result.”
In People v Marshall, 366 Mich 498 (1962), another case where defendant was charged with first-degree murder and convicted of manslaughter, Justice Kelly, writing for a unanimous Court, quoted the Stahl case and reversed and remanded for a new trial because there was no evidence of premeditation.
In People v Gessinger, 238 Mich 625 (1927) the majority stated (p 628):
"If the trial court was in error as to this question, was the defendant harmed by the ruling, inasmuch as he was convicted the second time for receiving stolen property? I think it is evident to most practitioners of experience that it would be much easier to secure an acquittal if the defendant were only charged with the lesser offense than it would be were he charged with all three offenses. The tendency of jurors is to compromise their differences. Where there is only one charge they are obliged to meet the question squarely by yes or no, or disagree, but where the charges are three, the juror who thinks there should be no conviction, and the juror who thinks that a conviction should be had of the greater offense are quite liable to agree upon a conviction of the lesser offense.”
See also: People v Hansen, 368 Mich 344, 353 (1962).
Thus, that there may have been a compromise verdict, the judgment must be reversed.
The judgment is reversed and the case is remanded for a new trial.
T. M. Kavanagh, C. J., concurred with Swain-son, J.
MCLA 750.316; MSA 25.548.
MCLA 750.317; MSA 25.549.
Crawford Crowell explained the variance at the trial as follows:
"Q. Do you recall him asking you, whether you were able to hear anything while you were in the bedroom?
"A. No, because when he first asked me, I told him that I was sitting in the chair sleeping. And the only reason I said that I was sitting in the chair sleeping, was because I didn’t want them to know that Dora Kirks was upstairs.
"Q. So you changed your story?
"A. What?
"Q. So you changed your story?
"A. I changed my story.
”Q. The story you are telling here today, isn’t the story you originally told?
"A. Well, at first I didn’t want them to know she was there and in the bedroom with me. And that she had left before anybody had come, and at that time I didn’t know he was dead. I thought he was just cut or something, but after I found out he was dead, that is when I told them the truth, that she was in the bedroom with me.” | [
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Starr, J.
Plaintiff appeals from a decree dismissing Ms bill of complaint, which was filed to establish his right to use a certain private roadway in Silver Creek township, Cass county, and to enjoin defendant from obstructing such roadway. We attach a map, not drawn to scale, showing in a general way the location of such roadway and adjacent lake resort properties.
On November 22,1895, plaintiff’s parents, Patrick and Julia Curran, owned certain lands in Silver Creek township, bordering on Magician lake. On that date they conveyed to the persons who later incorporated defendant Resort Association a strip of land one rod wide for roadway purposes, said strip extending from the highway now designated as M-152 to a point, on the shore of Magician lake near Maple island (A to C on attached map).
In April, 1898, said Patrick Curran and wife conveyed to W. F. Hoyt, who later conveyed to defendant Resort Association, a parcel of land situate between Magician lake and the above-mentioned roadway, which land was later platted into lots, and is designated on the attached map as Boat House addition. The land on Maple island in Magician lake was also platted by defendant association.
Subsequent to'the death of his father in 1922, plaintiff acquired title to the lands on Magician lake previously owned by his father and mother. He began the development of such - lands for resort purposes and leased many lots on wMch cottages were-built. At the time of trial more than 30 cottages had been built on lots in an unrecorded plat located east of Maple island, the majority of which were built after 1936. Plaintiff also leased lots in an unrecorded plat located west of the south end of Boat House addition, on which cottages were built. He also leased lots across the roadway from such addition, and in about 1940 a lane or road was built on the east side of said lots (D to E on map).
Plaintiff and his lot lessees used the roadway extending from M-152 to point F east of Maple island. It should be noted that plaintiff’s lots located east of Maple island were also accessible from M-152 by roadway marked I to J on map.
On August 18, 1938, plaintiff and defendant association entered into the following agreement, the construction of which is involved in this suit:
“Articles of agreement, made and executed August 18, 1938, between Richard J. Curran, a single man, of Silver Creek township, as party of the first part, and Maple Island Resort Association, a corporation, by its officers duly authorized, as party of the second part.
“Whereas there has existed a roadway leading Maple island from State trunk line M-152, and
“Whereas by deed made November 22, 1895, Patrick Curran and wife, the parents of first party, * * ■ * did convey to second party a strip of land one rod wide for road purposes, and
“Whereas it is determined by the parties that said roadway should be widened and improved,
“Now therefore it is understood and agreed by and between the parties hereto as follows :
“1: That a roadway be and the same is hereby established leading from State trunk line M-152 to Maple island in Magician lake as follows: -
“ ‘A road 33 feet wide in the southeast fractional quarter of section 4, town 5 south, range 16 west, Silver Creek township, Cass county, Michigan, the center line of which begins in the center of State trunk line M-152 299 feet north and 626.8 feet east of the south quarter post of said section 4,- thence north two degrees east 1,355 feet to the plat of Boat House landing.’
“2. It is understood, however, that the said road as above described includes the one-rod road heretofore deeded to second party, and the other one road (rod) of said road belongs to first party.
“3. It is agreed that said roadway may be used for the benefit of the resort lands and premises of the parties hereto, and this agreement shall run with such lands so long as said lands and premises of both parties are used for resort purposes.
“4. It is agreed that the road as above laid out shall be repaired, rebuilt and constructed and that second party shall pay for all necessary labor, and that first party shall furnish all necessary machinery to properly grade said road and cut the bank thereon.
“5. It is further understood and agreed that said roadway shall be maintained in the future by the parties hereto at their equal expense.
“6. Further agreed that first party shall maintain at his own expense, the fences along the boundary lines of said roadway as above described and that second party shall pay all necessary expense for setting over the east fence to conform with the lines of the newly-established roadway.”
Subsequent to making the above agreement, the roadway was widened and improved from M-152 to the south end of Boat House addition. Later, plaintiff made some improvements on the one-rod-wide roadway adjoining Boat House addition. Plaintiff, and the cottage owners who had leased unplatted lots from him, continued to use the full length of the roadway (A to F on map) until August 6, 1942, when defendant placed a barricade and “road closed,” “no trespassing” signs at about point F. This barricade prevented plaintiff, and cottagers to whom he had leased lots east of Maple island, from (entering the roadway at point F.
On August 7, 1942, plaintiff filed bill of complaint seeking to establish his right to use said roadway and permanently to enjoin defendant from barricading or interfering with the use thereof by plaintiff and his lessees. Defendant answered, admitting the .barricading of the roadway and denying plaintiff’s right to use that part located north, of point B, that is, north of the south end of Boat House addition.
In Ms opinion denying relief and dismissing plaintiff’s bill, the trial court said in part:
“The roadway to be established was described in paragraph numbered one in the agreement of August 18, 1938. All the language of that paragraph cannot stand together because of repugnancy. The clause ‘to Maple island in Magician lake’ is inconsistent with the particular description by metes and bounds. The particular description fixes the width of the roadway as 33 feet, the point of beginning in the center of State trunk line M-152, the courses and distances, and terminus as ‘north two degrees east 1,355 feet to the plat of Boat House landing.’ (A to B.) When a general description of real estate is given followed by a more particular 'description, the latter expresses the intent, and controls. Nichols v. New England Furniture Co., 100 Mich. 230. To sustain plaintiff’s contention would read out of the agreement the more particular description.”
Plaintiff appeals from the decree entered in pursuance of such opinion. This being a chancery case, we consider the same de novo.
It should first be noted that on this appeal plaintiff asserts no prescriptive rights by user in said roadway and bases his claims on the above-quoted agreement of August 18, 1938. The case, therefore, turns on the construction to be placed upon such agreement. The general description in the first paragraph, “a roadway * * * leading from ■State trunk line M-152 to Maple island in Magician lake,” covers the entire roadway from point A to point C, as shown on the map. The particular description by metes and bounds in the said paragraph covers only that part of the roadway extending from A to B.
The trial court applied the rule that the particular description by metes and bounds controlled over the general description, and cited as authority the case of Nichols v. New England Furniture Co., 100 Mich. 230. Although that case stated the rule, p. 238, that “when a general description of real estate is given, followed by a more particular description, the latter expresses the intent, and controls,” nevertheless, it recognized that the intention of the parties was really the controlling factor when it further said, p. 241, “It is clear, we think, that it was the intention of the original proprietors to reserve the title to the canal bed * * * for their private property.” That the real intent of the parties should control was recognized by Mr. Justice Cooley in the case of Moran v. Lezotte, 54 Mich. 83, 88, where he said:
“It is, no doubt, generally true that where definite lines or definite monuments are given in a conveyance, and the quantity mentioned conflicts with these, the lines or monuments must control. But there is no inflexible rule of law to this effect; nor indeed would such a rule be consistent with the main purpose for which rules of construction are established. The only purpose of rules of construction is to enable us to reach the probable intent of the parties, in order that we may give it effect; and unless they are somewhat flexible, they would, in many cases, defeat the actual intent, even when upon the face of the instrument it was obvious what the intent was. The errors in deeds are infinite in variety and form; and any one case of mistake may present considerations a little different from any other. The most general rule of all, perhaps, is that in case of conflicting particulars in a description, that particular in respect to which there is the least probability of error should control; * * * and this is reasonable, because it is most likely to effectuate the actual intent.”
“The intention of the parties, as gathered from the whole instrument, will control; and, in case of a general description followed by a clause summing up the intention of the parties as to the premises conveyed, it has a controlling effect upon all prior phrases used in the description.” Plummer v. Gould, 92 Mich. 1, 6 (31 Am. St. Rep. 567).
In 16 Am. Jur. p. 600, § 287, it is stated:
“The descriptions in a deed or grant will all be reconciled and given effect, if possible; none are to be rejected or disregarded if they can be harmonized and applied in any reasonable manner. Effect must be given to the larger, as well as to the more restricted, description, where such interpretation does no violence to either, but gives full force to both. If there are conflicting descriptions which cannot be reconciled, that construction will be adopted which best comports with the manifest intention of the parties and the circumstances of the case, for the court will keep in mind the position of the contracting parties and the circumstances under which they acted.”
The rule that the intention of the parties as determined from a consideration of the entire instrument should control is stated in Bain v. Tye, 160 Ky. 408, 411 (169 S. W. 843):
“It is an elementary rule in the- interpretation of deeds that the intention of. the parties should be effectuated, and in doing this a liberal construction is given to deeds inartificially and untechnically drawn. . The intent must primarily be gathered from a fair consideration of the entire instrument and the language employed therein, and should be consistent with the terms of the deed, including its scope and subject matter. * * *
“Furthermore, effect and meaning must be given to every part of a deed, each course being considered separately and being governed by the intent deducible from the entire instrument, and separate parts being viewed in tbe light of other parts, if the same can be done consistently with the rules of law.”
See, also, 72 A. L. R. p. 410; 26 C. J. S. pp. 429, 430, § 128; 13 Cyc. pp. 605, 618, and cases there cited.
We believe that the rule properly applicable in the present case, involving repugnancy between a general and a particular description, might be stated as follows: in case a general description is followed by a more particular description, the latter controls, unless other provisions of the instrument and surrounding facts' and circumstances clearly indicate a different intention.
In the preamble of the instrument here in question, the original one-rod-wide roadway is described as “leading to Maple island from State trunk line M-152.” (A to C on map.) In such preamble the parties indicated their intention that “said roadway should be - widened and improved.” 'It may reasonably be inferred that when they used the words “said roadway,” they referred to the original roadway extending from M-152 to a point near Maple island. In the first numbered paragraph of the instrument the parties agreed to establish a roadway “leading from State trunk line M-152 to Maple island in Magician lake.” The repugnancy arises when, in the second sentence of said first paragraph, they described by metes and bounds only that part of the roadway extending from M-152 to point B at the south end of Boat House addition. In paragraph 3, they agreed that “said roadway may be used for the benefit of the resort lands and premises” of both parties so long as said lands were used for resort purposes. In paragraph 4, .they agreed that the road “as above laid out shall be repaired, rebuilt and constructed” and that defendant would pay for all necessary labor and plaintiff would furnish the necessary machinery. It was further agreed that the roadway should be “maintained in the future” by the parties at their equal expense.
As the president and secretary of defendant association, who had negotiated and executed the agreement with plaintiff, had died prior to trial, testimony which might have thrown considerable light on the intention of the parties was not admissible. Defendant argues in effect that it was not contemplated that plaintiff would use the roadway from B to F because other roadways, D to E and K to L, afford ingress and egress to and from the lots which he had leased to cottage owners. However, the record indicates that such branch roadways were not built until some time subsequent to the execution of the agreement between the parties on August 18, 1938.
We believe the trial court construed the repugnant provisions in paragraph 1 without due "regard to other terms and provisions of the agreement and the facts and circumstances surrounding the entire transaction. Considering the agreement from its four corners together with the surrounding facts and circumstances, we are convinced that the parties intended that defendant association and plaintiff and his lessees should have the right to use the full length of the roadway from M-152 to a point near Maple island (A to C on attached map) in common ‘ ‘ so long as said lands and premises of both parties are used for resort purposes.”
We conclude that defendant should be permanently enjoined from barricading said roadway or interfering with the use thereof by plaintiff and his lessees.
The decree of the trial court is reversed and set aside, and a decree may be entered in this court in accordance with this opinion. Plaintiff shall recover costs of both courts.
North, C. J., and Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
See 3 Comp. Laws 1929, §14219 (Stat. Ann. § 27.914). — RePORTER. | [
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Btjtzel, J.
Plaintiff James F. Hopkins and defendant Theodore I. Crantz each owned 48-¿ % of all of the common stock of West Detroit Brickote, Inc., a Michigan corporation, engaged in the business of surfacing buildings with simulated brick. Crantz because of illness and inability to work desired to sell his stock, consisting of 122 shares of the par value of $12,200, to Hopkins for $10,700. A written agreement to that effect was entered into. ■ In the preamble it was stated that one of the considerations of the purchase by plaintiff was that defendant would refrain from re-entering the business in any way as provided in a covenant in the body of the contract.
The covenant read:
“As a further consideration for this agreement Crantz agrees that he will not enter into the business or the type of business heretofore conducted by the West Detroit Brickote Company, or any similar brick siding business for a period of 10 years, in any capacity whatsoever, either as an owner or employee, unless it is for some company, copartnership, or individual holding a franchise from Brickote, Inc., a Michigan corporation.”
Other provisions of the contract are not inaterial to the issue.
Plaintiff in a bill of complaint, alleging that defendant had breached the quoted covenant, sought injunctive relief, both temporary and permanent, against further violations. Defendant in answer did not. deny -the.. agreement or that he breached it but alleged that the covenant is “contrary to public policy and constitutes a restraint of trade,” giving no reason for such conclusion. Such an allegation in the pleadings, without any facts being stated in its support, will be disregarded. See Dodge v. Detroit Trust Co., 300 Mich 575.
A circuit judge, shortly after the bill was filed, heard'.'the motion for a temporary injunction and denied!'it. Subsequently the case came before another judge on a motion for decree on the pleadings. The latter, after argument by counsel, rendered an opinion in which he held that plaintiff was' entitled to the relief prayed for. However, upon objections to the proposed decree, the circuit judge modified his opinion and entered a decree restricting the territory in which the covenant would be .operative to Wayne county, Michigan, a large portion of which is occupied by the city of Detroit in which the office of the company was located and from which the business was conducted.
Defendant appeals and claims that inasmuch as the circuit judge who first heard the case on a motion for temporary injunction dissolved it, therefore, the question became res jtodicata. Decision on a preliminary motion in no way affects a final decree. See Palmer v. Kleiner, 236 Mich 480; Dunnebacke v. Detroit G.H. & M.R. Co., 248 Mich 450.
Defendant alleges that the covenant is illegal in that it tends to create a monopoly, is in- restraint of trade, is unreasonable, and imposes a hardship on defendant. We have so repeatedly upheld, under somewhat similar circumstances, a covenant not to compete that it is unnecessary to more than cite CL 1948, § 445.766 (Stat Ann § 28.66), which states that a restraint is permitted when its object is to protect a vendee, et cetera, in the furtherance of his business. This has been applied to the purchase of stock in a corporation, accompanied by an agreement on the part of the vendor not to compete. Buckhout v. Witwer, 157 Mich 406 (23 LRA NS 506); Wolverine Sign Works v. Powers, 248 Mich 371; Arctic Dairy Company v. Winans, 267 Mich 80 (94 ALR 334); Sewall v. Feller, 288 Mich 107.
Defendant contends that it is not permissible for the trial court to restrict the territorial scope of the injunction as no territorial limits were specified in the covenant. In Hubbard v. Miller, 27 Mich 15, a leading case referred to by both parties, a somewhat similar restrictive covenant was upheld, Mr. Justice Ohristiancy writing the opinion. In the restrictive covenant in that case, the vendors agreed- not to engage in a similar business but did not limit it either as to time or territory. The court stated that where a consideration recognized by law as being valuable is paid, the law very properly allows parties to judge for themselves of the sufficiency of value of such consideration for their contracts. The court granted injunctive relief but limited the scope of the injunction to the city of Grand Haven where the vendor’s business had theretofore been conducted and for some distance beyond the city limits. This was in 1873 before, metropolitan districts of large cities were known. In the instant case, while the business was being conducted in the .city of Detroit, the metropolitan area had been built up far beyond the city and county limits, the limitation to the county of Wayne, as stated in the decree, seems reasonable on the record. The trial court so held after listening to the’arguments of counsel. Similarly, a restriction to a smaller area might have appealed to the court though a business of the kind conducted by plaintiff is necessarily not confined to a neighborhood and probably seeks to draw trade from a very wide area. Similar provisions have been upheld where no particular area was set forth in the contract. See Up River Ice Co. v. Denler, 114 Mich 296 (68 Am St Rep 480); Buck v. Coward, 122 Mich 530; and Colton v. Duvall, 254 Mich 346. Defendants cite Caswell v. Gibbs, 33 Mich 331, as authority for their contention, but in that case the terms of the contract were too indefinite, the court denying an injunction without prejudice to the parties bringing further proceedings. The court has the authority to enter a decree according to the facts so as to make the area of restriction a reasonable one.
Defendant claims that a judgment on the pleadings was improper in the instant case although the allegations in regard to the contract itself, payments, et cetera, were admitted. In the objections to the proposed decree defendant claimed that the cause required the taking of testimony and that, therefore, a decree should not be entered on the pleadings and more specifically alleged that the court should have inquired as to whether the agreement was conscionable, whether or not plaintiff would be materially benefited or defendant harmed by the entry of decree and numerous other prin ciples applicable in chancery cases, which principles were not set forth. The pleadings seem sufficient to fully justify the judge in coming to his conclusions. It is true that in the cases cited where the contract did not limit the restricted territory, testimony was taken.
In affirming the decree we do so subject to the right of either party to move for modification of the decree within 30 days after this decision is handed down and in that event testimony may be taken to show why the territory should be enlarged or restricted, and the decree may be so modified by the trial court if it so decides if such timely motion is made and testimony taken. In the meantime, however, the injunction on the decree heretofore rendered shall stand unless and until the decree is modified by the court.
Subject to the right to move for modification as provided above, the decree is affirmed, with costs to plaintiff.
Dethmers, Carr, Btjshnell, Sharpe, Boyles, and Reid, JJ., concurred.
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Carr, J.
Plaintiffs brought suit in circuit court to obtain an' injunction against the sale of certain ■personal property taken from their possession by defendant May under a writ of execution. In March, 1939, a judgment was entered in the justice court of Grand Rapids in favor of defendant West-Dempster Company and against plaintiff John Vanden Bogert. The judgment was not paid, and later a transcript thereof was filed in the circuit court of Kent county. Subsequently the judgment was renewed, the amount then being $247.23, together with costs in the sum of $42.10. To enforce such judgment the writ of execution involved in the instant controversy was issued under date of April 16,1951, and was delivered to defendant May, a deputy sheriff, for service. At the time defendant Blacklock was sheriff of the county.
A levy was made on personal property in the office of Mr. Vanden Bogert but was abandoned. because the appraised value of the articles on which such levy was made did not exceed the judgment debtor’s exemptions. Subsequently defendant May, accompanied by an attorney for the West-Dempster Company, went to the home of plaintiffs for the purpose of making a levy there. The testimony is in dispute as to what occurred at the time. However, a levy was made on certain items of property found by the officer in the home, and such items were removed from the premises.
Plaintiffs then instituted the present suit, claiming in their bill of complaint that the deputy sheriff had forced his way into the home, that what was done by defendants constituted an abuse of process, and that the levy was void. Injunctive relief against the sale of the property was asked, together with an award of damages to which plaintiffs' claimed they were entitled on the theory that defendants were guilty of trespass. On the filing of the bill of complaint a temporary injunction was granted, restraining the sale until further order of the court. Defendants by answer denied the material allegations of fact set forth in plaintiffs’ pleading. After listening to the testimony and the arguments submitted on the trial, the trial judge determined the facts substantially in accord with the claims of the defendants and entered a decree setting aside the temporary injunction, denying to plaintiffs the relief sought by them, and dismissing the bill of complaint. Plaintiffs have appealed.
On the trial of the case it was the claim of the plaintiffs, as set forth in their bill of complaint, that defendant May had forced his way into their home in spite of the fact that his attempt to enter was resisted. They claimed also that after entrance through the front door of the building had been effected further physical force was resorted to by de-fendant May, aided and abetted by police officers whom he had caused to be summoned, to compel plaintiffs to open inner doors. It is conceded by defendants that there was difficulty within the home, involving the use of physical force on the part of the deputy sheriff as well as by plaintiffs, the pur pose of the latter being to prevent the making of a levy on their property.
Defendant May and the attorney who accompanied him to plaintiffs’ home testified positively that no force was used to effect an entrance into the building. They claimed in substance that Mr. Vanden Bogert, after they had knocked 3 or 4 times, opened the outer door, and that they entered peaceably and without the use of any force whatever on their part. This conflicting testimony presented an issue of fact for the determination of the trial judge, who obviously came to the conclusion that plaintiffs had not sustained the burden of proof resting on them. He, therefore, found that the entering of the home was not illegal, that defendants were attempting in good faith and by legal means to enforce payment of the judgment, and that there was no abuse of process.
The crucial question in the case is whether the proofs can be said to establish that defendant May forced entrance to the home of the plaintiffs through the outer door. It is conceded that under the law of the State he had no right to do so. If the officer was lawfully admitted to the home he was entitled to insist that inner doors be opened to enable him to make the levy as commanded by the writ and to use reasonable force-if necessary to accomplish that result. In Stearns v. Vincent, 50 Mich 209, 219, 220 (45 Am Rep 37), it was said:
“The protection of the dwelling against entry for the service of process is in the outer door only, and it is optional with the owner to take it by closing the door against the officer, or to waive it by allowing him to enter. If the officer once gains entrance through the outer door without force or fraud, the privilege is gone, and he may force open any other door if necessary to make complete service of his process.”
The above statement is in accord with, the general rule set forth in 33 CJS, p 242, as follows:
“As a general rule an officer may force an entry into any enclosure except the dwelling house of the judgment debtor in order to levy a fieri facias on the debtor’s goods; and even in the case of the debt- or’s home, when the officer is once inside, he may break open inner doors or trunks to come at the goods.”
The legal proposition involved is discussed at some length in an annotation in LRA 1916D, p 281 et seq. It is there said, in part:
“The common law, both in England and America, jealous of intrusion upon domestic peace and security, regards every man’s house as his castle and fortress as well for his defense against injury and violence as for his repose. It is this ancient and well-known principle that underlies the whole law of the right to break and enter a dwelling house to serve a civil writ or process. Accordingly, therefore, the authorities are substantially agreed that, as a general rule, in the absence of statute, the outer door or other outside protection to a dwelling house may not, even after request and refusal of admittance, be broken or forcibly entered in the execution of a civil writ or process, either against the person or property of the householder, except, perhaps, at the suit of the King. Of course, if the door or other protection is open, and the officer can enter peaceably without force and violence, he-may do so; and being lawfully in the house, he is justified in using such force as is necessary to overcome any resistance he may meet with in the service of the process, being-responsible only for the excess beyond what is necessary to enable him to accomplish his purpose.”
In the making of the levy Mr. Vanden Bogert refused to assist in any way, and declined to assert his exemption rights. It is the claim of the defendants, however, that the other plaintiff claimed certain articles of furniture as her property, and that in each such instance no levy thereon was made. It is further claimed that she cooperated, to some extent at least, in determining what property should he regarded as exempt. The proofs offered on behalf of defendants indicated that articles having a value appreciably greater than the amount of the exemption to which the judgment debtor was entitled were not taken under the- writ. Under the circumstances we think that the conclusion of the trial judge that the deputy sheriff undertook to perfoim his duty to the best of his ability was fully supported by the record made on the trial.
While we hear equity cases de novo on the record made in the trial court, and in consequence must use our own judgment in passing on the evidence, we recognize that the trial judge had an opportunity to observe the witnesses as they gave their testimony in court .and was therefore in a better position than we are to pass on the credibility of such witnesses and to evaluate the testimony of each. In Gindorff v. Gindorff, 295 Mich 469, 471, it was said:
“When the testimony is conflicting, the findings of the trial court will be upheld in the absence of a definite showing that a contrary result should have been reached. Donaldson v. Donaldson, 134 Mich 289.”
Among numerous cases of like import are: Lau v. Lau, 304 Mich 218; Eicholtz v. Grunewald, 313 Mich 666; Steketee v. Steketee, 317 Mich 100. On the record before us we cannot say that the determination of the facts by the trial judge was not in accordance with the just rights of the parties. Such being the situation, we would not be justified in reversing the decree entered. Barar v. Phillips, 328 Mich 267.
Appellants claim further that one of the appraisers who valued the different items of property at the time of the levy was not a resident of the city of Grand Rapids. The answer of the defendants conceded that such was the fact. On the trial of the case counsel for plaintiffs cross-examined the other appraiser, who was called as a witness by defendants, with reference to the matter. The testimony given was not conclusive, the witness indicating that 'the alleged nonresident appraiser lived outside of the city at times and inside the city at other times. Assuming on the basis of the pleadings that said appraiser was not a resident of the city, as specified in CL 1948, § 623.46 (Stat Ann § 27.1546), the facts in the instant case do not justify or require the granting of equitable relief to plaintiffs on that ground. No claim is made that Mr. Vanden Bogert was deprived of any right to claim his exemptions. Under testimony that the trial judge found to be credible, the deputy sheriff, assisted by Mrs. Vanden Bogert, excluded from the levy property having a greater value than the amount of the judgment debtor’s exemption. There is no showing that the appraisal was not fairly and honestly made, or that plaintiffs were in any way prejudiced. Neither does it appear that any motion to set aside the levy was made in the court in which the judgment was rendered. See Rhode v. Hassler, 113 Mich 56.
The decree of the trial court is affirmed. Defendants may have costs.
Dethmers, Butzel, Bushnell, Sharpe, Boyles, and Reid, J J., concurred.
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Dethmers, J.
Defendants appeal from an award of the workmen’s compensation commission allowing plaintiff compensation for total disability for the period from February 12, 1950, to September 12, 1950.
On April 11, 1949, bones in plaintiff’s left hand were fractured in an accidental injury arising out of and in the course of his employment with defendant Dow. As a result, he was off work until May 19,1949, and received compensation for that period. He then returned, at the same pay, to his regular work as an unskilled lathe operator. Due to pain in his hand, he was permitted for a time to run somewhat lighter stock through Ms same machine and on that same account lost a few additional days’ time. Plaintiff testified that his left hand hurt Mm on the job and that he used his foot rather than his left hand on a wrench to tighten the parts he was machining into position on the lathe. This was also the practice of many other men. Plaintiff received complaints about the amount of material scrapped due to his failure to adequately tighten the chuck into the machine. Later he requested that his classification be raised to first class operator. His request was refused at first on the grounds of lack of experience and production on Ms part, but ultimately it was granted with a corresponding increase of pay. He testified that in his new classification it was necessary that he do the best, if not the most, work and that he had done first-class work. He admitted that on his new job he operated jnst as heavy a machine and lifted and worked on heavier parts than was the case at the time of his injury. The proofs show that he did this work in a proper and satisfactory manner.
On February 12, 1950, plaintiff was laid off for lack of work, along with other men doing the same kind of work. He was called back to his job as a first-class lathe operator on September 12, 1950, and continued at it steadily and satisfactorily, at full pay, until the date of hearing on October 3,1950. During the layoff he received unemployment compensation for 20 wmeks. During that period he was offered a job as lathe operator by another concern, discussed and wrent through the job for an hour with his prospective employer and told him that he could not do the job because it necessitated opening and closing the chuck with his left hand. He also attempted to conduct an awning business but testified that he could not physically do what was required in that work because of his injured hand and, further, that he had tried 2 other ventures with scant success, failing, however, to establish the injured hand to have been a factor. Plaintiff also adduced medical testimony to establish some loss of grip, soreness and tenderness in an area the size of a dime in the palm of the left hand, and overlapping of fingers and lack of complete closure of the hand.
Was plaintiff entitled to compensation for the 7-month period of his layoff? Plaintiff relies on such cases as Smith v. Pontiac Motor Car Co., 277 Mich 652; Cundiff v. Chrysler Corp., 293 Mich 404; Shaw v. General Motors Corp., 320 Mich 338. They are not in point. Although plaintiff was at first, after his injury, permitted to machine lighter parts on the same old lathe, there is no showing that this practice continued. On the contrary, prior to his being laid off. for lack of work, he had been promoted to a better position and worked at as heavy a lathe on heavier stock than that on which he had worked at the time of injury. This is not, as in the cited cases, a case of a plaintiff being returned and kept, after injury, at light work or temporary, makeshift, odd lot or nondescript employment, nor was he unable at the time of the layoff to do the work he was employed to do at the time of the accident. ’ Despite medical testimony showing some disablement of the hand and proof of discomfort and pain in operating a lathe or putting up awnings, it was established that plaintiff was able to and actually did do his old work for a time and thereafter, upon promotion, even heavier-work than before, in a satisfactory manner, establishing an earning capacity thereat which was not shown to have diminished at the time of or during his layoff. Applicable is the following:
“The test of an injured employee’s right to compensation is his inability by reason of the accident to work and earn wages in the employment at which he was engaged when injured.” Levanen v. Seneca Copper Corp., 227 Mich 592, 601.
“Admittedly plaintiff suffers some disability in that he is unable to flex completely the injured thumb but there was no showing that the disability had in any way lessened his earning capacity. * * * He was laid off due to regulations of the union to which he belonged and not because of inability to perform his work. The record is devoid of a showing that during this period his injury would have prevented him from performing his old job at the pasteurizer. To entitle him to a resumption of payments the burden was upon him to prove that because of the accident he was suffering a disability that lessened his earning capacity. Proof of a physical condition which in no sense impairs the employee’s wage-earn ing ability is not sufficient.” Kalonsky v. Goebel Brewing Co., 282 Mich 638, 640.
“When an employee accepts work and receives wages therefor in a recognized regular employment, with the ordinary conditions of permanency, as here, there is no room for argument that he has not thereby established a present earning capacity equal to such wages, whatever may be his physical condition.” Markey v. S.S. Peter & Paul’s Parish, 281 Mich 292, 299.
There is no competent testimony in the record to support the commission’s finding that, during the period in question, plaintiff was disabled from' doing the unskilled labor at which he was engaged at the time of his injury.
Reversed, with costs to defendants.
Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
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Boyles, J.
On January 21, 1952, a majority of the voters who voted at a school election held in District No 8, Fractional, in Parma township, Jackson county, a primary school district, voted affirmatively to annex said district to the Parma Union School District. When the district board proposed to turn over all the property of said District No 8 to the Union School District in accordance with the statute, the plaintiffs herein, who are qualified school electors of said district, filed the instant bill of complaint to enjoin such action. The circuit judge on motion dismissed the bill of complaint and the plaintiffs appeal. Two grounds are alleged for reversal.
1. At a previous election held earlier in the same month the voters at that election, called for the same purpose, had voted against such annexation. Appellants claim that the school board had no right to call the second election and that for that reason the second election is null and void. No authority in point is cited to support the claim. The statute governing the annexation of the primary school district to the larger Union School District (CL 1948, § 353.23), as amended by PA 1951, No 174, to be decided at either an annual or a special election called for that purpose, does not limit the time between elections or the number of special elections which may be called by the school board for that purpose. Nor is there any such limitation in the provisions of the school code prescribing the powers, duties and requirements of school districts in general. It is not the province of the Court to legislate such limitations into the school code.
2. According to the bill of complaint, the material allegations of which must be taken as true, there were 111 qualified electors in District No 8, Fractional, Parma township, at the time of the second election. The vote was 49 for and 47 against annexation. Appellants claim that the election did not carry affirmatively for annexation because it resulted only in the approval of a majority of the electors voting thereon, whereas (appellants claim) the school code requires a majority of all the qualified school electors in the district. This would require 56 affirmative votes.
District No 8, being a primary school district, does not have, nor can it have, a registration of school electors such as the school code provides for other school districts. There is no method prescribed by the statute for determining how many qualified school electors there were in said district when the election was held. The essential part of the statute governing this election provides:
“Any primary, * * * school district shall be annexed to an adjoining second or third class school whenever the board of education.of such second or third class school district shall, by resolution, so •determine and a majority of the qualified school electors of the primary, * *. * district have approved such annexation at an annual or special meeting called for that purpose. * . * * Within 10 days after the electors of said primary * * * district have voted affirmatively on the purposed annexation the director or secretary of such district shall certify the results of said election to the secretary of the board of education of the second or third class district. Such annexation shall become effective 30 days following the adoption of such resolution by a majority vote at the annexation election of the ■district to' be annexed. Upon the effective date of ■such annexation all real and personal property belonging to the district so annexed shall become the property of the second or third class school district. Within 15 days after the effective date of such annexation, the members of the district board or board of education of the annexed district shall account to the board of education of the second or third class school district for the funds and property in their hands as such officers, and shall turn over the same to the second or third class school district.” (The italicized language was added by PA 1951, No 174.)
The trial court held that the statute -required only the affirmative vote of a.majority of the qualified voters voting at such election. We agree that the statute does not require a majority vote of all the qualified electors of the district. The Court has passed upon the question under comparable circumstances :
“It is further insisted that the vote by which it was determined by the electors of the county of Bay to adopt the county road system was never legally adopted, for the reason that a majority of all the electors in the county did not vote affirmatively upon the proposition. It does appear that a majority of all those who availed themselves of the opportunity to vote, voted affirmatively; and the question presented is whether, under the language of the Constitution above quoted, a majority of the votes cast at the election is sufficient. * * * In the present case there is no machinery provided, and the result could never be definitely ascertained, if the construction contended for by complainants is to prevail, until an investigation aliunde the record. * * * In McCrary, Elections (4th ed), § 208, it is laid down that:
“ ‘Where a statute requires a question to be decided or an officer to be chosen by the votes of “a majority of the voters of a county,” this does not require that a majority of all persons in the county entitled to vote shall actually vote affirmatively, but only that the result shall be decided by the majority of the votes cast.’ ” Shearer v. Board of Supervisors of Bay County, 128 Mich 552.
A somewhat similar question was before the Court in Wilcox v. Board of Commissioners of Sinking Fund of City of Detroit, 262 Mich 699, in considering a constitutional amendment limiting the amount of taxes assessable in any 1 year in connection with local municipal financing. The Court said':
“The provision is purely a local-option law, and it is contrary tó our system of government to count electors on a question who are not sufficiently interested to vote.
“There are practical difficulties to another construction. There is no public record of all the electors of any taxing district, nor means of ascertaining them except by census, which would be costly, subject to interested manipulation, and certainly inaccurate. Registration of electors could not have been intended as test of the vote, because in some assessing districts, as school districts, there is no registration of electors. We hold that ‘electors’ means those voting on the question.”
The general rule is stated in 18 Am Jur, Elections, p 340, § 243, as follows:
“In the absence of a statutory provision to the contrary, voters not attending the election or not voting on the matter submitted are presumed to assent to the expressed will of those attending and voting and are not to be taken into consideration in determining the result. * * * It is generally held that the term ‘qualified voter’ in a provision as to the proportion of voters necessary for the adoption of a measure refers, not to those qualified and entitled to vote, but to those qualified and actually voting.”
The order dismissing the bill of complaint is affirmed and the order entered by this Court restraining' the defendants from transferring the property of District No 8 to the Parma Union School District until further order of this Court is set aside. No costs, the question involved being of a public nature.
Dethmers, Butzel, Carr, Bushnell, Sharpe, and Reid, JJ., concurred.
North, C. J., did not sit.
Stat Arm 1951 Cum Supp § 15.427(2).
CL 1948, §§ 352.3, 352.4 (Stat Ann § 15.374, Stat Ann 1951 Cum Supp § 15.375).
OL 1948, § 357A.1, as added by PA 1951, No 199 (Stat Ann 1951 Cum Supp § 15.477[11]).
CL 1948, § 353.23, as amended by PA 1951, No 174 (Stat Ann 1951 Cum Supp § 15.427[2]).—Reporter. | [
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Bushnell, J.
This is an action on a promissory note. Plaintiff Associates Discount Corporation, a foreign corporation, maintains a branch office at Kalamazoo, through which it loans money, secured by chattel mortgages and conditional sales contracts. One of its accounts was with Wallace R. Ewing, a used-car dealer in Kalamazoo, operating unaer the name of Kalamazoo Auto Mart. Edward J. Schludecker, the manager of Associates in Kalamazoo, testified:
“Our company has been dealing with Mr. Ewing-long before J une of 1948 which was when I came here: I have been servicing Mr. Ewing’s accounts personally. * * * j g0 his place daily, sometimes twice a day. I would handle the financing of the paper in his office on his lot. There might have been an occasion when he brought a deal in but that was very rare. In servicing a dealer we furnish a complete line of financing and furnish them with forms for their business such as defendant’s.”
According to Schludecker, Associates had hundreds of transactions with Ewing,' part of which was “floor-planning automobiles.” He said:
“Floor-planning means loaning money to the dealer to finance his purchase of that automobile so that he may place that car on his floor or sale lot, for sale, and when he sells the car then the floor-plan is paid off and at that time we take a retail paper from the purchaser. When we floor-plan an automobile we take a chattel mortgage and a bill of sale from the dealer which is represented in this case by exhibit B. During the time that we have the car floor-planned, the evidence of title or ownership is in our office and it is our practice to keep that evidence of ownership until the car or the floor-plan is paid off. • In this case we had a bill of sale in our office.”
On May 4, 1949, Associates "floor-planned a 1949 convertible Cadillac coupe for Ewing, taking a chattel mortgage for $2,800 and a bill of sale. Nothing was said at the time about the title or a title certificate.' Schludecker said the Cadillac looked like “a new car, and that Ewing said it was a new car. The name of the Werner Motor Company of Goshen, Indiana, was on the bill of sale. Schludecker thought that, since the car had néver been sold at retail, no title had'yet been issued. Ewing testified that he told Schludecker that the title was in Indianapolis being' processed and that he would have it in a few days.
On May 6th defendant Harold W. Gear purchased a 1949 convertible Cadillac coupe from Ewing. In order to be sure about the interest rate, Ewing called Schludecker and asked him if he would handle a note bearing-4% interest, which was lower than the usual rate. ■ Schludecker agreed, but stated on the witness stand that he did not know at that time what particular car Ewing was selling. Gear had signed.a note and chattel mortgage in blank and left them in Ewing’s hands. When Schludecker went to Ewing’s office that same day to discuss the details of the transaction, he (Schludecker) filled in these blank forms, taking the necessary information from the sales tax slip made out by Ewing. In the sales agreement the car was described as a 1949 new convertible Cadillac coupe. Schludecker gave Ewing Associates’ check for $3,100, and Ewing gave Schludecker a check for $2,800, which Schludecker said “was to pay off the floor-plan.” Ewing then had about 18 cars on the floor-plan with Associates, but only 1 Cadillac. On cross-examination, Schludecker admitted that when he got back to his office he knew that the. Cadillac car floor-planned on May 4th was the one sold to Gear on May 6th.
The record is not too clear, but it seems undisputed that the Cadillac was taken from Gear by someone, because it was admitted by Associates' that, as between Gear and Ewing, there was a total failure' of consideration. After the close of the proofs, Associates’ counsel stated in the presence of the jury that “the car involved in this case was a used car in the sense that there had been issued to the car or for the car a certificate of title which was in existence on and prior to May 4, 1949. * * * As a matter of fact that it was not a new car which had not yet acquired a certificate of title.” However, counsel claimed that at the time of the transaction, Schludecker was not aware that it was a used car.
Motions for directed verdicts were denied arid the case was submitted to the jury under the Empson act. PA 1915, No 217 (CL 1948, § 691.691 et seq[. [Stat Ann and Stat Ann 1951 Cum Supp § 27.1461 et seg.]). The jury’s verdict in the sum of $3,348 in favor of plaintiff was set aside and a judgment' in favor of Gear was entered notwithstanding the verdict. In a memorandum opinion the trial judge said in part:
“Plaintiff, through, its agent, Sehludecker, is charged with knowledge of the fact that Ewing was a used-car dealer and did not have a new-car dealer’s license. These facts were known to witness, Schludecker, * * * when he purchased the note in question, he understood that the note covered the sale of a new car, and not a used car. * * *
“Under the law Ewing had no right as a used-car dealer to sell new cars, and the plaintiff is not a holder in due course.”
Plaintiff argues on appeal that the circuit court may not consider or grant a motion for a directed verdict (or enter a judgment notwithstanding the verdict) where no grounds are stated in the motion.
The state of the record is this: At the close of plaintiff’s proofs, counsel for defendant Gear said:
“At this time I would like to move the court for a directed verdict on the ground that the plaintiff has failed to make out a case, and the court should direct a verdict of no cause of action.
“The Court: I will reserve decision on the motion.”
At the close of all the testimony plaintiff’s counsel suggested that he had a motion to make, which he would like to discuss with the court not in the presence of the jury. After the jury had retired, counsel stated that the undisputed testimony indicated that plaintiff was a holder in due course, there was no question of fact in dispute, and, therefore, Associates was entitled to recover the full amount of the note. This motion was with the reservation that, in the event of its denial, Associates could still go to the jury.
Defendant’s counsel then stated: “I would like to make a motion for a directed verdict, but I would like to have a ruling on the other first.” After some colloquy, defendant’s counsel stated: “At the time we were talking only about certificate of title under the law, if I remember right. We were being confined to that.”
Defendant claims that, as indicated in the court’s memorandum opinion on his motion for a directed verdict, his motion was “based upon specific grounds known to the court and plaintiff before the ease was submitted to the jury.”
In Turner v. Mutual Benefit Health & Accident Ass’n, 316 Mich 6,27, we stated:
“The party claiming to be entitled to judgment as a matter of law should, at the time of making the request, state the grounds upon which he relies.”
We held that it is equally clear that the decision of the trial court on the motion is limited to those grounds “fairly covered by the motion for a directed verdict as presented prior to the submission of the case to the jury.” In discussing the reason for the rule, we quoted with approval the following from Smalley v. Railway Co., 34 Utah 423, 442 (98 P 311, 316):
“ ‘We think the reasons given by courts, requiring the grounds upon which a motion for nonsuit is based to be-specified, in order that the court may know upon what question of law the case is asked to be taken from the jury, and the party against whom the motion is directed may be afforded opportunity to correct the defects, if they admit of correction, and can be obviated by additional evidence, apply with equal force to a motion for a direction of a verdict. If such opportunity should be afforded him on a motion of nonsuit, which, if granted, not being an adjudication on the merits, and not a bar to another action, for much stronger reasons should such opportunity be given him on a motion for a direction of a verdict, which, if granted, would be a bar to another action.’ ”
To this statement we now add the following from Falvey v. Coats (CCA), 47 F2d 856 (89 ALE 1):
. “A motion for a directed verdict should specifically state the grounds upon which it is urged. # * * It was due to the lower court that its attention he specifically called to the grounds upon which the motion was based; it was due to opposing counsel so that they might have an opportunity, either intelligently to oppose the motion, or ask to reopen the case for the introduction of further testimony, or for leave to amend the pleadings, or to move for a nonsuit; it was due the appellate court so as to enable that court to see whether or not the grounds urged were the same as those presented to the trial court, Where a motion for a directed verdict, failing to state the grounds upon which it is based, is denied, it is unfair to the trial court and to the appellate court; but, where it is granted, it is unfair to the party- against whom it is granted.” .
Defendant argues in his brief that the ground for his motion was that Associates was not a holder in due course, and that “the stated ground that plaintiff had not made out a case was broad enough to include all reasons why plaintiff could not be a holder in due course.” He further argues that the conclusion reached by the trial judge was based upon the theory advanced by Associates that Schludecker thought a new car was involved. Neither argument serves the purpose of warning plaintiff of the defects of its case.
It is difficult on the record before ns to conclude that defendant fairly indicated to plaintiff’s counsel and the court the theory upon which he relied.
Defendant, by a motion subsequently filed here, has sought to supplement the record by adding thereto the statement of the trial judge which contains his understanding of the specific reasons given by defendant and on which his motion for a directed verdict was made. This statement indicates that the argument was advanced, in the absence of thé jury, that Associates could not be a holder in due course because its representative, Schltidecker, knew thát the car Ewing- sold to Gear was a new one and that a licensed used-car dealer is not permitted, to sell a new car. See OL1948, § 256.114 (Stat Ann 1947 Cum Supp § 9.1482), and Salway v. Secretary of State, 321 Mich 211. It may be assumed that, if this statement of the trial judge is to be considered a part of the record, it then follows that plaintiff was aware of the specific grounds upon which defendant’s motion for a directed verdict was based.
The more important question, however, is whether on appeal this ex parte certified statement of the trial judge should be considered a part of the record. We are concerned both with the question of practice and procedure, and the difficulty in this harsh case of permitting practice which would establish a bad precedent. Court Rule No 66 (1945) describes in detail the procedure necessary to settle a record. It provides for hearing on any controversy and an opportunity for objection. While no procedure is prescribed in the rule for supplementing a record, it is clear that it should not be an ex parte proceeding. Omissions in a record may not be supplied by ex parte affidavits. Cases in this Court must be disposed of on the record as made and not upon ex parte affidavits. Furthermore, we do not consider matters dehors the record. O’Connor v. O’Connor, 281 Mich 640.
The subsequent motion to supplement the record is denied. The record as made does not show that defendant adequately stated the grounds upon which he based his motion to dismiss.
The judgment non obstante veredicto is not supported by the settled record. It is vacated and the cause is remanded for the entry of a judgment in accordance with, tlie verdict of the jury. Costs to appellant.
Dethmers, Butzel, Carr, Sharpe, Boyles, and Reid, J J., concurred.
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Wiest, J.
This is a summary proceeding by a landlord to evict a tenant. Plaintiff owns 29 acres of farm land in the township of Dearborn, Wayne county, Michigan, and by written lease, dated February 26, 1940, rented the same to defendant “for the term of 12 months from and after the 15th day of March, 1940, on the terms and conditions * * * to be occupied for farming purposes only.” Defendant had five cows and some chickens and evidently had the urge to be a farmer. He entered upon the premises and in a way tried, to farm but soon discovered that farming did not pay and hired out as a factory worker. He only worked on the farm Sundays. The agreed rental was $300 a year. In January, 1943, plaintiff served on defendant a notice that the rent for the next year would be $400 and, if he did not intend to remain under such terms, the notice would serve as one to quit the premises. Defendant did not quit the premises, claiming that under 8 F. R. 7322, 7323, Rent Regulation for Hous ing, § 2 (a), (CCH, War Law Service, Rent Regulation, par. 49,125) and 8 F. R. 7322, 7326, Rent Regulation for Housing, § 6 (a) (CCH, War Law Service, par. 49,129), the rental demanded was unlawful.
In March, 1943, plaintiff commenced proceedings before a justice of the peace to obtain restitution of the premises and on April 7, 1943, judgment of restitution was entered. Defendant appealed to the circuit court and there like judgment was entered and an appeal taken by defendant.
Defendant claims that when he commenced work in the factory and abandoned farming operations his occupancy came under the rent control provisions of the Office of Price Administration and this prevented his eviction.
The OPA rent regulations do not apply to “Farming tenants. Housing accommodations situated on a farm and occupied by a tenant who is engaged for a substantial portion of his time in farming operations thereon.” 8 F. R. 7322, 7323, Rent Regulation for Housing, § 1 (b) (1) (CCH, War Law Service, par. 49,124), under scope of Standard Rent Regulation.
Defendant wanted the premises for farming purposes and it was so stipulated in his lease. His changed purpose, after entry and occupancy of the premises, to work in a factory and not to farm the premises did not at all change his status as a renter. He could not, by a change of intention, constitute his occupancy other than that for farming purposes. The exception from the rent control act applies with full force in this case.
He claimed the fact he was not engaged for a substantial portion of his time in farming operations on the premises changed his status to that of a mere renter of housing facilities. A tenant cannot bring himself within the statute of rent regulations solely on the ground of his own violation of the lease which, if complied with, would not be subject to such regulations.
The judgment of the circuit court is affirmed, with costs to plaintiff.
North, C. J., and Starr, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
This regulation reads as follows:
“See. 2 (a) General prohibition. Regardless of any contract, agreement, lease, or other obligation heretofore or hereafter entered into, no person shall demand or receive any rent for use or occupancy on and after the effective date of regulation of any housing accommodations within the Defense-Rental Area higher than the maximum rents provided by this regulation; and no person shall offer, solicit, attempt, or agree to do any of the foregoing. Lower rents than those provided by this regulation may be demanded or received.” — Reporter.
This regulation reads as follows:
“Sec. 6 (a) Restrictions on removal of tenant. So long as the tenant continues to pay the rent to which the landlord is entitled, no tenant shall be removed from any housing accommodations, by action to evict or to recover possession, by exclusion from possession, notwithstanding that such tenant has no lease or that his lease or other rental agreement has expired or otherwise terminated, and regardless of any contract, lease, agreement or obligation heretofore or hereafter entered into which provides for entry of judgment upon the tenant’s confession for breach of the covenants thereof or which otherwise provides contrary hereto.” — Reporter. | [
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Bushnell, J.
Plaintiffs Robert Klug ánd Rose Mary Klug, his wife, sought to recover damages against defendants Berkley Homes, Inc., and Harry Green, its president. Plaintiffs claim that the materials used in the house they purchased from the defendant corporation were defective, and that the construction of the house was not performed in a good and workmanlike manner.
Plaintiffs alleged in part:
“That at the time of the said purchase of said premises, the said defendants, and each of them, warranted to the plaintiffs that the said home was in a good condition and bnilt in accordance with the building conditions of the city of Oak Park and the requirements of the Veterans Administration.
“That upon completing said purchase from the said defendants, the said plaintiffs for the first time then discovered that the said home had numerous defects, of which the said defendants failed to advise the plaintiffs, but on the contrary, informed the said plaintiffs that the home was free from any structural or material defects. * * *
“That upon discovering that the aforesaid premises were constructed with defective materials and that the labor performed in erecting said home was not good and proper and in accordance with services ordinarily rendered in the construction of like homes, the said plaintiffs immediately notified the said defendants of all of the structural defects evident to them at that time and requested that the said defendants make the necessary repairs and defective materials replaced, all of which the said defendants promised to do, but to date of the filing of this declaration, have refused and neglected to make.”
Defendants filed an answer and a motion for a summary judgment. The motion was supported by an affidavit by Green to the effect that he had not for himself or on behalf of the corporation made any promise or warranty to plaintiffs that the home erected upon the property was constructed in a workmanlike manner and free from defective materials. He stated that, if sworn as a witness, he could testify as to these facts. A copy of the accepted agreement to purchase was attached to the motion. It was the theory of the defendants that, in the absence of written warranties and promises, plaintiffs could not prove their case because of the parol evidence rule. When defendants’ motion for a summary judgment was heard, plaintiffs did not appear and the court entered a judgment against them.
Plaintiffs moved to set aside this judgment. Their motion was supported by the affidavit of their attorney, who claimed that a settlement had been reached and that it was understood between the parties that the motion for the summary judgment would be held in abeyance pending the drafting of the settlement agreement. Plaintiffs also filed an affidavit of a contractor who described the various structural defects. Plaintiffs’ motion to set aside the summary judgment was denied.
A court may entet a summary judgment for the defendant only where there are no issues of fact which, if resolved in favor of plaintiff, would entitle him to a judgment. See Court Rule No 30 (1945); Whittenberg v. Carnegie, 328 Mich 125.
The existence of an issue of fact is determined by a consideration of the pleadings and the affidavits. Baxter v. Szucs, 248 Mich 672, 675; Bed v. Fallon, 307 Mich 466, 472; and Robertson v. New York Life Insurance Co., 312 Mich 92, 98.
The affidavit in support of defendants’ motion for a summary judgment does not deny or even mention the pleaded promise to repair the house and replace the defective materials. It is, therefore, insufficient.
It does not state that the written contract embodies the entire agreement between the parties and, therefore, defendants’ reliance upon the parol evidence rule is unwarranted. Clare County Savings Bank v. Featherly, 173 Mich 292, 301.
There are factual issues raised in the declaration which, if supported by competent proof, could result in a judgment against defendants. The court, therefore, erred in granting defendants’ motion for a summary judgment.
The judgment is vacated and the cause is remanded for further proceedings not inconsistent with this opinion. Costs to appellants.
Dethmers, Butzel, Carr, Sharpe, Boyles, and Reid, JJ., concurred.
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Boyles, J.
Plaintiff brought suit against the defendant indemnity company to recover for money taken from plaintiff by robbers, for the loss of which plaintiff claims to have been indemnified by the defendant in a robbery policy. The case was submitted to the circuit court for Wayne county on a stipulation of facts, the circuit judge filed a written opinion finding for plaintiff, and entered judgment against defendant for $765. The only ground urged by defendant for reversal is that the policy of insurance on which suit was based does not cover the loss sustained by. plaintiff, under the agreed facts-. •
Prior to November 30, 1941, plaintiff leased from the Kahn Bealty Company the premises described in said lease as “store known as 8231 Woodward avenue, ’ ’ Detroit, Michigan. On September 15,1941, there was issued to plaintiff by defendant a mercantile robbery and safe burglary policy for a period of one year, correctly describing the location of the premises. That part of the policy under consideration insuring plaintiff against loss by robbery inside the premises is as follows:
“Bobbery Inside Premises. II To indemnify the insured (if insurance is provided under sections (c) or (d) or item 7 of the declarations but not otherwise) for all loss or damage (hereinafter called loss) to such property while in the premises, and for damage to the premises if the insured is the owner thereof or is liable for such damage, provided such loss is occasioned by:” (robbery)
Item 7, section (c), referred to above, reads:
“Within the designated premises while at least one custodian is on duty therein.”
No issue is raised as to whether there was a custodian on duty at the time of the loss. Defendant bases its claim that the loss is not. covered by the policy on paragraph A in the policy under the heading “This policy is subject to the following agreements, limitations and conditions,” which described “premises” as follows:
“Premises means the interior of that portion of the building designated in item 3 of the declarations which is occupied solely by the insured in conducting his business.”
In short, defendant claims that it is not liable because the loss did not occur inside the building.
The Saks Cafe, operated by the plaintiff and described in said policy, is a night club so-called. On November 30, 1941, at about 2 a.m., plaintiff had closed his place of business, had counted the day’s receipts, segregated the money for business purposes into four different envelopes, and after the money had been thus segregated it was turned over to plaintiff’s wife who put it in her purse. The total amount of the cafe money was $1,185.50. Besides this, she had other money belonging to herself in the purse. At the time of closing the place of business and while the money was being counted, the plaintiff, his wife, the headwaiter, and the night watchman were in the cafe. Having completed the counting of the money and turning it over to Mrs. Saks, the parties went out of the cafe to get into their cars which were parked in the driveway on the north side of the building. When Mr. Saks and the other parties left the cafe to go to their cars, they left by .the side door. Mrs. Saks and the headwaiter left ahead of Mr. Saks and were in their cars waiting for him. Mr. Saks got into the car after the door of the cafe, by 'which he had left, had’ closed and automatically locked. Then three masked men came up, exhibited guns and forced all parties to get out of their cars and re-enter the cafe. They returned to the cafe by the same side door from which they had left.
After re-entering the cafe, one of the robbers took the plaintiff into the cafe kitchen and cross-examined him as to where the money was. Although plaintiff’s wife had put all the money from the cafe busi- ■ ness into her purse and had left her purse with the money in it in the car, plaintiff thought the robbers had taken her purse at the time they made them get out of the car. While the one robber was questioning the. plaintiff in the cafe kitchen, another one had forced the night watchman tó lie on the floor in the main part of the cafe and had the headwaiter standing with his face to the wall. The remaining robber was questioning plaintiff’s wife.
Plaintiff did not know that the money was still in the car and kept insisting he did not have any more money. The robber watching plaintiff struck him on the side of the head with his revolver. Plaintiff’s wife heard the blow and told the one with her that the money was in her purse in the car. Thereupon the robber who was questioning plaintiff’s wife went out to the car, got the purse and the money and brought it back into the cafe. He took the money out of the purse and kept it. He left the purse on a table, called the other robbers and they all left the cafe.
While the robbers were questioning Mr. Saks in the kitchen, they made continuous threats of bodily harm to all of the parties if they did not divulge the whereabouts of the money. They were very loud in their threats and inflicted a gash in the head of the plaintiff, After the robbers had removed’ the money from the purse they threatened all parties with bodily harm if they made any outcry as the robbers ran from the building. The amount taken by the robbers was in excess of $1,000.- The policy of insurance limited recovery to a loss of $700, so that the maximum amount that could be recovered by plaintiff would be $700 plus interest.
The stipulation of facts which we find in the record recites that a copy of the policy is thereto annexed. There is no copy of the policy in the record. However, the circuit judge in his opinion found, and the statement is not controverted, that “robbery” is defined in the policy as “the felonious and forcible taking of insured property.” Defendant makes no claim that the offense shown by the facts does not constitute the crime of robbery. Under our statutes, an essential element of robbery armed is assaulting another and stealing or taking away money or other property from his person or in Ms presence. Act No. 328, § 529, Pub. Acts 1931 (Michigan penal code) (Comp. Laws Supp. 1940, § 17115-529, Stat. Ann. § 28.797).
This is a case of first impression in this State. Counsel for defendant relies on Axt v. London & Lancashire Indemnity Company of America (C. C. A.), 131 Fed. (2d) 370. Plaintiff relies on Cartier Drug Co. v. Maryland Casualty Company of Baltimore, Maryland, 181 Wash. 146 (42 Pac. [2d] 37). The facts in the latter case are quite similar to those in the instant case and the reasoning of the court is convincing. The court said:
“The sole question in the case, as we see it, is: At what place was Cartier robbed of the $473.57 ? In the administration of criminal law, two distinct elements are held to be necessary to the crime of robbery: (1) Putting the victim in fear of violence to his person or property; and (2) the taking of money, property, or thing of value from his person or in his presence.
“Whatever the crime may he, under any state of facts where one of such elements exists and the other does not, it is not robbery. The first element being present, the crime of robbery is consummated only when the victim is deprived of dominion over his money or property.”
The money taken in the instant case by the robbers was the property of Mr. Saks, not his wife’s property. The offense of robbery armed was perpetrated against Mr. Saks, in his presence, inside the building, when the robber removed his money from his wife’s purse and took it away. The crime was not consummated until the whereabouts of the money had been disclosed, it had been taken into the building, appropriated by the robbers and taken away. If Mr. Saks had been able to prevent the taking away of the money, after it had been returned to the building, the crime of robbery armed would not have been consummated. It would have been an attempt, only. The crime of robbery armed was committed inside the building, within the meaning of the policy.
We conclude that plaintiff’s loss is within the coverage of the policy. Judgment affirmed.
North, C. J., and Starr, Butzel, Bushnell, and Reid, JJ., concurred with Boyles, J. | [
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Butzel, J.
Defendant, while visiting her former home in Des Moines, Iowa, met plaintiff at a social function. They and their families were old friends. A conversation arose in which defendant stated that she contemplated an automobile trip with her two daughters to New York to visit the World’s Fair. She invited plaintiff to accompany them and told her she could help with the driving. The latter stated that her mother was not well, and, also, that she did not feel that she could afford to go. Defendant told her that there would be no expense and, as they were going anyhow, plaintiff might as well have the pleasure of riding with them, since there was an extra seat in the car. Plaintiff testified that she replied that, while she would be glad to help in the driving, she would not go unless she could pay her way; she would not take a vacation trip unless she could afford it. Very shortly thereafter plaintiff telephoned to defendant that she had decided to accompany her on the trip and said, “You remember I won’t go unless I pay my share of the expenses.”
The parties traveled in defendant’s automobile to New York. Plaintiff drove part of the time. She paid for her own individual hotel accommodations and other expenses and did pay toward the cost of gasoline and oil. She made some payments to defendant, others to her daughters, for her share of such cost. Some kind of record was made in a small book of the gasoline and oil purchased. The mileage and places where the parties rested at night were entered in the book. Evidently a very strict account was not kept of all of the expenses so as to enable plaintiff to share in them. Defendant had a credit card from an oil company and this was used from time to time at the company’s stations. Plaintiff did try to keep up her end of the expenses but she did not, nor was she asked to, pay her share of all of them. Her recollection of such payments is not clear. She admits that she paid nothing toward the cost of transportation of the car by boat from Buffalo to Detroit when the entire party made the return trip by boat.
On the return trip west, as they were approaching Saline, Michigan, defendant, who was driving, drove on to the south lane of the road in order to pass a truck. After passing the truck, the car did not immediately return to the north lane but continued on the concrete pavement of the south lane for a short distance and then left the road, traveled on to the gravel to the south of the road for 60 to 75 feet, and then it went over an embankment. It was stopped in the ditch by a telegraph pole which it struck with tremendous force. Plaintiff evidently was asleep when the accident occurred. Defendant also had no memory of what occurred. The only witness of the accident, who was able to tell what occurred, was the driver of the truck which was passed by the car. He stated that it looked as if an attempt had been made to drive the car back on to the road after it left the concrete. The car was driven at a speed in excess of 45 miles per hour. Plaintiff, who was seated in the back seat, suffered injuries of the severest nature. Some of them are permanent.
There does not seem to be much dispute about the facts in regard to the accident, but we find as a matter of law that they do not show gross negligence nor. wilful and wanton misconduct. Notwithstanding some doubts expressed by the trial judge, we shall assume that there was ordinary negligence and that the accident was' not due to a faulty wheel. The trial judge directed a verdict for defendant on the ground that the plaintiff was a guest passenger under the statute, and if not, plaintiff and defendant were joint adventurers. We believe that plaintiff was a guest both in the popular as well as the technical legal meaning of that term. She was invited to accompany defendant and her daughters as a token of friendship. No fare was exacted of her as a condition precedent to her going. She insisted for her own satisfaction on paying a share of the cost of the oil and gasoline. She may have paid a share of some but not of all other expenses incurred in the operation, transportation and general maintenance of the car. A fair reading of the record convinces us that there was no contract of hire; defendant simply acceded to the request of a guest that she be permitted to pay a share of the expenses on a pleasure trip. The question is not a new one. In Bushouse v. Brom, 297 Mich. 616, 627, 628, we quoted with approval the following excerpt from McCann v. Hoffman, 9 Cal. (2d) 279, 285 (70 Pac. [2d] 909):
“ ‘The great weight of authority is to the effect that the sharing of the cost of gasoline and oil consumed on a trip, when that trip is taken for pleasure or social purposes, is nothing more than the exchange of social amenities and does not transform into a passenger one who without such exchange would be a guest, and consequently is not payment for the transportation. * * *
“ ‘Therefore, where a special tangible benefit to the defendant was the motivating influence for furnishing the transportation, compensation may be said to have been given. : But it is not given where the main purpose of the trip is the joint pleasure of the participants. The payment of a portion of the expense, as for gasoline and oil consumed on the trip, is merely incidental and does not constitute the moving influence for the transportation. The provocation for the offer of transportation remains the joint social one of reciprocal hospitality or pleasure. ’ ’ ’
In Re Harper’s Estate, 294 Mich. 453, we stated that a passenger’s assistance in driving a car did not change the relationship from that of guest to one of hire.
The trial judge stated that even if there was not a guest relationship, at least there was one of joint venture. Plaintiff claimed that such defense was not pleaded. It would have been better practice to have pleaded it, nevertheless the question was directly raised. The existence of such relationship would be a defense to plaintiff’s claim in her declaration that she was a passenger for hire. Nevertheless, we do not believe it necessary to consider the question whether the parties were co-adventurers.
Judgment affirmed, with costs to defendant.
North, O. J., and Starr, Wiest, Bushneld, Sharpe, Boyles, and Reid, JJ., concurred.
1 Comp. Laws 1929, §4648 (Stat, Ann. § 9.1446). — Reporter. | [
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North, C. J.
This,is an appeal in the nature of certiorari by an employee from an award by the department of labor and industry denying his petition for further compensation. It is agreed that plaintiff on February 18, 1930, while in defendant’s employ suffered a compensable accident. He was paid compensation on an approved agreement dated March 14, .1930. On a petition to stop filed by defendant, an award was made in February, 1931, of compensation at the rate of $1.20 a week for partial disability for the unexpired portion of the 500-week maximum compensation period. On plaintiff’s petition the department entered an order for a lump-sum settlement which provided that defendant should “make an advance payment of $150, from the compensation last falling due in the case * * * (and) pay the remainder of the compensation due at the rate of $75 a month until paid in full.” Payments in ac cordance therewith were made in full. In other words plaintiff was paid compensation for the full period of 500 weeks. Approximately three years after the expiration of the 500-week period, and on May 28, 1942, plaintiff filed a petition for further compensation. At the hearing before a deputy commissioner plaintiff was awarded further compensation; but upon review by the department of labor and industry his petition for further compensation was denied.
Except for a phase of this record which will be hereinafter noted, it is agreed by counsel for each of the parties that the order entered properly disposed of the case, under the authority of Kiviniemi v. Quincy Mining Co., 286 Mich. 680, and Willard v. Globe Housewrecking Co., 294 Mich. 42, for the reason that, as was held in the Kiviniemi Case: “The power to review payments ceased when plaintiff has received the maximum number of weekly payments mentioned in the statute whether it be . for partial disability (2 Comp. Laws 1929, § 8426 [Stat. Ann. § 17.160]) or total disability (2 Comp. Laws 1929, § 8425 [Stat. Ann. § 17.159]).”
But plaintiff’s counsel contend that in the instant case the running of the 500-week period was tolled in consequence of the fact that on November 16, 1938, before the statutory period of 500 weeks had expired, plaintiff was confined in Eloise hospital as an adjudicated insane person and was not discharged until May 22,1942; and that the petition in the instant case was properly filed promptly after his release. The basis of this contention is that we should carry into the workmen’s compensation act the provision of 3 Comp. Laws 1929, § 13978 (Stat. Ann. § 27.607), which reads: “If any person entitled to bring any of the actions mentioned in this chapter shall, at the time when the cause of action accrues, be within the age of twenty-one years, insane, or imprisoned in the State prison, such person may bring the action within the times in this chapter respectively limited, after the disability shall be removed. ’ ’ In support of this contention plaintiff asserts that in effect the pertinent portions of the statute of limitations above cited were carried into the workmen’s compensation act by our decisions in Hajduk v. Revere Copper & Brass, Inc., 268 Mich. 220, and Sweet v. Eddy Paper Co., 303 Mich. 492. But it should be noted that neither of these two cases nor any other authority cited by plaintiff is in point with the facts and circumstances of the instant case, for the reason that in none of them is it dis- ‘ closed that the petition was filed after the expiration of the 500-week period during all of which the employee had received compensation. And in the Sajduk Case we said: •
* ‘ The statute of limitations referred to in section 8431 of the compensation act means the limitation within the act and not the general statute of limitations. * * * While the general statute of limitations has no application in the instant case because the department of labor and industry is not a court and a proceeding before it' is not an action, yet we can conceive of no reason why there should not be a limit of time within which a proceeding for compensation should be commenced. That limit of time must be a reasonable one, which Toy analogy to the statute of limitations will be deemed to be six years.”
It may be observed that if in accord with plaintiff’s contention the above-quoted section 13978 were to be read into the workmen’s compensation act, the 500-week limitation would not run against a minor dependent, who as such sought compensation, until . the minor arrived at 21 years of age. Obviously such a result would be wholly inconsistent with the provisions of the workmen’s compensation act. This act contains its own limitations, and therein its operation is restricted to a maximum of a 500-week period. In Bankers Trust Co. of Detroit v. Tatti, 258 Mich. 357, we said:
“ ‘The statute (workmen’s compensation act) contains no exception in the case of minors or persons under any physical or mental incapacity, in case of dependents. * * * The general statute
of limitations has no application to compensation proceedings, as such, before the commission.’ ”
Neither an express nor implied provision can be found in the workmen’s compensation act in consequence of which the running of the statutory period of 500 weeks would be tolled by the mental incompetency of an employee. Instead the legislature must have been mindful that if an employee who had suffered a compensable accident became insane during the period within which he might apply for compensation, such a proceeding could be prosecuted by a guardian of the incompetent person.
And it may also be noted that the scope of the statutory provision quoted (3 Comp. Laws 1929, § 13978), and upon which appellant relies, is limited by its own terms. It provides: “If any person entitled to bring any of the actions mentioned in this chapter shall, at the time when the cause of action accrues, be within the age of twenty-one years, insane, or imprisoned,” et cetera, the running of the statute of limitations shall be tolled as to such action. But the Michigan workmen’s compensation act is not included in or “mentioned in this chapter.” Instead proceedings under the workmen’s compensation act are under statutory provisions entirely separate and apart from the chapter in which the above-quoted statutory provision appears. It follows that plaintiff’s contention in this particular cannot be sustained.
The department correctly held that, notwithstanding plaintiff’s commitment as an insane person, under the circumstances of this case his petition for compensation must be dismissed because it was filed subsequent to the 500-week period during which he had been paid compensation. The award of the department of labor and industry denying plaintiff further compensation is affirmed. Costs to appellee.
Starr, Wiest, Butzel, Bushnell, ■ Sharpe, Boyles, and Reid, JJ., concurred. | [
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Butzel, J.
Ernest C. Smith, an attorney of Lansing, Michigan, filed a claim in the probate court for the sum of $5,000 for attorney fees in the matter of James H. Ruel, deceased. It was allowed by the judge of probate and the executor of the estate appealed to the circuit court, where a verdict was rendered for claimant in the sum of $5,000, and judgment for that amount duly entered. The executor appeals. One thousand dollars on account of the fee was paid by the executor prior to the dispute arising over the correct amount of fees to which claimant is entitled. The judge directed and all parties agreed that $1,000 should he credited as a payment on any judgment rendered.
The main question in the case is whether $5,000 is fair and reasonable compensation for claimant’s services in representing the estate in a will contest. We shall discuss the question raised in connection with the main question.
Testator died on September 3, 1939, leaving a last will bearing date February 22,1935. George W. Amsden was named as executor. There were specific bequests totaling $11,500 and the residue of the estate was left to Mr. Amsden. At the hearing on the admission of the will, Marjorie Owens, a niece who was left $1,000, gave notice of contest through her attorney, Mr. Gallagher of Detroit. She claimed that testator was mentally incompetent and that undue influence was exercised on him. The executor and his attorneys, Messrs. Rathbun and Arvidson, concluded that it would be better to have the executor represented by other counsel because both Messrs. Rathbun and Arvidson were witnesses to the will, and, in addition, Mr. Rathbun might become a necessary witness as to other transactions. They concluded to obtain the services of Ernest O. Smith, claimant. He was known to Rathbun and Arvidson through previous contact with him in some other legal matters. ■ An order was obtained from the probate court of Ingham county appointing Mr. Smith as attorney for the estate in the will contest and he proceeded to represent the estate both in the probate court and circuit court to which the case was certified. The court proceedings took comparatively little time. In the probate court proceedings the contestant asked for the production of an earlier will and an order was so entered. The earlier will contained a legacy to her of $5,000. . The later will which she contested only left her $1,000. The executor, through claimant, made an unsuccessful effort in the circuit court to secure a reversal of the order of the probate court directing the production of this earlier will. The main case was certified to-the circuit court where it was subsequently settled.
It required a large amount of time to prepare for the trial of the case. In his bill of particulars, claimant states that he spent 63 hours in court proceedings, 65 hours in interviewing 36 witnesses and studying the legal questions involved in prep aration for trial, 25 hours in conference with the executor, 22% hours with the general attorneys for the estate, 30% hours in sending out 61 letters, 10 hours in examining the replies, 22% hours at the telephone for 270 messages, 10 hours in Detroit in closing the sale of an apartment building, 12 hours in studying and analyzing a list of 105 parcels of property that either belonged to the estate or had been transferred by testator in past years, and also 40 additional hours in the study of the case over 18 months’ period, such 40 hours not being included in the foregoing statement. Claimant estimates he spent 314% hours on the case. He claimed $5,000 for his services. When these figures are broken down so as to ascertain the charge per hour and minute, some of the figures, particularly for reading and writing letters and for telephone messages, seem exceedingly high. However, it was stated that the amount of time spent was an estimate. It was shown at the trial that claimant had written and sent out 80 letters instead of 61,. and had received 50 letters instead of 40 as first claimed. The credibility of the claimant who testified to these figures was a question for the jury.
The value of the estate was about $50,000. More. than' that amount in gifts had been made to Mr. Amsden, the executor, by testator in his lifetime. If the will was not admitted to probate because of the grounds named by contestant, the right and title of the executor to such gifts would be jeopardized. It became exceedingly important, therefore, that the will be upheld either as a result of the litigation or by settlement. The will contest was finally settled by contestant accepting the sum of $5,000, the amount of the legacy provided in the prior will. Testator left only one heir, an adopted daughter, who made no contest. Had contestant won out and the first will been admitted to probate, she would have received only the amount that was finally paid her in settlement. Had.she succceeded in preventing the probating of both wills, neither contestant nor Mr. Amsden would have received anything at all as the adopted daughter would have received the entire estate. It became exceedingly important to Mr. Amsden to have the later will allowed and thus avoid further litigation with a possible result of. his losing the large gifts he had received from testator in his lifetime.
No fault whatsoever is found with claimant’s services. The question of the correctness of the amount of claimant’s charges was left to the jury. The size of the estate was shown, the questions involved in the litigation over the allowance of the will were presented, and testimony was given both as to the precise services rendered by claimant and the results obtained through his services. The jury were instructed that they might take into consideration the professional standing of claimant in the community, his experience, his age and his recognized ability as a member of the bar. They were told that they might consider the customary charges made by other members of the bar of like ability and like standing for performance of services of like character. In this connection claimant produced two witnesses, both leading members of the bar of Ingham county. One stated that the services were worth $5,000, while another one stated that a fee of $7,500 to $10,000 would be very reasonable. The appellant contends that the judge should have charged the jury that claimant was employed for the purpose of collaborating with the general attorneys for the estate. This statement, while true in a degree, would not have been entirely accurate as claimant was employed as attorney of record and in fact was in charge of the defense of the .will contest. He prepared for it and conducted the settlement negotiations. The jury heard all of the testimony. It would make very little difference as to whether claimant was to “collaborate” with other attorneys. The sole questions in the case were, what did claimant do? and, what were his services reasonably worth?
The executor further contends that the judge erred in not charging the jury that they were to follow Canon 12 of the Canons of Professional Ethics of the American Bar Association governing the various factors that enter into what constitutes reasonable charges of an attorney for services rendered. "We used this canon as a yardstick in determining the charges in Reichert v. Metropolitan Trust Co., 266 Mich. 322, and Becht v. Miller, 279 Mich. 629. However, the judge in his charge did bring out the main elements contained in the canon and left out some which, at most, might have benefited claimant. On the whole, we believe the charge was fair and adequate. There was no testimony offered by appellant to offset that given by the two members of the Ingham county bar on behalf of claimant. We repeat what we have so often said in other cases that, although some of us, had we been members of the jury, might have brought in a verdict for a lesser amount, and even though the charges may seem high, the questions were fairly presented to the jury and the amount as found by them as due claimant was upheld by both the probate judge and the trial judge. We do not find the verdict so excessive as to call for .reversal or a remittitur of part of it in lieu of a reversal.
Judgment for claimant is affirmed, with costs of both circuit court and this Court to claimant.
North, C. J., and Starr, Wiest, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Sharpe, J.
This is a suit in chancery to enjoin the collection of the balance due on a promissory note and for an accounting for moneys paid by plaintiffs on said note.
During the month of May, 1939, plaintiffs entered into an agreement with the Asbestos Siding’ & Home Improvement Company to have a new roof pnt on their home and to have cement piers pnt under the house. Subsequently and on May 24, 1939', plaintiffs executed a promissory note to the asbestos company in the sum of $551.90 in payment of materials furnished and work done. On May 26, 1939, defendant C. I. T. Corporation purchased the note from the asbestos company.
In June, 1939, a representative of the C. I. T. Corporation inspected the premises and reported that the roof had a bad leak. On July 13, 1939, the asbestos company informed defendant C. I. T. Corporation that the complaint had been taken care of to the satisfaction of plaintiffs. Beginning July 8, 1939, plaintiffs made Í4 payments to the C. I. T. Corporation in accordance with the terms of the promissory note and then stopped making payments and began the instant suit.- Defendant C. I. T. Corporation answered plaintiffs’ bill of complaint and filed a cross bill in which it alleges that it is a holder in due course of the promissory note executed by plaintiffs and asked that the court make an order that plaintiffs are indebted to defendant C. I. T. Corporation in the sum of $337.24, the unpaid portion of the promissory note, and interest.
The trial court entered a decree dismissing plaintiffs ’ bill of complaint and granting the relief prayed for in the cross bill. Plaintiffs appeal.
■ The principal question in this case may be stated as follows: Is the defendant C. I. T. Corporation a holder in due course of a negotiable promissory note ?
In our opinion the note in question is a negotiable instrument. It complies with the requirements of 2 Comp. Laws 1929, §9250 (Stat. Ann. §19.43). The trial court found that defendant corporation is a holder in dne course as defined by 2 Comp. Laws 1929, § 9301 (Stat. Ann. § 19.94). In coming to this conclusion of law, it was necessary to find: that the note was complete and regular upon its face; that the C. I. T. Corporation became the holder of it before it was overdue, and without notice that it had been previously dishonored; that defendant corporation took the note in good faith and for value; and that at the time it was negotiated to the C. I. T. Corporation, it had no notice of any infirmity in the instrument or defect in the title of the asbestos company. The record sustains such a finding of facts.
The decree of the trial court is affirmed, with costs to defendant C. I. T. Corporation.
North, C. J., and Starr, Wiest, Bhtzel, Bushnell, Boyles, and Reid, JJ., concurred. | [
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Boyles, J.
This is a case in the equity side of the court, to set aside a levy and execution sale of a certain parcel of real estate in the city of Ecorse, Wayne county, and to enforce plaintiffs’ claim of a homestead right therein. The case was heard by the circuit judge on oral statements of counsel without testimony, and the court dismissed the bill of complaint. Plaintiffs appeal and the case is submitted here on stipulated facts, under Court Buie No. 66, §10 (1933).'
On March 22, 1939, plaintiff Andrew Walker signed an offer and agreement to purchase the land in question which was accepted by the then owner, as follows:
“Preliminary Agreement
“Detroit, Mich., March 22, 1939, I hereby offer and agree to purchase through Andrew J. Manion, agent for the owner, the following described property, situated in the village of Ecorse, in the county of Wayne and State of Michigan, lot 203, Central Park subdivision, and to pay therefor the sum of $125, upon the following terms and conditions: $10 upon the signing of this agreement, receipt of which is hereby acknowledged to apply on the purchase price, the same to be returned should proposition be rejected by owner, or prior sale, of said property; or should the title be found unmarketable; the bal anee to be paid as follows: $5 or more each month upon execution of good and sufficient (land contract), the balance to be paid.................... Purchaser to pay all back taxes -................
“Said payments (to include) (not to include) ......% interest. Deal to be closed within...... days from date, ....... Rents, taxes, other bills and insurance to be adjusted to date of transfer.
“Purchaser — Andrew Walker
“Address — 5336 Ripolle St.
“I hereby accept .the above offer and agree to terms of same, and will furnish a quitclaim deed for lot No. 203 when full amount is paid.
“Owner — Hugh Connolly.”
The present controversy is occasioned by Andrew Walker’s failure to pay the back taxes which he, as purchaser, had agreed to pay, according to the above preliminary agreement. At that time there were unpaid State and county taxes against the said lot for the years 1933, 1934 and 1935 iii the amount of $64.11. There were also township and village taxes unpaid for the years 1931, 1932, 1936, 1937, 1938 and 1939 amounting to $65.15. Walker paid Connolly an additional $30- on the purchase price, but did not pay any back taxes. Walker and his wife entered into possession and erected a cement block structure which they used and were still using as their home at the time Connolly filed the suit in chancery referred to later.
On November 3, 1939, as a result of the nonpayment of the taxes for the years 1933, 1934 and 1935, the property passed to the State of Michigan and was deeded to the State of Michigan by the auditor general on November 29, 1939: At a scavenger tax sale in May, 1940, Andrew Walker bought the property from the State of Michigan, paying therefor the sum of $64.11 tax arrearage, obtained a deed to the said lot from the State of Michigan, and re fused to pay Connolly any more money, disavowing the agreement with Connolly,' claiming that inasmuch as he had obtained a deed from the State of Michigan, Connolly had nothing more to do with the property; that he, Walker, was the owner with full title.
On May 28, 1941, Connolly filed a suit in the circuit court for Wayne county in chancery, referred to in the stipulated facts as chancery No. 313,216, and obtained a default decree against Andrew Walker. Mrs. Walker was not made a party. The purport of this case is not explained in the stipulation of facts, but it refers us to the court’s opinion in the instant ease for further facts and we quote from the opinion as follows:
“July 3, 1940, Connolly paid the other unpaid taxes amounting to $65.15 to save the property and on May 28, 1941, filed a bill of complaint (No. 313,216 in chancery) against Walker, to establish a lien against the premises for the unpaid portion of the purchase price and for that part of the taxes paid. All of the proceedings in this case were regular and on December 16,1941, a decree was entered establishing Connolly’s-right to a vendor’s lien for the unpaid portion of the purchase price and for the taxes which Walker failed to pay, amounting with interest to $172.65 and costs. The decree provided that Walker pay the amount'within 15 days, in which case Connolly should quitclaim to bim, otherwise that the property be sold to satisfy the claim under the same procedure as in chancery foreclosure of mortgages. A copy of this decree was served on Walker. * * *
“All of the proceedings to sell the premises under the decree of December 16, 1941, were regular and the sale of which Walker had notice was held on March 13, 1942. Connolly bid in the property, obtained a deed to it in regular course, and an order confirming the sale was made and entered March 18, 1942, a copy of which was also personally served on Walker.”
Connolly later conveyed his title and interest in the premises to defendant Woods. Woods started jiroceedings before a justice of the peace, acting as circuit court commissioner, to oust Walker from possession of the premises, obtained judgment for restitution, and on October 14, 1942, writ of restitution was issued and placed in the hands of one Hockett, a township constable (defendant herein) for service. Thereupon plaintiff Andrew Walker started the present suit in chancery to set aside the decree entered against him in chancery case No. 313,216, and to enjoin defendant Woods and the constable from taking any action on the writ of restitution. Later, plaintiff Marie Walker was allowed to join as party plaintiff on the claim that she had a home^ stead right in the land in question.
While plaintiffs seek the aid of a court of equity, we are unable to find from the record any substantial indication that plaintiffs have at any time offered to do equity during the entire course of this rather complicated situation. Assuming that plaintiffs rely on the original preliminary agreement as ground for equitable relief, in it Andrew Walker promised to pay the back taxes but later refused, as well as failed; to clo so. As a result of his refusal or failure to pay the back taxes, the State became the absolute owner of the land. Walker purchased it from the State at scavenger sale, thereby attempting to cut off the former owner’s rights by taldng advantage of his own default in his agreement to pay the taxes. As between Walker and Connolly (the former owner), it is obvious that Walker cannot now obtain any advantage in a court of equity based on the deed Walker received from the State at the scavenger sale. In equity, any interest Walker acquired inures to the benefit of Connolly.
‘ ‘ The rule is that one who is obligated by contract with another to pay the taxes may not, through'his own default, obtain an advantage over the other.” Ford Heights Land Co. v. Schanert, 279 Mich. 693.
See, also, Jacobsen v. Nieboer, 299 Mich. 116; Ellison v. Hewitt, 305 Mich. 349.
Besides his failure to pay the back taxes, Walker also defaulted in paying Connolly the balance of the purchase price. Nor do we find any indication that Walker has at any time offered to do equity, by paying Connolly the balance of the purchase price. Because of Walker’s default in such payment, Connolly established his lien for the unpaid portion of the purchase price- as well as for the back taxes paid by him, in a court in chancery. The decree of sale of the property for this unpaid balance as well as for the back taxes which Connolly paid now stands against Walker’s right to any relief in the case at bar. He has now had two opportunities to do equity and failed in both cas.es.
Plaintiffs — particularly Marie Walker — seek relief on the ground that the land constitutes a homestead, basing this claim on McKee v. Wilcox, 11 Mich. 358 (83 Am. Dec. 743), which holds that “a homestead may be claimed in land of which a party is in possession under a contract to purchase. ’ ’ But the McKee Case is based on the reasoning that “the wife of a husband who refuses or neglects to perform his contract, should be permitted to do it for him to save her interest in the homestead; as she may redeem a mortgage to save her right of dower in an equity of redemption.” Marie Walker is as much without equity as her husband, in the instant case. In Fournier v. Chisholm, 45 Mich. 417, the wife sought the intervention of a court of equity to protect alleged homestead rights in premises occupied by her husband and herself as a homestead. The building on the premises was mortgaged for moneys advanced by a defendant to enable the homestead claimants to build the house claimed by them as a homestead. The court held (syllabus):
“A wife has no equity to interpose her homestead right against a chattel mortgage which she has not signed, where it is given for moneys advanced for the purpose of establishing the homestead.”
We adhere to the rule stated in 26 Am. Jur. § 58, p. 37, as follows:
“The decisions hold that except as against the right of the vendor, one in possession of land under a contract of purchase may assert the homestead right. ’ ’
If the rule were otherwise, a man could buy a home on contract and, no matter how little he had paid toward the purchase price, defy his vendor to collect any more, on the theory that the law made his home exempt against any process to collect.
This is not a case where the husband has attempted to alienate a homestead right without the signature or consent of his wife, and plaintiffs’ authorities on that question are not in point. Nor are we impressed with plaintiffs’ claim that defendant Woods now possesses any less rights than those which might be asserted by Connolly. By proper conveyance Woods succeeded to Connolly’s rights in the premises.
Decree affirmed, with costs.
North, C. J., and Starr, Wiest, Butzel, Bushnell, Sharpe, and Reid, JJ., concurred. | [
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Butzel, J.
We granted an appeal in the nature of certiorari from a conviction for contempt of court. Because of the very meager printed record, and in order to more fully understand the facts leading to the conviction for contempt, we have examined the entire record filed with the clerk of this Court. We include a brief resumé of some of the facts in that record in order to understand those leading up to the conviction, though we base our decision on the printed record before us.
On November 6, 1947, William Burton, plaintiff and appellant herein, commenced a replevin suit in the common pleas court for the city of Detroit, against Merle Price, defendant and appellee herein, to recover possession of a refrigerator, a radio, a gas range, household goods and furniture. In the affidavit for the issuance of the writ of replevin he evaluated the property .to be seized at $100 and filed a bond for $200. A writ was issued and the property seized and delivered to plaintiff. According to the records defendant claimed that he borrowed $100 from plaintiff agreeing to repay it together with $15 in 30 days; that he gave plaintiff as security a bill of sale which was duly recorded, but defendant evidently retained possession of the property until it was replevied. Defendant further claimed that he tendered to plaintiff the $100 plus interest but plaintiff refused to accept it and brought the replevin proceedings. Defendant claims the goods seized had a value of $900. There is no showing to the contrary. Plaintiff thus was able to secure goods of the alleged value of $900 by giving a bond of only $200 in the replevin proceedings.
Notwithstanding the fact that the common pleas court of Detroit is a court of record and has concurrent jurisdiction with the circuit court in replevin actions if the value set forth in the affidavit does not exceed $1,500 (CL 1948, § 728.1 [Stat Ann 1947 Cum Supp § 27.3651]), nevertheless both the statute and the court rules of the common pleas court of Detroit provide that the practice and procedure in replevin shall be governed, except as otherwise provided, by the provisions of existing laws regulating like actions before justices of the peace (CL 1948, § 728.14 [Stat Ann 1947 Cum Supp § 27.3664]). The statute provides for the issuance of a writ of replevin by a justice of the peace on the filing of an affidavit as to the value of the property to be seized and a bond in twice such amount by the plaintiff. The property seized by such writ is immediately turned over to the plaintiff. (CL 1948, § 674.1 [Stat Ann 1947 Cum Supp § 27.3345].) This differs from the practice in the circuit court where the law provides for an appraisal to determine the value of the property after it is seized by the officer and the giving of a bond in twice the amount of such appraised valuation before the goods are turned over to the plaintiff. (CL 1948, § 627.7 et seq. [Stat Ann § 27.1819 et seq.].)
The writ of replevin caused to be issued in the instant case was made returnable in 20 days by the plaintiff, notwithstanding the statute and the rules of the common pleas court specifically state that it shall be returnable in not more than 12 days (CL 1948, § 674.2 [Stat Ann 1947 Cum Supp § 27.3346], and Common Pleas Court Rule No 7, § 3). The judge of the common pleas court of Detroit on motion of defendant dismissed the action and ordered the return of the property to defendant. Plaintiff appealed the case to the Wayne circuit court. The appeal was heard on June 24, 1948, and the court entered an order dismissing the appeal and ordering the goods returned to defendant. Plaintiff ignored this order and on September 21, 1948, on application of defendant, the circuit court judge issued an order to show cause why the plaintiff should not be adjudged guilty of contempt because of his failure to obey the order of the court. After service of the order and adjournments because of plaintiff’s failure to appear, the court on October 11, 1948, adjudged the plaintiff guilty of contempt of court. The court informed him that he must return the goods or be committed to jail.
On October 19, 1948, the plaintiff filed a claim of appeal to the Supreme Court. He also filed a motion for approval of a bond to stay proceedings in the circuit court. It was dismissed on October 25, 1948, for failure of the plaintiff to appear and a writ of attachment was issued for the arrest of the plaintiff. On October 28,1948, we issued an order to stay proceedings conditioned on the plaintiff filing a bond for $500 and filing an application for leave to appeal within 15 days. On October 29, 1948, a motion was made by defendant for the entry of an order nunc pro tunc to correct the order of June 24, 1948, so as to provide for the dismissal of the cause instead of the dismissal of the appeal and again ordering of the return of the property. The order nunc pro tunc was entered November 5,1948, and this Court granted leave to appeal on January 4, 1949. Obviously, if the appeal from the court of common pleas of Detroit were dismissed in the circuit court, that latter court would have no jurisdiction to make or enforce any further orders as jurisdiction on the dismissal of the appeal would revert to the court of common pleas of Detroit. Owing to the mistake in the first instance, the order was corrected by the order nunc pro tunc so as to provide for the dismissal of the case and the order of the return of the property. Such order nunc pro tunc entered by the circuit court to correct the former order could only operate as to the future.
Plaintiff, as appellant, raises only 2 questions on appeal. Plaintiff does not attack the propriety of the order nunc pro tunc, but he does contend, properly, that “it is not within the purview of an order nunc pro tunc to operate eco post facto so as to give force to an order void for want of jurisdiction.” Eslow v. Albion Township, 32 Mich 193. Plaintiff claims that inasmuch as the contempt proceedings were not based upon the order nunc pro tunc he cannot be held in contempt for the disobedience of the order which was not corrected at the time of the adjudication for contempt.
Plaintiff .raises, however, the further question as to the right of the circuit court on the law side to enforce a civil remedy by process of contempt. This cannot be done in actions at law where a judgment has been rendered and on which execution, attachment, or garnishment may issue, or there is any other adequate remedy. See Haines v. Haines, 35 Mich 138; Atchison, T. & S. F. R. Co. v. Wayne Circuit Judge, 60 Mich 232. Subsection 5 (CL 1948, § 605.1 [Stat Ann § 27.511]) provides for punishment for contempt for disobedience of any lawful order, decree or process of the court. Neither this subsection nor the other sections of the above statute (being the statute defining and providing for contempt) make any distinction between cases on the law or equity side of the court. Contempt is the common method of enforcing orders in the law actions of mandamus, prohibition, and habeas corpus. It is true that in General Motors Acceptance Corp. v. Ellar, 243 Mich 603, we held that if the bond given on appeal was not sufficient a new one might have been ordered. However, in the instant case there was only a $200 bond given to seize goods of the alleged value of $900. The case having been dismissed on motion due to the void writ and again dismissed on the appeal, it was impossible to order a new bond in an adequate amount under the circumstances for no determination of the value of the goods was made by the court. Defendant has been deprived of his property and is entitled to its return. A judgment for damages for the value of the goods might be ineffective and it also would take time and expense to obtain a judgment in trespass; and it would mean considerable expense to defendant even if he were to sue out a capias ad respondendum, or capias ad satisfaciendum, if he were entitled to such writs. For a long period defendant would not have the use of his household goods. The trial judge gave plaintiff ample time to return the goods before he adjudged him guilty of contempt. Plaintiff could easily have purged himself of the contempt by returning the goods. Surely the court has the power to enforce its order under the circumstances of the case, in which goods are obtained by an illegal process, followed by a flagrant disobedience of the order of the court to return the goods. We are in accord with the rule set down in Muscogee Motor Co. v. Cook, 238 Ala 178 (190 So 71), in which the court ordered plaintiff to file a proper bond or return an automobile seized in an action of detinue. The court held (syllabus):
“Where plaintiff illegally obtained possession of an automobile involved in detinue action and failed to obey order to give required bond or return automobile to defendant, plaintiff was in contempt of court.”
In the present case the fatally defective process could not be corrected by requiring the giving of a larger bond. Plaintiff would have been in contempt of court had the order nunc pro time been entered prior to instituting the contempt proceedings. Under the circumstances the order adjudicating plaintiff guilty of contempt must be set aside, but without prejudice to any further action that defendant may see fit to take.
While ordinarily we give costs to the prevailing party in certiorari proceedings, due to the inadequacy of the record and briefs and the circumstances of the case, we order otherwise in accordance with Bule No 5, § 2, of the Michigan Court Buies (1945). Neither party will recover costs.
Sharpe, C. J., and Bushnell, Boyles, Beid, North, Dethmers, and Carr, JJ., concurred. | [
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Reid, J.
Plaintiff rescinded a contract for purchase of certain furniture and furnishings, sued to recover moneys paid on the purchase, and had summary judgment. Defendant, who was granted a partial new trial, appeals from a reduced judgment for plaintiff.
Defendant owned a rooming house with 24 rooms at 1060 Beech street, Detroit, including the real estate and the personal property therein situated. On July 16, 1946, defendant by a written title-retaining contract agreed to sell to plaintiff the furniture and furnishings in the rooming house for the sum of $2,200, of which $800 was paid down, and the balance was to be paid at the rate of $50 per month with interest at 6 per cent. By the terms of the contract, plaintiff was to have the use and possession of the furniture and furnishings, but in case of default in payment, defendant should have the right to terminate the contract and repossess himself of the furniture. On the same day as the sales contract, a 6-months lease of the real estate was executed. The lease was renewed for a 6-months period and after the expiration of that period, plaintiff continued in possession of the real estate and property on a monthly rental. On March 22, 1948, defendant obtained a writ of restitution and on March 24,1948, there was restored to defendant the possession of the real estate. Apparently the personal property, the subject of the conditional sales agreement, remained in the building.
Plaintiff asserted to defendant that, plaintiff not being in default, plaintiff was entitled to possession of the personal property, furniture and furnishings. Defendant declared that he deemed himself insecure. Plaintiff had paid defendant a total of $1,852.50 of principal and interest. Upon defendant refusing to restore to plaintiff the possession of the furniture and furnishings, plaintiff elected to rescind the sales agreement and demanded return of the said $1,852.50.
On April 15, 1948, plaintiff began suit to recover the amount of the moneys paid. Defendant on June 18, 1948, filed 2 affidavits of merits, one sworn to on June 4, 1948 and the other sworn to on June 16, 1948. In the latter affidavit, defendant among other things said, “The plaintiff failed to repair the plumbing fixtures and electrical fixtures as agreed to by the terms of his lease,” and, “that he [defendant] has other and different meritorious defenses to said action.”
In his said affidavits, defendant swore that the plaintiff was indebted to the defendant in the sum of $400, with interest from July 16, 1946.
The court on July 12, 1948, rendered summary judgment for plaintiff for $1,852.50. August 14, 1948, defendant filed a motion labeled, “motion for leave to file belated motion to set aside summary judgment.” In his motion defendant claimed that the summary judgment was excessive in the amount of $220.
In an amended affidavit of merits filed September 30, 1948, defendant claimed:
“As set-off and recoupment for several items including $1,000 for use and rental of furniture and equipment, $350 for repairs (electrical, carpenter, plastering and plumbing), $220 for reasonable value of furniture converted and unaccounted for, $162 for unpaid rent due and owing, and an accounting of .the profits necessitated by and as a condition precedent in rescission to place the parties in status quo.”
Á fourth affidavit of merits was filed by defendant, including details of items referred to in the last preceding affidavit of merits. The court filed his reasons, dated May 3,1948, for denying entire new trial, among other things therein stating:
“The reason urged by defendant as a basis for an entire new trial is that he should be allowed to interpose a claim of set-off based upon the value of the use of the furniture and fixtures by plaintiff while in the latter’s possession. In the first and second affidavits of merits filed by defendant, this question was not raised, therefore and because the point was not raised prior to judgment, an entire new trial to permit defendant to take advantage of such defense is denied. However, as to the questions of rent and repairs and which points were set forth in the affidavits of merits aforesaid, this court is of the opinion that a partial new trial as to those matters should be granted.”
The court on January 20, 1949, granted a partial new trial, the order for which, after recitals, contained the following:
• “It is ordered that a partial new trial be had as to the questions of rent and repairs as set forth in the affidavits of merits with costs to plaintiff * * * and * * * that the motion of defendant in all other respects be and the same is hereby denied.”
Plaintiff does not raise any question as to the right of the court on January 20, 1949 to grant a new trial, and claims the limitation of the new trial was proper.
On January 24, 1949, judgment was rendered for the plaintiff and against the defendant for $1,654.40, with costs, in lieu of the former judgment for $1,852.50.
The controversy in this case is over defendant’s claim that his set-off and recoupment should be increased and that he be allowed a corresponding decrease in the judgment against him on account of the items contained in his third and fourth affidavits of merits, which items, however, were not contained in his first and second affidavits of merits filed before the summary judgment.
The new matter in the third and fourth affidavits is not incorporated in defendant’s answer. Defendant at no time tendered or requested leave to amend his answer so as to include any of the said.new items.
Defendant claims that the trial court should have granted him an entire new trial and should not have limited him to a partial new trial on the items suggestéd in his second affidavit of merits.
Section 2 of our Court Rule No 47 (1945) is as follows:
“Partial new trials, limited to one or some of the issues or matters tried, may be ordered by trial courts or the Supreme Court in proper cases.”
Defendant’s claim of a defense for set-off for the reasonable value of plaintiff’s use of the furniture and conversion of furniture and also the defense of plaintiff’s failure to make a tender prior to rescission, were not raised by defendant before the entry of the summary judgment on July 12, 1948. Such questions were raised for the first time in-the defendant’s third and fourth affidavits of merits.
Defendant’s motion filed August 14, 1948 was treated as a motion for an entire new trial.
“Motion for new trial cannot be made the vehicle for raising questions not raised on the trial.” Mesh v. Citrin, 299 Mich 527, 535, 536.
The court found on the partial retrial that the item-of repairs, referred to in defendant’s second.affi davit of merits, amounted to $220, and allowed defendant credit therefor. We cannot say from the record that this allowance was incorrect in any particular nor that it was other than a just, fair and proper allowance.
The court properly refused to consider the questions of additional items contained in and raised for the first time in the third and fourth affidavits of merits, which said affidavits were filed after the summary judgment. The judgment appealed from is affirmed, with costs to plaintiff.
Sharpe, C. J., and Bushnell, Boyles, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Butzel, J.
J. Frances Bradford filed a bill of divorce from Wilmer Bradford, charging him with extreme and repeated cruelty which consisted of his being extremely critical of her and the children, being displeased with their actions, of being of a very nervous and irritable disposition, of creating such disturbances with his critical nagging actions that it became impossible for her and the children to live with him, of threatening her with physical violence and ordering her out of the house causing her and the children to become fearful that he might do them bodily harm. It further alleges that he was contemptuous of everything she did and constantly criticized her cooking, management of the home, the training of the children and on one occasion he left home without provocation and did not return for several months and then he became more critical and contemptuous than before.
Defendant filed an answer denying her allegations. He filed a cross bill alleging that their marriage took place April 11, 1923; that he is 56 years' of age and she is 41 years old; that they lived and cohabited together until April, 1947, a period of approximately 24 years. There were 3 children born of such marriage, the oldest 21, the second 19 and the third, a little girl about 7 years of age. He claims that she was guilty of mental and physical cruelty. His specific charges were that she was irresponsible, careless, lax and slovenly in her household and housekeeping; that she constantly complained about her home being in Marne, Michigan, a suburb of Grand Rapids, and not nearer the downtown section of Grand Rapids shopping district, and not convenient to transportation at all times of the day and year; that she permitted the children, as well as a guest child, to dirty the woodwork without reprimand and would not listen to any comments or suggestions from him as to their better behavior; that she constantly nagged him when he made suggestions to correct this condition; that she ignored all his ideas and suggestions for bettering their home life and living conditions; that she has maintained no discipline over the children; that she always nags and treats him with contempt and ignores his wishes that his children receive a better education. He further alleged that because of her conduct, and in order to properly perform his work as a mail clerk at the Union Station in Grand Rapids, he was obliged to leave the home at Marne and go to Grand Rapids and rent a room; that he sent her all the money he earned except an amount necessary for his own maintenance; that her conduct and acts were so pronounced and bitter that it almost made a nervous wreck of him and made him so irritable that it was difficult for him to perform his work efficiently. He alleged that he remained in Grand Rapids for 13 months and then returned home with the hope that her conduct would improve, but after a short period of improvement her nagging and complaining increased in intensity and violence. He further’ charged that she objected to getting his meals for Mm because of tbe irregular hours of his work which brings him home for meals at irregular hours; that she remained in bed until all hours of the morning, neglecting her house and household duties. In view of our conclusions we shall not discuss the property that the parties had accumulated. The court, however, granted cross-plaintiff a divorce and gave the custody of the child to cross-defendant. The latter being evidently displeased with the property settlement has appealed.
At the hearing she withdrew her bill of complaint, evidently being also willing that a divorce be granted, and that she be given the custody of the 7-year old child and a fair share of the property. The court proceeded to take testimony on the cross bill, defendant and cross-plaintiff being the sole witness sworn. The testimony of cross-defendant’s cruelty was so weak that the court remarked as follows:
“Well, Mr. Bradford, you don’t make out a strong case, of course, for divorce under the law. In your own mind you may be satisfied you have been abused at home, but under the statutes requiring you to show repeated and extreme cruelty on the part of your wife, you do not make out a strong case. And because of that fact, the court wants you to give as much consideration as you possibly can to the idea of becoming reconciled to your family.”
Defendant’s testimony in regard to his wife being-slovenly is as follows: • '
“Mrs. Bradford was slovenly; the dishes could stay in the sink, the breakfast dishes until afternoon. Shortly before I left there, things were pretty well taken care of, but she did leave March 10th for in-' stance, ánd made a trip to Grand Rapids, and the' breakfast dishes, dinner dishes and lunch dishes were scattered on the kitchen table, ór on the serving- closet, on the kitchen cabinet, in the sink and on the stove. She is not a dirty woman, bnt her work would wait.”
His testimony in regard to nagging him about living in Marne is as follows:
“She didn’t complain about it exactly, but then she didn’t approve of the idea. * * * She didn’t constantly urge me to find another place in Grand Rapids, but I have heard it repeatedly. * * * We found places, but none that were suitable to her— there was always something wrong with all of them, mainly because no suitable transportation to the shopping district in Grand Rapids, that is infrequent service or none at all.”
His testimony in regard to failing to prepare meals for him is as follows:
“Of course, she prepared meals for the others in the family and I ate with them. But I would very often come home at night half past one in the morning. * * *
“I quit work at 12:30 and at 1 and arrived home at about 1:30. And quite frequently there would be practically nothing prepared to eat.”
There was considerable friction in the family because she took into the home a child of a divorced sister who soiled a freshly-painted wall. However, the child has left the home so this course of irritation is a thing of the past. He also objected to a roomer-boarder who was taken into the home and was noisy in the morning when cross-plaintiff wanted to sleep. The roomer-b.oarder worked nights and arrived at the home at 7:30 a.m. and his whistling disturbed cross-plaintiff. There is a disparity in ages between cross7plaintiff and his wife. He also has- high blood pressure which may have been partly the cause of his irritation. At the time of the hearing, the parties had' lived together 24 years; one of their children is only 7 years of age and, if possible, should uot be brought up in a broken home. Cross-plaintiff is a hard working man and he supported his wife to the best of his ability. Cross-defendant evidently also is a person of good morals and the fact that she has taken in a roomer-boarder would indicate that she is also hard working. The parties are possessed with the idea that they must be divorced. We do not believe that there has been sufficient grounds shown that would justify the granting of a divorce. The judge made strenuous but futile efforts to bring about a reconciliation but the parties seem obdurate. We find no grounds for divorce. When the parties find that they are not entitled to a divorce they should have enough good common sense and decency so as to exercise mutual forbearance and consideration for one another, remain true to their marriage vows and probably can and will have mutual respect and possibly affection for one another. They are bound to keep up a home together for each other’s sake nnd especially for the little girl. We cannot countenance a divorce on such flimsy grounds.
In Le Blanc v. Le Blanc, 228 Mich 74, we quoted with approval as follows from 9 RCL, p 337:
“As has well been said, the husband and wife are bound to exercise greater efforts for removing misapprehension, allaying quarrels, smoothing the road to concord, and effecting reconciliation, than are people in other relations of life. The marriage status is not merely contractual so as to entitle each of the parties to demand the strict letter of the bond. It is a status wherein the law operates upon the weakness as well as the strength of human nature, and it will not be dissolved except for grave and substantial causes.”
To like effect see De Vuist v. De Vuist, 228 Mich 454.
Under the circumstances, the decree of the trial court is reversed, without costs. A decree may be entered dismissing the cross bill of complaint.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Dethmers, and Carr, JJ., concurred. | [
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Butzel, J.
Earl L. Clark, county drain commissioner for the county of Oakland, Michigan, plaintiff, filed a petition for declaration of rights naming as defendants various cities and townships and individual landowners within the Royal Oak drain district in the county of Oakland, the county itself, the State highway commissioner, the State land office board, and holders of the drain district’s bonds. There being a large number of landowner-taxpayers and bondholders interested, the individual defendants were designated as representing the class to which they belong as well as themselves. In order to properly discuss the questions raised in this Court and the court below, a brief history of this drain is necessary.
In conformance with PA 1923, No 316, as amended, the Royal Oak drain district was duly formed under the direction of the Oakland county drain commissioner, and a large underground drain planned and constructed at a cost of $4,066,000. An assessment was levied against the lands in the drain district payable in 14 instalments. The assessment was apportioned 40 per cent, against political units at large and 60 per cent, against individually held lands in the district. Bonds in the principal sum of $3,-796,000 were issued to secure money for the construction of the drain, payable from the assessments levied as above. The bonds were dated November 1, 1925; they bore interest at'the rate of 5½ per cent, per annum; they matured serially, the first maturing May 1, 1928, the last to come due May 1, 1940. The right of the Royal Oak drain district to construct this drain, to issue bonds and levy assessments therefor was upheld in the case of Royal Oak Drain District v. Keefe (CCA), 87 F2d 786. The opinion in that case held that the drain district is a corporate entity which may sue and be sued. The opinion also sets forth some of the underlying facts involved in the present case. No question is raised here as to the right to build the drain or to issue bonds.
Due to the questioning of the legality of the drain and the litigation that ensued (Royal Oak Drain District v. Keefe, supra) no instalments were levied for the years 1932 to 1936, both inclusive. Instalments had been levied for the years 1926 to 1931, both inclusive, and a large number of bonds retired from the collections therefrom. In 1937, a supplemental special assessment roll was made in which the unlevied instalments were divided into 25 instalments to be spread in the years 1937 to 1961, both inclusive. The interest, accrued to date, on the unlevied instalments was divided into 10 instalments to be spread on the special assessment roll for the years 1937 to 1946, both inclusive. Instalments were levied in 1937 and subsequent years, and no question is raised as to them.
On August 31, 1939, there was still due on the original bond issue the principal sum of $2,898,000, and unpaid interest in the sum of $1,080,997.50. The following month plaintiff, as county drain commissioner, submitted a plan of composition to the creditor bondholders. An action was filed in the United States district court for the eastern district of Michigan, southern division, for confirmation of the plan of composition under the provisions of chapter 9 of the Federal bankruptcy act (11 USCA, §§ 401-404). The plan, as finally approved by the court and also by the public debt commission of the State of Michigan (now the municipal finance commission), was confirmed by decree of the Federal court on February 6, 1941. Plaintiff drain commissioner then entered an order in conformity with the plan of composition as approved by the court, and it is his rights and duties under this order which he seeks to have judicially determined. Under the plan of composition and order refunding bonds were issued, dated May 1, 1937, bearing interest which graduated from 1 per cent, to 41 per cent, per annum, and maturing in 30 years, but subject to retirement by tenders or call as funds were available from year to year as provided by law. Past due interest on the original bonds was paid, 42 per cent, in cash and the remainder in certificates of indebtedness payable within 10 years. The principal amount of the refunding issue was $2,896,000 to be exchanged for equivalent amount of the original bonds. The exchange of bonds was made except for a few bonds, the owners of which could not be located, but a sufficient amount of refunding bonds together with cash and certificates of indebtedness for the interest on such bonds were held in escrow for such owners. Further details of the refunding plan are not important except as they appear in that part of the order of the drain commissioner, the legality and construction of which is the subject of the present suit. Plaintiff seeks to have determined in the present suit his right to proceed under the provisions of the following two paragraphs of the order. Paragraph 7 of the drain commissioner’s order, pertaining to the levying of additional assessments in case of a deficiency, is as follows:
“An annual accounting shall be made on August 1st of each year commencing with the year 1947 of the amount of outstanding bonds and certificates of indebtedness, if any, and of the amount in said Royal Oak drain sinking fund. Beginning with the year 1947 there shall be levied upon the tax rolls of each year an amount sufficient to pay the interest maturing during the next calendar year and in addi tion thereto, an amount equal to the principal of the refunding bonds and certificates of indebtedness (if any) outstanding on August 1st of the year of levy, divided by the number of years remaining between May 1st of such year and May 1, 1967 (the dividing-figure being 20 for the year 1947 and one less for each subsequent year). If the amount of the instalment of the 1937 supplemental special assessment roll to be spread upon the tax roll of any such year (exclusive of any part thereof cancelled by the terms of PA 1937, No 155, as amended ) shall not be equal to the amount to be levied under the requirements of the foregoing sentence, then any such difference shall be levied under the provisions of CL 1929, § 4940, as amended by PA 1939, No 129, against the various political subdivisions and parcels of land in the special assessment district, in proportions as originally assessed; provided that the additional levies herein required to be made under the provisions of CL 1929, § 4940, as amended by PA 1939, No 129, shall not in any year prior to the year 1965 exceed four per centum of the original assessment against each such political subdivision and parcel of land. In determining the total amount to be levied each year there shall be deducted any moneys in the sinking fund available for the retirement of refunding bonds and certificates of indebtedness.”
Pertinent parts of paragraph 8 of the drain commissioner’s order pertaining to the retirement of the refunding bonds are as follows:
“If, between May 1st and October 31st of any year, there shall be an amount in the Royal Oak drain sinking fund in excess of the succeeding November 1st and May 1st interest requirements on all outstanding refunding bonds and if between November 1st of any year and April 30th of the fol lowing year there shall he an amount in the Royal Oak drain sinking fund, exclusive of collections made upon drain taxes becoming due during such period, in excess of the succeeding May 1st interest requirements on said refunding bonds, all prior interest requirements having been met or provided for, the county drain commissioner shall advertise for tenders of refunding bonds and certificates of indebtedness, as provided in PA 1932 (1st Ex Sess), No 13, § 8, as amended, and if tenders are received at or below par and accrued interest, he shall purchase bonds and/or certificates of indebtedness so tendered at the lowest price or prices (taking into consideration the interest factor to November 1, 1949) to the amount of such excess; provided that the county drain commissioner shall not be required to so advertise for tenders if the amount of such excess is less than $25,000. If sufficient tenders are not received to consume the moneys available therefor, then the county drain commissioner shall call refunding bonds, selected by lot, for redemption at the earliest possible date to the amount so available, provided that the county drain commissioner shall not be required to call refunding bonds for redemption as aforesaid in smaller amounts than $10,000.”
Questions arose in regard to the plan and order, and especially as to the right to make the additional assessments in 1947 and subsequent years as provided in paragraph 7 of the order, because of subsequent legislation and decisions of this Court. The drain commissioner being in doubt as to his rights and duties under the order and in order to avoid any personal liability, and also to settle other questions which had arisen, filed a petition for a declaratory judgment. The right to file the petition was attacked in the court below and one of the claims of error in this Court is the fact that the court below entertained the petition for a declaratory judgment and entered a decree as prayed for.
The decree appealed from in the instant case provided that the drain commissioner should make additional assessments in accordance with paragraph 7 of the order, except that lands, title to which had become absolute in the State through tax sales, even though now in the hands of private individuals, were exempt from such additional assessments; that in levying such additional assessments against the remaining land and the political units subject thereto, they should be in no greater amount as to the respective parcels, and municipalities than if none of the land in the drain district was exempt; and that the political units assessed at large must pay all instalments of such assessments in full whether they collect them for their taxpayers or not. Edgar B. Whit-comb, Anna S. Whitcomb and Henry J. Helmers, bondholders named as defendants, have appealed, and the cities of Pleasant Ridge and Huntington Woods, Ashton J. Berst and Edwin H. Waterhouse, taxpayers of said cities, also named as defendants, have cross-appealed. We shall refer to them respectively as appellants and cross-appellants. The decree dismissed the bill as to certain private parties, named as defendants, who had paid their assessments in full. They stand in the same position as if they had not been originally named as defendants.
The court was correct in entertaining jurisdiction and in entering a decree. Numerous questions were raised by the parties and there was an actual controversy as shown by the total disagreement between the plaintiff, appellants and cross-appellants. From what will appear hereafter it will be readily seen that the plaintiff, county drain commissioner, was confronted with serious problems as to how to proceed and that he might assume a great risk if he proceeded along either of the lines suggested by the appellants or cross-appellants. Section 1 of the declaratory judgment act (CL 1948, § 691.501 [Stat Ann § 27.501]) provides:
“No action or proceeding in any court of record shall be open to objection on the ground that a merely declaratory judgment, decree or order is sought thereby, and the court may, in cases of actual controversy, make binding declarations of rights whether any consequential relief is or could be claimed, or not, including the determination at the instance of anyone interested in the controversy, of the construction of any statute, municipal ordinance or other governmental regulation, or any deed, will or other instrument in writing, and a declaration of the rights of the parties interested, but the foregoing enumeration does not exclude other cases of actual controversy.”
Cross-appellants further claim that the decree entered in the district Federal court upholding the validity of the drain proceedings and granting a writ of mandamus directing the levying of the original assessments, reserved jurisdiction to adjudicate any further rights of the parties. (The original decree prior to appeal in Royal Oak Drain District v. Keefe, supra.) It is true that in the decree in that case the judge did reserve jurisdiction for the purpose of carrying that decree into effect, and to grant any further relief necessary. Cross-appellants contend that the State courts have no jurisdiction as it would be a collateral attack on the decree of the Federal court. The court properly refused to dismiss the case on this ground. This is not a collateral attack on such decree as there are no questions raised in this case as to the validity of the drain proceedings or the issuing of the original bonds and the right and duty of the drain commissioner to levy the original assessments. Those were questions passed on by the Federal court. Subsequent to that decree, the original bonds were refunded by the issu ing of new bonds under a plan of composition approved by the Federal court. Entirely new questions are raised in the case at bar.
The main difficulty arises from the fact that absolute title to approximately two-thirds of the privately-owned land in the district, subject to 38.90765 per cent, of the assessed cost of the drain, was acquired by the State through the 1938 and subsequent tax sales, and land subject to 1.3329 per cent, of the assessed cost of the drain was deeded to school districts and the assessments cancelled. Though most of the lands whose title passed to the State through the tax sales has been returned to private ownership by so-called “scavenger” sales, there seems to be a probability that a deficiency in the Royal Oak drain sinking fund on account of these lands, through such sale, were freed from all further liability for assessments for the Royal Oak drain. This was taken into account in the provision in paragraph 7 of the drain commissioner’s order which provides for supplemental assessments against all the land in the district to make up such deficiencies as permitted by the statute referred to in paragraph 7 (supra). Such supplemental assessments were not to be levied until 1947 and subsequent years. However, after the plan of composition was approved and the drain commissioner’s order made, this Court held that land, the- absolute title to which had been acquired by the State, when sold at the so-called “scavenger” sales was freed not only from all prior taxes and special assessments, but also was freed of the possibility of further assessments for benefits to the land by public improvements made prior to the State acquiring title. Municipal Investors Ass’n v. City of Birmingham, 298 Mich 314; affirmed Municipal Investors Ass’n v. Birmingham, 316 US 153 (62 S Ct 975, 86 L ed 1341), and Keefe v. Oakland County Drain Commissioner, 306 Mich 503; affirmed Keefe v. Clark, Brain Commissioner of Oakland County, 322 US 393 (64 S Ct 1072, 88 L ed 1346). Also, see Wood v. Village of Rockwood, 311 Mich 381.
Appellants ask ns to reverse onr former decisions determining that lands which have passed through “scavenger” sales were exempt from future assessments for prior benefits to the land. This we decline to do, nor do we find it necessary to repeat what was said in the former cases.
Appellants further contend that the decree of the Federal court approving the plan of composition determined that the drain commissioner had the power to levy such additional assessments and that such decree is binding on the parties to this suit. Even if the taxpayers were bound by the decree of the Federal court in the composition proceedings, such decree would not be binding as to the rights and duties of the drain commissioner under State laws, the construction and interpretation of which by the State courts are binding on the Federal courts. In Bloomfield Village Brain District v. Keefe (CCA), 119 F2d 157, it was held:
“Decrees of Michigan court construing the Michigan county drain law were binding on Federal court in action on drain districts’ bonds.” (Syllabus.)
Also, see Erie Railroad Co. v. Tompkins, 304 US 64 (58 S Ct 817, 82 L ed 1188, 114 ALR 1487).
The provisions in paragraph 7 of the drain commissioner’s order as to the additional assessments in case of a deficiency in the drain district’s funds, are in accordance with chapter 10, § 18 of the drain law, as amended by PA 1939, No 129 (CL 1948, § 270.18 [Stat Ann 1947 Cum Supp § 11.104]), which provides:
“If there is' not sufficient money in the fund in a particular drain at the time of the maturity of the bonds last to mature to pay all outstanding bonds with interest, whether such insufficiency is due to the anticipation of instalments as provided in the preceding section, or to failure to sell any lands for delinquent taxes, or to any other cause, it shall be the duty of the commissioner to at once levy an additional assessment as hereinbefore provided in such an amount as will make up the deficiency; and in case bonds or other evidences of indebtedness are issued pursuant to Act number 13 of the Public Acts of 1932, first extra session, and acts amendatory thereto, to refund the outstanding indebtedness of a drain district, the governing body of such drain district shall provide, subject to the directions of the public debt commission, for such additional levies of assessments as it shall deem necessary to prevent default in payment of interest on such obligations, and the maintenance of a sinking fund for their retirement, and it shall be the duty of every officer charged with the determination of the amount of taxes to be raised, or the levying of such taxes, to make or to cause to be made the additional levies as provided. Any surplus remaining after the payment of the bonds and interest shall remain in the county treasury and be used for the maintenance of the drain.”
In construing the words “hereinbefore provided,”' which we have italicized, reference is made to chapter 9, § 3 of the drain law (CL 1929, § 4917, CL 1948, § 269.3 [Stat Ann § 11.81]), which provides in part:
“Whenever the amount assessed for the construction of any drain shall not be sufficient to complete the same, and to pay all the costs and incidental expenses or to pay the principal and interest on bonds-if such are issued, a further assessment shall be made to meet the deficit or additional expense. Such further assessment shall be apportioned, assessed,, levied and collected as provided in the first instance, and on the same percentage, and shall be collected in 1 year, but there shall be no review of nor appeal from such further assessment.” (Emphasis added.)
Cross-appellants claim that the above section of the statute providing for additional assessments in case of a deficiency is unconstitutional as it does not provide that thé new assessment must be based on and may not exceed the benefits to the land by the drain when added to the assessment already levied, and further that as there is no hearing as to the apportionment of the added assessments, it violates the due process of law provisions of the State and Federal Constitutions. It is true that special assessments for a public improvement, such as a drain, must be based on the special benefits to the land assessed therefor. Cross-appellants claim that such benefits must be measured by the enhanced value of the land due to the drain as determined many years after the drain was constructed. This is not correct. Drains are not only for the purpose of improving the land, but are also for improving the sanitation and health of the residents and municipalities of the entire district. The exact and actual monetary benefit to any individual parcel of land would be difficult to measure and at most can only be estimated with a fair degree of exactness. The original assessments were properly levied and are not questioned. No finding was made as to the actual monetary benefits to the lands, the statute requiring that the costs of the drain be apportioned by percentages according to the benefit to the land. The additional assessments are based on the same percentages as the original assessments and thus are based on the benefits to the land as originally determined. There is nothing capricious, arbitrary or fraudulent in so basing the added assessments for the deficiency on the prior determination of benefits to the land unappealed from.
At the time of the original apportionment of benefits to the lands full opportunity for hearing and appeal from such apportionment is provided by the statute. (CL 1948, § 266.4 eé seq. [Stat Ann § 11.59 et seq.].) As the added assessments are based on the same percentages as the original apportionment,, there is no new determination of benefits to the land, the parties have had full opportunity of hearing on such apportionment. Thus there is no denial of due process of law in not providing for new hearings. A similar rule is applied as to added assessments for repairs or additional costs of constructing the drain. In Thomas v. Sullivan, 230 Mich 108,115, it was said:
“We discover nothing of significance alleged in the instant bill which was not heard and decided upon its merits in the first chancery suit, except Sullivan’s special assessment to meet a deficit. The apportionment of benefits for the whole drain, whatever it might cost, was made by the special commissioner from Washtenaw county. Sullivan’s subsequent duties in the matter were purely ministerial, including" the making of further assessment to meet deficiencies. The statute already quoted provides that such assessment ‘shall be apportioned, assessed, levied and collected as provided in the first instance, and on the same percentage, * * * but there shall be no review of nor appeal from such further assessment.’ The further assessment in this case was spread on the same percentage of benefits as in the first instance.”
Also, in Breiholz v. Board of Supervisors of Pocahontas County, Iowa, 257 US 118 (42 S Ct 13, 66 L ed 159), it was held:
“A State law under which a drainage district has been established, the ditches constructed and the cost assessed upon the landowners in proportion to benefits, all after due notice and opportunity to be heard, does not violate their right to due process, under the Fourteenth Amendment, in empowering a supervising board, without further notice, to determine the necessity and extent of cleaning and repairs, and to assess the cost upon the lands in proportion to the original assessments.” (Syllabus.)
We do not find that there is any denial of due process in the provision for added assessments in case of a deficiency in this section of the statute.
Cross-appellants further claim that the lower court erred in ordering the municipalities to pay in full the amount assessed at large against them irrespective of whether or not they have collected it all from their taxpayers. They rely on the case of Township of Waterford v. Wilson, 257 Mich 619, where we said (syllabus):
“Where a county is assessed at large for a percentage of cost of highway improvement under Covert act (1 Comp Laws 1929, § 4314 et seq. ), a township also assessed at large for a percentage of said cost is required to pay to the county treasurer only the amount collected by its treasurer, and not the full amount of the tax so spread (section 4341).”
There was nothing in that case that presented the question of the right of a drain commissioner to collect from the municipalities the amount assessed at large against them under the drain law. Though it was not binding on the court nor considered by them in the above case, we believe the correct statement of the law was given by the Attorney General on this question in an opinion in 1924, as follows:
“Under this provision, the drain taxes at large assessed against the township are included in the column with other township taxes. The township treasurer must therefore, pay the county treasurer in full for all drain taxes assessed against the township at large each year, whether collected or not. When the tax is collected thereafter by the county treasurer through a sale of the premises or otherwise, it will be refunded to the townships.” Opinions of Attorney General, 1923-1924, pp 306, 307.
The main benefits of a drain to a village or a city are the improved health and sanitation of that municipality as well as benefits to the streets. No complaint was made at the time the original assessments were made, and it becomes a general obligation of the city or village. The municipalities, the same as the townships under the opinion of the Attorney General cited above, are liable for the amount assessed against them at large whether they collect it or not from their taxpayers.
Appellants contend that if the Court does not reverse its former decisions in cases where it held that the “scavenger lands” are exempt, then the remaining lands and political units should bear the full deficiency. The trial judge, in his opinion as well as in the decree, stated:
“Further, in order to comply with such decisions, the drain commissioner in levying such additional assessments upon lands other than those last mentioned, and upon political units, shall assess them no greater amounts than would be assessable against them if there were no lands exempted by reason of the conditions above mentioned.”
This is a correct application of the rule set out in Keefe v. Oakland County Drain Commissioner, supra, and what was said in that case need not be repeated here.
Some question has arisen in regard to the liability of the county in case of a final deficiency in the payment of the bonds. The trial court said:
“That the matter of whether or not the county of' Oakland shall advance moneys to pay the outstand ing obligations of the Royal Oak drain district, and the extent of such advancement, if any, and any other matters on which declarations of right are sought in any of the pleadings herein, which are not expressly covered by this decree or necessarily involved in the matters here determined, shall be deemed not to have been passed upon and inappropriate for a declaratory decree at this time.”
Tl;e trial court was correct as the question of liability of the county depends on many factors not now before the Court and which will not arise till the maturity date of the bonds and so it is not passed on by this Court either.
The trial court further decreed:
“It is the duty of the drain commissioner, and he* is hereby directed and enjoined to perform paragraph 8 of his order dated April 17, 1941, copy of which is exhibit 4 attached to the petition herein, and he is directed to proceed as therein provided, whenever the conditions therein specified shall occur or exist upon which bonds and certificates of indebtedness of Royal Oak drain district should be retired on tender or call for redemption.”
The question was raised as to whether in view of the fact that an insufficient amount may be raised through the assessments to retire all the bonds, and there may be a loss to some of the bondholders, that the moneys collected from the assessments should be distributed pro rata, or at least a limit be set above which no tenders need be accepted by the drain commissioner. We would be much impressed by this claim were it not for the fact that we are dealing with a statutory proceeding which provides for the redemption of such refunding bonds. Paragraph 8 of the drain commissioner’s order, set out above, is strictly in accordance with the provisions of PA 1932 (1st Ex Sess), No 13, under which these refunding bonds were issued. All bondholders who are apprehensive that there will be an insufficient amount realized from the assessments to pay their bonds and interest at maturity or fear the outcome of further litigation that may follow, have an equal right to tender their bonds from time to time as moneys are available for payments, and if they do not so tender them, the bonds to be paid are selected by lot. The trial court was correct in adhering to the statute.
Other questions raised in the briefs are immaterial to the issues and do not warrant discussion.
The decree of the lower court is affirmed, and the case remanded for the purposes set out in that decree. As a public question is involved, no costs will he allowed.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Dethmers, and Carr, JJ., concurred.
See CL 1948, § 261.1 et seq. (Stat Ana and Stat Ann 1947 Cum Supp § 11.1 et seq.). — Reporter.
See CL 1948, § 211.351 et seq. (Stat Ann 1947 Cum Supp § 7.951 et seq.). — Reporter.
CL 1948, § 270.18 (Stat Ann 1947 Cum Supp § 11.104). — Reporter.
See Mich Const 1908, art 2, § 16. — Reporter.
See US Const, Am 14. — Reporter.
See CL 1948, § 247.415 et seq. (Stat Ann and Stat Ann 1947 Cum Supp § 9.711 et seq.). — Reporter.
See CL 1948, § 270.3 (Stat Ann § 11.89). — Reporter. | [
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Bushnell, J.
On January 5, 1948, we reversed a decree of the circuit court of Jackson county, and granted plaintiff Mary Hensinger a decree of separate maintenance. Defendant Kenneth Hensinger was ordered to pay $80 per month for the support of his wife and' their minor child. See Hensinger v. Hensinger, 319 Mich 645. About a year later, Hen-singer went to Nevada, secured a decree of divorce, and married another person the following February. Under the Nevada decree he was ordered to pay $40 per month for the support of his minor child. He now has another child by reason of his remarriage, and his present wife has 2 children by a former marriage.
On August 2, 1949, he filed a petition in the circuit court of Jackson county to modify the decree, which was entered here. This petition was denied and he has appealed. He claims in an amended petition that he has been suffering from low blood pressure and sugar diabetes, and has been unemployed for several periods. He is now earning about $70 per week. Since filing his petition he has only been paying the alimony ordered in the Nevada decree.' He claims that Mary Hensinger, plaintiff herein, is employed, and she admits that she earns about $170 per month as a nurse.
The circuit court of Jackson county has jurisdiction to modify the decree. CL 1948, § 552.28 (Stat Ann § 25.106). However, there must be a change ’ in the condition of the parties since the decree to jus tify the modification of the provision for-alimony. Foltz v. Foltz, 281 Mich. 179, and Rowe v. Rowe, 291 Mich 451.
Hensinger’s income is approximately the same as it was when the decree- was entered here, and his .remarriage and new family obligations are not such a change in circumstances as to warrant a modification of the decree. Christensen v. Christensen, 295 Mich 203; and Renn v. Renn, 318 Mich 230, 235. Nor does his wife’s effort to- earn money relieve him from his obligation. Christensen v. Christensen, supra, and Harter v. Harter, 307 Mich 258.
No question has been raised as to the effect of the Nevada decree of divorce upon the decree of separate maintenance entered here. The order of the trial-court denying Hensinger’s petition for modification of the decree is affirmed. Costs to appellee.
Dethmers, Btjtzel, Carr, Sharpe, Boyles, and Reid, JJ., concurred.
The late Chief Justice North did not sit. | [
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Boyles, J.
Plaintiff sued the defendant corporation on a promissory note for $10,000 executed August 4, 1946, for a loan of money by plaintiff to the corporation. The note was not disputed. The defendant claims set-off and recoupment amounting to $9,504.50. The circuit judge hearing the case without a jury disallowed the claim of set-off and recoupment and entered judgment for the plaintiff. Defendant appeals.
The sole controversy is whether the claims of set-off and recoupment should have been allowed. The defendant corporation was organized March 8,1946. Its incorporators, stockholders and directors were the plaintiff, his wife, and Joseph C. Higgins. This continued unchanged from its inception until December 8, 1947, when Higgins purchased all of plaintiffs stock. Higgins was its president and the plaintiff was its secretary-treasurer and general manager. Pie was in complete control of its affairs until he sold out to Higgins. The books were kept by a certified public accountant. The corporation was in the business of upholstering furniture. Mr. Higgins was connected with Sears-Roebuck Company, was in need of the furniture, and plaintiff was to have a free hand in the management of the defendant corporation in providing it. No regular directors’ meetings were held. Plaintiff furnished the money and put up a building for the corporation. The corporation needed a truck for its operations and the plaintiff himself purchased one. Before it was delivered plaintiff used his own automobile and a 4-wheel trailer for company business, under an understand-, ing that he was to be paid for its use. His mileage and expense was entered on the books of the company and plaintiff was paid and received $982.50 for that use. The defendant claims this was unauthorized and seeks to set it off against plaintiff’s note and thus recoup it. The truck also belonged to the plaintiff. The company was short of money to pay for a truck and had been hiring trucks. Plaintiff testified that it was understood and agreed by Higgins at all times that plaintiff should provide the truck, use it for the company and he paid for its use, so much for a trip, and $12 a day for local use. From the hooks of the defendant, plaintiff was paid $7,347 for truck use. The defendant claims this use was unauthorized and asks that the payment be used as an offset against plaintiff’s note. The defendant also claims that the plaintiff drew $25 a week as salary in 'excess of the amount Mr. Higgins had agreed to, and seeks to offset or recoup $1,175 on that account. Mr. Higgins testified that at no time did he agree to a charge by plaintiff for use of his car or truck.
The circuit judge heard the ease without a jury and in his opinion stated that he was not impressed with Mr. Higgins’ testimony. While there were no formal directors’- meetings held, the court concluded that Higgins, as a director and stockholder, was fully aware of the payments shown on the corporate books as being paid to plaintiff and made no objection until after plaintiff had sued the defendant corporation to collect the $10,000 note, after Higgins became its sole owner. We fully agree with the findings of the trial court. The testimony does not preponderate in the opposite direction.
While the corporation is the nominal defendant, Higgins, who now owns the defendant corporation, is interested in opposing the plaintiff’s suit to obtain judgment on the note. The defendant’s main claim is that there were no directors’ meetings, and that, absent any directors’ authority, the plaintiff had no legal right to receive the payments shown on the books which the defendant seeks to offset against plaintiff’s note. The record does not support defendant’s claim that plaintiff was paid excessive, unreasonable or improper amounts for use of his car, trailer and truck. . The corporation continued the same use of the plaintiff’s truck for some time after plaintiff sold out to Higgins. The record fully justifies the trial court’s finding that Higgins, the corporation’s president and director, authorized, approved, or ratified the expenditures the defendant seeks to recoup, that such expenditures were fair, and were not to the disadvantage of the corporation or detrimental to it. Under the circumstances of the case, the knowledge which Higgins denies as to the payments shown on the corporate books to have been made to the plaintiff may be imputed to him. Carnahan v. M. J. & B. M. Buck Co., 250 Mich 198. Plaintiff had a right to deal with the corporation of which he was a director and has fairly established the fairness of his dealings with the corporation. See CL 1948, §450.13(5), as amended by PA 1949, No 229, (Stat Ann 1951 Cum Supp § 21.13 [5]).
“The directors, who comprised the entire body of stockholders of the corporation, having permitted the president, treasurer and general manager to exercise all of their functions and to assume the entire control and management of the corporate affairs, and having received the benefit of his acts and of plaintiff’s services, the legal entity is as much bound as though it had itself formally contracted for the serv ices.” Ruttle v. What Cheer Coal Mining Co., 153 Mich 300.
Under the circumstances of this case a formal meeting of the 3 directors, the plaintiff, his wife, and Higgins, was not necessary to authorize plaintiff’s use of his automobile and truck for the corporation.
Zachary v. Milin, 294 Mich 622, mainly relied on by appellant, wherein this Court had under consideration quo warranto to test the right of the defendants to hold office as director of a corporation, has no particular bearing on the issues of the instant case.
In Faust v. Kent-Moore Organisation, Inc., 324 Mich 45, at page 51, this Court said:
“We quote with approval in Cope-Swift Co. v. John Schlaff Creamery Co., 223 Mich 543, at page 547, as follows:
“ Where the president is. given power as general manager of the business with full direction and ■charge thereof, he has the power to do any act or make any contract that the president and general managing agent of such a corporation could do or make in the ordinary transaction of the corporate business, and prima facie has power to do any act which the directors could authorize or ratify, unless special limitations or restrictions are put upon such power, of which the party dealing with him has notice, or unless power to do the particular act is expressly given to another officer or agent.’ 14A CJ, p 358.”
The claims of set-off and recoupment were properly disallowed and the judgment is affirmed, with costs to appellee.
Dethmers, Butzel, Carr, Btjshnell, Sharpe, and Reid, JJ., concurred.
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Dethmers, J.
Plaintiffs appeal from an award of the workmen’s compensation commission denying compensation.
While there is support in the record for defendants’ claim that plaintiffs’ decedent and his brother, John, were partners engaged as independent contractors in doing for defendant broadcasting, company, hereinafter called defendant, the job oh which decedent was accidently injured and killed, nevertheless, after excluding matters equally within the knowledge of the deceased, the commission .made a finding of fact, supported by some competent evidence, that John entered into a contract with defendant to take down its radio tower for $200 and that he hired decedent to assist him in the. work. The commission found that defendant had no right to and had exercised no control over decedent. Accordingly, it held: (1) That decedent was not the employee of defendant, but of his brother, John; (2) that John was an-independent contractor rather than defendant’s subcontractor; and, therefore, (3) that defendant was not liable for compensation.
Plaintiffs claim they are entitled to an award of compensation against defendant under the provisions of CL 1948, § 411.10 (Stat Ann 1950 Rev §17.150). Although the commission did find that John was an independent contractor doing a job under contract for defendant, and that he hired dece dent to assist him in the work, it did not find, nor is there any admission or showing in the record, that John was, at the time in question, not subject to the workmen’s compensation act. This is a prerequisite to liability on defendant’s part under the mentioned statutory provisions. Assuming, however, that John was not subject to the act, defendant’s liability as principal under the mentioned act would depend on its having contracted with, John, the contractor, “for the execution by or under the contractor of the whole or any part of. any work undertaken by the principal.” Defendant was engaged in the broadcasting "business. It was not in the business'of and did not undertake the work of razing a radio tower. In that respect this, case might be viewed as distinguishable from 2 cited'by plaintiffs, namely Nowacki v. Escanaba Manfg. Co., 229 Mich 675; and Aukstales v. Klotz, 280 Mich 355, in which the work contracted to be done by the contractor might be considered to be part of the business of the principal and, hence, in the language of the statute, a part of the work undertaken by it. That distinction between (1) work which is part of the business of the principal and (2) work, contracted to be done for it, which is not part of its business and therefore not work undertaken by it, was clearly recognized in Burt v. Munising Woodemware Co., 222 Mich 699; and Rinebold v. Bray, 248 Mich 321. The case of Harris v. Fry & Kain, 306 Mich 1, cited by plaintiffs, presents greater difficulty. There the work in which plaintiff was injured and which his employer had contracted to do for the principal was clearly not a part of the business of the principal nor work undertaken by it. Nevertheless, we permitted recovery against the principal under the statute here under consideration, it is to be noted, however, that the contentions raised in that case, as also in the Nowaclci and Aulcstales Cases, related to other subjects, with the result that the mentioned distinction recognized in the Burt and Binebold Gases was neither discussed nor considered. To the extent, therefore, that the Harris Case, or, for that matter, the Nowacki and Aukstales Gases, decided, without discussing or directly considering, that there is liability under the section of the statute in question on the part of a principal for injuries sustained in work contracted to be done for it hut which is not part of its business and, hence, not work undertaken by it, we decline to follow them.
Affirmed, with costs to defendants.
Butzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
The late Chief Justice North did not sit.
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Boyles, J.
This case brings the question whether the probate court has jurisdiction over certain trusts created by the will of Genevieve B. J ones, deceased, duly admitted to probate in Calhoun county. The facts have been stipulated.
Said will sets up 2 trusts. In one of them the testatrix gives $5,000 to the Oak Hill Cemetery Company in trust for the following purposes:
“(A) To place said sum in a fund separate and apart from any of the other funds owned or administered by said company, and to invest and reinvest said sum, and any unused income accumulated thereon from time to time, in such income-producing securities and properties as shall be lawful trust investments under the laws of Michigan in effect from time to time.
“(B) To use and apply the income from said separate fund for the purpose of maintaining the A. 0. (Tones family cemetery lot in said Oak Hill Cemetery.”
The second trust devises and bequeaths the residue of the estate (approximately $240,000) to the School District of the City of Battle Creek, in trust, with the following directions as to its use and purposes:
The school district is to divide said residue into 3 separate, equal funds, each to be administered apart from the others. One fund, to be known as the Community Civic and Social Center Fund, “shall be used by said school district, when and as the board of education of said district deems best, in defraying a part or all of the cost of constructing a new building, or an addition to an existing building belonging to the said school district, to be used as a Community Civic and Social Center where groups may gather-for civic and social activities.”
The second fund, to be known as the Almon 0. Jones Teachers’ Fund, is to be held, invested and reinvested by the school district as trustee, and it is required to use the net income as follows:
“The net income * * * shall be granted from time to time * # * to employees of said school district for the purpose of aiding them in advanced study, in travel or in other activities calculated better to fit them for their service to the Battle Creek public schools. Preference in making such grants shall be given to employees actively engaged in the classroom instruction of students.”
The will then directs that the net income from the third fund, to be known as the Almon O. Jones Student’s Fund,
“shall' be used in the unfettered discretion of the board of education of said school district, or its successor governing body, to remedy the lot of underprivileged children of public school age resident' in the city of Battle Creek or attending its public schools.”
The executor of the estate petitioned the probate court for instructions as to whether said 2 trustees need qualify in the probate court as testamentary trustees before the trust funds could be turned over to them. After due notice and a hearing thereon, the probate judge entered an order declaring that these were testamentary trusts, that the jurisdiction conferred on circuit courts over trusts for certain charitable purposes does not deprive the probate court of jurisdiction of such trusts when created by a will; and directed that each trustee must file a bond in said court and receive letters of trusteeship before receiving the funds and entering upon its fiduciary duties.
The 2 trustees appealed to the circuit court, where Judge Hatch filed a well-considered opinion holding that these were testamentary trusts within the jurisdiction of the probate court over which the circuit court does not have exclusive jurisdiction, and entered judgment affirming the order of the probate court. Thereupon the trustees, on one record and on stipulated facts, have perfected a consolidated appeal to this Court.
The only question involved is whether the probate court has jurisdiction, under a will admitted to probate in that court, over testamentary trusts for charitable purposes — stated in another way: Does the circuit court in chancery have sole and exclusive jurisdiction over testamentary charitable trusts? No issue has been raised as to the validity of the trusts, or seeking a construction as to their provisions or purposes. For the purposes of this • decision they will be considered as trusts both for charitable purposes as well as testamentary trusts.
Appellants claim that under PA 1915, No 280 (CL 1948, § 554.351 et seq. [Stat Ann § 26.1191 et seg.]), the circuit court in chancery has exclusive jurisdiction over the trusts involved in this case. They contend that under said act the jurisdiction of circuit courts in chancery is exclusive, and that the probate court does not have jurisdiction over testamentary trusts which are for charitable uses. Appellants concede that probate courts have general jurisdiction over testamentary trusts, but argue that their jurisdiction does not include testamentary trusts for charitable purposes.
The prohate code provides :■
“Each judge of probate shall have jurisdiction: * * *
“2. Of trusts and trustees in the execution of wills and administration of estates of deceased persons.” CL 1948, §701.19 (Stat Ann 1943 Rev §27.3178 [19]).
“The term ‘fiduciary’ as used in this act, unless the context' shall require a different meaning, shall include all executors, administrators, general or special, administrators with the will annexed," administrators de bonis non, guardians, general or special, and trustees, appointed by or under the jurisdiction of the probate court, whether testamentary or otherwise : . Provided, That the term ‘fiduciary’ shall not include guardians ad litem.
“The term ‘testamentary trustee’ as used in this act includes every person, except an executor, an administrator with the. will annexed, or a guardian, who is designated by a will or by any competent authority to execute a trust created by a will; and it includes such an executor or administrator where he is acting in the execution of a trust created by the will which is separable from his functions as executor or administrator.” CL 1948, § 704.1 (Stat Ann 1943 Rev § 27.3178 [251]).
“Every fiduciary before he enters upon the execution of his trust, and before letters of his authority shall be granted to him, and annually thereafter, shall give a bond, as provided- in section 8 of this chapter, to the judge of probate in such reasonable amount as he may direct with such surety or sureties as he shall direct and approve.” CL 1948, § 704.8 (Stat Ann 1943 Rev § 27.3178[253]).
It is apparent from the foregoing provisions of the probate-code that probate courts are thereby given jurisdiction by. statute over testamentary trusts, and are authorized and directed to require bonds of all said trustees before issuing to them letters of trusteeship. The statute does not except testamentary trusts which are for charitable purposes.
In Re Oliff’s Estate, 283 Mich 43, one Charles E. Taylor was nominated both as executor and trustee in the will of Thomas Cliff, deceased. He qualified as executor on December 4, 1926, but did not file a bond and receive letters of trusteeship from the probate court until July 14, 1933. In the interim, he assumed to act as trustee. This Court said:
“The statute, CL 1929, § 15865, is mandatory in requiring that:
“ ‘Every testamentary trustee before he enters upon his duties as trustee, shall give bond.’
“Mr. Taylor could not exercise, or have any power or authority to act as testamentary trustee until granted the letters of trusteeship on July 14, 1933.”
When a trustee is named in a will, the.probate court is not authorized to appoint any other person except in case of failure to qualify or 'other good cause shown. Gibney v. Allen, 156 Mich 301. A testamentary trustee can accept the trust and perform the duties of trustee only after filing the required bond. Wessborg v. Merrill, 195 Mich 556 (LRA1918E, 1074). An order of the probate court granting letters of trusteeship to trustees named in a will is necessarily a construction of the will, and is not subject to collateral attack. Chapin v. Chapin, 229 Mich 515.
We find nothing in PA 1915, No 280, supra, itself, relied on by appellants, to indicate that the circuit court in chancery should have exclusive jurisdiction pver a testamentary trust for charitable purposes, which would thereby nullify the express provisions of the probate code giving the probate court jurisdiction over testamentary trusts without exception. It is difficult to reconcile the claim of appellants, that the circuit court in chancery has exclusive jurisdiction over the trusts here involved, which admittedly are testamentary trusts, in view of appellants’ concession in their brief as follows:
“Without entering upon a discussion of a sometimes difficult question when the chancery court will take jurisdiction of a matter pending in the probate court, it suffices for our purposes to say that the probate court and the chancery court have concurrent jurisdiction of testamentary trusts, that each court derives its jurisdiction from separate statutory enactments now in force, and that such was the case at all times which are significant with respect to the matters considered in this appeal.”
As a general rule, statutes which can stand together, relating to the same subject, being in pari materia, should be construed together and effect should be given all of them. Rathbun v. State of Michigan, 284 Mich 521; Michigan Good Roads Federation v. State Board of Canvassers, 333 Mich 352. As construed by the circuit judge, the provisions of the probate code, supra, and those of PA 1915, No 280, can both be given effect without necessary conflict.
The precise question in this case has never been clearly decided by this Court. However, the Court has recognized the jurisdiction of the probate court over a testamentary charitable trust, and the right of that court to act where the question was raised. In Gifford v. First National Bank of Menominee, 285 Mich 58, a bill was filed in the circuit court in chancery to-determine the validity of certain charitable trusts set up in the will of the testator. A will which set up a charitable trust had been admitted to probate and, when the trustees therein declined to serve, the probate court appointed a certain bank and 2 named individuals as trustees. The will provided for a charitable trust. The residue of the estate, in excess of $210,000, was to be devoted to charitable uses, in part to further the practice of medicine, medical education, care of the sick, operation of hospitals, laboratories, and like medical institutions. In a bill in chancery the plaintiffs challenged the validity of the appointment of 2 of the trustees by the probate court, as well as their fitness to act. The circuit judge dismissed the bill of complaint, and on appeal this Court in effect affirmed the appointment of the 2 trustees by the probate court as follows: ,
“The first of these questions challenges the appointment by the probate court of Albert G-. Cherney and Cecil J. Scanlan as trustees. It is appellants’ contention that the charitable trust in the instant case is one- of the class included in CL 1929, § 13512 (Stat Ann § 26.1191), since there is some ‘indefiniteness or uncertainty of the object of such trust or of the persons designated as the beneficiaries thereunder in the instrument creating the same;’ and that, therefore, as' provided in the same section, in case a vacancy occurs in the trusteeship ‘then the trust shall vest in a court of chancery for the proper county, and shall be executed by some trustee appointed for that purpose by or under the direction of the court.’ See, also, CL 1929, § 13513. Appellants conclude that since the chancery court under the statute had jurisdiction of this trust, the appointment of the 2 trustees named by the probate court was void. For the purposes of this case it may be so conceded, but the record discloses that this case, including the trustees named, has already been before the circuit court of Menominee county in chancery and after full hearing a finding was made and a decree entered by the-circuit judge which in effect ratifies the appointment of these trustees, including an approval of their qualifications to act, and directs them to proceed with the execution of the trust.”
We are convinced by a consideration of the language of the title and sections of PA 1915, No 280, su pra, that it does not nullify the provisions of the probate code giving the probate court jurisdiction over the trusts here involved, as testamentary trusts. Prom a reading of said sections and particularly the title to said act, it is apparent that the legislature had in mind one objective, which was to prevent certain gifts, grants, bequests and. devises, whether in trust or otherwise, to religious, educational, charitable or benevolent uses, or for the care and maintenance of cemeteries, from being held invalid, by reason of indefiniteness or uncertainty of the object of the trust, or of the persons designated as beneficiaries thereunder, or by reason of the contravening of any statute or rule against perpetuities; and also for the regulation of the same by providing that if no trustee is named to execute the same, then the legal title to the lands or property devised or bequeathed shall vest in the court of chancery, with power to appoint a trustee where none is appointed or where a vacancy occurs. There can be little doubt but that said act was passed for the purpose of accomplishing the one result, namely, to save the charitable trusts mentioned therein from being invalidated for the reasons stated in section 1 of said act. By section 2 of the act the legislature, to carry out the provisions of section 1, has placed the jurisdiction in the court of chancery as being the proper court to handle such gifts, devises and bequests to religious, educational, .charitable and benevolent uses, or for the care or 'maintenance of cemeteries, when their validity was questioned for any of the reasons stated in section 1 of said act. Charitable trusts, created by testamentary devise or bequest, are included under the jurisdiction granted by statute to the probate court, and the same as other testamentary trusts, except in so far as PA 1915, No 280, supra, prevents the failure of certain charitable trusts for reasons therein stated, and then confers jurisdiction upon chancery courts to administer such trusts. .It is important to note that the jurisdiction of the chancery court has not been invoked in the present situation, under any claim of circumstances or conditions referred to in said PA 1915, No 280. Had that been done, the circuit court in chancery might have jurisdiction over these trusts, assuming that issues were raised to bring them within the purview of said act. This Court has decided many issues first raised in the circuit court in chancery by bills in chancery under testamentary trusts set up in wills, to adjudicate questions concerning. charitable trusts, to obtain a construction of such trust provisions, or to test their validity. The questions thus raised were within the purview of said PA 1915, No 280. For example, see In re Brown’s Estate, 198 Mich 544; Scudder v. Security Trust Co., 238 Mich 318; Greenman v. Phillips, 241 Mich 464; Wanstead v. Fisher, 278 Mich 68.
While the circuit court in chancery has jurisdiction to construe wills, incidental to its general power over trusts, MacKenzie v. Union Guardian Trust Co., 262 Mich 563, the jurisdiction of circuit courts in chancery over testamentary charitable trusts is not exclusive, nor does it deny jurisdiction of probate courts over such testamentary trusts. The testamentary trusts here under consideration are testamentary trusts as well as for charitable uses. If the jurisdiction of the chancery court had been invoked by a bill of complaint which would bring the case within the purview of PA 1915, No 280, the chancery court would have jurisdiction of a charitable trust under that act.
But the complete answer to appellants’ claim that the chancery court has exclusive jurisdiction is indicated by the Oliff Case, supra, where the chancery jurisdiction had not been invoked until about 7 years later, and not until after the one nominated as a trustee had received the trust fund and assumed his powers and duties, without bond or letters of trusteeship. The Court held that his acts were not those of a trustee of the fund during that time. In the 2 trusts now before us, in the absence of any proper proceeding in the chancery court, where its jurisdiction had been invoked by a proper party, obviously the only jurisdiction and control over the trusts must bo in the probate court. Absent the giving of bond, and the receiving of letters of trusteeship from that court, and until the jurisdiction of the chancery court had been properly invoked, the trusts might be carried on indefinitely, without proper authority from a court having jurisdiction of such testamentary trusts.
The probate court properly declined to authorize the executor to turn over the trust funds to the appellants until they had qualified and had obtained authority as trustees to receive and administer the trust funds. The probate court had the authority to order the trustees of said trusts to give bonds, qualify, and receive letters of trusteeship before they could receive the trust funds mentioned in said will.
Affirmed, but without costs, appellee not having-filed a brief in this Court.
Dethmers, Btjtzel, Carr, Bushnell, Sharpe, and Reid, JJ., concurred.
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Reid, J.
This is in effect a bill of complaint filed for construction of a deed in which the grantees are “Alfred Carothers and Delarma Hackett, or the survivor of them.” The decree of the trial court determined that plaintiff, the grantee of Hackett who survived Carothers, is the owner of the property. Defendant who claimed through Carothers, appealed.
The receiver of the. Citizens State Bank of Fife Lake on November 13, 1937, petitioned the circuit court for authority to sell the west half of.the southeast one-quarter and the southeast one-quarter' of the southeast one-quarter of sec 36, T 26 N, R 9 W, Union township, Grand Traverse county, Michigan, “to Alfred Carothers and Delarma Hackett, or survivor,” on executory land contract for the sum of $550, to be paid $150 down and with the balance of $400 to be paid thereafter in monthly instalments of $40 per month beginning January 1, 1938. Alfred Carothers was a brother of the plaintiff, Doris Rowerdink, and Delarma Hackett was a nephew of the plaintiff. The property had formerly been owned by the parents of Alfred Carothers • and Doris Rowerdink, and had been taken over by the bank on a mortgage foreclosure. Defendant is the widow of Alfred Carothers.
To effect the sale, a receiver’s deed was to be executed at once and placed in escrow with the receiver until the purchase money was fully paid. ' Authority was granted by the court to make the sale, November 18,1937 “to Alfred Carothers and Delarma Hackett, or the survivor of them.” The deed, exhibit No 4, was dated November 22,1937, 4 days after the order. The pertinent parts of the deed read as follows:
“This Indenture, made this 22d day of November, A. D. 1937, between L. G. Hammond as the duly appointed and acting receiver of the Citizens State Bank of Fife Lake, a banking corporation in receivership, as party of the first part and Alfred Carothers and Delarma Hackett, or the survivor of them, of Fife Lake, Michigan, as parties of the second part # * * Whereas, the said L. Gr. Hammond, as receiver * * * has sold the right, title and interest of said bank in the premises hereinafter described, at private sale, to the said parties of the second part, the said Alfred Carothers and Delarma Hackett, for the sum of $550 * * * in consideration of the sum of $550 to him paid by said parties of the second part, Alfred Carothers and Delarma Hackett, the receipt whereof is hereby acknowledged, the said parties of the second part [sic, party of the first part], as such receiver, does hereby grant, bargain, sell and convey unto the said Alfred Carothers and Delarma Hackett, or survivor, their heirs, executors and administrators as parties of the second part * * * To Have And To Hold the same with all the privileges and appurtenances thereunto belonging to the said parties of the second part, their heirs, executors and administrators Forever.”
This deed was not acknowledged until September 30, 1938, on which day it was signed. On that same day, September 30,1938, Delarma Hackett, not wanting to invest more in the land, and having said ho wasn’t interested in it and that he wouldn’t put any more money in it, deeded “all his undivided one-half interest” in the land to Doris Rowerdink, the plaintiff, “and to her heirs and assigns forever.” The receiver’s deed was recorded by Alfred Carothers November 5, 1938, and the Hackett deed was recorded the same day, November 5, 1938, and at the same hour, 10:30 a.m.
The plaintiff, Doris Rowerdink, after the death of her brother, Alfred Carothers, in 1948, secured a second quitclaim deed to the property in question from Delarma Hackett on April 9, 1949. Hackett outlived Alfred Carotliers and is still alive. Plaintiff also secured a quitclaim deed on October 20, 1949, from Georgia Carothers, her mother, after Alfred’s death.
Alfred Carothers and his wife, defendant Flossie Carothers, had no children; and as widow, defendant claims one-fourth interest in the land under the laws of descent and distribution, the said Alfred Carothers having left but 2 heirs-at-law: His mother, Georgia Carothers,-and his widow, Flossie Carothers,
As to the original conveyance granted to “Alfred Carothers and Delarma Hackett, or survivor, their heirs, executors and administrators,” defendant claims that:
“Under such a conveyance each are presumed to have an equal one-half interest. Hackett by conveying all his undivided one-half interest showed what his interest was. Mrs. Rowerdink, plaintiff, by accepting his deed confirmed and established what her interest was. Carothers by recording and keeping both deeds during his lifetime assented to the Hackett conveyance of a one-half interest and accepted the plaintiff as his cotenant. For 10 years nothing was done to change the cotenancy into a survivor-ship arrangement.”
Defendant further claims that if there was a joint tenancy, the deed of Delarma Hackett to plaintiff of September 30, 1938, during the lifetime of Alfred Carothers, destroyed the joint tenancy with the result that defendant inherited from her deceased husband Alfred Carothers an undivided fourth interest in the real estate described in the deed.
Plaintiff claims that the deed to the 2 grantees “or the survivor of them” created a tenancy for life in the named grantees and a remainder in fee to the survivor, and cites 4 Michigan eases in support of her theory.
In Schulz v. Brohl, 116 Mich 603, the grantees are “Peter Brohl and Christine Schulz * *■ * to them and the survivor of them.” We construed the deed, page 605, “to convey a moiety to each of these parties for life, with remainder to the survivor in fee.”
In Finch v. Haynes, 144 Mich 352 (115 Am St Rep 447), we held (per syllabus):
“A deed which conveys land to 2 grantees, ‘and the survivor of them, and to their heirs and assigns forever,’ conveys a moiety to each for life, with remainder to the survivor in fee, and neither of them, by conveyance during his lifetime, can create a tenancy in common, so as to cut off the contingent remainder.”
In Jones v. Snyder, 218 Mich 446, we held (per syllabus):
“Under a deed conveying land to 4 persons, ‘as joint tenants, and to their heirs and assigns, and to the survivors or survivor of them, and to the heirs and assigns of the survivor of them, forever,’ a joint tenancy for life in the grantees was created, with a contingent remainder in fee simple to the survivor, and, therefore, one of the grantees could not alienate his joint interest so as to cut off the contingent remainder.”
In Ames v. Cheyne, 290 Mich 215, we held, page 218:
“Where property stands in the name of joint tenants with the right of survivorship, neither party may transfer the title to the premises and deprive the other of such right of survivorship,” citing Schulz v. Brohl, supra, and Finch v. Haynes, supra.
Defendant accentuates the background of authorities cited in the Schulz Case said authorities cited in the Finch Case, and argues that the rule in those 2 eases inadvertently and erroneously crept into Michigan jurisprudence from jurisdictions having dif ferent statutes and problems relative to estates and in effect requests us to overrule those 2 cases as an improvement in the rules of conveyancing.
There is no necessity for overruling the 4 cases cited, by which a law of real property as to the right of survivorship has been established. We expressly reaffirm the rule as laid down in the 4 cases cited, as to the right of survivorship.
Defendant cites Taylor v. Taylor, 310 Mich 541 (157 ALE 559), as affording a rule of construction in accordance with which defendant claims that' the trial court in the instant case should have construed the deed under consideration, to have been intended to have a different effect than the trial court gave to the deed in the instant case. Defendant claims that the first deed made to plaintiff by Delarma Hackett was contemporaneous with the execution of the deed under consideration to Carothers and Hackett.
Defendant argues that Hackett’s deed of “all his undivided one-half interest” dated September 30, 1938, the same day as the acknowledgment of the deed in question, indicates his then understanding (as of September 30, 1938) of the meaning and intent in the transaction by which he became one of the grantees under the deed sought to be construed in this case. We think the reasoning of defendant erroneous. The intent with which Delarma Hackett entered into the transaction, could be gathered from the receiver’s petition filed for the purpose of giving Hackett and Carothers an opportunity to buy the property from the bank’s receiver, presumably filed with the knowledge and consent of Hackett and of Carothers; at least, Hackett and Carothers availed themselves of the benefit obtained by the petition, i.e., they bought the land from the receiver under the court’s order made in pursuance to the petition and dated November 18, 1937.
The circumstances relied on by defendant are without effect in construing the deed in controversy.
Defendant argues that the word “or” in the deed in question requires a different construction than would be required if the word “and” had been used instead of “or.” Indicating the incorrectness of defendant’s contention are In re Blodgett’s Estate, 197 Mich 455; In re Peterson’s Estate, 239 Mich 452; Forler v. Williams, 242 Mich 639; Block v. Schmidt, 296 Mich 610; Lilly v. Schmoch, 297 Mich 513.
After the death of Carothers, Hactett again conveyed to plaintiff, which later deed gave plaintiff title to the lands described in the deed in question.
We affirm the decree appealed from. Costs to plaintiff.
Dethmers, Butzel, Carr, Btjshnell, Sharpe, and Boyles, JJ., concurred.
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Butzel, J.
Since 1927, Eastwood Park Amusement Company, a Michigan corporation, plaintiff, has operated an amusement park at the corner of Eight Mile Road and Gratiot avenue in what was formerly the village of Halfway, Michigan, later incorporated as the city of Ea,st Detroit, Michigan. At that time the village of Halfway was a sparsely populated district but since has more than tripled in population. Eight Mile Road separates the city of Detroit from the city of East Detroit. The latter has become a city of many homes, some of which are across the road from the park and others in its immediate vicinity. Plaintiff secured licenses in accordance with the ordinances herein referred to.
In 1927, the village of Halfway enacted Ordinance No 67 regulating amusement parks as well as other forms of entertainment. This ordinance was superseded in 1939 by Ordinance No 49 of the city of East Detroit, pertinent portions of which are set forth in the margin.
The amusement park over the course of years represents an investment amounting to a very large sum,'.its assessed valuation for 1948 being in excess of $275,000. The large number of customers it attracted is shown by the fact that in 1947 the Federal admission tax amounted to $81,500. The amusement park company itself and through its concessionaires carried on many activities. For many years prior to 1948, it held a liquor license which evidently was not renewed because of the opposition of the city council. There was included in the park’s activities a roller coaster, also a contrivance that spun in the air and on which patrons took rides and was designated as a- “moon rocket ride,” and other rides. There were also a penny-nickle arcade, a swimming pool, a roller-skating rink, a ballroom, a midway freak show, et cetera. There were also a large number of various gambling devices openly conducted on the premises.
Evidently the conduct of the park became a source of annoyance and irritation to a very large number of the residents of the city and they strenuously objected to its continuance. A large number, however, favored the park as it employed several hundred persons and obviously brought many people to the city. Many meetings were held for the purpose of closing the park. It became a political issue. A large number of the residents believed that the park was demoralizing and a nuisance. The park was discussed at meetings of the parent-teacher association by Mildred Stark, the present mayor of the city, and a defendant herein. At some of the meetings 500 persons attended to protest against the continuance of the park’s activities. Just prior to May 11, 1948, the police made arrests and confiscated gambling paraphernalia consisting of moving rubber balls having numbers on them and charts on which the player placed his money; another one where the player put his money on a number, a wheel was spun and if it came to rest at the number selected by the player, he would win. There was a “pan” game of a somewhat similar character. From a reading of the testimony of plaintiff’s own witnesses at the hearing in the lower court, there can be no question that continuous gambling was going on. Previous to the granting of the 1948 license, officers of the corporation had been found guilty of violating the State laws forbidding gambling and had been heavily fined, notwithstanding the fact that plaintiff had disavowed any responsibility for gambling by its concessionaires. The claim was made that after the officers of plaintiff had pleaded guilty of the charge of gambling in the park, certain concessionaires had been told by the judge that they could continue gambling, provided customers were paid off with merchandise and not with money. There was no corroboration of this claim and we are not inclined to place any importance or credence whatsoever in it. The continuation of these gambling games even with the pay-off in merchandise instead of money is gambling. See Sproat-Temple Theatre Corp. v. Colonial Theatrical Enterprise, Inc., 276 Mich 127, in which we cited PA 1931, No 328, § 372 (Stat Ann § 28.604), which prohibits any lottery or gift enterprise within the State and’ the disposition of any property, real or personal, goods, chattels or merchandise, et cetera, by virtue of it, and provides punishment for violation thereof. For a very long period bingo games were conducted at the park by a concessionaire who paid $200 a week to plaintiff and a like sum to a well-known organization for the use of its name as sponsor. Plaintiff claimed that charitable and other nonprofit organizations were permitted to conduct bingo games with impunity. Even if this be true it does not in any way legalize bingo forbidden by law. Society of Good Neighbors v. Mayor of Detroit, 324 Mich 22. We have given only a brief statement of some of the facts in the case as disclosed at the hearing.
On May 12,1948, Mildred Stark, mayor of the city of East Detroit, caused a notice of revocation to be served on plaintiff. It.was stated therein that it was given in accordance with the authority vested in her by section 18 of the original ordinance of the village of Halfway and by section 18 of Ordinance No 49 set forth in the margin. It specifically quoted the words thereof “a mayor may revoke any license already issued for good satisfactory reasons.”. This was the only reason stated. Plaintiff immediately upon receiving the notice filed a bill of complaint to restrain the revocation, and the court issued a temporary restraining order effective until plaintiff had presented to the council its appeal from such order and the decision of the council had been filed with the court. Mrs. Stark, the mayor, the couneilmen and the city of East Detroit were made defendants in the case. In the amended bill filed by plaintiff it is shown that a hearing was held before the full council and the mayor presented 17 reasons why the license should be revoked. In the foregoing presentation of facts, we have only referred to a number of these reasons which, if true, would be sufficient reasons for revocation had proper notice been given. Counsel for plaintiff, who was present at the. meeting of the council spoke at length in opposition to the revocation for the reasons assigned therefor. The council by a majority vote of 3 to 1, approved the action of the mayor in revoking the license. In the amended bill filed by plaintiff to restrain the revocation of the license, the city, its mayor and members of the council are made defendants. Defendants filed an answer claiming that the license was properly revoked and also plaintiff, by acquiescence in the issuing of licenses, could not now attack the constitutionality of the ordinance. The judge after a full hearing entered a decree dismissing the bill. Plaintiff appeals.
Reviewing the testimony de novo, we find that a revocation of the license would have been fully and amply justified had proper notice been given. In justice to plaintiff it should be stated that when confronted with the revocation, or the threat thereof, it did offer to correct some of the nuisance features in the conduct of the park and that of the crowd that patronized the park. Under section 20 of the ordi nance, as set forth in the margin, licensees are required to deposit with the city weekly a sufficient sum to properly police the park under the control and direction of the city. The attorney for plaintiff offered, in accordance with the suggestion of the prosecuting attorney, to have the park provided with patrol cars and to pay for officers to patrol the streets and protect patrons who had to wait for buses and others, who were on the streets for several hours after the closing time of the park.
Plaintiff calls attention to the fact that the 1948 license was issued after the officers of plaintiff had been found guilty of gambling by the circuit court for the county of Macomb and claims, therefore, defendants should not have revoked the license for previous offenses. In Powers v. Secretary of State, 312 Mich 315, we held the secretary of State is not estopped to deny license to applicant automobile dealer for one year for reasons occurring prior to that year even if known by the secretary of State previous to issuance of former license. In that case the Court upheld the secretary of State in refusing to renew the license of a dealer in automobiles because of the findings of fact by the secretary of State as to the past acts of the- dealer. The testimony shows that gambling paraphernalia was seized but 3 days before the date of notice of revocation in the instant case.
Plaintiff’s main claim is that the revocation is of no force or effect because the notice stated that it was based upon section 18 of the ordinance of 1939, as set forth in the margin, and the notice quoted the clause in section 18 that the mayor may revoke any license already issued for “good satisfactory reasons.” Attention is called to the fact that arbitrary power may not be conferred upon public officers by ordinances and these very same reasons for revocation “for good satisfactory reasons” were found to be fatally defective in Postal v. Village of Grosse Pointe, 239 Mich 286. Attorney for defendants concede that section 18 in itself is void.
At tbe bearing of tbe instant case, tbe trial judge beld that section 18 of tbe ordinance as printed in the margin did not meet tbe constitutional test. He beld, however, that the other provisions of tbe ordinance were sufficient to fully justify tbe revocation and be beld that tbe revocation was legal and proper. Under tbe case of Postal v. Village of Grosse Pointe, supra, section 18 is insufficient in that it deprives tbe plaintiff of tbe legal safeguards it is entitled to before tbe license can be revoked. Plaintiff was entitled to proper notice of legal reasons for revocation and an opportunity for a prompt bearing. Tbe notice as given by tbe mayor revoking tbe license for good and satisfactory reasons did not set forth any other reasons. Section 18 in itself does not set up any standard and inasmuch as tbe subsequent action of tbe council simply upheld tbe mayor in her notice of revocation of tbe license, tbe notice of revocation was insufficient. Also, see Devereaux v. Genesee Township Board, 211 Mich 38; Samuels v. Couzens, 222 Mich 604; Harrigan & Reid Co. v. Burton, 224 Mich 564 (33 ALR 142). In tbe recent case of Prawdzik v. City of Grand Rapids, 313 Mich 376 (165 ALR 1165), we held (syllabus):
“A home-rule city commission may not revoke tbe license of a restaurateur which it bad theretofore issued pursuant to ordinance except on a specified showing after notice and bearing upon exact charges filed and upon finding that licensee either had refused to comply with tbe ordinance, was unable to do so, or was an habitual violator.”
Tbe judge in tbe instant case was correct, however, in stating that tbe ordinance contained other sufficient provisions so as to fully justify tbe revoca tion. of the license, without considering provisions of section 18. It will be noted that the case of Postal v. Village of Grosse Pointe, supra, referred to the issuance of a license, no question was raised in regard to the violation of the terms of the ordinance. In the instant case, sections 16 and 21 are complete in themselves in regard to revocation and section 19 refers to the issuance of a license. After eliminating section 18 in its entirety, the ordinance is complete in itself. Had a good and proper notice of revocation been given setting forth the specific violations of section 16, and that the city was proceeding in accordance with section 21 to revoke the license, and had plaintiff thereupon been given a prompt hearing, it would have satisfied the due process clause to which plaintiff is entitled.
It is the law of this State that if invalid or unconstitutional language can be deleted from an ordinance and still leave it complete and operative then such remainder of the ordinance be permitted to stand. Melconian v. City of Grand Rapids, 218 Mich 397, involved the validity of an ordinance regulating and licensing the operation of taxicabs. The Court held 2 sections of the ordinance were unconstitutional but that the remainder of the ordinance was good. The Court said:
“Except as herein pointed out, we think the provisions of the ordinance are valid and enforceable. The-sections or parts of sections which are invalid are distinctly separable from the remainder. Those held valid constitute in themselves a complete enactment, and may be enforced. City of Detroit v. Railway Co., 95 Mich 456 (20 LRA 79, 35 Am St Rep 580); People v. Armstrong, 73 Mich 288 (2 LRA 721, 16 Am St Rep 578); 28 Cyc p 372.”
Also, see People v. Eberle, 167 Mich 477; People v. McMurchy, 249 Mich 147.
The rule is stated in McQuillin, Municipal Corporations, 1947 Cum Supp § 862, as follows:
“Even without a severability clause, if the different parts of the ordinance are severable and independent of each other, and the provisions which are within the constitutional power of the legislature are capable of being carried into effect after the void part has been eliminated, and it is clear from the ordinance itself that it was the intent of the legislature to enact these provisions irrespective of the others, the unconstitutional provisions will be disregarded and the statute read as if these provisions were not there.”
In support of this statement he cites People v. Commons, 64 Cal App Supp2d 925 (148 P2d 724, 729), which relied on Hale v. McGettigan, 114 Cal 112, 119 (45 P 1049), which was cited with approval in Bacon Service Corp. v. Huss, 199 Cal 21, 33 (248. P 235, 240). The first of these cases involved an ordinance a part of which was held invalid and the California court, appellate division of the Superior Court, relying on the other two cases held that even though the ordinance contained no sever-ability clause the void parts if not dependent on any other parts of the ordinance nor essential to any other parts of the ordinance could be eliminated and the rest of the ordinance held valid and enforceable.
The license itself expires by its own limitation on May 1, 1949. Defendants contend that by the time an opinion is rendered in this Court the entire question will have become moot and, therefore, the question of revocation need not have our further consideration. We invited briefs on this question. Plaintiff contends that inasmuch as arrests have been made prior to May 1, 1949, and it appears that numerous further arrests will be made and that the mayor has openly proclaimed that she will grant no license to plaintiff for the current year, that though no specific relief can be given from the revocation, the validity thereof is important and should be discussed. It is quite obvious that neither the mayor nor the council will grant a new license for the one that has expired. Under section 1 of Ordinance No 49 a license is required annually, to be issued not later than May 1st of each year. The general rule is stated in 2 ALR2d pp 1239, 1242, which refers to a liquor license:
“Hence, in the absence of statutory provisions to the contrary, as a general proposition, the position of an applicant for the grant or renewal of a liquor license is not improved by the fact that he had been granted such a license in the past.
“Although, as regards liquor licenses, this rule is often supported by a reference to the fact that a State has the power to prohibit the liquor traffic altogether, it applies equally to other kinds of licenses which expire after a lapse of a specific period, such as licenses to operate an airport, a broadcasting station, a theater, or an automobile drivers school.”
In State, ex rel. Interstate Air-Parts, Inc., v. Minneapolis-St. Paul Metropolitan Airports Commission, 223 Minn 175, 187 (25 NW2d 718), relators applied for licenses to operate airports which were refused as defendant would not approve them as provided by statute. Relators had operated under prior licenses but not for the immediate preceding year. In upholding the refusal of the licenses the court said:
“A license confers upon the licensee the right to engage in the licensed business only for the term specified in the license. A prior expired license is functus officio and confers no rights upon the licensee named therein, except in certain cases where by statute it entitles him to a renewal upon compliance with specified conditions. State v. Hovorka, 100 Minn 249 (110 NW 870, 8 LRA NS 1272, 10 Ann Cas 398). Relators do not claim or have such statutory-license renewal rights. They are applying for new licenses. In such cases, their application for a license stands upon the same basis as if they never had been licensed (citing cases).”
See, also, Paron v. City of Shakopee, 226 Minn 222 (32 NW2d 603, 2 ALR2d 1227).
In Liggett Drug Co. v. License Commissioners of City of North Adams, 296 Mass 41 (4 NE2d 628), petitioners sought by mandamus to compel defendants to issue licenses for the sale of food as common victualers. Petitioners had held prior licenses and had invested considerable money in fixtures and facilities for such service and were applying for annual renewal of their licenses which were refused. The court denied any relief to petitioners on the ground that the reasons for the refusal were sufficient and saying:
“The petitioners had no right to a renewal of a license. Burgess v. Mayor & Aldermen of Brockton, 235 Mass 95,100 (126 NE 456). They were entitled only to fair treatment.”
In Bryant v. Detroit Common Council, 169 Mich 299, we said (syllabus):
“A saloon keeper was not entitled to a preference over other applicants for retail license because he had been engaged in the business during 1909, and during the year preceding his application, which he filed before April 15, 1911, 1,772 applications having been filed, of which the council of the city of Detroit granted the maximum allowed by law, i.e., 1,552. Mandamus does not lie in such case to compel the granting of relator’s application, which the council was authorized to reject under PA 1909, No 291.”
In Johnson v. Liquor Control Commission, 266 Mich 682, action of mandamus was brought to compel the liquor control commission to set aside an order revoking plaintiff’s license. In denying the writ the Court quoted the following with approval from People v. Schafran, 168 Mich 324:
“The licensee has no vested property right in his license; in fact, it would not be in the power of the legislature to make an irrepealable contract as to that which affects public morals or public health so as to limit the exercise of the police power over the subject matter. * * *
“We have already covered the first, second, and third requests to charge, and have said that a license to sell liquor is not a contract, but only a promise to enjoy the privilege on the terms named for a specified time, unless it be sooner revoked. The granting of a license is an exercise of police power, and does not include any contractual relations whatever. Stone v. Mississippi, 101 US 814 (25 L ed 1079). A license is a mere privilege to carry on a business subject to the will of the grantor, and it is not property in the sense which protects it under the Constitution. The revocation of a license does not deprive the citizen of his liberty or his property without due process of law.”
Case v. Liquor Control Commission, 314 Mich 632, was an appeal from an order of the liquor control commission revoking plaintiff’s license. In upholding the commission the Court said:
“Appellants further contend that inasmuch as a showing was made of a violation occurring in 1944, the Michigan liquor control commission did not have the power to revoke a license issued May 1, 1945, for the ensuing year. Good moral character in licensees is of paramount importance in determining whether the privilege of engaging in the liquor business, should be continued. No one has an inherent right to a license. It is a privilege granted by the State under proper restrictions and after careful examination.”
In Johnson v. Commissioner of Agriculture, 314 Mich 548, plaintiff sought to review proceedings revoking certain milk dealers’ licenses. In upholding the right to revoke or refuse renewal of such licenses as provided by statute the Court said:
“It is uniformly recognized that, if the legislature may require a license in the first instance for the carrying on of a certain business or occupation, provision may be made for refusal to renew such license, and for the revocation thereof on reasonable grounds. Such decisions do not rest on the theory of punishment for violation of statutory or regulatory requirements but, rather, on the basis of protection to the public. The power of revocation is subject to the limitation that it may not be arbitrarily exercised.”
In Morse v. Liquor Control Commission, 319 Mich 52, the Court said:
“Notwithstanding that the liquor business is entirely lawful, no one has an inherent right to a liquor license which is a privilege granted by the State under proper restrictions. Case v. Liquor Control Commission, 314 Mich 632. A liquor license is not a contract in the sense that the licensee has thereby acquired any vested or property rights, but is in the nature of a permit subject to the control of the State in the exercise of its police power. Fitzpatrick v. Liquor Control Commission, 316 Mich 83 (172 ALR 608).”
However, the question of the renewal of a license, strictly speaking, is not before us, although the petition for the restraining order indicates that we should enjoin all further arrests for activities of plaintiff or its concessionaires. We do hold that the license itself was not properly revoked; that the ordinance is good and valid with the objectionable section 18 entirely deleted, and that the remaining provisions of the ordinance provide that a li cense may be revoked; that the license expires by its own terms on May 1, 1949. Plaintiff in its petition for a stay has indirectly injected the question of the renewal of the license in its statement that there will be no renewal of the license. However, as the question of renewal is not strictly before us, no order will be made in regard to it.
A decree will be entered in accordance with this opinion. No costs will be allowed.
Bushnbll, Reid, North, Dethmers, and Carr, JJ., concurred with Butzel, J.
Sharpe, C. J., and Boyles, J., concurred in the result.
Ordinance No 49.
“Section 1. No person or persons, company or companies, shall exhibit or maintain in the city of East Detroit any circus, carnival, menagerie, play, game or theatrical exhibition, amusement park or concession, or give any concert, vocal or instrumental, or exhibit any natural or artificial curiosity, or give a show of any kind either free or for which pay is demanded or received, without a license from the council of the city, and for every license granted shall pay the license fee hereinafter specified. No fees may be abated or waived by the council under any circumstances. Where licenses are required annually, the same shall issue not later than May first of each year. * * *
“Sec. 11. The license fee for all amusement parks or amusement places, shall be the sum of $3,000 annually, payable in advance. The license to be issued only to the present company operating the amusement park and not to individual concessions. * * *
“Sec. 16. No person or company receiving a license under this ordinance shall permit any disorderly conduct, gambling or any game of chance or the use of any immoral, profane, or indecent language, or permit the sale, giving away, delivering, drinking or use therein of any kind of beer, wine, malt or intoxicating liquor, or beverage or any kind of beer, wine, malt or, providing beer and liquor may be sold if otherwise authorized by the city council by the granting of a liquor license or permit such place of amusement or exhibition to become and be a place of resort of thieves, prostitutes or other disorderly persons. * * *
“Sec. 18. The council may refuse to issue licenses to the parties and for the purposes aforesaid, and the mayor may revoke any license all ready issued, for good satisfactory reasons which shall be reported to the city council by the mayor at its first session following such refusal or revocation, that any party aggrieved by the action of the mayor in revoking a license may appeal to the city council, and upon due consideration by said city council, the action of the mayor may be reviewed, and the license or its revocation annulled upon a three fourths vote of all of the council elected.
“Sec. 19. Requirements: No such license shall be issued unless such place for which it is issued complies with all laws and ordinances and with all rules and regulations of the building department, the police department and the board of health and in the opinion of the mayor is a safe and proper place to be used as an amusement park or concession stand, and the consent of the neighborhood as required in the following section has been secured. Consent of neighborhood required: No amusement park shall hereafter be established or maintained within the city of East Detroit, unless a petition shall theretofore be filed with the council for at least 10 days, signed by 50 per cent, of the persons owning-property within a radius of 5,280 feet of the premises upon which it is desired to establish the amusement park.
“Sec. 20. The licensees shall also deposit with the city weekly, a sufficient sum to maintain a sufficient police force to he entirely under the control and direction of the city. Satisfactory arrangements also shall be made for the carrying of compensation insurance, old age pension, et cetera. All such ar rangements, together with all insurance, salaries, et cetera, shall be under the sole direction of the city council of the city of East Detroit, and may, from time to time, be altered by the city council as in their discretion shall see fit.
“Sec. 21. Any violation of this ordinance shall be cause for any revocation of any license issued, and shall be punished by a fine not to exceed the sum of $100 and by imprisonment in the city jail or the county jail for a period not exceeding 90 days, or either, in the discretion of the court, and in the imposition of a fine only, the court may make a further sentence that the offender be imprisoned until such fine is paid, but for a period not exceeding that provided herein.”
CL 1948, § 750.372. — Reporter.
In reviewing this ease, we are mindful of our own records where we refused a writ of habeas corpus less than a year prior to the revocation in question in this ease. The secretary and treasurer of plaintiff corporation was denied the writs of habeas corpus and certiorari in a case in which he was adjudged guilty of contempt in the circuit court for the county of Macomb, and where the judge in his return to this Court certified that the petitioner had been and was one of the persons connected with the operation of Eastwood Park, and during the course of the previous 6 years slot machines and other gambling equipment had been in use in Eastwood Park, and, further, that in August, 1944, when it was learned that raids would be made and certain gambling machines be confiscated the following day, other, less valuable machines were substituted to be taken away by the police and destroyed. We refused to grant the writs. This, however, was not called to the attention of the trial court at the hearing but we cannot overlook our records. See Pile 43,839-1/2 Supreme Court records. | [
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Dethmers, J.
Presented is the question of the validity of an order appointing a receiver in a divorce case.
On August 23, 1949, plaintiff filed her bill for divorce and obtained an injunction restraining defend ant from disposing of his property. On September 15, 1949, she obtained an order for temporary alimony in the amount of $15 per week for support of herself and a minor child. On September 21, 1949, defendant petitioned for modification of the injunction to permit him to mortgage any of his property to raise funds for redemption from tax sale of property occupied by the wife and moved that the alimony order be vacated on the grounds that defendant was not the father of the minor child and that plaintiff was receiving a substantial income from the property occupied by her and owned by defendant. Hearing on defendant’s petition was had on September 26, 1949. Plaintiff testified that her income' from said property was $165 per month and that her expenses totaled $175 monthly. The, court found that her figures relating to expenses were erroneous and that the mentioned income afforded sufficient support. Defendant testified that said property, aside from quarters occupied by plaintiff, had produced $360 per month when he had been in charge of it; that it had been sold on tax sale; that he did not know how many pieces of property he had, but that they were listed in his cross bill; that the county had a lien on all his property by reason of his business as a professional bondsman; that he had made no payments on the temporary alimony order entered 2 weeks before. It also developed in'open court that purchasers of property under a land contract from defendant had completed payments and that defendant was willing to give a deed but plaintiff refused ■to sign it. Although neither party to the case had requested it, the trial court, at that juncture, ordered appointment of a receiver to take over and control defendant’s assets. The court stated as its reasons for such appointment; (1) the necessity for ascertaining the extent of defendant’s property holdings; (2) the danger that at least one piece of property would be lost for nonpayment of taxes; (3) that-persons purchasing from defendant under land contract had been unable to obtain a deed when entitled thereto ; (4) that defendant was not supporting the minor child, whose paternity defendant denied; (5) that a receiver would be able to collect rents, pay- debts, obtain discharge of liens, and “take control of all of this property and clean it up.”
On May 4,1950, the receiver filed his final account, which listed all of defendant’s real estate holdings and disclosed that the doings of the receiver consisted of the collection of $1,331.63 on a land contract, the expenditure of approximately $160 in connection with that transaction, the payment of about $400 to a loan company and retention of a cash balance of over $700. Despite sizeable assets, the account reveals no payments by the receiver for support of the plaintiff or minor child, nor for redemption or saving of any of defendant’s property.
On August 18,1950, the receiver filed a petition for determination of his fees. The court -then took the receiver and the defendant into his .chambers and made it clear to defendant that the receiver' was going to be paid and that $2,000 was the amount asked. A fee of $1,500 was arrived at, defendant agreeing because it was better than $2,000, not because he felt he owed it.
“An order was entered allowing such a fee and further authorizing the receiver to mortgage property of defendant to pay said fee.”
On December 15, 1950, defendant filed a motion requesting that the order appointing a receiver be vacated and set aside for the reasons, inter alia; (1) that the court had been without jurisdiction to appoint a receiver; and (2) the appointment amounted to an abuse of discretion. Plaintiff did not oppose the motion, hut the court appointed counsel to represent the receiver (also an attorney) in opposition to defendant’s motion.' An answer was filed, consisting merely of a denial of defendant’s allegations. From an order denying his motion defendant, upon leave granted, took this appeal on June 26, 1951. Plaintiff has taken no part in the appeal. In the meanwhile, a decree was entered on January 2,1952, denying a divorce to either party, hut providing that the cause should not be dismissed until determination by this Court of the legality of the receivership.
CL 1948, § 552.27 (Stat Ann § 25.105), provides as follows :
“In all cases where alimony or allowance (for the support and education of minor children) shall be decreed to the wife, the amount thereof shall constitute a lien upon such of the real and personal estate of the husband as the court by its decree shall direct, and in default of payment of the amount so decreed the court may decree the sale of the property against which such lien is decreed in the same manner and upon like notice as in suits for the foreclosure of mortgage liens; or the court may award execution for the collection of the same, or the court may sequester the real and personal estate of the husband and may appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate to be applied to the payment thereof or the court in lieu of a money allowance may decree such a division between the husband and wife of the real and personal estate of the husband or of the husband and wife by joint ownership or right as he shall deem to be equitable and just.”
"When the receiver was appointed the situation contemplated by the statute was not before the court. There was no decree of divorce; the order for temporary alimony at the rate of $15 per week had been entered a scant 2 weeks before and plaintiff was in possession of property of defendant affording her an income greatly in excess thereof. If, as claimed, courts of chancery are possessed of an inherent power, independent of the statute, to appoint receivers in divorce cases, no showing was made to warrant its exercise in this case. The mere fact that the court may have thought that a receiver could do a better job of handling defendant’s property, than the latter could himself, or that he appeared uncooperative on the witness stand when questioned about the extent of his holdings, or that purchasers entitled to a deed could not obtain it, constituted no grounds for appointment of a receiver in a divorce action. There was no showing that defendant was likely to dissipate or dispose of his property to the extent that plaintiff’s rights or those of the child would be prejudiced or that sequestration was necessary to secure payment of temporary alimony as ordered. The suggested need for a receiver'to save defendant’s property from loss was not established on hearing and is refuted by the receiver’s final account. The appointment amounted to an abuse of discretion.
On appeal the receiver urges for the first time that defendant is estopped from questioning the validity of the appointment because of his failure to challenge it for over a year and his agreement in chambers to a receiver’s fee of $1,500. The facts in connection therewith are best left without comment. Suffice it to say that the receiver cannot be heard to claim an estoppel for the first time on appeal in this Court.
The order appealed from is reversed and the order appointing a receiver is vacated, set aside and held for nought. Costs in this Court are awarded to defendant against the receiver.
Butzel, Carr, Bushnell, Sharpe. Boyles, and Reid, JJ., concurred.
The late Chief Justice North did not sit. | [
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Boyles, J.
This is an appeal by the State from a circuit court judgment denying the State’s claim for inheritance tax in the estate of Gustave A. Stahl,, deceased. The transfer on account of which the-State claims an inheritance tax consists of proceeds from the sale of real estate located in Illinois.
Gustave A. Stahl, a resident of Allegan county in this State, died in 1947 and Irving J. Tucker, the appellee herein, was appointed administrator of his estate. The decedent had been and at the time of his death was a beneficiary in a trust set up in Illinois for certain Illinois real estate. Tucker, as administrator, petitioned the probate court for an order determining no inheritance tax was due, claiming that any transfer under said trust was not subject to the Michigan inheritance tax. The judge of probate held that the transfer of the decedent’s beneficial interest in the Illinois real estate was subject to the Michigan inheritance tax. Tucker, administrator, appealed to the circuit court from such order, and the circuit judge reversed the determination and held that there was no transfer subject to the tax. The Michigan department of revenue, by- the attorney general, appeals from the order and judgment entered in the circuit court to that effect.
The ■ essential facts are not in dispute. In 1922, one John G-. Stahl entered into a trust agreement with the Chicago Title & Trust Company under which the trust company agreed to take title to certain real estate in Cook county, Illinois, and hold it for the use and benefit of John Gr. Stahl during his lifetime and, at his death, for the benefit of Frank A. Stahl. It provided that the interest of the beneficiary should consist solely of a power of direction to deal with the title to said property and the right to receive the proceeds from rentals, or sales, that such right be deemed to be personal property, that ■in case of the' death of any beneficiary his or her right and interest should pass to his or her executor or administrator, and not to his or her heirs-at-law; that no beneficiary should- have any right, title or interest in said real estate as such, but only an interest in the proceeds, it being the intention to vest the full legal and equitable title to the premises in the trust company. The trust agreement further provided that while the trust company should be .the solé owner oh the real estate, .it would deal with it only when authorized to do so in writing by the , ben'eficiary, whereupon it might make deeds for, or otherwise deal with the title to, the real estate. The beneficiary was to have the management and control of the property, should handle the rents and the proceeds of any sales of said property, the trust company was not to be called upon to do anything in the management or control of said property except on the written direction of the beneficiary. Reasonable compensation for the services of the trust company was provided for.
On October 25, 1930, Frank A. Stahl, after the death of John Q-. Stahl, designated Gustave A. Stahl as beneficiary, in accordance with the agreement.
On May 22, 1945, subsequent to the death of Frank A. Stahl, Gustave A. Stáhl and the trust company executed an amendment to the trust agreement which in substance confirmed the agreement, that the trust company should hold title to the real estate for the use and benefit of G-ustave A. Stahl; that, upon his death, all his rights and beneficial interest should pass to the board of directors of the Mother Church of Christ, Scientist, of Boston, Massachusetts. Gustave A. Stahl reserved the right to change said beneficiary; however, he never did so. The term of the agreement was extended, the compensation of the trust company was increased, and the other provisions of the original agreement were, without substantial change, confirmed.
The property subject to the trust agreement con■sisted solely of real estate within the State of'i Illinois. It was held and used exclusively within the State of Illinois. The locus and. legal owner-4 ship of said real estate was at all times in Illinois. .Any written direction by Gustave A. Stahl pursuant to the agreement with the trust company was effective only by delivery to the trust company in Illinois.
After the death of Gustave A. Stahl, the trustee sold the real estate and delivered the proceeds to the First [Mother] Church of Christ, Scientist, in Boston, Massachusetts. Under the foregoing circumstances, the circuit judge held that the State of Michigan was not entitled to levy an inheritance tax upon the interest of Gustave A. Stahl in said trust, essentially on the ground that it was a trust in Illinois real estate.
The State department of revenue in answering appellee’s petition in the probate court admitted that the property subject to the trust agreement
“consisted solely of real estate within the State of Illinois and that the property (referring to the real estate) was held and used exclusively within the State of Illinois; * * *
“That the legal ownership, presence and control of the property (referring to the real estate) were at all times within the State of Illinois exclusively;' * # #
“That any written direction by Gustave A. Stahl pursuant to the trust agreement with the title company was of no effect whatsoever until delivered to the title company within the State of Illinois. * #
“That PA 1899, No 188, § 1, third, as amended '(Michigan inheritance tax act), taxes only transfers To persons or corporations not exempted by law in this State from taxation on real or personal property,’ * * *
“But avers affirmatively that the State of Michigan has jurisdiction to levy a tax under PA 1899, No 188, as amended, on the transfer of Gustave A. Stahl’s beneficial interest in the trust agreement.”
We are in accord with the conclusion of the circuit judge that Gustave A. Stahl held an interest in Illinois lands, which interest is not taxable for an inheritance tax in this State. It was so held in Senior v. Braden, 295 US 422 (55 S Ct 800, 79 L ed 1520, 100 ALR 794). In that case the court held that a State was without power to subject to tax the beneficial interests represented by the certificates (intangible property) in rents or interests in land situate either within or beyond its borders, or, consistently with the due process clause of the Fourteenth Amendment, tax as intangible property of a resident of the State land trust certificates representing interests in various parcels of land either within or outside the State, the holder of which is entitled to a share of the net income and, upon a sale of the property, of the proceeds of sale.
In the Stahl trust, the beneficiary Gustave A. Stahl possessed all the attributes of an owner of the fee except the power to sign instruments of conveyance. As to that, he had the power to direct a conveyance by the trustee. His interest in the land in the instant case was at least as much, if not more, an interest in land than the facts disclosed in Senior v. Braden, supra. He could revoke the trust, change the beneficiary, had the active management of the real estate, paid the real estate taxes, collected the rents. In short, the trustee carried out only the directions of the beneficiary. His interest in land in various respects was greater than the facts disclosed in Senior v. Braden, where the court held that the interest was in lands and not taxable. It is apparent in this case from the trust agreement that the parties intended that the beneficiary should actively manage the property and that his relationship to the property should carry all the qualities of ownership ordinarily enjoyed by an owner of real property except the right to sign the ordinary instruments of conveyance.
Appellant’s main contention is that the nature of Gustave A. Stahl’s interest must be determined according to the law of Illinois and, hence, is to be considered as personal property. The answer is that the Braden Case, supra, deciding the question under the Fourteenth Amendment to the United States Constitution, has held contrariwise, under circumstances similar to the ease at bar, as follows (syllabi):
“Where the validity of a State tax is challenged under the Federal Constitution, this court must determine for itself the nature and incidence of the tax. * * •
“The attempt of Ohio to subject the beneficial interests represented by the certificates to a tax imposed on ‘investments’ and other intangible property, measured by a percentage of the income yield — investments being so defined by the statute as to include equitable interests in land and rents divided into shares evidenced by transferable certificates— is unconstitutional both in respect of such interests in land outside of the State and of those in land within the State.”
Incidentally, the question of double taxation referred to in the Braden Case, supra, has not been raised as one of the issues in the case at bar. Whether imposition of the inheritance tax by. the State would result in double taxation need not be considered, in view of our conclusion herein. Here we have the single question whether, under the circumstances of this case, the interest of Gustave A. Stahl in the .trust was taxable as a beneficiary’s interest in land, under the Fourteenth Amendment to the United States Constitution.
. . The judgment of the circuit court is affirmed and the case remanded to the circuit court for return to the probate court with directions to enter an order in accordance therewith. No costs, a question of public interest being involved.
Dethmers, Btjtzel, Carr, Bushnell, Sharpe, and Reid, JJ., concurred. •
The late Chief Justice North took no part in this decision.
See CL 1948, § 205.201 (Stat Ann 1947 Cum Supp § 7.561).— Reporter. | [
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Dethmers, J.
Plaintiff filed a bill of complaint praying that the entire probate proceedings and particularly the order assigning residue in the estate of Katherine C. W. Patterson, deceased, hereinafter called testatrix, be set aside and held for nought for lack of jurisdiction because plaintiff had not been served with notice in the proceedings, that the circuit court construe the will of testatrix, and that plaintiff be decreed to be entitled to the entire residue and remainder of the estate as sole heir at law. From decree which failed to grant plaintiff relief as prayed but awarded the residue and remainder, 1/2 to plaintiff and 1/2 to the surviving husband of testatrix, plaintiff appeals.
When testatrix died the only relatives left surviving' her were plaintiff, who was a half sister, and the husband, Richard E. Patterson, since deceased, the executrix of whose estate is named as one of the parties defendant. By will testatrix devised and bequeathed the use of her estate to her husband as trustee and executor, empowering him to sell and convey assets of the estate when he deemed it for the best interests of the trust, the proceeds to be placed in funds of the estate and the trustee to 'give bond for the faithful performance of his duties as such. The .will directed payment of expenses of the estate and its management, to be paid out of income, the balance of income .to be used by the husband for his personal use so long as he should live. At his death the will provided for a successor trustee to complete distribution of the estate. There followed 5 small, specific bequests to others, conditioned upon the beneficiaries being alive or in existence at termination of the trust. The will concluded by giving the husband the use of the home and furnishings as long as he should live, or, in the event he should elect not to occupy it, the net income therefrom, and, if not-so-used, the furnishings were to be sold and proceeds placed in the account of the estate. The will did not provide for -remainder over after termination' of the life estate 'nor make disposition of the residue or remainder. Neither did it mention plaintiff or otherwise refer to heirs.
The husband now having died, the question presented is whether the entire residue and remainder goes to plaintiff alone or half to plaiijtiff and half to the husband or his heirs.
Plaintiff claims that testatrix, in giving to her husband the use and net income of her estate for life, clearly expressed, by tbe terms of her will, an intent that he should take nothing beyond the life estate. Plaintiff contends such intent is further emphasized by the provision that upon the husband’s failure to use the household furnishings during his lifetime they were to be sold and the proceeds placed in the estate account. In support of this contention plaintiff cites Bailey v. Bailey, 25 Mich 185, and In re Churchill’s Estate, 230 Mich 148. In both cases the will expressly disposed of the residue or remainder in question — in the Bailey Case “to my lawful heirs” and in the Churchill Case “to be disposed of under the laws of the State of Michigan.” In the Bailey Case the claim of testator’s widow to a life interest in certain lands not specifically devised depended, under the statutes then in force, upon her establishing that the husband had intended to die intestate in relation thereto. This Court found from the entire will that he had not so intended and, hence, that the widow was entitled only to the specifically devised life estate in certain lands as provided in the will and'no more. In that case and more particularly in the Churchill Case .the question of whether,a life tenant (in the former case a wife; in the latter a daughter) was entitled to share in the remainder, under a residr uary clause devising same-to testator’s heirs, may be considered to have been treated as dependent upon ■whether the remainder vested at testator’s death or upon termination of the life estate. In both cases the fact that the will provided that the corpus, or so much thereof as might be necessary, should or might be expended for the care and support of the life tenant, leaving it a matter of contingency what, if any, remainder or residue would be left for distribution, appears to have been persuasive to this Court .that the testator intended vesting thereof to be deferred until termination of the life estate, at which time the life tenant, no longer living, could not be considered to be included among those described in the residuary clause as testator’s heirs at law. So considered, the cases are clearly not in point here. In the instant case only the use and net income of the estate was devised and bequeathed to the husband for life by express terms of the will, and he was not permitted to expend any portion of the corpus for his own use. Under such' circumstances, no reason exists nor intention can be said to appear in the will, as in 'Bailey and Churchill, for nonadherence to the general rule that the law favors the earliest possible vesting of estates. In support of that rule see cases cited in the Churchill Case. The case at bar must, then; be considered as following within the lines of State v. Holmes, 115 Mich 456, and In re Shumway’s Estate, 194 Mich 245 (LRA1918A, 578). In the Holmes Case the husband’s will gave the wife a life estate in lands, with a devise of the remainder which this Court found' to be invalid. Having concluded that the remainder was, thus, intestate property, this Court held that the wife could take in relation thereto as an heir at law. In Shumway the husband devised his real estate to his wife for life and after her death to his legal heirs in accord with the statute. In holding there that the wife was entitled to share in the residue and remainder, this Court expressly rejected the very argument here advanced by plaintiff, that the devise of a life estate to the spouse disclosed an intent to bar the latter from sharing in the remainder,-and said, in language decidedly applicable here, the following:
“The fact that a life tenant can never come into the remainder does not change the time when title to the remainder vests. * * *
“We find no confusing provisions in the first paragraph of testator’s will to which well-seasoned rules of construction are inapplicable. His wife, to whom he gave a life estate in the realty, was one of his several legal heirs amongst whom he directed division of the remainder in fee ‘according to the provisions of the statute.’ The will spoke at and'took effect from the time of his death, at which time, under the statute to which he made reference, the legal heirs were to be determined and title to their interests vested in them, unless undoubtful language in the will plainly provided otherwise. The only words of futurity found are of a kind presumed to relate particularly to the time of enjoyment of the remainder, rather than when the estates shall vest, and are to be so construed. The fact that by the will the widow took both a life estate in the whole and a fee to the half was not an-inconsistent or repugnant provision, but simply operated to merge her 2 estates as to the one-half, investing her with an absolute title in fee to that portion.
“It, however, is strenuously urged that the intent, of the testator as expressed in the will, taken as a whole, plainly indicated otherwise and under the cardinal rule of construction the manifest intent of the testator should govern. Of this rule of construction there can be no question, but the intent must be tangibly expressed somewhere in the instrument in such language as plainly conveys the thought beyond mere surmise, conjecture, or supposition, and makes evident that Nathan Shumway intended that his wife should be disinherited as to the half of the real estate which the law gave her, and his distinct direction that his real estate, subject to the life estate, be divided amongst his legal heirs (of whom she was one) according to the provisions of the statute should be ignored. * * *
“That he intended to leave her what the statute would have given her and a little more-is, we think, as reasonable an-inference from this will, considered in its entirety, as that he intended to exclude her from this substantial interest in the real estate which the statute gave her.”
We hold that a half interest in the residue and remainder vested in the husband at testatrix’s death. Other 'errors and defects complained of by plaintiff need not be considered inasmuch as they did not, in view of our holding above, operate to prejudice plaintiff’s rights.
Decree affirmed, with costs to defendants.
North, O. J., and Btjtzel, Oarr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Carr, J.
The parties to this case were married in August, 1945, and separated in November, 1949. One child was born of the marriage, a son now 6 years of age. Following the separation plaintiff instituted suit for divorce and defendant filed a cross bill asking like relief. Answers to said pleadings were filed and the case proceeded to trial. Following the introduction of part of the proofs the parties stipulated in open court for the withdrawal of plaintiff’s bill of complaint and his answer to the cross bill, and to permit defendant and cross-plaintiff to proceed on her cross bill, with the matters of property settlement and support of the minor child .of the parties subject to determination by the court.-
On the submission of the proofs the trial court granted a decree of divorce to the cross-plaintiff awarding her the custody of the child and requiring cross-defendant to pay $10 per week for the support thereof. Cross-plaintiff was also given the household furniture, with certain minor exceptions. The home of the parties, which they owned as tenants by the entireties, was ordered to be sold at public auction under the direction of a circuit court commissioner of the county, and the proceeds divided equally between cross-plaintiff and cross-defendant. .The provision so made for cross-plaintiff was declared to be in lieu of her dower rights and in full satisfaction of all her claims in property owned by the cross-defendant or which he may hereafter ac-i quire.
Cross-plaintiff has appealed, claiming that the .provisions of the decree relating to the sale of the home and the equal division of the amount realized therefrom are not in accord with her just rights. The other provisions of said decree are not questioned. Appellant emphasizes the fact that at the time of the marriage she owned the property in question, subject to a mortgage. The record indicates that the home was not fully completed at the time, and it is the claim of cross-defendant that he expended money and labor in improving the property, thereby enhancing its value. It further appears that he made substantial payments on the mortgage. By action of the parties title was vested in them as tenants by the entireties.
On the trial in circuit court it was the claim of cross-defendant, in substance, that the value of his labor on the property, together with the expendi tures made by Mm, equalled or exceeded % the present net value of tbe equity of the parties in the property, which is approximately $11,000. Cross-defendant testified, also, that the value of the home at the time of the marriage was approximately $3,500. Such estimate and the claim as to the amount of the increase in value due to cross-defendant’s labor and expenditures are challenged by appellant. The opinion of the trial judge indicates that he-decided the disputed issues of fact in favor of the cross-defendant. His conclusions are fully supported by the record. He was in better position than is this Court to pass on the credibility of the 'witnesses in the case.
The division of property in a divorce case must be determined on the basis of the facts established by the proofs. It is not governed by any mathe.matical formula or by fixed rules. Tyson v. Tyson, 283 Mich 192; Cooley v. Cooley, 320 Mich 209. It is apparent from the record that the trial judge considered carefully and fully the testimony before him and the claims of the parties. We are not prepared to say that had we been in his position we would have reached a different conclusion. It cannot be said that the property division decreed is not in ■accord with the just rights of the appellant.
In Chubb v. Chubb, 297 Mich 501, 506, it was said:
“While we are not restricted by the findings of the circuit court, a divorce case on appeal being heard de novo, especial consideration is given to such findings, so largely based upon the credibility of the witnesses, and the reviewing court ought not to reverse the determination of the trial court in such a case, unless convinced that it must have reached a different conclusion had it occupied the position of the lower court, under like circumstances. Brookhouse v. Brookhouse, 286 Mich 151; Stratmann v. Strat mann, 287 Mich 94; Westgate v. Westgate, 291 Mich 18.”
The language, above quoted, is applicable under the facts in the case at bar. The decree is affirmed, but in view of the nature of the controversy no costs are allowed.
North, C. J., and Dethmers, Btjtzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.' | [
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