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Cooley, C. J.
Application is made in each of these cases for a writ of mandamus to compel the allowance and payment by the board of supervisors of sums which have been allowed in favor of the relators by the board of health of the township of Boardman in cases of small-pox.
The claims of relators arise under certain statutory provisions, which are found in sections 1647, 1650 and 1655 of Howell’s Compilation, which are given in the margin.
Farnsworth’s claim is for the use of his house, and the care and nursing therein of one Barager, who was afflicted ■with the small-pox, and died there with that disease. Also for the destruction of infected furniture, which he alleges was destroyed by the order of the township board of health. The claim was allowed by the township board of health at the sum of $413, but the supervisors, as petitioner avers, declined to allow any part thereof.
The supervisors, in response to an order to show cause, return that before the relator took Barager to his house, his house had become infected by his child having the small-pox therein; that Barager was brother-in-law to relator, and was taken from a place where he was sick with the disease to the house of relator while the house was so infected; that a claim for the care and nursing of said Barager has been separately presented to and allowed by the respondent, and respondent denies that relator suffered injury from Barager being at his house under the circumstances. The respondent denies that the furniture of relator was destroyed by order of the township board of health, and says the destruction was by order of a person not a member of the board. The case is left to stand upon the answer, which must therefore be deemed true, and it seems fully to meet the application.
Askam’s claim is for services as a physician. He is a member of the township board of health, and it seems that that board fixed his compensation at ten dollars a day. Tlie service, he says, was performed under “ a resolution, in which said board agreed to allow to your petitioner the sum of ten dollars per day for the care and treatment by your petitioner of said small-pox patients, which compensation your petitioner agreed to take.” Iiis bill was allowed by the township board of health at $520, and the respondents allowed him $74 only.
The respondent, for answer, after raising the question whether the county is liable for the allowance agreed to be made to relator as a member of the township board of health, says that ‘‘after examination and investigation said board reached the conclusion that the greater portion of the persons so infected with small-pox, or the persons liable for their support, were sufficiently able to pay for the medical attendance and necessaries furnished them by the relator, and that the time spent and necessaries furnished by the relator to persons who were themselves unable to pay the same amounted to seventy-four dollars at the rate established by said board of health, which said sum of seventy-four dollars was then and there allowed by said board of supervisors to said relator.” The question of the pecuniary ability of the persons themselves to pay was one of fact, to be passed upon by the supervisors (People v. Supervisors of Macomb Co. 3 Mich. 475, 478), and having been decided adversely to the relator is conclusive in this proceeding. Whether it was competent for the board of health to employ its own members, and then fix conclusively the compensation to be made by the county, is a question of no little importance, but we do not enter upon it here, it being unnecessary to do so.
Rowe’s claim is for the use of a building taken by the board of health for a hospital. For its use that board allowed $350. The respondent allowed $152.50 only. The reason assigned for not allowing more is the same as in the case of Askam, and is equally conclusive.
I see no ground for awarding a writ of mandamus in either case. No costs will be awarded.
The other Justices concurred.
Sec. 1647. When any person coming from abroad, or residing in any township within this State, shall be infected, or shall lately before have been infected with the small-pox, or other sickness dangerous to the public health, the board of health of the township where such person may be, shall make effectual provision in the manner in which they shall judge best for the safety of the inhabitants, by removing such sick or infected person to a separate house, if it can be done without danger to his health, and by providing nurses and other assistance and necessaries, which shall be at the charge of the person himself, his parents, or other person who may be liable for his support, if able; otherwise, at the charge of the county to which he belongs.
Sec. 1650. Any two justices of the peace may, if need he, make out a warrant under their hands, directed to the sheriff, or any constable of the county, requiring him, under the direction of the board of health, to remove any person infected with contagious sickness, or to take possession of convenient houses and lodgings, and to provide nurses, attendants, and other necessaries, for the accommodation, safety, and relief of the sick.
Sec. 1655. Whenever the sheriff or other officer shall take possession of any houses, stores, lodgings, or other necessaries, or shall employ any nurse or attendants, as provided in this chapter, the several parties interested shall be entitled to a just compensation therefor, to'be paid by the county in which such person or property shall have been so employed or taken possession of. | [
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Cooley, C. J.
This is an action of replevin for a horse, buggy, harness, lap-robe, blanket and whip. The plaintiff’s' •case was that he bought the articles of one Theodore Schultze, who gave him a bill of sale, reserving possession for six months. Plaintiff testified that during the six months he was to have the use of the articles whenever he desired. Within that time they were seized by the defendant, who is a deputy-sheriff, and who claimed to take them as the property of Schultze’s wife against whom he had an attachment. The Superior Court held that the plaintiff did not have the right of possession, and therefore could not maintain the •action. Also that the defendant was entitled to recover for the value of the use of the property while the plaintiff held it under the writ of replevin ; and the defendant was awarded $71.50 for the value of such use.
The court was in error both on the main question in the case, and on the question of damages. If the plaintiff had a right to the use of the property at will, he had a right to replevy it from a wrong-doer (Bassett v. Armstrong 6 Mich. 397), and the defendant was a wrong-doer if the plaintiff was •owner of the property. But whoever was owner of the property the defendant had no claim to such damages as were awarded to him. He set up no right to the property except finder his writ; and while holding it under his writ he had no right to make use of. it. He had therefore no right to recover damages for having been deprived of the use. The suggestion made on the argument that he ought to recover such damages because he may be liable to respond to somebody else for the use of the property in case his levy for any reason shall fail to protect him, is one the force of which we cannot admit. If the defendant is right in his claim that the property belongs to Mrs. Schultze, he may be justified in taking it, though he would have no legal right to make use of it for profit; if both parties are wrong in their claims, and defendant is in fact a wrong-doer as to some third person, it need only be said that the fact does not appear by this record, and if it did, it could form no basis for investigation or judgment in this suit.
A new trial must be awarded.
The other Justices concurred. | [
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Sherwood, J.
The bill in this case is filed to set aside a deed made to defendant, and to confirm the title of complainant to the land mentioned therein. The parties live in the state of New J ersey and are cousins by marriage. It appears that defendant’s husband, Jacob Young, owned eighty acres of land in Oakland county and at the same time owed the complainant $2324.25, for which she obtained a judgment in the Oakland county circuit court qn the 23d day of September, 1878, and which she caused subsequently to be levied upon the above-mentioned land, and which was sold, under an execution issued upon said judgment, on the 30th day of April, 1881, to complainant and Warren N. Draper for the sum of $2730.60. Mr. Draper resided at Pontiac, and was the attorney for complainant in the suit against Young, and her solicitor in a chancery suit to enable her to properly and safely enforce her levy under the execution sale. The complainant had an agent to look after her business at Pontiac, and in Oakland county. ITe was her brother-in-law, ■Conrad S. Taylor, and lived in Rochester, in said county of Oakland. It appears from the record that he looked after the suits for the complainant, and employed Mr. Draper to prosecute them, was present at the sale of the property on the execution, and objected to Draper's bidding off the property in his name. On the 24th day of March, 1882, Draper conveyed the interest he obtained in the property under said sale, and which defendant claimed to be an undivided half interest therein, to the defendant. This he did, so far as the record •shows, without the knowledge or consent of the complainant, and without any consultation with her agent, O. S. Taylor; •and when afterwards consulted about the transaction, claimed that the only interest he had in the premises was a claim in the nature of a lien for the fees the complainant was owing him, and for which he had never asked complainant’s agent, neither had he done more than send to complainant by letter a statement of the amount of what his charges would be.
The record further shows that in the chancery suit Junius Ten Eyck, of Pontiac, was solicitor for Mrs. Young, and •acted for her in making the purchase of Mr. Draper’s interest in the land; that the negotiations were all made with him. Mrs. Young, however, avers in her answer to the bill that she bought Draper’s interest in the land in good faith, and paid him therefor $550 ; that she knew nothing of his interest therein being only a lien, or that he only held the land in trust for Mrs. Taylor, the complainant. Draper testifies that at the time he bid off the property he executed a paper, and caused it to be delivered to Mrs. Taylor, but the record does not otherwise show that she ever saw it or knew anything about it. The following is a copy of the paper:
“ This is to certify that the property this day deeded to Catharine Y. Taylor and Warren N. Draper, by the sheriff of Oakland county, is the property of Catharine Y. Taylor; the interest of Warren N. Draper therein being in the nature of a lien for professional services and moneys advanced, or for which he has become liable on said Catharine Taylor’s account.
April 30, 1881. W. N. Draper.”
Mr. Draper further testified that at the time he made the sale to Mrs. Young the equity of redemption on the sale of the land to him had not yet expired, and Mrs. Young’s tenant was then in possession of the property, and that he (witness) told Mr. Ten Eyck the interest he had in the property; that he had bidden off the property in the name of Mrs. Taylor and himself for the purpose of securing his fees and charges; that he had not and did not claim to have any other interest in the premises. He further says:
“ I told him I wanted to get the money out of it that I had in it; furthermore, that it was an advantage to Mrs. Young to acquire the interest which I had in it, from the fact it would enable them to prolong their occupancy of the property, as the equity of redemption would soon expire. I had several different conversations with Mr. Ten Eyck, but they were all to the same effect. He agreed with me that it would be to their interest to purchase it, and said that he would •advise them to purchase it. At Mr. Ten Eyck’s suggestion they did purchase my interest in the property. I conveyed the land according to Mr. Ten Eyck’s direction. My charge against Mrs. Taylor was $500. She resided in New Jersey at that time. She was not present at the sale and I never saw her.”
The testimony on the part of complainant tends to show that the services of Mr. Draper, claimed for, were worth not more than $350, and that her agent, Mr. Taylor, had paid him eighty-five dollars; that before bringing this suit the complainant tendered to the defendant $350, and a deed for the latter to execute to the former,,conveying to her the land; both of which were refused by the defendant. The case was tried before Judge Stickney, at the Oakland circuit, upon pleadings and the proofs taken, which were very brief, and a decree rendered requiring the defendant to release her interest in the land to complainant. We think this decree was correct.
In whatever Mr. Ten Eyck did he acted as the agent or attorney for Mrs. Young. Indeed, there is nothing in the record upon which to base a pretense to the contrary. Notice to him of the interest claimed by Draper at the time Mrs. Young made her purchase and took her deed through the negotiations of Mr. Ten Eyck, was notice to her, and she is clearly bound by it, no matter what her actual knowledge may have been upon the subject. The testimony in the case, the relations of the parties, and all the circumstances, strongly tended to show, we think, that Mrs. Young had information at the time she received her deed of the nature of the interest Mr. Draper claimed in the premises.
The case discloses a very singular transaction under the circumstances. There is no question of the relation of attorney and client existing between Mrs. Taylor and Mr. Draper at the time he bid off the property, and there is no evidence that it had ceased when he made his deed to Mrs. Young. The equity of redemption had not yet expired, and the sale he procured to be made of the premises upon the execution had not yet been perfected by obtaining the proper deed upon such sale. While occupying such a position the law watches and scrutinizes very closely all acts of the attorney relating to his conduct with his client’s business and property. He can do no act prejudicial to his client’s interests with impunity, unless it comes through error of judgment, in an honest, intelligent effort made in good faith to protect or secure such interests. The relation of attorney and client is one of special confidence and trust, carrying with it many times great influence. “ There are few of the business relations of life involving a higher trust and confidence, * * * or, generally speaking, one more honorably and faithfully discharged; few more anxiously guarded by the law, or governed by sterner principles of morality and justice ; and it is the duty of the court to administer them in a corresponding spirit, and to be watchful and industrious to see that confidence thus reposed shall not be used to the detriment or prejudice of the rights of the party bestowing it.” Stockton v. Ford 11 How. 247; Perry on Trusts § 202.
It is also said: “ It is against the policy of the law that attorneys should obtain interests in litigated claims, and exercise their office under such influence of gain. In all cases the burden is upon the attorney making the purchase of a client to vindicate the transaction from all suspicion,” and if the attorney cannot produce evidence that puts the transaction beyond reasonable controversy, it will be set aside or he will be regarded as a trustee for the client. It has also been held that “ an attorney having a lien or an execution in favor of his client could not buy in land of his client at a sale thereof on execution.” Neither can he be allowed to so act in the absence of his client, and without his consent concerning it, that he may derive an advantage at the expense of his client. See authorities cited. It is held in Iowa that the application of this rule forbids the attorney to purchase, against the interest of his client, property sold in the course of litigation in which he is retained ; and such sales will be held void, or the attorney will be held as the trustee of his client and required to account as such. Harper v. Perry 28 Iowa 58. There can be no doubt that under the purchase made by Draper, while acting as her attorney, whether the bid was in his or her name, the purchase was hers and not the attorney’s, and it was his duty to release the property to her, if bid off in his name, at any time she might request it, and in case he refused, it was optional with her to hold him as her trustee, and require him to account as such therefor, or compel him to convey to her.
It is unnecessary to decide whether or not the lien claimed would attach, had the property been bid off in the names of both client and attorney (as in this case) with the knowledge and consent of complainant. The testimony shows that Mr. Taylor, the agent of the complainant, was present at the sale and objected to Draper bidding the land off in his own name, and it very clearly appears he paid nothing for it. This would be sufficient to prevent the claimed lien, which could not be created against the client’s consent in this way. But this is not the worst feature the case presents upon this record. After this claimed lien was established as pretended, if in good faith it was relied upon by the attorney, it was his duty to have the extent of his lien settled with his client, and after the business was concluded, give his client an opportunity to pay the same and obtain a release from him. This was not done, but, on the contrary thereof, before the business was concluded, and without ever having requested a settlement or payment of his demand, and without knowing that the notification he claims to have sent his client ever reached her, and without any interview with his client’s agent, who lived very near the attorney, he not only proposed to sell his pretended lien to another, but to one of the yery persons with whom his client had the litigation in which he claims to have rendered the services, the charges for which constitute the alleged lien, and urged the purchase by such person for the reason that it would advance interests adverse and prejudicial to his client’s rights. This was more than a failure to keep good faith with complainant. It was a fraud upon her just rights, and to allow a lien to prevail established through means so abhorrent to the fundamental principles of equity would be a perversion of the law, rather than a proper administration of it, and would in this case be helping the defendant to reap the benefits of the fraud thus perpetrated.
Ve have carefully noted the ingenious argument of counsel for defendant, based upon certain statements contained in the bill. But these statements will not be allowed to control in a case like this, so long as the prayer of the bill is sufficiently broad to admit of granting the relief to which complainant is properly entitled under her pleadings and proofs.
The decree of the circuit judge must be affirmed with •costs.
The other Justices concurred. | [
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Cooley, C. J.
The relator presented his will to the probate court for the county of Wayne for probate and allowance during his life-time, under the statute of 1883. Pub. Acts, No. 25.
The leading object of the will appears to have been to exclude one son, and also tire relator’s wife, so far as it was within his power, from all share in the distribution of his estate.
The probate court heard the case, and decided against the will. The relator appealed to the circuit court, where a trial was entered upon before a jury, and after two witnesses had been examined in support of the will, the circuit judge stopped the case, discharged the jury, and entered an order affirming the disallowance of the will by the probate court. This was done on the expressed ground that the act under which the proceedings were taken was unconstitutional. A principal reason for this conclusion was that the act failed to make provision for notice to the wife and an opportunity for her to be heard.
The relator thereupon applied to this Court for a mandamus to compel the circuit judge to set aside his order and to proceed to a hearing of the case on the evidence.
As the order on the appeal is a final order affirming the action of the probate judge, upon which, if the proceeding is judicial, a writ of error would lie to this Court, it is manifest that the relator is seeking to make the mandamus a substitute for the ordinary process of review, and his application might very properly be refused for that reason. Mandamus is a proper process for setting a court in motion, but not for reviewing and setting aside its affirmative judicial action when other suitable and effectual remedy exists. But as the parties have been fully heard in this case, and the reasons for declining to dispose of it on the merits at this time would be only technical, the matter'of form will be overlooked.
The answer of the relator to the objection that the act in question does not provide for notice to the wife, is that the interests of the wife are saved to her, whatever may be the will. If she is dissatisfied with the provisions of the will, she may claim and have the same interests she would have in her husband’s estate if no will were made. How. Stat. § 5824.
But this seems to be a very insufficient reason for failing to give the wife an opportunity for a hearing. A wife’s interests in her husband’s estate are not likely to be purely selfish and personal; the two co-operate in accumulating it, generally with an object in view that eventually it shall benefit children or others to whom they are mutually attached; and if the husband, while mentally incompetent, or in the hands and under the influence of scheming and mercenary persons, is making disposition of it, no person is so justly entitled as the wife to make a showing of the facts to defeat it.
But there are some rights which the wife would have as widow, but which the husband might take away by will, which clearly give her a standing in court on the ground of interest. One of these is the first right to administer upon the estate. How. Stat. § 5849. This is an important and substantial right, and is given to the widow for that reason. But it is taken away if the husband makes a will and names an executor. Another is to name a guardian for children. under the age of fourteen ; for though the statute does not expressly recognize this, it is recognized by unwritten law that the mother’s nomination of guardian will be confirmed, as of course, if no good cause to the contrary appears. But the father may appoint a guardian for minor children by will; and though, by the statute as amended in 1883, the appoint ment requires the approval of the probate judge (How. Stat. § 6311), the mother’s preference of some other person would hardly be legal cause for disapproval. On either of these grounds, if there were no other reasons, the wife should have opportunity to be heard, if she alleges that a will not made freely or with due competency is being offered for probate.
But it may be said that these rights of the widow and mother are not property rights, and therefore not protected by the Constitution, but may be taken away by the Legislature at pleasure. It is to be observed, however, that the Legislature does not profess to take them away; they remain nominally protected by the law, and the Act of 1883 is expected to have effect while preserving them. The difficulty, then, is that the Act of 1883 makes no sufficient provision whereby, in the case of a married man, it can be carried into effect consistently with the preservation of rights which were before given, and which must be supposed to have been intended should remain. It therefore makes no sufficient provision for its own enforcement without conflict with other statutes not meant to be repealed, and is inoperative for that reason.
In all we have said on the subject we have assumed that the proceeding to probate the will of a living person under the statute was to be considered a judicial proceeding, and the order made thereupon a judgment. This is evidently the view taken by the proponent, who seems to assume that the adjudication will be final, though, in fact, it will at all times be subject to his own discretion or caprice. But if he is in error in treating the proceeding as judicial, we do not see that the circuit court had anything to do with the case. The probate court had acted and decided against the proponent, and we know of no authority for requiring the circuit court to take cognizance of appeals in cases not properly judicial, and to give its time and attention to the making of orders which are not judgments, and which the party seeking and obtaining them is under nd obligation to leave in force for a day or an hour.
Sherwood and Champlin, JJ. concurred.
Campbell, J.
In this case, Llo37d attempted to have his will established during life in the probate court for Wayne county, and an appeal was taken from the probate court to the circuit. In that court the circuit judge was of opinion that the proceeding was extrajudicial, and refused to allow it to go on ; but, instead of dismissing or quashing it on that ground, entered an order affirming the probate decree. Mandamus is now applied for to vacate that order.
There can be no doubt of the impropriety of the order of the circuit court. By affirming the probate order he asserted jurisdiction, and he had no right to affirm it without a hearing on the merits. But whether he should proceed to such a hearing is the principal question before us.
The case is one where we can get no help from similar precedents, as the statute is new and singular. Judicial proceedings to probate a will while the testator is living are unheard of in this country or in England; and inasmuch as the statute only makes the decree effective in the single case of the establishment of the will and subsequent death without revocation or alteration, and leaves it open to the testator to make any subsequent arrangement which he may desire, or to oust the jurisdiction by change of residence, or to leave the will once rejected open to probate in the usual way after death, the proceeding is still more anomalous. I am disposed to think, with the circuit judge, that this is not in any sense a judicial proceeding which he was bound to consider or entertain.
This is the first instance in our jurisprudence in which an attempt has been made to compel a living person, as a condition of relief, to enter upon a contest with those who, until his death, can have no recognition anywhere, and who after his death are presumed to represent him, and not any hostile interest. The maxim that the living can have no heirs is as well settled by statute as by common law. Until a man dies it can never bo known who will succeed him, even if intestate, and whatever may be the probability there is no cer tainty that a single one of the persons who have come in here to oppose the will may survive the testator. The law gives no preference to contingent expectations, and legally it is just as possible that the State may take by escheat, as that the persons now litigating, or any other more remote relatives, will become interested.
It is also within the power of relator to dispose of his entire property, not merely by a new will, but by sale or gift, and in such event there will be nothing for this will to dispose of, and possibly nothing for ■ these or any, other .kindred to inherit. It is also competent for him to go into another county or state or country, either of which- acts would put his estate beyond the jurisdiction of Wayne county; and either of the two latter may change the course of inheritance or otherwise affect the disposal of his estate.
I cannot conceive it possible that a proceeding can be dealt with as judicial when the chief party to it will not be precluded by the decree from doing exactly as he might have done had the court never been called on to act at all.
This, statute, which was probably designed to prevent the unseemly and disgraceful attempts, too often made, to defeat 'the enforcement of the last will of persons whose competency to deal with their own affairs was never doubted or interfered with, has been so drawn as to remove none of the difficulties, but rather to make them worse. It is a singular, and in my judgment, a very unfortunate spectacle to see a man compelled to enter upon a contest with the hungry expectants of his own estate, and litigate while living with those who have no legal claims whatever upon him, but who may subject him to ruinous costs and delays in meeting such testimony as is apt to be paraded in such cases. The.practice which has usually prevailed in civil-law countries, and also is Said to have been customary in various parts of England (see Seld. Eec. Jur. Test. 5), of having wills executed or declared in solemn form, or acknowledged before reputable public officers and a sufficient number of disinterested witnesses to render it unlikely that the testator is not acting with capacity and freedom, has been approved by the continued experience of most countries, and lias saved them from the post mortem squabblings and contests on mental condition which have made a will the least secure of all human dealings, and made it doubtful whether in some regions insanity is not accepted as the normal condition of testators. There is no sensible reason why a will which is always revocable and contingent should not be established, presumptively at least, by such an acknowledgment as will suffice to prove a deed which is irrevocable; and where, as is usually the case abroad, such an acknowledgment is made before trustworthy officers, in the presence of known and reputable witnesses, and in the enforced' absence of all other persons, the security against incapacity and incompetency is quite as strong as can be found in a- contest before a court or jury that never saw the testator. A man’s incapacity, if it exists, will not easily escape the notice of his disinterested friends and neighbors, and when they certify to his competency and freedom of action with their attention directly called to their own responsibility in doing so, they are seldom mistaken, and those . who seek to impugn their action, if allowed to do it at all, should be compelled to assume the burden and' risk themselves. But this is not judicial action.
In the proceedings of various kinds familiar in England, where conveyances are made effective by acknowledgment and enrollment before various classes of public officers or tribunals, it was never deemed proper or necessary to bring general heirs presumptive before the acknowledging officer, in order to give efficacy to transfers in fee-simple, either of men or women, although they are as clearly affected in their prospects of inheritance as they would be'by a will. And in the cases where testimony is to be perpetuated for use in future controversies, the rule is indexible that, no matter how great the probability of inheritance may be, the heir presumptive is not either a competent or permissible party to such litigation ; and this is so even in case of estates tail, and although the circumstances are as strong as possible against the chances of any change. Earl Belfast v. Chichester 2 Jac. & W. 439; Allan v. Allan 15 Ves. 130; Lord Dursley v. Fitzhardinge Berkeley 6 Ves. 251; Sackvill v. Ayleworth 1 Vern. 105; Smith v. Att'y Gen. cited, 6 Ves. 255 and 15 Ves. 133.
The broadest definition ever given to the judicial power ■confines it to controversies between conflicting parties in interest, and such can never be the condition of a living man •and his possible heirs. Our statutes have never undertaken,' and do not in this case undertake, to give to the heirs any •interest which will even be fixed by this probate, or which may not be cut off at any time by their own death, or by relator by new will or conveyance. It is by no means free from doubt what classes of probate proceedings under our .system are to be treated as judicial proceedings in the proper .sense of that term; and it is not important here to consider that question, because this proceeding is not even a suit for probate. There has never been any proceeding known to our laws for the mere purpose of establishing the will even •of a deceased person. The probate of wills under our statutes is merely a part of the proceedings to administer the estates of deceased persons in the court that has jurisdiction and charge •of such estates. This rule is so general that in some states devises are not probated at all, and in some the probate is not conclusive, because controversies concerning land are usually tried in other courts. We have enlarged the jurisdiction in probate so as to reach lands for some purposes, and have made all wills subject to probate. But there is no case where an original probate can be granted here, except in the court having jurisdiction over the estate; it cannot be done .separately.
This statute does not attempt to change the place of ultimate probate, and it does not make a decree against the will either a bar or even admissible to prevent future probate after death. It makes no provision for making a finding either way evidence for any purpose during testator’s life, so as to negative testamentary capacity, or otherwise to affect him. And it has no force for any purpose so long as he lives.
I am of opinion that the statute is inoperative, as not within any recognized judicial power, and that the courts cannot be called upon to administer it, and that
The mandamus should vacate the whole proceedings.
Sherwood and Champlin, JJ. concurred. | [
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] |
Champltn, J.
This is a controversy between attorney and client. In 1876 Robinson employed Hawes to perform legal services for him, at a stipulated price j)er day and disbursements and expenses. Under this arrangement defendant attended to a largo amount of litigation in which plaintiff was directly and indirectly interested, when in August, 1883, he received into his hands, as attorney for plaintiff, the sum of $5922.25, being the avails of a suit compromised and settled by the parties, and refused to pay over to the plaintiff the sum so received, but offered to and did pay over $3722.25, retaining $2200, which he claimed he had a right to retain and apply on his charges for services in that and another suit, called the Sanborn suit. He afterwards made out and presented a bill for professional services, which he claimed he bad performed for defendant, amounting in the aggregate to .$6171.37, in part payment of which he claimed he had applied the $2200, leaving a balance claimed to be still due him of $3971.37. Plaintiff demanded the whole amount of $5922.25, and also the said sum of $2200, and on defendant’s refusal to pay over, he brought this action. The suit is commenced hv capias ad respondendum, upon which defendant was arrested and held to bail in the sum of $500. The declaration contains three counts. The first alleges that defendant was a practicing attorney, and had been employed by the plaintiff in his professional capacity, and as such attorney, ■and by virtue of such professional employment, he received for and on behalf of the plaintiff $5922.25, which sum it thereupon became the duty of defendant to pay over to plaintiff; that although often requested so to do, defendant had not paid to plaintiff the said sum of money, or any part thereof, but has wrongfully and unjustly neglected and refused, and still neglects and refuses, and has converted and appropriated the same to his own use.
The second count is the same as the first, except that it alleges it to be the duty of defendant to pay the sum to plaintiff on demand, and that afterwards, and on the 15th of August, 1883, the plaintiff demanded of defendant'"the said sum of money, and that defendant refused compliance. The third count is in trover for converting $5922.25. The plea was the general issue.
On the trial the plaintiff produced himself as a witness, and counsel for plaintiff offered to prove by him the facts and circumstances set forth in the affidavit for the writ of capias, and he did not propose to show any other facts and circumstances in support of plaintiff’s case. Defendant’s counsel then objected to the evidence proposed to be given by said offer as immaterial, and not sufficient to make out a ■cause of action against defendant under the declaration. The court sustained the objection, to which ruling the plaintiff excepted, and the court then directed the jury to render a verdict for the defendan’t, which was done. The shape in which the case was finally disposed of was the same as if the witness had been produced upon the witness stand, and had testified to the facts and circumstances detailed in the affidavit, and the defendant had thereupon demurred to the evidence, and the court was called upon to decide, as matter of law, whether from the evidence sufficient facts appeared to-warrant the jury in finding a verdict for the plaintiff.
It was proper for the court to consider the facts and circumstances stated in the affidavit, and also to draw from such facts and circumstances all inferences which a jury would be justified in drawing from the facts and circumstances proved.
The facts shown by the affidavit were that a special agreement was made between the plaintiff and the defendant, when plaintiff engaged the professional services of defendant, as to the compensation to be paid for such services that he had settled with and paid defendant in full for all services, excepting the following: (1) A balance of $60-for services in the suit, in the Supreme Court, of Robinson v. Bennett 50 Mich. 560; (2) charges claimed by defendant, but not admitted by plaintiff, in two suits of Pack v. Duffield, and three suits of Pack v. Blanchard, aggregating $260; (3) charges of defendant, but not admitted by plaintiff, in the suit of Robinson v. Duffield, of $65; and (4) charges of defendant, in the so-called Maynard compromise,, of $298.05; making a total of $6S3.05 ; that after the decision of the Supreme Court the entire controversy involved in the litigation was compromised and settled between plaintiff and Hon. A. B. Maynard, one of the counsel for Bennett, by which Maynard agreed to pay plaintiff the sum of $5922.25 • that defendant received said sum of $5922.25, paid by Maynard in his professional capacity as attorney of plaintiff on the 15th day of August, 1883 ; that said defendant thereupon pretended that he had a right to retain of said amount the sum of $2200, which plaintiff denied.
The facts above stated show that, at the utmost, according to the affidavit, the defendant’s claim did not exceed $683.05 against plaintiff, and that amount would be the greatest sum he would be entitled to retain out of the moneys received by him, conceding for the purposes of this question that he could retain money received from one suit to apply upon services rendered in others. The facts, therefore, shown by the affidavit, prove clearly and without question that'defendant retained and refused to deliver to plaintiff at least the sum of $1516.95 more than he had a right to do. It needs, no argument to show that such conduct was improper. It was misconduct in his professional employment, for which an action will lie sounding in tort, based upon neglect or violation of professional duty; and the evidence offered was admissible, and tended to support the first two counts of the declaration. An attorney has an undoubted right to a lien upon the money or papers of his client which have come to his possession, derived from, or pertaining to, the suit in which his legal services were rendered, to secure payment* not only for his services in that suit, but also for all professional services rendered his client in other suits; ’but where he receives money, he has no lien upon or right to retain any sum beyond the amount -owing him from his client for professional services, and it is clearly his duty to pay over to his client, on demand, any sum he has received beyond what his client owes him for such services. Indeed, the statute makes such neglect or refusal of the attorney to pay over moneys collected or received for his client or other person, within a reasonable time after demand, a misdemeanor and punishable by imprisonment or fine. How. Stat. § 9152.
, In a case where there is a disagreement between the, attorney and client as to the amount due him for professional services, and the attorney retains in good faith what he believes to be justly his due, he would not be liable to the client in this form of action ; he would not be guilty of professional misconduct or a violation of professional duty. But the evidence in this ease shows that the amount retained was far beyond the amount owing to defendant, and also that the pretext upon'which the defendant claimed the right to keep it was unfounded in fact; and the inference to be drawn is that it was not detained by defendant in good faith, or in the honest belief that it was fairly due to him from the plaintiff. The relation of attorney and client is one of confidence based upon the ability, honesty and integrity of the attorney; and he cannot be justified in retaining in his hands money belonging to the client, for the purpose of forcing the client to settle at unreasonable terms demanded by the attorney, or for the purpose of driving a hard and extortionate bargain with his client. The honor of the profession, as well as the dignity and purity of courts of justice, whose officer the attorney is, require that such practices shall not be sanctioned. The judgment of the circuit court must be
Reversed and a new trial granted.
The other Justices concurred. | [
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Campbell, J.
This is a proceeding by certiorari to review the action of a special drain commissioner appointed by the probate judge of Jackson county to lay a drain in two counties- — Jackson and "Washtenaw. As respondents have not thought it worth while to attempt any defense of the proceedings, it is not desirable to discuss them at large.
Apart from the question of the power of the probate judge to make the appointment of the official complained of, it is objected, and the record sustains the objection, that the commissioner was appointed ex parte on the same day the application for his appointment was filed, and without notice to any one. This defect is a radical one, showing the probate court had no jurisdiction to act, and the subsequent errors need not be considered. The proceedings must be quashed as against the plaintiffs in certiorari.
The other Justices concurred. | [
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Sherwood, J.
The plaintiffs are builders in the city of Manistee, and brought the suit in this case to recover for a balance claimed to be due to them for the erection of store buildings. The declaration counted upon a certain written contract under which the work was to be done, and the com- of what the specifications and plans agreed upon and talked mon counts were added. The contract provided that the building should be built and finished according to certain plans and specifications which were to be made and signed by the parties, but which never were signed by them, although they were talked over and agreed upon,, and marked upon a board, and were well understood by the parties at the, time the contract was executed. The price agreed upon for the work was $3628. And it was further provided by the contract that the defendant might require such changes, alterations and additions to be made as he desired, and that a corresponding increase or deduction should be made in the contract price as should be reasonable therefor. The declaration avers that the building was constructed in manner as required by the contract, and changes made by the defendant, and that afterwards the parties accounted together and found the plaintiffs entitled to $360.11 over and above the $3628. The defendant pleaded the general issue, and claimed by way of recoupment damages for alleged defects in the performance of the work, and in its construction. The cause was tried before a jury, who found the plaintiffs entitled to recover the sum of $744.63, and rendered a verdict accordingly.
The defendant brings the case into this Court by writ of error, relying upon the claimed erroneous rulings of the court on the admission of testimony for a reversal of the judgment. The court allowed the plaintiffs to put in evidence specifications not signed by the parties, but such as were claimed to have been agreed upon by them when the contract was made; also testimony as to “what kind - of a front the building was to have.” This testimony was objected to on the ground that these things occurred before the written contract was made, and that the testimony contradicted the written contract. We do not think the objection well taken. Without this testimony the contract was imperfect. The plans and specifications were already understood, but had not been written out by the architect. It was no fault of the plaintiff that they were not, and the only evidence of what they were, was given, and it was proper. The other evidence •over between the parties previous to signing the contract were, and which is the subject of the defendant’s sixth and seventh assignments of error, was also proper for the same reason.
Counsel for defendant, under their plea of recoupment, gave testimony tending to show that poor lumber was used in a particular part of the work; that the doors were not made •of first-class material; and that the hard-wood flooring was not such as it should have been; and the plaintiffs were permitted to put in rebutting testimony upon these subjects. The defendant claimed that this was improper. We cannot ■accede to this view. It appears from the record that many ■and material changes were made in the construction of the building from those contemplated and agreed upon when the ■contract was signed, some of them requiring a different character of work, — a different front was ordered, and the inte-. rior changed from that of a store to that of a bank, — -and that the work was all done under the supervision and direction of defendant and his architect. Under such circumstances, we think the rebutting testimony offered and received was properly under the contract, and within the discretion of the court.
There is, however, another view of this case presented by the record, which renders several of the exceptions we have just noticed of no importance. After the testimony had been taken, at the suggestion of counsel for the defendant* the jurors, under the charge of the sheriff, were permitted to view the building and work complained of by the defendant. On their return to the court-room, the cause, by agreement of the parties, without argument by counsel or charges from the court, was submitted to them for consideration and verdict, with the result above stated. It is difficult to see, after such a submission agreed to by the parties, upon what ground either could except to the rulings of the court other than those relating to the contract of the parties. We find no error in the record, and
The judgment must be affirmed.
The other Justices concurred. | [
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] |
Cooley, J.
The plaintiff sued Chappell to recover his subscription of five hundred dollars to the following paper:
“For and in consideration of the construction of the Saginaw, Tuscola & Huron Eailroad from East Saginaw through the counties of Saginaw, Tuscola and Huron to the village of Sebewaing in the county of Huron, we agree to pay to the order of E. T. Judd, treasurer of said company, the sum set opposite our respective names within thirty days after the rails shall be laid from East Saginaw to the said village of Sebewaing in the county of Huron. We also agree to sign a note of like import and terms when requested to do so by the said railroad company.
Sebewaing, HuronCo. Mich., March, 1881.”
The subscription of the defendant to this paper was admitted : and it was also admitted that the railroad was completed from East Saginaw to Sebewaing more than thirty days before the suit was instituted. The principal ground of defense was that the paper when signed was deposited with one Liken who had acted in taking the subscription at the request of the president of the company, and that in his hands it was subject to certain expressed conditions regarding the location of the road and its depot at Sebewaing which had not been complied with so as to entitle the plaintiff to the paper. Incidentally it came out on the trial that the defendant had subscribed to five hundred dollars of the capital stock of the company which he understood was to take the place of the first subscription, but which he afterwards repudiated on the claim that the conditions under which the sub scription was made were not observed by the company. This suit was then instituted.
Defendant being a witness on his own behalf was asked by his counsel the following ' question: “At the time you signed that subscription of aid, on Sunday the 13th day of March 1881, what occurred between you and Mr. Liken in regard to your giving that aid ?” This was objected to, and the court ruled that defendant must first show Liken was authorized to make a stipulation for the company, or that the company accepted the subscription subject to conditions not expressed in it.
.Counsel then stated that he proposed to show that it was not to be treated as a subscription; that defendant’s name was to be stricken from the subscription list unless the route of the road and the location of the depot were satisfactory; and that no contract was ever completed. The court then inquired : “ Do you propose to show that the subscription was left with Mr. Liken to be by him delivered to the company ?” Counsel replied: “We propose to show that Mr. Liken had the subscription in his possession all the time ; that he was the custodian of it all the time it was being signed; and that it continued in his possession until after the merger. We propose to show that it being in Mr. Liken’s custody when this defendant signed, that the understanding was that it was not to be binding, that it was not to be delivered, that his name was to be stricken from it unless a particular route of the road and location of the depot were satisfactory to the company for whom Mr. Liken was then taking the subscription.” “ We propose to show that the railroad company never saw this aid subscription until June, after the merger into stock, and that the contract for the construction of the road was made in June 1881; that the company never relied on this subscription or had seen it up to that time, and never acted upon it for months after the construction of the road was commenced.”
By the Court: “’I think the testimony is not material unless you first show that Mr. Liken was acting as agent for the railroad company. If he was simply a citizen there at Sebewaing, equally interested there with Mr. Chappell and others, and they were together signing a subscription to induce a company to build a road there, and the defendant under those circumstances gave Mr. Liken his subscription on the condition that the depot should be located at a certain place, and Mr. Liken delivered it without stating the condition, the defendant would be bound by it. He ought to have seen that his agent carried out his instructions. You must first show that Mr. Liken was acting for the railroad company, and then the testimony would be proper.”
To this counsel replied: “We think that we have shown that: that he took the subscription papers and went to Sebewaing at the request of the president of the road to raise this aid.” The court responded: “Yes, but he was acting as a large property owner at Sebewaing. I don’t think the testimony shows that he was acting as agent of the railroad company, so that he could bind the company by his acts.”
The' court thereupon overruled the defendant’s offer of evidence. In doing so it was assumed — -Jv/’st, that Liken in taking the subscriptions was not the agent of the railroad company ; and second, that if he was agent of the subscribers, and delivered the subscription in disregard of their instructions the subscribers were nevertheless bound by'it.
The first of those assumptions covers a question of fact. The position of Liken in respect to the subscription would appear to have been somewhat ambiguous; but the fact of his being interested at Sebewaing would not preclude his being agent of the railroad company in getting the subscriptions. It was a matter in which the railroad company and the people of the town were mutually interested ; and while the company might not be likely to employ any one to solicit subscriptions,there would be nothing,strange or unprecedented in its being done ; and if it were done, probably some one locally interested would be the most suitable and efficient agent for the purpose. But whether under the circumstances appearing,in proof Liken was acting for the company or for the subscribers was a question the court could not decide, and the defendant had a right to take the judgment of the jury upon it.
The second assumption covered a question of law and was erroneous. If Liken was the agent of the subscribers in respect to the delivery of the subscription, he was a special agent, and if he delivered it in disregard of his instructions, his principals were not bound thereby. This is familiar law: Trudo v. Anderson 10 Mich. 351; Hutchings v. Ladd 16 Mich. 493; Atlas Mining Co. c. Johnston 23 Mich. 36; Reynolds v. Insurance Co. 36 Mich. 131. A very strong illustration of the principle is seen in Hall v. Parker 37 Mich. 590, in which sureties were held not bound by a bond which they had signed and left to be delivered upon the condition, which was not observed, that the signature .of another should be first obtained to it. The principle might not apply when the party by his own negligence had put into the hands of another the means of committing a fraud : Brown v. Judge of Probate 42 Mich. 501; and in this case if Liken in violation of his instructions had delivered the paper and the company had acted upon it in ignorance of the excess of authority, and under circumstances fairly charging the subscribers with negligence, it may be that they ought to be and would be held bound by their promises. But the defendant offered to prove that the company had not acted upon the subscription paper; and if this were true, no equities subsequent to its execution could have arisen against the subscribers.
At the conclusion of the evidence the court directed a verdict for the plaintiff. This direction assumed that the plaintiff had made out an unquestionable case. This was not the fact. The subscription was shown to have been signed by defendant on Sunday, and was therefore prima facie void. Tucker v. Mowrey 12 Mich. 378; Winfield v. Dodge 45 Mich. 355; Brazee v. Bryant 50 Mich. 136. Only some distinct act of the defendant on a subsequent day in delivering or authorizing another to deliver it could render it valid; at least in the absence of any evidence that the railroad company in good faith and without knowledge of the defect, had acted upon it.
The judgment must be reversed and a new trial ordered.
The other Justices concurred. | [
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] |
Cooley, C. J.
A writ of certiorari has been sued out in this case to review the action of a township drain commissioner in laying out a drain and levying a tax to meet the cost. The plaintiff in certiorari is owner of land lying three-fourths of a mile or so from the drain, and the purpose of the writ is to set aside the tax levied upon this land for supposed benefits. The drain was established by an order of the commissioner dated September 12, 1883, and contracts for its construction in sections were made in October and November following.
The drain was all completed by November 18, 1884. The writ of certiorari was not applied for until November 22, 1884. The plaintiff excuses the delay by saying that he with many others filed a bill in chancery February 20, 1884, for the purpose of setting aside the proceedings of the commissioner and to have the tax declared void; that subpoena in the case was served April 8, 1884; that defendants appeared in the ease July 3, 1884, but that “ upon examination of the files and records in the office of the clerk of said court by the clerk himself no files or papers could be found pertaining thereto, excepting the words on the back of on empty envelope ‘ taken by Howell ’; that an interview was had with Hon. Andrew Howell in regard to the papers and files in said cause, who said he had returned them to the attorneys for defendants, and they being interviewed in regard to the whereabouts of said files and papers, said they had no recollection of having them, and after waiting some considerable time, and after diligent search and inquiry for the same,” the plaintiff was satisfied the files and papers cannot be found, and for that reason, on November 17, 1884, he discontinued the chancery suit. The return to the writ of certiorari denies that the chancery suit has been discontinued, and avers it to be still pending.
The conflict in the statements respecting the discontinuance of the chancery suit, both of which are made under oath, is somewhat remarkable, but we may well believe it is due to the failure on the part of the plaintiff to observe some formality necessary to an effectual discontinuance. But as, after this positive statement of discontinuance the plaintiff, we must assume, would not be suffered to proceed in the suit, and as the circuit judge before whom the suit was pending has himself allowed the certiorari, and has thereby given us to understand that under the circumstances, which must have been well known to him, the case is a proper one for this remedy, we are inclined to hold the failure to proceed sooner to be sufficiently excused. It is to be observed that as the statements in the petition on this subject do not go to the merits, but are made by way of excuse for delay merely, the general rule that makes the return conclusive is not applicable, and we must judge of the excuse upon the facts as they are given by both parties, and in the light of the allowance of the writ-by the circuit judge.
The question whether, on the merits, the writ should be sustained is one upon which we have had some hesitation. We held in Whitbeck v. Hudson 50 Mich. 86 that certiorari was an improper remedy for bringing tax proceedings before this Court for review, and pointed out the inconveniences that would result from its use. The plaintiff in this case is complaining merely of a tax ; his lands are not taken, and he is not injured otherwise than by the unauthorized demand for tax moneys which is made upon him. But the argument a’b inconvenienti does not go to the jurisdiction, and the fact that the plaintiff resorted to the proper remedy and has lost it without his fault has been deemed by the circuit judge sufficient reason for allowing this writ. And as the writ has been applied for at a stage in the proceedings when nothing would be stayed by it but the collection of the sum claimed from this party, we think proper under all the circumstances not to quash it, but to end the litigation here.
When the return is examined it is apparent that the proceedings cannot be sustained. The statute required public notice of the letting of contracts for construction. How. Stat. § 1708. This is a statutory condition precedent to the letting of contracts and the incurring of the expense which constitutes the major part of the tax; and it does not appear from the return that this condition was complied with. Following Kroop v. Forman 31 Mich. 144 and Lane v. Burnap 39 Mich. 736.
The proceedings, so far as they concern the lands of the. plaintiff in this writ will be set aside.
The other Justices concurred. | [
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] |
Siieewood, J.
The plaintiff brings ejectment to recover 60 and 91-100 acres of land lying in the county of Saginaw. Plea, general issue, with claim for value of improvements. The plaintiff claims title from the general government. The defendants are in possession» of the property, and claim title thereto under a tax deed, given on a sale made for the unpaid taxes assessed upon the land in 1872. The entire tax assessed against the property for the year was $18.40. The amount of the State tax was $1.62. The taxes were all paid except the State tax. The amount for which the land was sold was $1.94, which was the State tax, with interest added for eight months at the rate of thirty per cent.
No question is made but that the proceedings to sale were all regular, and it is not claimed the taxes assessed were excessive. The important question raised by counsel for plaintiff is, could payment of the interest, at the rate claimed, be legally compelled by a sale of the land assessed % The interest amounted to but thirty-two cents, and it was added to the State tax to make the amount for which the land was sold. The circuit judge held the sale legal and title valid, and rendered judgment for the defendants.
The statute under which it is claimed it was proper to add the thirty per cent, interest reads as follows:
“ Any person may pay the taxes, or any one of the several taxes, on any parcel of lands returned as aforesaid, or on any undivided share thereof, with interest calculated thereon from the first day of February next after the same were assessed, at the rate of fifteen per cent, per annum, and the office charges, and four per cent, as a collection fee, to the treasurer of the county in which the lands are situated, at any time before they are sold for taxes, or to the state treasurer, on the certificate of the Auditor General, at any time before the twentieth day of September next preceding the time appointed for such sale : provided, that on all taxes remaining unpaid on the first day of June next after the same were assessed, interest shall be computed at the rate of thirty per cent, per annum from said first day of February.”
If the taxes and interest and expenses remain unpaid after the first day of October, the statute further provides that the land may be sold to pay the same, under the direction of the Auditor General, in the mode and manner therein pointed -out. See statute, §§ 77-88, (1 Comp. L. 1871, ch. 21).
The right of imposing taxes, and the manner of levying and collecting them, are matters strictly within the power of the legislature, and the tax-payer has a right to such remedies in equity to prevent their enforcement, if illegal, as are usual in other cases of illegal and unjust proceedings. Irregularities in enforcing the collection will generally be overlooked by courts, but when the action taken by the authorities in levying the tax, or in the efforts to enforce collection, is illegal, the proceeding will be void, and cannot be sustained. The regulation of interest between individual parties for the use -of money has'always been a proper subject for legislative action, and there is no reason why it should not be such between the state and an individual when its rights are involved. Interest is given for the delay in the payment of money, and whether the sum is owing to the state or to an individual can make no difference. In the case of an unpaid tax, so long as the law is general, it may be for such amount as the legislature may deem proper to determine, and whether interest is given for delay in the payment of money loaned, or for property sold, or' for work and labor done, or for a tax legally assessed and past due, is immaterial. The power to require and fix the amount is equally within the province of the legislature. It is claimed, however, that the interest charged is in the nature of a penalty, — is in fact a penalty to enable the party to redeem, — and is really no part of the tax, and therefore no legal sale can be made of the land therefor ; that the penalty can only be enforced in a court, and that no adjudication in the case has been had for that purpose.
I am not prepared to adopt this view. It is said by Mr. -Justice Cooley in Silsbee v. Stockle 44 Mich. 571: “ The purpose of the law is to make the sale of the land for the lawful tax and charges the sole penalty for the failure to pay, whether the failure is blamable or excusable.” Here the tax and charges are characterized as a penalty to be paid by the owner to relieve his land from the burden imposed. In the same sense the amount of the interest required to be paid to relieve the land of the burden, after the sale and before redemption has expired, is a penalty; and so long as the amount.imposed for the charges is to be considered as a part of the sum for which a legal sale can be made, it is difficult to say why the sum called interest may not be added, as well as if it had been termed charges. The legislature had the power in both cases-to fix the amount by law. Had the amount called interest been included as charges, there could be no question made, I apprehend, as to the right to sell for the delinquent tax with that included. Until the right of redemption expired, the proceedings had, including the sale, created no more than a lien upon the property. When the right to redeem expired, the lien ripened into title, and the purchaser then, and not till then, became entitled to his deed, under which he could enforce his title, if good, in the proper tribunals.
If the owner of the land neglected to pay his tax after the thirty-first day of December, two per cent, was added to the amount he was required to pay. If he neglected to pay the amount until after the warrant was returned, he was required to pay fifteen per cent, thereon thereafter until the last day of January, and if the tax remained unpaid after that time the owner was required to pay thirty per cent. If the two per cent, was legal, which no one seems to doubt, I confess I am unable to discern why the other rates were not equally so. The neglect to pay was the reason for the charge in each case. The charge was imposed by the same authority. The same statute which permitted the charge in the one ease, authorized it in each of the others, and the law is presumed to have been known to the parties. With its expediency or policy we have nothing to do, and of its validity I have no doubt. While in some isolated cases its enforcement might work hardship, I have failed to discern, under the findings in this case, any circumstances developing any such result.
It appears from the findings of the circuit judge that the land in. question was sold and conveyed for delinquent taxes for each of the years from and including 1856 till 1872; that in 1877 Newell Barnard, having acquired all these outstand ing tax titles, conveyed it to the defendant Herzog. It would appear the plaintiff, claiming to be the owner, gave little or no attention to the payment of his taxes upon the land until after it had gone into the defendant’s possession under the titles acquired from the State. Then, after several years of occupancy by the defendant or his tenants, plaintiff seeks to recover what he had so long neglected, leaving the defendant and his grantees to discharge the burdens of his taxation without any recompense or redress. There is nothing in these facts requiring any strained or doubtful construction of the law to protect the plaintiff in his claim made 'against the equitable rights of the defendants in this case, who appear to have relied in good faith upon the title Herzog received.
On the trial thp plaintiff objected to the admission of the tax deed given for the taxes of 1872, and under which the defendants claim title in his grantors, for the reason that it was not executed by the Auditor General, but by his deputy. This objection was not well taken. Westbrook v. Miller, ante p. 148, decided at last term.
We find no error in excluding the evidence proposed for the purpose of invalidating the tax titles other than for the taxes of 1872. The latter was the one relied upon by the defendants, and which was found to be valid. Whether the others were valid or not was of no materiality in the case as presented. The findings of fact by the circuit judge support the judgment; and his conclusions of law, holding that the title based upon the sale of the land for the taxes of 1872, made by the Auditor General, was valid, were correct, and his Judgment in the case must be affirmed.
The other Justices concurred. | [
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] |
Campbell, J.
Plaintiff sued defendant on a life insurance policy upon the life of her husband Adam Frey, who committed suicide while of unsound mind. The only question in the case is whether this, under the terms of the policy defeated her right of recovery for any more than the amount allowed as legal reserve. The court below confined the recovery to that amount. The sum insured was $1000, but the reserve amounted to $201.38.
The policy, after other recitals and provisions, contained several clauses declaring under what circumstances it should be avoided. Among these was the f olio wing:
“ If the person aforesaid shall die by suicide, or by his own hand, or in consequence of an attempt to commit suicide, or to take his own life : provided, however that if any of these acts be committed while in a condition of mental derangement or insanity, the company agree to pay upon the return of the policy thus avoided, the full legal reserve thereof.”
It was stipulated on trial that Frey’s death was by suicide while in a state of mental derangement of insanity, and that the reserve was the sum before referred to, which was paid into court with costs.
Tt was not urged on the argument that it was beyond the legal power of insurance companies to make qualified insurance policies which should not cover death by suicide during insanity. It is unquestionably true that any clause involving forfeiture should be construed somewhat strictly. But it seems generally conceded that parties may stipulate what risks shall be covered by the policy, and if the terms of the instrument are not ambiguous, they will be enforced.
We do not discover any difficulty in ascertaining the meaning of this policy. It very plainly excepts every kind of suicide from the full protection of the insurance, and in favor of insane persons secures to their beneficiaries a smaller amount which appears to be intended to restore in whole or in part the premiums paid. It does not differ in principle from pi’ovisions which should exclude from benefits death by particular diseases or accidents, which may involve no fault on the part of the decedent, but which may be a risk the company prefers not to take. This can no doubt be done where there is no legal provision to the contrary. Nothing in our insurance laws has been pointed out which forbids it.
The fact that the policy does not declare what this reserved sum shall be, does not render. the clause void provided it is ascertainable. We are not informed what rule is applied for ascertaining it, but the parties have agreed what it should be, and therefore we must assume there are means of ascertainment.
There was no error in the conclusion of the court below, and the judgment must be affirmed.
The other Justices concurred. | [
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Grant, J.
(after stating the facts). 1. The first error alleged is upon the ruling of the court in refusing to permit a witness for the defendant to testify to what Mr. Porner, the driver, said after the accident. The witness was the conductor of the car. The question arose in this way:
“ Q. Did you have any talk or hear any talk between the driver and any one after the accident occurred ?
“A. Yes, sir.
“ Q. What, if anything, did the driver of the vehicle say with reference to his getting across the track at that time in front of the car ?
“ A. I couldn’t say that those statements were made in Edwards’ presence. I don’t think that Edwards could have heard the statement.”
The question was then objected to, and the objection sustained. We think the ruling of the court was correct. The evidence did not show that the conversation occurred at or immediately after the accident. Evidently Edwards had left. It was not a part of the res gestae. Mabley v. Kittleberger, 37 Mich. 360; Lane v. Bryant, 9 Gray, 245 (69 Am. Dec. 282).
2. We think the question of negligence was properly submitted to the jury. The distance of the car from the place of the accident when it appeared that there was danger of a collision, and the distance it went after the collision, were controverted questions of fact. The car was going upgrade. The speed of the car depended largely upon these distances. The plaintiff testified that, when the horse first stumbled, he looked at the car, and, in his judgment, it was between 10 and 12 rods distant. While common experience teaches every one that an opinion under these circumstances is not very reliable, still, that was a question for the jury, in connection with all the other testimony in the case upon the matter of speed and distances. The question of liability is a very close one, but we think there was sufficient conflict of evidence to make it a question for the jury.
3. It is also urged that plaintiff was guilty of contributory negligence in not jumping from the buggy when he saw the car approaching. It was, of course, his duty to do this if he saw the danger, and had the time and oppor-, tunity to do so. The difficulty in jumping from the carriage, with the horse floundering about and jumping in the effort to regain her feet and run on, is apparent. We do not think that plaintiff, as a matter of law, was required to take the risk; nor do we think the evidence conclusively shows that he fully comprehended the situation, so that he was guilty of negligence in not jumping from the carriage. It was a question of fact for the jury to determine whether, under the circumstances, it was his duty to do so, and this was left fairly to them.
4. Mr. Forner, plaintiff’s son-in-law, was not called by him as a witness. It appeared upon his cross-examination that Mr. Forner had been interviewed by plaintiff’s attorneys, and after such interview they decided not to call him as a witness. Upon a motion for a new trial, defendant produced Mr. Forner, and examined him before the court. His testimony was material to the defense, and was contradictory to that of the plaintiff. The court, however, denied the motion for a new trial upon the ground that defendant had not exercised due diligence in procuring Mr. Forner as a witness at the trial. We see no reason to interfere with this ruling. Mr. Forner was within the jurisdiction of the court, and, if it had been necessary, counsel might have applied for a delay in the trial to subpoena him; but it does not appear that any such effort was made, or, in fact, that any effort was made to produce him. For this reason we must decline to interfere with the ruling of the court.
The judgment is affirmed.
Montgomery, C. J., Moore and Long, JJ., concurred with Grant, J. Hooker, J., concurred in the result. | [
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Grant, J.
(after stating the facts). 1. It was insisted upon the hearing in the court below that all the insurance companies who were parties to the arbitration should have been made parties to one suit brought to set it aside, and that, therefore, the bill should be dismissed for lack of indispensable parties. The contention is sound, and, if this objection had not been waived, it should prevail. The learned circuit judge recognized the rule, but held that the same object could be accomplished by a consolidation of the cases. Whether that opinion be sound we need not determine. The bill set up all the facts in regard to the agreement of submission, and showed that all the companies now defendant were parties to that submission. The necessity of such parties, therefore, appeared upon the face of the bill, and, under the holding in Powers v. Hibbard, 114 Mich. 533 (12 N. W. 339), this objection should have been raised by demurrer. It was too late to raise it upon the hearing.
2. Complainants were permitted to testify to conversations with one Smitha, who was the agent and general adjuster for the defendants. Smitha had died long before the hearing. A third party was present at those conversations. Counsel for complainants admit that the testimony should have been excluded under section 10212, 3 Comp. Laws, prohibiting parties from testifying to facts equally within the knowledge of the deceased, if a third party had not been present. The admission of such testimony would be in plain violation of the statute. The third person is the only one competent to testify to what passed between the parties, one of whom is dead. This was expressly decided in Taylor v. Bunker, 68 Mich. 258 (36 N. W. 66). Although this is a chancery case, the circuit judge was under no obligation to admit such evidence, and should have excluded it.
3. It is next urged that complainants are not in position to raise the question of fraud in procuring the submission contrary to the terms of the policy, because their letters and those of their attorneys made no such claim, and no such claim was made until the bill was filed. Several authorities are cited which seem to support this proposition, but it is unnecessary to pass upon it. The contract of submission can be set aside only for fraud or mistake. We find no evidence of fraud on the part of the agents of the defendants who executed it, and no mistake is claimed. The agreement was very short, and both complainants had it in their possession and signed it. Aside from the description of the property on which the loss was to be determined, it does not fill a page of the record, and entire it fills only two pages. Both appraisers, who were disinterested, and one Loeb, an adjuster for the defendants, testified that complainants read it. They had ample opportunity to read it, and it was their own fault if they did not. The only basis for setting aside tho submission is that the complainants did not choose to read it, but supposed it was in accordance with the policy. Mr. Michels testified that he knew there was a provision for arbitration, but did not know its terms. Contracts cannot be set aside simply because one of the parties thereto did not choose to read them over. If complainants had prepared the submission, and submitted it to the defendants for their approval and execution, and the defendants had been dissatisfied'with the award and complainants satisfied, would these defendants be permitted to say, “The award is fraudulent, because our agents signed it without choosing to read it ? ” A contract of submission between an insurer and its insured is governed by the same rules as a similar contract between any other parties. The circuit judge found there was no actual fraud, but that there was a legal fraud upon 'the complainants, in that they were not informed by defendants of the effect of the agreement. Where the effect of the contract is so patent upon its face that any layman can understand it, there is no occasion for either party to inform the other of its effect. This precise question, under a state of facts very similar, and under a Michigan standard policy, was raised in Montgomery v. Insurance Co., 108 Wis. 146 (84 N. W. 175). The agreement for submission is almost identical with this. It made the award binding and conclusive. The court, speaking through Chief Justice Cassoday, said:
“ In the absence of fraud or mistake, Mollie Montgomery was conclusively presumed to know the contents of the appraisal agreements, and must be deemed to have entered into such agreements understandingly. ”
The contract of submission must be held valid.
4. The circuit judge, in a written opinion, said, “I have no reason to think there was any corruption on the part of the appraisers.” We thoroughly agree with this conclusion. They were experienced men; had no interest in the matter; and spent between two and three days in the examination of the property, listening to the statements of the complainants and their foreman, and in making up their award; were furnished a list of the property which complainants claimed was lost and damaged, and made such an examination and investigation as they deemed necessary to pass upon the matters submitted to them. They were under oath. Complainants naturally chose their appraiser from Detroit. The defendants naturally chose a man from the outside. Both acted honestly. The charge made by complainants and their counsel that the appraiser Mr. Caryl, chosen by them, “sold them out,” is unjust, and has no foundation whatever. Mr. Caryl may have been mistaken in judgment, but there is nothing in the record worthy of belief to impeach his honesty, or to show that he was improperly controlled in his judgment by his co-appraiser. Neither is there anything to show that Mr. Douglas did not act honestly, and according to his best judgment. He had frequently been employed, both by insurers and insured, in services of this character. In order to convict men of untruthfulness, dishonorable and corrupt conduct, courts must be able to find some convincing evidence in the record. The learned counsel for the complainants in their brief assert, “We believe no jury could be found that would not declare from the evidence that this was a corrupt and partial award.” A court of equity cannot abdicate its duty or submit its conscience to what a jury might do in any case, not even that of an individual against a corporation. Under the Consti-' tution and laws of this State, a court of law is not the proper forum to determine whether an award under an arbitration, agreed to by the parties thereto, was corruptly and fraudulently made. Courts of equity alone are clothed with the power to'set them aside. The learned counsel recognized this rule in withdrawing a juror and commencing proceedings in equity. The contention that this award should be set aside as fraudulent and corrupt fails.
5. Counsel urge that the appraisal must be set aside because the appraisers refused a proper hearing to the complainants. This claim is based upon the testimony of Mr. Michels that, on the evening of the 30th of June, he went to Mr. Caryl’s house to talk with him about the award, — a proceeding of at least doubtful propriety. He testified:
‘ ‘ I told him I understood there was a question on their part whether the patterns we claimed were burned were in that vault, and I came up to tell him that, if he would bring Douglas down in the morning, I would show the patterns, and that their condition was badly burned; that they were no good. He said, ‘All right, we will be down early in the morning.’”
Mr. Caryl denies this conversation.
Mr. Bresee testified that Friday (the 30th) afternoon, about half past 4, he went to the Bussell House, and saw Mr. Douglas; that the question had arisen as to whether two large planer patterns were in the vault; that Bresee told him he thought he could furnish him evidence — some parts — to show him that they were there; that Douglas replied he wished he would, and wished he would be down in the morning about 10 o’clock. Bresee testified that he reported this conversation to Michels, and this offered the occasion for Michels’ visit to Caryl.
It was a matter of no great importance whether these patterns were in the vault or not. They were on the schedule of property lost and damaged furnished by complainants to the appraisers. The appraisers had examined the damaged property, and were upon the premises two or three times a day for two or three days. No demand for sworn testimony or for an open hearing was made by either party to the submission. It was evidently not contemplated; at least neither had demanded it. The appraisers found the remains of nearly everything except the two large planer patterns. The insurance companies left the appraisers to go to the scene of the fire, view the property, and take whatever statements they chose from the complainants. There was no such refusal to give the parties a hearing as, under the authorities, justifies the setting aside of the award.
6. Complainants insist that a wrong method of estimating the loss was adopted, and that the award is void for that reason; citing Dodds v. Hakes, 114 N. Y. 260 (21 N. E. 398); Laurent v. Insurance Co., 1 Hall, 45. Washington Mills Emery Manfg. Co. v. Insurance Co., 135 Mass. 503; McCuaig v. Insurance Co., 18 U. C. Q. B. 130. Those cases are little in point. Washington Mills Emery Manfg. Co. v. Insurance Co. is as favorable to complainants’ contention as any. In that case a grantor of land sold the land, reserving a building, to be removed by a day named, and, if not removed within the time, it was to go to the grantee of the land. Before the expiration of the time for the removal, it was destroyed by fire. The insurance company maintained that the value of the property must be measured by its value for removal, and not by its intrinsic value as it stood upon the land. The court, of course, held the measure of damages to be its value as it stood upon the land. In this case the appraisers exercised their judgment upon the intrinsic value of the property. The submission provided that, in determining the sound value and the loss or damage, the appraisers should estimate the actual cash cost of replacing or repairing the same, or the actual cash value thereof; “and, in case of depreciation of the property from use, age, condition, location, or otherwise, a proper deduction shall he made.” Many patterns become what are called “dead” patterns. These are useless, and of no value. Complainants testified that they threw out every year wagon loads of them. They had a fire in November preceding, in which they recovered for loss .of patterns the full amount of insurance, $3,000, lacking $22. The most of, if not all, the patterns for which they now seek recovery were then in existence, and in the building at the time of the fire. Many of them were 10 and 12 years old; many others older. Some were patterns of machines no longer manufactured. There might possibly be an occasion to use some of these old patterns. In fixing the loss the appraisers took these things into account. They allowed nothing for absolutely “dead” patterns, but allowed something for those for which there might possibly be a use. We think this was within the terms of the submission, authorizing them to make a proper deduction for depreciation by use, age, condition, location, or otherwise. Radley v. Seider, 99 Mich. 433 (58 N. W. 366).
7. Counsel also insist that the award should be set aside for its gross inadequacy; citing authorities which hold that, where the assessment is so erroneous or exorbitant as to induce a belief that the arbitrators were corrupt or grossly partial, it should be set aside. Complainants make no case for the application of this rule. Appraisals were made by others subsequent to that under the submission, and, as one of them testified, he depended largely upon what the complainants told him as to the property and its condition. They did not have that opportunity for personal examination that Caryl and Douglas had: Such a finding must, of necessity, be based upon the adoption by the court of the estimates subsequently made by persons employed by complainants and by their own testimony. We must, therefore, in order to so find, take their opinions as true, and hold Caryl and Douglas, disinterested parties, acting under oath, as being corrupt or grossly partial. The record will not justify us in coming to that conclusion. Evidently the learned circuit judge could not adopt such a conclusion, after seeing the witnesses for the respective parties.
Complainants’ counsel, in their brief, claim a loss for their' clients, under the proofs, of $6,987.30. They also say that Weiss and Goring, two witnesses employed by complainants to examine the patterns, “estimated the loss on patterns to be $5,571.” I find no testimony in the record to sustain this statement. Neither Weiss nor Goring testified to the amount of damages made by them, except by reference to their schedule, known as “Exhibit Z2,” in the record. This schedule does not pretend to show the loss on patterns. There is a column headed “Sound Value,” and another, “Loss.” There are no figures whatever in the column “Loss,” while the column “Sound Value’’figures up $6,904. There is another part of the schedule without any heading or anything to explain what' it means. The dollars column foots up $408.
But, if their testimony were as stated, there is no reason in saying that it was not as much too large as that of Caryl and Douglas was too small. Nor is there any reason for saying that the judgment of the former was better than the judgment of the latter. If Weiss and Goring had been chosen by the parties as appraisers, and had made an award to the full extent of the loss now claimed by the complainants, and if defendants had then employed Caryl and Douglas to make an appraisal, and they had fixed the damage at $740, would their conclusion as to the value show that the appraisal of' Weiss and Goring was grossly excessive, so as to stamp the award as fraudulent and void ? None of the machinery was destroyed. It was only damaged by water, and this damage was caused mainly by rust. The damage by rust would be greater the longer the machinery stood uncleaned. The patterns of a foundry and machine shop have no market value. Their value depends upon their condition, the use to which they can be put, and whether the machines for which they are made are in common use, or whether they are what is known as dead ” patterns. It is one of those cases where honest appraisers may honestly differ, and where prejudiced appraisers would be likely to fix amounts according to the wishes of their employer. In such cases the only safe rule is to sustain that appraisal to which the parties have agreed, especially when such appraisal is under oath, and made at a time when the damages can be most justly appraised.
The decree is reversed, and the bills dismissed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
(after stating the facts). The court said there were two theories upon which plaintiff might have proceeded: (1) That the note was lost; and (2) that, if it was not lost, the declaration ought to apprise defendant of the plaintiff’s claim of the manner in which the note came into her hands. Before bringing suit plaintiff knew that defendant had the note in her possession. The payor of a promissory note cannot be subjected to a suit, and compelled to accept a bond of indemnity under the statute, when the payee knows where the note is, and has it in his power to produce it in court. It is not necessary to determine whether the note is negotiable or nonnegotiable. The suit is between the payee and the payor. No third person is interested. The note, which is only evidence of the debt, was in the possession of the payor, the defendant. The declaration does not allege that plaintiff is in possession of the note, but only that it will give it in evidence upon the trial. Plaintiff took the proper and legal steps to do so, and they resulted in the production of the note in court. The sole question for determination was, Had it been paid ? Undoubtedly the possession of the note by the payor made a prima facie case of payment, and threw the burden upon the plaintiff to prove nonpayment. If defendant had not paid it to an authorized agent of plaintiff, the question would be, Was it paid by defendant to some one under such circumstances that the law protects her in doing so ? The court below based its decision on McKinney v. Hamilton’s Estate, 53 Mich. 497 (19 N. W. 263). That case does not apply. The note there was in the possession of a third person claiming title to it, and having the usual marks of ownership. The holder of the note was not made a party litigant, and the estate might have been subjected to two suits, and to two judgments against it. It was held that the claimant must be prepared to produce the note in court upon the trial, so as to be properly marked and impounded. In the present case the nóte is in court, and under its control. All the parties interested are in court, and are parties to the suit. Plaintiff asserts ownership, nonpayment, and that the note did not come lawfully into the possession of the defendant. The declaration asserts ownership and nonpayment. The defendant in her plea asserts payment. The issue is clearly drawn by the pleadings, and both parties understood it. The ruling of the court was erroneous.
Reversed, and new trial ordered.
The other Justices concurred. | [
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McDonald, P.J.
Plaintiff Clinton Township brought this action for declaratory judgment against defendants City of Mount Clemens and Cynthia Winkler to prevent Mount Clemens from annexing property located in Clinton Township. Following a nonjury trial, the trial court ruled that Mount Clemens met the statutory requirements for annexation under MCL 117.9(8); MSA 5.2088(8), which allows a city to annex by resolution vacant property owned by the city. Plaintiff appeals as of right from this finding.
After the opinion was issued, Clinton Township moved for a stay to prevent Mount Clemens from annexing the property pending resolution of the appeal. Before the trial court ruled on the township’s motion, the city annexed the property. The trial court then granted the township’s motion to vacate the annexation resolution and granted a temporary stay. Defendant City of Mount Clemens appeals from this order as of right. Defendant Cynthia Winkler is a not a party to these appeals.
The trial court subsequently denied the township’s motion for a stay. The township timely filed an appeal to this Court, which granted the township’s motion to restore the preliminary injunction. That order also granted the township’s motion for immediate consideration. The two appeals were consolidated by order of this Court. This Court denied the township’s motion to dismiss the city’s appeal for mootness.
Mount Clemens purchased the subject property from Cynthia Winkler on March 6, 1986. The property, approximately thirteen acres, is adjacent to the city in Clinton Township and is commonly known as the Mount Clemens racetrack. Under the terms of the purchase, Winkler retained ownership of personal property on the premises and the right to remove all salvageable materials from the buildings on the property. Several items were removed, rendering the remaining buildings or structures useless, not habitable or suitable for renovation. The township alleged the city deliberately rendered the buildings useless and refrained from using the property in order to render the property vacant as it intended to annex the property by resolution pursuant to MCL 117.9(8); MSA 5.2088(8). Although a dispute existed as to whether a small parcel of the thirteen acres was subject to a life estate, thus delaying the city’s right to possession, that dispute was being litigated in a separate suit.
Several orders were entered preventing both Winkler and the city from causing further demolition of the buildings on the racetrack. A preliminary injunction against the city prohibiting adoption of an annexation resolution pending the court’s decision on whether the statutory grounds for annexation were met was entered on December 5, 1986.
On appeal defendant city claims the trial court erred in vacating the city’s resolution annexing the property.
Clinton Township argues that this Court’s order reinstating the preliminary injunction preventing annexation renders moot the issue of the legality of the trial court’s order vacating the resolution. We disagree.
An issue is moot when an event occurs which renders it impossible for the reviewing court to grant relief. Crawford Co v Secretary of State, 160 Mich App 88; 408 NW2d 112 (1987). This Court’s order restoring the preliminary injunction does not render impossible the reversal of the lower court’s order vacating the city’s resolution and the granting of the relief sought by the defendant. Therefore, defendant’s appeal is not moot. Addressing the merits of defendant’s appeal, we conclude the trial court did not err in vacating the city’s annexation resolution.
The trial court vacated the annexation resolution, finding the city’s action to be in violation of the twenty-one-day automatic stay of execution of judgment contained in MCR 2.614(A)(1). The city argues that MCR 2.614(C) applies since the township’s actions sought injunctive relief and thus contends the automatic stay contained in subsection (A)(1) is inapplicable.
Although we agree subsection (C) applies to the portion of the court’s judgment denying the township’s request for injunctive relief, the township’s action was not merely one requesting injunctive relief. The main thrust of the township’s action was declaratory in nature. Thus the portion of the judgment declaring the rights of the parties remained subject to the automatic stay provision of MCR 2.614(A)(1). The city’s resolution to annex the property, having been passed within twenty-one days of the judgment, violated MCR 2.614(A)(1). We therefore find no error in the trial court’s vacation of this resolution.
Plaintiff raises two issues on appeal. Plaintiff first claims the trial court erred in holding that MCL 117.9(8); MSA 5.2088(8) allowed defendant to annex property which defendant had rendered vacant.
The statute in question requires in part that the territory proposed to be annexed by the city be adjacent to the city, owned by the city, and vacant. It is undisputed the property at issue was adjacent to and owned by the city. Thus these requirements of the statute are met. However, the township contends the trial court erred in finding the property was vacant for purposes of the statute, as the property was not vacant when the city acquired it. The township contends the statute does not allow annexation of property made vacant by the city’s own actions. We disagree.
To limit the application of MCL 117.9(8); MSA 5.2088(8) to property which is vacant when acquired by a city imposes a requirement not found in the language of the statute. Such a requirement would also impede the statutory intent of expediting the annexation of city-owned property. See Pittsfield Twp v Saline, 103 Mich App 99; 302 NW2d 608 (1981).
Mount Clemens was the legal owner of the racetrack property. As the owner, it could demolish existing structures and discontinue the present use of the property. In Saline, supra, this Court noted the city-owner’s ability to terminate farm-lease agreements and remove crops from the property and held the property was vacant under the statute notwithstanding the cultivation of seasonal crops. Mount Clemens’ actions in making the property vacant did not constitute a ruse like the scheme in Rutland Twp v City of Hastings, 413 Mich 560; 321 NW2d 647 (1982), where the city became the owner only for the time necessary for annexation. In this case, Mount Clemens acted as the true owner of the property and we therefore conclude that making the property vacant does not contravene the legislative intent of MCL 117.9(8); MSA 5.2088(8).
The township raises several arguments in support of its claim that the city did not act in good faith. However, we find none of these arguments justifies enjoining the city from exercising its rights under the statute.
Plaintiff next argues the city’s annexation of the property in question would be improper as it would create an enclave and irregular boundaries.
The trial court’s February 5, 1987, opinion states that Mount Clemens was also involved in a lawsuit to determine whether a part of the racetrack property was subject to a life estate. No one was living on the alleged life estate parcel, and it was vacant. Nothing in the court file or briefs indicates the disposition of that case. The township argues that annexation would create an illegal enclave consisting of the life estate. The city argued that no enclave was created because one half of the road linking the life estate parcel to the township remains in Clinton Township.
An enclave is a tract of territory enclosed within a foreign territory. Although cities may not annex territories so that enclaves are created, Pittsfield Twp v Ann Arbor, 86 Mich App 229; 274 NW2d 466 (1978), after reviewing the record in the instant case, we do not believe that the city’s annexation of the instant property will create either an enclave or impermissible irregular boundaries.
The trial court’s declaratory judgment and order vacating the annexation resolution are affirmed and this Court’s preliminary injunction is dissolved.
Except as provided in this rule, execution may not issue on a judgment and proceedings may not be taken for its enforcement until the expiration of 21 days after its entry. If a motion for new trial, a motion to alter or amend the judgment, a motion for judgment notwithstanding the verdict, or a motion to amend or for additional findings of the court is filed and served within 21 days after entry of the judgment, execution may not issue on the judgment and proceedings may not be taken for its enforcement until the expiration of 21 days after the entry of the order on the motion, unless otherwise ordered by the court on motion for good cause. Nothing in this rule prohibits the court from enjoining the transfer or disposition of property during the 21-day period.
If an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court may suspend, modify, restore, or grant an injunction during the pendency of the appeal on terms as to bond or otherwise that are proper for the security of the adverse party’s rights. | [
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Grant, J.
(after stating the facts). 1. Defendant’s counsel urged that defendant, by entering upon another term, had obtained the right of occupancy for a year, and was entitled to one year’s notice before complainant could legally proceed to terminate the tenancy. The court held that the case was controlled by Teft v. Hinchman, 76 Mich. 672 (43 N. W. 680), and in this it was correct.
2. Upon the hearing before the commissioner, defendant moved to quash the proceedings for the reason that a chancery suit was pending between the parties, involving the same cause of action, and in which an injunction was asked for by the defendant here and complainant in the chancery suit against the complainant here, who was the defendant there. At the trial in the circuit court defend-. ant renewed the motion. The court correctly held that the defense of a. former, suit pending could not be raised in this way, but only by a plea in abatement, which must be verified.
Judgment is affirmed.
Montgomery, C. J., Hooker and Moore, JJ., concurred. Long, J., did not sit. | [
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] |
Grant, J.
(dissenting). The city of Detroit, through its board of public works, made a contract with one Julius Porath to repave National avenue “in conformity with the specifications and estimates hereto attached and made part of this contract, * * * and according to all the conditions herein named.” The other parts of the contract, so far as plaintiff’s counsel has considered it material to state them, are as follows:
1. “To erect and maintain a good and sufficient fenco, railing, or barrier around any and all excavations necessary for said work, in such a manner as to prevent accidents.”
2. “To do all work * * * in a manner to interrupt as little as practicable the free use of the street by the public.”
3. “Private drives and street crossings to be kept open, as far as practicable, to the satisfaction of the board, of public works.”
4. “Travel upon the street or upon any intersecting street * * * shall not be hindered or inconvenienced needlessly.”
5. “No portion of the roadway or street * * * shall be wholly obstructed without the direction of the board of public works, in which latter case the contractor shall cause plain and properly worded signs, ‘Street Closed,’ announcing such fact, to be placed with proper barricades at the nearest cross street upon each side of such obstructed portion, and upon intersecting streets.”
The further conceded statement of facts is as follows: In July, 1899, the plaintiff was a stranger in the city, visiting her aunt on Elm street. Elm street runs east and west, and crosses National avenue at right angles. The city was repaving National avenue. The work of tearing up the old pavement had been commenced several blocks south of the Elm-street crossing, and was progressing towards Elm street. A trench for the resetting of the new curbstone had been excavated along the easterly line of the National-avenue roadway to a point north of the south crosswalk of the Elm-street intersection. There is a conflict in testimony as to the width of this trench, running from 18 inches to 3 or 4 feet. The depth of the trench was about 3 feet. The old paving blocks in the roadway outside of the excavation had not been disturbed. The roadway of Elm street across National avenue had been left open for the use of the public. Barricades bearing signs of “Street Closed” had been placed, facing north and south, across the roadway on National avenue at the Elm-street intersection, to prevent the passage of teams up or down National avenue. There were no barricades or signs to prevent the passage either of teams along the roadway of Elm street across National avenue, or of pedestrians along the Elm-street sidewalks across National avenue; on the contrary, planks were placed across the trench at the intersection of the south Elm-street sidewalk, for the use of the public desiring to cross National avenue along the south side of Elm street. These planks were placed over the excavation by order of the contractor. There is no testimony that the city either knew, authorized, or sanctioned their use. Plaintiff walked along the south sidewalk of Elm street towards National avenue, and, in walking over these planks, fell, and was injured. She might have passed over to the other side of the street, or passed around the excavation in the street. Her claim is that the planks were unsafe; that, when she stepped upon one of them, it turned and threw her. The court directed a verdict for the defendant, upon the ground that the contractor was acting outside of his contract in providing these planks for travelers to pass over; that the placing of the planks was not obligatory upon him, but was collateral to the contract which he undertook.
Porath’s contract obligated him to protect travelers against excavations he was authorized to make by putting up fences, railings, or barriers to warn travelers, and to keep them from attempting to cross the excavations. It contains not a sentence indicating any authority on his part to bridge these excavations, either for travelers on foot or in carriage. Such temporary bridging was not contemplated by the contract. The negligence of the contractor for which the city is responsible in the first instance must be an act either of omission or commission naturally incidental to the work agreed to be done. For acts of the contractor not thus incidental to the work the city cannot be held liable until it has knowledge, either express or implied, of such acts. Was it understood by this contract that Porath might place planks over the excavations in the street for teams to pass over, in order to interrupt as little as possible the free use of the street by the public ? Clearly not, for the contract expressly contemplated the interruption of public travel by the excavations, • and expressly provided means to prevent travelers from crossing. If Porath had obstructed the street or sidewalk ,by leaving a wagon or piece of machinery in or upon it at night, or by putting his tools or machinery upon the sidewalk or in the street near the excavation, would the city be liable until it had notice of such obstructions? These are not acts of negligence provided against by the contract. They are independent acts of negligence, for which the city is not liable without notice. Could Porath bind the city by his act in inviting travelers to pass over the excavation on two loose plapks, while the contract required him to pre vent such crossing by putting up barriers ? No bridge was necessary in order to interrupt as little as possible public travel. A few feet would take the traveler around without any substantial delay or interruption. Besides, delays and interruptions are inevitable in such cases, and the public understand it. Plaintiff testified that “these boards were about four inches apart and about a yard long, and it occurred to me that at night it would be dangerous to walk across those boards on account of their being separated.” No case is cited which involves this question. Cases of liability of municipalities for obstructions and defects in streets and sidewalks are numerous. All of them, so far as I have been able to examine, are cases where the contractor has failed to warn travelers by neglecting to put up signals, lights, or barriers, or to do something to warn travelers of the dangerous character of the situation. I find none where the contractor has assumed to make a temporary bridge for the passage of travelers.
The circuit court was right, and the judgment should be affirmed.
Hooker, J.
In excavating for the setting of the curb, the contractor had not found it necessary to wholly stop public travel across the street. It was only necessary to make a temporary walk, bridging the excavation at that' point, which could be used at all times during the prosecution of the work of setting the curb, except when work was being done at that particular point. Had not the contractor provided a bridge at this point, the city might have complained of a breach of his contract, which provided that he should “do all work * * * in a manner to interrupt as little as practicable the free use of the street by the public.” It provided that even “private drives and street crossings should be kept open so far as practicable,” and expressly stipulated that “travel upon the street [being paved] or upon any intersecting street should not be hindered or inconvenienced needlessly.” Again, it was provided that “no portion of the roadway or street shall be wholly obstructed without the direction of the board of public works.” The foregoing quotations indicate that the city had every reason to suppose that the crossing would be kept open so far as it was practicable, and, as the excavation was somewhere between 18 and 48 inches in width only, the feasibility of a plank bridge would seem palpable; and such a bridge would, if apparently stable, justify a pedestrian in crossing the gutter upon it, instead of walking around the corner in the roadway, to avoid crossing the excavation.
The law imposes upon the city the duty of keeping its ways in a condition reasonably safe for public travel. Necessarily, there must be times when they cannot be in good condition, — as when they are undergoing repairs,— and at such times travelers must heed the obvious dangers. But the city is not absolved from all care and responsibility at such times, nor can it absolve itself by turning the highway over to a contractor. As between it and the public, it must see that such portion of the way as is open for use • — at least where it is so under the terms of its contract with the contractor — is kept in a condition reasonably safe under the circumstances; and if it should be kept open under the contract, it should see that the contract is performed in that respect. In other words, a city cannot, by merely contracting with somebody that he will keep the street in a condition reasonably safe (whether the contract specifies the method or not), relieve itself from the statutory liability, and impose it upon another. Thus a contractor may promise to keep a trench fenced, or signal lamps in it at night, and do neither. One injured in consequence is not without remedy against the city, for the statutory responsibility rests there. Pettengill v. City of Yonkers, 116 N. Y. 558 (22 N. E. 1095, 15 Am. St. Rep. 442); Monje v. City of Grand Rapids, 122 Mich. 645 (81 N. W. 574); Baker v. City of Grand Rapids, 111 Mich. 447 (69 N. W. 740); 2 Dill. Mun. Corp. § 1027, and note; City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78); Southwell v. City of Detroit, 74 Mich. 438 (42 N. W. 118). It is true that a temporary bridge need not be as well built and safe as a permanent one, and it may be that one or more planks loosly laid over an excavation, to be used for a few minutes, or an hour, day, or week, may be a reasonably safe substitute, for the pedestrian can see the character of the temporary structure, and must act accordingly, and will be held to a corresponding degree of care.
The learned circuit' judge construed the contract to mean that it was the duty of the contractor to interrupt travel for as short a time as possible at a particular point, but was of the opinion that it did not require or authorize him to substitute temporary structures for the more stable ones in common use, and, if he did so, and persons used them, they could only look to him for redress; and hence that, under the circumstances of the case, the contractor should have built no bridge, and that the public would not then have been justified in attempting to cross the gutter, and, if one chose to do so, he would assume the risk, so far as the city is concerned. This is a construction not without force, but we think it loses sight of the provisions of the contract requiring that the roadway should not be wholly obstructed at a given point without authority, and the fact that all of the work was done under the supervision of the city’s board of public works, and also that these bridges were made at the different street crossings during the progress of the work, and the city must have known it. At the very least it would seem to be a question whether the parties did not place upon the contract the construction contended for by the plaintiff. When we take into consideration the fact that the usual, and perhaps necessary, method of setting curb is to complete the excavation for the given section, and follow it by setting the curb, commencing at one end and going to the other, and at a later time completing the gutter, thus necessarily preventing completion at one point in a short time, the construction of the contract contended for by the plaintiff’s counsel does not seem to us unreasonable.
I am of the opinion that the judgment should be reversed, and a new trial ordered.
Montgomery, C. J., Moore and Long, JJ., concurred with Hooker, J. | [
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] |
Montgomery, J.
In 1890 one Henry Gamble commenced an action of replevin against the petitioners in this case, and, upon the seizure of certain lumber under his writ, gave the statutory bond, with Patrick M. Gamble, whose estate is defendant in this suit, and Archibald G. Lindsay, complainant in this suit, as sureties. The lumber was sold for between five and six thousand dollars, and the proceeds turned over to said sureties, who for some years previous to this time were partners in the lumber business. The proceeds were deposited in the bank to the credit of the firm, and through the misunderstanding of the bookkeeper, as he testifies, were credited to Henry Gamble in his open account with the firm. The bookkeeper testifies that at a later date Patrick M. Gamble told him that “the money was paid to Lindsay & Gamble in trust, and although Henry Gamble had an interest in it, or might have, some one else claimed an interest in it, and it might not belong to Henry Gamble, and it might have to be paid to some other partythat the bookkeeper said that in that case he had better open up a separate account for it; and that Mr. Gamble replied, “Yes; do that.” The entry correcting the bookkeeper’s error and opening a new account, called, “Henry Gamble Replevin Account,’] was not made until, some time later, — several months after Patrick M. Gamble’s death. Mr. Lindsay’s testimony as to the understanding under which the money was received is as follows:
‘ ‘ Mr. Patrick M. Gamble came to me and told me that Henry Gamble wanted me and Patrick to sign the replevin bond, and stated there was no risk, because we should receive the property, or the proceeds of the property, as security against any liability that we might incur. On this fact I consented to sign the bonds with Patrick M. Gamble, and I received, not the lumber, but the proceeds of the lumber, in the sum of $5,000, or a little more. Lindsay & Gamble received it, but put it in their bank as security against any loss that might be sustained from the determination of the suit.”
Patrick M. Gamble died in February, 1891. In March, 1892, Mr. Lindsay filed the original bill in this case, asking for an accounting and winding up of the partnership business. In December, 1895, petitioners obtained judgment against Henry Gamble in the action of replevin for upwards of $7,000, having waived judgment for the return of the lumber. Execution against Henry Gamble was returned unsatisfied, and petitioners sued Mr. Lindsay on the bond and obtained judgment. Upon learning of the fund deposited with Lindsay & Gamble, they filed this petition to have it applied upon their judgment. Petitioners have never taken steps to obtain judgment on the bond against the estate of Patrick M. Gamble. The firm of Lindsay & Gamble is solvent, but Patrick M. Gamble’s estate is not.
It is claimed by counsel for the administrator that between the entry in November, 1890, and the second entry in August, 1891, “ the money had been applied to the payment of Henry Gamble’s paper, as far as it would go.” We are unable to find any testimony in the record to this effect, except what implication may arise from his having been credited with the money upon the books of the firm; and, as to that, it does not appear that the entry was acceded to by either of the sureties. It is true that the firm of Lindsay & Gamble paid out moneys on account of Henry Gamble, and Henry Gamble became their debtor; but the payments were made upon obligations previously incurred, and it does not appear that it was their intention to devote this particular fund to that purpose.
It was decided in Mannausau v. Wallace, 87 Mich. 543 (49 N. W. 1082), that the mere institution of an action of replevin and the giving of the bond by the plaintiff does not operate to pass title to the plaintiff; that the defend ant may, notwithstanding, repossess himself of the property, if it is in fact his properly. It would seem to follow that, where he is able to identify the fund realized upon a sale of such property, he would be entitled to pursue that fund. On the other hand, if we assume that, upon taking judgment, the defendants in replevin became creditors of the plaintiff in replevin, Lindsay and Gamble were sureties, and we can see no reason why, as to a fund in the hands of Lindsay & Gamble, received as a security for these sureties, the principal creditors may not be subrogated. In fact, we think the case of Union Nat. Bank v. Rich, 106 Mich. 328 (64 N. W. 339), is ample authority for such substitution. It should be noted that it is the theory of the appellant that the undertaking of Lindsay and Gamble upon this bond was not a copartnership undertaking at all, and this is apparently correct. The proceeds of this lumber were paid to them, not for the purpose of liquidating a liability to the partnership, but as security. Evidently for convenience, the fund was deposited in the firm account of Lindsay & Gamble. The assets of the firm were increased by that amount. The firm is solvent. There is no equity in permitting this fund, now in the hands of the receiver, to be diverted to the individual creditors of either of the partners.
The learned circuit judge decreed a payment by the receiver to the petitioners of the proceeds of this lumber, together with the earnings of said fund while in the hands of the receiver. We think the petitioners were entitled to this order, and the same will be affirmed, with costs.
Hooker, O. J., Moore and Grant, JJ., concurred. Long, J., took no part in the decision. | [
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] |
Montgomeky, C. J.
George Milks was, by occupation, a farmer, and was married to the defendant Hannah Milks in 1894. Previous to the marriage of George Milks, complainant had lived with him as his housekeeper for a period of 15 years or more, and had done the woman’s work on his farm. Complainant was visiting relatives in the State of New York at the time of the marriage, and, some months afterwards, returned, at the request of George Milks, and continued to reside in his family. The defendant Hannah Milks being ill a portion of the time, the burden of the household cares fell upon complainant, in large part. In the month of October, 1895, George Milks gave complainant his note for $600, the consideration being the services which she had rendered for him prior to his marriage. In the month of January, 1896, a new agreement was made between the parties. The note appears to have been surrendered and canceled, and an agreement signed by George Milks and his wife, witnessed and acknowledged, containing the following provisions:
“For and in consideration of past, present, and future services, and, as well, duty, and by mutual agreement and understanding, said first parties do hereby agree to and with said second party to maintain, care for, and support said second party during her lifetime; to do so in a good, substantial, proper, and, in every particular, suitable manner, for people who are surrounded in similar circumstances; to furnish said second party with a reasonable amount of expense money, surroundings to be considered; to make home pleasant and agreeable for second party; and to be kind and considerate to and with second party at all times, second party being mother to George Milks. This agreement being given to protect second party in and during her old age, for care, support, and maintenance, both in sickness and in health; said support and maintenance to be complete, ample, and sufficient at all times to be considered reasonable and proper. And it is hereby further agreed that said second party is hereby given a lien on the southwest one-quarter of the southeast one-quarter of section thirty-two, in town thirteen north, of range nine west, in Mecosta county, State of Michigan, for the full, complete, and faithful performance of the above agreement; same to be considered and treated in the nature of a.collateral mortgage, and is so intended.”
Complainant continued to live in the family of George Milks until his death, which occurred in June,-1899. Since his death, she has received no support from his estate, nor from defendant Hannah Milks, and this bill is filed to enforce the lien provided for in the written agreement. The circuit judge dismissed-the bill, and complainant appeals.
The record does not disclose the ground upon which the circuit judge decided the case, but the substantial grounds urged- here in support of the decree are that the agreement covered the homestead of the parties; that the defendant Hannah Milks, at the time of its execution, was incompetent, and was induced to sign the agreement upon a statement by her husband that it would be of no binding force; and that the complainant refused to live upon the premises after the decease of her son, and, there fore, that there has been no breach of the agreement. As to the last claim, it appears that Hannah Milks broke up housekeeping upon the death of her husband, and went to live with a married sister, and has never been in a position since to furnish a home for complainant. It is true she testified that she requested the complainant to remain with her at the house, but it is evident that this was intended ofily to be temporary, as she testifies that she thought she could stay there until the crops were taken care of. The defense that the defendant Hannah Milks was assured by her husband that the instrument would be of no binding force cannot prevail, as it appears that the instrument was read to her, and its purport is clear, and could not have been misapprehended, if Hannah Milks was at the time competent to transact business. The principal question in the case is as to her competency. A careful reading of the testimony satisfies us that she was not incompetent at the time this instrument was executed. It is true that Dr. Darr, who attended her in February, 1895, and saw her again in March, states that she was suffering from a little mental trouble, and diagnosed it as a little temporary trouble which he thought she would soon get over. This was nearly a year before the instrument was executed. Other witnesses were called by defendants to show the incompetence of Hannah Milks, and gave testimony in terms stronger than that of the doctor. On the other hand, witnesses on behalf of complainant testified that Hannah Milks appeared to be sane, although she was ill. It is undoubtedly true that, at times, her mind might have been more or less clouded. But the most convincing testimony in the case is that given by defendant Hannah Milks herself, from a careful reading of which we are satisfied that, at the time it was signed by her, she understood what the purpose of the instrument was, and fully comprehended it, and that she signed it understanding the obligations which it created. The circumstances surrounding the transaction show it to have been an eminently fair agreement.
We think the complainant is entitled to a decree foreclosing the lien for the present worth of an annuity for her expectancy of life. The annuity, based upon the testimony, will be fixed at $125 per year, and the present worth, including the period which has elapsed since the decease of George Milks, is $1,286.25, for which amount decree will be entered, with costs of both courts.
Hooker, Moore, and Grant, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
The plaintiff is a wholesale dealer residing and doing business at Chicago, 111. The defendants are retail dealerá residing and doing business in the village of Pentwater, in this State. On the 8th of May, 1900, defendants were indebted to plaintiff for goods purchased to the amount of $192.39, which account was subject to a discount if paid within 30 days, leaving the account, if paid in the month of May, $184.29. The defendants, on the 8th day of May, 1900, mailed to plaintiff their check, drawn on Nielsen & Co., bankers at Pentwater, for $184.29. Plaintiff, on the 10th of May, 1900, received said check, and deposited it with the First National Bank of Chicago for collection, which bank forwarded the check by mail to Nielsen & Co., who received the same on May 11th, but made no remittance therefor. The defendants, after learning of the receipt of said check by plaintiff, heard nothing further concerning it until on or about the' 22d day of the same month, on which day they were notified by plaintiff that the check had not been paid. Nielsen & Co. continued to do business to and including Saturday, the 19th day of May, but did not open their doors on Monday, the 21st, and on or about the last-named day said bank was put into the possession of a receiver. The receiver returned the check to plaintiff. There was a mail twice daily each way between Pentwater and Chicago; also an express daily each way, with usual route and local agents. It is the claim of defendants that when said check was drawn, and at all times, defendants had sufficient funds on deposit at said bank to meet said check. In July the bank of Nielsen & Co. was declared bankrupt. The petition filed in the United States district court to have said firm adjudicated bankrupt states two grounds of bankruptcy, — one as occurring on the 23 d of April, 1900; the other, on the 18th of May following. The defendants claim there was no evidence that the defendants had no money in the hands of Nielsen & Co. at the time the check was drawn, or that they had reason to believe the check might not be paid on presentation.
The trial judge instructed the jury, among other things, as follows:
“1. If you find that defendants had no effects in the hands of Nielsen & Co. at the time the check in question was drawn, and had no reason to expect any, and had reason to believe that the check would not be paid when presented, notice of dishonor could do them no good, and want of notice would not be a defense.
“2. If you find that, at the time the check was drawn, the drawee bank was in an insolvent condition, that checks drawn by defendant on said bank while he had funds there had not been paid when presented, and defendant had knowledge of this fact, which he did not communicate to the plaintiff, and plaintiff had no knowledge of such insolvent condition, the drawing of a check under these conditions is a fraud on the payee, and defendant was not entitled to notice.
“3. If you find that the defendants drew a check for the purpose of using that as a means of withdrawing their funds from the bank in anticipation of its failure, and sent it to the plaintiff, who was ignorant of its condition, they were not bona fide makers, and cannot plead want of notice.
‘ ‘ 4. Inasmuch as checks are payable in current funds, and inasmuch as the bank cannot act as agent of both parties, it is a duty to have them presented by some party., who can receive the funds. In this case, as the evidence shows, the presentation was made by mail; and they unquestionably asked the parties to remit, and that would be, of course, by draft. Those things are established.”
The judge told the jury the check had not been properly presented, and then said:
“The plaintiff says that, while that may be a rule, they are exonerated from taking that course, because of the fact that Nielsen & Co. were insolvent, and because of the fact that defendants here knew that they were insolvent, and knew, or had a right to know, that if the check was presented there it would not be paid, and consequently they have not suffered. Well, if they have not, gentlemen, and they knew these things, and that check was' sent for the purpose and did commit a fraud on the parties to whom they sent it, by drawing a check upon a bank, — a check that was absolutely worthless, — and sending it to them, why, they are not entitled to notice; they have not lost anything because it was not presented there by some man in proper person; and, if you find that to be the fact from the evidence in the case, of course, your verdict will be for the plaintiff.
'“5. There is another reason why the plaintiff claims that the defendants are not entitled to notice, and that is that the defendants did not have any funds there to pay the check at the time it was drawn, at the time it was presented, taking into consideration the other drafts they had made. Now, if that is true, of course, the defendants were not entitled to notice.
“6. Now, those are really the two questions of fact upon which you gentlemen must pass. Was the situation such, and were they known to the defendants in this case at the time that the check was drawn, that they committed a fraud by imposing upon plaintiff, to whom they sent this check? If they did, the plaintiff is .entitled to recover.
“7. If they did not have any funds there with which to pay the check, the plaintiff is entitled to recover. ”
To which. instructions error is assigned. Under the charge, a verdict was rendered in favor of plaintiff and against the defendants for the sum of $199.80.
It is claimed there was no evidence to support the instructions. The testimony of Mr. Fincher tends to show that, while the bank books showed a balance of $775.22 in favor of defendants, when the check in question was drawn the firm had accepted a draft and drawn checks that were-outstanding, amounting to $773.06. As against this testimony, there was testimony tending to show the defendants had funds in the bank sufficient to pay this and all other outstanding checks, and that the bank had funds when the check was received at the bank, and that, if the check had been presented over the counter, it would have been paid. This raised a question for the jury.
It is pretty well settled in this country that when a check is sent to some other place than where the bank is located upon which it is drawn, and it is put into a bank for collection, it is the duty of the bank to forward it in proper time to a subagent selected with due care. The' bank should use every reasonable precaution to secure the collection, if possible; and if it has been careless in the •choice of an agent, and selected one it knew, or ought to have known, was an improper one, it will be answerable for any injury which results therefrom. The bank upon which a check is drawn is not a suitable agent for its collection, and the judge was right in so instructing the jury. 1 Morse, Banks (3d Ed.), § 236. But even though an improper agent has been selected, if the drawer of the check had no funds with which to pay the check hád it been presented in proper time, or if the bank had no funds with which to pay it, no harm has come to the maker of the check, and, if given timely notice, he would continue to he liable; but if, on the other hand, as claimed by the defendants, the maker of the check had funds to his credit in the bank, and the bank had funds, and the check would have been paid if presented over the counter in ■proper time, then the maker of the check would have been discharged.
We do not think, under the evidence in the case, it was proper to say to the jury that they might say, under the facts, proven, that defendants committed a fraud by sending plaintiff this check. It is true, the defendants had learned facts from which they might infer that the bank was not as strong as many banks; but it does not appear that they had any reason to suppose that, if the check was presented properly and in a reasonable time, it would not be paid. They had a right to assume that the plaintiff was familiar with the law, and, if it accepted the check, it would select a proper agent to present it, and that it would be presented in proper time, and, if it was not paid, defendants would be notified. If the plaintiff had done what it was its duty to do, no harm would have come to it. If the check was paid, that would have ended the •transaction. If it was not paid, defendants would have been notified, when it would have been their duty to make the check good, and no harm would have come to the plaintiff. This being so, we cannot see how the inference of fraud could be drawn from what was done.
For these reasons, judgment is reversed, and a new trial ordered.
Hooker, C. J., and Grant, J., concurred. Long and Montgomery, JJ., did not sit. | [
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] |
Hooker, C. J.
The plaintiff is administratrix of one Alfred Cope, and commenced this action by declaration, under the statute, to recover, for the benefit of Cope’s widow and children, for the negligent causing of his death. The declaration is in two counts, the first of which alleges, in substance, that the city was possessed, in 1894, of a lot containing 40 acres of land, upon which was an old building that had been used by the defendant as a hospital for contagious diseases, particularly smallpox. In November, 1894, the defendant began the erection of a new building designed for a similar use, and employed the plaintiff’s intestate, who was a carpenter, to work upon the same. The new building was located in close proximity to the old one, and it is alleged that said old building and the surrounding grounds were infected with smallpox germs, making it dangerous for any person to be in of upon them. The plaintiff’s intestate was attacked by smallpox, and, after an illness of a month’s duration, died from the disease. It is alleged that the defendant was negligent in not using reasonable care to furnish him a safe place to work, and in not warning him against said dangers, and in not constructing the new building at a greater distance from the old one, and in not causing the old building and the ground to be disinfected. The second count alleges that the deceased was employed to tear down the old building, and that while so engaged he was exposed to the smallpox, and by reason thereof was seized with said disease and died. This count was otherwise similar to the first, except that it alleges that defendant assured the deceased that it was safe for him to work upon and about said building. A demurrer was interposed, which upon the hearing was sustained; and, plaintiff not having amended the declaration within the time prescribed by the order, judgment followed, and the plaintiff has brought the case to this court by writ of error. The only question presented by counsel is whether a municipality is liable for the injury or death of an employé resulting from circumstances like those alleged, and therefore it is the only one discussed.
The law imposes upon the city the duty of taking measures for the preservation of the public health, through a board of health, whose powers and duties are statutory. Sections 376-381, Detroit Charter 1893. See, also, 2 Comp. Laws 1897, §§ 4410-4467. Section 4448 makes it a duty of the board of health of the township to provide a hospital or place of reception whenever smallpox, or any other disease dangerous to the public health, shall break out in any township, and section 4444 authorizes the establishment of permanent hospitals by the townships, while section 4459 makes the law applicable to cities; and it seems to be admitted that the city acted under these statutes.
It is the well-settled rule that the State is not liable to private persons who suffer injuries through the negligence of its officers; and the rule extends to townships and cities, while in the performance of State functions, imposed upon them by law. This subject is fully discussed in City of Detroit v. Blackeby, 21 Mich. 84 (4 Am. Rep. 450). It was there held that cities are governmental agencies, and that their officers “are in no such sense municipal agents that their negligence is the neglect of the municipality; nor will their misconduct be chargeable against them, unless the act complained of be either authorized or ratified.” And in a large number of cases it has been held that there is no such liability on the part of such governmental agency unless it has been imposed by statute, and in such case it is necessarily limited by the statute. Commissioners of Highways of Niles v. Martin, 4 Mich. 557 (69 Am. Dec. 333); Township of Leoni v. Taylor, 20 Mich. 148; Larkin v. County of Saginaw, 11 Mich. 88 (82 Am. Dec. 63); Fowle v. Common Council of Alexandria, 3 Pet. 398; Black v. City of Columbia, 19 S. C. 412 (45 Am. Rep. 785); Gilboy v. City of Detroit, 115 Mich. 121 (73 N. W. 128); Maxmilian v. Mayor, etc., of New York, 62 N. Y. 160 (20 Am. Rep. 468); Webb v. Detroit Board of Health, 116 Mich. 516 (74 N. W. 734, 72 Am. St. Rep. 541); Carrington v. City of St. Louis, 89 Mo. 209 (1 S. W. 240, 58 Am. Rep. 108); Eastman v. Meredith, 36 N. H. 298 (72 Am. Dec. 302).
Counsel for the plaintiff seem to admit the general rule that a municipality is not liable for- injuries received through the negligence of its officers while acting in the capacity of governmental agents. They allege, however, that the city owned the premises, and contracted with the -deceased, and owed the duty of -warning him against hidden dangers; that the city is subject to the same responsibility to warn those upon its land against pitfalls that other landowners are subject to; and that the obligation under its contract for constructing a house upon its land entitles its employes to a safe place to work, as a contract between private persons does. There is some plausibility in the suggestion, but we think it fallacious. In a moral sense, those acting for the State owe the same duty towards persons employed upon its behalf as that due from the citizen. They should also be as careful to provide safe appliances and a safe place for employes as a private person should. But if they do not, the sufferer is remediless, as against the State, for the reason that it has provided no remedy, although the State itself own the land when the injury occurs, and make the contract of •employment. It is an open question how far it is wise or just to subject citizens to taxation to pay for injuries caused by the negligence of public officers. Such officers are usually the representatives of the injured person as well as of other taxpayers. It is as much his duty to select careful and prudent officers as it is that of the tax payer who is called upon to. help pay for his hurt, who, perhaps, may be a woman or child, and has had no voice in the selection of the negligent officer, and therefore no duty in the premises. The rule of public liability in such cases offers such opportunities and inducements for abuse that there is some ground for doubting the expediency of relieving individuals at public expense in any such case; and, as has been said, it is only in cases where the legislature has authorized it that the obligation can be enforced against the public, instead of the individual to whose misconduct the injury is due, and who should, in justice, be primarily liable in all cases. As said by Mr. Justice Campbell in O’Leary v. Board of Fire & Water Com’rs of Marquette, 79 Mich. 286 (44 N. W. 610, 7 L. R. A. 172, 19 Am. St. Rep. 173):
“It is for the legislature to determine how far, if at all,, a body whose negligence, if it is so called, is imputed, and in no sense actual, shall be made subject to suit for the misconduct of its employes. There are many cases where such liability does not exist, except against the immediate individual wrongdoer. The person injured is not harmed any more where there are several persons liable than where there is only one. Imputed negligence is purely a question of public policy, and subject to legislative regulation. No one can be bound by this record except the immediate parties to it, and it would be improper to go beyond it.”
The action of the city in obtaining and owning the land and erecting the hospital is as much an act of a governmental agent as the transportation of a patient thereto and his treatment therein would be. It is land owned for governmental purposes, by governmental authority, by a governmental agency, it is true, but not for the private purposes of the municipality as such, and for purposes in which the State has no interest. The title to the land is in the city, but so it would be were the interest merely a leasehold for the shortest practicable period. It is inconceivable that changes made upon premises owned by the city under this statute would stand upon any other footing than premises rented for a month by the city for a similar purpose. In either instance it might be necessary to adapt the premises to the purposes contemplated by law, and in both instances it might be necessary to employ men for the purpose. In either case, if done by the board of health, this would be done in the performance of an imposed duty, and the city would be acting solely in the capacity of governmental agent. Therefore the doctrine of respondeat superior would have no application. It was said by Chief Justice Montgomery in Murray v. Village of Grass Lake, 125 Mich. 2 (83 N. W. 995):
“The next section authorizes the council to appoint a board of health. It would appear that that was done in this case. It also appears that the action taken by the council was taken on the recommendation of the board of health. The action of the council was doubtless taken under authority of the section quoted. The fact that the wrong was committed by the officers of the village does not fix the responsibility upon the municipality, if the wrongful act was done under authority of a general statute, in the attempt to perform a public service not distinctively local or corporate. 2 Dill. Mun. Corp. (4th Ed.) § 974. It is apparently the established rule that local health officers, acting under a general statute of the State conferring their powers, are not performing corporate functions, but are representatives of the State, and that the municipality is not liable for the acts of such boards, either of misfeasance or nonfeasance.”
Whether or not the village owned the land upon which the dam was built at the outlet of the lake, whereby the level of the lake was raised, does not appear. Presumably, it did, or acquired the right to use land for the purpose upon some terms. As in this case, something had to be done upon the land owned or controlled by the city or village to accomplish the duty imposed. Had some one been injured in the construction of the dam, through negligence, the case would have been parallel to the present case. In such a case, would it be proper to hold that the city was not liable for injuries resulting to one from the raising of the lake, and liable to another for injuries aris ing from the act of obstructing the water whereby the lake was raised ? Could it be said that either was not the act of a governmental agent in the performance of a public duty ?
In 2 Dill. Mun. Corp. (4th Ed.) § 977, the subject of the liability of municipal corporations for injuries resulting from maladministration of the health laws is discussed, and numerous cases cited. It has been held that a city was not liable to a nonpaying patient for injuries resulting from the neglect or misconduct of hospital officers or servants (Murtaugh v. City of St. Louis, 44 Mo. 479), or for the unskillful treatment of a resident physician (Sherbourne v. Yuba Co., 21 Cal. 113 [81 Am. Dec. 151]); or for failure to take proper precautions to prevent the spread of the smallpox, or to notify the plaintiff, who was required to assist in the removal of the corpse of a person who had died of this disease, of the dangerous nature of the service required (Ogg v. City of Lansing, 35 Iowa, 495 [14 Am. Rep. 499]); or where a person caught the smallpox from a nurse who was permitted to leave the hospital without being properly disinfected (Brown v. Inhabitants of Vinalhaven, 65 Me. 402 [20 Am. Rep. 709]); or for carrying a well person to a smallpox hospital, where he contracted the disease (Barbour v. City of Ellsworth, 67 Me. 294); or for illegally ordering a ship to leave the city (Rudolphe v. City of New Orleans, 11 La. Ann. 242); or for illegally taking possession of a vessel (Mitchell v. City of Rockland, 41 Me. 363 [66 Am. Dec. 252]; Id., 45 Me. 496; Id., 52 Me. 118; Harrison v. Mayor, etc., of Baltimore, 1 Gill, 264); or for negligence of a servant of the board of health in removing garbage (Condict v. Mayor, etc., of Jersey City, 46 N. J. Law, 157). See, also, Tied. Mun. Corp. § 332.
We have been referred to a case which seems to go far towards sustaining the contention of plaintiff’s counsel. It is Briegel v. City of Philadelphia, 135 Pa. St. 451 (19 Atl. 1038, 20 Am. St. Rep. 885). The decision is not replete with adjudicated cases. The opinion states that the question was before the court for the first time, but that Mr. Justice Sharswood had expressly decided it in Shuter v. City of Philadelphia, 3 Phila. 228. But while the language used in that case was broad, the question arose over the contamination of a well by a leaky gas-holder owned by the city, and used for furnishing gas to its inhabitants. Thus it is apparent that the question was not before that court.
Under the title of “Liability in the Capacity of Property Owner,” Mr. Dillon discusses this question, and recognizes a liability when the property is owned and used for ■private corporate purposes. The language is somewhat broad, but the text, and the cases cited in support of it, seem to imply the importance of the nature of the uses for which the property is owned. See 2 Dill. Mun. Corp. (4th Ed.) § 985, and note 1. In the same connection attention is called to the fact that, by the decisions, the distinction between acts done by a city in discharge of a public duty, and acts done for what is called, by way of distinction, its “private advantage or emolument,” is clearly made. Most of the cases cited turn on private ownership for corporate purposes.
Eastman v. Meredith, 36 N. H. 296 (72 Am. Dec. 302), was a case where a town-house floor had given way, injuring one lawfully there for the purpose of voting. It was held that the town was not liable. In the discussion of this case there is general language relating to premises owned by municipalities for certain purposes. It is said that for private injuries caused by the improper management of their property, as such, they have been held to the general liability of private persons who own and manage the same kind of property. It is not to be presumed that the township did not own its town hall, or at least have a temporary title, if nothing more than a right of possession. So in the case cited in support of the above language,' viz., Bailey v. Mayor, etc., of New York, 3 Hill, 541 (38 Am. Dec. 669), there was no dispute but that the city of New York owned the dam; but in neither case did the question turn upon the ownership of the property, but, rather, upon the nature of tenure and duty. Why discuss whether the city was performing a public duty imposed by law, if the fact that it held title alone could make it liable ? And how justify the holding that a township was not liable for a defective floor, where it owned the building, if mere ownership in all cases creates liability? So we see that, notwithstanding the use of broad language, the logic of these decisions supports the distinction indicated by the text of Dillon quoted, and the tests of municipal liability in such cases would seem to be two: (1) Is the act one in which the city has a private interest, instead of' a public duty ? (2) If not, then does the statute give redress against the municipality, either expressly or by necessary implication ?
This statute provides for a board of health, all of the members of which are chosen directly or indirectly by the city authorities; but, as to the duties, prescribed by' law, they do not represent the city, but the State. The statute contemplates that a hospital may be provided in every township, and that, when provided, it will be practically under the control and regulation of the board of health. In one contingency the board of health is charged with the duty of providing it, and in doing that it would be acting for the State, not the city. But the statute provides that the town or city may establish such a hospital without waiting until an emergency arises. Whether that provision is mandatory, and requires the establishment of such hospital in every township or city, or is merely permissive, we need not inquire. In either case the city acts as a governmental agency in performing such duty, just as it acts in such capacity in selecting officers who are charged with such duties, and in providing and collecting from its inhabitants the necessary funds to pay the expenses, or in providing a police force for the preservation of the peace, or a fire department, and prescribing regulations for the same.
It has been intimated that an officer, though a represen tative of the State instead of a city, is liable for his own ■misfeasance or nonfeasance. Many cases so hold, and ■we know of none to the contrary, except where judicial ■functions are involved. It may be claimed that, if it be ■conceded that the city is made the agent of. the State, it is liable for its misfeasance and that of its subagents. From the language of this statute it may be said that some ■duties are imposed directly upon the city, and not upon the board of health, and that the establishment of a hospital, when there is no emergency, is one of them. Cases can be found which suggest a .distinction between a duty imposed on a city directly and one imposed on an officer of the city. It may possibly be urged that in such case -the city is responsible for the performance of such duty, ■and liable for a failure to perform it. And a few courts may so hold. It may also be urged that, being an agent to build a hospital for the State, it is liable for its neglect or misconduct, as an agent ordinarily is, though the principal is usually the sufferer.
It is manifest that one cannot be held liable under an application of the rule of respondeat superior where he would not be liable for the same act of negligence if done by himself, and notwithstanding his agent may be liable personally. Thus in Forbes v. Board of Health, 27 Fla. 189 (9 South. 862, 13 L. R. A. 549, 26 Am. St. Rep. 63), the board was held not liable, although a corporation subject to being sued, for the reason that it was performing a public duty. In Iowa a statute gave to the city of Lansing power to establish a board of health, and to invest it with power and duties necessary to secure the people of the city against contagious and dangerous diseases. It was held that the city was not liable for negligence of its board of health. Ogg v. City of Lansing, 35 Iowa, 495 (14 Am. Rep. 499). City of Richmond v. Long’s Adm’rs, 17 Grat. 375 (94 Am. Dec. 461), is a similar case. In Nebraska a statute provided that cities should have authority to provide protection from fires. A driver of the fire department injured a pedestrian, and it was héld that the city was not liable, upon the ground that the city had no private interest in the service. Gillespie v. City of Lincoln, 35 Neb. 34 (52 N. W. 811, 16 L. R. A. 349). See, also, Hayes v. City of Oshkosh, 33 Wis. 314 (14 Am. Rep. 760); Wilcox v. City of Chicago, 107 Ill. 334 (47 Am. Rep. 434); Fisher v. City of Boston, 104 Mass. 94 (6 Am. Rep. 196); Hafford v. City of New Bedford, 16 Gray, 297; Jewett v. City of New Haven, 38 Conn. 368 (9 Am. Rep. 382). See, also, many other cases cited in Gillespie v. City of Lincoln, supra. See, also, note to Barron v. City of Detroit, 19 L. R. A. 452 (s. c., 94 Mich. 601, 54 N. W. 273, 34 Am. St. Rep. 366); O’Rourke v. City of Sioux Falls, 4 S. Dak. 47 (54 N. W. 1044, 19 L. R. A. 789, 46 Am. St. Rep. 760); Williamson v. Industrial School, 95 Ky. 251 (24 S. W. 1065, 23 L. R. A. 200, 44 Am. St. Rep. 243); Springfield Fire & Marine Ins. Co. v. Village of Keeseville, 148 N. Y. 46 (42 N. E. 405, 30 L. R. A. 660, 51 Am. St. Rep. 667); Fuchs v. City of St. Louis, 133 Mo. 168 (31 S. W. 115, 34 S. W. 508, 34 L. R. A. 118); Hughes v. County of Monroe, 147 N. Y. 49 (41 N. E. 407, 39 L. R. A. 33); Webster v. County of Hillsdale, 99 Mich. 259, 260 (58 N. W. 317); Gilboy v. City of Detroit, 115 Mich. 121 (73 N. W. 128); Webb v. Detroit Board of Health, 116 Mich. 516 (74 N. W. 734, 72 Am. St. Rep. 541).
This distinction is hinted at in a note to Sheldon v. Village of Kalamazoo, 24 Mich. 383, though it is in the nature of a negative assertion of the proposition, through the medium of an implied exception. It is there said:
“But such corporation is not liable for the negligence or malfeasance of officers or public boards acting in obedience to the mandates of the legislature, and for the public good, rather than for the peculiar benefit of the corporation, when in the performance of a duty imposed upon such officer or board instead of upon the corporation.”
Maxmilian v. Mayor, etc., of New York, 62 N. Y. 160 (20 Am. Rep. 468), is a leading case. The negligence complained of was that of a driver of an ambulance, who ran over a pedestrian. He was at the time in the service of the commissioners of public charities in New York, and it was held that the city was not liable. In the course of the opinion it was said:
“If the act of the officer, or the subordinate of the officer, thus appointed, is done in the attempted performance of a duty laid by the law upon him, and not upon the municipality, then the municipality is not liable for his negligence therein.”
This language was descriptive of the case, rather than a limitation upon the city’s immunity. It, however, furnishes a convenient peg to hang a limitation upon, and too many lawyers and courts accept such expressions as authority of greater or less weight. As the case shows, it turned on the general proposition that the act was in the performance of a public, not a private, duty, and that, therefore, there was no liability.
In New York, etc., Lumber Co. v. City of Brooklyn, 71 N. Y. 580 (a similar case in principle), it was said:
“It is clear, therefore, that, unless the legislature has devolved the duty of rebuilding the docks upon the corporation, it is not liable for any neglect or omission to perform it.”
It is seen that this case is not a positive authority.
There is a broad distinction between an agent (i. e., an officer) of the government, and a municipal corporation performing delegated functions pertaining to government. The latter becomes vested with a portion of the political power. As said by Mr. Justice Gray in Springfield Fire & Marine Ins. Co. v. Village of Keeseville, supra:
“In such a case — and I speak, of course, of legislative acts which are general in their nature and scope — the assumption by the municipal corporation is of a further function of self or local government; and such a power is discretionary in its exercise, and carries with it no consequent liability for nonuser or misuser. In the legislature reside the power and force of government, confided to it by the people under constitutional restrictions. In the creation of municipal corporations, subordinate commonwealths are made, upon which certain limited and prescribed political powers are conferred, and which enjoy the benefits of local self-government. People v. Common Council of Detroit, 28 Mich. 228 (15 Am. Rep. 202). When, in addition to those general powers which are prescribed upon the creation of a municipal corporation, general statutes permit the assumption of further powers as a means of benefiting the portion of the public in the particular locality, they invest the corporation availing itself of the permission with just so much more governmental power. Just as the general powers deposited with the various municipalities are exercised by them in a quasi sovereign capacity, so would any added powers designed for the general public good, though optional with the corporation as to their assumption, and in their exercise and performance local, be exercised.”
The true theory is that the township or city represents the State in causing these things to be done, and, like the State, it enjoys immunity from responsibility in case of injury to individuals, leaving liability for such injuries to rest upon the persons whose misconduct or negligence is the immediate cause of the damage. The township and city must always act through officers. If it builds or repairs a road, constructs a bridge, collects a State or county tax, erects a town house, provides for the poor or the infirm, preserves the public peace, or provides a smallpox hospital, it must do it through persons selected for the purpose; and whether the law broadly directs that it shall do these things, or shall select officers whose duties are prescribed by law, its obligation is the same. The State relieves itself from the burden of multitudinous detail by delegating to and imposing upon aliquot parts of the body politic the power, and perhaps the duty, of doing for the State what it would otherwise have to supervise for itself. These powers are frequently legislative as well as ministerial. In this sense the township or city is a political agency, and the persons selected to perform the details whereby the result is accomplished are no more agents of the city or township, and no less the agents of the State, than as though the legislature had been more definite in prescribing tbe duties of the officers, and merely left their selection to the municipality. In imparting a portion of its powers, the State also imparts its own immunity. Cities are upon the same footing as quasi corporations, when acting in a purely governmental capacity. If this were not so, the township which should erect a town hall would be liable for injuries to persons using it who should be injured by falling through a defective floor, yet it was held otherwise in Eastman v. Meredith, 36 N. H. 284 (72 Am. Dec. 302), as already shown; and, were the plaintiff’s action to be sustained, it would overturn the principle upon which nearly all of the cases cited rest.
It was a cruel thing to permit the decedent to enter the valley of the shadow of death unwarned, if those who sent him knew of the danger. A case involving a stronger .appeal to the sympathy of a tribunal can hardly be imagined. But we feel constrained to say that, if there is culpable negligence here, the plaintiff’s remedy is limited to the persons to whose negligence the deplorable event is due, if there be a remedy. It is not a case where the doctrines of imputed negligence' and respondeat superior can be applied.
The judgment is affirmed.
. Moore, Grant, and Montgomery, JJ., concurred? Long, J., did not sit. | [
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Grant, J.
Complainant and defendant were married March 23, 1899, and she left him on May 26, 1900, and filed a bill of divorce on the ground of cruelty. The acts of cruelty charged are: (1) That she was compelled by defendant to do manual work upon the farm, such as spread ing manure, planting corn, etc.; (2) that he was guilty of personal violence upon her; (3) that he used abusive, profane, and threatening language; (4) that he charged that she was afflicted with a venereal disease, and that she communicated it to him. Proofs were taken in open court, and the bill dismissed.
The learned circuit judge assigned no reasons for dismissing complainant’s bill. We cannot concur with him in the conclusions reached. We think the charges were fully sustained by the evidence. It was admitted that she did the manual work, not only upon his farm, but upon that of his brother; the only dispute being that he testified she did it voluntarily, and she that he compelled her to do it. That he struck her in the face is admitted, and that he charged her with having a venereal disease is clearly established. It is unnecessary to enter into the details.
The decree is reversed, and decree entered for the complainant. It is further adjudged that defendant pay her $500 as alimony, and $100 as solicitor’s fee, with the costs of both courts additional.
The other Justices concurred. | [
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] |
Grant, J.
Respondent borrowed $15 from’ one Samuel J. Gier, and assigned to said Gier, as security therefor, a promissory note, made by one W. D. Drake, for the sum of $25. The crime charged is that the respondent obtained this $15 by falsely representing that “said note for $25 was good and collectible, and that W. D. Drake was well able to pay, and would pay the same when due. ” Respondent repaid Gier his loan, and demanded his note; but Gier had placed the note in the hands of the prosecuting attorney at that time, and, about a month after repayment, the warrant for his arrest was issued. He was convicted.
The prosecution, in order to show criminal intent, was permitted to introduce evidence of five other transactions where the respondent had borrowed small sums of money and had assigned other notes as collateral security. In some of the cases no representations were made, and in others there was no testimony to show that the representations which were made were false. There was nothings in any of these cases tending to show any criminal conduct, and therefore they were inadmissible to show criminal intent in the case which was upon trial.
For this error the conviction must be reversed, and new trial ordered.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
{after stating the facts). The assignments of error number 42, and 24 points are made in the brief of appellant. Most of these points contain no argument, but are simply assertions that the court erred. Two of these points are thus stated:
“The defendant took an exception to the introduction of the contract, plans, and specifications, which was granted by the court.”
“The. court erred in admitting the specifications as a part of the said contract, to which exception was taken.”
Assignments of error thus stated, but not argued, will not be considered by the court. It is the’ duty of counsel to at least state the reasons upon which they rely to support their allegations of error.
The court refused to permit the defendant to show that there was a parol agreement to pay $200. No fraud was shown to have been practiced upon the defendant in executing the contract. Its terms are not ambiguous. It was therefore binding upon her, and parol evidence was not admissible to vary its terms. The court’s ruling was correct upon this point, and the judgment is affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Long, J.
This action is brought on eight promissory notes purporting to be executed by the Cadillac Stave & Heading Company; six of them running to the plaintiff, and the other two purchased by plaintiff as trade paper, and all guaranteed by Nathan E. Staples. One of the last two notes was given to Charles L. Ballard as part purchase price for a sawmill bought by Nathan E. Staples and Charles A. Bidlon for their own use, and the other of the two notes was given to James E. Beckwith to enable him to purchase some land. Neither of these two notes was in any way connected with the corporate business, or of any direct or indirect benefit to the corporation. The note to Ballard was for $250, and the one to Beckwith was for $160. The other six notes were all given to Henry Knowlton, cashier of the plaintiff bank, and, including the first two described, amount to the sum of $5,510. On the last of these notes are indorsements which reduce the total amount claimed on all the notes to $4,579.12, and for which amount the court directed a verdict in favor of plaintiff. Defendant corporation brings error.
The defendant corporation pleaded the general issfte, filing an affidavit made by its president, denying the execution of the notes. Defendant Staples did not appear, and his default was duly entered, though he was produced as a witness for the plaintiff during the trial. It appears that the corporate name to all these notes was impressed upon them with a rubber stamp. On three of them the signing of the corporate name was “per N. E. Staples, Manager. ” On the others the corporate name was stamped on “per Charles J. Staples,” a brother of N. E. Staples, who held no official position with the corporation, but who was a clerk in its office.
The defendant corporation was organized under the laws of this State in January, 1894, with only three stockholders, to wit, Job A. Staples, of Elba, N. Y., and his two sons, George K., of Buffalo, N. Y., and the defendant Nathan E. Staples, who alone resided at Cadillac, this State, where the business of the corporation, was carried on. Subsequently portions of the stock were transferred to others by the original owners, but the exact amount so transferred and held by others does not appear. The factory was burned in December, 1899. It also appears that, during all but one year of this time, N. E. Staples was the secretary, treasurer, and general manager of the business of the corporation, and conducted all the Michigan end of the business, with an occasional visit from his father and brother from New York.
■At the inception of the business there was an arrangement made with Tyndall & Jackson, a Buffalo jobbing house dealing in cooperage stock, to take the entire cut of the company, and to furnish a sufficient amount of money to operate the business. This money was furnished monthly; the corporation making a draft upon Tyndall & Jackson, who accepted the same, whereupon the drafts were deposited with the plaintiff bank, and constituted the fund upon which checks were drawn by the corporation to pay operating expenses. These checks were signed with the same stamp with which the corporate name of the corporation was signed to the notes in controversy. These checks were mostly signed by the secretary and treasurer of the corporation, though the custom was not entirely uniform. These acceptances seem to have furnished all the funds used by N. E. Staples in the business of the corporation until the fall of 189?, when it appears he began discounting promissory notes at the plaintiff bank signed by the rubber stamp with which checks and drafts had previously been executed. There was no evidence offered to prove that the other members of the corporation had any knowledge of this practice, or that this fact was ever brought to the attention of the members of the board of directors, or passed upon by them in their official character or otherwise, until the factory had been destroyed by fire, and the notes in controversy were being pressed for payment. After the fire, it appears that the notes in controversy were presented to N. E. and G. E. Staples. There is some evidence, which is not disputed, that G. K. Staples, who was- then vice-president, acknowledged them as valid claims against the corporation; but no evidence was given that the act of the vice-president was authorized by the board of directors, or that the act. was ever ratified by it.
It appears, also, that in February, 1900, the annual statement of the resources and liabilities of the corporation was prepared by the secretary, and by him forwarded to Buffalo to the stockholders. It was thereafter returned to the secretary at Cadillac, accompanied by a letter from J. A. Staples, president of the company, saying: “Report accepted. You are authorized to sign George’s name and mine. File report at once.” This statement was put in evidence by the plaintiff, and showed a detailed statement of the notes held by the plaintiff bank that are in controversy here. The ‘ ‘ George ” referred to in the letter was George K. Staples, vice-president of the company. It also appears that the notes in controversy were duly entered upon the books of the corporation in the due course of business. The corporation afterwards paid upon this indebtedness to the bank the sum of $1,600. The plaintiff, to prove the authority of N. E. Staples to execute the notes, introduced in evidence, under objection, 46 other notes, executed in like manner to the ones in controversy, and which had been discounted by the plaintiff bank. Thereupon, and without any further proof of the authority of the secretary and manager to execute notes or to borrow money for the corporation, the notes in controversy were introduced in evidence, and the amount due upon them proved to be $4,579.12.
At the close of the testimony, counsel asked the court to direct a verdict for defendant. This was refused, and the court directed a verdict in favor of plaintiff, as before stated. We think there was no error in this. It appears that the whole management of the business was left to the secretary and manager, Nathan E. Staples. For nearly three years he gave notes in the name of the corpora tion, and discounted them at the plaintiff bank. Annual statements were made, and, so far as appears, no fault was found with this management of the business. In February, 1900, the annual statement for the year was forwarded to Buffalo to the stockholders. This statement showed the indebtedness to the bank, and was accepted by the president and vice-president without question. The stockholders, or most of them, lived in Buffalo. The board of directors was there, also. There was no one located in Cadillac who could be inquired of as to the general affairs of the company, except Nathan E. Staples. He was permitted by the president and board of directors to raise money for the corporate business, and for three years, at least, to sign the name of the corporation to notes, and discount them at the plaintiff bank; and this money was put into the business of the corporation. It was said in Hirschmann v. Railroad Co., 97 Mich. 396 (56 N. W. 846):
‘ ‘ The corporation must be deemed to have clothed the agent with authority to do what it has permitted him openly and notoriously to do without rebuke.”
In Olcott v. Railroad Co., 27 N. Y. 546 (84 Am. Dec. 298), it was said:
‘ ‘ The powers of the agent of a corporation are such as he is allowed by the directors or managers of the corporation to exercise, within the limits of the charter; and the silent acquiescence of the directors or managers may be as effectual to clothe the agent with power as an express letter • of attorney.”
It was said by this court in Whitaker v. Kilroy, 70 Mich. 635 (38 N. W. 606):
“We think that persons dealing with such a corporation for work have a right to get their information from the person whom the corporation has put in charge, and cannot be required to go elsewhere, and that contracts so niade are valid contracts, when relating to the ordinary concerns of such business. And, if persons are not sustained in contracting with such superintendents, they can never be safe. They have no means of knowledge except inquiry somewhere, and the person put by the corporation in open charge of the business must have power, as to third persons, to represent it. ”
It was said by this court in the Hirschmann Case, supra:
“ It is well settled that if an agent of a corporation is allowed to exercise general authority in respect to the business of the corporation, or a particular branch of it, for a considerable time,- — -in other words, if he is held out to the world as having authority in the premises, — the corporation is bound by his acts in the same manner as if the authority were expressly granted.”
See, also, Michigan Slate Co. v. Railroad Co., 101 Mich. 14 (59 N. W. 646), and cases there cited.
We think the court was not in error in directing the verdict in favor of the plaintiff.
The judgment must be affirmed.
Montgomery, C. J., Hooker and Moore, JJ., concurred. Grant, J., did not sit. | [
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] |
Montgomery, J.
Decedent subscribed $5,000 to assist in the building of a church, to be paid to the building committee “only when the full sum of $30,000 shall be subscribed for the purpose stated above; and said $5,000 to be paid, at my option, in installments of $1,000 annually.” There was no other subscription attached to the same paper. At the time of decedent’s death, about three years later, less than $15,000 had been subscribed, in addition to Mr. Parke’s $5,000. There was testimony that, in soliciting subscriptions, use was made of the fact that Mr. Parke had made this subscription, and that most of those who subscribed knew of that fact. Subsequent to Mr. Parke’s death, and before the hearing of the claim by the commissioners, though not before the filing of the claim, enough additional subscriptions were obtained to bring the total above the required $30,000. Claimants’ witnesses testified that all the subscriptions were made in good faith, and were collectible, and there was no testimony introduced to the contrary. Mr. Parke paid $1,000 upon his subscription in his lifetime. The construction of the church has been going on since the date of this subscription, and most of the money paid in on the subscrip tions at the time of Mr. Parke’s death (about $14,000) had been devoted to construction. No debt has been incurred. The circuit judge directed a verdict for claimants.
The principal question in the case is whether, at the time of Mr. Parke’s death, his subscription amounted to a contract upon a sufficient consideration, of was a mere revocable offer. Where subscribers to an object such as this all sign the same agreement, upon the same paper, it is not necessary to prove that the contested subscription was an inducement to others to subscribe and pay their money, or that they subscribed and paid in reliance upon it. That fact is presumed. As was said by Mr. Justice Christiancy in Comstock v. Mowd, 15 Mich. 244:
“None of them would be so likely to subscribe or pay but for this reliance [upon the payment to be made by each of the other subscribers], as without'it they would not expect the attainment of the common object.”
See, also, Underwood v. Waldron, 12 Mich. 73; Allen v. Duffie, 43 Mich. 1 (4 N. W. 427, 38 Am. Rep. 159); Conrad v. La Rue, 52 Mich. 83 (17 N. W. 706); First Universalist Church v. Pungs, 126 Mich. 670 (86 N. W. 235).
In the present case it seems to us that there is as much reason to presume that those subscribers who knew of Mr. Parke’s subscription made their subscriptions in reliance upon the performance of his promise as in reliance upon the subscriptions of those who signed the same paper with them. It is contended that, because his was the only conditional subscription, the other subscriptions were not made in reliance upon his, they being payable regardless of whether his subscription should become binding or not. But we think Mr. Justice Christiancy’s language, above quoted, aptly expresses what is meant by a subscription in reliance upon the subscription of another. Without Mr. Parke’s subscription, and without the performance of the condition upon which it depended, the other subscribers could not expect the attainment of the common object.
It is contended by counsel for the estate that, however the contract of Mr. Parke is construed, death worked a revocation of the contract. If the subscription were regarded as a mere offer, this contention would be sound. But, as we have seen, it is something more; it is a contract upon consideration. The cases cited by appellant to support the claim that death revokes such a promise as this are all cases where the decedent might himself have revoked the promise at the time of his death, and we think that the rule should apply only to such cases. It is very ingeniously argued that, because decedent had the option of paying the money in annual installments, he should have the right to fix the method of payment during his own lifetime, and the condition precedent to his liability was to be fulfilled before his death. The reference to the condition precedent shows the fallacy in this argument. If there were no condition precedent the option could cut no figure, even though it were to be exercised at a later date, which might fall after the death of the subscriber,
But we think the court was in error' in one respect. There can be no doubt that, to make this promise binding upon the deceased, it is essential that the condition precedent be performed within a reasonable time. The circuit judge evidently treated this question as purely a question of law. We think, however, that it involved a question of fact for the jury. In determining this fact, the jury would have a right to take into account the fact that Mr. Parke was himself a member of the building committee, and that he made two payments upon his subscription, •one of them only three months before his death. See Greenwood v. Davis, 106 Mich. 230 (64 N. W. 26).
For the error in withdrawing this question from the jury, the judgment will be' reversed, and a new trial ordered.
Hooker, C. J., Moore and Grant, JJ., concurred. JjONG, J., did not sit. | [
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] |
Grant, J.
(after stating the facts). 1. The act is attacked as not constitutionally passed, because the title was not agreed to by both houses of the legislature, and because the bill was not introduced during the first 50 days of the session. A preliminary question is raised by the attorney general that its constitutionality cannot be attacked in this proceeding; citing Curran v. Norris, 58 Mich. 512 (25 N. W. 500). That was a case where the office existed, and the question was who was entitled to fill it. It was held that the writ of certiorari could not be used to delay the proceedings, “ unless such officer has proceeded without jurisdiction, or has acted in gross violation of the statute.” If there is no law, there is no office. An unconstitutional act is.no law. There must be an office de jure to fill or there can be no officer de facto to fill it. Relator asserts the existence of an office, and his right to it. If the law under which he claims is unconstitutional, he has no standing. Eaton v. Walker, 76 Mich. 579 (43 N. W. 638, 6 L. R. A. 102); Carleton v. People, 10 Mich. 250; Norton v. Shelby Co., 118 U. S. 425 (6 Sup. Ct. 1121). In the last case it is said, at page 442:
“The idea of an officer implies the existence of an office which he holds. It would be a misapplication of terms to call one an officer who holds no office, and a public office can exist only by force of law.”
Therefore the constitutionality of the act is the issue.
2. This brings us to the main question. The title to an act is required by the Constitution. It is as much a part of the act as the body thereof. A law cannot be enacted by the legislature without a title. The legislative journals must control; and if those journals show that the senate passed an act by one title, and the house by another, it must follow that the act is void, because no title has been agreed to by both houses. Simpson v. Stock-Yards Co., 110 Fed. 799. In that case the legislative journals showed that a bill for the regulation of stock-yards was passed by both houses by the same title. The clerk made a mistake, in engrossing and enrolling the act, in using the title by which the journals showed it had been read a first and second time in the house. The court said it was undoubtedly a clerical error, but held the act void notwithstanding. See, also, Chicago, etc., R. Co. v. Smyth, 103 Fed. 376; State v. Brookhart, 113 Iowa, 250 (84 N. W. 1064).
In this case the secretary of the senate undoubtedly made a mistake in transmitting the bill to the house by a wrong title. But the house never agreed to the title to the act to which the senate had agreed, and the senate did not agree to the title to the act as it came back from the house. One enacted a title to repeal, the other enacted no such title to the bill passed by it. The house made some amendments to the body of the bill, and those were concurred in by the senate; but the title was a different one in each house. The bill was sent to the governor for his approval, and was signed by him with a title to which both branches of the legislature had not agreed. This appears conclusively by the journals, which must control.
The judgment of the court below is affirmed.
The other Justices concurred. | [
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Moore, J.
This case was commenced in justice’s court, and afterwards appealed to the circuit court, where it was tried by the circuit judge without a jury. The circuit judge made the following findings:
“1. That in March, 1890, the plaintiff entered defendants’ family as a member thereof, and these relations continued until the engagement hereinafter set forth.
‘ ‘ 3. The plaintiff performed services for the defendants from June 1, 1897, to March 14, 1899, of the value of $334.35.
“3. The said services were performed by the plaintiff and accepted by the defendants under the mutual understanding and express agreement that, at the death of the defendants, plaintiff should receive $300 in money, and part of the household goods, out of the estate of the defendants, as compensation for her services.
‘ ‘ 4. After the services were performed, defendants sold their farm, and, before the commencement of this suit, upon a request for some written evidence of the agreement by the plaintiff, defendants refused to give such memorandum, and informed plaintiff that while they had intended to provide for the payment to her of $300, and part of the household goods, at the time of their death, they had then come to the conclusion that they would not make any such provision, and that they would never pay her a cent for her work.
“5. Plaintiff is therefore entitled to recover of defendants the sum of $334.35 for her damages; that being the value of the services rendered by her for the defendants from^ June 1, 1897, to March 14, 1899, and for which the said defendants promised to pay her what her said services were reasonably worth.”
The judge was requested to strike out these findings, and make one to the effect that plaintiff came to live with the defendants as a member of the family, and that this relation did not change until she finally left them, and that there was no agreement or understanding, express or implied, that plaintiff was working for hire, or that she was to be paid by defendants for what she did for them while making her home with them, and to find, as conclusions of law, that defendants are under no legal obligation to compensate plaintiff for her services; that there is no joint obligation on the part of defendants to pay plaintiff for the alleged claims, or any part of the same. - This the judge declined to do, and exceptions were duly taken by defendants.
The plaintiff was 18 years old when she became an inmate of defendants’ family, which consisted of Mr. and Mrs. Neal, who were living upon a farm of 20 acres. They were uncle and aunt of the plaintiff. The title to the 15 acres of land upon which the house was situated was in Mrs. Neal. The title to the other 5 acres, upou which was the barn, was in Mr. Neal. It is the claim of plaintiff that prior to June, 1897, she worked several months each year for defendants, and from June 1, 1897, until March, 1899, she worked continuously for them; that during this time Mrs. Neal was in such condition that she gave her upwards of 300 baths; and that the services were rendered with the understanding upon her part that she would be paid for them, and with the understanding upon the part of defendants that they would pay for the services. It is the claim of defendants that plaintiff came to them in 1890, because her father and mother had separated, for the purpose of having a home; that she was treated as a member of the family; that she came and went when she desired, working out when she wanted to, but always calling their house her home; that, while she picked some berries for Mr. Neal, she was paid for doing so; that a watch was given to her, some shoes, and some small sums of money; that what she received was quite equal to what she gave, and that what she did was done as a member of the family, and not in the expectation she was to be paid for it; that while defendants had expected to leave her, upon their death, some household furniture and $150 or $200 in money, and would have done so had not she commenced this proceeding, their intention in that regard was because she was their niece, and not because they were under any obligations to pay her.
The testimony was very conflicting. It would not do any good to recite it here in detail. It will suffice to say that, if the judge believed the testimony offered on the part of the plaintiff, it justified the judgment, under the following decisions: O’Connor v. Beckwith, 41 Mich. 657 (3 N. W. 166); Van Fleet v. Van Fleet, 50 Mich. 1 (14 N. W. 671); Robinson v. McAfee’s Estate, 59 Mich. 375 (26 N. W. 643); Westra v. Westra’s Estate, 101 Mich. 526 (60 N. W. 55); In re Williams’ Estate, 106 Mich. 490 (64 N. W. 490); Sammon v. Wood, 107 Mich. 506 (65 N. W. 529); Rhea v. Meyers’ Estate, 111 Mich. 140 (69 N. W. 239).
' In relation to the question of joint liability, counsel cite no authority, but content themselves with saying in the brief:
“ The action is joint, and the liability must therefore be shown to be joint. If there is any evidence showing a liability, which we claim there is not, yet it does not in any sense show a joint liability, and therefore the action cannot be maintained.”
The plea was the general issue. The evidence shows the bulk of the property was owned by Mrs. Neal, and that the work was done on a farm, part of which was owned by one and part by the other, and was done for the benefit of both the defendants. According to the claim of plaintiff, it was done in the expectation that they were both to pay for the services. The question of whether a married woman may incur such a liability is not raised, and we express no opinion upon that question.
We have considered the assignments of error in relation to the admission of testimony, and think they are not well taken.
The judgment is affirmed.
. Hooker, 0. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
This is an action of replevin for two horses, and originated in justice’s court. Plaintiff derived his title from one Susan Whitman by a bill of sale. Defendant owned a farm and was unmarried. Mrs. Whitman, who was married, lived with defendant as his housekeeper. She testified that she was employed at $2 per week, and he testified that the arrangement between them was: “ Mrs. Whitman and I agreed to live together as long as we lived, and after I was dead she was to have what we had left.”
The title to the horses was the issue, and upon this the testimony was conflicting. There are 66 assignments of error, nearly all of which pertain to the rulings of the court in admitting and rejecting testimony. The comments made in Boydan v. Haberstumpf, ante, 137 (88 N. W. 386), apply with equal force in this case. The proceedings from the beginning to the end of the trial constitute a “ comedy of errors,” rather than the orderly trial of a lawsuit. To the rulings of the court the attorney for the defendant seemed to pay no attention, as the following instance will illustrate: Upon the cross-examination of Mrs. Whitman the same question was repeated to her three times, notwithstanding the court each time ruled the question as incompetent, and the ruling was correct. The sole purpose of the question was to prejudice the jury. A severe reprimand, if nothing more severe, should have been administered. The same witness was asked if defendant’s farm was not sold before she went to New York State. Objection to the question as incompetent and immaterial was sustained, whereupon the defendant’s attorney said: “It is important, as I stated to the jury. She stayed with him until the farm was gone, and then abandoned him.” There was no foundation for this remark. The rule for impeaching a witness by proving contradictory statements was wholly ignored, within the rule of People v. Riede, 121 Mich. 700 (80 N. W. 796), and many other cases.
One Miller, who formerly owned the horses, testified that he sold them to Mrs. Whitman, and that, after the suit was brought, he had a conversation with defendant; that defendant asked him what he knew about the case; that witness told him that, at the time of the sale, defendant said that the cows, for which he exchanged the horses, belonged to Mrs. Whitman; and that defendant said it looked as though he would get beaten. On cross-exami nation by the defendant’s attorney, the witness, in reply to the question, “What else did he say?”.said: “He said he was so blind he couldn’t see; and I asked him about how much the colts were worth, and he said about $300, and, if he didn’t get them, he would go to the poorhouse.” Plaintiff’s attorney moved to strike out the answer as incompetent, immaterial, and not relative to the issue. The court denied the motion; holding the answer “competent as testing the recollection of the witness, and as a conversation between him and the defendant.” The motion should have been granted. A witness’ recollection cannot be tested by introducing irrelevant and immaterial matters. Parts of a conversation, having no reference whatever to the issue upon trial, are not admissible under the rule that a party is entitled to the entire conversation. The rule means only that he is entitled to the entire conversation bearing upon the subject in controversy. Ten subjects may be talked about in one conversation. When one of the ten is the subject of litigation, it is not competent to put in evidence the conversation about the other nine. Defendant’s blindness and poverty had nothing to do with the title to the property. The case of Lichtenberg v. Mair, 43 Mich. 387 (5 N. W. 455), cited and relied upon by defendant to support the ruling, well illustrates the rule; The cross-examination was directed to what was said in regard to the subject which the witness had testified to on his direct examination, and which was material.
Some of the remarks of the attorney for the defendant were wholly unjustified. Mrs. Whitman had been to California with her brother, who paid her fare. She lived there about seven months, and brought back $70 or $80. The attorney said to the jury: “What old heart do you think it is aching in California ? ” There was nothing in the record to justify this remark.
It appeared in evidence that Mrs. Whitman had at one time consulted the attorney for the defendant in regard to her ownership of the horses, and had corre sponded with him about it. Two of his letters were produced. The attorney, in his address to the jury, read them, and said:
“ That is just such a letter as any lawyer on the face of the earth would write, not knowing anything about the circumstances. Here is another letter, in which I told her it might be necessary to give a bond or execute a bill of sale. Now, it appears there must be some reason why I dropped that case right there. * * * I don’t remember what that woman wrote to me. I haven’t any more idea about it than anything in the world.”
He was not a witness, but endeavored in this manner to make himself one. In concluding his address he said:
“I have done my duty by the old man, and I am going to turn him over to you now. I will just say to you right now that this is an important matter to that man. He may be like an old horse turned out into the street. Your verdict may save him. Give him an opportunity of earning an honest livelihood.”
Again:
“Now, let me ask you, boys, mercy.
“Mr. McCurdy: I take an exception to the remark.
“ The Court: Don’t address the jury as ‘boys.’ ”
As long as attorneys will resort to such methods, unjustifiable either in law or ethics, courts have no alternative but to set the verdicts aside.
Judgment reversed, and new trial ordered.
Hooker, O. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
Plaintiff recovered damages claimed to have been sustained by the tipping over of a sleigh upon which the plaintiff was riding; the team attached being driven by one Walter Carver, his employer. The sleigh was loaded with a log of about 400 feet, board measure. His claim is that the north part of the traveled portion of the road was filled, and had been for several days, with snowdrifts, which the witnesses state to have been from 3 to 9 feet high, to avoid which it was necessary to drive so that the runners of the sleigh were driven upon the ties of an electric road, which ties projected into the roadway a foot or 18 inches, and were 6 or 8 inches above the level of the road, the snow coming upon the edge of the ties; that the north runners of the sleigh dropped into a hole 10 or 12 inches deep, causing the sleigh to tip over. The plaintiff recovered a judgment for $100. The defendant has brought the case here by writ of error.
Upon the trial no testimony was offered by the defendant. In his charge to the jury, the court, among other things, after stating the claims of the respective parties, said:
“It was the duty of the defendant to keep this road in a reasonably safe condition for travel of vehicles in summer and in winter. They should have kept it reasonably safe. If the railroad company is there, I take it, it is a subsequent servitude upon the highway; and I think I ought to charge you, and I do charge you, that, if they áre there, they are there by the consent of the plank-road company, and the fact of their being there does not exon erate or relieve the plank-road company in any way from its obligation to the public to keep the highway, and the beaten track thereof, which they have held out to be the driveway or roadway of their company, in a reasonably safe condition for vehicles to pass over, and vehicles and teams such as this was. So, if you find there was negligence upon the part of the defendant, and there was no negligence on the part of the plaintiff, or the one driving the horses; that he acted in a reasonable and prudent way,— in such a way as a reasonably prudent man would act under all the circumstances, — then the plaintiff is entitled to a verdict.1’
The defendant presented several requests to charge, which the court declined to give. The substance of these requests is that, if the accident would not have happened except for the snow or the driving upon the ties, the plaintiff cannot recover. We think the court did right in refusing these requests. The public had a right to travel-this highway, even though there were snowdrifts which encroached upon the north side of the wrought portion of the road, and electric road ties which projected into the southern portion of it. If what was done by the driver was what would have been reasonable and prudent for a reasonably prudent man to do, then the driver was not negligent. The rule stated by the judge is justified by the authorities. Carver v. Plank-Road Co., 61 Mich. 590 (28 N. W. 721); Id., 69 Mich. 616 (25 N. W. 183); Laughlin v. Railway Co., 62 Mich. 221 (28 N. W. 873).
In the progress of the trial, Mr. Carver was a witness, and testified he was not hurt. Upon his cross-examination the following occurred:
“ Q. You brought an action against the plank-road company for this same tipping over?
“A. Yes, sir; I did.
“ Q. In your declaration in that case you alleged that you were seriously injured ? (Objected to as immaterial. Objection sustained, and defendant excepts.)
“Mr. Baluss: I offer to show by this witness— And I want, in connection with that, to offer the files in that case, as showing the declaration alleging the injury, — file No. 40,315. I offer to show that the witness, who says he drove the team at the time of the accident, brought suit in justice’s court, and recovered judgment in that court upon his testimony that he was injured by the tipping over of this sleigh at the time alleged here, and recovered a judgment in that court, while he now testifies he was not injured. (Offer excluded. Defendant excepted.)”
This is said to be error. We do not think the files and the judgment in the other case were competent. It was competent, upon the cross-examination, to show- whether the witness had not testified differently in the other trial; and we have no doubt the court would have so ruled if the question had been so framed as to call for a ruling upon that question.
The case was tried in November, 1900. The counsel for defendant has printed in his brief a report from the weather bureau dated a year later, which is no part of the bill of exceptions. It should have no place in the brief of counsel, and will not be considered by the court.
Judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Moore, J.
This is an application for a mandamus to ■compel the respondent to issue warrants in favor of relators as members of the board of State auditors. The question involved is the constitutionality of Act No. 171 of the Public Acts of 1901. In considering the very important question involved, we have been greatly aided by briefs of exceptional ability by counsel on both sides of the case.
The act under consideration reads as follows:
“The several State officers constituting the board of State auditors shall be paid for the year nineteen hundred ■one, and annually thereafter, the sum of eighteen hundred dollars each as compensation for the services performed by them as members of said board of State auditors not contemplated by the Constitution of this State, and as a reimbursement for their necessary traveling expenses and hotel bills when traveling on State business, and in attending meetings of the hoard of State auditors, and meetings of other boards of which said officers are members, said amount to be in lieu of the reimbursement provided for in sections one hundred sixty-nine and one hundred seventy of the compiled laws of eighteen hundred ninety-seven, for dis[reim]bursement of expenses, and to be paid from the general fund on the warrant of the auditor general in the same manner in which salaries of the State officers are now paid.”
Its constitutionality is assailed upon three grounds, only one of which we deem it necessary to discuss, to wit, Is the act in conflict with section 1, art. 9, of the Constitution, which reads as follows:
“* * * The State treasurer shall receive an annual salary of one thousand dollars; * * * the secretary of State shall receive an annual salary of eight hundred dollars; the commissioner of the land office shall receive an annual salary of eight hundred dollars. * * * They shall receive no fees or perquisites whatever for the performance of any duties connected with their offices. It shall not be competent for the legislature to increase the salaries herein provided.”
Before this question can be answered, it is necessary to call attention to two other sections of the Constitution, which read as follows:
Section 1, art. 8. “There shall be elected at each general biennial election a secretary of State, * * * a State treasurer, a commissioner of the land office, * * * for the term of two years. They shall keep their offices at the seat of government, and shall perform such duties as may be prescribed by law.”
Section 4, art. 8. “The secretary of State, State treasurer, and commissioner of the State land office shall constitute a board of State auditors, to examine and adjust all claims against the State not otherwise provided for by' general law.”
This section also provides that these officials shall constitute a board of State canvassers, to determine the result of certain elections.
The attorney general contends — and there is a good deal of force in his argument — that:
“The duties performed by the State officers constituting the board of State auditors may be divided into three classes:
“1. Those imposed upon and pertaining to their duties as State ■officers.
“2. Those constitutionally imposed upon them as members of the board of State auditors.
“3. Those legislatively imposed upon them as members of the board of State auditors, being of a class not contemplated by the Constitution, but foreign to that instrument, and of a different and alien nature to those thereby imposed.
“The first two classes of duties are those imposed by the Constitution, and are within the prohibition against receiving fees or perquisites, and the inhibition upon the legislature to increase salaries.”
In an appendix to his brief he calls attention to a long list of duties imposed by statute upon the board of State auditors, and claims they come under the third class, and insists that, as to the duties imposed upon the board under the third class, the prohibition does not exist; that —
“ As the act in question limits the compensation which it awards to those services performed by the board of State auditors which are not contemplated by the Constitution, this is a legislative determination that duties not contemplated by the Constitution have been imposed upon this board, and that it is within the authority of the legislature to award compensation therefor.
“The early case of People v. Auditor General, 5 Mich. 193, supports the contention that the salary given by the Constitution was intended as payment only for duties constitutionally imposed, and those germane thereto; and in that case, which must be regarded as a contemporaneous judicial construction of the Constitution here in question, after speaking of the State officers constituting the board of State auditors and the duties imposed upon it by the Constitution, it was said:
“ ‘The salary is not given for one thing or for another. It is given to the governor, to the auditor, to the judge; and it must be understood, as it is plainly expressed, to be the salary for such duties as are imposed upon them officially by the Constitution. The same instrument creating the office, the duties, and the emoluments, they must all be held as belonging together, and constituting a complete guide to the whole matter.’
“Love v. Baehr, 47 Cal. 364; Melone v. State, 51 Cal. 549; Green v. State, 51 Cal. 577; State v. Weston, 4 Neb. 234.”
We will have occasion to refer to the case of People v. Auditor General, supra, further on, but it may be well to turn our attention for a moment to the other cases.
State v. Weston, supra, was a case which holds that the secretary of State is not ineligible to the appointive office of adjutant general, and there is nothing incompatible in the duties of the two offices, and there is nothing in the constitution of Nebraska standing in the way of his holding both offices, and therefore he is entitled to both salaries. In the same case it was said that, as to all acts or duties required of, the relator as secretary of State, he is confined to his salary of $3,000 per annum as compensation.
Melone v. State and Green v. State grow out of the same state of facts as the case of Love v. Baehr, and are controlled by it. In the last-named case Mr. Love, who was attorney general, sought to obtain, and was allowed, a salary as a member of the board of examiners. The case shows that the constitution of California is wholly silent as to the duties to be performed by the attorney general. Bearing this in mind, it may, perhaps, be useful to quote from the case:
“The constitution provides for the election of a secretary of State, controller, treasurer, attorney general, and surveyor general, but,is wholly silent in respect to the duties to be performed by either, leaving these to be prescribed by the legislature. The first question to be determined is whether the legislature has an unlimited discretion in respect to the nature of the duties which it may require to be performed by these officers.”
The court answered this question in the negative. As to what duties the legislature may impose on a State officer the court say:
“In the performance of this duty the legislature may rightfully exercise a wide discretion. It may assign to each of these officers any duties which, by the most liberal interpretation, can be held to come within the general scope of that class of duties which have usually appertained to such offices, as they were understood by the framers of the constitution. In cases of doubt it would be the duty of the courts, in deference to the legislative authority, to solve the doubt in favor of the power as exercised ; and they ought to interfere only in a clear case, when the legislature has manifestly transcended its authority by imposing upon one of these officers duties which, in their nature, are wholly foreign to his office. We proceed to inquire whether this is such a case.”
After enumerating the things which the legislature ordered the attorney general to do, the court proceeds as follows:
“Some of these services have not the slightest relation, even upon the most liberal construction, to the duties of an attorney general, as such duties were generally understood at the adoption of the State constitution, and as they were doubtless understood by the framers of that instrument. The business of counting money in the treasury, examining boobs of account, requiring the skill of an expert accountant rather than the professional learning of a lawyer, and the investment of public money in bonds, is wholly foreign to the duties of an attorney, and is no more cognate to them than the management of a State prison or lunatic asylum. The legislature has no more power to compel the attorney general to peform such service, as a part of the duties of his office, than it has to compel the superintendent of public instruction to take charge of the State prison, or to perform the duties of State gauger. The attorney general is, therefore, under no obligation to perform such services, and he may decline to perform them, without any breach of his official duty as attorney general.”
The court held that, though the legislature could not compel the attorney general to perform these new duties, still, if he voluntarily performed them, it might compensate him for this unofficial service by allowing him compensation in addition to his salary as attorney general.
As germane to the same subject, and to the proposition that, where a public officer is required to perform duties entirely outside of the line of his official duties, he is entitled to compensation therefor, and, in cases of those municipalities which are subject to suit, a claim arises which can be enforced in the courts, counsel cite City of Detroit v. Redfield, 19 Mich. 376; Ten Eyck v. Railroad Co., 74 Mich. 226 (41 N. W. 905, 3 L. R. A. 378, 16 Am. St. Rep. 633); Roulo v. Board of Auditors of Wayne Co., 74 Mich. 129, 134 (41 N. W. 879); Mayor, etc., of Niles v. Muzzy, 33 Mich. 61 (20 Am. Rep. 670); McBride v. City of Grand Rapids, 47 Mich. 236 (10 N. W. 353); Converse v. United States, 21 How. 463.
An examination of all of these cases, except Roulo v. Board of Auditors of Wayne Co., will show the duties imposed were not germane to those required by law to be done by the officer as an officer. He could do them or not, as he chose. They were duties outside of and different from his duties as an officer, which he might refuse to do if he desired; and it was held that, if he performed the duties, he might receive compensation for so doing. In the Boulo Case the right to compensation was upheld by a divided court; Justices Campbell and Sherwood being of the opinion he could not recover. The other Justices were of the opinion that, as the law of 1887 gave compensation for the additional service to all the counties in the State, not excepting Wayne county, the register of the latter county was not excluded from the compensation fixed by the law of 1887 because of the provisions of the local act 'passed in 1879. None of these cases establish the position of the relators.
Can it be said that any duties have been imposed upon the relators which they might lawfully refuse to perform? If so, our attention has not been called to them. It is true that more duties have been imposed upon them than they were called to do when the Constitution was adopted, more than 50 years ago, because of the fact that they are officers of a great and growing State. Nearly all of these new duties are requirements providing for the examination and auditing of claims against the State not otherwise provided for by general law. The others are of a transient character, and are germane to the duties of the office.
In this discussion it will not do to overlook the fact that not only are the offices of State treasurer, secretary of State, and land commissioner constitutional ones, but the board of State auditors is a constitutional board, made up of these constitutional officers. It comes into being because the Constitution created it. Its membership may not be added to or diminished except by a change in the Constitution. The relators are members of that board simply because they are State officers, and it is because they are State officers that the duties which devolve upon the board must be discharged by them. The one cannot be disassociated from the other. The identity of the board member and the State officer is the same. As long as he is a State officer he is, because of that fact, a board member, and the moment he ceases to be a State officer that moment he ceases to be a member of the board. It is because the relators hold the State offices which they hold that they constitute the board of State auditors, charged with the performance of the duties imposed upon that board.
In this connection it may be well to again refer to the case of People v. Auditor General, supra. Prior to the present organization of this court, under the Constitution of 1850, Judge Whipple was a circuit judge from January 1, 1852, until his death, in September, 1855, for which he received his pay as circuit judge. During all of that time he was also a member of the Supreme Court. After his death it was claimed by the administrator of his estate that he was also entitled to the amount of his salary as a member of the Supreme Court, inasmuch as there was a salary attached to that office. This claim was resisted, for the reason that, having received his salary as circuit judge, he could not receive compensation as a member of the Supreme Court. The Constitution at this time provided that the judges of the several circuit courts should be judges of the Supreme Court, four of whom should constitute a quorum. It was provided the circuit judges should receive a salary payable quarterly. Article 9, § 1, fixed the salary of the circuit judges, and also of the State officers, and then proceeds:
“ They shall receive no fees or perquisites whatever for the performance of any duties connected with their offices. It shall not be competent for the legislature to increase the salaries herein provided.”
It will be observed this is the same section of the Constitution we are considering. In the act of April Í, 1851, a salary was provided for the judges of the Supreme Court, and it was argued that, as Judge Whipple had discharged, the duties of both offices, he was entitled to both salaries. •Justice Campbell, speaking for the court, said:
“ ‘The judges of the several circuit courts shall be judges of the Supreme Court ’ is an exclusive provision, not open to qualification. They hold no separate commission. As judges of the circuit court, and in no other way, they hold the Supreme Court. Together they constitute the court; separately they are circuit judges. There is' under the Constitution, as applied to the Supreme Court first organized, no such thing as a Supreme Court judge, properly so called, out of court. Whoever, by the vote of the electors in any judicial circuit, was chosen to be judge of the circuit court, became, without further ceremony, invested with all the authority conferred by the Constitution in both courts. Every judicial officer is required by article 18, before entering upon the duties of his office, to take an oath to discharge its duties faithfully. An oath to perform the duties of the office of a judge of the circuit court would certainly cover any duty devolving upon the person elected.
“If the clause in question simply authorized a circuit judge to perform the duties of the office of a judge of the Supreme Court, there would, perhaps, be room for verbal criticism, the correctness of which it would require a comparison of the whole instrument to determine. As we must, in any case, regard the whole instrument, the difference would not be very serious. But when the law says the judge of one court shall he judge of another, it uses the strongest words the language affords to express absolute identity. When one ceases to exist, there is no survivorship. The language being so appropriate to convey this idea, and the judicial system being substantially as it was when a judge of the Supreme Court, who by law could hold no other office whatever, was nevertheless circuit judge, the most reasonable conclusion at which we can arrive is that there is but one office, properly so called, created by the Constitution.
“Is, then, the salary payable for the performance of one class of duties, or is it a remuneration for all ? As before remarked, it is payable by the State among the salaries of State officers. Three of those officers, in addition to their separate duties, constitute two boards, — a board of State auditors and a board of State canvassers, each-having many and onerous duties. Another is, ex officio, a member and secretary of the board of education. These duties are affixed to the offices by the Constitution itself. The provision against increase of salaries and fees and perquisites applies to all of them. It is very true that in their case, as in the case of circuit judges, it is said the officers shall constitute the boards; but if the officer must perform the duties, and if no one else can, it can require no reasoning to prove that what is thus incumbent on him is one of ‘the duties of his office.’ The salary is not given for one thing or for another. It is given to the governor, to the auditor, to the judge; and it must be understood, as it is plainly expressed, to be the salary for such duties as are imposed upon them officially by the Constitution. The same instrument creating the office, the duties, and the emoluments, they must all be held as belonging together, and constituting a complete guide to the whole matter.”
It is clear no one, under the Constitution, except the State treasurer, the secretary of State, and the commissioner of the land office, can discharge the duties of the board of State auditors. If Justice Campbell is right when he says, “But if the officer must perform the duties, and if no one else can, it can require no reasoning to prove that what is thus incumbent on him is one of ‘the duties of his office.’ The salary is not given for one thing or for another. It is given to the governor, to the auditor, to the judge,” — how can it be said the duties imposed upon the board of State auditors are not duties which pertain to the offices of State treasurer, secretary of State, and commissioner of the land office, who make up the .board of State auditors? Paraphrasing the language of Justice Campbell, “as State officers, and in no other way, they hold the sessions of the board of State auditors. Together they constitute the board; separately they are State officers.” Indeed, the act itself provides the compensation shall be paid to “the several State officers constituting the board of State auditors.” When the Constitution provides these officers “shall perform such duties as may be prescribed by law,” we are compelled to say it means, not simply such duties as are imposed by the Constitution, but such as are imposed by the statute as well. However much we may regret that the onerous duties so capably performed by the relators are not more amply rewarded, the conclusion is unavoidable that the people meant to control the salaries of the various State officers by fixing the amount thereof in the Constitution, and the remedy is with the people, and not with the legislature or the courts. If the contention of the relators can be sustained, the legislature, by imposing some duty upon any State officer not now required of him, may grant him such compensation as it deems wise, and thus render the provisions of the Constitution inoperative. See State v. Raine, 49 Ohio St. 580 (31 N. E. 741).
We are not unmindful of the rule of law that legislative acts are presumed to be constitutional, and that the power of declaring them unconstitutional should be exercised with extreme caution. Sears v. Cottrell, 5 Mich. 259; People v. Blodgett, 13 Mich. 127; Attorney General v. Preston, 56 Mich. 177 (22 N. W. 261); Cooley, Const. Lim. (6th Ed.) 218. On the other hand, when the legislature has exceeded its power under the Constitution, disagreeable as the duty may be, this court has no choice except to hold the law unconstitutional. McPherson v. Secretary of State, 92 Mich. 377 (52 N. W. 469, 16 L. R. A. 475, 31 Am. St. Rep. 587); Attorney General v. Pingree, 120 Mich. 550 (79 N. W. 814, 46 L. R. A. 407). We cannot resist the conviction that the effect of this leg islation is to increase the salaries of three State officers, contrary to the provisions of the Constitution.
The writ is denied.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Montgomery, C. J.
(after stating the facts). The defendants contend that there was testimony which would justify a finding by the jury that plaintiff was guilty of negligence in insuring the risk, and that it should be held that, if it was guilty of such negligence, there can be no recovery against the defendants. The difficulty we find in assenting to this contention lies in the fact that there were no relations whatever between the plaintiff and the defendants which imposed any duty upon the plaintiff to refrain from making any contract to indemnify Burnham, Stoepel & Co. which, in the judgment of its agents, was advantageous. Negligence of which a party has a right to complain is the omission of some duty owing to the complaining party. See 1 Thomp. Neg. § 3. It cannot be doubted that, had Burnham, Stoepel & Co. brought this action against the defendants, their right of recovery would be clear. Nor would the fact that they had taken out this insurance with the plaintiff have defeated that recovery. Perrott v. Shearer, 17 Mich. 48; Peter v. Railway Co., 121 Mich. 324 (80 N. W. 295, 46 L. R. A. 224, 80 Am. St. Rep. 500). This being so, it can work no injury to the defendants that, either before or after the injury resulting from their negligence, the plaintiff has been subrogated to the right of action which would otherwise be clear in Burnham, Stoepel & Co. When the insurance company accepted this risk, its own inspection would, as between Burnham, Stoepel & Co. and plaintiff, estop it from denying that it had made sufficient examination, and, if it found the risk more than ordinarily dangerous, we know of no rule of law which would prohibit the company from accepting the risk and writing the policy. Indeed, it may have increased its premium by reason of the danger being unusual because of the situation of the premises. If, in accepting such a risk, it took greater risks than it should, it may have been guilty of a breach of duty to its stockholders, but it neglected no precaution owing to a stranger. See, for their bearing on this question, Sun Mut. Ins. Co. v. Mississippi Val. Transp. Co., 17 Fed. 919, and Insurance Co. v. The C. D., Jr., 1 Woods, 72 (Fed. Cas. No. 7,051).
Defendants’ counsel insist that the fact that plaintiff claims by subrogation under Burnham, Stoepel & Co. does not preclude defendants from insisting upon the defense of negligence. It is to be kept in mind that it is only because plaintiff is subrogated to Burnham, Stoepel & Co.’s rights, in place of the action being brought by that firm, that the defense is attempted; and it leads back to the question whether the plaintiff owed the defendants any duty of inspection.
The defendants rely upon the rule that, where one meets a loss through his own negligence, he will not be permitted to invoke the doctrine of subrogation. The answer to this was tersely made on the argument, — that in this case it is not an attempt to invoke the equitable doctrine of subrogation, but that the plaintiff is already subrogated to the rights of Burnham, Stoepel & Co. What it is now seeking to do is to recover, in that right under what amounts to an assignment of Burnham, Stoepel & Co.’s claim, and the case presented is the case of Burnham, Stoepel & Co., represented by the plaintiff, who might have sued either in its own name or in that of Burnham, Stoepel & Co., at its election.
The defendants contend that this right to maintain the action should be subject to an exception, which is formulated by defendants’ counsel as follows:
“One whose own neglect or wrong has been a cause contributing to the damage sustained by him cannot successfully invoke the right of subrogation.”
But we think no such exception can have application to this case: First, because the plaintiff has been guilty of no neglect or wrong as against the defendants; and, second, the damage which resulted to the plaintiff from its own inattention was whatever excess it paid to Burnham, Stoepel & Oo. over and above the value of the right of subrogation contracted for in the policy, if anything. The circuit judge correctly charged the jury that the plaintiff was entitled to the same rights that Burnham, Stoepel & Co. would have had had the action been brought in their name.
The judgment will be affirmed.
The other Justices concurred. | [
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Hooker, J.
At some time earlier than June, 1887, one Jesse G. Jones and a number of other persons purchased a mining claim in Colorado. Jesse G. Jones died subsequently, leaving a widow, Elizabeth H. Jones, and four minor children. On June 20, 1887, a patent for the land issued from the federal government to the parties interested, including Elizabeth H. Jones and “the heirs of Jesse G. Jones.” On April 3, 1888, the grantees incorporated the Roscoe Conkling Gold Mining Company under the laws of Colorado, with a capital stock of 10,-000 shares, of the par value of $10 per share, defendant Eli Green being employed to take the necessary steps to organize the company. Six thousand shares were distributed among the shareholders in consideration of a deed of the mine, which the shareholders joined in making. Elizabeth H. Jones attempted to convey the interest of the estate of Jesse G. Jones as his administratrix, and shares of stock were allotted to her, as such administratrix, in payment for the deed. Four thousand shares of stock were withheld from sale as a working capital for the new company, and apparently there were no other means provided for the development of the prospective mine. A contract was made between the corporation and Eli Green, wherein he undertook to sell 500 shares of stock at par within a prescribed period, for which service he was to receive 2,000 shares of the stock. Thus the company provided for the sale of 2,500 shares for $5,000, or $2 per share.
The affairs of the corporation did not prosper, and it ran along until 1891, when a difference of opinion as to the policy to be pursued seems to have arisen. As stated, Eli Green, who was an uncle to Elizabeth H. Jones, had been employed to organize the company and negotiate stock, and perhaps to render some service at the mine; and Mrs. Jones, who, in her own right, and as administratrix, had possession of a large quantity of the stock, was desirous that the company should enter into a contract with said Eli Green to develop the mine. Negotiations followed between Green and the board of directors, but they could not agree upon terms, and some of the members of the board had negotiations with others. The matter culminated in a strife for the control of the company’s board of directors in 1891, when, by a majority of votes as cast, Mrs. Jones was elected president, and directors friendly to her policy were chosen, and immediately thereafter a board meeting was held, and a written contract was made with Eli Green, by which it was agreed, in substance, that he should expend money in developing the mine to the amount of $4,000, and that in return therefor 2,400 shares of the stock should be delivered to him from the treasury or working stock, the same being deposited with a local banker in Cass county for that purpose. Subsequently, upon an alleged showing that the expenditure had been made, the board caused the shares to be delivered to Eli Green.
The bill in the cause is filed by two of the children of Jesse G. and Elizabeth H. Jones. Eli Green ¿nd his wife, Esther, the other two heirs of Jesse G. Jones, the Roscoe Conkling Gold Mining Company, and one George Gard (who was elected secretary of the company in 1891) were made parties defendant. The bill is filed to set aside the transfer of stock to Eli Green, and from him to his wife, Esther, as fraudulent, and for a determination of complainants’ rights in the stock, and for other relief. Elizabeth H. Jones and Eli and Esther Green join in an answer, denying generally the claims of the bill. An answer purporting to be filed by the company through its alleged secretary and treasurer was filed. These alleged officers were stockholders who were in sympathy with, and claim to have been elected by, the opposition to Mrs. Jones, at the annual meeting in 1891, and they are apparently in sympathy with the complainants, as their answer indicates.
Upon the hearing it was made to appear that Eli Green and Elizabeth H. Jones colluded to secure control of the board, in order that they might carry out the proposed policy of making the contract mentioned. To accomplish this, she, at the suggestion of Green, pushed a claim in behalf of her husband’s estate against one Finney Jones, and finally secured a block of stock held by him in settlement of it, which gave her the necessary majority. Under the advice of Eli Green she was careful to conceal her motive, lest those opposed to her should prevent her from acquiring the stock. He was at the time the president of the concern, and would not sign the new certificate, which Elizabeth, as vice-president, then signed, at Eli Green’s suggestion. The letters written by Green to her, of which there are many, show plainly the concert of action between, him and her to make the proposed éontract. To obtain the necessary stockholders for officers and directors, Green assigned stock in nominal amounts, and the program was fully carried out. The learned circuit judge found this transfer of stock fraudulent, and made a decree setting aside the transfer to Green, but giving him a lien on all of the property of the company for the sum of $4,000, with interest at 5 per cent, from July 1, 1899, which amount was found to be due to Green. The complainants, Green, and the mining company have appealed.
The record shows that the directors who made the contract were elected by a majority of the stock. It was competent for Mrs. Jones to obtain control of a majority of the stock by purchase, and the validity of the transfer does not depend on her motive or purpose, and, having obtained it, she was entitled to vote it. The stock that complainants claim, was in her name, and, as between herself and other stockholders, she had the right to vote it. Complainants, who were not stockholders, had no power in the premises. The election of the directors was valid.
It appears that the holders of a majority of the stock approved the proposed contract with Eli Green, as the minority stockholders well knew. The directors were elected with the understanding on the part of all that they would carry out the wishes of the majority. The court found that a fraud was attempted upon the part of Green, and he may have taken the view that a contract made through directors who held Green’s stock was a contract made by Green with himself, and, if designed to produce a profit, was a fraud upon the company; and we think this is the rule. He was to receive $24,000 worth of stock on a basis of the par value for $4,000 in money. We do not feel confident that this stock was worth $4,000, but it is not important here. All of the stockholders wanted the mine developed. The minority attempted to elect a board, and an attempt was made to make a contract with another; but this was unauthorized, and not binding upon the company. The only lawful board assumed to make a contract for the company. This was with full concurrence of the holders of a majority of the stock. If, under that contract, Green in good faith expended $4,000 for the benefit of the company, in accordance with the contract, in the development of the mine, there would seem to be no reason why equity does not require that he be reimbursed. It is impossible to determine satisfactorily whether this amount was so expended. He testified that it was, and there is no tangible and convincing proof to the contrary. We might perhaps infer that the money could have been spent more judiciously, but that is not clear. The trial judge, who saw the witnesses, seems to have believed that such expenditure was made, and we do not feel justified in holding otherwise.
It is contended that the court erred in making the sum found due Green a lien upon the mine, and providing for a sale of the same in case his claim should not be paid. We are of the opinion that the defendant Green should be limited in his lien to the 2,400 shares. They have already .been delivered to him. A majority of the stockholders, who have been willing to contract on the basis of 2,400 shares, are willing that he should have them, and, as against them, he is not equitably entitled to more; while, as to the minority, he has been limited to a recovery of the amount expended, which they assert to be less than the value of 2,400 shares. We see no reason for his being entitled to more than his contract price, even if the 2,400 shares are worth less, and even against those who question the validity of his contract.
The stock which Mrs. Jones received for and on behalf of her husband’s estate, whether received in payment for his interest in the land or from Finney Jones in satisfaction of the debt due the estate, should be treated as property held in trust for herself and the heirs. The record shows that the estate has been settled, and that she has been discharged as administratrix, so that it may be assumed that creditors have no interest in this stock. As all the parties are before the court, the only minor being represented by guardian ad litem, this court may properly adjust the rights of all in this decree by requiring that Elizabeth H. Jones convey to each his proper share of the stock. * ■
A decree may be taken adjudging that the stock issued in pursuance of the contract be surrendered for cancellation upon payment by the company, or upon its behalf, of the sum of $4,000, with interest thereon at 5 per cent, from July 1,1899, to the said Eli Green, within the period of six months after settlement and notice of the decree herein provided for, otherwise the same to be and remain the property of said Eli Green; that the stock issued to said Elizabeth H. J ones, as administratrix, is held by her in trust for herself and the four children of herself and Jesse G. Jones, and that she assign by apt and proper writing to each his or her proportionate share; the same to be settled at the time of settling the decree in this cause, or by a reference, if the same shall then be found necessary, unless the parties can agree thereto. The complainants will recover costs of both courts against Eli Green, Esther Green, and Elizabeth H. Jones.
Montgomery, C. J., Moore and Grant, JJ., concurred. Long, J., took no part in the decision. | [
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Clark, J.
Dismissal of amended bill of complaint was declined. Defendants have appealed. Facts are stated in companion case of Hall v. Detroit Estates Corporation, ante, 121, decision of which is here controlling.
Beversed. Costs to appellants. Cause remanded with direction to permit transfer to the law side within 20 days, and on failure so to transfer, to dismiss the bill.
Wiest, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. Butzel, C. J., did not sit. | [
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] |
Clark, J.
This is appeal from an order of the department of labor and industry denying petition of defendants to stop compensation.
The testimony of plaintiff and of his physician is to the effect that the disability for which the original award of compensation was made still continues. This testimony is disputed.
The finding of fact by,- the department, having some evidence to sustain it, is conclusive on this court.
At the hearing before the deputy commissioner, defendants raised the point that plaintiff had not answered their petition to stop compensation, and cited Buie No. 20 of the rules of the department. The record does not show this question to .have been urged before the commission on review. Therefore it will not be considered here. Aske v. W. E. Wood Co., 248 Mich. 327.
Affirmed.
Butzel, C. J., and Wiest, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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Clark, J.
In December, 1928, plaintiff purchased 100 shares of capital stock of Guaranty State Bank, a banking, corporation, at a price of $13,595, and 100 shares of the capital stock of the Guaranty Trust Company, also alleged to be a banking corporation, at the price of $27,500. Plaintiff arranged to have the Guaranty Trust Company stock carried by the Guaranty State Bank, and he accordingly paid to the bank $7,500 and borrowed $20,000 from the bank for which he gave his promissory note and he deposited as collateral the certificate for 100 shares of Guaranty Trust stock. By a like arrangement, he borrowed $13,595 from the Guaranty Trust Com pany to pay for the bank stock and gave his promissory note therefor and as collateral he deposited the certificate for 100 shares of bank stock and a certificate for 10 shares of other stock. He renewed the notes from time to time, accepted dividends, and consented to the Guaranty State Bank’s being succeeded by American State Bank of Detroit.
In March, 1931, he filed this bill for rescission of both purchases, joining both American State Bank and Guaranty Trust Company as defendants, alleging that the purchases had been brought about by fraud. Defendants, having different counsel, filed separate motions to dismiss. The bill was dismissed. Plaintiff has appealed.
On the motion to dismiss, the material allegations of the bill are taken as true.
No point is made of misjoinder.
American State Bank. The bill alleges the stock to be “absolutely worthless and a liability.” This is equivalent to saying that rights of creditors are involved under statutory liability of stockholders in banks. 3 Comp. Laws 1929, § 11945. A rule, not as between parties to the contract sought to be rescinded, but as regards creditors, is stated in Newton National Bank v. Newbegin, 20 C. C. A. 339 (74 Fed. 135, 33 L. R. A. 727), and quoted in Farmers’ State Bank v. Empey, 35 S. D. 107 (150 N. W. 936):
“There are obvious reasons why a shareholder of a corporation should not be released from his subscription to its capital stock after the insolvency of the company, and particularly after a proceeding has been inaugurated to liquidate its affairs, unless the case is one in which the stockholder has exercised due diligence, and in which no facts exist upon which corporate creditors can reasonably predicate an estoppel. When a corporation becomes bankrupt, the temptation to lay aside the garb of a stockholder, on one pretense or another, and to assume the role of a creditor, is very strong, and all attempts of that kind should be viewed with suspicion. If a considerable period of time has elapsed since the subscription was made;’if the subscriber has actively participated in the management of the affairs of the corporation; if there has been any want of diligence on the part of the stockholder, either in discovering the alleged fraud, or in taking steps to rescind when the fraud was discovered; and, above all, if any considerable amount of corporate indebtedness has been created since the subscription was made, which is outstanding and unpaid— in all of these cases the right to rescind should be denied, where the attempt is not made until the corporation becomes insolvent.”
See, also, Bissell v. Heath, 98 Mich. 472.
Plaintiff, to prevail, must show the equities in his favor, and, among such equities, the fact that there are no creditors who became such while he was a registered stockholder. There are no allegations in the bill relative to the matter, but it is obvious that this large bank in active business in Detroit incurred some new and different obligations, to depositors at least, over the period of more than two years that plaintiff was a registered stockholder. Plaintiff, therefore, cannot repudiate liability to creditors and avoid his status as a stockholder by a bill for rescission of his purchase of the stock. It is unnecessary to consider plaintiff’s lack of diligence in this regard, nor to discuss waiver. As to this defendant,.the bill was properly dismissed.
Guaranty Trust Company. It is urged the bill does not allege a purchase of stock from the defendant, a contract between the parties which might be rescinded. There is no express allegation to that effect, bnt that is the theory and tenor of the bill. The effect of the mass of allegation is that the purchase was from defendant. It is contended that plaintiff neither returns nor offers to return the stock which he purchased, and that he cannot return it as it is pledged to a third party, the said bank, as security for a loan, and that he therefore cannot rescind, as he cannot place the defendant in statu quo. Joslin v. Noret, 224 Mich. 240.
The bill alleges the stock to be “practically worthless;” this means actually, not theoretically, worthless. We must take the allegation to be true, and it appears that defendant will suffer no prejudice if the worthless stock be not returned. Hence the contention is without merit. Joslin v. Noret, supra; Anderson v. Frischkorn Real Estate Co., 253 Mich. 668.
As against objections made, the bill states a case against the defendant.
As to American State Bank, the decree is affirmed, with costs to appellee.
As to Guaranty Trust Company, the decree is reversed, with costs to appellant, and defendant may answer within rule time.
Butzel, C. J., and Wiest, McDonald, Potter, Sharpe, North, and Head, JJ., concurred. | [
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] |
Butzel, J.
Alfred Goetz and 17 other plaintiffs have each brought an independent suit against Edward D. Black, defendant, to recover a statutory penalty. For the piirpose of appeal only, the 18 cases have been consolidated and considered as one. Each plaintiff claims that after being arrested and illegally detained for several days in the Genesee county jail, he caused, oh the 10th day of July, 1930, a petition for habeas corpus in legal and proper form to be presented to defendant, one of the circuit judges of Genesee county, and that defendant refused to grant the petition and order the issuance of the writ. The petitions are not before us. They are neither attached to nor set forth in the declarations, nor have they at any time been filed in any court. No suits were ever begun by or on account of the petitions, except the instant ones to collect the penalty. Defendant moved to dismiss on the ground that the petitions were not filed in the office of the clerk of the court, that the application was not made in due form in accordance with the court rules and practice of the court, and that the acts of defendant were judicial and not ministerial. The circuit court entered an order of dismissal.
We shall only discuss the first reason for the dismissal, as it is decisive. It was not necessary for plaintiff to file the petition for the writ of habeas corpus with the court prior to its presentation to the circuit judge, but whether granted or denied it became necessary to file it, and thus have a suit properly begun, as a condition precedent to any further proceedings in or on account of the suit.
The right to a writ of habeas corpus is fundamental to personal liberty. Its sources in the common law go back to the earliest struggles for freedom, and precede the provision of the Magna Chartathat no “freeman shall be taken or imprisoned * * * unless by the lawful judgment of his peers, or by the law of the land” (1 Comp. Laws 1929, p. 5). This pronouncement, however, was insufficient, for certain abuses arose as set forth, in case CCCY, reported in 1 Anderson, 297 (123 Eng. Rep. 482 [1591]). It was found that frequently persons lawfully discharged on habeas corpus were recommitted to some secret place; officers were imprisoned and terrified to such a degree that they would no longer serve the writ; and there existed a general disregard of the right of habeas corpus by the Crown. These abuses are recited in the preamble to the statute of 31 Car. II, c. 2 (5 Statutes at Large, p. 458). This act provided that a return must be made to a writ within three days of its service, prescribed heavy penalties for failure to obey the writ, and prohibited the recommitment of persons discharged on habeas corpus except by proper court order. It' also extended the authority to grant habeas corpus to issuance of the writ during vacation time, and provided for a penalty of 500 pounds to be paid by any authorized court or officer who failed to grant the writ required by the act to be assessed. The privilege of habeas corpus was further developed from time to time and established the basic right of freedom from unlawful detention.. The earliest colonists brought it to this country as a part of the common law, and it became and ever since remained the law of the land. It was incorporated in the Constitution of the United States (article 1, §9, subd. 2). It became part of the bill of rights in article 2 of the Ordinance for the Government of the Northwest Territory (1 Comp. Laws 1929, p. 97), which subsequently became the law of Michigan Territory, and has existed in every Constitution of the State of Michigan. Article 2, § 11, Constitution 1908,- provides that:
“The privilege of the writ of habeas corpus shall not be suspended unless in case of rebellion or invasion the public safety may require it.”
Also, in article 7, § 10, the circuit courts are expressly empowered to grant writs of habeap corpus. The constitutional provision relative to habeas corpus has been termed “a mandate to the judiciary to see that no man be deprived of his liberty without a hearing.” See Parsons v. Russell, 11 Mich. 113, 129, 135 (83 Am. Dec. 728), in which case, as well as in Re Jackson, 15 Mich. 417, the history of the writ is more fully set forth.
In order to insure the issuance of the writ when legally applied for, the legislature has provided that any judge who shall wilfully or corruptly refuse or neglect to consider such application or petition shall be deemed guilty of malfeasance in office (3 Comp. Laws 1929, § 15208); that such writ be granted without delay, unless it shall appear from the petition itself, or from the documents annexed, that the party applying therefor is, by the provisions of the law, prohibited from prosecuting such writ (3 Comp. Laws 1929, § 15211); further, that if any court or officer authorized by the law to authorize such writs shall refuse to grant such writ when legally applied for, every member of such court who shall have assented to such refusal, and every such officer, shall severally be liable to the party aggrieved in $1,000 damages (3 Comp. Laws 1929, § 15216). While a judge may, of his own volition, upon being informed that some one is illegally detained, issue the writ without a petition (3 Comp. Laws 1929, § 15215), nevertheless when a petition is filed it must be in proper legal form. Section 15210, 3 Comp. Laws 1929, provides in seven subsections what the writ must contain. It must positively state that certain facts and conditions exist; it must negative the existence of others; it must be properly sworn to. 'If a verified petition sets forth in substance the necessary allegations, as provided by the statute, it becomes the absolute duty of the judge to issue the writ, and in the event of his refusal the petitioner has a number of remedies. He may apply to another judge, if there is more than one for the circuit; he can secure relief by applying to this court by appeal, in the nature of certiorari, or by asking for an original writ which would be issued forthwith, or he may seek the redress prescribed by the statutes as herein-before referred to. However, in order to seek any of the remedies, except the presentation of the petition to another judge of the same circuit court or the commencement of an original suit in this court, it is necessary that a suit be previously begun. There is only one method of bringing such- suit, and that is by filing the petition with the court without any substantia] delay after its grant or refusal. Unless a petitioner properly begins the suit, he abandons the proceeding. A writ of habeas corpus proceeding is a suit.
While application for a habeas corpus may be addressed to the circuit court or judges (3 Comp. Laws 1929, § 15208), the power to issue the writ is vested in the circuit court by article 7, § 10, of the State Constitution. See, also, section 13941, 3 Comp. Laws 1929. The circuit court is a court of record, acting through a judge or judges only in suits that are properly begun by the filing of appropriate pleadings. The court can only act judicially. Judicial power is the power of the court to decide and pronounce its judgment and to carry it into effect between persons and parties who bring a case before it for decision. Muskrat v. United States, 219 U. S. 346 (31 Sup. Ct. 250).
In Holmes v. Jennison, 14 Pet. (U. S.) 540, though the court was divided as to the main issue, the opinion written by Chief Justice Taney as to the writ of habeas corpus being a suit was unchallenged. He stated:
“If a party is unlawfully imprisoned, the writ of habeas corpus is his appropriate legal remedy. It is his suit in court, to recover his liberty. In order to be effectual for the purposes for which it is intended, the proceedings must be summary; and the law has accordingly made them so. * . * * With this explanation, we proceed to inquire whether the habeas corpus was a ‘suit.’ ”
Chief Justice Taney further quoted from the opinion of Chief Justice Marshall in Weston v. City Council of Charleston, 2 Pet. (U. S.) 449, as follows:
“Is a writ of prohibition a suit?
“The term is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice, by which an individual pursues that remedy in a court of justice which the law affords him. The modes of proceeding may be various, but if a right is litigated between the parties in a court of justice, the proceeding by which the decision of the court is sought is a suit.”
In State, ex rel. Gardner, v. Shrader, 73 Neb. 618 (103 N. W. 276, 119 Am. St. Rep. 913), the court said:
“The nature of the proceeding (habeas corpus) cannot, perhaps, be better described than in the language of Mr. Chief Justice Waite in Ex Parte Tom Tong, 108 U. S. 556 (2 Sup. Ct. 871), as follows:
“ 'The writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty. Resort to it sometimes becomes necessary, because of what is done to enforce laws for the punishment of. crimes, but the judicial proceeding under it is not to inquire into the criminal act which is complained of, but into the right to liberty notwithstanding the act. Proceedings to enforce civil rights are civil proceedings, and proceedings .for the punishment of crimes are criminal proceedings. In the present ease the petitioner is held under criminal process. The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution. On the contrary, it is a new suit brought by him to enforce a civil right, which he claims, as against those who are holding him in custody, under the criminal process. * * * The proceeding is one instituted by himself for his liberty, not by the government to punish him for his crime. ’ ”
We quote from the syllabus of In re Thompson, 85 N. J. Eq. 221 (96 Atl. 102), as follows:
“Habeas corpus is a high prerogative writ issu- ' ing out of a court, and whether allowed by, and made returnable before, a court composed of several members, or whether allowed by a single judge and made returnable before him, it is a proceeding in that court in which it, or the single judge, exercises jurisdiction. * * *
“When a prisoner petitions for a writ of habeas corpus out of chancery, he thereby commences a suit and prosecutes a cause in that court; and, being aggrieved by the decision, may appeal to the court of errors and appeals.”
To like effect are Click v. Click, 98 W. Va. 419 (127 S. E. 194); Payne v. Graham, 20 Ala. App. 439 (102 South. 729); State, ex rel. Reynolds, v. Flynn, 180 Wis. 556 (193 N. W. 651); State, ex rel. Hellige, v. Milwaukee Liedertafel, 166 Wis. 277 (164 N. W. 1004); State, ex rel. Beekley, v. McDonald, 123 Minn. 84 (142 N. W. 1051).
The necessity of filing a petition before further proceedings may be taken is set forth in State, ex rel. Distin, v. Ensign, 13 Neb. 250 (13 N. W. 216), where, in disallowing an appeal by a petitioner in habeas corpus proceedings, the court said:
“There is-no copy of the petition for a writ of habeas corpus which was presented to the county judge. Whether this omission is intentional or not does not appear. Nor was any copy of the petition taken into the district court. There is therefore nothing before the court upon which it can act. The petition must set forth the facts constituting the illegal detention. It is not sufficient to state that the petitioner is illegally restrained of his liberty, as that is a conclusion, but it must be made to appear in what the illegal restraint consists. Ex parte Nye, 8 Kan. 99.”
If plaintiff desired to press the refusal of the circuit judge to recovery of the statutory penalty, he should have filed the rejected petition so that there would have been an unquestionable and unimpeachable public record thereof, available to his own inspection as well as all others, and incapable of substitution by anyone.
If the circuit judge arbitrarily refused to examine the petition, he is not subject to the penalty unless and until it is made to appear by record of the “suit” that the very paper submitted to him for judgment thereon in form and substance commanded issuance of the writ, and this must be established by the. record made at the time. Plaintiff claims to have possession of the petition he should have filed. The law will not tolerate an assessment of the invoked penalty against a judicial officer under the circumstances here disclosed, for to do so after the long-delay would subject the judge to the machinations, chicanery, fraud, and enmity of anyone disposed to so act, and leave the judge without an impartial and incorruptible court record. A statute awarding a penalty is to be strictly construed, and, before a' recovery can be had, the case must be brought clearly within its terms. Grier v. Railway Co., 286 Mo. 523 (228 S. W. 454); Kitts v. Kitts, 136 Tenn. 314 (189 S. W. 375); United Assurance Ass’n v. Frederick, 130 Ark. 12 (195 S. W. 691); Anderson v. City of Birmingham, 205 Ala. 604 (88 South. 900).
Plaintiff on his own showing abandoned the proceedings when he neglected or refused to file the petition for the writ. No suit was ever begun. The court was correct in entering an order of dismissal, and the judgments are affirmed, with costs to defendant.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. | [
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] |
Wiest, J.
Under land contract John, George, and Grace Rehm held comparatively small vendees’ interests in certain resort property at Sand Lake, Lenawee county. They exchanged their interests for equities in other properties. Plaintiff, a real estate broker, brought about the exchange, and in this suit seeks to recover his commission.
The statute, 3 Comp. Laws 1929, § 13417, slightly transposed, provides that:
“Every agreement, promise or contract to pay any commission for or upon the sale of any interest in real estate * * * shall be void, unless such agreement, contract or promise, or some note or memorandum thereof be in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized. ’ ’
George Rehm gave plaintiff the following agreement:
“I hereby agree to pay R. T. Mead a commission of five per cent, on the sale price of the Putnam resort property. Signed, George H. Rehm, Putnam, Sand Lake, Michigan.”
George Rehm testified that he was verbally authorized by John Rehm to list the property with plain tiff. Plaintiff liad judgment against George and John Rehm for the sum of $6,600. This result was reached by computing the commission at five per cent, on the full value of the resort property.
Defendants John and Grace Rehm denied authorizing George Rehm to make the agreement sued upon. They also claimed that the agreement did not sufficiently identify any property. The last-mentioned point is without merit. The listing sufficiently identified the property. Option cases have no application. The other point has merit.
While the statute does not expressly state that one assuming to execute the contract for another must have written authority to do so, yet it does state that he must 'be lawfully authorized to sign the name of another. This agreement was not signed by John and Grace Rehm, neither did George Rehm sign their names thereto. If John Rehm may be held liable under the claimed verbal authority, then the evil the statute was intended to prevent will be present, and one who cannot be held liable on a verbal promise to pay a commission would be worse off than before the statute, for his liability would depend upon the promise of one asserting verbal authorization. A verbal agreement to pay the commission is rendered absolutely void by the statute, and there can be no recovery on quantum meruit, even though the service was rendered and accepted. George Rehm is liable, for he signed the agreement, but his liability is not to be measured upon a consideration of the value of the whole property.
The Rehms held no title, for title was in another. Their vendor consented to a transfer of their interests to another. The liability of George Rehm is to be computed upon the value of the contract interests of the Rehms in the resort property. Upon this record we cannot compute the amount of the liability of George Behm.
The judgment is reversed, with costs to defendant John Behm, and the case remanded to the circuit court, with leave to proceed against George Behm. ■
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
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] |
Wiest, J.
Plaintiffs owned the premises and conducted a wholesale sausage and meat market business on Diamond street, S. E., in the city of Grand Eapids. Defendants wanted to purchase the property, fixtures, and business. February 1, 1927, the parties entered into a written contract, under which plaintiffs sold and defendants, jointly, agreed to purchase the property and business at the sum of $45,000, and an additional sum for merchandise, to be determined by an inventory. As part of the purchase price of $45,000, defendants agreed to convey certain real estate in the city of South Bend, Indiana, and to convey certain property in the city of Grand Eapids and install a furnace therein. The conveyances were executed by the parties. The mentioned inventory was taken and the amount to be paid by defendants determined to be the sum of $7,778.55; $5,000 was paid by defendant George Hendershot, leaving the balance of $2,778.55, for which á note was signed by defendant Yoss, payable to Leo Feldpausch and Albert Feldpausch, secured by chattel mortgage oil the inventoried property. A furnace was installed but not paid for and plaintiffs, in order to keep it, had to assume the debt and paid $159.05. After execution of the contract defendant George Hendershot collected $600, as. advance rent on the South Bend property, and later gave his note for that amount, payable to Feldpausch brothers.
Plaintiffs brought this suit to recover the balance due under the inventory, the $600 rent collected in advance, and the amount paid to retain the furnace, and had judgment therefor.
Upon appeal it is claimed in behalf of defendants that it was understood at the time of the contract that defendants were not jointly interested. It is contended that the note and chattel mortgage, given by Voss, was by mutual arrangement his personal obligation and so accepted by plaintiffs.
The written contract controls, and the obligation to pay the full consideration was joint. The note and chattel mortgage have not been paid and the proof fails to show that the same were given and accepted by plaintiffs in payment.
“The taking of a note of one joint debtor is generally held not to be a payment of the joint debt, unless there is an agreement to that effect, the presumption being, it seems, that it was intended as collateral security only.” 21 R. C. L. p. 76.
See Gibbs v. Christensen, 47 Idaho, 658 (277 Pac. 814).
“In the absence of an express agreement to the contrary by the creditor, the acceptance of the note of one or more joint obligors bound for a pre-existing debt is not a payment thereof, and does not release other joint obligors, who did not sign such note.” Watson v. First State Bank of Dallas (Tex. Com. of App.), 237 S. W. 1106.
See, also, Valade v. Masson, 135 Mich. 41. There was no such agreement.
Plaintiffs were to have the South Bend, property, with right to rents after the first day of February, 1927. They got the property but not the rents. The obligation of defendants was joint in this respect and not changed by the note of George Hendershot. That note has not been paid. The obligation to install a furnace was joint and defendants are jointly liable for the money paid by plaintiffs for the furnace.
The judgment is affirmed, with costs.
Butzel, C. J., and Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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Butzel, C. J.
William Martin, defendant, appeals from a judgment of conviction in a bastardy proceeding. We need only briefly' review the testimony. Ramona Segnitz, prosecutrix, claims she was begotten of child by him on or about April 3, 1929. She testified that her menstrual periods were interrupted after March, 1929; that she did not know her condition until the day preceding the birth of her child; that she had improper relations with defendant only once and with no one else at*any time; that a number of weeks elapsed after she first met defendant before the act occurred; that a normal' nine-months child was born to her on January 6, 1930.
Defendant denied improper relations, and offered-proofs tending to show that he first met prosecutrix on April 21, 1929. As she testified that the act did not occur until a number of weeks after she first met him, the question arises whether a normal nine-months child was the result of an act committed about the middle of May, 1929. Both defendant and prosecutrix had always borne excellent reputations.
A judgment in a bastardy proceeding is only reviewable by certiorari. People v. Brannen, 173 Mich. 411. Upon certiorari we are not permitted to consider any other errors than those of law. We shall only discuss questions that may- arise again on a new trial.
Error is claimed because the court refused the submission of two special questions: one, whether a normal nine-months child was born after a normal period of gestation, and the other, whether defendant met prosecutrix prior to April 21, 1929. The sole question in a bastardy proceeding is whether the defendant is guilty or not. Special questions may not be submitted unless they involve facts from which legal conclusions can be drawn. People v. White, 53 Mich. 537. The court was correct in refusing to submit the special questions.
Under 3 Comp. Laws 1929, § 17131, defendants in criminal cases, whether cognizable by justices of the peace or otherwise, have the right to waive a jury trial. The court denied defendant the right of trial without a jury notwithstanding the filing of a written waiver. A bastardy proceeding is somewhat anomalous. It is of a civil nature in many respects. Extradition cannot be had (Frank Cannon’s Case, 47 Mich. 481); defendant need only be found guilty by a preponderance of evidence (Semon v. People, 42 Mich. 141); detention pending the furnishing of a bond cannot be had in the house of correction as the detention is not criminal (In re Kaminsky, 70 Mich. 653); the complaining witness may retain counsel to aid in the prosecution (Harley v. Judge, 140 Mich. 642). See, also, People v. Harty, 49 Mich. 490; People v. Gill, 247 Mich. 479; People v. White, supra.
On the other hand, 3 Comp. Laws 1929, § 12914, provides that the defendant should be committed to prison until he gives bond in the event that he is found guilty, a complaint is used instead of a declaration, and defendant is arrested (Pangborn v. Smith, 65 Mich. 1); the defendant can be arrested and jailed even in a situation where he would be entitled to immunity from service in a civil action (Cady v. St. Clair Circuit Judge, 139 Mich. 618); the proceedings come within the quasi-Qxmmral jurisdiction of the courts (People v. Phalen, 49 Mich. 492); the Detroit police court has jurisdiction to hear a bastardy complaint and to bind the defendant over to the circuit court (People v. Kaminsky, 73 Mich. 637).
We can readily see how testimony in a bastardy proceeding may be much more carefully reviewed and analyzed by a judge than by a jury. Frequently in a proceeding of this nature the jury may be somewhat swayed by their emotions and sympathies so as to overlook the important testimony bearing upon the main issue of the case. We believe that 3 Comp. Laws 1929, § 17131, is broad enough so as to include gtfasi-criminal cases, and that defendant was entitled to a trial without a jury. For this reason the judgment of the lower court is reversed, and a new trial ordered.
Wiest, Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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] |
Butzel, C. J.
Grover C. Dillman, State highway commissioner, filed a petition in the circuit court for the county of Kent to condemn property for the widening of highway M-2Í in the village of Grand-ville, Wyoming township, Kent county. A determination of necessity had been made to condemn sufficient land so as to widen the entire highway easement to 100 feet, with a concrete pavement in the center 40 feet in width. It was found necessary to take from appellant’s property a strip of land 131.75 feet in length, 14.56 feet in width at the west end, and 12.4 feet in width at the east end, abutting the south side of the highway. It constituted the outer driveway of a gasoline station consisting of a building, pumping apparatus, tanks, etc., and a double driveway. The latter is made up of an inner and outer driveway between which there is a narrow space referred to as a “pump island,” containing pumps from which gasoline is supplied to automobiles. After taking this strip, which was wholly used as the outer driveway, there remains only the inner driveway, which-will border. on M-21 when the widening is completed. A corner of the canopy extending over the pump island projects over the strip condemned. The building and physical property will not be otherwise materially damaged, except that the outer driveway will be wholly, absolutely, and unqualifiedly taken by the State. Upon the hearing, it was shown without contradiction that a gasoline filling station, in order to more readily attract customers and be efficient and profitable, requires two adjoining driveways, so that a double row of cars can be accommodated at the same time; that it would be uneconomical and impractical to substitute a driveway in the rear of the building for the one in front taken by the State; that, in order to restore a double driveway after the condemnation, it would be necessary to rearrange the entire property and to move back and rebuild the entire building. Appellant also owns property in the rear of the gasoline station.
The sole question involved on appeal is whether the commissioners can, by the application of an incorrect rule of law, reduce the compensation an owner is legally entitled to. Appellant appeals from an award of $1,120, which was arrived at by determining the damages to be $1,350 and deducting therefrom the benefits found to be of the' value of $230. Appellant claims that the commissioners awarded an inadequate amount because they were impressed by .the attorney for petitioner with the. claim that, notwithstanding the taking of the outer driveway, appellant would continue to have the legal right to use it after its conversion into a highway, in like manner as it did previous to the condemnation. It was shown that the cost of rebuilding and rearranging the station would be $2,819, exclusive of the value of the laud. The contractor’s estimate for reconstructing the building was $2,050. The $1,350 damages which appellant was found to be entitled to was only $395 more than the testimony on the part of the State showed that the land itself was worth. It is evident that little, if anything, was allowed appellant for the other damages it would suffer on account of the cost of moving the station and equipment further to the rear of the property, and reconstructing the building. The record shows that the commissioners were led to believe that appellant would have a lawful right to use the public highway easement in lieu of the outer driveway.
When land is taken by eminent domain it becomes absolutely the property of the State or other public authority that has condemned it. The former owner retains no such rights in it so as to prevent it from being used for general public purposes. In Warren v. City of Grand Haven, 30 Mich. 24, 28, in an opinion written by Mr. Justice Cooley, this court stated:
“The dedication of land to the purposes of a village or city street must be understood as made and accepted with the expectation that it may be required for other public purposes than those of passage and travel merely, and that under the direction and control of the public authorities it is subject to be appropriated to all the uses to which village and city streets are usually devoted, as the wants or convenience of the people may render necessary or important : Kelsey v. King, 32 Barb. (N. Y.) 410; West v. Bancroft, 32 Vt. 367; Dillon, Municipal Corporations (1st Ed.), §§ 544, 545.”
See, also, Village of Grosse Pointe Shores v. Ayres, 254 Mich. 58. It may become necessary to build sewers, conduits, electric light poles, sidewalks, etc. The property is already in a village which may order such improvements. The right may be asserted by the public authorities to adopt ordinances and other traffic regulations forbidding the impeding of traffic by curb gasoline stations. The property is taken for all time without restrictions, and appellant loses all legal right to use it as private property. The jury, however, was impressed with the contrary rule. In the examination of the State’s main witness, although he stated that consequential damages had been considered, nevertheless on cross-examination he testified that the moving of the station was not considered and he doubted whether it would be moved. The attorney for the petitioner on cross-examining the witness for appellant, in asserting that appellant would have the legal right to continue to use the highway as theretofore, framed his question as follows:
“Assuming that that is the law — I might state that is the law — and that the owner has the use of it, then what, in your opinion, would be the value of this property?”
Again he asked:
“After this taking on of their outer drive-in, they will be on property over which the State has an easement; assuming that they will have the same use of it they have had in the past — over which the State has an easement?”
One of the commissioners in discussing the necessity of rebuilding by appellant, said:
“What the commission understands is that the purpose to do that is problematical; there is no certainty that they will do it — it is an estimate of what the cost will be — under certain contingencies.”
A reading of the record leads us to the conclusion that the commissioners took into consideration an unenforceable and an indefinite promise made by the State that the appellant might continue to use the driveway when converted into a street. The size of the award confirms this conclusion. Where only a part of a parcel is taken, the award should compensate for the actual portion of the land taken, plus also the cost of altering the building and all consequential damages on account of the alteration. City of Detroit v. Loula, 227 Mich. 189; In re Widening Bagley Avenue, 248 Mich. 1; In re Widenmg of Allen Road, 250 Mich. 690.
The order confirming the award of the commissioners is set ¿side, and the assessment of damages is remanded to the present commissioners or to such others as may be appointed by the court, if necessary, in accordance with the statute, for reassessment of damages.
Wiest, Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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] |
Fead, J.
Defendant was convicted of manslaughter in connection with the killing of Arthur Mixon, a colored boy, as he came out of a drug store at the corner of Hendrie and Hastings streets in the city of Detroit on July 22, 1930. A few minutes before, Mixon and some other colored boys were driving along a near-by alley peddling ice. Mixon got off the wagon and looked under the door' of a building used by defendant, Philip Keywell, and two others as a liquor “cutting” plant. The people claim that Keywell, accompanied by defendant and some other white men, took Mixon to task for looking under the door, a short verbal altercation ensued, defendant exclaimed to Keywell, “Put him on the spot, ” and Keywell shot and killed Mixon. Trial commenced November 12th.
Keywell was tried, the jury disagreed, and at a second trial, on October-16, 1930, he was convicted of murder in the first degree. Immediately thereafter, four witnesses for the defense, who had testified that they had witnessed the crime, were arrested for perjury, on order of the prosecuting attorney, for testifying that Keywell was not present and did not kill Mixon. The three leading newspapers of Detroit carried news articles of the arrest of these witnesses and some mentioned that defendant was to be tried soon. Defendant moved for continuance until the perjury cases were tried, on the ground of prejudice from the arrests and publicity. The motion was denied and defendant alleges error.
Continuance was within the sound discretion of the court. The burden is on the party claiming abuse of discretion to show it. Prejudice to defendant must be apparent or proved to have been at least probable. The news articles were not inflammatory. Prejudice to defendant would not necessarily proceed from the arrest and publicity. The voir dire examination of the jury is not in the record. There was no showing that the arrests and charges came to the attention of the panel. Upon the record we cannot say that the court abused its discretion.
Defendant moved that the people be required to indorse on the information as res gestee witnesses the names of the four men so arrested for perjury. Error is assigned on the denial of the motion.
The rule that the prosecution must indorse arid call all the eyewitnesses to a crime of violence who are available, except when they are numerous, and those not called obviously would be merely cumulative, although rejected or materially modified in most or all other American jurisdictions (16 Ann. Cas. 918, note; 16 C. J. p. 846; 2 Michie on Homicide, p.1362), is too well established in this State to need the citation of authorities. While the prosecution attempts to excuse the nonproduction of the witnesses upon the ground that he did not know they were eyewitnesses (Wellar v. People, 30 Mich. 16, 22), they had so testified under oath, and, in view of the fact that the identity of the assailants was the vital issue, the rule was applicable (People v. Blazenzitz, 212 Mich. 675), unless the perjury proceedings gave rise to an exception. Whether it did presents a unique question, upon which no decisions, analogous or in point, have been found. A 'somewhat similar situation arose in State v. Harras, 22 Wash. 57 (60 Pac. 58), but the point here was not there involved.
The purposes of the rule are to insure the disclosure of the whole of the res gestee, to protect the accused against the suppression of testimony favorable to him, and to give him the benefit of cross-examination. The rule is not without exceptions. The wife of an accused need not be called by the prosecution although her name is indorsed on the information and he demands the right to cross-examine her (People v. Wolcott, 51 Mich. 612); nor need she be indorsed as a witness (People v. Hossler, 135 Mich. 384); one charged as an accessory need not be called by the people (People v. McCullough, 81 Mich. 25; People v. Resh, 107 Mich. 251); and a sister of the accused was required to be called only because she was the fiance of the victim (People v. Germaine, 101 Mich. 485). In none of the cases establishing an exception was authority or reason given for it, except that in People v. Resh the court curtly announced the exception on the basis of reason and common sense. Obviously the exceptions were founded upon the recognized inclination or inducement of those close to the accused, by com munity of interest in the crime or relationship, to perjure themselves, if they deem it. necessary, in his behalf, and the incongruity of requiring the prosecution to make such witnesses its own.
When a prosecuting attorney, in his quasi-juñioidl capacity, has taken the serious and solemn official action of formally charging a witness with perjury, an unbending rule of law would be an anomaly which would require the court to compel the prosecutor to present the witness on behalf of the State to give testimony upon the transaction out of which the charge of perjury arose. Virtually, it.would amount-to requiring the court to order a repetition of the perjury, if the testimony be false and the witness adhere to it. No consideration of the protection of an accused or his right to a fair trial could demand such a rule.. On the other hand, an exception which would permit the prosecutor to select his witnesses, by means of laying charges of perjury against those adverse to him, would endanger the legal rights of the accused and also be unjustifiable. From necessity, the situation demands that no hard and fast rule be adopted, but that the power rest in the court to preserve the rights of the accused and protect the court against perjury.
The exception as to accessories offers the basis of a reasonable rule for the situation at bar. The prosecutor is not permitted to charge an adverse witness as an accessory and thus be excused from calling him; but he must act with “sound discretion” (People v. McCullough, supra), which means in good faith and upon reasonable grounds; and, where the interests of justice so demand it, the court may require the prosecutor to produce the accessory as a witness or try him in advance (People v. McCullough, supra).
We hold that the people may be excused from indorsing on the information the name of a claimed eyewitness to the crime against whom formal charges of perjury have been laid in connection with the same transaction, when, in the sound judgment and discretion of the court, the charges have been laid in good faith and upon reasonable grounds and the accused nevertheless is protected against suppression of testimony by the people and is not prejudiced in his right of cross-examination or to a fair trial.
In this case, the prosecutor did not support his action in charging. the witnesses with perjury by showing of reasons on oath, and the court would have been justified in requiring the indorsement of the names or trial of the perjury cases before that of defendant. But, in reviewing the action of the court, we cannot say he abused his discretion in denying indorsement. The presence of the four witnesses at the scene of the crime was not affirmed by any other witness, not even by each other. It is not clear that the court was not warranted in holding that their testimony in the Key well Case, a transcript of which was made part of the motion, did not constitute a reasonable showing of their presence' at the crime. Three of them testified in the instant case. Two juries refused to believe them. Defendant lost no right of cross-examination because such examination was not necessary. It did not appear that the prosecuting attorney acted in bad faith in laying the charges nor that there was suppression of testimony by the people nor that defendant was deprived of a fair trial by the failure to indorse, and there was no reversible error in this respect.
The jury had view of the premises. On request of a juror, an officer who accompanied them pointed out the location of scales mentioned in the testimony. On motion for new trial, defendant’s counsel filed an affidavit reciting the incident, stating he had witnessed it, and that it was in the absence of defendant. The officer made affidavit that it was in the presence of defendant and he gave the information only after the attorneys, both for the State and defendant, had told him it was proper to do so. The court did not pass upon the issue of fact raised by the affidavits but held there was no reversible error on the ground that the matter was trivial.
It is the rule that nothing in the nature of testimony may be taken in the absence of defendant. 3 Comp. Laws 1929, § 17296; People v. Hull, 86 Mich. 449; People v. Auerbach, 176 Mich. 23 (Ann. Cas. 1915 B, 557); People v. Winney, 196 Mich. 347. Had information been given to the jury by the officer without knowledge of the defendant or his counsel before verdict, or had complaint been made to the court at the trial, the question would be different. Hill v. People, 16 Mich. 351. But as the testimony regarding the scales came in only by way of impeachment of a witness, was not an important factor in the case, and it is apparent the incident was not prejudicial to defendant (3 Comp. Laws 1929, § 17354; 16 C. J. p. 1162), defendant’s counsel was a witness to it and made no objection before verdict (16 C. J. p. 1123; People v. Johnson, 110 N. Y. 134 [17 N. E. 684]; State v. High, 116 La. 79 [40 South. 538]), and evidently did not consider it of sufficient importance to call it to the attention of the court (People v. Kasem, 230 Mich. 278), refusal of the court to grant a new trial upon this basis was not an abuse of discretion.
Defendant alleges further errors in the reception of testimony, the charge of the court, and contends that the verdict is against the great weight of the evidence. We have given them careful consideration and find no reversible error.
Judgment affirmed.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred. | [
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] |
Fead, J.
October 23, 1926, plaintiff, while in the employ of D. Graff & Sons, sustained an acid burn on the foot which produced an ulcer not yet healed. Compensation was paid under agreement to October 1, 1927, when final settlement receipt was filed. Plaintiff then returned to work for defendant and continued to about October 1, 1929, when she was discharged. March 5, 1931, she filed claim for fur tlier compensation. The deputy commissioner made allowance for total disability from October 1, 1929, and, on appeal of defendants, the award was modified by the board to allow compensation from March 5, 1931, the date of filing claim. Plaintiff appeals.
Plaintiff, her mother and her attending physician were the only witnesses at the hearing and their testimony was undisputed. Plaintiff claimed she was unable to work even before she was discharged and has been disabled continuously since. The doctor and the mother stated no time prior to hearing when she was so disabled. Plaintiff’s own testimony was vague, uncertain, unsatisfactory, and needed corroboration, particularly in view of the facts that she had given the employer no notice of renewed disability and made no claim for compensation for a long time. The board, as trier of the facts, was at liberty to find that, while disability was shown, its commencement was not fairly proved, and that compensation should be allowed from the date of filing the petition for want of proper showing of a different date. While ordinarily undisputed evidence must be taken as true, the board is not required to accept it when, viewed reasonably, it would require the board to speculate as to a fact. The finding is conclusive and judgment is affirmed, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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Sharpe, J.
Plaintiffs brought an action in trespass on the case against the defendant before a justice of the peace of the city of Boyal Oak. A judgment was recovered, on which a body execution was issued and the defendant taken into custody by the sheriff of Oakland county. Thereupon defendant filed a' petition in the circuit court of that county, praying for a writ of habeas corpus to inquire into the cause of his detention. In it he averred that he had been served with a summons in a civil suit begun by the plaintiffs before a justice of the peace of the city of Boyal Oak; that he appeared in said court on several occasions in reference thereto; that adjournments were had against his protest, and that the judgment was rendered on an adjourned day in his absence, due to his having been informed by plaintiffs’ attorney that he need not attend on that day.
The docket entries disclose that defendant was present and pleaded on October 29, 1929, and that the case was adjourned to November 6th, at 2 o’clock p. m., at’ which time, the plaintiffs being in court by attorney and the defendant not present, the case was held open for one hour, and, the defendant not then appearing, plaintiffs’ proofs were submitted and judgment entered in their favor and against the defendant for “Damages $87.35, costs $7.50, total $94.85.” The defendant then sought to show, and apparently did satisfy the court, that he was not present on October 29th for the reason stated in his affidavit. The justice had’jurisdiction of the person of the defendant and of the subject-matter. His docket entries disclose a valid and enforceable judgment. A delayed appeal therefrom might have been sought, or perhaps a review of it had in a chancery proceeding. Garey v. Morley Brothers, 234 Mich. 675. But it cannot be attacked collaterally.
Judicial power is vested in justices of the peace by our State Constitution. Article 7, § 1. By statute, 3 Comp. Laws 1929, § 15981:
“Justices’ courts are hereby vested with all such powers, for the purpose of exercising jurisdiction conferred by this chapter,- as are usual in courts of record, except the power of setting aside a verdict and arresting judgment thereon.”
This court has many times held that, where the proceedings before the justice and his docket entries show that he acquired jurisdiction of the subject-matter and of the person of the defendant, the judgment entered may not be collaterally attacked. In concluding the opinion in Miller v. Smith, 115 Mich. 427, 433 (69 Am. St. Rep. 583), it was said:
“I think, not only is the weight of authority in favor of the doctrine that a judgment of this character cannot, in a collateral proceeding, be impeached by parol, but that it is in accordance with good sense and common honesty.”
The holding in this case has been cited with approval in Troy v. Rodgers, 162 Mich. 28; Rohrabacher v. Walsh, 170 Mich. 59; Hoben v. Citizens’ Telephone Co., 176 Mich. 596; Clabaugh v. Wayne Circuit Judge, 228 Mich. 207, and Garey v. Morley Brothers, supra.
At the hearing, plaintiffs’ counsel insisted that, in any event, attack could not be made by habeas corpus, and cited In re Joseph, 206 Mich. 659. In view of what has been said, it is unnecessary to pass upon this question.
An order may be here entered vacating and setting aside that entered by the trial court discharging the defendant, with costs to the plaintiffs against the defendant, and remanding the defendant to the custody of the sheriff of the county of Oakland.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, North, and Fead, JJ., concurred. | [
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Wiest, J.
Plaintiff is an Illinois corporation, organized February 23, 1926. Defendant was interested in its formation and organization and tendered a subscription to its capital stock. This tender was not effective because of change in the proposed capitalization. April 3, 1926, defendant, in Michigan, signed a subscription for stock to the amount of $1,050, and mailed it, with his check for $100, to an officer of the company at St. Louis, Missouri. The check was taken to Columbia, Illinois, where the home office of plaintiff was located, and there cashed and stock certificates executed in favor of defendant and kept by the company under the terms of the subscription. This suit was brought to recover the balance due on the subscription and defendant prosecutes this appeal from a'judgment awarded plaintiff.
The decisive question presented is whether the subscription violated the so-called blue sky law of Illinois, where it was accepted and shares of stock executed.
If defendant was interested in promoting the organization of the corporation and agreed to subscribe for shares of stock therein when it was organized, then there was no violation of the blue sky law of Illinois.
At the date of organization of the corporation defendant was in Germany and sent a radiogram, asking reservation of stock for him in the new company. The later subscription is explained by change in the capitalization.
The case does not present an instance of sale of corporate stock to a purchaser, upon solicitation after incorporation, bnt a subscription by one interested in tbe creation of the corporation, and defendant’s subscription falls within the issue of stock to organizers of the corporation.
The Illinois blue sky law exempts from its provisions distribution of capital stock to stockholders without incurring any expenses or liability therefor, such as commissions. Cahill Rev. Stat. Illinois, chap. 32, ¶258, subd. (2); Smith-Hurd Rev. Stat. Illinois, chap. 121%, § 100(2).
The judgment is affirmed, with costs to plaintiff.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
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] |
Levin, J.
Harvey Burton pled guilty to second-degree murder. The Court of Appeals granted a motion to affirm.
Burton was held on an "open” charge of murder. He waived preliminary examination and an "open” charge information was filed. It appeared to this Court that Burton might have been overcharged and his plea of guilty offered under the constraint of an unwarranted first-degree murder charge. We remanded to the district court for the holding of a preliminary examination to determine whether there was probable cause to find that the crime of first-degree murder was committed and that the defendant committed that offense.
The district judge found that there was probable cause to believe that the killing had been committed by Burton in the perpetration of or attempt to perpetrate a robbery and that a charge of first-degree murder was justified. It now appears that the prosecutor had a basis for filing a first-degree information.
We affirm Burton’s conviction of second-degree murder.
I
During the plea-taking colloquy Burton said that he spent the afternoon and evening of the homicide drinking beer with his brother in a number of taverns. They saw an acquaintance, the decedent, in one of the bars and had a few beers with him. The decedent asked Burton for a ride home. Burton and the decedent went to another bar and stayed until it closed; they bought some beer, put it in Burton’s trunk, and "just started riding around”.
While riding in Burton’s car, the decedent kissed Barton on the cheek and said, "Burton, I love you”. Burton responded by hitting him twice with his fist. The decedent desisted. A short while later Burton stopped the car, got out and opened the trunk to get a beer. The decedent got out of the car, grabbed Burton’s hair and pulled Burton towards him, saying, "Kiss me”. Burton hit the decedent, grabbed the jack out of the open trunk and repeatedly hit the decedent over the head with it. He then threw the jack back into the trunk and drove away.
Burton contends the judge erred in failing to inquire and advise him regarding the potential defenses of "provocation” and "diminished capacity”. Additionally, he contends that his sentence of 50 to 80 years constitutes cruel and unusual punishment.
II
Rule 785.7(l)(a), adopted after Burton’s plea was accepted, required the judge to advise the defendant of "the general nature of the charge to which the plea is offered” and further provided that "the court is not obliged to, but may explain the elements of the offense or any defenses possible”. The current rule similarly provides that the "court is not obliged to explain the elements of the offense, or possible defenses”.
We may appropriately consider the current rule in deciding whether a pre-rule 785.7 plea was properly accepted. In People v Armstrong, 390 Mich 693, 700; 213 NW2d 190 (1973), this Court said that it would not apply "a standard more stringent than the standard presently in force” to a plea taken before the effectiveness of the rule.
In reviewing convictions on pre-rule 785.7 pleas of guilty, the Court of Appeals has held that the judge is not obliged to examine the defendant regarding a possible intoxication defense even though it appears during the plea-taking colloquy that such a defense might be raised. We are of the same opinion.
Although Burton said he spent the afternoon and evening of the homicide drinking beer in a number of taverns, he did not claim he was unable to recall the events. His recital of what occurred distinguishes this case from People v Stoner, 23 Mich App 598, 602; 179 NW2d 217 (1970), where the defendant asserted "that he was so deeply intoxicated that he could not recall his participation in the commission of the offense”.
Even though a defendant asserts he was intoxicated or narcoticized at the time the offense was committed, the judge may accept a plea of guilty as long as the defendant sufficiently recalls facts and circumstances which tend to show he participated in the commission of the offense.
Ill
Burton claims that his sentence of 50 to 80 years is cruel and unusual punishment.
The statute provides that upon conviction of murder in the second degree the offender may be "punished by imprisonment in the state prison for life, or any term of years, in the discretion of the court”.*
Since the enactment of the indeterminate sentencing law, which vests in the parole board the power to release prisoners before service of the maximum sentence, this Court has eschewed any reviewing function for itself or the Court of Appeals with regard to the exercise of the trial judge’s sentencing discretion. We appreciate that a strong case can be made for appellate review of sentencing. This Court is not, however, yet prepared to take that step.
Affirmed.
Kavanagh, C. J., and Williams, Coleman, and Fitzgerald, JJ., concurred with Levin, J.
Lindemer and Ryan, JJ., took no part in the decision of this case.
People v Burton, 394 Mich 906 (1975).
At the remand hearing there was evidence presented tending to show that the victim’s wallet had been taken.
Burton contends that for purposes of the intoxication defense the distinction between general and specific intent should be abolished and "gross drunkenness”, where involuntary due to alcoholism, should be recognized as a defense which negates the element of intent required for murder.
Burton concedes that his history of mental illness and "violent, irrational behavior” did not render him legally insane under Michigan’s "M’Naghten right-wrong rule plus irresistible impulse” test (see People v Martin, 386 Mich 407, 418; 192 NW2d 215 [1971]). However, he argues that given his "diminished capacity” to "intend and appreciate his acts”, he was not guilty of second-degree murder.
Rule 785.7(1) was adopted March 16, 1973, effective June 1, 1973. 389 Mich liii. Burton’s plea was accepted January 18, 1973. He was sentenced March 1, 1973.
395 Mich xlvi.
See People v Spencer, 23 Mich App 56; 178 NW2d 130 (1970); People v Garcia, 36 Mich App 141; 193 NW2d 187 (1971); People v Ketola, 38 Mich App 222; 195 NW2d 920 (1972); People v Catlin, 39 Mich App 106; 197 NW2d 137 (1972).
See People v Paul, 13 Mich App 175; 163 NW2d 803 (1968); People v Carter, 17 Mich App 365; 169 NW2d 482 (1969); People v Duncan, 17 Mich App 710; 170 NW2d 301 (1969); People v Spencer, supra; People v Williams, 27 Mich App 567, 571; 183 NW2d 830 (1970); People v Montgomery, 43 Mich App 205, 207; 204 NW2d 82 (1972); People v Ketola, supra; People v Catlin, supra.
MCLA 750.317; MSA 28.549.
People v Murray, 72 Mich 10; 40 NW 29 (1888), was decided before the 1902 amendment to the Constitution of 1850 which added § 47 to article 4 authorizing the enactment of an indeterminate sentence law.
See People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972), relied on by Burton, is not in point. There this Court held that a statutorily-prescribed mandatory minimum sentence of 20 years (MCLA 335.152; MSA 18.1122) for the sale of marijuana was violative of the constitutional provision prohibiting cruel and unusual punishments (US Const, Am VIII; Const 1963, art 1, § 16).
See American Bar Association Project on Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences (Approved Draft, 1968).
Although Burton was sentenced to serve a term of 50 to 80 years, the parole board will have jurisdiction after he has served 10 calendar years. MCLA 791.234; MSA 28.2304. | [
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Kavanagh, C. J.
This appeal is from a 1951 conviction of first-degree murder. Allegations of error are made concerning prejudicial publicity and the admission of certain evidence. We affirm.
In 1950, Carolyn Drown was murdered near Kalamazoo. Two men, one of them appellant Olson, were convicted by a jury of first-degree murder for that killing.
Confessions of both defendants were introduced at trial. Because of the United States Supreme Court’s subsequent decision in Jackson v Denno, 378 US 368; 84 S Ct 1774; 12 L Ed 2d 908 (1964), and our resulting decision in People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965), a hearing was ordered in December, 1970, to determine the voluntariness of Olson’s confession. The confession was found to be voluntary. The admission of other evidence has also been challenged, including statements of the codefendant, material seized from Olson’s automobile, and testimony concerning a polygraph examination. Defendant also urges that his motion for change of venue should have been granted due to prejudicial publicity.
A lengthy recitation of the facts and legal issues involved in this case would serve no good purpose. No new legal ground would be broken and no new law explained.
Our standards of criminal procedure, and our notion of what constitutes a "fair trial” have changed in the quarter century since this trial occurred. Many practices considered acceptable in 1951 would not be countenanced in 1976. More importantly, they would not be employed by law enforcement agencies today.
We have made a thorough review of the issues presented. We have considered appellant’s arguments in light of the law existing in 1951, and have considered application of rulings made since that time. We are not persuaded that this defendant did not receive a fair trial. The conviction is affirmed.
Williams, Levin, Coleman, and Fitzgerald, JJ., concurred with Kavanagh, C. J.
Lindemer and Ryan, JJ., took no part in the decision of this case. | [
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Coleman, J.
The one issue considered on appeal is whether defendant’s response to on-the-scene questioning by a police officer was admissible in evidence. Under the circumstances of this case, we find that the police were engaged in preliminary exploration regarding a crime in progress, so were not obliged to give Miranda warnings to defendant.
The case, therefore, is distinguishable from People v Reed, 393 Mich 342; 224 NW2d 867, cert den 422 US 1044, 1048; 95 S Ct 2660, 2665; 45 L Ed 2d 696, 701 (1975).
We reverse the Court of Appeals and reinstate defendant’s conviction.
I — Facts
Police officers Filgo and Ekaut responded to a radio run of a "B&E” in progress at Lincoln and Selden in the City of Detroit in a big white house on the corner. Upon arrival, there was some confusion because there were four similar houses, one on each corner. Some citizens standing on Selden pointed toward an alley. The officers went to the alley and saw an automobile parked in the alley with the motor running. Defendant was behind the wheel eating lunch.
Officer Filgo, in plain clothes, approached the car and identified himself as a police officer. The officer asked defendant to step from the car. Defendant complied with the request. The officer indicated that he was looking for the perpetrators of a B&E. He said that defendant was not under arrest and was free to go at any time. Filgo asked defendant, "Where are you from?” and "Where are the two guys that were with you?” At the time, Officer Filgo did not know who or how many people were involved; the question was asked because he was "[j]ust grabbing at straws”. Defendant answered, "Do you mean Flint and Burks?” and "I think they went into that house right there”, pointing to the house where the B&E was later established to have occurred. Officer Ekaut observed that the back door of the house had been forced open and informed Officer Filgo.
Defendant was then placed under arrest, handcuffed and advised of his rights. Two other men were found in the basement of the house.
Defendant and the two men found in the basement of the house, Flint and Burks, were convicted of breaking and entering an occupied dwelling. Defendant was sentenced to five years probation. The Court of Appeals reversed defendant’s conviction ruling that his statement was inadmissible because he had not been given Miranda warnings. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). People v Reed, supra.
II— Reed
However, Officer Filgo did not violate the holdings in Miranda and Reed.
In Reed this Court held that a police investigation had focused on defendant before the police asked a question eliciting an incriminating statement from defendant. Therefore, Miranda warnings should have been given before asking the question.
The facts in Reed indicate that police had actual knowledge of a homicide upon discovering two bound and gagged dead bodies exhibiting signs of narcotics use in an alley. The officers followed blood stains and drag marks to a four-unit apartment building. They searched all but one apartment. The officers attempted to enter the last apartment, but the manager’s key did not fit. Defendant then arrived and put his key in the door. He stated that he lived in the apartment. The officers requested to "come in and take a look around”. Defendant allowed the police to enter. It was immediately apparent that the apartment was a narcotics pad. The bedroom floor had been recently cleaned. A wet mop with red-tinged water on it was in the bedroom. The officers also found red-stained trousers soaking in the sink in red-tinged water. There were at least three and perhaps nine to thirteen police officers in the apartment.
The Court noted:
"At this point Officer Clemons admitted the police 'had, perhaps, found the scene of the homicide’ and that the defendant 'perhaps knew something about’ the homicide and '[m]ore than that, perhaps’.
"In view of narrowing their investigation down to what they believe to be the place of the homicide and to the owner of that place, the defendant, whom they believed to be connected with that homicide, by knowl edge and '[m]ore than that, perhaps’, the question arises whether the investigation had not 'focused’. This question is important because the police, without giving a Miranda warning, had the following colloquy with defendant as reported by Officer Hill:
" 'A. Yes, we questioned the defendant about the trousers and the suspected blood stains on them. He stated that they were his trousers and that he had injured himself while playing around with a lawn mower on Marlborough and at this time we told him that we had someone coming out from the scientific lab to check the water and the floor and the walls for blood and that if the blood on the trousers matched the blood of the deceased that we found in the alley, there might be a little trouble.
" 'Q. Did he make any response to this answer?
" 'A. Yes, he changed his statement.
" 'A. He changed his statement with relationship to the trousers at first.
" 'Q. What did he tell you about the trousers the second time?
" 'A. He stated the second time the trousers were not his; he found them on the rear steps, so [sic] they probably would fit him and probably meant to soak them.
" 'A. At this time we advised the defendant of his constitutional rights.’ ” Reed, supra, at 358-359.
With that fact situation, the Court held that the investigation had focused on defendant prior to the questions and answers concerning the trousers; therefore, Miranda warnings were required before the question, making the answers inadmissible.
The facts of the instant appeal reveal that the police investigation did not focus on defendant until after the incriminating statement. Prior to the statement, the officers were engaged in general investigation or "preliminary exploration”. Reed. Id. 360.
Ill— Miranda
Prior to the question and incriminating answer, police officers were presented with the following facts: (1) radio information of a possible B&E in progress at Lincoln and Selden in a big white house on the corner; (2) four similar houses, one on each corner at Selden and Lincoln; (3) some citizens pointing to an alley; (4) defendant eating his lunch in a car in the alley; (5) defendant stepping from the car at the identified officer’s request; and (6) the officer’s assurance that defendant was not under arrest and was free to go.
At that time, the officer had no actual knowledge of a crime, only the radio run referral to a corner where confusion resulted from the lack of a specific address. The police were uncertain of the location of the possible B&E. If they had not arrived at the correct location, they would want to move on quickly in order to reach the B&E, if any, while still in progress. No probable cause for defendant’s arrest existed at that time. Defendant was not in custody or "deprived of his freedom of action”. Therefore, no Miranda warnings were required before defendant was asked a question. Any other holding would unnecessarily restrict efforts to apprehend those in the act of committing a crime and require the police to accuse those remotely connected by mere suspicion or circumstances — and the culprits might long be gone.
Upon receiving defendant’s answer and observing that the back door of the house near the car had been forced open, the officer focused his investigation on defendant. Thereupon, the officer placed defendant under arrest and advised him of the Miranda rights. This was correct under Reed and Miranda.
It is not disputed that Miranda prohibits prosecution use of certain statements:
"[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (p 444.)
The instant facts do not reveal a situation of custody or significant deprivation of freedom of action. Rather, the facts fit the following qualification found in Miranda:
"General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.” (pp 477-478.)
IV— Conclusion
Neither the protections of Miranda nor Reed extend to these circumstances.
We do not find in Reed or any other opinion of the Court reason to believe that inquiries of on-the-scene observers must always be given Miranda warnings, just in case they may be accused later.
Under the circumstances of this case, the testi mony was properly admitted into evidence. The police were engaged in preliminary exploration regarding a crime in progress. There was no violation of defendant’s constitutional rights.
Reverse and reinstate conviction.
Kavanagh, C. J., and Williams, Levin, Fitzgerald, Lindemer, and Ryan, JJ., concurred with Coleman, J.
The writer did not agree with the "focus only” test of Reed, but the decision is the law under the doctrine of stare decisis. | [
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Per Curiam.
Defendant’s conviction must be reversed because the trial judge failed to instruct on the lesser included offense of attempted armed robbery despite defense counsel’s request. People v Henry, 395 Mich 367, 370; 236 NW2d 489 (1975); People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975).
Defendant was charged with armed robbery. The trial judge instructed on the lesser included offenses of unarmed robbery and larceny from the person. She denied defense counsel’s request for an instruction on attempted armed robbery because she found "no evidence” to support that verdict. The jury convicted the defendant of larceny from the person. The Court of Appeals affirmed the failure to instruct on the lesser included offense of attempted armed robbery because "[tjhere was no evidence of anything but a complete crime”. 63 Mich App 656, 665; 234 NW2d 749 (1975).
In Jones, supra, we said: "If the lesser offense is one that is necessarily included within the greater, the evidence will always support the lesser if it supports the greater.” 395 Mich 390. Attempted armed robbery is "necessarily included” within the offense of armed robbery. People v Bradovich, 305 Mich 329, 332; 9 NW2d 560 (1943). The jury may have found the defendant guilty of the attempt although the evidence showed a completed offense. MCLA 768.32; MSA 28.1055; People v Baxter, 245 Mich 229, 232; 222 NW 149 (1928).
In lieu of leave to appeal, we reverse defendant’s conviction and remand the cause to Recorder’s Court for a new trial. GCR 1963, 853.2(4).
Kavanagh, C. J., and Williams, .Levin, Coleman, Fitzgerald, Lindemer, and Ryan, JJ., concurred. | [
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Lindemer, J.
Plaintiff owns two adjacent parcels of land within the City of Roseville. He petitioned the Roseville Planning Commission to rezone his property from single-family residential to multifamily residential. His petition was denied on March 19, 1973. Plaintiff then sought to obtain rezoning from the city council, but on April 24th, it voted to deny his request. Finally plaintiff com menced this lawsuit in Macomb Circuit Court, seeking to enjoin the City of Roseville from interfering with plaintiffs proposed use of his property. On December 17, 1973, appellants, neighboring property owners situated within 300 feet of the subject property, filed a petition to intervene as of right, pursuant to GCR 1963, 209.1(3). The trial court denied intervention on February 28, 1974, upon the ground that appellants failed to meet the requirement of the court rule, and the Court of Appeals denied review. This Court granted the application for leave to appeal in order to consider the propriety of the trial court’s action. We find the trial court to be in error and reverse.
GCR 1963, 209.1(3) reads:
".1 Intervention of Right. Anyone shall be permitted to intervene in an action
"(3) upon timely application when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant may be bound by a judgment in the action”.
The primary source of this rule was Rule 24 of the Federal Rules of Civil Procedure. At the time of the adoption of GCR 1963, 209.1(3) the parallel Federal rule, FR Civ P, 24(a)(2) read:
"Upon timely application anyone shall be permitted to intervene in an action * * * when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action.”
Because of the similarity of the state and Federal provisions we deem it proper to look to the Federal courts for guidance.
GCR 1963, 209.1(3) requires three elements:
a. Timely application;
b. Representation of the applicant’s interest by existing parties is or may be inadequate;
c. Applicant may be bound by a judgment in the action.
All of the above must be present in order for the applicant to qualify for intervention of right, and we believe they are.
a. Timely application.
It is a general rule that a right to intervene should be asserted within a reasonable time. Laches or unreasonable delay by the intervenors is a proper reason to deny intervention. For general statements of the law see School District of the City of Ferndale v Royal Oak Township School District No 8, 293 Mich 1; 291 NW 199 (1940) (applying prior Michigan law). 59 Am Jur 2d, Parties, §§ 161, et seq., pp 593, et seq.
In this case there were no allegations of unreasonable delay and we find no basis in the record for denying intervention on this ground.
b. Representation of the applicant's interest by existing parties is or may be inadequate.
When deciding to deny intervention the trial judge held that GCR 1963, 209.1(3) "requires first inadequacy of representation, and secondly distinction of issues between themselves and that of the principal defendant”.
This statement is in error. The intervenor satisfies the requirements of the court rule by establishing that his representation is or may be made quate. Significantly, the United States Supreme Court has remarked:
"The requirement of the Rule is satisfied if the applicant shows that representation of his interest 'may be’ inadequate; and the burden of making that showing should be treated as minimal. See 3B Moore, Federal Practice, §24.09-l[4] (1969).” Trbovich v United Mine Workers of America, 404 US 528, 538, fn 10; 92 S Ct 630; 30 L Ed 2d 686 (1972).
The State of Illinois has a statute which closely parallels the language of our court rule. In Bredberg v City of Wheaton, 24 Ill 2d 612; 182 NE2d 742 (1962), the Illinois Supreme Court stated sound reasons why adjacent landowners should be permitted intervention into a zoning case.
"Statutes providing for intervention are remedial and are liberally construed. And, as was stated by the Joint Committee who drafted our act: 'Intervention is frequently desirable to allow a person to protect an interest jeopardized by pending litigation to which he is not a party or to avoid relitigation in another suit of issues which are being litigated in a pending suit.’ This language has singular application here where the Bred-bergs, as owners of immediately adjoining property, were possessed of rights which would be adversely affected by the granting of the counterclaim, and whose interest in the ligitation [sic] far exceeded that of the general public or other owners in the area. Moreover, we may consider that the city, the only defendant named in the counterclaim, is primarily concerned with the city-wide zoning pattern and cannot be guided solely by a consideration of individual hardships. Under such circumstances the legitimate objects and purposes of the city could well result in compromises to the detriment of individual rights such as those of the Bredbergs. Indeed, demonstrative in this case is the fact that the city of Wheaton has taken no appeal from the judgment finding its ordinance invalid in its application to a portion of the Booth property.” Bredberg, supra, 623-624. (Citations omitted.)
We agree with these reasons and find that the intervenors in this suit have met the second requirement.
c. Applicant may be bound by a judgment in the action.
We recognize a split in authority has developed over the interpretation of the word "bound”. Courts are divided over whether "bound” should be read in the narrow legal sense that the petitioner must be bound under the principles of res judicata or whether the term should be read in the broader sense that, as a practical matter, the petitioner’s ability to protect his interest would be substantially affected. Plaintiff urges that we adopt res judicata as our standard. He contends that under a res judicata approach the intervenors would not be bound and therefore they should not be allowed to intervene as of right. However, we believe there are strong policy reasons to adopt a broader reading of the court rule. The express use of the words "may be” in the rule, read in the context of its purpose, demonstrates that a mere possibility that the judgment will be binding is sufficient to permit intervention.
Additionally, a res judicata construction of GCR 209.1(3) poses a serious dilemma, by which it might prove impossible for an absent party to qualify for intervention.
"If the representation of an absent party is inadequate, he cannot be bound by the judgment in the action, and thus cannot intervene, while if the representation is adequate, he does not meet the second half of the test of Rule 24(a)(2) and still cannot intervene.” 2 Barron and Holtzoff, Federal Practice and Procedure (Cum Supp 1970), § 597, p 135. (Footnotes omitted.)
The Court of Appeals faced this problem in Davidson v City of Pontiac, 16 Mich App 110, 118; 167 NW2d 856 (1969).
"To avoid this dilemma something less than res judicata should be required before it can be said that the applicant may be 'bound.’ It was noted in the Advisory Committee’s Notes to amended Rule No 24, Federal Rules of Civil Procedure that 'the deletion of the "bound” language * * * frees the rule from undue preoccupation with strict considerations of res judicata. ’ Avoiding this preoccupation, in what sense might the appellant be 'bound’ by the adjudication of this matter? The injunction sought here will prejudice his exercise of the right to petition unless he can secure dissolution of the injunction by collateral attack.”
We agree with the Court of Appeals that the broader standard should apply. Under that standard intervenors satisfy the final element of the court rule.
Reversed and remanded to the trial court. No costs, a public question being involved.
Kavanagh, C. J., and Williams, Levin, Coleman, and Fitzgerald, JJ., concurred with Lindemer, J.
Ryan, J., took no part in the decision of this case.
FR Civ P, 24(a)(2) was amended, eff. July 1, 1966, to read: "when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties”. | [
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Rehearing denied. Reported at 395 Mich 379. | [
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] |
Rehearing denied. Reported at 396 Mich 101. | [
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Rehearing denied. Reported at 396 Mich 362. | [
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The request for appointment of master, filed by the Judicial Tenure Commission pursuant to GCR 1963, 932.10(b), is considered, and the same is hereby granted. The Honorable Raymond W. Fox, Kalamazoo Circuit Judge, is hereby appointed as master for proceedings pursuant to GCR 1963, 932. | [
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] |
Williams, J:
This case comes before us on appeal from three condemnation and confiscation orders entered by the Iosco Circuit Court against the defendants for acts of illegal fishing. The issues raised on appeal are: 1) does § lb(2) of Commercial Fishing Law, which authorizes the Director of Conservation (Director of Natural Resources) to place restrictions on commercial fishing licenses, constitute an unconstitutional delegation of legislative authority?; 2) does Rule 3 of Order No. 17 (revised) exceed the authority granted the Department of Natural Resources by the Legislature in the Commercial Fishing Law?; and 3) did the warrantless search of defendants’ vessel constitute an unreasonable search in violation of the Fourth Amendment to the United States Constitution and article 1, § 11 of the Michigan Constitution?
We find that § lb(2) of the Commercial Fishing Law does not constitute an unconstitutional delegation of legislative authority, nor does Rule 3 of Order No. 17 (revised) exceed the DNR’s authority as granted by the Legislature. However, we do find that the conservation officers conducted an illegal search in violation of the Constitution, and as a result defendants are entitled to the return of their vessel, which was wrongfully seized.
I — Facts
In 1972 the DNR issued defendants a commercial fishing license. In accordance with DNR Order No. 17, Rule 3 and other DNR regulations, the license restricted the number and types of nets to be used by the defendants in certain areas or "zones” of the Great Lakes. The defendants protested one restriction in particular which limited the use of gill nets to those with mesh sizes of 8 inches or more. Defendants had been accustomed to using gill nets with a mesh size of 2-1/2 to 2-7/8 inches.
Contrary to the provisions of the license, defendants continued to use the 2-1/2-inch mesh gill nets. On three separate occasions DNR officials after observing defendants conducting illegal fishing activities seized fish and/or equipment in the possession of the defendants.
The first seizure took place on May 11, 1972. After observing defendants’ activities and obtaining a search warrant, DNR officials boarded defendants’ vessel and seized a quantity of chubs (a species of protected fish). The next day officers seized a buoy and ten boxes of gill nets from the open waters of Lake Huron in an area where the defendants had been observed tending their nets.
On October 3, 1972, the third seizure was made after DNR officials had conducted the search which is now being challenged. The day before the search and subsequent seizure, conservation officers, suspecting that defendants were again violating provisions of their license, set up an observation post on the shores of Lake Huron and at dusk observed what apparently was the defendants’ vessel setting nets. Unable to further investigate due to darkness, they set out the following morning to examine the area. By 7:30 a.m., October 3, 1972, the officers had established the presence of illegal gill nets which belonged to the defendants. After marking these nets, the officers withdrew from the area but kept it under surveillance. In the early evening DNR officials observed the defendants’ vessel apparently in the process of tending its nets and then heading for its mooring at the Oscoda docks. At approximately 8:45 p.m. that evening officials sought permission to search the moored vessel. After acknowledging that they did not have a search warrant and being refused permission to conduct a search, they broke into the vessel with an axe. Upon discovering a quantity of fish and the previously marked nets, the vessel and its contents were seized.
The Iosco Circuit Court issued condemnation and confiscation orders against the defendants. The Court of Appeals affirmed on May 2, 1974. 53 Mich App 192; 218 NW2d 813. On October 15, 1975, we granted leave to appeal. 392 Mich 809.
II — Section lb(2) not Unconstitutional Delegation
The threshold question in this case is whether § lb(2) constitutes an unconstitutional delegation of legislative authority. Section lb(2) provides:
"In addition to the requirements of this act and rules promulgated pursuant to this act, the license issued by the director of conservation may contain provisions:
(a) Fixing the amount of fish to be taken by species and kind.
(b) Designating the areas in which the licensee shall be permitted to fish.
(c) Specifying the season when and the depths where the licensee may conduct his commercial fishing operations.
(d) Specifying the methods and gear which the licensee shall use.
(e) Specifying other conditions, terms and restrictions which are deemed to be necessary in carrying out the provisions of this act, including but not limited to the right to inspect the licensee’s fishing operations in the waters, on board or ashore.”
Defendants maintain that this provision marks a departure from the prior practice of the Legislature to maintain a commercial fishing law by modifying the original act (1929 PA 84) by detailed amendments and since it provides no guidelines it must be regarded as an unconstitutional delegation of legislative authority.
The rule with regard to delegation was simply and aptly stated in the leading case of Locke’s Appeal, 72 Pa 491, 498-499 (1873):
"The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government.”
The difficulty, as this Court on a previous occasion suggested, "is in determining whether the limits [on the exercise of discretion conferred on the administrative official] are sufficiently defined to avoid delegation of legislative powers”. Argo Oil Corp v Atwood, 274 Mich 47, 52; 264 NW 285 (1935).
In making this determination whether the statute contains sufficient limits or standards we must be mindful of the fact that such standards must be sufficiently broad to permit efficient administration in order to properly carry out the policy of the Legislature but not so broad as to leave the people unprotected from uncontrolled, arbitrary power in the hands of administrative officials.
While no hard and fast rule exists for determining whether a given statute has provided sufficient standards, a number of guiding principles have evolved in Michigan jurisprudence to assist in making a determination in this case.
First, the act in question must be read as a whole; the provision in question should not be isolated but must be construed with reference to the entire act. Argo Oil Corp v Atwood, supra, 53.
Second, the standard should be "as reasonably precise as the subject matter requires or permits”. Osius v St Clair Shores, 344 Mich 693, 698; 75 NW2d 25; 58 ALR2d 1079 (1956).
The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation. The "various” and "varying” detail associated with managing the natural resources has led to recognition by the courts that it is impractical for the Legislature to provide specific regulations and that this function must be performed by the designated administrative officials. People v Soule, 238 Mich 130, 140; 213 NW 195 (1927). See United States v Grimaud, 220 US 506; 31 S Ct 480; 55 L Ed 563 (1910).
Third, if possible the statute must be construed in such a way as to "render it valid, not invalid”, as conferring "administrative, not legislative” power and as vesting "discretionary, not arbitrary, authority”. Argo Oil Corp v Atwood, supra, 53.
III — Application of Principles
The first principle requires that the statute in question be viewed in its entirety. Section lb(2) read together with lb(l) provides a proper framework in which the Director of Natural Resources is authorized to act. Section lb(l) provides:
"Notwithstanding the provisions of this or any other act, the director of conservation, when in his opinion it is necessary for the better protection, preservation, management, harvesting and utilization of the fisheries in the waters described in section 1 may limit the number of fishing licenses to be issued under the provisions of this act and fix and determine the qualifications of such licensees. In determining the number of licenses that the director of conservation issues during any license year, he shall take into consideration the number of persons holding such licenses, the number of licensees needed to harvest the fish known or believed to be harvestable, the capacity of the boats and equipment owned and used by licensees to effectuate such harvesting, and any other facts which may bear upon the allowing of a limited number of licensed persons to engage in commercial fishing in an economical and profitable manner. In determining the qualifications of the licensees, the director of conservation shall consider the kind, nature and condition of the boats and fishing equipment and gear to be used by the applicant, the years of experience the applicant has had in commercial fishing and the quantity and kinds of fish that the applicant has caught during the previous 5 years and such other facts which may assist him in determining that the applicant is capable to engage in commercial fishing in a proper and profitable manner and will comply with the laws applicable to commercial fishing.” MCLA 308.1b; MSA 13.1491(2). (Emphasis added.)
The legislative policy and. standards to guide the director are apparent, to wit: to protect and preserve the fisheries of this state and to allow the taking of fish conditioned upon a grant of permission in the form of a license, but only when such taking will not disrupt the primary goal of protection and preservation. The director has been given the authority to factually determine the nature and degree of commercial fishing, in terms of species, location, and types of fishing gear, which may be allowed without affecting the goal of protection and preservation. These statutory provisions insure that the will of the Legislature will be given substance and effect as a result of the director’s factual determinations.
Turning to the second principle, we conclude that the standard provided in the Commercial Fishing Law, while somewhat general, is "as reasonably precise as the subject matter requires or permits”.
As suggested above, courts have recognized that the management of natural resources is a difficult and complex task. This is particularly true in the management of fisheries. In order to have proper management a measure of flexibility must be provided the director in dealing with numerous species of fish, their habits, their constantly changing environment, their response to interaction between species, their population growth and decline in various waters and the many other biological considerations involved.
It must be remembered that fish are recognized as the property of the state, People v Soule, supra, 139; Aikens v Department of Conservation, 387 Mich 495-502; 198 NW2d 304 (1974), and as such the Legislature could conceivably prohibit all commercial fishing activity. However, rather than adopt such an extreme course of action, the Legislature has provided for effective management by giving the director limited discretion, and not arbitrary power, to regulate the commercial taking of fish.
In People v Soule, supra, this Court upheld similar enabling legislation relating to the Department of Conservation. The crucial language of that act reads as follows:
"The commission of conservation of the department of conservation of this state shall, in accordance with the provisions of this act, have power to regulate the taking or killing of all fish, game and fur-bearing animals and game birds protected by the laws of this state, and may suspend or abridge the open season provided by law for the taking or killing of any such fish, animals or game birds in any designated waters or area of this state, whenever in the opinion of said commission of conservation it becomes necessary to assist in the increased or better protection of such físh, game or fur-bearing animals or game birds, or of any particular kinds or species of the same, which may in the opinion of said commission be threatened from any cause or causes with depletion or extermination in said waters or area, and for the purpose of such regulation, suspension, or abridgment, said commission of conservation is hereby empowered to make and promulgate any and all orders and regulations necessary to carry out the provisions of this act and as in this act provided, on the recommendation of the director of conservation after a thorough investigation has been made by him.” (Emphasis added.)
Defendants seek to distinguish Soule on the basis that the authority conferred on the Conservation Commission was restricted to emergency situations where the species of wildlife in the words of the statute were "in danger of depletion or extermination”. We do not find this distinction to be controlling. The state is not bound to wait until our natural resources are near extinction before it can properly authorize the Director of Natural Resources to act.
In upholding the constitutionality of § lb(2) we are mindful as well of the third principle that if possible, the statute must be construed as valid. While we are sympathetic to the difficulties experienced by defendants and other commercial fishermen with the changing, and frequently limiting, of their operations by regulations, we cannot say that the act in question constitutes an unconstitutional delegation of authority. Nor do we view § lb(2) as permitting the Director of Natural Resources to act in an arbitrary and discriminatory fashion.
However, while we find that the Commercial Fishing Law has given the Director of Natural Resources reasonable discretion to act in accordance with legislatively provided guidelines, and not with power to act arbitrarily, we are mindful that authority, although properly delegated, may be subject to abuse. That is why the actual development of specific regulations by those charged with the task by the Legislature must be accompanied with due process protection. Such protection is necessary to minimize the opportunity for abuse of discretion as well as to adequately protect the interests of those affected by the regulations.
In those cases where authority is delegated to the administrative body, particularly where the subject matter dictates that the legislative standards provided are somewhat general, this Court would take a dim view of such delegation if adequate opportunity to intervene in the administrative rule-making procedure were not provided.
In this case it appears that the DNR provided notice and hearings both in the development of general fishing regulations and for the defendants when they contested particular restrictions placed upon their licenses.
IV — Rule 3 Does not Exceed DNR’s Authority
Defendants argue that while § lb(2) authorizes the Director of the DNR to include restrictions on commercial fishing licenses, the section does not authorize the director to place restrictions which "further refine, limit, abridge, repeal or replace the restrictions enacted by the Legislature”. DNR Order No. 17, Rule 3, which inter alia prohibits the use of gill nets with mesh sizes less than 8 inches in certain fishing zones and which served as the basis for the restrictions on defendants’ license, was a limitation established by the DNR and not the Commercial Fishing Law. Consequently, defendants argue that the DNR has exceeded its authority granted by the statute.
Sections lb(2) and lb(l) must be read together. The language in lb(l) that "[n]otwithstanding the provisions of this or any other act, the director of conservation, when in his opinion it is necessary for the better protection, management, harvesting and utilization of the fisheries * * * may limit the number of fishing licenses to be issued * * * and fix and determine the qualifications of such licensees” authorizes the director in issuing licenses under § lb(2) to place reasonable restrictions on licenses not specifically spelled out in the act.
V — Illegal Search and Seizure
The final question before us is whether the warrantless search constituted an unreasonable search in violation of the Fourth Amendment, and Article 1, § 11, of the Michigan Constitution. For the Court of Appeals it was enough that MCLA 300.12; MSA 13.1222 "specifically authorizes searches without a warrant if based upon probable cause”. 53 Mich App 192, 199. However, a search without a warrant in order to be reasonable under the Fourth Amendment requires more than probable cause — exigent circumstances must also be present. People v White, 392 Mich 404; 221 NW2d 357 (1974).
Although MCLA 300.12; MSA 13.1222 does not mention the requirement of exigent circumstances to justify warrantless searches, it is clear that this provision was enacted to cover those situations in which it is not feasible to obtain a warrant. We are "duty bound” under the Michigan Constitution to construe a statute in such a way as to uphold its validity. People v Bricker, 389 Mich 524, 528; 208 NW2d 172 (1973). Consequently, we construe MCLA 300.12; MSA 13.1222 as, inter alia, requiring the presence of exigent circumstances before conservation officers are authorized to conduct warrantless searches under the act.
In this case it does not appear that such exigent circumstances existed. DNR officials had the defendants under surveillance for more than a day prior to boarding the vessel and had established probable cause to believe that defendants were conducting illegal fishing operations well before the actual search took place. In addition, the vessel was moored at its berth and there was no indication that the defendants were about to leave to attempt to dispose of the incriminating evidence. The facts suggest that the DNR officials had ample time to obtain a valid search warrant. It also should be noted that on a prior occasion involving similar circumstances DNR officials did obtain a valid warrant.
Before this Court plaintiff no longer argues that the actions of the conservation officers on the evening of October 3rd constituted a valid search; rather it contends that what took place was not a search but a seizure.
Testimony given by George Robson, one of the DNR officers involved in the October 3rd search and seizure, is enlightening in this regard. Officer Robson stated:
"I advised them [Mrs. Seaman and another couple] that I wanted to search the boat, and the deckhand said, no, we weren’t going to search it, and they asked for a search warrant, and I advised them we didn’t have one, and they indicated that we weren’t going to get on the boat without a search warrant.
”Q. (Continued by Mr. Tyler [Prosecutor]): * * * did you speak with anyone with — regarding gaining access to the boat?
"A. Yes, I asked Mrs. Seaman for permission to inspect the boat, and she said no. She said, if you have got a warrant you can get on the boat, and I advised her we didn’t have a warrant but that we didn’t need one, we had probable cause to believe that a violation had been committed and probable cause to believe that the boat had been involved in the violation, and our intentions were to inspect the boat, and she said no. Then, later she got on the boat, and she said, yeah, we can inspect the boat. They weren’t going to unlock it, but we could inspect the boat, and Mr. Seaman also indicated that without a warrant we weren’t going to search the boat, and then he finally consented to our searching the boat, but he wasn’t going to unlock it.
”Q. So, what did you do then, if anything?
"A. Well, we tóok an axe and broke the lock and went aboard the boat. "(Emphasis added.)
There is little question that what took place, was — certainly in the minds of those involved — a search followed by a seizure and not simply a seizure as plaintiffs would have us believe.
With the search unconstitutional, the subsequent seizure of the vessel was illegal. When property has been wrongfully seized following an invalid search, the property should be returned to the owner. People v Marxhausen, 204 Mich 559-574; 171 NW 557; 3 ALR 1505 (1919); see Amos v United States, 255 US 313; 41 S Ct 266; 65 L Ed 654 (1921).
Conclusion
Section lb(2) of the Commercial Fishing Law does not constitute an unconstitutional delegation of legislative authority. Nor does Rule 3 of Order 17 exceed the authority granted the DNR by the Legislature.
The search of defendants’ vessel was unconstitutional and, as a consequence, the subsequent seizure was illegal. Defendants are entitled to return of their fishing vessel.
The Court of Appeals is reversed in part and affirmed in part.
This matter is remanded to the Iosco Circuit Court for further proceedings not inconsistent with this opinion.
No costs.
Coleman and Fitzgerald, JJ., concurred with Williams, J.
Lindemer and Ryan, JJ., took no part in the decision of this case.
Appendix
Portion of supplemental brief filed by Ronald R. Tyler, Attorney for Plaintiff-Appellee dated May 23, 1975:
I In response to the Supreme Court’s inquiry as to what notices, if any, were given to Appellants of the changes in the commercial fishing regulations which occurred during the period of 1970 through 1972, the Department of Natural Resources submits the following facts:
1. As early as December 9, 1968 the Department of Natural Resources sent notices to all commercial fishermen advising them of the recent enactment of Act 335, PA 1968, which amended Section 1 of Act 84 of the Public Acts of 1929; MSA 13.1491(2) through 13.1491(5). In that notice all commercial fishermen were advised of forthcoming regulations of the commercial fishery under the new Act. (Exhibit #1)
2. On December 18, 1968 all licensed commercial fishermen in the Lake Huron area were given notice of a public hearing in compliance with Act 88, PA 1943, and Act 197, PA 1952, (presently superseded by the Administrative Procedures Act, Act 306, 1969) regarding the inclusion of Lake Huron under the permit system of gill nets. On January 6, 1969 a public hearing on the matter set forth in the notice was conducted in the City of Alpena.
3. On June 23, 1969 the Department of Natural Resources gave notice to all commercial fishermen of a public hearing to be conducted at various places in the state regarding proposed administrative rules governing licensing eligibility of commercial fishermen. The public hearings were conducted on July 15, 1969.
4. On October 13, 1970 in compliance with the Administrative Procedures Act, Act 306, PA 1969, notice of hearing of proposed commercial fishing regulations under the zone management plan for the year 1971 was sent to all persons and organizations likely to be affected by the proposed rules, including the director of the Michigan Fish Producers Association. In addition the notice was sent to interested attorneys and was published by newspaper. On October 26 & 27 of 1970, public hearings were conducted in the cities of Saginaw, Alpena, Marquette, Grand Haven and Manistique. Appellants were present at the hearings in Saginaw. Minutes of the hearings were recorded and filed. Subsequently, the proposed rules were approved and promulgated pursuant to Section 45 and 46 of Act 306 of 1969 and published in the Michigan Administrative Code. The rules as promulgated were controlling as to the privileges granted appellants in their 1971 Commercial Fishing License.
5. On September 10, 1971 notice of public hear ing on proposed changes to the 1971 regulations on commercial fishing for the year 1971 [sic] was published and sent to all persons and organizations affected thereby in accordance with the Administrative Procedures Act. Public hearings on the proposed changes were conducted in the City of Manistique on September 21, 1971, Traverse City on September 22, 1971, and Bay City on September 23, 1971. Appellants were in attendance of the public hearing in Bay City. Minutes of the hearings were recorded and filed. Subsequently, the proposed rule changes were approved and promulgated pursuant to Section 45 and 46 of Act 306, PA 1969 and published in the Michigan Administrative Code effective March 18, 1972; being Order No. 17 (revised), amending rules R299.883, R299.886, R299.889 and R299.891. (Supplement No. 65 to the Code) The changes so promulgated were controlling as to the privileges granted appellants in their Í972 license.
II In response to the Supreme Court’s inquiry as to whether the Department of Natural Resources provides administrative hearings for a licensee who contests the limitations of his license, it is submitted that the Department has followed and is continuing to follow the governing provisions of the Administrative Procedures Act, PA 306, 1969; MCLA 24.201 et seq.; MSA 3.560(101) et seq., regarding contested cases.
As applied to Appellants’ case, McGahan and Seaman, through counsel, protested the restrictions and limitations of their 1972 commercial fishing license and requested an administrative hearing for the modification of license privileges under the provisions of Act 306. Accordingly, Mc-Gahan and Seaman were granted a formal administrative hearing which concluded September 12, 1972 before a hearing examiner. The Department was represented by Curtiss G. Beck, Assistant Attorney General and Appellants by Nino E. Green, Esq., of Escanaba, ML
Pending the Department’s final decision as required by Section 85 of said Act, the conservation officers seized Appellant’s fishing vessel, the "Jerry W,” for violations alleged to have occurred October 2 & 3, 1972. (The events of which form the basis for the present appeal.)
On October 26, 1972 the Department forwarded the hearing examiners report and recommendation to Appellants and informed them of the availability of a further hearing before the Director of Natural Resources in accordance with Section 81 of the Act.
On November 30, 1972 the Director of Natural Resources in accordance with Section 85 of the Act, gave his final decision based upon the hearing examiner’s recommendations and the record and denied appellant’s petition for expansion and modification of their commercial fishing privileges.
1929 PA 84 as amended. MCLA 308.1b; MSA 13.1491(2).
1970^1971 AACS, R 299.883.
DNR Order No. 17, Rule 3 provides pertinently:
"Rule 3. Except as otherwise restricted by Act No. 84 of the Public Acts of 1929, as amended, being sections 308.1 to 308.48 of the Compiled Laws of 1929 [sic], and commercial fishing rules, commercial fishing is permitted as prescribed in the following zonps or as authorized by written permission of the director of natural resources or his representative.
"Zone 19-Lake Huron not otherwise described herein. Large mesh gill nets 8 inches or larger are permitted in depths less than 5 fathoms south of a line running due east from the Black River, section 14, T28N, R9E, to the international boundary. Trap nets are permitted from April 1 to May 31, and from September 15 to November 30 in an area north and east of Sand Point within the following described boundaries: commencing at the monument on the westerly tip of Sand Point; thence easterly to the section line between section 7, T17N, R10E, and section 12, T17N, R9E; thence on a line due north for 2 miles; thence on a line due west to a point due north of the monument on Sand Point; thence southerly to the point of beginning”
The fishing violations which are the subject matter of this case occurred in Zone 19.
At the circuit court and Court of Appeals the question was raised whether the defendants could properly be charged with violating the provisions of the 1972 license since they had protested the new provisions and had not as yet been afforded the statutorily-required hearings. The question is not crucial here because as the Court of Appeals pointed out the use of small-mesh gill nets in Zone 19 was also not permitted under the 1971 license.
Defendants reported their activity to the DNR on a monthly basis.
Defendants suggest that an earlier departure from this practice came when the Legislature enacted 1959 PA 154 amending 1955 PA 218. MCLA 308.201 et seq.; MSA 13.1568(1) et seq. This act is not in issue in the present proceeding.
A standard cannot be considered "as reasonably precise as the subject matter requires or permits” if it does not satisfy due process requirements. See decision in State Highway Commission v Vanderkloot, 392 Mich 159, 169-178; 220 NW2d 416 (1974).
See 1 Am Jur 2d, Administrative Law, § Í17, p 924; 1 Sutherland Statutory Construction (4th ed, Sands), § 4.16, p 102.
1925 PA 230.
During oral arguments some discussion was devoted to the relative merits of trap nets vis-a-vis gill nets and the soundness of DNR’s management restrictions. The wisdom of the particular limitations placed on commercial licenses is not before us.
See portion of supplemental brief filed by Ronald R. Tyler, counsel for plaintiif, in response to a request by Court made during oral arguments. (Appendix to this opinion.)
Although the Court split in the result reached there was unanimous agreement that the validity of warrantless searches turned on the dual requirements of probable cause and exigent circumstances. Opinion of the Court at 410; dissenting opinion of Justices Williams and Coleman at 434. See Coolidge v New Hampshire, 403 US 443, 454-455; 91 S Ct 2022; 29 L Ed 2d 564 (1971).
On May 11 between 10:30 and 11:00 a.m., conservation officers observed defendants’ fishing vessel in what they believed to be illegal fishing operations. By 1 p.m. the same day they had obtained a search warrant and conducted a search of the vessel at 2:30 p.m. This amounted to a total of approximately 4 hours. With regard to the October 3 search and seizure, over 24 hours passed from the time the officers first observed the defendants’ activity to the time the seizure was made, and over 12 hours between the time the officers established the presence in open water of illegal gill nets which belonged to the defendants and the time of seizure. | [
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] |
Kavanagh, C. J.
(to reverse). There is a single issue in this case: Was the Workmen’s Compensation Appeal Board’s (WCAB) determination of plaintiffs disability supported by any competent evidence? We hold that it was.
Plaintiff commenced employment with defendant in 1959, and worked steadily for the company from 1961 until the date of this injury, June 30, 1969.
At the time of this injury, plaintiff was employed as a lift truck driver, and had been so employed for three years. Plaintiff described his work as follows:
"Well, it’s a big turntable. I’ve got to be a turning that, you know, and then them big wooden boxes weigh about 275 pounds, and I usually got off, you know, and put them in place, push them around and, you know, quite a bit of tugging on them to get them around in place in the factory.”
On June 30, 1969, the following incident occurred:
" * * * I went and picked up a big crate. They weigh around 370, I suppose, to put parts in, and I put the crate in there to put parts in, you know, placed a box in there and as I was getting back on my lift truck, I got my right leg up and just before I got ready to sit in the seat — it was high, pulled up by the steering wheel, and when I got partially the way up, my right foot slid across the truck and then I come down on my left side, hanging down, and I was just hanging there by my left foot. I hit the floor with my left leg. You know, my weight come right back down me there and I was hanging on the truck.”
Plaintiff worked the following day, but the next day he stated that he had to see a doctor. The company referred him to a physician who prescribed medication. During the next two years, plaintiff was continually receiving medical treatment for back pain from various physicians and did not resume employment. On May 20, 1971, a hearing was held before Referee William J. Weber. Referee Weber determined that plaintiff was not disabled as a result of the injury received on June 30, 1969.
After a lengthy delay due to numerous extensions of time for filing plaintiff’s brief to the Workmen’s Compensation Appeal Board, the appeal board unanimously reversed the hearing referee, ruling as follows:
"[T]o hold with the referee would be a refutation of the record. Plaintiff worked many years before a single event resulted in his disability. He then began a regimen of medical treatments, and the continuity of the medical reporting supports plaintiff’s statement, in the record, that he is incapable of working as a forklift truck driver.
"Defendant shall indemnify plaintiff $69.00 per week from June 30, 1969, to the date of the hearing, and until the further order of the Bureau.”
Defendant appealed to the Court of Appeals. In an unpublished opinion of July 19, 1974 the Court of Appeals áffirmed that part of the award given from the date of the injury until the trial date, but reversed the part of the award that was to be continued "until the further order of the Bureau”, holding that the record did not contain "competent evidence upon which the appeals board can make a finding of continuing disability as a matter of reasonable prediction, Lyczynski v Mohawk Lum ber & Supply Co, 33 Mich App 433; 190 NW2d 328 (1971)”.
Plaintiff appeals to this Court alleging that the determination of continuing disability was supported by competent evidence and thus binding on the Court of Appeals.
In Lyczynski, supra, the WCAB affirmed an award "until further order of the department”. The Court of Appeals majority reversed on the authority of certain observations made in White v Michigan Consolidated Gas Co, 352 Mich 201, 210; 89 NW2d 439 (1958) (White #2), that the decision in the earlier White case, 342 Mich 160; 69 NW2d 160 (1955) (White #1) was based on the determination that the record did not contain "competent evidence upon which the appeal board could have made a finding of continuing disability as a matter of reasonable prediction”. 352 Mich 201, 211; 89 NW2d 439 (1958). The Lyczynski majority held that the record in that case did not meet the White #2 test.
The Court of Appeals in the case at bar made the same determination. We are persuaded that the observations made in White, relied upon in Lyczynski, were obiter dicta and should not be followed.
Predictability has no proper place in a determination of disability. If the appeal board had any competent evidence before it to support a determination of disability for the period in -question, its order to pay benefits must be upheld. Hollingsworth v Auto Specialties Manufacturing Co, 352 Mich 255; 89 NW2d 431 (1958).
An award for compensation "until the further order”, if based upon a finding of disability at the time the order was made, remains in effect until the award is stopped or changed. There is no question of prediction — reasonable or unreasonable.
"The remedy of an employer who contends that the injured workman’s physical condition has changed since the hearing is a petition to stop or decrease compensation, as suggested by the Supreme Court in the second White case and in Johnson v Northwestern Veneer & Plywood Corp , 355 Mich 695; [96 NW2d 134] (1959), or a motion before the appeal board before its decision is announced to submit additional testimony, as suggested by the Supreme Court in Hollingsworth v Auto Specialties Manufacturing Co, 352 Mich 255 (1958).” Lyczynski v Mohawk Lumber Co, 33 Mich App 433, 447; 190 NW2d 328 (1971) (Levin, J., dissenting).
The argument is made by the appellee that the only evidence to support a finding of disability is "plaintiff’s own unsubstantiated assertions of disablement. No medical testimony supports his claim * * * ”. Appellee claims too much.
The testimony of plaintiff’s wife supported his claim of disability and the weight and credibility of testimony of both lay and medical witnesses is for the determination of the appeal board. White v Michigan Consolidated Gas Co, 352 Mich 201, 210; 89 NW2d 439 (1958). The following testimony of the plaintiff was introduced in support of his claim:
’’The Referee: What problems are you having?
"A. I’m having pains all down my back here, and it feels like a knife jabbing right out down in my bottom of my left hip, and it goes all the way down into my feet.
"Q. (By Mr. Perlos): This pain that you described, Mr. Sanford, has it been any different than it was in 1969 or '70 than what it is now?
"A. No, sir, it stayed about the same ever since I slipped on the truck.
"Q. Now, going into it a little further, Mr. Sanford, can you tell us in what way, if any, you are restricted since this injury as you were from what you were doing before the injury?
”A. Well, in the line of work?
"Q. Yes.
’A. Well, I can’t get out and do the yard work that I do, you know. I have I do a little and lay down a little bit. I get relaxed, and the pain goes away, take pills, and then I get back up and do a little bit more, and I’m that way all during the day, you know. If I’m going and if I stand in a certain position, you know, like lining a fishpole up, I just go in a jerk. I’ve got to sit down or lay down.
"Q. (Mr. Perlos): Could you go back and do the work that you were doing at the time that you were injured today?
’A. No, sir, I couldn’t.
”Q. What would prevent you?
'A. Well, being my back, lifting and twisting.
”Q. Is it necessary for you to lift and twist?
’A. Yes, sir.
"The Referee: Are you uncomfortable now?
"A. Yes, I am.
'The Referee: Would you rather stand up?
’A. I do, I stand up, straighten this leg out.
'The Referee: Go ahead. You need not sit there if you prefer not to. You can stand up.
"A. I’m sorry, I can’t sit too long.
'The Referee: No problem. Make yourself comfortable.
"Q. (By Mr. Perlos): If work was available to you at Ryerson & Haynes, would you go back to work?
"A. I would much rather be to work right now as to be sitting in a chair and can’t do anything. If they will show me that — do something for me, that they’d do something for me, I’d be willing to go back this afternoon.”
Plaintiffs wife testified as follows:
"A. Well, he doesn’t do anything like, — like—can’t even stand washing the dishes for a very long period. He has to kind of stand one sided or go lay down and finish them later. He has to take a hot bath, sometimes two, three times a day. He bought him a heating pad. He uses that. He also lays over the register quite a bit. He also takes pills after pills.
”Q. You are employed, aren’t you?
"A. Yes, I am.
"Q. Where?
"A. Heat Control.
"Q. And how long have you been working?
'A. '65.
"Q. Have you been supporting you and Mr. Sanford?
’A. Yes, I have.”
This testimony of plaintiff and his wife, without more, and even though arguably disputed by certain medical witnesses, is sufficient to support the WCAB’s finding of disability.
To the extent that the dicta in White #2 and the holding in Lyczynski, supra, are inconsistent with this opinion, they are disapproved.
The opinion of the Court of Appeals is reversed. The order of the Workmen’s Compensation Appeal Board is reinstated.
Costs to plaintiff.
Williams, Levin, and Fitzgerald, JJ., concurred with Kavanagh, C. J.
Ryan, J., took no part in the decision of this case. | [
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Rehearing denied. Reported at 396 Mich 169. | [
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Lindemer, J.
Defendant was charged with the robbery and beating death of Albert Hoffman on January 13, 1967. Two witnesses, Kimbrough and Tarver, saw two men attack Hoffman and rob him. They heard one assailant say, "If you move again, we’ll kill you,” and "Get his watch and ring”.
While the defendant was being held in the Wayne County Jail on an unrelated charge, he participated in separate lineups for each of the two witnesses. At these lineups all subjects were told to repeat the assailant’s statements. The defendant was identified by both Kimbrough and Tarver at the lineups and at trial. Defendant was subsequently charged with felony murder, MCLA 750.316; MSA 28.548. After a first trial ended in a hung jury, defendant was jury-convicted of felony murder in a second trial. That conviction was affirmed by the Court of Appeals, 24 Mich App 509; 180 NW2d 363 (1970), and this Court denied leave to appeal, 384 Mich 785 (1970).
Defendant subsequently filed with the trial court a delayed motion for new trial, which was denied. From this denial, defendant filed a petition for mandamus in the Court of Appeals, which was apparently treated as an application for delayed appeal and denied. Defendant’s application for leave to appeal was granted by this Court, 391 Mich 786 (1974). The prosecutor’s motion to strike six of the seven issues in this case was denied by order, 394 Mich 907 (1975), so this opinion will consider all seven issues.
Defendant first claims that his right to be free from unreasonable searches and seizures under US Const, Am IV, and Const 1963, art 1, § 11, was violated by forced participation in a lineup while in police custody. It does not appear from the record that defendant was forced to participate in the lineup, but neither is consent evident. We treat defendant’s participation as forced. We agree with appellant that confinement in the Wayne County Jail did not strip him of all constitutional rights, People v Trudeau, 385 Mich 276; 187 NW2d 890 (1971). However, the Court of Appeals did not err in concluding that, once initially restrained by lawful incarceration without infringement of any search and seizure rights, the forced participation in a lineup, complete with speaking requirement, does not constitute an unreasonable search and seizure. United States v Dionisio, 410 US 1; 93 S Ct 764; 35 L Ed 2d 67 (1973).
Defendant next argues that his conviction may not be sustained since it is based solely on untrustworthy, unreliable and legally insufficient evidence. That the corpus delicti of the crime was established is not challenged. The identification of defendant by witnesses Kimbrough and Tarver was thoroughly explored at trial before the jury. Such identification testimony, if believed by the jury, established defendant as one of the perpetrators of the crime.
"Juries, not appellate courts, see and hear witnesses and are in a much better position to decide the weight and credibility to be given to their testimony. Where sufficient evidence exists, which may be believed by the jury, to sustain a verdict of guilty beyond a reasonable doubt, the decision of the jury should not be disturbed by an appellate court. People v Moore, 306 Mich 29, 33; 10 NW2d 296 (1943).” People v Palmer, 392 Mich 370, 376; 220 NW2d 393 (1974).
This claim of error is without merit.
Defendant challenges that his second trial after the first trial ended with a hung jury violated his right not to be twice placed in jeopardy under Const 1963, art 1, § 15, citing People v Duncan, 373 Mich 650; 130 NW2d 385 (1964). In Duncan, as in this case, there was a lengthy period of jury deliberations. In both cases testimony and supplementary charges were given. In contrast to Duncan, the trial court here followed the better practice (as suggested by Duncan) by making further inquiry to determine whether there was any prob ability that the jury ultimately could agree on a verdict. When the court ascertained there was not, the mistrial was declared. The holding of Duncan applies in this case. The double-jeopardy guarantee does not bar retrial where, as here, the trial court has reasonably concluded that the jury is unable to agree on a verdict.
Defendant complains of the unconstitutionality of Michigan’s former notice-of-alibi statute, MCLA 768.20; MSA 28.1043, in connection with an attempt by the prosecutor to introduce a prior inconsistent statement for alibi rebuttal. Since there was no notice of this statement to defendant, its admission, defendant claims, would have violated the statute. We do not reach the question. The statement was never admitted, and there was no impermissible intimation as in People v Jones, 293 Mich 409; 292 NW 350 (1940). Defendant was able to present his complete alibi defense. This claimed error is without substance.
Defendant charges that misconduct by the prosecutor deprived him of a fair trial. We agree with the prosecutor that defendant, by appellate counsel, imposes on this Court by claiming that the prosecutor knowingly permitted the introduction of false testimony. Witnesses Kimbrough and Tarver never precisely identified when the crime took place. Inconsistencies in time statements of Kimbrough and Tarver and throughout defendant’s alibi testimony were thoroughly weighed and resolved by the jury against defendant.
No objections or requests for curative instructions were made in response to the prosecutor’s closing argument, so we will reverse only if such instructions could not have cured any prejudice. People v Humphreys, 24 Mich App 411, 416; 180 NW2d 328 (1970). Commentary on the evidence adduced at trial did not amount to statements of fact by the prosecuting attorney, so there is no error under People v Ignofo, 315 Mich 626; 24 NW2d 514 (1946).
In the course of closing argument, the prosecutor said:
"If any person committing a crime or being suspected of committing a crime could say to a police officer, T am not coming out of my cell for anybody to look at me,’ then let’s throw away our law books and let’s eliminate our courts and try these cases on the streets with a shotgun and a pistol and go back to the Dark Ages.
"But, by the same token, members of the jury, the People of the State of Michigan have some rights. We have a right to be safe and secure in our homes and on our streets. We have a right to protect ourselves against predatory animals. We have a right to ask citizens of our community for honest and decent verdicts, and we ask for those rights in the name of the People of the State of Michigan.
"Albert Hoffman had some rights, ladies and gentlemen. He had a right to live until God took him away and his wife had a right to his company until that time. But he was snatched away by someone who did not accord him the rights this defendant demands. This defendant was judge, jury and executioner that night at Van Dyke and Gratiot on his seventy-third birthday.”
Whether or not in total context this language is improper, we cannot agree with defendant that appropriate cautionary instructions given on request would not have cured any error. Indeed, the trial court gave the following agreed-upon and appropriate instruction:
"[Arguments of counsel are not evidence in the case and should not be construed by you [the jury] as such. The purpose of arguments of counsel is to assist you in coordinating, summarizing and drawing conclusions from what testimony and evidence you have heard.”
The remaining statements are justifiable in response to the closing of defense counsel. People v Allen, 351 Mich 535, 544; 88 NW2d 433 (1958). We can find no reversible error.
As to defendant’s claim of error regarding the trial court’s instruction on felony murder without an explanation of malice, trial counsel stated in response to the prosecutor’s suggestion that the trial court should define murder:
"We have no degrees of murder. It is either guilty or not guilty”,
and affirmatively stated he had no objection to the charge as given. This error is not preserved for appellate review. People v Alcala, 396 Mich 99; 237 NW2d 475 (1976).
Finally, defendant attacks the mandatory life sentence under MCLA 750.316; MSA 28.548 as violative of constitutional due process and equal protection guarantees (US Const, Am XIV; Const 1963, art 1, §§ 1, 17); the constitutional guarantees against cruel or unusual punishment (US Const, Am VIII: "cruel and unusual”; Const 1963, art 1, § 16: "cruel or unusual”); and the constitutional doctrine of separation of powers. None of these constitutional challenges have merit.
The mandatory life sentence (without possibility of parole, MCLA 769.9; MSA 28.1081) was expressly excluded from discussion in People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972). Defendant cites no authority for his proposition that a mandatory life sentence violates defendant’s due process and equal protection rights. As for the cruel and unusual punishment claim, under Peo pie v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972), the punishment exacted is proportionate to the crime. Defendant has not contended that Michigan’s punishment for felony murder is widely divergent from any sister jurisdiction. The third Lorentzen factor, rehabilitation, was not the only allowable consideration for the Legislature to consider in setting punishment.
"[S]ociety’s need to deter similar proscribed behavior in others, and the need to prevent the individual offender from causing further injury to society”
were also recognized. 387 Mich at 180; 194 NW2d at 833. In any event rehabilitation and release are still possible, since defendant still has available to him commutation of sentence by the Governor to a parolable offense or outright pardon. Const 1963, art 5, § 14; People v Freleigh, 334 Mich 306; 54 NW2d 599 (1952). A mandatory life sentence without possibility of parole for this crime does not shock the conscience.
The power to establish sentences historically has resided in the Legislature. The separation of powers clause, Const 1963, art 3, § 2, is not offended by the Legislature delegating sentencing discretion in part and retaining sentencing discretion in part.
"The courts have no discretionary power in this respect unless it be conferred upon them by law.” People v Palm, 245 Mich 396, 404; 223 NW 67 (1929).
The trial court and the Court of Appeals are affirmed.
Coleman and Fitzgerald, JJ., concurred with Lindemer, J.
Levin and Ryan, JJ., took no part in the decision of this case. | [
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] |
Levin, J.
Tom Thomas Organization, Inc., commenced this action to recover damages resulting from the loss of films and tapes which were insured under an inland marine policy issued by Reliance Insurance Co.
Reliance asserts that the 12-month limitation on suit contained in the policy began running December 14, 1971, the date of loss, and bars Thomas’ action, which was commenced March 16, 1973. Thomas contends that the period of limitation did not begin to run until Reliance denied liability on June 22, 1972. Thomas alternatively contends that Reliance is estopped by its conduct from relying on the limitation.
The circuit court denied Reliance’s motion for summary judgment on the ground of estoppel. The Court of Appeals reversed, holding that the period of limitation began to run on the date of loss and that Reliance was not estopped from asserting the limitation because it had denied liability six months before the period ran.
We reverse the Court of Appeals.
The running of the period of limitation was tolled from the date Tom Thomas gave notice of loss until liability was formally denied by Reliance.
The question whether Reliance has any liability under the policy for this loss has not been adjudicated and is not before this Court. The cause is remanded for trial.
I
The insurance policy provides that no action "shall be sustainable in any court of law or equity unless the same be commenced within twelve (12) months next after discovery by the insured of the occurrence which gives rise to the claim * * *
The general rule, absent statute, is that a provision in a policy of insurance limiting the time for bringing suit is valid if reasonable even though the period is less than that prescribed by otherwise applicable statutes of limitation.
While a 12-month limitation on suit may represent a reasonable balance between the insurer’s interest in prompt commencement of action and the insured’s need for adequate time to bring an action, the insured usually does not have the full 12 months within which to commence an action.
Substantial delays are built into standard insurance policies. The insured is generally allowed 60 to 90 days to file proof of loss. The insurer is generally given another 60 days to pay or settle the claim.
Notwithstanding diligence by both parties at all stages of the claim procedure, considerable time often elapses before the insured learns whether the insurer will pay. Even if the insured promptly reports a loss to his insurance agent, discussions concerning resolution of the claim may take weeks. Additional time often passes before the insurance company provides a form for filing proof of loss. Even then the insured does not know whether it will be necessary to start an action; under the policy in this case, payment is not required until 60 days after "acceptance” by the insurer of the proof of loss. No time limit for acceptance is imposed.
While inclusion of such terms in a policy clarifies the claims procedure, the practical consequence is considerable shortening of the time within which suit may be commenced. Here the films and tapes were lost December 14, 1971. Thomas reported the loss January 20, 1972 and filed proof of loss March 7, 1972. Reliance denied the claim June 22, 1972 — more than 60 days after the proof of loss was filed. Over half of the 12-month period of limitation had elapsed between discovery of the occurrence giving rise to the claim and formal denial of the claim.
II
The New Jersey Supreme Court, in Peloso v Hartford Fire Insurance Co, 56 NJ 514; 267 A2d 498 (1970), reached what we regard to be a sound result reconciling policy provisions concerning proof of loss and payment of claims with the provision imposing a time limitation for commencement of an action. Suit on a fire insurance policy was instituted 18 months after the date of the fire and 9 months after liability was denied by the insurer. The Court noted that while the policy purported to give the insured 12 months to begin an action, operation of the proof of loss and payment of claim terms significantly shortened that period of time. The Court concluded that the period of limitation was tolled from the time an insured gives notice of loss until the insurer formally denies liability:
"In this manner, the literal language of the limitation provision is given effect; the insured is not penalized for the time consumed by the company while it pursues its contractual and statutory rights to have a proof of loss, call the insured in for examination, and consider what amount to pay; and the central idea of the limitation provision is preserved since an insured will have only 12 months to institute suit. We think this approach is more satisfactory, and more easily applied, than the pursuit of the concepts of waiver and estoppel in each of the many factual patterns which may arise.”
The Supreme Court of Alaska, in Fireman’s Fund Insurance Co v Sand Lake Lounge, Inc, 514 P2d 223, 226-227 (Alas, 1973), reached a like result by finding the policy limitation unconscionable. The Court noted that insurance companies use form policies and consumers have a take-it-or-leave-it option. The Court declined to interpret the policy phrase "inception of the loss” to mean the date of the fire. Analogizing to the Uniform Commercial Code, which permits reduction of the four-year statute of limitation by agreement of the parties but not to less than one year, the Court held that the insured must be allowed a full year from the accrual of a cause of action to sue and that a cause of action does not accrue until formal denial of a claim.
The United States Court of Appeals for the Ninth Circuit, applying Nevada law,* ***** extended the 12-month limitation period provided in a casualty policy by the 60-day payment of claim period. The Court quoted with approval Steel v Phoenix Insurance Co, 51 F 715, 721 (CA 9, 1892), aff'd 154 US 518; 14 S Ct 1153; 38 L Ed 1064 (1893):
" ' * * * A policy of insurance which contains conditions reducing the statutory time for the commencement of any suit thereon ought, in justice and equity, to be so construed — if reasonable under its terms — as to give the full period of time mentioned in the policy, freed from the provisions of all other clauses of the policy, or from the conduct of the insurance company, limiting, or attempting to limit, the time actually given in the limitation clause. This, it appears to us, is the consistent and logical view that ought to be taken of such policies of insurance. * * * It would prevent either party from taking, any undue or improper advantage of the other.’ ” Westchester Fire Insurance Co v Sperling, 421 F2d 141 (CA 9, 1970).
In this case the policy allowed the insured 90 days from discovery of loss to file proof of loss and gave the insurer 60 days from presentation and acceptance of proof of loss to pay the claim.
The effect of these terms is to substantially shorten the 12-month limitation period for commencement of suit. The policy permits a delay of up to 150 days after discovery of loss for filing proof of loss and payment. An indefinite additional period of time — for "acceptance” after "presentation” of the proof of loss — is allowed the insurer before the 60-day period for payment begins to run.
We adopt the approach of the New Jersey Supreme Court. The appropriate resolution is not to allow the contractual period of limitation to run from the date of the casualty or, as provided in this policy, discovery of the loss, but to toll the running of the limitation from the time the insured gives notice until the insurer formally denies liability.
It appears that Thomas gave notice of the loss on or about January 20, 1972 (although proof of loss was not filed until March 7, 1972) and Reliance denied liability June 22,1972. The running of the limitation was tolled for approximately five months and did not expire until mid-May, 1973. Thomas’ action was timely commenced on March 16, 1973 and is not barred by the limitation.
It is unnecessary to reach the alternative argument advanced by Tom Thomas — unconscionability and the reasonableness of a one-year limitation. We predicate our holding on reconciliation of the provisions of the policy.
Reversed and remanded for trial.
Kavanagh, C. J., and Williams and Fitzgerald, JJ., concurred with Levin, J.
Ryan, J., took no part in the decision of this case.
Tom Thomas’ claim against Marsh .& McLennan is for breach of an asserted duty to provide insurance coverage.
Thomas also contends that a new claim arose March 23, 1972, when the lost films and tapes were returned. Thomas had already remade the films and tapes to meet a February contract obligation.
It is unnecessary to decide this question.
See Anno: Validity of Contractual Time Period, Shorter than Statute of Limitations, for Bringing Action, 6 ALR3d 1197 (1966).
The general statute of limitation on contract obligations in Michigan is six years. MCLA 600.5807(8); MSA 27A.5807(8). Policy limitations of less than six years have been enforced by this Court without discussion of reasonableness. See, e.g., Lombardi v Metropolitan Life Insurance Co, 271 Mich 265; 260 NW 160 (1935) (group disability plan; two-year limitation); Bashans v Metro Mutual Insurance Co, 369 Mich 141; 119 NW2d 622 (1963) (accidental injury and illness; two-year limitation); Dahrooge v Rochester German Insurance Co, 177 Mich 442; 143 NW 608 (1913) (standard fire insurance policy; one-year limitation); Betteys v Aetna Life Insurance Co, 222 Mich 626; 193 NW 197 (1923) (disability or death indemnity policy; one-year limitation); Harris v Phoenix Accident & Sick Benefit Ass’n, 149 Mich 285; 112 NW 935 (1907) (accident and sick benefit policy; six-month limitation).
The Uniform Commercial Code, art 2, 8 2-725(1) provides that the four-year limitation period contained in the Code for breach of contract actions arising out of the sale of goods may be reduced by agreement of the parties, but may not be reduced to less than one year from the date of accrual of the cause of action. The Alaska Court expressed its agreement with Professor Corbin that this was a sound provision and should apply to contracts other than contracts for sale of goods.
“Our holding in this case is supported by an important practical consideration. In insurance loss cases, adequate preparation of a proof of loss requires a substantial amount of time. Even after submitting his proof, a claimant typically must wait for 60 days before filing suit. The standard policy provision affords insurance companies that 60-day period within which to accept the proof of loss. Were we to read 'inception of the loss’ as meaning the date of the fire, the operational effect of that decision would he to reduce the limitation period to considerably less than one year from the date the cause of action accrued.” Fireman’s Fund Insurance Co v Sand Lake Lounge, Inc, supra, 227.
The Court noted that under Erie R Co v Tompkins, 304 US 64; 58 S Ct 817; 82 L Ed 1188 (1938), it was bound to follow Nevada law. Since the Nevada courts had not decided the question, the Federal court anticipated how a Nevada court would have decided it. Westchester Fire Insurance Co v Sperling, 421 F2d 141, 142 (CA 9, 1970).
"3. Notice of Loss: The Insured shall as soon as practicable report in writing to the Company or its agent every loss, damage or occurrence which may give rise to a claim under this policy and shall also file with the Company or its agent within ninety (90) days from date of discovery of such loss, damage or occurrence, a detailed sworn proof of loss.
"16. Settlement of Loss: All adjusted claims shall be paid or made good to the Insured within sixty (60) days after presentation and acceptance of satisfactory proof of interest and loss at the office of the Company.”
The policy in the Peloso case was a standard fire insurance policy prescribed by New Jersey statute. (The terms of the standard fire insurance policy in Michigan are likewise prescribed by statute, MCLA 500.2832; MSA 24.12832.)
Whether construing statutes or contracts, courts look to the language used and the context for the purpose sought to be achieved. In interpreting a statute, a court is guided by legislative intent; in construing a contract, it looks for the intent of the parties. Courts are not less constrained in construing statutory terms than they are in construing terms agreed to by contracting parties.
While Thomas, unlike the plaintiff in Peloso, was not expressly precluded from bringing suit before expiration of the 60-day "settlement of loss” period, the contract of insurance between Thomas and Reliance provides: "This policy is made and accepted subject to all the conditions which are hereby specifically referred to and made a part of this policy * * * .” Although by its terms the policy did not make the "proof of loss” and "settlement of loss” terms conditions precedent to bringing suit, it would have been violative of the policy to commence suit before complying with these conditions. Reliance cannot be heard to say that Thomas had a full 12 months because he might have ignored the provisions of the policy and commenced an action immediately after the loss without trying to settle his claim.
We appreciate that this Court has previously rejected the contention that a limitation "12 months next after the fire” does not begin to run until after the insured has completed all the steps in the claim procedure (Dahrooge v Rochester German Insurance Co, supra, p 448) and that policyholder efforts to enlarge a limitation period prescribed in an insurance policy have been analyzed in terms of waiver and estoppel (see 14 Callaghan’s Michigan Civil' Jurisprudence, § 473). Waiver and estoppel analysis results in considerable uncertainty concerning the "resaonableness” of the time remaining for suit. Tierney, Contracts, 1971 Annual Survey of Michigan Law, 18 Wayne L R 265, 297-299 (1972). Arguably, if the insurer is estopped from asserting the limitation or is found to have waived it, there is no set time other than the general statutes of limitations within which an action may be commenced.
We find no Michigan case considering the analysis we adopt, reconciling the contractual terms to find that the limitation specified in the policy begins running at the date of loss or its discovery but is tolled until denial of liability by the insurer. A point "neither considered by the Court nor discussed” is not decided. Bostrom v Jennings, 326 Mich 146, 156-157; 40 NW2d 97 (1949). | [
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Per Curiam.
The appeals of Herbert Van Smith, Jr., and Charles Haines present the question of what the trial judge must do when defense counsel merely requests that he instruct on "the lesser included offense”.
Smith was convicted of unarmed robbery. His attorney said, "I am asking the court to charge the lesser included offenses”, without telling the judge what offenses he wished the jury instructed upon. The trial judge instructed the jury on only two possible verdicts, guilty as charged or not guilty. Smith now argues that the trial judge should have instructed on larceny from the person.
Haines was convicted of armed robbery. His attorney said, "We are requesting that the included offenses, that they be given”, also without further elaboration. Haines now argues that the trial judge erred in not presenting unarmed robbery for the jury’s consideration.
A trial judge must sua sponte instruct on the lesser included offense of second-degree murder in a first-degree murder prosecution. People v Jenkins, 395 Mich 440, 442; 236 NW2d 503 (1975). In other prosecutions, the failure to instruct on lesser included offenses is not reversible error "absent requests for such instructions before the jury retires to consider its verdict”. People v Henry, 395 Mich 367, 374; 236 NW2d 489 (1975). The issue is not preserved, however, by a general request for an instruction on the "lesser included offenses”. We have recognized that the trial judge must rely on requests from counsel in carrying out his responsibility to instruct the jury. Henry, supra. He must receive more assistance from counsel than a mere request for an instruction on lesser included offenses to make his failure to so instruct reversible error.
Defendants did not sufficiently preserve the issue. In lieu of leave to appeal, pursuant to GCR 1963, 853.2(4), we therefore affirm the judgments of the Court of Appeals.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, and Lindemer, JJ., concurred.
Ryan, J., took no part in the decision of this case.
In a case we held in abeyance for Jenkins, supra, however, defendant was charged with first-degree murder and his counsel requested instruction on "the lesser offenses”. We concluded that this was sufficient to require an instruction on second-degree murder and entered an order reducing the degree of the conviction to second-degree while reserving to the prosecutor, as in Jenkins, a right to move before resentencing for a new trial on first-degree murder. People v Aaron, 396 Mich 843 (1976).
See, e.g., People v Ora Jones, 395 Mich 379, 393; 236 NW2d 461 (1975): "Had the judge not instructed at all on manslaughter, there' would be no reversible error, because no request for instruction on manslaughter was made.” (Emphasis added.)
In People v Lovett, 396 Mich 101; 238 NW2d 44 (1976), for example, we reversed the defendant’s conviction where defense counsel specifically requested an instruction on the lesser included offense of attempted armed robbery, and the request was denied. | [
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The petition of the State Bar Grievance Administrator to vacate the stay of proceedings entered in this cause by order of July 26, 1974, is considered and the same is hereby granted. Now, it is therefore ordered, that this Court’s order of July 26, 1974 granting the motion by respondent for a stay pending appeal is hereby vacated. | [
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Per Curiam.
The defendant was charged on a three-count indictment with rape, MCLA 750.520; MSA 28.788, assault with intent to commit rape, MCLA 750.85; MSA 28.280, and gross indecency, MCLA 750.338b; MSA 28.570(2). He was jury-convicted of rape and gross indecency.
An examination of the record discloses that no written requests for instructions were made. The court instructed the jury, following which a recess was declared. During the recess the court conferred with counsel for the purpose of recording objections to the instructions. Only one objection was made by counsel for the defendant, and that one was not pertinent to any issue which caused the Court of Appeals to reverse the defendant’s convictions. After the jury had deliberated for approximately two hours it returned to the court with questions and received supplemental instructions from the court. In giving the supplemental instructions, the court properly used a blackboard and, as indicated by the transcript,
"The record will reflect that printed upon the blackboard, so that in the event that anyone chooses to review the conduct of this Court, printed upon the blackboard and used by the Court in the course of its instructions are the following words: On the left-hand side, count one, rape. Underneath that, number one, guilty of rape. Two, assault with intent to rape. Three, assault and battery. Four, simple assault. Five, not guilty. The first four items are lined out and were lined out as the Court passed over them in instructing the jury in their deliberations.”
Counsel were present and made no objections to the supplemental instructions.
An examination of the transcript and of the instructions in their entirety indicates that there were no unusual circumstances and no manifest and serious errors on the basis of which appellate intervention absent preservation of error could be predicated. People v Dorrikas, 354 Mich 303; 92 NW2d 305 (1958).
The Court of Appeals is reversed and defendant’s convictions are reinstated.
Williams, Levin, Coleman, Fitzgerald, Lindemer and Ryan, JJ., concurred. | [
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Rehearing denied. Reported at 396 Mich 1. | [
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] |
Per Curiam.
On December 4, 1973, defendant pled guilty in Kalamazoo Circuit Court to a charge of breaking and entering a business place with intent to commit larceny. The plea record includes the following colloquy:
"The Court: Are there any — Mr. McWhorter [defense counsel] and Mr. Silaski [assistant prosecutor] — are there any agreements between you two affecting other cases in this county or any other agreement?
"Mr. McWhorter: Your Honor, the inducement for this plea is an agreement between myself and the Kent County Prosecutor’s Office wherein those charges that are now presently pending in Kent County will be dismissed and that Mr. Brooks, for the dismissal of those charges, would enter a plea of guilty to this charge in this county. They have indicated that they will not dismiss those charges today, but will do so at the time of sentence here or before sentence here, so the basis for this plea, so that it is on the record, is our agreement with Kent County. The Kalamazoo Prosecuting Attorney’s Office did not enter into any agreement in this matter. They did confer, at my request, with the Kent County Prosecutor on the telephone when we were interrupted during the trial.
"Mr. Silaski: Your Honor, I spoke to an assistant prosecuting attorney from the prosecutor’s office and informed him of the nature of this charge and what the maximum penalty was.
"The Court: Did he indicate to you, as Mr. Mc-Whorter said, what disposition would be made, or didn’t he indicate that?
"Mr. McWhorter: I don’t think he did.
"Mr. Silaski: He just told me what the charges were pending in Kent County and we went no further.
"Mr. McWhorter: It was Heckman, was his last name. I can’t think of his first name.
"The Court: You are satisfied, Mr. McWhorter, that they will keep their word up there?
"Mr. McWhorter: I have no reason not to believe that they won’t keep their word.
"The Court: All right, knowing all that, Mr. Brooks, do you still want to plead guilty?
"Defendant: Yes, sir.”
The Kent County Prosecutor did not dismiss the charges pending in Kent County. On February 12, 1974, defendant filed a motion to withdraw his plea because "the Kent County Prosecutor’s office withdrew [from] their agreement and [has] continued with the prosecution against this Defendant.” Defendant alleged that his plea had been induced by a promise which had gone unfulfilled. A jury trial in Kent County in March, 1974, resulted in defendant’s conviction of possession of burglary tools and carrying a concealed weapon. In an opinion of May 6, 1974, the Kalamazoo circuit judge denied defendant’s motion to withdraw his guilty plea:
"This court has no power to make the Prosecutor of Kent County live up to any agreement which it can be proven was made between defense counsel in this case and the Kent County Prosecutor’s Office. The enforcement of such an agreement, if there was one, would have to be in Kent County.”
Thereafter, defendant was sentenced to imprisonment for six to ten years. Defendant’s subsequent appeal was among the 114 taken from the Court of Appeals by this Court. 394 Mich 776 (1975). In pleadings filed after our decision in the Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975), both the prosecutor and defense counsel ask us to decide whether the circuit judge erred in denying the motion to withdraw. We conclude that he did.
In re Valle, 364 Mich 471; 110 NW2d 673 (1961), involved a defendant who alleged his guilty plea was induced by the prosecutor’s promise as to his sentence, stated on the record at the plea proceeding by defendant’s attorney. The prosecutor later denied any promise was made. We vacated defendant’s conviction:
"If the evidence establishes that the prosecutor or the judge has made a statement which fairly interpreted by the defendant (in our case of foreign extraction and with only an eighth-grade education, presumably in court for the first time) is a promise of leniency, and the assurance is unfulfilled, the plea may be withdrawn and the case proceed to trial.” 364 Mich 471, 477-478.
In Santobello v New York, 404 US 257; 92 S Ct 495; 30 L Ed 2d 427 (1971), one prosecutor promised he would make no recommendation as to sentence if defendant pled guilty, but a second prosecutor recommended the maximum one-year sentence. The United States Supreme Court said:
"[A] constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled”. 404 US 257, 262.
The Court remanded to the New York state court to determine whether specific performance of the plea agreement or withdrawal of the guilty plea was required. Similarly in the Guilty Plea Cases, we said:
"If the judge determines that the plea agreement was not fulfilled, he shall, in his discretion, either amend the judgment of conviction (if the plea agreement can yet be fulfilled by such an amendment) or permit the defendant to withdraw his plea of guilty and vacate the judgment of conviction.” 395 Mich 96, 127.
Like the promise of Valle, the representation of defense counsel as to a promise by the Kent County Prosecutor could well be interpreted as a promise of leniency; when it went unfulfilled, defendant’s request to withdraw the plea should have been granted. The circuit judge was unable to grant specific performance, as he recognized, but that is not the relief defendant requested. In People v Grochowski, 28 Mich App 558; 184 NW2d 574 (1970), defendant had pled guilty in Oakland County in return for a promised nolle prosequi in Recorder’s Court. When that promise went unfulfilled, the Court of Appeals said the failure to fulfill the bargain "has been remedied by an order for new trial entered in [Oakland circuit] court”. 28 Mich App 558, 559. That is the remedy approved in Valle and that is what the circuit judge should have done in this case.
The judgment of the circuit court is reversed and the cause remanded for further proceedings.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Lindemer, and Ryan, JJ., concurred. | [
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Levin, J.
George T. Ryan was a candidate for the office of Judge of Recorder’s Court for the City of Detroit in the November, 1972 election. Seven persons were to be elected. The original vote and recount vote for the persons who finished in the fifth through eighth positions were:
Original Vote Recount Vote
Susan Borman 110,753 110,701
James Del Rio 110,586 110,495
Clarence Laster 110,520 110,427
George T. Ryan 110,237 110,289
Ryan asked for a recount of 192 of the 1185 election precincts — 106 voting machine precincts, 86 absentee voter precincts. The Wayne County Board of Canvassers refused to recount 16 absen tee voter precincts. The circuit court sustained the ruling of the board because neither the ballot bag nor the ballot box was sealed with a seal of record. The Court of Appeals reversed, declaring:
"While the statute does clearly require that the ballot boxes be sealed with the seal of record, the statute requires only that the ballot bags be 'secured and sealed so that no ballots may be removed or inserted’. Therefore the absence of the recordation of the bag seal numbers does not in and of itself render a bag improperly sealed within the provisions of the statute.”
We reverse the Court of Appeals and order dismissal of the complaint. A seal which is not of record provides no assurance that ballots have not been removed from or inserted in a ballot bag.
I
Section 871(1) of the Michigan Election Law limits the recountability of ballots to situations where there is sufficient assurance that the vote has not been altered between the original count and the recount. If either (i) the ballot bag is "secured and sealed so that no ballots may be removed or inserted” and the number of ballots in the bag "correspond in number with the poll list” or (ii) the ballot box is "securely sealed with the seal of record”, the ballots are recountable. If neither (i) nor (ii) obtains, "the ballots may not be recounted and the original count of such ballots as reported by the board of inspectors shall stand as the correct count”.
We agree with the Court of Appeals that the phrase "may not be recounted” means shall not be recounted.
Noncompliance with statutory requirements concerning recounts precludes a recount. "The proceedings for a recount are purely statutory, and the statutory requirements must be observed.” Wheeler v Coleman, 176 Mich 285, 288; 142 NW 570 (1913). "The evident purpose of the precautions prescribed in the statute is to preserve the integrity of the ballots, so that, if necessary to resort to a recount thereof, it may be done with the assurance of having the ballots present the identical verity they bore when cast.” Smith v Board of Canvassers of Saginaw County, 220 Mich 318, 320; 189 NW 856 (1922).
Here neither the ballot box nor the ballot bag was sealed with a seal of record. While § 871(1) does not in terms require that a ballot bag be secured and sealed with a metal seal or that the seal number be recorded, it does require that ballot bags be "secured and sealed so that no ballots may be removed or inserted”. These ballot bags were sealed with a metal seal, the number of which was not recorded in the poll book. Such a seal does not preclude the removal or insertion of ballots or tampering with ballots, e.g., adding a vote.* ** A large number of seals are distributed at election time. It is not required that seal numbers be recorded until used. A person intent on fraud who had access to metal seals could cut a seal attached by election officials and replace it with another seal after he had changed the vote. Indeed, a seal not of record provides no evidence that a seal was ever used — the only seal may have been attached by a dishonest person after he tampered with the ballots.
It is not suggested that these ballot bags were by some adequate means — other than the use of a metal seal not of record — "secured and sealed so that no ballots may be removed or inserted”.
Since at least 1968, shortly after the 1965 enact .ment of §871(1) in its present form, the Board of State Canvassers and Elections Bureau has determined recountability of a precinct by ascertaining first whether the ballot box or the ballot bag is sealed with a seal of record, Le., a "standard metal 'one-time’ seal which is destroyed upon opening after fastening, issued by the Secretary of State, the number of which was recorded in the poll book”. If both box and bag are so sealed, the precinct is recountable; if neither is so sealed, it is not; and if only one is so sealed, it is recountable if the number of ballots agrees with the number of voters shown by the poll book. This construction of § 871(1) is in accord with the language of the section and implements the legislative purpose of permitting recounts where there is assurance that the ballots have not been altered after the original count.
We appreciate, as urged by Ryan, that this construction enables election workers to preclude a recount by designedly omitting to comply with preconditions to a recount. The Legislature has evidently decided, however, that the need to guard against alteration of the vote between the original count and a recount outweighs the risk that the original count was erroneous and a recount will be circumvented by election workers. "[MJandatory provisions must be given full effect even though it results in disfranchisement of voters or prevention of recount.” Groesbeck v Board of State Canvassers, 251 Mich 286, 291; 232 NW 387 (1930).
The Court of Appeals is reversed and the complaint is dismissed.
Kavanagh, C. J., and Williams, Coleman, and Fitzgerald, JJ., concurred with Levin, J.
Lindemer and Ryan, JJ., took no part in the decision of this case.
Ryan v Wayne County Board of Canvassers, 53 Mich App 26, 33; 218 NW2d 424 (1974).
The election was November 7, 1972. A consent order was entered November 13, 1972 by the circuit court directing the Police Department of the City of Detroit to impound, seal and secure all absentee ballots. Ryan contends that under these circumstances there could have been no tampering with the ballots.
We note that the ballots were not delivered to the custody of the police department until six days after the election. Additionally, this Court in Wheeler v Coleman, 176 Mich 285, 288; 142 NW 570 (1913), stated that even though "the evidence tends to negative any fraud or wrongdoing”, noncompliance with statutory requirements concerning recounts precludes a recount.
"Sec. 871. (1) Upon a recount before any board of canvassers, ballots in packages or ballot bags, secured and sealed so that no ballots may be removed or inserted only if they correspond in number with the poll list delivered to the proper clerk, by the board of inspectors, shall be counted even though the ballot box is not securely sealed with the seal of record. If, upon a recount before any board of canvassers, it shall be found that the ballot box is securely sealed with the seal of record, the ballots only if they correspond in number with the poll list delivered to the proper clerk by the board of inspectors, shall be recounted even though the ballots are not secured and sealed in packages or ballot bags. If, upon a recount before any board of canvassers, it is found that the ballot box is not securely sealed or if the seal thereon is not the seal of record and that the ballots in packages or ballot bags are not secured and sealed so that no ballots may be removed or inserted, the ballots may not be recounted and the original count of such ballots as reported by the board of inspectors shall stand as the correct count.” MCLA 168.871; MSA 6.1871.
"Plaintiffs’ assertion that the use of the phrase 'may not be recounted’ is permissive and thus allows the board of canvassers to exercise its discretion in whether to recount is without merit. While the Legislature used the verb 'may not be recounted’ it is clear that the intent was that the ballots shall not be recounted under the circumstances. Any other construction would be inconsistent with the overall intent of this section, which is to insure the purity of the results of the recount.” Ryan v Wayne County Board of Canvassers, supra, p 30, fn 2.
On recount, an added vote would be counted if less than the number to be elected had been voted for; if the number to be elected had been voted for, the added vote would invalidate all votes cast for the office.
"The numbers on all metal seals used to seal all voting machines, ballot boxes and ballot bags at the completion of the precinct canvass shall be recorded on the certificate provided in the poll book and this certificate shall be signed by all members of the board of inspectors.” MCLA 168.735; MSA 6.1735.
This description is quoted from the brief of the Attorney General as amicus curiae in support of the judgment of the circuit court.
If both box and bag are so sealed and the number of ballots do not agree, excess ballots are required to be withdrawn pursuant to procedures prescribed by the Board of State Canvassers. See 1963 AACS, R 168.921, p 2778. | [
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] |
Rehearing denied. Reported at 396 Mich 67.
Ryan, J., not participating. | [
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Reported below: 52 Mich App 229. | [
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Per Curiam.
On February 9, 1972, plaintiff-appellee filed a complaint against Wayne County for an injunction restraining the county from paying salaries of the recorder’s court judges. The City of Detroit was added as a party defendant and judges of the recorder’s court intervened as defendants. Wayne Circuit Judge Blair Moody, Jr., rendered summary judgment for defendants. The Court of Appeals reversed the summary judgment in an opinion by two members of a three-judge panel (the third not participating by reason of illness) finding summary judgment for plaintiff Wayne County was enjoined from assessment for payment of salaries of recorder’s court judiciary. Defendants-appellants, judges of the recorder’s court, appealed. This Court granted leave to appeal and entered an order staying the Court of Appeals order. We reverse the Court of Appeals and reinstate the trial court’s order of summary judgment in favor of defendants, judges of the recorder’s court and the City of Detroit.
Issue
Was the municipal courts of record act, 1919 PA 369, providing for county supplementation of salary for recorder’s court judges, adopted in violation of Const 1908, art 5, § 30?
I
In 1824 criminal jurisdiction in the City of Detroit was in the mayor’s court for ordinance viola tions, in the justice of the peace court for state misdemeanors and preliminary examinations and in the Wayne Circuit Court for all other state law offenses. 2 Territorial Laws, p 226. 1850 PA 301 established the police court to take over jurisdiction of the former justice of the peace court. The police justice and clerk of police court were, by court order, paid by the county, as were justices of the peace. People, ex rel Schmittdiel v Wayne County Board of Auditors, 13 Mich 233 (1865).
Recorder’s court was created in 1857 by 1857 PA 55 as a Detroit municipal court. It was given jurisdiction of the former mayor’s court for Detroit ordinance violations. It also was given jurisdiction formerly held by Wayne County Circuit Court over state-law offenses committed in Detroit, except for those still triable in police court (state misdemeanors). The one judge of recorder’s court was paid by the state, and the clerk was paid by Detroit. Detroit and Wayne County shared costs of prosecution in recorder’s court, with the county paying costs of state law cases and boarding of those prisoners and Detroit paying costs of ordinance cases and boarding of those prisoners. Juries were paid by the county.
1883 LA 326 , in Ch XII, § 6, provided that the recorder was to be paid by the state and Detroit. This 1883 act encompassed all provisions governing recorder’s court. It was amended by 1893 LA 408.
1919 PA 369 , among other provisions, changed recorder’s court by abolishing police court, thus giving recorder’s court jurisdiction over all state offenses committed in Detroit.
The instant case concerns provisions for recorder’s court found in the 1883 (as amended by 1893 LA 408) and 1919 acts.
Section 6 of 1893 LA 408 provides:
"Each of said judges shall receive from the treasury of the State of Michigan the same annual salary as may be payable to circuit judges. They shall also each receive from the treasury of the city of Detroit such additional salary as shall be sufficient, with the sum so received from the State, to make the salary of each of said judges five thousand dollars.”
However, § 13 of 1919 PA 369 provides:
"Each judge of said court, including the presiding judge, shall receive an annual salary from the county in which said court is located in the same amount as that paid by the State to circuit judges * * * .”
Section 7 of 1919 PA 369 required referendum approval by Detroit before the act would take effect. Approval was voted by Detroit.
Plaintiff and Wayne County argue that the 1919 act was never validly adopted, therefore, the 1883 act as amended controls on salaries of recorder’s court judges and Wayne County is not responsible for those salaries. They contend the 1919 act is a local act requiring a referendum under Const 1908, art 5, § 30, which provides:
"The Legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act, excepting acts repealing local or special acts in effect January one, nineteen hundred nine and receiving a two-thirds vote of the Legislature shall take effect until approved by a majority of the electors voting thereon in the district to be affected.”
Plaintiff and Wayne County argue that the district affected by § 13 of 1919 PA 369 was Wayne County, not the City of Detroit, because the burden of recorder’s court salaries was shifted from the state to Wayne County. Because Wayne County did not approve by referendum, the 1919 act was not validly adopted.
Judges of the recorder’s court argue that recorder’s court performs a state function and § 13 of 1919 PA 369 provides a fair way of apportioning public expenses. The Legislature has authority to require the county to pay under § 13.
The City of Detroit argues that establishment and funding of a municipal court is a state legislative function under Const 1850, art 6, § 1 and not subject to local control. Moreover, this state legislative function is not affected by Const 1908, art 5, §30.
Other arguments made by the parties are not necessary to resolution of this case.
Wayne Circuit Judge Moody held that recorder’s court performs a state, not local, function and it is reasonable for the Legislature to charge the county for part of the salaries of the recorder’s court judges. The 1919 act was partly a local act and partly a general state funding act. The general funding section did not require referendum approval under Const 1908, art 5, § 30.
The Court of Appeals reversed, holding that 1919 PA 369 was a local act requiring referendum approval by Wayne County. The Court of Appeals held the entire act invalidly adopted.
II
In Attorney General, ex rel Cotter v Lindsay, 221 Mich 533; 191 NW 826 (1923), 1921 PA 364 was challenged. It amended 1919 PA 369, but contained no referendum approval provision (as did the 1919 act). The 1921 act was challenged under Const 1908, art 5, § 30, the local act section.
The Court held that the 1921 act (amending the 1919 act) was a local act. Therefore, it was unconstitutional because of lack of compliance with the referendum requirement. The Court’s reasoning worked in two steps: (1) The 1919 act is a local act because it amended local acts, its object as expressed in its title indicates a local act, the entirety of the act indicates a local act and the § 7 referendum requirement indicates a local act; and (2) Since the 1921 act amended the 1919 act which is a local act, the 1921 act is a local act requiring referendum approval under the 1908 Constitution.
As the Court of Appeals noted, the Lindsay Court conceded validity of the 1919 act. This would seemingly end the instant litigation in favor of the judges, and the parties have so argued. However, the Court of Appeals did not find that this foreclosed the present challenge to the 1919 act because its constitutionality was not squarely before the Lindsay Court. Rather, focus was on the 1921 act.
Similarly, the question of whether the funding section of the 1919 act is a local act has never been squarely presented to this Court. It is true that the Lindsay Court generally characterized the 1919 act as a local act. However, the funding section is a unique section of the act and it has not been the point of discussion. Therefore, Lindsay does not control the instant case.
In Common Council of Detroit v Engel, 202 Mich 536; 168 NW 462 (1918), the Court held unconstitutional an act containing no referendum provision. The challenged act, 1915 LA 322, amended 1842 and 1869 laws governing Detroit public schools. The 1915 amendment increased the interest on bonds.
The Court classified the 1915 amendment as a local act, requiring a referendum under Const 1908, art 5, § 30.
The Court rejected the argument that the act was not local because it was concerned with education. The fact that it pertained only to Detroit made the act local. The subject of education did not place the Legislature above and beyond constitutional limitations (Const 1908, art 5, § 30).
In discussing the relation between Const 1908, art 5, § 30 and the Legislature’s authority to legislate on education, the Court said:
"It cannot in reason be otherwise than that all powers of the legislature, whatever they may be, are, under and by virtue of the Constitution, subject to general constitutional mandates and limitations imposed on legislation without reservation.” (p 543.)
Engel raises a serious question, i.e., is the subject of judicial funding above and beyond constitutional limitations? Engel is more "on point” in declaring that a subject of general legislation is not exempted from the local act referendum requirement where the challenged statute pertains to a particular location. However, several cases have held the local act designation inappropriate even in those circumstances.
In Attorney General, ex rel Eaves v State Bridge Commission, 277 Mich 373; 269 NW 388 (1936), the challenged statute created a commission to build and operate a bridge at Port Huron. No referendum was provided and the statute was challenged as unconstitutional because it was a local act. The Court held the statute to be a general act because all the state was affected by the bridge. "Its only so-called local characteristic is that its American approach is at Port Huron.” (p 378.)
In City of Ecorse v Peoples Community Hospital Authority, 336 Mich 490; 58 NW2d 159 (1953), the Court rejected a similar constitutional challenge of a statute allowing the creation of authorities to develop hospitals. The statute was held not local:
"We have here a matter of health, which is a question of Statewide concern and in which the legislature has a large area of discretion. The defendant authority is a State agency and, as such, is not a municipal corporation or a body created by the municipalities here involved but by the State itself. See the Huron-Clinton Case, supra [300 Mich 1; 1 NW2d 430 (1942)]. The legislation in question, not being local in nature, does not require the vote of the local electors for its approval under article 5, § 30, Constitution 1908.” (pp 502-503.)
In W A Foote Memorial Hospital, Inc v City of Jackson Hospital Authority, 390 Mich 193; 211 NW2d 649 (1973), the Court upheld a statute allowing creation of local authorities for the construction of hospitals. The Court relied on Peoples Community Hospital, finding that the statute was not a local act because health is a state concern. Therefore, no referendum was required under the Constitution.
W A Foote, Peoples Community Hospital and State Bridge Commission indicate that Engel is not the sole authority on exempting a general subject of legislation from the local act referendum requirement where the challenged statute pertains to a particular location. More importantly, funding of the judiciary is a unique situation presenting overriding state concerns. Engel does not apply in the instant case.
In People, ex rel Schmittdiel v Board of Auditors of Wayne County, 13 Mich 233 (1865), an 1863 law empowered Detroit Common Council to appoint a clerk for the police court and set the salary. The salary was to be paid by the county (as was the salary of justice of police court). The county refused to pay because it claimed, under statute, the right to set the salary for services rendered for the county. So, the question was whether services rendered by the clerk of the police court were services rendered for Wayne County. The Court, Justice Campbell writing, held that the county had no right to set the clerk’s salary:
"The office of the police court is to perform, within the city of Detroit, the duties performed by justices of the peace in townships, in the examination and trial of offenders against the criminal laws of the state, the police justice and the clerk sharing between them the duties elsewhere performed by justices alone. They are in no sense county officers; they are rather city officials, so far as place is concerned. Their duties relate entirely to the enforcement of criminal law, against offenders charged with violating the peace and dignity of the state, whose offenses are committed in Detroit. The only circumstances which connect these officers with the county, are the facts that offenses are tried in counties and that the officers are paid by the counties. But otherwise, the counties are no more directly affected than the state at large. They have no control over the appointment or conduct of justices, nor over the prosecutions themselves, which are all conducted in obedience to state laws, and in which the county, as a public body, has no voice whatever.
"Upon examination of our state policy, before and since the adoption of the new constitution, it will be found that many charges have been laid on counties, as such, where no beneñt accrued to them in their corporate capacity, but where it was, doubtless, deemed a fair way of apportioning the public expenses. It would be difficult to perceive what advantage a county derives from the civil proceedings between parties in the courts of justice, or why, if there be any advantage, the services of the judge, as well as of jurors and witnesses should not be deemed services rendered for the counties where they respectively sit. It is an advantage to have justice accessible to all, and to have evil-doers punished, but acts which do not affect the interests and security of the public at large have not usually been classed as crimes (although the distinctions are somewhat arbitrary), and the advantages in all these cases result to the community generally.” (Emphasis added.) (pp 234-235.)
Therefore, Wayne County was required to pay the salary of a Detroit police court clerk whose duties related to trying state offenses committed in Detroit. The rationale was that this system was "deemed a fair way of apportioning the public expenses”.
In Robison v Wayne Circuit Judges, 151 Mich 315; 115 NW 682 (1908), the Court upheld a statute creating a juvenile court in the city of Detroit. One objection to the statute was that "[w]hile the juvenile court for which the act provides is limited in its jurisdiction to children of the city of Detroit, the expense of the establishment and maintenance of the court is imposed in part upon the city of Detroit and in part upon the County of Wayne”. The Court was not sympathetic:
"The care of juvenile delinquents might well be and often is committed to the county rather than the city authorities. Their care and trial is the subject of police regulation, and cannot be said to be of the private concern of one municipality rather than another.” (p 321.)
The Court cited Schmittdiel in support.
The Court in Murtha v Lindsay, 187 Mich 79; 153 NW 245 (1915), held that a state legislator could not simultaneously hold the office of recorder’s court judge under a statute forbidding a legislator from holding any civil appointment under state authority. On pp 81-82, the Court commented on recorder’s court:
"It is exercised by the person inducted into the office of recorder, not as an incident to a local office held by him, nor as an imposition upon a local officer of the performance of State duties. The office is inseparable from the entire jurisdiction of the officer, a jurisdiction conferred by the legislature with the sanction of the Constitution in force when jurisdiction was established. It is by virtue of State authority alone that the office exists.
"The serious question, or part of the question, is: Does the person taking the office do so by virtue of 'any other State authority,’ within the meaning of the Constitution? In a sense, all justices of the peace, constables, and judges of courts of record are appointed — hold office — by virtue of State authority. The recorder’s court is, when exercising jurisdiction to try persons accused of crimes, under the general laws of the State, a State court; its judges exercising the powers of a circuit judge.” (Emphasis added.)
In Civil Service Commission v Engel, 187 Mich 83; 153 NW 358 (1915), the City of Detroit Civil Service Commission challenged the right of recorder’s court to appoint a clerk without commission approval. The commission argued that recorder’s court was a "municipal department” and covered by the commission. The Court held that the commission had no authority over recorder’s court:
"The recorder’s court is a court established by the legislature, although its creation is evidenced by the charter of the city, which is a local law. It is a court of record, with jurisdiction to try persons accused of crimes committed within the city. The execution of the criminal laws of the State is a matter of State concern, and in this respect the court possesses a jurisdiction which the electors of the city cannot confer. Power to amend the charter the electors have, but not power to interfere with the jurisdiction of this court, in so far as it relates to matters of State concern. It follows, logically, that the electors may not, by amendment of the charter, interfere with the incidental powers possessed by the recorder in exercising the jurisdiction which the court possesses, such as the appointment of necessary clerks of the court. ’’(Emphasis added.) (pp 87-88.)
In People v De Meaux, 194 Mich 18; 160 NW 634 (1916), the Court rejected the claim of a criminal defendant that the statute authorizing a judge from one district to substitute for a judge in another district was unconstitutional. Defendant claimed the statute violated the principle that the citizens of a district have a right to elect the judicial officer who holds court in their district. The Court noted:
"The office of justice of the peace is a part of the judicial system of this State, and in the exercise of the important functions of this office the persons filling it cannot be said to be performing duties local in character, but must rather be said to be performing duties in behalf of the entire State.
"Chief Justice Campbell, in the case of People v Goodwin, 22 Mich 496, at page 499, said:
" 'The judicial department of every civilized government is one of the three co-ordinate parts of the sovereignty which acts for the State in expounding the laws and enactments in which the other departments have acted for the people as legislators and the approvers of legislation. It represents only the law by which the people have, by their proper agents, bound themselves. It cannot, therefore, in any of its duties, be said to serve any county, or circuit, or district. Its services are all performed on behalf of the State, as the sovereignty from which all the law emanates. We held in the case of People, ex rel Schmittdiel, v Board of Auditors of Wayne County, 13 Mich 233, that services in the administration of justice were in no proper sense local services. ’ ” (Emphasis added.) (pp 23-24.)
Recorder’s court is a state court performing a state function, not a local function. Funding of the state judicial system is a legislative function. And, as noted in Schmittdiel and Robison, it is not unusual to charge the counties for these services as a fair way of apportioning public expenses. Because recorder’s court is a state function, the Legislature has authority to determine its funding. Therefore, § 13 of 1919 PA 369 is not a local act under Const 1908, art 5, § 30. A referendum is not constitutionally required, although the 1919 act did provide for referendum approval by the City of Detroit.
Moreover, as noted by the trial court and City of Detroit, it is reasonable for the Legislature to charge the county for part of recorder’s court judge’s salaries because recorder’s court absorbs part of the Wayne Circuit Court load. The City of Detroit notes that its share of the 1975-1976 budget for recorder’s court is in excess of $9,000,-000 while the county pays approximately $600,000 towards judicial salaries.
Ill
Further support for classifying 1919 PA 369 as a general act may be found in the 1908 Constitution.
Const 1908, art 5, § 30 provides that the "Legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question”. If recorder’s court requires a local act, a general act cannot be used.
However, Const 1908, art 7, § 1, gives the Legislature the right to establish "such other courts of civil and criminal jurisdiction, inferior to the supreme court * * * , by a two-thirds vote of the members elected to each house”. Thus, the Legislature has authority to pass a general act establishing recorder’s court.
Because the 1908 Constitution gave the Legislature the right, by general act, to establish courts (art 7, § 1), the intent of the 1908 Constitution was that the Legislature should be able to establish and modify recorder’s court without a local act referendum. Article 7, § 1 concerns a specific subject, the court system, while art 5, § 30 concerns a general subject, local acts. Therefore, art 7, § 1 prevails when dealing with the state judicial system. McDonald v Schnipke, 380 Mich 14; 155 NW2d 169 (1968).
Legislative revisions of recorder’s court are general acts. 1919 PA 369 providing for county supplementation of salary for recorder’s court judges does not violate Const 1908, art 5, § 30.
The Court of Appeals is reversed and the trial court’s summary judgment for defendants is reinstated.
No costs, this being a public question.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, and Lindemer, JJ., concurred.
Ryan, J., took no part in the decision of this case.
MCLA 726.1 et seq.; MSA 27.3551 et seq. (the recorder’s court act).
MCLA 725.1 et seq.; MSA 27.3941 et seq. (the municipal courts of record act).
MCLA 726.6; MSA 27.3556.
MCLA 725.13; MSA 27.3953.
MCLA 725.7; MSA 27.3947 provides in part:
"This act, or any amendment thereto, other than this section shall not become operative in any municipality of this state unless and until it is submitted to a vote of the qualified electors thereof and ratified by a majority of the electors voting thereon.”
See, also, People, ex rel Knox v Treasurer of Wayne, 40 Mich 62 (1879); People, ex rel Probate Judge v Board of Supervisors of Manistee County, 40 Mich 585 (1879); People, ex rel Covell v Treasurer of Kent County, 36 Mich 332 (1877); People, ex rel LeRoy v Hurlbut, 24 Mich 44 (1871) and People, ex rel Royce v Goodwin, 22 Mich 496 (1871).
“The rule to be followed when there is a conflict between general and specific provisions in the Constitution is as follows:
“ 'In such a case, if there is a conflict between a general and a special provision in a constitution, the special provision must prevail in respect of its subject matter, since it will be regarded as a limitation on the general grant, but the general provision will be left to control in cases where the special provision does not apply.’ 16 Am Jur 2d, Constitutional Law, § 69, p 247, and cases there cited.” McDonald v Schnipke, 380 Mich 14, 19; 155 NW2d 169 (1968).
If it were to be held otherwise, the result would be incongruous. Article 5, § 30 allowed the Legislature to repeal local acts in effect on January 1, 1909 by a 2/3 vote of the Legislature. If the 1919 act were held to be a local act, the Legislature would be able to repeal part of the state’s judicial system (recorder’s court), but it could not revise it unless local voters approved. | [
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] |
Defendant has requested appointment of counsel under Administrative Order No. 1975-9, 395 Mich xliii. The request, the Court of Appeals record and the trial court record have been considered, and the request is denied because the Court finds an inadequate basis for granting it. | [
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] |
Rehearing denied. Reported at 395 Mich 408. | [
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The petition for interim suspension is denied. The complaint for superintending control and motion for stay of proceedings are considered, and because it appears that the examination already has occurred, the same hereby are denied as moot.
Williams, J., not participating. | [
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Reported below: 61 Mich App 487. | [
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The request for the appointment of master, filed by the Judicial Tenure Commission pursuant to GCR 1963, 932.10(b), is considered, and the same is hereby granted. The Honorable William P. Ager, Washtenaw Circuit Judge, is hereby appointed as master for proceedings pursuant to GCR 1963, 932. | [
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Kavanagh, C. J.
Plaintiffs received a jury award of $200,000 for loss of anticipated profits in their proposed new business as a result of defendants’ breach of a lease. The Court of Appeals reversed. 52 Mich App 532; 218 NW2d 155 (1974). We reverse and reinstate the jury’s award.
Facts
On August 20, 1965 plaintiffs and agents of Fairborn-Village Plaza executed a ten-year lease for a "book and bottle” shop in defendants’ proposed shopping center. This lease provided for occupancy of a specific location at a rental of $1,000 minimum monthly rent plus 5% of annual receipts in excess of $240,000. A $1,000 deposit was paid by plaintiffs.
After this lease was executed, plaintiffs gave up approximately 600 square feet of their leased space so that it could be leased to another tenant. In exchange, it was agreed that liquor sales would be excluded from the percentage rent override provision of the lease.
Complications arose, including numerous work stoppages. Bank of the Commonwealth received a deed in lieu of foreclosure after default by Fair-born and Village Plaza. Schostak Brothers managed the property for the bank.
When the space was finally ready for occupancy, plaintiffs were refused the space for which they had contracted because the lease had been misplaced, and the space rented to other tenants. Alternative space was offered but refused by plaintiffs as unsuitable for their planned business venture.
Plaintiffs initiated suit in Wayne Circuit Court, alleging inter alia a claim for anticipated lost profits. The jury returned a verdict for plaintiffs against all defendants for $200,000.
The Court of Appeals reversed and remanded for new trial on the issue of damages only, holding that the trial court "erroneously permitted lost profits as the measure of damages for breach of the lease”. 52 Mich App 532, 542; 218 NW2d 155, 160.
In Jarrait v Peters, 145 Mich 29, 31-32; 108 NW 432 (1906), plaintiff was prevented from taking possession of the leased premises. The jury gave plaintiff a judgment which included damages for lost profits. This Court reversed:
"It is well settled upon authority that the measure of damages when a lessor fails to give possession of the leased premises is the difference between the actual rental value and the rent reserved. 1 Sedgwick on Damages (8th ed), § 185. Mr. Sedgwick says:
" 'If the business were a new one, since there could be no basis on which to estimate profits, the plaintiff must be content to recover according to the general rule.’
"The rule is different where the business of the lessee has been interrupted.
"The evidence admitted tending to show the prospective profits plaintiff might have made for the ensuing two years should therefore have been excluded under the objections made by defendant, and the jury should have been instructed that the plaintiff’s damages, if any, would be the difference between the actual rental value of the premises and the rent reserved in the lease.”
Six years later, in Isbell v Anderson Carriage Co, 170 Mich 304, 318; 136 NW 457 (1912), the Court wrote:
"It has sometimes been stated as a rule of law that prospective profits are so speculative and uncertain that they cannot be recognized in the measure of damages. This is not because they are profits, but because they are so often not susceptible of proof to a reasonable degree of certainty. Where the proof is available, prospective profits may be recovered, when proven, as other damages. But the jury cannot be asked to guess. They are to try the case upon evidence, not upon conjecture.”
These cases and others since should not be read as stating a rule of law which prevents every new business from recovering anticipated lost profits for breach of contract. The rule is merely an application of the doctrine that "[i]n order to be entitled to a verdict, or a judgment, for damages for breach of contract, the plaintiff must lay a basis for a reasonable estimate of the extent of his harm, measured in money”. 5 Corbin on Contracts, § 1020, p 124. The issue becomes one of sufficiency of proof. "The jury should not [be] allowed to speculate or guess upon this question of the amount of loss of profits”. Kezeli v River Rouge Lodge IOOF, 195 Mich 181, 188; 161 NW 838 (1917).
"Assuming, therefore, that profits prevented may be considered in measuring the damages, are profits to be divided into classes and kinds? Does the term 'speculative profits’ express one of these classes, differing in nature from nonspeculative profits? Do 'uncertain’ profits differ in kind from 'certain’ profits? The answer is assuredly, No. There is little that can be regarded as 'certain,’ especially with respect to what would have happened if the march of events had been other than it in fact has been. Neither court nor jury is required to attain 'certainty’ in awarding damages; and this is just as true with respect to 'value’ as with respect to 'profits’. Therefore, the term 'speculative and uncertain profits’ is not really a classification of profits, but is instead a characterization of the evidence that is introduced to prove that they would have been made if the defendant had not committed a breach of contract. The law requires that this evidence shall not be so meager or uncertain as to afford no reasonable basis for inference, leaving the damages to be determined by sympathy and feelings alone. The amount of evidence required and the degree of its strength as a basis of inference varies with circumstances.” 5 Corbin on Contracts, § 1022, pp 139-140.
The rule was succinctly stated in Shropshire v Adams, 40 Tex Civ App 339, 344; 89 SW 448, 450 (1905):
"Future profits as an element of damage are in no case excluded merely because they are profits but because they are uncertain. In any case when by reason of the nature of the situation they may be established with reasonable certainty they are allowed.”
It is from these principles that the "new business” /"interrupted business” distinction has arisen.
"If a business is one that has already been established a reasonable prediction can often be made as to its future on the basis of its past history. * * * If the business * * * has not had such a history as to make it possible to prove with reasonable accuracy what its profits have been in fact, the profits prevented are often but not necessarily too uncertain for recovery.” 5 Cor-bin on Contracts, § 1023, pp 147, 150-151.
Cf Jarrait v Peters, supra.
The Court of Appeals based its opinion reversing the jury’s award on two grounds: First, that a new business cannot recover damages for lost profits for breach of a lease. We have expressed our disapproval of that rule. Secondly, the Court of Appeals held plaintiffs barred from recovery because the proof of lost profits was entirely speculative. We disagree.
The trial judge in a thorough opinion made the following observations upon completion of the trial.
"On the issue of lost profits, there were days and days of testimony. The defendants called experts from the Michigan Liquor Control Commission and from Cunningham Drug Stores, who have a store in the area, and a man who ran many other stores. The plaintiffs called experts and they, themselves, had experience in the liquor sales business, in the book sales business and had been representatives of liquor distribution firms in the area.
"The issue of the speculative, conjectural nature of future profits was probably the most completely tried issue in the whole case. Both sides covered this point for days on direct and cross-examination. The proofs ranged from no lost profits to two hundred and seventy thousand dollars over a ten-year period as the highest in the testimony. A witness for the defendants, an expert from Cunningham Drug Company, testified the plaintiffs probably would lose money. Mr. Fera, an expert in his own right, testified the profits would probably be two hundred and seventy thousand dollars. The jury found two hundred thousand dollars. This is well within the limits of the high and the low testimony-presented by both sides, and a judgment was granted by the jury.
"The court cannot invade the finding of fact by the jury, unless there is no testimony to support the jury’s finding. There is testimony to support the jury’s finding. We must realize that witness Stein is an interested party in this case, personally. He is an officer or owner in Schostak Brothers. He may personally lose money as a result of this case. The jury had to weigh this in determining his credibility. How much credibility they gave his testimony was up to them. How much weight they gave to counter-evidence was up to them.
"The court must decide whether or not the jury had enough testimony to take this fact from the speculative-conjecture category and find enough facts to be able to make a legal finding of fact. This issue [damages for lost profits] was the most completely tried issue in the whole case. Both sides put in testimony that took up days and encompassed experts on both sides. This fact was adequately taken from the category of speculation and conjecture by the testimony and placed in the position of those cases that hold that even though loss of profits is hard to prove, if proven they should be awarded by the jury. In this case, the jury had ample testimony to make this decision from both sides.
"The jury award was approximately seventy thousand dollars less than the plaintiffs asked and their proofs showed they were entitled to. The award of the jury was well within the range of the proofs and the court cannot legally alter it, as determination of damages is a jury function and their finding is justified by the law in light of the evidence in this case.
"The loss of profits are often speculative and conjectural on the part of witnesses. When this is true, the court should deny loss of profits because of the speculative nature of the testimony and the proofs. However, the law is also clear that where lost profits are shown, and there is ample proof on this point, they should not be denied merely because they are hard to prove. In this case, both parties presented testimony on this issue for days. This testimony took the lost profits issue out of the category of speculation and conjecture. The jury was given an instruction on loss of profits and what the proofs must show, and the nature of the proofs, and if they found them to be speculative they could not award damages therefor. The jury, having found damages to exist, and awarded the same in this case in accord with the proper instructions, the court cannot, now, overrule the jury’s finding.”
As Judge Wickens observed, the jury was instructed on the law concerning speculative damages. The case was thoroughly tried by all the parties. Apparently, the jury believed the plaintiffs. That is its prerogative.
The testimony presented during the trial was conflicting. The weaknesses of plaintiffs’ specially prepared budget were thoroughly explored on cross-examination. Defendants’ witnesses testified concerning the likelihood that plaintiffs would not have made profits if the contract had been performed. There was conflicting testimony concerning the availability of a liquor license. All this was spread before the jury. The jury weighed the conflicting testimony and determined that plaintiffs were entitled to damages of $200,000.
As we stated in Anderson v Conterio, 303 Mich 75, 79; 5 NW2d 572 (1942):
"The testimony * * * is in direct conflict, and that of plaintiff * * * was impeached to some extent. However, it cannot be said as a matter of law that the testimony thus impeached was deprived of all probative value or that the jury could not believe it. The credibility of witnesses is for the jury, and it is not for us to determine who is to be believed.”
The trial judge, who also listened to all of the conflicting testimony, denied defendants’ motion for a new trial, finding that the verdict was justified by the evidence. We find no abuse of discretion in that decision. Sloan v Kramer-Orloff Co, 371 Mich 403; 124 NW2d 255 (1963). "The trial court has a large amount of discretion in determining whether to submit the question of profits to the jury; and when it is so submitted, the jury will also have a large amount of discretion in determining the amount of its verdict.” 5 Corbin on Contracts, § 1022, pp 145-146.
" '[W]here injury to some degree is found, we do not preclude recovery for lack of precise proof. We do the best we can with what we have. We do not, "in the assessment of damages, require a mathematical precision in situations of injury where, from the very nature of the circumstances precision is unattainable.” Particularly is this true where it is defendant’s own act or neglect that has caused the imprecision.’ ” Godwin v Ace Iron & Metal Co, 376 Mich 360, 368; 137 NW2d 151 (1965).
While we might have found plaintiffs’ proofs lacking had we been members of the jury, that is not the standard of review we employ. "As a reviewing court we will not invade the fact-finding of the jury or remand for entry of judgment unless the factual record is so clear that reasonable minds may not disagree.” Hall v Detroit, 383 Mich 571, 574; 177 NW2d 161 (1970). This is not the situation here.
The Court of Appeals is reversed and the trial court’s judgment on the verdict is reinstated.
Costs to plaintiffs.
Williams, Fitzgerald, and Lindemer, JJ., concurred with Kavanagh, C. J.
Levin and Ryan, JJ., took no part in the decision of this case. | [
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Williams, J.
(to affirm). Defendant was prosecuted for possession of a small residue of heroin, visible to the naked eye, in the form of a hard powdery substance on the interior of a bottle cap. Defendant sought to avoid conviction by asking this Court to construe this state’s former statute making it a felony for "any person not having a license * * * [to] possess or have under his control any narcotic drug” to require possession of a "usable amount”. We affirm defendant’s conviction on these facts and reject the "usable amount” and the Court of Appeals "remnant of a usable amount” tests.
I — Facts
February 21, 1969, defendant Robert Harrington and his companion Mary Jean Cox were arrested in Jackson on a charge of shoplifting. Before being searched, they were placed in the rear seat of a patrol car and brought to the police station. At trial, the two arresting officers testified that they had observed Harrington through the rear view mirror and that he was fidgeting with his hands behind his back. Both officers saw nothing in defendant’s hands. Harrington was seated on the right side of Ms. Cox, about eight to ten inches away from her. One officer testified that he did not know whether defendant or Ms. Cox was right or left-handed.
After delivering their two suspects to the police station, the officers returned to the car and searched it. After removing the rear seat, they discovered two small packages, one consisting of several hypodermic needles, a book of matches, part of an eye-dropper and the cotton end of a Q-tip. The second package contained two metal bottle caps with a thin film of what was later identified as heroin inside.
Although the film was only a residue of the narcotic drug involved, that residue was readily apparent to the naked eye. The most direct testimony applicable to our test involved the police chemist:
'’Q. * * * Are you able to see residue at the present time?
"A There is some residue, yes. * * *
"Q. And, what do you mean when you use the word 'residue’?
“A. It is just a hard powdery substance, which is on the interior of the cap.”
The relationship of the evidence’s location to defendant was described by the testifying officer as:
"A. It would be on his — more or less to the right of him, right in the center of the vehicle, where he was positioned in the seat. It was in back of him on his right side.”
This, of course, removes it from Mary Cox who was on defendant’s left.
The officer who uncovered the packages testified that he handled them, did not consider dusting them for fingerprints, and did not know if any fingerprint processing had been performed on these exhibits. A qualitative, but no quantitative analysis was performed on the heroin residue.
Defendant was tried and convicted by a jury of unlawful possession of a narcotic drug. He appealed, raising only one issue: "Is the possession of a modicum of heroin, insufficient in amount to be used for the purpose commonly intended, a violation of the statute?” People v Harrington, 33 Mich App 548, 549; 190 NW2d 343 (1971). In reversing and remanding for a new trial, the Court of Appeals recognized this as a question of first impression in Michigan, rejected the two tests used in this country, and adopted a new one.
"Research has not disclosed any Michigan authority on the question of the quantity of the narcotic drug required to constitute possession as proscribed by the statute. California requires the quantity to be sufficient for the drug’s common use, People v Leal (1966), 64 Cal 2d 504 (50 Cal Rptr 777, 413 P2d 665). Texas has adopted a similar rule, Greer v State (1956), 163 Tex Crim 377 (292 SW2d 122). The majority of the states that have passed on the question have held that the quantity possessed is immaterial. State v Dodd (1965), 28 Wis 2d 643 (137 NW2d 465); Schenher v State (1956), 38 Ala App 573 (90 So 2d 234); Mickens v People (1961), 148 Colo 237 (365 P2d 679); People v Norman (1962), 24 Ill 2d 403 (182 NE2d 188); State v McDonald (1966), 92 NJ Super 448 (224 A2d 18); People v Young (Mo, 1968), 427 SW2d 510; Haley v State (1969), 7 Md App 18 (253 A2d 424).
"Without local precedent, this Court is free to adopt the minority or majority view or to reject both. Our choice should be governed by our judgment of what is the most reasonable, practical and readily applicable rule for efficient law enforcement without undue encroachment on individual rights. It is our judgment that the minority view may restrict efficient law enforcement; a quantity of narcotics sufficient for its common use is not necessarily a concomitant of illegal possession. On the other hand, the majority view that the quantity possessed is immaterial is so broad a view that it may tend to encourage infringement of individual rights.
"It is our judgment that a reasonable compromise between the minority and majority views has been proposed in the article 'Drugs and the Criminal Law’, 12 Crim Law Quarterly 254 (July, 1970). Arthur C. Whealy there suggests that the facts and circumstances in each case be viewed to determine if it can be reasonably inferred that the quantity of narcotic actually discovered is but a remnant of a larger, usable amount. If that inference can be made, illegal possession is established.” 33 Mich App 548, 549-550.
At the subsequent trial, this test was applied. The jury found defendant guilty and he was sentenced to three to ten years in prison.
Application for delayed appeal was denied by the Court of Appeals July 13, 1973. We granted leave January 28,1974.391 Mich 769.
II — The Relevant Statutes
The charge was laid under 1952 PA 266, § 3, being MCLA 335.153; MSA 18.1123, which reads as follows:
"Any person not having a license * * * who shall possess or have under his or her control any narcotic drug shall be deemed guilty of a felony * * * .” MCLA 335.153; MSA 18.1123.
Both the former statutes under which this conviction occurred and the new Controlled Substances Act include possession as one of a number of offenses relating to traffic in narcotic drugs. Thus, the former statute MCLA 335.152; MSA 18.1122 made the sale and manufacture of such drugs by nonlicensees a felony; MCLA 335.153; MSA 18.1123, supra, fn 1, made possession a felony; and MCLA 335.154; MSA 18.1124 made unlawful use a misdemeanor.
None of these statutes specified that any amount must be involved before the prohibition became relevant.
Under the Controlled Substances Act, delivery, possession and use remain offenses, with penalties depending on the type of substance involved. MCLA 335.341; MSA 18.1070(41). Under the new statutory scheme, the amount of substance is relevant if it is included in schedule 3, MCLA 335.318; MSA 18.1070(18), for example, but as to heroin, a schedule 1 substance, MCLA 335.314; MSA 18.1070(14), it and other opium derivatives are proscribed "when the existence of these salts, isomers and salts of isomers is possible within the specific chemical designation”. In the absence of such specifics in the former statute, combined with, the specific language prohibiting sale of "any narcotic drug”, possession of "any narcotic drug” and use of "any narcotic drug”, it is difficult to see how the requirement of a particular amount can properly be added to this legislative language. This logic is the approach taken by most states.
Ill — The Majority Test for Possession
The view in most jurisdictions is that possession of any quantity of proscribed narcotic is sufficient to support conviction. Possession is the gravamen of the offense charged. State v Young, 427 SW2d 510, 513 (Mo, 1968).
Support for this approach is found in the language of thé Uniform Narcotic Drugs Act, adopted with various modifications by 47 states including Michigan, the District of Columbia and Puerto Rico. Am Jur 2d, Desk Book, Doc. No. 129. Section 2 of the Act was the basis for the statute under which defendant was charged. Knowledge or intent to possess is not part of the specific language of this statute.
Therefore, it is necessary, according to this view, that qualitative analysis be performed on the unknown substance in order to determine whatit is, but quantitative analysis is unnecessary to determine how much of the proscribed substance there is. State v Humphreys, 54 NJ 406, 410-411; 255 A2d 273, 275 (1969). Peachie v State, 203 Md 239; 100 A2d 1 (1953); State v McDonald, 92 NJ Super 448, 452; 224 A2d 18, 20 (1966). Thus, marijuana debris about the size of a dime found in defendants’ pockets was sufficient to prove possession, Fagin v People, 174 Colo 540, 542; 484 P2d 1216, 1217 (1971), as was 3 milligrams scraped from three gelatin half capsules, State v Young, 427 SW2d 510 (Mo, 1968), or the narcotic in six or seven cigarette butts from handmade cigarettes 80 to 90 percent marijuana, State v Phelps, 8 Or App 198, 200; 493 P2d 1059, 1060 (1972), or .00457 ounce of marijuana in a bamboo pipe, Commonwealth v Walker, 226 Pa Super 149, 155; 313 A2d 351, 354 (1973).
The most usual criticism directed against this test is that courts applying it may be convicting individuals who may not have known they possessed the substance they were accused of possessing. See, e.g., People v Leal, 64 Cal 2d 504, 509-510; 50 Cal Rptr 777, 781; 413 P2d 665, 669 (1966). A closer examination of the cases, however, indicates that this is an inaccurate characterization.
It is black letter law that "[i]t is essential to the defendant’s guilt that he knew that he possessed * * * narcotics”. 3 Wharton, Criminal Law and Procedure, p 298. Thus, for example, even while rejecting defendant’s proposed usable amount test, the Court in State v Young, 427 SW2d 510 (Mo, 1968), found that the record supported "the test of actual or construction possession” which "is whether 'the defendant was aware of the presence and character of the particular substance, and was intentionally and consciously in possession of it’ ”. 427 SW2d 510, 513. See also, e.g., Judd v State, 482 P2d 273, 280 (Alas, 1971); State v Faircloth, 181 Neb 333, 337; 148 NW2d 187, 190 (1967).
Therefore, while the general view is that any amount is sufficient to make out the offense of possession, the general view is also that knowledge of the presence of the substance is an essential element of the offense. Katz, Possession of Narcotic Drugs Under State and Federal Statutes, 25 U Miami L Rev 306, 310 (1971); 91 ALR2d 810, 821. It is only when these two requirements are present that an individual may be found guilty of possession, even by applying the majority rule.
For example, in Peachie v State, 203 Md 239, 243; 100 A2d 1, 2 (1953), the Court found intent, and therefore knowledge, by focusing on the use of the drug. Since evidence indicated the defendant had just injected himself with a narcotic, "it necessarily follows that he had possession and control of the instrument and its contents at the time of the injection, as well as an intent and purpose to administer the drug”.
A better approach was that of the Supreme Court of Alaska, in Judd v State, 482 P2d 273, 280 (Alas, 1971), which explained that "where the facts of a case show knowing possession of illegal drugs, it is unnecessary that a usable quantity be found so long as a sufficient quantity of the drug is found to permit proper identification”.
The most direct approach has been to find that the microscopic or chemical analysis is used:
"not to determine the presence of the substance, but to identify it. So long as qualitatively the substance seized is marijuana [or any other narcotic], the statute does not prescribe any minimum amount which must be possessed. And it follows that this Court cannot be asked to specify what quantity of a contraband substance is sufficient to invoke criminal sanctions, so long as the presence of the substance is readily determined.” State v Humphreys, 54 NJ 406; 255 A2d 273 (1969).
Such application of the statute prohibiting posses sion, we believe, effectively carries out the legislative intent to deter narcotics traffic while, at the same time, safeguarding individual rights.
IV — The Usable Amount Test
The usable amount rule recommended by my Brother the Chief Justice has arisen in several jurisdictions in response to objections to the "any amount” test. These Courts emphasize, first, that the scien ter requirement implicit in the crime of possession cannot be met if the amount of the substance is so small that its presence can be detected only through chemical or other scientific analysis.
The second part of the argument for this position is that it more properly interprets the legislative purpose. Since the Legislature wanted to curtail the use of narcotics, quantities too small to be used do not pose the sort of societal danger contemplated. See, e.g., State v Moreno, 92 Ariz 116, 120; 374 P2d 872, 875 (1962); Greer v State, 163 Tex Crim 377; 292 SW2d 122 (1956).
While we do not accept the approach of the Wisconsin Court which rejected this test because, "A more liberal interpretation favorable to drug addicts and those illegally dealing in narcotics cannot reasonably be given”, State v Dodd, 28 Wis 2d 643, 651; 137 NW2d 465, 469 (1965), the rule does present serious difficulties. When viewed according to our criteria, this rule would be more difficult to administer than the majority view.
No court which has adopted this standard has indicated what a usable amount would be. It is an amount usable "under the known practices of narcotic addicts”. State v Moreno, 92 Ariz 116, 120; 374 P2d 872 (1962), and is not a quantity that is useless for consumption or sale, People v Thomas, 246 Cal App 2d 104, 111; 54 Cal Rptr 409, 414 (1966). Therefore, while it is clear that it is not a minute or microscopic quantity, it is unclear just what it is, a standard which is so vague as to be unfair to both defendant and the state which is responsible for its administration.
Courts have been unable to specify the exact amount prohibited where the Legislature has not done so. For us to invent the forbidden amount in the light of this legislative silence would be impermissible judicial legislation. Where the Legislature has done so, as in sections of the Controlled Substances Act, for us to select other than these legislatively-designated benchmarks would be equally impermissible.
If the test were to be applied to refer to an amount appropriate for defendant’s use it would require testimony involving defendant’s habit, bringing us close to if not within the constitutionally prohibited area regarding defendant’s status as an addict. Robinson v California, 370 US 660; 82 S Ct 1417; 8 L Ed 2d 758 (1962).
If the test were applied so that expert testimony admissible at trial would establish the standard, the result could well differ from courtroom to courtroom and expert to expert, and create the kind of uneven administration of justice we must avoid.
The legislative policy is obviously to stop the horrendous traffic in narcotics which has led to the unfortunate addiction of so many people, and the unfortunate waste of human life. Thus, the Legislature in its attempt to guard the public health and safety has proscribed the use, possession and sale of the illegal substance. There is no legislative qualifier that it is possession with intent to use that is forbidden. Therefore, we cannot say it was the legislative intent to outlaw possession of only a usable amount of narcotics.
For these reasons we must reject defendant’s request to apply the usable amount test to narcotics convictions.
V — The Remnant of a Usable Amount Test
The Court of Appeals presented its new standard for determining possession as an attempt to facilitate efficient law enforcement without undue encroachment on individual rights. While its "remnant of a larger, usable amount” approach may have seemed attractive as a matter of theory, the problems of administration as manifested in defendant’s trial indicate that this goal was not quite achieved.
This test undeniably allows examination into the defendant’s status as an addict, an area forbidden by Robinson v California, 370 US 660; 82 S Ct 1417; 8 L Ed 2d 758 (1962).
At Harrington’s trial, the prosecution first attempted to apply the test by asking the expert from the Michigan Health Department Crime Detection Division:
"Q. [C]an you form a conclusion as to whether or not what you call a residue is the remnant of what was a larger quantity in these caps?
"A. I can merely testify as to what I actually know is in that cap. As far as what may have been in there I can’t say.”
Obviously, that testimony did not do it. Therefore, the only evidence upon which the jury could have found that the substance found in the back of the patrol car was the residue of a larger quantity was the testimony of a police officer, admitted over defendant’s objection, that he had seen fresh "tracks” on defendant’s left arm.
Even if such evidence were to be tortuously construed as showing that defendant was not an addict but had merely used heroin, it is still extremely prejudicial. Further, such needle tracks show only that he or she had possibly injected heroin or another substance at some recent time. They do not show that defendant used the particularsubstance at issue.
Another possible way of proving the substance was a remnant of a usable amount would be by testimony of an eyewitness. The obvious difficulty of obtaining such testimony is but another reason why administration of this approach is so difficult.
VI — Conclusion
In this case defendant was found in possession of bottle caps with heroin residue apparent to the naked eye. We hold that such possession is in violation of MCLA 335.153; MSA 18.1123 which makes it a felony if "[a]ny person not having a license * * * shall possess or have under his or her control any narcotic drug”.
This is not the kind of case where scrapings are taken from the inside of a coat pocket, or a plastic box on a dresser, People v Pippin, 16 AD2d 635; 227 NYS2d 164 (1962). Although the evidence was part of paraphernalia which, arguably, might have been the only thing defendant thought he was hiding, the white encrustation was there for him to see. Therefore, the mens rea threshold was successfully crossed by the prosecution.
Where there is an amount of narcotic visible to the naked eye, regardless of how much it is, there is a sufficient amount to permit prosecution. We leave open the question of whether it is possible to sustain a conviction if the amount involved is not visible.
As for defendant’s argument that possession was not established, we find that there was sufficient evidence to support a finding of fact that the narcotic drug and implement belonged to defendant. The police made a practice of examining their patrol car after every use. Therefore, the goods must have been left by one of the two passengers, Harrington or Ms. Cox. The evidence was found to defendant’s right. Ms. Cox was seated on his left.
The conviction is affirmed.
Coleman and Lindemer, JJ., concurred with Williams, J.
Fitzgerald and Ryan, JJ., took no part in the decision of this case.
"Any person not having a license * * * who shall possess or have under his or her control any narcotic drug shall be deemed guilty of a felony * * * .MCLA335.153;MSA 18.1123.
This has been repealed and replaced by the Controlled Substances Act of 1971, including MCLA 335.341; MSA 18.1070(41) which provides in relevant part:
"It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this act.”
E.g., Schenher v State, 38 Ala App 573; 90 So 2d 234 (1956); State v Young, 427 SW2d 510 (Mo, 1968); Haley v State, 7 Md App 18; 253 A2d 424 (1969); State v Dodd, 28 Wis 2d 643; 137 NW2d 465 (1965).
Thus, for example, § 4 of the New Jersey statute, also based on § 2 of the Uniform Act, provides:
"[I]t shall be unlawful for any person to * * * possess * * * any narcotic drug except as authorized by this chapter.” State v Reed, 34 NJ 554; 170 A2d 419; 91 ALR2d 797 (1961).
This is changed under the new statute, supra, fn 1.
For cases contra, see, e.g., Broic v State, 79 So 2d 775 (Fla, 1955); State v Boggs, 57 Wash 2d 484; 358 P2d 124 (1961).
In reversing a conviction for possession of heroin where the substance was found in the form of crystalline incrustations on spoons, a state in which it could remain indefinitely, the California Supreme Court wrote, in People v Leal, 64 Cal 2d 504, 509; 50 Cal Rptr 777, 780-781; 413 P2d 665, 668-669, citing People v Aguilar, 223 Cal App 2d 119; 35 Cal Rptr 516 (1963):
"Any nonscientifically trained person, albeit an addict, observing the spoons * * * would have been unable to detect the presence of heroin since neither powder nor liquid remained. It is not scientific measurement and detection which is the ultimate test of the known possession of a narcotic, but rather the awareness of the defendant of the presence of the narcotic. Guilt or innocence on a charge of illegal possession may not be determined solely by the skill of the forensic chemist in isolating a trace of the prohibited narcotic in articles possessed by the defendant. As forensic science, measuring devices and techniques improve, smaller and smaller amounts of residue are required for the chemist to detect the presence of the narcotic. The presence of the narcotic must be reflected in such form as reasonably imputes knowledge to the defendant.”
"If this substance cannot be sold, if it cannot be administered or dispensed, common sense dictates that it is not such a narcotic as contemplated by Congress to be a danger to society, the possession of which is proscribed.” Edelin v United States, 227 A2d 395, 398-399 (DC Ct App, 1967).
The court permitted this line of questioning, explaining:
"The Court:! will agree with Mr. Biewend that under the decision the Court of Appeals rendered in Mr. Harrington’s appeal of the prior trial here, setting forth that the People must show, and the Court must instruct that the residue that of any narcotics is found must be shown it was part of a useable quantity, then whether or not the Defendant might have used it in the past becomes a circumstance for the jury to consider as to whether or not there was a useable quantity. The Court of Appeals in giving to Mr. Harrington here in one respect in the sense that is taken away in the other cause, there are under prior laws it was why it would not go into the matter of tracks under the facts presented here thus far, but under the Court of Appeals decision, and it is a circumstance to be considered by the Jury, as to whether or not there are indications that the Defendant was a user, which would go to whether or not there was a usable quantity, in the possession prior to the arrest in the picking up oFtEe paraphernalia for use in narcotics. So, under that Court of Appeals decision the Court would allow to go into what the testimony — whether or not there were tracks, indication of recent use of narcotics by Mr. Harrington.” | [
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Levin, J.
The question is whether the record shows a factual basis for a plea of guilty of second-degree murder.
Arthur Haack, charged with first-degree murder, pled guilty to second-degree murder. The Court of Appeals affirmed:
"The facts recited by the defendant adequately establish second-degree murder as defined above. The defendant killed a man by intentionally pointing a loaded gun and firing that gun. He knew the gun was loaded. There was bad blood between the defendant and the decedent.”
We affirm.
I
During the plea-taking colloquy, Haack said that on the night of the homicide an acquaintance gave him a .45-caliber revolver to carry in his coat pocket. There were four bullets in the cylinder. Haack placed one of the empty chambers under the hammer and the other immediately to the left of it. He thought the cylinder rotated clockwise and that the hammer would strike an empty chamber if the gun was fired. He put the gun in his pocket.
At a party later that night the deceased, whom Haack had not met before, asked Haack why he had a gun. Haack responded "if you knew the people that I knew you would carry a gun too”. Haack sought to terminate the conversation. The deceased moved away. Haack overheard another person urge the deceased to leave Haack alone. Then the deceased "turned and faced me and said that if I was such a big man with the gun why didn’t I shoot him”.
Haack described what followed:
"I figured this guy is pushing me far enough and I’m going to scare the hell out of him and let it go at that.
"I pulled the gun out and cocked the hammer and pulled the trigger. It fired.
"I found out that on a couple of makes of the older .45 revolvers that they spin counter clockwise instead of clockwise and that’s what happened.”
Haack contends his assertion to the judge that he believed the gun would not fire and he intended only to scare the deceased negates intent to kill, a requisite element of second-degree murder. He contends that while he intentionally pulled the trigger, the shooting was an accident. Alternatively, he contends that his belief the gun'would not fire was reasonable and is a mitigating factor that reduces the offense to manslaughter.
The prosecutor responds that intent to kill can be inferred from the facts recited by Haack when he offered his plea. Haack pointed a gun he knew was loaded at the deceased and intentionally pulled the trigger. The prosecutor characterizes Haack’s action as "an erroneous Russian roulette”. The natural tendency of such reckless behavior is to cause death or great bodily harm.
II
Haack’s plea of guilty was accepted before the effective date of the general revision of GCR 1963, 785 providing in subsection 7(3) for a determination of the factual basis for a plea of guilty.
While former rule 785 and the statute* ** did not explicitly require a determination that there was a factual basis, such a requirement was established by judicial construction of the rule and statute in People v Barrows, 358 Mich 267, 272; 99 NW2d 347 (1959):
"The direct questioning of a defendant by the trial judge on plea of guilty is required by the rule for the purpose of establishing the crime and the participation therein of the person pleading guilty. This is a precaution against involuntary or induced false pleas of guilty, and against subsequent false claims of innocence.”
In reviewing convictions on pleas of guilty accepted before the 1973 revision of rule 785, this Court followed the Barrows rule requiring a factual basis supporting the conclusion that a crime was committed and that defendant participated in its commission.
In People v Taylor, 387 Mich 209, 224; 195 NW2d 856 (1972), a plea-based conviction was reversed for the judge’s failure "to conduct such an examination as to show that what the defendant actually did was indeed a crime”. A plea-based conviction was reversed in People v Carlisle, 387 Mich 269, 273; 195 NW2d 851 (1972), for failure to comply with Barrows:
"We reaffirm our holding in Barrows. No plea of guilty should be accepted by a trial judge until facts sufficient to establish the defendant’s guilt have been set out in the record. Preferably, these facts should be brought forth through a direct examination of the accused by the trial judge at the time the plea of guilty is accepted.”
Ill
Intent to kill is an element of the offense of murder. Haack’s assertions to the judge that the shooting was an accident and that there were mitigating circumstances do not, however, negate a factual basis for his plea of guilty to second-degree murder. While Haack may not have actually intended to kill the deceased, intent to kill may be inferred by the trier of fact where the natural tendency of the defendant’s behavior is to cause death or great bodily harm.
"A person who kills another is guilty of the crime of murder if the homicide is committed with malice aforethought. Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter. The intent to kill may be implied where the actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm. * * *
"Thus, as 'malice aforethought’ is now defined, a killing may be murder even though the actor harbored no hatred or ill will against the victim and even though he 'acted on the spur of the moment’.” People v Morrin, 31 Mich App 301, 310-312; 187 NW2d 434 (1971).
The issue here is whether a factual basis has been established for the taking of a plea.*
In Guilty Plea Cases, 395 Mich 96, 128-132; 235 NW2d 132 (1975), this Court considered a number of questions concerning the application of rule 785.7, including questions arising under 785.7(3), "Determining factual basis for plea”. We said that on appellate review the standard to be applied in determining the adequacy of the factual basis is whether the trier of fact could properly convict on the facts as stated by the defendant. Disclaimers by the defendant during the plea tak ing of knowledge that a confederate had a gun (in the case of Sanders ) or of intent to kill (in the case of Harrell and Robinson ) do not preclude acceptance of a plea since on defendant’s own recital a jury could properly infer the requisite participation or intent. "A factual basis for acceptance of a plea exists if an inculpatory inference can reasonably be drawn by a jury on the facts admitted by the defendant even if an exculpatory inference could also be drawn and defendant asserts the latter is the correct inference.” Guilty Plea Cases, supra, p 130.
Although Haack asserted the shooting was accidental, in deciding whether to accept his plea of guilty the judge could, on the strength of Haack’s inculpatory statements, properly reject his disclaimer of intent to kill and his assertion that the shooting was accidental and accept his plea of guilty. On Haack’s statement that he had pointed a revolver he knew was loaded at the deceased and intentionally pulled the trigger, a trier of fact could properly infer intent to kill.
Before accepting a plea of guilty, the judge need not decide that a jury would convict. He may accept the plea if he finds from defendant’s recital a factual basis which would support conviction and that the defendant enters his plea advisedly. A guilty plea "may be accepted even though the defendant is unsure of his guilt and even where he denies his guilt if after careful inquiry the judge satisfies himself that there is a substantial factual basis for the plea and that the plea represents a well-considered and well-advised choice by the defendant”.
Affirmed.
Kavanagh, C. J., and Williams and Coleman, JJ., concurred with Levin, J.
Fitzgerald, Lindemer, and Ryan, JJ., took no part in the decision of this case.
The opinion of the Court of Appeals, filed December 7, 1973, Docket No. 16895, is unreported.
Haack was examined by the judge and offered his plea on January 29, 1973. The plea was taken under advisement. On February 13, 1973 the plea was accepted and Haack was sentenced to a prison term of 10-20 years.
June 1, 1973 was the effective date of the general revision of GCR 1963, 785. 389 Mich liii. Haack’s plea was accepted on February 13, 1973.
The court rule in effect at the time Haack’s plea was accepted required the judge to examine the accused and “ascertain that the plea was freely, understandingly and voluntarily made, without undue influence, compulsion or duress, and without promise of leniency”. GCR 785.3, effective January 1, Í963.
The foregoing language, which can be traced back to Court Rule No. 35A, added June 4, 1947, effective September 1, 1947 (318 Mich xxxix), was to be replaced effective January 1, 1967 by language requiring that the court "determine from the accused’s own narration what the accused did at the time of the offense charged” and that "[i]f the accused’s description of his actions at the time of the offense charged would not support a finding of guilt of the crime charged, the plea of guilty offered by the accused shall be rejected by the court”. 378 Mich xxxix. However, by order of the Court dated November 16, 1966, the effective date of this amendment was "suspended until further notice”. 378 Mich xliii.
On June 8, 1967 this Court "repealed effective instanter” the various amendments of rule 785 adopted since January 1, 1963. The Court advised the profession and bench generally that various persons and groups had been requested to assist in drafting recommendations for amendment of rule 785: "Pending submission and approval by the Court of such forthcoming amendments, the bench and bar will proceed in accordance with original Rule 785, in accordance with article 1 of the Constitution of 1963 and in accordance with such decisions of the United States Supreme Court and of the Supreme Court of Michigan as may be deemed applicable to the particular criminal matter at hand.” 379 Mich xxxi.
Effective June 1, 1973 rule 785 was amended (389 Mich liii). Subsection 7(3) provided:
"(3) Determining Factual Basis for Plea.
"(a) The court shall not accept a plea of guilty or nolo contendere until it is satisfied that a crime was committed.
"Ob) The court shall not accept a plea of guilty until it is satisfied that a crime was committed and, through personal interrogation of the defendant, that defendant participated therein.
“(c) If defendant’s description of his actions and any otherwise admissible evidence presented to the court on the record during the plea taking proceedings would not substantially support a finding that defendant is in fact guilty of the charged offense or the offense to which he is pleading, the plea shall be rejected by the court.”
Effective December 7, 1975 (395 Mich xlvi) that provision was amended:
"(3) An Accurate Plea.
"(a) If the defendant pleads guilty, the court, by questioning him, shall establish support for a finding that he is guilty of the offense charged or the offense to which he is pleading.
"(b) If the defendant pleads nolo contendere, the court shall not question him about his participation in the crime. The court shall:
"(i) state why a plea of nolo contendere is appropriate; and "(ii) conduct a hearing, unless there has been one, that establishes support for a finding that the defendant is guilty of the offense charged or the offense to which he is pleading.”
The statute provides that whenever a person pleads guilty it is the duty of the judge "to become satisfied after such investigation as he may deem necessary for that purpose respecting the nature of the case, and the circumstances of such plea, that said plea was made freely, with full knowledge of the nature of the accusation, and without undue influence. And whenever said judge shall have reason to doubt the truth of such plea of guilty, it shall be his duty to vacate the same, direct a plea of not guilty to be entered and order a trial of the issue thus formed.” MCLA 768.35; MSA 28.1058.
This court added:
"We have little doubt that the entry of the plea by his attorney was made with defendant’s agreement. But Michigan’s rule on acceptance of pleas requires that the court ascertain more about the plea than that the defendant agrees that it is expedient to so plead. The rule is designed to require reasonable ascertainment of the truth of the plea.
"This requirement was present in the statute (CL 1948, § 768.35 [Stat Ann 1954 Rev § 28.1058]) which preceded Rule No 35A. It has frequently been given effect by this Court. People v Utter, 209 Mich 214 [176 NW 424 (1920)]; People v Merhige, 212 Mich 601 [180 NW 418 (1920)]. What has been added by the rule is the mandatory requirement that the court 'examine the accused.’ ” People v Barrows, 358 Mich 267, 272-273; 99 NW2d 347 (1959).
See People v Rufus Williams, 386 Mich 277, 284; 192 NW2d 466 (1971) :
"Such action meets the requirement of 'establishing the crime and participation therein of the person pleading guilty’ as required by Barrows. ”
See People v Butler, 387 Mich 1, 8; 195 NW2d 268 (1972):
"Regarding defendant’s claim that People v Barrows, supra, necessitates direct personal inquiry of the defendant for purposes of ascertaining the factual basis of the plea, defendant’s counsel interrogating defendant as to how he drove the car away more than satisfies Barrows, People v Rufus Williams, supra, People v Stearns [380 Mich 704; 158 NW2d 409 (1968)].”
In People v Taylor, 383 Mich 338, 357; 175 NW2d 715 (1970), Chief Justice Brennan adverted to the notes of the Advisory Committee on Criminal Rules where, commenting on FR Crim P, 11 ("The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea”), it is stated: "For a similar requirement see” the Michigan statute (fn 4, supra), Michigan Court Rule 35A (fn 3, supra) and three Michigan cases, including People r Barrows, supra. Justice Brennan concluded that since no other state statutes, court rules or court decisions were cited, "the 1966 amendment of Federal rule 11 was designed to bring Federal court practice up to the standard of our Michigan practice”.
Similarly, see People v Duffield, 387 Mich 300, 331; 197 NW2d 25 (1972); People v Wolff, 389 Mich 398, 412; 208 NW2d 457 (1973) (opinion of T. G. Kavanagh, J.); People v Armstrong, 390 Mich 693, 698; 213 NW2d 190 (1973); People v Kuchulan, 390 Mich 701, 706; 213 NW2d 95 (1973); People v Schneff, 392 Mich 15, 23; 219 NW2d 47 (1974).
The Court of Appeals has reversed a number of pre-rule-785.7 guilty-plea convictions on the authority of Barrows for failure to establish a factual basis. See, e.g. People v Atcher, 57 Mich App 148; 226 NW2d 77 (1974); People v Westman, 53 Mich App 662; 220 NW2d 169 (1974); People v Fuzi, 46 Mich App 204; 208 NW2d 47 (1973); People v Morgan, 40 Mich App 404; 198 NW2d 885 (1972); People v Stewman, 36 Mich App 643; 194 NW2d 146 (1971); People v Gerald Jackson, 30 Mich App 173; 186 NW2d 40 (1971); People v Beverly Haywood, 27 Mich App 365; 183 NW2d 399 (1970); People v Lokatys, 23 Mich App 633; 179 NW2d 258 (1970); People v Thouin, 24 Mich App 483; 180 NW2d 386 (1970); People v Shell, 23 Mich App 593; 179 NW2d 262 (1970); People v Stoner, 23 Mich App 598; 179 NW2d 217 (1970); People v Porchia, 21 Mich App 222; 175 NW2d 310 (1970); People v Robert Lee Moore, 21 Mich App 126; 174 NW2d 922 (1970); People v Hooper, 20 Mich App 560; 174 NW2d 173 (1969).
"The provision that 'the court shall examine the accused ** * * and * * * shall ascertain that the plea was * * * understandingly * * * made’ requires the judge to conduct such an examination as to show that what thé defendant actually did was indeed a crime or otherwise he could not understandingly plead guilty. If what he did was actually not a crime, then if he pled guilty to it, it would not be an understanding plea.
"In the instant case the judge’s examination so far as the record shows was to ascertain 'You are pleading guilty because you are guilty?’ This puts the burden on the defendant to know whether indeed he was legally guilty, and of what, and he might well not understand. See People v Merhige, 212 Mich 601 [180 NW 418] (1920). See also assertions in a recent newspaper article, for example, that defendants plead guilty in Wayne County although they believe they are innocent just to get out of the jungle that is the Wayne County jail. (Detroit Free Press, October 10, 1971.)
"In any event it is the court’s duty to ascertain by its examination facts which would convince the court that indeed a crime had been committed by the defendant. Such examination is not the equivalent of a legal trial but it must objectively indicate that the court had fulfilled this obligation.
“Since the record as presented does not show the necessary examination, the defendant’s plea of guilty is vacated and this case is remanded to the trial court for appropriate proceedings.” People v Taylor, 387 Mich 209, 224-226; 195 NW2d 856 (1972).
"Unfortunately, because of lack of clear precedent perhaps, in the case at bar the trial judge was confused as to who should know what. He told the defendant 'You know what happened’ and 'You know whether you’re guilty or not.’
"The court rule, however, requires that the trial court should 'know what happened’ so that the trial court would know whether the defendant was 'guilty or not’.” People v Carlisle, 387 Mich 269, 274; 195 NW2d 851 (1972). (Emphasis by the Court.)
"The majority views — that the so-called 'presumption of malice’ actually authorizes merely the drawing of an inference; and that the burden of persuasion of guilt of murder (and so the negativing of facts of mitigation or justification) beyond a reasonable doubt remains always with the prosecution — are surely the correct ones if we are to abide by the guiding principle of Anglo-American criminal justice that a criminal defendant is to be considered innocent until shown by the prosecution to be guilty beyond a reasonable doubt.” LaFave & Scott, Criminal Law, § 68, p 540.
See Mullaney v Wilbur, 421 US 684; 95 S Ct 1881; 44 L Ed 2d 508 (1975).
"Homicide is 'excusable’ if the death is the result of an accident and the actor was not criminally negligent.” People v Morrin, 31 Mich App 301, 310; 187 NW2d 434 (1971).
A different question would be presented if the issue were one of jury instruction, whether the judge had correctly instructed the jury on accidental death (see People v Pepper, 389 Mich 317; 206 NW2d 439 [1973]) or the difference between the various grades of homicide (see People v Townes, 391 Mich 578; 218 NW2d 136 [1974]). Manifestly, a properly instructed jury would be told that intent to kill "is a permissible inference — not a mandatory presumption” (see People v Morrin, supra, p 319); that if the jury believed that the shooting was accidental the defendant should be acquitted; and that if mitigating circumstances were found, the defendant might be guilty of a lesser offense (see LaFave & Scott, Criminal Law, § 75, p 571-572, §§ 77-79, pp 583-602).
See fn 3, supra, for text of rule. The standard for review of this pre-rule-785 plea sho'uld not be more stringent than the standard now in force. People v Armstrong, 390 Mich 693, 700; 213 NW2d 190 (1973).
Despite defendant’s disclaimer of knowledge that his confederate had a gun, on his own recital a jury could properly "conclude that he and his confederate agreed to commit the crime of robbery and, whether or not the defendant was aware his confederate had a gun, that carrying or using a gun was 'fairly within the scope’ of the common unlawful enterprise. See People v Pearce, 20 Mich App 289; 174 NW2d 19 (1969); People v Poplar, 20 Mich App 132; 173 NW2d 732 (1969).” Guilty Plea Cases, 395 Mich 96, 130; 235 NW2d 132 (1975).
The defendant admitted she had shot another woman with a gun. "Under the circumstances described in her own recital, a jury could properly infer intent to kill from the fact that she shot the victim with a gun.” Guilty Plea Cases, supra, p 130.
The defendant admitted he had set fire to a building in anger causing the death of two persons:
"The court did not ask him if he intended to kill anyone when he set the fire. It is asserted that the record does not show the elements of malice and intent to kill. However, it is not necessary * * * to admit that he acted with malice or intended to kill. A jury could properly infer intent to kill, even where the defendant disclaims such intent, from evidence that he intentionally set in motion a force likely to cause death or grievous bodily harm — here setting fire to a building.” Guilty Plea Cases, supra, p 131.
(Emphasis by the author.) People v Coates, 32 Mich App 52, 70; 188 NW2d 265 (1971) (Levin, J. dissenting), quoted in Guilty Plea Cases, supra, fn 2, pp 133-134.
Contrast People v Stoner, 23 Mich App 598, 608; 179 NW2d 217 (1970), where the defendant asserted he was unable to provide an accurate statement of the facts because his recollection was unclear due to intoxication at the time the offense was alleged to have been committed. | [
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Per Curiam.
On August 27, 1975, Governor William G. Milliken signed Enrolled House Bill 5250. This legislation was designed "to regulate political activity”. The Act created the Political Ethics Commission as an autonomous entity within the Department of State and provided for its composition, powers and duties (§§ 31-50); provided requirements for the establishment of candidate committees (after defining "candidate” to include an elected officeholder) and provided for the filing of statements of organization and reporting of contributions and expenditures (§§ 51-98); set maximum limits on expenditures by candidates for certain offices (§§ 83-84); established a State Campaign Fund with a diversion of certain taxpayer-designated portions of income tax revenues to the fund for distribution to qualifying gubernatorial candidates (§§ 101-105); proscribed conflicts of interest (§§ 121-127); required designated individuals to file financial disclosures for themselves and members of their immediate families (§§ 131-137); required the registration and reporting of lobbying activities (§§ 141-150); and provided for the repeal of five existing laws (§ 191).
We have granted a December 9, 1975, request of the House of Representatives to review ten specific questions of law concerning the constitutionality of the Act. 395 Mich 910 (1975).
As major portions of the Act were to have gone into effect on March 31, 1976 (the effective date of some provisions of the Act was to have been delayed until July 1, 1976), and the Act was likely to have had a profound effect on the upcoming elections, we believed it imperative to review the Act before its effective date. This case was submitted to our Court on March 5, 1976, after full briefing and oral argument by the Attorney Gen eral and eight amici. After careful consideration of these arguments, it is our opinion that Public Act 227 of 1975 was unconstitutionally enacted in violation of art 4, § 24 of the Constitution of 1963. We issue this opinion in order to inform the citizens of the Act’s unconstitutionality prior to its early effective date. We intend, later, to issue a second opinion dealing with the nine remaining issues.
In House Resolution 248, the House of Representatives phrased its first question of law as:
"Does Act 227 of the Public Acts of 1975, being § 169.1-169.200 of the Michigan Compiled Laws embrace more than one object in violation of § 24 of art 4 of the State Constitution of 1963 which reads [in pertinent part] as follows:
" 'Section 24. No law shall embrace more than one object, which shall be expressed in its title.’ ”
This constitutional section embodies two separate concepts:
1. That the law shall not embrace more than one object and
2. That the object which the law embraced shall be expressed in its title. We do not direct attention here to the second concept but only to the first, whether or not more than one object is embraced in this law.
Justice Sharp in Kent County, ex rel Board of Supervisors v Reed, 243 Mich 120, 122; 219 NW 656 (1928), notes that:
"it is to the body of the law that we must look to determine whether it embraces more than one object”.
In that case, Justice Sharp pointed out that the first section of the questioned Act imposed upon the boards of supervisors in all counties where county officials are paid salaries fixed by such boards, the duty to fix such salaries. Section 2 of that act expressly repealed a local act of 1891 affecting the county of Kent alone. The Court said:
"Can it be said that this repeal is so connected with the object as disclosed by the provision in § 1 that it may be held to be germane to it? We think not. The provisions in these two sections might have been enacted in separate laws without either of them in any way referring to or affecting the other. The repeal of the local act was unnecessary to give legal effect to § 1. The two objects sought to be attained by the enactment have no necessary connection with each other, and, when grouped together in one act, clearly offend the constitutional provision.” Reed, supra, 122-123.
Both of the objects of the law were covered in the title. The Court concluded by saying:
"It is clear that two distinct and unrelated objects are embraced in the one act, and that it offends against the constitutional provision.” Reed, supra, 124.
In the briefs filed with this Court which discussed this issue, much attention was devoted to Fritz v Gorton, 83 Wash 2d 275; 517 P2d 911 (1974). However, in Fritz, the statute challenged was adopted by the initiative process by the voters of the State of Washington in the 1972 general election. Of the nine members of Washington’s Supreme Court, two dissented from the holding of constitutionality and three believed that the constitutional provision there in question:
"No bill shall embrace more than one subject and that shall be expressed in the title”, did not apply to initiative but held that if it did apply, they would uphold constitutionality with the remaining four justices. Then the Washington Court held that a "rational unity” test should be applied between the general subject and the incidental subdivisions. The "rational unity” test has never been adopted in Michigan.
In the brief filed by Common Cause, a numerical count of items in the title represented 28 as having been listed claiming that they were "germane to the purpose of reforming the Michigan political process”. The title of the Act does not mention reforming the political process. That brief referred to Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441; 208 NW2d 469 (1973), in which the Court held that the subject matter constituted a code, a unified law. Justice Levin in a concurrence mentioned the justification for its constitutionality "Especially in the case of a codification”. In codes as enacted in Michigan, the Legislature tends to use in the title the words to "revise, consolidate and classify the laws” with respect to a particular object. Those words are typically found in code titles but not found here.
In the brief of the Attorney General urging a finding of unconstitutionality, a claim is made that this Act is exactly the type of legislation at which the framers of the Constitution directed their prohibition. We agree.
In addition to the multitude of varying activities sought to be regulated by this Act, the Act specifically repealed five individual and distinct acts. They concerned the licensing and regulation of legislative agents; the corrupt practice section of the general election law; two specific conflict of interest statutes; and an ethics act.
Severability is not available in instances chai lenging constitutionality on this ground. A prohibition against the passage of an act relating to different objects expressed in the title makes the whole act void.
"It is impossible to tell which object was intended by the Legislature, and in such case both fall under the same condemnation.” Skinner v Wilhelm, 63 Mich 568, 572; 30 NW 311 (1886).
An early reference to the concept behind the constitutional prohibition is found in colorful language in People v Collins, 3 Mich 343, 384 (1854), a case in which the Court was evenly divided on the constitutionality of an act prohibiting the manufacture of intoxicating beverages and the traffic therein. The decision discussed other challenges, but in his opinion and indicative of judicial awareness of the problem, Justice Pratt said:
"This express and positive provision was incorporated into the constitution with the avowed intention on the part of the framers, of arresting, as far as possible, corruption and log rolling in legislation — you help me and I will help you — I will support your bill and help you pass it, if you will permit me to insert a section on a certain matter, etc.; a system of legislation that has often been carried so far as to become disgraceful to representatives and deeply injurious to the public.” People v Collins, supra.
Justice Cooley in People, ex rel Drake v Mahaney, 13 Mich 481 (1865), says with respect to the same provision of the Constitution of 1850:
"The history and purpose of this constitutional provision are too well understood to require any elucidation at our hands. The practice of bringing together into one bill subjects diverse in their nature, and having no necessary connection, with a view to combine in their favor the advocates of all, and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the state.” Mahaney, supra, 494-495.
The act which Justice Cooley had under review was one whose general purpose was "to establish a police government for the city of Detroit”. He said:
"The act, with great particularity, prescribes how this police government shall be rendered effectual; but this particularity can not possibly be objectionable so long as it introduces nothing foreign and incongruous, but is confined to the means supposed to be important to the end indicated.” (Emphasis added.) Mahaney, supra, 496.
This Court cannot engage in idle speculation as to whether, for instance, the provision relating to ethical conduct and conflict of interest contracts would on their own merits have been adopted by the Legislature, nor those relating to campaign contributions and expenditures, nor those establishing the state campaign fund for gubernatorial elections, nor those regulating lobbyists. Applying the tests used by this Court in Reed, supra, these provisions might have been enacted in separate laws without in any way referring to or affecting one another. The term "object” as used in art 4, § 24, was not meant to have unlimited breadth, for an exceedingly broad "object” could likely include several concepts that are wholly foreign and incongruous. That result is inconsistent with the purpose of the constitutional limitation. Some of the concepts sought to be obtained by the enactment have no necessary connection with each other. Nor can it be said that these varied concepts correspond to Justice Cooley’s particularities, but in stead do add something foreign and incongruous. For example, the creation of a state campaign fund for gubernatorial candidates is foreign to and incongruous with regulation of lobbying activities; the financial disclosure provisions aimed at preventing unethical conduct are foreign to and incongruous with the organization of a campaign committee. The tying together of these diverse sections resulted in the Legislature being confronted by an all-or-nothing dilemma to which the framers of the Constitution directed their attention.
To say that the purification of the political process is the all-encompassing umbrella under which these various elements receive their protection is to beg the question. It is expected that much legislation within and without the scope of this Act is designed toward that worthy end.
This Court is mindful of the worthy purpose and high motivation of the Legislature and the proponents of the subject Act. It also is mindful of the basic dictates of the Constitution of this state. Our test cannot be one of policy but of constitutionality. On that test, the Act must fall.
Williams, Coleman, Fitzgerald, and Lindemer, JJ., concurred.
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] |
Levin, J.
The issue is whether the civil obscenity statute may be applied to bar the showing of the film "The Devil in Miss Jones”.
The statute provides:
"The chief executive or legal office of any city, village or charter township or prosecuting attorney of the county may institute and maintain an action in the circuit court against any person, firm or corporation to enjoin and prevent the sale or further sale or the distribution or further distribution or the acquisition or possession of any book, magazine, pamphlet, comic book, story paper, writing, paper, picture, drawing, photograph, figure or image or any written or printed matter of an indecent character, which is obscene, lewd, lascivious, filthy, indecent or disgusting, or which contains an article or instrument of indecent or immoral use or purports to be for indecent or immoral use or purpose.” MCLA 600.2938; MSA 27A.2938.
The statute is aimed at the "sale”, "distribu tion”, "acquisition or possession” of written or printed paper materials, not the exhibition of a motion picture film.
Read in context ("book, magazine, pamphlet, comic book, story paper, writing, paper, picture, drawing, photograph, figure or image or any written or printed matter”) the words picture, photograph, figure or image mean a picture, photograph, figure or image on paper — writing paper, book paper, magazine paper, photographic paper.
Our construction of the statute is reinforced by the use of the verbs "sale”, "distribution”, "acquisition or possession”. Those words do not describe the showing of a motion picture film. A film is distributed or licensed by a producer directly or through a distributor to an exhibitor who shows or exhibits the film to the public. An exhibitor does not "sell” or "distribute” the film to the viewing public.
The words "acquisition or possession” in context appear directed at the permanent acquisition and possession of the prohibited material rather than the temporary possession of one who, like a motion picture exhibitor, does not at any time acquire or possess any interest in the material and who is required to return it shortly.
In this connection it is significant that the gist of the complaint against a motion picture exhibitor is the showing of the allegedly obscene material, not its mere acquisition and possession.
Michigan’s criminal obscenity statute reveals its purpose to cover the exhibition of motion picture film by the inclusion of the verb "show” and the noun "motion picture film”.
The criminal obscenity statute took its present form in 1957 (1957 PA 265). The civil obscenity statute was first enacted in 1958 (1958 PA 126). The earlier criminal statute expressly covers "phonograph record”, "motion picture film”, "wire or tape recording”, "or recorded matter”. The civil obscenity statute significantly does not include those words. This is even more striking when the descriptive language of the two acts is placed side by side and it is seen that the wording of the materials covered in the civil statute follows in precise sequence the language of the criminal statute with the noticeable elimination of "newspaper” ("comic book” substituted), "phonograph record”, "motion picture film”, "wire or tape recording” "or recorded matter”. Whether these deletions were because proceedings under the civil statute may be maintained by "[t]he chief executive or legal officer of any city, village or charter township” as well as the prosecuting attorney does not appear; whatever the reason, it is apparent that the Legislature chose to limit the operative effect of the civil obscenity statute.
The civil obscenity statute is not directed to the exhibition of a motion picture film.
The Court of Appeals is affirmed.
Kavanagh, C. J., and Williams and Fitzgerald, JJ., concurred with Levin, J.
Ryan, J., took no part in the decision of this case.
The trial court permanently enjoined the showing of the film. The Court of Appeals reversed, declaring:
"It is our conclusion that the injunction was improperly granted since there is no state law, either statutory or judicial, which 'specifically defines’ the depictions of sexual conduct which the state may regulate. The trial judge lacked the power to authoritatively construe the statute.” 53 Mich App 267, 275; 218 NW2d 771 (1974).
Our disposition makes it unnecessary to consider this question. Neese v Southern R Co, 350 US 77, 78; 76 S Ct 131; 100 L Ed 60 (1955); Alma Motor Co v Timken-Detroit Axle Co, 329 US 129, 132; 67 S Ct 231; 91 L Ed 128 (1946).
In Stanley v Georgia, 394 US 557, 568, 564; 89 S Ct 1243; 22 L Ed 2d 542 (1969), the United States Supreme Court held that the states’ power to regulate obscenity "does not extend to mere possession by the individual in the privacy of his own home”. The Court also observed that "[i]t is now well established that the Constitution protects the right to receive information and ideas”.
"Any person who knowingly either sells, lends, gives away, distributes, shows or transmutes or offers either to sell, lend, give away, distribute, show or transmute, or has in his possession with intent either to sell, lend, give away, distribute, show or transmute, or advertise in any manner, or who otherwise knowingly offers for either loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy or indecent, sadistic or masochistic book, magazine, pamphlet, newspaper, story paper, writing, paper, phonograph record, picture, drawing, photograph, motion picture film, figure, image, wire or tape recording or any written, printed or recorded matter of an indecent character which may or may not require mechanical or other means to be transmuted into auditory, visual or sensory representations of such character, shall be guilty of a misdemeanor, and upon conviction shall be punished by imprisonment in the county jail for not more than 1 year or by a fine of not more than $1,000.00, or by both such fine and imprisonment.
"For the purpose of this section, possession of 6 or more identical copies, or 6 or more articles of any obscene, lewd, lascivious, filthy or indecent book, magazine, pamphlet, newspaper, story paper, writing, paper, phonograph record, picture drawing, photograph, slide, motion picture film, figure, image, wire or tape recording, or any written, printed or recorded matter of an indecent character, shall be prima facie evidence of possession with intent to sell, lend, give away, distribute, show or transmute the thing.” MCLA 750.343a; MSA 28.575(1); added by 1957 PA 265, as amended by 1961 PA 217, 1962 PA 64, 1964 PA 143.
For text of 1957 act see fn 4, infra.
"Any person who sells, lends, gives away, distributes, shows or transmutes or offers to sell, lend, give away, distribute, show or transmute, or has in his possession with intent to sell, lend, give away, distribute, show or transmute, or advertise in any manner, or who otherwise offers for loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet, newspaper, story paper, writing, paper, phonograph record, picture, drawing, photograph, motion picture film, figure, image, wire or tape recording or any written, printed or recorded matter of an indecent character which may or may not require mechanical or other means to be transmuted into auditory, visual or sensory representations of such character, shall be guilty of a misdemeanor, and upon conviction shall be punished by imprisonment in the county jail for not more than 1 year or by a fine of not more than $1,000.00, or by both such fine and imprisonment.” 1957 PA 265.
Sections 1 and 2 of the 1958 act read:
"Sec. 1. Where in any city, village, charter township or county, any person, firm or corporation sells or distributes or is about to sell or distribute or has in his possession with intent to sell or distribute or is about to acquire possession with intent to sell or distribute any book, magazine, pamphlet, comic book, story paper, writing, paper, picture, drawing, photograph, figure, image or any written or printed matter of an indecent character, which is obscene, lewd, lascivious, filthy, indecent or disgusting, or which contains an article or instrument of indecent or immoral use or purports to be for indecent or immoral use or purpose, the circuit court of such county in chancery shall have and exercise jurisdiction to adjudicate upon the lawful propriety of such sale, distribution, possession or acquisition under and in accordance with the provisions of this act and to enjoin the same if adjudged not to be lawful and proper.
"Sec. 2. The chief executive or legal office of any city, village or charter township or prosecuting attorney of the county may institute and maintain an action in the court against such person, firm or corporation to enjoin and prevent the sale or further sale or the distribution or further distribution or the acquisition or possession of any book, magazine, pamphlet, comic book, story paper, writing, paper, picture, drawing, photograph, figure or image or any written or printed matter of an indecent character.” 1958 PA 126. | [
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] |
Defendant has requested appointment of counsel under Administrative Order No. 1975-9, 395 Mich xliii. The request, the Court of Appeals record, and the trial court record have been considered, and the request is granted. Defendant shall file with Washtenaw Circuit Court an affidavit concerning his present financial status (see guidelines at 387 Mich xxxi). The prosecutor shall be furnished a copy of the financial affidavit and may challenge defendant’s asserted indigency within 20 days after receiving the affidavit. The challenge, if brought, shall be resolved at a hearing before Washtenaw Circuit Court at which the prosecution, defendant, and the State Appellate Defender shall appear personally to aid the court’s inquiry. Washtenaw Circuit Court, upon a finding of indigency, shall appoint the State Appellate Defender and shall furnish any portion of the record counsel may require. | [
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] |
Levin, J.
Ernest Edwards was jury-convicted of second-degree murder for the fatal shooting of Robert Stevens.
At trial, one of Edwards’ witnesses sought to testify that Chester Blake, then deceased, had told him that he (Blake) killed Stevens. The trial court sustained the prosecutor’s objection and asked the jury to disregard the testimony.
The Court of Appeals affirmed the conviction.
We hold that the proffered hearsay evidence was admissible as a declaration against penal interest and reverse and remand for a new trial.
I
Harold Napora and Stevens (the victim) spent the evening of April 23, 1971 traveling from bar to bar in search of a prostitute.
They met defendant Edwards who said he could find them a woman for $10. Edwards introduced them to Betty King. Napora, Stevens and King, however, were unable to agree on a price.
Napora testified that when it became apparent no agreement would be reached, he and Stevens started to drive away. Edwards pulled a gun and said, "This is a stickup. Give me your money and don’t take off.” As Napora drove away, he heard two shots fired.
Stevens had been sitting on the passenger’s side of Napora’s truck. The door was partly open as they started to drive away and Stevens told Napora he thought he "got grazed a little bit”. They examined his side at Stevens’ home. Napora testi fied that they saw only a little red spot which did not look like a hole. Stevens was not bleeding and declined Napora’s offer of a ride to the hospital. Napora, not knowing Stevens had been shot, went home.
Stevens bled to death as a result of a gunshot wound of the liver. A .22-caliber bullet was removed from his body.
Edwards testified that after he introduced King to Napora and Stevens, he went to Skip’s After Hour. He denied having a gun or firing any shots at Napora or Stevens. 5He said that Chester Blake came into Skip’s trying to pawn a .22-caliber pistol for $10. Edwards said he gave Blake $10 for the gun, took it home and sold it to David Benton the next day. Stevens was killed with a .22.
King’s testimony tended to corroborate that of Edwards. She said that after she, Stevens and Napora failed to reach an agreement, "some shooting started”. She said she saw Chester Blake standing nearby with a gun.
II
John Longuemire sought to testify that Chester Blake, then deceased, had told him* ** that he (Blake) killed Stevens. The people’s objection was sustained and the jury instructed to disregard Longuemire’s testimony.
The general rule is that hearsay, an out-of-court statement offered as proof of the matter asserted, is inadmissible at trial.
That rule is riddled with exceptions.
One exception is for declarations against the pecuniary or proprietary interest of the declarant. Such statements are admissible as proof of the matter asserted if the declarant is unavailable for trial because they are considered inherently reliable. Wigmore states "[t]he basis of the exception is the principle of experience that a statement asserting a fact distinctly against one’s interest is unlikely to be deliberately false or heedlessly incorrect”.
While courts uniformly recognize the exception for declarations against pecuniary or proprietary interest, they have generally refused to admit declarations against penal interest.
This distinction, which has been criticized by courts, commentators and code drafters as without basis in law or logic, was first made by the House of Lords in 1844 in the Sussex Peerage Case.
Both Wigmore and McCormick state that the House of Lords ignored precedent in holding that a declaration against penal interest was not within the declaration against interest exception to the hearsay rule. Wigmore characterizes the case as "a backward step”, "an arbitrary limit” that "was plainly a novelty at the time of its inception” and that would perhaps in England "no longer be observed”. He labels the decision a "barbarous doctrine which would refuse to let an innocent accused vindicate himself’.
"It is therefore not too late to retrace our steps, and to discard this barbarous doctrine, which would refuse to let an innocent accused vindicate himself even by producing to the tribunal a perfectly authenticated written confession, made on" the very gallows, by the true culprit now beyond the reach of justice. Those who watched (in 1899) with self-righteous indignation the course of proceedings in Captain Dreyfus’ trial should remember that, if that trial had occurred in our own courts, the spectacle would have been no less shameful if we, following our own supposed precedents, had refused to admit what the French court never for a moment hesitated to admit — the authenticated confession of the absconded Major Esterhazy, avowing himself the guilty author of the treason there charged, and now known beyond a doubt to have been the real traitor.”
Justice Holmes severely criticized recognition of the distinction by the United States Supreme Court in his oft-quoted dissent in Donnelly v United States, 228 US 243, 277-278; 33 S Ct 449; 57 L Ed 820 (1913):
"The confession of Joe Dick, since deceased, that he committed the murder for which the plaintiif in error was tried, coupled with circumstances pointing to its truth, would have a very strong tendency to make any one outside of a court of justice believe that Donnelly did not commit the crime. I say this, of course, on the supposition that it should be proved that the confession really was made, and that there was no ground for connecting Donnelly with Dick. — The rules of evidence in the main are based on experience, logic and common sense, less hampered by history than some parts of the substantive law. There is no decision by this court against the admissibility of such a confession; the English cases since the separation of the two countries do not bind us; the exception to the hearsay rule in the case of declarations against interest is well known; no other statement is so much against interest as a confession of murder, it is far more calculated to convince than dying declarations, which would be let in to hang a man * * * ; and when we surround the accused with so many safeguards, some of which seem to me excessive, I think we ought to give him the benefit of a fact that, if proved, commonly would have such weight. The history of the law and the arguments against the English doctrine are so well and fully stated by Mr. Wig-more that there is no need to set them forth at greater length.”
And Judge Friendly in United States v Annunziato, 293 F2d 373, 378 (CA 2, 1961), felt bound by but expressly disapproved what he characterized as "the rather indefensible limitation” on the declaration against interest exception to the hearsay rule.
Ill
A number of state courts have declined to follow the English rule and have held declarations against penal interest admissible as a common-law exception to the hearsay rule.
In Hines v Commonwealth, 136 Va 728, 740; 117 SE 843; 35 ALR 431, 439-440 (1923), a witness for the defense was permitted to testify as to a confession made by a then deceased person. The Virginia Supreme Court of Appeals stated:
"[W]e think it must be conceded that many of the courts and text-writers who stand for the doctrine [that declarations against penal interest are inadmissible] have felt called upon to apologize for their position, or, if not to apologize, to undertake to explain to the lay mind that, although a contrary doctrine would appear to be demanded by common sense and natural justice, nevertheless a trained professional eye could see the matter in a different light.”
In Newberry v Commonwealth, 191 Va 445; 61 SE2d 318 (1950), the same Court held that a third person’s written confession was properly admitted where he claimed his Fifth Amendment right against self-incrimination and refused to testify.
The Supreme Court of California, in People v Spriggs, 60 Cal 2d 868; 36 Cal Rptr 841; 389 P2d 377, 381 (1964), held admissible statements of defendant’s companion that the heroin found by police was hers. The Court found declarations against penal interest "no less trustworthy” than declarations against pecuniary or proprietary interest: "A person’s interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against that interest”.
Additionally, the California Court stated that traditional analysis could be relied on to admit declarations against penal interest since conviction of a crime "ordinarily entails economic loss”.
The Supreme Court of Hawaii in State v Leong, 51 Hawaii 581, 587; 465 P2d 560, 564 (1970), citing People v Spriggs, supra, agreed that there is "no sound basis” for excluding declarations against penal interest. They are "no less trustworthy” than other declarations against interest and the potential criminal liability "will act as a stimulus to telling the truth, or as a deterrent to falsification”.
The New York Court of Appeals, in adopting "a more rational view of admissibility of declarations against interest”, stated that "the distinction which would authorize a court to receive proof that a man admitted he never had title to an Elgin watch, but not to receive proof that he had admitted striking Jones over the head with a club, assuming equal relevancy of both statements, does not readily withstand analysis”.
The Supreme Court of Missouri in 1945 adopted the view that declarations against penal as well as proprietary or pecuniary interest were admissible. In Sutter v Easterly, 354 Mo 282, 296; 189 SW2d 284, 290 (1945), the Court, persuaded by Wigmore’s analysis, refused to blindly "adher[e] to the illogical English rule [the Sussex Peerage Case]”.
Similarly, the Supreme Courts of Idaho and Illinois, the Maryland Court of Appeals, and appellate courts of Arizona, Texas, and New Jersey have held hearsay declarations against penal interest admissible in particular circumstances.
IV
The cases generally offer no reasoned justification for excluding declarations against penal interest beyond the simple statement that they are hearsay. It has been suggested that the underlying rationale is fear that the admission of such evidence would encourage fabrication.
No one today would contend that because a criminal defendant has a lot "at stake” there is a risk of fabrication and he cannot take the stand or, before he can testify, a judge must first determine his credibility. We leave to the trier of fact whether to believe the defendant’s testimony.
Yet the same justification — the motive of the defendant to present false evidence to avoid conviction — is suggested as an appropriate reason for excluding exculpatory evidence and for allowing judges to rule on the credibility of defense witnesses.
In ruling on the admissibility of evidence, a judge does not make a preliminary determination regarding the truth or falsity of the proffered evidence or the weight the trier of fact should accord it.
The Supreme Courts of California and Hawaii, the New York Court of Appeals, and the Virginia Supreme Court of Appeals, in holding declarations against penal interest admissible, declared that credibility is for the trier of fact and is not an appropriate consideration where the question concerns the admissibility of evidence. The Virginia Court recognized that witnesses may lie and alleged confessions may "be foisted on the courts and juries, but so may alleged admissions in civil cases, as, for example, regarding the location of a corner tree or other real estate controversy. As to both classes of admissions they must be admitted, if at all, because the evidence itself is important to the ends of justice, and because it may be assumed that no man will speak falsely to his own hurt. The truth of the admission itself, and the credibility of the witness who undertakes to repeat the admission, must, like the truthfulness of all other testimony, address itself to and be settled by the jury.”
Wigmore similarly rejects the "possibility-of-procuring-fabricated-testimony” argument, stating that it "would be a good argument against admitting any witnesses at all, for it is notorious that some witnesses will lie and that it is difficult to avoid being deceived by their lies.” He concludes that "any rule which hampers an honest man in exonerating himself is a bad rule, even if it also hampers a villain in falsely passing for an innocent”.
V
The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, on the recommendation of the Advisory Committee on Rules of Evidence, proposed that an exception to the hearsay rule be recognized for declarations against penal as well as pecuniary or proprietary interest. The committee noted that "[qjuestions of possible fabrication are better trusted to the competence of juries than made the subject of attempted treatment by rule”. Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates (March, 1969), p 214.
The recommendation was not accepted. The rule which was enacted recognizes an exception to the hearsay rule for declarations against penal interest, but where such declarations are offered to exculpate the accused they are not admissible "unless corroborating circumstances clearly indicate the trustworthiness of the statement”.
The nature of the "corroborating circumstances” which would "clearly indicate the trustworthiness” of a declaration against penal interest is neither defined in the rules nor discussed in the notes. It appears from the editorial comments to the rules, however, that an important factor in the decision to require corroboration where defendants seek to introduce exculpatory declarations against penal interest was the fear of fabricated evidence, both perjured testimony by witnesses and false confessions of crime by declarants.
We are of the opinion that the circumstances surrounding the making or reporting of a third-party statement, whether "assuring reliability”, "indicating trustworthiness”, or "rendering totally incredible”, go to the weight to be given the testimony, not its admissibility. For a judge to exclude evidence because he does not believe it has been described as "altogether atypical, extraordinary * * * .”' "[0]ur adversary system reposes judgment of the credibility of all witnesses in the jury.” Brooks v Tennessee, 406 US 605, 611; 92 S Ct 1891; 32 L Ed 2d 358 (1972). Cross-examination of the witness, penalties for perjury, and the good sense of the trier of fact to whom all other questions of possible fabrication are entrusted are adequate safeguards against false testimony.
We reject the apparent double standard of the compromise that a preliminary showing of trustworthiness is required only where the defendant offers a declaration against penal interest to exculpate himself. Such a rule is based on an assumption that criminal defendants are more likely to use perjured testimony. We refuse to predicate a rule of law upon such an assumption.
We parenthetically note that King’s testimony tended to "corroborate” the excluded hearsay statement. If it be said that before the trial she gave an inconsistent statement (fn 6), so had Napora (fn 2), the principal witness for the people; it is for the jury as trier of fact to decide which of two impeached witnesses to believe.
VI
Because we hold that a declaration against penal interest is admissible as a common-law exception to the hearsay rule, it is not necessary to address the constitutional question presented in this case. See Chambers v Mississippi, 410 US 284; 93 S Ct 1038; 35 L Ed 2d 297 (1973), where the United States Supreme Court held that under certain circumstances exclusion of hearsay testimony critical to the defense may constitute a denial of due process. See also Commonwealth v Nash, 457 Pa 296; 324 A2d 344 (1974), where the Supreme Court of Pennsylvania held that under certain circumstances declarations against penal interest which tend to exculpate the defendant are admissible as part of the due-process right to present a defense.
Reversed and remanded for a new trial.
Kavanagh, C. J., and Williams, J., concurred with Levin, J.
Lindemer and Ryan, JJ., took no part in the decision of this case.
People v Ernest Edwards, 47 Mich App 307; 209 NW2d 527 (1973).
On April 24, 1971, Napora told the sheriffs department that Stevens had been shot when two men attempted to rob them as they left a bar. At trial, Napora explained that he lied to the sheriffs department because he was married and he did not want his wife to know that he and Stevens were looking for a prostitute.
The next day, Napora and his wife went to Stevens’ home. When no one answered the door, Napora looked through the kitchen window and saw Stevens on the floor. He called Stevens’ brother and notified the police.
On May 6, 1971, Edwards told the police that he thought Stevens had "a knife or something” in his pocket, so he pulled a gun to frighten him; King then grabbed his arm and the gun fired twice.
At trial, he testified that he lied to the police because he did not want to be charged with murder and King had told him he would get off if he told the police he accidentally shot Stevens.
On cross-examination, Napora testified that he had a .22-caliber gun which belonged to Stevens but that he broke it up and threw it into a gravel pit near Mt. Pleasant the day after Stevens was found dead. The police attempted but were unable to recover the gun. A ballistics expert testified that the .22-caliber bullet removed from Stevens’ body had been fired by a gun which was recovered by the police following a trafile accident involving David Benton five days after Stevens was shot.
On May 6, 1971, King told the police that Edwards had shot Stevens, but it was an accident.
At trial, King testified that she had lied to the police because Chester Blake and his brother had threatened to kill her if she told the truth. She also said Chester Blake paid her not to tell “everything” to the police.
Longuemire testified that he last talked with Blake “probably a week or two before he got killed”. He also said that he had a conversation with Blake in "the beginning of May” or "[r]ight before May”. Stevens was shot on April 23. The trial was in November.
"Q: Do you know who killed or shot a man on 5th Street between Federal and Lapeer on the night of April the 23[rd], 1971?
"A-Yes, I do.
"Q: And who did that?
"A: Chester Blake.
"Q: Chester Junior?
'A: Yes.
"Q: And how do you know that Chester Junior did that?
"A: Well, he told me.
"Mr. Oberschmidt [Assistant Prosecuting Attorney]: I’m going to object to these answers, your Honor.
"Mr. Schwartzly [Defense Counsel]: Your Honor, this is a direct admission from a man who has killed a man and it’s admissible evidence as a declaration against interest just the same as if my client admitted it.
"The Court: I’m going to sustain the objection and ask the jury to disregard it.”
There was other evidence that Chester Blake was also known as Chester Junior.
5 Wigmore on Evidence (Chadbourn Rev), § 1361; McCormick, Evidence (2d ed), §§ 245-246.
5 Wigmore, supra, §§ 1455-1477; McCormick, supra, §§ 276-280.
5 Wigmore, supra, § 1457, p 329.
5 Wigmore, supra, §§1476-1477; McCormick, supra, §278; 2 Wharton, Criminal Evidence (13th ed), § 270; Anno: Admissibility in favor of accused in criminal case of extrajudicial confession by stranger, 35 ALR 441, supplemented by Anno: Admissibility in favor of accused in criminal case of extrajudicial confession by stranger, 48 ALR 348.
"[A]n archaic rule of evidence * * * characterized by experts as an historical accident without reason to support it.” Alexander v State, 84 Nev 737, 743; 449 P2d 153, 157 (1968) (dissenting opinion of Thompson, C. J.).
See, e.g., People v Spriggs, 60 Cal 2d 868; 36 Cal Rptr 841; 389 P2d 377 (1964); State v Leong, 51 Hawaii 581; 465 P2d 560 (1970); People v Brown, 26 NY2d 88; 308 NYS2d 825; 257 NE2d 16 (1970); Sutter v Easterly, 354 Mo 282; 189 SW2d 284; 162 ALR 437 (1945); Donnelly v United States, 228 US 243, 277; 33 S Ct 449; 57 L Ed 820 (1913) (Holmes, J., dissenting); United States v Annunziato, 293 F2d 373 (CA 2, 1961); 5 Wigmore, supra, §§ 1476-1477; McCormick, supra, § 278; Uniform Rules of Evidence 1953, 63(10); Uniform Rules of Evidence 1974, 804(b)(3); ALI Model Code of Evidence 1942, 509.
11 Clark & F 85; 8 Eng Rep 1034; 8 Jur 793 (1844).
McCormick, supra, § 278; 5 Wigmore, supra, § 1476, p 351.
5 Wigmore, supra, § 1476, p 351.
5 Wigmore, supra, § 1476, p 358.
See Anno: Admissibility, as against interest, of declaration of commission of criminal act, 162 ALR 446.
5 Wigmore, supra, § 1477, p 360.
"The only practical consequences of this unreasoning limitation are shocking to the sense of justice; for in its commonest application it requires, in a criminal trial, the rejection of a confession, however well authenticated, of a person deceased or insane or fled from the jurisdiction (and therefore quite unavailable) who has avowed himself to be the true culprit. The absurdity and wrong of rejecting indiscriminately all such evidence is patent * * * .” 5 Wigmore, supra, § 1477, p 359.
New Jersey and Wisconsin have enacted statutes which provide for the admission of declarations against penal interest. NJR Evid 1960, 63.10; Wis R Evid 1974, 908.045(4).
California enacted a similar statute after the California Supreme Court ruled that under the common law declarations against penal interest were admissible. See People v Spriggs, supra, fn 13.
Under the new Federal Rules of Evidence declarations against interest, whether pecuniary or penal, are admissible. The statute further provides that declarations against penal interest which tend to exculpate the accused are admissible where "corroborating circumstances clearly indicate the trustworthiness of the statement”. FR Evid 804(b)(3).
Earlier proposals for codification of the law of evidence rejected exclusion of declarations against penal interest. See Uniform Rules of Evidence 1953, 63(10) and ALI Model Code of Evidence 1942, 509(1).
The Supreme Court of Pennsylvania has held that declarations against penal interest which are reliable and which tend to exculpate the defendant are admissible as a matter of constitutional right — the due-process right to present a defense. Commonwealth v Nash, 457 Pa 296; 324 A2d 344 (1974).
Similar analysis — that it is against a person’s pecuniary interest to confess to a crime — has been used by other courts to hold admissible declarations against penal interest. See, e.g., Weber v Chicago, R I & P R Co, 175 Iowa 358; 151 NW 852, 861, 864-865 (1915); G M McKelvey Co v General Casualty Co, 166 Ohio 401; 142 NE2d 854 (1957); Aetna Life Insurance Co v Strauch, 179 Okla 617; 67 P2d 452, 455 (1937).
"A declaration against penal interest is no less trustworthy because criminal implication is certainly as damaging, if not more, as one’s declaration against his pecuniary or proprietary interest; and thus it will act as a stimulus to telling the truth, or as a deterrent to falsification.” State v Leong, fn 13 supra.
The California Supreme Court similarly stated:
"A declaration against penal interest is no less trustworthy. * * * [A] person’s interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against that interest. Moreover, since the conviction of a crime ordinarily entails economic loss, the traditional concept of a 'pecuniary interest’ could logically include one’s 'penal interest.’ ” People v Spriggs, fn13 supra.
People v Brown, 26 NY2d 88, 91; 308 NYS2d 825, 826-827; 257 NE2d 16 (1970).
See, also, Moore v Metropolitan Life Insurance Co, 237 SW2d 210 (Mo App, 1951).
In State v Larsen, 91 Idaho 42, 49; 415 P2d 685, 692 (1966), the Supreme Court of Idaho held that "third-party confessions, made out of court, are admissible only when there is other substantial evidence which tends to show clearly that the declarant is in fact the person guilty of the crime for which the accused is on trial”.
People v Lettrich, 413 Ill 172; 108 NE2d 488 (1952). A third-party confession to murder was held admissible where the only evidence of defendant’s guilt was his repudiated confession.
Brady v State, 226 Md 422; 174 A2d 167 (1961); Dyson v State, 238 Md 398, 407; 209 A2d 609, 614 (1965):
"[T]he later cases have established that a confession by one other than the defendant, that he committed the crime in question, should be received and considered by the trier of the guilt of the accused, unless it is clearly collusive, frivolous or otherwise obviously untrustworthy”.
Deike v Great Atlantic & Pacific Tea Co, 3 Ariz App 430, 432, 433; 415 P2d 145, 147-148 (1966).
"Penal interest is certainly as important to a person as pecuniary or proprietary interest and would appear to be an equal stimuli to telling the truth or a deterrent to false statements.”
The Court held that the statement at issue in that case was
inadmissible because there was no showing that it was "against the declarant’s interest — pecuniary, proprietary, penal or otherwise.”
Cameron v State, 153 Tex Cr 29; 217 SW2d 23 (1949). Where the case against the defendant is solely circumstantial, the guilt of a third party is inconsistent with the guilt of defendant and the facts show the third party was so situated that he might have committed the crime, a third-party confession is admissible.
State v Sejuelas, 94 NJ Super 576; 229 A2d 659 (1967).
The Supreme Courts of Nevada and Mississippi have recently reconsidered the question of the admissibility of declarations against penal interest and adhered to the old distinction, declining to adopt a rule of even limited admissibility. See Alexander v State, 84 Nev 737; 449 P2d 153 (1968) (Thompson, C. J., dissenting). The Mississippi decision, Chambers v State, 252 So 2d 217 (Miss, 1971), was reversed by the United States Supreme Court which held that Chambers had been denied due process of law where he was precluded from introducing exculpatory declarations against penal interest (see fn 44) and was prevented from cross-examining a witness under the state’s "voucher” rule. Chambers v Mississippi, 401 US 284; 93 S Ct 1038; 35 L Ed 2d 297 (1973).
The Supreme Court of Wisconsin also declined to adopt a common-law exception for declarations against penal interest, but in so doing the Court noted that such declarations were admissible under the Wisconsin Rules of Evidence, patterned after the ALI Model Code of Evidence, which became effective January 1, 1974. See State v Sharlow, 61 Wis 2d 388; 212 NW2d 591 (1973), and State v Johnson, 60 Wis 2d 334; 210 NW2d 735 (1973).
McCormick states that the practice of excluding declarations against penal interest "certainly cannot be justified on the ground that an acknowledgment of facts rendering one liable to criminal punishment is less trustworthy than an acknowledgment of a debt. The motivation for the exclusion is probably a different one, namely, the fear of opening a door to a flood of perjured witnesses falsely testifying to confessions that were never made.” He rejects this possibility-of-fabrication justification for excluding declarations against penal interest, McCormick, supra, § 278, p 674.
See fn 22 and accompanying text.
People v Spriggs, fn 13, supra.
State v Leong, fn 13, supra.
People v Brown, fn 13, supra.
Hines v Commonwealth, 136 Va 728; 117 SE 843; 35 ALR 431 (1923).
Hines v Commonwealth, supra, 745.
Wigmore, supra, § 1477, p 359.
FR Evid 804(b)(3), Pub L No. 93-595, art 8 (Jan 2, 1975).
See Note, Declarations Against Penal Interest: What Must be Corroborated Under the Newly Enacted Federal Rule of Evidence, Rule 804(b)(3), 9 Valparaiso L Rev 421 (1975).
See Notes of Advisory Committee on Proposed Rules, 804(b)(3).
Chadbourn, Bentham and the Hearsay Rule — A Benthamic View of Rule 63(4)(c) of the Uniform Rules of Evidence, 75 Harv L Rev 932, 947 (1962), cited in Notes of Advisory Committee on Rules of Evidence to Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Rules of Evidence for the District Courts and Magistrates (March, 1969), p 155.
A police officer or an informer can testify to extrajudicial statements of the defendant without a foundation showing circumstances indicating reliability or trustworthiness.
Nor is there any requirement of a showing of trustworthiness where the people offer hearsay statements of alleged co-conspirators or codefendants, usually reported by undercover agents or informants. The predicate of admissibility — proof by independent evidence that a crime was committed and that defendant was connected to it — does not require the people to show that the hearsay statement is itself trustworthy.
Police officers are engaged in what has been called the "often competitive enterprise of ferreting out crime”. Johnson v United States, 333 US 10, 14; 68 S Ct 367; 92 L Ed 436 (1948).
Undercover agents and informers are professional dissemblers. Their assignment is to take on a false identity and so convincingly act a lie that they gain the confidence of alleged drug dealers, fences and murderers. Frequently their very lives depend upon their ability to play a particular role.
These same persons, skilled in the art of dissembling, then come into court and repeat statements allegedly made to them which inculpate defendants. Often they are cooperating with the authorities in an effort to win concessions regarding charges pending against them; many are paid; others "cooperate” with the police because they are morally outraged by the conduct defendant is alleged to have engaged in. Leniency, pay and vindication of moral convictions could well be related to success in the particular assignment; there is a motive for the agent or informant to make the case he or she knows the authorities want. To concede that a defendant also has a motive to make his case does not justify a rule limiting admissibility of certain exculpatory evidence only upon a special showing of reliability or trustworthiness.
The Court held that it was a denial of due process to exclude hearsay statements against penal interest which "bore persuasive assurances of trustworthiness” and were "critical to Chambers’ defense”. Each statement "was made spontaneously to a close acquaintance shortly after the murder had occurred”, "was corroborated by some other evidence in the case”, "was in a very real sense self-incriminatory and unquestionably against interest”. Also, the declarant "was present in the courtroom and had been under oath”.
The Court noted that the advisory committee proposal for the new Federal Rules of Evidence would nó longer require exclusion and said that while the fabrication rationale had "been the subject of considerable scholarly criticism, we need not decide in this case whether, under other circumstances, it might serve some valid state purpose of excluding untrustworthy testimony”. Chambers v Mississippi, supra, pp 299-302. | [
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] |
Kavanagh, C. J.
This is an appeal from an order of the State Bar Grievance Board of January 17, 1975 affirming an order of discipline made by Wayne County Hearing Panel No. 14 on April 18, 1974 suspending respondent’s license to practice law for 60 days.
Respondent does not challenge the correctness of the hearing panel’s findings of fact, but raises four issues for our consideration.
(1) Was respondent denied due process of law by not having three members of the hearing panel hear his case? (2) Was the method of selecting the hearing panel violative of respondent’s constitutional rights? (3) Did respondent have a right not to answer the formal complaint? (4) Were Canon 6 of the Code of Professional Responsibility and rules 15, § 2(4) and 15, § 2(7) of the Supreme Court rules relating to the State Bar of Michigan violated in such a manner as to warrant the suspension?
I
At the opening of the hearing in this matter, respondent’s counsel noted that there were only two members of the three-member panel present. The chairman responded that two members constitute a quorum and that the third member of the panel was in trial. That was the end of the discussion on that particular matter.
Respondent argues on appeal that rule 16.3.2 provides that a "hearing panel shall act by vote of a majority”, and a panel of only two denies the respondent a majority vote. It is also contended that respondent was improperly denied the possible dissent of the third member which would still allow for a majority vote.
A quorum of two was present. The vote was unanimous.
While the potential for difficulty is provided by the use of a panel with only two members present, e.g., a tie vote, we find no prejudicial error in this instance.
II
Respondent contends that the manner of selec tion of attorneys for hearing panels is arbitrary and capricious, thereby depriving respondent of a fair hearing. The basis for this argument appears to be that attorneys who do not practice criminal law would be unable to understand fully the unique difficulties connected with such a practice, and thus would not afford a fair hearing.
Again, while it might be advisable for a hearing panel to include practitioners familiar with the type of practice in which respondent is engaged, failure to do so did not result in a denial of due process.
Ill
Respondent failed to answer the request for investigation contrary to Grievance Board Rule 16.6 and State Bar Rule 15, § 2(7).
Respondent contends that he had a right not to answer a complaint which he alleges was "frivolous” and "tainted” and constituted an "obvious abuse of authority or failure to make a preliminary investigation”.
Rule 16.6 of the Grievance Board Rules requires that after a respondent has been served with a copy of the request for investigation, the respondent "shall thereafter make a full and fair disclosure of all the facts and circumstances pertaining to his alleged misconduct unless his refusal to do so is predicated upon expressed constitutional or professional grounds, or defenses permitted by the General Court Rules”.
Respondent did not make the necessary express objections to the requirement that he answer.
The reason put forth for his refusal to answer is that he was not allowed to review the investigative file to determine what investigation had already been completed. Respondent contends that "a just disclosure by the administrator is a constitutional right that can only be expressly waived by the respondent. Without such waiver, the respondent is not compelled to reply”. We disagree. Except for the express conditions of rule 16.6, the respondent is required to answer. State Bar Grievance Administrator v Moes, 389 Mich 258; 205 NW2d 428 (1973).
Respondent argues that the request for investigation was frivolous. That determination is for the administrator and the grievance board. Grievance Board Rule 16.7. They did not find the charges frivolous.
One means of persuading the administrator that the charges are frivolous is for the respondent to file an answer explaining the circumstances.
IV
Finally, respondent argues that suspension was not appropriate in this case.
Respondent was retained to represent a defendant in a criminal case. His fee was paid. He appeared with his client who pled guilty. Sentencing was set for October 4, 1972. On October 2, 1972 the client phoned and informed respondent that he would be hospitalized on October 4, and requested him to postpone the sentencing date. Respondent failed to obtain the adjournment and did not appear. The sentencing was then scheduled for October 11th, and respondent’s office was notified. On October 11th, respondent and client again failed to appear, and a capias was issued resulting in the client’s arrest on November 20th. The client phoned respondent and informed him that he would be sentenced November 22. On November 22, sentencing occurred in respondent’s absence.
Respondent argues that his behavior was excusable and did not result in any injury to his client who received probation.
The hearing panel found this failure to appear and represent a client at sentencing to be a violation of Canon 6, DR 6-101(A)(3) of the Code of Professional Responsibility and rule 15, § 2(4) of the State Bar Rules. We agree.
"Once a lawyer accepts retainer to represent a client he is obliged to exert his best efforts wholeheartedly to advance the client’s legitimate interests with fidelity and diligence until he is relieved of that obligation either by his client or the court.” State Bar of Michigan v Daggs, 384 Mich 729, 732; 187 NW2d 227 (1971).
We have discussed above the failure of respondent to answer the complaint in violation of rule 15, § 2(7).
The hearing panel entered an order suspending respondent from the practice of law for 60 days and assessed costs and expenses incurred in processing the grievance. The State Bar Grievance Board affirmed the panel, and assessed additional costs.
We are satisfied from our review of the whole record that the panel’s findings were adequately supported by the evidence, and warranted the disciplinary action imposed.
The board’s order is affirmed.
Williams, Levin, Coleman, Fitzgerald, and Lindemer, JJ., concurred with Kavanagh, C. J.
Ryan, J., took no part in the decision of this case. | [
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Fitzgerald, J.
Plaintiffs Tucson sued defendants Farrington for specific performance. Based on plaintiffs’ exhibit l, the trial court found that an enforceable agreement for the sale of defendants’ farm existed and entered a judgment for the equitable relief requested. The Court of Appeals, at 53 Mich App 149; 218 NW2d 816 (1974), agreed that the remedy was appropriate, but modified certain terms of the trial court’s judgment. We reverse, having determined that exhibit 1 is not sufficiently complete under the statute of frauds to justify specific performance.
Exhibit 1 was drafted and signed by the Farringtons on June 13, 1970, at which time Mr. Tucson delivered to them his check for $100. An additional $400 was paid to the Farringtons on July 11, 1970. These are the operative facts. If they do not evidence a specifically enforceable agreement for the sale of realty, the other facts of record set forth below evidence little more than five months of negotiations subsequent to the signing of exhibit 1 — attempts by the parties either to settle terms left undetermined in the writing, or to modify those which had been put in written form.
On its face, exhibit 1 reveals that the parties orally agreed to deferred payments, but it lacks the precise down payment, the schedule and interval of deferred payments, and the fixed amount of those payments.* *** As a general rule, a term of credit is an essential term of the contract for the sale of land, and it must be stated with substantial certainty in the written memorandum of such a contract. Early Michigan case law required that payment terms be specified even in a case where it was conceded by all concerned that payment of the balance of the purchase price was to be made upon delivery of the deed. The rigors of the statute were gradually relaxed, so that in Michigan, like most jurisdictions, the writing did not need to state the time or terms of payment when the transaction appeared to be a cash sale.
Today, it may be safely said that a writing is not insufficient under the statute for failure to state the time and terms of payment unless, from the writing itself, it appears that deferred payments were agreed upon. See Duke v Miller, 355 Mich 540, 543; 94 NW2d 819 (1959), where this Court unanimously adopted as controlling the opinion of Mr. Justice Butzel in Goldberg v Mitchell, 318 Mich 281, 285-290; 28 NW2d 118 (1947). However, even per Goldberg and Duke, when the writing on its face evidences deferred payments, it must state with reasonable certainty the substance of the payment terms.
The Court of Appeals, relying on Wozniak v Kuszinski, 352 Mich 431; 90 NW2d 456 (1958), resorted to the principle of evidentiary supplementation to fill in the details which we find fatally absent from exhibit 1. In Wozniak, evidence of . circumstances existing at the time that the writing was made was admitted for the purpose of supplementing a description of the premises. In the case at bar, there is no evidence of circumstances existing at the time that exhibit 1 was made by which the unsettled deferred payment terms might be filled in. Indeed, plaintiffs Tucson testified that the terms of the parties’ oral understanding were no more specific than as written in exhibit 1. The courts below gathered and judicially imposed terms from the parties’ offers and counteroffers made during the course of negotiations subsequent to that writing. This was error. If the parties had a contract as of the date of exhibit 1, that writing is insufficient under the statute to compel its performance.
The Court of Appeals is reversed. The cause is remanded to the trial court for entry of a judgment dismissing the complaint upon payment by defendants of the $500 received in deposit, plus interest on that amount at the rate applicable to judgments. Defendants may tax costs.
Williams, Coleman, and Lindemer, JJ., concurred with Fitzgerald, J.
Ryan, J., took no part in the decision of this case.
13
"June 44, 1970”
"TO WHOM IT MAY CONCERN:
"MORRIS S. FARRINGTON AND WIFE HAZEL AGREE TO SELL PROPERTY AT 2276 WADHAMS ROAD TO CHARLES TUCSON AND WIFE DESCRIBED AS FOLLOWS:
"Sl/2 of NW1/4 EX N 900' of Wl/2 THEREOF ALSO THAT PART OF Nl/2 of SW1/2 LYING N OF G.T.R.R. R-W & CONT. 81.56 A SEC 11 T6N R16E 81.56 A for the sum of fifty thousand dollars ($50,000). Approximately one third down, the balance to be paid over a period of 10 years at 7% interest. THIS OPTION TO EXPIRE IN 30 DAYS. One hundred dollars (100.00) to be paid at time of agreement with said amount to be applied on purchase price.
"Morris S. Farrington
"Hazel Farrington — 9823336”
The amount of down payment, the amounts and terms of deferred payments, and the date of possession.
MCLA 566.108; MSA 26.908 reads in pertinent part as follows: "Every contract for the leasing for a longer period than 1 year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof be in writing, and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized in writing”.
On June 23, 1970, in contemplation of the closing of this sale to the Tucsons, the Farringtons completed purchase of a new residence in Port Huron. On July 11, Mr. Tucson informed the Farringtons that he was having trouble financing the "[a]pproximately one-third down”, and they agreed orally to reduce the down payment to $10,000.
The Tucsons claimed that on July 22 and again on July 25, Mr. Tucson showed defendants a $10,000 money order payable to the Tucsons, and offered to negotiate this instrument to defendants upon execution of a land contract. The Farringtons deny ever having been shown any negotiable instrument. They testified that Mr. Tucson did exhibit a savings account pass book on several occasions until negotiations ultimately broke down, and that he told them that they would get their money when they moved out. The parties agreed orally on August 22 as a date for transfer of possession.
On or about August 17, Messrs. Tucson and Farrington met at the office of the Farringtons’ attorney. A draft of a land contract was presented to Mr. Tucson who wished to consult his attorney prior to execution. On August 20, the Tucsons’ attorney wrote to defendants’ attorney suggesting various modifications to the contract and requesting certain information.
The Farringtons testified that they vacated the farm premises on August 21, and moved to the residence in Port Huron which they had purchased. They further testified that they moved back to the farm sometime later when they discovered that the Tucsons had not occupied the premises on August 22.
On August 24, defendants’ attorney wrote plaintiffs’ attorney, agreeing to one of the modifications suggested in the correspondence of August 20, but expressing reservations regarding language permitting assignment of the contract without the seller’s consent. No further correspondence was had between the attorneys until October 7.
In the meanwhile, sometime during the month of September, the Tucsons went to the defendants’ farm and presented to them a land contract signed by the Tucsons which modified various terms of the Farringtons’ originally-proposed contract. In particular, the contract offered by the Tucsons would have permitted assignment without the consent of the seller.
On October 7, the Farringtons’ attorney, not having had a response to his letter of August 24, wrote to plaintiffs’ attorney requesting to be brought up to date on the status of negotiations. On November 2, plaintiffs’ attorney responded by writing directly to the defendants threatening suit unless the sale were closed within one week. On November 4, defendants’ attorney responded by writing to the Tucsons’ attorney, stating that the parties had never reached agreement, that his clients were willing to return plaintiffs’ deposit and to continue negotiations, but that his clients had been inconvenienced by an unnecessary change in residence and didn’t want to be put needlessly through that procedure again. Substantial changes in the originally-offered contract were proposed. These modifications were rejected by plaintiffs through their attorney on November 9. Plaintiffs filed their complaint on December 14, 1970.
The writing fails to fix the time of possession, although we agree with the Court of Appeals that in this day and age parties entering into a land contract intend, in the absence of contrary evidence, a transfer of possession within a reasonable time after execution of the contract.
4 Williston, Contracts (3d ed), § 575, pp 74 et seq.
Gault v Stormont, 51 Mich 636; 17 NW 214 (1883).
Annotation: Necessity and sufficiency of statement of consideration in contract or memorandum of sale of land, under statute of frauds, 23 ALR2d 164, 189-203. See, also, 72 Am Jur 2d, Statute of Frauds, § 353, pp 875 et seq.
See Mull v Smith, 132 Mich 618, 621; 94 NW 183 (1903). Where, however, it was conceded that a cash sale was not intended, omission of the disputed payment terms was fatal. McCrea v Jerkatis, 320 Mich 309; 31 NW2d 63 (1948).
Plaintiffs maintain that the deferred payment rule has been eroded by Goslin v Goslin, 369 Mich 372; 120 NW2d 242 (1963). We note, however, that there was no indication on the face of the Goslin receipts that deferred payments were intended. Furthermore, on its facts, Goslin appears to have been a convincing case of part-performance sufficient to remove the agreement from the strictures of the statute.
In this respect, the holding was not novel. See Garvey v Parkhurst, 127 Mich 368; 86 NW 802 (1901), and Cramer v Ballard, 315 Mich 496; 24 NW2d 80 (1946). | [
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] |
Rehearing denied. Reported at 395 Mich 440. | [
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] |
Rehearing denied. Reported at 396 Mich 176. | [
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Per Curiam.
The trial judge instructed the jury:
"Now before you go in, I will not reread any testimony, so don’t ask for that. If there is a question of law, all you will have to do is rap on the door and I will bring you back out and explain that to you. A question of law, but not a question of fact. Do we understand that? All right. Will you kindly step inside the jury room.”
The jury convicted defendant of armed robbery. On appeal, defendant argues that the trial judge’s instruction was reversible error. The Court of Appeals agreed that the instruction was erroneous in light of People v Howe, 392 Mich 670; 221 NW2d 350 (1974):
"If it is error for a trial court to refuse a jury’s request for a rereading of particular excerpts of testimony on the ground that undue emphasis might be placed on the same [Howe], a fortiori, it is error where the trial court, before the jury has retired to consider its verdict, completely forecloses the possibility of having any testimony reread. This is what happened in the case at bar, and accordingly we find that the trial court erred in failing to recognize that it had such discretion and, therefore, in failing or refusing to exercise it.” 65 Mich App 95, 99; 237 NW2d 199 (1975).
The Court of Appeals nevertheless affirmed because they found the error harmless. They found no "confusion or ambiguity as to the testimony of witnesses,” noted that the jury reached its verdict in less than two hours, and concluded that the "totality of circumstances * * * convinces us that no miscarriage of justice occurred.” 65 Mich App 100; 237 NW2d 201.
Although we agree with the Court of Appeals that it was error on the part of the trial judge to completely foreclose the opportunity of having testimony reread, Howe, supra, we do not agree that the harmless error doctrine can be applied to this factual situation. Pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, we reverse defendant’s conviction and remand to the trial court for further proceedings.
Since the judge specifically foreclosed any rereading, it is impossible for one not present in the jury room to know if in fact the jury needed testimony read back to it "to resolve a disagreement or correct a memory failure.” Howe, supra, 392 Mich 670, 676. Although we pointed out potential sources of ambiguity in Howe, we also said, "We have no knowledge, of course, of the extent of the jury’s confusion.” 392 Mich 670, 678. We were able in Howe to pinpoint the jury’s concern about specific testimony because the instruction foreclosing rereading came after the jury had begun deliberating and in response to a request to the court for further enlightenment. In this case, the judge’s instruction before the jury began deliberations that a request would not be honored informed the jury that a request would have been unavailing.
It is conjectural to point to the time of jury deliberation, as the Court of Appeals did, as support for the supposition that the jury was not confused; it could also mean that those jurors who did not remember specific testimony, after being advised that they could not get additional help, allowed themselves to be persuaded by those who did remember. Conjecture about what actually went on in the jury room should not be the basis for determining whether the error was harmless. The fact is we do not know what occurred in the jury room.
Absent any factual basis upon which to review whether the error committed was harmless, we do not agree that application of harmless error doctrine is appropriate in this case.
Reversed and remanded for new trial.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Lindemer, and Ryan, JJ., concurred. | [
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Williams, J.
In this case of first impression we consider the impact of a plea of guilty on the constitutional defense of double jeopardy. We hold that the defense of double jeopardy, as it affects whether a trial should have taken place at all, is not waived by a subsequent guilty plea. As this question is dispositive, we do not consider other issues raised by defendant, except we hold that the mere mention of a polygraph test without more does not constitute such manifest necessity as would justify a mistrial. We reverse the Court of Appeals and the trial court, and the defendant is discharged, as he was twice put in jeopardy, contrary to the mandate of the Federal and Michigan Constitutions.
I — Facts
Defendant Alvin Johnson’s first trial, with co-defendant Eddie Perkins on the charge of armed robbery, ended in a mistrial when, two days into the trial, Johnson’s attorney asked a prosecution witness, a police officer:
”Q. Didn’t he [Alvin Johnson] deny he was implicated, involved in the alleged holdup?
"A. Yes, he did.
"Q. Did he also ask you whether or not he could submit to a lie detector test?”
The witness never answered as the prosecutor instantly objected and the jury was excused.
The people moved for a mistrial, maintaining:
"The people would make a motion. Any reference to a lie detector test has to be prejudicial, and I would ask for a mistrial, with reluctance. No reference to a polygraph or lie detector test has been given. There has been no reference to that at all and is absolute grounds for a mistrial.”
Perkins’ counsel concurred. Johnson’s counsel did not, maintaining, "All I can say is I didn’t realize it was improper”. He also noted, "I feel kind of small”, but never directly commented one way or another on whether he would consent to a mistrial.
The court took the motion under advisement and adjourned until the following day. When court reconvened, the prosecutor withdrew his motion, claiming "that the inadvertent reference to a polygraph could be corrected by proper instructions from the court”. Perkins’ counsel, however, renewed his motion. "I feel that the harm done by this statement that was taken hinders any due process.” The trial court granted the mistrial.
Before the second trial began, Johnson’s counsel moved for dismissal on the grounds that the trial court abused its discretion in granting the mistrial. He maintained that the mere mention of the word polygraph would not be grounds for ending proceedings, that defendant’s silence relative to mistrial signifies neither acceptance nor consent, and that consent must be affirmatively and knowingly given, which did not occur in the case of Johnson or his counsel. Further, he suggested that the court might have granted a mistrial as to defendant Perkins, who requested it, and could have permitted the trial to continue as to defendant Johnson. While the court observed this was a unique idea, the motion was denied.
New counsel for Johnson subsequently moved to dismiss on double jeopardy grounds. The judge denied the motion on the ground of self-induced error by counsel for defendant Johnson.
Shortly after impanelling of the jury for the second trial began, codefendant Perkins pled guilty to an added count of assault with intent to rob and steal while being unarmed, and was endorsed as a witness to testify against Johnson. Johnson then pled guilty to the same added count and was sentenced to 5 to 15 years.
The Court of Appeals granted the prosecutor’s motion to affirm the conviction. We granted leave, limited to "the question of whether the grant of a mistrial over defendant-appellant’s objection barred subsequent prosecution under double jeopardy provisions of the Federal and state Constitutions”. 392 Mich 756 (1974).
II — The Protection Against Double Jeopardy
The Fifth Amendment to the United States Constitution and article 1, § 15 of the Michigan Constitution guarantee an individual against twice being put in jeopardy.
"The underlying idea [of the protection against double jeopardy] * * * is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v United States, 355 US 184, 187-188; 78 S Ct 221, 223; 2 L Ed 2d 199, 204 (1957).
Thus, once defendant has been placed in jeopardy,* * unless he or she consents to the trial’s interruption, or a mistrial occurs because of manifest necessity, the state is precluded from bringing him or her to trial again. Even if defendant benefits from a mistrial called for reasons short of those necessary to satisfy the manifest necessity standard, reprosecution is still prohibited. However, even where the mistrial was improperly-declared, it is not a bar to retrial if the action was taken with defendant’s consent. State v Fenton, 19 Ariz App 274, 276; 506 P2d 665, 667 (1973).
Mere silence or failure to object to the jury’s discharge is not such consent, 19 Ariz App 274, 276; 506 P2d 665, 667.
In a very recent case in which defense counsel himself requested a mistrial, the United States Supreme Court has addressed this point as follows:
"The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retains primary control over the course to be followed * * * ”, United States v Dinitz, — US —, —; 96 S Ct 1075, 1081; 47 L Ed 2d 267 (1976),
and the defendant must therefore do something positively in order to indicate he or she is exercising that primary control. Further,
"The circumstance that it is defense counsel who initiates the court’s inquiry into a matter which ultimately results in an order of mistrial does not ipso facto transform counsel’s expression of concern into an implied consent to such drastic ruling.” People v Compton, 6 Cal 3d 55, 62; 98 Cal Rptr 217, 221; 490 P2d 537, 541 (1971).
"[A]n appellate court’s assessment of which side benefited from the mistrial ruling does not adequately satisfy the policies underpinning the double jeopardy provision”, United States v Jorn, 400 US 470, 483; 91 S Ct 547; 27 L Ed 2d 543 (1971). Thus, in the absence of bright-line rules deliberately eschewed by the United States Supreme Court, 400 US 470, 486, we must first look to whether in the exercise of that control of the course of his own trial, highlighted by Dinitz, defendant Alvin Johnson approved termination of the proceedings.
It is not difficult to require a trial court to inquire whether defendant consents. Therefore, in the absence of an affirmative showing on the record, this Court will not presume to find such consent.
There was no such affirmative showing in this case. At best, defense counsel may be said to have been silent. At worst, he did not protest, but he did not assent. Therefore, we find that defendant did not personally consent to the end of the first trial. However, the finding of manifest necessity would still make the second trial permissible.
Ill — Did Manifest Necessity Exist?
A judge has the power to abort a trial before a verdict is reached in order to prevent frustration of the ends of justice. Where "the ends of substantial justice cannot be attained without discontinuing the trial”, Gori v United States, 367 US 364, 368; 81 S Ct 1523; 6 L Ed 2d 901 (1961), a mistrial declared for such "manifest necessity” may be declared without defendant’s consent, and will not foreclose retrial even if it is over his or her objection. 367 US 364, 368. Because of its implications, this judicial discretion is properly exercised "only in very extraordinary and striking circumstances”. United States v Coolidge, 25 Fed Cas 622, 623; 2 Gall 364, 365 (D Mass, 1815), cited in Downum v United States, 372 US 734, 736; 83 S Ct 1033; 10 L Ed 2d 100 (1963).
"A mere error of law or procedure * * * does not constitute legal necessity.” Curry v Superior Court, 2 Cal 3d 707, 714; 87 Cal Rptr 361, 365; 470 P2d 345, 349 (1970). "[A] mistrial should not be declared in consequence of mere irregularities which are not prejudicial to the rights of the persons prosecuted.” People v Watson, 307 Mich 596, 606; 12 NW2d 476 (1944).
The question of whether merely mentioning the term polygraph constitutes more than such a "mere irregularity” has been considered by our Court of Appeals. In People v Paul F Baker, 7 Mich App 471, 476; 152 NW2d 43 (1967), Judge, now Chief Justice, Kavanagh, found that references to a polygraph test within the context of a particular case did not constitute reversible error and could be cured by relevant instructions to the jury.
Cautionary instructions would be inadequate, the Court of Appeals has suggested, where testimony is admitted regarding refusal to take a polygraph test. People v Tyrer, 19 Mich App 48, 50; 172 NW2d 53 (1969).
Particularly helpful is People v Paffhousen, 20 Mich App 346, 350; 174 NW2d 69 (1969), where the complaining witness explained she had changed her story because "you don’t fool a polygraph machine”. The trial court denied counsel’s motion for a mistrial.
"Defendant contends that the trial court erred in denying his motion for a mistrial. To so hold would be tantamount to requiring a mistrial every time the word ''polygraph’ is mentioned in a criminal prosecution. It was not established that the complainant had submitted to a polygraph examination nor was an attempt made to introduce the results of any such examination. The word 'polygraph’ was not used by counsel, but was volunteered by the witness. It was properly objected to, and the trial court properly ruled that the subject not be pursued any further. It was not, in fact, pursued, and no prejudicial error resulted.” 20 Mich App 351. (Emphasis added.)
In a case similar to that before us today, the Court of Appeals found reversible error barring retrial where the court did order a mistrial. People v Maguire, 38 Mich App 576; 196 NW2d 880 (1972).
During cross-examination of a detective by defense counsel, counsel asked:
”Q. Did you know that Mr. Maguire [defendant] was challenged to submit to a lie detector test?”
Before the witness responded, the prosecutor requested that the jury be excused. The judge granted a mistrial upon the prosecutor’s request. 38 Mich App 578, 580.
The Court of Appeals, "taking into account all of the circumstances of the case”, 38 Mich App 581, found the judge committed error. The panel noted, "There was no effort made by the judge to correct the statement by an'instruction”. 38 Mich App 581. Also important was that "[t]his is not a case of continued improper activity on the part of defense counsel after a ruling by the trial judge, but rather, one isolated instance”. 38 Mich App 581. Further, the defense attorney did not ask for the mistrial, nor did he consent to it. 38 Mich App 582. Under the circumstances, therefore, the court did not find such "manifest necessity which prevented the ends of public justice from being served by a continuation of the proceedings”. 38 Mich App 582.
A rule becomes clear, after reviewing the Court of Appeals’ decision in People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969), where they found a mistrial would have been appropriate. 17 Mich App 292, fn 12. There, not only did the prosecutor insert the issue of a polygraph, 17 Mich App 291, but he apparently deliberately contravened the court’s warning to discontinue this approach. 17 Mich App 292. It is clear that the Court of Appeals believed a mistrial was warranted because "[t]he prosecutor here made every conceivable effort to prevent the defendant from having a fair trial”. 17 Mich App 291. They noted:
"It is rare indeed that an appellate court is confronted with such an openly disclosed intent on the part of a trial attorney to place before a jury improper and prejudicial testimony or such flagrant disregard of a ruling by the court.” 17 Mich App 292.
Brocato was not a case of inadvertence, or of a single inappropriate question. Rather, it was part of a pattern of contumacious conduct on the part of the prosecutor. In the former instance, without a showing of prejudice, a mistrial would not be appropriate. In the latter, it certainly would be.
This is not true in the case before us. In the instant case, there was apparently an inadvertent question asked by defense counsel, which was instantly objected to, and therefore never answered. There was no overt effort to misuse the judicial system to prevent defendant from receiving a fair trial.
Under the circumstances, it does not appear that legal necessity existed for the discharge of the jury. The trial court ordinarily is in a superior position to determine when manifest necessity demands a mistrial, and must exercise its discretion to protect the ends of justice. Such discretion, however, should be exercised with the object of safeguarding defendant’s double jeopardy protection. Because of the high value placed on defendant’s not being required to undergo the discommodity of a second trial, the declaration of a mistrial should not be made lightly, even when it is made ostensibly for the protection of defendant. The trial judge must always consider the possibility of curing error with a warning.
In the instant case, we do not think sufficient prejudice was demonstrated to warrant a mistrial. We do not think the mention of a polygraph test, without more, was sufficient to justify granting a mistrial even to Perkins, who requested it, and certainly was not enough to support the mistrial as to defendant Johnson. A different issue might have arisen had the witness answered the question, but it is not necessary to resolve that matter now.
IV — Effect of the Guilty Plea
It is clear that in the instant case, defendant did not consent to the mistrial and it was not required by manifest necessity. Had the second trial not ended in a guilty plea, there is no question that it would have been improper as a violation of defend ant’s constitutional right against twice being put into jeopardy. The main question of the case now faces us and that is whether the guilty plea waived that constitutional right.
A. What Guilty Plea Waives
Clearly, the plea of guilty is itself an affirmative waiver of certain preconviction rights of the accused. See Right to Appeal Plea Bargain Convictions, 69 Nw U L Rev 663, 664 and fn 3-6 (1974). People v Zunno, 384 Mich 151, 156; 180 NW2d 17 (1970). The proper focus of Federal habeas corpus inquiry is the nature of the advice and voluntariness of the plea. Tollett v Henderson, 411 US 258, 267; 93 S Ct 1602; 36 L Ed 2d 235 (1973).
Thus, in the guilty-plea trilogy of Brady v United States, 397 US 742; 90 S Ct 1463; 25 L Ed 2d 747 (1970), McMann v Richardson, 397 US 759; 90 S Ct 1441; 25 L Ed 2d 763 (1970), and Parker v North Carolina, 397 US 790; 90 S Ct 1458; 25 L Ed 2d 785 (1970), and in Tollett v Henderson, supra, the United States Supreme Court recognized that "a guilty plea represents a break in the chain of events which has preceded it in the criminal process. * * * [A criminal defendant] may only attack the voluntary and intelligent character of the guilty plea * * * ”. 411 US 258, 267.
However, despite the apparently sweeping na ture of this language, the Supreme Court has not construed the effect of guilty pleas to preclude contesting all constitutional rights. The Brady trilogy and Tollett did not change the established principle that a guilty plea does not waive defendant’s right to contest whether a statute under which he or she is accused is constitutional, United States v Ury, 106 F2d 28 (CA 2, 1939), or whether the information or indictment stated an offense, Kolaski v United States, 362 F2d 847, 848 (CA 5, 1966).
B. What the Guilty Plea Does Not Waive
Generally, however, the guilty plea waives all nonjurisdictional defects in the proceedings. See People v Ginther, 390 Mich 436, 440; 212 NW2d 922 (1973). Why an accepted, unqualified plea of guilty should cure error that a guilty verdict or finding would not has probably been best answered by the Supreme Court’s observation that a guilty plea is different "in purpose and effect from a mere admission or an extra-judicial confession, it is itself a conviction”. Kercheval v United States, 274 US 220, 223; 47 S Ct 582; 71 L Ed 1009 (1927). Thus, in the case of a guilty plea, the conviction is based not on possibly tainted evidence, but on defendant’s admission in open court.
"A conviction after trial in which a coerced confession is introduced rests in part on the coerced confession, a constitutionally unacceptable basis for conviction. ** * * The defendant who pleads guilty is in a different posture. He is convicted on his counseled admission in open court that he committed the crime charged against him. The prior confession is not the basis for the judgment * * * .” McMann v Richardson, 397 US 759, 773; 90 S Ct 1441; 25 L Ed 2d 763 (1970).
The Court has, itself, however, recognized that the double jeopardy defense is different from the McMann type of defenses qualitatively. In Robinson v Neil, 409 US 505, 509; 93 S Ct 876; 35 L Ed 2d 29 (1973), Justice Rehnquist, speaking for a unanimous court, distinguished this protection from others, such as the Mapp v Ohio exclusionary rule, designed to deter unlawful police conduct.
"While this guarantee [double jeopardy] * * * is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial.”
Thus, the right is closer to those which were untouched by Brady, et al., such as the right to challenge the constitutionality of the statute under which the state proceeded, which may be asserted even after a plea of guilty. Defendant may always challenge whether the state had a right to bring the prosecution in the first place.
The first application of this approach came when the Supreme Court, in Blackledge v Perry, 417 US 21, 31; 94 S Ct 2098; 40 L Ed 2d 628 (1974), applied the Robinson double jeopardy reasoning to find that a guilty plea did not foreclose a defendant from collaterally raising a due process right in attacking a plea-based conviction in Federal habeas corpus proceedings.
First, the Court distinguished the due process right from those in the Brady trilogy and Tollett.
"Although the underlying claims presented in Tollett and the Brady trilogy were of constitutional dimensions, none went to the very power of the State to bring the defendant into court to answer the charge brought against him. * * * In the case at hand, by contrast, the nature of the underlying constitutional infirmity is markedly different. Having chosen originally to proceed on the misdemeanor charge in the District Court, the State of North Carolina was, under the facts of this case, simply precluded by the Due Process Clause from calling upon the respondent to answer to the more serious charge in the Superior Court. Unlike the de fendant in Tollett, Perry is not complaining of 'antecedent constitutional violations’ or of a 'deprivation of constitutional rights that occurred prior to the entry of the guilty plea.’ 411 US at 266, 267. Rather, the right that he asserts and that we today accept is the right not to be haled into court at all upon the felony charge.” 417 US 21, 30.
Then, using the Robinson double jeopardy reasoning, and applying it to the due process clause, the Court found:
"While our judgment today is not based upon the Double Jeopardy Clause, we think that the [Robinson double jeopardy clause] language aptly describes the due process right upon which our judgment is based. The 'practical result’ dictated by the Due Process Clause in this case is that North Carolina simply could not permissibly require Perry to answer to the felony charge. That being so, it follows that his guilty plea did not foreclose him from attacking his conviction in the Superior Court proceedings through a federal writ of habeas corpus.” 417 US 21, 31.
The foundation laid in Blackledge was completed by the Supreme Court in its per curiam opinion in Menna v New York, 423 US 61; 96 S Ct 241; 46 L Ed 2d 195 (1975). There, citing Black-ledge, the Court rejected the state’s reliance on Tollett and held that a guilty plea did not waive the double jeopardy defense.
"Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty.” 423 US 62.
Thus, it is clear that the United States Supreme Court, while recognizing that certain rights of defendant may be waived by a subsequent plea of guilty, does not say that is true of all rights. Certainly it is true that those rights which might provide a complete defense to a criminal prosecution, those which undercut the state’s interest in punishing the defendant, or the state’s authority or ability to proceed with the trial may never be waived by guilty plea. These rights are similar to the jurisdictional defenses in that their effect is that there should have been no trial at all. The test, although grounded in the constitution, is therefore a practical one. Thus, the defense of double jeopardy, those grounded in the due process clause, those relating to insufficient evidence to bind over at preliminary examination and failure to suppress illegally-obtained evidence without which the people could not proceed are other examples. Wherever it is found that the result of the right asserted would be to prevent the trial from taking place, we follow the lead of the United States Supreme Court and hold a guilty plea does not waive that right.
V — Conclusion
Defendant Alvin Johnson’s first trial ended in an improperly called mistrial. Thus, defendant was placed in jeopardy twice in violation of his constitutional right. Because this right goes to the very heart of the government’s ability to place defendant on trial, the subsequent guilty plea does not foreclose defendant from raising this defense. We therefore find that since the second trial should not have taken place at all, the conviction may not stand and defendant must be released.
The Court of Appeals and the trial court are reversed.
Kavanagh, C. J., and Levin, J., concurred with Williams, J.
Lindemer and Ryan, JJ., took no part in the decision of this case.
The protection was held enforceable against the states through the Fourteenth Amendment in Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969).
The guarantee has been said to protect against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). The scope of the law of jeopardy is apparently the same under both the Michigan and United States Constitutions. In re Ascher, 130 Mich 540, 545; 90 NW 418; 57 LRA 806 (1902).
"[A] defendant is placed in jeopardy in a criminal proceeding once the defendant is put to trial before the trier of the facts, whether the trier be a jury or a judge.” United States v Jorn, 400 US 470, 479; 91 S Ct 547, 554; 27 L Ed 2d 543, 553 (1971). "In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn. * * * In a nonjury trial, jeopardy attaches when the court begins to hear evidence.” Serfass v United States, 420 US 377, 388; 95 S Ct 1055; 43 L Ed 2d 265 (1975). In the case of a guilty plea, jeopardy attaches when the sentence is imposed. People v Burt, 29 Mich App 275, 277; 185 NW2d 207 (1970).
Traditional analysis has been that immunity from second jeopardy was a personal privilege which could be waived by the accused. However, in a footnote in the recent case of United States v Dinitz, — US —; 96 S Ct 1075; 47 L Ed 2d 267 (1976), the United States Supreme Court "rejected the contention that the permissibility of a retrial following a mistrial” depends on waiver. — US — fn 11.
"Only if jeopardy has attached is a court called upon to determine whether the declaration of a mistrial was required by 'manifest necessity’ or the 'ends of public justice.’ ” Illinois v Somerville, 410 US 458, 468; 93 S Ct 1066; 35 L Ed 2d 425 (1972).
"Examples of situations where such a manifest necessity has been found to exist include cases where the jury is unable to agree; where the tactical situation of an army in the field dictates the dismissal of a court-martial; where the trial judge discovers that one or more jurors might be biased; and where a juror, or defendant becomes ill during trial, making his continued presence impossible.” People v Gardner, 37 Mich App 520, 527-528; 195 NW2d 62 (1972).
"Reprosecution after a mistrial has unnecessarily been declared by the trial court obviously subjects the defendant to the same personal strain and insecurity regardless of the motivation underlying the trial judge’s action.” United States v Jorn, 400 US 470, 483; 91 S Ct 547; 27 L Ed 2d 543 (1971).
"We are not unmindful of the apparent irony in denying the trial court jurisdiction to proceed because of a ruling made, at least in part, ostensibly for the benefit of these petitioners. But we do not deal here with a mere technicality of the law: as the Locklear court explained * * * , 'Assuming a failure of justice in the instant case, it is outweighed by the general personal security afforded by the great principle of freedom from double jeopardy. Such misadventures are the price of individual protection against arbitrary power.’ ” State v Locklear, 16 NJ 232; 108 A2d 436, 442 (1954), quoted in Curry v Superior Court, 2 Cal 3d 707, 718; 87 Cal Rptr 361, 368; 470 P2d 345, 352 (1970).
Accord, Commonwealth v Baker, 413 Pa 105, 115; 196 A2d 382, 387 (1964); Curry v Superior Court, 2 Cal 3d 707, 713; 87 Cal Rptr 361, 364; 470 P2d 345, 348 (1970).
See also, People v Carlton Brown, 23 Mich App 528, 534; 179 NW2d 58 (1970).
"Silence cannot operate against a defendant.”
Contra, Coppage v State, 62 Okla Cr 325, 335; 71 P2d 509, 513 (1937).
The principle was first expressed by Justice Story in United States v Perez, 22 US (9 Wheat) 579, 580; 6 L Ed 165 (1824), when writing for a unanimous court, he said:
"We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner.”
"[W]here circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution.” United States v Jorn, 400 US 470, 485; 91 S Ct 547; 27 L Ed 2d 543 (1971).
"if evidence of the fact of a polygraph test be admitted or improper argument about it be made even though no objection to either be interposed, the court should instruct the jury as to the unreliability of such tests.” 7 Mich App 471, 476.
This colloquy followed the trial court’s warning that questioning about polygraph examinations was "treading on dangerous ground”, 17 Mich App 292:
"Q. Miss Whitfield, one last question: In the process of your investigation of this case and to ascertain the truthfulness of Lana Jane Robinson, was she at any time — get ready, Mr. Bucknell (defense counsel) — offered a polygraph examination? (Emphasis supplied.)”
The California Supreme Court has presented some reasons why defendant might not opt for a mistrial.
"A defendant may choose not to move for or consent to a mistrial for many reasons. He may be of the opinion that no error in fact occurred, or if it occurred, that it was not prejudicial. He may believe that any error in admitting improper evidence can be cured by a motion to strike or a request for admonition, or can be refuted by impeachment of the witness or contrary defense evidence. Indeed, even when a palpably prejudicial error has been committed a defendant may have valid personal reasons to prefer going ahead with the trial rather than beginning the entire process anew, such as a desire to minimize the embarrassment, expense, and anxiety mentioned above.” Curry v Superior Court, 2 Cal 3d 707, 717; 87 Cal Rptr 361, 367; 470 P2d 345, 351 (1970).
"If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not 'within the range of competence demanded of attorneys in criminal cases,’ McMann v Richardson, supra, at 771. Counsel’s failure to evaluate properly facts giving rise to a constitutional claim, or his failure properly to inform himself of facts that would have shown the existence of a constitutional claim, might in particular fact situations meet this standard of proof. Thus, while claims of prior constitutional deprivation may play a part in evaluating the advice rendered by counsel, they are not themselves independent grounds for federal collateral relief.” 411 US 258, 266-267.
Our own decisions have followed this lead. Thus, for example, a plea of guilty waives a claim of an illegally gained confession. People v Catlin, 39 Mich App 106, 108; 197 NW2d 137 (1972). But see People v Millard, 394 Mich 99; 228 NW2d 783 (1975), for indication that a guilty plea does not waive all preconviction rights of the accused.
As for defendant’s qualified plea, the Federal circuits have apparently split as to whether defendant may plead guilty while preserving the right to raise on appeal constitutional challenges to evidence. See, e.g-, United States v Cox, 464 F2d 937, 945 (CA 6, 1972).
"In sum, while we can see that the proposed procedure [allowing defendant to plead guilty, contingent on his right to appeal on nonjurisdictional grounds from his own plea] may ease the docket pressures confronting many district courts, we believe the disadvantages in terms of the internal consistency of our criminal process, the accuracy of appellate review, and conflict with the hoary doctrine of avoiding constitutional questions if possible, far outweigh the putative gains.”
Contra, United States v Caraway, 474 F2d 25, 28-29 (CA 5, 1973), opinion vacated as moot, 483 F2d 215 (CA 5, 1973) (involving a plea of nolo contendere, the legal equivalent of a guilty plea).
"Our rationale for recognizing this type of express agreement is two-fold. First, we are reluctant to establish a rigid rule requiring a defendant to undergo the costly and futile ordeal of a complete trial, when the State could easily prove its case by the evidence claimed to be illegally obtained and by no other evidence, and the defendant merely seeks to preserve a single, nonjurisdictional issue * * * . Second, of the combined requisites, 'voluntariness’ and 'intelligence’ * * * for equivalence to a valid guilty plea, a nolo plea, conditioned on right to appellate review of a motion to suppress evidence, might now * * * meet the test of being 'voluntary,’ but the conditioning of the plea on a right to appellate review demonstrates that it was not so 'intelligently’ entered as to waive deprivation of a nonjurisdictional defect sought to be reviewed; and more especially so, where, at the time of pleading, the practice of the reviewing court is to honor such a condition allowed by the trial court.” (Citations omitted.)
As we observed in People v Ginther, 390 Mich 436, 441; 212 NW2d 922 (1973), while one might find waiver of the right to appeal alleged constitutional violations as part of the consideration for permitting a plea of guilty to a lesser offense, "[p]utting aside the legitimacy of such consideration, all pleas are not bargained pleas”. (Notes omitted.)
Eg., United States v Liguori, 430 F2d 842, 848-849 (CA 2, 1970), cert den, 402 US 948; 91 S Ct 1614; 29 L Ed 2d 118 (1971), where there was no governmental interest in seeing defendant punished, since it was the statutory scheme which violated the privilege against self-incrimination. "Where the state’s interest in punishing the defendant’s conduct is lacking, the plea as an admission becomes meaningless, for it cannot bestow upon the state the authority to prosecute or punish the defendant.” Shwartz, The Guilty Plea as a Waiver of Present but Unknowable’ Constitutional Rights: The Aftermath of the Brady Trilogy, 74 Col L Rev 1435, 1462 (1974).
"The federal courts have stated that one can never waive a jurisdictional defect. * * * For a court to have jurisdiction, there must be a valid indictment or information, substantiated by sufficient legal evidence to show the accused probably committed the crime with which he is charged.” Mullady, Appellate Review of Constitutional Inñrmities Notwithstanding a Plea of Guilty, 9 Houston L Rev 305, 314 (1971). (Notes omitted.) | [
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Case below, Court of Appeals No. 21595, order of October 16, 1975. | [
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Kavanagh, C. J.
Defendants were convicted of selling unregistered securities in violation of the Uniform Securities Act, MCLA 451.701; MSA 19.776(301) in a 1971 bench trial in Detroit Recorder’s Court, and defendant Phyllis Dempster was sentenced to a term of imprisonment. The convictions were affirmed by the Court of Appeals.
Three issues are presented on appeal in this Court: (1) Whether the securities were exempt as "commercial paper” from the registration provisions of the statute? (2) Whether the statute impermissibly places the burden of proof on a defendant to prove an exemption? (3) Whether the "com mercial paper” exemption is sufficiently definite to sustain the criminal conviction?
I. The Act
The Uniform Securities Act, 1964 PA 265, became effective January 1, 1965, replacing the 40-year-old Michigan Blue Sky Law, 1933 PA 205. The act substantially follows the language of the Uniform Securities Act. The Uniform Securities Act carries within itself the statement of its purpose, i.e. to "make uniform the law of those states which enact it and to coordinate the interpretation and administration of this act with the related federal regulation”. MCLA 451.815; MSA 19.776(415). As a matter of judicial policy the act should be broadly construed to effectuate its purposes. Tcherepnin v Knight, 389 US 332, 336; 88 S Ct 548; 19 L Ed 2d 564 (1967). "In essence this legislation * * * is designed to protect the public against fraud and deception in the issuance, sale, exchange, or disposition of securities within the State of Michigan by requiring the registration of certain securities and transactions.” Schmidt & Cavitch, Michigan Corporation Law (1974), p 1071. Violation of the act’s provisions is punishable by fine and imprisonment. MCLA 451.809; MSA 19.776(409).
II. The Commercial Paper Exemption
The Uniform Securities Act exempts certain securities and transactions from its registration provisions. One of the exemptions is for:
"[a]ny negotiable promissory note or commercial paper which arises out of a current transaction or the proceeds of which have been or are to be used for current transactions, and which evidences an obligation to pay cash within 12 months of the date of issuance, exclusive of days of grace, or any renewal of such note or paper which is likewise limited, or any guarantee of such note or paper or of any such renewal.” MCLA 451.802(a)(9); MSA 19.776(402)(a)(9).
Defendants allege that the securities sold by Dempster Investment Company fit within this exemption, and thus need not have been registered.
Mrs. Dempster and Dempster Investment Company sold to the general public shares in an "open-end trust account”. One of the particular securities involved reads as follows:
"Date December 2, 1969
Renewal of Trust Account
Dated September 2, 1969
"The Dempster Investment Company (a Michigan Corporation) incorporated February 27th, 1964 to engage and carry on a general brokerage and financial business, including mortgage brokerage and financing thereof — -with Main Offices located at 14500 West Eight Mile Road, Oak Park, Michigan and branch offices throughout the State, as of this date, December 2nd, 1969, hereby creates an Open-End Trust Account for Gerald N. Schultz and/or Charlotte A. Schultz with the principal sum of Three Thousand ($3,000.00) Dollars.
"This principal sum ($3,000.00) is invested in the Dempster Investment Company at the rate of four (4%) percent per month interest payable each month on the principal amount owing with final total payment of principal amount ($3,000.00) due February 2nd, 1970.
"In the event Gerald N. Schultz and/or Charlotte A. Schultz should want any part or all of principal sum withdrawn before the final due date — so be it — upon a thirty (30) day written notice.
"DEMPSTER INVESTMENT COMPANY
"By: Phyllis Dempster
Its President”.
For the instruments sold by defendants to be exempt under § 402(a)(9) as claimed by them, they must either be negotiable promissory notes or commercial paper. The instruments clearly are not negotiable promissory notes because there are no words of negotiability; appellants do not claim otherwise.
Appellants’ major contention is that these instruments are "commercial paper” within § 402(a)(9). Unfortunately, the Uniform Securities Act does not define commercial paper. Appellants argue that because Article 3 of the Uniform Commercial Code is entitled "Commercial Paper”, instruments satisfying MCLA 440.3805; MSA 19.3805 should be exempt under § 402(a)(9) of the Securities Act. Section 3-805 of the UCC, supra, reads:
"This article applies to any instrument whose terms do not preclude transfer and which is otherwise negotiable within this article but which is not payable to order or to bearer, except that there can be no holder in due course of such an instrument.”
This is the section relied upon by Mrs. Dempster. Professor James J. White of the University of Michigan Law School, an undisputed authority in the field of commercial transactions, was called as an expert witness by the defense at trial. Professor White testified that: "It would be my opinion that this [instrument] is commercial paper under Article 3”. Professor White described the security involved as "a horribly drafted non-negotiable note”. Assuming that Professor White’s conclusion is accurate, the issue remains as to whether Article 3’s concept of commercial paper should be read into the Securities Act.
The prosecution called, as their expert, Mr. John Hueñi, Director of the Securities Bureau of the Michigan Department of Commerce. Mr. Hueñi testified that the instruments involved here were securities, were not exempted, and were required to be registered.
In People v Hall, 391 Mich 175, 189-190; 215 NW2d 166, 174 (1974), this Court in language particularly appropriate to this issue stated:
"We begin our review of these statutes by affirming our previous holdings that penal statutes are to be strictly construed. Lansing v Brown, 172 Mich 50; 137 NW 535 (1912); People v Goulding, 275 Mich 353; 266 NW 378 (1936). However, as the Court pointed out in People v Consumers Power Co, 275 Mich 86; 265 NW 785 (1936), the fact that these types of statutes are narrowly construed does not require rejection of that sense of the words which best harmonizes with the overall context of the statutes and the end purpose sought to be achieved by such legislation. With criminal statutes, such end purpose is the evil sought to be corrected and the objects of the law sought to be effectuated. Hightower v Detroit Edison Co, 262 Mich 1; 247 NW 97; 86 ALR 509 (1933).”
The application of the UCC concept of commercial paper is singularly inappropriate in this setting. The UCC is intended to "simplify, clarify and modernize the law governing commercial transactions”. MCLA 440.1102(2)(a); MSA 19.1102(2)(a). The Uniform Securities Act, however, is intended to prevent an offering to the public of securities without first giving the Securities Bureau an opportunity to investigate the venture and determine whether sound policy justifies permitting the issuer to offer these securities for sale. Schmidt & Cavitch, Michigan Corporation Law (1974), p 1071.
The broad concept of commercial paper that might be appropriate under the UCC provisions to facilitate commerce is, therefore, at odds with the purpose of the Securities Act to protect against swindles. The Uniform Securities Act was drafted as a means of discouraging swindlers from selecting a particular state in which to operate. With this purpose in mind, we look to the administrative and judicial interpretations of the commercial paper exemption rather than to the UCC.
The Uniform Securities Act, §402, lists the exemptions to registration requirements. Section 402(a)(9) exempts "commercial paper”. The Commissioners’ notes to this provision state: "This exemption is modeled on § 3(a)(3) of the Securities Act of 1933, 15 U.S.C. §77c(a)(3) * * * ”, The Securities Act of 1933 exempts in 3(a)(3), supra, certain promissory notes with an original maturity date of less than nine months. The original 1933 draft of the Federal Securities Act provided no exemption for short-term notes. The § 3(a)(3) exemptions were then included by amendment because "it seemed to the [Federal Reserve] Board that the Act was not intended to apply to bankers acceptances or short-time paper issued for the purpose of obtaining funds for current transactions in commerce, industry, or agriculture and purchased by banks and corporations as a means of employing temporarily idle funds”. Comment, The Commercial Paper Market and the Securities Acts, 39 U Chi L Rev 362, 382 (1972).
Statements made during the hearings of the House Committee on Interstate and Foreign Commerce considering the 1933 act exhibit an understanding that the commercial paper to which the exemption was to be applied:
"was sold only to banks and not to the 'public’. Such a qualification was expressly included in the amended Senate version of the Act * * * . In the course of Senate debate, the exemption was amended to exclude that clause. The text of the motion to strike demonstrates that the commercial paper to which the securities legislation referred was not sold to the general public and that the original clause requiring that instruments exempted by section 3(a)(3) not be sold to the general public was deleted in order to insure that the exemption would be interpreted to include certain financial instruments, other than commercial paper, that were sold to the general public. Because commercial paper circulated only among banks, the provision in the original draft was thought to be unnecessary.” Id. 385 (emphasis added) (citations omitted).
The scope of this exemption was interpreted by the Securities and Exchange Commission in Release No 4412 (1961), 26 Fed Reg 9158, 9159 (1961):
"The legislative history of the Act makes clear that section 3(a)(3) applies only to prime quality negotiable commercial paper of a type not ordinarily purchased by the general public, that is, paper issued to facilitate well recognized types of current operational business requirements and of a type eligible for discounting by Federal Reserve banks.”
Chief Judge Friendly, writing the opinion in Zeller v Bogue Electric Manufacturing Corp, 476 F2d 795, 800 (CA2, 1973), stated: "Such a ruling [Release No 4412, supra], by an agency charged with the administration of a statute, while not conclusive, is entitled to substantial weight”. The SEC interpretation has also been relied upon in other cases regarding this claimed exemption. See, e.g., Sanders v John Nuveen & Co, Inc, 463 F2d 1075, 1079 (CA7, 1972), cert den 409 US 1009; 93 S Ct 443; 34 L Ed 2d 302 (1972); United States v Hill, 298 F Supp 1221, 1226-1227 (Conn, 1969); Anderson v Francis I du Pont & Co, 291 F Supp 705, 708 (Minn, 1968).
Applying the standards enunciated above, which are in furtherance of the purposes of the Uniform Securities Act, to the instant case, the instruments sold by Dempster Investment Company fail on each ground.
The Uniform Securities Act grants exemptions from registration only in those instances where the securities are virtually riskless, such as government bonds, nationally listed securities, etc.
Those exempt securities are "so inherently gilt-edge, or so unlikely to be utilized in a deceptive scheme, that the Michigan Blue Sky Law exempts them from the prior registration requirement”. Schmidt & Cavitch, Michigan Corporation Law (1974), p 1073.
Considering these principles, and the clear purpose of the Uniform Securities Act to protect the public from the dangers inherent in the indiscriminate sale of instruments of indebtedness it would be irrationál to exclude the type of securities involved here from the act’s coverage. Inherent in the act’s purpose is the prevention of just such sales to the general public without the protection afforded by disclosure. People v Walberg, 263 Cal App 2d 286; 69 Cal Rptr 457 (1968). We hold, therefore, that the type of instruments sold by appellants in this case were not "commercial paper” within the meaning of the Uniform Securities Act exemptions.
III. Burden of Proof
The Uniform Securities Act, MCLA 451.802(d); MSA 19.776(402)(d), states: "In any proceeding under this act, the burden of proving an exemption or an exception is upon the person claiming it”. Appellants assert that this provision, included within a criminal statute, requires them to bear an unconstitutional burden of proving innocence. We disagree.
The contention that the instruments involved here are "commercial paper” is in the nature of an affirmative defense as a claim "that the accused is within an exception or proviso in the statute defining the crime”. McCormick on Evidence (Cleary ed, 1972), p 800:
"[T]he recent trend is to treat these so-called matters of defense as situations wherein the accused will usu ally have the first burden of producing evidence in order that the issue be raised and submitted to the jury, but at the close of the evidence the jury must be told that if they have a reasonable doubt of the element thus raised they must acquit.” Id. 802.
Recently, in People v Henderson, 391 Mich 612, 616; 218 NW2d 2, 4 (1974), we considered whether, in a prosecution for carrying a concealed weapon, by placing the burden of proving a license on the defendant the statute absolved the state of its burden of proving its entire case beyond a reasonable doubt. We stated that once the prosecution establishes a prima facie case of violation of the statute, "the defendant has the burden of injecting the issue of license by offering some proof * * * that he has been so licensed. The people thereupon are obliged to establish the contrary beyond a reasonable doubt.” We interpreted the statute in that manner "not as absolving the state from proving one element of the crime, for to do so would vitiate the presumption of innocence”. Id. We are cognizant of the fact that the concealed weapons statute speaks of the "burden of establishing” the license, and states that this does not shift the "burden of proof for the violation”. While that language might be preferable to that of the instant statute, the principle is not different.
In United States, ex rel Shott v Tehan, 365 F2d 191 (CA6, 1966), cert den, 385 US 1012; 87 S Ct 716; 17 L Ed 2d 548 (1967), on a factual record very similar to the case at bar the same issue was raised. Shott was charged with violating the Ohio Securities Act by selling promissory notes without prior registration, and claimed that he was denied due process because the act’s procedural provisions created an evidentiary presumption that he made an unlawful public offering of his promissory note and further shifted to the defendant the burden of proving his innocence. The Court, in rejecting appellant’s contention, held:
"The Ohio Blue Sky Law, as do similar State security regulations, places the burden on an offeror or seller of a security to determine if the security may be sold lawfully. Once the seller has determined that a security falls within a class of exempt securities, that knowledge is peculiarly within the personal knowledge of the seller. Considering the purpose of the State Securities Act, it cannot be said that lifting the burden of proof from the State in criminal prosecutions and casting upon the defendant the defense that he comes within an exemption is unreasonable and unfair. Here there is a general prohibition which is applicable to everyone who is unable to bring himself within the range of an exemption.” 365 F2d at 195.* *
This Uniform Securities Act provision, read in light of People v Henderson, supra, must be interpreted to mean that once the state establishes a prima facie case of statutory violation, the burden of going forward, i.e., of injecting some competent evidence of the exempt status of the securities, shifts to the defendant. However, once the defendant properly injects the issue, the state is obliged to establish the contrary beyond a reasonable doubt. Accord, United States v Dinneen, 463 F2d 1036 (CA10, 1972); Commonwealth v David, 1974 Adv Sheets 455; 309 NE2d 484 (Mass, 1974), Nelson v State, 355 P2d 413 (Okla Crim App, 1960). There is ample evidence that the state met its burden here.
IV. Definiteness of the Exemptive Provision
During oral argument in this case, counsel for defendants raised the issue of due process notice requirements of a criminal statute. It is contended that even if we hold that these instruments were not exempted from the registration requirements of the Uniform Securities Act as commercial paper, it would be a denial of due process to impose this interpretation retroactively and sustain defendants’ conviction. Defendants argue that the record in this case provides evidence that even those charged with the enforcement of the state’s securities law were of the view that if these instruments fit within the Uniform Commercial Code concept of "commercial paper”, they would be exempt from registration. There is support for that contention in the record of Mr. Hueni’s testimony.
Because these instruments fit within an acceptable definition of commercial paper, it is contended that the defendants were free to rely on such a definition unless the statutory language clearly indicated otherwise.
"The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contem plated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v Harriss, 347 US 612, 617; 74 S Ct 808; 98 L Ed 989 (1954).
A criminal statute must be "sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties”. Connally v General Construction Co, 269 US 385, 391; 46 S Ct 126; 70 L Ed 322 (1926). "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.” Lanzetta v New Jersey, 306 US 451, 453; 59 S Ct 618; 83 L Ed 888 (1939). "[A]mbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Rewis v United States, 401 US 808, 812; 91 S Ct 1056; 28 L Ed 2d 493 (1971).
Exemptions and provisos within a criminal .statute must be defined with the same specificity as the prohibitive language of the statute. Cline v Frink Dairy Co, 274 US 445; 47 S Ct 681; 71 L Ed 1146 (1927).
This court is not able, within the bounds of due process, to "interpret” a criminal statute which contains an ambiguous exemption such that it results in conviction of the defendant charged in the specific case. That is not the "fair warning” demanded by the Constitution.
It is true that interpretations of statutory provisions by a court may add a clarifying gloss to otherwise unclear words, and thereby provide constructive notice to future defendants, but
"an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law * * * ” and " * * * the effect is to deprive [the defendant] of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime.” Bouie v City of Columbia, 378 US 347, 353, 355; 84 S Ct 1697; 12 L Ed 2d 894 (1964).
While we are persuaded, therefore, that the "clarifying gloss” we have placed upon the commercial paper exemption in this opinion is correct when the purpose of the Uniform Securities Act is thoroughly considered, we are also persuaded that the term "commercial paper” standing by itself was not sufficiently definite to allow this conviction to stand.
"The objection of vagueness is twofold: inadequate guidance to the individual whose conduct is regulated, and inadequate guidance to the triers of fact. The former objection could not be cured retrospectively by a ruling either of the trial court or the appellate court, though it might be cured for the future by an authoritative judicial gloss.” Freund, The Supreme Court and Civil Liberties, 4 Vand L Rev 533, 541 (1951). (Emphasis added.)
The fact that the instrument involved in this case was not of the type "intended” to be exempted from the Act’s registration provisions does not allow a different result in this case. There is no doubt that if this instrument had read "payable to the order of Gerald N. Schultz”, it would be a negotiable promissory note. Section 402(a)(9) exempts negotiable promissory notes from the Act’s registration provisions. Thus, it would appear that Mrs. Dempster could not be convicted for failure to register the instrument. This would be the case despite the fact that this "negotiable promissory note” would certainly not be of the type intended to be exempted from the Act’s registration provisions. It would be no more "prime quality paper of a type not ordinarily purchased by the general public * * * ” than the instrument involved in the present case. Without a prior "clarifying gloss” or a clear definition of the special kind of negotiable promissory note intended to be exempted under the statute, or perhaps some form of prior actual notice that the instruments are not of the type exempted from registration, a conviction could not stand for failure to register such a negotiable note.
"To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated.” United States v Wiltberger, 18 US (5 Wheat) 76, 96; 5 L Ed 37 (1820).
Thus, while the construction we have placed on the commercial paper exemption is valid for the future, "it may not be applied retroactively, any more than a legislative enactment may be, to impose criminal penalties for conduct committed at a time when it was not fairly stated to be criminal”. Bouie v City of Columbia, supra, 362. See also, Douglas v Buder, 412 US 430; 93 S Ct 2199; 37 L Ed 2d 52 (1973).
As we recently said in People v Bloss, 394 Mich 79, 81; 228 NW2d 384 (1975):
"We are persuaded that defendant’s conviction cannot stand for the reason that at the time he did the act complained of this Court had not construed the * * * statute * * * to proscribe such conduct.”
Conclusion
The conviction is reversed and the defendant is discharged.
Williams, Levin, Coleman, and Fitzgerald, JJ., concurred with Kavanagh, C. J.
Lindemer and Ryan, JJ., took no part in the decision of this case.
State securities laws have generally been referred to as "Blue Sky Laws” due to the fact that such legislation is intended to prevent "speculative schemes which have no more basis than so many feet of 'blue sky’ ”. Hall v Geiger-Jones Co, 242 US 539, 550; 37 S Ct 217; 61 L Ed 480 (1917).
MCLA 451.801(1); MSA 19.776(401)0) defines "security” as: "any note; stock; treasury stock; bond; debenture; evidence of indebtedness; certificate of interest or participation in any profit-sharing agreement; collateral-trust certificate; * * * or, in general, any interest or instrument commonly known as a 'security’ * * * .” The instruments sold by Mrs. Dempster were clearly "securities” within the definition of this act.
Professor White, with admirable candor, expressly stated on several occasions during the trial that he was not an expert on Blue Sky Laws or securities. E.g. "You try to push me into testifying as to my interpretation of the SEC and what I am really saying, and I am competent to say, is what commercial paper means under Article 3 of the UCC”.
The comments of The National Conference of Commissioners and American Law Institute to UCC 3-101 state: "It should be noted especially that this Article does not apply in any way to the handling of securities. Article 8 deals with that subject.” UCC 3-103(1) states: "This article does not apply to money, documents of title or investment securities.”
For a general discussion of the legislative history of the 1933 act, see Landis, The Legislative History of the Securities Act of 1933, 28 Geo Wash L Rev 29 (1959).
MCLA 451.802(a)(lM10); MSA 19.776(402)(a)(lH10).
MCLA 776.20; MSA 28.1274(1) provides:
"In any prosecution for the violation of any acts of the state relative to use, licensing and possession of pistols or firearms, the burden of establishing any exception, excuse, proviso or exemption contained in any such act shall be upon the defendant but this does not shift the burden of proof for the violation.”
Probably the clearest statement of the principle intended by such a proviso is found in the Drug Abuse Prevention & Control Act, 84 Stat 1279 (1970), 21 USCA 885(a)(1):
"It shall not be necessary for the United States to negative any exemption or exception set forth in this title [subchapter] in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this title [subchapter], and the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.”
Accord, State v Goodman, 110 Ariz 524; 521 P2d 611 (1974).
See also Model Penal Code (Proposed Official Draft, 1962), § 1.12.
There are provisions within the Uniform Securities Act for the issuance of cease and desist orders and injunctions. We need not decide here whether such orders would satisfy the due process notice requirements in a particular case where the activity continued thereafter. MCLA 451.808; MSA 19.776(408). | [
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] |
Kavanagh, C. J.
This case concerns a dispute over certain funds owed to Continental Electric Company (Continental) pursuant to a construction contract existing between Continental and Aetna Life & Casualty Company. Plaintiff National Bank of Detroit (NBD) claims full rights to such funds pursuant to a perfected security interest in the accounts receivable of Continental. MCLA 440.9101 et seq.; MSA 19.9101 et seq.
Westinghouse Electric Corporation (Westinghouse), a subcontractor and materialman to Continental, claims full rights to such funds pursuant to MCLA 570.151 et seq.; MSA 26.331 et seq. (the Act). The funds are in the possession of Westinghouse.
Plaintiff brought suit in Oakland County Circuit Court to recover the funds, and was granted sum mary judgment. The Court of Appeals affirmed. 50 Mich App 447; 213 NW2d 573 (1973).
We granted leave to consider whether an unsecured creditor claiming under MCLA 570.151, which imposes a trust fund for materialmen and laborers, takes priority over a prior perfected security interest in all present and after-acquired contract rights, accounts, general intangibles, and chattel paper.
I
In 1966 plaintiff-appellee perfected a security interest in all present and future accounts receivable of Continental pursuant to the Uniform Commercial Code (UCC), Article 9. MCLA 440.9101 et seq.; MSA 19.9101 et seq.
In 1970 the general contracting firm of Darin & Armstrong, Inc., subcontracted the plumbing work in a commercial building in Southfield to defendant-appellant Eames & Brown who was insured by Aetna. The plumbing work was faulty and caused water damage to the electrical work in the building.
Aetna contracted directly with Continental to repair the electrical work. Continental subcontracted some of the repair work and materials to defendant-appellant Westinghouse. Continental became insolvent.
In March, 1971, NBD notified Aetna and Eames & Brown of its security interest in Continental’s accounts receivable and requested that they pay directly to NBD all monies owed to Continental.
In May, 1971, Aetna instead paid directly to Westinghouse the sum of $54,420.46, for the material and services provided by Westinghouse to Continental under the repair contract, and received a hold-harmless agreement.
II
Westinghouse argues that it is entitled to this fund pursuant to MCLA 570.151 et seq.; MSA 26.331 et seq. (the Act), which provides:
"Sec. 1. In the building construction industry, the building contract fund paid by any person to a contractor, or by such person or contractor to a subcontractor, shall be considered by this act to be a trust fund, for the benefit of the person making the payment, contractors, laborers, subcontractors or materialmen, and the contractor or subcontractor shall be considered the trustee of all funds so paid to him for building construction purposes.
"Sec. 2. Any contractor or subcontractor engaged in the building construction business, who, with intent to defraud, shall retain or use the proceeds or any part therefor, of any payment made to him, for any other purpose than to first pay laborers, subcontractors and materialmen, engaged by him to perform labor or furnish material for the specific improvement, shall be guilty of felony in appropriating such funds to his own use while any amount for which he may be liable or become liable under the terms of his contract for such labor or material remains unpaid, and may be prosecuted upon the complaint of any persons so defrauded, and, upon conviction, shall be punished by a fine of not less than 100 dollars or more than 5,000 dollars and/or not less than 6 months nor more than 3 years imprisonment in a state prison at the discretion of the court.
"Sec. 3. The appropriation by a contractor, or any subcontractor, of any moneys paid to him for building operations before the payment by him of all moneys due or so to become due laborers, subcontractors, materialmen or others entitled to payment, shall be evidence of intent to defraud.”
The Court of Appeals held that NBD had a perfected security interest in the money owed by Aetna to Continental and that the position of NBD under the UCC was superior to the position of Westinghouse under the Act for three reasons:
1) The Act is a penal provision not intended to determine priority between conflicting creditors.
2) NBD’s UCC security interest attached and was perfected prior to Westinghouse’s right, if any, under the Act.
3) The Act does not create a lien of the type given priority under UCC 9-310; MCLA 440.9310; MSA 19.9310.
Defendants assert that the Court of Appeals is in error because:
1) The Act does provide the basis for a civil remedy. B F Farnell Co v Monahan, 377 Mich 552; 141 NW2d 58 (1966), overruling Club Holding Co v Flint Citizens Loan & Investment Co, 272 Mich 66; 261 NW 133 (1935).
2) Article 9 of the UCC does not apply because:
a) Under the Act and the UCC the fund held by Aetna was not an account receivable of Continental because Continental had no assignable right in that fund until its laborers and materialmen were paid; and
b) the Act creates an interest by operation of law that is outside of and superior to a security interest in accounts receivable.
NBD supports the opinion of the Court of Appeals and adds that the Act cannot be applied to the money paid to Westinghouse because the Act speaks of money "paid by any person to a contractor” and the $54,000 was never actually paid to Continental, the contractor.
In response, defendants urge that we interpret the Act to apply to money constructively paid to a contractor, even though physically delivered to a third party on his behalf, because otherwise secured creditors will be able to circumvent the Act by obtaining their money directly from owners. We note at the outset that we agree with defendants in this regard.
Amici Curiae, construction trade unions, in their brief support the position of defendants.
All three briefs present strongly worded policy arguments.
Ill
The Act’s purpose was discussed in General Insurance Co of America v Lamar Corp, 482 F2d 856, 860 (CA 6, 1973):
"The legislative history of the Michigan statute itself is obscure. The briefs of the parties do nothing to illuminate it, and our research has not disclosed the exact circumstances of the statute’s enactment. Nevertheless, the date of its passage, 1931, identifies the act as one of a genre of Depression-era measures intended to afford relief to subcontractors and materialmen in the construction industry.
"During the boom period of the 1920’s, speculative builders often undertook to construct projects too large for their available capital to finance, and they frequently paid suppliers and materialmen on older projects with funds received as payment on more current operations. With the advent of the crash of 1929 and the consequent widespread insolvency of many building contractors, these pyramided empires also collapsed and many subcontractors and suppliers were never paid. Subcontractors and materialmen on private projects were left only with mechanics’ liens as remedies, and these were often ineffective. See generally Grossman, Trust and Penal Provisions of the New York State Mechanics’ Lien Law, 5 Brooklyn L Rev 14, 16-22 (1935).
"On the other hand, suppliers of labor and material on public projects were protected by statutorily required payment and performance bonds. These bonds required for public projects were intended 'to afford protection to the suppliers , of labor or materials, similar to that afforded under the mechanics’ lien laws in the case of private buildings or construction.’
"When Depression-era experience demonstrated the inadequacy of mechanics’ liens in many cases because the owner had a defense if he had paid the principal contractor, statutes like the Michigan Act of 1931 were enacted to afford a 'supplement to the Mechanics’ Lien Law,’ providing a more effective remedy for private project suppliers against their principal contractors than they had previously.” (Footnotes omitted.)
In Club Holding Co v Flint Citizens’ Loan & Investment Co, 272 Mich 66; 261 NW 133 (1935), this Court held that the Act’s trust fund provisions did not apply to the erection of public buildings. The Court also observed that the statute was criminal in nature and seemed to leave undisturbed the civil rights and obligations existing between owners, contractors, subcontractors, materialmen, and laborers.
In B F Farnell Co v Monahan, 377 Mich 552; 141 NW2d 58 (1966), we overruled the suggestion in Club Holding Co that no right to an action for civil damages was created by the Act. In B F Farnell Co, a contractor who was paid for work performed under contract filed for bankruptcy while holding construction fund money and before all the materialmen were paid. The contractor delivered that construction fund money to the trustee in bankruptcy. The contractor was discharged in bankruptcy. A materialman brought an action under the Act against the contractor alleging that the contractor was a trustee in the funds paid him to the extent of the amount owed for materials.
We held that under the Act the contractor held the money as trustee for his materialmen and that the money was not the contractor’s property under § 70 of the Bankruptcy Act (11 USC 110).
"If plaintiff can prove the allegations of its complaint, then 'those funds,’ whether turned over to the trustee in bankruptcy or not, were never the 'property’ of defendant within said section 70.
'To conclude: It is clear that a contractor or subcontractor, by delivering to his trustee in bankruptcy what he himself holds as trustee under the act of 1931, cannot thereby defeat the common-law remedy this Court has provided in favor of those who under the act are aggrieved by his statutory violation. Whether defendant’s act of turning the funds over to his trustee did or did not place such funds beyond the reach of plaintiff is beside the point. Plaintiff had the remedy it seeks to pursue, as against the defendant, when the latter retained or used the funds as charged in its complaint. That remedy was not destroyed, either by defendant’s voluntary petition in bankruptcy or by his voluntary payment to the trustee in bankruptcy of that which was not his. To the extent Club Holding collides with these views, Club Holding should be overruled.” 377 Mich, pp 557-558.
It is clear that under Farnell, the Court of Appeals in the case at bar erred in holding that the Act did not provide a civil remedy.
The rationale of Farnell also lends support to defendants’ position that Continental did not have an assignable interest in accounts receivable held in trust for the materialmen. The contractor or subcontractor cannot defeat the purpose of the Act by granting a security interest in those funds held in trust for the materialmen’s benefit.
We do not believe, however, that such a determination necessarily nullifies a validly perfected security interest in the accounts receivable of a contractor.
The purpose of the Act is to create a trust fund for the benefit of materialmen and others under private construction contracts. This is in addition to the rights granted pursuant to the mechanics’ lien statute. MCLA 570.1 et seq.; MSA 26.281 et seq. They are two separate protections, providing two distinct avenues of relief to the unpaid laborers and materialmen. Any other interpretation would render one of these statutes superfluous.
If the money provided by the secured creditor was in fact used to pay laborers, subcontractors, or materialmen on the specific job in question, the purpose of the Act is carried out. To that extent, there is no reason why the secured creditor should not have a right to the accounts receivable of the contractor.
It is entirely consonant with the purposes of the Act to assign a specific account receivable, arising out of a particular improvement, to a lender to raise money to pay "laborers, subcontractors and materialmen, engaged by [the contractor] to perform labor or furnish material for the specific improvement”. MCLA 570.152; MSA 26.332. The burden of proving that any or all of the funds provided were in fact used to pay laborers, subcontractors and materialmen on this project rests on the secured party. To the extent that the lender fails to satisfy this burden of proof, the laborers, subcontractors and materialmen prevail and have the superior right to the fund; if the lender satisfies the burden of proof, its perfected security interest is superior.
In this case the security interest was created by a general continuing assignment covering all present and future accounts. In such a case the money may be loaned before the account receivable begins to be created. If the lender in this case in fact loaned money which was used to pay for labor and material for the specific improvement here involved in an amount at least as large as the amount of the accounts receivable, there would be no diversion to "any other purpose”.
A security interest created by a general, continuing assignment should be regarded as valid at least to the extent it does not exceed the amount of money lent by the secured party actually used in creating the specific improvement.
From the facts before us, we cannot determine how much of the $54,420.46 paid to Westinghouse was actually owed to Westinghouse, or whether any or all of the money provided by NBD was actually used to pay laborers, subcontractors and materialmen on this project. Those facts must be determined at trial.
IV
We noted above that the parties and amici involved in this case presented strong policy arguments favoring their respective positions. These may be summarized by stating that whatever way we rule in this case will apparently spell the doom of the construction industry.
The practice of financing construction projects is different from financing other entrepreneurs for reasons unique to the business. As a general rule, banks place considerably less reliance on the accounts receivable of contractors than on other business ventures.
"The reason is evident — the risk in this field of lending is greater than in any other. Year after year, surveys by Robert Morris Associates show that the contractor is number one on the list of loan losses by industry. The risks are greater because the contractor is susceptible to innumerable adverse forces outside of his control. The greatest risk lies in the fact that, unlike other industries, the contractor sets his price before the product costs are known, and that price, the bid, is generally what he will receive, no matter what his costs are.” Rogers, The Contractor — Analysis From A Credit Standpoint, J Commercial Bank Lending 19 (Feb, 1975).
There are, of course, other risks encountered by the lender with a security interest in the contractor’s accounts receivable, e.g., priorities of other secured parties with superior interests; workmen, and materialmen with liens; suppliers with purchase money security interests where available under the UCC; and bonding companies with rights of subrogation. These situations are not affected by the result in this case. Neither does this result limit the right of the parties to require payment and performance bonds, or to enter into subordination agreements per UCC, 9-316.
The mechanics’ lien statute is available to the contractors, subcontractors, laborers and material-men to protect their interest in the property. MCLA 570.1 et seq.; MSA 26.281 et seq.
V
The opinion of the Court of Appeals is reversed, and the case is remanded to Oakland County Circuit Court for further proceedings consistent with this opinion.
Williams, Levin, and Fitzgerald, JJ., concurred with Kavanagh, C. J. | [
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] |
Per Curiam.
We granted leave in this case to consider whether defendant Blachura had the right to the presence of counsel during a citizens’ grand jury proceeding.
The defendant testified before a citizens’ grand jury. As a result of his testimony, the grand jury indicted him on six counts of perjury; a petit jury later convicted him on five of the six counts. The trial judge granted the defendant’s motion for new trial on two counts and quashed the other three counts. The Court of Appeals reinstated the jury verdicts.
During this general, investigatory proceeding, the defendant’s attorney was outside the grand jury room, and the defendant was advised of his right to consult with his attorney; he did so on several occasions. The defendant did not request that his attorney be present in the grand jury room.
The record discloses that the issue has not been properly preserved for review and therefore warrants no further study. We conclude that leave to appeal was improvidently granted. DePew v De Pew, 373 Mich 162; 128 NW2d 533 (1964); Sinnott v Noble, 390 Mich 91; 211 NW2d 842 (1973); People v Watson, 390 Mich 732; 212 NW2d 708 (1973). The appeal is dismissed, and the cause remanded to the Oakland Circuit Court for imposition of sentence.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Lindemer, and Ryan, JJ., concurred.
MCLA 767.7 et seq.; MSA 28.947 et seq. Consequently, the proceedings must be contrasted with the one-man grand jury which includes the statutory right to have one’s attorney present in the grand jury room. MCLA 767.3; MSA 28.943. See United States v Mandujano, — US —; 96 S Ct 1768; 48 L Ed 2d 212 (1976), in which four justices of the United States Supreme Court said that "the witness may not insist upon the presence of his attorney in the grand jury room”.
An Oakland County grand jury was convened to investigate allegations of criminal misconduct in the Oakland County Drain Commission’s Office, and defendant was called to testify April 26 and May 3, 1971.
People v Blachura, 59 Mich App 664; 229 NW2d 877 (1975). We first had considered the propriety of the Court of Appeals order granting the prosecutor’s application for leave to appeal. 390 Mich 326; 212 NW2d 182 (1973). Defendant has not yet been sentenced.
The prosecutor advised the defendant that "if for any reason you felt that a question would require you to incriminate yourself * * * , then you may step outside the hearing room and * * * [defense counsel] may advise you on whether or not to answer the question, okay?”
Similarly, see McClanahan v Morauer & Hartzell, Inc, 404 US 16; 92 S Ct 170; 30 L Ed 2d 136 (1971); Johnson v Massachusetts, 390 US 511; 88 S Ct 1155; 20 L Ed 2d 69 (1968); Atchley v California, 366 US 207; 81 S Ct 1051; 6 L Ed 2d 233 (1961). | [
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Levin, J.
Section 569 of the School Code provides that "[t]he board of every district shall hire and contract with such duly qualified teachers as may be required. All contracts with teachers shall be in writing * * * ”.
For a number of years preceding 1972, the Detroit Board of Education employed tenured and probationary teachers, who worked with written, individual contracts, and substitute teachers, including emergency substitutes in regular positions (ESRPs), who worked without written, individual contracts.
In February, 1972, the board adopted a resolu tion which provided that all new teaching positions would be filled by ESRPs. No probationary appointments were made during the 1972-73 school year.
This class action was commenced by the union in January, 1973 in behalf of teachers working without a written, individual contract.
The parties agree that under § 569 of the School Code "duly qualified” teachers are entitled to written, individual contracts evidencing the employment relationship. They do not agree on the kind of contract particular teachers were entitled to receive or what is the appropriate forum and procedure for resolution of disputes concerning the contract a particular teacher should receive.
The union contends that all teachers in regular teaching positions who are not on "continuing” (tenure) contracts are entitled to "probationary” contracts and that the circuit court should decide whether a particular teacher, although called an "ESRP”, is so entitled.
The board contends that the kind of contract a teacher receives should be determined by agreement of the parties and, if they cannot agree, the dispute should be resolved through the grievance arbitration procedure provided in the collective bargaining agreement.
The circuit court adopted the union’s position and ordered the board to enter into probationary contracts with all certified teachers assigned to teach in regular positions. The order for mandamus provides a procedure for resolution by the court of disputes regarding the kind of contract a teacher should receive. The Court of Appeals affirmed. We reverse.
We agree with the circuit court and the Court of Appeals that the language of § 569 is "mandatory” and the board is required to enter into a written, individual contract evidencing the employment relationship with each "duly qualified” teacher in its employ. We conclude, however, that (1) § 569 does not impose a legal duty on the board to offer a teacher a particular kind of contract; (2) under § 569 the kind of contract is to be determined by agreement of the parties; (3) the collective bargaining agreement between the board and the union states the terms and conditions of teacher employment and provides a procedure for resolving disputes arising under that agreement; (4) this is such a dispute; and (5) the circuit court erred in issuing a writ of mandamus directing the kind of contract particular teachers would receive.
Before teachers unionized, the terms of a teacher’s employment were set forth in a contract between the teacher and the board embodying their agreement. Few individual teachers, however, had any real bargaining power and the contract terms were frequently imposed by the board rather than negotiated by the parties.
Now the union and the board negotiate a master collective bargaining agreement which determines the rights of the individual teachers in the bargaining unit. Individual teachers are not even nominally involved in the negotiation process; they sign contracts which are derivative of the collective bargaining agreement.
Three categories of teachers are recognized in the collective bargaining agreement negotiated by the parties in this case: tenured, probationary, and substitute. Substitute teachers are further classified as Emergency Substitutes, Class 1 and 2, and ESRPs, Class 3 and 4.* *
Under the collective bargaining agreement, complaints "involving the work situation, or that there has been a deviation from, or a misinterpretation or misapplication of a practice or policy; or that there has been a violation, misinterpretation, or misapplication of any provision of” the master agreement are to be resolved through the grievance procedure provided in the agreement.
The five-step procedure, culminating in binding arbitration, is mandatory, but not exclusive. Under the agreement, grievance is "supplementary or cumulative to * * * procedures or remedies afforded to any teacher by law”.
The union contends that the teachers properly eschewed the grievance procedure and sought court enforcement of their rights under the School Code in this proceeding, a remedy afforded "by law”.
We agree that the circuit court properly entertained this action and declared, pursuant to the School Code, that the board shall enter into a written, individual contract with each "duly qualified” teacher in its employ. But that court erred when it directed the board to enter into probationary contracts with certain teachers and provided for hearings regarding the status of other teachers.
The right protected by the code is the right to a written contract evidencing the employment relationship, not to a particular kind of contract. The code contemplates that the kind of contract each teacher receives is to be decided by agreement of the parties. In this case, the representative of the plaintiff class, the union, entered into a collective bargaining agreement with the defendant school district. That agreement spells out the terms and conditions of employment and governs the possible kinds of contracts — tenured, probationary and substitute — teachers may receive. The issue whether certain teachers, called ESRPs, are entitled to probationary contracts pursuant to the collective bargaining agreement depends on the agreement of the parties.
The interpretation of agreements is manifestly appropriate business for a court. Here, however, the parties have agreed and the collective bargaining agreement provides that contract disputes, including those concerning the interpretation of the agreement, are to be resolved through the grievance procedure.
In Kaleva-Norman-Dickson School District v Kaleva-Norman-Dickson School Teachers’ Association, 393 Mich 583; 227 NW2d 500 (1975), we recently reiterated the judicial policy favoring arbitration of disputes where the collective bargaining agreement provides for arbitration as the final step of a grievance procedure.
Neither the School Code nor other law requires that there be a judicial determination of the kind of contract a teacher who is a member of a collective bargaining unit shall receive.
The determination whether particular "ESRPs” were certified and filling regular positions, and, if so, whether they were entitled to probationary contracts should be resolved by the parties themselves or through the grievance procedure.
Our limited holding that the circuit court is not the proper forum for determination of the job classification and kind of contract to which these teachers are entitled in no way portends any view of the merits of their cause.
The case is remanded to the circuit court for entry of a declaration of rights that each "duly qualified” teacher in the board’s employ is entitled to a written, individual contract evidencing the employment relationship. The circuit court may hold this case in abeyance pending determination, either by agreement of the parties or through the grievance procedure, of the kind of contract to which each teacher is entitled. If any teacher is aggrieved by the job classification and contract offered by the board, he may file a grievance. After resolution of any dispute regarding the kind of contract to which a teacher is entitled, the circuit court may, if necessary, order the board to provide a written, individual contract of the kind awarded in arbitration.
Reversed and remanded.
Kavanagh, C. J., and Coleman and Fitzgerald, JJ., concurred with Levin, J.
Lindemer and Ryan, JJ., took no part in the decision of this case.
MCLA 340.569; MSA 15.3569.
"Teacher assignments and all other assignments of new or returning personnel shall be made as ESRP assignments, not as regular or probationary appointments.”
The union does not seek probationary contracts for substitute teachers who are not certified.
Detroit Federation of Teachers v Detroit Board of Education, 50 Mich App 660; 213 NW2d 839 (1973).
The Court of Appeals relied on the teachers’ tenure act, MCLA 38.71, et seq.; MSA 15.1971, et seq., in affirming the circuit court.
The Court of Appeals suggested that the board’s policy of hiring ESRPs without written, individual contracts could enable the board to circumvent the tenure act and deny ESRPs "the possibility of tenure guaranteed by the tenure act”. Detroit Federation of Teachers v Detroit Board of Education, supra, p 663.
The tenure act provides that "[a]fter the satisfactory completion of the probationary period, a teacher shall be employed continuously by the controlling board under which the probationary period has been completed, and shall not be dismissed or demoted except as specified in this act”. MCLA 38.91; MSA 15.1991.
The "probationary period” is not defined in terms of a particular contract, but as "the first 2 school years of employment”. MCLA 38.81; MSA 15.1981. Whether a school board may properly withhold tenure status from a teacher called an ESRP who worked without a written, individual contract is not an issue in this case.
The union sought a writ of mandamus compelling the board to enter "into written contracts with the plaintiffs and the members of plaintiffs’ class, for the 1972-73 school year”, and to "[g]rant plaintiffs such other and further relief as shall be just and proper”.
Mandamus is an extraordinary remedy to compel performance of a clear legal duty. Here the duty is to provide a written, individual contract, not a particular kind of contract.
Neither the criteria for qualification as a tenured, probationary or substitute teacher nor the particular duties of each category are specified in the agreement.
The rights and benefits accorded teachers in each category vary.
An ESRP’s assignment may be "closed out” upon two days’ notice. Master Agreement, Art XII, § G. Under the teachers’ tenure act, a probationary teacher is entitled to be "notified in writing at least 60 days before the close of the school year that his services will be discontinued”. MCLA 38.83; MSA 15.1983. "Generally, probationary teachers with less than two years’ seniority will not be transferred.” Art XII, § G. There is no similar limitation on the discretion of the board to transfer ESRPs.
Group life insurance is provided to "appointed employees”. To qualify, ESRPs must "have worked in this classification for two years immediately preceding their death or retirement”. Art XVI, § B(6)(a).
"A teacher returning at the expiration of leave, has priority over a newly hired teacher, ES, ESV, and ESRP.” Art XV, § G(l).
Art XXI, § A.
"Problems and grievances shall be presented and adjusted in accordance with the following procedures: * * * .” Art XXI, § B.
"The grievance procedures provided in this Agreement shall be supplementary or cumulative to, rather than exclusive of, any procedures or remedies afforded to any teacher by law.” Art XXI, § F.
"It is Ordered that the defendant, The Board of Education of the School District of the City of Detroit * * * [is] hereby ordered to comply with said Section 569 of the School Code of 1955, as amended, and, specifically, to enter into individual, written contracts as attached hereto (being the defendant’s standard probationary contract form), with all certificated teachers (whether or not heretofore denominated 'emergency substitutes in regular positions’ (ESRP’s), and not already on continuing, annual or probationary contracts) who, on or about January 15, 1973, were assigned to teach in a regular position (i.e., other than as a temporary replacement for another teacher on illness or temporary disability leave), for the school year 1972-73, effective for each teacher the first date of his assignment; * * * and further provided that in the event a dispute arises as to inclusion of any teacher in said class, the court reserves jurisdiction to determine as necessary the identity and individual effective dates of persons in the said class * * * .”
Whatever kind of contract these teachers receive, they will be derivative contracts governed by the terms of the master collective bargaining agreement. It is, therefore, of no consequence that forms of derivative contracts for the several classifications of substitute teachers may not have been drafted. The drafting of such forms does not require further bargaining as the terms and conditions of a substitute teacher’s employment have been agreed upon and are embodied in the collective bargaining agreement. | [
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Levin, J.
The statute provides that the result of a blood alcohol test is admissible in evidence in "any criminal prosecution for driving a vehicle while under the influence of intoxicating liquor”.
The question on this appeal is whether a blood alcohol test is admissible in a prosecution for manslaughter.
We hold that where a blood alcohol test is administered pursuant to the statute the test result is not admissible in a criminal prosecution other than for driving while under the influence of intoxicating liquor (DUIL) or for driving while ability to operate a vehicle was impaired due to the consumption of intoxicating liquor (DI).
I
In Lebel v Swincicki, 354 Mich 427; 93 NW2d 281 (1958), this Court ruled that the result of a blood alcohol tqst, based on a blood sample taken from an unconscious driver, was inadmissible in a civil action as the Michigan constitutional provision securing persons from unreasonable searches and seizures precludes the drawing of blood without consent. The Court, on the authority of Breithaupt v Abram, 352 US 432; 77 S Ct 408; 1 L Ed 2d 448 (1957), declared that the result of such a test would be inadmissible in a Federal prosecution. Subsequently, in Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966), the United States Supreme Court concluded that the Fourth, Fifth, Sixth and Fourteenth Amendments had not been violated by the extraction of blood without consent from an apparently drunken driver and the admission in evidence in a drunk driving prosecution of the result of a chemical test of the blood. We are asked to reconsider Lebel in light of Schmerber.
We see no need, however, to decide this case on constitutional grounds. Even if we were to conclude, on reconsideration of Lebel, that the drawing of blood from an apparently drunken driver does not violate his rights under the Michigan Constitution, the statute limits the authority of police officers to request the taking of blood and limits the use that may be made of a test result obtained pursuant to exercise of that authority.
II
Section 625 of the Michigan Vehicle Code makes it an offense to drive a motor vehicle while under the influence of intoxicating liquor.
In 1960, after Lebel was decided, §625a was added. It made admissible in DUIL prosecutions the result of a blood alcohol test administered with the written consent of the driver. It additionally provided that the driver be advioed of his right to have or to refuse a test and established certain presumptions regarding the extent of intoxication based on the test result.
After Schmerber was decided, § 625a was modified and §§625c-625g were added. Section 625c provides that a person who operates a motor vehicle "is deemed to have given consent” to a blood alcohol test if he is arrested while driving under the influence of intoxicating liquor or while his ability to drive has been impaired due to the consumption of intoxicating liquor.
Section 625d provides, however, that "[a] person under arrest shall be advised of his right to refuse to submit to chemical tests; and if he refuses the request of a law enforcement officer to submit to chemical tests, no test shall be given”.
If the driver refuses to take a test, a sworn report is required to be forwarded to the Secretary of State who shall give notice of the right to request a motor vehicle license revocation hearing. If the driver does not timely request a hearing, the Secretary of State shall suspend or revoke his license for a period of not less than 90 days nor more than 2 years. After a requested hearing the Secretary of State may suspend, revoke or deny issuance of a driving license.*
Ill
In this case, the officer requested and the driver consented to the test.
While §§ 625c et seq are sometimes called the "implied consent law” and § 625c provides that a person who operates a motor vehicle "is deemed to have given consent” to a blood alcohol test, companion § 625d in terms provides that "no test shall be given” to a person who refuses to consent. Under the statute the issue is not viewed in the context of search and seizure, but solely in terms of consent.
The people rely on State v Spry, 87 SD 318, 323-325; 207 NW2d 504, 507-508 (1973). The South Dakota statute requires the officer to advise the driver of his right to refuse to submit to a blood alcohol test and the consequences of such refusal in respect to the revocation of his driving privileges. Before Spry declined to exercise his right to refuse, he had asked the officer, who was aware that the driver of the other car had died, whether anyone was seriously injured and the officer responded, "I’m afraid so”. The South Dakota Supreme Court said, "It is clear that the results of the blood test were admissible despite the failure of the police officer to inform the defendant that the driver of the other car had died as a result of the accident. The statute makes no requirement that the subject be informed of any more than that he has a right to refuse and that his license will be suspended if he does.”
The South Dakota Court considered and rejected another contention of the defendant, adding: "Aside from all that, however, we hold that a defendant’s consent or refusal is irrelevant to the admission of the results of the blood test if the test is taken pursuant to a valid arrest”.
We can accept that dictum if the South Dakota Court meant that consent or refusal is irrelevant for purposes of the Federal constitution and the South Dakota statute. But consent is not irrelevant under the Michigan statute. The South Dakota statute speaks of presumptions that arise from certain test results but is silent regarding the admissibility of test results. The Michigan statute specifically provides that test results are admissible in DUIL prosecutions. The South Dakota statute does not provide that the driver be advised regarding the use that may be made of test results. The Michigan statute provides that the driver be informed that test results would be admissible in a DUIL prosecution.
Even though the taking of an automobile driver’s blood without consent does not violate the Federal Constitution and even if on reconsideration of Lebel we were to conclude that it did not violate the Michigan Constitution, it would still be within the legislative prerogative to limit the right of police officers and others to take blood from allegedly drunken drivers. Whether consent is or is not constitutionally required, the Legislature may decide that the interest in enforcement of the drunk driving laws does not justify subjecting unconsenting drivers to blood alcohol tests — imposition of the sanction of revocation of driver’s license for unreasonable refusal to consent to a test appropriately protects the public interest.
Under the Michigan statute, consent is not only relevant but determinative of whether and to what extent the result of a test administered under the authority of the statute can be used.
The scope of the consent given in Keen, whether it extended to use of the test result in a criminal prosecution other than for DUIL, depends on a construction of the statute and what occurred when Keen’s consent was solicited and given.
IV
Since its original enactment in 1960, § 625a has limited the use that may be made of the results of a test administered with the driver’s consent pursuant to the statute.
Section 625a begins: "(1) In any criminal prosecution for driving a vehicle while under the influence of intoxicating liquor”. The qualifying words, prosecution for "driving a vehicle while under the influence of intoxicating liquor” are repeated in the opening clause of both the first and second sentences of subparagraph (3):
"(3) A person charged with driving a vehicle while under the influence of intoxicating liquor who takes a chemical test administered at the request of a police officer as provided in paragraph (1) and (2) hereof, shall be informed that he will be given a reasonable opportunity to have a person of his own choosing administer one of the chemical tests as provided in this section within a reasonable time after his detention, and the results of such test shall be admissible and shall be considered with other competent evidence in determining the innocence or guilt of the defendant. Any person charged with driving a vehicle while under the influence of intoxicating liquor shall be informed that he has the right to demand that one of the tests provided for in paragraph (1) shall be given him, and the results of such test shall be admissible and shall be considered with other competent evidence in determining the innocence or guilt of the defendant. ” (Emphasis supplied.)
We read the statute to mean that test results will be used only in determining guilt or innocence in a prosecution for driving a vehicle while under the influence of intoxicating liquor or for driving while ability to operate a vehicle was impaired due to the consumption of intoxicating liquor and for no other purpose. In the context of an arrest for "driving a vehicle while under the influence of intoxicating liquor”, advice that results of a consensual test will be used to determine the innocence or guilt of the driver means innocence or guilt of the offense for which the driver was arrested.
The Secretary of State who, pursuant to the power granted to him, has prescribed the advice of rights to be given by police officers to persons arrested pursuant to §§ 625a-625 of the Michigan Vehicle Code, appears to have placed that construction on the statute. The arresting officer is required to advise the driver:
(a) "You have been arrested for the offense of driving a motor vehicle upon the highways of this state while under the influence of intoxicating liquor or while your ability to operate a motor vehicle has been impaired due to the consumption of intoxicating liquor.”
(b) "I am further advising you of your right to take a chemical test to determine the alcoholic content of your person * * * ”.
(c) "I further advise you * * * that the results of such tests shall be admissible and shall be considered with other competent evidence in determining your guilt or innocence in any prosecution relating to your driving a vehicle while either under the influence of intoxicating liquor or while your ability to operate a vehicle was impaired due to the consumption of intoxicating liquor.”
A driver advised that he has been arrested for DUIL or for DI and that if he consents to a chemical test the test results shall be admissible and shall be considered evidence in determining his guilt or innocence in any prosecution for driving a vehicle while "either” under the influence of intoxicating liquor or while his ability to operate a vehicle was impaired through intoxication would justifiably conclude that if he were to consent to the requested test the test results would only be used in a prosecution for the offense for which he was arrested and that his consent obtained on that understanding would not warrant use of the test results for other purposes.
It would exceed the scope of the consent given to allow test results obtained on the representation that they will be used in prosecutions where the maximum penalty for a first offender is 90 days imprisonment to be used in prosecutions for a felony with a maximum penalty of 15 years.
A police officer has no statutory authority to request that a driver submit to a blood alcohol test unless the arrest is for driving under the influence of intoxicating liquor. The officer is required to advise the driver that if he consents to a test, the test results shall be admissible in DUIL and driving while impaired prosecutions. Test results obtained following consent obtained on that advice cannot properly be used in a prosecution for manslaughter. The test results are not admissible in this case.
We intimate no opinion on the continued viability of Lebel. Lebel does not preclude the Legislature from broadening the admissibility of test results where the driver consents to a test.
V
The Court of Appeals held that by reason of People v Renno, 392 Mich 45; 219 NW2d 422 (1974), the defendant’s past driving convictions and any other misdemeanor convictions could not be used at the trial solely for impeachment purposes. Keen states that he "fears the attempt will be made to introduce these items on a 'pattern, habit or custom’ basis”. The prosecutor counters that since the people have not had a hearing on the prosecutor’s theory for such use, the issue "is untimely, premature and not ripe for decision” by this Court. We agree that since the issue has not been developed at the trial level, it is not properly before us, but do not wish to be understood as approving or disapproving of such use.
The Court of Appeals is reversed and the cause is remanded for trial.
Kavanagh, C. J., and Williams, Coleman, Fitzgerald, Lindemer, and Ryan, JJ., concurred with Levin, J.
MCLA 257.625a; MSA 9.2325(1).
Our holding is in accord with the opinion of Judge T. M. Burns dissenting in the Court of Appeals.
'T am convinced that MCLA 257.625(a); MSA 9.2325(1) applies only to criminal prosecutions for DUIL or DI. In my opinion, it is quite clear that the Legislature intended, through the enactment of the 1967 amendment changing the wording of the statute from 'relating to’ DUIL to 'for’ DUIL, that the admissibility of Breathalyzer tests and the corresponding statutory presumptions be limited to drunk-driving cases.” Separate opinion of T. M. Burns, J., People v Keen, 56 Mich App 84, 92, 96; 223 NW2d 700 (1974).
Const 1908, art 2, § 10 (now Const 1963, art 1, § 11).
Following an automobile accident Schmerber was taken to a hospital. A blood sample was withdrawn at the direction of a police officer, and introduced in evidence in a subsequent trial. Schmerber, who had refused to consent to the test, was convicted of driving under the influence of intoxicating liquor.
MCLA 257.625; MSA 9.2325.
MCLA 257.625a; MSA 9.2325(1).
Section 625a was added by 1960 PA 148. It was first amended by 1964 PA 104.
As originally enacted the section required that the allegedly intoxicated person give consent to a chemical test in writing and acknowledge in writing "that he is not required by law to give his consent”. This language was eliminated in 1964.
The 1964 amendment did provide, however, that "[t]he person charged shall be advised of his right to refuse to take any test provided for in this act” and both the 1960 and 1964 versions provided that "refusal on the part of any person to submit to any such test shall not be admissible in any criminal prosecution relating to driving a vehicle while under the influence of intoxicating liquor”. Conforming to other changes made by the 1967 act (1967 PA 253), this provision was eliminated and the following language substituted:
"(4) The person charged shall be advised that his refusal to take a test as herein provided shall result in the suspension or revocation of his operator’s or chauffeur’s license or his operating privilege.”
In 1966, §625b was added making it an offense for any person to operate a motor vehicle "when, due to consumption of intoxicating liquor * * * he has visibly impaired his ability to operate the vehicle.” 1966 PA 243.
The 1960 and 1964 versions provided that if there was at the time of the test 0.05% or less by weight of alcohol it would be presumed that the defendant was not under the influence; if there was in excess of 0.05% but less that 0.15% such fact shall not give rise to any presumption but could be considered with other competent evidence in determining the guilt or innocence of the defendant and if there was 0.15% or more it shall be presumed that the defendant was under the influence. The 1967 act retained the former presumption that the defendant was not under the influence if there was at that time 0.05% or less but reduced the area of no presumption to the range between 0.05% and less than 0.10%. If there was 0.10% or more it would be presumed that "the defendant’s ability to operate a motor vehicle was impaired within the provisions of section 625b of this act due to the consumption of intoxicating liquor”. The former rule that it would be presumed that the defendant was under the influence if there was 0.15% or more was retained.
In 1971 (1971 PA 154), the presumptions were changed as follows: (a) 0.07% or less, presumed that the defendant was not under the influence; (b) in excess of 0.07% but less than 0.10%, presumed that the defendant’s ability to operate a motor vehicle was impaired within the provisions of § 625b due to the consumption of intoxicating liquor; (c) 0.10% or more, presumed that the defendant was under the influence.
MCLA 257.625c-257.625g; MSA 9.2325(3)-9.2325(7).
A hearing may be requested for the purpose of determining whether (i) the officer had reasonable grounds to believe that the person was driving under the influence or while his ability to drive had been impaired; (ii) the person was placed under arrest on that account; (iii) he reasonably refused to submit to a test; and (iv) he was advised of his rights.
MCLA 257.625f; MSA 9.2325(6).
Id.
A 1968 act, 1968 PA 335, made certain changes in the procedures regarding license suspension hearings and appeals.
While the Federal constitutional question was decided in Schmerber, the principles espoused by the four dissenting justices might dissuade legislators from dispensing with the present statutory requirement of consent.
Chief Justice Warren reiterated (Schmerber v California, 384 US 757, 772; 86 S Ct 1826; 16 L Ed 2d 908 [1966]) the views he had expressed in dissent in Breitbaupt:
"that due process means at least that law-enforcement officers in their efforts to obtain evidence from persons suspected of crime must stop short of bruising the body, breaking skin, puncturing tissue or extracting body fluids, whether they contemplate doing it by force or by stealth”. Breithaupt v Abram, 352 US 432, 440, 442; 77 S Ct 408; 1 L Ed 2d 448 (1957). Justices Black and Douglas, who joined in the Chief Justice’s Breithaupt opinion, dissented on the further ground that the defendant’s constitutional right against self-incrimination had been violated. Schmerber v California, supra, p 773. Justice Douglas, in a separate opinion, added: "We are dealing with the right of privacy which, since the Breithaupt case, we have held to be within the penumbra of some specific guarantees of the Bill of Rights. * ** * No clearer invasion of this right of privacy can be imagined than forcible blood-letting of the kind involved here.” Schmerber v California, supra, pp 778-779. Justice Fortas also dissented: "As prosecutor, the State has no right to commit any kind of violence upon the person, or to utilize the results of such a tort, and the extraction of blood, over protest, is an act of violence.” Schmerber v California, supra, p 779.
The 1960 and 1964 enactments use the words "relating to”. Keen contends that the change to "for” in 1967 makes clearer the limited use which may be made of test results.
In adding §§625c through 625g the Legislature did not make conforming amendments to §§ 625 and 625a adding after "for driving a vehicle while under the influence of intoxicating liquor” the words "or while his ability to operate a vehicle has been impaired due to the consumption of intoxicating liquor”. It is nevertheless clearly the sense of the amendments that §§ 625 and 625a should be read as if such conforming amendments had been made.
Cf. People v Moore, 395 Mich 643; 237 NW2d 464 (1975) (a manslaughter prosecution) with People v Koval, 371 Mich 453; 124 NW2d 274 (1963) (a DUIL prosecution).
Unless the driver is arrested for driving while under the influence of intoxicating liquor no such advice can properly be given. See MCLA 257.625c(l)(a); MSA 9.2325(3)(l)(a).
Section 625d was amended in 1968 to provide that "[t]he form of the report shall be prescribed and furnished by the department of state”. 1968 PA 335.
The following appears on the reverse side of the Officer’s Sworn Report of Refusal to Submit to Chemical Test:
"Advice of Rights for Chemical Test
"(The following Advice of Rights shall be read to all persons arrested pursuant to Section 625(aHf) of Act 300 of 1949, as amended)
"I am a law enforcement officer and pursuant to law I am hereby advising you that you have been arrested for the offense of driving a motor vehicle upon the highways of this state while under the influence of intoxicating liquor or while your ability to operate a motor vehicle has been impaired due to the consumption of intoxicating liquor. I am further advising you of your right to take a chemical test to determine the alcoholic content of your person through analysis of a specimen of your blood, breath, urine, or saliva; and further I am offering you such a chemical test and requesting that you take a chemical test. I further advise you that you have the following rights:
"(1) That the results of such tests shall be admissible and shall be considered with other competent evidence in determining your guilt or innocence in any prosecution relating to your driving a vehicle while either under the influence of intoxicating liquor or while your ability to operate a vehicle was impaired due to the consumption of intoxicating liquor.
"(2) That you have a right to refuse to take any such tests, and if you so refuse, no tests shall be given to you.
"(3) That your refusal to take a test as provided may result in the suspension or revocation of your operator’s or chauffeur’s license or operating privilege.
"(4) Notwithstanding any other provision mentioned herein or anything else, you have the option to demand that only a breath test shall be given you, in which case your refusal to submit to any other test shall not constitute a refusal to take a chemical test.
"(5) That after taking a chemical test, administered at the request or direction of a law enforcement officer, you have a reasonable opportunity to have a person of your own choosing administer one of said chemical tests, within a reasonable time of detention, and that the results of such test shall be admissible and shall be considered with other competent evidence in determining your guilt or innocence in any prosecution relating to your driving a vehicle while either under the influence of intoxicating liquor or while your ability to operate a vehicle was impaired due to the consumption of intoxicating .liquor.
"(6) Regardless of any other provision, if you are afflicted with hemophilia, diabetes or any condition requiring the use of an anticoagulant under the direction of a physician, you need not consent to a withdrawal of your blood, but may take a urine or a breath test.”
The sworn report contains the statement: "I read to him the contents of the Advise [sic] of Rights for Chemical Test on the reverse side hereof’.
Id.
Section 625 provides that for conviction of driving under the influence a person shall be punished by imprisonment for not more than 90 days or by a fine of not less that $50 nor more than $100, or both. On a second conviction the offender may be punished by imprisonment for not more than one year and a fine of not more than $1,000. On a third or subsequent conviction within a period of ten years the offender shall be deemed guilty of a felony. Under MCLA 750.503; MSA 28.771, he may on that account be punished by imprisonment for not more than four years.
Section 625b provides that a person convicted of driving while impaired may be imprisoned for not more than 90 days or fined not more than $100, or both, together with the costs of the prosecution. On a second and subsequent conviction he may be imprisoned for not more than one year or fined not to exceed $1,000, or both.
The maximum sentence for manslaughter is 15 years imprisonment. MCLA 750.321; MSA 28.553. | [
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Reported below: 48 Mich App 175. | [
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Wiest, J.
This is an action to recover the price of a school bus, claimed to have been sold and delivered to defendant school district, under a conditional sale contract, executed by a majority of the school board. The circuit judge directed a verdict for plaintiff and later entered judgment for defendant.
Section 7104, 2 Comp. Laws 1929, provides:
“At an annual or special meeting the district * * * may vote to direct the school board to make provision to send the children of the seventh and eighth grades to another school or schools. When such action has been taken the school board shall have authority to use any funds, except library funds, in the hands of the treasurer, to provide and equip a vehicle, to pay the tuition and transporta-,» tion of all such children, and if n'ecessáry to vote a tax for such purposes.”
The power of the school board to purchase the bus must be traced to grant thereof by the school electors at a valid special or at the annual meeting. The annual meeting is fixed by law in July, and special meetings of the school electors require a notice of purpose and time (2 Comp. Laws 1929, §§ 7361, 7362).
Plaintiff claims that at a special meeting of the school electors held May 8, 1929, authority was given to the district board to purchase the bus. In the absence of evidence of a call for such meeting by the district board (2 Comp. Laws 1929, § 7362), and the time and place and statement of all questions to be submitted to the electors at such special meeting (2 Comp. Laws 1929, § 7363), the action taken was ineffective. Central School Supply House v. School District, 99 Mich. 402. At the annual school meeting, held July 8, 1929, it was determined, “that it be left to the board to buy the bus to transport the 7th and 8th to Turner if there is more than allowed by law on the list carried.”
In behalf of defendant it is claimed that plaintiff was present at that meeting and stated:
“If the district ordered the bus from him and did not want it, they could have 30 days to cancel the order.”
July 23, 1929, two of the three members of the school board signed the order for the school bus at the price of $1,150, of which $250 was to he paid ■upon delivery of the bus, and time extended for the balance with title retained by the seller.
Defendant claimed rescission at subsequent special meetings of the electors held on July 30, 1929, and by adjournment on August 2, 1929.
Again the record fails to show the validity of such special meetings, and, for the reasons above stated, any action thereat was ineffective. At the annual school meeting authority was conferred upon the school board to purchase a bus. This authority was exercised by a majority of the board on July 23d, and the contract sued upon entered into.
Under the record before us, the annual meeting was the only valid one and action had at that meeting authorized the school board to provide the bus if found to be needed. This granted power to the school board, or a majority of the members thereof,' to determine the need and make the purchase. In giving the order for the bus, the board determined the need. The fact that there was not money on hand to pay for the bus did not render the contract to purchase a nullity because the board could order a tax to be levied for the purpose.
At the trial it was conceded that if recovery was had by plaintiff it should be for the full contract price.
The judgment is reversed, with costs, and the case remanded to the circuit court with direction to enter judgment in favo.r of plaintiff.
Butzel, C. J., and Clark, McDonald, Potter, North, and Fead, JJ., concurred. Sharpe, J., did not sit. | [
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] |
McDonald, J.
A decree of divorce was granted to the plaintiff on February 13, 1931. She has appealed on the ground that the amount of property and alimony awarded by the decree is insufficient. No other question is involved. The parties lived together for about 14 years. They have no children. At the- time of their marriage, in June, 1914, neither of them was endowed with any considerable amount of worldly goods. The defendant was thrifty. He acquired a drug business in the city of Jackson, which, for the year 1929, produced gross receipts amounting to $65,000, and from which he derived a yearly income of $10,000 or $12,000. They owned a home by the entireties in which their equity as estimated by the defendant was about $10,000. The decree gave the plaintiff the household goods, a half interest in the home, and an allowance of $25 per week for a period of three years.
There is no fixed rule to guide a court in the award of permanent alimony, but we have said:
“The court should take into consideration the past relations and conduct of both parties, the health and age of each, whether or not either is responsible for the support of others, the amount and source of the husband’s property, their station in life and manner of living, and especially, in view of all the testimony in the case, what sum will leave the financial condition of the wife during her life not inferior to what it would be if the husband’s conduct had been correct and the marriage undissolved.” Bialy v. Bialy, 167 Mich. 559 (Ann. Cas. 1913 A, 800).
As to the past relations of the parties, it is undisputed that they lived happily and in harmony for many years. The break came when defendant began to associate with another woman. There was no other cause for their separation. The plaintiff’s conduct has been blameless. So here we have a situation where the marriage has been dissolved solely because of the misconduct of the husband. If able, he should be compelled to' pay such alimony as will—
“leave the financial condition of the wife during her life not inferior to what it would be if the husband’s conduct had been correct and the marriage undissolved.”
During the 14 years that they lived together, the defendant provided for the plaintiff as well as their station in life demanded. He has a valuable business, from which he derives a good income and is still able to provide for her support and mainte nance. His obligations nnder the marriage contract demand it. He is 46 years of age. She is 44. She has never failed in her wifely duties. Devotedly, she has given him the best years of her life. Her earning power is gone. By his misconduct, she has lost' the financial benefits of her marriage. In view of these circumstances, Is the provision made for her by the decree of the circuit court “reasonable and just?” We think not.
She is given one-half of the proceeds from the sale of their home, which would have amounted to $5,000 if the property could have been sold for $20,000 at the time of the decree. In. his brief, counsel for the defendant says that, because of the long-continued business depression, they have been unable to sell it. That it is worth $20,000 is only an estimate of the defendant, apparently based on its cost. The best evidence of value was not shown. It is well known that real estate values have greatly depreciated. This property is heavily incumbered, and, because of its depreciation and the uncertainty of a sale, the amount of plaintiff’s interest under the decree is very doubtful. In view of the fact that the defendant was given the business, from which he derives a yearly. income of $10,000 or $12,000, we think it would have been just and reasonable to have allowed the plaintiff the entire equity in the home. In this respect the decree is modified. The defendant will pay the taxes and any amount that may be due on the mortgage to date.
During the pending of this suit, the defendant has been paying temporary alimony of $40 per week. He is amply able to pay and should pay $30 a week for a period of five years.
With these modifications, the decree of the circuit court is affirmed. The plaintiff will have costs.
Butzel, C. J., and Sharpe, North, and Fead, JJ., concurred with McDonald, J.
Clark, J.
I think the decree of the trial'court is equitable, and that it should be affirmed.
Potter, J., concurred with Clark, J. | [
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Wiest, J.
A mortgage covered a parcel of real estate described by metes and bounds. Subsequently parts thereof, also described by metes and bounds, were sold by the mortgagor under land contracts, and some so sold were released by the mortgagee. The remainder, inclusive of parcels so sold but not released, was sold as a single parcel under foreclosure by advertisement and bid in by the mortgagee for the amount due. After the period of redemption had expired the mortgagee filed the bill herein to have foreclosure in equity on the ground that the previous foreclosure was void because the tract, inclusive of parcels not released from the mortgage, had been sold as one parcel and the foreclosure sale should have been by parcels in the inverse order of alienation as required by law. The bill was dismissed, it being held that plaintiff did not show occupancy of the land otherwise than as a single parcel.
The statute, 3 Comp. Laws 1929, § 14431, requires mortgaged premises, consisting of distinct tracts or lots, not occupied as one parcel, to be sold separately. The purchasers under land contracts had at least constructive occupancy of their several parcels at the time of sale and their rights should have been recognized. The title acquired by plaintiff is questionable, and the question is not solved by laches or the attitude of the mortgagor. The sale is vacated. This restores the mortgage. Stackpole v. Robbins, 47 Barb. (N. Y.) 212.
At an early date, and in a case like the one at bar, the relief herein sought was granted. Atwater v. Kinman, Harr. Ch. 243. Subsequent holdings have recognized the right. Vary v. Chatterton, 50 Mich. 541; Morse v. Byam, 55 Mich. 594; O’Connor v. Keenan, 132 Mich. 646; Woodruff v. Coffman, 139 Mich. 634. For inferential bearing see Walker v. Schultz, 175 Mich. 280; Jerome v. Coffin, 243 Mich. 324.
The decree is reversed, and a decree granting foreclosure will be entered in this court, conditioned, however, that no sale for an amount less than bid at the former sale will be confirmed.
Plaintiff will recover costs of this court only.
Butzel, C. J., and Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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] |
Butzel, J.
Defendant Arthur C. Johnson is the vendor, and plaintiffs Stephen S. Bennett and wife are the assignees of the vendee’s interest, in an executory contract for sale of property in Vienna township, Grenesee county. The contract required the vendees to insure the buildings against loss by fire, in company and amount to be approved by vendor, and with policies properly indorsed, to protect the interest of both parties to the contract. A policy of insurance taken out accordingly provided for payment of loss to plaintiffs and defendant as their respective interests should appear. After adjustment of a fire loss, a draft for $2,505.20 payable to plaintiffs and defendant was received from' the insurer. Subsequent to the fire, plaintiffs sold the property on executory land contract to a third party who constructed a new building thereon at a cost in excess of the amount paid by the insurance company. Plaintiffs ask that the insurance money be turned over to them or that it be placed in the hands of a trustee to insure the payments on the contract. Defendant asks that the insurance be applied to the payment of the balance still due on the land contract, and the surplus be paid to plaintiffs. There is no material dispute on the facts. ■
On the hearing, it was shown that there was $2,278.76 still due on the contract, and that part of it was past due. The circuit judge decreed that the amount due defendant be paid to him upon his furnishing a proper deed, with abstract showing good title, and that the balance be paid to plaintiffs.
As there are no other agreements in reference to the insurance moneys than those in the contract and insurance policy as hereinbefore set forth, the court was absolutely correct in its decree. The case is ruled by Kudner v. Miller, 244 Mich. 49, and Shaw v. Cramton, ante, 293.
The decree is affirmed, with costs to defendant.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. | [
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] |
Sharpe, J.
On November 28,1927, plaintiff made application to defendant for insurance on a dwelling house then under construction, and on December 3, 1927, a policy was issued by it in conformity therewith in the sum of $1,000. Annexed to the application was a statement by an agent of the defendant that he had “personally inspected this property and recommended the above application for insurance as a good risk both as to physical and moral hazard. ’ ’ Plaintiff lived in a house about 100 feet from that insured.
The building insured was destroyed by fire on March 30, 1929. Proof of loss was filed with the defendant on or about April 2d. On June 6th the defendant wrote the plaintiff:
“We are in receipt of your proof of loss for loss of dwelling house, which occurred Mar. 30, 1929, insured under our policy No. 43491.
“You are hereby notified that the State Mutual Eodded Fire Insurance Company, of Michigan, deny all liability for said loss for the reason that the house in • question was being used for illegal purposes, to-wit: for the purpose of manufacturing, storing; transporting, selling or giving away of intoxicating liquor by reason of which said fire occurred and this company was injured.
“If you are not satisfied with the above adjustment of your claim you should appeal to the board of arbitration provided for in article 5 of the charter, printed on your policy.”
An arbitration proceeding was thereafter had, pursuant to the terms of the policy, resulting in a finding on July 18th that the company was not liable for the loss.
On September 27,1929, the insured filed the bill of complaint herein, setting up the issuance and terms of the policy, the loss by fire, the denial of liability by the defendant, the arbitration proceedings, the interest of the arbitrators, and alleging that no evidence was produced before them on which their decision could be based, and asking that it be decreed to be null and void and that plaintiff have decree for the amount due him under the policy. Plaintiff had decree. Defendant appeals.
The meritorious question here presented is stated by counsel for the appellant as follows: .
“Was there evidence before the arbitrators from which they could infer that the illegal liquor-manufacturing and traffic contributed to the loss?”
This is but a restatement of the reason assigned by the secretary for denial of liability in his letter of June 6th. When examined as a witness before the arbitrators, the secretary testified that it was “the only question in dispute.”
After formal proof before the arbitrators of the issuance of the policy, the fire, and the proof of loss, the sheriff of the county was called as a witness-by the defendant. He testified that on August 11, 1928, he went to the building insured,- armed with a search warrant, and found therein a considerable quantity of whisky, home brew, and mash, and that there was a boiler and a gasoline or oil stove therein. While the record is -not clear, it may be presumed that he took possession of the incriminating evidence. The sheriff, however, testified that the plaintiff was not convicted.
Thé defendant then questioned the sheriff concerning a visit made by him to the house in which the plaintiff lived, being again armed with a search warrant, in the month of May, 1929, and, over objection, he testified that he found therein—
“a small amount of gin and he dumped some beer on us that time and broke the bottles of liquor in the room and had the door locked. We found a quantity of mash for the making of home brew and some gin, small amount of gin — it was less than a pint.”
The plaintiff, when called as a witness in his own behalf, denied any knowledge of liquor having been kept or stored in the building insured when raided by the sheriff in August, 1928. Counsel for the defendant then sought to question him about the liquor found by the sheriff in his home in May, 1929, but, acting on the advice of his counsel, he refused to answer, on the ground that he might thereby be compelled to incriminate himself as the charge therefor was then pending in the court. Counsel for the defendant insist that his refusal to answer these questions “estopped” him “from maintaining this suit. ’ ’
A part of section 9 of the by-laws of the defendant provides that in-the event of the loss by fife the insured “shall immediately furnish any and all material evidence requested, and if there be any fraud or evasion in writing or otherwise in connection with said examination or in the furnishing of material evidence, * * * the insured shall forfeit all claim against the company.”
The issue before the arbitrators was the liability of the defendant for the loss of the building destroyed on March 30, 1929. It seems clear to us that the use made by the plaintiff of the house in which he was living in the month of May thereafter could have no probative force in establishing the fact that liquor was in the building insured at the time of the fire. It also clearly appears that his refusal to answer the questions above referred to could not be construed into an admission that he was conducting an illicit business in the building insured when it was burned. It is apparent that the action of the arbitrators was based on such refusal. In Early v. Tussing, 182 Mich. 311, 329, 330, it was said:
“The conclusion and award of the arbitrators * * * was a gross and palpable mistake of law, and cannot be sustained. The award must therefore be vacated and set aside. ’ ’
In our opinion, the trial court was justified in so concluding under the facts in this case, and the decree is affirmed, with costs to appellee.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, North, and Fead, JJ., concurred. | [
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North, J.
At the close of plaintiff’s proofs in this automobile accident case, the court directed a verdict in defendant’s favor. Plaintiff has appealed. ' The sole question presented is whether direction of the verdict was error. Under such circumstances, the record must be construed in the light most favorable to appellant.
About 5:30 in the afternoon of April 19, 1929, defendant was driving his Studebaker coup'e in a southerly direction on U. S. 31 in the city of North Muskegon in the block next south of Euddiman avenue. The paved highway was 20 feet in width exclusive of the gutters at the side, the total width being substantially 32 feet. A truck delivering merchandise to a store on the westerly side was backed against the curb and extended in a northeasterly direction practically to the center line of the street. As defendant approached the truck he was compelled to drive on the easterly side of the center line of the street. After passing the truck he turned his car back towards the westerly side of the street and just at this point he struck plaintiff’s decedent, June Pomeroy, who obviously was attempting to cross from the westerly curb to his place of business on the opposite side of the street. He received fatal injuries. Defendant was driving about 25 miles per hour and going down something of a grade. He was not sworn as a witness, but it appears from the testimony of plaintiff’s witnesses that defendant said he did not know that his automobile had struck anybody until he was told so shortly thereafter by a priest who seems to have been riding with him. Defendant thereupon stopped his automobile and returned to the point of accident. So far as the record discloses no one saw the impact between defendant’s car and plaintiff’s decedent,- but there is testimony from plaintiff’s witnesses that two days after the accident defendant showed them the side of the car “.where he, Pomeroy, hit the handle of the door and cracked it.” The door handle was cracked. There was a mark across the side of the car almost the full length'of the door in. line with the handle. One of these witnesses at the time was on the easterly side of the street directly opposite the point of accident. He was engaged in servicing a car at a filling station. Only an instant before he had seen plaintiff’s decedent at the curb line on the opposite side of the street. This witness testified: “I didn’t actually see the car and June as they came together; the car was between me and him. When I saw the car going down the hill it was on the right-hand side of U. S. 33.” At that time plaintiff’s decedent was lying on the cement roadway near the westerly curb.
Defendant’s motion for a directed verdict was based both upon the ground that there was no testimony tending to establish actionable negligence on the part of defendant, and that plaintiff failed to offer any testimony tending to show her decedent was free from contributory negligence. The court granted the motion upon the latter ground. In this we think the court was correct. The question of contributory negligence having been brought into the casé, the burden of establishing that her decedent was free from contributory negligence was upon plaintiff. It is the claim of plaintiff that, since there were no eyewitnesses to the actual impact between decedent and defendant’s car, he is presumed not to have been guilty of contributory negligence. We think plaintiff cannot claim the benefit of such a presumption under the record made in this case. There is proof by eyewitnesses of the facts and circumstances immediately surrounding the accident, and from such proof fair and reasonable inferences may be drawn as to whether or not plaintiff’s decedent did exercise reasonable care in attempting to cross this street. Under such circumstances the presumption in his favor ceases. Richardson v. Williams, 249 Mich. 350; Elrich v. Schwaderer, 251 Mich. 33. This accident happened in' daylight hours. It was raining at the time. Careful consideration of the record convinces us that plaintiff’s decedent attempted to cross the street and in passing opposite the parked truck he walked or ran into the side of defendant’s car and in so doing lie was guilty of contributory negligence.
In support of her contention that the record presents an issue of fact for the jury, appellant in her reply brief states: “The facts are that the deceased was hit on the leg by the running board as the car swerved toward him, the front of the car just missing him. The force of the running board striking him such a blow threw his head forward so he struck the car door handle.” This theory of appellant is not tenable under the record, because there is no evidence that defendant’s car “swerved towards” plaintiff’s decedent. At the point of accident defendant, after having passed-the parked truck, was approaching the westerly side of the highway. It was his right and duty to drive on the westerly side; and plaintiff’s decedent in attempting to cross was bound to be mindful that such was the lawful course of passing vehicles. It conclusively appears that when the accident happened defendant was driving on his right-hand side of the thoroughfare, and that plaintiff’s decedent was guilty of negligence which caused or at least contributed to his injury. The judgment of the circuit court is affirmed, with costs to appellee.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and Fead, JJ., concurred. | [
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