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Fead, J.
The action is for damages for negligent injuries resulting in the death of Stephen Takacs while an employee of the defendant. Decedent’s work was at a furnace. It is claimed that when he opened the door of the furnace gas came out, he inhaled it, it caused him discomfort and illness over a considerable period of time, and finally resulted in his death. Claim for workmen’s compensation was made, hut denied by the department of labor and industry for lack of proof of accidental injury in the employment.
There was evidence that on one occasion a “gas and smoke smell” came out of the furnace while decedent was taking iron out of it. The only testimony offered that he had inhaled gas and it had made him sick was that of his own declarations, no part of the res gestee, and, therefore, incompetent as hearsay.
The medical evidence was that the cause of death was cerebral hemorrhage. There was no testimony that death was caused by the inhalation of gas nor that the furnace was negligently constructed, equipped, or operated.
The court properly directed the verdict and entered judgment for defendant. Affirmed.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred. | [
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Wiest, J.
Plaintiff, a devisee and legatee under the probated will of his father, filed a bill in the circuit court to have it decreed that the share of his sister Margeret S., Rosevear, also a devisee and legatee, had been in part adeemed. While the suit was pending an executors’ account was filed in the probate court, followed by allowance and order of distribution under the will, except as to the widow, who had elected to take under the statute. Plaintiff herein appealed from that order to the circuit court. By consent the chancery suit and the appeal from the probate court were consolidated. The parties interested in the cases so consolidated reached a settlement, agreement and stipulated the form of a decree, and this the court entered April 19, 1929. No appeal was taken from the decree.
October 2, 1929, plaintiff and his coexecutor, Detroit & Security Trust Company, petitioned the circuit court to allow their accounts as executors, to order distribution in accordance with the consent decree, and close the estate. October 23, 1929, the accounts of the executors were allowed, but, in ordering distribution of the estate, the court departed from the stipulated decree by directing the widow-of the deceased to pay certain amounts to the devisees. The amounts, so ordered, were necessary to pay a portion of the fees of attorneys allowed by the court. February 25, 1931, plaintiff herein moved the court to modify tha,t order on the ground that it subjected the share of the widow to the payment of $1,750, contrary to the terms of the consent decree, and, as that decree had become final by lapse of time without motion for rehearing, the court was without jurisdiction to modify or change the terms thereof. This motion was denied; and the appeal we are now considering followed.
Plaintiff has acquired the interest of his mother in the real estate involved. Plaintiff, as an executor, asked the court to order distribution of the estate. This involved rights of legatees under the will and rights of the widow under the statute. Fees of attorneys, representing various parties and allowed by the court, totaled $7,850. After the consent decree the executors found it necessary to prepare two new accounts before they could distribute the estate. These accounts disclosed that the money in the estate had been used for administration expenses which did not include the fees of the attorneys in the litigation commenced by plaintiff. The executors did not have money in the estate out of which to pay the widow’s proportionate share of the attorneys’ fees, and before the court could make order of distribution, it was necessary to determine the widow’s proportionate share of the attorneys’ fees. The decree of April 19,1929, entered in accordance with the agreement of the parties, carried no sanctity beyond that of other decrees. Upon application of the executors for final distribution of the estate, the court, presided over by the same judge, was not bound to follow the previous decree, entered during the course of administration of the estate, regardless of subsequent matters properly affecting rights upon final distribution.
We do not find it necessary to pass upon the point that the motion to modify the order of October 23, 1929, was made too late to be considered by the court. The motion to modify was properly overruled, and the order denying the motion is affirmed, with costs against plaintiff.
Clark, McDonald, Potter, Sharpe, North, and. Fead, JJ., concurred. Butzel, C. J., did not sit. | [
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Sharpe, J.
The defendant has been engaged in the meat and canned goods business in Grand Rapids for many years. In December, 1927, he employed the plaintiff as a bookkeeper, on part time, at a salary of $30 per week. The service rendered was such that on April 1, 1928, this wage was increased to $50 per week. On May 28, 1928, plaintiff loaned defendant $900, and on October 5th of that year he loaned him $2,500, for which he received defendant’s notes bearing 7 per cent, interest.
It is plaintiff’s claim that as early as April; 1928, there was talk of a partnership in the business. The trial court found that such an agreement was in fact entered into on February 11, 1929, to become effective January 1st of that year, whereby the plaintiff became the owner of a one-quarter interest in the business, for which he was to pay $5,000. He was discharged by the defendant in October, 1929, and filed the bill of complaint herein soon thereafter for an accounting of the moneys due him on account of the service rendered; of the loans made, and his share of the profits of the business during the time he was a copartner with defendant therein.
The defendant answered, denying that a partnership agreement was entered into, and by cross-bill set up facts supporting a claim that plaintiff was indebted to him in sundry amounts which should be set off against the notes held by plaintiff.
The proofs were submitted in open court, after which the trial court filed an opinion reviewing the proofs submitted at length. A further accounting was ordered as to certain items, and, after consideration thereof, a decree for plaintiff was entered sustaining the claim of partnership and awarding him the sum of $4,111.59, from which the defendant has taken an appeal.
1. Partnership. We are satisfied from the record that defendant much appreciated the service that plaintiff was rendering. His books had not theretofore been kept in a manner to reveal the true condition of his business. The plaintiff testified that when he presented the quarterly statement to defendant in April, 1928, the defendant said “that I was the man he wanted there, and that he would give me a partnership in the business.” It is undisputed that his salary was then increased to $50 per week. The business needed money. On May 28th plaintiff offered to raise $900 on his wife’s life insurance policy and loan it to defendant, and this offer was accepted. While the business was conducted at a profit, additional money was needed for operation, and on October 5th plaintiff raised $2,500 by a mortgage on real estate owned by his wife and deposited it to defendant’s credit in the bank. That he did this in anticipation of the partnership is apparent. He testified that defendant then said to him, “Well, if you can borrow the money at the bank now, it will be a good time, and we can finish up this partnership proposition.” After the deposit was made, he testified that defendant said to him, “Now, Bowen, it is so late in the year, why not let’s waive the partnership proposition until after the first of the year,” and that he gave his assent thereto.
Defendant gave his notes for these loans, and was charged interest thereon to January 1, 1929. On that date, defendant’s investment in his business amounted to about $22,000. He drew out $2,000 during January, and on February 11th, when the terms of the partnership agreement were finally agreed upon, he was credited with this amount and with plaintiff’s investment of $5,000 for a one-quarter interest in the business. On that day, plaintiff made appropriate entries in the books, which had theretofore been kept by him, charging himself with the $5,000 and crediting that amount to the defendant. These entries were used as a basis for quarterly statements thereafter made by him and presented to defendant. On these statements it clearly appeared that the defendant had an investment in the business of $15,000 and plaintiff $5,000. While defendant testified that he did not see the entries in the books, he admitted that he received these statements, but says he did not examine them; that his only interest in them was in the amount of profit they disclosed.
Louis Harmon, an apparently reputable business man of Grand Rapids, testified:
“At the time I went to Detroit with Mr. Mohrhardt, I had some talk with him about the partnership and Mr. Mohrhardt said that after he took Mr. Bowen in as a partner, he was greatly relieved of his financial worries.”
Defendant, on being asked if he did not so state, replied: “Not that I know of.” The defendant owned the building in which the business was conducted. Up to January 1, 1929, he had been charging the business a monthly rental of $125 per month, and on that date increased it to $200. His explanation is that it made no difference as it all belonged to him.
After plaintiff’s discharge, defendant had an examination made of the books relating' to the business by Charles Payne. He prepared a statement of plaintiff’s account with defendant, the first entry in which was “Investment a/c $5,000.” It showed an indebtedness of plaintiff to defendant of $1,834.58. Payne testified that after he had prepared it he showed it to defendant, and he said, “Now, go down and show that to Mr. Bowen,” and he did so. He also testified:
“There is nothing about the books that is hidden or anything covered up as to that investment. If I was not told by anybody about it, I would immediately conclude that it was a partnership.”
The books as kept disclose that both plaintiff and defendant were allowed weekly salaries after January 1, 1929. There are other facts and circumstances which tend to support plaintiff’s claim in this respect, and, in our opinion, the finding of partnership was justified by the evidence submitted.
2. Profits of 1928. It is plaintiff’s claim that when he raised the $2,500 he expected that the partnership would then be entered into; that when it was suggested that it should begin on January 1st defendant said to him:
“Now, in lieu of your waiving that partnership proposition, I will give you a flat 10 per cent, of the profits of 1928 which would approximately have been about the same as one-quarter of the business would be in 1928 for the last quarter. •That is the best quarter in the year. ’ ’
Defendant denies making this statement. The trial court heard them both testify. His finding that many of the answers of the defendant to questions put to him were ‘ ‘ evasive ’ ’ finds support in the record. "When the agreement for a partnership was deferred at the time the last loan was made, it is not unreasonable to conclude that he thought plaintiff should be recompensed for the delay. The interest which the notes bore was but the same as plaintiff was paying. We are unwilling to reverse the finding of the court that the agreement for a share of the profit in 1928 was in fact made:
3. Increase in Salary. Plaintiff claims that when his salary was increased to $50 per week defendant agreed that he should be allowed this amount from the time he began work. The testimony is quite convincing that plaintiff, under the first agreement of hire for part time, found himself unable to do the work expected of him without devoting most of his time to defendant’s business. No proper books of account had been theretofore kept. That defendant was pleased with his efforts to start a proper accounting system is apparent. Defendant denies that lie so agreed. What has been heretofore said as to the weight of the evidence applies equally to this item. We are unwilling to reverse the finding allowing it.
4. Bond for Notes. Defendant insists that the payment of the sum awarded plaintiff should be conditioned on his filing a bond to indemnify him against any claim by any other person on account thereof. He relies upon the statute (3 Comp. Laws 1929, §§ 14209, 14210) which provides that such a bond must be given when action is brought upon a lost negotiable promissory note, or when such a note is relied upon as a set-off. The $900 note was offered in evidence and marked as an exhibit. Plaintiff testified that he had looked for, but was unable to find, the $2,500 note. The defendant also testified, “I looked for it and haven’t found it.” While the due date of this note was not fixed, it is apparent that it was made payable on January 1, 1929. Interest on it to that date was charged to defendant. It is uncertain whether this note was not delivered to defendant when the partnership agreement was entered into. It does not affirmatively appear that these notes were negotiable instruments. Proof of that fact must be submitted before an indemnifying bond can be required under the statute. Reese v. Dyer, 199 Mich. 204.
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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Kelly, J.
On June 22, 1965, while investigating an anonymous tip concerning a bank holdup of the previous day, members of the Detroit police department went to the Detroit Strathmore Hotel room of defendant Eosa and, without a search warrant, searched the room and arrested defendant.
The officers confiscated a cellophane package containing white powder, a syringe, and two wallets containing $3,537.
Defendant was arraigned on a warrant charging illegal possession of narcotics and after a preliminary examination the complaint and warrant were dismissed on motion of the prosecutor on the grounds that the arrest was illegal with the consequence that the search and seizure were in violation of the defendant’s constitutional rights.
Defendant’s motion for return of the $3,537 was denied by Eeeorder’s Court Judge Eicca. In his opinion, he said:
“This court feels it is without jurisdiction to entertain a motion for return of funds alleged to have been illegally seized by the police department of the city of Detroit and the court cannot summarily order the return of the property as part of the criminal case; but that a suit for return of said funds should be filed in the civil court with the proper parties, as complainant and defendant.”
The opinion of the Court of Appeals sets forth the statute, emphasizing the words “do all acts which the circuit courts of this state within their respective jurisidictions, may, in like cases, issue and do by the laws of this state”; called attention to circuit court and Federal cases which ordered the return of illegally seized property or money under circumstances similar to the present case, and decided that the recorder’s court had jurisdiction to determine defendant’s “motion for return of property illegally searched for, seized and held.”
To sustain their contention that the Court of Appeals erroneously construed the statute, the people, in their brief, state:
“It is the contention of the appellant that if the interpretation as suggested by the Court of Appeals were to be adopted in its entirety, then the recorder’s court would have to be empowered to try questions of title, since the ordering of the return of seized property must be based on a finding as to who is entitled to possession. It has been previously held that the recorder’s court does not have the right or the power to try such questions. Jackson v. People (1860), 9 Mich 111 (77 Am Dec 491); People v. Stott (1892), 90 Mich 343; People v. Wolverine Manufacturing Company (1905), 141 Mich 455.”
The cases cited by plaintiff-appellant are not pertinent to the question presented in this appeal. In each of those cases the issue involved was the question of title on a claimed offense of blocking a public street or alley.
We are not considering an appeal involving an action that was started by defendant-appellee in the recorder’s court to try question of title, but a case where defendant was forcibly brought before the recorder’s court, where the issue presented is the superior right to possession as between the seizing-authority and the one from whom the property was seized.
Because of Wayne county’s complex problems of law enforcement, the legislature confined jurisdiction to the circuit court of Wayne county of offenses occurring outside the corporate limits of the city of Detroit, and granted jurisdiction over all offenses occurring within the corporate limits of the city of Detroit to the recorder’s court. If the offense complained about in this appeal had occurred outside the corporate limits of the city of Detroit, and a similar motion to return the money had been made, the circuit court would have followed our decision in People v. Marxhausen (1919), 204 Mich 559, where we held (syl 2) :
“Where it is made to appear before the trial that articles have been taken from the possession of the defendant in violation of his constitutional rights and by unlawful search and seizure and without any search warrant at all, it becomes the duty of the trial court to order the return of the articles thus unlawfully taken.”
The statute in question in regard to the recorder’s court grants jurisdiction to said court to have original and exclusive jurisdiction of all prosecutions and proceedings in behalf of the people of this State for crimes, misdemeanors, and offenses arising under the laws of this State and committed within the corporate limits of the city of Detroit.
These statutory words “to do all acts which the circuit courts of this state within their respective jurisdictions, may, in like cases, issue and do by the laws of this state,” refer to criminal matters and are definitely connected with and refer to the preceding language dealing with issuing of process, et cetera, necessary to effectively and justly enforce the law and protect the accused from an unlawful exercise of police power.
Our words go no farther than what we have just said. In view of section 726.11’s restrictive provision, “in like cases,” such words are not to be taken as extending either the power or jurisdiction of the recorder’s court beyond that of disposition of a duly instituted criminal proceeding which is then before that court.
We do not interpret the Court of Appeals’ decision (as does plaintiff) as an authorization to the recorder’s court to exercise general jurisdiction determining questions of title, and specifically hold that the statute does not grant such powers.
We do hold that in criminal cases similar to the one before us in this appeal, it is the ancillary right and duty of the recorder’s court to determine the right to possession of money or goods illegally seized by law enforcing officials.
This case is remanded to the recorder’s court to pass final judgment on defendant’s “motion for return of property illegally searched for, seized and held.”
Affirmed and remanded. No costs, á public question being involved.
T. E. Brennan, C. J., and Dethmers, Black, T. M. Kavanagh, Adams, and T. Gf. Kavanagh, JJ., concurred.
People v. Rosa (1968), 11 Mich App 157. Appeal granted 381 Mich 774.
“The said recorder’s court shall have original and exclusive jurisdiction of all prosecutions and proceedings in behalf of the people of this state, for crimes, misdemeanors, and offenses arising under the laws of this state, and committed within the corporate limits of the city of Detroit, except in cases cognizable by the police court of the city of Detroit, or by the justices of the peace of said city; and shall have power to issue all lawful writs and process, and to do all lawful acts which may be necessary and proper to carry into complete effeet the powers and jurisdiction given by this aet, and especially to issue all writs and process, and to do all acts which the circuit courts of this state within their respective jurisdictions, may, in like cases, issue and do by the laws of this state: Provided, That this section shall not be construed to prevent the grand jury for the county of Wayne from inquiring into and presenting indictments, as heretofore, for crimes and offenses committed within the limits of said city.” CL 1948, § 726.11 (Stat Ann 1962 Rev § 27.3561).
People v. Williams (1961), 363 Mich 281; People v. Krol (1943), 304 Mich 623; People v. Marxhausen (1919), 204 Mich 559 (3 ALR 1505); Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684, 6 L Ed 2d 1081, 84 ALR2d 933); Berkowitz v. United States (CA 1, 1965). 340 F2d 168 (8 ALR3d 463).
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Black, J.
(for reversal). Stimulated by no judicial bravos, the present attorney general has — for this latest Edison Case — delivered an errant encore of that aria buff a which, nearly a decade ago, his predecessor chanted before a not very enthusiastic Court. See what we have come to know as the second Edison Case (Detroit Edison Company v. State, 361 Mich 290, decided September 16, 1960). The attorney general intoned then, and Attorney General Kelley chants now, that the remedy of review before the corporation tax appeal board (provided by PA 1921, No 85, as amended by PA 1954, No 153; CLS 1961, § 450.309 [Stat Ann 1963 Rev §21.210]) was and is exclusive; the 1959 official crescendo having been that “jurisdiction is lodged exclusively in the corporation tax appeal board pursuant to PA 1921, No 85, as amended.” (361 Mich 290, 296, 297.) We thought that song had ended with our wholly negative decision of 1960, but the melody seems to linger on, and on, and on.
We hold again, as in the second Edison Case, that the administrative remedy contended for by the attorney general is not exclusive. We hold further that Edison has rightfully sought review, pursuant to the administrative procedures act (PA 1952, No 197 [CLS 1961, § 24.101 et seq., Stat Ann 1961 Rev § 3.560(21.1) et seq.]), of the whole of what in great part is now conceded to be another gross over-assessment of Edison’s statutorily payable franchise fees. The judgment of the Court of Appeals is therefore reversed with remand for reinstatement of the circuit court’s order denying the treasury department’s motion for accelerated judgment.
First: The Question op Exclusive Bemedy.
"When the second Edison Case came to considera-. tion and decision, all of the Justices agreed upon the result reached: that result being reversal upon unanimous determination that the remedy of review provided by CLS 1961, § 450.309 is not exclusive. Our differences then were as to the preferred method of achieving such a result upon the record made, and each of the preferences was selective without disparagement of the other. Two Justices, this writer and Justice Souris, stood for reversal on ground that the court of claims act provided an alternately available forum for determination of Edison’s claim for reimbursement of what the corporation and securities commission had compelled it to pay in order to obtain a certificate of corporate good standing.. Three others, Justices Carr, Dethmers, and Kelly,' grounded their judgment of noiiexclusivity on an even broader base, that “It is significant that the-legislature [referring to the act of 1921 as amended] did not specify that the remedies to a corporation, thereby afforded, would be exclusive.” (p 307.) Two others, Justices Edwards and Talbot Smith, grounded their votes for the same result on the equally tenable view that “plaintiff’s [Edison’s] normal administrative remedy had been barred by the refusal of the commission to issue the redeter-mination called for by the statute.” (p 308.)
As against the second Edison Case Division 2 erred seriously when the assigned judges agreed (13 Mich App 153, 157) :
“In our opinion plaintiff’s exclusive method of review from the redetermination by the treasury department was an appeal to the appeal board. The. circuit court, not having jurisdiction, should have' granted defendants’ motion for accelerated judgment.”
In order that this question of allegedly exclusive remedy may be settled with new finality, we formally adopt the following portion of Justice Carr’s opinion of the second Edison Case (pp 306, 307):
“The motion to dismiss was granted on the ground that the court of claims was without jurisdiction to hear and determine the matter. It was the opinion of the presiding judge that under PA 1921, No 85, as amended by PA 1954, No 153 (CLS 1956, §§ 450-.309, 450.310 [Stat Ann 1959 Cum Supp §§ 21.210, 21.210(1)]), plaintiff was limited to the remedies allowed by the procedure therein set forth. The specific sections cited provide for notice to a corporation subject to the provisions of the act as to the amount of its franchise fee liability, with the right to ask for a redetermination thereof by the commission within a period of 20 days after receipt of such notice. Review by an appeal board composed of the attorney general, the State treasurer, and the auditor general, may be claimed by either the commission or the corporation, with subsequent review by this Court. The amendments made further permitted a demand for a refund on the part of a corporation for an excessive payment made by it for franchise fee liability with the right of review by the appeal board and subsequently by this Court. Such methods of procedure were indicated to be independent, it apparently being the intention of the legislature that either or both might be followed.
“It is significant that the legislature did not specify' that the remedies to a corporation, thereby afforded, would be exclusive. In view of the decision of this Court in In re Consolidated Freight Co. [1933], 265 Mich 340, 348 (4 PUR NS 397), it may be assumed that the legislature intended that the review in this Court should be confined wholly to questions of law, in other words, an appeal in the nature of certiorari. If, therefore, the statutory procedure under the 1954 act, above cited, is exclusive, a corporation consider ing itself aggrieved by being required to pay the amount of the franchise fee as fixed by the commission has no remedy by which factual issues can be tried in court.”
Second: The Administrative Procedures Act.
It will not take long to point out that this act (PA 1952, No 197, as amended) by section 1 thereof defines “agency” as meaning “any state board, commission, department, bureau or officer, authorized by law to make rules or to adjudicate contested cases, except the workmen’s compensation commission, the employment security commission, the department of revenue, the public service commission and those in the legislative and judicial branches.” The section quoted expressly includes all boards, commissions, departments, bureaus and officers except those expressly excepted. Neither the former corporation and securities commission nor the present treasury department and the officers and directors thereof are expressly excepted. Edison therefore was and now is possessed of right to review, under the administrative procedures act, the aforesaid redetermination, a redetermination which, as shown by its complaint below, was made under the first paragraph of CLS 1961, § 450.309. Indeed, the administrative procedures act provides that available remedy which eliminates need for determination of a serious constitutional question, to which we now briefly advert.
The constitutional question, stated baldly from and upon questions put and answers made during' oral argument of this case, is whether the paragraph 2 remedy provided by CLS 1961, § 450.309 could, as the attorney’ general would apply it here, provide Edison with that kind of due process which authorities like In re Murchison (1955), 349 US 133 (75 S Ct 623, 99 L Ed 942); Lookholder v. State Highway Commissioner (1958), 354 Mich 28, and Glass v. State Highway Commissioner (1963), 370 Mich 482, minimally require. The significance of these authorities is appropriately summed up in the recent text of 16 Am Jur 2d, Constitutional Law, § 582, p 988:
Ҥ 582. Requirements of fairness and impartiality.
“Due process requires that the tribunal be a fair and impartial one. Impartiality is lacking where a member of the tribunal has a pecuniary interest in the outcome of the proceeding. And a statute which compels a litigant to submit his controversy to a tribunal of which his adversary is a member does not afford due process of law.”
Consider the appeal board which the second paragraph of CLS 1961, § 450.309 constitutes. It is composed of 3 members. One is the attorney general. One is the State treasurer. The latter has already decided the issue' which the attorney general says must be reviewed by the appeal board; the treasurer having sat as a statutory redeterminer of the assessment now in question. As for the attorney general, granting him the utter purity of a Galahad, we can only say (as in Offutt v. United States [1954], 348 US 11, 14 [75 S Ct 11, 99 L Ed 11) and repeated in In re Murchison, supra at 136) that to perform its high function in the best way “justice must satisfy the appearance of justice.” The attorney general’s appearance as advocate now for.review by the appeal board, then his nimble ascendancy to the appeal board for decisional purposes, and then his return to advocacy for the purposes of appeal under the third paragraph of the same section; all this naturally raises the appearance—only that of course— of injustice. No more need be said.
Upon remand the circuit court will proceed toward prompt determination of all meritorious issues raised by plaintiff’s complaint and whatever answer thereto the attorney general files. From such determination any party deeming ■ itself or himself aggrieved may appeal directly to this Court as on granted leave. Plaintiff will have costs of all three courts thus far sustained.
Bethmers, J., concurred with Black, J.
Kelly, J., concurred in the result.
For details disclosing the manner in whieh today’s issue arose and came to present review, see Detroit Edison Co. v. Department of Treasury (1968), 13 Mich App 153, reversing the denial by Ingham Circuit Judge Coash of the treasury department’s motion for accelerated judgment.
“Sec. 9. Every corporation subject to the provisions of this act shall be notified as soon as practicable of the computation of its franchise fee made pursuant to * * * this act in the event it'has remitted an amount in excess of the proper fee or has any further liability with respect thereto. If the corporation shall have remitted an amount in excess of its fee as properly computed * * * any such excess shall be refunded, or, at the option of the corporation, shall be credited to the account of the corporation for application to any franchise fee liability such corporation may incur thereafter. Any such corporation may apply for a redetermination of its franchise fee by filing a written request therefor with the corporation and securities commission within’20 days after receipt of notice of the original computation above referred to. The commission shall give prompt consideration to sueh request and the grounds of complaint therein set out and shall promptly redetermine the liability of sueh corporation.
“Any corporation conceiving itself to be aggrieved by any sueh redetermination may appeal within 20 days after notification thereof to an appeal board composed of the attorney general as its chairman, the state treasurer, and the auditor general as its secretary. The appeal board shall recompute the liability of the taxpayer and shall notify the taxpayer and the commission promptly on its decision.
“The commission and/or the corporation may, within 30 days after' notification of such decision, and not after, appeal from the decision of the appeal board to the supreme court of the state.
’ - “The appeal board shall prescribe reasonable rules and regulations for the conduct of its proceedings.”
The conceded over-assessment, made by the redeterminers appointed and acting under the first paragraph of said section 450.309, is $2,142,834.74. The total assessment, which Edison sought and now seeks to review under the administrative procedures act, amounts to $3,311,806.17.
“Any,” as employed in section 1, takes in “all”, “of every kind”, and “each one of all.” It seems indeed “to mean just what it says.” See discussion of “any” in Harrington v. Inter-State Business Men’s Accident Ass’n (1920), 210 Mich 327, 330, 331 and in Gibson v. Agricultural Life Ins. Co. of America (Í937), 282 Mich 282, 288, 289.
“A statute valid as to one set of facts may be invalid as -to another. A' statute valid when enacted may . become invalid by change in the conditions to which it is applied.” Brandéis, J., writing for the Court in Nashville, C. & St. L. R. Co. v. Walters (1935), 294 US 405, 415 (55 S Ct 486, 79 L Ed 949). | [
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Black, J.
In 1935, by PA 45, the legislature amended the then insurance code by adding a new section 33a, “to follow section 12460 of the compiled laws of 1929.” Section 33a is now section 3036 of the insurance code of 1956 (PA 1956, No 218 [CLS 1961, § 500.3036, Stat Ann 1957 Rev § 24.13036]). It reads:
“Sec. 3036. Whenever an appeal is taken from any judgment in any case wherein it shall appear to the court that all or a part of the particular liability of the appellant thereunder is insured against, in and by any surety company or insurance carrier, authorized to do such business in Michigan, and the court is satisfied of the applicable coverage of such policy or suretyship, it shall not be required of the appellant to provide any appeal bond or bond to stay execution pending such appeal, but such insurance carrier or surety company may be required by the court and is hereby given authority to execute its written recognizance to the opposite party or parties for the payment of the taxable costs of such appeal: Provided, Such surety company or insurance carrier shall deposit with said court a copy of said insurance policy or bond and shall admit its liability thereunder, and agree to pay such judgment against its insured, if any, as shall be affirmed by said appellate court, but not exceeding the amount of the liability under said policy or bond; and in such case the court having jurisdiction thereof, on its own motion, may enter judgment against said surety company or carrier to such extent without further proceedings.”
Over the years the applicability of this statutory provision, to circumstances as now at bar, has been controverted and reviewed 3 times. See Central Mutual Ins. Co. of Chicago v. Kalamazoo Circuit Judge (1936), 278 Mich 221; Checker Mutual Automobile Ins. Co. v. Wayne Circuit Judge (1951), 330 Mich 553; and Mayne v. Saginaw Circuit Judge (1953), 337 Mich 425. Today’s question, brought -here on granted application for leave to appeal (381 Mich 784), is whether section 3036, which plaintiff proposes to utilize for- a stay of execution pending appeal from a judgment entered against him in favor of one Ethel K. Stowers, invidiously discriminates agairist Mrs. Stowers.
The “amount of the liability under said policy,” referring to the liability policy plaintiff has prof fered under section 3036, is limited to $10,000. The amount of the judgment possessed by Mrs. Stowers is $30,000.
The trial judge, deeming section 3036 unconstitutional for application to plaintiff’s said appeal, denied a stay. So did the Court of Appeals, by order without opinion.
Section 3036 designates a class of appellants which, by the fact of purchase and maintenance of liability insurance, or of having obtained a qualifying bond (of suretyship), is entitled to employ such insurance (or bond) for the purpose of staying proceedings on appeal. Since the section is not in conflict with any rule of court, GOB 1963, 808 and 853 included, it, with presently quoted sections of the BJA of 1961, constitutes an effective rule of Court exactly as if written into our rule book. : See Darr v. Buckley (1959), 355 Mich 392 and Perin v. Peuler (On Rehearing, 1964), 373 Mich 531.
This does not mean that rules of court are exempt from constitutional test. It does mean that we are dealing with a question of appellate procedure, the promulgation as well as control of which is vested constitutionally with the judicial branch. We therefore approach the constitutional issue with that fact in mind. > ‘
Does section 3036 violate Mrs. Stowers’ right to equal protection because, in its application here, she is receiving pendente the protection of a $10,000 stay bond only when her judgment amounts to $30,000 f The answer may be found by arraying, with that sec*tion, 3 additional sections of the revised judicature act, reading in order as follows:
“See. 2605. If the party applying for a stay of proceedings is unable to give a stay bond by reason of poverty, the judge may, upon due proof of inability for such reason, grant such stay without requiring such bond upon such conditions and for such reasonable time as the judge may determine.” (CLS 1961, § 600.2605 [Stat Ann 1962 Rev §27A.2605]).
“Sec. 2611. In any suit or proceeding in which the state, or any state officer duly authorized for that purpose, or any corporate body in charge of any state institution, or any municipal corporation, is a party, no bond shall be required to be given by any such party as a prerequisite to the taking of an appeal, or the making of an order staying proceedings.” (CLS 1961, § 600.2611 [Stat Ann 1962 Rev § 27A.2611]).
“Sec. 2615. No bond, obligation, or security may be required of the state of Michigan, or of any of its departments, institutions or subdivisions in any action instituted by or in which the state of Michigan or any of its departments, institutions or subdivisions is a party, or for the issuance of any warrant or levying of any execution on behalf of said parties.” (CLS 1961, § 600.2615 [Stat Ann 1962 Rev § 27A.2615]).
Each of the quoted sections, section 3036 specifically included, exhibits a valid reason for providing the same benefit for the class which the section protects. Each makes provision for entire exemption, should the appellant qualify thereunder, from execution or other process of enforcement pending appeal. Different reasons support the provided right. But all are relevant to achievement of the common legislative purpose and enactment which, by GrCR 1963, 16, we have adopted. That purpose, made clear by each section, is and has been freedom from harassment, pending appeal, of specific appellants the situation of whom qualifies each for special treatment according to the permissibly discretionary judgment of a legislative assembly. That this Court, armed and charged as it is with the powers and duties written into Const 1963, art 6, § 5, might — ■ without offending the Fourteenth Amendment — repeal all 4 sections, and then re-enact them as effective rules of Court, goes without saying. Section 3036 accordingly is valid as against the defendant’s appeal to the principle of equal protection.
Poverty is a nonarbitrary reason for the special treatment section 2605 provides. The desirability of carrying liability insurance for the protection of the public, in some amount, and the encouragement thereof which section 3036 exhibits, is yet another. Avoidance of interference with governmental operations, by issuance of writs of execution pending appeal, is a corresponding reason for the exemption provided by sections 2611 and 2615.
The rule to which Michigan has committed her own equal protection clause (now appearing in Const 1963, art 1, § 2) appears succinctly in McGowan v. Maryland (1961), 366 US 420, 425, 426 (81 S Ct 1101, 6 L Ed 2d 393):
“The standards under which this proposition is to he evaluated have been set forth many times by this Court. Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts rea- sbuably'may be conceived to justify it. [Citing cases.]”
For our commitment of Michigan’s guarantee of equal protection to the standards of the Fourteenth Amendment, see Gauthier v. Campbell, Wyant & Cannon Foundry Company (1960), 360 Mich 510, 514; Fox v. Employment Security Commission (1967), 379 Mich 579, 588, and cases therein cited, j ,The trial judge, and the Court of Appeals in turn, erred in refusing to-grant present plaintiff Wolodzko an order staying proceedings under section 3036. The respective judgments below are therefore reversed with remand for entry of such an order. No costs..
T. E. Brennan, C. J., and Dethmers, Kelly, T. M. Kavanagh, Adams, and T. Gr. Kavanagh, JJ., concurred.
PA 1917, No 256, pt 3, eh 2.—Reporter.
See 378 Mich lviii-lxi.—Reporter.
See 378 Midi lxxxviii-xei.—Reporter.
Footnote 3, -appended below the quoted text, reads,as follows:
“3 More recently we declared:
“'The problem of legislative -classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Tigner v. Texas (1940), 310 US 141 (60 S Ct 879, 84 L Ed 1124). Or the reform may take one.step fit a time,, addressing itself -to the phase of the problem Which seems most acute to the legislative mind. Semler v. Oregon State. Board of Dental Examiners (1935), 294 US 608 (55 S Ct 570, 79 L Ed 1086). The legislature may select one phase of one field and apply a remedy there, neglecting the others. American Federation of Labor v. American Sash & Door Co. (1949), 335 US 538 (69 S Ct 258, 93 L Ed 222). The prohibition of the equal protection clause goes no further than the invidious discrimination.’ Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 US 483, 489 (75 S Ct 461, 99 L Ed 563, 573). (Emphasis added.)”
The bench and bar- are respectfully advised that the Court is considering adoption of a prospectively effective new rule of court, -purposed toward superseding section 3036 by providing- greater protection for the appellee, pending appeal, when his judgment as to amount exceeds twice the amount of tie appellant’s liability coverage.
- [See Michigan Law Revision Commission, Fourth. Annual Report, 1969, Insurance Policy In Lieu of Bond, pp 59, 60. Also, see Responsible Reform, Defense Research Institute, Inc., 1969, No 8, p 28, Modification of Appeal Bond Procedures.—Reporter.] ( | [
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Per Curiam.
The issue before us is whether a contingent beneficiary is entitled to life insurance proceeds when the primary beneficiary is disqualified because of divorce and the insurance policy provides only for the passing of a designated beneficiary’s interest when the beneficiary predeceases the insured.
I
On January 25, 1978, decedent Paul F. Powell signed a group insurance enrollment form at his place of employment. He also filled out the accompanying beneficiary card, designating his estranged wife Joyce as primary beneficiary and Sandra L. Holley, a friend, as contingent beneficiary. The Powells had married in 1970, but had separated in 1975. One child, a daughter, was born of the marriage. Divorce proceedings were begun in 1977, with the final judgment entered on October 13, 1978. The judgment provided, inter aha, that Joyce Powell would have no beneficiary interest in any life insurance policy insuring her former husband.
On February 9, 1980, Paul Powell was murdered in the City of Ann Arbor. The insurance policy taken out by Powell provided for a total of $20,000 in benefits, $10,000 in group life insurance and $10,000 because of accidental death. On January 15, 1981, Sandra Holley filed suit in Washtenaw Circuit Court against the insurer, Prudential Insurance Company of America, claiming the proceeds from Powell’s policy. Prudential thereafter successfully interpleaded all claimants to the insurance proceeds — plaintiff Holley and defendants Joyce Powell Schneider and the estate of Paul F. Powell.
The trial court granted Holley’s motion for summary judgment on January 27, 1982, relying on Starbuck v City Bank & Trust Co, 384 Mich 295; 181 NW2d 904 (1970). The defendants appealed.
On December 7, 1983, a divided Court of Appeals reversed the trial court’s decision in an unpublished per curiam opinion. The majority held that the insurance proceeds should go to decedent’s estate. The Court reasoned that Joyce Powell Schneider was not entitled to the proceeds because of the terms of the divorce decree and the statutory requirement that, following a divorce, an insured must take affirmative action to reinstate the former spouse as a beneficiary. As to Sandra Holley, the majority held that she was not entitled to the insurance proceeds because she was not a valid contingent beneficiary under the circumstances of this case. This was so, the Court reasoned, because of certain language in the insurance contract which assumed that a contingent beneficiary would take only upon the death of the primary beneficiary.
Judge Kurt N. Hansen agreed with the majority as to Joyce Powell Schneider, but dissented as to Holley. Judge Hansen would have affirmed the trial court’s grant of summary judgment. He also dissented from the decision to deny rehearing.
Sandra Holley has applied to this Court for leave to appeal the decision of the Court of Appeals.
II
In reaching its decision that the insurance proceeds belonged to the decedent’s estate, the Court of Appeals relied heavily on the following language in the insurance policy:
If more than one Beneficiary is designated and in such designation the Employee has failed to specify their respective interests, the Beneficiaries will share equally. Unless otherwise provided in the Employee’s Beneficiary designation, the interest of any designated Beneficiary predeceasing the Employee will terminate and will be shared equally by any Beneficiaries who survive the Employee. Any amount of the insurance for which there is no disposition of a terminated interest as provided above and any other amount of the insurance for which there is no Beneficiary at the death of the Employee, will be payable to the estate of the Employee unless otherwise provided in the Assignment Limitations.
The majority, noting that the policy itself does not define contingent beneficiary or state when a contingent beneficiary is to take, inferred from the provision that a contingent beneficiary could take only upon the death of the primary beneficiary. To hold otherwise, the Court concluded, would render meaningless the language "[a]ny amount of the insurance for which there is no disposition of a terminated interest as provided above . . . will be payable to the estate of the employee . . . .” The contract provision meant that Holley was not a contingent beneficiary under the circumstances, the Court concluded. The majority believed this result to be consistent with the rule of Starbuck v City Bank & Trust Co that, unless a policy provides otherwise, a contingent beneficiary is entitled to insurance proceeds if the primary beneficiary is disqualified. See footnote 1.
We reaffirm the rule of Starbuck, but disagree with the Court of Appeals that the insurance policy in the instant case contains a provision sufficient to eliminate the contingent beneficiary’s interest. Like the trial court and Judge Hansen who dissented from the majority opinion in the Court of Appeals, we find no manifest intent in the policy to extinguish Holley’s entitlement as contingent beneficiary upon the disqualification of the primary beneficiary by divorce. As Judge Hansen pointed out, there are other provisions of the decedent’s insurance policy that are relevant to this case. The two paragraphs which immediately precede the language relied on by the Court of Appeals majority read:
Any insurance under the Group Policy becoming payable on account of the death of an Employee, will be payable to the person designated by him as his Beneficiary on a form satisfactory to Prudential, subject to the facility of payment provision as included under the Coverage Schedule and subject to the provisions of Assignment Limitations section.
At any time the Employee may, without the consent of his Beneficiary, change the Beneficiary by filing written notice of the change to the Policy holder on a form satisfactory to Prudential. The new designation will take effect on the date the notice was signed, except that it will not apply as to any amount paid by Prudential before receipt of the notice.
Yet another paragraph provides:
Your Term Life Insurance will be paid to any beneficiary you name and have on record in the Personnel Department. You may change the beneficiary whenever you wish by completing form grp (ncho) 597 obtainable from the Personnel Department.
When the relevant provisions of decedent’s insurance policy, including the enrollment card, are read in their entirety as they must be, we find no attempt to prevent the contingent beneficiary from taking when a primary beneficiary cannot take for a reason other than death. We believe that such an interpretation strains the common-sense meaning of the policy.
Accordingly, for the reasons stated, in lieu of granting leave to appeal, MCR 7.302(F)(1), we reverse the decision of the Court of Appeals and reinstate the trial court’s grant of summary judgment. We remand the case for proceedings consistent with this opinion.
Williams, C.J., and Levin, Ryan, Brickley, Cavanagh, Boyle, and Riley, JJ., concurred.
In Starbuck, the dispute was between the decedent’s mother and his estate. The mother had been named contingent beneficiary and the decedent’s wife primary beneficiary. The wife was specifically excluded from sharing the insurance proceeds, however, pursuant to MCL 552.101; MSA 25.131 and the divorce decree which entered shortly before decedent’s death. This Court held that inasmuch as the insurance policy contained no contrary provision, the decedent’s mother was entitled to the proceeds as a matter of contract interpretation even though the decedent had failed to name a new primary beneficiary when his wife was disqualified because of their divorce.
MCL 552.101; MSA 25.131. | [
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] |
Riley, J.
This case requires us to decide if records requested by the Michigan Board of Medicine, and ordered by investigative subpoena to be produced, are privileged or confidential with respect to an investigation by the board, although the documents are not public records nor subject to court subpoena for any other purposes.
The Court of Appeals reversed the judgment of the Ingham Circuit Court, holding that defendant hospital’s peer review committee proceedings were confidential and could not be subpoenaed by the Board of Medicine. 124 Mich App 796; 335 NW2d 697 (1983).
We affirm.
Introduction
The Public Health Code, MCL 333.1101 et seq.; MSA 14.15(1101) et seq., imposes upon Michigan hospitals the duty to review their professional practices and procedures for the purpose of improving the quality of patient care and reducing patient morbidity and mortality.
To encourage and implement productive peer review procedures, the Legislature has provided that the information and records developed and compiled by peer review committees be confidential and not subject to court subpoena. MCL 333.20175(5); MSA 14.15(20175X5), and MCL 333.21515; MSA 14.15(21515).
Procedural History
In accordance with this legislation, and pursu ant to the specific requirements of § 20175(4), on December 14, 1981, defendant Berrien General Hospital notified the Board of Medicine that it had completed an internal investigation of a staff physician, Dr. Weldon Cooke. The impetus for this investigation was the death of a patient on November 7, 1981. As a result of the investigation, Dr. Cooke’s staff privileges were suspended for six months.
After receiving the hospital’s notification letter, the Department of Licensing and Regulation, on behalf of the board, began its own independent investigation, requesting the hospital to submit the information it had obtained during the course of its internal investigation. The hospital refused, claiming that the information was privileged. On behalf of the department, the Attorney General petitioned the Ingham Circuit Court for the issuance of an investigative subpoena, claiming that the department was entitled to the information pursuant to article 15 of the Public Health Code, MCL 333.16101; MSA 14.15(16101), through MCL 333.18838; MSA 14.15(18838), and citing the following pertinent provisions:
A board may request and receive the following reports and shall evaluate the reports, determine whether grounds for disciplinary action exists, and apply appropriate sanctions:
(a) Information from a licensed health care facility as to disciplinary action taken by it which results in the change of employment status or privileges of practice of a licensee, and a summary of the information pertinent to the change, where the action is related to the safety and competence of practice.
* * *
(d) Reports from any other appropriate source necessary for determination of the competency and safety of the practice of a licensee. Appropriate sources include appointed public and private professional review entities and public and private health insurance programs. [MCL 333.16243; MSA 14.15(16243).]
The authority of the Attorney General to subpoena information on behalf of the department is provided for in MCL 333.16235; MSA 14.15(16235):
(1) Upon application by the attorney general or a party to a contested case, the circuit court may issue a subpoena requiring a person to appear before a hearing examiner in a contested case or before the department in an investigation and be examined with reference to a matter within the scope of that contested case or investigation and to produce books, papers, or documents pertaining to that contested case, or investigation.
The Attorney General claims that these two provisions read together provide express statutory authorization for the release of this information. We do not agree.
Analysis
The duty of a hospital to provide for internal review of the professional practices of physicians granted staff privileges is created by article 17 of the code. MCL 333.20101; MSA 14.15(20101), through MCL 333.22181; MSA 14.15(22181). In particular, MCL 333.21513; MSA 14.15(21513) provides:
The owner, operator, and governing body of a hospital licensed under this article:
(d) Shall assure that physicians admitted to practice in the hospital are organized into a medical staff to enable an effective review of the professional practices in the hospital for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients. This review shall include the quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital.
That provision is immediately followed by MCL 333.21515; MSA 14.15(21515), which provides:
The records, data, and knowledge collected for or by individuals or committees assigned a review function described in this article are confidential and shall be used only for the purposes provided in this article, shall not be public records, and shall not be available for court subpoena.
The Attorney General argues that the above-quoted language was intended only to protect the confidentiality of peer review proceedings from discovery in circuit court proceedings (i.e., mal practice actions); that these provisions were not intended to preclude the department from gaining access to this type of information in the context of license review investigations. Noting that the pertinent code provisions were enacted within a thirty-day period, and referring to the general rule that statutes in pari materia must be construed together, the Attorney General urges that the section providing confidentiality to peer review committee records must be read in light of the. board’s authority to investigate.
The problem with this argument is that department investigations are conducted pursuant to article 15 of the code. Internal peer review áctivities are required by article 17. MCL 333.21513; MSA 14.15(21513). MCL 333.21515; MSA 14.15(21515) expressly provides that the records, data, and knowledge collected by the peer review committee "shall be used only for the purposes provided in this article.” This language is unambiguous. Where the statutory language is plain and unambiguous, judicial construction or interpretation which would distort the plain meaning is precluded. Jones v Grand Ledge Public Schools, 349 Mich 1, 9-10; 84 NW2d 327 (1957).
We are persuaded that the Legislature’s intention that peer review committee records not be discoverable by the board in connection with an article 15 investigation is evident on examination of the statute from which § 21515 evolved. Section 12 of 1968 PA 17, as amended, MCL 331.411 et seq.; MSA 14.1179(1) et seq., provided:
(2) All records, data and knowledge collected for or by individuals or committees assigned this review function after the certification by the director are confidential and shall be used only for the purposes provided in this act, shall not be public records and shall not be available for court subpoena. [Emphasis added.]
The foregoing provision was subsequently amended by 1975 PA 111, MCL 331.422; MSA 14.1179(12), to read:
(2) All records, data and knowledge collected for or by individuals or committees assigned this review function are confidential and shall be used only for the purposes provided in this act, shall not be public records and shall not be available for court subpoena, except as provided in subsection (4).
(4) A hospital shall report to the appropriate medical licensing board within 30 days the name of a person and the relevant circumstances causing any of the following:
(a) The resignation of the person from the medical staff.
(b) The removal or suspension of a person from the medical staff.
(c) Any other disciplinary action relating to professional practice taken against a member of the medical staff. [Emphasis added.]
The current provision reads:
The records, data, and knowledge collected for or by individuals or committees assigned a review function described in this article are confidential and shall be used only for the purposes provided in this article, shall not be public records, and shall not be available for court subpoena. [MCL 333.21515; MSA 14.15(21515). Emphasis added.]
Two significant changes are obvious. First, while the predecessors to MCL 333.21515; MSA 14.15(21515) provided that peer review committee records could be used "for the purposes provided in this act,” § 21515 allows their use "only for the purposes provided in this article.”
Second, in 1975 PA 111, MCL 331.422; MSA 14.1179(12), the immediate forerunner of §21515, the Legislature saw fit to make an exception to the "not available for court subpoena” rule for reports to the licensing board. It follows, therefore, that if "court subpoenas,” as then used, was meant to mean a subpoena only in a civil matter, there would then be no reason to exempt internal reporting under the enforcement provision of civil subpoenas, and subpoenas by the board which must be obtained from a court. Failing this conclusion, there would have been no reason to make an exception to the "not available for court subpoena” rule.
We conclude, therefore, that substitution of the language "in this article” (article 17) for "in this act,” together with the elimination of the exception which appeared in § 12(4) of 1975 PA 111, is a clear expression of the Legislature’s intent that peer review committee records not be discoverable by the board in an article 15 investigation.
The Attorney General next relies on another provision of article 17. MCL 333.20175(4); MSA 14.15(20175)(4) requires hospitals to "report to the appropriate licensing board and to the department not more than 30 days after any disciplinary action has been taken against a member of the medical staff, and the relevant circumstances, for any of the grounds set forth in section 16221.” He claims that the hospital’s duty to report the "relevant circumstances” of disciplinary actions indicates a legislative intent to allow the board to obtain the records requested. The Attorney General suggests that this provision defeats the privilege created by § 21515.
This argument is undermined by MCL 333.20175(5); MSA 14.15(20175X5) which immediately follows the provision discussed above:
(5) The records, data, and knowledge collected for or by individuals or committees assigned a professional review function in a health facility or agency are confidential, shall be used only for the purposes provided in this article, are not public records, and are not subject to court subpoena.
The Legislature’s inclusion of the foregoing provision, immediately following the provision which requires a report to the board, suggests to us that the report will be of a more narrow scope than is urged by the Attorney General. We believe that the language requiring the hospital to report "relevant circumstances” contemplates an explanation, in general terms, of the reasons for the hospital’s actions, which could serve as a basis for the board’s own investigation. Had the Legislature intended that hospital peer review committee information be available for departmental investigations, it would have expressly so provided as it did in MCL 333.16244; MSA 14.15(16244), which pro vides that the physician-patient privilege does not apply with respect to such investigations.
We also reject the Attorney General’s argument that to deny the board access to peer review information for use in conducting its investigation defeats the Legislature’s intent in enacting article 15 of the code. He argues that the requested information is essential to departmental investigations into the qualifications of licensed health care professionals.
Here, again, we cannot agree. Hospitals are required to establish peer review committees whose purposes are to reduce morbidity and mortality and to ensure quality of care. MCL 333.21513; MSA 14.15(21513). Included in their duties is the obligation to review the professional practices of licensees, granting staff privileges consistent with each licensee’s qualifications. MCL 333.21513(c); MSA 14.15(21513)(c).
The rationale for protecting the confidentiality of the records, data, and knowledge of such committees was set forth in an oft-quoted opinion of the United States District Court for the District of Columbia:
Confidentiality is essential to effective functioning of these staff meetings; and these meetings are essential to the continued improvement in the care and treatment of patients. Candid and conscientious evaluation of clinical practices is a sine qua non of adequate hospital care. To subject the discussions and deliberations to the discovery process, without a showing of exceptional necessity, would result in terminating such deliberations. [Emphasis in original. Bredice v Doctors Hospital, Inc, 50 FRD 249, 250 (D DC, 1970), aff’d without opinion 156 US App DC 199; 479 F2d 920 (1973).]
In enacting §§20175(5) and 21515, the Legisla ture provided a strong incentive for hospitals to carry out their statutory duties.
We do not deny that there exists a strong public interest underlying article 15, i.e., ensuring the competency of state licensees. In recognition of the board’s/department’s broad responsibilities, the Legislature has authorized the department to investigate the activities of licensees. MCL 333.16221, 333.16233; MSA 14.15(16221), 14.15(16233). The department may interview hospital employees and staff members who have personal knowledge of the activities under investigation and may obtain patient records. The Attorney General is empowered to obtain a court order requiring such testimony and production of such records. MCL 333.16235; MSA 14.15(16235). It is precisely this broad authority given the department to conduct investigations that belies the Attorney General’s argument that peer review committee records are essential to departmental investigations. To the contrary, the Legislature has enabled the department to utilize much the same information in its investigation as was available to the hospital’s peer review committee._
The Attorney General’s final argument, which was not raised in either the circuit court or the Court of Appeals, is premised on 1967 PA 270, as amended, MCL 331.531 et seq.; MSA 14.57(21) et seq. He claims that this act provides authority for the argument that the hospital must comply with the investigative subpoena. We disagree.
This statute protects persons, organizations, and entities that choose to disclose information to a review entity, including, presumably, the department. Such persons, organizations, and entities are immunized from liability so long as they act with-, out malice and the information is released for one of the following purposes:
(a) To advance health care research or health care education.
(b) To maintain the standards of the health care professions.
(c) To protect the financial integrity of any governmentally funded program.
(d) To provide evidence relating to the ethics or discipline of a health care provider, entity, or practitioner. [MCL 331.532; MSA 14.57(22).]
The subpoena indeed may have requested information for permissible purposes, i.e., paragraphs (b) and (d). Release of such information, however, is clearly discretionary according to MCL 331.531; MSA 14.57(21) which provides that "[a] person, organization or entity may provide information.” (Emphasis added.) The act does not provide authority for the proposition that disclosure to the department is mandatory.
Conclusion
We conclude, therefore, that the peer review committee information requested in the investigative subpoena is statutorily protected from discovery by the board. To hold otherwise would require us to create an exception to the privilege granted such information by the Legislature; that is not for us to do.
Affirmed.
No costs, a statutory interpretation being involved.
Williams, C.J., and Levin, Ryan, Brickley, and Cavanagh, JJ., concurred with Riley, J.
MCL 333.20175(4); MSA 14.15(20175X4).
The hospital’s peer review committee made the following finding:
"... Dr. Cooke has demonstrated a pattern of clinical practice and professional conduct within the hospital setting which fails to meet standards acceptable for the present exercise of clinical privileges and staff activity at Berrien General Hospital. Areas of deficiency or inappropriate performance by Dr. Cooke were determined to be as follow:
"1. Preventable technical error in performance of surgical procedures.
"2. Physician neglect of patients.
"3. Judgmental error in patient management.
"4. Avoidable post-operative complications.
"5. Unprofessional behavior within the hospital setting.”
The subpoena requested:
"Any and all information in the custody or control of Berrien General Hospital, Berrien Center, Michigan, arising from a corrective action investigation of. a patient incident involving Weldon J. Cooke, M.D., license #20597, resulting in the death of a patient on November 7, 1981, including reports, incident reports and testimony compiled by or on behalf of Berrien General Hospital; and any and all orders of Berrien General Hospital, its agents or committees, and any responses or notices filed by Weldon J. Cooke, M.D.”
Reed v Secretary of State, 327 Mich 108; 41 NW2d 491 (1950).
Cf. the language of the Maryland statute:
"The proceedings, records, and files of a medical review committee are neither discoverable nor admissible into evidence in any civil action arising out of matters which are being reviewed and evaluated by the committee.” (Emphasis added.) Unnamed Physician v Comm on Medical Discipline, 285 Md 1, 4; 400 A2d 396 (1979), cert den 444 US 868 (1979).
The Maryland Court of Appeals held that a proceeding before the commission is not a civil action, and thus the proceedings, records, and files of the medical review committee were not statutorily protected from discovery by the commission.
Although the hospital’s initial notification letter to the board (see n 2) was arguably deficient in that it did not even specify the patient’s name which prompted the hospital’s disciplinary action, that information and the patient’s medical records were eventually communicated to the board.
A commentary on the Public Health Code (Strichartz, Commentary on the Michigan Public Health Code, U of Mich Press, 1982), written by the Executive Director of the Public Health Statute Revision Project, recognizes the importance of confidentiality to effective functioning of peer review committees. The commentary on § 20175 provides:
"For professional review organizations the additional protection from disclosure even under a court order of the 'records, data and knowledge collected for or by committees assigned’ this [peer review] function strengthens their ability to perform their role.” Id. at 717.
The commentary on § 21515 provides:
"To make the review function effective, the records, data, and knowledge collected by those assigned this task are made confidential. A general provision of similar tone is found in § 20175(5).” Id. at 790.
At oral argument, counsel for the hospital noted that the board’s investigator interviewed various hospital members, obtained the medical records of the patients involved and was given access to the laparoscopic instrument.
MCL 331.531; MSA 14.57(21).
"A person, organization, or entity may provide information or data relating to the physical or psychological condition of any person, or the necessity, appropriateness, or the quality of health care rendered to any person, to any review entity. Review entity means a duly appointed peer review committee of the state, of a state or county association of health care professionals, of an officially constituted health care facility, or of a health care association; a professional standards review organization qualified under federal or state law; a foundation or organization acting pursuant to the approval of a state or county association of health care professionals; or a state department or agency whose jurisdiction encompasses such information. Liability of any kind shall not arise or be enforced against any person, organization, or entity by reason of having provided such information or data; by reason of any act or communication within its scope as a review entity; or by reason of having released or published the proceedings, reports, findings, or conclusions of the review entity subject to the limitations of sections 2 and 3. The immunity in this section shall not apply to a person, organization, or entity that acts with malice.”
MCL 331.532; MSA 14.57(22).
"The release or publication of the proceedings, reports, findings, and conclusions of a review entity shall be for 1 or more of the following purposes;
"(a) To advance health care research or health care education.
"(b) To maintain the standards of the health care profession.
"(c) To protect the financial integrity of any governmentally funded program.
"(d) To provide evidence relating to the ethics or discipline of a health care provider, entity, or practitioner.”
MCL 331.533; MSA 14.57(23).
"The identity of any person whose condition or treatment has been studied shall be confidential and such person’s name and address shall be removed from the record before the review entity releases or publishes it [sic] proceedings, reports, findings and conclusions, and, except for the purposes set forth in section 2, all proceedings, reports, findings and conclusions of review entities under this act are confidential and shall not be discoverable or used as evidence in an action for personal injuries based upon malpractice, lack of informed consent or negligence.”
We do not suggest that a hospital may rely on this language giving it discretion to release peer review committee records to avoid legitimate requests by the board for information relating to disciplinary actions. Again, we emphasize a hospital’s duty to cooperate with such investigations by reporting, as was done here, discipline taken and the relevant circumstances. And, the privilege is a narrow one, applying only to "[t]he records, data and knowlege collected for or by individuals or committees” assigned a peer review function. MCL 333.20175(5), 333.21515; MSA 14.15(20175X5), 14.15(21515). Marchand v Henry Ford Hospital, 398 Mich 163; 247 NW2d 280 (1976). A claim that certain documents are not privileged may be presented to a circuit court for a hearing. Monty v Warren Hospital Corp, 422 Mich 138; 366 NW2d 198 (1985); Marchand, supra. That is not the situation in this case, however. Here the Attorney General concedes that the request was for peer review committee records. | [
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Ryan, J.
The defendant’s conviction for first-degree premeditated murder was vacated by the Court of Appeals because the prosecution failed to produce evidence, independent of the defendant’s confession, of the elements of premeditation and deliberation. The Court found that result to be required by the corpus delicti rule.
We disagree and reverse.
I
Defendant was charged with the first-degree murder of his next door neighbor, 79-year-old Frances Brattler. The information alleged that defendant had murdered the victim in a wilful, deliberate, and premeditated manner, or during the perpetration or attempted perpetration of a larceny, or both, contrary to MCL 750.316; MSA 28.548. Defendant was bound over on a charge of open murder, convicted by a jury of first-degree premeditated murder, and sentenced to the mandatory term of life imprisonment.
Trial testimony was that the victim was found dead in the dining room of her Bay City, Michigan, home on April 15, 1978. It was at first believed that she died from natural causes. However, an autopsy revealed that the cause of death was a single stab wound, inflicted by moderate force, which had penetrated the victim’s breastbone and severed the aorta. Death was almost instantaneous. Several bruises were found which were said to have been inflicted shortly before or after death.
The victim’s daughter and son-in-law testified that the victim always locked her doors, kept some money in her purse, and was a fastidious housekeeper. When the body was discovered, the front door was unlocked, the victim’s wallet was empty, a sugar canister was open in the kitchen, and a cup of sugar with a napkin placed over it was found near the front door. The victim’s car was also missing.
Several of defendant’s friends testified that they saw him driving the victim’s car from April 14 through April 16. They claimed that the defendant told them that he had borrowed it from his aunt or grandmother. Defendant was also seen in the vicinity of his house during the evening of April 13, the night of the murder.
After defendant was arrested on April 16, he told police where the car and the knife he used in the killing could be found. Both were recovered. Defendant’s fingerprints were found inside and outside the car, but no identifiable fingerprints were obtained from the knife. Blood matching that of the victim and fibers similar to those in her robe were discovered on the knife. The victim’s daughter testified that the knife was similar to one that her mother kept in a kitchen drawer, but the handle appeared to be different. Defendant’s fingerprints were found on a door frame between the kitchen and the dining room.
Shortly after the arrest, defendant gave a taped statement to the police in which he stated, in part, as follows:
Well, I was — I had just came [sic] back from my parents [sic] house and, no I didn’t I was going from the other room and I was going to our house and then I saw my little brother so I walked with him a little ways and then I went through her yard and she knocked on the window and started yelling at and she called me a little bastard so after, I just ignored it and then she came out the front door and started yelling at me and then after that I just got mad and waited and waited and then at night time I went in and got her.
Later, he modified his story somewhat and claimed he went to the victim’s house to apologize to her but, when he entered the house, the victim began yelling at him. Defendant became angry and attempted to strike the victim. She ran into the dining room. Defendant went into the kitchen, found a knife, and stabbed the victim. He became frightened, took the victim’s car, and disposed of the knife he used in the killing by dropping it into a sewer.
At trial, when the prosecution offered into evidence the defendant’s statement, defense counsel objected, citing the corpus delicti rule and arguing that the defendant’s statement was not admissible until all of the elements of first-degree murder, including the elements of premeditation and deliberation, were proved independent of the statement. The objection was overruled and the trial court admitted the statement because the court said the corpus delicti of second-degree murder had been established.
The Court of Appeals, recognizing the existence of a split of authority on the issue in that Court, held that the corpus delicti rule requires that the prosecution must establish premeditation and deliberation by evidence other than a defendant’s extrajudicial statement. The Court reached that conclusion because it found that the rule announced in "[People v Allen, 390 Mich 383; 212 NW2d 21 (1973)] is applicable to the present case.” After concluding that the record in this case did not contain independent evidence of premeditation or deliberation, the Court of Appeals reduced the defendant’s conviction to second-degree murder and remanded the case to the trial court for resentencing. Defendant’s remaining allegations of error were rejected.
We think the Court of Appeals erred in its application of the corpus delicti rule to the facts of this case.
II
The history of the development of the common-law corpus delicti rule demonstrates that in homicide cases, of which this is one, the purpose for the rule is satisfied if it is shown, independent of the defendant’s statement, that the named victim is dead as a result of some criminal agency. See Perkins, Criminal Law (2d ed), p 104; LaFave & Scott, Criminal Law, pp 16-17; 45 ALR2d 1316; Anno: 99 L Ed 110; People v Mondich, 234 Mich 590; 208 NW 675 (1926).
The historic office of the corpus delicti rule in homicide cases is to guard against, indeed to preclude, conviction for a criminal homicide when none was committed. Many of the early cases in which the rule, as applied to homicide cases, is discussed were prosecutions for killings occurring aboard ships upon the high seas. Frequently in such cases no body was found, for obvious reasons. As a result, the argument was advanced, and with occasional success, that no conviction should be obtained absent some evidence, independent of the defendant’s confession that there was an unlawful killing, and the evidence must include proof of the existence of a corpse. However, early English courts resisted the adoption of such a rule, stating, in one case:
By the "corpus delicti,” subject of the crime, is not meant that the subject of the crime must be so extent, as to fall under the senses; but that the loss sustained is felt and known. As for example: in the crime of murder, though the body cannot be reached, yet the particular loss is known .... [Captain Green's Trial, 14 How St Tr 1199, 1246 (Scot Adm, 1705).]
Professor Perkins points out that Justice Storey of the United States Supreme Court felt so strongly on the subject that he said of the notion that it was necessary that a body be found as a condition of successful prosecution of a murder case:
[A] more complete encouragement and protection for the worst offenses of this sort could not be invented, than a rule of this strictness. It would amount to a universal condonation of all murders committed on the high seas. [United States v Gilbert, 25 F Cas 1287, 1290 (1834).]
As a consequence of such early forceful expressions of opinion, the rule was developed that, to satisfy the corpus delicti rule, there need not be evidence that the body of the deceased was located, it being sufficient "that the loss sustained is felt and known.” Captain Green's Trial, supra. The King v Hindmarsh, 2 Leach 569; 168 Eng Rep 387 (1792); United States v Williams, 28 F Cas 636 (1858); State v Lamb, 28 Mo 218 (1859); Campbell v People, 159 Ill 9; 42 NE 123 (1895). More modern decisions likewise rejected the "no body-no corpus delicti” argument: Commonwealth v Lettrich, 346 Pa 497; 31 A2d 155 (1943); Warmke v Commonwealth, 297 Ky 649; 180 SW2d 872 (1944); People v Cullen, 37 Cal 2d 614; 234 P2d 1 (1951); Regina v Onufrejczyk, 1 All E R 247 (1955); People v Scott, 176 Cal App 2d 458; 1 Cal Rptr 600 (1959), app dis 364 US 471 (1960); State v Lung, 70 Wash 2d 365; 423 P2d 72 (1967).
Despite clarification of the early confusion about the meaning of the Latin idiom corpus delicti as used in homicide cases, there remains, among many laymen at least, some lingering misunderstanding that the corpus delicti in such cases refers to the body of the deceased. It does not, of course, and refers instead to the body (corpus) of the wrong (delicti), "the loss sustained.”
In criminal homicide prosecutions, the delicti, or essence of the wrong, is the wrongful taking of a human life, a criminal killing. The Legislature has distinguished between criminal homicides of differing types and varying severity of penalty by defining and denominating them as different crimes. Whether the killer took the deceased’s life in sudden passion under provocation (manslaughter, MCL 750.321; MSA 28.553) or in circumstances showing that the killer at the time of the homicide entertained an intent to kill, or an intent to inflict great bodily harm, or an intent to create a very high risk of death or great bodily harm with the knowledge that death or great bodily harm would be the probable result (second-degree murder, MCL 750.317; MSA 28.549), or murdered the victim during the commission of a statutorily enumerated felony, or murdered by means of poison or lying in wait, or with deliberation and premeditation (first-degree murder, MCL 750.316; MSA 28.548), are all circumstances relevant to determine the seriousness of the homicide as measured by the maximum and minimum penalties fixed by the Legislature. In all of the circumstances described above, however, and all the other various criminal homicides defined by the Legislature, the corpus delicti of the crime, the essential wrong, is the "loss sustained”; the taking of a human life by a criminal agency.
It is an inaccurate and unwarranted reading of the history and purpose of the corpus delicti rule that suggests the need for independent proof of each and every element of the particular grade and kind of common-law or statutory criminal homicide charged as a condition of admissibility of a defendant’s confession. Such an understanding of the corpus delicti rule loses sight of the historic reason for the rule; to avoid conviction for a homicide that did not occur. The logic of the rule is not served by extending it to require proof, aliunde the defendant’s confession, not only that a particular deceased lost his life and that the loss is a result of criminal agency but, in addition, proof of the aggravating circumstances which move the seriousness of the crime up the scale of criminal accountability (measured by the severity of the penalty) from manslaughter to second-degree murder or to first-degree murder. Whatever the aggravating circumstances which constitute a crime, second-degree murder instead of manslaughter, or first-degree murder instead of second-degree murder, the danger that a defendant would confess to a criminal killing which never occurred is adequately obviated when it is shown, other than by the accused’s confession, that the deceased victim died as a result of a criminal agency.
While it is surely critical to a defendant whether he is convicted of first-degree murder, second-degree murder, or manslaughter, given the differing penalties and related consequences, it does not follow therefrom that the danger that a criminal homicide conviction might be obtained where none was committed, requires evidence, in addition to the defendant’s confession, of every element of the particular degree or grade of homicide charged.
When it is shown, without reference to the defendant’s confession as it was in this case, that a common-law or statutory second-degree murder was committed by the defendant, the risk that he will be convicted of a killing when none occurred is met and obviated. No injustice results from receiving in evidence a defendant’s confession that the independently proved second-degree murder he committed was, in addition, deliberate and premeditated, thereby resulting in guilt of the statutorily heightened crime of murder in the first degree.
Erecting a barrier to such a conviction in the name of the rubric that all essential elements of the "crime charged” must be independently proved, is an unwise, unnecessary, and unjust obstacle to the fair administration of criminal justice, comparable to the early common-law argument that no criminal homicide could be proved absent discovery of a corpse.
The rule announced by the Court of Appeals would be a serious and unwarranted burden upon the ability of prosecutors in Michigan to prove premeditated murder where no witness to the killing was present, save the defendant and the deceased.
We hold that the corpus delicti of first-degree premeditated murder consists of two elements: the death of the victim and some criminal agency as the cause. See People v Mondich, 234 Mich 590; 208 NW 675 (1926).
Ill
We agree with the Court of. Appeals that the defendant’s remaining arguments of error are without merit.
The judgment of the Court of Appeals is reversed, and the defendant’s conviction for first-degree murder is reinstated.
Williams, C.J., and Brickley, Boyle, and Riley, JJ., concurred with Ryan, j.
At the time the offense was committed and defendant was tried, MCL 750.316; MSA 28.548 provided:
"All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.”
People v Norwood, 68 Mich App 730, 735-736; 243 NW2d 719 (1976), lv den 399 Mich 827 (1977), People v Rappuhn, 55 Mich App 52, 57; 222 NW2d 30 (1974), 7v den 393 Mich 808 (1975), and People v Sparks, 53 Mich App 452, 458-459; 220 NW2d 153 (1974), lv den 393 Mich 135; 224 NW2d 481 (1974), held that the corpus delicti rule does not require the prosecution to establish the element of premeditation and deliberation for first-degree premeditated murder independent of the defendant’s extrajudicial confession. Although we denied defendant’s application for leave to appeal in Sparks, we specifically declined at that time to accept the Court of Appeals analysis of the corpus delicti issue:
"In denying leave, this Court does not wish to be understood as accepting the distinction between felony and premeditated murder in the application of the rule enunciated in People v Allen, 390 Mich 383; 212 NW2d 21 (1973), drawn by the Court of Appeals in deciding this case.”
The majority of Court of Appeals decisions, however, have applied Allen, a felony-murder case, to first-degree premeditated murders. See, e.g., People v Irby, 129 Mich App 306, 322; 343 NW2d 303 (1983); People v Doyle (On Remand), 129 Mich App 145, 153; 342 NW2d 560 (1983); People v Conklin, 118 Mich App 90, 92-93; 324 NW2d 537 (1982); People v Oliver, 111 Mich App 734, 740; 314 NW2d 740 (1981), lv den 414 Mich 970 (1982); People v Johnson, 93 Mich App 667, 672; 287 NW2d 311 (1979); People v Allen, 91 Mich App 63, 66; 282 NW2d 836 (1979); People v Wells, 87 Mich App 402, 408-409; 274 NW2d 797 (1978); People v Hawkins, 80 Mich App 481, 485; 264 NW2d 33 (1978); People v Juniel, 62 Mich App 529, 536; 233 NW2d 635 (1975), lv den 396 Mich 811 (1976).
The Court of Appeals opinion contains no analysis of the application of the corpus delicti rule to premeditated murder cases. Instead, the Court relied, for its conclusion, upon Justice Levin’s opinion for the Court of Appeals in Allen which was later adopted by this Court. Allen, however, was a first-degree felony-murder case, not a first-degree premeditated murder case. Therefore, the "independent evidence” required by Allen was evidence of another felony, not a state of mind of the defendant. Moreover, when Allen was written, a conviction for first-degree felony murder could be obtained in this state for any homicide, even accidental homicide, occurring during the commission of one of the felonies enumerated in the first-degree murder statute. Consequently, the homicide itself, in such cases, need not have been a "criminal homicide” in the common-law sense. That is no longer the case because in People v Aaron, 409 Mich 672; 299 NW2d 304 (1980), we held that a killing occurring during the perpetration of one of the felonies enumerated in MCL 750.316; MSA 28.548 is murder in the first degree only if the killing amounted to murder at common law. | [
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The certification by the Court of Appeals pursuant to Administrative Order No. 1984-2 that its decision in this case is in conflict with its decisions in Martin v Dep’t of Corrections, 140 Mich App 323 (1985), and Kirkeby v Dep’t of Corrections, 141 Mich App 148 (1985), is considered. The Court declines to take further consideration of the questions presented. Reported below: 143 Mich App 29. | [
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Bkickley, J.
On December 29, 1969, Robert Mon-real obtained a default judgment of divorce from Catherine Monreal in the Genesee Circuit Court. The couple had five children. The divorce judgment provided, almost verbatim from a property settlement, that Robert Monreal was to designate the children as beneficiaries of a life insurance policy provided by his employer.
Mr. Monreal initially complied with the provision, but, in January of 1972, made his second wife Zetta the beneficiary of his life insurance. Robert and Zetta were divorced in 1980. As part of this divorce judgment, Zetta was to give up any interest in Robert Monreal’s life insurance. Robert Monreal died on July 24, 1981, while Zetta was still designated as the beneficiary on the policy. At the time of his death, his five children were alive, and one of them, Christopher, was a minor. Decedent left a will which expressly excluded his children as beneficiaries of his estate.
Catherine Monreal filed a claim for the proceeds of the life insurance on behalf of the minor child. The probate court ruled that the proceeds be used for the support of Christopher Monreal until he turned eighteen and that the amount then remaining be divided equally among the five chil dren. The Court of Appeals held that the life insurance benefits should be used for the minor’s support, but that the remainder should pass to Robert Monreal’s estate. 126 Mich App 60; 337 NW2d 312 (1983). Catherine Monreal, as conservator of Christopher Monreal’s estate, filed an application for leave to appeal which we granted on May 17, 1984. 419 Mich 869 (1984).
The Court of Appeals held that the
judgment of divorce requiring that the children be maintained as beneficiaries only during their minority or until completion of their high school education makes it clear that the parties and the court intended the insurance only as security to make sure that the father’s support obligation was satisfied in the event of his death prior to the termination of that obligation. [126 Mich App 65.]
The appellant would interpret the disputed provision to mean that Robert Monreal was required to maintain all of the children as beneficiaries until the youngest reached eighteen, and, since Robert Monreal died while one child was a minor, all of the children should divide the insurance proceeds after the support obligation is satisfied.
We agree with the Court of Appeals that an examination of the divorce judgment as a whole makes it clear that the requirement pertaining to the life insurance was intended to be security for the father’s support obligation in case any of the children did not reach the age of majority before his death.
The divorce judgment provided in part:
IV. Support for Minor Children
It is further ordered and adjudged that the Plaintiff, Robert Monreal, shall pay to the Defendant, Catherine A. Monreal, as and for support of the minor children, the following sums of money, each week, weekly in advance, such weekly sums to include ordinary medical expenses: The Plaintiff shall pay the sum of Seventy-Five ($75.00) Dollars each week as support for the said five minor children as long as the support obligation includes five minor children; when the Plaintiff’s child support obligation includes four minor children, the Plaintiff shall pay the sum of Sixty-Five ($65.00) Dollars each week for the support of said children; when the support obligation includes three minor children, the support payments shall be Fifty-Five ($55.00) Dollars each week; when the support obligation includes two minor children, the support payments shall be Fifty ($50.00) Dollars each week; and when the support obligation includes and involves only one child, the support payment shall be Thirty-Five ($35.00) Dollars each week.
It is further ordered and adjudged that the support payment for each of the named minor children shall continue until each child attains the age of eighteen (18) years or completes high school, whichever event is later. The Plaintiff, Robert Monreal, shall continue to defray through insurance coverage, or by direct payment, all extraordinary medical, dental, optical and other extraordinary health expenses incurred on behalf of said minor children until his obligation to support said minor children has been fully completed.
It is further ordered and adjudged that as further support, the Plaintiff, Robert Monreal, shall designate the minor children, Robert M. Monreal, David A. Monreal, Anthony J. Monreal, Ann M. Monreal and Christopher D. Monreal, as irrevocable beneficiaries on his life insurance policy furnished by his employer, A. C. Spark Plug, and such designation shall remain until Plaintiff’s obligation to support said minor children has been completed fully as above provided. Further, the Plaintiff shall furnish proof of compliance here with to the Friend of the Court within sixty (60) days from the filing of this Judgment of Divorce.
VII. Insurance Provision
It is further ordered and adjudged that the Plaintiff, Robert Monreal, shall hereafter have no further interest as beneficiary or otherwise in and to any life insurance policies, endowment or annuity contracts standing in the name of or insuring the life of the Defendant, Catherine A. Monreal; and the Defendant, Catherine A. Monreal, shall hereafter have no further interest as beneficiary or otherwise in and to any life insurance policies, endowment or annuity contracts standing in the name of or insuring the life of the Plaintiff, Robert Monreal. [Emphasis added.]
There were separate sections dealing with custody, visitation, and property settlement.
Appellant contends that the wording of the judgment indicates an intent that Robert Monreal be required to retain all five children as beneficiaries of his life insurance until the youngest reached eighteen.
The provision at issue is placed under the heading, "Support for Minor Children,” and not under the "Property Settlement” or "Insurance” provisions of the judgment. The judgment also provides that the life insurance was required as "further support” for the minor children until that obligation was completed "as above provided” in the judgment. The words "above provided” referred to those provisions which required the father to pay specified amounts each week as child support. As the number of children who were minors decreased, so did the amount of the payments. Further, the support obligation only continued until "each child attainted] the age of eighteen (18) years or complete[d] high school,” whichever event was later. This sliding scale, coupled with the concurrence of the insurance and support requirements, convinces us that the Court of Appeals did not err in finding that the purpose of the life insurance provision was security for the support of each child until the age of eighteen. It would be internally inconsistent to interpret this provision, placed in proximity to the support provision of the judgment, as meaning that the insurance must be maintained for the benefit of Robert Monreal’s sons and daughter after they turned eighteen just because one or more was still under that age. Under the same heading, the deceased was required, by language similar to that at issue here, to pay extraordinary health expenses of the children "until his obligation to support said minor children has been fully completed.” Just as we could not inconsistently construe the parallel clause regarding the life insurance, we cannot believe that this language means that the father was required to pay health expenses for the children that attained the age of majority just because one or more of his other children were still minors. Looking at the responsibilities imposed upon Robert Monreal under the judgment of divorce as a whole, it is clear that the insurance provisions were intended to benefit only minor children. It would frustrate the intent of the parties to allow the adult sons and daughter to benefit from an insurance policy required as adequate security for their support as minors.
In support of their interpretation of the agreement between the parties, appellants cite Kasper v Metropolitan Life Ins Co, 412 Mich 232; 313 NW2d 904 (1981), in which there was a similar life insurance beneficiary arrangement made for a minor child who, when his divorced father was killed, was only two years old. A plurality of this Court held that the minor child was entitled to the proceeds of the insurance policy even though the divorced father had not kept the minor child as a beneficiary.
We find Kasper unhelpful because in that case there were no other children who had reached majority for whom a claim was made and there was no suggestion in awarding the proceeds of the policy to the minor child that he was receiving more than the support to which he would have been entitled prior to his reaching majority or graduation, whichever occurred latest.
We find no error in the reasoning of the lower courts that the father had no authority to remove his children as beneficiaries from the policy before they reached age eighteen. The primary claim to the life insurance proceeds is for the support of the minor child. We, therefore, do not agree with the appellant’s assertion that the deceased was not able to remove any of the children as beneficiaries until they were all eighteen years old. Under the terms of the judgment, Robert Monreal was required only to "designate the minor children” as beneficiaries. Accordingly, the change of beneficiaries was effective except as to the support of the minor child.
Affirmed, costs to the estate.
Williams, C.J., and Levin, Ryan, Cavanagh, Boyle, and Riley, JJ., concurred with Brickley, J.
Zetta Monreal initially claimed the life insurance proceeds, but has since abandoned her claim and is no longer a party to this action.
More specifically the obligation for support continued until the children reached age eighteen or graduated from high school, whichever occurred later.
We note that the parties have not contested the ability of the court to enforce this agreement, which was the principal issue in Kasper. | [
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Moore, J.
This is a proceeding in chancery, where complainant-seeks to have defendants enjoined from hindering or interfering with the operation of complainant’s cars over the ‘ ‘ Y ” switch at the intersection of Cass avenue and South Gratiot streets, and the “ Y ” on Butler street, in the city of Mt. Clemens. The case was heard in open court. Complainant’s bill was dismissed by the circuit judge. From his decision, complainant has appealed.
The complainant for some time has been operating an electric line of street railway from the City of Detroit to Mt. Clemens. It obtained a right of way over the highway occupied by the Detroit & Erin Plank-Road Company from that company. In 1894 an ordinance was granted authorizing complainant to construct a railway track—
“On, along, and through Gratiot street, in this city, from its intersection with the southerly city limits to the southerly line of Cass avenue, and upon such other streets and highways as may be hereafter agreed upon, * * * with all necessary and convenient * * * tracks, turnouts, side tracks, switches, bridges, and culverts.”
Section 4 of said ordinance is as follows, viz.:
“ That the authority granted by section 1 hereof shall be construed to be authority only to lay a single track on said street, together with such turnouts, side tracks, and switches as may be necessary for the successful operation of said road: Provided, however, that the location of said turnouts, switches, and side tracks shall be first approved by the street committee.”
It will be noticed this franchise gave to the company no rights north of the southerly line of Cass avenue. ,
After the franchise was obtained, the company constructed its road. For a time its cars were operated from both ends. While this was done, the company did not have at Mt. Clemens a “Y” or turntable upon which it could turn its cars. Later its cars were equipped to run but one way, and it became desirable to have a “ Y” upon which its cars could be turned. Application was made to the common council for leave to put in a “Y” at Butler street, which application was granted subject to conditions which will hereafter be stated. The “ Y ” was put in, and it was the practice of the company to turn its cars at this place, and back them from there to near the south line of Cass avenue, a distance of about 4,000 feet.
At this time the Mt. Clemens & Lake Side Traction Company was operating an electric line of railway on Cass avenue, which passed near the terminal of the complainant. At the intersection of South Gratiot street and Cass avenue is one of the most important business centers of the city. Without consulting the common council, the complainant made an agreement with the president and manager of the Traction Company authorizing it to put in a “ Y ” at the intersection of South Gratiot street and Cass avenue, which would allow it to turn all its cars. The president and manager were not authorized by any vote of the directors or stockholders to make this contract, and, before the “ Y” was put in, they were instructed by the directors not to allow it to be done. The testimony shows this instruction was not communicated to the complainant. It is claimed the mayor and one of the aldermen who was on the street committee had knowledge of the making of this contract. They both testified that, while they knew a connection was to be made between the tracks of the two companies, they did not know it was proposed to put in a “ Y ” for the purpose of using it as a turning place for the cars. The “Y” was put in between midnight Saturday night and midnight Sunday night. On the following Monday night, the common council forbade the use of this “ Y,” and it was not used except to a very limited degree. Later the Traction Company refused to allow it to be used at all. Negotiations were had between the two companies and the city looking to the settlement of the differences between them. These negotiations failed. The common council ordered the “ Y ” on Butler street taken up, as well as the one at the intersection of South Gratiot street and Cass avenue.
It is the claim of complainant that the “ Y” at Butler street is necessary to the management of its road, and that it got some right to put it in by reason of its arrangement with the Detroit & Erin Plank-Road Company. Its application to the common council for leave to put this “ Y” in is hardly consistent with this claim. As the Detroit & Erin Plank-Road Company had no rights whatever in Butler street, it is difficult to see how it could confer any rights upon the complainant. The authority to put in the “Y” at Butler street was granted with this proviso: “That said grantee, its successors or assigns, shall, if ordered to do so by the common council of the said city, remove said ‘Y’ switch within 60 days after service upon it of a copy of the order of the common council directing it to do so.” The council ordered this “Y” taken up. The company refused to do what it had agreed to do as one of the conditions of obtaining the right to put in the “Y.” It now seeks the aid of equity to prevent having done what it agreed to do. If the writ can be used for such a purpose, why may it not be used after the 30-years franchise granted to the company has expired? The “Y” was accepted with the condition imposed, just as the franchise was accepted with the limitation as to the length of time which it should exist. The railway company is bound by these conditions.
It is claimed, the city having conferred the right to construct the “Y” on Butler street, it cannot now deprive the company of the use of it; citing Electric Ry. Co. of Grand Rapids v. Common Council of Grand Rapids, 84 Mich. 257. We do not think that case applicable to this one. The city was under no obligation to confer the right to construct a “Y” on Butler street, and, when it conferred that right, it was competent for it to attach conditions which must be observed. Suppose the franchise to construct and operate the road had been limited to 20 years; could it be claimed the company could operate the road after the 20 years had expired, even though the city refused to grant them a franchise to do so ? If not, how can it be claimed it can operate this “ Y” when the condition has arisen when the company agreed it should not be operated? The writ of injunction should not be used to aid the complainant in refusing to carry out its agreement. Union Street R. Co. v. Saginaw Circuit Judge, 113 Mich. 694.
It is claimed the “ Y” at Cass avenue was convenient and necessary to the operation of the road of the Traction Company; that it was competent for that company to make the contract it did with the complainant, and therefore the “ Y ” should be allowed to remain. In our view of the case, it will not be necessary to express any opinion upon the question of whether the president and manager of the company were authorized by the directors and stockholders to make the contract which they made. Whatever rights the Traction Company had to the use of Cass avenue it obtained by mesne conveyances of the rights given by an ordinance to Le Duke and Bishop, and its amendments. The ordinance which conferred the right to Le Duke and Bishop to put in “ such turnouts, switches, and side tracks as may be deemed necessary,” etc., also provided, in section 7: “The whole length of the road authorized by this ordinance shall be deemed one route, and the rate of fare over said route shall not exceed five cents for each person over five years of age.” This indicated very clearly that a connection with some other railway was not contemplated when turnouts and switches were referred to, but that the turnouts and switches needed by the railway to which the franchise was given were intended. This ordinance was amended so as to allow the use of a different kind of rails from those allowed to be used by the original ordinance, and had this proviso: “ The, manner of laying said tracks and rails and the alignment of same on the street to be subject to the inspection and approval of the common council and the city engineer.” The common council and city engineer had no knowledge of the putting in of this work until after it was done, and never approved of it. Whatever may be the effect of the contract so far as the two railway companies are concerned,' — -and upon that question we express no opinion, — the putting in of this “ Y ” was unauthorized by the city.
The contract made between the Rapid Railway Company and the Traction Company indicated very clearly the purpose of the Rapid Railway Company in making it. It reads:
“ Whereas, the said Rapid Railway Company desires to put in a ‘ Y ’ at the intersection of Cass avenue and South Gratiot avenue, in the city of Mt. Clemens, for the purpose of connecting its line with the line of the Traction Company at this point, so that said Rapid Railway Company may turn its cars: Now, therefore,” etc.
The contract also provided:
“The said Rapid Railway Company is to have the privilege of using so much of the track of the said Traction Company as may be necessary to ‘ Y ’ its cars at this point, not to exceed a distance of 150 feet east and west from the line of' said Rapid Railway Company, and to maintain and renew so much of said track as it may use, if it becomes necessary during the life of this agreement, including paving and repaving.”
One cannot read this agreement without coming to the conclusion that the purpose of the Rapid Railway Company in making it was to allow it to turn its cars at this place. The Rapid Railway Company was not authorized by its charter to go north of the southerly line of Cass avenue. This “ Y” was put in to make a turning point for the Rapid Railway Company. It was not authorized by the franchise of the Traction Company. Booth, St. Ry. Law, § 56.
Is it possible that the right to turn cars 47 feet long, and weighing 22 tons, at the intersection of the two principal business streets of a city like Mt. Clemens, can be acquired without obtaining the right to do so from the common council ? To state the proposition is to suggest the answer. The common council was not consulted. While the mayor and a member of the street committee had knowledge that it was proposed to connect the two tracks, they both swear they had no knowledge that it was proposed to put in a “ Y” at this point, upon which the cars of the railway companies could be turned. And, even if they had knowledge of its purpose, they were not authorized to confer any authority to put it in. This “Y” was put in between midnight Saturday night and midnight Sunday night. The council at once forbade the use of the “Y,” and it never has been used except surreptitiously, or by force, or upon one or two occasions by the permission of the council, it being expressly stated that its use did not give the company any permanent rights.
It is claimed some rights were obtained by virtue of some action of the common council taken in September, 1896. At this time a contract was entered into between the two companies, giving the Rapid Railway the right to run over the tracks of the Traction Company to the lower part of the city. The contract was not to be binding unless the city granted to the Traction Company an ordinance satisfactory to it, nor unless the franchise rights of the Rapid Railway Company were extended so as to permit it to make a loop around the Avery House Square, and other concessions acceptable to the city and the Rapid Railway Company. Afterwards an ordinance was adopted which conferred certain rights upon the Traction Company. It provided the ordinance should be of no effect unless accepted in writing by the Traction Company within 30 days from the passage of the ordinance. The time for its acceptance was afterwards extended, but the company declined to accept the ordinance, and “never has accepted it. At the same time this ordinance was adopted, one was passed giving certain rights to the Rapid Railway Company. Among other rights conferred was the right to construct the loop around the Avery House Square, conditioned upon its being done within 90 days; the ordinance not to be binding unless accepted in writing within a stated number of days thereafter. The time for the acceptance of this ordinance was extended at the same time the extension was given to the Traction Company, and for the same period. Upon the last day the Rapid Railway Company accepted the ordinance, but it did not build the loop around the Avery House Square within the 90 days, and it is not yet built. It is evident from the record that, when this contract was made and the two ordinances were passed, they were all part of one transaction, and were intended to settle the differences between the two railway companies, and to give the public service to the lower part of the city, and to secure the turning of the cars at the loop provided for in the ordinance. Unfortunately for all the parties, this object was not attained. The contention of the complainant that it is to receive the benefit of this proceeding as though the object of the city in making it had been attained, when it in fact accomplished nothing, is not tenable. The Traction Company did not accept the ordinance. The condition upon which the contract and the ordinance were to be operative failed, and no rights were acquired by reason of what was done.
The decree is affirmed, with costs.
Grant, C. J., Montgomery and Long, JJ., concurred. Hooker, J., did not sit. | [
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] |
Boyle, J.
We granted leave in these cases to resolve a conflict among panels of the Court of Appeals regarding the taxability of Michigan residents on their distributable income shares in out-of-state subchapter S corporations. The Department of Treasury has taken the position that such distributable shares are nonbusiness dividend income, fully taxable in this state and ineligible for a statutory tax credit for income tax paid to the corporate-situs state. The Court of Appeals ap proved that treatment in Wilson v Dep’t of Treasury, 122 Mich App 711; 333 NW2d 3 (1982); however, a contrary result was reached in one of the cases before us today, Chocóla v Dep’t of Treasury, 132 Mich App 820; 348 NW2d 290 (1984), allowing Michigan residents to exclude out-of-state subchapter S income from their Michigan tax base and to receive a statutory credit for taxes paid out-of-state on any such income ultimately taxed in Michigan.
We hold that subchapter S income may be apportioned and thereby excluded from a Michigan resident’s tax base pursuant to validly promulgated Department of Treasury rules. In addition, to the extent subchapter S income is ultimately taxed both in Michigan and out-of-state, the taxpayer is entitled to a statutory tax credit.
I
Chocóla v Department of Treasury
Plaintiffs J. Byron Chocóla and Caryl M. Choc-óla are Michigan residents who own stock in an Indiana subchapter S corporation, Brock Manufacturing, Inc., doing business in Indiana. For the 1975 and 1976 tax years, appellants deducted from their Michigan tax base their distributable income shares in Brock. The Department of Treasury disallowed the deductions and assessed additional taxes on the Brock income plus interest. Plaintiffs challenged the department’s action in the State Board of Tax Appeals, arguing in the alternative for a tax credit under MCL 206.255; MSA 7.557(1255) for taxes paid to Indiana on the same income. The board agreed with the department that the Brock income was allocable to — and hence fully taxable in — Michigan; however, the board found plaintiffs entitled to the credit provided in MCL 206.255; MSA 7.557(1255). The Court of Appeals ruled in favor of the plaintiffs on both issues, holding that the Brock income was apportionable —and hence excludable from the Michigan tax base — and that plaintiffs are entitled to a tax credit for taxes paid to Indiana on income finally subjected to tax in Michigan.
We granted leave to appeal, directing the parties to brief the following questions:
(1) whether Michigan residents must pay Michigan income tax on their share of distributable income from an Indiana Subchapter S corporation, and
(2) whether Michigan residents may claim a credit against the Michigan income tax for taxes paid to the State of Indiana on the same distributable income. [419 Mich 868 (1984).]
Roberts v Department of Treasury
Plaintiffs Donald H. Roberts and Anne B. Roberts were Michigan residents and shareholders of an Idaho subchapter S corporation, Sawtooth Lumber Company, during the 1977, 1978, 1979, 1980, and 1981 tax years. Sawtooth conducted no activities in Michigan during that time. Plaintiffs deducted from their Michigan tax base for those years their distributable income shares in Sawtooth. The Department of Treasury disallowed the deductions and assessed deficiencies for each of those years, and plaintiffs challenged the department’s determinations in the Michigan Tax Tribunal. The Tax Tribunal affirmed the department’s inclusion of the Sawtooth income in the plaintiffs’ Michigan tax base, but allowed the plaintiffs a credit under MCL 206.255; MSA 7.557(1255) for taxes paid to Idaho on the same income. On the department’s appeal, the Court of Appeals ordered the case held in abeyance pending our decision in Chocola.
We granted the plaintiffs’ delayed application for leave to appeal prior to decision by the Court of Appeals and ordered that the case be argued and submitted with Chocola. 419 Mich 916 (1984).
II
Chapter I of the Michigan Income Tax Act of 1967 defines "taxable income” as federally defined adjusted gross income, subject to a list of adjustments that include "[adjustments resulting from the allocation and apportionment provisions of Chapter 3.” MCL 206.30(l)(k); MSA 7.557(130)(l)(k). Chapter 3 of the act contains the following provisions:
Sec. 103. Any taxpayer having income from business activity which is taxable both within and without this state, other than the rendering of purely personal services by an individual, shall allocate and apportion his net income as provided in this act. [MCL 206.103; MSA 7.557(1103).]
Sec. 105. For purposes of allocation and apportionment of income from business activity under this act, a taxpayer is taxable in another state if (a) in that state he is subject to a net income tax, a franchise tax measured by net income, a franchise tax for the privilege of doing business or a corporate stock tax, or (b) that state has jurisdiction to subject the taxpayer to a net income tax regardless of whether, in fact, the state does or does not. [MCL 206.105; MSA 7.557(1105).]
Sec. 110. (1) In the case of a resident individual, estate or trust all taxable income from any source whatsoever, except that attributable to another state under the provisions of sections 111 to 115 and subject to the credit provisions of section 255, is allocated to this state.
(4) Rents and royalties from real or tangible personal property, capital gains, interest, dividends or patent or copyright royalties, to the extent that they constitute a nonbusiness income, shall be allocated as provided in sections 111 to 114. [MCL 206.110; MSA 7.557(1110).]
Sec. 113. Interest and dividends are allocable to this state if the taxpayer is a resident partnership, estate or trust or individual of this state or has a commercial domicile in this state. [MCL 206.113; MSA 7.557(1113).]
Sec. 115. All business income, other than income from transportation services shall be apportioned to this state by multiplying the income by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator of which is 3. [MCL 206.115; MSA 7.557(1115).]
"Business income” is defined in Chapter 1 of the act:
"Business income” means income arising from transactions, activities and sources in the regular course of the taxpayer’s trade or business and includes income from tangible and intangible property if the acquisition, rental, management and disposition of the property constitutes integral parts of the taxpayer’s regular trade or business operations. [MCL 206.4(2); MSA 7.557(104)(2).]
Under these provisions, a Michigan resident’s income from any source is allocated to Michigan unless statutorily attributable to another state. Business income is apportioned to Michigan by a three-part formula if the income is also taxable in another state. Nonbusiness income — defined as "all income other than business income,” MCL 206.14(1); MSA 7.557(114)(1) — is allocated in §§ 111 to 114 of the act if in the form of rents or royalties from property, capital gains, interest, dividends, or patent or copyright royalties. Section 113 allocates to Michigan "dividends” received by a resident individual taxpayer.
The instant cases require application of the foregoing provisions to distributable income from subchapter S corporations. For federal taxation purposes, subchapter S of the Internal Revenue Code, 26 USC 1371-1379, allows a qualifying corporation to elect subchapter S status and thereby avoid federal taxation at the corporate level, instead creating a pass-through of income that is taxed at the shareholder level. The effect is to treat electing corporations more like partnerships, since partnership income flows through to the partners and is taxed accordingly. Specifically, 26 USC 1373 provides that any undistributed taxable income remaining at the end of a subchapter S corporation’s taxable year is deemed to have been distributed pro rata to each of the shareholders as a dividend for that year.
At the shareholder level, 26 USC 61-62 defines "adjusted gross income” to include "all income from whatever source derived,” which necessarily includes the distributable income passed through to the subchapter S shareholder. Thus, the shareholders are federally taxed on their share of both the distributed and undistributed taxable income of the subchapter S corporation. Since under the Michigan income tax statute "taxable income” is defined as federal "adjusted gross income,” the subchapter S distributable income is also included in the taxpayer’s state tax base, subject, of course, to the apportionment and allocation rules.
The Department of Treasury in both Chocola and Roberts relies on an apparently straightforward application of the foregoing provisions of Michigan and federal law to conclude that the plaintiffs’ distributable income from out-of-state subchapter S corporations is necessarily allocated to Michigan: plaintiffs’ distributed and undistributed subchapter S income is dividend income under IRC 1373, and dividend income received by a Michigan resident is allocated to Michigan for state tax purposes under MCL 206.113; MSA 7.557(1113). Accordingly, the department concludes that the plaintiffs’ subchapter S income is entirely allocated to Michigan and hence cannot be deducted from the plaintiffs’ state tax base.
Although facially appealing, the department’s argument fails to consider language in the Michigan statute suggesting that such a strict approach to dividend income is not required. MCL 206.110; MSA 7.557(1110) provides in relevant part:
Sec. 110. (1) In the case of a resident individual, estate or trust all taxable income from any source whatsoever, except that attributable to another state under the provisions of sections 111 to 115 and subject to the credit provisions of section 255, is allocated to this state.
(4) Rents and royalties from real or tangible personal property, capital gains, interest, dividends or patent or copyright royalties, to the extent that they constitute a nonbusiness income, shall be allocated as provided in sections 111 to 114. [Emphasis added.]
Subsection (1) contains the general rule allocating all forms of taxable income received by resident individuals to Michigan, subject to the exceptions provided in §§ 111 to 115 of the act. The business income exception — apportioning business income according to a three-part formula — is contained in § 115, one of the sections referred to in this subsection. Subsection (4) refers to the allocation rules applicable to certain forms of taxable income, including dividends, "to the extent that they constitute a nonbusiness income.” Quite appropriately, the business income provision is therefore not referred to in this subsection.
Reading the two subsections together, it appears that the Legislature contemplated that certain income of the types enumerated in subsection (4) might constitute business income rather than "nonbusiness income,” thereby coming within the business income exception referred to in subsection (1), rather than the nonbusiness income exceptions listed in subsection (4). In other words, since subsection (4) expressly limits itself to nonbusiness income in the forms listed, business income in those same forms would appear to be eligible for the business income apportionment formula referred to in subsection (1). In the case of dividend income, apportionability will depend on whether the income also qualifies as business income of the taxpayer, since nonbusiness dividend income must be allocated to Michigan under MCL 206.110; MSA 7.557(1110) and MCL 206.113; MSA 7.557(1113).
Accordingly, we reject the department’s argument that the statute requires allocation of dividend income to Michigan regardless of its character. Rather, we construe the statute to permit apportionment of dividends that qualify as business income in the hands of resident taxpayers. Thus, the crucial inquiry is not whether the income is received in the form of a dividend, but whether it can fairly be characterized as business income.
The question whether subchapter S distributable income is apportionable business income has received inconsistent administrative and judicial treatment in this state. In Craighead v Dep’t of Treasury, Mich Tax Rep (CCH), ¶ 200-751 (1978), the department took the position that losses incurred in a Colorado subchapter S corporation were allocable to Colorado and therefore were required to be added back to the tax base of Michigan resident shareholders. The Board of Tax Appeals disagreed, however, relying on a former provision of the act that required subchapter S shareholders to include their distributable income shares in their Michigan tax base without regard to where the corporation was located or did business. Reasoning that losses follow income for these purposes, the board concluded that the Colorado losses need not be added back to the plaintiffs’ Michigan tax base. In Craighead, therefore, the department forwarded a position consistent with that of the instant plaintiffs — i.e., the results of investments in subchapter S corporations (in- eluding losses) are business income allocable to another state — but was overruled by the Board of Tax Appeals.
Two factors significantly undercut the persuasive authority of the Craighead decision. First, Craighead was decided under a provision of the Income Tax Act that has since been repealed. That provision recited the general rule exempting an electing corporation from the then-existing corporate income tax and taxing the shareholders instead on their pro-rata shares of the subchapter S income. The Board of Tax Appeals had relied on the absence of any apportionment language in that section in concluding that subchapter S income shares were not apportionable.
Second, pursuant to statutory authority, the department in 1978 promulgated rules relating specifically to apportionment and allocation of income. In particular, those rules provide:
(15) The following forms of income may be claimed as a subtraction from adjusted gross income if not allocated or apportioned to Michigan; conversely, losses not allocated or apportioned to Michigan shall be added to adjusted gross income:
(a) Trade or business, including farming.
(b) Rents and royalties from real and personal property.
(c) Capital gains from the disposition of real and tangible personal property.
(d) Capital gains from the disposition of intangible personal property.
(e) Interest and dividends.
(f) Pensions and annuities.
(g) Patent and copyright royalties.
* * *
(17) All distributive income from a subchapter S corporation includable in the shareholder’s adjusted gross income is subject to tax if allocated or apportioned to Michigan.
(18) Dividend distributions taxable as ordinary income, plus undistributed income taxable as ordinary income, are apportioned to Michigan if all of the corporation’s business activities are confined to Michigan. If the corporation is taxable both within and without Michigan, such income is apportioned to Michigan as provided in sections 115 to 195 of Act No. 281 of the Public Acts of 1967, as amended.
(20) Distributive income from a subchapter S corporation not allocated or apportioned to Michigan may be claimed as a subtraction from adjusted gross income. Conversely, losses not allocated or apportioned to Michigan shall be added to adjusted gross income. [1979 AC, R 206.12.]
Although contesting its own authority to promulgate the foregoing rules, the department does not deny that these rules in terms provide for the apportionment of subchapter S income results.
Shortly after Craighead was decided, the Board of Tax Appeals in Hassebrock v Dep’t of Treasury, Mich Tax Rep (CCH), ¶ 200-757 (1978), addressed a situation that was the reverse of that in Craighead —i.e., the taxability of distributable income of nonresident shareholders received from a Michigan subchapter S corporation. The department, consistent with its argument in Craighead that the results of investments in subchapter S corporations are apportionable to the situs of the corporation, argued for taxability of the income shares in Michigan. The board disagreed, in accordance with its decision in Craighead, concluding that the tax on subchapter S distributable income is attributable solely to the state of the taxpayer’s residence, Missouri in that case.
Thus, in argument before the Board of Tax Appeals in both Craighead and Hassebrock, and again through its rulemaking power, the department consistently called for the apportionment of subchapter S income. The board rejected that position, however, relying on a provision of the Income Tax Act that has since been repealed, and apparently ignoring the recent passage of the department rules on point.
When the issue of apportionability of out-of-state subchapter S income was brought before the Court of Appeals in Wilson v Dep’t of Treasury, 122 Mich App 711; 333 NW2d 3 (1982), the department adopted the board’s approach and argued for allo cation of out-of-state subchapter S income to Michigan. The Court agreed with that approach, finding that subchapter S income is not business income because the "business” is that of the corporation, not the shareholder. In the case before us today, however, another panel of the Court of Appeals observed a striking similarity between subchapter S income and partnership income, as well as a lack of similarity between subchapter S income and the concept of dividends, leading the Court to conclude that such income is business income subject to apportionment. Chocola, 132 Mich App 826-827. The Chocola panel also noted the recent promulgation of the department rules on point as supporting the Court’s determination. 132 Mich App 827-828.
We find that the department rules reflect a valid administrative interpretation of the Income Tax Act that controls the disposition of these cases. Contrary to the finding of the Court of Appeals in Wilson, we do not read the act to require treatment of subchapter S distributable income as non-business income. Subchapter S corporations enjoy unique characteristics that provide a compelling analogy to partnerships, which produce apportion-able business income in the hands of member partners, see Grunewald v Dep’t of Treasury, 104 Mich App 601; 305 NW2d 269 (1981). First, the shareholders are limited in number to twenty-five (thirty-five after the 1982 amendment).* Second, the irc places a ceiling on passive investment income that can be earned by a subchapter S corporation. Third, as noted earlier, subchapter S income whether or not distributed is taxed to the shareholders pro rata. Fourth, net operating losses of a subchapter S corporation are deductible pro rata by the shareholders as a trade or business deduction. Finally, dividend distributions to the shareholders enjoy capital gains treatment to the extent of the shareholders’ pro-rata shares of the corporation’s net capital gain.
The combined effect of the foregoing characteristics renders a subchapter S shareholder more like a participant in the corporation’s business and less like a mere passive investor; however, we need not rule that the statute mandates business income treatment of subchapter S income. Rather, the fact that reasonable minds can differ on the question reinforces our conclusion that the matter is particularly appropriate for administrative resolution in the absence of a clear legislative pronouncement to the contrary. Accordingly, we find the department rules apportioning subchapter S distributable income to constitute a reasonable implementation of the statutory apportionment provisions.
In Chocola, the tax years at issue, 1975 and 1976, predated the department rules promulgated in 1978. No preexisting administrative standard governed the apportionability of subchapter S income. Before Craighead and Hassebrock were decided in 1978, however, the department apparently was taking the position that out-of-state subchap-ter S income and losses were in fact apportionable. Thus, the taxpayers in Chocola acted in accordance both with a reasonable interpretation of the statutory apportionment provision and with prior administrative practice, as well as in accordance with the 1978 rules, in apportioning their Indiana subchapter S distributable income.
In Roberts, the tax years at issue, 1977-1981, span a period that extends both before and after promulgation of the rules. We apply the same analysis as in Chocola to uphold the taxpayers’ 1977 apportionment and find that the rules expressly direct apportionment beginning with the 1978 tax year.
Ill
Our resolution of the apportionment issue leaves open the possibility that some distributable income from an out-of-state subchapter S corporation will be taxed twice — in the corporate situs state and in Michigan. For example, the "home” state might tax the entire amount of distributable income, while Michigan might tax a fractional share of the income through application of the three-part apportionment formula contained in MCL 206.115; MSA 7.557(1115). We agree with the determinations of the Board of Tax Appeals and the Court of Appeals in Chocola, and the Michigan Tax Tribunal in Roberts, that MCL 206.255; MSA 7.557(1255) allows a tax credit under these circumstances.
MCL 206.255; MSA 7.557(1255) provides in part:
(1) A resident individual or resident estate or trust shall be allowed a credit against the tax otherwise due under this act for the amount of an income tax imposed on a resident individual or resident estate or trust for the taxable year by another state of the United States or a political subdivision of another state of the United States, the District of Columbia, or a Canadian province, on income derived from sources without this state which is also subject to tax under this act.
The department’s principal argument on appeal is that the plaintiffs’ distributable subchapter S income is not "income derived from sources without this state,” since the "source” of the income is the shares of stock which necessarily have the same situs as their owners. Accordingly, the source of plaintiffs’ subchapter S income is not without this state, but is in Michigan. In addition, the department argues that the credit cannot be allowed because Michigan law does not recognize the taxing jurisdiction of other states over Michigan shareholders in subchapter S corporations located in those states.
We reject both these arguments as untenable. A common-sense reading of the phrase "sources without this state” suggests that distributable income from an out-of-state subchapter S corporation comes within the purview of this section. Moreover, our determination today that such income can fairly be characterized as business income reinforces the conclusion that the source of the income is indeed in the corporate-situs state. In addition, the section in terms provides for a credit "for the amount of an income tax imposed ... by another state.” There is no requirement that Michigan first recognize the jurisdiction of the state imposing the tax before a credit can be granted— the tax need only be "imposed.” Accordingly, provided the prerequisites are met, the section provides a credit against the Michigan tax owed on such distributable income that is also taxed in the situs state.
IV
In Chocola, we affirm the Court of Appeals order remanding for recomputation of the plaintiffs’ tax liability.
In Roberts, we vacate the order of the Michigan Tax Tribunal and remand for recomputation of the plaintiffs’ tax liability in accordance with the principles set forth in this opinion.
Williams, C.J., and Ryan, Brickley, Cavanagh, and Riley, JJ., concurred with Boyle, J.
Levin, J., took no part in the decision of these cases.
In 1982, subchapter S was amended to conform the taxation of electing corporations even more to the partnership model. See 26 USC 1361-1379. Since the tax years at issue in these appeals predate the amendment, references in this opinion will be to the former provisions of subchapter S.
The section provides, in part:
"(a) General rule. — The undistributed taxable income of an electing small business corporation for any taxable year shall be included in the gross income of the shareholders of such corporation in the manner and to the extent set forth in this section.
“(b) Amount included in gross income. — Each person who is a shareholder of an electing small business corporation on the last day of a taxable year of such corporation shall include in his gross income, for his taxable year in which or with which the taxable year of the corporation ends, the amount he would have received as a dividend, if on such last day there had been distributed pro rata to its shareholders by such corporation an amount equal to the corporation’s undistributed taxable income for the corporation’s taxable year. For purposes of this chapter, the amount so included shall be treated as an amount distributed as a dividend on the last day of the taxable year of the corporation.” 26 USC 1373.
1967 PA 281, § 81 provided in part:
"A corporation which has filed a proper election under subchapter S of the internal revenue code shall not be subject to the tax imposed by this act with respect to the taxable years for which such election is in effect. Each participant shall include his proportionate share of the taxable income whether or not distributed and whether or not distributable.”
See n 3.
The section was repealed by 1975 PA 233, § 2, which was connected to the enactment of the Single Business Tax Act, 1975 PA 228.
The department argues that the repeal of 1967 PA 281, §81 signaled a complete withdrawal of legislative recognition of subchap-ter S corporate status under the state Income Tax Act. We disagree. After the repeal, subchapter S recognition remained built into the state income tax scheme through the incorporation of federally defined "adjusted gross income,” which includes subchapter S pass-through income. In the absence of a clear legislative directive to the contrary, we do not view the repeal as having the sweeping effect the department suggests. The more natural explanation for that repeal is indicated by its connection with the Single Business Tax Act. Since the sbta replaced the income-oriented corporate tax in Michigan, it was necessary to repeal those provisions of the Income Tax Act, such as § 81, that reflected the former corporate tax system.
Even assuming the continued validity of former § 81 (quoted at n 3), we find it to be dubious authority for the proposition stated in Craighead. The section did not purport to allocate the income to Michigan, nor was it contained in the chapter of the Income Tax Act dealing with allocation and apportionment.
MCL 16.109; MSA 3.29(9), MCL 16.183; MSA 3.29(83), MCL 205.3; MSA 7.657(3), and MCL 205.13; MSA 7.657(13) empower the state Commissioner of Revenue to promulgate rules enforcing the tax laws pursuant to the notice and hearing procedure contained in the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq.
1979 AC, R 206.12. While the rules technically predated the decision in Craighead by several months, the Board of Tax Appeals made no mention of their existence or possible effect.
The department is now in the curious position of challenging its own rules in light of subsequent legal authority. Our holding today reaffirms the validity of those rules, thus leaving the department to established administrative procedures for repeal of the rules should it now wish to implement the statute differently.
26 USC 1371(a).
26 USC 1361(b).
26 USC 1372(e)(5) placed a ceiling of twenty percent of gross receipts on income from passive investment, with certain exceptions. The new amendment raises the ceiling to twenty-five percent, with exceptions. 26 USC 1362(d)(3).
See n 2.
26 USC 1374. The amended version simply provides that the character of any income or loss item passed through to the shareholder "shall be determined as if such item were realized directly from the source from which realized by the corporation, or incurred in the same manner as incurred by the corporation.” 26 USC 1366(b).
26 USC 1375(a). See the section cited in n 14 for the amended version preserving the character of items passed through to shareholders.
Although the Board of Tax Appeals overruled the department in Craighead and Hassebrock, those decisions faded to note the existence of the department rules on point, and instead relied on a former section of the act that was repealed in 1975. Similarly, the Court of Appeals decision in Wilson completely ignored the existence of the department rules that provided for apportionment of out-of-state subchapter S income received by resident taxpayers. Thus, while we commend the department’s desire to conform to the law as set forth in those decisions, we find that the business income character of subchapter S income was properly determined in the first place by the department pursuant to its delegated rulemaking authority. | [
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Cavanagh, J.
We granted leave to review an order of the Attorney Discipline Board which suspended the license of attorney Thomas A. Nickels for 120 days. 419 Mich 1206 (1984). We hold that the findings of the hearing panel are supported by the evidence, and affirm the order of suspension.
I
On May 16, 1983, the Grievance Administrator filed a three-count complaint against respondent Thomas A. Nickels. Count I alleged that respondent made several misrepresentations to his former secretary, Laurie Shelden, regarding her wages.
In 1981, respondent employed Shelden under a Comprehensive Employment and Training Act (ceta) program. Pursuant to an agreement with ceta, respondent agreed to pay Shelden $140 per forty-hour work week. Ceta would then reimburse respondent $70 per week.
Respondent informed Shelden that he would pay her $100 in cash at the end of each week. He also told her that he would retain $40 per week out of her wages to cover federal and state withholding taxes and social security payments. Respondent said that the precise amounts withheld would be calculated later and that Shelden would eventually be reimbursed for the difference. Count I alleged that, contrary to these representations, respondent never remitted any funds to the appropriate taxing authorities and refused to reimburse any portion of the $320 withheld during Shelden’s eight weeks of employment. Shelden’s informal attempts to recover this amount proved unsuccessful. She ultimately received a default judgment from the 88th District Court in the amount of $320, which remained unpaid as of the day of the hearing before the Attorney Discipline Board.
Respondent moved to dismiss the complaint at his initial hearing. He argued that his actions did not arise out of the attorney-client relationship and were unrelated to the practice of law. Instead, his actions amounted to a simple wage dispute which should not be considered misconduct under the Code of Professional Responsibility or the General Court Rules. The three-member hearing panel dismissed the motion.
Following an evidentiary hearing, respondent was found guilty of misconduct under Count I in violation of GCR 1963, 953(2), (3), and (4), and DR 1-102(A)(1), (4), and (6).* The hearing panel dismissed Counts II and III on the basis of insufficient evidence.
Regarding Count I, the panel found that although the actions were misconduct, they did not relate directly to an attorney-client relationship. In suspending respondent’s license for 120 days, the panel noted that he had received two prior reprimands. The panel cited the board’s final words in an earlier order of reprimand which warned respondent that any further transgressions would constitute an attitudinal pattern calling for more serious discipline.
Respondent petitioned for review of the hearing panel’s decision. The board’s order affirming the suspension stated in part:
It is ordered that the Hearing Panel report and order of suspension of 120 days be and the same hereby are affirmed. Although discipline may be imposed whether or not misconduct has occurred in the course of an attorney client relationship, GCR 1963, 953, the Board specifically reverses the hearing panel finding that the misconduct in this matter was unrelated to the practice of law.
II
Respondent argues that his actions cannot be deemed professional misconduct. He requests that this Court set up strict guidelines to determine what activity is "misconduct” for purposes of the code and the General Court Rules. We are not convinced, however, that a truly comprehensive definition or test for misconduct can be formulated. We believe therefore that review of these proceedings is best handled on a case by case basis.
In reviewing the discipline imposed in a given case, we are mindful of the sanctions meted out in similar cases, but recognize that analogies are not of great value.
"As a hypothetical proposition, we find dubious the notion that judicial or attorney misconduct cases are comparable beyond a limited and superficial extent. Cases of this type generally must stand on their own facts. ” State Bar Grievance Administrator v Del Rio, 407 Mich 336, 350; 285 NW2d 277 (1979).
Our task then is to make certain that within the record of each case there is proper evidentiary support for the ñndings of the hearing panel and the Attorney Discipline Board. See, for example, State Bar Grievance Administrator v Estes, 390 Mich 585, 593; 212 NW2d 903 (1973), and State Bar Grievance Administrator v Silverman, 408 Mich 100, 110; 289 NW2d 683 (1980). [In the Matter of Grimes, 414 Mich 483, 490; 326 NW2d 380 (1982), reh den 417 Mich 1101 (1982). Emphasis supplied.]
Respondent also contends that he should not be disciplined for activities which occurred outside of an attorney-client relationship. However, GCR 1963, 953 clearly indicates that actions contrary to justice, ethics, honesty, or good morals may be misconduct, regardless of whether they occur in the course of an attorney-client relationship. See n 1.
We agree with the hearing panel’s conclusion that, while respondent’s actions constituted misconduct, they did not relate directly to an attorney-client relationship. The dispute did not involve a client; it involved an employee. However, we think that such a finding is largely irrelevant in light of GCR 1963, 953.
The Attorney Discipline Board properly upheld the respondent’s suspension. However, the board confused the matter by reversing the hearing panel’s finding "that the misconduct in this matter was unrelated to the practice of law.” The hearing panel never made such a finding. The panel only found that the misconduct did not arise out of an attorney-client relationship. Accordingly, we modify that portion of the board’s order insofar as it reversed the "finding” that respondent’s conduct was unrelated to the practice of law.
We likewise reject respondent’s argument that his actions have to be directly related to the practice of law in order to be grounds for disciplinary proceedings. Misconduct may include activities that are unrelated to the practice of law, if they otherwise fall within conduct proscribed by the code or the General Court Rules. See, e.g., State Bar Grievance Administrator v Grossman, 390 Mich 157; 211 NW2d 21 (1973), cert den 415 US 919 (1974). In Grossman, the Court upheld discipline imposed on an attorney who misrepre sented facts to a police officer and filed a false police report in an attempt to regain possession of his automobile. Thus, activities do not have to be directly related to the practice of law per se to be grounds for discipline. See also Grimes, supra, where we said:
The rules of professional conduct adopted by this Court evidence a commitment to high standards and behavior beyond reproach. We cannot stress too strongly the responsibility of members of the bar to carry out their activities, both public and private, with circumspection.
"[T]he concept of unprofessional conduct now embraces a broader scope and includes conduct outside the narrow confines of a strictly professional relationship that an attorney has with the court, with another attorney or a client.” State v Postorino, 53 Wis 2d 412, 419; 193 NW2d 1 (1972).
A lawyer is a professional "twenty-four hours a day, not eight hours, five days a week.” Id. [Grimes, supra, pp 494-495. Emphasis supplied.]
Ill
With these general principles in mind, and after review of the entire record, we find that there is proper evidentiary support for the order suspending respondent’s license for 120 days. Evidence presented before the hearing panel showed, by a preponderance of the evidence, that respondent violated the applicable General Court Rules and Disciplinary Rules. See State Bar Grievance Administrator v Posler, 390 Mich 581, 583; 213 NW2d 133 (1973); State Bar Grievance Administrator v Crane, 400 Mich 484, 493; 255 NW2d 624 (1977).
Respondent promised Shelden that she would be reimbursed after he talked to his accountant. He failed to do so, and Shelden was forced to file a complaint against respondent. She ultimately obtained a default judgment for the amount withheld. The fact that respondent eventually paid her $320 at the conclusion of the hearing is of little or no significance. The complaint’s focus was not on the payment of money. Instead, the complaint alleged that respondent was guilty of misrepresentation and fraud. His actions evidenced a pattern of conduct which brought disrepute upon himself as a member of the bar and brought disrepute upon his profession. See State Bar Grievance Administrator v McWhorter (On Rehearing), 407 Mich 278, 286-288; 284 NW2d 472 (1979); State Bar Grievance Administrator v Jackson, 390 Mich 147; 211 NW2d 38 (1973).
Respondent represented that he was withholding money in order to pay the appropriate taxing authorities. However, he admitted, both at the hearing and in oral argument before this Court, that he never paid any taxes or social security payments on Shelden’s behalf. We stress that in most instances "simple wage disputes” between an attorney and an employee will not rise to the level of misconduct. However, the facts of this case persuade us that the Grievance Administrator was justified in pursuing the formal complaint.
IV
After review of the record, we believe that respondent’s representations and the retention of funds constituted misconduct. Furthermore, in light of respondent’s prior reprimands, we are satisfied that a 120-day suspension was justified under the facts of this case. The board is entitled to consider past violations and sanctions in determining discipline. See State Bar Grievance Administrator v Posler, 393 Mich 38, 41; 222 NW2d 511 (1974). The order of the board is modified in accordance with this opinion. The respondent’s suspension for 120 days is affirmed.
Williams, C.J., and Ryan, Brickley, Boyle, and Riley, JJ., concurred with Cavanagh, J.
GCR 1963, 953 states in pertinent part:
’’The following acts or omissions by an attorney, individually or in concert with another person, are misconduct and grounds for discipline, whether or not occurring in the course of an attorney-client relationship:
"(1) conduct prejudicial to the proper administration of justice;
"(2) conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach;
"(3) conduct that is contrary to justice, ethics, honesty, or good morals;
"(4) conduct that violates the standards or rules of professional responsibility adopted by the Court. . . (Emphasis supplied.)
See also MCR 9.104 which is substantially similar to GCR 1963, 953.
Canon 1 of the Code of Professional Responsibility states: "A lawyer should assist in maintaining the integrity and competence of the legal profession.” Disciplinary Rule 1-102(A) states:
"A lawyer shall not:
"(1) Violate a Disciplinary Rule.
"(2) Circumvent a Disciplinary Rule through actions of another.
"(3) Engage in illegal conduct involving moral turpitude.
"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
"(5) Engage in conduct that is prejudicial to the administration of justice.
"(6) Engage in any other conduct that adversely reñects on his Stness to practice law.” (Emphasis supplied.)
Respondent urges us to adopt the view expressed in Justice T. G. Kavanagh’s dissenting opinion in Grossman. That view would "distinguish carefully between what a lawyer does as a lawyer and what he does as a private citizen.” Id., p 164. The identical view was later cited in Justice Kavanagh’s dissent in State Bar Grievance Administrator v Gillis, 402 Mich 286, 293; 262 NW2d 646 (1978), reh den 402 Mich 965 (1978). The Gillis dissent continued:
"The rules should be modified to provide that only misconduct in the course of professional activities or conduct outside of professional activities indicating that a lawyer can no longer be trusted to represent clients or appear in court warrants discipline.”
Notwithstanding this view, the majority opinions in Grossman and Gillis indicate that conduct does not necessarily have to involve the practice of law in order to subject an attorney to discipline. However, even if we applied the dissents in Grossman and Gillis to the facts of this case, we would still affirm respondent’s suspension. Respondent’s actions also constituted "misconduct in the course of professional activities.” Gillis, supra. Representations made regarding the payment of wages to employees and the filing of tax statements on their behalf are activities which are integrally related to an attorney’s professional activities and responsibilities. We believe that such conduct was sufficiently related to his conduct as an attorney to warrant discipline under the facts of this case. | [
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Reported at 421 Mich 559. | [
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] |
Long, J.
In February, 1895, the defendants made and delivered to complainant their promissory note for $600, due in two years from date. The payment of this note was secured by mortgage executed by the defendants upon the S. E. i of S. E. i of section 26, township 24 N., of range 3 E., and lots 1, 9, and 10, in block 9, of the village of Lupton, all in Ogemaw county, this State. Two other small loans were thereafter negotiated between the parties, and secured by mortgage. The complainant lives in Elizabethtown, Ind. This proceeding is brought to foreclose the $600 mortgage. The defense interposed is a claimed settlement and payment of the mortgages by deed of certain property in Ogemaw county, executed by de fendants to complainant, and such deed accepted by the complainant by Mr. Snodgrass, his agent in this State, and a further payment of $100 in a draft. The court below found in favor of defendants’ theory; that a settlement had been made, and dismissed the complainant’s bill. Complainant appeals.
It appears that considerable correspondence passed between the parties in reference to a settlement of complainant’s claims, and on May 4, 1897, defendants wrote complainant, offering to deed him the S. E. £ of the S. E. £ of .section 26, the village residence property, and pay $100 in cash, by way of settlement. On June 7th following, complainant wrote defendants that, if they would deed the house and lots in Lupton, the 40 acres of land, and pay $100 in cash, he would accept it. In answer to this the defendants wrote on June 8th, saying-:
“Our proposition is exactly the same as yours, unless you mean to include the Laura Lupton lots in the village you hold security on for interest due last year. We did not mean to include them in our proposition. Please let us know if you did. * * * On reading your letter, I recalled the deeds out of the mail before they left town. I will deliver them and the money over to Mr. Snodgrass, or to M. H. French & Co. bank at West Branch, whichever you designate, in exchange for the notes and mortgage releases. Let me know which place you send them, and oblige.”
It is the claim of defendants that, shortly after this letter, they received a card from the complainant, saying:
“I have asked Mr. Snodgrass to talk over your proposition to me with you. If you can trade with him, you can count the matter as satisfactorily settled with me. Hoping the matter will be amicably settled, I am, ” etc.
The time of receiving this card is in dispute between the parties, but we are satisfied. that it was received after sending the above letter to the complainant.
It is further claimed by the defendants that, upon the receipt of this card, they arranged the matter with Mr. Snodgrass; that they made id delivered the deeds of property as requested, and that, upon such settlement, Mr. Snodgrass turned over all the notes accompanying the mortgages to them, and among which was the note accompanying the mortgage in controversy here;.that, at the time the notes were so surrendered, Mr. Snodgrass, acting as agent and attorney for the complainant, agreed to procure the releases of the mortgages, and deliver them to defendants; and that, as a part of the consideration of the terms of settlement, they delivered to Mr. Snodgrass a draft for $100, payable to complainant. The complainant thereafter attempted to repudiate the settlement, and demanded the return of all the papers as they were originally. This defendants refused to comply with, and complainant commenced these proceedings for a foreclosure of the mortgage. There is no question upon this record but that these notes were delivered to the defendants by Mr. Snodgrass as the agent of complainant; and we think it is shown by a great preponderance of evidence that they were surrendered with the understanding that the settlement was fully consummated. Nothing was left to be done but the delivery of the discharges of the mortgages.
The decree of the court below must be affirmed.
Montgomery, Hooker, and Moore, JJ., concurred. Grant, C. J., did not sit. | [
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] |
Hooker, J.
The defendant being a stockholder in the Aldine Manufacturing Company, that company filed the bill in this cause, claiming an indebtedness due to it from the defendant, upon open account, for $1,000 and upwards, and praying an accounting, and a decree of foreclosure of its lien upon his stock in default of payment. The lien is claimed to exist by virtue of section 416155, 3 How. Stat., which provides that the corporation shall at all times have a lien upon all the stock or property of its members invested therein, for all debts due from them to such corporation. The bill was demurred to on two grounds: (1) That there was no jurisdiction in equity to enforce the lien; (2) that the remedy provided by 3 How. Stat. §§ 4161c3-4161c7, inclusive, is exclusive. The demurrer was sustained, and the bill dismissed. The complainant has appealed.
Upon the part of the defendant it is claimed, first, that equity has no jurisdiction to enforce a sale of the prop erty to satisfy the statutory lien in a proceeding brought solely for that purpose; and, second, that, even if the court might do so when it had acquired jurisdiction for some other purpose within its jurisdiction, no such situation exists here. The theory upon which the bill seems to have been filed is that the lien of the complainant was akin to that of a mortgage or pledge of the stock, and carried with it a right to enforce payment of the debt secured by it, through foreclosure in a court of chancery, as well as by the notice and sale provided for by the statute to which allusion has been made.
This lien is not one which is created by direct agreement of the parties, such as a pledge or a mortgage, but arises by operation of law out of certain business relations, viz., that of corporation and stockholder. It is not in its nature an equitable lien, like the lien of a vendor of land sold upon contract for the purchase price. In such cases, under our practice, courts of equity have power to enforce the lien, upon bill practically for specific performance, to which the enforcement of the decree for-the purchase price, by sale of the premises, is an incident. See Fitzhugh v„ Maxwell, 34 Mich. 140, and Boehm v. Wood, Turn. & R. 332. It is, on the contrary, a legal security, closely analogous to a common-law lien, which last is said not to be enforceable in equity. Indeed, in cases of common-law liens, which always involved possession of the chattel, actual or constructive (2 Kent, Comm. 639), the creditor had no right to sell the chattel for the purpose of obtaining compensation. The lien was defined to be ‘ ‘ the right of detention, in persons who have bestowed labor upon an article, or done some act in reference to it, and who have the right of detention till reimbursed for their expenditures and labor. ” Oakes v. Moore, 24 Me. 219 (41 Am. Dec. 379). As said by Chancellor Kent: “A lien is, in many cases, like a distress at common law, and gives the party detaining the chattel the right to hold it as a pledge or security for the debt, but not to sell it. It was said by Popham, C. J., in the Hostler Case, Yel. 66, that an innkeeper might have the horse of his guest appraised and sold after he had eaten as much as he was worth. But this was a mere extrajudicial dictum, and it was contrary to the law, as it has been previously and subsequently adjudged.” 2 Kent, Comm. 642, and cases cited. See, also, 1 Jones, Liens, § 335, where the author, in discussing a carrier’s lien, says that it, “like all other common-law liens founded upon possession, gives him [ the holder ] no right to sell the property, but' only a right to retain it until his charges are paid.” Again, in section 1033 the learned author says that “ a common-law lien' * * * is merely the right of a person in possession of the property of another to detain it until certain demands * * * are satisfied.”
In Doane v. Russell, 3 Gray, 382, a wagon maker sold a wagon, pursuant to notice to the owner, for the purpose of satisfying his lien, and the court held that he had no right to do so. In Briggs v. Railroad Co., 6 Allen, 246 (83 Am. Dec. 626), a railroad company sold flour to pay their charges for its transportation, and it was held that they had “only a right to detain it until they were paid; not to sell it to obtain the remuneration to which they were entitled.” In Pothonier v. Dawson, Holt, N. P. 383, Chief Justice Gibbs said: “Undoubtedly, as a general proposition, a right of lien gives no right to sell the goods.” This was obiter, but nevertheless, from the eminence of the author, it is entitled to great weight. The doctrine was stated in Jones v. Pearle, 1 Strange, 556. Again, in Lickbarrow v. Mason, 6 East, 27, note, the rule was stated by Mr. Justice Buller as follows: “But he who has a lien only on goods has no right so to do \_i. e., sell and dispose of-them]; he can only retain them till the original price be paid.” See, also, Walter v. Smith, 5 Barn. & Ald. 439, cited in Doane v. Russell, supra, to the point that “a pledge as security for a debt * * * is a lien with a power of sale super-added.” Chief Justice Shaw also cites Cortelyou v. Lansing, 2 Caines, Cas. 200; 1 Chit. Prac. 492; Cross, Lien, 47; Woolrych, Com. & Merc. Law, 237. In Briggs v. Railroad Co., supra, Merrick, J., said: “And the rule, which is now well established, that a party having a lien only, without a power of sale superadded by special agreement, cannot lawfully sell the chattel for his reimbursement, is as applicable to carriers as it is to all others having the like claim upon property in their possession.’’ While the doctrine of these cases — i. e., that the creditor cannot sell the property — is indisputable, there was no impediment to the recovery of judgment and sale of the property, as well as any other property of the debtor, on execution. Tete v. Bank, 4 Brewst. 308; Buffalo, etc., R. Co. v. Dudley, 14 N. Y. 336.
Does it follow, that a common-law lien can be foreclosed in equity because it does not confer upon the creditor the right to sell the property? It is evident that, in cases of common-law lien for a liquidated claim, a judgment and execution are as expeditious and effective as a proceeding in equity would be likely to be, and an application of the familiar doctrine that equity will not intervene when there is an adequate remedy at law would seem proper. It is a significant fact that we are not cited to any well-settled line of authorities that supports the practice of foreclosing common-law liens in equity. At the same time, Chancellor Kent, in discussing the subject, says: “I presume that satisfaction of a lien may be enforced by a bill in chancery.” 2 Kent, Comm. 642. He supports the statement by no authorities, howbver. And in Tete v. Bank, siopra, there is a dictum that in proper cases the creditor may invoke the aid of a court of equity to work out a sale. The lien with which we have to do is not a common-law lien, but is statutory. It has the attributes of a common-law lien, however, although the manual possession of the certificates of stock is not with the complainant. Inasmuch as a transfer of the stock must be upon the books, it may be urged that the corporation has constructive possession. But it is not of much importance whether it has possession or not. Statutory liens often exist although, the creditor has not possession of the property; and we know of no authority that treats the matter of possession as depriving statutory liens of the legal attributes of common-law liens, to which they are analogous. 1 Jones, Liens, § 104, says that “a statutory lien without possession may, by force of the statute, have the same operation and efficacy that a common-law lien has with possession.” See Id. § 112; Beall v. White, 94 U. S. 382.
In the case of Southern Mich., etc., Lumber Co. v. McDonald, 57 Mich. 292, Cooley, C. J., said that “log labor liens, [which are statutory] could give no jurisdiction to a court of equity. If valid, they were legal claims.” In Thames Iron-Works Co. v. Patent Derrick Co., 1 Johns. & H. 93, 97, the jurisdiction of equity to enforce by sale a builder’s lien upon a vessel was denied; and in answer to the claim of exigency, alleged to arise from the expense of retaining the chattel, and the consequent necessity to make the security effectual by annexing to the passive lien the active right of sale, Mr. Vice Chancellor Wood said that “if, in a matter of this magnitude, the court should for the first time in 1860 establish such a new right as between persons dealing with chattels, it would injure rather than promote commercial interests.” See Canal Co. v. Gordon, 6 Wall. 561, where the Federal Supreme Court held that the’ jurisdiction to enforce a statutory lien “rests upon the statute, and can extend no further.”
In 23 Am. & Eng. Enc. Law, 697, it is said: “The lien is most frequently enforced by the refusal of the corporation to register transfers from an indebted member ; ” citing many cases. It adds that other methods of enforcement are foreclosure and sale and attachment. New authorities are cited, and these will be discussed later. 1 Cook, Stock, Stockh. & Corp. Law, § 530, cites the same. But, when we search for cases where statutory or common-law liens have been foreclosed in equity upon bills filed for the purpose, we find few, though it is probable that the States of Alabama, Kentucky, Illinois, and Maryland would sustain the practice. In Westmoreland v. Foster, 60 Ala. 448, a bill was filed against a tenant to enforce a lien for rent, against cotton in the hands of a vendee of the tenant. It was there held that a statutory lien, which is an incident of some contract made, is enforceable by the common processes of the law. This case proceeded upon the theory of a trust. Tutwiler v. Land Co., 89 Ala. 391, was a case where the stockholder filed a bill to enjoin a sale of his stock on account of a failure to pay calls, and to .have the affairs of the corporation settled, and an account stated. A demurrer was sustained, and the complainant appealed. The case was affirmed, and the court seems to have held that the lien on the stock could have been foreclosed in chancery, citing the Westmoreland Case as authority. This case was followed by Crass v. Railroad Co., 96 Ala. 447. A bill was filed to enforce a common carrier’s lien, and to require the defendants to interplead as to the ownership of the property which was in the carrier’s possession. The court said that it had no doubt that a court of chancery had jurisdiction to enforce the lien, again citing the Westmoreland Case and the authority quoted from Kent. It is fair to say that, while each of these cases alleges some other ground of jurisdiction than the mere foreclosure of a lien, the latter case indicates that a bill filed for foreclosure only would be sustained.
In Kenton Ins. Co. v. Bowman, 84 Ky. 430, a suit was brought to foreclose a mortgage on the property of the wife of Shinkle to the complainant. Shinkle held stock in the complainant company, and by an amended petition the complainant claimed a lien on that stock to secure this mortgage debt, or any part which should remain unsatisfied by the foreclosure of the mortgage. A decree of foreclosure was granted. In Brent v. Bank, 10 Pet. 596, executors of a deceased stockholder filed a bill to compel a transfer of stock for the benefit of the United States, it having been assigned by the testator as security for a debt due to the government. Counsel stipulated that, in case it was found that the bank had a lien upon the stock, the court might decree that the stock should be sold to satisfy it, which it did. In Bank of Kentucky v. Bonnie, (Ky.) 48 S. W. 407, an action was brought to. enforce a lien upon 'collaterals held in pledge by a bank, and also to enforce a statutory lien upon the stock of the debtor. It does not appear that the right to decree sale was questioned. In National Bank v. Tumbler Co., 172 Pa. St. 614, a bill was filed to compel a transfer of stock to a pledgee. The Tumbler Company filed a cross-bill to enforce its lien, which- was sustained, and the stock was sold to satisfy it. In the case of Farmers’ Bank of Maryland, 2 Bland, Ch. 394, an administrator filed a bill to compel the bank to apply stock dividends upon indebtedness due the bank from the intestate, and to sell the stock and apply the proceeds, and that only the deficiency after such application of dividends and sale of stock should be admitted as a claim against the estate.
It will be seen from the foregoing that, in nearly all of these cases, jurisdiction might have been sustained upon other grounds than that of foreclosure, and that the court might therefore, in order to do justice between the parties, have allowed a sale of the stock. Such was the case in Kenton Ins. Co. v. Bowman, 84 Ky. 430. The later case of German Nat. Banker. Trust Co., (Ky.) 40 S. W. 458, was a simple foreclosure bill, and sustains the practice on thea uthority of Kenton Ins. Co. v. Botuman. We have already seen that a similar course of decision is found in Alabama, the doctrine being based upon cases which were distinguishable. In Maryland the earlier case was not a foreclosure bill, but was a bill filed against the bank to compel an accounting and transfer of stock, on which the bank claimed a lien. In the opinion the lien was treated as a mortgage, and it is intimated that it might be foreclosed. Ultimately, the stock was sold. The subsequent case of Reese v. Bank of Commerce, 14 Md. 271, permitted a foreclosure of a lien on stock. In Brent v. Bank, 10 Pet. 596, the decree may be ascribed to stipulation, notwithstanding the fact that the bill was filed to compel a transfer. In Bank of Kentucky v. Bonnie the bill was filed to foreclose a statutory lien in conjunction with a mortgage on other property. In National Bank v. Tumbler Co., a bill was filed to compel a transfer; while in Be Morrison, 10 N. B. R. 105, the sale was under bankruptcy jurisdiction. In the case of Cairo, etc., R. Co. v. Fackney, 78 Ill. 116, in an action of assumpsit, broad language was used as to the jurisdiction of equity in.the enforcement of statutory liens, but it must be remembered that the lien involved there was a lien against a railroad.
We have yet to notice our own case of Citizens’ State Bank of Monroeville v. Kalamazoo County Bank, 111 Mich. 313, where stock was sold and proceeds applied upon a lien. This question was not discussed, and the decree was made upon a cross-bill, where the original bill was filed to compel a transfer of stock. The court had jurisdiction for another purpose, and, having jurisdiction for one purpose, was justified in doing complete justice between the parties.
It is manifest that there is confusion, in the law upon this subject. If it is true that equity has jurisdiction to enforce payment by foreclosure in all cases of statutory liens, it must be because of a difference between them and common-law liens, which we have not been able to discover,. or because of the force to be accorded to authorities comparatively modern, few of which are cases of foreclosure merely. If that is the rule, it will be hard to distinguish the present case from any other lien for labor, carriage, or storage. The log lien, which has been discussed, would be no exception; for, if chancery has ageneral jurisdiction to enforce liens, it is not lost by the addition of a statutory method of relief. Authorities are numerous in support of this proposition. So that, to our mind, the authorities, if there are such, that hold the statutory remedies are exclusive, recognize the want of jurisdiction in equity. We are of the opinion that resort to equity is neither necessary nor permissible in the majority of lien cases, and that the courts of law can deal with them cheaply and expeditiously. On the other hand, we have no doubt that equity, having jurisdiction for other purposes, may order sales of property for the satisfaction of liens, as was done in our own case already cited.
It is contended that such jurisdiction is shown by the bill in this case, but we think not. ‘It seems to be a foreclosure bill simply. It is urged that an accounting is necessary; but we think the bill does not show that complainant’s claim is not one that a court of law can deal with as well as any other case of open account. We see no opportunity for a multiplicity of suits, and the bill does not show that for any reason the remedy by judgment and execution is not adequate.
Counsel urge that they should have been given an- opportunity to amend, and the bill should not have been dismissed peremptorily. Under the case of Lamb v. Jeffrey, 41 Mich. 719, the complainant should have been given an , opportunity to amend its bill, if it desired it. We cannot assume that it did, and the record does not show ■ that it asked it, so far as we are advised.
We must affirm the decree, with costs.
Grant, C. J., Moore and Long, JJ., concurred. Montgomery, J., did not sit. | [
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] |
Grant, C. J.
Plaintiffs are attorneys, bringing suit to recover for their services rendered for defendant in and about a suit brought by him against the Grand Bapids Veneer Works. Defendant was defeated in that suit in the circuit court, appealed it to this court, and obtained a reversal. Barrett v. Grand Rapids Veneer Works, 110 Mich. 6. The case was again tried in the circuit, resulting in a verdict and judgment for plaintiff for $6,198.40, and costs, taxed at $646. Defendant disputed plaintiffs’ claim, and this suit followed. Plaintiffs obtained a verdict and judgment for $1,130.50. The testimony, so far as is material, will be stated in connection with the points determined.
1. Defendant requested the court to direct a verdict for him, on the ground that the action was prematurely brought. This request was based upon the contract for services as stated by plaintiffs, — that they were to receive no pay for their services until a judgment was obtained and the case settled. A settlement of the case was made on May 17, 1897, and a check of the veneer company for the amount given to its attorneys, to be paid to Mr. Barrett. Meanwhile the dispute arose over the amount of plaintiffs’ claim for services. Plaintiffs had employed other attorneys, and were endeavoring to obtain the money. Under these circumstances, the request was properly refused.
2. There was evidence tending to show that plaintiffs refused to take the case upon commission, but agreed to charge nothing unless they obtained a judgment, and, if they obtained a judgment, were to receive what their services were worth. Several witnesses were asked to state what would be a reasonable charge for plaintiffs’ services, rendered “with the express understanding, that, unless they finally recovered judgment in the case, they were to get nothing.” This testimony was incompetent. They agreed to charge what their services were worth. They were worth no more and no less because of the agreement to charge nothing unless they were successful. A carpenter or plumber or machinist who ¿grees to do a certain piece of work upon the agreement that, if he does not accomplish the purpose in view, he'shall receive nothing, but, if he does, he is to receive what his services are worth, can recover no more than their actual worth. The value of his services is not enhanced or lessened by the contingency. An agreement made by a lawyer stands upon no different basis.
3. The case of Barrett against the veneering company was tried before Judge Adsit. Plaintiff Walbridge was permitted to testify that he told Barrett that Judge Adsit had told Mr. McAllister that plaintiffs ought to have half of the judgment as a compensation. The sole ground upon which plaintiffs defend the competency of this evidence is that they had a right to show what inducement and influence they had used with defendant to bring about an adjustment without litigation. We cannot concur in this view. It was immaterial what efforts had been made to adjust their differences. The attempt had failed, and the sole questions were, What was the agreement, and how much were their services worth ? The opinion of the judge who tried the case, though hearsay, might have great influence with the jury.
4. On cross-examination defendant testified that the balance due the plaintiffs was about $350. He was asked if he had not claimed it to be $526. He replied that ,he had not,'and denied that he had ever tendered “that amount in court.” Plaintiffs’ counsel then handed him a written offer of judgment filed in the case, made under 2 How. Stat. § 7372, which provides: “If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence,” and asked if he ever made them an offer of $526. After objection and exception the witness replied: “Under certain circum stances, I did; yes, sir.” The offer was not read to the jury, and counsel offered it to contradict his statement that he had never tendered that amount in court. The entire subject was brought out upon cross-examination. The jury must have understood that this was a written offer, and contained the tender of the amount. It was as effectually before the jury, and just as damaging, as though the written document had been offered in evidence. It was clearly incompetent.
5. Some attorneys testified as experts to the value of plaintiffs’ services. Defendant requested the court to charge:
“You are the judges of the value of plaintiffs’ services. The opinions of the lawyers who have testified as to such value are not conclusive, but merely advisory. If you find it necessary in this case to pass upon the question of the value of any of the services, you, as jurors, must use your own judgment in determining such value, taking into consideration all the evidence in the case bearing thereon.”
The court refused this request, and instructed the jury that they must determine from the sworn evidence in the case how much was justly due. Had there been no testimony of the value of plaintiffs’ services aside from that of the attorneys, the case would undoubtedly have been ruled by Wood v. Barker, 49 Mich. 295; but there was other evidence bearing upon the value of the services. Bills had been rendered amounting to less than that claimed upon the trial. There were conversations between plaintiffs and defendant, and also agreements for per diem charges. The bill of exceptions which plaintiffs had prepared was in evidence, together with their statement of the time spent in preparing it. Under these circumstances, the rule in Wood v. Barker was not applicable, and the court should have instructed the jury that the opinions of the attorneys were not conclusive. 2 Jones, Ev. § 389; Moore v. Ellis, 89 Wis. 108; Johnson v. Railroad Co., 37 Minn. 519.
6. Mr. EL E. Walbridge, an attorney, and brother of plaintiff Walbridge, had assisted upon .the first trial and in preparing the case for the Supreme Court. Defendant had negotiations with him in regard to assisting and taking the main management at the second trial. These negotiations fell through. Mr. H. E. Walbridge was permitted to testify to these negotiations, and to produce certain letters passing between him and defendant. They had no relevancy to the issue involved in this case, and should have been excluded. They contained statements which might have prejudiced the defendant. It was competent for Mr. Walbridge to testify to the time spent in preparing and trying the case, his knowledge of what plaintiffs did, and give his opinion of the value of the services.
Other objections are raised, but we find no error in them.
Judgment reversed, and new trial ordered.
The other Justices concurred. | [
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Long, J.
This action is brought upon a promissory note of $400, bearing interest at 10 per cent. The note is dated September 26, 1893, and due in three years after date. The cause was tried before the court without a jury, and the court found the following facts and law:
“This action is brought upon a promissory note, of which the following is a copy: * * * This note was given to secure a loan of $400 obtained by Mr. Murray from the plaintiff. Mr. Murray paid to the plaintiff, prior to the commencement of this suit, sums amounting to $135. * * * The defense relied upon is usury, and defendant insists that under Act No. 156, Pub. Acts 1891, the entire interest is forfeited, and that the court must apply all payments made on the principal.
“(1) The act of 1891 makes a radical change in the policy of our law. The borrower now ‘ shall not be compelled to pay any interest,’ and ‘the court shall déclare the interest to be void.’ Those States having similar laws to our present statute appear to have followed the construction contended for by the defendant.
“(2) In accordance with these principles, I am compelled to apply the $135 upon the principal sum, and render judgment for only $265.”
Judgment was entered for that amount. Plaintiff’s counsel duly filed exceptions to the findings of law made by the court, but took no exceptions to the findings of fact. Plaintiff assigns error.
Section 1, Act No. 156, Pub. Acts 1891, provides that parties may stipulate in writing for the payment of interest not exceeding the rate of 8 per cent, per annum. It is provided by section 2:
“No bond, bill, note, contract, or assurance made or given for or upon a consideration or contract whereby or whereon a greater rate of interest has been, directly or indirectly, reserved, taken, or received than is allowed by law, shall be thereby rendered void; but in any action brought by any person on such usurious contract or assurance, except as is provided in the following section, if it shall appear that a greater rate of interest has been, directly or indirectly, reserved, taken, or received than is allowed by law, the defendant shall not be compelled to pay any interest thereon.”
By section 3 it is provided:
“ Whenever it shall satisfactorily appear by the admission of the defendant, or by proof, that any bond, bill, note, assurance, pledge, conveyance, contract, security, or any evidence of debt has been taken or received in violation of this act, the court shall declare the interest thereon to be void.”
The contention of plaintiff’s counsel is that the action was not brought to compel the defendant to pay any interest; that no interest was demanded or sued for; and that, in the absence of a statute providing therefor, voluntary payments of usury cannot be set off in an action on the debt.
The Revised Statutes of 1838 (page 160) fixed the rate of interest at 7 per cent., but permitted 10 per cent, if stipulated in writing. A contract reserving a greater rate was not thereby made void, but in an action thereon the defendant was to recover costs. It was further provided that “the plaintiff shall forfeit threefold the amount of the usurious interest so reserved, taken, or received, and shall have judgment for the balance only which shall remain due after deducting from the principal and lawful interest the said threefold amount.” This clause was repealed by Act No. 47, Laws 1843, and the following clause substituted: “The plaintiff shall have judgment for the principal and legal interest only.” The statute of 1838 also provided, by section 7, that “whenever a greater rate of interest than is allowed by law shall have been paid, the party paying the same may recover back threefold the amount of the excess of such interest so paid, by action of debt: Provided, that such action shall be prosecuted within one year from the time when such interest shall have been paid.” This section was also repealed by Act No. 47, Laws 1843. There was no change in the law upon this subject until Act No. 138, Pub. Acts 1887, was passed, which provided a rate of 6 per cent., with privilege to contract in writing for not more than 10 per cent. But in this act no forfeiture was declared. The statute under consideration declares no forfeiture, but expressly provides that the note, bond, etc., shall not be rendered void by reason of a greater interest charge being made. It is, however, further expressly provided that, in any action brought on such usurious contract, if it shall appear that a greater rate of interest has been reserved, etc., “the defendant shall not be compelled to pay any interest thereon.” It does appear that a greater rate of interest than allowed by law has been reserved in this contract. The only question, then, for consideration, is whether, by a judgment for the whole amount of the principal, the defendant would be “compelled to pay any interest thereon. ”
The plaintiff having taken no exceptions to the findings of fact, and no request for further findings having been made, we cannot refer to the testimony in the case, but must be governed by the facts found by the trial court. The court failed to find whether the payments made upon the note were for interest charges or were made generally upon the note. The burden was on the plaintiff to show the payments were made on the interest. The court below did not so find, and we must, therefore, presume that the payments were general. The rule is that, so long as any part of the principal debt remains unpaid, the debtor has the right to have all payments previously made applied by the court as so much paid on the debt itself. 27 Am. & Eng. Enc. Law, 963, and cases there cited. The statute of Illinois is substantially the same as ours. It declares all interest forfeited on usurious contracts. This statute was before the United States Supreme Court in Fowler v. Fquitable Trust Co., 141 U. S. 384. It appeared that the borrower paid the agent of the lender a commission of $100, which was held to make the note usurious. The statute provided that, if a higher rate of interest than 10 per cent, was taken, the lender should forfeit the entire interest, and could recover the principal sum only. Fowler, the appellant, contended that all payments of interest must be applied on the principal. The court, in passing on this question, said:
“ The result is that the recovery must be limited to the principal sum due the company. The statute declares, in respect to an usurious contract, that the lender shall only recover the principal sum due; in other words, that judgment shall be rendered only for that sum. But what are the rules for the guidance of the court in determining the principal sum due ? In Illinois, it is settled that a party making application to a court of equity for affirmative relief against an usurious contract is entitled to such relief only upon the condition that he shall pay or offer to pay the principal sum with legal interest. * * * It is equally well settled there that one who has voluntarily paid usurious interest cannot recover it back in an action at law. * * * But it is the established doctrine of the supreme court of that State that these rules have no application where the transaction has not been settled, and the lender sues to recover a balance due on the principal sum. In such a case, the borrower, being sued, !may have all payments made by him on account of interest applied in diminution of such part of the principal as remains unpaid. * *. * Such is the uniform construction of the statute which, in the case of usury in a loan, forfeits the whole of the interest contracted to be received, and permits a recovery only for the principal sum due. As there is no interest really due if the transaction be usurious, the right to recover interest being forfeited at the moment the contract of loan is consummated, whatever the borrower pays on account of the loan must go as credit on the principal sum; otherwise the usurer would get the benefit of his illegal contract, and the statute be rendered inoperative.”
Under the North Carolina statute, the entire interest is forfeited in usurious contracts, and the courts apply all payments of interest, though made as such, upon the principal debt. Moore v. Beaman, 111 N. C. 328; Gore v. Lewis, 109 N. C. 539. In Gill v. Rice, 13 Wis. 553, the supreme court of Wisconsin held that, where no direction had been given by the debtor, the law would apply a payment upon a usurious contract to the extinguishment of the principal sum loaned. The same rule is adopted in Stanley v. Westrop, 16 Tex. 200. In Bateman v. Blake, 81 Mich. 227, this court applied the rule that on usurious contracts the payments, though made as interest, must be applied upon the lawful debt, although the statute at that time avoided the excess of interest only.
In the present case we need follow only the rule that, the payments being made generally, the court was right in deducting the payments from the lawful debt; that is, from the principal of the note.
The judgment below must be affirmed.
The other Justices concurred. | [
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Long, J.
Complainants recovered a judgment against defendant William H. Palmer on March 30, 1895, for $226.10, and $20.50 costs. This proceeding is a judgment creditors’ bill to set aside certain deeds of conveyance made by Palmer to his wife, Mary M. Palmer. The case was heard in open court, and a decree made in favor of complainants, from which defendants appeal. The court filed a written opinion in the case, which sets out the facts upon which that court acted, as follows:
“ For several years prior to July 22, 1893, the defendant William H. Palmer had contested in the courts the proposed will of his mother, Rebecca Palmer. In this contest and the legal controversies arising out of it, the complainant Thomas E. Barkworth had been one of his attorneys. The complainant Charles A. Blair had also acted for him as attorney in some of the litigation arising out of the settlement of his mother’s estate. During the latter part of this time, and afterwards, the 'complainants were in partnership, as Barkworth & Blair. July 22, 1893, William H. Palmer and his sister, Annis Campbell (who was the proponent of the contested will), agreed upon a settlement of all questions growing out of the will and of their mother’s estate. One of the considerations of this settlement was that Mrs. Campbell give her brother, William H. Palmer, her note for $4,000, secured by real-estate mortgage.
“August 7, 1893, William H. Palmer owned real estate in the county of Jackson of the value of at least $17,000, and also had the note of $4,000 against his sister, Mrs. Campbell. At that time his indebtedness, actual or claimed, was as follows: To Barkworth & Blair, $736; to Williamson, a lumber dealer, a small amount not precisely shown by the evidence; to William R. Brown, a small amount not precisely shown by the evidence; to Thomas I. Daniel, $80.35; to Amon Stephens, $7,000; to Gale Raymond, $800. All these debts and claims were based upon contract. William H. Palmer admitted as correct the in debtedness to Barkworth & Blair, Williamson, and Brown, but disputed the claims of Daniel, Stephens, and Raymond. July 26, 1893, Stephens brought suit for his claim in the circuit court for the county of Jackson, claiming $12,000 damages, and on the same day sued out a writ of garnishment. In his affidavit for garnishment, he swore the defendant William H. Palmer owed him $7,000. July 29, 1893, Raymond began suit against Palmer, claiming $2,000 damages, and in the affidavit for garnishment sued out on that day swore that the defendant owed him $800. The summons in the Stephens case was served on Palmer July 26, 1893, and in the Raymond case on July 31, 1893.
“This was in brief the situation on August 7, 1893, when the defendant William H. Palmer made the conveyances of his teal estate which are assailed by the bill in this case as fraudulent. It is plainly apparent that if we assume that the note of $4,000 against Mrs. Campbell was an asset available to creditors at its face (of which there are grave practical doubts), and the claims of Daniel, Stephens, and Raymond should be established at the amounts claimed, or any sum approaching it, creditors could collect their debts only by recourse to the real estate. If his real estate should be placed beyond the reach of creditors, and the aggregate of their claims should finally be fixed at a sum in excess of what might be realized out of the $4,000 note, the creditors would be powerless to collect such excess. The conveyances in question were made August 7, 1893. By them the defendant William H. Palmer deeded all his real estate, of the value of at least $17,000, to Harriet L. Johnson (a mere intermediary ); the defendant Mary M. Palmer at the same time deeding all of her real’estate, worth about $2,500, to tbe said Johnson; and said Johnson, by previous understanding of all the parties, deeded all the lands conveyed to her by both deeds to the defendants, William H. Palmer and Mary M. Palmer, jointly, as husband and wife. Neither of these conveyances was recorded until July 10, 1894.
“In August, 1893, William H. Palmer paid Barkworth & Blair’s debt of $736. He has also since that time paid the debts of Williamson and William R. Brown. In the following fall he settled' the claims of Stephens and Raymond, paying each $100. Daniel’s debt has not been paid. He sued Palmer a year or more later in justice’s court, and recovered a judgment for the face of his claim, filed a transcript of his judgment in the circuit court, and has levied execution upon the lands in question. The debt which is the basis of complainants’ judgment and execution in this case arose between August 29, 1893, and May 23, 1894, which are the dates of the first and last items of their account. It will be observed that this was after the date of the deeds attacked as fraudulent, but before they were recorded. There is no doubt that both complainants gave credit to Palmer in the faith and belief that he still owned all the lands in question, and without any knowledge or notice of the conveyances assailed.
“The question is: Are the deeds of August 7, 1893, from "William H. Palmer to Harriet L. Johnson, and from Harriet L. Johnson to the defendants, as husband and wife (so far as covers the lands deeded to her by William H. Palmer), fraudulent and void as to the complainants ? The defendants insist that they are not, for the following reasons:
‘ ‘ (l) Defendants contend that the complainants stand in the position of subsequent, and not as existing, creditors, and, therefore, that these conveyances cannot be held fraudulent as to them without proof of actual intent to defraud. It is true that complainants’ debt arose after the conveyances were executed, but it arose before they were recorded, and before complainants had any knowledge or notice of their existence; and the credit was extended by the complainants in good faith, relying upon the supposed fact that the defendant Palmer was still the owner of the real estate conveyed. Under such circumstances, the rule is that if the conveyance in fact operated to defeat their claim, and that was its natural result, as was the case here, it is, in law, fraudulent, without proof of any actual intent to defraud. It is therefore unnecessary to determine whether Palmer, when he executed the conveyances in question, actually intended to defraud his creditors, either existing or subsequent.
“ (2) The defendants claim that these conveyances cannot be attacked as fraudulent, because they were made for a valuable consideration, the defendant Mary M. Palmer having in good faith, in consideration of William H. Palmer having deeded his lands, conveyed her own, of the value of $2,500, in the same manner. I am satisfied that this contention, as applied to the facts in this case, is incorrect, and that the fact of Mrs. Palmer having, as a part of the arrangement, placed the title of her own real estate in the same situation, affords no objection to the complainants’ relief.
“(3) It is also urged that the conveyances in question were not fraudulent, because defendant William H. Palmer retained in his hands sufficient property to pay in full all existing and contemplated creditors. As above stated, it cannot be said that Palmer retained in his hands sufficient property to pay in full all his debts. Whether the $4,000 note which he kept would have been sufficient depended upon the amount which the debts might after-wards be determined to be. The amount claimed against him was much more than $4,000. It is true that, as the amounts were afterwards fixed by settlement and judgment, their aggregate was less than $4,000. But this, I think, is not the proper test. To bring his case within this rule, Palmer must have kept in his hands for creditors enough of his assets to pay their debts at the full amount of the claims. He could not lawfully reduce his property by voluntary conveyance to an amount fixed by himself, but less than the face of their claims, and so put himself in a situation to say: ‘ If your debts are established at an amount less than the value of the property I have saved for you, you can collect; but, if they are fixed at a sum greater than that, you cannot collect the excess.’ Neither was it safe to assume that the $4,000 note against his sister, which he retained, would be as readily available to creditors as the real estate which he conveyed. The facility with which he might manipulate such an asset to hinder, delay, or defraud creditors whose claims he thought unjust is much greater than that with which he could have prevented their claims from being collected from the real estate which he could by these conveyances put beyond their reach. Indeed, it is not surprising that although he retained the $4,000 note in his hands, and the aggregate of his debts was finally fixed at much less than $4,000, Mr. Daniel, whose claim he disputed, has been unable to collect his debt by execution without recourse to the real estate conveyed. By these conveyances, if they are valid, Palmer has actually put himself in a position where an existing creditor, whose debt he was unwilling to pay, could not collect it by law. It must therefore be held that these conveyances are not safe from attack as fraudulent for the reason that, when they were executed, Dr. Palmer retained in his hands sufficient property to pay all his debts.
‘ ‘ (4) It is urged by defendants that the delay in recording the conveyances from August 7, 1893, when they were executed, until July 10, 1894, when they were recorded, was not a fraudulent act, and occurred because the taxes had not been paid, and in fact an attempt was made to record them promptly. Assuming this to be true, the legal situation is not changed. They were in fact not recorded until July 10, 1894. Complainants had no knowledge of their existence, and in good faith gave the defendant Palmer credit for the services which are the basis of their judgment in this case, in reliance upon the supposed fact that he still owned his real estate, and had not put it beyond the reach of creditors.
“(5) Defendants’ counsel claim (on brief) that neither Daniel, Stephens, nor Raymond were, on August ?, 1893, creditors of William H. Palmer, so as to be entitled to the benefit of our statute as to fraudulent conveyance's of real estate, for the reason that their claims were disputed claims for damages. This is a misconception. The principle invoked is not applicable to a case like this, where all the debts and claims in question were based upon contract, and the only question as to any of them was whether they existed at all, and, if so, their amount.
“ The result reached is that complainants are entitled to the relief prayed for in their bill, with costs; and decree to that effect, with appropriate formal parts, may be prepared and presented for settlement.”
We think the court below was in error in its conclusion. That court was unable to find from the evidence that there was any actual intent to defraud the complainants, who were subsequent creditors; or, at least, the court did not find any such actual intent, but placed its finding in favor of complainants upon the ground that the credit was extended by complainants in good faith, relying- upon the supposed fact that defendant William H. Palmer was still the owner of the real estate conveyed; and that court said: “It is therefore unnecessary to determine whether Palmer, when he executed the conveyances in question, actually intended to defraud his creditors, either existing or subsequent.” This is not the rule in this State. In Cole v. Brown, 114 Mich. 396, 400, the rule is laid down, after a careful .consideration of the cases in this and other States, that—
“While no fraudulent intent is necessary to set aside voluntary conveyances as to existing creditors, it must be established in order to set them aside as to subsequent creditors. In other words, actual fraud must be shown, and, as well, the specific intent to defraud the individual subsequent creditor complaining, or subsequent creditors generally.”
See, also, Michigan Trust Co. v. Adams, 109 Mich. 181; Wooden v. Wooden, 72 Mich. 353; Campbell v. Remaly, 112 Mich. 214.
We have carefully examined the evidence in the case, and are of the opinion that it cannot be said from it that the defendants intended, when they made these deeds, to defraud the complainants, or any subsequent creditor. In order for the complainants to recover in this case, they should have shown that, at the time when these deeds were made, there was an express design on the part of the defendants to subsequently obtain credit from the complainants, and defraud them. No such showing is made, and the decree cannot be upheld.
The decree must be reversed, and a decree entered in this court dismissing complainants’ bill, with costs of both courts.
The other Justicés concurred. | [
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Grant, C. J.
(after stating the facts). It is con ceded that at the common law a testator may delegate to another the power to choose his executor. Two questions are therefore before us for determination: (1) Does the statute take away this power of delegation? (2) Does the language of the will amount to a delegation of the power ?
1. It is urged that our statute makes no provision for the appointment of an executor unless actually named in the will. This point was raised in Hartnett v. Wandell, 60 N. Y. 346 (19 Am. Rep. 194). It was held that the statute of that State did not abrogate the common-law power to delegate the appointment. There is nothing in our statute which shows any intention to abrogate it. There is no difficulty in carrying out the will of the testator in such case, and the probate court contains all the machinery necessary for the purpose. There may be good reasons in the mind of a testator for not making the designation himself. The person appointed by the will, might die before the probate of the will, and for this reason he might choose to repose the power in some prudent person, as the judge of the court having authority in such matters. Such right cannot be held to be abrogated except by express enactment or by necessary implication. Neither is found in our statute.
2. We’are of the opinion that the will conferred upon the judge of probate the power of appointment. One of the definitions of the word “leave” is “to confide, commit, or refer.” Cent. Diet. We find no case involving a provision identical with this. The case, In re Goods of Cringan, 1 Hagg. Ecc. 548, contained the following provision: “It is left to the legatees mutually to appoint two intelligent and trustworthy persons to execute this deed. ” The power to thus appoint was sustained. See, also, State v. Rogers, 1 Houst. 570.
It is, however, urged that the language of the will was used with reference to the statute, which provides that administration of the estate of a person dying intestate shall be granted to the widow or next of kin, or both, or such person as they may request to have appointed, if suitable and competent to discharge the trust. 3 How. Stat. § 5849. This statute applies solely to cases where persons die intestate, or have left wills without any provisions for the appointment of executors, and not to cases of delegated authority.
3. Counsel also contends that the real parties attempting to sustain the appointment of Mr. Brown are the heirs of Mrs. Merrifield, and that, she having died first, the personal property bequeathed to her is intestate, and therefore they have no interest in the estate. In support of this, counsel cites Allison v. Smith, 16 Mich. 405. In that case a college was the residuary legatee. The statute required such wills to be executed at least two months prior to the death of the testator. The question was whether the will was executed in accordance with the statute. It was held that this question properly arose upon the hearing for the probate of the will, and not upon the distribution of the property under it. No such question is here presented. All concede that this will was properly executed, and should be probated. The sole question is, Who is entitled to execute a valid will? The property rights under it will arise for determination during its execution, but cannot be litigated in this proceeding. In re Nugent's Estate, 77 Mich. 503.
A further reply to this contention is that Mr. Brown is entitled to defend his right of appointment; and, while the same attorneys who appear for the heirs of Mrs. Merrifield appear also for him, there is nothing to indicate that he is acting in collusion with them, or that he is not in a legitimate manner seeking to defend his own right. An executor, whether named in the will or by delegated power, has the right to defend in the courts his authority to act.
The judgment of the circuit court will be reversed, and the order of the probate court appointing Mr. Brown affirmed. Let it be so certified to the probate court.
The other Justices concurred. | [
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Grant, C. J.
The plaintiff sued defendant for slanderous words claimed to have been uttered as a witness in a criminal suit against plaintiff. The suit was in justice’s court. The testimony was not reduced to writing, and the witnesses for the plaintiff do not agree as to the manner in which the alleged slanderous words were uttered, or as to the exact words uttered. According to some of them, the slanderous words were uttered in response to direct and leading questions put by plaintiff’s attorney on cross-examination. For this, therefore, ho action will lie.
The testimony of plaintiff himself is that, after defendant had testified that plaintiff’s reputation for truth and veracity was bad, either plaintiff’s attorney or the defendant’s attorney asked him what he based his opinion on, and that his reply was: “ He is a thief; he has stole my paint clothes, paint brushes, and part of a harness;” and that he had had plaintiff arrested for stealing these things from him. The other witnesses agree that it was the plaintiff’s own attorney who asked him the question, and this must be taken as the fact.
Assuming that the law sustains an action for slander against a witness, we are of the opinion that plaintiff has not brought his case within the rule of those authorities which sustain the right of action. The witness, who is not a lawyer, is not cognizant of the rules of law, and cannot, for himself, readily determine the materiality or responsiveness or pertinency of his answers. He is unfamiliar with the rules of evidence. Public policy requires that he should not be trammeled with fear of a prosecution for slander. The question was a general one. It cannot be said that it is unnatural that the witness should believe that this affected his reputation in the community. The rule is not so hard as to say that the witness, in reply to a general question, where he is not cautioned by court or counsel, must, at his peril, determine the materiality and responsiveness of the question. The English courts and some American courts hold the witness to be absolutely privileged. Some of the courts of this country hold the privilege to be a conditional one. Under the view we take of the case, it is unnecessary to determine this ques tion, which is before this court for the first time. All the courts which hold the privilege to be conditional are very-careful to protect the privilege, and to confine the right of action within very narrow limits. Barnes v. McCrate, 32 Me. 442; Calkins v. Sumner, 13 Wis. 193 (80 Am. Dec. 738).
The verdict being one which the court should have directed, it is unnecessary to discuss the errors alleged.
Judgment affirmed.
Hooker, Moore, and Long, JJ., concurred with Grant, O. J. | [
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] |
Grant, C. J.
(after stating the facts). We think the ruling of the circuit judge was correct. The agreement settled all the differences between the parties except the price of the work, and left that as “the sole question” between them. The time for defendant to speak of any such claim was when the contract was made. If defendant desired to have its logs delivered earlier, it should have notified plaintiff.
It is suggested that testimony upon the subject of the recoupment was competent in determining the reasonableness of the charge. The cost of rafting, driving, and booming certainly could have been no less after September 1st than before. The reasonableness of the charge de pended upon the cost of the work and a reasonable profit. No claim is made that the work was not well done, but only that it was not done within the time it ought to have been done.
Judgment affirmed.
Montgomery, Hooker, and Moore, JJ., concurred. Long, J., did not sit. | [
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] |
Long, J.
Respondent was convicted of embezzlement. At the time the offense is claimed to have been committed, the respondent and his father, Andrew J. Gould, were doing a real estate and loan business in the city of Jackson, under the firm name of A. J. Gould & Son, but, previous to the payment made upon which the respondent was convicted, the father had removed to Tennessee, and the respondent continued the business under the firm name. It appears that several years ago one Alfred K. Rawson purchased certain real estate in the city of Jackson, taking the title in the name of his wife, Sylvia A. Rawson. Rawson and his wife moved to Missouri some eight or ten years ago. Mr. Rawson put the property into the hands of A. J. Gould & Son, who consummated a sale of it in June, 1890, to William H. Elliott, for $2,000, the sum of $1,200 being paid in cash, and the $800 secured by note and mortgage running to Sylvia A. Rawson. The money and note and mortgage were forwarded to Alfred 3L Rawson. May 3, 1893, Sylvia A. Rawson executed a discharge of the mortgage, and Mr. Rawson forwarded it to A. J. Gould & Son. On May 20th following, the respondent delivered this discharge to Mr. Elliott, and received from him $203, the balance of the money due; all the rest of the money due on the mortgage having been paid by him to A. J. Gould & Son prior to May 3, 1893. The $800 was never paid over either to Mr. or Mrs. Raw-son. On July 26, 1893, the respondent wrote Mr. Rawson that Mr. Elliott would like to have the mortgage run until September. On October 20, 1893, he again wrote Mr. Rawson, inclosing draft for $48, saying, ‘ ‘ It being for a year’s interest on the Elliott mortgage. ” Mr. Rawson died in March, 1897. In August of that year, Mrs. Raw-son came to Jackson, and demanded the interest on the mortgage, which was paid by the respondent. She then made a demand for the principal, and, the respondent failing to pay it, she made complaint against him for embezzlement, setting up that he was her agent in the collectioñ and misappropriation of the money. The case was submitted to the jury under a very fair charge. A verdict of guilty was returned. The case comes to this court on exceptions before sentence.
1. Counsel for respondent claims that the proofs negative the theory that respondent was the agent of Sylvia A. Rawson, and show that he was the agent of her husband, Alfred K. Rawson.
The mortgage collected was in the name of Sylvia A. Rawson, belonged to her, and she executed the discharge thereof. This mortgage was drawn by the respondent himself, and the discharge came to him executed by Sylvia A. Rawson, and he delivered it to Elliott, and received the money thereon. It clearly appears that, while Alfred K. Rawson was doing the business for his wife, ■she owned the mortgage, and that in the collection of it the respondent acted for her, and was her agent.
2. It is said that the proofs do not disclose any act of respondent showing that the money was converted by him on the date charged in the information, or within six months thereafter, and that, therefore, the respondent should have been discharged.
2 How. Stat. § 9421, provides that, on prosecutions for embezzlement, “evidence may be given of any such embezzlement committed within six months next after the time stated in the indictment.” In People v. Donald, 48 Mich. 491, — being a prosecution for embezzlement, — it was held that under this statute an information for embezzlement could not be sustained by evidence of acts committed before the time stated in the information. This construction was given by the supreme court of "Wisconsin to a similar statute. State v. Cornhauser, 74 Wis. 42.
On the trial, after the people had rested, counsel for respondent moved the court that the respondent be discharged, for the reason that no evidence had been given showing any act of embezzlement on August 24, 1893,— the date charged in the information, — or within six months thereafter. The court thereupon permitted the prosecution to read in evidence the following letter:
“Jackson, Mich., October 20, 1893.
“A. K. Rawson, Esq.,
“Jefferson City, Mo.
“ Dear Sir: We herewith inclose draft on New York for $48, less exchange, being for a year’s interest on the Elliott mortgage. Very respectfully,
“A. J. .Gould & Son.”
The court overruled the motion to discharge, and charged the jury:
“By the undisputed testimony, this money, if paid to the respondent at all, was paid on May 20, 1893, before the time charged in the information. Now, I charge you that if you find from the evidence, beyond a reasonable doubt, that this money was in fact the money of Mrs. Rawson, and that respondent was her agent; that the money was paid to him as her agent, and was received by him as such; and that he held the money, as such agent of Mrs. Rawson, on August 24, 1893, or within six months thereafter, and the embezzlement was committed of it by him on August 24th, or within six months thereafter, and while the relation of agent to' Mrs. Raw-son continued, and the conditions I have stated existed, * * * that the case here should be regarded as complete, notwithstanding the money was so paid to and received by the respondent before August 24, 1893. * * * If you are satisfied from the evidence, and beyond a reasonable doubt, that the appropriation of the money to his own use, with the intent essential to constitute the crime of embezzlement, occurred after the 24th day of August, and within six months after that date, you should regard this essential element of the crime charged as being well proven.”
The only objection which counsel makes to this charge is that there was no evidence in the case to support it, or in any way to show the embezzlement after August 24th.
We think the letter of October 20, 1893, connected with what had been written by respondent in July previous, has a tendency to show that fact. The létter óf July shows that respondent may have had it in mind to appropriate the money to his own use, as he there stated that Elliott desired to have the time extended on the mortgage till in September, when, in fact, he had already received it. Had Mr. Rawson called for the payment of the money at that time, it is possible it might have been paid over to him by the respondent. But on October 20th he had evidently made up his mind to appropriate it, and sought to put off inquiry by sending the interest.
Counsel for respondent claims, however, that the letter of October 20th was not identified as having been written by respondent. We have carefully examined the testimony of Mr. Elliott, and think the identification of the letter is sustained by that.
The court below is advised to proceed to judgment.
The other Justices concurred. | [
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] |
Montgomery, J.
This case has once been before the court, and for a statement of the case we refer to our decision on the former hearing, reported in 111 Mich. 38. On a second trial of the case at the circuit, a verdict was rendered for the estate, the jury finding an account stated. The case is now before us for review of rulings made on this trial.
In December, 1890, the deceased rendered an account of sales and expenditures to claimant. The deceased continued to reside at Big Rapids until October 1, 1891, when he removed tq*West Superior, Wis. He returned to Big Rapids on one or more occasions for a visit before his death, which occurred in March, 1893. It was a matter of dispute whether the claimant objected to the account from the time it was rendered up to the time of the death of Mr. Wilcox. The claimant testified that he did object to the statement to Fred Wilcox, son of deceased, the next day after it was furnished. Fred Wilcox, on the other hand, testified that he rendered the statement’to the claimant, and that no objection was made to it, except that he (claimant) thought some of the shingles were sold ■too low.' On this trial the claimant’s demand rested upon the theory that all the shingles were not accounted for. The claimant’s counsel assign error upon an instruction of • the circuit judge as follows:
“When the account was rendered, it was the duty of the man to examine the account, and if he did not understand it, or raised any objection to it, within a reasonable time he should have stated his reasons to the party who rendered the account. Now, 30 days would be a reason able time. And if he retained the account longer than a reasonable time in which to make the objection, and made no objection to it, then the law implies an assent on his part, and both parties are bound. He impliedly said, by not objecting, ‘The account is correct, and I acquiesce in. the statement. ’ ”
It- is contended that the court instructed the jury that 30 days was a reasonable time, as matter of law, and it is contended that what would be a reasonable time to object to the account was a question for the jury. This instruction may not have been strictly accurate. We do not find it necessary to hold that the retention of an account rendered for 30 days without complaint will in all cases, as matter of law, constitute such account an account stated. But in this case, if the testimony of claimant was accepted, he objected to the account promptly. If it was to be rejected, there was no evidence of any objection during the lifetime of Mr. Wilcox, a period of nearly three years, nearly one year of which time both parties were residents of the same town. This certainly affords a very strong presumption of the accuracy of the account, and, when taken in connection with the fact that no distinct error in the account was shown, should be held controlling. 1 Am. & Eng. Enc. Law (2d Ed.), p. 451, note 5, p. 452, note 1.
A book of account of deceased was admitted in evidence. It is contended that the proper foundation was not laid. It is in evidence, however, that the statement above referred to was taken from the book; that, at the time the statement was rendered, the claimant sat down, with book and statement, and looked the book through. This testimony rendered the book competent as in the nature of an admission.
Examination of the record convinces us that no error was committed to the prejudice of claimant.
The judgment will be affirmed.
The other Justices concurred. | [
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] |
Moore, J.
On the morning of the 13th of October, 1894, the dead body of Willard N. Johnson, with four bullet holes in the heart, was found in the St. Joseph river, near the Farránd bridge, in the county of St. Joseph. The respondent is convicted of his murder, and has been sentenced to state’s prison for life. He brings the case here by writ of error.
The record contains 75 assignments of error. It is not necessary to discuss many of them, though they have all had careful examination. Before the trial there was an application for a change of venue, upon the ground that respondent could not have a fair trial in St. Joseph county, because of the prejudice against him. Affidavits and counter affidavits were filed. The court denied the application. The record shows that a jury was obtained without serious difficulty, and before respondent had exhausted his peremptory challenges. After the respondent was convicted, a motion was made for a new trial, and it was then averred that the court erred in denying the application for a change of venue, and it was also said respondent did not have a fair trial, on account of the public feeling, which manifested itself during the trial both in and out of the court-room, and because of the argument made by the prosecuting attorney. The statements contained in this application were supported by some affidavits, and were denied by many counter affidavits. The court denied the application for a new trial, and found that there was no serious difficulty in getting a jury, and that there was no evidence that the jury were improperly influenced within or without the court-room. In his disposition of the petition, he found:
“ Whenever recess or adjournment was taken, the peo pie in the court-room were required to remain in their places until the jury, had retired. While the jury were deliberating upon their verdict, officers of the court were stationed upon the ground outside of the court-house, to guard against any possible attempt on the part of any person to approach, influence, communicate, or interfere with the jury in any manner : and I find that the officers performed their duties faithfully, and that nothing transpired which could have prejudiced the respondent. There was no attempt during the progress of the trial, so far as I- am able to ascertain, to intimidate or interfere with the witnesses for respondent. There was no manifestation óf any such disposition in the court-room. The claim of counsel for respondent in this respect is not sustained. I find that the circumstances surrounding the trial support the integrity and purity of the verdict.”
There is nothing in the showing made in this court which leads us to doubt the correctness of the conclusions of the trial court. There is no such showing as leads us to the conclusion that the court erred in refusing a change of venue. 4 Am. & Eng. Enc. Law, 818.
The case was tried at the May term of court, in 1895. The application for a new trial was denied at the October term of court. In July, 1896, a motion was made to have the application for a new trial reheard, upon the ground of newly-discovered evidence. Affidavits were filed in support of the motion, and counter affidavits were filed. The motion was overruled. This was practically an application for a new trial, made more than a year after the case was tried. The statute contemplates applications for a new trial shall be made speedily. 2 How. Stat. § 9576; People v. Marble, 38 Mich. 309; Frazer v. Judge of Recorder’s Court, 112 Mich. 469. But, even should it be conceded this application was made in time, no such showing was made as.to indicate a wrong use of the discretion vested in the trial court in refusing a new trial.
Many assignments of error relate to' the admission of testimony. One of the expert -witnesses was asked, if a man having received wounds through the right side of his heart had hold of a rod or something with the left hand to steady himself, would it have a tendency to keep the body in an upright position longer than if he had not ? An objection was made to the question, which objection was sustained. Counsel were afterwards told they might take an answer to the question. They now assign error. We do not deem it necessary to discuss the matter further than to say, if error was committed in sustaining the objection, it was afterwards cured by permitting an answer to the question. Stanton v. Estey Manfg. Co., 90 Mich. 12.
Some testimony was permitted to be given, when counsel for respondent objected that it was immaterial, which testimony was afterwards stricken out by the court. It is now urged that, as the court struck out the testimony, it must have been immaterial or incompetent, and, having been allowed to go to the jury, it worked prejudice to the respondent. Except as we shall discuss the testimony more in detail, it may be said of this testimony it was not of a character that could do any harm to the respondent, and might well have been left in the case. It was evidently stricken out of the case by the trial judge because of a desire to leave nothing in the case which could be possibly prejudicial to the respondent. When the court struck out this testimony, he cautioned the jury they must not consider it at all.
After the body was found, a coroner’s inquest was held. The respondent was present, and talked a good deal about Mr. Johnson, and the manner of his killing, and about offering a reward for the murderers, and about his relations with Mr. Johnson. Witnesses were asked about this conversation, and related it in detail. A witness was allowed to state as follows:
“We were talking about folks feeling timid around where corpses were. Tie said they didn’t affect him. Of course, he was a little bit affected being around Johnson’s, the way he was killed. He said he had been in a room, and moved around and hit them, when he was alone. He told about going out about 12 miles. He said an old man had been turned over to the school, and he said they went out, and got him, and took and tied his hands together and his feet together, and set him up in a buggy strapped to the seat, and they put a hat on his head, and everybody they met thought he was a living man sitting in there. Dell Swartz is studying for a physician. He showed us a letter that he got from the professor of the college, but I don’t remember where.”
It is said this was a serious error. It was the theory of the people that respondent had lived with the deceased, who was his brother-in-law, for some time; that shortly before the murder, in the absence of Mr. Johnson, his wife, who was an invalid and a sister of the respondent, took their little girl, and, with the respondent, left her husband’s house, and went to live with her father, 20 miles or more from the home of Mr. Johnson. It is claimed Mr. Johnson went to see his wife, and, when he arrived at her father’s, the farm bell was rung for the respondent, before Mrs. Johnson would see her husband. It is said Mr. Johnson was not allowed to see his little girl; that there was ill feeling between the respondent and Mr. Johnson; that, after Johnson left the home of respondent’s father, he stopped at the house of Mr. Tunison; that the respondent, assisted by some one else, waited for him near a piece of woods, when Mr. Johnson was shot dead; that his body, horse, and cart were taken to the woods until people were not likely to frequent the roads, when his body, seated in a buggy, was conveyed several miles, to the Farrand bridge, where it was thrown into the river, and a number of shots fired upon the bridge, and that at the same time a revolver was thrown into the river, for the purpose of conveying the impression that Mr. Johnson had committed suicide. It is the. claim of the people that rigor mortis had set in when the body was thrown into the river; that the legs were drawn up, and in the position they would be if the body had stiffened while seated in the seat of a buggy, strapped to the back of the seat; that.the arms were also rigid, and partly drawn back, one of the hands being nearly as high as the head. It is claimed, after the body was thrown into the river, the respondent and another man took the horse and cart belonging to Mr. Johnson to the home of Mr. Johnson, a number of miles away, leaving them in the barnyard, there being in the cart Mr. Johnson’s hat, overcoat, and rubber coat; that the inmates of the house were awakened by the horse. It is claimed that, after the horse and cart were left at Mr. Johnson’s, the respondent returned to his home. It is the claim of the people that the respondent drove a gray horse belonging to Dr. Peas, and arrived home very early in the morning. The people gave testimony tending to support their theory of the case. The respondent denied having any knowledge of what occurred to Mr. Johnson after he left the house of Mr. Swartz; and it was the theory of the' defense that Mr. Johnson had committed suicide, but that, if he was murdered, it was done without the knowledge of the respondent, and by some one else. Testimony was given showing respondent did not leave his father’s house that night. In view of the theory of the people and the testimony in support of it, the testimony in relation to the finding of the body, its position in the stream, the heels dragging on the bed of the stream, the body being partially erect, the head and hands nearly out of the water, the rigid condition of the legs and arms, the fact that this conversation occurred soon after the tragedy, that it was a voluntary talk in connection with the circumstances attending the death of Mr. Johnson, we think it was relevant evidence, and it was for the jury to decide what effect should be given it in connection with all other testimony. Bradner, Ev. (2d Ed.) 5, 6.
We do not deem it necessary to discuss the other assignments of error in relation to the admission of testimony.
Exceptions were taken to the argument of the prosecuting attorney. It is said he misstated the testimony to the jury. As to some of the instances cited by counsel, an inspection of the record shows the statements were fully justified by the evidence. In another instance there was a disagreement between counsel as to what the record contained, and the court caused the stenographer’s minutes to he read to the jury. The judge cautioned the jury against relying upon anything except the testimony in relation to questions of fact.
It is claimed the prosecuting attorney expressed his opinion of the respondent in such a way as to prejudice the jury, and to bring the case within People v. Montague, 71 Mich. 447; People v. Evans, 72 Mich. 367; People v. Lange, 90 Mich. 454; People v. Kahler, 93 Mich. 625. The prosecuting attorney was commenting upon the testimony of a witness, and it is claimed used the following language: “That is either true or false, and, if it is false, John Derhammer is no better than the man we are trying here today.” The attention of the court was not called to this language until the motion for a new trial was inade. The reporter’s minutes show the language as quoted. The prosecuting attorney and 11 of the jurors made affidavit that the language quoted was .not all that was said, but the words “if he is guilty” were used by the prosecuting attorney. The circuit judge, in-disposing of the question, finds that the arrangements of the courtroom and the relative position of the parties will readily account for the failure to correctly report the remarks of counsel. The fact that no objection was made until the minutes of the reporter were written qut is strongly corroborative of the accuracy of the recollection of the prosecuting attorney and the jurors.
Complaint is made of the use made by the prosecuting attorney of the case of Com. v. Webster, 5 Cush. (Mass.) 295 (52 Am. Dec. 711); Id. 386. The record shows that the counsel for respondent called the attention of the jury to this case, and used it in behalf of his client; and that the prosecuting officer was replying to his argument. As soon as the objection was made to the argument, the court stopped it, and told the jury in very explicit terms that they must not be influenced by .the statement of counsel in regard to the Webster Case. If what was said by the counsel was improper,— and, in view of the way the question came up, I am not prepared to say it was, — the court at once prevented any mischief being done by instructing the jury not to regard the remarks made. The zeal of counsel in an important and closely contested criminal case is apt to lead them to extreme expressions; but where the court directs and controls the trial, and promptly checks the attorney when he attempts to go further than his duty calls him, and properly instructs the jury to disregard the improper remarks, the verdict should not be set aside because, before this is done, an improper sentence has dropped from the lips of counsel. People v. Hess, 85 Mich. 128; People v. Pope, 108 Mich. 361.
Exception is taken to the instruction of the court as to what constitutes a reasonable doubt. Counsel say:
“The difficulty grows out of the fact that the term ‘reasonable doubt’ is exceedingly difficult to define, except in a negative way. There is no better positive definition than the expression itself, and when you commence to explain to a jury what a reasonable doubt is, and what constitutes a reasonable doubt, and what does not constitute a reasonable doubt, you are liable to leave in their minds a ‘reasonable doubt’ as to what a reasonable doubt is.”
The charge of the court upon that subject is as follows:
“A reasonable doubt,, gentlemen, is a fair doubt, growing out of the testimony of the case. It is not a mere imaginary, captious, or possible doubt. There are very few things in this world outside of mathematics, gentlemen, that are capable of demonstration. But it is a fair doubt, based upon reason and common sense. It is such a doubt as may leave your minds, after a careful examination of all the evidence in the case, in that condition that you cannot say that you have an abiding conviction to a moral certainty, from the evidence in the case, of the truth of the charge here made against the respondent. Now, apply this rule to this case and to this respondent. If you should become satisfied from the evidence that he is guilty of murder, so that you can say: ‘ There may be a possible doubt, but there is no reasonable doubt; I am morally satisfied and cex-tain from the evidence in tlxe case that the respondent is guilty,’ — then you should say so by your verdict.”
This charge is in entire harmony with the decisions of this court. People v. Finley, 38 Mich. 482; McGuire v. People, 44 Mich. 286 ( 38 Am. Rep. 265); People v. Cox, 70 Mich. 257; People v. Flynn, 96 Mich. 276.
Error is assigned because the court refused to give certain of the requests to charge presented by counsel for respondent. Instead of reading these requests, the court gave the substance of all of them which were material and proper to be given, in a general charge of exceptional clearness and fairness, in which all of the rights of the respondent were carefully guarded. Such a course, instead of being error, is to be commended. Fraser v. Jennison, 42 Mich. 206; Keables v. Christie, 47 Mich. 594; People v. Sligh, 48 Mich. 54; Miller v. Sharp, 65 Mich. 21.
The court was asked to charge the jury that the evidence in the case was not sufficient to warrant a conviction. A long and able argument is made to convince us that this request ought to have' been given. We have already sufficiently alluded to the different theories held by the people and by the respondent. If the jury believed the testimony offered by the people, in connection with the circumstances presented, it was not an unfair inference from all the proofs offered by the people that Mr. Johnson was murdered, and by the respondent. On the other hand, if the testimony offered on the part of the respondent is believed, he should have been acquitted. The case was a proper one to submit to the jury.
We discover no error in the case. The judgment is affirmed.
The other Justices concurred. | [
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Montgomery, J.
This is an action of assumpsit upon an express warranty in the sale of certain storage tanks by defendant to plaintiff. The tanks were purchased by plaintiff for the purpose of storing cider in them. This purpose was known to defendant. There was conflict in the testimony as to the fact of warranty. The jury found with the plaintiff. The plaintiff’s testimony on the subject of damages tended to show that, after the tanks were furnished, he caused one of them to be filled with cider, and, when this tank was nearly filled, the lug on the lower hoop of the empty tank broke. Plaintiff sent word to the defendant, requesting Mm to come and fix it. This the defendant refused to do, but plaintiff testifies he caused the lug to be fixed, and a few days later- met the defendant, who again assured him that the tanks were all right; that the break was probably caused by a flaw in the iron, and that it would not occur again. The plaintiff then proceeded to fill both tanks. Some two months later certain of the lugs on the tank first filled broke, the staves spread, and the contents of the tank, 5,000 gallons of cider, were lost. Plaintiff recovered, and defendant brings error.
The defendant contends that the action is one sounding in tort, and that as it originated in justice’s court, and the amount claimed is more than $100, no jurisdiction was obtained. The fact is, however, that the declaration is in form in assumpsit, and it follows that the defendant’s objection is without force, unless we accept the view of defendant that, for damages which are consequential, the only remedy is in case. We do not find this contention supported by authority. On the contrary, the rule is that the plaintiff may in some cases choose between assumpsit and case, but where there is an express warranty the plaintiff may in assumpsit recover adequate damages. 28 Am. & Eng. Enc. Law, 823; Dushane v. Benedict, 120 U. S. 630; Carter v. Glass, 44 Mich. 154 (38 Am. Rep. 240), and cases cited.
The only remaining question which merits discussion is whether the instructions properly presented the case to the jury. Defendant’s counsel argue with much force that plaintiff discovered the defective character of these tanks in time to have avoided the loss of the cider by the exercise of ordinary caution. Upon full consideration, we are, however, of the opinion that it was a question for the jury, under proper instructions, as to whether the plaintiff, as a reasonably prudent man, should, by the bursting of a lug-on the empty tank, have taken warning, and removed the cider from the other tank. In reaching this conclusion we take notice of the fact that the lug which broke was not on the tank the bursting of which afterwards caused the damage, and, further, of the fact that the defendant after-wards assumed (according to plaintiff’s testimony) to account for the first break, and assured plaintiff that the tanks were all right again. The question was for the jury. Was it properly submitted? Defendant submitted numerous requests along this line, which were not given in the language of counsel, but the circuit judge charged the jury on his own motion as follows:
“Of course, the plaintiff was bound to use good faith. If, after purchasing the tanks, he knew or learned of any defect in the construction of the tanks, it became his duty to communicate that to the defendant, or to take reasonable steps to repair them, and to use ordinary diligence,— that care which a man of ordinary intelligence and care would use under like circumstances. He would have no right to fill the tanks with cider when he had good reason to believe that they were dangerous and might burst. However, the plaintiff was not bound to make a critical examination of the tanks to see if the tank was defective, and he had a right to rely on his warranty. All that devolved upon him was simply that ordinary diligence which a man of ordinary intelligence and diligence would use under like circumstances. The question in this connection is simply this: Was the plaintiff negligent himself or reckless ? If so, he cannot recover damages for injuries which he could have prevented by the exercise of ordinary diligence, and which he foresaw himself or must have reasonably anticipated.”
We think this instruction embodies a correct statement of the law, and that it was not materially modified by other portions of the charge excepted to.
The judgment will be affirmed.
The other Justices concurred. | [
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Montgomery, J.
In February, 1886, the Detroit Tug & Transit Company was the owner of the tug Balize and the schooner Harvey Bissell. Both of these boats had been libeled in the United States district court at Detroit. The claims against the Balize aggregated $13,-050. The specific amount of the claims against the Bissell does not appear. At this time, Samuel A. Murphy and William J. Murphy and Thomas Murphy owned nearly all the stock of the Detroit Tug & Transit Company, and were the ones chiefly, if not solely, interested in preventing a sale of the boats. At this time they sought one John Kelderhouse, of Buffalo, N. Y., to aid • them in securing to themselves the two boats in question. An arrangement was then made by which Kelderhouse, through an agent, bid in the Balize at a marshal’s sale, and thereupon the Tug & Transit Company made a bill of sale to Kelderhouse of the Bissell; so that he became at least nominal owner of both boats. At the sale of the Balize, complainant furnished $3,050 of the purchase money, and Kelderhouse $10,000. Complainant also furnished the money to pay off the claims against the Bissell. The boats went into the possession of Samuel A. Murphy, and continued in his possession until September following, when they were conveyed by a bill of sale to William T. M. Charlton, in trust for the other defendants. The Charltons took possession of the boats, and have since controlled the same.
The bill in this case is filed, alleging, in substance, that complainant, intending to become the purchaser of the two boats in question, applied to Kelderhouse for a loan, and that he effected the loan, and that the transfer to Kelderhouse was in trust for the complainant, and as security for the advance of $10,000, and by way of mortgage; that the Charltons took simply the interest that Kelderhouse had; and that the right to redeem from the mortgage continues. The bill also prays for an accounting. The answer denies that the transaction with Kelderhouse amounted to a mortgage, but avers that the agreement was between Samuel A. Murphy and Kelderhouse, and that the advance of $10,000 was not made as a loan, but as the purchase price of the property, and that the agree 'ment with Murphy was a conditional agreement to sell, and that by this agreement Murphy was not bound to buy, or to repay the $10,000. The answer also alleges that the purchase of the boats from Kelderhouse was absolute and unconditional, and with the consent of Samuel A. Murphy. There seems to be no controversy between the shareholders of the Detroit Tug & Transit Company • and the complainant. The circuit judge dismissed the bill, and complainant ^appeals.
The two questions arising are:
(1) Whether the transaction between Murphy and Kelderhouse amounted to a mortgage, giving to Murphy a right to redeem.
(2) Whether, if the transaction gave to Murphy the rights of a mortgagor, this right has been cut off by the sale to the Charltons.
1. Some stress is laid by defendants’ counsel upon the fact that it does not appear clearly that, in the negotiations with Kelderhouse, complainant was named as principal. This circumstance is entitled to this much weight, viz.: ’The acts of Samuel A. Murphy on behalf of his undisclosed principal, in his (Samuel A.’s) own name, would bind the principal; but, as bearing upon the question of the nature of the contract, it is not of great importance, as we view it. It was known to Kelderhouse that the money to release "the boats, over and above the $10,000 paid by him, was furnished by complainant. What was the nature of the transaction? The complainant labors under a difficulty in proving his case, arising from the fact that Samuel A. Murphy, who conducted the negotiations, has since become insane. Mr. Kelderhouse is, however, apparently a candid witness, and a solution of the question depends very much upon an analysis of his testimony. A careful review of his testimony convinces us that the complainant’s contention is fully sustained thereby. He testified:
“I was to hold the boats, take a bill of sale of them .and hold them as security, for, my impression is, four months; it might have been six months, but not to exceed that; and he was to give me for the trouble $1,000, and I was to have, when they were redeemed, when I got my pay, I was to have $11,000, and I was to let him run the boats up to that time, providing he kept them out of ' debt.”
He also testified that Murphy applied to him for a loan, and on cross-examination, in answer to the question, “He was to pay you $11,000 when the loan matured?” he answered, “Yes.”
We cannot escape the conclusion that both parties understood that this was a loan, and that Mr. Samuel A. Murphy understood that his principal was obligated to pay the amount, and that, if Mr. Kelderhouse did not know of the fact that Mr. Samuel A. was acting for the complainant, he might have had recourse against Samuel A. or the complainant whenever he discovered that he was the principal. We think this transaction amounted to a conveyance to Kelderhouse in trust in favor of complainant, with an interest in Kelderhouse in the nature of a mortgage interest. See Jarvis v. Woodruff, 22 Conn. 548; Horn v. Keteltas, 46 N. Y. 605; Reed v. Bond, 96 Mich. 134, and cases cited; Morgan’s Assignees v. Shinn, 15 Wall. 105.
2. The question whether the purchase by the Charltons was absolute or made subject to complainant’s equities . is more doubtful. The defendants claim that their purchase was absolute and final, and they so testify; but there are circumstances which, as the case presents itself, to us, cannot be reconciled with this claim. Mr. Kelderhouse testified that, when his claim fell due, he insisted on payment; that Samuel A. Murphy said he would look around, and see what he could do; and that later he returned, and said: “I want you to make the bill of sale out to Charlton Brothers on the boats, and they will pay you for them.” The question occurs at once, Why should Samuel A. exhibit the anxiety to place these vessels beyond redemption ? Admittedly, the Murphys were, paid nothing for any release, and yet, according to the claim of the Charltons, Samuel A. was looking for a customer for Kelderhouse to sell to, and to cut off their claim. This spirit would not have appeared so unaccountable if the indebtedness to Kelderhouse equaled the value of the ves- ■ seis, or nearly equaled it; but it did not. The two vessels were worth $25,000 to $30,000 at the least, and the total claim against them was less than $17,000. It further .appears that in. subsequent negotiations the Charltons recognized the fact that the complainant had equities in the boats. We cannot escape the conclusion that, whatever the form of the transaction or the language employed, the Charltons were induced by Samuel A. Murphy to invest, and they expected to take the place which Kelderhouse previously occupied, and succeed to his rights.
The complainant was entitled to relief. The decree will be reversed, and the case remanded for an accounting. Complainant will recover costs of this court. The costs of the court below will abide the result.
The other Justices concurred. | [
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Long, J.
It appears in this case that the moneys in controversy were borrowed by the People’s Savings Bank from the petitioner. The petitioner is not a depositor, within the meaning of the banking law, and not entitled to claim any part of the dividend arising from the fund recovered against the stockholders. The case is governed by State Savings Bank of Detroit v. Foster, ante, 268.
The order below must be affirmed, with costs in favor of respondent.
Grant, C. J., Hooker and Moore, JJ., concurred with Long, J.
Montgomery, J. My views are expressed in State Savings Bank of Detroit v. Foster, ante, 273. | [
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] |
• Long, J.
This case was commenced in justice’s court, where plaintiff recovered a judgment for $350. Defendant appealed to the circuit court, where, on a trial before a jury, the court directed verdict in favor of defendant. The plaintiff is the assignee of a claim which Howard R. Gladding made against the defendant under the following contract:
“This agreement, made this 30th day of March, 1893, between Howard R. Gladding, of the first part, and H. R. Gladding Company, of the second part, witnesseth: That the said Howard R. Gladding agrees faithfully and diligently to work for the said H. R. Gladding Company as its manager at Detroit, Wayne county, Michigan, for a period of one year from the date hereof, for the sum of $15 per week, and the further annual payment of a sum equivalent to the dividends which would have accrued on 50 shares of stock in the said corporation for one year from the date hereof, said sum to be the same as the annually declared dividends. In consideration of which service so to be performed, the said H. R. Gladding Company agrees to pay the said Howard R. Gladding the said sum of $15 per week, and the annual payment of a sum equivalent to the dividend which would have accrued on 50 shares of its stock.
“In witness whereof, said parties have hereunto set their hands and seals, the day and year first above written.
“H. R. Gladding, [l. s.]
“H. R. Gladding Company, [l. s.]
“By Stephen A. Pratt, Pres.”
Upon the execution of this contract, Howard R. Glad-ding entered upon the performance of his duties as man ager for the defendant, and continued in that capacity until October 17, 1893, at which date the stock and business of the company were sold by the sheriff, and purchased by Stephen Pratt, the father of the president of the Gladding Company; and upon such sale defendant ceased to do business. Gladding did no work for the company after the sale, and received no further pay. After the expiration of the year, he assigned his demand to the plaintiff, who now seeks to recover the salary for the balance of the year from October 17, 1893.
It was the contention of the defendant on the trial that the plaintiff had made no case to go to the jury. The court below instructed the jury:
“There is no evidence in the case that this plaintiff {meaning plaintiff’s assignor] was discharged by the ■defendant from his employment. The only testimony on that point is that on October 17th the property of the defendant was sold by the sheriff, and that this plaintiff then disappeared from his place of business, and did not ■return to continue or offer his services, and that, although he frequently met the president of the company, he never ■expressed to him his willingness to perform the services under the contract, or asked pay from him for services under the contract. There is no evidence in this case that the plaintiff was discharged by defendant company. That being' a material point for the plaintiff to establish. I charge you he cannot recover under the evidence.”
We think this charge was proper, under the testimony given by the plaintiff’s assignor. He was produced as a witness for the plaintiff, and gave no testimony that he was discharged by the defendant company. It appeared that the accounts kept by him were in a somewhat confused state, the ledger balances being many times forced by the charge of the balances to profit and loss. The president of the company, after October 17, 1893, had .several talks with Mr. Gladding about the accounts; but at no time does it appear from Gladding’s testimony that he offered to continue his services to the company, nor does it appear that the company was not in a financial condition to continue the employment and pay him for his services. It would seem that he quit of his own volition, and never offered to continue his services. Three-years thereafter he assigned this claim, and then for the-first time a demand was made for pay for the time which he had never expended for the company.
In Collins v. Hazelton, 65 Mich. 220, it appeared that-defendant’s foreman had told the plaintiff that defendant did not want him to work any longer. The foreman had no authority to discharge the plaintiff. Plaintiff had been paid monthly. He did not claim his pay at the usual time, and said nothing to defendant about it. In reversing the judgment in favor of the plaintiff, it was said:
“He was bound to show actual authority from Hazel-ton for his discharge, or actual knowledge and approval of his discharge. * * * He was also bound to see that Hazelton had knowledge that he refused to acquiesce in. his discharge, and that he proposed to hold himself ready at all times to resume his labor. * * * A person who. proposes to put his employer in the wrong must take sufficient pains to prevent any reasonable misapprehension of his pretentions. ”
Here the case is much stronger. The plaintiff does not. pretend to have received, and made no offer to show, a discharge of Gladding, or that he ever offered to resume-his work for the company after October 17th. The fact that the property of the company was levied upon and. sold by the sheriff did not justify Mr. Gladding in treating the contract as abrogated, or in assuming, under the facts shown here, that the defendant could not carry out its contract, as there was no showing that the company was insolvent, or that it might not have been able to procure him a place with Mr. Pratt, who became the purchaser of the property, and thereafter carried on the business. Apparently, he quit the business of his own accord, and never after that inquired whether his services, were needed. It is true that plaintiff’s counsel, on the-examination of Gladding as a witness on the trial, asked!. Mm to state whether or not he was willing to carry out Ehe contract for the balance of that period, and the court .ruled it out. But this was not an inquiry as to his tender -of services, and his willingness to carry it out would not •aid the plaintiff unless he expressed that willingness to the defendant. Mr. Gladding’s willingness to perform the .services should have been expressed to the defendant, and no claim is made that it was.
The judgment must be affirmed.
The other Justices concurred. | [
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Montgomery, J.
The question which relator’s counsel present in this case calls for a construction of a portion of section 8061, 2 How. Stat., relating to the proceedings against garnishees. The provisions are:
‘! If such plaintiff shall file in said cause a demand for the examination of such garnishee before said judge or a circuit court commissioner, and shall cause a copy of the same to be served on such defendant, with a notice from the plaintiff or his attorney requiring such garnishee to appear before the judge or a circuit court commissioner, at a time and place to be named in such notice, not less than three nor more than ten days after service of such notice, which time may be enlarged by the judge or commissioner on special cause shown, and submit to an examination, on oath, concerning all matters of his liability as such garnishee under this act, which copy shall be served, and such service proven, when required, in the same manner as in cases of service of a declaration in suits commenced by declaration, such garnishee defendant shall appear and submit to such examination as required by such notice. And if such garnishee shall fail to appear for examination at the time and place appointed by such notice, or if such garnishee shall fail or refuse to file his answers to such written interrogatories as required by this act, or if such answers are not full and responsive to such written interrogatories, the judge of the court, or a circuit court commissioner, upon application of the plaintiff, shall make an order that the garnishee do appear before him and submit to such examination at such a time and place to be named in such order.”
This is followed by a provision authorizing entry of default in case of failure to appear.
The question presented by the relator’s counsel in this case is: Can a nonresident garnishee defendant, who has been served with original process in the suit, and who has responded by filing a disclosure, be required to appear and submit to an oral examination before a circuit court commissioner on a notice of from three to ten days? The question has never before been raised in this State, and our attention has not been directed to any decisions in other States which throw any light upon the subject. The relator’s counsel contend that, as the words employed in this provision of the statute are general and sufficiently comprehensive to include all garnishee defendants, they manifest a legislative intent to bring nonresidents as well as residents within its terms. We cannot accept this view as to the legislative intent. In this case the gar nishee defendant resides in New York. It might happen that the garnishee defendant resided in Hawaii, and yet, if the relator’s contention be allowed, he might, after having filed his disclosure, and having departed to his home, be required to return and attend upon an examination, or he would have the alternative presented of awaiting in this State the decision of plaintiff’s counsel as to the course which he should think best to pursue. A construction entailing such hardships upon one whose only fault is to be indebted to or hold property belonging to a debtor ought not to be adopted unless imperatively demanded. Turning to the statute, we find that the time fixed for appearance is so short as to suggest that the service was intended for residents only. Furthermore, the language, “which copy shall be served, and such service proven, Avhen required, in the same manner as in cases of service of a declaration in suits commenced by declaration,” may well be construed to require a service within the jurisdiction; that is, either in the county where suit is brought, or in the county where service has been had under the provisions of section 8095.
The writ will be denied, with costs.
The other Justices concurred. | [
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Moore, J.
Plaintiff sued defendant in justice’s court, and recovered a judgment. His declaration was upon all the common counts in assumpsit. The case was appealed to the circuit court, where, after a trial by a jury, plaintiff recovered a judgment of five dollars. Defendant has brought the case here by writ of error.
It is the claim of plaintiff that he sold his farm to defendant for 8400. He claims he left upon the land eight or ten cords of cord-wood and about a thousand feet of elm logs, upon an agreement that Mr. Olney might have the logs if he would allow Mr. Newman to leave the wood until the following winter. Mr. Olney drew the wood to his house, where it was at the time of the trial, and drew the logs to the mill. It was the claim of the defendant that he not only bought and paid for the.land, but that he bought and paid for the logs and wood the sum of five dollars. The trial judge, at the request of the defendant, submitted four special questions to tbe jury, which they answered, and they returned a general verdict of five dollars for the plaintiff.
It is claimed by defendant the special findings are inconsistent with the general verdict, and that the general verdict should be set aside. A motion for a new trial was made for that reason. In overruling the motion, the circuit judge found that the special findings were not inconsistent with the general verdict, and that the jury were not misled as to the issues of fact in the case. The trial judge was correct in his conclusion.
It is urged that, as the defendant still has the wood in his possession, the action of assumpsit cannot be maintained ; citing Watson v. Stever, 25 Mich. 386; Tolan v. Hodgeboom, 38 Mich. 624. The first of these cases is not in point, and the second case seems to be based upon the first one. In the case at bar it is admitted by defendant that plaintiff was the owner of the wood, but it is claimed that he sold it to defendant. It was the claim of the plaintiff, not only that he was the owner of the wood, but that he continued to be the owner of it at the time defendant converted it. His claim is, it was to be left with defendant, in consideration of plaintiff’s letting defendant have the logs, until the next winter. The jury found against defendant’s claim, and must have found plaintiff’s version of the transaction to be true. According to both versions, it came into possession of the defendant by reason of a contract made between them. They do not agree as to what the contract was, but they both agree a contract was made. The plaintiff waived the tort. The possession of the property was obtained under' contract between the parties, and the refusal to surrender the property amounted to a conversion, for which the tort could be waived and assumpsit brought. McLaughlin v. Salley, 46 Mich. 219; Coe v. Wager, 42 Mich. 49; Loomis,v. O'Neal, 73 Mich. 582; Aldine Manfg. Co. v. Barnard, 84 Mich. 632. If the version given by the plaintiff is the true one, the defendant was the bailee for the wood. It was his duty to deliver it to the plaintiff when he called for it. In such a case the plaintiff could sue in trover for the conversion, or, waiving the tort, might sue in assumpsit, and recover its value. Tuttle v. Campbell, 74 Mich. 652 (16 Am. St. Rep. 652).
Judgment is affirmed, with costs.
The other Justices concurred. | [
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North, J.
By the decree in Reinert v. Roberts, 250 Mich. 387, plaintiffs herein were entitled to an accounting against defendants, and the case remanded to the circuit court therefor. The accounting has been had and a decree entered thereon in the circuit court. Both plaintiffs and defendants claim error in the accounting and have appealed. Before passing upon the accuracy of the accounting, we will consider other questions presented by the record and briefs now before us.
The circuit judge decreed there was due to plaintiffs $11,460.28 together with interest thereon from the date to which computation was made, July 12, 1930; and he decreed the defendants Timothy A. Roberts and Harry F. Stickney personally liable to plaintiffs for the payment of $3,620.28. Mr. Stickney claims the testimony shows that more than half of the amount for which he and Roberts are personally liable has already been paid to plaintiffs by .money which belonged to him personally, and he therefore urges personal liability for the balance decreed should not run against him but against Mr. Roberts only. This position is not tenable. In our former opinion we found that Roberts confederating with Stickney perpetrated a fraud upon plaintiffs. Courts are not much concerned with working out equities or doing exact justice between coconspirators who have deliberately defrauded a third per son and later have been compelled by the court’s decree to reimburse their victim. In Gilbert v. Hoffman, 2 Watts (Pa.), 66, in commenting on this phase of the law, it is said:
“It is certainly not the duty of a court to protect the interest of a person who has been detected in an attempt at fraud.”
“The law will not aid wrong-doers to adjust equities among themselves, nor alleviate their hardships growing out of their trespasses upon the rights of others.” (Syllabus) Upham v. Dickinson, 38 Mich. 338.
“Public policy demands that two or more wrongdoers shall be left as to each other where their joint offense leaves them.” Township of Hart v. Noret, 191 Mich. 427, 432 (L. R. A. 1916 F, 83).
The circuit judge justly held both Roberts and Stickney personally liable for plaintiffs’ loss.
The circuit judge also held Mrs. Lillie M. Roberts personally liable to the extent of $1,812.64 of the amount found due plaintiffs. Mrs. Roberts has appealed from this portion of the decree, claiming that she should not thus be held personally liable. As disclosed in our former opinion (250 Mich. 387), this fraud was perpetrated by selling property formerly owned jointly by Reinert and Roberts to W. B. and Louis A. Jarvis for $20,000, but under Roberts’ representation to Reinert that the consideration actually received for the property was only $7,500. The Jarvis sale was consummated by Roberts and Stickney and the contract payments, which were made at the Peoples State Bank in Holland, Michigan, were equally divided between these two men. Mr. and Mrs. Roberts had two joint accounts at this bank, one a commercial account, the other a savings account. Payments on the Jarvis contract to the amount of $1,812.64 were credited by the bank to the Roberts’ joint savings account. The funds in this account were not at any time sequestered incident to this litigation. At one time after these deposits were máde Mrs. Roberts drew $700 out of the savings account and placed it in the joint commercial account. Other than this there is no satisfactory proof by whom the withdrawals were made or in what amounts. While Mrs. Roberts knew- that the payments on.the Jarvis contract were being.deposited in the joint savings account, it is not shown that she knew of or was in any way a party to the fraud perpetrated on these plaintiffs. She had property of her own prior to her marriage to Roberts ; and after her marriage to him she conducted a business to some extent on her own account. She testified: “I did not draw out of that account any more money than what I put in myself.” The bank cashier, evidently a disinterested witness, also testified that both of the Roberts’ bank accounts were joint, and further:
“As I recall it they started to do business that way when Timothy A. Roberts married Lillie M. Crisler. In fact Mrs.' Roberts had some property and when she married Roberts they put this money in a joint account and this property in' their joint names.” ‘ ,
We think the testimony fails to establish that Mrs. Roberts now has in her possession or under her control or has ever benefited in any way by payments on the Jarvis contract. Under such circumstances, Mrs.-Roberts should not have been decreed personally liable. If the joint bank account or some portion thereof had been reached by some process of the court and the Jarvis deposits thus sequestered a different question would have been presented; but under this record personal liability should not be decreed against Mrs. Roberts.
Unless otherwise indicated, in the remaining portion of this opinion we shall refer to Mr. Roberts and Mr. Stickney as the defendants. In their behalf it is asserted that plaintiffs’ side of the account should have been debited with one-half of the principal of a $5,500 mortgage given on this property by one Dickover, who was Stickney’s father-in-law, and to whom defendants had the property conveyed in order that Dickover might in turn convey it to them and thus the fraud upon plaintiffs be consummated. The trial judge correctly found and decreed that the Dickover mortgage should be canceled and discharged of record, and not charged against plaintiffs. The seven installments of interest on this mortgage supposed to have been paid by Dickover, but in fact paid by Stickney, amounting to $577.50, were properly considered in the accounting. Plaintiffs have received one-half of that amount; they are chargeable therewith, and, as hereinafter noted, with legal interest thereon.
Examination of the details of the accounting in the circuit court discloses error in two particulars. Roberts and Stickney have received on the Jarvis contract payments totaling $15,520. In the accounting they were charged interest at the rate of six per cent, on these various installments from the date of payment to the date of computation — July 12, 1930. The computation of interest should have been at the rate of five per cent, per annum. So computed the amount is $2,559.85 which added to the $15,520 totals $18,079.85. Plaintiffs are entitled to one-half, or $9,039.93. In accordance with our former decree (see 250 Mich. 387), the unpaid portion of the Jarvis contract has been sequestered and is to be applied on payment of the amount due plaintiffs. Defendants’ one-half thereof with interest totaling $3,920 should therefore be first deducted, from the $9,039.93, leaving $5,119.93.
But plaintiffs have also received the following payments which should be debited against them in this accounting:
(A) $1,000 (August 6, 1925) on the Dickover sale, with accrued interest at five per cent, per annum computed to July 12, 1930, $1,246.66.
(B) Seven items of interest on the Dickover mortgage totaling $577.50 and interest at five per cent, to July 12, 1930, $658.03.
(C) One-half of the $954 incumbrance (which Stickney paid — December 26, 1925) and interest to July 12, 1930, $585.38.
In the accounting of the circuit judge plaintiffs were not charged with interest on items A, B, and C, as computed above. We think they should have been. These three items total $2,490.07. Deducting this amount from the above items of $5,119.93, there is a net balance of $2,629.86 for which Roberts and Stickney should be held liable to plaintiffs.
By common consent the parties seem to have agreed that the $298.87 of taxable costs incident to the former hearing in this court shall be included in this accounting. Adding this amount to the above $2,629.86, the final total would be $2,928.73.
Defendants assert the right to certain other credits. These were properly disallowed for reasons noted in the following portion of the circuit judge’s finding:
“The checks to DeKeyzer, the Stickney personal expense claims and the credit for advertising, should in my opinion not he allowed as a credit against the plaintiffs’ claim. All of these items were expended in the efforts to defraud the plaintiffs as determined by the Supreme Court, and plaintiffs have received no benefit therefrom, with the possible exception of a few dollars for drawing the duplicate contract to Jarvis, and this item is not separated from the other total DeKeyzer bill, so it should not be allowed.”
Plaintiffs have also appealed, and they assert error in the allowance by the circuit judge of items A and B above noted as credits to the defendants. They also urge that Mrs. Stickney should have been decreed personally liable. We have considered these claims and find them to be without merit.
The decree will be modified by eliminating the provisions by which Mrs. Roberts was held personally liable in the amount of $1,812.64, and by reducing the amount for which Timothy A. Roberts and Harry F. Stickney are decreed personally liable to plaintiffs from $3,620.28 to $2,928.73, as of July 12, 1930. We think the decree should also vest the fee title to the real estate covered by the Jarvis contract in plaintiffs subject to the rights of the vendees; it being of importance that the fee title should he definitely vested either in the event of the vendees performing and requiring conveyance or in the event of their default and a possible foreclosure. No costs are awarded on this appeal.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and Fead, JJ., concurred. | [
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McDonald, J.
This action was brought to recover damages for personal injuries sustained by the plaintiff when struck by an automobile driven by Loraine Bertrand and owned by the defendant. The accident occurred at the intersection of Salem and Grand Biver avenues in the city of Detroit. On Grand Biver avenue there are two strips of concrete,' each 40 feet wide, separated by a parkway on which are street car tracks. The north strip is for westbound traffic and the south strip is for east-bound traffic. About 9:30 o ’clock on a Sunday evening, the plaintiff and her mother alighted from a street ear at the intersection and proceeded across Grand River avenue toward the south curb. Before stepping off the curb into the street, she says they looked for approaching traffic and observed that the nearest automobile was about .450 feet away. They stepped into the stréet, and, when nearly two-thirds of the way over, saw the nearest car then 60 feet from them. It slowed down and they crossed about 20 feet ahead of it. They looked again and saw no traffic in that portion of the street which they still had to traverse before reaching the curb 10 feet away. At that time she says the car that injured them was in line behind the one which slowed up to allow them to pass; that it suddenly turned out to pass the car ahead of it and ran into them when they were about to step upon the curb. The plaintiff was very seriously injured and her mother was killed.
The negligence charged against the defendant is that the driver of his car, in violation of the statute, passed a car going in the same direction at a street intersection; that she passed on the right instead of on the left; and that she did not have the car under control. At the close of the proofs, the defendant moved for a directed verdict on the ground that plaintiff was guilty of contributory negligence as a matter of law. The motion was taken under advisement and the issue submitted to the jury. There was a verdict for the plaintiff in the sum of $14,500. Motions for a judgment non obstante veredicto and for a new trial were denied. The motion for a new trial was denied on condition that the plaintiff accept a reduction of $4,500 on the verdict. This was done, and judgment was entered thereon for $10,000. The defendant has brought error.
The only question involved is that of contributory negligence. The defendant thinks the trial court should have directed a verdict in his favor on the' ground that the evidence showed plaintiff to have been guilty of contributory negligence as a matter of law. In his brief the question is stated as follows:
“The ease at bar is very simple. It is just a question of whether plaintiff had a right to walk in front of a car going 30 miles an hour into the traffic which she could not see because her view was obstructed. If that is due care the judgment should be affirmed. If not, the judgment should be reversed.”
The plaintiff and the driver of the defendant’s car were not agreed as to how the accident happened. The driver, Miss Bertrand, testified that the plaintiff and her mother walked past the car that slowed down directly in the path of the one she was driving. The plaintiff testified that when they passed the car that slowed down, Miss Bertrand was in line behind that car-; that there were no automobiles in that portion of the street between them and the curb; that there was no apparent danger and would have been no accident if Miss Bertrand had remained in line with the other automobiles instead of swinging out and attempting to pass on the wrong side. This conflicting testimony made the negligence of both parties a question for the jury. The trial court was right in submitting it.
The judgment is affirmed, with costs to the plaintiff.
Butzel, C. J., and Wiest, Clark, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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Fead, J.
As the pleadings finally stand, this suit is by cross-plaintiff Mandel Brothers for judgment against defendant Elless Company and plaintiff on certain promissory notes executed by them, and for decree of foreclosure of real estate mortgage given by plaintiff to secure the notes. Mandel Brothers had decree for the whole amount claimed.
The question is whether cross-plaintiff, a foreign corporation not authorized to do business in this State, may maintain the suit.
August 9, 1922, cross-plaintiff contracted to -.sell and install furniture, furnishings, decorations, etc., to an approximate amount of $230,000, in the Whittier Hotel at Detroit, owned by defendant Elless Company. Plaintiff executed the contract on behalf of defendant and also personally to guarantee its performance. The specific items were to be listed on “Mandel Brothers’ General Form Contracts,” which by reference were made part of the parent contract. Further purchases were provided for on similar memoranda, which were to be likewise part of the agreement. Approximately $325,000 of purchases were so listed, the prices of the items appearing in the memoranda. The sum of $150,000 was paid on the contract and $150,000 of notes given before any goods were delivered.
In 1924, the Elless Company defaulted in payment of notes. December 18th, a new agreement was made, reciting that the debt was $139,000, that Elless Company claimed a credit of $6,000 and damages for improper work, and it was agreed that defendant and plaintiff should execute new notes for $139,000, $100,000 to be secured by mortgage executed by plaintiff, and that the claim for credit be adjusted by arbitration if they could not agree.
In 1926, payments were again in default. Mandel Brothers began suit against plaintiff and defendant in Chicago, but obtained no service on them, and garnisheed the proceeds of a bond issue on the Whittier Hotel. The court dismissed the suit, holding the fund not garnishable, and Mandel Brothers appealed. The parties negotiated, and, on November 3d, after allowing a credit of $5,000, the notes and mortgage at bar, aggregating about $100,000, were executed. In consideration, all litigation between the parties was dismissed.
Cross-plaintiff states it was conceded- in circuit court that part of the total account represented interstate business, part intrastate transactions, and two items, carpets and furniture, were in dispute, both of which it claims were interstate. Plaintiff and defendant do not attack cross-plaintiff’s analysis of the account in this respect except to contend that the furniture item was intrastate.
The first question is whether the adjustment of November, 1926, cleared the transaction of the statutory prohibition against cross-plaintiff maintaining the suit.
Under 2 Comp. Laws 1929, §§ 10118, 10120, a foreign corporation transacting business in Michigan without having been admitted thereto, is subject to a penalty, as well as to 3 Comp. Laws 1929, § 14027, which reads:
“Sec. 19. But when, by the laws of this State, any act is forbidden to be done by any corporation, or by any association of individuals, without express authority by law, and such act shall have been done by a foreign corporation, it shall not be authorized to maintain any action founded upon such act, or upon any liability or obligation, express or implied, arising out of, or made or entered into in consideration of such act.”
So far as the transaction at bar covered intrastate business, it was illegal in this State, and no action could be maintained upon it. Seamans v. Temple Co., 105 Mich. 400 (28 L. R. A. 430, 55 Am. St. Rep. 457); People’s Mutual Benefit Society v. Lester, 105 Mich. 716; Swing v. Cameron, 145 Mich. 175 (9 L. R. A. [N. S.] 417, 9 Ann. Cas. 332).
The rule, as stated in Comstock v. Draper, 1 Mich. 481 (53 Am. Dec. 78), is:
“It is a well settled doctrine in the English and American books, that an illegal transaction cannot constitute a good consideration for a promise. If the connection between the original illegal transaction and the new promise can be traced, if the latter is connected with and grows out of the former, no matter how many times and in how many different forms it may be renewed, it cannot form the basis of a recovery, for repeating a void promise cannot give it validity.”
See, also, Rhoades v. Malta Vita Pure Food Co., 149 Mich. 235; Armstrong v. Toler, 11 Wheat. (U. S.) 258; 13 C. J. p. 509; 6 R. C. L. p. 698.
Ordinarily, the settlement of litigation is sufficient consideration for a new promise. But where the litigation is to enforce an illegal contract, a new promise to perform the same contract does not change the nature of the obligation. Union Collection Co. v. Buckman, 150 Cal. 159 (88 Pac. 708, 9 L. R. A. [N. S.] .568, 119 Am. St. Rep. 164, 11 Ann. Cas. 609); 12 C. J. p. 334; nor can it be permitted to circumvent a statute adopting a public policy.
In Missouri Fidelity & Casualty Co. v. Art Metal Construction Co. (C. C. A.), 242 Fed. 630, relied on by cross-plaintiff, no statute like section 14027 was involved, and the defense was interposed by a third party guarantor of the account after the work had been completed. Usually the obligation of such third party is deemed too remote from the illegal transaction to be tainted by it. See discussion in Armstrong v. Toler, supra, and McMullen v. Hoffman, 174 U. S. 639 (19 Sup. Ct. 839). Here the new engagement was by the identical parties to the original contract, to provide payment of moneys owing thereon. The notes and mortgage, as far as they cover sums charged upon the intrastate business, evidence a “liability or obligation * * * arising out of” violation of the law by cross-plaintiff. People’s Mutual Benefit Society v. Lester, supra. The defense of the statute is open to plaintiff and defendant.
Cross-plaintiff, on the theory that the contract was severable, assumed to apply payments on intrastate items, and claims the account as it now stands is wholly for interstate business. Plaintiff and defendant did not authorize nor consent to such application of payments and say the contract is indivisible and suit may not be maintained for any part of it.
We need not determine whether the contract is technically inseparable as regards the rights and obligations of the parties. While the agreement is of consequence in ascertaining the character of a transaction, its form is not determinative of the question before us, because parties cannot so enlarge or restrict the statute. The character of the transaction must be determined from the things done as well as the agreement therefor.
Even if the contract were divisible, cross-plaintiff was not justified in applying payments to intrastate items without consent of the debtors, because the right of a creditor to make application of payments to specific accounts does not extend to illegal items representing transactions prohibited by statute. 21 R. C. L. pp. 93, 94; 48 C. J. p. 650; Armour Packing Co. v. Vinegar Bend Lbr. Co., 149 Ala. 205 (42 South. 866, 13 Ann. Cas. 951, note). From the original contract and the subsequent conduct of the parties, it is also beyond argument that they intended payments to be credited upon the whole consideration without preference to items. So far as payments may be divided among items, the application must be pro rata.
If the contract, especially the consideration, were indivisible in fact between interstate and intrastate business, cross-plaintiff would not be entitled to sue' upon any part of it. Haughton Elevator & Machine Co. v. Detroit Gandy Co., 156 Mich. 25; Andrews v. Colonial Theater Co., 283 Fed. 471. But where, as here, the contract permits an accurate division of the whole transaction into interstate and intrastate items and the precise apportionment of the consideration to each, may suit be brought upon the leg*al portion? The question seems to be one of first impression.
The contract is partly illegal in this State, not because of immorality or inherent vice, but because of the statute. In such case it is said:
‘ ‘ The rule with respect to contracts in violation of the statute has been declared to be that if any part of an agreement is valid, it will avail pro tanto, though another part of it may be prohibited by statute, provided the statute does not, either expressly or by necessary implication, render the whole void, and provided the sound part can be separated from the unsound, and enforced without injustice to the defendant.” 6 R. C. L. p. 814.
See, also, 24 L. R. A. (N. S.) 942, note; 26 L. R. A. (N. S.) 106, note; 13 C. J. p. 515.
“But where a claim consists of several distinct items, some good and others bad, or where the transaction is of such a nature that the good part of the consideration may be separated from the bad, the common law discriminates between them, by permitting a recovery for the former while it repudiates the latter.” Chase’s Executors v. Burkholder, 18 Pa. 48, 52.
The division of the claim into good and bad items is done from practical rather than technical considerations unless the contract otherwise demands. Carleton v. Woods, 28 N. H. 290; Walker v. Lovell, 28 N. H. 138 (61 Am. Dec. 605); Boyd v. Eaton, 44 Me. 51 (69 Am. Dec. 83); Shaw v. Carpenter, 54 Vt. 155 (41 Am. Rep. 837). Such method of division is particularly appropriate at bar because neither the protection of parties nor preservation of courts from enforcement of illegal claims demands a technical treatment of the contract, and “it often has been pointed out that commerce 'among the States is a practical not a technical conception.” Davis v. Commonwealth of Virginia, 236 U. S. 697 (35 Sup. Ct. 479).
The portions of the instant contract and transaction which our statute condemns may be definitely identified and segregated so that only interstate commerce items remain, As the statute does not in terf ere with interstate commerce, such segregation is logical. From recovery thereon, no injury can result to plaintiff and defendant, as they are called upon to meet only their legal obligations; the policy of the State is maintained, because no recovery is allowed for prohibited acts; the statute is kept in its intended and constitutional bounds, and the result is appropriate to a court of equity. We think the inhibition of the statute to sue should be confined to those portions of the transaction of which intrastate acts are an integral part.
The remaining question is whether the furniture item was interstate commerce. That part of the contract included installation, which consisted of uncrating the furniture, putting it in rooms, attaching mirrors, assembling beds, dusting and polishing and removing marks or soils.
All of these things were—
“dissociated from any attempt to connect them with or make them a part in the State of property which had not aiid could not have been the subject of interstate commerce.” Browning v. City of Waycross, 233 U. S. 16 (34 Sup. Ct. 578).
They were mere incidents of delivery, which is a part of interstate commerce. Rath Packing Co. v. General Cold Storage Co., 222 Mich. 315; Caldwell v. North Carolina, 187 U. S. 622 (23 Sup. Ct. 229); Vulcan Steam Shovel Co. v. Flanders, 205 Fed. 102; Puffer Manfg. Co. v. Kelly, 198 Ala. 131 (73 South. 403).
The decree will be modified in accordance with this opinion, and affirmed, with costs of this court to plaintiff.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred. | [
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Clark, J.
Plaintiff contends that defendant was a tenant under a lease for a term of years of the roof of his building for the purpose of having and maintaining advertising sign or signs and that defendant quit the premises and failed to pay rent. This suit is to recover certain monthly installments.
Defendant contends it was not a tenant but a licensee, and therefore cannot be held as for rent.
In a trial without a jury the judge found defendant a licensee, not a tenant, and that plaintiff could not recover on his declaration. Plaintiff brings error.
The writing between the parties is in the form of a lease and purports to “let and lease and give * * * exclusive permission” to erect and maintain signs.
Both parties had keys and had access to the roof. There was a pent house on the roof in which were stored articles belonging to defendant.
The writing here does not confer possession of premises upon defendant. It gives a mere permission under the owner to have and maintain sign or signs on the roof. It is a license, not a lease.
See 35 C. J. p. 954, and cases cited; Morrill v. Mackman, 24 Mich. 279 (9 Am. Rep. 124); 1 Thompson, Real Property, § 647; Forbes v. Gorman, 159 Mich. 291 (25 L. R. A. [N. S] 318, 134 Am. St. Rep. 718); 1 Tiffany, Real Property (2d Ed.), § 47.
Affirmed.
Butzel, C. J., and Wiest, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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] |
North, J.
The board of supervisors of Muskegon county at its October, 1929, meeting determined that in the $190,000 to be raised by taxation for county road purposes there should be included $10,000 to be used for lighting the county highways, and in the $386,106.86 to be raised for county purposes there should be included $705 for street lighting. These tax items were apportioned among the cities and townships of the county. Two of the appellants, as assessing officers, refused to spread their portion of the $10,000 item upon their rolls, and the remaining appellant refused to spread upon the assessment roll of his city the apportioned share of either of these items. Upon petition of the board of supervisors the circuit judge granted mandamus to compel the spreading of these respective tax items. From this adjudication the appellants have brought the matter to this court for review on certiorari.
Appellants’ refusal to spread these items .on their respective assessment rolls is based upon the claim that the county was not authorized to levy taxes of this character, i. e., that such a tax was illegal. We think appellants’ contention cannot be sustained. Section 26, art. 8, of the Michigan Constitution provides :
“The legislature may also by general law prescribe the powers and duties of boards of supervisors in relation to highways, bridges and culverts.”
The board of county road commissioners is the agency through which the county’s activities rela^tive to highways are carried on. 1 Comp. Laws 1929, § 3994, provides that:
“Said board of county road commissioners shall have authority to grade, drain, construct, gravel, shale or macadamize any road under its control, or to place thereon any form of improvement which in its judgment may be best, * * * it shall have authority * * * to repair and maintain the said roads, * * * The commissioners shall have all the authority in respect to such roads, bridges and culverts which is vested in the highway officers in townships.”
It is further provided in 1 Comp. Laws 1929, § 3995, that:
“It shall be the duty of the board of supervisors to raise a sufficient tax to keep any county roads or bridges already built in reasonable repair and in condition reasonably safe and fit for public travel. After the said board of supervisors shall have decided upon the amount of tax to be raised, the said board shall thereupon apportion such tax between the several townships and cities of said county according to their equalized valuation. The super visors or other assessing officers in such townships and cities shall levy and apportion the taxes so apportioned as provided in this section, to their respective townships and cities respectively, upon which the county taxes are assessed.”
In behalf of appellants it is pointed out that 1 Comp. Laws 1929, § 2415, authorizes township boards to provide for artificially lighting highways; but we think that this act provides for lighting township highways only, not county highways. This is clearly indicated by the title which reads: “An act to authorize township boards to provide for the lighting of township highways,” etc. It appears from this record that the tax items in question were included in the budget of the Muskegon county road commission as approved by the board of supervisors ; and that these funds were to be used solely for lighting county roads in congested and dangerous localities. It was a precautionary or safety measure. Clearly such action on the part of the county road commission and the board of supervisors was within the scope of the statutory duty imposed upon them to keep the county roads “in condition reasonably safe and fit for public travel.” The taxes appropriated for that purpose were in compliance with the statute, and appellants should have spread them upon the tax rolls of their respective districts. The order of the circuit judge granting mandamus is affirmed. This being a matter of public concern, no costs will be awarded.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and Fead, JJ., concurred. | [
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Wiest, J.
This is an action to recover damages for personal injuries received by plaintiff while riding as a gratuitous guest in defendant’s automobile.
Plaintiff and defendant, together with others, the night of January 26, 1929, visited places where they danced and partook of refreshments. Plaintiff admits drinking a glass of beer and defendant admits that he had drinks. At an early hour in the morning defendant, while taking plaintiff to her home, and driving at a speed of about 30 miles per hour, fell asleep at the steering wheel, the automobile ran into a safety platform post, and plaintiff received a broken leg and bruises. Trial was had before the court without a jury. Defendant was found guilty of “gross and wanton negligence” and cast in damages.
After the accident, and before this suit was brought, Act No. 19, Pub. Acts 1929 (1 Comp. Laws 1929, §4648), relieved owners of motor vehicles from liability to gratuitous guests except for injuries occasioned by “gross negligence or wilful and wanton misconduct.” At the time of injury there accrued to plaintiff a common-law right of action, based on ordinary negligence of defendant.
Three questions are presented:
“(a) There was no negligence on the part of defendant.
“(b) That if the defendant was negligent the plaintiff herein was guilty of contributory negli-. gence which would bar her recovery. .
“(c) The provisions of Act No. 19, Pub. Acts 1929 (1 Comp. Laws 1929, § 4648), prevent the plaim tiff recovering except in case of gross negligence or wanton and wilful misconduct and there is no proof of gross negligence in this case. ’ ’
As well stated in 12 C. J. p. 972:
“An existing right of action which has accrued to a person under the rules of the common law, or in accordance with its principles, is a vested property right which may not be destroyed or impaired by legislation.”
This in nowise conflicts with what we said in Bejger v. Zawadski, 252 Mich. 14. In that case a statute relieved the plaintiff from making proof required at common law, and, before trial, the statute was repealed and plaintiff was put to proof as at common law. What the statute gave the statute could take away, there being no contract relation.
In the case at bar the statute takes away the common-law right of action for injuries after its enactment but not before. The plaintiff’s right of action was given by common law and not by statute, accrued before the enactment of the statute, and could not be destroyed or impaired by subsequent legislation. In Siller v. Siller (Conn.), 151 Atl. 524, a similar “guest act” was held not to affect an accrued previous common-law right of action.
In Dunlap v. Railway Co., 50 Mich. 470, it was held (syllabus):
“A common-law right of action is property, and as such is within the rules of constitutional protection. ’ ’
It was not necessary for the court below to find defendant guilty of gross and wanton negligence. Was defendant guilty of negligence? Defendant had been up all night, had taxed his powers of endurance with drink and by loss of sleep, and it was actionable negligence, under the circumstances, for him to continue driving until overcome by “tired nature’s sweet restorer.” See People v. Robinson, 253 Mich. 507. The approach of sleep is indicated by premonitory symptoms.
The question was considered at length in Bushnell v. Bushnell, 103 Conn. 583 (131 Atl. 432, 44 A. L. R. 785). We quote:
“In such a case, the question must be, Was the defendant negligent in permitting' himself to fall asleep? Helton v. Railroad Co., 97 Ala. 275, 284 (12 South. 276). The defendant argues that, granted that premise, then he cannot be charged with negligence because no man can tell when sleep will fall upon him. It is probably true that one cannot ordinarily fix with certainty upon the precise moment when he lapses into unconsciousness, but it is not true that ordinarily sleep comes unheralded. * * * In any ordinary case, one cannot go to sleep while driving an automobile without having relaxed the vigilance which the law requires, without having been negligent; it lies within his own control to keep awake or cease from driving*; and so the mere fact of his going to sleep while driving is a proper basis for an inference of negligence sufficient to make out a prima facie case, and sufficient for a recovery, if no circumstances tending to excuse or justify his conduct are proven.”
There was no want of care on the part of plaintiff.
Judgment affirmed, with costs against defendant.
Butzel, C. J., and Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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North, J.
Incident to an award of compensation by the department of labor and industry, this controversy has arisen between two insurance companies as to which should be held liable. The commission ordered payment by the Standard Accident Insurance Company, and it has appealed.
Gerrit Van Maanen had been engaged in the contracting and building business in the city of Kalamazoo for several years prior to December, 1929. In April, 1928, he and Walter E. Boylan became co-partners in the contracting and building business. But Van Maanen, with the knowledge of his partner, continued to engage in the building business in his individual capacity after the formation of the partnership. In December, 1929, Van Maanen entered into a contract with one Jacob Vander Salm and wife for the erection of a dwelling house. This contract was in writing, signed by Van Maanen individually as contractor and did not in any way refer to the copartnership of Boylan and Van Maanen. At the time this contract was executed Boylan was absent from the city of Kalamazoo. No written assignment of this contract to the partnership was ever executed. Cornelius Flint, an employee on the Vander Salm job, was fatally injured in the course of his employment on the 5th of February, 1930. The award of compensation was made to his dependents. The controlling question in the case is whether at the time of his injury Cornelius Flint was in the employ of Gerrit Van Maanen or in the employ of the copartnership of Boylan & Van Maanen.
In their building operations, both G-errit Van Maanen and the copartnership composed of Boylan & Van Maanen were under the workmen’s compensation act (2 Comp. Laws 1929, § 8407 et seq.). The risk of the former was carried by the Builders & Manufacturers Mutual Casualty Company, an appellee herein; and the insurer of the latter was the appellant, the Standard Accident Insurance Company.
In behalf of Mr. Van Maanen and his insurer, it is claimed notwithstanding that the Vander Salm contract was taken in the individual name of Van Maanen, it was none the less an undertaking of the copartnership, and that at the time of his injury Air. Flint was an employee of the copartnership. Upon the hearing before the commission this contention was sustained; and an investigation of the record discloses ample testimony to justify such .a finding. For the purposes of the issue before us the form or provisions of the Vander Salm contract are not conclusive. Notwithstanding the written contract was executed by Van Maanen alone and in his name, it still may have been a partnership undertaking. Both the partners testified it was a partnership contract. Mr. Boylan filed with the department reports in connection with this injury and therein designated the deceased as an employee of the partnership. Mr. Vander Salm testified that he understood in making this contract that Boylan and Van Maanen “were in together,” and that during the construction of the building he consulted the former about the work, and that he considered Boylan one of the contractors. As noted above, there was competent evidence to sustain the commission’s, finding that Flint was at the time of his injury an employee of the copartnership, and this fixed lia bility upon the appellant. It follows that the finding of the department must be affirmed, with costs to appellees.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and FEAD, JJ., concurred. | [
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Potter, J.
Plaintiffs filed a bill of complaint against defendant for an injunction to restrain it from imposing a special tax assessment upon their lands and premises to defray the cost and expense of paving Liddesdale avenue, and from enforcing such assessment already placed thereon, and from selling any of said lands for the nonpayment of such special assessment. The lands and premises in question at the time they were platted were a part of Ecorse township, Wayne county. On the 15th day of November, 1915, a part of the lands in dispute were platted and the streets and alleys as shown on said plat were dedicated to the use of the public. On March 22, 1916, a part of said lands and premises were platted and the streets and alleys as shown on said plat were dedicated to the use of the' public. These plats were severally approved by the township board of the township of Ecorse, Wayne county. The land in controversy, whether a street or a boulevard, was laid out on the plats as a street, although it was named on each of the plats as a boulevard. There was nothing indicating any part of the lands dedicated to the public was not to be used as streets. The parties plaintiff bought their lands according to the recorded plat thereof.
The word “boulevard” has not been exactly- defined.
“To the popular mind and understanding it suggests, at least, a broad and attractive highway, designed and used for the transportation of persons and things. Such transportation may be by any of the means now commonly employed on the streets of a city or- on the roads of the country.” Clendaniel v. Conrad, 26 Del. 549 (83 Atl. 1036, Ann. Cas. 1915 B, 968).
The word “boulevard” is thus defined in the Century dictionary:
“Originally, a bulwark or rampart of a fortification or fortified town; hence, a public walk or street occupying the site of demolished fortifications. The name is now sometimes extended to any street or walk encircling a town, and also to a street which is of especial width, is given a parklike appearance by reserving spaces at the sides or center for shade trees, flowers, seats, and the,like, and is not used for heavy teaming.” West Chicago Park Comrs. v. Farber, 171 Ill. 146 (49 N. E. 427).
This court, in defining a boulevard, quoted with approval the language of Albers v. City of St. Louis, 268 Mo. 349 (188 S. W. 83); Miller v. City of Detroit, 244 Mich. 38.
In view of the dedication of the street upon the plat to the public, there is nothing in the name “boulevard” that would indicate it was other than a public street. It is undisputed parties interested in the sale of the lots bordering on or affected by this street on their own initiative changed the street by putting islands or park places in the center thereof which were covered with grass, shrubs, and flowers. The seller sold the lands herein involved, and represented, in some cases at least, the street was a boulevard. There was nothing on the plat to indicate that either the lot owners or anyone else had any interest in the street. It was dedicated to the public. The title was held for the use of the public. Private individuals could not, as against the public, after the dedication of the property as a street and acceptance by the township, take back the land so dedicated or any rights in it. They were powerless to change the dedication. All of the street remained as dedicated for street purposes. After the annexation of the land here involved to the city of Detroit and upon the petition of the abutting property owners, the street was paved by the city, and in so paving the city removed the park-way in the middle of the street and paved the entire width thereof. The city has reasonable control over its public streets. It has a right to grade, pave, and otherwise improve' them, and under the facts in this case it had a right to assess the abutting property owners for the cost and expense of this improvement. The trial court so held, and with his holding we agree. The decree of the trial court is affirmed, with costs.
Butzel, C. J., and Wiest, Clark, McDonald, Sharpe, North, and Fead, JJ., concurred. | [
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Wiest, J.
Review in this case is on findings of fact and conclusions of law without a bill of exceptions.
Plaintiff claims that, on the facts as found, she is entitled to have judgment' against both defendants, under a declaration in an action of assumpsit, but asks, if the declaration should sound in tort, that an amendment be allowed in this court.
Defendant Stinson Aircraft Corporation claims. that the findings do not support the judgment. Defendant Fidelity Trust Company is content with the judgment in its favor and contends that it should not be disturbed.
Briefly stated the facts are as follows: Plaintiff owned 50 shares of stock of the Stinson Aircraft Corporation. That company planned a merger with the Cord Corporation, and employed the Fidelity Trust Company to act as depositary with whom its stockholders could deposit their shares of stock, accept the terms of the depositary agreement, and elect to have one share of stock of the Cord Corporation for two shares of stock of the Stinson Aircraft Corporation, or have cash at the rate of $17.50 for each share. Plaintiff learned of the offer, and, desiring to deposit her shares and take the cash offer, visited the depositary, turned in her stock, and stated thht she elected to take cash, but, by mistake, arising from her inability to read without her eyeglasses, and the possible misunderstanding of the clerk of the trust company, she signed an option to take stock. Not receiving cash, she brought this suit in assumpsit against the aircraft company and the trust company to recover, as though she had elected to have cash, and had judgment against the aircraft company, but not the trust company.
The judgment in favor of the trust company was right. The aircraft company was the disclosed principal of its agent, the trust company, and, in the absence of actionable fraud, was not liable to plaintiff. There was no fraud perpetrated by the trust company. A mere mistake is not fraud. Under the facts, as found by the circuit judge, it would not help plaintiff to permit the declaration to be amended, and the request to amend is denied.
The judgment against the aircraft company cannot be sustained. The option, signed by plaintiff, called for stock and not money. The judgment calls for money and not stock. The suit is upon an obligation to pay money. The proof shows an obligation to deliver shares of stock. The option signed by plaintiff controls as long as it stands, and it stands unless and until reformed by decree in equity. Plaintiff could not sue upon the option, and, notwithstanding the option, have judgment to the contrary.
The law court cannot reform instruments or ignore written agreements. The option had to be in writing. If the option signed by plaintiff is ignored, then no valid option was executed. If there was no valid option executed, then plaintiff has received no promise of money for her shares of stock.
The judgment in favor of the Fidelity Trust Company is affirmed, and the judgment against the Stinson Aircraft Corporation reversed, without a new trial, and with costs against plaintiff.
Butzel, C. J., and Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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McDonald, J.
On the 29th day of December, 1926, the plaintiff brought this action against the two defendants. Each retained counsel. Ralph A. Aldrich represented defendant Starkweather. After the pleadings were filed and the cause became at issue, Mr. Aldrich died. This was in April, 1929. No further proceedings were had in the case until November, 1929, when the plaintiff filed a motion to advance it for early trial. Notice of the motion was not served on the defendant. The motion to advance was granted and the trial began January 9, 1930, about three years after suit was started. Defendant Starkweather received no notice of the trial. After his attorney died he did not employ other counsel. At about the conclusion of the trial, the other defendant, Walsh, who was present with his attorney, telephoned to Mr. Starkweather that the case was being tried. Starkweather then appeared in court and requested time to procure an attorney. His request was denied, and judgment was entered against him for $5,400. As to the other defendant, who was represented by William Tarsney, the judgment was no cause of action. Mr. Starkweather made a motion for a new trial, which was denied.- It is his claim that the denial of this motion was error, for which the judgment should be reversed.
The chief contention of defendant is that, after the death of his attorney, it was incumbent upon the plaintiff before any further proceedings were taken by him to notify the defendant to employ another lawyer. This contention is based on 3 Comp. Laws 1915, § 12068 (3 Comp. Laws 1929, § 13589), and reads as follows: •
“When an attorney shall die, be removed or suspended, or cease to act as such, the person for whom he was acting shall be notified to appoint another attorney at least thirty days before any proceedings shall be had against such person, in the matter wherein such attorney was acting for him.”
If this statute is mandatory, as it seems to be, the court was without authority to proceed with the trial until it had been complied with by the plaintiff. But regardless of the statute, it was in the discretion of the trial judge to continue the case in order that defendant might have time to secure an attorney. A very substantial judgment was rendered against him. He was not permitted to present his defense, which he says was meritorious. The case was not closed when he appeared in court, gave a reasonable excuse for his apparent neglect, and requested an opportunity to secure counsel. In the circumstances, the denial of his request was an abuse of judicial discretion for which the judgment is reversed, and a new trial granted, with costs to the defendant.
Butzel, C. J., and Wiest, Clark, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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] |
Sharpe, J.
On August 28, 1926, defendants received a letter from plaintiff, reading as follows:
“We are now engaged in compiling the next issue of our Railroads and Steamships Manual. In future issues we propose to list the warehouses of the world.
“We are enclosing a clipping regarding your activity which we solicit authority to rewrite to conform with our style and method of presentation, publishing the same in future issues of the warehouse section of this reference work should you accept our offer for such special representation. In connection please make any necessary marginal corrections or additions desired and return to us promptly. Thanks in advance.”
Enclosed therewith was a sheet of paper of ordinary letter size, made up as follows: In the upper left-hand corner is a picture or outline, about two inches in width and three inches in length, of the book plaintiff proposed to publish, entitled, “Directory of Railroads and Steamships also Warehouse Service.” In the opposite corner, boxed in by a black line, is printed in small type, occupying the same space as the picture of the book, an offer to publish defendants’ advertisement in the directory for the years 1927 and 1928 for $50 per year. Between these two designs, which slant towards the center of the sheet, there is printed in large letters at the top, “Directory of Railroads and Steamships also Warehouse Service,” and in smaller type an additional reference to plaintiff’s business. Below, and where a communication on a letterhead would usually begin, is printed:
“The undersigned accepts your offer to prepare and publish a revised description of our activity in the Directory oe Railways and Steamships, also Warehouse Service, to be made up from the following data:
Classify under City of.................•........”
A mucilaged slip was then pasted thereon, containing an advertisement of the defendants’ business, consisting’ of six lines, in which its.officers were named and information given as to consignments to be sent to it for shipment. At the bottom of the sheet was a dotted line for defendants’ signature and the date of mailing. On it appears the name of the defendant company, by H. Bylenga, General Manager.
The plaintiff .published defendants’ advertisement in its 1927 and 1928 issues, and brings this ac-' tion to recover the $100 claimed to be due it under the contract. Defendants had judgment. Plaintiff seeks review by case-made.
Defendants’ manager, while admitting his signature, testified that he did not read the printing in the oblique box in the upper right-hand corner; that he supposed he was merely signing a consent that plaintiff might publish the advertisement in its directory without charge to the defendants.
The trial court concluded as a matter of law:
* ‘ The minds of the parties hereto never met upon the terms of the alleged contract. That defendants never intended to contract with plaintiff that plaintiff should publish the data contained on the free listing clipping, in plaintiff’s register, and to pay plaintiff therefor.”
A meeting of the minds of the parties upon all essential points is necessary to constitute a valid contract. Sterling & Son Co. v. Watson & Bennett Co., 193 Mich. 11; Pangburn v. Sifford, 216 Mich. 153.
This court has many times held that one who signs a contract will not be heard to say, when enforcement is sought, that he did not read it, or that he supposed it was different in its terms. Gardner v. Johnson, 236 Mich. 258; Draeger v. Kent County Savings Ass’n, 242 Mich. 486; Powers v. Indiana & M. Elec. Co., 252 Mich. 585. But the general rule announced in those cases is not applicable when the neglect to read is not due to carelessness alone, but was induced by some stratagem, trick, or artifice on the part of the one seeking to enforce the contract. This exception was noted in the Gardner Case, wherein it was said:
“There is no testimony of procuring.her signatures by trick, or artifice, no testimony of any act of fraud.”
A fraud is usually accomplished by making its victims neglect the precautions essential to prevent injury. In Schupp v. Davey Tree Expert Co., 235 Mich. 268, 271, this court said:
“The fraud worked because plaintiff was careless, but this did not render it any less a fraud. ’ ’
In 6 R. C. L. p. 633, it is said:
“But the fact that the means of knowledge were open to him, were indeed easily available, and that nothing but gross negligence would have failed to discover the falsehood, do not preclude an inquiry into the truth as to whether he in fact had the knowledge, and was in fact misled by the stratagem of his adversary.”
This statement of the law is a quotation from the decision in Western Manfg. Co. v. Cotton & Long, 126 Ky. 749 (104 S. W. 758, 12 L. R. A. [N. S.] 427), wherein a somewhat similar question was discussed at length. It was therein further said:
“While there is always a sharp struggle in the courts between the desire to repress fraud upon the one hand, and to discourage negligence and the opportunity and invitation to commit perjury by laying down the bars upon the other, the question seems to be settling down to hearing all the facts, still scrutinizing closely, and even suspiciously, the claim of a party to such an instrument that he had not read it. The fact is that very thing frequently happens. The rule of law is one of policy. Is it better to encourage negligence in the foolish, or fraud in the deceitful? Either course has most obvious dangers. But judicial experience exemplifies that the former is the least objectionable, and least hampers the administration of pure justice.”
The question presented is whether the communication sent to defendants was designedly prepared by the plaintiff in such a manner as to cause an ordinary business man to affix his signature in the place indicated for it without reading the boxed-in printed matter in the upper corner thereof. In our opinion this question should be answered in the affirmative.
When the envelope was opened by Mr. Bylenga, his attention was first attracted to the letter it contained. On reading it, he could not be chargeable with notice that the proposal to list his company’s business in the directory was other than gratuitous. On turning to the sheet accompanying it, he found, pasted thereon, a clipping containing an advertisement of the company’s business, which he believed to have been taken from a magazine or directory in which it had been published without charge. He testified that he did not examine the upper part of the sheet or read what was printed thereon. He assumed that a cheeking of the correctness of the advertising matter and a consent to its publication were all that plaintiff required the defendants to do, and that was the only purpose he had in mind when he signed it. That there was no meeting of the minds of the parties as required to make a valid contract is apparent, and the stratagem resorted to by plaintiff to secure defendants’ signature relieves the defendants of the liability usually attaching to one who signs an instrument without ascertaining its true character.
Plaintiff relies on Publication Division, etc., v. Blakeslee, 225 App. Div. 229 (232 N. Y. Supp. 508). The facts clearly distinguish it. We quote from the opinion:
“The offer made by the plaintiff was mailed to the defendant from the plaintiff’s place of business in the city of Baltimore, Md. In large letters inclosed within an arrow pointing to certain printed matter are the words ‘Here is Our Offer.’ ”
No letter accompanied it as in the case before us. The change in the form there used, although for the same years, is suggestive that plaintiff discovered from the lack of the acceptances that it was calling attention to the offer too plainly, and substituted the form here used therefor.
Our attention is called to Shannon v. International Transp. Ass’n (Ga. App.), 155 S. E. 773. In that case, this plaintiff brought an action to recover upon the acceptance of a similar offer, and was permitted to recover. In deciding it, however, the court said:
“The defendant did not undertake to set up any fraud or device as suggesting his failure to read the agreement. Under this state of facts, a verdict in favor of the plaintiff was demanded, and the judge of the superior court did not err in overruling the defendant’s motion for new trial, based upon the general grounds.”
The judgment is affirmed.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, North, and Fead, JJ., concurred. | [
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Butzel, C. J.
Lorine M. Trader, plaintiff, charging cruelty and nonsupport, brought suit for divorce against defendant, Albert C. Trader. The parties were married in Chicago in 1908 and are respectively 42 and 43 years of age. Three sons, under 16 years of age, and respectively 15, 11, and 7 years old, are now living with, and being supported by, plaintiff. A son 20 years of age also lives with plaintiff.
Defendant was formerly a baggage man on a railroad. Over 10 years ago the parties moved to Ottawa county in this State, where they purchased a 15¾-acre farm for $4,800. They both contributed towards it. There is a $2,000 mortgage against the farm. Defendant alleges the farm is worth less than $7,000. It is'assessed at $2,000. Defendant for a time worked for plaintiff’s father, hnt when the latter’s factory was shnt down over seven years ago, defendant did not secure any other position. The family soon thereafter became destitute, and their credit was shut off. In order to help support them, plaintiff returned to Chicago, where she averaged $60 a week as a milliner. She continually sent money to defendant in order to maintain the family and a part of the time to pay for a housekeeper. Defendant admits that she contributed over $3,000 for these purposes. He constantly wrote to her for more money. The children continued to live with defendant on the farm while plaintiff remained the breadwinner. Defendant, although strong and able-bodied, seemed unwilling or unable to secure a position and provide for the family. He attributes his remissness to the present unemployment situation, but his idleness began many years prior thereto, and has continued ever since.
Plaintiff finally returned home, but soon thereafter left defendant, and took the three children under 16 years of age with her to Wayne, Michigan, where they all live with her father. She supports herself and the children with the aid of her father and her 20-year old son. The lower court granted plaintiff a decree of divorce, and defendant has appealed.
On motion in this court to compel defendant to pay towards plaintiff’s expenses on the appeal, it was stated in the accompanying affidavit, and not denied by defendant, that although defendant had been ordered to pay $7.50 a week for the support of the children pendente lite and also an attorney’s fee, he had not made any payment whatsoever in almost the year that has elapsed since the entry of the order. While the nonsupport charge must be entirely founded on facts that occurred prior to the filing of the bill, nevertheless the conduct of the defendant in not obeying the court’s order and thus contributing towards the family’s support tends to confirm our opinion, after reading the record, that defendant is guilty of nonsupport, and that the court was correct in granting plaintiff a decree.
Plaintiff also charges defendant with extreme cruelty, principally on account of using obscene and vile language, and making opprobrious charges. It is claiihed that plaintiff did not have such a refined and sensitive nature so as to be seriously affected by defendant’s misconduct in this regard. Details are unnecessary. Even were there any doubt as to the charges of cruelty,'defendant’s expressions to the children and in their presence, and his absolute failure and neglect to provide support for his wife and children, leave no room for, doubt but that the trial judge was correct in granting the divorce.
The trial judge in the final decree ordered defendant to pay $1.50 a week for the support of each of the minor children until each reaches the age of 16. He gave the farm, subject to the mortgage, to plaintiff. He also gave her certain personal property in the home, and one-half of the household furniture. He also permitted defendant to retain his one-third interest in the' equity in a Chicago building, mortgaged fob $5,000 and estimated to be worth $11,000. Its real worth was not shown. He was also permitted to keep the cow, pigs, farm tools, and a Ford truck and a Dodge sedan. Defendant claims that he owes $750, but about one-half of this consists of past-due interest on the mortgage and back taxes on the farm. Plaintiff, however, should pay the back interest and taxes, and further, in order not to increase defendant’s indebtedness, plaintiff should pay him the sum of $350. This sum may be paid by crediting him with an equivalent amount on the sums due from him to plaintiff for the support of the children under the court’s order and on the costs of the lower court and this court. In all other respects the decree is affirmed, with costs to plaintiff.
Wiest, Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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Potter, J.
Defendants review by certiorari an order of the department of labor and industry refusing to stop plaintiff’s compensation.
March 14, 1929, plaintiff was injured while in the employ of Stevens & Wood, Inc. An agreement was entered into to pay plaintiff $18 a week during the period of disability. Compensation was paid plaintiff to January 16, 1930. January 23, 1930, a petition was filed to stop compensation, upon the hearing of which, before a deputy commissioner, compensation was ordered stopped, which order was reversed by the department.
Two questions are presented: It is claimed that inasmuch as the application to the department of labor and industry to review the order of the deputy commissioner was signed by plaintiff’s wife and no application for review was filed, signed by plaintiff or his attorney, until after the lapse of the statutory period, the department of labor and industry was without jurisdiction to enter the order complained of. The authority of plaintiff’s wife to sign the application for review was not questioned at the hearing. Had it been, her authority might have been established. The question cannot be here raised for the first time. It is claimed the evidence does not sustain the findings of the department. There was evidence to sustain the findings. The department’s order is affirmed, with costs.
Butzel, C. J., and Wiest, Clark, McDonald, Sharpe, North, and Fead, JJ., concurred. | [
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Butzel, C. J.
Plaintiff for over 20 years had been engaged in selling shirts, hosiery, and underwear, etc., to his customers at their respective homes and offices in the city of Kalamazoo. His earnings amounted to $1,300 a year.
Shortly after dark on the afternoon of February 6, 1929, upon alighting from a street car on his way home, at the corner of Westnedge avenue and Walnut street, plaintiff claims he looked in both directions before proceeding from the street car tracks to the sidewalk. As he was nearing the curb, he was struck by an automobile belonging to de fendant John Bushonse and driven by his 17-year old son, defendant Isa Paul Bushouse. According to the record, there seems to be but little doubt that plaintiff’s injuries were sustained through the negligence of defendants. It was admitted that the car was old and the lights so dim that the driver could not see over 60 feet ahead. The brakes were applied, but failed to work properly. This was due to the speed at which the car was driven over the pavement, covered with ice. No contributory negligence was shown on the part of plaintiff. The jury rendered a verdict of $5,000 in his favor.
Questions of the admissibility of the evidence are solely presented in the assignments of error. It is claimed that the answers to improper questions, timely objected to, affected the verdict. Plaintiff at the time of the accident was 75 years of age. He was suffering from some infirmities, including a disability and stiffening of the hip joints, slowness of locomotion and then at times only with the aid of a cane. Nevertheless his general health was otherwise good and he was able each day to go about unassisted and walk a long distance in order to visit his customers. The record leaves little doubt as to the seriousness, painfulness, and permanency of his injuries. Several ribs were broken and his arm and wrist badly injured. He sustained compound comminuted fractures of both bones of the right leg just below the knee, and also other serious injuries resulting therefrom. He remained at the hospital for over five months, during a large part of which time he suffered very acute pain. In addition to the Roentgenologists, three physicians testified that plaintiff’s condition was very serious. Two of them examined him shortly before the trial, almost a year after the date of the accident. They found that he was permanently disabled. At the time of the trial he was only able with the aid of crutches to move about the floor of the house in which he lived. He needed the support of others to get about. He required help to' dress and undress. His right hand has only about one-tenth of its former grip, due to the injury to the muscolo-spinal nerve. This may affect his use of crutches. The fracture of two ribs still caused, him pain upon deep respiration or coughing. His right leg had almost ceased to function. It was very purple and swollen from the toes to the knee. The ankle joint, could scarcely be moved and the leg. seemed almost lifeless. The medical testimony indicates that amputation may become necessary. There is little doubt that plaintiff will continue to suffer severe discomforts, painful attacks, and possibly more serious consequences from his injuries. His earning capacity appears to be ended. The testimony shows that at the time of the trial his expectancy was 5.88 years. If the $1,300 he would have earned from the time of the accident up to that of trial, together, with $759.42, the amount of the medical bills and hospital expenses, be added to the present worth of the expectancy, his financial loss would amount to $8,000 or thereabouts. This does not include any compensation for the extreme pain and suffering he endured and which may continue in an undetermined degree.
Defendants ask for reversal on two assignments of error, and that they be considered both separately and together so that if there is insufficiency in one, it may be -supplemented by the other. *
Upon the voir dire, the jury was asked whether they were members of the Citizens Mutual Insurance Company of Howell, Michigan. The question was at first improperly framed, but, after objection, propounded in correct form. There was no-studied effort to repeat it nor was the question of insurance again referred to during the trial. It is unfortunate that the question of insurance should arise so frequently in trials of negligence cases. Undoubtedly the question may be a very important one. It is well known that many automobile drivers carry liability insurance. Some companies in the conduct of their large businesses have many officers and employees, some of whom may be summoned for jury service. Shares of stock in some of the companies may be held by potential members of a jury. Mutual companies do a very large business .and members thereof may be interested in the outcome of a'case 'in which their company may be the real, though not the nominal, defendant. We have held in previous cases that if the question of insurance is not brought into the case on the voir dire examination for the purpose of influencing a jury, it is not reversible error. The entire question depends upon the good faith of counsel. Church v. Stoldt, 215 Mich. 469; Reynolds v. Knowles, 223 Mich. 70; Morris v. Montgomery, 229 Mich. 509; Sutzer v. Allen, 236 Mich. 1; Oliver v. Ashworth, 239 Mich. 53. It, however, will result in error if a question in regard to insurance is not asked in good faith but for the purpose of inflaming or prejudicing the minds of the jury. Holman v. Cole, 242 Mich. 402; Palazzolo v. Sachett, 245 Mich. 97.
Subdivision 6, § 33, chap. 2, pt. 3, Act No. 154, Pub. Acts 1929 (3 Comp. Laws 1929, § 12460), refers to provisions required in certain policies. Beginning with the twenty-second line of this section, 'it is provided as follows:
“In such original action, such insurance company, or other insurer, shall not be made, or joined as a party defendant, nor shall any reference whatever be made to such an insurance company, or other insurer, or to the question of .carrying of such insurance during the course of trial. ’ ’
We need not discuss the constitutional objection raised that this quoted provision is in no way referred to in the title of the act, nor need we consider whether it applies to the present ease. We have repeatedly held that the legislature may not interfere with the judicial power vested in the courts by the Constitution of this State. People, ex rel. Atty. General, v. Holschuh, 235 Mich. 272; Bielecki v. United Trucking Service, 247 Mich. 661; People v. McMurchy, 249 Mich. 147. The quoted provision as far as it attempts to control judicial power is void. The naming* of an insurance company may become necessary on the voir dire. It would be better not to name it, and thus avoid the suspicion that it was done for the purpose of influencing or prejudicing the jury.
While we realize that in the present case the jury might have concluded from the question objected to that the Citizens Mutual Insurance Company of Howell, Michigan, was the real party defendant, we also are fully appreciative of the fact that plaintiff should have the right of inquiry to ascertain on the voir dire whether any members of the jury belonged to this organization. Had the question of insurance been further stressed, there would have been error which we could not overlook. While we are constrained to hold that there was no error in asking the question, on the voir dire, we nevertheless again call attention of counsel to the case of Holman v. Cole, supra, where a proper method of interrogating the jury in regard to insurance on the voir dire is set forth. We also might suggest to the trial judges who so frequently examine the jury on the voir dire, that they might make a brief statement calling attention to the fact that some automobile drivers do and others do not carry insurance; that under no circumstances should it make any. difference whatever as to the outcome of the case whether such insurance is carried or not; that the judge asks the question about to be puffin every negligence case, and that he does not know, nor does the asking of the question signify, whether defendant carried insurance; that the law does not permit any further reference to be made to the subject during the trial of the cáse, but that the plaintiff has a right to know whether any of the members of the jury are officers, employees, or stockholders in any insurance company or members of any mutual insurance company. If, after asking the question, the answer is in the affirmative, further questions may follow and challenges made, if desired. If it is in the negative, the question is disposed of with finality. Such an action on the part of the trial judges should result in the further exclusion of all reference to insurance under penalty of a reversal of the case should counsel persist in again purposely referring to it. We do not believe that there was any error in permitting the question as propounded in the present case, though it might have led to difficulty if further referred to. As a rule there is no necessity of naming an insurance company.
The second assignment of error relates to the admission of testimony, as follows:
“Q. Now, after this accident, did you give up your home on Walnut Street?
“A. Yes sir. .
“Mr. Fitzgerald: I object to that as immaterial and irrelevant. I suppose he was in the hospital as far as that is concerned.
“Mr. Ford: Well, we shall claim damages that this plaintiff: has given up.his home. He hasn’t lived with his wife. It was a necessary result of this accident. He has been deprived of earnings. He has been unable to provide a home.
“The Court: You may take it.
“Mr. Ford: The court said you may answer that question. Read it, Mr. Reporter.
“Mr. Fitzgerald: I suggest that the loss of earnings, if such is the case, is quite a different thing from somebody else losing a home, or not having the accommodations—
“The Court: As I understand, physical pain and suffering, any inconvenience or annoyance, Mr. Fitzgerald, entailed by it.
“Mr. Fitzgerald: Of course, on the other angle, he is asking compensation for hospital bills, services for being taken care of. He ought not to be allowed both 'of them.
“The Court: Well, I suppose Mr. Ford has reference to the period since he left the hospital. I take it that is the purpose of this inquiry.
“Mr. Ford: Well, I didn’t limit it to that. Tobe perfectly frank, my question — immediately after this accident and as a result of it.
“The Court: He went to the hospital.
“Mr. Ford: He went to the hospital, and by reason of his having no earnings since, he has had no home. A man can’t have a home without earnings.
“The Court: Well, proceed.
“Mr. Ford: Read the question, Mr. Stenographer.
“(Question and answer read.)
“The Court: It may stand.
“Q. What was done with your household goods, Mr. Harker?
“A. We sold some of them.
“Mr. Fitzgerald: I object to that. May the objection also apply to that?
“The Court: I think the objection to this should be sustained. I don’t see how this enters into any element of damages.
“Q. Have you lived with your daughter ever since this accident?
“The Court: He has already answered that.
“Q. Where has your wife been since the accident?
“Mr. Fitzgerald: I want to object to that as immaterial, irrelevant, and incompetent.
“.The Court: You may take it.
“A. Part of the time, while I was in the hospital, my wife was with my daughter, but since I came out, she has been with my son at Milford, Michigan, near Pontiac.”
This testimony was highly improper. When the answers to the questions objected to are considered in connection with the remarks interpolated by counsel and the answer given before an objection could be made, the jury neéessarily were impressed with plaintiff’s claim that the loss of his home, and the society and companionship of his wife resulted from his injuries. No consequential damages were set forth in plaintiff’s declaration. Since the passage of the married woman’s act, neither husband or wife may recover for the loss of consortium in this State. Blair v. Seitner Dry Goods Co., 184 Mich. 304 (L. R. A. 1915 D, 524, Ann. Cas. 1916 C, 882). The evidence further tends to show plaintiff’s poverty and thus enlists the sympathy of the jury. In an action for personal injuries, testimony as to such immaterial and collateral matters should be excluded, and particularly so if their sole purpose is to enlist the sympathy of the jury and affect the legitimate measure of damages. McKormick v. City of West Bay City, 110 Mich. 265; Mortensen v. Brad shaw, 188 Mich. 436; Haynes v. Clark, 252 Mich. 295; Pennsylvania Co. v. Roy, 102 U. S. 451.
There was error in not excluding the testimony hereinbefore quoted. Defendants, however, made no requests to charge so as to undo any harm that might have resulted. The improper testimony did not affect the general result of the trial for the negligence was proven beyond any question. The sole question before us is whether the admission of this improper testimony enhanced the amount of the verdict. Were it for an unduly large amount, we would set it aside. Holman v. Cole, supra.
In denying the motion for a new trial, the trial judge stated, in answer to the two assignments of error:
“Respecting the amount of the verdict, plaintiff’s injuries were so serious, his suffering so constant and so great and of such duration, his expenses so large, his fixed, definite earning capacity so entirely destroyed; in fact, the resulting damages were so pronounced and undisputed, that we do not need to look further to account for the amount of the verdict. On the question of damages the case was lopsided, so overwhelming was the testimony • and so wholly undisputed. There is no occasion for any alarm that the voir dire examination or that that portion of plaintiff’s testimony of which complaint is here made may have enhanced the verdict. ’ ’
A careful reading of the record convinces us that the amount of the verdict was not enhanced by the improper testimony. It is wholly supported by proper evidence. For this reason alone, we affirm the judgment, with, costs.
Wiest, Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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WHITBECK, J.
Defendant, Derek Fonville, appeals by leave granted the trial court’s order denying his motion for relief from judgment. Fonville pleaded guilty to a count of child enticement as part of a plea bargain. We reverse and remand the matter to the trial court.
I. BASIC FACTS
The circumstances from which this action arises involve the two children of Fonville’s girlfriend: JR 1 (aged 10) and JR 2 (aged 8). On the evening of April 19, 2006, the children’s mother voluntarily placed them in Fonville’s care while she was at work. However, Fonville failed to return the children at the agreed-upon time; instead, he kept them through the night and well into the next day. The police recovered the children during the afternoon of April 20,2006. The children were tired, but unharmed. The prosecution accused Fonville of detaining the children in his vehicle while he and a friend were driving around under the influence of alcohol and drugs.
The prosecution originally charged Fonville with two counts of child enticement and two counts of kidnapping. Following the preliminary examination, the district court bound Fonville over on the original counts, holding as follows:
While it was clear that [Fonville] did have consent to have the children when he first took them on April 19th, his job at that point in time, for lack of a better word, was to keep an eye on the kids while [their mother] went to work and that he would pick her up later. And the understanding was that the kids would be returned to her at that point in time. While he had consent the fact of the matter is he did not have consent to keep the kids overnight. He even admitted the same to Detective [Lawrence] Fetherolf that he did keep the kids overnight; took them on a number of different journeys out to Pontiac it sounds like. And did not return the children home at any point during the night of the 19th or the morning of the 20th even when [JK 1] .. . requested that he be allowed to go home. He was told “no” at that point in time. The testimony of Detective Fetherolf was that [Fonville] felt it more important to take care of [his friend]... than to return the children to their mother at that point in time. So, I think the best you’ve got is a question of fact. The matter will be bound over to circuit court on all charges and bond will be continued.
In an amended information, the prosecution dropped the two kidnapping charges and kept only the two counts of child enticement. Pursuant to an agreement with the prosecution, Fonville agreed to enter a guilty plea to one count of child enticement in exchange for the prosecution’s dropping the other count of child enticement. Fonville’s plea bargain included a Cobbs agreement, which was that the trial court would sentence him at the low end of the sentencing guidelines recommended minimum sentence range.
At a September 2006 plea proceeding, defense counsel stated that he had explained the plea bargain to Fonville and Fonville’s mother. Fonville agreed on the record that it was his understanding that he would enter the Cobbs plea with a minimum-sentence cap of 51 months and that he would be able to withdraw his plea if the minimum sentence went beyond that. The trial court then went on to accept Fonville’s guilty plea. During the trial court’s questioning, Fonville stated that, on April 20, 2006, he “pretty much endangered two young kids” by “doing drugs and driving around with them in the car.” Fonville acknowledged that the children were less than 14 years old. He admitted that he and a friend were using cocaine at the time the children were with him. Fonville also agreed with the prosecution that he and his friend repeatedly drove to Pontiac to get crack cocaine and that the children were with them. He agreed that his addiction to crack cocaine was “feeding” his mind. Fonville acknowledged that he knew that he was supposed to return the children to their home at 11:00 p.m. on April 19. He agreed that “because of getting crack and everything,” he “ended up ... keeping the kids with [him], driving around from 11 p.m. at night through 2 p.m. in the afternoon the next day[.]” The prosecution asked him, “So you fraudulently detained these kids, correct?”; Fonville answered, “Yes.” The prosecution and the defense indicated their satisfaction with the factual basis for Fonville’s plea to the charge of child enticement. And the trial court stated that it was satisfied that Fonville’s plea was knowingly, voluntarily, and accurately made.
However, at the September 2006 sentencing hearing, defense counsel informed the trial court that Fonville wished to withdraw his plea. Defense counsel explained that Fonville wished to withdraw his plea because the plea agreement would encompass the requirement that he register as a sex offender. Fonville then addressed the trial court and stated that he wanted a jury trial. Fonville asserted that his defense counsel had told him that he would be making a “big mistake going to trial.” He further explained:
When I came into the court on the 13th of September, I sat in the holding cell all day and never came to court cause my lawyer set a court date with the prosecutor indicating to him that I would take a [Cobbs] plea, when I did not. That’s why I never came into court that day, because I was supposed to notify my lawyer and if I wanted to plead to get hold of him, and I never agreed to it. So, naturally, I didn’t come to court.
So then I came back into court on the 15th of September, that following Friday, and that’s when my lawyer kept telling me to taking [sic] a Cobbs plea, four years to ten. I told him numerous times I wanted a jury. That’s when he said a second time I was making a mistake.
So, when I came into court the 15th of September my lawyer came in a third time and said to my mom, you should take the plea. While the prosecutor was talking to my mom, I looked at my mom and she said “take it”. So, I did, thinking she was looking out for my best interest, even though I didn’t do this. When I talked to my mom later that evening she said the prosecutor said he knew I didn’t kidnap those kids and he said to my mom if I went to trial that he would have to play hardball.
Fonville denied the enticement charge, stating: “I would never lure a kid or kidnap anyone. It’s a hard pill to swallow especially when I would never force [JR 2] or [JR 1] to do something they didn’t want to do. I love kids and always try to help if I can.” The trial court indicated that it needed to review the plea transcript, so it adjourned sentencing.
Before the trial court could reconvene for sentencing, Fonville’s attorney moved to withdraw as counsel for Fonville, which the trial court granted. And in January 2007, Fonville, represented by new counsel, again moved to withdraw his plea. Although admitting child endangerment, Fonville asserted in his motion that he should be allowed to withdraw his plea because he had no “evil, criminal intent,” merely “reckless criminal intent.” The prosecution responded, asserting that Fonville’s admission that he fraudulently detained the children supported the plea.
At a February 2007 hearing on the motion, defense counsel asserted that Fonville had entered his plea on the basis of inaccurate and misleading advice of his former counsel and that he was innocent of the charge of child enticement. Defense counsel asserted that when Fonville was told that he could plead guilty of child enticement instead of kidnapping, he did not understand that both kidnapping and child enticement carried potential life sentences. Defense counsel contended that the facts did not support a conviction of child enticement, noting that the children were unharmed. Defense counsel argued that the factual basis for the plea only supported a conviction of second-degree child abuse, to which Fonville was willing to plead guilty.
The prosecution responded, noting that the transcript of the plea proceedings clearly showed that Fonville acknowledged that he understood that the maximum sentence for child enticement is life in prison. The prosecution further argued that the facts as pleaded showed that Fonville had committed the offense of child enticement. The prosecution pointed out that Fonville did not claim innocence: he admitted that he fraudulently detained the children by concealing their whereabouts from their mother while he was driving around looking for cocaine. Thus, the prosecution contended that Fonville had not demonstrated that the requested plea withdrawal would be in the interest of justice. The prosecution additionally argued that permitting Fonville to withdraw his plea would result in substantial prejudice. In support of this position, the prosecution noted that if the case went to trial, the children would have to testify. According to the prosecution, this would be extremely difficult for them because they would have to be psychologically prepared to do so.
Considering Fonville’s motion, the trial court held that (1) Fonville’s plea was valid, (2) Fonville entered into a Cobbs agreement, (3) the prosecutor was the sole charging authority, (4) nothing indicated that Fonville was innocent, and (5) Fonville admitted the facts supporting his plea. The trial court ultimately reasoned:
... I understand that those are the types of allegations that, quite frankly, could be made in a lot of cases and not constituting child enticement, but the requirement to go forward with a child enticement charge, again, is not within the province of the Court finding that that would outweigh the benefits of the finality and all the other issues associated and have heen set forth by the People.
The Court also notes that the Court gave [Fonville] a Cobbs impression [sic] which was to the, basically, the bottom of the guidelines and so given the totality of circumstances and for the reasons as set forth by the People, [Fonville’s] motion to withdraw his plea is denied.
At the subsequent sentencing hearing, defense counsel acknowledged the Cobbs agreement for the trial court not to exceed the guidelines minimum of 51 months, but he attempted to persuade the trial court to deviate below that minimum. Defense counsel noted Fonville’s history with the children, the fact that the children were not harmed, and the fact that the children’s mother had submitted a letter stating that he did not deserve jail time.
To the extent that Fonville was seeking again to withdraw his plea, the trial court reiterated that Fonville’s plea was knowing, voluntary, and accurate. It found no basis for permitting the withdrawal. The trial court then provided Fonville with his opportunity for allocution, and Fonville told the trial court:
On April 20th, 2006 I had possession of my girlfriend’s two young children, [JR 1], age ten, and [JR 2], age eight.
I was supposed to return the two children to the mother at 11 p.m.... I did not do so. Instead I retained possession of the children until I was apprehended by the police at 12:15 p.m., in the afternoon of April 21st, 2006.
I admitted that I did not return on time and I kept the children in the car with me while I drove around Oakland County looking for cocaine continuously from 11 p.m. until apprehended by police the next day at 12:15 p.m. on April 21st, 2006.
However, there’s one important fact, which is, that approximately one hour before being apprehended Waterford Police investigated my vehicle, questioned.. . me [and] a passenger... , and the two children, who were playing basketball, and all were released to go on our way....
... I plead [sic] guilty.... At... the date of sentence, I read a letter to the Court detailing why I wanted to withdraw my plea. I essentially stated that I did not receive accurate advice and claimed my innocence to kidnapping. In addition, I never realized that I would go down as a sexual offender.
I always thought I was guilty of some sort of child endangerment charge because of my actions, not an enticement charge, which denotes some kind of evil criminal intent as oppose [sic] to reckless intent....
... I would like to say that with child enticement on my record makes me a sexual predator.
I will never make the money I’m used to making and my career will be over.
I had permission to have these children, which I’ve had permission before. So how can I be charged with child enticement....
I did put them [sic] children in a bad situation and I am sorry that my addiction took over. I was drinking along with taking xanax, which literally made me blackout. That’s the real reason I’m in this situation. The fact of the matter is, yes, I should be punished, but enticement is not even chose [sic] to child abuse.
Again, to the extent that Fonville sought to withdraw his plea, the trial court denied the request. The trial court then sentenced Fonville to a term of 51 months to 20 years in prison.
Fonville moved to withdraw his plea after sentencing, arguing again that the facts did not support the charge of child enticement. But the trial court denied the motion, finding that Fonville had failed to present any new issues.
Fonville filed a delayed application for leave to appeal, challenging the constitutionality of the child-enticement statute, the prosecution’s choice to charge him with child enticement, and the denial of his motion to withdraw his plea on the basis of ineffective assistance of counsel, coercion, and prosecutorial misconduct. This Court denied the application for lack of merit. The Michigan Supreme Court also denied his application for leave to appeal.
Fonville then moved in the trial court for relief from judgment, raising the same issues that he now brings on appeal. The trial court held that Fonville had not demonstrated good cause for having failed to raise these issues in his earlier application for leave to appeal and that he had failed to show actual prejudice. The trial court concluded that defense counsel’s failure to inform Fonville of the collateral consequences of the plea, namely inclusion on the sex offender registry, did not constitute ineffective assistance of counsel. The trial court further found “no irregularity so offensive to the maintenance of a sound judicial process that [Fonville’s] conviction should not be allowed to stand.” Accordingly, the trial court denied Fonville’s motion. Fonville moved for reconsideration, but the trial court denied the motion.
Fonville now appeals by leave granted.
II. CLAIMS ON APPEAL
A. STANDARD OF REVIEW
This Court reviews for an abuse of discretion a trial court’s denial of a defendant’s motion for relief from judgment. This Court also reviews for an abuse of discretion a trial court’s denial of a defendant’s motion to withdraw a plea. An abuse of discretion occurs when the decision results in an outcome falling outside the range of principled outcomes. Moreover, this Court reviews de novo constitutional issues.
B. LEGAL STANDARDS
According to MCR 6.508(D), a defendant seeking relief from judgment has the burden of establishing entitlement to such relief. MCR 6.508(D)(3) also states that a court may not grant that relief if, among other things, the motion
alleges grounds for relief... which could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter, unless the defendant demonstrates:
(a) good cause for failure to raise such grounds on appeal or in the prior motion, and
(b) actual prejudice from the alleged irregularities that support the claim for relief. As used in this subrule, “actual prejudice” means that,
(ii) in a conviction entered on a plea of guilty,... the defect in the proceedings was such that it renders the plea an involuntary one to a degree that it would be manifestly unjust to allow the conviction to stand;
(iii) in any case, the irregularity was so offensive to the maintenance of a sound judicial process that the conviction should not be allowed to stand regardless of its effect on the outcome of the case[.]
The court may waive the “good cause” requirement of subrule (D)(3)(a) if it concludes that there is a significant possibility that the defendant is innocent of the crime.
C. WITHDRAWAL OF PLEA
Fonville argues that he should be allowed to withdraw his plea to the charge of child enticement because he has consistently maintained his innocence of the crime, the plea was entered on the basis of an incorrect charge, and there was an insufficient factual basis to support a conviction.
When reviewing whether the factual basis for a plea was adequate, this Court considers whether the fact-finder could have found the defendant guilty on the basis of the facts elicited from the defendant at the plea proceeding.
“A factual basis to support a plea exists if an inculpatory inference can be drawn from what the defendant has admitted. This holds true even if an exculpatory inference could also be drawn and the defendant asserts that the latter is the correct inference. Even if the defendant denies an element of the crime, the court may properly accept the plea if an inculpatory inference can still be drawn from what the defendant says.”[ ]
Additionally, MCR 6.310(B) provides, in pertinent part, that a motion to withdraw a plea before sentencing should only be granted if the defendant is able to show that withdrawal of the plea is “in the interest of justice,” meaning that the defendant has to articulate “a fair and just reason” for withdrawing the plea. Fair and just reasons include reasons like a claim of actual innocence or a valid defense to the charge. Things that are not considered fair and just reasons are dissatisfaction with the sentence or incorrect advice from the defendant’s attorney.
Fonville pleaded guilty of child enticement. MCL 750.350(1) defines that crime as follows:
A person shall not maliciously, forcibly, or fraudulently lead, take, carry away, decoy, or entice away, any child under the age of 14 years, with the intent to detain or conceal the child from the child’s parent or legal guardian, or from the person or persons who have adopted the child, or from any other person having the lawful charge of the child.
At the plea proceeding, Fonville testified that he “pretty much endangered two young kids[.]” He did this by “doing drugs and driving around with them in the car.” He admitted that he and his friend were driving around with the children while getting crack cocaine. He admitted that he knew that he was supposed to return the children to their mother at 11:00 p.m. and that he had told both the children and their mother that this was what he was going to do. “But [he] ended up because of getting crack and everything keeping the kids with [him], driving around from 11 p.m. at night through 2 p.m. in the afternoon the next day....” Fonville agreed that he had “fraudulently detained” the children.
Given that Fonville’s admissions were in line with the elements of the charged crime, we conclude that the trial court did not abuse its discretion by denying his motion to withdraw his plea. An inculpatory inference can be drawn from what Fonville admitted. That is, although he originally might have had consent to take the children, he admitted that he later fraudulently detained them by driving around and doing drugs until the next afternoon while the children were in the car instead of returning them at 11:00 p.m. as agreed upon with their mother.
Fonville did not sufficiently demonstrate that withdrawal of his plea was in the interest of justice. Moreover, although Fonville claimed that he was innocent of the crime as charged because he did not have an “evil intent,” he never argued that he was actually innocent of the alleged conduct. The prosecution has authority to choose appropriate charges, and Fonville voluntarily pleaded guilty to the charge pursuant to a valid plea agreement placed on the record.
D. CRUEL AND UNUSUAL PUNISHMENT
Fonville argues that the requirement that he register as a sex offender when there was absolutely no sexual component to the offense committed amounts to cruel and unusual punishment under the Michigan Constitution. He contends that, at minimum, he should be entitled to an order removing his name from the sex offender registry.
The Sex Offenders Registration Act (SORA) requires persons convicted of certain listed offenses to register as sex offenders. The listed offenses include child enticement. Child enticement involves the leading, taking, carrying away, decoying, or enticing away of a child under 14 years of age with the intent to detain or conceal the child from the child’s parent. Thus, Fonville is correct that the offense of child enticement includes no express sexual component as a requirement for a conviction of the offense.
However, the Legislature has made clear that the intended purpose of SORA is to protect public safety and monitor those persons who pose a potential danger to children:
The legislature declares that the sex offenders registration act was enacted pursuant to the legislature’s exercise of the police power of the state with the intent to better assist law enforcement officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders. The legislature has determined that a person who has been convicted of committing an offense covered by this act poses a potential serious menace and danger to the health, safety, morals, and welfare of the people, and particularly the children, of this state. The registration requirements of this act are intended to provide law enforcement and the people of this state with an appropriate, comprehensive, and effective means to monitor those persons who pose such a potential danger.[ ]
Thus, although the offense of child enticement includes no express sexual component as a requirement for a conviction of the offense, the Legislature has nevertheless deemed registration for those convicted of that crime to be a necessary measure to protect the safety and welfare of the children of this state. And in this case, Fonville admitted that his conduct, while not sexual in nature, “endangered two young kids[.]”
Moreover, requiring that a defendant comply with the statutory mandate that the defendant register as a sex offender following a conviction of a listed offense is not punishment. Although a defendant may see registration as a penalty for a conviction of a listed offense, it is not actually a punitive measure “ ‘intended to chastise, deter or discipline an offender.’ ” It is merely a “remedial regulatory scheme furthering a legitimate state interest.”
To the extent that Fonville argues that we should follow People v Dipiazza, we disagree because that case is factually distinguishable. In Dipiazza, this Court held that requiring the defendant in that case to register as a sex offender was cruel or unusual punishment. However, in that case, after the defendant completed probation, his case was dismissed under the terms of the Holmes Youthful Trainee Act, leaving him with no conviction on his record. Despite the dismissal of his case, because he was assigned to youthful-trainee status on August 29, 2004, he continued to remain required to register as a sex offender, whereas after amendments of SORA, a defendant assigned to youthful-trainee status after October 1, 2004, was not required to register (unless the defendant’s status of youthful trainee was revoked and an adjudication of guilt was entered). This Court concluded that, under those circumstances, requiring the defendant to register as a sex offender was cruel or unusual punishment.
Conversely, there has been no similar amendment of the statutory scheme under which Fonville pleaded guilty and his case has not been dismissed. Therefore, we disagree that the reasoning in Dipiazza applies in this case.
E. EFFECTIVE ASSISTANCE OF COUNSEL
Fonville argues that he did not receive effective assistance of counsel because his defense counsel failed to move to quash the information, which he alleges overcharged him. Fonville also argues that he did not receive effective assistance of counsel because his defense counsel failed to advise him that his conviction of child enticement would require that he register as a sex offender. While we disagree with his first contention, we find merit in the second.
In asserting a claim of ineffective assistance of counsel, a defendant must show (1) that defense counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms and (2) that defense counsel’s deficient performance so prejudiced the defendant that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. In proving these elements, the defendant must overcome a strong presumption that defense counsel’s performance constituted sound trial strategy. Absent an evidentiary hearing, this Court’s review of counsel’s performance is limited to mistakes apparent on the record.
1. FAILURE TO MOVE TO QUASH THE INFORMATION
To the extent that Fonville argues that he did not receive effective assistance of counsel because his defense counsel failed to move to quash the information, Fonville has not properly presented this argument to this Court because he failed to identify it as an issue in his statement of questions presented. Therefore, he has waived this issue for appellate review.
We note, however, that a motion to quash the information would have been futile. As stated, following the preliminary examination, the district court bound Fonville over on the original counts, including child enticement, holding as follows:
While it was clear that [Fonville] did have consent to have the children when he first took them on April 19th, his job at that point in time, for lack of a better word, was to keep an eye on the kids while [their mother] went to work and that he would pick her up later. And the understanding was that the kids would he returned to her at that point in time. While he had consent the fact of the matter is he did not have consent to keep the kids overnight. He even admitted the same to Detective Fetherolf that he did keep the kids overnight; took them on a number of different journeys out to Pontiac it sounds like. And did not return the children home at any point during the night of the 19th or the morning of the 20th even when [JR 1] ... requested that he he allowed to go home. He was told “no” at that point in time. The testimony of Detective Fetherolf was that [Fonville] felt it more important to take care of [his friend].. . than to return the children to their mother at that point in time. So, I think the best you’ve got is a question of fact. The matter will be bound over to circuit court on all charges and bond will be continued.
Because sufficient evidence existed at the preliminary examination to support a bindover, defense counsel was not ineffective for failing to move to quash the information. “[T]rial counsel cannot be faulted for failing to raise an objection or motion that would have been futile.” Here, the district court found that there was sufficient evidence to create a question of fact concerning whether Fonville committed the acts as charged. Therefore, Fonville’s claim is without merit.
2. FAILURE TO ADVISE REGARDING SEX OFFENDER REGISTRATION REQUIREMENT
a. BASIC LEGAL PRINCIPLES
“[W]hen a defendant argues ineffective assistance of counsel in the context of a guilty plea, the defendant is essentially arguing that counsel failed to provide sufficient information regarding the consequences, elements, or possible defenses of the plea.” And “ ‘[t]o establish ineffective assistance of counsel in the context of a guilty plea, courts must determine whether the defendant tendered a plea voluntarily and understandingly.’ ” “Absent sufficient information, the plea would be unknowing and, consequently, involuntary.” “Defense counsel’s advice does not need to be correct, but it must fall within the range of competence demanded of attorneys in criminal cases.” More specifically,
for purposes of determining whether defense counsel was effective!,] a defendant need only be made aware of the direct consequences of a guilty plea. A defendant’s ignorance of the collateral consequences of a plea does not render the plea involuntary. Counsel’s failure to properly advise of collateral consequences of a plea does not bear on whether a defendant properly understood the decision to plead guilty to the charges in question.[ ]
Examples of collateral or incidental consequences include the loss of employment, loss of the right to vote, loss of the right to travel freely abroad, loss of the right to a driver’s license, loss of the right to possess firearms, a plea’s possible enhancing effects on a subsequent sentence, institution of separate civil proceedings against the defendant for commitment to a mental-health facility, loss of good-time credit, possibility of imposition of consecutive sentences, possibility of undesirable discharge from the armed forces, disqualification from public benefits, and loss of business or professional licenses.
In contrast, this Court indicated in People v Boatman that an example of a direct consequence of a plea would be the consequence resulting from being sentenced as an habitual offender. In Boatman, although concluding that it lacked the authority to expand the scope of the language of MCR 6.302(B)(2) to require that a trial court inform a defendant of the effect of the habitual-offender statute on the defendant’s sentence, this Court nevertheless explained that “because of the existence of specific and separate guidelines applicable to the sentencing of habitual offenders, the effect of a defendant’s habitual-offender status on sentencing does not comprise a ‘collateral consequence.’ ” This Court stressed that a defendant must know the most serious consequences of a guilty plea. Therefore, according to this Court,
[t]he existence of separate guidelines specified for use with habitual offenders demonstrates the necessity of informing a defendant of the use of these guidelines to ensure “understanding” of the consequences of a plea, particularly under the circumstances of this case where the difference in sentencing comprised a distinction between a misdemeanor and a felony, and a difference of 13 years in the sentence imposed.[ ]
b. THE PARTIES’ ARGUMENTS
The prosecution argues that sex offender registration is a collateral consequence of a conviction and, therefore, defense counsel’s failure to inform Fonville of that requirement did not render his plea defective. In mak ing this argument, the prosecution relies on an unpublished decision of this Court, In re Lyons. In Lyons, a panel of this Court held that a trial court’s failure to inform a defendant that he would be required to register as a sex offender did not provide a basis for overturning an otherwise valid plea. Specifically, the Lyons panel stated that “[Registration as a sex offender is a collateral consequence of a conviction.” The prosecution acknowledges that sex offender registration is a serious consequence of a guilty plea. However, the prosecution observes that other recognized consequences, like loss of the right to vote, are also serious but, nevertheless, merely incidental consequences of the guilty plea. The prosecution also notes that in Magyar v State, the Mississippi Supreme Court recognized that “virtually every other jurisdiction to address the question” has held that “the requirement to register as a sex offender is a collateral consequence of a guilty plea[.]” In those cases, the courts reasoned that sex offender registration is a collateral consequence of a guilty plea because the registration requirement is not penal in nature and thus not part of sentencing procedures.
Fonville, however, argues that this Court should hold that defense counsel was required to inform him that he must register as a sex offender because that requirement was not a future collateral or incidental effect of the initial valid plea. Rather, Fonville contends that registration as a sex offender is an immediate and absolute effect of his conviction. Fonville also contends that a reasonably competent attorney in the practice of criminal law would have been aware of the requirement to register as a sex offender. And he contends that if defense counsel had informed him of the requirement, he would not have pleaded guilty to the child-enticement charge.
c. DEFINING THE CONSEQUENCE
The salient determination comes down to whether registration as a sex offender is a direct or collateral consequence of a defendant’s guilty plea.
We first note that we are not persuaded by the prosecution’s reliance on In re Lyons or Magyar. Lyons is unpublished, offered no rationale for its conclusion, and is not binding on our decision in this case. Additionally, the cases from other jurisdictions that the Mississippi Supreme Court cited in Magyar are also not binding on this Court. And although we recognize the rationale in those cases as persuasive, we are more persuaded by the reasoning offered by the United States Supreme Court’s recent decision in Padilla v Kentucky. The parallels with this case, although not exact, are significant.
In Padilla, the Supreme Court considered the question whether defense counsel has an obligation to advise a defendant that the offense to which the defendant is pleading guilty will result in the defendant’s deportation from this country. The defendant argued that his defense counsel’s performance was deficient because counsel erroneously advised him that he did not “have to worry” about deportation as a consequence of his guilty plea. In truth, the defendant’s plea to the charged offense “made his deportation virtually mandatory.” The Court held that a defense attorney must inform a defendant whether a plea carries a risk of deportation.
In so ruling, the Supreme Court agreed with the defendant that “constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.” The Court reached this conclusion by first clarifying that although “deportation is a particularly severe ‘penalty,’ ... it is not, in a strict sense, a criminal sanction.” However, the Court went on to explain that “[although removal proceedings are civil in nature,... deportation is nevertheless intimately related to the criminal process.” The Court determined that the “nearly... automatic result” of removal for noncitizen offenders made it difficult “to divorce the penalty from the conviction in the deportation context.” Therefore, according to the Court, “[d]eportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence.” Accordingly, the Court concluded that “[t]he collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation.”
Turning to the merits of the defendant’s ineffective-assistance claim, the Supreme Court noted that “[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.” The Court added that its own precedent had also recognized the importance of deportation to a defendant’s plea decision. The Court then explained that when, as in Padilla, “the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence” for the defendant’s conviction, defense counsel’s “duty to give correct advice is . . . clear.” The Court further noted, however, that even if the statute is not as clear, the “[l]ack of clarity in the law . . . does not obviate the need for counsel to say something about the possibility of deportation . . . .”
We recognize a significant parallel to be drawn from the Supreme Court’s rationale in Padilla to the circumstances of this case. Similar to the risk of deportation, sex offender registration “as a consequence of a criminal conviction is, because of its close connection to the criminal process, . . . difficult to classify as either a direct or a collateral consequence” and that therefore “[t]he collateral versus direct distinction is . . . ill-suited to evaluate] a Strickland claim” concerning the sex-offender-registration requirement.
Like the consequence of deportation, sex offender registration is not a criminal sanction, but it is a particularly severe penalty. In addition to the typical stigma that convicted criminals are subject to upon release from imprisonment, sexual offenders are subject to unique ramifications, including, for example, residency-reporting requirements and place-of-domicile restrictions. Moreover, sex offender registration is “intimately related to the criminal process.” The “automatic result” of sex offender registration for certain defendants makes it difficult “to divorce the penalty from the conviction . . . ,”
Further, when, as here, the sex-offender-registration statute is “succinct, clear, and explicit” in defining the registration requirement for the defendant’s conviction, defense counsel’s duty to give correct advice is likewise clear. Thus, we conclude that applying the Padilla rationale to this case supports a holding that defense counsel must advise a defendant that registration as a sexual offender is a consequence of the defendant’s guilty plea. The failure to inform a pleading defendant that the plea will necessarily require registration as a sex offender affects whether the plea was knowingly made.
In reaching our conclusion in this case, we recognize that this Court held in People v Davidovich that the possibility that a defendant would be deported was a collateral, rather than a direct, consequence of his sentence. However, that holding does not directly hear on this case because that case was limited to its facts. And although the Padilla holding directly contradicts the Davidovich ruling, this is not a deportation case. We rely on Padilla simply for the logic of its rationale, not its ultimate disposition. We also recognize the Davidovich Court’s concern that “[allowing defendants to withdraw their pleas once they discover that their conviction subjects them to deportation would open the door for defendants to withdraw their pleas for other collateral reasons.” However, while the Padilla decision has provided us with the key to open the door to allow defendants to withdraw their pleas for failure to be informed of the sex-offender-registration requirement, we do not see our decision as opening the floodgates to withdrawal-of-plea motions for other collateral reasons. Our decision is limited to distinguishing the unique and mandatory nature of the specific consequence of the sex-offender-registration requirement from the common, potential, and incidental consequences associated with criminal convictions.
Additionally, we note that the prosecution argues that Padilla is not applicable to this case because the Supreme Court’s decision in that case does not apply retroactively. However, as stated, we are not applying the Padilla decision to dictate the result in this case. Rather, we are simply borrowing the logic of its rationale. Moreover, we are mindful that concerns for finality caution that the validity of guilty pleas not be called into question when entered under the law applicable on the day the plea is taken. However, the sex-offender-registration requirement was on the books at the time of Fonville’s plea. And more importantly, Fonville has shown “serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.”
E APPLICATION TO FONVILLE
The sex-offender-registration statute is “succinct, clear, and explicit” in defining the registration requirement for Fonville’s conviction of child enticement. Therefore, to have satisfied his duty to act as constitutionally competent counsel, Fonville’s defense attorney owed a duty to clearly advise Fonville that his plea to the charge of child enticement would require that he register as a sex offender.
Moreover, we also conclude that defense counsel’s failure to inform Fonville that his plea would require registration as a sex offender affected whether his plea was knowingly made. This failure, therefore, prejudiced Fonville to the extent that, but for counsel’s error, the result of the proceeding would have been different. Fonville repeatedly informed the trial court that he would not have pleaded guilty of child enticement if he had known that he would also be required to register as a sex offender. And although the registration requirement does not constitute cruel and unusual punishment in the context of this charge, we do believe that, given the lack of any sexual component to Fonville’s conduct, it was all the more imperative that his counsel advise him of the unique registration consequences of his plea.
III. CONCLUSION
In sum, we conclude that Fonville is not allowed to withdraw his plea to the charge of child enticement because there was a sufficient factual basis on the record to support his conviction. Likewise, we conclude that defense counsel was not ineffective for failing to move to quash the information. We also conclude that the requirement that defendant register as a sex offender does not amount to cruel and unusual punishment.
However, we conclude that defense counsel’s performance was constitutionally defective when he failed to inform Fonville of the sex-offender-registration requirement. And we conclude that this failure prejudiced Fonville.
Accordingly, we reverse and remand for further proceedings. We do not retain jurisdiction.
FORT Hood, EJ., concurred.
MCL 750.350.
MCL 750.349.
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993) (indicating that a Cobbs agreement is one in which a defendant agrees to plead guilty or no contest in reliance on the trial court’s preliminary evaluation of the sentence; however, the defendant is allowed to withdraw the plea in the event that the trial court determines that it must exceed the preliminary evaluation).
People v Fonville, unpublished order of the Court of Appeals, entered October 31, 2007 (Docket No. 280968).
People v Fonville, 480 Mich 1136 (2008), reconsideration den 481 Mich 881 (2008).
People v Ulman, 244 Mich App 500, 508; 625 NW2d 429 (2001).
People v Billings, 283 Mich App 538, 549; 770 NW2d 893 (2009).
Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006).
People v McGee, 258 Mich App 683, 699; 672 NW2d 191 (2003).
People v Adkins, 272 Mich App 37, 38; 724 NW2d 710 (2006).
People v Thew, 201 Mich App 78, 85; 506 NW2d 547 (1993), quoting People v Jones, 190 Mich App 509, 511-512; 476 NW2d 646 (1991) (citations omitted).
People v Wilhite, 240 Mich App 587, 594; 618 NW2d 386 (2000) (quotation marks and citation omitted).
Id. at 596.
Id. at 596-597; People v Haynes (After Remand), 221 Mich App 551, 559; 562 NW2d 241 (1997).
People v Williams, 186 Mich App 606, 609-610; 465 NW2d 376 (1990).
MCL 28.721 et seq.
MCL 28.723.
MCL 28.722(e)(vii); MCL 750.350.
MCL 28.721a (emphasis added).
People v Golba, 273 Mich App 603, 617; 729 NW2d 916 (2007), quoting Doe v Kelley, 961 F Supp 1105, 1108 (WD Mich, 1997).
Golba, 273 Mich App at 617.
People v Dipiazza, 286 Mich App 137; 778 NW2d 264 (2009).
Id. at 156.
MCL 762.11 et seq.
Dipiazza, 286 Mich App at 140.
Id. at 140, 143.
Id. at 156.
Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984); see also People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994).
People v Riley (After Remand), 468 Mich 135, 140; 659 NW2d 611 (2003).
People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007).
MCR 7.212(C)(5); Caldwell v Chapman, 240 Mich App 124, 132; 610 NW2d 264 (2000).
Caldwell, 240 Mich App at 132.
People v Darden, 230 Mich App 597, 605; 585 NW2d 27 (1998).
People v Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998).
People v Davidovich, 238 Mich App 422, 427; 606 NW2d 387 (1999).
Id. at 425, quoting People v Corteway, 212 Mich App 442, 445; 538 NW2d 60 (1995).
Davidovich, 238 Mich App at 427.
Id. at 425.
Id. at 428 (emphasis added); see also People v Haynes, 256 Mich App 341, 349; 664 NW2d 225 (2003) (“[C]rimmal defendants may not withdraw a guilty plea on the ground that they were unaware of the future collateral or incidental effects of the initial valid plea.”).
Davidovich, 238 Mich App at 429.
Padilla v Kentucky, 559 US _, _; 130 S Ct 1473, 1487; 176 L Ed 2d 284, 300 (2010) (Alito, J., concurring).
People v Boatman, 273 Mich App 405, 409; 730 NW2d 251 (2006).
MCR 6.302(B) requires only that a trial court advise and determine that the defendant understands the following:
(1) the name of the offense to which the defendant is pleading; the court is not obliged to explain the elements of the offense, or possible defenses;
(2) the maximum possible prison sentence for the offense and any mandatory minimum sentence required by law[.]
Boatman, 273 Mich App at 409.
Id. at 412.
Id.
In re Lyons, unpublished memorandum opinion of the Court of Appeals, issued December 19, 2000 (Docket No. 217858).
Id. at 1.
Id.
Magyar v State, 2007-CT-00740-SCT (¶ 11); 18 So 3d 807, 811-812 & n 5 (Miss, 2009) (citing cases from Alabama, Arizona, Colorado, Delaware, Florida, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Massachusetts, Missouri, Nevada, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee, Washington, Wisconsin, and Wyoming).
See, e.g., Robinson v State, 730 So 2d 252, 254 (Ala Crim App, 1998) (“Registration and community notification requirements for sex offenders do not constitute punishment.”); People v Montaine, 7 P3d 1065, 1067 (Colo App, 1999) (“Although the duty to register flows directly from defendant’s conviction as a sex offender, it does not enhance defendant’s punishment for the offense.”); State v Partlow, 840 So 2d 1040, 1043 (Fla, 2003) (“A direct consequence must affect the range of punishment in a definite, immediate, and largely automatic way. The registration requirement has absolutely no effect on the ‘range of the defendant’s punishment’ for the crime ....”).
See Haynes, 256 Mich App at 349.
See MCL 28.723(1)(a) (requiring that any individual convicted of a listed offense after October 1,1995, register under SORA, MCL 28.721 et seq.); MCL 28.722(e)(vii) (listing MCL 750.350 [child enticement] as a listed offense under SORA).
See MCR 7.215(C)(1).
Padilla v Kentucky, 559 US _; 130 S Ct 1473; 176 L Ed 2d 284 (2010).
Id. at _; 130 S Ct at 1478 (quotation marks and citation omitted).
Id. at _; 130 S Ct at 1478.
Id. at _; 130 S Ct at 1478.
Id. at _; 130 S Ct at 1478. The Court left it to the lower court to determine on remand whether the defendant could satisfy the prejudice prong of the two-pronged ineffective-assistance analysis. Id. at _; 130 S Ct at 1483-1484.
Id. at _; 130 S Ct at 1481. We note that this point is in keeping with the prevailing conclusion that the statutory mandate that a defendant register as a sex offender is not punishment, but merely a “remedial regulatory scheme furthering a legitimate state interest.” Golba, 273 Mich App at 617; see also, e.g., Robinson, 730 So 2d at 254 (“Registration and community notification requirements for sex offenders do not constitute punishment.”); Montaine, 7 P3d at 1067 (“Although the duty to register flows directly from defendant’s conviction as a sex offender, it does not enhance defendant’s punishment for the offense.”); Partlow, 840 So 2d at 1043 (“A direct consequence must affect the range of punishment in a definite, immediate, and largely automatic way. The registration requirement has absolutely no effect on the range of the defendant’s punishment for the crime ....”).
Padilla, 559 US at _; 130 S Ct at 1481.
Id. at _; 130 S Ct at 1481.
Id. at _; 130 S Ct at 1482.
Id. at _; 130 S Ct at 1482.
Id. at _; 130 S Ct at 1482.
Id. at _; 130 S Ct at 1483, citing Immigration & Naturalization Sen v St Cyr, 533 US 289, 323; 121 S Ct 2271; 150 L Ed 2d 347 (2001).
Padilla, 559 US at _; 130 S Ct at 1483.
Id. at _n 10; 130 S Ct at 1483 n 10.
Id. at _; 130 S Ct at 1482.
See id. at _; 130 S Ct at 1481.
MCL 28.724a; MCL 28.725; MCL 28.725a.
MCL 28.735.
See Padilla, 559 US at _; 130 S Ct at 1481.
See id. at _; 130 S Ct at 1481.
See id. at _; 130 S Ct at 1483.
Accord Taylor v State, 304 Ga App 878, 882-883; 698 SE2d 384 (2010) (post-Padilla case, holding that the failure of trial counsel to advise his client that his guilty plea to a charge of child molestation would require that he comply with Georgia’s sex-offender-registration requirement constituted deficient performance).
Davidovich, 238 Mich App at 427-428 & n 4.
Id. at 428.
See Padilla, 559 US at _; 130 S Ct at 1482 (referring to the unique and specific risk of deportation).
People v Osaghae (On Reconsideration), 460 Mich 529, 534; 596 NW2d 911 (1999).
See id. at 533.
Id. at 534 (quotation marks and citation omitted).
See Padilla, 559 US at _; 130 S Ct at 1483. | [
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PER CURIAM.
Petitioner appeals by right the final opinion and judgment of the Tax Tribunal establishing for the tax years 2004-2006 the true cash value (TCV), the state equalized value (SEV), and the taxable value (TV), of two parcels of property on which petitioner operates a hotel. We affirm but remand for correction of clerical errors regarding the identification number of one parcel (41-14-05-276-009) and the 2006 TV of the other parcel ($678,864).
I. FACTUAL BACKGROUND
A hearing referee conducted a three-day hearing at which petitioner presented evidence that the TCV of each of the properties was less than the amount listed on the assessment rolls, and respondent presented evidence that the TCV of each of the properties was more than that listed on the assessment rolls. Because the hearing referee found petitioner’s evidence and valuation method more persuasive than that of respondent, he issued a proposed opinion and judgment adopting the valuations of petitioner’s expert. See MCL 205.726. Respondent filed objections to the hearing referee’s proposed opinion and judgment. On review of the record and the parties’ pleadings, the Tax Tribunal ruled that the hearing referee had improperly credited petitioner’s appraiser, stating that two of the appraiser’s appraisals should have been accorded little or no weight. The tribunal mainly discredited the two appraisals because the same appraiser had prepared a third appraisal for purposes of obtaining financing and it was strikingly different. But the tribunal otherwise adopted the hearing referee’s findings of fact and conclusions of law, including the referee’s finding that respondent’s evidence that the value of each of the properties was greater than that listed on the tax rolls should also be discounted. The Tax Tribunal’s findings read, in part:
5. Respondent’s Exhibit E (Petitioner’s 2002 Appraisal for Finance Purposes with Exhibits) was properly admitted into evidence. However, the POJ [the hearing referee’s proposed opinion and judgment] failed to state that Exhibit E was admitted solely for impeachment purposes. Although Exhibit E was not admitted for valuation purposes, the [hearing referee] still failed to take the appraisal into consideration in the rendering of its [sic] decision.
9. Ultimately, Petitioner’s appraiser should have been awarded little credibility for the large differences in the two appraisals. The disparity in the two reports is not explained by the September 11th bombing of New York, the unemployment, the location or the factors that were not cited in the original appraisal that would not have changed given the short time span between the reports as asserted by Petitioner. The inconsistencies between the reports cast enough uncertainty that the Tribunal finds that Petitioner’s December 31, 2003 appraisal is given very minimal weight.
10. The [hearing referee’s] analysis of why Respondent’s appraisal was given little weight is adopted. As such, the Tribunal finds that Respondent’s assessments for the subject properties for the tax years at issue are affirmed. Petitioner failed to carry the burden of establishing the true cash value of the property. Conversely, Respondent failed to meet its burden of proving the subject property’s assessments should be changed from that reflected on the tax rolls. Therefore, the true cash, state equalized, and taxable values for the subject property are as follows:
Parcel Number: 41-14-05-276-011
Year TCV SEV TV
2004 $1,528,400 $764,200 $642,403
2005 $1,595,600 $797,800 $756,178
2006 $1,595, 600 $797,800 $672,293[ ]
Parcel Number: 41-14-05-276-001[ ]
Year TCV SEV TV
2004 $116,400 $58,200 $48,998
2005 $121,600 $60,800 $50,124
2006 $146,000 $73,000 $51,778
11. Given the above, the Tribunal modifies the Proposed Opinion and Judgment, as indicated herein, and adopts the modified Proposed Opinion and Judgment as the Tribunal’s final decision in this case. See MCL 205.726. The Tribunal also incorporates by reference the Findings of Fact and Conclusions of Law contained in the modified Proposed Opinion and Judgment in this Final Opinion and Judgment.
Therefore,
IT IS ORDERED that the property’s values for the 2004, 2005 and 2006 tax years shall be as set forth in this Final Opinion and Judgment. [Final Opinion and Judgment, pp 5-9 (Michigan Tax Tribunal Docket No. 310739, entered September 17, 2009).]
Petitioner appeals by right, MCL 205.753(1), asserting that the Tax Tribunal committed several errors of law and also made several erroneous factual findings.
II. STANDARD OF REVIEW
This Court’s ability to review decisions of the Tax Tribunal is very limited. Columbia Assoc, LP v Dep’t of Treasury, 250 Mich App 656, 665; 649 NW2d 760 (2002). Michigan’s Constitution provides: “In the absence of fraud, error of law or the adoption of wrong principles, no appeal may be taken to any court from any final agency provided for the administration of property tax laws from any decision relating to valua tion or allocation.” Const 1963, art 6, § 28. Thus, this Court’s “review of decisions of the Tax Tribunal, in the absence of fraud, is limited to determining whether the tribunal made an error of law or adopted a wrong principle; the factual findings of the tribunal are final, provided that they are supported by competent and substantial evidence.” Antisdale v Galesburg, 420 Mich 265, 277; 362 NW2d 632 (1984).
With respect to general valuation principles in the Tax Tribunal, the petitioner has the burden to establish the true cash value of property. MCL 205.737(3); Great Lakes Div of Nat’l Steel Corp v Ecorse, 227 Mich App 379, 389; 576 NW2d 667 (1998). The burden of proof encompasses two concepts: “(1) the burden of persuasion, which does not shift during the course of the hearing; and (2) the burden of going forward with the evidence, which may shift to the opposing party.” Jones & Laughlin Steel Corp v City of Warren, 193 Mich App 348, 354-355; 483 NW2d 416 (1992). Nevertheless, because Tax Tribunal proceedings are de novo in nature, the Tax Tribunal has a duty to make an independent determination of true cash value. Great Lakes Div of Nat’l Steel Corp, 227 Mich App at 409. Thus, even when a petitioner fails to prove by the greater weight of the evidence that the challenged assessment is wrong, the Tax Tribunal may not automatically accept the valuation on the tax rolls. Id. at 409. Regardless of the method employed, the Tax Tribunal has the overall duty to determine the most accurate valuation under the individual circumstances of the case. Meadowlanes Ltd Dividend Housing Ass’n v City of Holland, 437 Mich 473, 485-486, 502; 473 NW2d 636 (1991).
This case also presents issues of statutory interpretation, which are questions of law that this Court reviews de novo. Superior Hotels, LLC v Mackinaw Twp, 282 Mich App 621, 628; 765 NW2d 31 (2009). Proper construction of a statute “begins by reviewing the text of the statute at issue; if the language is unambiguous, it is presumed that the Legislature intended the meaning plainly expressed, and judicial construction of the statute is not permitted.” Paris Meadows, LCC v Kentwood, 287 Mich App 136, 141; 783 NW2d 133 (2010). Furthermore, “[njothing may be read into a clear statute ‘that is not within the manifest intent of the Legislature as derived from the words of the statute itself.’ ” Id. (citation omitted).
III. ANALYSIS
Petitioner first argues that the Tax Tribunal erred as a matter of law and fact by stating in ¶ 5 of its final opinion and judgment that respondent’s exhibit E was admitted into evidence. The record does not support petitioner’s claim.
At the hearing before the hearing referee, respondent’s exhibits were marked alphabetically and exhibit E was identified as a 2002 appraisal of the subject property prepared for petitioner by the same expert who testified for petitioner at the hearing and who also prepared two other appraisals (petitioner’s exhibits 1 and 2) admitted into evidence for tax-valuation purposes. Respondent’s attorney moved for the admission of exhibit E during the cross-examination of petitioner’s appraiser “for purposes of impeachment, rebuttal, and to, for the witness’s credibility.” Petitioner’s attorney objected on grounds of relevancy and also because respondent could impeach the witness by simply questioning him about his appraisals. The hearing referee ruled regarding respondent’s exhibit E:
[Hearing Referee]: As I said before, the respondent in this instance as to this witness is entitled to cross-examination. Part of cross-examination is to impeach the credibility of the witness.
[Hearing Referee]: Wait. And to that extent, this — let’s put it this way: The admissibility is on the basis of its use in the impeachment of this witness.
[Hearing Referee]: Now, as to the ultimate value, it is not being considered for that purpose.
Thus, the record reflects that respondent’s exhibit E was admitted for the limited purpose of impeaching petitioner’s appraiser. This is the purpose for which the Tax Tribunal utilized exhibit E. The tribunal did not err as a matter of fact or law. That one page of exhibit E was admitted later in the hearing as part of another exhibit does not alter the fact that all of exhibit E had previously been admitted for the purpose of impeaching petitioner’s appraiser.
Next, petitioner argues that the Tax Tribunal erred by revisiting the credibility of petitioner’s appraiser and the weight assigned to his appraisals. We disagree.
Petitioner cites MCR 2.613(C) and caselaw for the proposition that appellate courts will defer to credibility determinations by the fact-finder. It is true that this Court will not assess witness credibility. Great Lakes Div of Nat’l Steel Corp, 227 Mich App at 407. Also, the weight given to the evidence is within the discretion of the Tax Tribunal. Id. at 404, 413. But petitioner fails to cite a statute, administrative rule, or appellate decision that has applied these principles in the context of the Tax Tribunal’s performance of its statutory obligation of considering and deciding issues presented in a hearing referee’s proposed opinion and judgment. “A proposed decision of a hearing officer or referee shall be considered and decided by 1 or more members of the tribunal.” MCL 205.726. Although petitioner’s citation of analogous authority perhaps saves its argument from being abandoned, we conclude that petitioner’s analogy fails in light of the statutory authority vested in the Tax Tribunal.
Section 26 of the Tax Tribunal Act, MCL 205.726, authorizes the Tax Tribunal to “appoint 1 or more hearing officers to hold hearings.” Furthermore, except for proceedings in the residential property and small claims division of the tribunal, tribunal hearings “shall be conducted pursuant to chapter 4 of the administrative procedures act of 1969, 1969 PA 306, MCL 24.271 to 24.287 .. . .” MCL 205.726. “[T]he Tax Tribunal is under a duty to apply its expertise to the facts of a case and is not bound by either party’s theories of valuation,” and with respect to disputed issues, “it must follow the procedures in the Administrative Procedures Act. .. .” Great Lakes Div of Nat’l Steel Corp, 227 Mich App at 400-401. This Court has also held in the context of a motion for rehearing under MCL 205.762(3) that the Tax Tribunal may not delegate its statutory responsibilities to hearing referees. Shapiro Bag Co v Grand Rapids, 217 Mich App 560, 563; 552 NW2d 185 (1996). Here, the statute providing for the appointment of hearing referees squarely places the responsibility on “1 or more members of the tribunal” to consider and decide “[a] proposed decision of a hearing officer or referee ....” MCL 205.726.
As noted, chapter 4 of the Administrative Procedures Act (APA) governs hearings in the Tax Tribunal, except those in the residential property and small claims division. The APA provides that a “proposal for decision shall contain a statement of the reasons therefor and of each issue of fact and law necessary to the proposed decision, prepared by a person who conducted the hearing or who has read the record.” MCL 24.281(2). Moreover, the APA permits, except as limited by statute or rule, review de novo by the agency — here the Tax Tribunal — of a proposed decision. “On appeal from or review of a proposal of decision the agency, except as it may limit the issue upon notice or by rule, shall have all the powers which it would have if it had presided at the hearing.” MCL 24.281(3). See also MCL 205.734(1): “One or more members of the tribunal may hear and decide proceedings.” And, see MCL 205.735(2): “A proceeding before the tribunal is original and independent and is considered de novo.” Finally, tribunal rules do not limit its ability to review the credibility of witnesses or its ability to reassess the weight to be assigned to evidence in the record. Rule 348,1996 AACS, R 205.1348, in effect at the time of these proceedings, provided, in pertinent part:
(1) A party may request a rehearing or reconsideration of a decision by a hearing officer or referee by filing a written request for a rehearing with the tribunal and submitting a copy to the opposing party within 21 days of the entry of the opinion and judgment hy the hearing officer or hearing referee. The request shall demonstrate good cause as to why a rehearing shall be held....
(4) For purposes of this rule, “good cause” means any of the following:
(a) Error of law.
(b) Mistake of fact.
(c) Fraud.
(d) Any other reason the tribunal deems sufficient and material.
In summary, MCL 205.726 provides: “A proposed decision of a hearing officer or referee shall be considered and decided by 1 or more members of the tribunal.” We hold that in fulfilling this statutory responsibility, the Tax Tribunal may make its own determinations regarding the credibility of witnesses and the weight to be assigned to evidence in the record. Consequently, we conclude that the Tax Tribunal did not err by reconsidering petitioner’s appraiser’s credibility and the weight to be given the evidence he provided.
Petitioner next argues that the Tax Tribunal erred by employing an incorrect valuation method and by not independently determining the value of the property. Specifically, petitioner argues that (1) the valuations on the assessment rolls were determined by the cost-less-depreciation method, (2) because the properties produced income, the tribunal was required to determine their value by the income-capitalization method, and (3) by adopting the existing assessed valuations, the tribunal did not make its own independent determination of value using the correct valuation method. We disagree.
Our constitution provides for the uniform taxation of property assessed at not in excess of 50 percent of its true cash value. Const 1963, art 9, § 3. The Legislature has defined “true cash value” as meaning “the usual selling price at the place where the property to which the term is applied is at the time of assessment, being the price that could be obtained for the property at private sale, and not at auction sale except as otherwise provided in this section, or at forced sale.” MCL 211.27(1); see also Antisdale, 420 Mich at 274-276. The Legislature has specified that tax assessors “shall also consider the advantages and disadvantages of location; quality of soil; zoning; existing use; present economic income of structures, including farm structures; present economic income of land if the land is being farmed or otherwise put to income producing use; quantity and value of standing timber; water power and privileges; and mines, minerals, quarries, or other valuable deposits known to be available in the land and their value.” MCL 211.27(1). Michigan courts have considered “true cash value” as being synonymous with “fair market value.” Meadowlanes, 437 Mich at 484 n 17; Great Lakes Div of Nat’l Steel Corp, 221 Mich App at 389.
Other than providing a broad framework and numerous factors to be considered, the Legislature has not specified methods of valuation that assessors must employ. Antisdale, 420 Mich 275-276. The Legislature does, however, require that an annual assessment of property subject to taxation be made by an “assessing officer” in accordance with the constitutional and statutory strictures noted above. MCL 211.10. A taxing unit’s assessing officer must also be certified as qualified by the state assessor’s board. MCL 211.10c and MCL 211. 10c. Further, assessing officers, in preparing annual assessments, “shall use only the official assessor’s manual or any manual approved by the state tax commission, consistent with the official assessor’s manual, with their latest supplements, as prepared or approved by the state tax commission as a guide in preparing assessments.” MCL 211.10e. In the proceedings before the Tax Tribunal here, the parties stipu lated the subject properties’ assessed valuation (AV), state equalized value (SEV), and taxable value (TV) for the tax years at issue “as confirmed by the Board of Review or on the assessment roll.” Although the parties also stipulated that the “cost approach” to valuation “is not applicable in this case,” petitioner points to nothing in the record to support its argument that the assessed valuations on the assessment roll were determined by the cost-less-depreciation method of valuation.
We also disagree with petitioner’s argument that because the properties were income producing, the income-capitalization method of valuation is the only acceptable method of determining the properties’ true cash value. Petitioner relies on Southfield Western, Inc v Southfield, 146 Mich App 585; 382 NW2d 187 (1985), and Presque Isle Harbor Water Co v Presque Isle Twp, 130 Mich App 182; 344 NW2d 285 (1983), for this argument. Neither case supports petitioner’s broad argument. In the Southfield Western case, the parties did not challenge using the capitalization-of-income method of valuation, nor did the Court hold that this method must always be used to value income-producing property. Southfield Western, 146 Mich App at 587. In the Presque Isle case, the Court stated that Northwood Apartments v Royal Oak, 98 Mich App 721, 725; 296 NW2d 639 (1980), “held that the proper method of assessing income-producing property is the capitalization of income approach.” Presque Isle, 130 Mich App at 192-193. In Northwood Apartments, however, the parties again agreed that the proper method of valuation was the income-capitalization method. Northwood Apartments, 98 Mich App at 725. The Court further opined that “[a]ny method for determining true cash value which is recognized as accurate and reasonably related to fair market valuation is an acceptable indicator of true cash value.” Id.
Courts have generally recognized that the “three most common approaches to valuation are the capitalization-of-income approach, the sales-comparison or market approach, and the cost-less-depreciation approach.” Jones & Laughlin, 193 Mich App at 353. Our Supreme Court has described these three common valuation techniques, quoting from the Michigan State Tax Commission Assessor’s Manual. See Antisdale, 420 Mich at 276-277 n 1. “Regardless of the valuation approach employed, the final value determination must represent the usual price for which the subject property would sell.” Meadowlanes, 437 Mich at 485. In other words, a valuation method is wrong only if it does not lead to the most accurate determination of the taxable property’s true cash value or fair market value. Thus, the Tax Tribunal has a duty “to select the approach which provides the most accurate valuation under the circumstances of the individual case.” Antisdale, 420 Mich at 277; Jones & Laughlin, 193 Mich App at 353.
In this case, the parties each presented expert witnesses who testified at the Tax Tribunal proceedings. Both experts presented appraisals of the subject properties using both the income-capitalization method and the sales-comparison or market approach. Petitioner’s expert and his appraisals concluded that the TCV of each of the properties was less than that listed on the assessment rolls. Respondent’s expert and her appraisals concluded that the TCV of each of the properties was more than that listed on the assessment rolls. The Tax Tribunal was under no obligation to accept the valuation figures or the approach to valuation advanced by either petitioner or respondent. Teledyne Continental Motors v Muskegon Twp, 145 Mich App 749, 754; 378 NW2d 590 (1985). The tribunal “may accept one theory and reject the other, it may reject both theories, or it may utilize a combination of both in arriving at its determination.” Jones & Laughlin, 193 Mich App at 356. The Tax Tribunal may correlate, reconcile, and weigh valuations derived under various approaches with the ultimate goal of considering all factors under the circumstances in determining the fair market value of the subject property. Meadowlanes, 437 Mich at 485-486.
Next, we disagree with petitioner’s argument that the Tax Tribunal committed an error of law or adopted a wrong principle by finding that the properties’ assessed valuation on the tax rolls was also the properties’ true cash value. In the Tax Tribunal, a property’s assessed valuation on the tax rolls carries no presumption of validity. Consol Aluminum Corp, Inc v Richmond Twp, 88 Mich App 229, 232; 276 NW2d 566 (1979). Further, the Tax Tribunal “cannot merely affirm the assessment as placed upon the rolls by the assessing authority.” Oldenburg v Dryden Twp, 198 Mich App 696, 699; 499 NW2d 416 (1993). For the Tax Tribunal to accord presumptive validity to a property’s assessed valuation on the tax rolls would conflict with the statutory requirement that proceedings before the tribunal are “original and independent and . . . de novo.” MCL 205.735(2); Great Lakes Div of Nat’l Steel Corp, 227 Mich App at 409. Thus, the tribunal may not automatically accept the taxing authority’s assessment because “[t]he Tax Tribunal has a duty to make its own, independent determination of true cash value.” Id. at 389. Even on the failure of a party’s evidence that a property’s assessed valuation is lower than that on the rolls, the burden of going forward with the evidence may shift to the opposing party. Jones & Laughlin, 193 Mich App at 355. But the Tax Tribunal may adopt the assessed valuation on the tax rolls as its independent finding of TCV when competent and substantial evidence supports doing so. Antisdale, 420 Mich at 277.
In Consol Aluminum Corp, this Court found that the Tax Tribunal erred for two reasons when it adopted the assessed valuation on the rolls after rejecting the petitioner’s evidence. First, the respondent’s only witness was not allowed “to state any independent valuation conclusions because of respondent’s failure to submit written appraisals before the hearing.” Consol Aluminum Corp, 88 Mich App at 233. Second, there was evidence before the tribunal that the assessed valuation on the tax rolls was based on “ ‘a fiction of federal tax law,’ ” rather than a determination of TCV as required by MCL 211.27. Consol Aluminum Corp, 88 Mich App at 233-234 (citation omitted). Thus, “there was no evidence presented at the hearing from which the Tax Tribunal could have determined the true cash value for the properties in question.” Id. at 234. Consequently, the tribunal erred by adopting the assessed valuation on the tax rolls because it must make its own independent valuation finding, and there must be evidence on the record supporting the finding. Id. at 232-234; Teledyne, 145 Mich App at 758.
We conclude that the Tax Tribunal did not abdicate its responsibility to independently determine the subject properties’ true cash value when it adopted the properties’ assessed valuation on the tax rolls. There was competent and substantial evidence in the record supporting the tribunal’s determination. In other contexts, this Court has found no clear error by the fact-finder when it determines that the value of property lies within the range of values as testified to by experts. For example, a jury award in a condemnation case “ ‘will be upheld ... if it is supported by competent evidence as long as the amount is not lower than the minimum, or higher than the maximum valuation placed by the witnesses on the property sought to be condemned.’ ” State Hwy Comm’r v Hessell, 5 Mich App 559, 565; 147 NW2d 464 (1967) (citation omitted). And in the context of valuing marital assets, a trial court does not commit clear error when its valuation is “within the range of figures given by the parties’ experts ....” Rickel v Rickel, 177 Mich App 647, 650; 442 NW2d 735 (1989). See, also, Jansen v Jansen, 205 Mich App 169, 171; 517 NW2d 275 (1994), and Pelton v Pelton, 167 Mich App 22, 25-26; 421 NW2d 560 (1988). We must “accept the tribunal’s factual findings as final, provided they are supported by competent, material, and substantial evidence. Substantial evidence must be more than a scintilla of evidence, although it may be substantially less than a preponderance of the evidence.” Jones & Laughlin, 193 Mich App at 352-353 (citations omitted). Here, the properties’ assessed valuations on the tax rolls were in evidence because of the parties’ stipulation, and there was expert testimony and appraisals in evidence placing the properties’ TCV above and below the properties’ assessed valuations on the tax rolls. Because the tribunal’s valuation was within the range of valuations in evidence, it was supported by competent and material evidence, and we must affirm. Antisdale, 420 Mich at 277.
Petitioner next argues that the tribunal committed an error of law by not reiterating a separate, concise statement of facts and conclusions of law. MCL 205.751(1) provides that “[a] decision and opinion of the tribunal ... shall be in writing or stated in the record, and shall include a concise statement of facts and conclusions of law....” Also, MCL 24.285, incorporated into tribunal proceedings through MCL 205.726, provides that “[a] final decision or order of an agency... shall include findings of fact and conclusions of law separated into sections captioned or entitled ‘findings of fact’ and ‘conclusions of law’, respectively.” Here, the hearing referee’s proposed opinion and judgment contained separate sections labeled “findings of fact” and “conclusions of law,” and the tribunal’s final opinion and judgment did not. Even if the tribunal’s adoption of the proposed opinion and judgment, as modified by the final order, failed to comply with MCL 205.751(1) and MCL 24.285, we conclude that the error does not warrant reversal. The purpose of these provisions is to aid appellate review. Great Lakes Div of Nat’l Steel Corp, 227 Mich App at 402. It is apparent that the lack of separately captioned sections entitled “findings of fact” and “conclusions of law” in the tribunal’s final opinion and judgment has not hindered petitioner in bringing its allegations of error in this Court. Also, the lack of formal labeling in the tribunal’s final opinion and judgment has not impeded this Court from reviewing and deciding petitioner’s claims. Consequently, any error in form has not prejudiced petitioner, and reversal is not warranted. See Community Assoc v Meridian Charter Twp, 110 Mich App 807, 812; 314 NW2d 490 (1981), holding “this Court will not reverse a tribunal decision unless the party alleging the error can show prejudice.”
We affirm but remand to the Tax Tribunal for correction of the apparent clerical errors set forth in footnotes 1 and 2 of this opinion. We do not retain jurisdiction.
The parties agree that this is an error and that the correct 2006 TV is $678,864.
The parties agree that the correct parcel number is 41-14-05-276-009.
The current version of this rule provides that a party may timely file exceptions to a hearing referee’s proposed decision that “shall demonstrate good cause as to why the decision should be modified or a rehearing held.” The definition of “good cause” in subsection 4 remains unchanged. 2009 AACS, R 205.1348 (effective October 19, 2009). | [
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BANDSTRA, J.
In Docket No. 294147, defendant appeals as of right his conviction, following a jury trial, of first-degree home invasion. MCL 750.110a(2). Defendant was originally sentenced to a prison term of 110 months to 20 years. After the trial court discovered that it had used an incorrect sentencing guidelines grid at defendant’s original sentencing, defendant was resentenced to a lesser prison term of 48 months to 20 years. Defendant appeals that sentence as of right in Docket No. 295111. Defendant’s appeals have been consolidated for this Court’s consideration. We affirm defendant’s conviction, but remand for resentencing. These appeals have been decided without oral argument pursuant to MCR 7.214(E).
Defendant’s conviction arises from an incident in which he and Dante Holmes broke into a house that they apparently believed was unoccupied. The homeowner was present and fatally shot Holmes as he reached inside a broken window to unlock it. Defendant admitted that he was with Holmes at the house. The prosecution’s theory at trial was that defendant assisted Holmes by helping him up to the window, which was six feet off the ground.
Defendant argues that he is entitled to a new trial because of the prosecutor’s improper conduct during closing argument. Because defendant did not object to the prosecutor’s comments at trial, relief is precluded unless defendant establishes plain error that affected his substantial rights. People v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008); People v Thomas, 260 Mich App 450, 453-454; 678 NW2d 631 (2004). Defendant also contends that trial counsel was ineffective for failing to object to the prosecutor’s conduct. Because defendant did not raise this issue below, review is limited to errors apparent from the existing record. People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96 (2002); People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000).
The prosecutor cannot vouch for the credibility of a witness or suggest that she has some special knowledge concerning a witness’s truthfulness. People v Bahoda, 448 Mich 261, 276; 531 NW2d 659 (1995). Nor may the prosecutor express a personal belief in the defendant’s guilt. People v Humphreys, 24 Mich App 411, 414; 180 NW2d 328 (1970). Contrary to defendant’s assertion, however, the record does not support defendant’s claim that these rules were violated by the prosecutor during her closing argument. Rather, the prosecution addressed the evidence presented at trial and the conclusions that reasonably could be drawn from it. Bahoda, 448 Mich at 282. Although the prosecuting attorney noted that the jury had the option to find defendant not guilty, she argued that doing so would be contrary to what the facts showed and what the law required. There was nothing improper in arguing that the jury should convict defendant because the evidence showed that he was guilty. And because the prosecution’s argument was not improper, defense counsel was not ineffective for failing to object. Counsel is not ineffective for failing to raise a meritless objection. People v Matuszak, 263 Mich App 42, 60; 687 NW2d 342 (2004).
Defendant also argues that he is entitled to resentencing because the trial court erroneously scored 100 points for offense variable 3. The interpretation and application of the sentencing guidelines present questions of law subject to de novo review on appeal. People v Cannon, 481 Mich 152, 156; 749 NW2d 257 (2008).
Offense variable 3 (OV 3) considers “physical injury to a victim,” MCL 777.33(1), and it assesses points depending on the degree of injury suffered by “a victim,” MCL 777.33(1)(a) to (f). In relevant part, it requires that 100 points be assessed when “[a] victim was killed.” MCL 777.33(1)(a) and (b). For purposes of OV 3, the term “victim” means “any person harmed by the criminal actions of the charged party.” People v Albers, 258 Mich App 578, 593; 672 NW2d 336 (2003).
MCL 777.33(2)(b) instructs further that 100 points are to be scored “if death results from the commission of a crime and homicide is not the sentencing offense.” In this non-homicide sentencing offense case, the trial court determined that the death of defendant’s co-felon, Holmes, justified a 100-point score for OV 3. It reasoned that “it doesn’t have to be the victim” who was killed to warrant such a score and that 100 points could be assessed whenever “someone died as a result of the commission of [the] crime,” because subsection (2)(b) does not specifically refer to a victim. We disagree.
As already noted, MCL 777.33(1) authorizes the assessment of points only where a “victim” of the sentencing offense is killed or injured. Contrary to the reasoning of the trial court, subsection (2)(b) does not expand the applicability of this offense variable. Instead, it limits the offenses for which 100 points can be assessed. A 100-point score can only be imposed for non-homicide sentencing offenses where the death results from the commission of a crime. Neither of those limiting conditions can enlarge OV 3 so that it would authorize the imposition of points where there is no physical injury to a “victim” as required by subsection (1).
Here, Holmes simply was not a “victim” because he was not harmed by defendant’s criminal activity, or by the crime that was committed, jointly, by defendant and Holmes. Albers, 258 Mich App at 593. Rather, the “victim” of the crime here was the homeowner, and he was not injured. So, there being no “physical injury to a victim,” here, OV 3 is simply inapplicable. MCL 777.33(1).
Because the scoring error affects the appropriate guidelines range, resentencing is required. People v Francisco, 474 Mich 82, 89-92; 711 NW2d 44 (2006). Defendant’s conviction is affirmed but his sentence is vacated and the case is remanded for resentencing. We do not retain jurisdiction.
MURRAY, J., concurred.
In Albers, 258 Mich App at 580, defendant was convicted of involuntary manslaughter after her young son set fire to their apartment, resulting in the death of a child residing in another apartment in the same complex. The defendant challenged the assessment of 25 points under OV 3 for life-threatening or permanent injury to a second child resulting from that same fire. Our Court upheld the scoring, concluding that the other child was also a “victim” of the sentencing offense and explaining, as noted above, that a “ ‘victim’ includes any person harmed by the criminal actions of the charged party.” Id. at 591-593. Nothing in Albers supports the prosecutor’s assertion here, adopted by the trial court, that under the circumstances presented in this case, defendant’s co-felon is a “victim” within the meaning of OV 3. Nor has the prosecutor offered, or this Court found, any authority for such a proposition.
We further note that the requirement of MCL 777.33(2)(b), that a death result from the commission of a crime, was not satisfied here. Even if Holmes might properly he considered a “victim,” his death resulted from the actions of the homeowner, not from the commission of a crime. | [
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] |
O’CONNELL, EJ.
In these consolidated appeals, plaintiff/petitioner (hereafter plaintiff) appeals as of right the trial court’s orders granting motions for summary disposition filed by defendant Blue Cross Blue Shield of Michigan (BCBSM) in actions in which plaintiff challenged the legality of certain financial conduct by BCBSM under the Nonprofit Health Care Corporation Reform Act, MCL 550.1101 et seq. (the Act). The appeals present two significant issues: (1) whether BCBSM violated § 207 of the Act, MCL 550.1207, when its subsidiary, the Accident Fund Insurance Company of America (the Accident Fund), purchased three for-profit insurance companies; and (2) whether Michigan’s courts defer to the decisions of Michigan’s administrative agencies concerning the interpretation of Michigan statutes.
Regarding the first issue, the trial court correctly determined that § 207 of the Act did not preclude the Accident Fund from acquiring the three insurance companies. Accordingly, in Docket No. 290167, we affirm the trial court’s grant of summary disposition on count I. Regarding the second issue, the trial court erred by deferring to an administrative agency’s interpretation of the Act. Accordingly, we reverse the trial court’s dismissal of count II in Docket No. 290167, and remand to the trial court for a hearing de novo to determine whether BCBSM’s $125 million contribution to the Accident Fund violated the Act. In addition, we dismiss the appeal in Docket No. 295750 as moot.
BACKGROUND FACTS
As our Supreme Court has explained:
BCBSM is a unique creation. It is a non-profit, tax-exempt “charitable and benevolent institution”, incorporated pursuant to special enabling legislation enacted by the Michigan Legislature in 1939, for the purpose of providing a mechanism for broad health care protection to the people of the State of Michigan.
BCBSM is not an insurance company in the usual sense of the term. It is a statutory, non-profit corporation which is regulated within the limits of special enabling legislation by the Commissioner [of the Office of Financial and Insurance Regulation (OFIR)] “in order to protect the interests of subscribers”. Although it does operate according to principles similar to those of insurance companies, “it is not carried on as an insurance business for profit * * *, but rather it provides a method for promoting the public health and welfare in assisting * * * persons to budget” health care costs.
Although BCBSM is regulated by the [OFIR] Commissioner, it is not managed by the Commissioner. It has its own officers and a board of directors to which management of the corporation is statutorily entrusted. [Blue Cross & Blue Shield of Mich v Ins Comm’r, 403 Mich 399, 415-418; 270 NW2d 845 (1978) (citations omitted).]
As a statutorily created entity, both the extent of the power of the commissioner of the OFIR (the OFIR Commissioner) to regulate BCBSM and the extent of BCB-SM’s permissible activities are governed by statute, and specifically, by the Act. Id. at 424; MCL 550.1101 et seq.
In 1993, the Legislature amended the Act to permit BCBSM to purchase the state accident fund, a for-profit workers’ compensation insurer. MCL 550.1207(l)(x). Thereafter, BCBSM formed the Accident Fund as a wholly owned, for-profit Michigan stock insurance subsidiary, and, in December 1994, the Accident Fund purchased the assets and acquired the liabilities of the state accident fund.
At issue here are a series of financial transactions undertaken by the Accident Fund to acquire three foreign insurance companies, as well as a $125 million contribution to the Accident Fund by BCBSM. In December 2005, the Accident Fund acquired 100 percent of the outstanding common shares of workers’ compensation insurer United Wisconsin Insurance Company (UWI). On August 4, 2007, BCBSM’s board of directors approved the Accident Fund’s forthcoming acquisition of CWI Holdings, Inc. (CWI), a Delaware insurance holding company that itself owns 100 percent of the shares of CompWest Insurance Company, a California property and casualty insurance company that provides workers’ compensation insurance primarily in California, and it also approved a capital contribution from BCBSM to the Accident Fund “in an amount sufficient to insure [sic] the collective workers’ compensation companies are able to maintain an ‘A’ insurance rating.” Then, on August 31, 2007, the Accident Fund acquired 100 percent of the outstanding common shares of Third Coast Insurance Company (Third Coast), an inactive property and casualty insurance company located in Illinois. Finally, in November 2007, BCBSM transferred $125 million to the Accident Fund, as a capital contribution with no repayment obligation pursuant to the August 4, 2007, authorization of its board of directors, and the Accident Fund acquired 100 percent of the outstanding shares of CWI.
On July 2, 2008, plaintiff filed a three-count complaint against BCBSM, challenging the permissibility of the Accident Fund’s acquisition of UWI, CWI, and Third Coast, as well as of BCBSM’s November 2007 $125 million contribution to the Accident Fund. Only counts I and II are at issue before this Court. In count I, plaintiff alleged that the Accident Fund’s acquisition of the three foreign insurers violated MCL 550.1207(l)(o), which provides, as follows:
A health care corporation, subject to any limitation provided in this act, in any other statute of this state, or in its articles of incorporation, may do any or all of the following:
(o) Subject to chapter 9 of the insurance code of 1956, 1956 PA 218, MCL 500.901 to 500.947, invest and reinvest its funds and, for investment purposes only, purchase, take, receive, subscribe for, or otherwise acquire, own, hold, vote, employ, sell, lend, lease, exchange, transfer, or otherwise dispose of, mortgage, pledge, use, and otherwise deal in and with, bonds and other obligations, shares, or other securities or interests issued by entities other than domestic, foreign, or alien insurers, as defined in sections 106 and 110 of the insurance code of 1956, 1956 PA 218, MCL 500.106 and 500.110, whether engaged in a similar or different business, or governmental or other activity, including banking corporations or trust companies. However, a health care corporation may purchase, take, receive, subscribe for, or otherwise acquire, own, hold, vote, employ, sell, lend, lease, exchange, transfer, or otherwise dispose of bonds or other obligations, shares, or other securities or interests issued by a domestic, foreign, or alien insurer, so long as the activity meets all of the following:
(1) Is determined by the attorney general to be lawful under section 202 [MCL 550.1202].
(ii) Is approved in writing by the commissioner as being in the best interests of the health care corporation and its subscribers.
(Hi) For an activity that occurred before the effective date of the amendatory act that added subparagraph (iv), will not result in the health care corporation owning or controlling 10% or more of the voting securities of the insurer or will not otherwise result in the health care corporation having control of the insurer, either before or after the effective date of the amendatory act that added subparagraph (iv). As used in this subparagraph and sub-paragraph (iv), “control” means that term as defined in section 115 of the insurance code of 1956, 1956 PA 218, MCL 500.115.
(iv) Subject to section 218 [MCL 550.1218] and beginning on the effective date of the amendatory act that added this subparagraph, will not result in the health care corporation owning or controlling part or all of the insurer unless the transaction satisfies chapter 13 of the insurance code of 1956,1956 PA 218, MCL 500.1301 to 500.1379, and the insurer being acquired is only authorized to sell disability insurance as defined under section 606 of the insurance code of 1956, 1956 PA 218, MCL 500.606, or under a statute or regulation in the insurer’s domiciliary jurisdiction that is substantially similar to section 606 of the insurance code of 1956, 1956 PA 218, MCL 500.606. [Emphasis added.]
Plaintiff alleged that the Accident Fund’s acquisition of UWI, CWI, and Third Coast violated the general prohibition, in the first sentence of subdivision (o) of § 207(1), against the acquisition of any “domestic, foreign, or alien insurers .. . .” While the second sentence of subdivision (o) provides an exception to that prohibition in certain situations, plaintiff further argued that the Accident Fund’s acquisitions at issue here did not fall within the exception language. Plaintiff further alleged, in count II of plaintiffs initial complaint, that BCBSM’s November 2007 contribution of $125 million to the Accident Fund violated the restriction set forth in MCL 550.1207(l)(x)(ci), which prevents BCBSM from using its funds to “operate or subsidize in any way” the Accident Fund.
BCBSM moved in the trial court for summary disposition of the complaint pursuant to MCR 2.116(C)(8), asserting that MCL 550.1207(l)(o) applies only to BCBSM, because it is “a health care corporation” under the Act, and that the statute does not apply to the Accident Fund, because it is not such a health-care corporation. Further, BCBSM argued that it did not violate the Act by virtue of its capital contribution to the Accident Fund. Alternatively, BCBSM moved in the trial court to dismiss count II and refer it to the OFIR Commissioner for resolution pursuant to the doctrine of primary jurisdiction.
The trial court initially denied BCBSM’s motion regarding count I. On count II, the trial court concluded that plaintiff had alleged sufficient facts to state a claim that BCBSM violated the statute by making the $125 million contribution to the Accident Fund at the time and in the manner that it did so, but the trial court dismissed that count without prejudice and referred it to the OFIR Commissioner under the doctrine of primary jurisdiction. BCBSM moved for reconsideration of the trial court’s denial of its motion for summary disposition of count I of the complaint, and the trial court granted that motion and, on reconsideration, dismissed count I of plaintiffs complaint. On January 13, 2009, the trial court entered an order concluding that the restrictions set forth in MCL 55Q.1207(l)(o) do not directly apply to transactions undertaken by the Accident Fund, nor do they apply to actions taken by BCBSM indirectly by and through the Accident Fund, its subsidiary.
After plaintiffs appeal of the trial court’s January 13, 2009, order was filed in this Court, the OFIR Commissioner considered the issues raised by count II of the complaint and entered his order, concluding that “BCBSM did not violate Section 207(l)(x)(ci) in its November 2007 capital contribution to the Accident Fund.” Plaintiff then filed a second complaint in the circuit court against BCBSM and a petition to review the OFIR Commissioner’s order, naming the OFIR and the OFIR Commissioner as respondents, asking the court to declare that the OFIR Commissioner’s resolution of the challenge to BCBSM’s capital contribution was contrary to the court’s prior interpretation of the statute, that it was “contrary to [the scope of the trial court’s] referral [to the OFIR Commissioner] for factual determinations,” that it was not authorized by law and was contrary to the plain language of MCL 550.1207(l)(x)(ui), and that it was not supported by any record or competent evidence. Respondents moved for summary disposition, asserting that the claim that BCBSM’s capital contribution violated MCL 550.1207(l)(x)(ci) was within the primary jurisdiction of the OFIR, that the OFIR Commissioner had adjudicated that claim in BCBSM’s favor, and that plaintiffs petition that the trial court review the OFIR Commissioner’s decision was untimely. BCBSM also moved for dismissal pursuant to MCR 2.116(C)(4), asserting that the trial court lacked subject-matter jurisdiction because plaintiff failed to seek judicial review of the OFIR Commissioner’s decision within 21 days of the entering of that order. The trial court granted both BCBSM’s motion for summary disposition and respondents’ motion to dismiss, concluding that it lacked jurisdiction to hear the case as an original action and that the petition for review of the OFIR Commissioner’s decision was not timely filed.
THE ACCIDENT FUND’S ACQUISITION OF THE INSURERS
Plaintiff first argues, in Docket No. 290167, that the trial court erred by granting summary disposition of count I of plaintiffs initial complaint because, contrary to the trial court’s conclusion, MCL 550.1207(l)(o) prohibited the Accident Fund’s acquisition of UWI, CWI, and Third Coast. We disagree.
As a preliminary matter, BCBSM asserts that this Court lacks jurisdiction to hear plaintiffs appeal as of right in Docket No. 290167 of the trial court’s January 13, 2009, order, because the trial court’s October 6, 2008, order granting in part and denying in part BCB-SM’s motion for summary disposition dismissed count II of plaintiffs complaint without prejudice and referred that count to the OFIR Commissioner. BCBSM argues that a dismissal without prejudice is not a final order under MCR 7.203(A), and therefore, that the trial court’s disposition of count II in that manner “renders the collective orders from which this appeal is taken non-final, and deprives this Court of jurisdiction to entertain the appeal of right.” We disagree.
The trial court’s dismissal of count II of the complaint in the manner and under the circumstances present here, constituted a final “disposition” of that claim for purposes of MCR 7.202(6)(a)(i). Rooyakker & Sitz, PLLC v Plante & Moran, PLLC, 276 Mich App 146; 742 NW2d 409 (2007). In Rooyakker, this Court rejected the argument that an order of summary disposition that referred certain claims to arbitration did not constitute a final order, concluding that the order of summary disposition in that case was a final order “because there was nothing left for the trial court to decide and it did not state that it was retaining jurisdiction ... .” Id. at 148 n 1. Likewise, in the present case, there was nothing left for the trial court to decide regarding count II after its decision to refer the claim to the OFIR Commissioner, and the trial court did not state in the October 6, 2008, order dismissing that count without prejudice that it was retaining jurisdiction of that count. Instead, the trial court specifically indicated in its January 13, 2009, order granting summary disposition with regard to count I upon reconsideration that “ [t]his decision resolved the last pending claim and closes this case.” Thus, plainly, the trial court believed that there was nothing left for it to resolve and that it had “disposed” of all plaintiffs claims by its summary disposition of count I. Therefore, here as in Rooyakker, there was nothing left for the trial court to decide, and all claims were finally “disposed” of within the meaning of MCR 7.202(6)(a)(i).
Turning to the substantive issue presented, we first observe that this Court reviews de novo both a trial court’s decision on a motion for summary disposition and questions of statutory interpretation. City of Taylor v Detroit Edison Co, 475 Mich 109, 115; 715 NW2d 28 (2006); Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). As this Court explained in Smith v Stolberg, 231 Mich App 256, 258; 586 NW2d 103 (1998):
A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. This Court reviews de novo a trial court’s decision regarding a motion for summary disposition under MCR 2.116(C)(8) to determine whether the claim is so clearly unenforceable as a matter of law that no factual development could establish the claim and justify recovery. All factual allegations supporting the claim, and any reasonable inference or conclusions that can be drawn from the facts, are accepted as true. [Citations omitted.]
The trial court determined that plaintiff failed to state a claim on which relief could be granted pursuant to MCL 550.1207(l)(o), because that section is inapplicable to the Accident Fund’s acquisition, ownership, and operation of UWI, CWI, and Third Coast. As previously noted, MCL 550.1207(l)(o) provides, in pertinent part:
A health care corporation, subject to any limitation provided in this act, in any other statute of this state, or in its articles of incorporation, may do any or all of the following:
(o) Subject to chapter 9 of the insurance code of 1956 ... invest and reinvest its funds and, for investment purposes only, purchase, take, receive, subscribe for, or otherwise acquire, own, hold, vote, employ, sell, lend, lease, exchange, transfer, or otherwise dispose of, mortgage, pledge, use, and otherwise deal in and with, bonds and other obligations, shares, or other securities or interests issued by entities other than domestic, foreign, or alien insurers, as defined in sections 106 and 110 of the insurance code of 1956 ... whether engaged in a similar or different business, or governmental or other activity, including banking corporations or trust companies.
This Court’s goal when interpreting a statute is to discern and give effect to the Legislature’s intent. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). The intent of the Legislature is most reliably shown through the words used in the statute. Id. If the language in the statute is unambiguous, the Legislature is presumed to have intended the meaning clearly expressed, and the statute must be enforced as written. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). In such cases, judicial construction is neither required nor permitted. Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005), citing Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). Effect should be given to every phrase, clause, and word in the statute, and this Court will avoid a construction that would render any part of a statute surplusage or nugatory. Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008). “The statutory language must be read and understood in its grammatical context, unless it is clear that something different was intended.” Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999). And, this Court “must consider both the plain meaning of the critical words or phrases as well as their placement and purpose in the statutory scheme.” People v Williams, 268 Mich App 416, 425; 707 NW2d 624 (2005). This Court may “ ‘consult dictionary definitions of terms that are not defined in a statute.’ ” Woodard v Custer, 476 Mich 545, 561; 719 NW2d 842 (2006), quoting People v Perkins, 473 Mich 626, 639; 703 NW2d 448 (2005). However, “technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.” MCL 8.3a; Woodard, 476 Mich at 561.
There is no dispute that BCBSM, as a “health care corporation,” was plainly prohibited by MCL 550.1207(l)(o) from directly acquiring UWI, CWI, and Third Coast. And, there is no allegation that it did so. The question presented is whether MCL 550.1207(l)(o) has any application to the acquisition of these insurers by BCBSM’s wholly owned subsidiary, the Accident Fund. We agree with the trial court’s conclusion that it does not.
By its plain language, MCL 550.1207(1) sets forth permissible activities by a “health care corporation,” that is, a “nonprofit hospital service corporation, medical care corporation, or a consolidated hospital service and medical care corporation incorporated or reincorporated under” the Act. MCL 550.1105(2); MCL 550.1207(1). This includes BCBSM; it does not include the Accident Fund. Therefore, MCL 550.1207(1) (o) has no direct application to the Accident Fund’s business activities. It applies here, then, only if it prevents BCBSM from activity undertaken by its wholly owned subsidiary. However, nothing in MCL 550.1207(l)(o) expressly prohibits any particular activity undertaken by a health-care corporation’s subsidiary. The restrictions set forth in MCL 550.1207(1) (o) plainly apply only to a “health care corporation”; they do not mention or refer to such a corporation’s affiliates or subsidiaries.
Plaintiff argues that the prohibition against the Accident Fund’s acquisition of UWI, CWI, and Third Coast arises from the statute’s prohibition against BCBSM “otherwise” acquiring, owning, or holding voting shares or voting securities or interests issued by a domestic, foreign, or alien insurer. That is, plaintiff argues that the acquisition of UWI, CWI, and Third Coast by the Accident Fund constituted BCBSM “otherwise” acquiring those insurers within the meaning of MCL 550.1207(1)(o). Plaintiff points to language in MCL 550.1207(l)(o)(iii) and (iv), prohibiting a health-care corporation from direct or indirect control of certain types of insurers, as supporting plaintiffs assertion. Again, however, we find dispositive the fact that there is simply nothing in the plain language of the statute to support a conclusion that MCL 550.1207(l)(o) prohibits activities undertaken by the Accident Fund. The entirety of MCL 550.1207(l)(o) applies only to “health care corporations,” and it permits BCBSM to acquire certain types of foreign insurers under certain circumstances. Thus, MCL 550.1207(l)(o) only applies when BCBSM undertakes a financial transaction meeting certain criteria. However, the transactions about which plaintiff complains were not undertaken by BCBSM; they were undertaken by the Accident Fund, to which the restrictions of MCL 550.1207(l)(o) are inapplicable. With respect to plaintiffs reliance on the “otherwise” language of the statute, BCBSM did not itself “invest [in] . . . purchase, take, receive, subscribe for, . . . acquire, own, hold, vote, [or] employ” any interest whatsoever in the three insurance companies purchased by the Accident Fund in any manner whatsoever. Thus, it did not itself “otherwise” engage in any such activity in violation of the statute.
Of further note in analyzing plaintiffs argument that MCL 550.1207(l)(o)(iii) and (iv) prohibit BCBSM from indirectly controlling UWI, CWI, and Third Coast by virtue of the acquisition of those companies by the Accident Fund, is the 2003 amendment of this section. Before that amendment, MCL 550.1207(l)(o) read as follows:
A health care corporation, subject to any limitation provided in this act, in any other statute of this state, or in its articles of incorporation, may do any or all of the following:
(0) Invest and reinvest its funds and, for investment purposes only, purchase, take, receive, subscribe for, or otherwise acquire, own, hold, vote, employ, sell, lend, lease, exchange, transfer, or otherwise dispose of, mortgage, pledge, use, and otherwise deal in and with, bonds and other obligations, shares, or other securities or interests issued by entities other than domestic, foreign, or alien insurers, as defined in sections 106 and 110 of the insurance code of 1956 ... whether engaged in a similar or different business, or governmental or other activity, including banking corporations or trust companies. However, a health care corporation may purchase, take, receive, subscribe for, or otherwise acquire, own, hold, vote, employ, sell, lend, lease, exchange, transfer, or otherwise dispose of bonds or other obligations, shares, or other securities or interests issued by a domestic, foreign, or alien insurer, so long as the activity meets all of the following:
(1) Is determined by the attorney general to be lawful under section 202.
(ii) Is approved in writing by the commissioner as being in the hest interests of the health care corporation and its subscribers.
(Hi) Will not result in the health care corporation owning or controlling 10% or more of the voting securities of the insurer. Nothing in this subdivision shall be interpreted as expanding the lawful purposes of a health care corporation under this act. Except where expressly authorized by statute, a health care corporation shall not indirectly engage in any investment activity that it may not engage in directly. A health care corporation shall not guarantee or become surety upon a bond or other undertaking securing the deposit of public money. [Emphasis added.]
Effective July 23, 2003, however, subparagraph (iii) was rewritten, and a new subparagraph (iv) was added. As quoted earlier in this opinion, the amended subparagraph (iii) and the new subparagraph (iv) read as follows:
(iii) For an activity that occurred before the effective date of the amendatory act that added subparagraph (iv), will not result in the health care corporation owning or controlling 10% or more of the voting securities of the insurer or will not otherwise result in the health care corporation having control of the insurer, either before or after the effective date of the amendatory act that added subparagraph (iv). As used in this subparagraph and sub-paragraph (iv), “control” means that term as defined in section 115 of the insurance code of 1956, 1956 PA 218, MCL 500.115.
(iv) Subject to section 218 [MCL 550.1218] and beginning on the effective date of the amendatory act that added this subparagraph, will not result in the health care corporation owning or controlling part or all of the insurer unless the transaction satisfies chapter 13 of the insurance code of 1956,1956 PA 218, MCL 500.1301 to 500.1379, and the insurer being acquired is only authorized to sell disability insurance as defined under section 606 of the insurance code of 1956, 1956 PA 218, MCL 500.606, or under a statute or regulation in the insurer’s domiciliary jurisdiction that is substantially similar to section 606 of the insurance code of 1956, 1956 PA 218, MCL 500.606.
Thus, the prohibition against “a health care corporation . . . indirectly engaging] in any investment activity that it may not engage in directly” was removed by the Legislature. It was replaced with a prohibition against an investment by a health-care corporation that would result in the corporation owning 10 percent or more of the voting securities of a particular insurer or “otherwise result[ing] in the health care corporation having [the prohibited level of] control of” that insurer. As amended, then, MCL 550.1207(l)(o)(iii) is violated only when the healthcare corporation undertakes a financial transaction that results in it having control of the acquired insurer. Plainly, BCBSM did not itself acquire any interest in or control of the three insurers at issue. Thus, the conditions attendant to any such acquisition, set forth in subparagraphs (i)-(ic), were not implicated.
Further, as the trial court noted, MCL 550.1207(l)(x) provides, in relevant part, that BCBSM may
establish, own, and operate a domestic stock insurance company [the Accident Fund] only for the purpose of acquiring, owning, and operating the state accident fund pursuant to chapter 51 of the insurance code of 1956 ... so long as all of the following are met:
(i) For insurance products and services the insurer whether directly or indirectly only transacts worker’s compensation insurance and employer’s liability insurance, transacts disability insurance limited to replacement of loss of earnings, and acts as an administrative services organization for an approved self-insured worker’s compensation plan or a disability insurance plan limited to replacement of loss of earnings and does not transact any other type of insurance notwithstanding the authorization in chapter 51 of the insurance code of 1956 . .. This subparagraph does not preclude the insurer from providing either directly or indirectly noninsurance products and services as otherwise provided by law. [Emphasis added.]
Thus, the Act specifically authorizes the Accident Fund to indirectly transact certain types of insurance, including workers’ compensation insurance, and to indirectly provide noninsurance products and services as permitted by law. We concur with the trial court’s reasoning that reading MCL 550.1207(l)(o) as implicitly preventing the acquisition of workers’ compensation insurers by the Accident Fund would be contrary to the language of MCL 550.1207(l)(x)(i), which explicitly permits such acquisitions.
THE DOCTRINE OF PRIMARY JURISDICTION
Plaintiff next argues that the trial court erred by dismissing count II of plaintiffs initial complaint and by referring the count to the OFIR Commissioner for a determination of whether BCBSM had violated the Act. We agree. The doctrine of primary jurisdiction permitted the trial court to refer the count to the OFIR Commissioner for an advisory opinion, but the trial court erred by failing to retain jurisdiction of the count and by failing to make a determination de novo of the statutory-interpretation issue.
In a convoluted argument, BCBSM argues that the doctrine of primary jurisdiction allows an administrative agency to issue a binding interpretation of a statute. This argument miscomprehends the doctrine. The applicability of the doctrine of primary jurisdiction presents a question of law, which this Court reviews de novo. Psychosocial Serv Assoc, PC v State Farm Mut Auto Ins Co, 279 Mich App 334, 336; 761 NW2d 716 (2008); Mich Basic Prop Ins Ass’n v Detroit Edison Co, 240 Mich App 524, 528; 618 NW2d 32 (2000). “The doctrine of primary jurisdiction is grounded in the principle of separation of powers. . . . [And it] is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.” Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 196-197; 631 NW2d 733 (2001) (quotation marks and citations omitted). As our Supreme Court explained in Rinaldo’s Constr Corp v Mich Bell Tel Co, 454 Mich 65, 70-72; 559 NW2d 647 (1997):
Primary jurisdiction “is a concept of judicial deference and discretion.” LeDuc, Michigan Administrative Law, § 10:43, p 70. The doctrine exists as a “recognition of the need for orderly and sensible coordination of the work of agencies and of courts.” White Lake Improvement Ass’n v City of Whitehall, 22 Mich App 262, 282; 177 NW2d 473 (1970). In White Lake, the Court of Appeals correctly noted that “[t]he doctrine of primary jurisdiction does not preclude civil litigation; it merely suspends court action.” Id. at 271. Thus, LeDuc notes, “[pjrimary jurisdiction is not a matter of whether there will be judicial involvement in resolving issues, but rather of when it will occur and where the process will start.” Id. at § 10:44, p 73. A court of general jurisdiction considers the doctrine of primary jurisdiction “whenever there is concurrent original subject matter jurisdiction regarding a disputed issue in both a court and an administrative agency.” Id. at § 10:43, p 70.
In Attorney General v Diamond Mortgage Co, 414 Mich 603, 613; 327 NW2d 805 (1982), we applied the United States Supreme Court’s definition of the doctrine from United States v Western P R Co, 352 US 59; 77 S Ct 161; 1 L Ed 2d 126 (1956):
“ ‘ “Primary jurisdiction” ... applies where a claim is originally cognizable in the courts and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.’ ”
The Court observed, “No fixed formula exists for applying the doctrine of primary jurisdiction. In every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation.” Id. at 64.
Professors Davis and Pierce identify three major purposes that usually govern the analysis when a court is deciding whether to defer to an administrative agency under this doctrine. First, a court should consider “the extent to which the agency’s specialized expertise makes it a preferable forum for resolving the issue ....” Second, it should consider “the need for uniform resolution of the issue ....” Third, it should consider “the potential that judicial resolution of the issue will have an adverse impact on the agency’s performance of its regulatory responsibilities.” Davis & Pierce, 2 Administrative Law (3d ed), § 14.1, p 272. Where applicable, courts of general jurisdiction weigh these considerations and defer to administrative agencies where the case is more appropriately decided before the administrative body. [Emphasis added.]
As our Supreme Court has observed in Travelers Ins Co, the doctrine of primary jurisdiction
“reflects the courts’ recognition that administrative agencies, created by the Legislature, are intended to be repositories of special competence and expertise uniquely equipped to examine the facts and develop public policy within a particular field.” Thus, whether judicial review will be postponed in favor of the primary jurisdiction of an administrative agency “necessarily depends upon the agency rule at issue and the nature of the declaration being sought in the particular case.”
Several reasons have been advanced for invocation of the primary jurisdiction doctrine. First, the doctrine underscores the notion that administrative agencies possess specialized and expert knowledge to address issues of a regulatory nature. Use of an agency’s expertise is necessary in regulatory matters in which judges and juries have little familiarity.... A second consideration relates to respect for the separation of powers and the statutory purpose underlying the creation of the administrative agency, the powers granted to it by the legislature, and the powers withheld. This justification includes the principle that courts are not to make adverse decisions that threaten the regulatory authority and integrity of the agency. Third, the doctrine exists to promote consistent application in resolving controversies of administrative law. By application of the doctrine,
“[u]niformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.”
In [Attorney General v] Diamond Mtg Co [414 Mich 603, 612-613; 327 NW2d 805 (1982)], this Court explained its adoption of these justifications for primary jurisdiction.
“In cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined.”
Thus, this Court recognized application of the primary jurisdiction doctrine to all cases in which it was deemed that an administrative agency possessed superior knowledge and expertise in addressing recurring issues within the scope of their authority. [Travelers Ins Co, 465 Mich at 198-200 (emphasis added; citations omitted).]
The doctrine of primary jurisdiction is applicable where the issues presented are of a type that an administrative agency possesses superior knowledge and expertise over the courts and that involve a regulatory area unfamiliar to the courts. Consequently, referral to an agency is appropriate for “ ‘preliminary resort for ascertaining and interpreting the circum stances underlying legal issues,’ ” to thereafter be decided by the courts. Id. at 199 (emphasis added; citation omitted).
As a threshold issue, before invoking the doctrine of primary jurisdiction, a court must find that the administrative agency to which referral is sought has concurrent original jurisdiction over the issues raised. Here, the trial court did not specifically determine that the OFIR had concurrent original jurisdiction over the question whether the $125 million capital contribution was an impermissible subsidy under MCL 550.1207(l)(x). Nonetheless, the implication of the trial court’s referral is necessarily that the OFIR has such jurisdiction.
BCBSM acknowledges that “[rjesolution of the issues raised in Count II was and is dependent upon the proper construction of MCL 550.1207(1)(x)(vi)” and notes that in In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 103; 754 NW2d 259 (2008), our Supreme Court held that courts should give “ ‘respectful consideration’ ” to the construction of a statute by an administrative agency charged with administering the statute and should not overturn the agency’s interpretation without “ ‘cogent reasons.’ ” BCBSM then concludes that, “[gjiven the Commissioner’s extensive experience in regulating the insurance and health care industries, and financial transactions between affiliated entities, the trial court properly gave to the Commissioner the initial opportunity to interpret Section 207, and this Court, respectfully, should not disturb that decision.” However, BCBSM overstates the degree of consideration that is appropriately afforded to the OFIR Commissioner’s determination on a question of statutory interpretation.
At issue in In re Complaint of Rovas, was whether SBC Michigan (SBC) violated § 502(1) (a) of the Michigan Telecommunications Act, MCL 484.2502(l)(a), by sending customers an erroneous bill. The customers filed a complaint with the Public Service Commission (PSC), which agreed with the customers that the erroneous bill constituted a violation. This Court had reluctantly affirmed, despite “reservations,” concluding that the agency’s interpretation of the statute was “plausible.” In re Complaint of Rovas, 482 Mich at 93-94. Our Supreme Court reversed. It first noted:
This case implicates the powers, and the boundaries of the powers, of all three branches: the Legislature, the judiciary, and administrative agencies, which are part of the executive branch. Thus, separation of powers principles will aid in the analysis of the proper consideration due an administrative agency’s interpretation of a statute.
The people of the state of Michigan have divided the powers of their government “into three branches: legislative, executive and judicial.” Furthermore, “[n]o person exercising the powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.”
“The legislative power of the State of Michigan is vested in a senate and a house of representatives.” Simply put, legislative power is the power to make laws. In accordance with the constitution’s separation of powers, this Court “cannot revise, amend, deconstruct, or ignore [the Legislature’s] product and still be true to our responsibilities that give our branch only the judicial power.” While administrative agencies have what have been described as “quasi-legislative” powers, such as rulemaking authority, these agencies cannot exercise legislative power by creating law or changing the laws enacted by the Legislature.
Since the time of Marbury v Madison [5 US (1 Cranch) 137; 2 L Ed 60 (1803)], interpreting the law has been one of the defining aspects of judicial power. “Although we may not usurp the lawmaking function of the legislature, the proper construction of a statute is a judicial function, and we are required to discover the legislative intent.” Administrative agencies exercise what have been described as “quasi-judicial” powers. However, such power is limited and is not an exercise of constitutional “judicial power.” The primary “judicial” function exercised by administrative agencies is confined to conducting contested cases, like the one at issue here. These administrative contested cases resemble trials. Constitutionally and statutorily, these administrative fact-finding exercises are entitled to a degree of deference defined by statute and our constitution. However, fact-finding in an administrative contested case, much like in a trial before a circuit court, is a far different endeavor than construing a statute. [Id. at 97-99.]
With these principles in mind, the Court explained the standard of review afforded by the courts to an agency’s interpretation of a statute as follows:
[T]he Michigan Constitution specifically recognizes administrative agencies. Furthermore, the constitution explicitly provides for judicial review of administrative decisions ... to determine: (1) that the decision is authorized by law, and (2) if a hearing is required, that the decision is supported by record evidence. However, the provision does not stand for the proposition that agencies can assume this Court’s constitutional role as the final arbiter of the meaning of a statute.
... This Court has uniformly held that statutory interpretation is a question of law that this Court reviews de novo. Thus, concepts such as “abuse of discretion” or “clear error,” which are similar to the standards of review applicable to other agency functions, simply do not apply to a court’s review of an agency’s construction of a statute.
... While there are some opinions that seem to stand for the proposition that agency statutory interpretations are reviewed for “reasonableness” or an “abuse of discretion,” those standards do not apply to the interpretation of a statute, and they threaten the separation of powers principles discussed earlier by allowing the agency to usurp the judiciary’s constitutional authority to construe the law and infringe on the Legislature’s lawmaking authority.
This Court announced the proper standard of review for agency statutory construction more than 70 years ago in Boyer-Campbell v Fry [271 Mich 282, 296-297; 260 NW 165 (1935)], which dealt with the proper construction of the General Sales Tax Act. The Boyer-Campbell Court held that
“the construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not to be overruled without cogent reasons. However, these are not binding on the courts, and [w]hile not controlling, the practical construction given to doubtful or obscure laws in their administration by public officers and departments with a duty to perform under them is taken note of by the courts as an aiding element to be given weight in construing such laws and is sometimes deferred to when not in conflict with the indicated spirit and purpose of the legislature.”
This standard requires “respectful consideration” and “cogent reasons” for overruling an agency’s interpretation. Furthermore, when the law is “doubtful or obscure,” the agency’s interpretation is an aid for discerning the Legislature’s intent. However, the agency’s interpretation is not binding on the courts, and it cannot conflict with the Legislature’s intent as expressed in the language of the statute at issue. [Id. at 99-103 (emphasis added; citations and quotation marks omitted).]
In sum, then, contrary to BCBSM’s assertion, “ ‘ [Respectful consideration’ is not equivalent to any normative understanding of ‘deference’ as the latter term is commonly used in appellate decisions,” and “ ‘the agency’s interpretation is not binding on this Court, and cannot be used to overcome the statute’s plain mean ing.’ ” Id. at 105,108 (citation omitted). It is the courts, not the OFIR, that have the ultimate authority over the statutory interpretation of the Act, and any statutory interpretation rendered by the OFIR Commissioner in this case is not binding on the court.
Therefore, the trial court erred when it failed to make an independent interpretation of the statute at issue in count II. Count II is remanded to the trial court; we direct the trial court to make an independent, de novo interpretation of the statute. The court must allow the parties an opportunity to present evidence and to fully brief the issue. The court may also invite and allow any appropriate entities to file amicus briefs.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Given our reversal with regard to count II, plaintiffs appeal of the trial court’s dismissal of plaintiffs second complaint, at issue in Docket No. 295750, is rendered moot. We do not retain jurisdiction. Neither party having prevailed in full, there shall be no taxable costs.
MARKEY, J., concurred.
Count III, which alleged that BCBSM’s $125 million contribution to the Accident Fund constituted a breach of the asset purchase agreement between BCBSM and the state, was dismissed by the trial court, and plaintiff has not appealed that decision.
While contending that subdivision (o) in its entirety is inapplicable to the Accident Fund, BCBSM has not disputed plaintiffs assertion that the Accident Fund’s purchase of UWI, CWI, and Third Coast would not fall within the exception language if the subdivision applied. Further, we note that BCBSM’s purchase of the Accident Fund was specifically allowed by a statute that excepted that particular acquisition from the prohibition of MCL 550.1207(1)(o). MCL 550.1207(1)(x).
The statute provides that a health-care corporation, notwithstanding the provisions of subdivision (o), may establish, own, and operate a domestic stock insurance company only for the purpose of acquiring, owning, and operating the state accident fund, as long as
[h]ealth care corporation and subscriber funds are not used to operate or subsidize in any way the insurer including the use of such funds to subsidize contracts for goods and services. This subparagraph does not prohibit joint undertakings between the health care corporation and the insurer to take advantage of economies of scale or arm’s-length loans or other financial transactions between the health care corporation and the insurer. [MCL 550.1207(l)(x)(ui).]
The parties do not contest the fact that BCBSM is a health-care corporation under the Act and that the Accident Fund is not itself a health-care corporation under the Act. As discussed below, however, they are at odds about the legal implications of these facts.
Plaintiff does not allege that the three insurers acquired by the Accident Fund are engaged in providing insurance other than workers’ compensation insurance in contravention of MCL 550.1207(l)(x)(¿). | [
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■ T. M. Kavanagh, J.
On May 26, 1959, plaintiff-appellant Gordon Grossman Building Company, as vendor, entered into a land contract with defendants Jeannine Elliott and her husband, John Elliott, as vendees, covering a house and lot in the township of Burtchville, St. Clair county, Michigan, for the sale price of $11,750. Defendants defaulted in payments and plaintiff instituted foreclosure of the land contract in circuit court. A judgment of foreclosure was entered on November 10, 1966, finding a balance of $8,591.63 due on the land contract plus costs to be taxed and ordering the property to be sold by a circuit court commissioner. The property was sold to plaintiff on December 30, 1966, and the sale was confirmed by the trial court on February 3, 1967. No appeal was taken from this order. The statutory period for redemption expired' on March 30, 1967. ' ....
On March 16, 1967, Mrs. Elliott’s attorneys wrote to plaintiff’s attorneys stating:
“Confirming our telephone conversation of March 16, 1967 we are forwarding to you a warranty deed to be executed by the proper representative of the Grossman Company. As you know, the Elliotts have found a purchaser for the property and the Michigan National Bank has approved the loan. .
“However, we will need the deed from Grossman to Elliott in order to consummate this transaction. We have received a title commitment from the local title company indicating that there is a balance due on a mortgage at Citizens Federal Savings & Loan Association of Port Huron, wherein the Grossman Company is the mortgagor.
“With a copy of this letter I am requesting Mr. George LeVine [sic] of the Michigan National Bank to confirm, by letter, that they have approved a loan for the purchasers, Mr. and Mrs. Robert A. Ritz, and that they will forward to you for your client the balance owing as a result of the foreclosure sale. Pursuant to your letter of March 9, 1967 the total amount due for redemption as of March 10, 1967 is $9,299.91 with $1.51 in interest due per day after that date.
“Please forward the executed deed directly to Mr. LeVine [sic] at the bank with directions that he be authorized to pay the balance directly to Citizens to discharge the mortgage and to remit the balance to you for your client. Mr. LeVine [sic] will not deliver the deed until such time as he makes disbursement to you and Citizens.
“I would appreciate it if you would expedite this matter, as you know, the redemption is drawing near. Please advise if there are any problems concerning this matter.”
On March 21, 1967, the mortgage department of the Michigan National Bank wrote a letter to plaintiff’s attorneys stating:
“In response to your letter from McIntosh, Simpson, Oppliger and Mugan of March 16th, 1967, this is to confirm that the Michigan National Bank has approved the loan to Mr. and Mrs. Robert A. Ritz to purchase the John and Jeannine Elliott property located at 3293 Blue Water Drive, Port Huron, Michigan.”
Oil March 23,1967, Mr. Jacob, one of the attorneys for plaintiff Grossman Building Company advised defendant Jeannine Elliott’s attorneys as follows: “Our clients are not going to send you the deed. Mr. Nathan never said they would. As far as we are concerned, that’s it.”
On April 7, 1967, after the period of redemption had expired, Mrs. Elliott filed a motion in circuit court seeking an order requiring plaintiff to execute a warranty deed and to comply with all of the terms of the contract. She sought to require plaintiff to deliver to her a complete abstract of title and tax history certified to date of conveyance.
Plaintiff answered, saying it was not required to place the deed in escrow after expiration of the redemption period.
On April 17,1967, the trial court entered an order providing in part:
“It is hereby ordered that the plaintiff * * * execute a valid warranty deed in fulfillment of the terms of a certain land contract dated May 26, 1959, and that said plaintiff comply with all terms of said contract, including the provisions contained in paragraph No. 7 in said contract.
“It is further ordered that said plaintiff execute said deed and comply with all provisions forthwith.”
Plaintiff appealed to the Court of Appeals. The order of the trial court was affirmed in a unanimous opinion. 11 Mich App 620. Leave to appeal to this Court was granted plaintiff on September 3, 1968. 381 Mich 773.
The two issues in this Court are:
(1) "Was the trial court’s order requiring the vendor to execute a warranty deed improper?
(2) Were the foreclosure proceedings void because of an improper description in the circuit court commissioner’s notice of sale, deed, and report of sale?
Disposing of the latter issue, the record discloses the-issue was never raised or passed upon by the trial court or the Court of Appeals. The failure to raise a question in the lower court precludes, as a- general rule, the Supreme Court considering it on appeal. See Young v. Morrall (1960), 359 Mich 180, 187, and cases therein cited. See, also, Krautmer v. Kinsella (1963), 369 Mich 98, 100; Therrian v. General Laboratories, Inc. (1964), 372 Mich 487, 490; Magreta v. Ambassador Steel Co. (On Rehearing, 1968), 380 Mich 513, 519.
Turning to the only issue really before this Court, we recognize the statute pertaining to redemption from foreclosure, which reads in part:
“The vendee of a land contract, his heirs, executors, administrators, or any person lawfully claiming from or under him or them may redeem the entire premises sold within 3 months from the time of the sale by paying to the purchaser, his executors, administrators, or assigns or to the register of deeds in whose office the deed of sale is deposited as provided in the court rules, for the benefit of the purchaser, the sum which was bid with interest from the time of the sale at the rate per cent borne by the land contract. In case the sum is paid to the register of deeds the sum of $5.00 shall be paid to him as- a fee for the care and custody of the redemption money. After these sums have been paid the deed oí sale is void and of no effect, but in case any dis-' tinct lot or parcel separately sold is redeemed, leav ing a portion of the premises unredeemed, then the deed of sale is inoperative merely as to the portion or portions of the premises which are redeemed, and to the portions not redeemed it remains valid and of full effect.” (Emphasis added.)
The period of redemption is specifically set at 3 months and the procedure to properly effect redemption within this period is clearly spelled out. Absent some unusual circumstances or additional considerations not within the ambit of the statute, this Court must follow the clear and plain meaning of the statute.
We accept as a general rule that the right to redeem under present statutes is a legal right and can neither be enlarged nor abridged by the courts. See Detroit Trust Co. v. George (1933), 262 Mich 362; Drysdale v. P. J. Christy Land Co. (1929), 248 Mich 184.
In Wood v. Button (1919), 205 Mich 692, this Court, holding that a mortgagor redeeming within the statutory period was not required to reimburse the purchaser at the foreclosure sale for taxes paid, stated (p 703):
“In my opinion, the case presented is not one to be determined upon some notion of general equities. The parties have a right to stand upon the law. Carlisle v. Dunlap (1918), 203 Mich 602. The right to redeem from a foreclosure at law is a legal right, is created by the statute, and can neither be enlarged nor abridged by courts. A redemption is complete ivhen one having the right to redeem pays in proper time, to a proper person.” (Emphasis added.)
Any departure from this general rule must be addressed to the conscience of the court, which under prior statutes and prior practice was in the nature of a bill in equity. See McCreery v. Roff (1915), 189 Mich 558. The usual ground urged as an ex ception to the general rule, justifying the intervention of the court of equity, is that of fraud. See Palmer v. Palmer (1916), 194 Mich 79. The element of fraud, however, must be proven by clear and convincing proofs.
In Marble v. Butter (1930), 249 Mich 276, the plaintiff, having paid over 90% of the land contract obligation, attempted to redeem by securing a mortgage to pay the entire balance due and tendered the full sum to the purchaser, and upon the latter’s refusal deposited the amount due with the clerk of the court. The Court in Marble noted, as further unusual circumstances, that one of the original land contract vendees refused to join in executing the mortgage and that defendant-purchaser refused to disclose the amount still due and refused to provide an abstract of the property. Reversing the lower court, which dismissed plaintiff’s bill in equity— filed on the last day of redemption and praying that the court compel the land contract vendee to join in executing the mortgage — this court in Marble stated (pp 279, 280) :
“This court has frequently relieved a person from a harsh forfeiture where he is ready and willing to make full payment, and where there are very unusual circumstances which appeal to the conscience of the court, and where the party seeking to enforce the forfeiture will receive everything to which he would have been entitled, under his contract had there been no forfeiture. This right to redeem, as is sought in the amended or supplemental bill of complaint, rests in the sound discretion of the court.” (Emphasis added.)
In Palmer v. Palmer, supra, the facts of the case compelled this Court to reach the opposite conclusion. There the plaintiff-wife alleged that defendant-purchaser and defendant-husband, who was a defaulting mortgagor, conspired to prevent her from redeeming by practicing fraud and dilatory tactics. This Court, reviewing her proofs, stated (pp 80, 81):
“The authorities seem to justify the conclusion that, where the owner has been induced to refrain from redeeming by fraudulent conduct and representations, equity will interpose and grant relief. See 27 Cyc, p 1847; 2 Jones on Mortgages (7th ed), p 649; Newman v. Locke (1887), 66 Mich 27. This is of that class of cases where it can be said that it is indeed regrettable that because of her failure to act the plaintiff has been deprived of property by reason of the statutory enactments with reference to such a foreclosure. It is elementary, however, that before a court of equity is justified in interfering equitable grounds must clearly appear, and fraud is not to be lightly presumed, but must be clearly proved.
“A careful examination of this record is convincing that the plaintiff has failed in her proof to sustain her charge.”
The defendant in the instant case would have us view her pleaded facts and circumstances as falling within the decision in Marble, supra. But we cannot find in the record before us a single statement which alleges that plaintiff practiced any fraud. In fact, defendant in oral argument before this Court candidly admitted that the issue of fraud “never was a part of this case nor was it being argued before this Court.”
Granting defendant every presumption of integrity and good faith, the only view we can take of the facts of this case is that the negotiations between the parties’ attorneys came to an impasse. However, this situation does not amount to an act of fraud which would justify the intervention of equity. See, e.g., Kaiser v. Weber (1942), 301 Mich 609. To hold otherwise would set a dangerous precedent which would deprive every title to real estate purchased at foreclosure sale of the finality and security clearly intended under the statute.
We note, in addition, that defendant was fully aware at least one week before the expiration of the redemption period, that unless she followed one of the statutory methods of redemption her property would be lost. Yet she did nothing to preserve her right of redemption until after it had expired. Concluding that defendant intentionally relinquished her right of redemption, we adhere, regrettable as it may be, to the precedential authority and reasoning of this Court in Pappas v. Harrah (1922), 221 Mich 460, where it was stated (p 463):
“The record falls short of establishing any agreement or assurance justifying plaintiffs .in paying no further attention , to the period of redemption. With the suits determined against them and the right of redemption about to expire, the plaintiffs should have tendered the amounts due on the contracts.' The failure to make such tender is not excused by the assumption that defendant would not insist on his strict rights. We would import into the law an unsafe and litigious element if we should hold an offer to perform, with ability to do so, accomplishes the purpose of a tender, or constitutes ground for equitable relief.”
To summarize, we can find no element of fraud in this case which would justify the equitable relief granted by the trial court in the instant case. Palmer v. Palmer, supra. Absent equitable considerations, the plain intent and operation of the statute must be literally followed. Union Trust Co. v. Detroit Trust Co. (1928), 243 Mich 451; Pappas v. Harrah, supra.
In view of the above, we do not discuss the question of tender relied upon by the Court of Appeals.
The decision of' the Court of Appeals and the judgment of the trial court are reversed and the cause remanded to the trial court for entry of an order of dismissal. Plaintiff-appellant shall have costs of this Court.
T. E. Brennan, C. J., and Dethmers and T. G. Kavanagh, JJ., concurred with T. M. Kavanagh, J.
PA 1961, No 236, § 3140, effective January 1, 1963, as amended by PA 1963,. No 240 (MCLA § 600.3140 [Stat Ann 1969 Cum Supp § 27A.3140]). Note tliat to a large extent this statute eliminated the legal distinction between foreclosure of a mortgage and foreclosure of a land contract, and the authorities hereinafter cited will be treated as equally applicable to both. See Committee Comment, MCLA § 600,3101, pp 48, 49, Stat Ann 1962 Bev 8 27A.3101, pp 259, 260.
PA 1961, No 236, § 3130, effective January 1, 1963 (MCLA § 600.3130 [Stat Ann 1962 Rev §27A.3130]). | [
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] |
Kelly, J.
Plaintiff received weekly compensation benefits from defendant-appellant, Chrysler Corporation, until 500 weeks from the date of his injury, July 6, 1955.
March 3, 1965, plaintiff filed an application for hearing and adjustment of claim for benefits for permanent and total disability due to the loss of industrial use of both arms.
The hearing referee ordered Chrysler Corporation to pay total and permanent disability benefits for 800 weeks (the number of weekly benefits first made applicable to this situation by PA 1956, No 195 ) and to pay at rates in effect at the date of injury (not at the rates set by PA 1956, No 195). Tbe second injury fund was made liable for rate increases made subsequent to tbe date of injury by PA 1956, No 195, and PA 1965, No 44.
The workmen’s compensation appeal board held that plaintiff suffered the loss of industrial use of both arms on February 12, 1958, and found that plaintiff was entitled to the benefits provided by PA 1956, No 195, and that payment of said benefits was the obligation of Chrysler Corporation. The second injury fund was held liable for increases in weekly benefits that were enacted by PA 1965, No 44.
The Court of Appeals denied Chrysler’s application for leave to appeal, but this Court granted its application, 381 Mich 763..
In this appeal, Chrysler Corporation advances two reasons why the decision of the workmen’s compensation appeal board should be reversed: (1) the legislature by enacting amendments to part 2, § 9, of the workmen’s compensation act by PA 1956, No 195 and PA 1965, No 44, has clearly shown its intent to place the burden for enlarged benefits after the date of injury in permanent and total disability cases solely upon the second injury fund; and (2) the retrospective application of PA 1956, No 195, to Chrysler Corporation deprives Chrysler of its constitutional rights.
The question presented in this appeal was considered by this Court in our February 1966 decision of Clark v. Chrysler Corporation, 377 Mich 140.
In the Clark Case plaintiff suffered an injury on November 27, 1954, resulting in a complete amputation of his left hand and the loss of his thumb, index and middle fingers of his right hand. The referee held that plaintiff had suffered an amputation of the left hand and the loss of industrial use of his right hand, but held that plaintiff did not qualify as a totally and permanently disabled person under part 2, § 10, of thé workmen’s compensation act as written at the time of the injury, and excluded him from differential benefits from the second injury fund. The appeal board affirmed the referee’s decision and award.
In Clark v. Chrysler we considered and decided legislative intent as expressed in PA 1956, No 195. This act, in addition to adding a loss-of-use classification to part 2, § 10, amended section 9 to read in part as follows:
“Any permanently and totally disabled person as defined in sections 8a and 10 who, on or after June 25, 1955, is entitled to receive payments of workmen’s compensation under this act in amounts per week of less than is presently provided in the workmen’s compensation schedule of benefits for permanent and total disability and for a lesser number of weeks than the duration of such permanent and total disability shall after the effective date of this amendatory act, receive weekly, without application, from the second injury fund, an amount equal to the difference between what he is now receiving per week and the amount per week now provided for permanent and total disability.”
Both appellant Clark and appellee Chrysler Corporation agreed that Clark was totally and permanently disabled. The appellant, however, contended that he was entitled to benefits from either the employer or the second injury fund and appellee Chrysler, employer, contended the employee was entitled to benefits only from the second injury fund, stating in this regard:
“ 'By PA 1956, No 195 the legislature enlarged the'.definition of total and permanent disability to include loss of industrial use, as well as loss by amputation. The same amendatory act provided that persons who had these injuries before the amendatory act, ■ and on or after June 25, 1955, should be entitled to differential benefits in amounts of compensation and in the number of weeks of compensation. We believe the legislative plan was to give the enlarged benefits to those who prior to the amendatory act did not qualify as totally and permanently disabled, and that these enlarged benefits should come from the second injury fund. The coupling of these two changes in the same amenda-tory act compels the conclusion.’ ”
In deciding Clark, four members of our Court held, with an additional member concurring in result (p 150):
■'“The .appeal board should have modified the referee’s order to provide, after payment of specific loss benefits from November, 1954 to August, 1956, for payment to plaintiff by Ms employer of total and permanent disability benefits for the period commencing August 1, 1956 and ending 800 weeks from November 27, 1954, the date of plaintiff’s injury, at the benefit rate for total and permanent disability provided by the act on August 1, 1956.”
• A dissenting opinion in Clark (signed by three) concluded (p 158):
• “The determination of the workmen’s compensation appeal board is reversed and the case is remanded- to the workmen’s compensation appeal board for entry of an order granting plaintiff ben efits from the second injury fund as a person totally and permanently disabled.”
Since submission of the case of Clark v. Chrysler Corporation, supra, the legislature enacted PA 1965, No 44. By this act, part 2, § 9, was amended to read in part as follows:
“Any permanently and totally disabled person as defined in this act who, on or after June 25, 1955, is entitled to receive payments of workmen’s compensation under this act in amounts per week of less than is presently provided in the workmen’s compensation schedule of benefits for permanent and total disability and for a lesser number of weeks than the duration of such permanent and total disability shall after the effective date of any amendatory act, by which his disability is defined as permanent and total disability or by which the weekly benefit for permanent and total disability is increased, receive weekly, without application, from the second injury fund, an amount equal to the difference between what he is now or shall hereafter be entitled to receive from his employer under the provisions of this act as the same was in effect at the time of his injury and the amount now provided for his permanent and total disability by this or any other amendatory act.”
In this appeal appellant Chrysler Corporation has not abandoned its contention and argument as appellee in Clark v. Chrysler Corporation, supra, but in expressing opinion that the relief sought in this appeal can be granted without overruling Ciarle, states:
“The legislature has made it perfectly apparent by this amendment [PA 1965, No 44] to part 2, § 9, that, when the loss-of-use classification was added to part 2, § 10, payments of benefits for the newly defined loss-of-use permanent and total disabilities were to be from the second injury fund so that the burden of the change could be spread among all employers. * * *
“The overruling of the Clark Case is not a necessary element to the success of our contention. We believe that by adoption of PA 1965, No 44, the legislature, again, and from statute context, spelled out its intent to give retroactive effect to placing the burden of enlarged benefits and enlarged definitions of permanent and total disability upon the second injury fund. The applicability of the amendments contained in PA 1965, No 44, and their effect was not passed upon in the Clark Case as PA 1965, No 44 had not been enacted when the Clark Case was submitted. The amendments to part 2, § 9, as contained in PA 1965, No 44 give a wholly separate reason for placing the retroactive burden of enlarged definitions of the benefits for permanent and total disability upon the second injury fund.”
We agree with appellant Chrysler Corporation’s contention that the legislature has made it perfectly clear that when the loss-of-use classification was added to part 2, § 10, it was the intention of the legislature that “payments of benefits for the newly defined loss-of-use permanent and total disabilities were to be from the second injury fund so that the burden of the change could be spread among all employers.”
Reversed and remanded with directions that plaintiff be awarded workmen’s compensation benefits as permanently and totally disabled, solely from the second injury fund. No costs, &' public question being involved.
T. E. Brennan, C. J., and Dethmers, Black, T. M. Kavanagh, Adams, and T. Gr. Kavanagh, JTJ'., concurred.
CLS 1961, §§ 412.9, 412.10 (Stat Ann 1960 Rev §§ 17.159, 17.160).
CL 1948, § 412.9, as amended by PA 1955, No 250, effective June 25, 1955 (Stat Ann 1955 Cum Supp § 17.159)..
MCLA §4.12.9 (Stat Ann 1968 Rev §17.159),
CLS 1954, §412.10 (Stat Ann 1955 Cum Supp §17.160).
“Defendant and appellant, Chrysler Corporation, prays the decision of the workmen’s compensation appeal board be reversed and the matter remanded with directions that plaintiff be awarded workmen’s compensation benefits as a person permanently and totally disabled solely from the second injury fund,” | [
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Per Curiam.
November 22, 1968, this Court granted leave to review People v. Shields, 12 Mich App 154. See 381 Mich 788. Prior to submission of the appeal granted, this Court entered an administrative order under date of October 20, 1969, continuing—as of August 1, 1968—the jurisdiction of the circuit courts which the legislature provided by PA 1939, No 165, as amended, and repealed by PA 1968, No 143.
The order, attached hereto as an appendix, explains itself. Entry thereof eliminates need for presentation and determination ' of this appeal and clears the way for proceedings on remand as ordered by the Court of Appeals.
The judgment of the Court of Appeals, remanding for a psychiatric examination of the defendant Shields and, if appropriate, a hearing pursuant to CLS 1961, § 780.505 (Stat Ann 1954 Rev' § 28.967 [5]), is affirmed.
T. E. Brennan, C. J., and Dethmers, Kelly, Black, T. M. Kavanagh, and Adams, JJ., concurred.
T. G. Kavanagh, J., took no part in the decision of this case.
APPENDIX
(Administrative Order entered by Supreme Court October 20, 1969.)
“It appearing upon repeal of PA 1939, No 165, that jurisdiction to hear petitions to test the recovery of persons committed as criminal sexual psychopaths under the provisions of said act remains unresolved, that proceedings in various courts wherein relief has been sought have been dismissed with the result that a situation has continued for several months wherein the proper forum for .reviewing the propriety of continued custody of persons committed under the provisions of said law remains in question, that protection of the basic rights of such persons and the uninterrupted administration of justice requires designation of a proper forum for hearing said matters until such' time as the legislature shall provide clarification, now therefore, pursuant to the provisions of Const 1963, art 6, § 13, and PA 1961, No 236, § 601, the revised judicature act,
“It is ordered, that until such time as there is further legislative clarification of jurisdiction of proceedings for testing recovery of persons committed under the provisions of said PA 1939, No 165, as amended, jurisdiction shall continue and proceedings shall be conducted in accordance with the provisions of CL 1948, § 780.507, as amended by PA 1952, No 58 (Stat Ann 1954 Rev § 28.967[7]).
“This order shall constitute a rule of the Supreme Court within Const 1963, art 6, § 13, and shall bé effective as of August 1, 1968; the date of effect of the repeal of- PA 1939, No 165, as amended.”
See MOLA §§ 780.501-780.509 (Stat Ann 1954 Rev and Stat Ann 1967 Cum Supp §§ 28.967[ll-28.967[9]).—Reporter.
See MCLA 1969 Cum Supp §§ 330.35b, 780.501-509 (Stat Ann 1969 Cum Supp §§ 14.825[2J, 28.967[l]-28.967[9]).—Reporter.
MOLA § 600.601, Stat Ann 1962 Eev § 27A.601.—Eeporter.
See MOLA §§ 780.501-780.509 (Stat Ann 1954 Eev and Stat Ann 1967 Cum Supp §§ 28.967[l]-28.967[9]).—Eeporter. | [
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Kelly, J.
On January 16, 1948, Eva King was employed by the Ford Motor Company at an average weekly wage of $55.80. On that date, in the course of her employment, her left arm was amputated while she was operating a straddle milling machine.
Her claim for workmen’s compensation resulted in the workmen’s compensation commission’s decision of May 13, 1949, awarding benefits of $21 per week compensation.
Plaintiff’s amended application requesting benefits for total and permanent disability against Ford Motor Company and the second injury fund was granted, and the referee’s order of February 19,1964 (not appealed) provided that Ford Motor Company pay compensation at the rate of $21 per week from February 1, 1957 to August 16, 1957, and for total and permanent disability at the rate of $21 per week from August 17, 1957 to June 1, 1962. The hearing referee further ordered that:
“Plaintiff is totally and permanently disabled as of January 16, 1948 within the meaning of part 2, §10(6) of the workmen’s compensation act (CL 1948, § 412.10, as last amended by PA 1956, No 195, Stat Ann 1960 Rev § 17.160) and the second injury fund shall pay differential benefits to plaintiff at the rate of $11 per week from 6/25/55 to 7/31/56, inclusive; at the rate of $12 per week from 8/1/56 to 6/1/62, inclusive; at the rate of $33 per week from 6/2/62 and continuing until further order of the department.”
We are here concerned with part 2, § 9, para (a), of the workmen’s compensation statute as amended in 1955 and 1965. The amendments with which we are concerned are set forth in the appendix attached to this opinion.
After the 1965 amendment increasing maximum benefits, the director of the second injury fund denied plaintiff’s request that she be allowed the current $58 benefit rate provided for a totally and permanently disabled employee with no dependents, and limited the payments so that the total weekly amount paid to plaintiff would not exceed 66-2/3% of- her average weekly rate at the time of injury.
On November 4, 1965, plaintiff filed another application for hearing and adjustment of claim, which resulted in a June 1966 decision hy the hearing referee, stating:
“It is further ordered that the correct compensation rate payable from defendant, second injury fund, from September 1, 1965, until the further order of the Department is $37.20 (2/3 of average weekly wage at time of injury previously determined to be $55.80).”
Plaintiff’s appeal to the workmen’s compensation appeal board resulted in four opinions and a 4-to-3 decision affirming the hearing referee.
Application for leave to appeal and to bypass the Court of Appeals was granted by this Court.
The majority opinion of the workmen’s compensation appeal board, written by Member Trentacosta, stated:
“I agree with Member Storie that the basic question presented to this appeal board is whether the benefits payable from the second injury fund are limited to an amount not to exceed two-thirds of plaintiff’s weekly wage of 1948 ($37.20) or whether she is entitled to receive, from the second injury fund, the maximum amount provided for an em ployee with no dependents on and after September 1,1965 ($58.00). This question, in turn, is answered by determination of what the legislature intended and meant by use of the words ‘according to the full rate provided in the schedule of benefits’ in the last sentence of section 9, para (a) of part 2 of the workmen’s compensation act.”
Member Storie was the first to write, and we quote from his opinion as follows:
“Act No 44 of the public acts of 1965 increased the schedule of benefits to provide an employee with no dependents a compensation rate of $58 per week beginning September 1, 1965. Plaintiff herein has no dependents so ‘appropriate application’ of the provisions of paragraphs (b), (c), (d) and (e) since date of injury is not relevant. Had plaintiff been working in the same capacity at current pay for this job at Ford Motor Company on September 2, 1965 and been injured, she would have in all probability been paid compensation at the rate of $58 per week. She is a person defined to be permanently and totally disabled. She was entitled to receive compensation from her employer after June 25, 1955 in amounts per week of less than is presently provided in the workmen’s compensation schedule of benefits for permanent and total disability. ‘Any’ such permanently and totally disabled person shall after the effective date of any amendatory act, by which his disability is defined as permanent and total disability or by which the weekly benefit for permanent and total disability is increased, receive weekly, without application, from the second injury fund, an amount equal to the difference between what he is now or shall hereafter be entitled to receive from his employer under the provisions of this act and the amount not provided for his permanent and total disability. ‘Any’ such person would include plaintiff, and there are no contingencies placed upon the direction that she receive the present schedule of benefits. The plain terms of the 1955 enactment and subsequent amendments direct that any permanently and totally disabled person defined as such by the statute is entitled to receive the difference between the amounts his employer is obligated to pay and the sums he would now be entitled to receive for permanent and total disability. This includes the weekly sum payable as well as the period payable which no one questions is a period different from that controlling at time of the injury here in question. The statute says these benefits are payable when the amount received from the employer is less than presently provided and/or for a period of a lesser number of weeks. Such unambiguous directives require that we hold that plaintiff’s proper weekly rate after September 1, 1965 was $58 per week. * * *
“Fortunately, a vast majority of all industrial injuries cause disability of short duration and changes in our economic structure are of insignificant consequence to such an injured employee. However, when injuries cause disability for many years, it stands to reason that the $21 per week paid to Eva King in 1948 would not now buy the same amount of food in 1965. * * *
“If Eva King had earned $100 per week in 1948, there would be no argument here about her right to receive $58 per week beginning on September 1, 1965. Suppose the $21 per week rate that was payable to Eva King in 1948 represented two-thirds of the weekly wage she was receiving at that time ($31.50), would her need for additional sums in 1965 be nil, or did the legislature intend to ignore such an employee’s needs simply because her earnings were too small in 1948? I am of the opinion that the legislature’s use of the term ‘schedule of benefits’ was a deliberate choice of words to correct the economic status and require the second injury fund to pay ‘any’ person defined to be permanently and totally disabled the sums which the legislature determined to be the needs of an employee, at today’s market place. * * *
“Larson’s work described the underlying social philosophy ■ behind compensation liability as follows (Section 2.20, Larson’s Workmen’s Compensation Law):
“ ‘The ultimate social philosophy behind compensation liability is belief in the wisdom of providing, in the most efficient, most dignified, and most certain form, financial and medical benefits for the victims of work-connected injuries which an enlightened community would feel obligated to provide in any case in some less satisfactory form, and of allocating the burden of these payments to the most appropriate source of payment, the consumer of the product.’ ”
Member Mahinske signed Storie’s opinion.
Chairman Iverson concurred with Member Storie with the second write, and we quote from his opinion:
“When the legislature enacts language in 1965 that grants differential benefits on two conditions, one being where ‘the weekly benefit for permanent and total disability is increased’ thus effectively creating the situation where one is receiving payments ‘in amounts per week of less than is presently provided * * # in the schedule of benefits,’ I can only conclude that the legislature has to mean rates are to be the sole limitational feature when dealing with the second injury fund after 800 weeks. Weekly benefits could and have only been increased by rate changes, not by amending the two-thirds limitation.
“I believe it must be admitted that to retain the two-thirds limitation in such cases would defeat the theory underlying the creation of the second injury fund and its responsibilities. In dealing with cases beyond. 800 weeks, we are confronted with weekly wages scaled to an economy 15 years past. To apply the two-thirds limit, therefore, does injustice to those whose earning power was cruelly halted at that time, stopping them cold while coworkers continued to gain in earning .and purchasing power which enables them to live in the increasingly expensive and inflationary economy of today. Applying the two-thirds limit of a 15-year-old weekly wage does not even slightly accomplish for these unfortunate cast-asides what the purpose of the second injury fund presumed to do. ■ Thus when effectuating that purpose, I feel we must read the legislature’s intention in requiring the second injury fund to pay for permanent and total disability ‘according to the full rate provided in the schedule of benefits’ to be as defined by Member Storie. To do otherwise keeps those persons on a woefully outdated standard and does not give them what section 9, para (a) purports to give them, ‘the amount now provided for his permanent and total disability’ by awarding ‘the full rate provided in the schedule of benefits.’ I concur with Member Storie.”
Member Trentacosta, dissenting from Member Storie’s opinion and Chairman Iverson’s concurrence, concluded his opinion by stating:
“Prior to the termination of the employer’s liability in this case, plaintiff was receiving two payments, one payment from the employer and another payment from the second injury fund. However, at no time did the total weekly payment exceed two-thirds of plaintiff’s average weekly earnings at time of injury. I am of the opinion that the legislature’s intention in its amendments to section 9, para (a), part 2 of the act wanted to assure that when the term of the employer’s obligation ran out that the second injury fund would assume the full obligation, that the claimant would continue to receive full benefits and not just a partial weekly payment from the second injury fund alone. To hold that the legislature intended that the second injury fund should be obligated for tbe maximum rate, without application of the two-thirds of average weekly earning-limitation, would apply a strained interpretation of section 9, para (a), part 2 of the act. In determining the intent and meaning of the words ‘according to the full rate provided in the schedule of benefits’ in section 9, para (a), part 2, humanitarian emotion ought not to take the place of logical interpretation.
“I would vote to affirm the referee.”
Members Bowerman and Mumper concurred in the Trentacosta opinion.
Member Bassett, concurring in result with Member Trentacosta, stated:
“I concur in the result of Member Trentacosta’s opinion and in the substance of his reasoning therein to which I would add the following to clarify my position.
“In my opinion the legislature only intended the amount of weekly compensation to exceed two-thirds of the average weekly wage at time of injury when two-thirds of such wage is less than the present minimums provided in the third sentence of section 9, para (a) to wit:
“ ‘Weekly payments shall in no event be less than $27 if there are no dependents; $30 if 1 dependent; $33 if 2 dependents; $36 if 3 dependents; $39 if 4 dependents; and $42 if 5 or more dependents; except as provided in subsection (f).’
“Two-thirds of plaintiffs average weekly wage at time of injury was $37.20 which is $10.20 a week in excess of the statutory minimum heretofore set forth for no dependents. It therefore should be the amount to be ordered paid by the second injury fund.”
Member Storie added an addendum to his opinion, which reads in part:
“Since the above was recorded, my associates have entered dissents which need no comment here except to note that they have committed the same error as did the referee and jumped through the enabling language of the 1955 and subsequent amendments to the last sentence of the provision in question, which clearly refers only to the sums payable ‘after the period for which such person is otherwise entitled to compensation under this act.’ This sentence'provides no method for determining the amount payable each week, but directs simply that the sums payable after the period for which any such person is otherwise entitled to compensation continue according to the ‘full rate’ previously determined according to the preceding sentence in the amendatory act. The preceding sentence provides that the employee be paid the sum ‘presently provided in the workmen’s compensation schedule of benefits.’ Eva King had no dependents. On September 1,1965 the schedule of benefits provided a payment of $58 per week to an employee with no dependents. Her full rate to be continued after she otherwise is entitled to compensation from her employer would, therefore, be $58 per week.”
Plaintiff claims that the limitation of weekly benefits to two-thirds of the employee’s average weekly wage at the time of his injury applies only to the employer and not to the second injury fund, and that:
“The hearing referee and the majority of the appeal board ignored the legislative intent to establish the second injury fund as a protection to the totally and permanently disabled employee against the rising wage scales and rising cost of living. The decisions below ignore the legislative intention to employ the second injury fund to spread the risk of such inflation in wage and price scales to all employers (and ultimately to all consumers) through contributions to the second injury fund. * * *
“The Michigan legislature fully intended that the very few people who meet the restrictive definitions of ‘total and permanent disability’ needed to be placed in a very special class and provided with special attention. It is recognized that these people will be disabled for the remainder of their lives and that the wage structure and the cost of living, with the years passing, is rising. It is recognized that these people will need special attention because they cannot earn a living and must hire others to perform household tasks such as cutting their grass, shoveling their snow, and other tasks which a person not so seriously crippled would be able to perform without hired help. To limit such a person to two-thirds of his wage for the rest of his life would mean that he would be getting an extremely small and inadequate amount when, 20 years later, the wage structure and cost of living has risen to an alarming degree and the purchasing power of the dollar has dropped by over one half.”
Plaintiff calls attention to the following facts:
“In 1940 the consumer price index for Detroit, based on a 1957-1959 standard of 100, was 48.2. In 1945, it was 62.4. In 1966, it was 111.1. 1967 Statistical Abstract of the United States (U.S. Dept, of Commerce) Table 506.
“In April, 1968, the consumer price index for Detroit was 118.0. U.S. Department of Labor, Bureau of Labor Statistics, ‘Monthly Labor Review,’ June, 1968, Table D-2.
“In 1945, the gross average weekly earnings for production workers in manufacturing was $44.39. U.S. Dept, of Commerce, ‘Historical Statistics of the United States 1789-1945 — a Supplement to the Statistical Abstract of the United States’, p 67.
“In March, 1968, the gross average weekly earnings of production or nonsupervisory workers in manufacturing was $120.18. U.S. Dept, of Labor, Bureau of Labor Statistics, ‘Monthly Labor Review/ June, 1968, Table C-2, p 120.
“In January 1948, Eva King’s average weekly wage as a machine operator for Ford Motor Company was $55.80.
“In March, 1968, the gross average weekly earnings of production workers in the motor vehicle equipment industry was $161.54. U.S. Dept, of Labor, Bureau of Labor Statistics, ‘Monthly Labor Review,’ June, 1968, Table G-l, p 111. * * *
“In December, 1968, the average weekly earnings of production or nonsupervisory workers in the motor vehicle and equipment industry was $181.80. U.S. Department of Labor, Bureau of Labor Statistics, ‘Monthly Labor Review,’ March, 1969, Table G-l, p 108.”
The statement in the majority opinion that, “In determining the intent and meaning of the words ‘according to the full rate provided in the schedule of benefits’ in section 9, para (a), part 2, humanitarian emotion ought not to take the place of logical interpretation,” is answered by plaintiff as follows:
“Plaintiff contends that the intent and spirit of the workmen’s compensation laws is ‘humanitarian,’ that this is the spirit which motivates legislative and judicial solutions to serious social problems; that this was the intent and spirit behind these second injury fund amendments under consideration today; and that this spirit must be recognized and given effect in these times and ought not to be forgotten now.”
The following from defendant’s brief sets forth the essence of its answer to plaintiff’s claim:
“Pursuant to these provisions [1955 and 1965 amendments to part 2, §9, para (a)], the totally and permanently disabled worker received, during the period of the employer’s liability, a payment from the employer or its insurer at the weekly rate in effect at the time of the injury and received another payment from the second injury fund for the difference between the employer’s weekly rate and the weekly rates established by subsequent amendments. At the termination of the period of the employer’s liability, payments from the second injury fund were to be made to cover the amount previously paid by the employer in addition to the differential payments previously paid by the second injury fund.”
Defendant and appellee, second injury fund, concludes its brief under the heading “Summary,” as follows:
“The phrase: ‘but no more than and the clause: ‘shall in no event be less than $....,’ which provide, respectively, the maximum and the minimum weekly rates in section 9, para (a), part 2 (CL 1948, §412.9 [Stat Ann 1968 Rev §17.159]), are, by the nature of such terminology, modifiers. In the formula for the computation of weekly benefit rates, they have reference to, and limit, the preceding factor — 66-2/3% of the average weekly wage. No rule of statutory construction, or logic, permits that either of these, standing alone, be construed as an unrelated or independent formula.”
In many decisions we have followed the rule of statutory construction as stated in 2 Sutherland, Statutory Construction (3d ed), § 4705, p 339:
“It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute. A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvioqs mistake or error,”
Applying that rule to defendant second injury fund’s contention that “the only construction which can he given to the term ‘full rate’ is that, by the use of it, the legislature made certain that after the termination of the period during which the ■ employer was liable for its portion of the payments, the second injury fund was to assume the full obligation,” would make the word “full” redundant because the sentence immediately preceding the sentence that uses this word “full” provides that “the difference between what he is now or shall hereafter be entitled to receive from his employer [which in the instant ease is nothing] * * # and the amount [per week] now provided for his permanent and total disability” shall be paid to claimant.
The decision in this appeal calls for an answer to the question: Does the 1927 enactment (PA 1927, No 63) which contains the two-thirds of average weekly wage limitation on employer’s liability, take precedence over the 1955 amendment (PA 1955, No 250) providing for payment from the second injury fund of “the amount * * * now provided” and “according to the full rate”?
A similar question was presented to this Court in our very recent case of Halas v. Yale Rubber Manufacturing Company (1969), 381 Mich 542. Plaintiff Halas on October 21,1950, while employed as an unskilled employee in the field of common labor at a weekly wage of $95.09 suffered the amputation of both of his hands. After payments had been made for total and permanent disability for 800 weeks from the date of injury, the hearing referee held on February 21, 1966, that Halas was totally and permanently disabled and, although he was employed at wages equal to or higher than his earnings at the time of the injury, decided that no set-off for wages should be allowed against the payments to be made by the second injury fund as provided for in tbe legislative enactment of 1927 in section 11, part 2, as amended.
In that case, as in the present case, the appeal board affirmed the referee’s decision and we granted the application to bypass the Court of Appeals. In deciding Hálús, we stated (p 545): “Our decision depends upon determination of legislative intent as expressed in part 2, § 9. of the act, and part 2, § 11 of the act.”
In affirming the appeal board, we said (p 550):
“We agree with the board’s conclusion that ‘a new concept for compensating’ came into being with the 1955 and 1956 amendments that took the place of the 1927 section 11’s concept and that ‘the language used by the legislature which permits these payments to continue after the period for which compensation would otherwise be payable is clear, concise, and does provide that such compensation be paid “according to the full rate provided in the schedule of benefits.” ’ ”
We agree with plaintiff’s claim that the limitation of weekly benefits to 66-2/3% of the employee’s average weekly wage at the time of injury applies only to the employer and not to the second injury fund, and with Chairman Iverson’s conclusion “that to retain the two-thirds limitation in such cases would defeat the theory underlying the creation of the second injury fuiid and its responsibilities.”
We grant plaintiff the relief sought “that the decision of the hearing referee he modified to order the second injury fund to pay plaintiff compensation at the rate of $58 per week from September 1, 1965 to August 31,1966; at $61 per week from September 1, 1966 to August 31, 1967, and at $64 per week from September 1, 1967 and continuing until further order of the workmen’s compensation department.”
Reversed and remanded for entry of order in accordance with this opinion. .No costs; a public question being involved.
T. E. Brennan, C. J., and Dethmers, Black, T. M. Kavanagh, Adams, and T. Gr. Kavanagh, JJ., concurred.
APPENDIX.
CL 1948, §412.9, para (a), as amended by PA 1955, No 250 (Stat Ann 1955 Cum Supp § 17.159) :
“Any person who is permanently and totally disabled and who is receiving payments of workmen’s compensation whieh are payable to such person under this act in amounts per week of less than is presently provided in the workmen’s compensation schedule of benefits for permanent and total disability and for a lesser number of weeks than the duration of such permanent and total disability shall hereafter receive weekly, without application, from the second injury fund, an amount equal to the difference between what he is now receiving per week and the amount per week now provided for permanent and total disability with appropriate application of the provisions of paragraphs (b), (c), (d) and (e) of this section since the date of injury. Payments from this second. injury fund shall continue after the period for which any sueh person is otherwise entitled to compensation under this act for the duration of such permanent and total disability according to the full rate provided in the schedule of benefits.”
CL 1948, §412.9, para (a), as amended by PA 1965, No 44 (Stat Ann 1968 Rev § 17.159) :
“Any permanently and totally disabled person as defined in this aet who, on or after June 25, 1955, is entitled to receive payments of workmen’s compensation under this aet in amounts |>cr week of less than is presently provided in the workmen’s compensation schedule of benefits for permanent and total disability and for a lesser number of weeks than the duration of such permanent and total disability shall after the effective date of any amendatory aet, by whieh his disability is defined as permanent and total disability or by whieh the weekly benefit for permanent and total disability is increased, receive weekly, without application, from the second injury fund, an amount equal to the difference between what he is now or shall hereafter be entitled to receive from his employer under the provisions of this act as the same was in effect at the time of his injury and the amount now provided for his permanent and total disability by this or any other amendatory aet with appropriate application of the provisions of paragraphs (b), (e), (d) and (e) of this section since the date of injury. Payments from this second injury fund shall continue after the period for whieh any such person is otherwise entitled to compensation under this aet for the duration of such permanent and total- disability according to the full rate provided in the schedule of benefits.”
PA 1912 (1st Ex Sess), No 10, part 2, § 9, as amended.
CL 1948, § 412.9, as amended by PA 1955, No 250 (Stat Ann 1955 Cum Supp § 17.Í59).
CL 1948, § 412.9, as amended by PA 1965, No 44 (Stat Ann 1968 Eev § 17.159).
1967 WCABO 941.
“The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employee computed according to the provisions of this section as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the injury, the same to be fixed as of the time of the injury, but to be determined in view of the nature and extent of the injury. The compensation payable, when added to his wage earning capacity after the injury in the same or another employment shall not exceed his average weekly earnings at the time of such injury.” (CL 1948, § 412.11, as amended by PA 1965, No 44 [Stat Ann 1968 Roy § 17.161].) | [
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The certification by the Court of Appeals pursuant to Administrative Order No. 1984-2 that its decision in this case is in conflict with its decision in People v Henry, 107 Mich App 632; 309 NW2d 922 (1981), is considered, and the Court declines to take further consideration of the questions presented. Reported below: 140 Mich App 652. | [
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Hooker, J.
The plaintiff was injured while riding in a buggy, through a collision at the crossing of a highway and the defendant’s railway in the city of Owosso. In an action charging negligence he recovered a judgment, and the defendant has brought error.
It is unnecessary to consider all of the questions raised. The circuit judge seems to have overlooked the responsibility resting upon him to see that the defendant had a fair trial, and allowed counsel to present the case to the jury in a way calculated to arouse their prejudices. It is said in the brief that the rule of this circuit forbids interruption of counsel during an argument, no matter how far they wander from the record or transgress professional ethics. If this is true, we cannot commend the rule as a safe one to be applied upon all occasions. There is much that is intemperate in the argument of counsel in this case. Usually we assume that the circuit judge does his full duty in the premises, and do not reverse cases for such errors unless clearly injurious. Among the less violent, but improper, statements of counsel, we find the following in the record of his argument:
“These cars, instead of coming off straight at right angles, go straight in that direction, and as you go past them they are behind you, and block up your vision, so you look at an angle from behind you [illustrating on map]. Not only that, you get this pump works behind you; and when men talk about not shutting up the vision, I don’t believe it. I have been over on Chipman street myself. You stretch a line of box cars away off about 800 feet, — about 60 or 70 rods, — and have it at this angle, when you are close to that track, naturally your line of vision is partially behind you, and the pump-house would shut your vision out; and I will guarantee to say that the men couldn’t see that train, unless they had seen it back there nearly half a mile.”
Again, he said:
“One thing I think you have noticed is that the firm of Watson & Chapman have tried a great many damage suits, — a great many damage suits. I think I have drawn more declarations in damage suits than any other man in this section of Michigan. I say, I believe more than any man in the State of Michigan, with the exception of one, and that is Mr. Hayden, of the Upper Peninsula. I think you will give me credit for knowing something what the law of damage is in cases of this kind. I know my Brother Geer gives me credit for knowing what it is, and so do you. Now, do you believe Mr. Britton came into the office of Watson & Chapman, and said he didn’t stop at the railroad crossing, and Watson & Chapman undertook to try his case ? No, sir; certainly we didn’t. Nobody else would believe it.”
And, continuing, he said:
“We have asked the jury for $10,000. I say in this case the old man ought not to have at least less than $5,000. He ought to have a good round compensation,— such compensation as will compensate him for the injury that has been inflicted upon him; something that is going to pay him for the litigation and fight he has got to make to get it. In this case I say, if ever a man was entitled to recover a good verdict, this is one of them.”
It was error for him to state to the jury facts based on his own observation, or to argue, as proof 'that the plaintiff stopped before attempting to cross the railroad, that his counsel would not have commenced the action if he had not stopped. Nor should the jury have been asked to give the plaintiff compensation for the expense of litigation, or for trouble in prosecuting his claim. Had these things been promptly repressed, we might have passed them by as error without injury; but the record indicates that there was no effective restraint upon counsel.
"We also think that too great latitude was permitted in relation to the evidence of plaintiff’s statements of his injuries and feelings. We think the court did not err in his refusal to take the case from the jury, and we are not disposed to review the exercise of discretion in permitting an amendment to the declaration.
The judgment is reversed, and a new trial ordered.
Grant, C. J., Moore and Long, JJ., concurred. Montgomery, J., did not sit. | [
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] |
Moore, J.
Complainant filed a bill to set aside a tax title held by defendant Backstrom upon lands belonging to complainant, upon the ground of fraud and conspiracy between the two defendants. The circuit judge was of the opinion that the auditor general should have been a party to the suit, and for that reason dismissed the bill.
If the alleged fraud is established, we think the court erred in holding that the auditor general was a necessary party. This is not a proceeding to set aside a tax decree for want of jurisdiction, and the complainant in his bill offered to pay whatever taxes were unpaid.
The record shows that the defendant Soderberg, in 1890, was the owner of the land in question. In April of that year he borrowed $1,000 of complainant, and, to secure its payment in two years, he gaye a mortgage upon the land. In the mortgage it was agreed he should pay 'the taxes. The interest on the mortgage was paid until April, 1894. After this date no interest was paid, and no part of the principal. Foreclosure proceedings were had, which resulted in a sale of the premises to Mr. Christian in February, 1897, after which he went into possession of the property, and was in the possession of it when this bill was filed.
Mr. Soderberg became county treasurer of Muskegon county January 1, 1893, and continued to be county treasurer for four years from that date. The record shows that complainant applied to the county treasurer at his office to learn whether the taxes assessed against these lands were paid, and was assured by Mr. Soderberg that they were paid. This inquiry was made by Mr. Christian, .he intending, if they were not paid, to pay them. At the same time he did pay taxes upon other lands upon which he had mortgages. Mr. Soderberg understood Mr. Christian’s object in making these inquiries. As a matter of fact, the taxes had not been paid by Mr. Soderberg, but he had allowed the land to be returned for nonpayment of the taxes. In December, 1896, as county treasurer, he sold them, for the taxes of 1892, 1893, and 1894, to the defendant Backstrom.
It does not require any citation of authorities to show that these acts on the part of Soderberg were a fraud upon the complainant. It is said, however indefensible Soderberg’s actions may have been, it is not shown Backstrom has done any wrong. We cannot agree with the counsel in this. We have already seen that Mr. Soderberg deceived Mr. Christian about the taxes having been paid. It appears from the record that Soderberg arranged with Mr. Anderson to buy in the property at the tax sale, and, when Anderson told him he had no money, he was told by Soderberg that “he [Soderberg] would see to that; that it would be paid.” The property was bid off to Anderson. Mr. Christian learned of that fact, and went to Anderson, and told him he had a mortgage upon the property, and wanted to settle with him. He was told by Anderson that, if Mr. Christian had a mortgage upon the property, he would have nothing to do with it. About an hour after this, Mr. Anderson saw Soderberg, and told him about his interview with Christian, and that he would have nothing further to do with the matter, and to cancel the sale. Christian, after seeing Anderson, went to the office of the county treasurer, and asked Soderberg if the land had been sold for taxes, and was told by him it had not been. Soderberg shortly left the office, and,.after considerable delay, Christian learned from Mr. Nelson, who was in charge of the books, that the land had been sold to Backstrom. It was claimed that the land had been sold to him during the noon hour of that day. The next day Christian saw Backstrom,'and told him what interest he had in the lands, and they had some talk of a settlement. It was agreed that the parties] should meet at the office of the county treasurer at 11 o’clock to arrange a settlement. Mr. Christian went to the place of meeting, and waited until 12 o’clock, but Backstrom did not come. He saw Backstrom the next day, and offered him $75, besides Backstrom’s investment. “Then he asked me $600 for it. I told him I could not pay that. ‘Well,’ he said, ‘I got a better title than you got.’ ‘Well,’ says I, ‘I don’t know about that.’ He says, ‘You go and see Mr. Soderberg, .and see what he would do.’ ” When Mr. Backstrom was a witness,'he says he referred Christian to Soderberg, not because Soderberg had any interest in the title, but because Soderberg owed the debt. Mr. Backstrom says he heard on the street that Anderson had bought a piece of property at Lakeside, and that the sale was canceled. When he bought the land, Mr. Nelson, Mrs. Latimer, and Mrs. Nelson were present. He was at the court-house but a half hour, — perhaps not so long. He was told it was Mr. Soderberg’s property. He made the purchase at the noon hour, when he was on his way to dinner. It was the only piece of property he bought at that time, and it was the first time he had bought a piece of land at a tax sale.
Without reciting 'the testimony further, it is sufficient to say that it is impossible to read the record, and the sequence of events, without coming to the conclusion that Mr. Backstrom and the county treasurer were acting in collusion, and their purpose was to procure the property of Mr. Christian for an inadequate price.
The decree of the court below should be reversed. A decree may be entered in favor of complainant as prayed, he to pay Mr. Backstrom the amount paid by him, with interest. Complainant is given costs of both courts.
The other Justices concurred. | [
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Long, J.
This action of ejectment is brought by plaintiffs to recover possession of 160 acres of land in Huron county. They claim title under a tax deed for the taxes of 1891. The defendants Wallace are the owners of the original title, and reside upon the land, and defendant Hubbard has an interest in it as mortgagee. The court below directed verdict in favor of defendants, and plaintiffs bring error.
The court, in directing the verdict, based his charge upon the insufficiency of the proof of publication of the petition of the auditor general, and the order thereon for the sale of the lands for taxes. The affidavit recites:
“State oe Michigan, ) County of Huron. [
“B. F. Browne, of Sand Beach, Michigan, being duly sworn, deposes and says that he is one of the proprietors and publishers of the Huron Times, a newspaper printed and circulated in said county of Huron, and that the an-. nexed printed notice was printed in said newspaper for -successive weeks, at least once in each week, which publication commenced the 23d day of September, „1893, and terminated on the 21st day of October, 1893.”
The proper jurat was added.
Section 66, Act No. 206, Pub. Acts 1893, provides that—
“The auditor general shall cause a copy of said order and a copy of said petition to be published at least once in each week for four successive weeks next prior to the time fixed for the hearing thereof.”
The proper petition and order were annexed to this affidavit, the petition being duly signed by the auditor general, and the order signed by the circuit judge of that circuit, stating that the petition would be brought on for hearing on October 23, 1893, at the opening of court on that day, and that the lands described in the petition would be sold at the office of the county treasurer on the first Monday of December thereafter. No further proof of publication other than by this affidavit was made on the trial, and counsel for defendants contend that this affidavit does not show a publication for any number of successive weeks, but only that tfie first publication was on September 23, 1893, and the last one October 21st thereafter; that nothing appears in the affidavit from which it can be inferred that there were any publications between said dates, and therefore it does not show that the petition and order were published at least once in each week for four successive weeks, as required by the statute.
We cannot agree with this contention. The affidavit shows that the annexed printed notice (that is, the petition and order) was printed and published at least once in each week, which publication commenced on September 23, 1893, and terminated on October 21, 1893. Certainly, language could not be employed which would more strongly show that there was a publication at least once in each week between said dates, and hence there was a full compliance with the statute. Once in each week between these dates could not be otherwise than successive weeks. This needs no citation of authority.
Section 78 of the tax law of 1893 provides that—
“ The auditor general shall furnish to each county treasurer in the month of October prior to the month of December in the year in which such tax sales are held, as provided in this act, a statement of all lands in his county that may have been bid in for the State, then remaining unredeemed or not otherwise discharged,” etc.
It appeared by the testimony of the chief clerk of the auditor general’s office that this list was not sent to the county treasurer of Huron county for the year 1894 until November 7th, for the year 1895 until November 2d, and for 1896 until November 20th, and that the land in controversy was included in these lists each year. It is contended that for this reason the sale was void, as the landowner had the right to have these lists sent to the county treasurer, so that he might know that his lands were contained therein; and that this statute was enacted for his benefit.
We think this contention has no force whatever. The lands after sale are redeemable at the county treasurer’s office, as well as at the office of the auditor general. Defendants had one year from the date of the sale to redeem. They could have found the status of the lands in the county treasurer’s office as well before these lists were transmitted to that office as afterwards. They were deprived of no rights by the delay in the transmission of the lists, and the information was as open to them before as after-wards. Their land had been sold and bid in by the State at the sales of 1893. The original lists remained in the office of the county treasurer, and showed that the land was sold and bid in by the State. By inquiry there, they would have found that they could redeem, there, as well as at the office of the auditor general. This statute was not intended to give the landowner any greater rights, but was passed for the purpose of enabling the county treasurer to know what lands remained unredeemed at the auditor general’s office. The statute is not mandatory, but merely directory, and for the convenience of the county treasurer.
Section 79 of the tax law of 1893 provides that—
“The auditor general shall cause to be published for four weeks successively, which shall be construed to mean four publications once a week, next previous to the first Monday of December in the years provided by this act, a notice that the lands described in such statement will be offered for sale at public auction at the time and place designated for the regular tax sales,” etc.
These notices were published for the years 1894, 1895, and 1896, and each contained a statement that “said statements contain a full description of each parcel of said lands, and may be seen on application at the office of the county treasurer after they are received by him.” It appears that none of these notices contained or had attached to it any descriptions of land. It is contended that they should have contained such descriptions of land as wbre to be sold; that it was the evident intent of the legislature to give the landowner a second notice before the redemption expired.
This statute refers to lands which had been bid in by the State in former years, and were still held by the State; and its intent was to enable the State, by another offering, to dispose of the lands for the taxes, interest, and expenses it had incurred in bidding them in. It was not for the purpose of giving the owner of the land further notice before the period of redemption expired. If these notices had not been published, the landowner whose lands had been bid in by the State the 1st of December previous could not contend that the time for redemption had been extended, by such failure to publish the notices. Such owner had a year after sale to redeem, and no more, whether the notices were published or not. It will clearly be seen that it was not for the benefit of the landowner that such statements should be published, and the statute does not require the lists of such lands to be inserted in or attached to the notice. The lists are published the year previous, and, the owners failing to pay, the State takes the bids, in the absence of other bidders. It would be a useless expense to republish the list the succeeding year. The lists are filed with the county treasurer, and any party who desires can redeem his lands, or purchase the bid of the State.
It is also contended that, the deed not reciting that it was made in execution of the statutory power, it could not properly be received as evidence of the plaintiffs’ title. The statute does not give the form of the deed to be executed on tax sales. This deed was executed by Stanley W. Turner, as auditor general of the State, and recites:
“That whereas, in pursuance of the provisions of law, the said parties of the second part, on the 28th day of December, A. D. 1896, became the purchasers of the rights of the State in and to the following described lands, situated in. the county of Huron, in said State, which were bid off to® the State for the taxes assessed thereon in the year 1891,” etc.
. The defendants put in evidence all the proceedings for the sale of the land, including the petition of the auditor general,.the order made by the court for the publication thereof, the publication of the petition and order, as well as the decree of the court for the sale of the land. Even if the recitations in the deed were not sufficient to permit the deed to be received as evidence of title, — a point which we need not pass upon, — yet the proceedings and the decree ordering sale show that the deed was made in pursuance of the statute, and together were sufficient to show title in the plaintiffs.
The court should have directed verdict in favor of plaintiffs. The judgment below must be reversed, and a new trial granted.
The other Justices concurred. | [
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Long, J.
Defendant’s road runs through the plaintiff’s farm. On May 7, 1896, plaintiff’s horse was struck by defendant’s train, and killed. Defendant contended bn the trial that the horse was struck on the highway. Plaintiff contended that it was struck and killed on defendant’s right of way, inside the cattle-guards. Defendant’s right of way was not fenced; and the only question was whether the horse was in the highway, or not. Plaintiff recovered a judgment for the value of the horse at $75, and defendant brings error.
A record containing 28 pages is presented, which apparently contains a large part of the testimony, and also the charge of the court. It does not show any objections made, nor any exceptions taken, on the trial. Following the 28 pages is found a motion for a new trial and certain affidavits in support of the motion, as well as the assignments of error. The reasons given for asking a new trial are:
1. That the verdict was not in accordance with the evidence.
2. That the jury were induced to render a verdict for the plaintiff by improper motives, and by matters other than the consideration of the law and the evidence in the case.
3. That new and important evidence has been discovered.
All the assignments of error, except those relating to the charge, are based upon the order of the court denying the motion for a new trial; yet the record does not contain any such order. The record is entirely silent as to the order made by the court in the premises, or the reasons why the court denied the motion. There is nothing in this record for this court to review upon the motion for a new trial. Under Act No. 134, Pub. Acts 1893, providing that there may be incorporated in the bill of exceptions a record of the proceedings on motion for a new trial, including the reasons for the refusal thereof, and that exceptions may be taken and error assigned thereon, the action of the court cannot be reviewed in the absence from the bill of the reasons therefor and exceptions to the decision. McRae v. Garth Lumber Co., 102 Mich. 488.
The assignments of error upon the charge may be considered. It appears that the court charged the jury at 2:30 o’clock on Saturday afternoon. Among other things, he said to the jury:
“Now, gentlemen of the jury, I am going home on this train; and if I go home on this train, and your verdict is not rendered, I shall adjourn this court until next Monday morning,.at 9 o’clock; and I am going to give you this envelope and this piece of paper, and, if this court adjourns before your verdict is rendered, you will all write your verdict, — you will write your verdict on this paper, whatever you find, and all sign it, fold it up, and put it into this envelope, and seal it tight, if you agree, and hand it to the sheriff, to be delivered to me when court convenes on Monday; and you will return here Monday, and take' your places in the court-room, and I will open your verdict,- and receive it. You understand; I don’t want any mistake about this. I say, if the court is adjourned before you agree, you will write your verdict, — just what you find, — all sign it right underneath the verdict, fold it up, and put it in here, and seal it, and hand it to the sheriff, and go to your homes, and return here Monday morning, at 9 o’clock, and I will.”
It is claimed that the verdict was obtained through coercion and restraint of the jury. We cannot agree with this contention. The jury sealed their verdict, and returned it into court on Monday morning, as directed by the court.
But counsel says that the verdict was a compromise, as there was no testimony in the case that the horse was worth less than $100. This we are unable to ascertain, as the record does not purport to contain all the evidence.
Counsel also contends that this is shown by the affidavit used in the motion for a new trial. All this affidavit shows is that the affiant was informed by several of the jurors in the case that the jury at first stood three in favor of a verdict for the plaintiff and nine for the defendant, but that said jurors were induced to agree from the fact that, if they failed to so agree, they would be compelled to stay over night in the jury-room. If the affidavits of the jurors had been presented, they could not be used to impeach their verdict; and yet counsel contends that an affidavit made by one to whom the jurors communicated the facts may be used for that purpose. The facts set up in the affidavit are purely hearsay, and the affidavit cannot be used for the purpose presented.
The judgment must be affirmed.
The other Justices concurred. | [
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Montgomery, J.
The bill is filed in this case under the provisions of 3 How. Stat. § 8749m, to enforce a labor debt against the property of the Fisher Electrical Manufacturing Company, on the ground that certain chattel mortgages had been given on this property, which it is alleged is not sufficient to satisfy said mortgages and the labor claim of complainant. The bill prays that the said labor debt be decreed to be a preferred claim against the assets of the said Fisher Electrical Manufacturing Company, according to the provisions of said act, and that a receiver be appointed to collect tbe assets, and dispose of sufficient of them to pay said claim and the costs and expenses of these proceedings. The answer denies that the complainant’s claim is a labor debt, within the meaning of the statute, and further denies that complainant is entitled to relief in a court of equity under the averments of the bill. *
The section of the statute giving a remedy in equity is 8749o, and reads as follows:
“Any person having a preferred claim hereunder * * * may proceed in chancery for the appointment of a receiver, and the marshaling of assets, and the application thereof to the payment of the claim or claims involved, pro rata or otherwise, in case of any fraud affecting such claim or claims, or the recovery, satisfaction, or payment thereof, or if a common-law or other assignment for the benefit of creditors shall have been made by the defendants or any of them.”
The bill does not set up any fraud affecting complainant’s claim, or the recovery, satisfaction,' or payment thereof. The question, therefore, is whether a chattel mortgage is a common-law or other assignment for the benefit of creditors, within the meaning of this statute. It is clear that a chattel mortgage does not fall within the ordinary meaning of these terms. An assignment for the benefit of creditors is understood to mean a transfer for the benefit of the creditors generally, and not a security by way of mortgage given to one. Indeed, it is conceded that a chattel mortgage is not a general assignment for the benefit of creditors. But it is contended, first, that a-chattel mortgage is an assignment, for the reason that it transfers the legal title, and, second, that, even if it does not transfer the title, but is treated merely as a security, yet it is within the definition of an assignment. To sustain the contention that a chattel mortgage is a transfer of the legal title, Tannahill v. Tuttle, 3 Mich. 104 (61 Am. Dec. 480), is cited. This decision has since been modified. Lucking v. Wesson, 25 Mich. 443; People v. Bristol, 35 Mich. 28, in which latter case Mr. Justice Campbell said:
“Under the decisions of this court, mortgaged chattels do not cease to belong to the mortgagor until some steps are taken to end his rights by the enforcement of the mortgage. The mortgage is a mere security to the mortgagee, and not a transfer of title.”
While a chattel mortgage may, in a narrow sense, db said to be an assignment, it is not an assignment for the benefit of creditors, within the usual acceptation of that term. Sheldon v. Mann, 85 Mich. 265; Warner v. Littlefield, 89 Mich. 329. It would be an enlargement of this statute, not warranted by the text, to hold the terms employed to include chattel mortgages.
The decree dismissing the bill is affirmed.
The other Justices concurred. | [
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Brooke, C. J.
This case was started in the justice’s court. The plaintiff, a contractor, was requested by one Petrie, son-in-law of Anthony Dunnebecke, deceased, to look at some work. He arrived at an agreement with Petrie for the construction of a cement walk, the contract price of which was to be $80. Plaintiff did some preliminary work, but cold weather set in, and he had to discontinue the work for a period of about three weeks. In the meantime, Petrie had the work finished by another contractor. The walks in question were constructed in front of the residence of Dunnebecke. During the time of the preliminary work the deceased was very ill at his home. Testimony was introduced, however, showing that deceased was able on a few occasions to see the work in progress. After the work was completed by the second contractor, plaintiff brought this action against the estate of Anthony Dunnebecke for the original contract price. The defendant pleaded the general issue and gave notice of set-off and recoupment for 680 feet of sidewalk amounting to $74.80. The justice of the peace rendered a judgment in favor of plaintiff for the entire sum with costs. On appeal to the circuit court, the judge directed a verdict for defendant of no cause of action, and awarded defendant costs.
The only question in this case to be determined is whether Petrie was the authorized agent of Dunnebecke in this transaction.
The evidence contained in the record shows that Dunnebecke and Petrie lived side by side. Petrie testified that he had never been authorized by the deceased to make a contract for the construction of this walk. The only point on which plaintiff can rely that the deceased authorized Petrie to have the walk constructed is that the deceased did nothing to prevent the performance thereof, and that his failure to do any act to prevent the work impliedly ratified the acts of Petrie.
It is elementary that the authority of one person to contract for another cannot be proven by the declarations or admissions of an alleged agent. Bacon v. Johnson, 56 Mich. 182 (22 N. W. 276); Ironwood Store Co. v. Harrison, 75 Mich. 197 (42 N. W. 808); Swanstrom v. Improvement Co., 91 Mich. 367 (51 N. W. 941); Fontaine, etc., Electrical Co. v. Rauch, 117 Mich. 401 (75 N. W. 1063); Coldwater National Bank v. Buggie, 117 Mich. 416 (75 N. W. 1057); and Gore v. Assurance Co., 119 Mich. 136 (77 N. W. 650).
The authority of an agent must be determined by the acts of the principal, and not by those of the agent. Wierman v. Sugar Co., 142 Mich. 422 (106 N. W. 75).
The judgment is affirmed.
McAlvay, Kuhn, Stone, Ostrander, Bird, Moore, and Stbere, JJ., concurred. | [
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] |
J. H. Gtillis, J.
This is an action for specific performance of an agreement to enter into a land contract and of a second agreement to assign the land contract vendor’s interest as security for a mortgage. The land contract purchase agreement was signed only by defendant Seymour Dunitz as vendor. Rita Dunitz, the codefendant herein and wife of Seymour Dunitz, signed the mortgage agreement but at the time of trial had not signed the purchase agreement. Defendants appeal from a judgment of specific performance of both agreements.
Through the tangled web of dealings and promises leading up to this lawsuit, we are asked to decide whether specific performance is proper. The main defense is that Mrs. Dunitz did not release her inchoate dower interest in the lands of her spouse.
Sitting without a jury, the trial judge made the following findings of fact: Seymour Dunitz was the owner of an undivided 1/2 interest in certain vacant land situated in Oakland county, Michigan. On August 10, 1963, Mr. Dunitz entered into an agreement with the plaintiff, M & D Robinson Company, whereby he agreed to convey his undivided 1/2 interest in the land. The agreement called for sale to Robinson by land contract for tbe total price of $55,000. Mr. Dunitz and the Robinson representatives signed tbe agreement and at tbe same time Robinson tendered $6,000 (not to be credited against tbe purchase price) as consideration for tbe agreement. Tbe tender was accepted by Mr. Dunitz, and bas been retained by him up to, and including, the time of trial. Robinson bas paid the taxes on tbe property since tbe date of tbe purchase agreement.
Mr. Dunitz and bis cotenant in tbe property became indebted to tbe intervening plaintiff, Lawyers Title Insurance Corporation, subsequent to tbe above purchase agreement, but before execution of tbe land contract. Lawyers Title made an arrangement with Dunitz and tbe cotenant by which they agreed to execute a mortgage on tbe above parcel in favor of Lawyers Title and thereby save default on tbe obligation.
As a condition of accepting tbe mortgage on tbe vacant land as collateral, Lawyers Title informed Dunitz and the cotenant that they would also be required to furnish additional collateral. At this time Dunitz informed Lawyers Title of bis agreement to execute the land contract with Robinson, and it was agreed that Lawyers Title would take an assignment of Dunitz’ vendor’s interest under tbe contract as tbe additional collateral they required. Tbe terms of tbe agreement with Lawyers Title were reduced to writing on October 31, 1963 and stated in tbe indicated paragraphs that:
“6. Mr. Dunitz bas heretofore executed a preliminary sales agreement for the sale on land contract of bis undivided 1/2 interest in the mortgaged land, a copy of which is attached hereto. # * *
“7. Mr. Dunitz and Mrs. Dunitz hereby assign all their right, title, and interest in said preliminary sales agreement to Lawyer’s Title. * * *.
“8. [Land contract to be executed in January, 1964.]
“9. Mr. Dunitz and Mrs. Dunitz shall, at the closing of said land contract, execute and deliver to Lawyers Title an assignment of the vendor’s interest in said land contract.”
The agreement was signed by Mr. Dunitz and his cotenant as well as by Lawyers Title. Just beneath the signatures the following addendum appears:
“Rita N. Dunitz consents to the foregoing agreement and agrees, for a valuable consideration, to the foregoing insofar as her agreement may be necessary and further agrees to join with her husband in the execution of any and all instruments called for by the above agreement.
/s/ Rita N. Dunitz Rita N. Dunitz”
After numerous unsuccessful attempts on the part of Robinson to consummate the execution of the land contract, this action was brought. Robinson sued for specific performance of the purchase agreement. Lawyers Title intervened and was joined as party plaintiff asking specific performance of the purchase agreement as well as of the assignment to them of the ensuing land contract.
Defendants raise several issues on this appeal which deal with one or both of the aforementioned agreements. For clarity’s sake we shall discuss these issues under appropriate groupings.
1. Enforceability of the Purchase Agreement.
The trial judge, in his written opinion, ruled that the purchase agreement signed by Mr. Dunitz alone would be specifically enforceable, Mrs. Dunitz’ inchoate dower rights notwithstanding. It was found that Mr. Dunitz, a man experienced in real estate transaction, knowledgeably signed the agreement and received valuable consideration in return. The trial judge reasoned that while Mrs. Dunitz could not be compelled to convey her dower interest, the agreement was a proper one for the award of specific performance with damages for the cloud on title represented by the inchoate dower rights. He ruled that the cloud on the title was properly compensable based on Mrs. Dunitz’ life expectancy and that the agreement is enforceable at the election of the proposed land contract vendee.
Insofar as the enforceability of the purchase agreement is concerned, defendants assert that the terms ,of the agreement did not provide mutual equitable remedies for buyer and seller, and that the agreement is thus rendered unenforceable for want of mutuality of remedy. The terms of the agreement relied upon by defendants in support of this contention are:
“In the event of default by the purchaser hereunder, the seller may declare a forfeiture hereunder and retain the deposit as liquidated damages, as seller’s exclusive remedy. # * *
“In the event of default by the seller hereunder, the purchaser may, at his option, elect to enforce the terms hereof or demand, and be entitled to, an immediate refund of - his entire deposit in full termination of this agreement.”
Defendants cite authority purportedly in support of the proposition that the court should not use its discretionary powers of specific. performance in those cases where mutuality of remedy is lacking.
We agree with the trial judge that “the rule is not properly stated in terms of mutuality of remedy, but that in the more modern version there need simply be a mutuality of obligation to the extent that both sides to the agreement have at least some remedy against the other in case of a breach of the contract.” This position is supported by Reo Motor Car Co. v. Young (1920), 209 Mich 578, cited by plaintiffs. The rule has more recently been stated in Reinink v. Van Loozenoord (1963), 370 Mich 121, wherein the Court states (pp 124, 125):
“In considering whether a contract for the sale of land may be decreed to be specifically enforced, a distinction should be made between mutuality of remedy and mutuality of obligation. The early view was that specific performance would not be available to one party unless that remedy was also available to the other party. 49 Am Jur, Specific Performance, § 35. In Reo Motor Car Co. v. Young, 209 Mich 578, that rule was rejected by this Court as presently having little force.
“The modern view on mutuality of remedy is set out in 49 Am Jur, Specific Performance, § 35, as follows:
“ ‘According to the reasoning of modern authorities, the fact that the remedy of specific performance is not available to one party is not a sufficient reason for refusing it to the other party. * * # Following this view it has been held that the rule of mutuality is satisfied if the decree of specific performance operates effectively against both parties and gives to each the benefit of a mutual obligation. It is where the element of mutual obligation is lacking that equity will refuse to decree specific performanbe on the ground of want of mutuality of remedy. Thus, specific performance will not be granted where the complainant may at his option refuse to carry it out. But the mere fact that remedy by way of specific performance is not available to one party is not of itself sufficient to justify refusal of a decree.’
“2 Restatement of the Law of Contracts, § 372, pp 677, states:
“ ‘(1) The fact that the remedy of specific enforcement is not available to one party is not a sufficient reason for refusing it to the other party.’ ”
The authorities cited by the defendant are clearly distinguishable on the facts and refer to mutuality of remedy rather than the modern concept of mutuality of obligation which prevails in Michigan. We believe Reinink sustains the trial court’s ruling-on the enforceability of the purchase agreement.
2. Release of Dower.
The judgment of the trial court was that Mr. and Mrs. Dunitz forthwith execute the land contract in accordance with the terms of the purchase agreement. Recognizing that our laws closely guard the right of dower and that a husband may not bargain away his wife’s dower interest (Buchoz v. Walker, et al. [1869], 19 Mich 224), the trial judge’s ruling-can only be sustained by a finding that Mrs. Dunitz herself barred her right to dower. The trial judge found that Mrs. Dunitz’ agreement with Lawyers Title to enter into the land contract pursuant to the purchase agreement constituted such a waiver or release of her inchoate dower interest.
Defendants attack such a finding based on the Lawyers Title agreement on 3 grounds: (1) that the addendum signed by Mrs. Dunitz did not constitute a release of dower; (2) that in any event, Robinson cannot avail itself of Mrs. Dunitz’ agreement with Lawyers Title as a third party beneficiary; and (3) that Mrs. Dunitz’ release of dower, if so construed, was void for want of consideration flowing to her.
A. Construction of Addendum
The addendum clause, as set forth above, constitutes a promise to release dower in the land contract sale contained in the purchase agreement. Mrs. Dunitz expressly promised to enter into all agreements called for in the body of the instrument and it is clear from the paragraphs which we have set forth that the land contract with Robinson was one of the agreements in which she promised to join. Such a promise to join in the execution of the land contract and the actual execution by Mrs. Dunitz of the mortgage agreement can only be construed as an expression of intention to release her inchoate right of dower.
That Mrs. Dunitz could contract to release her inchoate dower is clear by Const 1963, art 10, § 1, which provides:
“The disabilities of coverture as to property are abolished. The real and personal estate of every woman acquired before marriage and all real and personal property to which she may afterwards become entitled shall be and remain the estate and property of such woman, and shall not be liable for the debts, obligations or engagements of her husband, and may be dealt with and disposed of by her as if she were unmarried. Dower may be relinquished or conveyed as provided by law.”
The power of a married woman to release her dower by appropriate instrument is further found in CL 1948, § 558.13 (Stat Ann 1957 Rev § 26.229). From early times this enactment was held to give the wife power to contract for the release of her dower which would be enforced. See Rhoades v. Davis (1883), 51 Mich 306. The trial court properly ruled that Mrs. Dunitz, by virtue of the Lawyers Title agreement, contracted, for a valuable con sideration, to bar her right to inchoate dower and to join her husband on the proposed land contract sale.
B. Availability of the Lawyers Title Agreement to Robinson
It is not necessary to our decision in this case to decide the issue of whether or not Robinson is a third-party beneficiary to the Lawyers Title agreement, since the latter party asserts the promise, of Mrs. Dunitz to release her dower interest .on its own behalf in securing for itself the bargained-for mortgage collateral.
C. Want of Consideration to Mrs. Dunitz
Although the trial judge made no specific findings as to consideration flowing to Mrs. Dunitz for her release of dower, the same' arguments were made at trial as are made here and, in according relief, the trial judge must have ruled on this point in plaintiffs’ favor.
Defendants place their reliance on Dallavo v. Dallavo (1915), 189 Mich 350, and in particular on that portion of the opinion found at p 359:
“We also agree with the conclusion of the trial judge that the deed signed by the present wife was without legal consideration so far as she was concerned, and that it was proper to preserve to her her dower rights. Clement v. Buckley Mercantile Co. (1912), 172 Mich 243.”
In Dallavo, the plaintiffs were John Dallavo and his second wife, Marie Dallavo, who attempted to set aside a deed made to Henrietta Dallavo of John’s land as a settlement of the first marriage. Both John and his second wife signed the deed. The Court held that as to the second wife there was no consideration for the release of her dower in John’s lands.
Likewise, in Clement, supra, relied upon by the Court in Dallavo, the complainant’s husband attempted to make restitution for an embezzlement by conveying certain personal property and the family homestead to defendant. The Court found that the shortage was only shown to have been $555.65; that the value of the personalty conveyed was $800; and that the homestead was valued at $2,000. The Court set aside the conveyance for want of consideration to the wife.
Plaintiffs call our attention to Watkins v. Minor (1921), 214 Mich 380, which, they claim, has overruled Dallavo. Defendants claim that the overruling language of Wathins was dicta and should not deter our application of Dallavo. It is unnecessary to decide this question because the facts of these cases are distinguishable and we are satisfied that on the record made in this case, Wathins is controlling.
The consideration question in Wathins turned on whether money paid to the husband to be deposited in the bank to be used for family purposes was sufficient consideration to support the wife’s release of dower in the conveyed premises. The Court ruled that this constituted consideration. "We find nothing in this present record to distinguish or render Wathins inapplicable.
Affirmed. Costs to appellees.
Lesinski, C. J., and T. Gr. Kavanagh, J., concurred.
CL 1948, § 558.1 (Stat Ann 1957 Rev § 26.221).
“A married woman residing within this state may bar her right of dower in any estate conveyed by her husband or by his guardian, if he be under guardianship, by joining in the deed of conveyance and acknowledging the same as prescribed in the preceding chapter, or by joining with her husband in a subsequent deed, acknowledged in like manner; or by deed executed by the wife alone to one who has theretofore acquired and then holds the husband's title, provided the intent to bar her right of dower shall be expressed in said deed.” | [
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Per Curiam.
In this medical-malpractice action, defendant appeals by leave granted the circuit court’s order denying his motion for a qualified protective order to allow him to conduct an ex parte interview with the decedent’s treating physician. We reverse and remand.
Plaintiff filed this wrongful-death medical-malpractice action alleging that defendant had failed to properly diagnose or treat plaintiffs decedent, Linda Clippert, thereby proximately causing her death. Defendant sought to interview Clippert’s treating physician, but plaintiff refused to waive Clippert’s confidentiality rights under the Health Insurance Portability and Accountability Act (HIPAA), 42 USC 1320d et seq. Plaintiff signed a waiver allowing the release of medical records, but refused to provide a release for oral communications. Defendant moved for a qualified protective order to permit an ex parte interview with Clip-pert’s treating physician, but the circuit court denied the motion. The court concluded that “the HIPAA provision relative to a protective order only ... pertains to documentary evidence” and “that HIPAA does not authorize ex parte oral interviews.”
A circuit court’s decision on a discovery motion is reviewed for an abuse of discretion. Lantz v Southfield City Clerk, 245 Mich App 621, 629; 628 NW2d 583 (2001). However, an issue of statutory interpretation is reviewed de novo as a question of law. Rakestraw v Gen Dynamics Land Systems, Inc, 469 Mich 220, 224; 666 NW2d 199 (2003). Although the decisions of lower federal courts are not binding on Michigan state courts, Abela v Gen Motors Corp, 469 Mich 603, 606-607; 677 NW2d 325 (2004), we are free to adopt their analysis if it is persuasive and instructive, Cowles v Bank West, 476 Mich 1, 33-34; 719 NW2d 94 (2006).
HIPAA regulates the retention, use, and transfer of patient information by health-care providers. In re Petition of Attorney General for Investigative Subpoenas, 274 Mich App 696, 699; 736 NW2d 594 (2007); see also Bayne v Provost, 359 F Supp 2d 234, 236 (ND NY, 2005). HIPAA “authorizes regulations governing confidential patient information.” In re Petition of Attorney General, supra at 699. “Under this authority, regulations have been promulgated establishing procedures for the uses and disclosure of such information.” Id. These regulations make clear that HIPAA applies to both oral and written information. 45 CFR 160.103 (providing that “[h]ealth information means any information, whether oral or recorded in any form or medium”). HIPAA does not prohibit all ex parte communications with an adverse party’s treating physician. Law v Zuckerman, 307 F Supp 2d 705, 708 (D Md, 2004). “However, HIPAA clearly regulates the methods by which a physician may release a patient’s health information, including ‘oral’ medical records.” Id.
In Michigan, it was well established before the enactment of HIPAA that the filing of a lawsuit for personal injury or malpractice generally waived the statutory physician-patient privilege with respect to any injury, disease, or condition at issue in the lawsuit, MCL 600.2157, and that a defendant was permitted to meet ex parte with the injured party’s treating physician as part of discovery, see Domako v Rowe, 438 Mich 347, 361-362; 475 NW2d 30 (1991).
Under HIPAA, however, the filing of a lawsuit does not waive the confidentiality of health information, and unless the patient gives written consent or enters into an agreement, see 45 CFR 164.508; 45 CFR 164.510, the patient’s physician may only disclose confidential health information under limited conditions. As observed in Law, supra at 711:
HIEAA outlines the steps to follow in order to obtain protected health information during a judicial proceeding in 45 CFR 164.512(e). There are three ways. First, counsel may obtain a court order which allows the health care provider to disclose “only the protected health information expressly authorized by such order.” 45 CFR 164.512(e)(l)(i). In the absence of a court order, [45 CFR] 164.512(e)(l)(ii)(A) and (B) provide two additional methods available when used in conjunction with more traditional means of discovery.
Specifically, 45 CFR 164.512(e) provides in pertinent part:
(1) Permitted disclosures. A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:
(i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order; or
(ii) In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal, if:
(A) The covered entity receives satisfactory assurance, as described in paragraph (e)(l)(iii) of this section, from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request; or
(B) The covered entity receives satisfactory assurance, as described in paragraph (e)(l)(iv) of this section, from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order that meets the requirements of paragraph (e)(l)(v) of this section.
(v) For purposes of paragraph (e)(1) of this section, a qualified protective order means, with respect to protected health information requested under paragraph (e)(l)(ii) of this section, an order of a court or of an administrative tribunal or a stipulation by the parties to the litigation or administrative proceeding that:
(A) Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and
(B) Requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.
(vi) Notwithstanding paragraph (e)(l)(ii) of this section, a covered entity may disclose protected health information in response to lawful process described in paragraph (e)(l)(ii) of this section without receiving satisfactory assurance under paragraph (e)(l)(ii)(A) or (B) of this section, if the covered entity makes reasonable efforts to provide notice to the individual sufficient to meet the requirements of paragraph (e)(l)(iii) of this section or to seek a qualified protective order sufficient to meet the requirements of paragraph (e)(l)(iv) of this section.
(2) Other uses and disclosures under this section. The provisions of this paragraph do not supersede other provisions of this section that otherwise permit or restrict uses or disclosures of protected health information.
We agree with plaintiff that HIRAA supersedes Michigan law to the extent that its protections and requirements are more stringent than those provided by state law. See Law, supra at 711. Thus, if written consent or an agreement for the disclosure of confidential health information is not provided, a treating physician may only disclose such information under conditions set out in the HIPAA regulations, one of which provides for qualified protective orders.
But we disagree with the circuit court’s determination that a defendant’s ex parte interview with a treating physician may not be the subject of a qualified protective order under HIPAA. While 45 CFR 164.512(e)(l)(ii) does not specifically address oral communications, neither does it exclude oral or spoken information from the regulations governing disclosure of protected health information. As our Supreme Court observed in Domako, supra at 362, where rules are not meant to be exhaustive, “the omission of oral interviews does not mean that they are prohibited.” In fact, 45 CFR 160.103 specifically provides that HIPAA applies to both oral and written information, and 45 CFR 164.512(e)(2) makes clear that the regulations concerning qualified protective orders “do not supersede other provisions of this section that otherwise permit or restrict uses or disclosures of protected health information.” Thus, as the federal district court determined in Bayne, supra at 241, “if a qualified protective order, consistent with [45 CFR 164.512(e)], was in place then an ex parte discussion with the health provider would be appropriate.”
Plaintiff argues that it should be sufficient for defendant to rely on written medical records or to depose Clippert’s physicians if more information is desired. However, as our Supreme Court observed in Domako, supra at 360, it is “routine practice ... to talk with each witness before trial to learn what the witness knows about the case and what testimony the witness is likely to give” and “[t]here is no justification for requiring costly depositions ... without knowing in advance that the testimony will be useful.” Id. at 361.
The circuit court erroneously concluded that oral interviews cannot be the subject of qualified protective orders under HIPAA. Quite simply, defendants may conduct an ex parte oral interview with Clippert’s physician if a qualified protective order, consistent with 45 CFR 164.512(e)(1), is first put in place. Bayne, supra at 241. We reverse the circuit court’s decision and remand this case for further proceedings consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction. | [
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Per Curiam.
Defendant appeals by delayed leave granted his sentence for attempted embezzlement of $1,000 or more but less than $20,000, MCL 750.174(4)(a). The trial court sentenced defendant to three years’ probation, with the first 90 days to be served in jail. We affirm. This appeal has been decided without oral argument pursuant to MCR 7.214(E).
Defendant argues that the trial court erred by ordering him to pay restitution in the amount of $123,180. We disagree. Defendant contends that the trial court lacked statutory authority to order restitution for income loss. Because defendant raises this argument for the first time on appeal, we review defendant’s claim for plain error affecting his substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). “Under the plain error rule, defendantQ must show that (1) error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected a substantial right of the defendant.” People v Pipes, 475 Mich 267, 279; 715 NW2d 290 (2006). Defendant has the burden of persuasion. Id.
Defendant argues that no statutory authority explicitly permitted the trial court to order restitution for income loss. He wrongly relies on People v Shanks, unpublished memorandum opinion of the Court of Appeals, issued July 26, 1996 (Docket No. 178365), to buttress his argument. An unpublished opinion is not precedentially binding under the rule of stare decisis. MCR 7.215(C)(1). In contrast, a published opinion of this Court has precedential effect under the rule of stare decisis. MCR 7.215(C)(2). At least one published opinion of this Court negates defendant’s argument. In People v Guajardo, 213 Mich App 198; 539 NW2d 570 (1995), this Court held that because the restitution statute is silent regarding how to determine the amount of loss that the victim sustained, the amount should be “based upon the evidence.” Id. at 200. This Court also determined that if the evidence demonstrated loss based on both the replacement value of the stolen items and expected profits, then the trial court may consider lost profits in assessing restitution. Id. Further, defendant’s reliance on the maxim expressio unius est exclusio alterius with respect to MCL 769.1 is misplaced. Under Guajardo, the trial court was permitted to order restitution for lost profits under MCL 780.767; consequently, defendant has not established plain error.
Defendant next contends that the prosecutor did not prove by a preponderance of the evidence that $123,180 was the amount that the victim lost. This Court reviews a restitution order for an abuse of discretion. People v Gubachy, 272 Mich App 706, 708; 728 NW2d 891 (2006). Generally, an appellate court defers to the trial court’s judgment, and if the trial court’s decision falls within the range of principled outcomes, it has not abused its discretion. People v Carnicom, 272 Mich App 614, 616-617; 727 NW2d 399 (2006). When the question of restitution involves a matter of statutory interpretation, this Court reviews the matter de novo. Gubachy, supra at 708.
Crime victims retain both statutory and constitutional rights to restitution. Const 1963, art 1, § 24; MCL 780.766; People v Grant, 455 Mich 221, 229; 565 NW2d 389 (1997). Further, the Crime Victim’s Rights Act, MCL 780.766(2), mandates that a defendant “make full restitution to any victim of the defendant’s course of conduct.. ..” (Emphasis added.) To prove the appropriate amount of restitution, MCL 780.767(4) requires:
Any dispute as to the proper amount or type of restitution shall be resolved by the court by a preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the prosecuting attorney.
“Preponderance of the evidence” means such evidence as, when weighed with that opposed to it, has more convincing force and the greater probability of truth. People v Pugh, 48 Mich App 242, 245; 210 NW2d 376 (1973). The prosecutor presented evidence, including the victim’s extensive, essentially expert, testimony, that defendant embezzled $123,180. While defendant disagrees with this amount, he did not provide any evidence to contradict it. Weighing the prosecutor’s evidence against the defendant’s lack of countering evidence, the trial court resolved the dispute, determining that the amount suggested by the prosecutor had more convincing force and the greater probability of truth. Pugh, supra at 245. Because the trial court’s decision did not fall outside the range of principled outcomes, the trial court did not abuse its discretion. Carnicom, supra at 616-617.
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Meter, J.
Appellants Michigan Environmental Council and Public Interest Research Group In Michigan appeal as of right an order of the Public Service Commission (PSC) denying leave to appeal the decision of a hearing referee not to entertain certain advocacy from appellants and to strike their attendant evidence. We affirm.
I. FACTS
This case arose from the PSC’s orders in response to an application by Consumers Energy Company (Consumers) for approval of a power supply cost recovery (PSCR) plan for 2006.
A PSCR factor is “that element of the rates to be charged for electric service to reflect power supply costs incurred by an electric utility and made pursuant to a power supply cost recovery clause incorporated in the rates or rate schedule of an electric utility.” MCL 460.6j(l)(b). A PSCR clause is
a clause in the electric rates or rate schedule of a utility which permits the monthly adjustment of rates for power supply to allow the utility to recover the booked costs, including transportation costs, reclamation costs, and disposal and reprocessing costs, of fuel burned by the utility for electric generation and the booked costs of purchased and net interchanged power transactions by the utility incurred under reasonable and prudent policies and practices. [MCL 460.6j(l)(a).]
Appellants entered this case as intervenors and offered evidence concerning opportunities to reduce the PSCR factors through conservation, energy efficiency, and demand-side management (DSM). Consumers persuaded the referee to strike that evidence as not properly before the PSC in a PSCR proceeding. In response to the motion to strike, appellants unsuccessfully sought a declaratory ruling to the effect that the development of energy efficiency, conservation, and load management programs was a duty that Consumers was obliged to fulfill as part of the PSCR process.
Appellants argued that Consumers’ PSCR plan should be rejected because it failed to address energy efficiency, conservation, or load management programs, asserting that a plan failing to address those items was neither reasonable nor prudent for purposes of MCL 460.6j. Appellants additionally argued that the stricken testimony would have shown the direct relationship between prudence under MCL 460.6j and energy efficiency, and that the testimony was therefore relevant in the PSCR proceeding. Appellants further argued that the denial of the motion for declaratory relief was contrary to the plain language, purposes, and objectives of MCL 460.6j because any PSCR plan that did not address opportunities to minimize energy costs was necessarily unreasonable and imprudent.
In affirming the referee’s decision to strike the evidence in question, the PSC explained:
The [referee] correctly rejected the motion for a declaratory ruling on the grounds that “the overall structure of the Commission’s rules of practice and procedure rebuts MEC/PIRGIM’s assertion that its request can and should be considered in the context of an existing case.” None of the rulings that the groups seek are necessary to decide the contested case proceeding at hand. As the [referee] found, “Consumers is currently under no obligation to include (as part of its 2006 PSCR plan or the accompanying five-year forecast) an assessment of energy efficiency, conservation, or DSM programs.”
[T]he Commission agrees that the [referee] did not err by striking the testimony offered by MEC/PIRGIM witnesses concerning the need for conservation, energy efficiency, and DSM programs. However, in affirming the [referee’s] ruling on the motion to strike the Commission notes that it does not intend to suggest that a party to an Act 304[ ] case should be precluded from proposing a rate design solution that encourages the efficient use of energy or conservation measures by a utility’s customers. Likewise, the preclusion of intervenor testimony regarding non-rate design energy efficiency or conservation measures in an Act 304 proceeding does not apply to more appropriate forums, such as individual rate cases or special proceedings. ... MEC/PIRGIM is encouraged to raise its energy efficiency and conservation concerns in a more appropriate forum .... [Citations omitted.]
This appeal followed.
II. STANDARDS OF REVIEW
A final order of the PSC must be authorized by law and must be supported by competent, material, and substantial evidence. Const 1963, art 6, § 28; Attorney General v Pub Service Comm, 165 Mich App 230, 235; 418 NW2d 660 (1987). All rates, fares, charges, classification and joint rates, regulations, practices, and services prescribed by the PSC are presumed to be lawful and reasonable. MCL 462.25; see also Michigan Consolidated Gas Co v Pub Service Comm, 389 Mich 624, 635-636; 209 NW2d 210 (1973). A party aggrieved by an order of the PSC has the burden of proving by clear and satisfactory evidence that the order is unlawful or unreasonable. MCL 462.26(8). To establish that a PSC order is unlawful, an appellant must show that the PSC failed to follow a statutory requirement or abused its discretion in the exercise of its judgment. In re MCI Telecom Complaint, 460 Mich 396, 427; 596 NW2d 164 (1999).
In situations not involving the interpretation of a statute, a reviewing court should defer to the PSC’s administrative expertise and not substitute its judgment for that of the PSC. Attorney General v Pub Service Comm No 2, 237 Mich App 82, 88; 602 NW2d 225 (1999). An agency’s interpretation of a statute, while entitled to “ ‘respectful consideration,’ ” “is not binding on the courts, and it cannot conflict with the Legislature’s intent as expressed in the language of the statute at issue.” In re Complaint of Rovas Against SBC Michigan, 482 Mich 90, 93, 103; 754 NW2d 259 (2008).
“Whether the PSC exceeded the scope of its authority is a question of law that we review de novo.” In re Complaint of Pelland Against Ameritech Michigan, 254 Mich App 675, 682; 658 NW2d 849 (2003).
Evidentiary decisions are reviewed for an abuse of discretion. Price v Long Realty, Inc, 199 Mich App 461, 466; 502 NW2d 337 (1993). An abuse of discretion occurs only where the challenged decision fell outside the range of reasonable and principled outcomes. See Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007).
III. RESOURCE PLANNING
Appellants first assert, according to their statement of questions presented, that the PSC declared itself “limited and powerless under statutory law to encourage the establishment of energy resource planning, and energy efficiency and conservation programs,” and they then argue that the PSC erred in so declaring. In fact, we find no such declaration in the record. The PSC did, however, decline to condition approval of Consumers’ PSCR plan on the existence of such a program within it, and in this regard it committed no error.
The parties recognize that the PSC has a long history of encouraging utilities to consider their options for providing energy, satisfying present and future demand, and respecting concerns relating to costs, conservation, risks, and flexibility, along with environmental and social issues. In 1990, the PSC held that, in order to evaluate the reasonableness and prudence of the decisions underlying PSCR plans and forecasts, Consumers’ future PSCR plans and forecasts would have to be derived from, and be consistent with, its most recent integrated resource plan (IRP). In re Application of Consumers Power Co, opinion and order issued March 29, 1990 (Case No. U-9172), p 23. The PSC elaborated that an IRP should include planning objectives, estimated costs of and potential contributions to meeting planning objectives in connection with resource options, load projections and resource requirements, combinations of resource options, sensitivity analyses testing the effect of changed circumstances on the performance and costs of selected resource options, and an action plan describing a preferred selection of resource options. Id. at 24-25.
However, in 1997, with the advent of competition in the state’s electric industry, the PSC relieved utilities of the requirement that their PSCR requests include IRPs:
In recognition of its goal of increased competition in Michigan’s electric industry, the Commission concludes that Consumers should no longer be required to file integrated resource plans. Public review of and comment on integrated resource plans are not consistent with the competitive electric industry environment envisioned for Michigan. Such plans might provide information that could be useful to potential competitors and thus create a competitive disadvantage for Consumers. [In re Application of Consumers Power Co, order entered January 28, 1997 (Case No. U-9172), pp 1-2.]
However, the PSC added, “In relieving Consumers of the obligation to file integrated resource plans, the Commission does not indicate that Consumers is also relieved of its obligation to engage in reasonable and prudent planning activities.” Id. at 2.
In the instant case, the PSC reiterated that it imposed no obligation on Consumers to include an assessment of energy efficiency, conservation, or DSM programs with its PSCR plan, but it also stated that Consumers nonetheless retained an obligation to engage in reasonable and prudent planning activities, and it encouraged appellants to raise their “energy efficiency and conservation concerns in a more appropriate forum.” The PSC thus expressed its openness to taking appellants’ evidence and to encouraging Consumers to engage in scrupulous resource planning generally, even if not in the context of a PSCR proceeding. The real issue, then, despite appellants’ failure to frame it this way, is whether the PSC erred in declining to require that Consumers include an IRP or DSM program as part of its PSCR request.
Appellants acknowledge that that the PSC years ago discontinued its practice of requiring planning programs as part of PSCR plans, but they do not assert explicitly that that policy change was ill-advised and they do not discuss the PSC’s expressed concern that requiring the publication of the particulars of such programs would work against the competitive marketplace that a new legal framework was bringing about.
As noted earlier, while an agency’s interpretation of a statute is entitled to “ ‘respectful consideration,’ ” a reviewing court may not abandon its responsibility to interpret statutory language and legislative intent. In re Rovas Complaint, supra at 93.
Although MCL 460.6j(l)(a) authorizes the establishment of a PSCR clause for recovering the costs of generating or otherwise obtaining power “under reasonable and prudent policies and practices,” the statute calls on the PSC to generally review for reasonableness and prudence what a utility has put forward; the statutory language does not imply that the PSC should use the PSCR process to require a utility to respond to an intervenor’s recommendations or require any specific programs intended to promote conservation, energy efficiency, or demand-side management.
The PSC is entitled to consider “all lawful elements” in determining rates. MCL 460.557(2); see also Detroit Edison Co v Pub Service Comm, 221 Mich App 370, 385; 562 NW2d 224 (1997). Moreover, “[t]he PSC is not bound by any single formula or method and may make pragmatic adjustments when warranted by the circumstances.” Id. at 375. Accordingly, the PSC may authorize rates based on the reasonable costs of a DSM program, id. at 386, but may not “order [a] utility to follow particular principles of economic management,” id. at 387.
Appellants point out that they were not purporting to impose on Consumers any specific plan, but were instead only suggesting that the PSC treat a PSCR plan that lacked any resource planning programs as unreasonable and imprudent on its face. Significantly, appellants do not otherwise purport to identify anything about the PSCR plan in question that renders it unreasonable or imprudent. Given that (1) MCL 460.6j does not demand particular plans of the sort appellants advocate, (2) the PSC is not bound by any single formula or method, (3) the PSC continues to expect a utility to engage in reasonable and prudent planning activities, and (4) the PSC has demonstrated its openness to appellants’ advocacy along those lines in other proceedings, we hold that the PSC was within its rights in discontinuing the requirement for IRPs or DSM programs with PSCR plans in the first instance and in declining to treat a PSCR plan as unreasonable or imprudent for want of such a plan in this instance.
IV STRICKEN EVIDENCE
Appellants additionally argue that the PSC erred in striking certain testimony and exhibits they offered. We disagree.
The testimony in question related to the possible economic benefits that may be derived from conservation, energy efficiency, and DSM projects; Consumers’ recent announcement that it would like to sell its Palisades nuclear plant during 2007 and buy back the facility’s capacity and energy through a power purchase agreement; and appellants’ assertion that Consumers should either stop collecting the surcharge mandated by the Nuclear Waste Policy Act of 1982, 42 USC 10101 et seq., or stop forwarding the funds thus collected to the United States Department of Energy for use in establishing and operating a permanent spent nuclear fuel repository.
A. CONSERVATION, ENERGY EFFICIENCY, AND DSM PROJECTS
Appellants argue that the PSC improperly upheld the referee’s decision to strike testimony and exhibits they offered relating to conservation, efficiency, and DSM projects. Because we concluded above that the PSC was within its rights in declining to require such projects as part of a PSCR plan, we conclude here that the PSC properly struck the evidence relating to them.
B. PROPOSED SALE OF THE PALISADES PLANT
The referee, in the proposal for decision, explained:
[T]he problem with MEC/PIRGIM’s proposed testimony is not one of relevance, at least in the long term. [T]he [referee] concedes that “the effect that the actual sale of the plant and [the] successful signing of a Power Purchase Agreement might have on ratepayers is something that... could be investigated in the context of an Act 304 case.” However, at the present time, no sale has occurred and no power purchase agreement has been negotiated — let alone approved by the Commission, as would likely be required pursuant to Section 6j(13) of Act 304. Instead, all we have is the utility’s announcement that it would “like” to sell the plant at some time following the close of the PSCR plan year at issue in this proceeding. Thus, MEC/PIRGIM’s currently proposed testimony on this issue — as well as any that might be obtained by requiring Consumers to supplement its current five-year forecast to include the effects of the plant’s potential sale — constitutes pure speculation. [Citation omitted.]
The referee’s reasoning is sound on its face, and appellants directly attack no part of it. Because a sale of the Palisades plant was only in the conceptual stages at the time, appellants’ testimony concerning the implications of such a sale was properly stricken.
C. SPENT NUCLEAR FUEL
Appellants have repeatedly sought to make an issue of how utilities manage the problem of spent nuclear fuel. This Court has published a decision declaring that the PSC properly refused to entertain appellants’ advocacy in this regard. In re Application of Indiana Michigan Power Co, 275 Mich App 369, 374-380; 738 NW2d 289 (2007). Citing that case, this Court more recently disposed of such arguments without elaboration. In re Application of Detroit Edison Co, 276 Mich App 216, 240-241; 740 NW2d 685 (2007). In light of caselaw establishing that the PSC is not obliged to entertain appellants’ proposals concerning spent nuclear fuel, the decision in this instance to strike the related evidence is unassailable.
Affirmed.
Michigan Power Limited Partnership and Ada Cogeneration Limited Partnership also entered this case as intervenors, but did not participate beyond the prehearing stage. Accordingly, those parties are not participating in this appeal.
“Act 304” refers to 1982 PA 304, which is the legislation authorizing the use of a PSCR clause, MCL 460.6j.
We note that the federal Public Utility Regulatory Policies Act of 1978 encourages the development of alternative power sources in the form of cogeneration and small power production facilities and authorizes the promulgation of rules to require electric utilities to offer to purchase electricity from qualifying cogeneration facilities. 16 USC 824a-3(a)(2).
As noted by the PSC in this case, such evidence might be appropriate in an individual rate case. | [
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Wiest, J.
This is an appeal by a garnishee defendant. The garnishee, a foreign corporation, instead of making the disclosure required by statute (3 Comp. Laws 1929, §14857), sent a letter to the clerk of the court denying indebtedness to the principal defendant. This letter was filed in the case March 5, 1926. The plaintiff entered default of the garnishee defendant, for want of disclosure, on April 1, 1926, and again on November 30, 1926. May 21, 1930, plaintiff sent notice to the garnishee defendant of entry of such judgment and that, at the expiration of 60 days from the entry thereof, application would be made to the court for judgment against the garnishee defendant. June 20, 1930, the garnishee defendant filed a motion to set its default aside. This motion was heard by Judge Boomhower of the 24th circuit, sitting in the third circuit, and “counsel appearing for both interested parties and an oral argument having been had on said motion,” the default was set aside and leave to file disclosure granted. July 1, 1930, a disclosure in due form, denying liability, was filed. No review of the order setting aside the default was had. The garnishee issue came to trial before Judge Miller on November 12, 1930. Upon motion of plaintiff he set Judge Boomhower’s order aside, restored the default, and entered judgment against the garnishee defendant. This appeal followed.
The letter was not a disclosure, but would have constituted an appearance by the garnishee defend ant had notice thereof been given the attorneys for the plaintiff. As an act in behalf of appearance, upon filing- in the case, it commanded notice by plaintiff, at least to the extent of moving that it be stricken from the files before entry of default. Before entering default, an examination of the files was required. The default entered was based upon the files and records and failure of the garnishee “to file its appearance and disclosure.” Had notice of the filing of the letter been served upon attorneys for plaintiff, the garnishee defendant would have been entitled to notice of the default. 3 Comp. Laws 1929, § 14121, and cases cited in the footnotes. The filing of the letter, in response to the service of the writ, bars the garnishee from now questioning the sufficiency of the officer’s return of service. Whether Judge Boomhower, in setting aside the default, considered it void under the state of the record at the time of entry, and, therefore, the limitation of time by rule did not apply, is not disclosed. If Judge Boomhower acted without jurisdiction, plaintiff should have moved him to vacate the order and have reviewed in this court, in case of refusal. Review could not be made by any other circuit judge while Judge Boomhower was available.
The judgment against the garnishee defendant is reversed, and a new trial granted, with costs against plaintiff.
Clark, McDonald, Potter, Sharpe, North, and Fead, J J., concurred. Butzel, C. J., did not sit. | [
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] |
Bittzel, C. J.
Plaintiffs Bassett traded in an equity in property as first payment on the purchase of a house and lot in Detroit. A land contract dated June 26, 1928, was executed by defendant Trinity Building Company, as vendor, and plaintiffs as vendees. After giving plaintiffs credit for the equity traded in, the contract called for further payments aggregating $6,800, payable with interest at the rate of $60 a month. The contract was sold the day it was executed to or through defendant Northwestern Investment Company and the same day defendant Quail purchased it. The latter gave his check direct to the Trinity Building Company and it executed an assignment direct to him. It also gave him a deed which was .duly recorded. Just what connection the Northwestern Investment Company had with the contract is not shown. It is uncertain whether it acted as broker or purchased and immediately sold the contract and caused the transfer to be made by the Trinity Building Company to Quail. The assignment of the contract contained a guaranty on the part of the Trinity Building Company that the building had been finished and accepted by the vendees; that there were no agreements between the vendor-or the vendees and their assigns except as stated in the contract. It contained no exceptions. Plaintiffs moved into the house a few days after the execution of the contract. A driveway and garage were built for plaintiffs by Trinity Building Company at a cost of $350. They paid this amount direct to the builder. This transaction had nothing whatsoever to do with the contract or payments to become due thereunder.
Plaintiffs made payments amounting to $300 on the contract but refused to pay any further sums, claiming that the house had defects and that its con dition had been misrepresented to them by the defendant Trinity Building Company. Plaintiffs claim that the latter agreed to make repairs and alterations and that some were made; that their delay in asking for a rescission of the contract was due to promises made by the Trinity Building Company. They, however, admit that they continued to live in the premises for over six months from the time they last complained to the building company. It was almost two years from the date of the contract that plaintiff filed the present bill for rescission of the contract and for other relief.
On January 28,1930, Quail began suit in the common pleas court for the city of Detroit against plaintiffs to recover $480 due on the land contract. A copy of the contract was attached to the declaration. Plaintiffs appeared as the defendants in this law case and pleaded the general issue with notice of the following special defenses: failure of consideration, no consideration, fraud and misrepresentation, and breach of warranty. ■ The case resulted in a judgment in favor of Quail for the full amount of his claim against plaintiffs Bassett. The latter thereupon made a motion to set aside the judgment and filed an affidavit again charging fraud and misrepresentation, and the other questions raised in the case now before us. The motion was denied on March 29,1930, and no appeal taken. The judgment thus became res adjudicata. After the time for taking an appeal had expired, plaintiffs filed this bill for rescission, a lien for moneys paid, and an injunction restraining defendant Quail from proceeding to collect on his judgment. After a hearing, the trial judge denied plaintiffs the right to rescind. He, however, decreed the equivalent of a money judgment, for he ordered that $1,200 should be credited on the land contract and the balance still due reduced by that amount; that in addition, the judgment in favor of Quail, rendered by the court of common pleas, should also be set aside and considered as satisfied.
The decree setting aside this judgment is obviously wrong. A judgment' in a court of law will not be set aside by a court of equity unless it is so manifestly wrong that it is against good conscience. Cleveland Iron Mining Co. v. Husby, 72 Mich. 61. In order to set aside a judgment of law in equity, there must be ignorance of the defense when the judgment was rendered, diligence on the part of complainant, and the fact that adequate relief cannot be had at law. Taylor v. Sutton, 15 Ga. 103 (60 Am. Dec. 682).
A court will not set aside a judgment because it was founded on a fraudulent instrument, perjured evidence, or for any "matter if these questions were actually presented or considered in the case which resulted in the judgment assailed. United States v. Throckmorton, 98 U. S. 61. The very questions presented in the bill of complaint were litigated as far as defendant Quail is concerned in the law case in the court of common pleas and became res adjudicata. As Mr. Justice Cooley said in Miller v. Morse, 23 Mich. 365:
“And we do not see why, if this bill should be sustained, the defeated party might not maintain a similar one in nearly every case which the courts at law disposed of.”
Also, see Lafayette Benevolent Society v. Richardson, 188 Mich. 57; Becker v. Welch, 206 Mich. 613.
The testimony shows, as the trial judge found, that defendant Northwestern Investment Company was not guilty of the fraud, fraudulent representations, and breach of warranty that the Trinity Building Company is charged with. These questions were res adjudicate/, as to defendant Quail. The trial court held thát no conspiracy existed and that plaintiffs were not entitled to a rescission of the contract. He, however, gave them the equivalent of a money judgment and imposed a lien on property which the Trinity Building Company had parted with and which defendant Quail owned, notwithstanding the fact that it had been determined in the previous litigation that Quail was not liable for the damages for which the lien was given. Stripping the bill of complaint of the charges of conspiracy and the claim of rescission, the equity suit became one solely for the recovery of damages f,or fraud, fraudulent misrepresentations, and breach of warranty. The grounds for equitable jurisdiction were denied. As the bill was filed after the claim against defendant Quail had become res adjudicata, it really became one against the Trinity Building Company for a money judgment. Where plaintiffs in the suit for rescission have failed to make out a case for equitable relief, and the sole relief given them is a money judgment, which cannot be satisfied out of the property in question, equity will not keep jurisdiction but transfer the case to the law side of the court. Koontz v. Bay Circuit Judge, 224 Mich. 463; Wisper v. Dix-Ferndale Land Co., 241 Mich. 91.
The decree of the lower court will be set aside and the bill dismissed as to defendants Northwestern Investment Company and Quail. The decree will also be set aside as to defendant Trinity Building Company, but the case remanded to the trial court with the right reserved to plaintiffs to move for the transfer of the suit against defendant Trinity Building Company to the law side of the court in accordance with provisions of 3 Comp. Laws 1929, § 14008, or its dismissal as they may elect. Defendants will recover costs.
Wiest, Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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ZAHRA, J.
In these consolidated appeals by leave granted, Jeffrey C. Wallat and his spouse, Gina Rostagno-Wallat, (collectively referred to as “the Wallats”) appeal an order issued by the Wayne Circuit Court which, among other things, enforces an order of filiation issued by a New York court. The order of filiation declared Anthony Pecoraro to be the father of a child conceived and born to Rostagno-Wallat during her marriage to Wallat. On appeal, we must decide whether Pecoraro has standing to bring suit to establish paternity in Michigan. We must also consider whether the Full Faith and Credit Clause of article iy § 1 of the United States Constitution requires us to give full force and effect to the order of filiation entered by the New York court.
In Michigan, a child conceived and born during a marriage is legally presumed the legitimate child of that marriage, and the mother’s husband is the child’s father as a matter of law. A third party may not rebut this legal presumption unless there first exists a judicial determination arising from a proceeding between the husband and the wife that declares the child is not the product of the marriage. Because there was no paternity determination made in legal proceedings involving Wallat and Rostagno-Wallat that established Wallat was not the father of the child, we hold that Pecoraro lacks standing to seek paternity under Michigan’s Paternity Act. Further, because the New York court concluded that it lacked personal jurisdiction over Wallat, a necessary party to the paternity proceedings, we hold that the Full Faith and Credit Clause of the United States Constitution does not require us to give effect to the New York order of filiation. We reverse the judgment of the lower court and remand for entry of judgment consistent with this opinion.
I. BASIC FACTS AND PROCEDURE
The Wallats have been married to each other since June 4, 1994. At all times pertinent to this action, they have resided in Michigan. Two children were conceived and born during their marriage, one was born in 1999 and the other in 2002. The birth certificates of both children identify Jeffrey Wallat as the father.
Rostagno-Wallat and Pecoraro attended law school together in Lansing, Michigan. In June of 1997, their relationship expanded beyond the study of law. An intimate relationship between them continued on an “on-and-off” basis after Pecoraro graduated from law school in 1998 and returned to his home in Buffalo, New York. Rostagno-Wallat informed Pecoraro that he was the biological father of the child born in 2002 (throughout the remainder of this opinion, the child born in 2002 is referred to as “the child”). Deoxyribonucleic acid (DNA) testing performed in 2002 confirmed that Pecoraro was the biological father of the child. In April 2005, Rostagno-Wallat and Pecoraro permanently ceased their relationship and litigation commenced shortly thereafter.
A. PECORARO’S PATERNITY ACTION IN NEW YORK
In June 2005, Pecoraro filed a paternity petition against Rostagno-Wallat in New York, seeking an order of filiation establishing himself as the father of the child. Rostagno-Wallat moved to dismiss the paternity action for lack of personal jurisdiction, as neither she nor the child ever had resided in New York. Rostagno-Wallat also argued that dismissal was required because Pecoraro failed to name a necessary party — her husband, Jeffrey Wallat, who also was not subject to the jurisdiction of New York. Finally, Rostagno-Wallat argued that paternity was already established by operation of Michigan law, which presumes that, absent a prior judicial determination to the contrary, all children born of a marriage are the product of the marriage. Girard v Wagenmaker, 437 Mich 231, 242-244; 470 NW2d 372 (1991); MCL 722.711(a); MCR 3.903(7).
The New York court denied Rostagno-Wallat’s motion to dismiss the paternity petition. The New York court found that it had jurisdiction over Rostagno-Wallat under NY Fam Ct Act § 580-201(6), because she engaged in sexual intercourse in New York and the child may have been conceived by that act. Thereafter, Pecoraro apparently amended his petition to name Wallat as a defendant.
Wallat made a special appearance in the New York court to contest the court’s jurisdiction over him. Wallat argued the paternity action had to be dismissed because he was a necessary party to the establishment of paternity and he could not be compelled to litigate in New York because New York did not have personal jurisdiction over him. Wallat, like Rostagno-Wallat, argued that the paternity of the child was established pursuant to Michigan law.
The New York court conceded that Wallat was a necessary party to the paternity action and that it did not have any basis to exercise personal jurisdiction over Wallat. The New York court also acknowledged that under Michigan law, paternity was established in Wallat, since he was the spouse of Rostagno-Wallat at the time of conception. Nonetheless, the New York court found that under New York’s Civil Practice Law and Rules, CPLR 1001(b), dismissal of the paternity action was not required. This rule provides, in pertinent part, that “[i]f jurisdiction over [a necessary party] can be obtained only by his consent or appearance, the court, when justice requires, may allow the action to proceed without his being made a party.” The New York court held that justice required that Pecoraro be permitted to proceed with the matter even though the court could not obtain jurisdiction over Wallat. Wallat’s motion to dismiss for lack of personal jurisdiction was denied.
A trial was held on the issue of paternity. Rostagno-Wallat did not attend the trial and presented no proofs. In April 2007, the New York court issued a decision and order that held Rostagno-Wallat was estopped from denying that Pecoraro was the father of the child. The New York court granted Pecoraro’s petition to establish paternity and issued an order of filiation declaring him the father of the child. Thereafter, the New York court dismissed Pecoraro’s claim against Wallat for lack of personal jurisdiction. The Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department, subsequently affirmed this order on June 6, 2008, Docket No. CAF 08-00128.
B. LEGAL PROCEEDINGS IN MICHIGAN
In January 2006, before the resolution of the paternity action in New York, Wallat filed a paternity action against Rostagno-Wallat in the Wayne Circuit Court. After conducting a hearing with testimony from Wallat and Rostagno-Wallat, the court entered an order dismissing the case because the child was conceived and born during the parties’ marriage and thus was not born out of wedlock. The court concluded it lacked jurisdiction to enter an order of filiation “due to paternity already being established.”
In February 2008, while the New York proceedings were on appeal, Pecoraro filed in the Wayne Circuit Court a “Complaint for Paternity” against Rostagno-Wallat in which he, among other things, sought enforcement of the New York order of filiation. This complaint alleged that the parties were never married and had one minor child born out of wedlock. In July 2008, Wallat filed a complaint for declaratory judgment against Rostagno-Wallat and Pecoraro. In this action, Wallat sought a determination that he is the legal father of the child. After additional procedural maneuvering by and between the litigants, all parties eventually filed motions for summary disposition. On July 16, 2009, the trial court issued an opinion and order finding in favor of Pecoraro. This appeal followed.
II. ANALYSIS
On appeal, the Wallats argue that the trial court erred by finding that Pecoraro had standing under Michigan’s Paternity Act, MCL 722.711 et seq. They also argue the trial court erred in concluding that it was constitutionally required to give full faith and credit to the New York order of filiation issued by the New York court. We agree.
A. standard of review
Whether a party has standing to commence an action to establish paternity under the Paternity Act involves a question of law that this Court reviews de novo. Barnes v Jeudevine, 475 Mich 696, 702; 718 NW2d 311 (2006). We also review de novo the interpretation of statutes, jurisdictional issues, and constitutional questions. State Farm Fire & Cas Co v Corby Energy Servs, Inc, 271 Mich App 480, 483; 722 NW2d 906 (2006); Pontiac Food Ctr v Dep’t of Community Health, 282 Mich App 331, 335; 766 NW2d 42 (2009); Blackburne & Brown Mtg Co v Ziomek, 264 Mich App 615, 620; 692 NW2d 388 (2004).
B. PECORARO LACKS STANDING TO ESTABLISH PATERNITY IN MICHIGAN
Pecoraro argues that he can enforce the New York order of filiation under § 4b of the Paternity Act, which provides that “[t]he establishment of paternity under the law of another state has the same effect and may be used for the same purposes as an acknowledgment of paternity or order of filiation under this act.” MCL 722.714b. We find no merit in this argument. Before Pecoraro may assert the provisions of the Paternity Act, he must establish that he has standing under that act.
Standing to pursue relief under the Paternity Act is conferred on “(1) the mother of a child born out of wedlock, (2) the father of a child born out of wedlock, or (3) the Family Independence Agency[ ] on behalf of a child born out of wedlock who is being supported in whole or in part by public assistance.” McHone v Sosnowski, 239 Mich App 674, 677; 609 NW2d 844 (2000), citing MCL 722.714(1) and (8). Under the statute, a “child born out of wedlock” is defined as “a child begotten and born to a woman who was not married from the conception to the date of birth of the child, or a child that the court has determined to be a child born or conceived during a marriage but not the issue of that marriage.” MCL 722.711(a); In re KH, 469 Mich 621, 631-632; 677 NW2d 800 (2004).
It is undisputed that on the date of conception and at all times pertinent to these proceedings, Rostagno-Wallat has been married to Wallat. Thus, the first method for establishing that the child was born “out of wedlock” cannot be satisfied. The only remaining method of establishing that a child was born “out of wedlock” requires a court’s determination that the child is not the issue of the marriage. Barnes, 475 Mich at 703-704, citing Girard, 437 Mich at 243. In Barnes, the Michigan Supreme Court held “that a court determination under MCL 722.711(a) that a child is not ‘the issue of the marriage’ requires that there be an affirmative finding regarding the child’s paternity in a prior legal proceeding that settled the controversy between the mother and the legal father.” Id. at 705.
Pecoraro maintains that the New York order of filiation constituted a prior court determination that the child was not the issue of defendants’ marriage. Although the New York court made this finding, the New York action was not a proceeding between Rostagno-Wallat, the mother, and Wallat, the legal father. Rather, the New York court expressly allowed the action to proceed without having personal jurisdiction over Wallat. Further, because Wallat could not be forced to participate in the proceedings, the New York proceedings clearly did not “settle[] the controversy between the mother and the legal father,” satisfying the Paternity Act. Barnes, 475 Mich at 705. Simply put, because Rostagno-Wallat and Wallat have not asked a court to declare that the child was born out of wedlock, Pecoraro lacks standing to claim paternity under Michigan’s Paternity Act.
Pecoraro also argues he has standing to assert his claim under the Child Custody Act, MCL 722.21 et seq., which defines “parent” as “the natural or adoptive parent of a child.” MCL 722.22(h). This definition was added to the Child Custody Act, which did not previously define the term “parent,” by 2004 PA 542. Pecoraro maintains that because he is the child’s biological father, he is the natural father, as that term is used the Child Custody Act. Thus, he concludes, he may pursue his claim under the Child Custody Act, which confers on parents standing to seek custody of their children. Aichele v Hodge, 259 Mich App 146, 165; 673 NW2d 452 (2003).
Our Supreme Court in Girard addressed the interaction between the Paternity Act and the Child Custody Act. Gerard, 437 Mich at 251. As in the instant case, the Court in Girard held that “a putative father of a child born to a woman married to another man[] did not have standing to contest paternity under the Paternity Act.” Id. Girard further posited that, given this conclusion, the putative father “clearly could not obtain a determination that he was the natural or biological father of the child under the Child Custody Act.” Id. The Girard Court then concluded that, because the putative father “could not obtain a determination that he was a parent of [the] child, [the putative father] must be considered a nonparent under the Child Custody Act and his child custody claim is barred.” Id., citing Ruppel v Lesner, 421 Mich 559, 565; 364 NW2d 665 (1984).
The central premise in Girard was that, given the court’s conclusion that the putative father did not have standing to contest paternity, the putative father “clearly could not obtain a determination that he was the natural or biological father of the child.” Id. at 251. The Legislature’s amendment to the Child Custody Act does not alter this central premise. The purpose of the 2004 amendment was to provide statutory rights to adoptive parents. The phrase “natural parent” was used by the Legislature to distinguish between adoptive parents and non-adoptive parents. Nothing in the amendment supports the conclusion that it was intended to circumvent the Paternity Act. Pecoraro simply cannot use the Child Custody Act to obtain a determination that he is the father under the Paternity Act. Whether the putative father would be considered a natural or biological parent under the Child Custody Act is irrelevant unless he can first establish paternity under Michigan’s Paternity Act. Accordingly, we reject Pecoraro’s claim under the Child Custody Act.
C. THE FULL FAITH AND CREDIT CLAUSE OF THE UNITED STATES CONSTITUTION
Pecoraro also argues that Michigan is required to give effect and full force to the New York order of filiation. Specifically,, Pecoraro argues that the New York judgment must be honored under the Full Faith and Credit Clause of the United States Constitution, art iy § 1, and the Uniform Enforcement of Foreign Judgments Act, (UEFJA), MCL 691.1171 et seq. Because the UEFJA specifically references a “judgment,.. . that is entitled to full faith and credit,” MCL 691.1172, Pecoraro’s argument under the UEFJA rises or falls on his constitutional claim under the Full Faith and Credit Clause.
The Full Faith and Credit Clause provides, in relevant part, that “Full Faith and Credit shall be given in each State to the Public Acts, Records, and judicial Proceedings of every other State.” US Const, art IV, § 1. The purpose of the Full Faith and Credit Clause “is to prevent the litigation of issues in one state that have already been decided in another.” Martino v Cottman Transmission Sys, Inc, 218 Mich App 54, 58; 554 NW2d 17 (1996). A foreign judgment is conclusive and must be recognized if jurisdiction has been obtained over the parties and the subject matter. Baker v Gen Motors Corp, 522 US 222, 233; 118 S Ct 657; 139 L Ed 2d 580 (1998); see Nat’l Equip Rental, Ltd v Miller, 73 Mich App 421, 424; 251 NW2d 611 (1977).
Before a court is bound by a judgment rendered in another state, however, it may inquire into its jurisdictional basis, and if either personal or subject-matter jurisdiction is lacking, full faith and credit is not due. Underwriters Nat’l Assurance Co v North Carolina Life & Accident & Health Ins Guaranty Ass’n, 455 US 691, 705; 102 S Ct 1357; 71 L Ed 2d 558 (1982). Thus, collateral attack of a foreign judgment is permitted in Michigan by showing that the judgment a party is seeking to enforce was void for want of jurisdiction in the court that issued it. Nash v Salter, 280 Mich App 104, 119-120; 760 NW2d 612 (2008). Accordingly, the courts of this state are not obliged under the federal Constitution to give a foreign judgment full faith and credit where the issuing court lacked jurisdiction over the subject matter or the parties. Hare v Starr Commonwealth Corp, 291 Mich App 206, 217; _ NW2d _; California v Max Larsen, Inc, 31 Mich App 594; 597-598, 187 NW2d 911 (1971). Further,
[t]he Due Process Clause of the Fourteenth Amendment limits the jurisdiction of state courts to enter judgments affecting the rights or interests of nonresident defendants. As a result, a valid judgment affecting a nonresident’s rights or interests may only be entered by a court having personal jurisdiction over that defendant. [Jeffrey v Rapid American Corp, 448 Mich 178, 185; 529 NW2d 644 (1995) (citations omitted).]
We hold that the New York order of filiation was not a valid and binding judgment as to Wallat. We base this holding on three distinct but related findings. First, the New York court lacked personal jurisdiction over Wallat. This point is not in contention. The New York court expressly found that it lacked personal jurisdiction over Wallat. Upon finding that the New York court lacked jurisdiction over him, Wallat was not required to submit to the jurisdiction of New York or put his parental rights in peril.
Second, the New York court also found that Wallat was a necessary party to the paternity proceedings in New York. The court recognized that, as Rostigno-Wallat’s spouse and the legal father under Michigan law, Wallat had exercised parental rights over the child and had established himself as a stable and substantial presence in the life of the child. The New York court observed that it could not issue an order of filiation to Pecoraro without substantially impacting Wallat’s parental rights under Michigan law.
Third, the New York court expressly recognized that the effect of its action would ultimately have to be determined by a Michigan court. We presume the New York court recognized this point because it lacked jurisdiction over a necessary party.
We are unpersuaded by Pecoraro’s claim that Wallat’s remedy, if any, was through the New York appellate court, which affirmed the order of filiation. Again, the New York court found it lacked personal jurisdiction over Wallat and it found that Wallat was a necessary party to the proceedings. Upon entering the judgment, the court dismissed the claims asserted against Wallat by Pecoraro for lack of personal jurisdiction. In essence, Pecoraro is claiming that Wallat should have pursued appellate rights when Wallat had no adverse ruling or judgment imposed against him. Simply put, Pecoraro is asserting that Wallat was obligated to submit to the jurisdiction of New York or forfeit his parental rights. Pecoraro offers no legal authority for his position. Moreover, we are aware of no case that requires a party to submit to the jurisdiction of a court or place his rights at risk.
Similarly, we are not persuaded by the argument that the New York court order should be honored because, in arguing the merits of the underlying claim, Rostagno-Wallat protected the interests of Wallat. We conclude that the interests of Rostagno-Wallat, the mother, were not consistent with the interests and rights of Wallat, the legal father. Rostagno-Wallat’s parental rights as mother were never at risk in this litigation. More significant, however, is the notion that a judgment issued in a matter that does not include a necessary party has no effect. As a result, the courts of the state of Michigan are not obliged to give the New York order of filiation fall faith and credit.
III. CONCLUSION
Pecoraro lacks standing to assert his claim of paternity under Michigan’s Paternity Act. Because New York admittedly lacked personal jurisdiction over Wallat, a necessary party to the proceedings in New York, the order of filiation issued by the New York court is not entitled to full faith and credit under article IY § 1 of the United States Constitution.
We reverse the judgment of the trial court and remand for entry of judgment consistent with this opinion. We do not retain jurisdiction.
Pecoraro v Rostagno-Wallat, unpublished order of the Court of Appeals, entered January 11, 2010 (Docket Nos. 293355 and 293445).
New York’s Civil Practice Law and Rules, CPLR 1001(a), defines necessary parties as “[pjersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants.”
CPLR 1001(b) provides in full:
When joinder excused. When a person who should be joined under subdivision (a) has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned. If jurisdiction over him can be obtained only by his consent or appearance, the court, when justice requires, may allow the action to proceed without his being made a party. In determining whether to allow the action to proceed, the court shall consider:
1. whether the plaintiff has another effective remedy in case the action is dismissed on account of the nonjoinder;
2. the prejudice which may accrue from the nonjoinder to the defendant or to the person not joined;
3. whether and by whom prejudice might have been avoided or may in the future be avoided;
4. the feasibility of a protective provision by order of the court or in the judgment; and
5. whether an effective judgment may be rendered in the absence of the person who is not joined.
New York’s CPLR 1001(b) provides that, under limited circumstances, litigation may proceed without a necessary party over whom the court lacks jurisdiction. We question whether this court rule comports with the minimum requirements of due process. This aside, the rule does not in any way purport to establish a basis for personal jurisdiction over the necessary party where none exists. Thus, it is puzzling that the New York court did grant in part Wallat’s motion and dismiss him from the litigation, while continuing litigation between Pecoraro and Rostagno-Wallat. In any event, Wallat was not an active participant to the paternity proceedings and never submitted himself to the jurisdiction of the New York court. After the New York court entered its order of filiation establishing paternity in Pecoraro, it dismissed Pecoraro’s claims against Wallat for lack of personal jurisdiction.
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] |
SAAD, J.
In this divorce action, defendant Sunaina Nanda appeals an order that denied defendant’s motion to dismiss for lack of subject-matter jurisdiction. For the reasons set forth below, we affirm.
I. FACTS AND PROCEEDINGS
Defendant maintains that the circuit court lacks subject-matter jurisdiction because, pursuant to MCL 552.9(1), a court “shall not” grant a judgment of divorce unless the complainant or defendant “has resided in this state for 180 days immediately preceding the filing of the complaint,” and according to defendant, neither party meets this residency requirement. The record reflects that plaintiff and defendant are both citizens of India and they married there in 2007. In 2009, while living in Atlanta, Georgia, plaintiff filed the complaint for divorce in Washtenaw County. Plaintiff travels for work and does not live in any area of the country for long. Defendant lived in Ann Arbor when plaintiff filed for divorce, but she denies that she is a “resident” of Ann Arbor because she plans to return to India when she finishes graduate school at the University of Michigan. Defendant’s temporary student visa expires on April 30, 2012.
The trial court ruled that it has jurisdiction over the divorce action pursuant to MCL 552.9(1) because defendant lived in Michigan for the required 180 days. The court opined:
Here, the critical term is “resided,” rather than “resident” or [“Residence.” It is retrospective. The statute does not contain any requirement of intent to maintain residency in the future. It merely requires that one or the other party must have “resided” (past tense) in Michigan for 180 days, and in the county, for 10 days, prior to any filing for divorce in any Michigan county.
The trial court cited Kubiak v Steen, 51 Mich App 408; 215 NW2d 195 (1974), in which this Court interpreted a venue provision in the Child Custody Act, and observed that our courts have construed the term “reside” in both a technical, legal sense of a legal domicile, as well as a commonly understood sense of mere physical presence or place of abode. The court concluded that it would be contrary to the intent of the Legislature to apply a narrow, technical interpretation of the term when the statute itself gives no indication that it was intended to preclude those who have lived in Michigan for 180 days from seeking a divorce in this state.
II. ANALYSIS
The question whether a court has subject-matter jurisdiction is a question of law that we review de novo. Atchison v Atchison, 256 Mich App 531, 534; 664 NW2d 249 (2003). Issues of statutory construction are also questions of law that are reviewed de novo. Id. at 534-535. Whether the requirements of MCL 552.9(1) have been satisfied is a question of fact. Berger v Berger, 277 Mich App 700, 702; 747 NW2d 336 (2008). Questions of domicile and intent are also questions of fact. Leader v Leader, 73 Mich App 276, 283; 251 NW2d 288 (1977). We review factual findings for clear error. Berger, 277 Mich App at 702. “A finding is clearly erroneous if, on all the evidence, the Court is left with the definite and firm conviction that a mistake has been made.” Id.
The relevant text of MCL 552.9(1) provides:
A judgment of divorce shall not be granted by a court in this state in an action for divorce unless the complainant or defendant has resided in this state for 180 days immediately preceding the filing of the complaint and... the complainant or defendant has resided in the county in which the complaint is filed for 10 days immediately preceding the filing of the complaint.
The statutory residency requirements are jurisdictional, and a divorce is void if it does not comply with the residency requirements. Stamadianos v Stamadianos, 425 Mich 1, 3, 6; 385 NW2d 604 (1986).
Plaintiff argues the statute requires a complainant or defendant in a divorce action to simply facially comply with the statute, by being physically present in the state for 180 days before filing for divorce. Defendant maintains the statute requires a party not only to have been physically present in the state for 180 days but also to satisfy the legal definition of residence, which, by her interpretation, requires an intent to remain permanently or indefinitely in the state.
The meaning of “resided” as used in MCL 552.9(1) is an issue of statutory interpretation. This Court construes statutes in order to give effect to the Legislature’s intent. Briggs Tax Serv, LLC v Detroit Pub Sch, 485 Mich 69, 76; 780 NW2d 753 (2010). This Court gives “the words of a statute their plain, ordinary meaning.” Bukowski v Detroit, 478 Mich 268, 274; 732 NW2d 75 (2007). See also MCL 8.3a. However, “technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.” MCL 8.3a. When a term is undefined by a statute, this Court may look to dictionary definitions to aid its interpretation. Oakland Co Rd Comm’rs v Mich Prop & Cas Guaranty Ass’n, 456 Mich 590, 604; 575 NW2d 751 (1998).
MCL 552.9 does not define the word “resided.” Random House Webster’s College Dictionary (1997) contains the following definition of “reside”: “[T]o dwell permanently or for some time; live.” It defines “residence” as “the place ... in which a person lives or resides; dwelling place; home.” Id. Though the dictionary uses the word “permanently” in its definition of “reside,” it qualifies it by also saying “or for some time.” Further, the dictionary’s definition of “residence” does not imply any requirement of intent to remain. Therefore, the ordinary, common meaning of the term “reside” does not require an intent to remain permanently or indefinitely. However, this Court ruled in Leader that “[djomicile and residence in Michigan are synonymous terms” and that both require an intent to remain. Leader, 73 Mich App at 280; Berger, 277 Mich App at 703.
In Wright v Genesee Circuit Judge, 117 Mich 244; 75 NW 465 (1898), our Supreme Court interpreted an early version of MCL 552.9(1) that read: “a divorce from the bonds of matrimony may be decreed by the circuit court of the county where the parties, or one of them, reside.” Id. at 245 (quotation marks and citation omitted). In interpreting the word “reside,” the Wright Court defined the word “residence”: “Residence means the place where one resides; an abode; a dwelling or habitation; especially, a settled or permanent home or domicile. Residence is made up of fact and intention. There must be the fact of abode, and the intention of remaining.” Wright, 117 Mich at 245. Thus, the Court in Wright held that “residence” requires both physical presence and an intention to remain, though the Court did not define how long a person must intend to remain to fulfill the residence requirement.
Importantly, the early statute as interpreted in Wright used the present tense “reside,” while the current statute uses the present perfect tense, “has resided.” Bush v Shabahang, 484 Mich 156, 167; 772 NW2d 272 (2009) (“[C]ourts must pay particular attention to statutory amendments, because a change in statutory language is presumed to reflect either a legislative change in the meaning of the statute itself or a desire to clarify the correct interpretation of the original statute.”). Notwithstanding this change, since the Wright decision, our courts have regularly substituted the word “residence” for “resided.” See, e.g., Berger, 277 Mich App at 702-704; Smith v Smith, 218 Mich App 727, 730; 555 NW2d 271 (1996). For example, in Leader, this Court quoted MCL 552.9(1) as providing a “judgment of divorce shall not be granted [...] unless the complainant or defendant has resided in this state for 180 days immediately preceding the filing of the complaint.” Leader, 73 Mich App at 277. The Court then proceeded to interpret the meaning of the statute, stating: “Residence in Michigan is defined as a place of abode accompanied with the intention to remain.” Id. at 280. See also Berger, 277 Mich App at 702-704 (explaining the jurisdictional requirement as “residence”); Smith, 218 Mich App at 730 (defining the word “residence” to explain the meaning of the term “resided” in the statute and stating “[w]hen used in statutes conferring jurisdiction, residence is interpreted to mean legal residence or domicile.”). Therefore, while the word at issue is “resided,” this Court has used the term “residence” to discuss its meaning under MCL 552.9(1).
Because our Court has equated “resided” with residence and domicile, both of which require an intent to remain, we must consider the meaning of “intent to remain.” Leader, 73 Mich App at 280. In Smith, 218 Mich App at 730, this Court stated, “The issue of legal residency is principally one of intent.” In Berger, the defendant argued that the plaintiff did not meet the jurisdictional 10-day county residency requirement because she was not physically present in the county for all 10 days before filing for divorce. Berger, 277 Mich App at 702. This Court adopted the Leader analysis and held that the residency requirement was satisfied, stating, “We do not agree with defendant’s argument that MCL 552.9(1) requires plaintiffs continuing physical presence in Jackson County for the 10 days immediately preceding filing for divorce.” Id. at 703. The Berger Court cited Leader’s definition of “resided” and noted the case establishes “two important principles” — that intent is the preeminent factor for determining residence and also that an already established domicile is not destroyed by a temporary absence when there is no intention to change domicile. Id. at 703-704.
The Court in Leader did not define the word “intent” or explain the specific kind of intent that is required to meet the “resided” requirement of MCL 552.9(1). It merely stated there must be an “intention to remain.” Leader, 73 Mich App at 280. The Leader Court ruled that, under its facts, jurisdiction in Michigan was proper despite the plaintiffs four-month absence from the state. The plaintiff in Leader traveled to Kentucky, where her husband was living, to attempt a reconciliation. Id. at 278. However, the plaintiff doubted a reconciliation would be possible, and after two weeks she knew she wanted a divorce. Id. The plaintiff remained in Kentucky for four months only because she did not want to leave her children. Id. This Court ruled that the plaintiff never intended to make Kentucky her place of residence because, when she moved there, she expected to return to Michigan. Id. at 283. The Leader Court concluded that the intent required for jurisdiction under MCL 552.9(1) is an intent to make a place his or her residence, defined as “a place of abode accompanied with the intention to remain.” Id. at 280.
Though our caselaw holds that intent is a key factor under MCL 552.9(1), we disagree with defendant’s position that “intention to remain” requires that a party intend to remain “permanently or indefinitely,” and our courts have never so held. To the contrary, for several reasons, we interpret “intention to remain” to mean something less than a commitment to stay permanently or indefinitely. Though, again, intent is a consideration for jurisdiction under MCL 552.9(1), the Legislature’s use of the present perfect tense “has resided” cannot be ignored. The use of the term “resided” shows the Legislature did not intend to base a jurisdictional finding on conduct after the filing of the action for divorce. Indeed, the cases that define “resided” focus on the party’s intent and conduct at and prior to the time of filing. See, e.g., Leader, 73 Mich App at 283; Berger, 277 Mich App at 702-704. Further, the Legislature’s use of the term “resided” must be considered intentional and it is well-settled that the Legislature is presumed to mean what it says in a statute. Detroit v Dep’t of Social Servs, 197 Mich App 146, 157; 494 NW2d 805 (1992). It is also axiomatic that courts “ ‘may not read into the statute what is not within the Legislature’s intent as derived from the language of the statute.’ ” Robinson v City of Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010), quoting AFSCME v Detroit, 468 Mich 388, 400; 662 NW2d 695 (2003). Thus, we decline to read language or requirements into the statute to require a continuing intention to remain permanently in the state when it is not manifest within the language used by the Legislature.
We further hold that policy considerations favor a reading of MCL 552.9(1) that confers jurisdiction in this case. If we adopted defendant’s interpretation of “intent to remain,” jurisdiction would be lacking when a person clearly lives in Michigan and has been physically present, as here, well beyond the statutory time period but some evidence suggests that he or she plans to move at some point in the future. And, if jurisdiction can be defeated on the basis of a mere intent to eventually leave, many people who currently live in Michigan will lack a forum to litigate disputes. This case is but one example: If the trial court here does not have jurisdiction over the parties’ divorce, then there is no court anywhere in the United States that has jurisdiction. Thus, the parties will be unable to obtain a divorce in the United States despite the fact that both parties currently live in the United States, defendant intends to remain in the United States for at least another two years, and plaintiff plans to permanently reside here.
Moreover, because the Court in Kubiak interpreted “reside” in accordance with its popular meaning, which requires only physical presence, it would cause further jurisdictional complications to interpret Leader and its progeny to require a permanent or indefinite intent to remain. If Leader is interpreted as defendant advocates, a court could have jurisdiction over a child custody dispute under Kubiak, but the same court would not have jurisdiction to grant a divorce. It would be both nonsensical and a waste of judicial resources for the same court to lack the ability to adjudicate all matters relating to the division of a family.
Defendant suggests that a divorce ruling in Washtenaw County could be collaterally attacked pursuant to Williams v North Carolina, 325 US 226, 236; 65 S Ct 1092; 89 L Ed 1577 (1945). In Williams, the United States Supreme Court ruled that “one State can grant a divorce of validity in other States only if the applicant has a bona fide domicil in the State of the court purporting to dissolve a prior legal marriage.” Id. at 238. Our holding that the term “resided” in MCL 552.9(1) does not require an intent to remain permanently and indefinitely is compatible with Williams, which defines “domicile” as “a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance.” 325 US at 229. Even without a permanent or indefinite plan to stay in a particular state or county, a stay of some duration certainly meets the definition of “such permanence as to control the creation of legal relations and responsibilities of the utmost significance.” As discussed, MCL 552.9(1) requires a person to have “resided,” and “resided” requires physical presence plus an “intention to remain.” Leader, 73 Mich App at 280-281. A person who is physically present and intending to remain in an area likely owns property or has a lease for housing, either of which undoubtedly creates “legal relations and responsibilities of the utmost significance.” Id. at 281; Williams, 325 US at 229. The Williams definition suggests that if a person is in an area permanently enough to have legal relations and responsibilities, then the person is domiciled in that area. Here, defendant has consistently held long-term leases for housing and has arguably established other legal relations while living in this state for several years.
For the above reasons, though our courts have held that the “resided” requirement in MCL 552.9(1) constitutes “a place of abode accompanied with the intention to remain,” Leader, 73 Mich App at 280, it does not require an intention to remain permanently and indefinitely. Accordingly, though defendant intends to leave the state once her studies are completed in 2012, there is no dispute that she lived in Michigan for years before the divorce complaint was filed, far longer than the 180-day statutory requirement, and, when the action was filed, she intended to remain in the state for several more years. Defendant clearly “resided” in this state for the requisite period under MCL 552.9(1), and the trial court correctly ruled that it has jurisdiction over the parties’ divorce.
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PER CURIAM.
This case requires us to consider an issue of first impression involving the interpretation of the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., namely, when a physician must provide the statement required under MCL 333.26428(a)(1). Because we conclude that the statement must occur after the enactment of the MMMA, but prior to arrest, we reverse the circuit court’s reversal of the district court’s denial of defendant’s motion to dismiss, and we remand to the circuit court for reinstatement of the charge against defendant and other necessary proceedings.
I. BACKGROUND
On April 6, 2009, defendant was involved in an altercation that ultimately resulted in a search of defendant’s vehicle and the seizure of eight marijuana cigarettes from the trunk of defendant’s vehicle. On April 7, 2009, defendant was charged with possession of marijuana pursuant to MCL 333.7403(2)(d). Although defendant originally filed a motion to suppress evidence, he withdrew his motion on June 3, 2009, and instead asserted an affirmative defense under the MMMA, moving to dismiss on those grounds on June 10, 2009. On June 17, 2009, an evidentiary hearing was held on defendant’s assertion of the defense.
Defendant admitted that he had eight marijuana cigarettes in his possession at the time of his arrest, but testified that he used them for relief from pain and nausea caused by his Lyme disease. Defendant offered the testimony of Dr. Ray Breitenbach, who had been treating defendant for nine years. Breitenbach testified that defendant has chronic Lyme disease, which causes symptoms such chronic severe pain, arthralgia, fatigue, and malaise. Breitenbach stated his opinion that defen dant is “likely to receive therapeutic. . . benefit from the medical use of marijuana.” This opinion was memorialized in a document signed by Breitenbach on June 9, 2009. Breitenbach testified that, in his opinion, defendant would have been eligible to use marijuana on April 6, 2009. He further testified that it would have been reasonable for defendant to use two grams or less per day to treat his Lyme disease, that defendant’s possession of IV2 ounces would be “very reasonable,” and that his possession of 2 ounces would not be unreasonable.
Defendant requested that Breitenbach authorize medical use of marijuana on April 12, 2009, after the law permitting medical use became effective. Breitenbach testified that he and defendant had previously discussed the potential for defendant to use marijuana for medical purposes, but that defendant did not make his actual request until April 12, 2009. According to defendant, he had an appointment with Breitenbach on July 14, 2008, during which they discussed the upcoming vote on the medical use of marijuana, and Breitenbach indicated to defendant that he would support defendant using medical marijuana for medical purposes.
When defendant finally made the request of Breitenbach in April 2009, he did not inform Breitenbach that he had been arrested and charged with possession of marijuana; Breitenbach did not learn this until later. Breitenbach testified that the timing of defendant’s request was irrelevant, however, because in his opinion, defendant is “totally eligible and capable and in need of medical marijuana,” and he would have given defendant the authorization regardless of whether defendant had been charged or convicted.
Defendant completed the affidavit in support of his assertion of the MMMA for the purpose of his affirmative defense and motion to dismiss on June 9, 2009. In that affidavit, he stated that he uses marijuana for chronic pain and nausea caused by the Lyme disease. Also on June 9, 2009, defendant prepared an affidavit of qualifying patient, indicating that he was a patient qualifying for the medical use of marijuana. Defendant represented that Breitenbach had diagnosed defendant with a debilitating medical condition, Lyme disease, and that in Breitenbach’s opinion defendant would likely “receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate that debilitating medical condition or symptoms associated with that debilitating medical condition.”
Defendant offered into evidence his qualifying patient certificate, which indicated that his illness qualified him as eligible to use marijuana for medical purposes. He also provided his application form for a medical-marijuana registry identification card, which he prepared on April 12, 2009. The Michigan Department of Community Health issued him a registration card two weeks later. Defendant explained that he did not register for the medical-marijuana program before April 12, 2009, because the application form was not available online until April 8, 2009, two days after his arrest.
The district court issued its opinion on July 1, 2009, and found that defendant had not satisfied the requirements for stating the defense. It noted that defendant did not provide evidence to show that a physician had approved his medical use of marijuana before his arrest or that he had “seriously discussed the use of marijuana as a therapeutic benefit” with Breitenbach between December 2008, when the MMA was enacted, and April 6, 2009, the date of his arrest. The court focused on the language of MCL 333.26428(a)(1) that “ ‘a physician has stated that... the patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana ....’” It construed that language as requiring a determination by the physician regarding the matter before a patient is arrested for an offense.
Defendant appealed to the circuit court. The circuit court interpreted the statute differently than did the district court, reasoning:
This Court finds that the District Court’s interpretation of “has stated” is at odds with the nonuse of the defined term “qualifying patient” and the use, instead, of the undefined term “patient.” A qualifying patient is a person who has been diagnosed by a physician as having a debilitating medical condition. MCL 333.26423(h). The statute does not limit the use of the defense stated in MCL 333.26428(b) to qualifying patients, but more broadly offers the defense to all patients. Since the authors of the statute did not require that the person asserting the defense have been previously diagnosed by a physician as having a debilitating medical condition, it seems unlikely that they intended that the defense be limited to persons who had previously discussed the use of medical marijuana with their physician, or to persons who had obtained some statement from their physician before arrest. Giving the words used their plain and ordinary meaning, the Court cannot assign any further meaning to the words, “has stated,” than that the following subject matter was expressed by a physician. The statute does not require the physician have stated this before the defendant’s arrest. It merely requires that the physician has stated it. In this case, the physician stated it at the hearing. The statute simply does not require that the physician have stated it at some other time or in some other context.
Based on its interpretation, the circuit court reversed the district court’s denial of defendant’s motion to dismiss.
The prosecution filed an application for leave to appeal the circuit court’s October 27, 2009, opinion and order, which this Court granted. People v Kolanek, unpublished order of the Court of Appeals, entered March 29, 2010 (Docket No. 295125).
II. STANDARD OF REVIEW
This issue presents a question of statutory interpretation. We review de novo issues of statutory interpretation. Generally, the primary objective in construing a statute is to ascertain and give effect to the Legislature’s intent. The MMMA was enacted as a result of an initiative adopted by the voters. The words of an initiative law are given their ordinary and customary meaning as would have been understood by the voters. We presume that the meaning as plainly expressed in the statute is what was intended. [People v Redden, 290 Mich App 65, 76; 799 NW2d 184 (2010) (quotation marks and citations omitted).]
III. ANALYSIS
A. REGISTRY CARD
The prosecution first argues that a valid registry-identification card is required to assert a defense under § 8 of the MMMA. This issue is easily resolved because this Court held to the contrary in Redden, 290 Mich App at 81. Accordingly, the fact that defendant did not have a valid registry card at the time of his arrest did not preclude him from asserting this defense.
B. TIMING OF PHYSICIAN STATEMENT
We must next consider the specific issue ruled on by the courts below: when a physician must provide his professional opinion under MCL 333.26428(a)(1) in order for a defendant to assert the § 8 defense.
MCL 333.26428 provides in relevant part:
(a) Except as provided in section 7, a patient and a patient’s primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed valid where the evidence shows that:
(1) A physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a hona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition;
(2) The patient and the patient’s primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition; and
(3) The patient and the patient’s primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition.
(b) A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a).
1. AFFIRMATIVE DEFENSE
As an initial matter, we reject the prosecution’s assertion that the very nature of an affirmative defense requires that it not be retroactive because it is a legal justification for the conduct that exists at the time the crime is committed. Certain affirmative defenses, such as that provided by a statute of limitations, see MCL 767.24 and MCR 2.111(F)(3)(a), simply cannot exist at the time the conduct is committed. Additionally, nothing in the definition of an affirmative defense contains such a requirement: “ ‘An affirmative defense is one that admits the doing of the act charged, but seeks to justify, excuse, or mitigate it[.]’ ” People v Lemons, 454 Mich 234, 246 n 15; 562 NW2d 447 (1997) (citation omitted). An affirmative defense does not negate selected elements or facts of the charged crime. Id. An affirmative defense essentially concedes the facial criminality of the conduct and presents a basis to avoid conviction. People v DuPree, 284 Mich App 89, 99-100; 771 NW2d 470 (2009), aff’d 486 Mich 693 (2010), quoting People v Pegenau, 447 Mich 278, 319; 523 NW2d 325 (1994) (opinion by BOYLE, J.). Accordingly, simply because the initiative labeled the § 8 defense an affirmative defense does not resolve the question of whether a physician’s recommendation that is acquired subsequent to arrest is sufficient.
2. “HAS STATED”
The primary substantive question in this case is how to interpret the requirement in MCL 333.26428(a)(1), that “[a] physician has stated” the medical benefit to the patient. We conclude that “has stated” requires that the physician’s opinion be established prior to arrest. First, because the term is present perfect tense, the initiative must have intended that the physician’s opinion be stated prior in time to some event. That event would reasonably be “any prosecution involving marihuana,” MCL 333.26428(a), for which the defense is being presented. Thus, because the arrest begins the prosecution, the physician’s opinion must be stated prior to the arrest.
Furthermore, § 8(a)(1) speaks of a physician stating that “the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana.” (Emphasis added.) Thus, the language contemplates a situation where a physician, at the time of providing the statement, is envisioning the future possession and use of marijuana and rendering an opinion that it will benefit the patient when it is later used.
This interpretation is also consistent with the fact that the right to bring a motion to dismiss as provided for in § 8(b) requires a showing at an evidentiary hearing of “the elements listed in subsection (a).” It would not make sense to permit someone to “show the elements in subsection (a),” which requires that a physician “has stated” the benefits, by bringing a physician to the motion hearing to state, for the first time, that the defendant would receive such a benefit.
Our interpretation is also consistent with both California’s and Oregon’s interpretation of their medical-marijuana initiatives.
Under California’s Medical Marijuana Program (MMP), Cal Health & Safety Code 11362.7 et seq., “qualified patients,” as well as persons with identification cards, are provided a defense at trial to criminal liability for certain marijuana-related crimes. Cal Health & Safety Code 11362.765. A “qualified patient” is defined as “a person who is entitled to the protections of Section 11362.5, but who does not have an identification card issued pursuant to this article.” Cal Health & Safety Code 11362.7(f). Section 11362.5 is the Compassionate Use Act (CUA), which is the voter-approved initiative. Section 11362.5(b)(1)(A) provides:
To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of [a variety of listed illnesses], or any other illness for which marijuana provides relief.
California courts determined that to be a “qualifying patient” under the MMR a person need only meet the elements set forth in § 11362.5(b)(1)(A). See People v Wright, 40 Cal 4th 81, 93-94; 51 Cal Rptr 3d 80; 146 P3d 531 (2006). California courts concluded that “[i]n order to present a CUA defense ..., a. defendant must have obtained a recommendation to use medical marijuana prior to his or her arrest.” People v Windus, 165 Cal App 4th 634, 643; 81 Cal Rptr 3d 227 (2008). The interpretation is consistent with the language of the CUA, which requires that the physician “has determined,” implying that the determination occur prior to the assertion of the defense. See also People v Rigo, 69 Cal App 4th 409, 414-415; 81 Cal Rptr 2d 624 (1999) (holding that “post-arrest approval is insufficient to allow application of the compassionate use statute” because “[t]o sanction the use of marijuana under the facts presented herein would encourage the use of marijuana for any idiosyncratic problem, whether medically valid or not, with an ensuing attempt to seek medical approval after an arrest intervened”).
Oregon’s statute, which was also the result of a voter initiative, is similar although not identical to Michigan’s, and provides, in relevant part:
(1) Except as provided in [Or Rev Stat] 475.316 and 475.342, it is an affirmative defense to a criminal charge of possession or production of marijuana, or any other criminal offense in which possession or production of marijuana is an element, that the person charged with the offense is a person who:
(a) Has been diagnosed with a debilitating medical condition within 12 months prior to arrest and been advised by the person’s attending physician that the medical use of marijuana may mitigate the symptoms or effects of that debilitating medical condition!)] [Or Rev Stat 475.319(l)(a).]
In Oregon v Root, 202 Or App 491, 493-494; 123 P3d 281 (2005), the defendant challenged the trial court’s refusal to permit him to assert the medical-marijuana defense based on the trial court’s conclusion that the physician’s certification, obtained postarrest, was insufficient under the statute. The Oregon Court of Appeals looked at the text and context of the statute and determined that the intent was that “the doctor’s advice must come before a citizen is free to use marijuana without fear of civil or criminal penalties,” based on the present perfect tense language requiring that a defendant “has been advised.” Id. at 495-497.
We find these cases persuasive, particularly because they involve the interpretation of present perfect tense language found in similar medical-marijuana voter initiatives. Moreover, it is reasonable to assume that the affirmative defense created in § 8 was intended to protect those who actually have a medical basis for marijuana use recognized by a physician before the use began and was not intended to afford defendants an after-the-fact exemption for otherwise illegal activities. The law generally denies defendants the ability to excuse a criminal violation postarrest. Thus, defendants cannot escape prosecution for a violation of the concealed weapon statute by seeking a permit after arrest, or escape prosecution for violations of the controlled substances act by seeking a prescription for the substance from a physician after arrest. Furthermore, the very fact that the law creates the ability to legitimately have a defense to certain actions that would otherwise be illegal indicates that persons must fulfill those requirements prior to any arrest. Otherwise, there would be no incentive for anyone to spend their time and money to go through the process; people would simply engage in the illegal activity, rolling the dice that they will not get caught, with the understanding that, if they do get arrested, they can subsequently receive a retroactive exemption. Accordingly, we hold that the language in MCL 333.26428(a)(1), “[a] physician has stated,” requires that a physician’s statement of the medical benefit of marijuana be made prior to arrest.
This determination does not resolve the case before us, however, because defendant provided testimony that, although he did not receive an affidavit from Breitenbach prior to his arrest, he had previously discussed his potential for medical use of marijuana with Breitenbach, who indicated that he would support defendant’s using marijuana for medical purposes. The district court concluded that this testimony was insufficient because it did not occur in the time between the enactment of the MMMA and defendant’s arrest (between December 4, 2008, and April 6, 2009). Rather, the evidence indicates that the discussion occurred on July 14, 2008, and was related to the upcoming vote. Thus, the next question we must answer is whether a discussion that occurred prior to the enactment of the MMMA is sufficient to establish a defense under § 8(a)(1).
Looking again at California law, California permits for the assertion of the defense physicians’ determinations made before the CUA’s enactment. See Rigo, 69 Cal App 4th at 414 (concluding that defendant’s argument that “it was impossible to obtain authorization to cultivate marijuana prior to the effective date of the Act because physicians had no legal authority to recommend or approve the use of marijuana” was without merit because it had, in fact, occurred in other cases). However, this result appears to be necessary based on California caselaw that the defense contained in the CUA could be asserted retroactively, so that a defendant’s arrest prior to the Act’s passage does not preclude his assertion of the defense. See id. at 412; People v Trippet, 56 Cal App 4th 1532; 66 Cal Rptr 2d 559 (1997). Because California permits retroactive assertion of the medical-marijuana defense, a defendant in California would have to have had a discussion with his physician prior to the passage of the voter initiative in order to assert the defense retroactively. Unlike California, however, Michigan has held that there is no retroactive application of the medical-marijuana defense. People v Campbell, 289 Mich App 533, 536; 798 NW2d 514 (2010). Accordingly, we conclude that California caselaw is inapplicable to this specific question.
In Campbell, this Court noted that “MCL 333.26428(a) created a new right that did not exist before the enactment of the MMA by providing an affirmative defense to a criminal defendant facing prosecution for crimes related to the use of marijuana.” Id. Because the affirmative defense did not even exist before December 4, 2008, it seems counterintuitive to permit a prior statement by a physician to satisfy the affirmative-defense requirements. While people may have spoken with their physicians about whether a medical-marijuana law would be enacted and whether the physicians might then take action to assist them in qualifying for medical use, until the MMMA was actually enacted, such discussions were speculative. We are not convinced that such discussions prior to the enactment of the MMMA are sufficient to support a defense that did not yet exist. The more reasonable conclusion is that it was not until the passage of the MMMA that the required patient-physician discussions about eligibility for medical use of marijuana could occur. This interpretation provides protection to those who actively sought physician approval after the defense actually became available, while requiring more than just a speculative discussion about whether a person might possibly be eligible should the measure actually pass.
Consequently, we hold that in order to meet the requirement that a physician “has stated” a benefit to a patient from medical use of marijuana, the physician’s statement must have occurred after the enactment of the MMMA, but prior to arrest.
3. APPLICATION TO DEFENDANT
Given our conclusion that the discussion with the physician must have occurred after the enactment of the MMMA, but prior to arrest, neither defendant’s post-arrest affidavit nor his pre-MMMA enactment discussion with his physician is sufficient to meet the requirements of MCL 333.26428(a)(1).
Accordingly, the circuit court on appeal erred in concluding that the charge against defendant should have been dismissed by the district court and we remand for reinstatement of the charge. Because the statute does not provide that the failure to bring, or to win, a pretrial motion to dismiss deprives the defendant of the statutory defense before the fact-finder, defen dant’s failure to provide sufficient proofs pursuant to his motion to dismiss does not bar him from asserting the § 8 defense at trial or from submitting additional proofs in support of the defense at that time.
We do not retain jurisdiction.
Although the statute spells it “marihuana,” unless used in a direct quotation, we have spelled it throughout as “marijuana.”
Although there seemed to be some confusion in the questioning such that Breitenbach appeared to say defendant needed to use IV2 ounces a day, we believe that this is the more reasonable interpretation of his testimony based on what was asked and answered.
The MMP was passed by the California Legislature “to address issues not included in the CUA so as to promote the fair and orderly implementation of the CUA.” People v Wright, 40 Cal 4th 81, 85; 51 Cal Rptr 3d 80; 146 P3d 531 (2006).
We also note that, as indicated above, the statement under § 8(a)(1) must provide that “the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana,” and here defendant testified that Breitenbach simply stated that he would support defendant’s use of marijuana. There is no testimony or evidence that in July 2008 Breitenbach expressly made the statement required by § 8(a)(1). | [
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] |
T. G. Kavanagh, J.
This is an appeal from a directed verdict in an auto negligence case. After plaintiff’s proofs on tbe issue of liability were completed, tbe trial judge directed a verdict of no cause of action in defendants’ favor on tbe grounds that there were no proofs adduced from which negligence reasonably could be inferred. The Court of Appeals (10 Mich App 515) affirmed.
In our review we have been mindful that plaintiff was a passenger in a car driven by her husband and tbe negligence, if any, of her driver is not imputed to plaintiff. Bricker v. Green (1946), 313 Mich 218 (163 ALR 697). Likewise we observed that upon review of a directed verdict, GCR 1963, 515, the opposite party is entitled to the most favorable view of tbe testimony. Ingram v. Henry (1964), 373 Mich 453.
The only issue presented requiring discussion is whether sufficient evidence was presented upon which a jury could find defendant negligent. “While ordinarily this Court does not review questions of fact after determination of same by the trier of the facts and review by the Court of Appeals, inasmuch as the jury, the trier of facts in this case was not allowed to determine the facts” we must review the testimony in considerable detail to determine whether a question of fact had been presented. Eisenzimmer v. Contos (1967), 379 Mich 656, 661, 662.
The opinion of the Court of Appeals provides an excellent summation of the facts.
“The designation ‘defendant’ in this opinion refers to Raymond Neveau, driver of the automobile, although his father, Arnold Neveau, was joined as a party defendant because of his ownership of the automobile involved in the accident.
“The accident occurred in the center lane of a 3-lane highway, US 16, west of Fowlerville, at approximately 11 a.m. on a clear, dry Michigan football Saturday, October 8, 1960. Viewing the evidence in a light most favorable to the plaintiff, defendant’s vehicle entered the center lane in an attempt to pass a line of several cars proceeding west ahead of him. Heavy traffic conditions and a slight right curve partially obscured his vision, although there were no posted restrictions prohibiting passing in the area. As defendant was overtaking a vehicle driven by Wayne J. Nickerson, the automobile in which plaintiff was a passenger began to enter the center lane from the opposite direction in an effort to pass a double tandem semitrailer. Defendant was unable to complete the overtaking of the Nickerson vehicle and pull into the westerly flow of traffic, and therefore he applied his brakes and almost brought his vehicle to a stop. Nevertheless, the cars collided left-front to left-front when the defendant’s vehicle was squarely in the center lane and the other vehicle Avas mostly in the center lane but partially in the lane from which it had come.”
Defendant’s testimony was to the effect that he was in the center lane and had a clear view of the highway ahead. There were no observable obstructions to his passing the automobiles on his right. The Blazo car suddenly appeared in the center lane and defendant had no choice but to apply his brakes since he could not safely enter either lane.
The truck driver, Mr. Yike, testified that he did not know when the Blazo automobile entered the center lane. He also said that he did not notice defendant’s car in the center lane until defendant applied his brakes.
The chief of police of Fowlerville testified that a person in a ear approaching the point of impact from the east in the center lane and overtaking-traffic, could not see around the curve.
The only other eyewitness who was able to give testimony of probative value for the plaintiff is Mr. Nickerson, the driver of the auto defendant Neveau was attempting to pass at the time of the collision. To assay it properly, his testimony must be set forth at length:
“Q. [Attorney for plaintiff] Would you just explain to the jury what you observed?
“A. Well, I was out of the speed zone. I think I was the first man at the light, and traffic was a little heavier coming west, and I was up probably to 45, 50 miles an hour, and I see the truck coming right by the turn in this picture. And I see a car pull out, practically at the same time there was a car coming by me, was going by, and as he got- in front of me I didn’t see any more. The first thing I know here was a car up in the air right in front of me. It happened awful quick. I didn’t know the car going east had came all the way out in the lane, but it evidently did. * * ■*
“Q. When you first saw the truck, or first saw the Blazo car coming from Lansing going east, what was the position of the Nevean car, the one that was passing you?
“A. It must have been right, pretty near beside me. It wasn’t by me.
“Q. And then what happened to the Neveau car after that?
“A. He went on by. But as he got in front of me, why, they did hit head on. * * *
“Q. When did you first see the Neveau car?
“A. When?
“Q. The one that was passing you?
“A. When he was beside me.
“Q. That is the first time you observed it?
“A. That’s right. * * *
“Q. [Attorney for defendant] Now, as you were traveling westerly you did notice that a car driven by, you later learned to be Ray Neveau, was going by you in the center lane?
“A. That’s right.
"Q. And he was not going by in any extremely fast speed, was he?
“A. No, I wouldn’t say so.
“Q. In a normal passing?
“A. Normal passing speed.
“Q. Before he got by you, Mr. Nickerson, you could see a long distance ahead to the west, couldn’t you?
“A. Right.
“Q. And there were no vehicles in the center lane as he was going by you, were there?
“A. It started to get in the center lane.
“Q. When he got a little past you?
“A. No just before.
“Q. Bid you see a car swing out from behind the truck directly into the center lane?
“A. I did.
“Q. And did that happen at about the time that Ray Neveau was oven with your car or a little bit ahead of it?
“A. Well, be one way or tbe other. I wouldn’t say which was.
“Q. So how long Mr. Neveau had been in the center lane you don’t know?
“A. I don’t know.
“Q. But before that car came from behind the truck, you could see the truck coming toward you, couldn’t you?
“A. That’s right.
“Q. So ivhen Mr. Neveau was going by you, there was nothing in the center lane until he got about even with you?
“A. Somewhere in there. Somewhere in there.
“Q. Did you see Mr. Neveau then immediately apply his brakes?
“A. Well, no, not then.
“Q. What were you trying to do, get out of the way?
“A. No. I didn’t know there was another car in that center lane.
“Q. I see. In other words, if I put my two hands as the cars, and the right hand is yours and the left hand is Mr. Neveau’s, as he gets even with you that center lane was free, wasn’t it?
“A. Probably was, yes.
“Q. Then as he crept ahead of you, is that when the car came out from behind the truck?
“A. No, no. The car started out behind the truck before I seen him.
“Q. Which one?
“A. Practically the same time. Then I noticed the car was on the left going by. But as he got ahead I lost sight of the other car going east.
“Q. Did you think that other car, the Blazo car was going to turn back into the other lane?
“A. I presumed that. I presumed that. * * *
“Q. Well, now I will repeat it. I will repeat it. When you first saw a car that later turned out to be the Blazo car it was in the southernmost lane behind a truck, wasn’t it?
“A. That’s right.
“Q. All right. Then sometime before the impact you saw that ear start to move into the center lane, didn’t you?
“A. I did.
“Q. My question is, when you saw that movement, did it look to you as if that car was trying to peek out to see if the center lane was free?
“A. That I couldn’t say.
“Q. But at anytime when that car did start to come out, the car of Mr. Neveau is next to you in the center lane?
“A. That’s right. * * *
“Q. Mr. Nickerson, I will repeat that. When you were driving where you were, Ray Neveau is next to you, and you see the car come from behind the truck, Ray Neveau had a split-second to try and decide what to do, didn’t he?
“A. I didn’t know the ear was out from behind the truck at that time.
“Q. Did it look to you as if it was still behind the truck?
“A. I didn’t know. I just see him pull out. That is all.” (Emphasis supplied.)
Both lower courts properly accepted the fact that traffic conditions were heavy. Although there was conflicting testimony on the point, under the doctrine of favorable view, the conflict must be resolved in plaintiff’s favor. Similarly, both courts found the slight curve in the highway affected visibility even though there was conflicting testimony on this point, as well.
The court observed that ordinarily such conduct as passing on a visibility restricted curve in heavy traffic could give rise to a finding of negligence, but said no finding of negligence could reasonably be made here because the testimony of defendant and Mr. Nickerson indisputably indicated that there was nothing to be seen by defendant while passing. Both courts concluded Blazo suddenly and improperly pulled into the center lane. Thus, in their view the proximate cause of the accident was Blazo’s improper entry of the center lane and whatever defendant’s presumed negligence, it was unconnected with such improper entry. Therefore, they concluded Neveau was guilty of no negligence which caused the accident.
"We think another inference could have been reasonably drawn from the testimony of Mr. Nickerson and thus a jury question was presented. Detroit & Milwaukee R. Co. v. Van Steinburg (1868), 17 Mich 99.
"We have emphasized the testimony of Mr. Nick-erson which we believe gives rise to an inference that Mr. Nickerson is, at the least, unsure when the Blazo vehicle pulled into the center lane. At most, the emphasized portion indicates Blazo was already properly in the center lane before Neveau attempted to pass Nickerson. Thus, reasonable minds on the jury could have inferred Blazo was in the center lane to be seen when defendant began his passing of Nickerson. Coupled with heavy traffic conditions and a curve in the road, the testimony of Nickerson presents a jury question whether or not defendant was negligent in passing under those conditions.
"We emphasize that the judgment of both courts below rests on the soundness of their determination that no proof adduced would justify a verdict that Raymond Neveau was actionably negligent. We hold that the jury could have found from the evidence before it, had it been permitted to function in accordance with due instruction, (a) that driver Neveau was negligent in that he entered and then remained in the middle lane of a 3-lane highway in violation of section 638 of the Michigan vehicle code (CLS 1961, § 257.638 [Stat Ann 1968 Rev § 9.2338] ), and (b) that such violation was either the proximate or one of the two concurrent causes of the collision. Indeed, accepting it as it reads for the purpose of testing defendant’s motion, the sum of all the testimony is such that the jury could have found both drivers causally negligent for having driven in the center lane without first having ascertained that the “center lane is clearly visible and is free from oncoming traffic for a sufficient distance ahead” to permit the overtaking and passing which section 638 conditionally permits.
The trial court weighed the evidence and credited the portion of Mr. Nickerson’s testimony which was consistent with defendant’s. On a motion for directed verdict it is the duty of the trial judge to review all the evidence, giving to the opposing party the benefit of all conflicts and inferences, and decide if there is any evidence from which the jury could reasonably find a verdict contrary to the moving party. In close cases it usually is prudent to delay decision on the motion until after the verdict of the jury is returned. Then a motion for judgment notwithstanding the verdict may be entertained since both motions are gauged by the same standard. If an appeal is taken thereafter, then the appellate court may terminate the action by either reinstating the jury’s verdict or affirming the judgment notwithstanding the verdict. Otherwise, as this case illustrates, an entire new trial must be ordered upon reversal of the directed verdict at great expense to all concerned.
Reversed and remanded for new trial. Appellant may tax costs.
T. E. Brennan, C. J., and Dethmers, Kelly, Black, T. M. Kavanagh, and Adams, JJ., concurred. | [
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Dethmers, J.
Defendant was convicted by jury verdict in a justice of the peace court of the crime of cruelty to animals in violation of CL 1948, § 752.21 (Stat Ann 1962 Rev § 28.161). He was there sentenced to 2 years’ probation and to pay fine and costs of $79.75. He took an appeal to circuit court and, as provided by law, had a trial de novo there before a jury. A verdict of guilty was again returned and the circuit court imposed a sentence to serve 75 days in the county jail and pay costs of $75. On appeal therefrom to the Court of Appeals, it affirmed the circuit court judgment and sentence. Prom that, defendant’s appeal is here on leave granted. 381 Mich 777.
Two questions are raised on this appeal by defendant: (1) whether the proofs sustain a verdict of guilty of cruelty to animals under the statute and, particularly, whether proof of failure to provide medical treatment for cows, as needed, establishes such guilt; (2) whether it was lawful for the circuit court, upon conviction at the de novo proceedings in that court, to impose a greater sentence than that previously pronounced by the justice of the peace.
The statute making cruelty to animals a crime reads as follows:
“Whoever overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, cruelly beats, mutilates, or cruelly kills, or causes or procures to be so over-driven, overloaded, driven when overloaded, overworked, tortured, tormented, deprived of necessary sustenance, cruelly beaten, mutilated, or cruelly killed, any animal, and whoever having the charge or custody of any animal, either as owner or otherwise, inflicts unnecessary cruelty upon the same, or wilfully fails to provide the same with proper food, drink, shelter, or protection from the weather, shall, for every such offense, be punished by imprisonment in jail not exceeding 3 months or by fine not exceeding 100 dollars, or by both such fine and imprisonment.”
This is a misdemeanor.
The warrant charged defendant as follows :
“Count 2. That George Olary, late of the township of Emmett, county of St. Clair and State of Michigan, being the owner of a herd of cattle inflicted unnecessary cruelty upon the same, and wilfully failed to provide the same with proper food, drink, shelter or protection from the weather, contrary to CL 1948, § 752.21 (Stat Ann 1962 Rev § 28.161).”
Witnesses for the people at the circuit trial were an inspector for the humane society, a deputy sheriff, and a veterinarian. They saw a lame, injured, disabled, and emaciated cow on defendant’s farm that appeared to have been beaten and had a puncture wound of the stifle joint and other wounds that looked like they had been caused by forceful pressure on the cow’s side and back with a pitchfork, An abscess bad formed at one puncture wound which the veterinarian estimated had been developing for a period of from 30 to 45 days. Witnesses also saw, lying in the pasture there, the emaciated bodies of 2 dead cows, partially decayed, which had been beaten and abused, covered with abrasions and dead for some length of time. They talked with defendant at the time of their visit at his farm and he told them that the cows had been well just a short time before. The witnesses said that the evidences were such that this could not have been true. He also told them, when asked why the cattle were in the shape they were in, that the cows had been fighting and that two had died but that he did not know the cause of death. Defendant testified at trial, however, that enemies of his had beaten and injured the cows. He said that he had not called a veterinarian nor treated or caused the injured cows to be treated nor placed in the barn. He just left them in the pasture. It did appear that there was ample pasturage and water for these and defendant’s other cattle.
Defendant, on this appeal, argues that there was no evidence that defendant had caused the injuries to the cows, that the Court of Appeals has upheld the conviction on the theory that, regardless of who inflicted the injuries, defendant was guilty of cruelty to animals by his inattention to the condition of the animals and failure to provide them with medical treatment, but that the statute does not, in its definition of cruelty, include failure to give medical attention.
Defendant also says that to hold defendant’s inattention to constitute a violation of the statute would amount to permitting a criminal conviction for action or inaction which an advance reading of the statute would not have informed defendant was a criminal offense,
We think, however, that the record, as briefly sketched above, is ample to support a finding of cruelty consisting of conduct which defendant, a farmer, could well have realized was cruel and which the jurors readily recognized as such. We think the conviction lawful and proper.
Defendant had a right to take an appeal from justice to circuit court. Such appeal calls for trial de novo in the circuit court. This the defendant had before a second jury. That appeal amounted to a vacating and superseding of the judgment appealed from and placed the case within the circuit court jurisdiction to be proceeded in as if it were an original proceeding in that court. People v. Underwood (1920), 209 Mich 348. As said in People v. Powers (1935), 272 Mich 303, about an appeal from justice to circuit court in a criminal case:
“The defendant, however, had a right to appeal * * * and, when he did so, he conferred jurisdiction upon the circuit court to try the case anew and render judgment thereon as provided for in the statute.”
The sentence here imposed in circuit court was within the limits provided in the governing statute above quoted. The fact of a lesser previous sentence by the justice of the peace, which had been vacated by the appeal to the circuit court, in no way limited the circuit court powers to fix sentence at any amount permitted by that statute.
In this connection we are aware of the decisions and opinions handed down by the Supreme Court of the United States on June 23, 1969, in the combined cases of North Carolina v. Pearce and Simpson v. Rice (1969), 395 US 711 (89 S Ct 2072, 23 L Ed 2d 656). These are State cases in which convictions in trial courts were later set aside by State appellate courts because they were held to have been the product, iu part, of procedures which, represented denial of Federal constitutional rights. Accordingly, the cases were remanded to the trial courts from which they had come, for retrial, and, upon second convictions, the original sentencing trial courts imposed harsher sentences than the first. While it appears that a majority of the Supreme Court did not view the increase of sentence as amounting to double jeopardy or denial of equal protection, they did see, in such situation, the possibility of violation of due process of law. It is said in one of the opinions that for a trial court to follow an announced practice of imposing heavier sentence as punishment for defendant’s having pursued his constitutional rights and getting his original conviction set aside because of constitutional or even other errors, would render an appeal on the part of the accused hazardous and that such course would be vindictive and unconstitutional. A court may not place such a price on an appeal. The opinion goes on to say, however, that the prevalent modern philosophy of penology is that the punishment should fit the offender and not merely the crime. Then the rather amazing requirement seems to be expressed that, if a greater sentence is imposed after the second conviction, the sentencing judge must cause to be placed in the record his reasons for so doing, based on conduct of the defendant occurring after the first sentencing or, at least, on subsequent information coming to the judge after the first sentence.
Whatever may be thought of such a holding and requirement, especially in those cases in which the judge could have had no knowledge, at time of the second sentence, that such a requirement was later to be announced by the United States Supreme Court, at all events it has no application here. The differ- enees between the cases under consideration by that court and the instant one are numerous. In the first place, the cited cases are those in which the first convictions were improperly obtained, reversed on appeal for constitutional or other error, and then remanded for a second trial in the same court. There it could be said that if defendant had been properly tried the first time and convicted, his sentence undoubtedly would have been the same as was imposed on him and that, therefore, with errors and violations of his constitutional rights having occurred which contributed to his first conviction, the harsher second sentence would amount to penalizing him for appealing and seeking a fair and valid trial. That this could give rise to a question of whether defendant had been accorded due process is evident. Here, under Michigan procedure then in effect, no such thing has happened. Defendant was convicted in justice court, took an appeal as of right to circuit court in which the question of possible errors in the first trial is not considered, but a trial de novo, without regard to the first, is accorded defendant. He sought de novo proceedings in circuit court and got it, both as to trial and sentence. Second, the original sentence was imposed by a justice of the peace, not required to be legally trained, and the second sentence was by a circuit judge, a duly licensed lawyer, after report to him, as provided by statute, by the probation officer as to defendant’s background, record and attitude, to enable the circuit judge to fit the punishment to the offender. This benefit the justice of the peace did not have. An understanding of all these circumstances and applicable Michigan practice and procedure makes it clear that nothing in the nature of judicial vindictiveness or an attempt to punish for the temerity of taking an appeal and establishing error in the first trial is involved in this case. Even in cases of felonies, in which jurisdiction to try rests only with the circuit court and the first trial occurs there, the judge is not required to incorporate in the records his reasons for meting out the punishment he did, nor is that the practice in this State. There was, then, no reason here for the circuit judge to place in the record his reason for a different second sentence because he had not imposed the first one, but was merely doing, within the limits of the statute, what he, as a law-trained judge with the benefit of probation officer’s report, thought just and proper. Neither this Court nor any other has occasion to call that into question.
Affirmed.
T. E. Brennan, C. J., and Kelly, Black, and Adams, JJ., concurred with Dethmers, J. | [
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] |
T. M. Kavanagh, J.
This appeal is from orders of the circuit court granting motions for summary judgments as to defendants, The Evening News Association, Martin S. Hayden, Paul D. Bagwell, and John ,H. Stahlin. The motions arose in six cases which were consolidated by order of the Court of Appeals. The summary judgments were affirmed by that Court.
The original complaints in the six cases before us were filed in May, 1963. They arose out of a conflict between the plaintiffs, who were supporters of one Richard Durant, and certain leaders of the Republican party in Michigan, who allegedly were attempting- to oust Durant from a position of influence within the party. The alleged libel was contained in a letter dated May 10, 1962, with an enclosure, mailed by then State Senator John H. Stah-lin to the Michigan fair campaign practices commission, charging plaintiffs with improper activities.
Plaintiffs charge that the above-circulated documents were libelous in that the statements made, and the natural inferences to be drawn therefrom, charged the plaintiffs with being members of and/or associated with groups and/or persons whose activities were detailed as consisting of bribery, diversion of party funds, intimidation, misrepresentation, threats of physical violence, anti-Semitism, anti-Negro sentiments, violation of the American tradition of honesty, decency, and fair play, and Fascist, immoral, and reprehensible conduct.
Defendants filed their several motions for summary judgments.
The motions of defendants The Evening News Association and Martin S. Hayden were based upon: (1) Claimed privilege in the matter of “transmission of Senator Stahlin’s letter and enclosure of May 10, 1962, to the chairman of the fair campaign practices committee, with copies to the members of said committee and to the press.” (2) The publication by The Evening News Association of May 13,1962, was privileged as a matter of law under the First and Fourteenth Amendments to the United States Constitution, and under Michigan Const 1963, art 1, §§ 3 and 5, as being a matter of broad and general public interest. (3) The article did not name the plaintiffs and did not concern or libel plaintiffs as a matter of law. (4) There was no genuine issue as to any material fact and the undisputed facts show that defendants The Evening News Association and Martin S; Hayden did not act with actual malice toward plaintiffs. Attached to the motions were the affidavits of Frederick G. Engle, political writer for The- Detroit News, and Martin S. Hayden, editor of The Detroit News. .These affidavits, together with other affidavits hereafter mentioned, are contained in the appendix to this opinion.
'The motions for summary judgments, with supporting affidavits, filed by defendants John H. Stahlin and Paul D. Bagwell relied upon GCR 1963, 11712(3), alleging that there was no genuine issue as to any material fact in the action because the publication of the statements complained of was privileged and such statements were not libelous of the plaintiffs.
In answer to the several motions for summary judgments, plaintiffs filed the affidavit of defendant Charles Ferry.
The motions for summary judgments were granted and orders were entered in the various cases on behalf of each of the defendants.
Plaintiffs appealed to the Court of Appeals. The Court of Appeals affirmed the grant of summary judgments “for the reason that plaintiffs have failed to raise a genuine issue of fact as to the element of malice.” 10 Mich App 181, 188.
■ Plaintiffs are here on leave granted. 381 Mich ■767.
This Court is requested — principally upon the .authority of New York Times Co. v. Sullivan (1964), 376 US 254 (84 8 Ct 710, 11 L Ed 2d 686, 95 ALR2d 1412) — to draw the fine line between speech unconditionally guaranteed and speech which may legitimately be regulated (see Speiser v. Randall [1958], 357 US 513, 525 [78 S Ct 1332, 2 L Ed 2d 1460] ). This we cannot do.
The sole issue before this Court is whether summary judgments were properly or improperly granted, We hold that summary judgments were improperly granted.
While we agree with the lower courts that the New York Times standard relating to “public officials” and its subsequent extension to “public persons” is controlling if plaintiffs are in fact “public persons,” we cannot agree with the conclusion that there is no question of fact as to “ ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” See New York Times, supra, p 280.
Let us examine the facts presently before us. The affidavits of defendants Engle and Hayden state that their sole participation in the alleged libel was the publication of defendant Stahlin’s request and complaint to the fair campaign practices commission and Mr. Durant’s comments thereon. The affidavits of all defendants aver that the publication was without actual malice, but all tacitly admit knowledge of the content of exhibit “A”.
On the other hand, we have the affidavit of defendant Charles Ferry, filed by plaintiffs, alleging that, as campaign manager for Stahlin, he was in close and constant communication with defendant Stahlin; that he knew Stahlin had been promised political support by certain party leaders if Stahlin would publicly attack Durant; and that The Detroit News, through Martin S. Hayden, would editorially support Stahlin in his campaign for lieutenant governor if he would publicly attack Durant.
Deponent Ferry further stated that — with this quid pro quo arrangement in mind to obtain the support of The Detroit News and the other defendants — he and Stahlin began gathering potentially damaging information and arranged to give defendant Engle of the News the “beat” on the story be cause it was the only paper which was really after the “Durant thing.”
Ferry’s affidavit gives in detail the time and the information received in the subsequent meetings. Deponent tells of the enthusiastic support of defendant Bagwell in planning and executing the attack on Durant and the discussions with The Detroit News’ representatives, including Engle, Robert Poppa, Carl Endow, and "Will Muller.
The end product of these meetings and political fact-gathering efforts with defendants and others was exhibit “A.” The exhibit was presented to The Detroit News through Mr. Engle and Mr. Hayden on May 11, 1962, prior to publication. According to deponent Ferry, Mr. Hayden released him at that time from giving the News the “beat,” because he wanted it to have the greatest circulation possible. The exhibit was then mimeographed and distributed to other news media and was published in The Detroit News on Sunday, May 13, 1962, prior to the mailing of exhibit “A” to the fair campaign practices commission.
The record indicates that defendants had complete control over releasing the news and that they could have released it at any time. "We observe, however, that it was not “hot news” requiring immediate dissemination as in Associated Press v. Walker (1967), 388 US 130, 157 (87 S Ct 1975, 18 L Ed 2d 1094), but rather the type of news which by its very nature requires close scrutiny and careful verification (see Curtis Publishing Co. v. Butts [1967], 388 US 130 [87 S Ct 1975, 18 L Ed 2d 1094]).
Viewing all of the conflicting representations in the affidavits, could not a jury find or reasonably infer that defendants intended solely to “get Durant” and that they were not in the least concerned with plaintiffs, who were virtual anonymities in the political area, or with the true facts regarding their participation in the Durant campaign? Could not a jury also find or reasonably infer that the hurried publication of the allegedly libelous document was indicative of a reckless disregard of whether it was true or not?
Prom these and other facts disclosed by the record, we find that reasonable minds could find or reasonably infer that the document was prepared and published with an intent to cause harm through falsehood or in reckless disregard of the truth or falsity of the allegations. See Rose v. Koch (1967), 278 Minn 235 (154 NW 2d 409). This creates a typical jury question.
Where actual malice, in the sense that an alleged defamer knew the statement to be faláe or acted in reckless disregard of its truth or falsity, is alleged in any of the pleadings, the crucial and often determinative factor is credibility. As we have repeatedly emphasized, summary judgment is not available whenever a presented issue of material fact turns upon the credibility of an affiant or witness whose deposition has been taken. Durant v. Stahlin (Appeal in re Van Dusen, Elliott, Romney) (1965), 375 Mich 628, and cases cited therein.
It is simply not legally sufficient to say that since plaintiffs did not prove by their affidavits a publication with knowledge of falsity or reckless disregard of truth or falsity, the fact of actual malice did not exist. The determination of actual malice depends oil more than a mere denial; it must be resolved from a study of the witness on the stand, his interest or lack of interest in the case, his role in the publication of the alleged libel, and the many other factors making up the issue of credibility.
We hold that where, as here, the credibility of a witness or deponent is crucial, summary judgment should not be granted.
The judgments of the Court of Appeals and the circuit court are reversed and the causes remanded for further proceedings.
Plaintiffs shall have costé of the appellate courts.
T. E. Brennan, C. J., and Dethmers, Black, and Adams, JJ., concurred.
Kelly and T. Gr. Kavanagh, JJ., did not sit.
Appendix.
“I, Frederick G. Engle, 'being duly sworn, depose and say:
“1. I have personal knowledge of the facts herein stated and I am prepared if sworn as a witness to testify fully and competently thereto.
“2. I am, and since prior to 1962 have been, a political writer for The Detroit News. ,
“3. I first saw Senator Stahlin’s May 10, 1962 request that the fair campaign practices commission conduct a full-scale investigation into the activities of certain extremists groups in connection with the then forthcoming Republican primary election in Wayne county and the attached eomplaint (exhibit A to plaintiff’s complaint) on Friday, May 11, 1962, when Senator Stahlin’s press representative, Charles H. Ferry, delivered a copy thereof to the office of The Detroit News. I understood that'there was a Michigan fair cam■paign practices coinmission, that Reverend Marshall R. Reed was its chairman, and that the persons shown as receiving eopies of Senator Stahlin’s request and complaint were the members of the commission. The commission conducted an investigation in response to the request and complaint.
“4. On May 11, 1962, Mr. Ferry had with him a stamped, sealed envelope addressed to the chairman' of' the commission whieh he said contained the original letter and eomplaint and whieh he was going to mail immediately. The copy of the letter and eomplaint which Mr. Ferry delivered to the News was for the use of the News as a publie newspaper. I also understood that such eopies were being delivered to' the Detroit Free Press and to other news agencies. The Detroit Free Press published an article regarding the request and complaint on May 13, 1962. A copy is hereto attached.
“5. On May 11, 1962 I read Senator Stahlin’s request and complaint. I knew that Mr. Ferry was Senator Stahlin’s press representative. I asked Mr. Ferry if he was able to substantiate the statements made in the complaint and Mr. Ferry said that he could. I also showed the request and complaint to Martin Hayden, editor of The Detroit News, and introduced Mr. Ferry to him.
“6. Neither I nor Mr. Hayden nor The Evening News Association had anything to do with the mailing of the request and complaint to the commission or its members. None of us distributed or published any copies of the letter or complaint. The only action taken by any of us was to publish, on Sunday, May 13, 1962, the attached Detroit News article concerning the request and complaint and Mr. Durant’s comments thereon.
“7. Said article was written by me and was published by The Detroit News on the understanding that the request and complaint was that of Senator Stahlin to the Michigan fair campaign practices commission and had been sent to the commission on May 11, 1962. Before writing or publishing the article I called Mr. Durant and diseussed the charges with him; the article contains his comments.
“8. At the time of the receipt of the copy of Senator Stahlin’s request and complaint and at the time of the publication of The Detroit News article I did not believe that any of the statements contained in said request, complaint or article were false. I knew Senator Stahlin and had a high regard for his integrity, both personally and as a Michigan senator and candidate for lieutenant governor. In writing The Detroit News article I also relied upon this integrity and the assurance of Mr. Ferry that the charges made could be substantiated. My purpose in writing The Detroit News article was to inform the public of the filing of Senator Stahlin’s request and complaint, a matter which I considered to be of broad and genuine public interest and concern. I was acquainted with the plaintiff herein and I had no personal animosity or malice toward him. My article does not mention the plaintiff herein. In mentioning the Republican Voters Associated as a group named by Senator Stahlin I understood that this group was a national political organization having hundreds of members.
“Frederick G. Engle.”
“I, Martin S. Hayden, being duly sworn, depose and say:
“1. I am and since prior to 1962 have been, the editor of The Detroit News, a publie newspaper published by defendant The Evening News Association.
“2. I first saw Senator Stahlin’s May 10, 1962 request that the fair campaign practices commission conduct a full-seale investigation into the activities of certain extremists groups in connection with the then forthcoming Republican primary election in Wayne county and the attached complaint (exhibit A to plaintiff’s complaint) on Friday, May 11, 1962, when Senator Stahlin’s press representative, Charles II. Ferry, delivered a copy thereof to the office of The Detroit News. I understood that there was a Michigan fair campaign practices commission, that Reverend Marshall R. Reed was its chairman, and that the persons shown as receiving copies of Senator Stahlin’s request and eomplaint were the members of the commission. The commission conducted an investigation in response to the request and complaint.
“3. On May 11, 1962 Mr. Engle, a political writer for The Detroit News, brought a copy of Senator Stahlin’s request and complaint to my office and introduced Mr. Ferry as Senator Stahlin’s press representative who had delivered the copy to the News office. Mr. Ferry informed me that the request and eomplaint were being sent to the commission and copies were being delivered to the press.
“4. I had nothing to do with the mailing of the request and complaint to the commission or its members. I neither distributed nor published any copies of the letter or complaint. The only action taken by The Detroit News, Mr. Engle, or myself was the publication on May 13, 1962 of a news article written by Mr. Engle concerning Senator Stahlin’s request and eomplaint and Mr. Durant’s comments thereon.
“5. At the time of the receipt of the copy of Senator Stahlin’s request and eomplaint and at the time of the publication of The Detroit News article I did not believe that any of the statements contained in said request, eomplaint or article were false. I did not question, and had no reason to question, the integrity of Senator Stahlin and I relied upon his integrity. I considered" the filing of the request and eomplaint, and the matters referred to therein, as matters of broad and genuine public concern. I was not acquainted with the plaintiff herein and had no personal animosity or malice toward him. The article published by the News does not mention the plaintiff herein. I understood that Republican Voters Associated was a national political organization having a large membership.
“Martin S. Hayden.”
“John H. Stahlin, being duly sworn, deposes and says:
“1. I am a defendant in the above-captioned cause.
“2. I make this affidavit in support of my motion for summary judgment in this cause, having personal knowledge of the facts stated herein.
“3. In May, 1962, I was serving as a member of the Michigan State senate. As a member of the Republican party, I also was a candidate for the Republican nomination for lieutenant governor.
“4. As a State senator, member of the Republican party, and candidate for State offiee, I knew in May, 1962, that Michigan had a fair campaign practices commission, the members of which were appointed by the governor. I further knew that the Michigan fair campaign practices commission investigated complaints of improper campaign practices and that the commission was officially charged with the responsibility of assuring that election campaigns in Michigan were conducted in accordance with American traditions of fair play.
“5. During the spring of 1962, I received information from Mr. Charles Ferry (a writer and research assistant employed by me), Mr. Paul Bagwell (a former Republican candidate for governor) and others concerning activities of certain groups in connection with the Republican party and a forthcoming primary election in "Wayne county. Although I did not have personal knowledge of all of this information, I in good faith believed that such information was true. Aware of my responsibilities not only as a State senator and a candidate for public office, but as an interested Bepubliean and citizen, I believed it to be my duty to communicate this information to and file a complaint with the members of the Michigan fair campaign practices commission, the official group responsible for investigating such charges. On that basis this information was communicated to the Michigan fair campaign praetiees commission in substantially the form of exhibit A attached to the complaint in the above-captioned action. At the time of such communication I, in good faith, believed that the information contained- in said exhibit A was true, and I still believe it to be true.
“6. At the time of said communication I also believed that the information contained in said exhibit A was a matter of vital public interest involving very basic threats to the political processes and that Bepublieans and the public generally should be advised of this information as soon as possible.
“7. In communicating the information in said exhibit A to the Michigan fair campaign practices commission and certain of the news media, I acted in complete good faith and with the conviction that such information was true and that in my position I had the responsibility and obligation to bring this information to their attention.
“8. At no time have I acted with any ill will or malice toward plaintiff in this cause, whose name was listed in said exhibit A as a person associated with Bepubliean Voters Associated. It was my good faith belief that the plaintiff had first-hand-knowledge of some of the information contained in said exhibit' A and could testify to that effect before the Michigan fair campaign practices commission. - To the best of my information and belief, no news article or other releases in connection with the filing of said exhibit A with the Michigan fair campaign practices commission have mentioned plaintiff’s name.
“John H. Stahlin.”
“Paul D. Bagwell, being first duly sworn, deposes and says that he is one of the defendants herein, that he has personal knowledge of the facts stated herein; and that, if sworn as a witness, he can testify competently to the facts contained herein.
“Deponent further says that:
“1. In 1958 and 1960 he was the candidate of the Bepubliean party for the office of governor for the State of Michigan; that as such he was, in May, 1962, the titular head of the Bepubliean party in the State of Michigan; that in sueh capacity, during and prior to May, 1962, he conferred with numerous officials, candidates and would-be candidates for State, county and local offices and for offices within the Bepubliean party itself and that he received numerous written reports and requests for money from many of such persons and others on their behalf.
“2. On or about May 8, 1962, deponent received in his office in the Penobscot Building, Detroit, Michigan, one, Karl B. McKeehan, a long-time Bepubliean worker and leader in the 13th Congressional District. Mr. McKeehan came dnto deponent’s office without prior appointment and delivered to deponent two documents. The first document was entitled ‘33th in trouble as follows’ and consisted of two pages; the second document was entitled ‘Delegate Expenses’ and consisted of two pages. During MeKeehan’s visit, deponent wrote in his own hand on the first page of the document entitled ‘13th Bis'-i trict in trouble as follows’ the information following the names of the persons listed in items I and VI on said page and also wrote in his own hand the name ‘George Zimmerman — 14th,’ opposite item II on said page and the names ‘Clive Hull — Birch, 459 Prentiss’ and-.-‘John A. Smith, Bireh, 382 Pilgrim, Highland Park’ opposite item IV on said page, which information - he obtained from said MeKeehan.
“3. Shortly prior to McKeehan’s visit, deponent had received from defendant Norman Stoekmeyer, Wayne eounty, Republican chairman, a half-page carbon copy of a document entitled ‘Greetings — Greetings,’ with a query as to whether deponent knew anything about George Lincoln Roekwell and his connection with the American Nazi party.
“4. On May 10, 1962 deponent was visited in his office in the Penobscot building by defendants John H. Stahlin and Charles Perry. At that time defendant Stahlin was a duly elected Republican member of the Senate of the State of Michigan and a candidate for the offiee of lieutenant governor of the State of Michigan. Defendant Stahlin at that time indicated that lie had uncovered certain practices which he thought were harmful to the Republican .party and that he had made a decision to file such charges with the fair cam) paign practices commission, a commission theretofore duly appointed’ by the governor of the State of Michigan. At that time, in response to such statement, deponent turned over to said defendants a 'copy of the document entitled ‘13th in trouble’ and of the half-page document entitled ‘Greetings — Greetings’ previously received as set forth above. These documents were retyped in deponent’s offiee on May 10, 1962, including the hand-written notations deponent had made in his conference with Karl B. MeKeehan and a carbon copy was de-’ livered to said defendants Stahlin and Perry. A copy of the material so delivered to defendants Stahlin and Perry is attached hereto as exhibit 1.
“5. At that meeting, Senator Stahlin indicated he had already made up his mind to bring the matter to the attention of the fair campaign practices commission and deponent turned over the document (exhibit 1 attached hereto) for the sole purpose of having the allegations therein contained brought to the attention of the fair campaign practices commission and with the sole expectation that sueh allegations would be investigated by sueh commission along with any other allegations which were going to be investigated. .
“6. Deponent had no knowledge that defendants Stahlin and Perry or any other person intended to or would publish the contents of said document other than as set forth above; ho did not authorize publication other than as set forth above; and he delivered said document solely for the purpose of having sueh allegations investigated by the fair campaign practices commission, duly constituted for such purpose. Deponent never -saw exhibit A attached to plains tiff’s complaint at any time prior to its publication and, deponent had no prior knowledge of its contents or that it would be published other than as set forth above. -.;
“7. Deponent did not know that the allegations set forth in tfee material turned over by, him to defendants Stahlin and Perry were false and did not act with malice towards plaintiff or any other person but solely as one with an interest in the subject matter ¡of such document and with good faith, for the sole purpose of having; an investigation made of the statements. therein contained by the; duly authorized and constituted public authorities. Deponent had no knowledge of and did not authorize any other use of such document.
“8. Plaintiff has at no time requested this deponent to retract any statements made by him.
“Further deponent sayeth not.
“Paul D. Bagwell.”
“Charles Perry, being duly sworn, deposes and says:
“That he is one of the defendants in the above entitled cause, and that he has testified on deposition in the case of Durant v. Stahlin, et al., #328,488 to some of the matters involved in the above cause; that if sworn as a witness, he can testify competently to the facts contained in this affidavit.
“That during the spring and summer of 1962 deponent was in charge of the publicity on behalf of defendant John Stahlin, who was a candidate for the office of lieutenant governor on the Republican ticket for the State of Michigan, and that in the course of this duty he was in close and constant communication with defendant John Stahlin.
“That prior to May 10, 1962, defendant Stahlin told deponent that he had conversations and discussions with various party leaders and others, including Bill Kulsea of the Booth Newspapers, who had recommended to defendant Stahlin that he go after Riehard Durant and attack him publicly.
“That defendant Stahlin informed deponent that Stahlin had talked to Martin Hayden, editor of The Detroit News, at the office of the News, and was told that if said Stahlin would make a public attack against Riehard Durant, he would have the editorial support of The Detroit News in his campaign for lieutenant governor; that the first test for the News’ support was the candidate’s position on Durant, that such a public attaek against Durant would help get rid of Durant in the 14th Congressional District, and therefore the News would support said Stahlin; that with his quid pro quo in mind, this deponent and defendant Stahlin began to get serious about taking some action as suggested.
“That deponent and defendant Stahlin then began to accumulate information which could be used in an attack on Riehard Durant, and that deponent talked to Richard Yan Dusen, Norman Stoekmeyer, Elly Peterson, Jack Gibbs, Donald DeRosen, Glenn Engle and others to get such information and to see what their reactions were to such an attaek.
“That prior to writing exhibit A, deponent talked to Glenn Engle of The Detroit News, and informed him that defendant Stahlin would in the future be making some sort of attack against Durant; that Engle then requested that The Detroit News be given a ‘beat’ on it because it ‘was the only paper which was really after the Durant thing;’ and that a determining factor in deponent’s decision to write exhibit A was the knowledge that The Detroit News would give defendant Stahlin editorial support if he made the public attaek.
“That deponent knew defendant Stahlin was under pressure from The Detroit News and others in the Republican party to take this action against Durant; that deponent had frequent discussions with Glenn Engle and other representatives of The Detroit News — for example, Robert Poppa, Carl Rudow and 'Will Muller — and knew of Martin Hayden’s attitude toward Riehard Durant; that deponent knew from his conversations with Elly Peterson, Riehard Van Dusen, Jack Gibbs, Norman Stockmeyer, Donald DeRosen and others that defendant Stahlin would get the support of the ‘Romney crowd’ if there was considerable publicity attached to Ms name in the publicity of these charges to be made against Richard Durant.
“That the subject of the attaek, and the gossip to be used to make this attaek (which later took the form of exhibit A) were diseussed by deponent with Elly Peterson, Norman Stockmeyer, Jaek Gibbs, Donald DeRosen, Riehard Van Dusen, Herman McKinney, Paul Bagwell, Glenn Engle, and others in the Republican party, in-eluding then State Senator Stanley Thayer; that all of the above, with the possible exception of Stanley Thayer, confirmed the accuracy of the gossip which was later used in exhibit A; that all of them recommended that the attaek on Richard Durant be made; and that Glenn Engle was compiling a file on all- these things, the existence of which was another factor in deponent’s decision to write exhibit A.
“That the strategy of using a complaint with the fair campaign practices commission to make the attaek was specifically approved of by Jaek Gibbs, Elly Peterson, Glenn Engle and Paul Bagwell and Norman Stockmeyer.
“That at some of deponent’s regular meetings with defendant Stahlin in April, 1962, it was known and discussed that someone from the Ford Motor Company had gone down to Washington to induce Senator Barry Goldwater to denounce Richard Durant so that Durant would be cut off from the certain amount of respectability that being a supporter of Goldwater then had, and that this effort was undertaken as a planned part of the attempt to oust Durant from his position of leadership in the Republican party in the 14th District, which resulted eventually in the publication of exhibit A; that prior to May 10, 1962, at some of the ‘dump Durant’ meetings in Lansing with defendant Stahlin and others, the ‘word’ was out that Allen Merrill, a viee president of the Ford- Motor Company, had said to ‘get’ Durant.
“That on Thursday, May 10, 1962, deponent and defendant Stahlin had a meeting with Paul Bagwell at the office of Paul Bagwell in the Penobseot building in Detroit, which lasted an hour to an hour and a half; that the primary purpose of the meeting was to get the advice of Paul Bagwell on the desirability and wisdom of making a publie attack against Richard Durant; that deponent- and defendant Stahlin knew that Bagwell was leading a group in the 14th District to oust Riehard Durant; that the meeting discussed the situation in the 14th District in relation to ousting Durant; that Bagwell confirmed the accuracy of the information deponent and defendant Stahlin had been compiling and told them of the activities of his group, the Republican Action Committee; that Paul Bagwell said his group was also compiling information about Richard Durant; that Bagwell gave, without a request on the part of deponent or defendant Stahlin, certain documents whieh were used in exhibit A; that Bagwell was extremely enthusiastic about the plan to attack Durant through the fair campaign practices commission and said ‘TMs would be a good thing for the party and our efforts (in the 14th District) and a good thing for you, John.’
“That at tMs meeting Paul Bagwell said that this proposed attack through the FCPC had ‘good possibilities’ and it would help -his gi'O'up in their j'0b‘Of ousting Durant in the 14th District; that certain members of the Republican Aetion Committee (including George B'ashara, Jr.- and John Beikens) were digging on their own to get more of this sort of information to use in an attaek on Richard Dürant; that Bagwell strongly urged deponent to talk to said Bashara and Beikens before deponent made his public attaek because they had additional Charges ‘to scorch your hair’, but that deponent did hot talk to them because he had to get exhibit A written in time to get it published in The Detroit News on Sunday, May 13, 1962.
■ .“That depoiient and defendant Stahlin believed the information given them • by Paul Bagwell; that Bagwell told them his group would continue to investigate Durant and would come out with a further attack of their own subsequent to the publication of exhibit A, ‘consisting of further disclosures of wrongdoing by Durant; that the- purpose of these further disclosures, on the heels of exhibit A, was to give it ‘the - old one, two’; that the information deponent and 'defendant Stahlin had, whieh Bagwell confirmed, was already in the possession of George Bashara, Jr., and John Beikens, who were working -■ óív still more .things; that deponent had certain notes of the gossip he had heard from others whieh -lie discussed at this meeting With Paul Bagwell,- which Bagwell confirmed, and whieh was later used in exhibit A.
<«phap Bagwell,- in his meeting and conversation with deponent and ■defendant ’ Stahlin, was acting as a spokesman for the Republican 'Action Committee and Ms organized effort to oust Durant; that he consistently used the word ‘we’ in his references to the proposed attack'and the efforts being made in conjunction with deponent’s proposed disclosures; that Bagwell informed deponent and defendant Stahlin that it was ‘a nasty situation’ and ‘something had to be done 'about it’ and ‘we are right behind you’; that going through the P’CPO was much better than getting up on a podium or issuing a piress release denouncing Durant, that this procedure lent it a little ihdré dignity and substance and gave it a structure for the charges ■t'o -be 'aired; that the aetion deponent and -defendant Stahlin were proposing was consistent with what the Republican Action Committee; was doing in the 14th District and that it would help the Republican Aetion Committee with their job; that the said Bagwell 'was the acknowledged leader of the anti-Durant-eonservative movement in the 14th District; that in this meeting Bagwell made ref-•orencé to the fact that he was working with others to accomplish their joint purpose of ousting Durant by attacks on Durant such as exhibit A; -and that-the material-Bagwell gave deponent and defendant Stahlin was to'be used as they saw fit, without any strings bn it or requests having been made for it. .
■ “That Bagwell assured deponent and defendant Stahlin they had the support of Bagwell and his associates in the publication and ■dissemination of the attaek which later took the form of exhibit A, and that the Republican Aetion Committee would ‘soon come forth’ \vith additional disclosures of the same sort.
“That when deponent left Bagwell’s office, after tliis meeting on RCay 10, 1962, he had no doubt whatsoever in Ms mind, as a result of the conversation with Bagwell, that the plans of deponent and defendant Stahlin to make the attack on Durant through, exhibit A would be relayed by Bagwell to other members of the Republican ■Action Committee and other people, not formally members of RAC ■but interested in seeing such an attack made. . - -
“That Bagwell was most enthusiastic, as a spokesman for his group, that somebody like deponent and defendant Stahlin were trying to ‘flush out’ Durant through such disclosures as were used in exhibit A; that this would bo very beneficial to the interest of Bagwell’s group; that in the area of disclosing information to deponent and defendant Stahlin, Bagwell was speaking for his group.
“That subsequent to leaving Bagwell on May 10, 1962, deponent returned to Lansing and wrote exhibit A, using material from the following sources:
“From Paul Bagwell — almost all of pages 2 and 3; forthcoming additional disclosures; improper use of party funds; racism and anti-Semitism; telephone intimidation; tampering with petitions; deceitful literature; meeting places and individual names; corroborating witnesses; general confirmation of all other items.
“From Glenn Engle — threats of physical violence, including the knife point incident; racism and anti-Semitism; corroborating witnesses; buying of candidates; general confirmation of all other items.
“From Donald DeRosen — threats of physical violence; improper use of party funds; buying of candidates; tampering with petitions.
“From Herman McKinney — threats of physical violence; intimidation ; racism and anti-Semitism; corroborating witnesses.
“From Jack Gibbs — buying of candidates; improper use of party funds; general confirmation of all other items.
“From Norm an Stockmeyer — improper use of party funds; threats of physical violence; buying of candidates; tampering with petitions; general confirmation of all other items.
“From nearly every facet of party leadership not heretofore mentioned — general confirmation of most if not all items. (By party leadership, deponent means a series of continuing conversations with individuals mentioned herein and others who expressed their alarm over the possibility of Richard Durant becoming chairman of Wayne county and supplied or confirmed gossip used in the preparation of exhibit A).
“That Paul Bagwell, at the meeting with deponent and defendant Stahlin hereinabove referred to, said that he had turned the information he presented to them over to George Romney and had urged Romney to make the disclosures earlier, but that Romney had refused, which refusal Bagwell characterized as an error, and that the reason Bagwell gave the material to deponent and defendant Stahlin was that it would help Bagwell and his associates in their coordinated and formally organized and sophisticated efforts to oust Durant from his position in the 14th District.
“That after writing exhibit A on the night of Thursday, May 10, 1962, deponent delivered copies to defendant Stahlin in the early morning of Friday, May 11, 1962, and then went directly to see Glenn Engle at the offices of The Detroit News; that an overriding consideration in writing exhibit A was to get publicity; that it was the consensus of deponent, Paul Bagwell and others that using the appeal to the fair campaign practices commission was a matter of publicity mechanics; that this was the most beneficial route to follow in terms of defendant Stahlin’s position as a candidate; that filing charges before a government body is an event which Was newsworthy, that deponent did not intend to, nor did he, mail a eopy of the complaint to the fair campaign practices commission until after he had ‘cleared’ the timing with The Detroit News and made sure ‘the skids were greased’ there; that he wanted the Sunday eir dilation fox- tire airing of the charges and would have held off making the charge's "public if The Detroit News could not have given him space that day; that he made the charges public when he did because the newspaper strike had just ended — there was no point in taking action if the papers were not publishing; and that defendant Stahlin, Glenn Engle and The Detroit News were aware of these factors in his decision' to make the charges at this time.
“Deponent further says that when he presented exhibit A to Glenn Engle, Engle skimmed over it and said, ‘I had better check with the head man on this’ indicating to the deponent that the decision as to whether to publicize it was too weighty for him to make alone; that Engle then took exhibit A to Martin Hayden, and that shortly thereafter deponent was also brought by Engle into Hayden’s office; that Hayden released deponent from ‘our’ exclusive, saying he wanted this story to have the widest possible publicity— ‘You are free to distribute this to other media’; and. that deponent did not mail a copy of exhibit A to the fair campaign practices commission until after'-he had left a copy or eopies with The Detroit News.
“That copies of exhibit A were mimeographed prior to deponent’s visit- to Glenn Engle aforesaid, and that after deponent’s visit to The Detroit News, he gave eopies to the Associated Press, United Press and-The Detroit Free Press; that at least one copy was given on that Friday, May 11, 1962, prior to the appearance of the story about the charges on Sunday, May 13, 1962, to one Sarah Luedders (Who had no connection with any news media) in the expectation that it would find its way into Durant’s hands; that the rest of Friday-and Saturday were spent in distribution of eopies; that after Súnday, May 13/1962, copies were given to a ‘standard’ PR mailing list,-' and to other individuals not connected with news media who fequ'ested eopies, including members of the Republican State Centra] Committee; and that deponent was aware by Sunday, May 13, 1962, that Bishop Marshall Reed, the chairman of the fair campaign practices commission, had not received any eopies of exhibit A by that day, and mailed him additional copies so that the FCPC received its Copy well .subsequent to May 13, 1962.
"•“That this widespread distribution, including ,the distribution to The Detroit News, was with the approval and knowledge of defendant -Stahlin.
“That subsequent to the publication of exhibit A, deponent was inftirmed by Arthur Elliott that it Would be okay for him to use the threat of action by the banking commissioner against Durant; that a suit was started against Durant in Newberry, Michigan, which Whs ;publieized; that prior thereto, deponent was informed by Paul Bagwell that there would be some sort of action forthcoming regarding Durant’s .personal ,business transactions; and that defendant Stahlin informed deponent that Charles Slay, the banking commissioner, was in touch with defendant Stahlin, giving Stahlin information about Durant’s personal business dealing with various banks of 'which Durant was a director,, and had informed defendant Stahlin that the banking department was also' ‘going to get’ Durant. ...■“And further , deponent saith not. -
“Charles Ferry”
Since the aets complained of occurred in May, 1962, Const 1908, art 2, ■§ § 2 and 4, were applicable.
New York Times Co. v. Sullivan (1964), 376 US 254 (84 S Ct 710, 11 L Ed 2d 686, 95 ALR2d 1412). The New York Times standard imposing constitutional limitations upon libel actions brought under State law is as follows (pp 279, 280) :
“The constitutional guarantees require, we think, a Eederal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
Curtis Publishing Co. v. Butts (1967), 388 US 130 (87 S Ct 1975, 18 L Ed 2d 1094), and its companion case, Associated Press v. Walker (1967), 388 US 130 (87 S Ct 1975, 18 L Ed 2d 1094). By a 5-to-4 vote the United States Supreme Court adhered “to the New York Times standard in the case of 'public figures’ as well as 'public officials.’ ” See the concurring opinion of Mr. Chief Justice Warren, 388 US 162, 164, joined in by Justices Brennan, White, Blaek, and Douglas as to parts I and IX.
While not dispositionally relevant to the ease before us, we note that the term “public figure” has been defined as a person who by his accomplishments, fame or mode of living, or by adopting a calling which gives the public a legitimate interest in his activities, affairs, and character, has become a “public personage,” i.e., a celebrity. See
; Prosser, Torts (3d ed, 1964), § 112, pp 844, 845; see, also, Cason v. Baskin (1947), 159 Ela 31 (30 So 2d 635); Grayson v. Curtis Publishing Co. (1967), 72 Wash 2d 999 (436 P2d 756); Dietemann v. Time, Inc. (CD Cal), 284 E Supp 925; News-Journal Company v. ■Gallagher (1967), — Del —• (233 A2d 166). Of course, the public figure stature must exist prior to the alleged libel and not by virtue of the notoriety created by it.
Nothing in the record indicates that plaintiffs were in fact “public figures.” In fact, defendant Hayden, who was the editor of the newspaper that published the alleged libel, and who was certainly in the best position to know the identities of “public persons” in the community, deposed that he “was not acquainted with plaintiff herein.” We cannot agree with the circuit judge’s facile reasoning that “some [of the plaintiffs] may have been, were, or are precinct delegates” and thus “a public person.” This reasoning is unsupported by the proofs necessary to make such a finding of fact and is, at best, a conclusionary observation.
We note with great interest that it is more than mere coincidence that the Federal authorities have consistently, under both the New York Times Co. v. Sullivan and Curtis Publishing Co. v. Butts standards, refused to grant summary judgment (see, e.g., Goldwater v. Ginzburg [SD NY, 1966], 261 F Supp 784; Walker v. Courier-Journal and Louisville Times Company, Inc. [CA 6, 1966], 368 F2d 189), or reviewed the case only after a full trial was held (see, e.g., New York Times Co. v. Sullivan, supra; Rosenblati v. Baer [1966], 383 US 75 [86 S Ct 669, 15 L Ed 2d 597]; Curtis Publishing Co. v. Bults, supra). | [
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] |
T. M. Kavanagh, J.
Plaintiff-appellant, Detroit Automobile Inter-Insurance Exchange, hereafter called the “Exchange,” appeals from summary judgment entered by the- circuit court and the affirma tion of the summary judgment by the Court of Appeals. 10 Mich App 726.
The alleged cause of action arose when defendant Odell Small, hereafter referred to by name, collided with a car owned and driven by plaintiff Louis Gerard, hereafter referred to by name, while she was en route to a post office to pick up the mail of her employer, defendant-appellee Paragon Steel Corporation, hereafter called “Paragon.”
' When Odell Small commenced her employment with-Paragon she was required to report for work at 8 a.m. At that time the corporation had the daily mail delivered to its office. Subsequently, Paragon rented a box at the post office located in the city of Detroit on Livernois near McNichols road, and instructed her to pick up the daily mail in her own car before coming to the office.
Odell Small testified that she would time her departure from her home so that she would arrive at the post office at approximately 8:15 a.m., when the mail would be ready. She further testified that' in order to pick up the mail at the post office on Liver-nois, she regularly traveled south on Schaefer road and turned left from Schaefer on one of the residential or side streets to Outer Drive, and over Outer Drive to Livernois at a point north of Seven Mile road, where she would make a right turn and drive in a southerly direction on Livernois to the post office near McNichols road. After picking up the mail she continued in a southerly direction to Fullerton avenue and went east on Fullerton to Paragon’s office.
Odell Small further testified that on the morning of April 25, 1960, she proceeded, as usual, to pick up Paragon’s mail using her regularly '.traveled route. However, according to her testimony, she planned on picking up a friend who lived on Schaef er roa.d and dropping her off at Livernpis and Seven Mile road. As she was making her ■ approach to turn-left.-into her friend’s driveway,- the collision occurred-. Soon after -the. accident, Odell Small telephoned Paragon’s office manager and said, “John, you will have to get somebody else to pick up the mail. I was in an accident.”
' Louis Gerard started a negligence action against Odell Small and Paragon alleging' as to Paragon that- it. ..was vicariously liable for the wrongful acts .of:-its- employee. Odell Small filed no appearance or ánswer. ’ .
The Exchange, "as insurer of Louis Gerard’s automobile, upon payment of the collision damage, received a partial assignment- of his claim and intervened in the action.-
Paragon moved for summary judgment of no cause of action; which motion was granted July 1, 1966. The Exchange 'had not received-notice of the motion for summary judgment.' Therefore, Paragon brought a second motion for summary judgment urging that there was no genuine issue as to any material fact regarding its responsibility for the alleged negligence of Odell Small since she was n,pt in the course of her, employment. The trial judge, entered an order granting summary judgment of no cause of-action in favor of Paragon. .
The Exchange took an appeal to the Court of Appeals asking that -the summary judgment be set aside and for a partial summary judgment declaring that Paragon was vicariously liable for the negligence, if any,-of Odell Small. The Court of Appeals denied the appeal, -holding her employment did not begin until she arrived af the post office. 10 Mich App 726. The: Exchange is here on leave granted. 381 Mich 766.
Paragon argues in this Court that Odell Small-was not in the course of her employment until' she. reached the post office to pick up the mail. The Exchange contends that under the doctrine of respon-deat superior Paragon is liable for the alleged negligence of Odell Small. It claims that the instant case presents facts placing it within an exception to the general rule, i.e., the employer was controlling the employee’s personal mission of going to work with a duty expressly directed by the employer. Thé-Exchange emphasizes the fact that Odell Small formerly commenced work at 8 a.m., and that a definite arrangement was made by the employer' requiring her to pick up the mail shortly after 8:15 a.m.
Where material facts are at issue, summary judgment will not lie. International Chemical Workers Union, Local 179, AFL-CIO, v. Swenor (1962), 368 Mich 658; Tripp v. Dziwanoski (1965), 375 Mich 619; Durant v. Stahlin (Appeal re Van Dusen, Elliott, Romney) (1965), 375 Mich 628; Brooks v. Fields (1965), 375 Mich 667; McCoy v. DeLiefde (1965), 376 Mich 198.
The testimony in the instant case indicates that Odell Small was en route to the post office to pick up the mail for Paragon, pursuant to Paragon’s instructions. If there were any “deviation” as a matter of law it would have to be the left turn toward the driveway to pick up her friend. Whether this constituted a deviation from her regularly traveled route is a material fact upon which reasonable minds might differ. Prom all the facts and reasonable inferences therefrom, reasonable minds might find that at the time of the accident she was “about her master’s business,” and therefore in the course of her employment. See Nord v. West Michigan Flooring Co. (1927), 238 Mich 669; Moore v. Palmer (1957), 350 Mich 363, and cases cited therein; Haring v. My rick (1962), 368 Mich 420; Bajdek v. Toren (1969), 382 Mich 151.
Since a question of fact as to whether Odell Small was in the course of her employment was raised on the record, summary judgment should not have been granted.
The judgment of the Court of Appeals and the summary judgment of the circuit court are reversed and the case remanded for further proceedings. The' Exchange shall have costs of both appellate courts.
.. Dethmers, Kelly, Black, Adams, and T. Gr. Kav-anagh, JJ., concurred.
,T..E. Brennan, O. J., did not sit.
See GCR 1963, 117.2(3), | [
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Adams, J.
On March 7, 1967, plaintiffs filed a complaint with the Court of Appeals in which they sought an order to require defendant to show cause why a writ of mandamus should not issue directed to the State highway commission and commanding it to institute an action to ascertain and determine the damages to plaintiffs’ property as a result of establishment of the right-of-way and construction of the 1-94 expressway.
The complaint stated that plaintiffs were the owners of a lot in the city of St. Clair Shores located at the northwest corner of Edmunton drive and Mauer drive; that the lot had an 80-foot frontage on Mauer drive and a side lot of 100 feet; and that their residence fronted on Mauer drive. A drawing prepared by the Michigan State highway department was attached to the complaint and is displayed herein.
Plaintiffs sought to compel a proceeding by defendant to ascertain “damages and compensation both for actual taking and for inverse condemnation as the direct result of the establishment of the right-of-way for said 1-94 expressway.”
On June 23,1967, the Court of Appeals denied the complaint without prejudice to the right of plaintiffs to file a claim with the court of claims. On October 4,1967, this Court granted leave to appeal (379 Mich 781).
Mandamus Not Plaintiffs’ Remedy.
The general principles which warrant the issuance of a writ of mandamus have been discussed by this Court in numerous cases. Mandamus ordinarily will not issue unless the defendant is under a clear legal duty to act and unless the complainant has no other adequate remedy. See People v. Judges of the Jackson Circuit Court (1844), 1 Doug (Mich) 302; Coffin v. Board of Education of Detroit (1897), 114 Mich 342; Waterman-Waterbury Co. v. School District No. 4 of Cato Township (1914), 183 Mich 168; Sumeracki v. Stack (1934), 269 Mich 169; and Toan v. McGinn (1935), 271 Mich 28.
Defendant stresses that plaintiffs had a remedy in the Michigan court of claims under the provisions of the court of claims act, chap 64, RJA (MCLA § 600.6401 et seq. [Stat Ann 1962 Rev § 27A.6401 et seq.]), section 6419 providing that the jurisdiction of the court of claims over certain claims and demands shall be exclusive.
In Thom v. State Highway Commissioner (1965), 376 Mich 608, this Court held that a property owner had such a remedy. In that case, plaintiff’s farm was damaged by the action of the State highway department in raising the grade of a public highway which, abutted the home and outbuildings of the farm. It was held that suit in the court of claims to recover for such damage was proper.
Since we deem the precise nature of plaintiffs’ claims for actual taking and for inverse condemnation of importance to our decision, we quote in full paragraphs 5 and 6 of plaintiffs’ complaint in which the same are set forth:
“5. That prior to the establishment and construction of Edsel Ford expressway (1-94), Mauer drive provided access to lands and thoroughfares lying to the east of petitioners’ properties, but since the establishment of said expressway petitioners’ lands and premises have been damaged in the following particulars:
“(a) As above stated, all access to lands easterly of petitioners’ property has been obliterated by said expressway; and the only means of ingress and egress is westerly to Beaconsfield avenue, so-called, and thence southerly to Eight Mile road or northerly to Nine Mile road;
“(b) The right-of-way for Mauer drive, so-called, formerly a public thoroughfare, constituted part of petitioners’ property subject to public travel, and such right-of-way has been diminished to the extent that the same provides substantially a front and side drive for a residence building northerly of petitioners’ property and on Lot 110 of Notre Dame Woods Subdivisions No. 2, and likewise Edmunton drive has been dead-ended at the expressway right-of-way, as appears on petitioners’ exhibit A’.
“6. That the Edsel Ford expressway is a depressed highway to the extent of about four feet below and above average grade and a bank is created approximately four feet above the grade of petitioners’ property, along and near the crest of which the defendant has constructed a fence, creating a rear yard effect for the front of petitioners’ property.”
In their application for leave to appeal, this statement of those claims is made:
“Prior to the establishment and construction of 1-94, Mauer drive provided access to lands and thoroughfares to the east of the Hills’ property, but this access has now been removed by reason of the fact that both Mauer drive and Edmunton drive are dead-ended at the 1-94 right-of-way. * * * As a result, the means of ingress and egress has been cut down; the right-of-way for Mauer drive, which constituted part of Hills’ property, subject to the right of public travel, has been diminished to the extent that it provides substantially a front and side drive for a residence immediately to the north of Hills’ property, on Lot 110 of Notre Dame Woods Subdivision No. 2; and a bank has been created along 1-94 about 4 feet above the grade of Hills’ property, creating a rear yard effect for the front of their property.”
We do not base our decision herein so much upon the adequacy of plaintiffs’ remedy in the court of claims as we do upon the tenuousness of the claims themselves. In a case in which there was a clear fact situation of an unconstitutional taking of private property, the argument of an adequate remedy in the court of claims might not prevail. Here, however, no actual physical taking of any portion of plaintiffs’ property is pled or shown.
1. Plaintiffs’ right of ingress and egress on Mauer drive, though closed to the north, remains open to the south. On Edmunton drive, though closed to the east, it remains open to the west. In this respect, plaintiffs make no showing that they are differently treated from other members of the traveling public or property owners whose use of these streets has been restricted by the construction of the limited access expressway.
2. The right-of-way for Mauer drive, constituting part of plaintiffs’ property subject to the easement for public travel, remains unaltered along plaintiffs’ property line. No change in plaintiffs’ property right is shown to have occurred as a result of construction of the expressway.
3. The defendant’s creation of a rear yard effect for the front of plaintiffs’ property by constructing a bank approximately four feet above the grade of plaintiffs’ property on the right-of-way may ór may not amount to a taking of plaintiffs’ property within the principles stated in Thom and cases therein cited and discussed. If plaintiffs’ claims have merit, they are of such a nature as to establish a constructive rather than an actual taking of plaintiffs’ property. This is the crux of the case. Determination of that question (it being the contention of defendant that there has been no taking whatsoever) can come only after a full testimonial hearing. In circumstances such as these, plaintiffs’ remedy is by an action in the court of claims in order that a determination may be made as to whether a taking has occurred and, if so, plaintiffs’ damage from the same.
Right to a Jury in a Condemnation Proceeding.
Finally, while plaintiffs concede they have a remedy in the court of claims, they assert that it is not adequate because the amount of damages cannot be determined by a jury in such a proceeding. Plaintiffs ask that the State highway commission be required to proceed under an act for condemnation by State agencies and public' corporations, being PA 1911, No 149. Section 8 of that act (CL 1948, § 213-.28 [Stat Ann 1958 Rev § 8.18]) provides for a jury of 12 freeholders. The court of claims act provides ■: “The case shall be heard by, the judge without ■ a jury.” CLS 1961, § 600.6443 (Stat Aim 1962 Rev § 27A.6443).
Const 1908, art 13, § 2, required a jury of 12 freeholders, or by not less than three commissioners, to determine necessity and just compensation to be made for property taken for the use or benefit of the public “except when to be made by the state.” Const 1963, art 10, § 2, provides:
“Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record.”
The attorney general points out that some condemnation statutes provide for different modes of assessing damages than by a jury, such as by three commissioners. This is provided for by section 13 of an act for purchase and condemnation of private property for public highway purposes. PA 1925, No 352.(CL 1948, §.213.183 [Stat Ann 1958 Rev § 8-1184]). The State highway commissioner is authorized to institute proceedings in this manner by CL 1948,. ■§ 225.2b (Stat Ann 1958 Rev §9.204). Since neither the Constitution of 1908 nor 1963 provides a -constitutional :right to a jury in a condemnation hearing and since there is statutory authority for nonjury proceedings by the highway commission, the plaintiffs' claim of a right to a' determination of damages 'by-a jury is without merit. See City of Dearborn v. Michigan Turnpike Authority (1955), 344 Mich 37, 64; Fitzsimons & Galvin, Inc., v. Rogers (1928), 243 Mich 649, 661, 662.
The Court of Appeals did not err in denying plaintiffs’ complaint. It is affirmed. No costs.
T. E. Brennan, C. J., and Dethmers, Kelly, T. M. Kayanagh, and T. Gr. Kavanagh, JJ., concurred with Adams, J.
Black, J., concurred in the result.
See GCR 1963, 714.—Reporter.
The office of State highway commissioner was abolished and the powers and duties of that office transferred to and vested in the State highway commission by PA ,1964, No 286, § 2 (MOLA -§ 247(802 [Stat Ann 19'69 Cum Supp § 9.216(2)]). | [
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Brickley, J.
This case requires interpretation of the "practice of chiropractic” under the licensing provision of the Public Health Code as it relates to the use of x-ray in other than the spinal area, the giving of a general physical examination including the analysis of hair and urine samples, the execution of an employee health record, the use of galvanic current, ultrasound, and diathermy, and the dispensing of vitamins to patients.
We hold that the dispensing of vitamins is within the practice of chiropractic, that the record is not sufficiently developed to decide the applicability of the statute as to the use of galvanic current for diagnostic purposes, but concur with the Court of Appeals that the remaining enumerated practices fall outside of the chiropractic statute. We find, however, that the issuance of an injunction against these practices, merely because they are not included within chiropractic, is in error, and we remand for an opportunity to establish that they constitute the unlicensed practice of medicine, or some other "violation” of article 15 of the Public Health Code so as to justify an injunction. MCL 333.16291(1); MSA 14.15(16291)(1).
I
Background
This case arises as a result of visitations by an investigator employed by the Department of Licensing and Regulation, at the office of Dr. James Beno, a licensed chiropractor. In his first visit to the office in March of 1977, the investigator complained of low back pain and a sore elbow. He completed a personal data card and history sheet. The appellant then took a series of four x-rays of the lower back and four x-rays of the right elbow and asked the investigator-patient to return at a later date.
A second visit occurred a week later, at which time appellant performed a physical examination, which included a taking of the patient’s blood pressure, a reading of his pulse, and an examination of his lungs, eyes, ears, nose, throat, mouth and heart. Dr. Beno further performed a series of neurological tests by tapping with a rubber hammer and palpating various portions of the investigator’s anatomy. A urine specimen was obtained. Next, the appellant photographed the investigator’s spinal area with a polaroid camera in a process called contour analysis. The patient was then placed on a table where Dr. Beno, using a Rich-MAR galvanic stimulator,^ sought trigger points or hypersensitive neurological irritants in his back. Following the proceedings, he was asked to return with his spouse to discuss treatment.
With a female investigator posing as his wife, the investigator returned for a third office call five days later. Dr. Beno described the patient’s spine as being slightly twisted and one hip as being higher than the other. This was explained as a problem involving an L-5-S-1 subluxation, and the doctor presented the patient with a proposed treatment plan. The treatment plan was said to have an eighty-nine percent probability of complete recovery based on similar conditions in other patients. Therapy would include adjustments to free pinched nerves, ultrasound to reduce irritation, and, to accelerate healing, deep massage and diathermy would be used. Also included in the therapy would be intersegmental traction to tighten ligaments and stabilize joints, galvanic currents to release trigger points, a second set of x-rays and complete examination, as well as oral intake of Nuclix, a dietary supplement containing vitamins and minerals, in order to rebuild back ligaments. Compensation was discussed.
During this third visit, Dr. Beno executed a form employee health record indicating that the investigator was approved for employment. He put check marks under the category "normal” for numerous aspects of the investigator’s health, including heart, chest-lungs, abdomen, eyes, head, and skin. Dr. Beno signed the form in a box marked "examining physician,” but with the letters "D.C.” following his signature. In the course of his testimony Dr. Beno revealed that while he did not do so on this occasion, he also frequently used hair sample analysis in his patient work-up.
In September of 1977, appellee filed a complaint in circuit court seeking to enjoin defendant from engaging in certain practices mentioned above. At the time the action was commenced, the practice of chiropractic was defined in the chiropractic act, MCL 338.151 et seq.; MSA 14.591 et seq. The act was subsequently repealed and replaced by the Public Health Code, 1978 PA 368, effective September 30, 1978, MCL 333.1101 et seq.; MSA 14.15(1101) et seq. See MCL 333.16401 et seq.; MSA 14.15(16401) et seq.
Following an initial hearing, the circuit court, on January 23, 1978, issued a preliminary injunction which remained in effect until the effective date of the Public Health Code, September 30, 1978. After the code became effective, the circuit court, on motion of appellant, dissolved the preliminary injunction and remanded the matter to the Department of Licensing and Regulation, Board of Chiropractic, for an "advisory opinion” concerning whether the procedures conducted by Dr. Beno were violative of the new code provisions regarding chiropractic practice.
Hearings were then held before an administrative law examiner who issued findings of fact and conclusions of law. The board reviewed the matter on the record and on January 27, 1981, entered an opinion which separately addressed each of the practices conducted by appellant.
In May of 1981, the circuit court entered an order that further proceedings in the case were to be treated as an appeal from an administrative agency. On November 2, 1981, the circuit court issued an opinion finding that the challenged procedures conducted by appellant were outside the scope of chiropractic practice as defined in the Public Health Code. On November 19, 1981, the court permanently enjoined defendant from engaging in those practices.
The Court of Appeals affirmed the trial court’s order permanently enjoining defendant from engaging in the practices determined to be outside the scope of chiropractic practice. Attorney General v Beno, 124 Mich App 342; 335 NW2d 31 (1983).
We granted defendant’s application for leave to appeal on May 17, 1984. 419 Mich 877.
II
Findings of Lower Tribunals
Defendant’s practices and procedures that were ultimately enjoined were treated in the following manner in the course of the development of the record before us.
The hearing officer, Board of Chiropractic, trial court, and the Court of Appeals found that the taking of x-rays of the elbow exceeded the scope of the practice of chiropractic. The hearing officer, trial court, and the Court of Appeals found that the giving of a general physical examination and the use of urine and hair samples also exceeded the scope of chiropractic, but the board found their use to be within the practice of chiropractic. The hearing officer and the board were in agreement that the execution of an employment approval physical form was within the purview of chiropractic under the act, but the trial court and the Court of Appeals found it to be outside the act.
All four bodies found the use of ultrasound, diathermy, and galvanic procedures to be outside the practice of chiropractic, with the exception that the board held that the galvanic current procedure could be used for diagnostic purposes.
Finally on the question of the prescription and sale of vitamins, the hearing officer and the board found it within the scope of chiropractic, while the courts disagreed.
Ill
Analysis
The appellant points out that the approach of the lower tribunals was to examine each of the practices and procedures complained of by testing them against the statutory definition of the practice of chiropractic, and to the extent they were found not to be defined therein they were consid ered to be unlawful. He argues persuasively, we find, that the purpose of the licensing statute is not to prohibit the doing of those acts that are excluded from the definition of chiropractic, but to make it unlawful to do without a license those things that are within the definition. In other words, appellant’s activities are not automatically enjoinable merely because they are not within the scope of chiropractic practice. Rather, an injunction is only proper, under article 15 of the Health Code, upon a finding that the practices complained of constitute a "violation” of a statute or rule promulgated under article 15. MCL 333.16291(1); MSA 14.15(16291)(1). An obvious example of en-joinable activities are those that constitute the practice of medicine where the actor is without a medical license to do so. MCL 333.17001(c); MSA 14.15(17001)(c).
The Attorney General does not dispute appellant’s contention in this regard, but rather argues that all of these activities that were enjoined were outside of chiropractic and that despite no such finding below we should find as a matter of law that they amounted to the practice of medicine without a license.
The practice of medicine is defined as
the diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, or other physical or mental condition, by attendance, advice, device, diagnostic test, or other means, or offering, undertaking, attempting to do, or holding oneself out as able to do, any of these acts. [1978 PA 368, § 17001(l)(c); MCL 333.17001(l)(c); MSA 14.15(17001)(l)(c).]
We find appellant’s argument to be obviously valid. The chiropractic statute does not prohibit the exercise of any non-chiropractic health-care activity. It only defines chiropractic and requires a person who practices it to be licensed. MCL 333.16411; MSA 14.15(16411).
It may well be that some or all of defendant’s activities that are found to exceed the more limited practice of chiropractic amount to the practice of medicine under the broad statutory definition of that discipline. In that case, assuming that defendant is not also licensed to practice medicine, the activities in question would be enjoinable. MCL 333.16291(1); MSA 14.15(16291X1). However, minus findings to that effect and absent opportunities for the defendant to dispute this assumption, we are reluctant to make that finding on this record.
Our analysis, as a result, will focus on the question whether the practices in question are within the practice of chiropractic. To the extent they are not, we will remand for an opportunity for the plaintiff to establish that the defendant has engaged in the practice of medicine without a license.
We begin then with an analysis of the definition of the practice of chiropractic and measure against it the complained of practices.
The practice of chiropractic is delineated in MCL 333.16401(1); MSA 14.15(16401X1), which provides, in pertinent part:
(b) "Practice of chiropractic” means that discipline within the healing arts which deals with the nervous system and its relationship to the spinal column and its interrelationship with other body systems. Practice of chiropractic includes:
(i) Diagnosis, including spinal analysis, to determine the existence of spinal subluxations or misa-lignments that produce nerve interference, indicating the necessity for chiropractic care.
(ii) The adjustment of spinal subluxations or misalignments and related bones and tissues for the establishment of neural integrity utilizing the inherent recuperative powers of the body for restoration and maintenance of health.
(iii) The use of analytical instruments, nutritional advice, rehabilitative exercise and adjustment apparatus regulated by rules promulgated by the board pursuant to section 16423, and the use of x-ray machines in the examination of patients for the purpose of locating spinal subluxations or misaligned vertebrae of the human spine. The practice of chiropractic does not include the performance of incisive surgical procedures, the performance of an invasive procedure requiring instrumentation, or the dispensing or prescribing of drugs or medicine.
A. Diagnostic X-Ray and Treatment of Elbow Because the investigator-patient complained of a sore back and right elbow, Dr. Beno took four x-rays of the right elbow and, before the administrative law examiner, testified that had the investigator returned, he would have done a "further examination” of the elbow including an "orthopedic evaluation.” The inquiry on the further examination would have been into whether the elbow pain was caused by a local disorder (i.e., whether the pain originated in the elbow) or by a spinal sublux-ation or misalignment.
The trial court enjoined defendant from "diagnosing or attempting to diagnose other than spinal subluxations or misalignments which produce nerve interference” and from "treating or attempting to treat, or x-raying or attempting to x-ray an elbow.”
Defendant asserts that chiropractors are authorized to diagnose an elbow ailment to determine if its cause is local (i.e., originates in the elbow area) or results from nerve interference created by spinal subluxations or misalignments. At the hearing, defendant testified that pain in an extremity, such as an elbow, can be caused by spinal subluxations or misalignments. He further stated that it is medically impossible to determine whether the cause is local or spinal without an examination and diagnosis ruling out a local cause for the ailment. (This process of elimination is sometimes referred to as differential diagnosis, as will be later discussed.)
Section 16401(l)(b)(i), cited by defendant as the statutory basis of his authority to x-ray and examine an elbow, provides in part: "[pjractice of chiropractic includes: (i) Diagnosis, including spinal analysis, to determine the existence of spinal sub-luxations or misalignments that produce nerve interference, indicating the necessity for chiropractic care.” Defendant claims that the words "that produce nerve interference” mean that chiropractors may examine ailments in areas other than the spine to determine whether spinal subluxa-tions or misalignments are producing nerve interference and thus causing the non-spinal ailment.
The appellee, Attorney General, cites the same provision as defendant, but argues that "the treatment of or attempt to treat an extremity falls outside the statutory authority of a chiropractor and constitutes the practice of medicine.” Appellee also cites § 16401(l)(b)(iii) which provides in part:
(b) Practice of chiropractic includes:
(iii) . . . the use of x-ray machines in the examination of patients for the purpose of locating spinal subluxations or misaligned vertebrae of the human spine. [Emphasis added.]
The Attorney General contends that if the Legis lature had intended other uses of x-rays by chiropractors, it could have authorized such use for other purposes, such as ruling out a localized problem as producing pain. But, he argues that under the statute chiropractors may only use x-rays for one purpose — to locate spinal subluxations or misaligned vertebrae of the human spine. Thus, the Attorney General concludes, "[i]f a chiropractor wants to rule out a localized problem as a possible producer of pain, he should refer the patient to a physician whose extended training qualifies him to diagnose and treat areas of the body other than the spine.”
The Attorney General also cites Cotter v Blue Cross, 94 Mich App 129, 133; 288 NW2d 594 (1979), lv den 408 Mich 947 (1980). In Cotter, Blue Cross and Blue Shield of Michigan sent notice to the plaintiff subscribers that any "[diagnostic x-rays of other than the spine ordered and/or performed by a chiropractor” would be excluded from coverage. At that time chiropractors were authorized to "use x-ray and such analytical instruments as are approved by [the board] in the examination of patients solely for the purpose of locating misaligned or displaced vertebrae of the human spine and for the procedures preparatory thereto.” (1933 PA 145 as amended, MCL 338.156; MSA 14.596.) The Court of Appeals in that case, without analysis, upheld the trial court’s grant of summary judgment in Blue Cross’s favor with the effect that it affirmed the trial court ruling that x-rays of other than the spine were outside the scope of chiropractic as then defined. .
The hearing officer in this case stated that
[t]o the extent that a [chiropractor] upon examination of the spinal column can identify a problem in another extremity arising from and as a result of a condition in the spinal column then it would be permissible for the chiropractor to provide treatment to address the problem in the spinal column that may interreact with other portions of the body system. However, that does not imply that one can diagnose problems in other extremities including diagnostic x-rays of those extremities purportedly on the basis that those extremities are somehow interrelated with the total nervous system and the spinal column.
[U]nless the diagnosis and treatment of the spinal column would address the symptoms in the other extremities, a chiropractic practitioner would be precluded from diagnosing and treating the symptom in the other extremity. [Emphasis in original.]
The hearing officer held that "x-ray of an elbow is outside the scope of chiropractic,” stating, "[t]he statute is clear and it stretches logic as to how the x-ray of a right elbow is in any way encompassed by the [language of the statute].”
The Board of Chiropractic held:
A chiropractor may use symptoms affecting the right elbow of the patient as a part of an examination to determine whether the affliction may be caused by spinal subluxations or misalignments that produce nerve interference. It is quite possible that a patient presenting symptoms involving the right elbow may have nerve interference which is causative of, or contributory to, the elbow problem. While it is true that the chiropractor may only treat by directly affecting the spine, diagnosis may involve other parts of the body since the nerve network, efferent from the spinal column, affects other parts of the body. The chiro- praetor is not diagnosing the right elbow problem to determine whether there is something that needs to be treated by him in the elbow, but only for the purpose of determining nerve interference related to the spine. The chiropractor may not directly treat the elbow, nor would he want to. The chiropractor would remove nerve interference through spinal adjustment to effectuate improvement in the condition of the elbow which was related to the nerve interference.
If the diagnosis indicates no nerve interference as the cause of the elbow problem, the chiropractor would refer the patient to another health care provider who would diagnose the specific cause of the problem.
They conclude that x-ray of the elbow is not within the scope of the practice of chiropractic.
The board implicitly agreed with appellant’s contention that by medical necessity the chiropractor must diagnose or examine the elbow to determine whether the elbow problem is caused by nerve interference related to the spine. Yet, according to the board, the chiropractor still may only treat the spine, not the elbow. The board’s conclusion is based on its premise that "the nerve network, efferent from the spinal column, affects other parts of the body.” The board seemed to say that since by statutory definition "the practice of Chiropractic [is that discipline] which deals with the nervous system and its relationship to the spinal column and its interrelationship with other body systems,” chiropractors are authorized to diagnose "other body systems” to determine whether problems therein are caused by the "nervous system” which is centered in the spinal column.
The trial court held:
Both the treatment and the X-rays of an elbow are also outside the scope of chiropractic as statutorily defined. It stretches credibility to conclude that the elbow is so related to the spine that spinal subluxations or misalignments may produce nerve interference in the elbow. The logic of this position would extend chiropractic through the entire body and even the brain! Certainly, that was not the intention of the legislature. Likewise, under MCL 333.16401(l)(b)(iii) [MSA 14.15(16401)(l)(b)(iii)] the use of X-ray machines in the examination of patients is for the purpose of locating spinal subluxations or misaligned vertebrae. The elbow contains neither misaligned vertebrae nor spinal subluxations.
The trial court thus rejected the defendant’s contention that nerve problems in the elbow can be based in spinal subluxations or misaligned vertebrae.
The Court of Appeals held:
Under § 16401(l)(b)(i), diagnosis is for the limited purpose of determining the existence of spinal subluxations or misalignments that produce nerve interference, indicating the necessity for chiropractic care. We recognize that nerve interference efferent the spinal column may produce symptoms in other parts of the body. Where a patient indicates pain in his elbow, the chiropractor may examine the elbow, but only for the purpose of determining whether the symptom is caused by nerve interference related to the spine. The chiropractor may remove the nerve interference through spinal adjustment, but may not directly treat the elbow.
Concerning the x-ray of a patient’s elbow, § 16401(l)(b)(iii) specifically limits the use of x-ray machines in the examination of patients "for the purpose of locating spinal subluxations or misaligned vertebrae of the human spine.” Since the x-ray of a patient’s elbow cannot conceivably be for the purpose of locating spinal subluxations or misaligned vertebrae, it is not authorized by the statute. [Emphasis in original. 124 Mich App 348.]
Unlike the trial court, the Court of Appeals accepted the appellant’s view when it acknowledged that "nerve interference efferent the spinal column may produce symptoms in other parts of the body.” While the Court held that a chiropractor may "examine” the elbow, "but only for the purpose of determining whether the symptom is caused by nerve interference related to the spine,” it upheld the trial court’s injunction.
The defendant now asserts that since he can perform "diagnosis ... to determine] the existence of spinal subluxations or misalignments that produce nerve interference . . .,” he must be able to examine and diagnose the parts of the body where nerve interference may be manifesting itself, especially since the practice of chiropractic concerns "the nervous system and its relationship . . . with other body systems.”
Before answering that question, we express several observations that guide our interpretation of the statute. First, an examination of MCL 333.16401; MSA 14.15(16401) in its entirety manifests to us an intent to carve out of the healing arts genre a limited profession known as chiropractic. While "practice of chiropractic . . . deals with the nervous system” in relation to the rest of the body, the diagnosis and treatment provisions of the act focus specifically on spinal subluxations or misalignments. MCL 333.16401(l)(b)(i), (ii); MSA 14.15(16401)(l)(b)(i), (ii). The act does not contain the general, all encompassing terms found in the section of the code pertaining to the practice of medicine.
Second, MCL 333.16401(2); MSA 14.15(16401X2) provides that interpretation of the chiropractic section is guided by general definitions and principles of construction in article 1 of the Public Health Code. One of the paramount rules of construction provides that "[tjhis code shall be liberally construed for the protection of the health, safety, and welfare of the people of this state.” MCL 333.1111(2); MSA 14.15(1111)(2).
Where there are hazy lines between the jurisdiction of health-care professions, we think the public health and safety is best protected by more strictly construing the jurisdiction of the more specialized and limited health profession in favor of the more comprehensively trained and licensed profession. It would seem to be more in keeping with public protection to have the broader discipline making diagnostic observations about those things within the specialties of the narrower discipline, rather than vice versa. See Anno: Scope of practice of chiropractic, 16 ALR4th 58.
The defendant here wants to be able to examine the elbow to determine if there is nerve interference. While it is not directly established in the record, we are indirectly led to believe from the testimony that the existence of a spinal subluxation or misalignment cannot be observed by examination of areas away from the spine that may be experiencing the pain of nerve interference. Rather the existence of subluxations or misalign-ments of the spine can only be observed where they exist. This reading of the record is fortified by the defendant’s own brief where it is stated: "[a]nd it is absolutely medically necessary to at times x-ray other parts of the body, other than the spine, if the chiropractor is to accurately diagnose which of the subluxations shown on x-ray is the cause of the patient’s complaint. That may only be done by the elimination of localized problems, such as fracture or bone abnormality.” Only by the process of elimination of other possible maladies (differential diagnosis) can the chiropractor then advise the patient that the pain in the elbow was caused by the spinal difficulty, which itself can only be directly observed in the spinal area.
It could be helpful for the patient to know the consequences of his subluxation or misalignment, and it may influence the desirability of chiropractic treatment. Presumably, it would also help the chiropractor explain why spinal treatment will not in given situations cure painful symptoms. Nevertheless, to allow this kind of diagnosis would require the chiropractor to recognize other maladies that are possible in many other parts of the anatomy and, in such case, lead the patient to believe that a definitive diagnosis relating to those other maladies that may be causing symptoms has been received. ***** We do not believe the Legislature intended to authorize such diagnostic techniques.
In early drafts of the Public Health Code, such differential diagnosis was included as part of the practice of chiropractic. Substitute House Bill 6306, § 16401(l)(b), 1976, provided in part:
"Practice of chiropractic” means that discipline within the healing arts which deals with the nervous system and its relationship to the spinal column and its interrelationship with other body systems. It utilizes differential diagnosis and spinal analysis to determine the existence of spinal subluxations or misalignments that produce nerve interference, or the necessity for referral to other health care professionals, and the adjustment of spinal subluxations or misalignments and related bones and tissues for the establishment of neural integrity utilizing the inherent recuperative powers of the body for the restoration and maintenance of health. It includes the use of analytical instruments, nutritional advice, rehabilitative exercise and adjustment apparatus regulated by rules promulgated by the board of chiropractic pursuant to section 16423 and the use of x-ray machines in the examination of patients for the purpose of locating spinal subluxations or misaligned vertebrae of the human spine. As used in this subdivision, "differential diagnosis” means the determination of the necessity of chiropractic care or the referral to other health care professionals by the use of spinal analysis, physical examination, or interpretation of referred diagnostic procedures. [Emphasis added.]_
The rejection of this "differential diagnosis” language by the Legislature convinces us that the drafters did not intend that chiropractors be authorized to diagnose or rule out the existence of localized non-spinal ailments in areas such as the elbow. In addition, the House rejected the following language which was proposed as an amendment to § 16401:
[The practice of chiropractic includes:]
Advising a patient to consult a health professional licensed under another section of this act in the event the patient’s condition cannot in whole or in part, be treated under this part. [1977 Journal of the House 1694.]
Similarly in the Senate an amendment was offered and defeated which would have changed the present wording of § 16401(l)(b)(i) to a broader use of diagnosis by omitting the italicized words in the following sentence:
Diagnosis ... to determine the existence of spinal subluxation or misalignments that produce nerve interference indicating the necessity for chiropractic care. [1978 Journal of the Senate 1422.]
Thus, aside from any asserted competence to diagnose localized ailments in areas such as the elbow or kidney, the Legislature’s rejection of these proposed changes indicates an intent that the scope of the practice of chiropractic not include the duty to originally diagnose non-spinal ailments to determine whether they are treatable by chiropractic or whether the treatment should be done by another health-care professional.
Moreover, § 16401(l)(b)(iii) states that practice of chiropractic includes "the use of x-ray machines in the examination of patients for the purpose of locating spinal subluxations or misaligned vertebrae of the human spine.” Because of our conclusion above that the Legislature rejected the intent to authorize chiropractors to make differential diagnosis, this statute must be construed in a positive sense. That is, x-rays may be used to locate where subluxations or misalignments are in the spine, not for the purpose of ruling out local problems. Also, if there had been an intent to allow the use of x-ray in areas other than the spine the Legislature could have so stated rather than limiting the use to the "purpose of locating spinal subluxations.”
Perhaps to avoid this exact holding, an amendment was offered and voted down in the House that would have changed § 16401(l)(b)(iii) to read in part:
[The practice of chiropractic includes] the use of x-ray machines in the examination of patients as generally used in the practice of chiropractic. [1977 Journal of the House 1694.]
The rejection of this broad language in favor of the more narrow wording restricting the purpose of x-ray use to the location of spinal subluxations or misalignments further establishes the legislative intent that x-rays may only be performed on the spine.
In addition, we concur in the Attorney General’s argument that the important policy of ensuring safe treatment of patients is best promoted by this interpretation. Under appellant’s view, there is the potential that the patient, being told by the chiropractor that the problem is in his back (not his elbow), will not seek medical attention. This delay could lead to unnecessary aggravation of the localized ailment. This result is best avoided by having health-care professionals with more extensive training and authority under the licensing statutes make the diagnosis as to the cause of non-spinal maladies.
If the practice of x-raying or diagnosing other parts of the body is ultimately enjoined as a result of this interpretation of the chiropractic discipline, it may make it difficult for the chiropractor to project the effect of treatment on certain bodily symptoms, but it would not interfere with the ability of the chiropractor to locate or treat spinal subluxations or misalignments. In this case, the appellant diagnosed spinal subluxations by the use of x-ray on the investigator’s spinal area. This is the type of diagnosis and use of x-ray contemplated by § 16401.
Lastly, it follows from the above analysis that the scope of chiropractic does not include the authority to treat an elbow. The Legislature would not have authorized the treatment of an elbow where it prohibited the x-ray and differential diagnosis of it. A contrary rule would allow the treatment of the elbow where there is no ability to even make a diagnosis as to the ailment being treated. Also, the plain language of § 16401(l)(b)(ii) states that chiropractic practice includes the "adjustment of spinal subluxations or misalignments and related bones and tissues for the establishment of neural integrity . . . .” There is nothing in this wording which shows an intent to authorize the treatment of areas other than the human spine.
In sum, the x-ray, diagnosis, and treatment of an elbow are all outside the statutory definition of chiropractic practice.
B. Physical Examination
Appellant testified that he tested the investiga tor-patient’s urine sample for sugar and albumin because the presence of sugar could mean an "abnormality of several organ dysfunctions” and could implicate the "general health picture.” Albumin in the urine means "there could be a protein mis-metabolism” which in turn "could show that there’s [sic] problems with the kidneys.”
The appellant testified that he routinely took hair samples to be tested by a laboratory for trace minerals such as cadmium, nickel, and zinc to determine if there was a deficiency or over abundance of minerals. On this basis, appellant would "prescribe proper minerals, vitamins, or enzymes for the correction of the deficiencies or over abundance” of the minerals. Appellant focuses on his own testimony in stressing the importance and necessity of these tests. Urinalysis, when used in conjunction with blood and hair analysis, can provide a concrete picture of what the chemical and biochemical makeup of the patient’s body is at the time of examination. Blood analysis indicates those elements circulating in the blood at the time the blood is drawn. He further testified that urinalysis indicates what is being excreted from the body, and hair analysis indicates what is being retained by the body.
On the basis of this record, the trial court enjoined the defendant from "[ojbtaining, attempting to obtain, or analyzing urine samples or conducting hair analysis . . . .”
Appellant argues that "[a]ll this information is vitally necessary if the chiropractor is to stabilize any low back ailments and structures from which the patient is complaining, and is extremely important if any kind of nutritional advice is to be given the patient.”
Appellant further contends that urinalysis is a necessary procedure because in addition to show ing the patient’s overall health picture it also helps the chiropractor determine whether it is possible to stabilize a patient’s low back condition by means of an adjustment and is an indispensable tool to determine whether or not a patient is susceptible to chiropractic care at all, or whether he must be referred to another health-care provider.
As to the general physical examination, appellant also cites his own testimony as to why he did each of the acts. The blood pressure was taken to determine the presence or absence of high blood pressure. A high blood pressure could indicate immediate danger for the patient and would require a referral to a medical doctor. It could also indicate that the patient should not undergo chiropractic care. Appellant also indicated that high blood pressure could be somehow related to the spine.
Appellant examined the investigator’s heart because he claimed a spinal subluxation could possibly produce nerve interference which in turn could produce a reaction in the heart. The nerves that go to the heart, according to appellant’s testimony, come from the spinal column and thereby create the possibility that an irritation within the spinal column could affect the electrical impulses to the heart.
The investigator’s lungs were examined as part of the determination of the patient’s overall health. If problems were found in the lungs, the patient would be referred to a medical doctor.
Appellant testified that he examined the investigator’s eyes to determine if any problems were present and to determine whether there was occu-lar nerve involvement. If problems with the eyes were found the patient would be referred to another doctor.
The investigator’s throat and mouth were examined to determine the overall health picture. If the patient had dentures they would have to be removed before x-rays could be taken. Missing teeth could indicate a vitamin or mineral deficiency.
On the basis of this record, the trial court enjoined the defendant from "[performing a physical examination which includes eyes, ears, nose, throat, lungs or abdomen, or employing blood pressure, pulse, urine sample, tongue depressor or stethoscope in the course of said examination
If chiropractors are authorized to provide certain types of health care to their patients, then, appellant argues, they must at a minimum be allowed to use those basic diagnostic tests necessary to determine whether and to what extent the patient requires chiropractic care. For example, as appellant testified, it would be extremely difficult, if not impossible, to give nutritional advice to a patient without urine testing. It would be "extremely dangerous” to prescribe any type of exercise regimen for a patient without knowing whether the patient is diabetic. Moreover, he argues, sometimes it is not even possible to discover whether low back pain is spinally caused or kidney related without the use of such testing.
The Attorney General argues that the collection and interpretation of laboratory specimens is outside the scope of chiropractic. He cites Attorney General v Recorder’s Court Judge, 92 Mich App 42; 285 NW2d 53 (1979), lv den 407 Mich 955 (1980). In that case, occurring under the pre-1978 statute, the chiropractor had taken "throat cultures and urine samples for analytical purposes.” Id., p 55. The appellant there contended "that he had a duty to ascertain whether a patient’s ailments were of a type to which chiropractic might be applied, and that the use of such diagnostic techniques was necessary for making such a determination.” Id., pp 55-56.
The scope of the practice of chiropractic was defined at that time as:
The license provided for in this act shall entitle the holder thereof to practice chiropractic in the state of Michigan, and for the purpose of this act chiropractic is defined as "the locating of misaligned or displaced vertebrae of the human spine, the procedure preparatory to and the adjustment by hand of such misaligned or displaced vertebrae and surrounding bones or tissues, for the restoration and maintenance of health.” A licensed doctor of chiropractic under this act may use x-ray and such analytical instruments as are approved by the Michigan board of chiropractic examiners in the examination of patients solely for the purpose of locating misaligned or displaced vertebrae of the human spine and for the procedures preparatory thereto. [MCL 338.156; MSA 14.596.]
The Court of Appeals in that case rejected the chiropractor’s arguments and held:
While analysis of human specimens may reveal the existence of organic problems untreatable by chiropractic, this is true of all diagnostic tests used by members of the medical profession. We do not believe the Legislature intended to authorize chiropractors to engage in general diagnostic techniques. Had such a result been intended, it could have been clearly stated, as was done with respect to the use of x-rays. Rather than authorizing general diagnostic techniques, the statute limited chiropractors to those methods which might reveal the existence of misaligned or displaced vertebrae.
We fail to see how taking urine samples or throat cultures will reveal the existence of sublux-ations. Hence, we conclude that such activities were outside the scope of a chiropractor’s authority. [92 Mich App 56.]
The appellee also cites Cotter v Blue Cross, supra, involving interpretation of the same statute as in Recorder’s Court Judge, supra. As previously noted in Cotter, p 133, Blue Cross had sent notices to all subscribers saying that "[diagnostic laboratory services ordered and/or performed by a chiropractor” would be excluded from coverage. The Court of Appeals affirmed the trial court’s grant of summary judgment in favor of Blue Cross, ruling that laboratory services were outside the scope of chiropractic.
Appellee also cites MCL 333.20507; MSA 14.15(20507) and 1979 AC, R 325.2351, as support for his contention that chiropractors may not collect or interpret laboratory specimens.
MCL 333.20507; MSA 14.15(20507) provides in part:
Sections 20501 to 20525 [various licensing requirements for laboratories] do not apply to any of the following:
(b) A laboratory operated by an individual licensed to practice medicine, osteopathic medicine and surgery, dentistry, or podiatry who performs clinical laboratory tests or procedures personally or through his or her employees only as an adjunct to the treatment of the licensee’s patients.
1979 AC, R 325.2351 provides in part: "A laboratory may examine specimens at the request of a physician, dentist or other person authorized by law to receive such results.”
Thus, according to the appellee, the absence of the term "chiropractor” in these provisions indicates that the Legislature could not have envi sioned the utilization of laboratory testing in chiropractic.
Finally, appellee argues that by representing himself as competent to rule out or detect non-spinal ailments by using a complete physical examination, appellant is engaging in "differential diagnosis.” Appellee also sets forth substitute House Bill 6306, § 16401(l)(b) discussed above in conjunction with the elbow treatment issue.
The Attorney General concludes that the Legislature, therefore, rejected the inclusion of differential diagnosis and physical examinations within the scope of chiropractic, opting instead for chiropractors to diagnose only to determine the need for chiropractic care rather than allowing them to rule out the need for medical care from any other health-care provider.
The hearing officer found these practices outside the scope of chiropractic on the basis of the authority of the Court of Appeals holding in Recorder’s Court Judge, supra, and the legislative rejection of differential diagnosis. He also found nothing in the chiropractic statutes authorizing these practices.
The board differed with the hearing officer, finding that urine analysis is helpful in "whether there is nerve interference which affects the functioning of the kidneys” and is "useful in giving nutritional advice” and, in respect to hair analysis, that "the analysis of the chemical makeup of hair is a recognized tool in assessing the nutritional state of a person.”
The board also opined that they saw no reason "why a chiropractor cannot use such basic instruments as a sphygmomanometer, stethoscope, and tongue depressor in gathering data concerning the general physical condition of a patient.” This is within the scope of chiropractic "as long as the purpose is not to specifically diagnose conditions not amenable to chiropractic care.”
They found it was "entirely appropriate” for chiropractors "to gather data which may be used to determine whether or not chiropractic treatment is indicated, and if so, the specific nature of nerve interference.” The board was "supportive of the concept of differential diagnosis in the sense that it means deciding whether or not chiropractic care is called for.”
They also adopted the appellant’s argument that "it would be potentially dangerous to employ certain rehabilitative exercises without knowing such basic information as pulse rate and blood pressure.”
The trial court found the collection and analysis of laboratory specimens to be outside the scope of chiropractic unless it is necessary to locate a spinal subluxation or misalignment, and its reading of the record found that neither hair nor urine analysis were "necessary or related to spinal sub-luxations or misalignments.” The court further found that since the chiropractor cannot treat the general health of the patient and the profession is not one of "total patient care” a complete physical examination "goes far, far beyond the statutory guidelines for the practice of chiropractic.”
The Court of Appeals, beginning with the observation that under the statute chiropractic diagnosis is for the "limited purpose of determining the existence of spinal subluxations or misalignments that produce nerve interference,” held that the reasoning of Recorder’s Court Judge, supra, was still valid under the current statute. The Court agreed that "information gained from general diagnostic techniques and analysis of human specimens may be important to the safe rendering of chiropractic care,” but, nevertheless, it ruled that "there is nothing in the licensing statute requiring a chiropractor to be trained in evaluating a patient’s general physical condition or assessing the health risks involved.” 124 Mich App 348-350.
The differences between the conclusion of the board and that of the lower courts are based essentially on the board’s willingness to have the scope of chiropractic include differential diagnosis. In its findings on the elbow issue as with this issue of specimen analysis and physical examination, the board disclaims any authority within the chiropractic statute for the treatment of any of the other parts or organs of the non-spinal anatomy; yet, inexplicably, they would accord to chiropractic the authority and, assumedly, the expertise to diagnose other bodily ailments as a means of eliminating the cause of symptoms resulting from other than nerve interference. As expressed in the elbow issue, our assumption from the record and the appellant’s own arguments is that spinal subluxations and misalignments can only be located at their source and that the effects of nerve interference in other parts of the body can only be ascertained by the elimination of other causes of the symptoms. We do not see anything in the words of the chiropractic licensing statute "diagnosis ... to determine the existence of spinal subluxations or misalignments that produce nerve interference” that would suggest it could be read as "diagnosis to determine alternate causes of nerve interference” by the use of physical examination or collection and interpretation of laboratory specimens. In Kentucky Ass’n of Chiropractors, Inc v Jefferson County Medical Society, 549 SW2d 817, 819-820 (Ky, 1977), the Kentucky Supreme Court interpreted a statute which stated that "chiropractor means one qualified by experience and training ... to diagnose his patients and to treat those of his patients diagnosed as having diseases or disorders relating to subluxations of the articulations of the human spine and its adjacent tissues by indicated adjustment of those sub-luxations and by applying methods of treatment designed to augment those adjustments . . . The court held that there was no evidence in this definition that the drafters intended to authorize chiropractors to submit specimens to laboratories. This statute "does not provide even an inference that such authorization was intended.” 549 SW2d 821. We agree with the reasoning used by the Kentucky Supreme Court in interpreting a statute similar as to this issue. The plain words of § 16401 do not evince any legislative intent to license chiropractors to do physical examinations or laboratory tests and indeed the legislative history convincingly shows that the drafters consciously rejected this result.
We find significant, as did the lower courts, the rejection by the Legislature of the principle of differential diagnosis. The rejection of this language along with the other previously mentioned considerations, indicate that a strict interpretation of the word "diagnosis” is most in tune with the lawmaker’s intent.
Even more importantly, on June 16, 1977, an amendment was offered in the House which would have changed § 16401(l)(b)(i) to read in part:
[Practice of chiropractic includes] diagnosis including physical examination and spinal analysis to determine the existence of spinal subluxations .... [1977 Journal of the House 1694.]
The rejection of the words "physical examination” in the proposed amendment bolsters the conclusion that the Legislature did not intend the per forming of physical examinations to be within the scope of chiropractic.
Appellant argues that certain information such as that which can be ascertained from urine specimens and blood pressure tests would be helpful, if not health preserving, in preparation for chiropractic treatment. Even if true, these considerations cannot change the conclusion reached in interpreting a statute that is clearly intended to limit the scope of chiropractic and in which the purpose of a chiropractic "diagnosis” is specifically limited to the determination of existing subluxa-tions or misalignments. By the appellant’s own testimony and the board’s own findings, it is clear that the purpose of collecting information from obtaining body specimens and doing a physical examination is to diagnose and discover maladies and diseases which are not spinal subluxations or misalignments. This contravenes the plain language of § 16401.
The arguments advanced by the appellant that many of the procedures used, such as physical observation of the mouth and the taking of pulse and blood pressure, were routine and in many cases, amount to no more than home remedies may be more persuasive on remand in determining whether they constitute the practice of medicine. Appellant did not perform these acts individually, but admittedly performed them as part of a comprehensive physical examination. Such an undertaking is outside the scope of chiropractic practice.
C. Use of Galvanic Current, Diathermy, and Ultrasound
The Court of Appeals upheld the trial court’s order enjoining appellant from "[utilizing galvanic current, ultrasound or diathermy for the diagnosis or treatment of a patient.”
The appellee called a biomedical technician who testified as follows about the operation of these machines. An ultrasound machine produces ultrasonic sound waves which penetrate the body where they dissipate into heat or are monitored in their return from the body. A diathermy machine produces radio waves which penetrate the body (the waves will actually penetrate anything but metal) and generate heat within the body. A pulse diathermy machine is identical except that it will turn the radio waves on and off at millisecond rates. When a galvanic stimulator is used, the patient’s body is used as a path for electricity. The machine causes electric currents to flow "all over” the body because the body is used as a path for electricity. An applicator wand and a wetted sponge are used in this procedure.
Only appellant testified to the medical purposes of these devices, stating that galvanic current assists the chiropractor in diagnosis by helping to localize the area of spinal subluxation by searching out "trigger points.” He also testified that it is used therapeutically to release "obnoxious trigger points” and reduce irritation in the spinal area, and it serves as a deep massage to produce localized heat and thereby alleviate pain. Pulse diathermy, he stated, is used to release muscle spasms in the lower lumbar area prior to an adjustment to realign the spinal subluxation. He said that the muscles and ligaments are more likely to hold the realigned position if pulse diathermy is used first. He noted that diathermy increases the circulation, blood supply, and nutrition to the affected area, which in turn accelerate the healing rate of the adjusted spine. Lastly, Dr. Beno stated that the diathermy helps remove from the affected area any "debris” which is present due to accident, injury, or strain to the area, and that these machines "greatly complement[] the manipulation [and], help[ ] to stabilize the manipulation at an accelerated rate, compared to what can be done without them.”
§ 16401(l)(b) provides in part:
. . . Practice of chiropractic includes:
(iii) The use of analytical instruments, nutritional advice, rehabilitative exercise and adjustment apparatus regulated by rules promulgated by the board pursuant to [MCL 333.16423; MSA 14.15(16423)] .... The practice of chiropractic does not include the performance of incisive surgical procedures, [or] the performance of an invasive procedure requiring instrumentation .... [Emphasis added.]
§ 16423 provides:
(1) The board shall promulgate rules to establish criteria for the approval of analytical instruments and adjustment apparatus to be used for the purpose of examining patients in locating spinal sub-luxations and misalignments of the human spine. The criteria established shall be substantially equivalent to nationally recognized standards in the profession for the use and operation of the instruments. The board may approve types and makes of analytical instruments that meet these criteria.
(2) An individual shall not use analytical instruments or adjustment apparatus which does not meet nationally recognized standards or which is not approved by the board.
The Board of Chiropractic has issued rules which became effective January 14, 1982, after the date of the 1981 trial court decision but before the 1983 Court of Appeals opinion.
1982 AACS, R 338.12001 provides in part:
As used in these rules:
(a) "Adjustment apparatus” means a tool or device used to apply a mechanical force to correct a subluxation or misalignment of the vertebral column or related bones and tissues for the establishment of neural integrity.
(b) "Analytical instruments” means instruments which monitor the body’s physiology for the purpose of determining subluxated or misaligned vertebrae or related bones and tissues.
R 338.12010 states:
In accordance with section 16423 of the code, the following criteria are established for adjustment apparatus which the board has been asked to approve:
(a) The purpose of the apparatus is to restore or maintain alignment of vertebrae.
(b) The apparatus applies a mechanical force to the spine or related bones and tissues.
R 338.12011 provides:
In accordance with section 16423 of the code, the following criterion is established for analytical instruments which the board has been asked to approve:
The purpose of the instrument is to monitor the body’s physiology for the purpose of determining subluxated or misaligned vertebrae or related bones and tissues._
The hearing officer held that the Legislature intended a "very wide meaning” of the prohibition of the use of an "invasive procedure requiring instrumentation . . .” and concluded that the use of these devices represented an invasion of electronic agents and, therefore, were precluded under chiropractic practice. He also concluded that the use of these machines represented the practice of physical therapy under MCL 333.17801; MSA 14.15(17801).
The board (prior to the issuance of their regulations on this subject) concluded that "the use of these modes for therapeutic purposes is outside the scope of chiropractic.” (Emphasis added.) The board did, however, find that galvanic current was an appropriate chiropractic diagnostic technique. The board disagreed with the hearing officer and opined that the use of these devices does not result in an invasive procedure.
The trial court found that all are excluded from the scope of chiropractic because they involve "entrance into the body of sound waves, electric current or heat.” Accordingly, the court held that they are invasive procedures requiring instrumentation and expressly excluded under MCL 333.16401(l)(b)(iii); MSA 14.15(16401)(l)(b)(iii). Further, it held that they are inconsistent with the chiropractic healing philosophy of using the inherent recuperative powers of the body for restoration and maintenance of health.
The Court of Appeals did not decide whether these practices are invasive. It held that the activities are included in the practice of physical therapy and that a person is not permitted to engage in the practice of physical therapy unless so licensed or otherwise authorized by the act. See MCL 333.17801; MSA 14.15(17801). Since chiropractors are not given an express authorization to perform these procedures, as are physical therapists, the Court found that such procedures are outside the practice of chiropractic and are prohibited.
This analysis only partially resolves this issue since appellant is arguing that chiropractors are otherwise authorized by law to engage in these practices. We must decide whether these techniques are allowed under the chiropractic act, not under the statutory provisions dealing with physical therapy. Merely because these activities may constitute the practice of physical therapy, or for that matter the practice of medicine, nursing, etc., does not thereby inevitably mean that they are not within the scope of chiropractic. An examination of the licensing jurisdiction of the various healthcare professions reveals considerable overlapping among them. It is possible that some of the activity which is included within the broad definition of the practice of medicine is also included within not only chiropractic but also, for example, physical therapy, podiatry, and dentistry. Thus, when analyzing whether a particular activity is within an individual health-care profession, the focus should be on the statutory definition of that profession, and not whether the activity is included within other professions. We therefore do not find the physical therapy statute to be determinative of the issue of the use of these three devices.
We agree with the Court of Appeals that there is no express authorization for the use of these machines within the chiropractic act. Appellant nevertheless maintains that the use of these devices is impliedly authorized by statute, specifically by the word "rehabilitative exercise,” and subsequent board rules. Specifically he points to Board of Chiropractic rule 1982 AACS, R 338.12001(d) which provides:
"Rehabilitative exercises” means the coordination of a patient’s exercise program, the performance of tests and measurements, instruction and consultation, supervision of personnel, and the use of exercise and rehabilitative procedures, with or without assistive devices, for the purpose of correcting or preventing a subluxated or misaligned vertebrae of the vertebral column. [Emphasis added.]
He contends that since the emphasized language of the board rule is identical to that contained in the statutory definition of the practice of physical therapy, MCL 333.17801(l)(b); MSA 14.15(17801)(l)(b), the board must have intended to authorize the use of the devices by chiropractors.
The interpretation of 1982 AACS, R 338.12001(d) urged by appellant was expressly rejected by the board when it ruled in this case that the therapeutic use of these devices is outside the scope of chiropractic. It is not likely the board would have intended to allow the use of these machines by its regulation when it had earlier ruled that their use is not within chiropractic.
It is undisputed that these machines are used for treatment or therapeutic purposes and not for rehabilitative exercise. During their use, according to appellant’s testimony, the patient lies still and receives the sound, radio, or electric waves into the treated area. This is not exercise within the meaning of § 16401. We cannot stretch the words "rehabilitative exercise” to include a situation where the patient passively receives treatment. This is confirmed by the board’s definition which speaks of the "patient’s exercise program.” Even if we agreed with the appellant’s interpretation of the board rule, these therapeutic procedures would still not be within the scope of chiropractic. Obviously, the board cannot, by regulation, turn a treatment procedure into an exercise program merely by labeling it so. Whatever definitions or regulations the board makes must fit within the plain meaning of the terms of the authorizing statute. The board has correctly interpreted the words "rehabilitative exercises” to mean a patient’s exercise program and not the use of these machines for therapeutic purposes.
Aside from any action by the board, there is no implied authorization for the use of these devices in § 16401. The primary purpose as shown by appellant’s own testimony is for treatment of the spine to help relieve or correct subluxations or misalignments. The authority of chiropractors to treat or attempt to cure spinal problems is delineated in § 16401(l)(b)(ii) which provides:
[The practice of chiropractic includes] [t]he adjustment of spinal subluxations or misalignments and related bones and tissues for the establishment of neural integrity utilizing the inherent recuperative powers of the body for restoration and maintenance of health.
This language contains no suggestion that the Legislature intended to permit the use of these devices. In fact, the wording contemplates that the healing process will utilize "the inherent recuperative powers of the body.” This strongly suggests that the use of sound waves, radio waves, and electrical currents as advocated here was not intended to be allowed since these techniques introduce external stimuli into the human body rather than using the body’s own recuperative powers. Moreover, the statute states that "adjustment” of spinal subluxations or misalignments is allowed, and there is nothing to indicate that the adjustment of the spine was intended to include the use of sound waves, electricity, and radio waves to affect parts of the body other than the spine itself. Indeed, appellant does not contend that the use of these machines constitutes the adjustment of the spine.
Further support for our conclusion exists in the board regulation defining "adjustment apparatus,” 1982 AACS, R 338.12001(a), which states:
"Adjustment apparatus” means a tool or device used to apply a mechanical force to correct a subluxation or misalignment of the vertebral column or related bones and tissues for the establishment of neural integrity.
The record in this case is clear that the electrical currents, radio waves, and sound waves produced by the machines at issue here do not "apply a mechanical force” to the spinal area. Rather these devices are designed to produce high frequency waves which penetrate the body and create heat when the waves are resisted by human cells. This is not a "mechanical force” and we conclude, as did each tribunal below, that the use of these machines for the treatment or relief of human ailments is outside the scope of chiropractic.
There still remains the question whether the use of a galvanic stimulator as an analytical, or diagnostic as opposed to treatment, device is permissible. With regard to the authority of chiropractors to diagnose ailments, § 16401(l)(b)(i) allows the profession to do
[diagnosis, including spinal analysis, to determine the existence of spinal subluxations or misalign-ments that produce nerve interference, indicating the necessity for chiropractic care.
The use of analytical instruments regulated by board rules is also allowed. 1982 AACS, R 338.12001(b) provides:
"Analytical instruments” means instruments which monitor the body’s physiology for the purpose of determining subluxated or misaligned vertebrae or related bones and tissues.
Appellant testified that he used galvanic current as a diagnostic tool by searching out "trigger points” in the spinal area which in turn helped to locate subluxations. The appellee and lower courts have not presented persuasive reasons why the use of the galvanic stimulator is outside the scope of chiropractic. When used as appellant described, this device obviously fits within the board definition of "analytical instrument.” The trial court held that the use of this device is an invasive procedure expressly prohibited by § 16401(l)(b)(iii) and that it thus did not determine that it would be allowed as an analytical instrument.
On this record, we do not agree with the trial court that the evidence showed that the use of this machine constitutes an invasive procedure. As noted above, the appellee called a biomedical technician who testified as to the operation of the galvanic stimulator. At no point did the witness testify that in the general use of this machine currents "invade” the body within the meaning of § 16401. Indeed the testimony is unclear as to whether the currents enter the body at all. Nor was any evidence presented that the method in fact used by appellant in this case was an "invasive procedure.”
The Court of Appeals holding that there is no express authorization for the use of this machine as it would apply to diagnosis is not justified on this record. On remand to the trial court the determination should be made, after establishing a better record, whether the use of the machine results in an invasive procedure and, if not, whether its use is permitted as an analytical in strument for diagnostic purposes. Also, as on each of the other practices complained of here, the court shall determine whether this activity constitutes the practice of medicine without a license or some other violation of article 15, so as to justify injunctive relief. MCL 333.16291(1); MSA 14.15(16291X1).
D. Execution of Pre-employment Physical Document
The defendant signed a document entitled "Employee Health Record” for the investigator-patient; filled in the blood pressure reading and checked boxes indicating "normal” for head, eyes, ears, nose-throat, neck, skin, chest-lungs, heart, breast, abdomen, extremities, reflexes, back; and "approved for employment” — with the word "yes.” It was signed "J. J. Beño, D.C.”
The trial court enjoined the "executing [of] a pre-employment physical record without identifying himself as a chiropractor or D.C., or certifying or attempting to certify the general condition of anything other than the spinal column.”
On this issue the parties follow their arguments advanced on the issue of the general physical examination. The appellant considers the form "quite simple in nature” and indicates that the testimony shows that his training and experience renders him competent to conduct an examination. The Attorney General relies on his earlier arguments that patients will be misled to their possible detriment if a chiropractor not only does a physical examination, but creates the same risks for an employer who relies on the information in the form.
The hearing officer, in finding the execution of the document to be within the scope of chiropractic, stated:
There would appear to be a reasonable difference between a pre-employment physical which all too often is done very routinely and a complete physical examination whose purpose is to utilize the results thereof in development of a treatment plan going beyond the existence and treatment of spinal subluxations or misalignments.
The board agreed with the hearing officer that chiropractors can sign such a form "as long as no diagnosis is made of or for treatment of conditions not amenable to chiropractic.”
The trial court, in support of its injunction, held that because chiropractors are not authorized to engage in differential diagnosis and may not hold themselves out as able to do so, a chiropractor could only execute such a form "indicating the general condition of the spinal column . . . .”
In keeping with its findings on the issue of the general physical examination, the Court of Appeals upheld the judgment of the trial court.
On the basis of our analysis relating to the giving of a physical examination, we find it equally persuasive that there is nothing in the chiropractic licensing statute which would indicate that it is intended to be within the scope of that discipline to make a determination of the condition of the general anatomy and perforce to certify or represent the state of a patient’s general health. We, therefore, find that the diagnosis of a patient’s general health by means of a complete examination as was done here is outside the scope of chiropractic.
E. Sale or Prescription of Vitamins
As a result of appellant’s "prescribing” and selling to the patient-investigator a dietary supplement containing vitamins and minerals in order to rebuild back ligaments, the trial court enjoined the "[s]elling, dispensing, or prescribing vitamins to a patient . . .
§ 16401 as it pertains to this issue states that the
[practice of chiropractic includes . . . (iii) [t]he use of analytical instruments, nutritional advice, rehabilitative exercise and adjustment apparatus .... The practice of chiropractic does not include . . . the dispensing or prescribing of drugs or medicines.
The hearing officer, on the basis of the testimony of the Executive Secretary of the Michigan Pharmacy Board, who testified that Nuclix was a dietary supplement or food product and not subject to the pharmacy or drug laws, held that the Attorney General had not met the burden of proving Nuclix was a prohibited drug. Since chiropractors may use nutritional advice, he concluded that the appellant was operating within the chiropractic statute. The board found it unnecessary to decide whether the appellant’s action was within chiropractic, in view of the fact that it was an over-the-counter product and "not subject to any restriction .by any government agency.” The trial court relied on Attorney General v Recorder’s Court Judge, supra, where the defendant chiropractor had given "various non-prescription medicines for colds, headaches, pain, and nasal congestion, and topical medicine for rash and a scrape on the arm.” The Court of Appeals stated:
In State v Wilson, 11 Wash App 916; 528 P2d 279 (1974), the Washington Supreme Court ruled that chiropractors may not give or prescribe minerals, vitamins or food supplements. The Court noted that while these items are available without prescription in retail stores they may, nevertheless, be dangerous when improperly used.
We agree with this analysis and conclude that the Michigan Legislature did not intend that chiropractors use any medicine given internally or externally for the treatment of disease or other human ailment.
The trial court believed that this holding was "unchanged” by the new Public Health Code which added the words "nutritional advice.”
The Court of Appeals in a split decision held that the inclusion of the provision on nutritional advice does not address the use of vitamins and food supplements and, like the trial court, relied on the rationale of Recorder’s Court Judge.
Noting the unique relationship between a health-care provider and the patient, it took "judicial notice of the potential danger involved” when the substance is misused, even though it is not a drug. 124 Mich App 353.
Judge Banhof dissented on this issue and would have held the dispensation of this supplement to be within chiropractic. He noted the unregulated status of this substance and that under the new Health Code, including nutritional advice is included under the scope of chiropractic.
Appellee contends that the legislative exclusion from chiropractic of the dispensing or prescribing of drugs or medicine covers the appellant’s action here. He cites MCL 333.17703; MSA 14.15(17703) which defines drugs as:
(4)(a) A substance recognized or for which the standards or specifications are prescribed in the official compendium.
(b) A substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in human beings or other animals.
Because Br. Beno prescribed Nuclix to help strengthen the back ligaments, appellee contends the substance was intended for the "cure, mitigation, [and] treatment” of a disease and therefore is a drug under the act.
The appellee also cites the prevailing authority which strictly construes similar statutes, see Norville v Mississippi, 364 So 2d 1084 (1978), and Stockwell v Washington State Chiropractic Disciplinary Bd, 28 Wash App 295; 622 P2d 910 (1981).
Appellee explains away the inclusion of nutritional advice by concluding that it only refers to the recommending of foods and vitamins for a well-balanced diet and that there is a difference between recommending nutrition and prescribing substances to cure a particular ailment.
We cannot so lightly dismiss the effect of the inclusion within chiropractic of "the use of . . . nutritional advice . . .. .” The words "nutritional advice” standing alone refer to the promotion and maintenance of overall good health as opposed to its "use” in curing disease or body malfunctions. We think, however, the authorization of the use of nutritional advice within the practice of chiropractic denotes that the recommendation or dispensing of a vitamin or food supplement can, at the very least, be employed as part of a program to correct a subluxation or misalignment of the spine. This interpretation is consistent with the evident legislative intent, when, as here, the use of nutritional advice is authorized in the same sentence as the use of analytical instruments, rehabilitative exercise, and adjustment apparatus, all of which concern the diagnosis or correction of spinal ailments. This holding, however, still leaves operative the exclusion of the use of drugs and medicine by chiropractors as defined in § 17703(4)(a).
IV
Conclusion
We concur with the findings of the Court of Appeals to the effect that the diagnosis and x-ray of the elbow, the giving of a physical examination, including the taking of hair and urine samples, the use of galvanic current, diathermy, and ultrasound devices for therapeutic purposes, and the execution of an employment health document are outside the scope of chiropractic.
We do not concur with the Court of Appeals majority on the question of the dispensing of the vitamin Nuclix; rather, we find that practice to be within the "nutritional advice” aspect of chiropractic, when, as here, a non-drug and non-medi cine substance is dispensed to help alleviate spinal subluxations or misalignments.
We decline to rule on the applicability of the statute to the use of galvanic current for diagnostic purposes, and also decline to interpret the application of the "invasive procedures” clause to that device without a more fully developed record on that issue.
Finally, we conclude that engaging in practices outside of the scope of chiropractic does not, on that fact alone, make those practices enjoinable. For that reason, we remand the case to the trial court to afford the plaintiff the opportunity to establish that those practices engaged in by the defendant that we find to be outside the scope of chiropractic or that may upon further finding be determined to be outside the scope of chiropractic are within the practice of medicine and therefore enjoinable as an unlicensed practice of that discipline. This remand will also include the need for further findings in regard to the use of galvanic current for diagnostic purposes.
The judgment of the Court of Appeals is reversed to the extent that it is inconsistent herewith, and the permanent injunction of the circuit court is continued for thirty days to allow the plaintiff to seek a temporary injunction pending the determination of those matters remanded to the circuit court.
We do not retain jurisdiction.
Levin, Ryan, Cavanagh, and Boyle, JJ., concurred with Brickley, J.
The validity of this first injunction is not at issue.
We note that the Attorney General objected to this remand and made an emergency application for leave to appeal, a motion to stay, and a motion for immediate consideration to the Court of Appeals. The Court of Appeals denied the application for leave to appeal and the motion to stay "for failure to persuade the Court of the need for immediate appellate review.” Since that point, the Attorney General has not again questioned the circuit court’s authority to order a remand to the Board of Chiropractic. As a result, this issue is not now before us, and we express no opinion as to its validity. We also do not pass upon the Court of Appeals analysis of the remand. Attorney General v Beno, 124 Mich App 342, 346; 335 NW2d 31 (1983).
As noted in footnote 2, neither party has challenged the validity of this or any other procedural aspect of the case and we express no opinion thereon.
The permanent injunction provided as follows:
"It is hereby ordered that Defendant, his agents and employees, unless such persons are licensed to practice medicine, shall be and hereby are permanently enjoined from:
"A. Diagnosing or attempting to diagnose other than spinal sublux-ations or misalignments which produce nerve interference;
"B. Performing a physical examination which includes eyes, ears, nose, throat, lungs or abdomen, or employing blood pressure, pulse, urine sample, tongue depressor or stethoscope in the course of said examination;
"C. Executing a pre-employment physical record without identifying himself as a chiropractor or D.C., or certifying or attempting to certify the general condition of anything other than the spinal column;
"D. Treating or attempting to treat, or x-raying or attempting to x-ray an elbow;
"E. Obtaining, attempting to obtain, or analyzing urine samples or conducting hair analysis;
"F. Selling, dispensing or prescribing vitamins to a patient;
"G. Utilizing galvanic current, ultrasound or diathermy for the diagnosis or treatment of a patient.”
There was no testimony by a medical doctor or by a representative of the medical board.
The Board of Chiropractic consists of seven members, five of whom are chiropractors and two of whom are public members. MCL 333.16421; MSA 14.15(16421).
An examination of the defendant’s testimony is instructive on how not only the patient can be misled as to the role of chiropractic in diagnosing other parts of the body.
"In many instances, we have to look at the body as a whole in order to analyze any given condition to treat locally, to treat very specifically in one area and treat a subluxation, to me, is not getting to the underlying cause of the patient’s problem and to me, we must look wholistically, at the entire body. We must look at the structure. We must analyze the feet, they are the original foundation of the spine, neurologically, things can happen to the feet which can produce neurological reflex of pain like a reverberation of pain all the way up to the lower back area and to me, if I’m not allowed to work on an area such as the feet, the neurological reflex arc area can never be corrected and thereby maybe never stabilizing not stabilize out the low back situation. Maybe this sounds — I know I know what I’m talking about here and maybe you don’t understand what I’m saying, it’s extremely important to analyze any situation and if there’s a knee problem, I like to know why the knee problem would be there. If it’s there because of arthritis or spurs or cartilage problems, orthopedic tests, x-ray examination could be a displacement due to the various injuries that should be corrected along with the low back in order to just get the entire situation stabilized on a more permanent basis. We can talk about relief or we can talk stabilization. If a patient just wants relief, you can go ahead and replace the vertebrae. If it’s subluxated, test and see if there’s nerve interference, but what about stabilization? I don’t understand many times why you have to, you know, once it’s stabilized and corrected and these are the goals and plans I work with my patients is to try to stabilize their condition, looking at the body as a whole, analyzing from tip to toe, as to why that problem could be there; analyzing posture, analyzing muscles and analyzing other structures, that’s the only way it should be done, to be done correctly and I think that’s a new approach coming into being and within the next twenty-five (25) to fifty (50) years, you’re going to see this approach take hold and you’re going to see the doctors ... of chiropractic that use this method . . . are going to be doctors that patients will go to, to get their ailments taken care of and stabilized, rather than running here or there to try and get relief from some various forms . . . .”
The appellant points out that blood pressure and pulse rate can be obtained at coin operated machines at public locations.
The circuit court injunction was issued November 19, 1981, the claim of appeal was filed on December 8, 1981, the Chiropractic Board rules were effective January 14, 1982, and the Court of Appeals opinion was issued March 21, 1983.
We emphasize again that the evidence in this case established that appellant used the galvanic stimulator as an "analytical instrument” to assist in his diagnosis of the investigator’s subluxations. Appellant dries not contend that the therapeutic use of this or the other devices at issue is permissible under the board definition of analytical instrument. Indeed, as discussed above in conjunction with the rehabilitative exercise regulation, the board cannot allow the use of such machine for treatment purposes under its authority to make rules for analytical instruments. The unambiguous wording of the statutory language contemplates rules for use of instruments in analysis not treatment.
The testimony of this witness as to this device is here set forth in its entirety:
"Q. You indicated you were familiar with a galvanic stimulator, is that correct?
"A. Yes.
"Q. What is that machine?
"A. The machines that we have that we call galvanic stimulators are an electrical generator that generate either at do voltage potential or ac voltage potential or both and the application is through again, wands or wetted sponge pads.
"Q. What does a wetted sponge pad look like?
'A. Anywhere from two inches square to four inches square is common, and it’s set in a rubber holder and the wire from the machine contacts a metal plated holder and contacts the back of the sponge.
"Q. When applied to the body, what happens?
"A. Electric currents are caused to flow, since you’re introducing the patient as a path for the electricity. The current — that’s it.
"Q. Currents will flow?
"A. Yes.
"Q. Through the body?
"A. All over. .
"Q. How does that happen? Is the body a conductor? What is the principle?
"A. You can view the body as one large bag of saline, salt water, and it being such, it’s very useful for propagating electricity. Your heart will generate on an electrical signal. These electrical signals are found on all parts of the body on the outside of the body. The converse itself is also true if you produce a signal on the outside of the body, it will be found within the body.
”Q. Is it true whether you use the wand or the pads?
"A. Yes, any time you cause a current to flow.”
Since we have determined that the use of the other devices for treatment purposes is outside the scope of chiropractic, we do not pass upon the adequacy of this testimony as establishing that their operation is an invasive procedure.
Section 17708(3) defines a prescription as
"an order for drugs or devices written and signed or transmitted by other means of communication by a prescriber to be filled, compounded, or dispensed. Prescribing shall be limited to a prescriber.”
While it is unnecessary for our purposes in the instant case to define a prescriber or a prescription, we think it is questionable whether Dr. Beno was "prescribing” when he sold Nuclix to the investigator-patient.
Shortly after the issuance of State v Wilson, supra, the Washington Legislature amended their chiropractic statute to read:
"[N]othing herein shall be construed to prohibit the rendering of dietary advice.” Wash Rev Code Ann, § 18.25.005.
In Stockwell v Washington State Chiropractic Disciplinary Bd, 28 Wash App 295, 300; 622 P2d 910 (1981), the Washington Court of Appeals upheld as not inconsistent with that amendment an administrative regulation that prohibited the "selling or dispensing vitamins and food supplements.” | [
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Per Curiam:.
We are required in this case to determine whether the Court of Appeals erred in shortening substantially a one-year suspension im posed by the Michigan Board of Medicine on a physician found to have violated the Medical Practice Act and the so-called amphetamine rule.
I
On July 12, 1979, the Attorney General filed a formal complaint against Jack W. Marrs, M.D., charging the physician with violating the amphetamine rule, 1978 AACS, R 338.2302, in prescribing amphetamines to two patients, G.S. and S.S., and with violating the Medical Practice Act, MCL 338.1801 et seq.; MSA 14.542(1) et seq., in regard to accepted minimal standards of treatment as to those same two patients.
A formal hearing on the complaint against Dr. Marrs was held on July 16, 1980. At the conclusion, the hearing officer found that the physician had committed the following violations of the amphetamine rule:
1. Licensee did not properly record the blood pressures, pulse, and checking of the heart and lungs of either G.S. or S.S.;
2. Licensee did not properly record the weight of G.S.;
These first two violations contravene Rules 3(l)(a) and 3(l)(e) of the Amphetamine Rule.
3. Rule 3(l)(d) was violated in that Licensee did not stop dispensing Desoxyn after noting that S.S. was actually gaining weight over the course of her treatment.
4. Rule 3(l)(f) was violated in that Licensee did not discontinue use of amphetamines for 90 days after having prescribed them for 90 continuous prior days.
As to the question of acceptable minimal standards, the hearing officer found the following violations of the Medical Practice Act:
1. Section ll(l)(2)(b), which sets up as a violation the failure to use reasonable care and discrimination in the administration of drugs, and failure to employ acceptable scientific methods in the selection of drugs. While Licensee’s motives may have been admirable, the more persuasive testimony is that the length of the prescribing period, coupled with the additive effects of multiple drug use were not reasonable under the circumstances.
2. Section ll(l)(2)(c) in the limited sense of ". . . prescribing drugs for other than . . . legitimate therapeutic purposes.” There is no contention anywhere that Licensee acted illegally, or that the drugs prescribed were intended for or got into the hands of other people. This Hearing Examiner finds persuasive the testimony of Dr. Toteff to the effect that the number and combination of drugs could not be defended as legitimately thereapeutic [sic].
3. Section ll(l)(2)(i), pertaining to conforming to minimal standards of acceptable medical practice. In relation to both the prescribing and the record-keeping, Licensee did not conform to minimally acceptable standards of practice in his area for 1977-1978. Combining drugs in this fashion is potentially dangerous and calls for the strictest monitoring and recordkeeping.
The Board of Medicine, after accepting substantially all of the hearing officer’s findings of fact and conclusions of law, reprimanded Dr. Marrs, suspended his license to practice medicine for one year, and ordered that during the suspension he earn forty hours of board-approved continuing medical education credit in the areas of pharmacology and therapeutics as well as pursue other required continuing medical education. The board further ordered that, upon reinstatement, Dr. Marrs be issued a limited license of not less than two years, during which time he could not obtain, possess, prescribe, dispense, or administer any controlled substance under the Public Health Code or federal law. He also would be prohibited from applying for or obtaining a controlled substance license under Michigan or federal law and would be required to successfully complete two years of probation.
Dr. Marrs appealed the Board of Medicine’s decision to the Ingham Circuit Court, which affirmed the board’s decision and dissolved a preliminary injunction which had stayed the board’s final order. Thereafter, Dr. Marrs pursued his appeal in the Court of Appeals, which granted the physician’s motion to continue the preliminary injunction and stay the final order of the Ingham Circuit Court. The Court of Appeals affirmed in part the order of the board and modified it in part. The Court of Appeals upheld all sanctions imposed upon Dr. Marrs except for the one-year suspension of his license to practice medicine. The suspension period was shortened to one month, with the physician being given credit for three weeks of suspension already served. The board’s application for rehearing was subsequently denied.
The board applied to this Court for leave to appeal the decision of the Court of Appeals. Thereafter, Dr. Marrs applied for leave to cross-appeal.
II
The Court of Appeals basically concluded that the one-year suspension imposed by the Board of Medicine should be shortened because the board abused its discretion in imposing such severe discipline. The Court agreed with Dr. Marrs that the board had failed to consider the numerous mitigating factors present in his case. The Court found that the record showed that prior to this complaint Dr. Marrs had an excellent record as a physician: He had never been sued for malpractice, at all times had acted in good faith, and did attempt to limit the amount of drugs he prescribed to the two patients at issue. The Court opined, however, that it perhaps would have been better judgment to have refused further medication altogether. In light of these mitigating factors and the other discipline imposed, the Court of Appeals stated that the one-year suspension of Dr. Marrs’ license was an abuse of discretion because the primary goal of discipline, i.e., protection of the public, had already been satisfied by the other sanctions.
We agree with the Board of Medicine that the Court of Appeals clearly erred in finding an abuse of discretion on the facts of this case. The Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., governs the proceedings. Section 106 provides, concerning review of an agency decision:
(1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:
(a) In violation of the constitution or a statute.
(b) In excess of the statutory authority or jurisdiction of the agency.
(c) Made upon unlawful procedure resulting in material prejudice to a party.
(d) Not supported by competent, material and substantial evidence on the whole record.
(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.
(f) Affected by other substantial and material error of law.
(2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings. [MCL 24.306; MSA 3.560(206). Emphasis added.]
In Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959), this Court set forth the standard for reviewing a claim of abuse of discretion in a civil matter:
The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an "abuse” in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.
In the years since the Spalding decision, although the standard regarding abuse of discretion has been often discussed and frequently paraphrased, it has remained essentially intact.
Our review of the record does not lead us to conclude as did the Court of Appeals that the Board of Medicine failed to consider the numerous mitigating factors present in this case. The fact that the board was not sufficiently persuaded by the mitigating factors to impose less than a one-year suspension does not mean that the board did not consider the factors. Rather, it may mean that the board considered the proven violations, themselves, so grave as to warrant being dealt with severely. Indeed, as the Ingham Circuit Court noted, there was extensive testimony concerning the ways in which Dr. Marrs’ practice did not conform to prevailing minimal professional standards. As the circuit court further noted, there was sufficient evidence for the board to conclude that Dr. Marrs had been an habitual violator of the Medical Practice Act.
The Court of Appeals seemed to put much emphasis on the idea that the primary goal of discipline is protection of the public, and the supposition that it is unlikely that Dr. Marrs would repeat the violations because he now limits his practice almost exclusively to general surgery. In In the Matter of Grimes, 414 Mich 483; 326 NW2d 380 (1982), this Court discussed the purpose of discipline in an attorney misconduct case. We stated in the context of that case that "protection” and "punishment” are not irreconcilable concepts, but rather that protection of the public may at times best be achieved through the deterrent effect of punishment. We reaffirm that belief.
On the facts before us, we are convinced that the Court of Appeals clearly erred in finding an abuse of discretion on the part of the Board of Medicine in imposing a one-year suspension on Dr. Marrs. The Spalding standard not having been met, the Court had no authority to substitute what it believed to be a sounder sanction for the discipline imposed by the board.
Ill
In his application for leave to cross-appeal, Dr. Marrs contends that the showing of compliance he made at an informal hearing held prior to the filing of the complaint was sufficient to require cessation of the proceedings against him. MCL 24.292; MSA 3.560(192), provides in pertinent part:
Before the commencement of proceedings for suspension, revocation, annulment, withdrawal, recall, cancellation or amendment of a license, an agency shall give notice, personally or by mail, to the licensee of facts or conduct which warrant the intended action. The licensee shall be given an opportunity to show compliance with all lawful requirements for retention of the license.
Dr. Marrs contends that upon his showing that the practices objected to had ceased and that there was no likelihood of repetition, the proceedings against him should have been dismissed. We agree with the Court of Appeals interpretation of the applicable statutory provision, that is, the purpose of the informal proceedings is to provide an opportunity to dispute unwarranted charges prior to the initiation of formal proceedings. Thus, MCL 24.292; MSA 3.560(192) is a procedural safeguard. We disagree with Dr. Marrs that upon a showing by the licensee that violations have ceased and that regulations will be followed in the future the board is required to dismiss the complaint. Although the board has the option of terminating proceedings, it is not obligated to do so.
IV
For the reasons stated, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we reverse the decision of the Court of Appeals insofar as it modified the one-year suspension of Dr. Marrs’ license to practice medicine and reinstate the order of the Ingham Circuit Court, which affirmed the decision of the Board of Medicine. In all other respects, we affirm the decision of the Court of Appeals.
Williams, C.J., and Ryan, Brickley, Cavanagh, and Riley, JJ., concurred.
Levin, J.
(separate opinion). We would either (i) grant or deny leave to appeal, or (ii) vacate the decision of the Court of Appeals and remand to it to consider whether the Court of Appeals, having determined that the discipline imposed by the Board of Medicine was excessive, may substitute its judgment concerning the appropriate discipline or, rather, should have returned the cause to the Board of Medicine with the direction to impose a discipline which is not so excessive.
I
In the Court of Appeals, the Board of Medicine argued that the board’s decision to suspend Dr. Marrs’ license for a period of one year did not constitute an abuse of discretion by the board. The Court of Appeals determined that the discipline imposed was excessive and indicated that imposition of the excessive discipline constituted an abuse of discretion.
The Attorney General’s application for leave to appeal to this Court does not contend that the Court of Appeals erred in finding an abuse of discretion, but rather that, having reached the conclusion that there was an abuse of discretion, the Court of Appeals may not substitute its judgment regarding the discipline to be imposed.
There is no discussion in the application for leave to appeal of the standard for determining whether the board abused its discretion.
The opinion of the Court, thus, reverses the judgment of the Court of Appeals on an issue not raised or argued in the application for leave to appeal and ignores the only issue raised in this Court by the Attorney General: whether the Court of Appeals should have remanded the case to the Board of Medicine for imposition of a less severe discipline and erred in substituting its judgment regarding the extent of the discipline.
II
The opinion of the Court does not address Dr. Marrs’ argument that the discipline imposed by the board was arbitrary in light of the discipline imposed in other cases by the board. ***
III
Leave to appeal might appropriately be denied simply because the argument advanced in this Court by the Attorney General was not advanced by him in the Court of Appeals. Alternatively, if the Court believes that the Attorney General’s argument should be addressed, it should remand to the Court of Appeals for consideration of that argument before this Court addresses the question.
IV
The issues dealt with in the opinion of the Court —the correct reviewing standard and the construction of § 92 of the Administrative Procedures Act — have not previously been considered by this Court. Assuming, even, that the reviewing standard question is before us — it is not — that question and the § 92 constructional question should not be decided by this Court for the first time without plenary consideration.
This state’s Administrative Procedures Act is modeled on a uniform act. It appears on examination of the case law in other jurisdictions that there are differing views regarding the correct construction of the relevant language respecting both the reviewing standard and the § 92 con structional question. If the Court wishes to speak to these questions — not heretofore addressed by this Court — it should grant leave to appeal so that relevant case law from other jurisdictions construing this language may be considered before this Court expresses an opinion on this question.
V
Although Marrs has not contended that Const 1963, art 6, § 28 imposes a higher standard of review than that set forth in § 106 of the Admin istrative Procedures Act, the opinion of the Court might be read as foreclosing recognition of such a higher standard. Once again, it is, I think, clear that this is not an appropriate case for peremptory disposition.
Boyle, J.
I agree with parts I, II, and III of Justice Levin’s opinion._
This statute was repealed by 1978 PA 368; MCL 333.1101 et seq.; MSA 14.15(1101) et seq., effective September 30, 1978. The complaint against Dr. Marrs concerned violations alleged to have occurred between March 1977 and September 1978.
The Attorney General argued in the application for leave to appeal to this Court:
"The integrity of the administrative process demands that the Board, not a reviewing court, exercise the discretionary judgment which the legislature has entrusted to it. If the reviewing court concludes that an agency vested with broad discretion to fashion sanctions has abused that discretion, remand to the agency for reconsideration, not redetermination of the sanction by the court, is ordinarily the reviewing court’s proper course.
"Thus, had the Court of Appeals in the Marrs case followed the proper course, it would have, upon a finding of abuse of discretion by the Board, remanded the case to the Board for reconsideration to address the mitigating circumstances testified to by Marrs.
"The case authority is abundantly clear that the Court of Appeals’ action in usurping the function of the Board rather than remanding was an exercise of administrative authority that the Court of Appeals did not possess. Although 1969 PA 306, § 106 [MCL 24.306; MSA 3.560(206)] reads that the court may modify an agency’s decision, it is a recognized principle of administrative law that such language does not authorize a reviewing court to exercise an essentially administrative function, or, as in the Marrs case, to determine a sanction or administratively determined remedy.”
Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959), relied on in the opinion of the Court and cited by the Attorney General in the Court of Appeals, is not cited in the application for leave to appeal, probably because the Attorney General makes no claim in this Court that the Court of Appeals erred in finding an abuse of discretion.
The opinion of the Court states:
"We agree with the Board of Medicine that the Court of Appeals clearly erred in finding an abuse of discretion on the facts of this case.” (Emphasis added.)
The foregoing statement is inaccurate because the board made no such argument.
The Attorney General cites, among other cases, the decision of the New York Court of Appeals in Ahsaf v Nyquist, 37 NY2d 182; 371 NYS2d 705; 332 NE2d 880 (1975).
See also Federal Power Comm v Idaho Power Co, 344 US 17, 19-20; 73 S Ct 85; 97 L Ed 15 (1952); Nightingale v State Personnel Bd, 7 Cal 3d 507, 514-516; 102 Cal Rptr 758; 498 P2d 1006 (1972); O’Donnell v Bassler, 289 Md 501, 509-511; 425 A2d 1003 (1981). Skold v Johnson, 29 Wash App 541, 549-551; 630 P2d 456 (1981).
Marrs cites Poirier v Dep’t of Health & Rehabilitative Services, 351 So 2d 50, 55 (Fla App, 1977), for the proposition that a reviewing court can modify an administrative sanction.
See also Feliciano v Illinois Racing Bd, 110 Ill App 3d 997, 1004-1005; 443 NE2d 261 (1982); Mayflower Securities Co, Inc v Bureau of Securities, 64 NJ 85, 92-94; 312 A2d 497 (1973); Arkansas State Bd of Pharmacy v Patrick, 243 Ark 967, 973-975; 423 SW2d 265 (1968). Cf. Arkansas State Bd of Pharmacy v Isely, 13 Ark App 111, 115-116; 680 SW2d 718 (1984), recognizing the authority of a court to modify a penalty assessed under the Arkansas Administrative Procedures Act if it is found to be unduly harsh or unreasonable, but remanding to the board for a redetermination of the penalty.
The Court of Appeals found no need, in light of its disposition, to address that argument.
The opinion of the Court adopts the reviewing standard stated in Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959), stating that is the standard "in a civil matter.” The dictum of Spalding v Spalding has indeed been reiterated in a wide variety of situations, civil and criminal, with little thought to whether what was stated by this Court in Spalding, when reviewing an appeal from a child-support order, has application in other contexts. See People v Talley, 410 Mich 378, 396; 301 NW2d 809 (1981) (Levin, J., concurring).
While courts generally, in construing the language of state and federal administrative procedures acts, limit the scope of judicial review, no court has gone as far as this Court does today — in assimi lating the standard stated in Spalding v Spalding — in foreclosing judicial review of administrative agency action. This is, I believe, especially inappropriate in light of the higher standard apparently imposed by this state’s constitution. See n 13 and accompanying text and Michigan Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116; 223 NW2d 283 (1974).
MCL 24.292; MSA 3.560(192).
People v Hastings, 422 Mich 267; 373 NW2d 533 (1985) (Levin, J., concurring).
Administrative Procedures Act of 1969, MCL 24.201 et seq.; MSA 3.560(101) et seq.
Model State Administrative Procedures Act, 14 ULA 357 et seq.
Section 106(e) states the reviewing standard as whether the action of the administrative agency was "[arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.” This language has been given differing constructions in other jurisdictions.
Judge Friendly discusses two different meanings of the term "abuse of discretion” as found in the federal administrative act. Wong Wing Hang v Immigration and Naturalization Service, 360 F2d 715 (CA 2, 1966). One is a sort of "clearly erroneous” concept. The second is that discretion is deemed to be abused only when the action " 'is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view’ under discussion.” Judge Friendly adopts the second, narrower meaning of "abuse of discretion” and sets forth the standard as whether the decision were made "without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as an invidious discrimination against a particular race or group, or ... on other 'considerations that Congress could not have intended to make relevant.’ ” Id. at 718-719.
The United States Supreme Court construed this language to mean that a reviewing court would find an agency rule to be "arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfg Ass’n v State Farm Mutual Automobile Ins Co, 463 US 29, 43; 103 S Ct 2856; 77 L Ed 2d 443 (1983).
The California courts state that the test of whether an administrative body acted within its discretion in imposing a penalty is whether "reasonable minds might differ” regarding the propriety of the penalty imposed. Cooper v Bd of Medical Examiners, 49 Cal App 3d 931, 949-950; 123 Cal Rptr 563 (1975); Harris v Alcoholic Beverage Control Appeals Bd, 62 Cal 2d 589, 593-594; 43 Cal Rptr 633; 400 P2d 745 (1965).
New York courts have ruled that agency action is "arbitrary” when it is "without sound basis in reason and is generally taken without regard to the facts” and, particularly with regard to the imposition of penalties, when it is "shocking to one’s sense of fairness.” Pell v Bd of Ed, 34 NY2d 222, 230-231; 356 NYS2d 833; 313 NE2d 321 (1974).
Professor Cooper has suggested that this language should "be construed as meaning also that the license may not be revoked if the licensee can make a showing that after having received notice of threatened revocation, he has corrected the deficiencies noted and achieved compliance with all lawful requirements (although, of course, in cases involving wilful misconduct it would be expected that a mere promise of reformation would not necessarily be sufficient to stave off revocation).” 2 Cooper, State Administrative Law, pp 496-497.
In Rogers v Cosmetology Bd, 68 Mich App 751; 244 NW2d 20 (1976), the Court of Appeals declared that § 92 required an informal opportunity to show compliance. In apparent accordance with Professor Cooper’s suggestion, it is stated in a footnote that "[i]f at the informal stage the licensee offers to correct violations, or offers proof that no violations were committed, the board would presumably not hold the hearing. We do not face the question of the board’s obligation to discontinue the proceedings upon an offer of compliance by a licensee.” Id. at 754, n 1.
The United States Court of Appeals for the First Circuit also suggests that a show of future compliance by a nonhabitual offender may be sufficient to prevent revocation of the license in saying, with reference to the apa rule, that it “may well allow the dog one bite; it does not sanction the habit.” HP Lambert Co v Secretary of Treasury, 354 F2d 819, 821, n 2 (CA 1, 1965).
"All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.” Const 1963, art 6, § 28.
"Sec. 106. (1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:
"(a) In violation of the constitution or a statute.
"(b) In excess of the statutory authority or jurisdiction of the agency.
"(c) Made upon unlawful procedure resulting in material prejudice to a party.
"(d) Not supported by competent, material and substantial evidence on the whole record.
"(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.
"(f) Affected by other substantial and material error of law.
"(2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings.” MCL 24.306; MSA 3.560(206).
The foregoing language is modeled upon § 15(g) of the Revised Model State Administrative Procedure Act. 14 ULA at 431.
"§ 15(g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
"(1) in violation of constitutional or statutory provisions;
"(2) in excess of the statutory authority of the agency;
"(3) made upon unlawful procedure;
"(4) affected by other error of law;
"(5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
"(6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”
The corresponding federal provision stating the scope of review is 5 USC 706:
"§ 706. Scope of review
"To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.
"The reviewing court shall—
"(1) compel agency action unlawfully withheld or unreasonably delayed; and
"(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
"(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
"(B) contrary to constitutional right, power, privilege, or immunity;
"(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
"(D) without observance of procedure required by law;
“(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
"(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
"In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. (Sept. 6, 1966, PL 89-554, § 1, 80 Stat 393.)” | [
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Per Curiam.
The sole question in this case is this: Is an indigent patient, who has been confined in the asylum for the insane at Kalamazoo, and has been removed therefrom as an unrecovered patient, and remained away from the asylum more than one year, entitled to be returned to the asylum as a State charge ? The statute is as follows:
“ An unrecovered patient, removed temporarily on trial, if returned to the asylum within one year from date of removal, shall not forfeit his right to State support.” 3 How. Stát. § 1930c8.
The patient in this case has been away from the asylum for two years and four months. The usual proceedings were then taken before the probate court to have her adjudged insane, and sent to the asylum. The probate court directed that she be received as a State charge.
The clear implication is that a return within one year is necessary to entitle the patient to be received at the expense of the State. If returned after the expiration of a year, an insane person becomes a charge upon the. county. The respondent was right in refusing to admit the patient.
The writ is denied. | [
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Long, J.
This bill is filed to set aside a certain trust deed made in September, 1892, by complainant and his wife to defendant Anderson, and to have the property re-conveyed to complainant, on the ground that the deed was obtained by coercion and false representations in regard to the income of the property, and the representation that the complainant could at any time get the property conveyed by deed back; and he alleges that he had not learned until a short time prior to the filing of the bill that there was no provision in the trust deed which allowed him to have a reconveyance.
It appears that the complainant and his wife, Agatha, owned a considerable amount of property when she died, on March 28,1892. Her estate amounted to some $16,000, and she left it in the hands of a trustee, to be divided among her nine children at the death of her husband, but provided that, in the event that he should give any considerable amount more, by will or otherwise, to any child, such an amount should be deducted from the share of that child só that the shares of their children from the two estates should be as nearly equal as possible. On the 6th day of September after the death of his wife, complainant remarried. The children were all opposed to this marriage; and, according to the testimony of complainant, they all treated him very badly when they discovered the marriage was to take place. The next day after the marriage, the children filed a petition in the probate court for a general and special guardian, alleging that the complainant had been drinking, that he was partially insane, and was under the influence and control of a woman of bad repute (meaning the wife of complainant), and that he-was squandering his property. The citation was served on complainant. A meeting was thereafter had between him and the attorneys for the children, when it was agreed a trust deed should be made to defendant Anderson, by which the property should go to complainant’s children after his death. The deed in question was thereupon drawn, and executed by complainant and his wife. This deed provides that the second party, Anderson, shall have full control and management of all of said property,, and receive the rents and profits arising therefrom, during the natural life of John Zinser (complainant); that Anderson shall pay out of the rents and profits .all taxes assessed on the property, all necessary insurance and repairs, and retain from said income a reasonable amount for his time and services in the management of the property, paying any and all balances that may remain at the end of each year to complainant for and during the period of his natural life; that, immediately after the death of complainant, the trustee shall sell and dispose of the property, and divide the proceeds among the children of complainant, the proportion to be paid to each being specifically set forth in the deed.
"We think the testimony fairly shows that the complainant fully understood this deed, and the effect it had upon his property, as well as the proportion which each of his children would take. His counsel contend that the deed was executed (1) under duress; (2) while complainant was in poor health, and under the undue influence of others, and without legal advice; (3) without knowledge on the part of complainant that it was irrevocable. After the execution and delivery of the deed, the trustee entered upon the execution of the trust, and has continued to discharge those duties since. After the delivery of the deed, complainant and his wife moved to Traverse City, but did. not live happily together. She filed a bill against him for divorce, and petitioned for an allowance of alimony, setting up in the petition that John M. Zinser was worth from $75,000 to $80,000. Mr. Zinser answered this bill, and resisted the payment of alimony. In answer to the petition he filed his own affidavit. This affidavit is dated November 16, 1894, being more than two years after the trust deed was delivered. In that affidavit he stated that it was not true that he was worth $75,000 to $80,000; “that it is true that, at the time of his marriage to said complainant, he had considerable property; and that, shortly after said marriage, said complainant and this deponent freely and voluntarily executed and delivered a deed of a large part or portion of said property, in trust, to go to defendant’s children after his death, and that the only interest said defendant has in said property is the income derived therefrom after paying taxes and other expenses; that' said property consists of a large block situated in Grand Rapids; that the same is now almost unproductive; and that this deponent has not for six months last past derived any income or returns from said property.”
There is no evidence on this record of a convincing nature that this deed was executed under duress, while complainant was in poor health or laboring under great mental excitement, or that it was procured by undue influence ; and the affidavit of the complainant, made more than two years after the deed, shows conclusively that it was made freely and voluntarily. This affidavit also rebuts any theory that counsel now advance that the complainant did not know that the deed was irrevocable.
There is some intimation in the brief of counsel for complainant that the trustee has not faithfully discharged the trust imposed. We find no proof in this record sustaining such a contention. He has so far accounted fully for the income of the property.
The court below very properly dismissed complainant’s bill. That decree will be affirmed, with costs.
Grant, C. J., Montgomery and Moore, JJ., concurred. Hooker, J., did not sit. | [
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] |
Montgomery, J.
This is a summary proceeding to recover possession of a store building. The proceeding was commenced before a circuit court commissioner, and on appeal to the circuit court a verdict was directed for the defendants, and complainant assigns error.
The defendant Charlotte La Londe is the owner of the premises in question. The evidence adduced on the part of the complainant tended to show that on the 18th of January, 1898, Mrs. La Londe, through her son acting as her agent, made a lease of the premises in question to complainant for one year, commencing February 1, 1898; that, before he acquired possession, Mrs. La Londe leased the premises in question to the defendant Moloney, who moved in and took possession on the 32d of January. On the 1st of February, complainant demanded possession, and, upon defendants’ refusal, instituted this proceeding.
At the close of the testimony, the circuit judge charged the jury that the statute does not contemplate putting the tenant into possession of lands which he has leased, and which the landlord refuses to give to him, and that the lessee of lands who has not been in possession of them cannot institute proceedings under the statute to compel the landlord to give him possession, and directed a verdict for the defendants. It is contended that this was error; that the lessee, although not let into possession, has such an interest in the premises as will entitle him to recover possession; and, second, that such possession can be recovered in a summary proceeding under the statute. We find it unnecessary to determine the first of these propositions. The statute (2 How. Stat. § 8295) limits the remedy by summary proceedings. Unless the facts of this case bring it within the provisions of that statute, the remedy of the complainant must be either by an ^action for damages or ejectment.
But two of the subdivisions of the statute can by any stretch be said to have any application. They are the first and fourth, which read as follows:
“When any person shall hold over any lands or tenements after the time for which they are demised or let to him, or to the person under whom he holds, or contrary to the conditions or covenants of any executory contract for the purchase of lands or tenements, or any lease or agreement under which he holds, or where rent shall have become due on any such lease or agreement, and demand of the rent or possession of the premises is waived therein in writing, and not included in the printed form of the lease or agreement.”
“When any tenant at will or by sufferance shall hold over after the determination of his estate by a notice to quit, as provided by law.”
This case does not fall within the first subdivision. The defendant La Londe is not holding over after the time for which the premises were demised or let to her, or contrary to the conditions or covenants of a contract for the purchase of lands or tenements, or of any lease under which she holds. It may be contended that, by her failure to deliver possession at the time stated, she, through her tenant, Moloney, is holding the premises contrary to her agreement to let or lease. But it is not a lease under which she holds. She holds and has held possession as the owner of the title. She was not vested with possession under this lease, and cannot be said to hold under this lease, or to have ever held thereunder. This distinguishes this case from Gale v. Eckhart, 107 Mich. 465, in which case the grantor reserved the right of possession until April 1, 1894, and became a tenant of the purchaser.
Counsel contend that the defendants became tenants .at sufferance when possession was withheld. If this be granted, it does not aid complainant. If the defendants are tenants at sufferance, they are not holding over “after a determination of their estate by a notice to quit.” It is contended that a person holding over at sufferance is not entitled to a notice to quit unless he is permitted to retain possession by the owner or one entitled to possession. The cases of Allen v. Carpenter, 15 Mich. 25, and Benfey v. Congdon, 40 Mich, 283, are cited to support this contention. This is unquestionably the doctrine of the cases cited, but in these cases the complainant was in each case entitled to invoke the statute by virtue of other provisions. Neither case is authority for the position that a summary proceeding may be instituted against a tenant at sufferance unless he holds .over after notice to quit, unless, under other provisions of the statute, jurisdiction is conferred. The statute cannot be extended by construction. 9 Enc. Pl. & Prac. 45.
The circuit judge was right in directing a verdict for the defendants.
Judgment affirmed.
The other Justices concurred. | [
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Per Curiam.
Relator claims that he was duly elected a member of the school board of school district No. 1 of Mackinac Island at the regular election held July 12, 1897, and that his election was duly announced; that he duly qualified and acted as such member. September 20, 1897, one Emerick, a member of said board, holding over by reason of the failure of his duly-elected successor to qualify, filed a bill in chancery to restrain relator from interfering with the school-house or school property, and from interfering with the management and control of the other alleged officers. Relator answered said bill, denying all material averments, and moved to dissolve the preliminary injunction which had been granted. That motion was denied October 5, 1897. Relator now asks for the writ of mandamus to compel respondent to set aside the injunction.
"We do not find any statement in the petition which would justify us in holding that the court abused its discretion in such matters.
Order to show cause denied. | [
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Long, J.
The charter of the city of Detroit provides that “the said council may also license and regulate auctioneers, hawkers, peddlers, newsboys,” etc. Charter & Laws for City of Detroit (Ed. 1893), § 139. The ordinances of the city of Detroit provide (Rev. Ord. 1895), by section 1, chap. 105, that “no person shall follow the busi ness or occupation of a hawker and peddler within the limits of the city of Detroit without a license from the mayor.” By section 2 the mayor is given power to issue licenses. All licenses are to be for one year from June 1st, or such portion of the year as may intervene between the date of the granting of the license and the 1st day of June next ensuing. Section 3, as amended in 1897, provides:
“Any person soliciting a license shall pay therefor as follows: For hawking or peddling while traveling on foot, the sum of five dollars; for peddling from hand-carts, the sum of twenty-five dollars, and stands in the public streets, the sum of five dollars; for peddling from any conveyance with one horse or other animal, the sum of twenty-five dollars; for peddling from any conveyance drawn by two or more horses or other animals, the sum of fifty dollars.”
Respondent was convicted in the recorder’s court of the city of Detroit for peddling produce without a license, and the case was removed to the Wayne circuit by certiorari, where the conviction was set aside. The case comes to this court by writ of error.
It is contended by counsel for respondent:
1. That the ordinance is unreasonable and excessive.
2. That it is in restraint of trade, and discriminates, favoring some and injuring others in the same business.
3. That it changes the amount during the term for which the license is granted, and is not uniform.
The first point is governed by People v. Baker, 115 Mich. 199, and-cases there cited. In that case an ordinance of the city of Ionia provided for a license to hawkers and peddlers of five dollars per week, and it was held not unreasonable.
The second point falls directly within the ruling of this court in People v. Sawyer, 106 Mich. 128. That case was brought under the same ordinance of the city of Detroit as the present. The question was raised there that ’ the ordinance was in restraint of trade, and the question settled against the contention.
The other questions need not be discussed. The ordinance is uniform, in,that it provides for a license by the year or part of the year.
The order of the circuit court setting aside the conviction must be reversed, and the order of the recorder’s court affirmed.
The other Justices concurred. | [
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Long, J.
A petition for a writ of assistance was filed by J. Everett Ball in a proceeding by the auditor general of the State in the Ontonagon circuit court, in chancery, for the sale of certain lands delinquent for taxes. Respondent answered the petition, and, after a hearing in that court, an order was made directing that the writ of assistance issue. Respondent [appeals.
It appears that the lands were bid in by the State in December, 1895; and in February, 1897, the auditor general executed and delivered to the petitioner deeds for the lands. Demand of possession was made upon the parties in possession of the lands by the petitioner, and, upon the refusal to surrender, this petition was filed. Respondent answered the petition, and by the answer claimed:
(1) That the court had no jurisdiction to enter the decree of sale, for the reason that there was no completed assessment roll, as it was not reviewed by the board of review of the township, as required by the statute; that there was no proper certificate attached, and no entry of values by the board in separate columns.
(2) That the tax law of 1893, under which the lands were sold, is unconstitutional, in that it provides for no personal service of notice upon the landowner of the proceeding for the foreclosure of the tax lien, which results in a decree and sale of the land, thus depriving the owner of his property without due process of law, contrary to the provisions of the fourteenth amendment to the Constitution of the United States; and also that it is unconstitutional for the reason that it provides that the tax deed shall -be conclusive evidence of title in the tax purchaser.
(3) That the act is also unconstitutional in so far as it provides for the granting of a writ of assistance to the purchaser of the tax title, as it deprives the owner of the right to try the title to his land before a jury in an action of ejectment.
The questions will be discussed in the order stated in the answer.
1. Section 29, Act No. 206, Pub. Acts 1893, provides for a meeting of the board of review in each township on the Tuesday next following the third Monday of May in each year; that the supervisor shall submit to the board his assessment roll, and the board shall examine and review the same. The board is given power, on sufficient cause shown, to add the names of persons to the roll; also, the values and descriptions of personal and real property liable to assessment, which has been omitted. It may also correct errors in names and descriptions of property. This section then provides:
“The board shall pass upon each valuation'and each interest, and shall enter the valuation of each, as fixed by it, in a separate column. The roll as prepared by the supervisor shall stand as approved and adopted as the act of the board of review, except as changed by a vote as herein provided.”
Section 30 provides:
“After said board shall complete the review of said roll, a majority of said board shall indorse thereon and sign a statement to the effect that the same is the assessment -roll of said township for the year in which it has been prepared and approved by the board of review.”
An abstract of the assessment rolls for 1892 and 1893 is contained in the record. In each of these years the columns for the valuations fixed by the board are left blank.There is a certificate attached to each roll, and signed bjr the members of the board of review, in the following form:
“Assessment roll for the township of Greenland, county of Ontonagon, and State of Michigan, for the year 1892 [and 1893], as approved by the board of review.”
There is nothing upon either roll showing that the board of review made any changes in the roll by adding to or striking from the roll. Inasmuch as the statute provides that ‘ ‘ the roll as prepared by the supervisor shall stand as approved and adopted as the act of the board of review, except as changed by a vote as herein provided,” and there being no figures in the columns which are prepared for such changes, the presumption follows that no changes were made by the board, and hence there was no necessity to insert any figures in such columns. Chamberlain v. City of St. Ignace, 92 Mich. 335. But, in any event, that question was foreclosed in the auditor general’s proceedings in which the decree was entered. Muirhead v. Sands, 111 Mich. 487.
2. Section 62 of the act provides that, on the filing of the petition by the auditor general, the court shall make an order fixing a day for hearing, etc. Section 66 provides that this petition and order shall be published at least once in each week for four successive weeks next prior to the time of hearing, and further provides:
“The publication of the order and petition aforesaid shall be equivalent to a personal service of notice on all persons who are interested in the lands specified in such petition of the filing thereof, of all proceedings thereon, and of the sale of the lands under the decree, and shall give the court jurisdiction to hear such petition, determine all questions arising thereon,, and to decree a sale of such .lands for the payment of all taxes, interest, and charges thereon.”
It appears that the respondent is a resident corporation, and was in possession and occupancy of the lands in controversy here.
It was said in Muirhead v. Sands, supra, that—
“The statute makes the publication the equivalent of personal service, and it is therefore the duty of the owner to watch the proceedings provided for by the statute for the foreclosure of the lien, and interpose any objection he may have to-the validity of the tax. The purpose of the statute is to give every person his day in court,, in an equitable proceeding.”
This case followed the rule of this court in Cole v. Shelp, 98 Mich. 58, and In re Wiley, 89 Mich. 58. Inasmuch as counsel have reargued that question in their briefs, we have re-examined it, and are satisfied that the ruling heretofore made must be adhered to. Judge. Cooley, in the second edition of his work on Taxation (page 527), speaking of the proceeding to enforce the payment of the tax upon land, and of its nature, says:
“ Proceedings of this nature are not usually proceedings against parties; nor, in the case of lands or interests in lands belonging to persons unknown, can they be. They are proceedings which have regard to the land itself, rather than to the owners of the land; and if the owners are named in the proceedings, and personal notice is provided .for, it is rather from tenderness to their interests, and in order to make sure that the opportunity for a hearing shall not be lost to them, than from any necessity that the case shall assume that form. As in all other cases of proceedings in rem, if the law makes provision for publication of notice in a form and manner reasonably calculated to bring the proceedings to the knowledge of the parties who exercise ordinaiy diligence in looking after their interests in the lands, it is all that can be required.”
Two years before the above work was written, Mr. Justice Cooley, in the State Tax-Law Cases, 54 Mich. 362, had said:
“The first objection made to the statute is that it makes no provision for personal service on resident owners of land. We think this objection without force; but, in view of the necessary length of the opinion, we pass it without discussion, for the reason that the respondent, by filing demurrer, has put itself in a position which precludes the raising it.”
In Pennoyer v. Neff, 95 U. S. 714, the distinction is clearly drawn between actions in which the notice must be personal and those in which it may be by substituted service, as by publication, and it is said: "Such service [substitutive] may answer in all actions which are substantially proceedings in rem.” This rule was also recognized and followed in Francis v. Grote, 14 Mo. App. 324; Eitel v. Foote, 39 Cal. 439; Chauncey v. Wass, 35 Minn. 23; Kansas City v. Duncan, 135 Mo. 583; Dousman v. City of St. Paul, 23 Minn. 398. See, also, Black, Tax Titles, § 166.
In Winona, etc., Land Co. v. Minnesota, 159 U. S. 537, the question of the sufficiency of the notice by publication under the Minnesota tax statute was under consideration. Mr. Justice Brewer said:
“All the privileges which are secured to the property owner in respect to the taxes of the current year are also secured to him in reference to those imposed under amended section 113. He is therefore notified and given an opportunity to be heard before his property is taken from him. Questions of this kind have been repeatedly before this court, and the rule in respect thereto often declared. That rule is that a law authorizing the imposition of a tax or assessment upon property according to its value does not infringe that provision of the fourteenth amendment to the Constitution which declares that no State shall deprive any person of property without due process of law, if the owner has an opportunity to question the validity or the amount of it either before that amount is determined or in subsequent proceedings for its collection. * * * That the notice is not personal, but by publication, is not sufficient to vitiate it. Where, as here, the statute prescribes the court in which and the time at which the various steps in the collection proceedings shall be taken, a notice by publication to all parties interested to appear and defend is suitable, and one that sufficiently answers the demand of due process of law,”— citing State Railroad Tax Cases, 92 U. S. 575, 609; Hagar v. Reclamation District, 111 U. S. 701, 710; Kentucky Railroad Tax Cases, 115 U. S. 321; Lent v. Tillson, 140 U. S. 316, 328; Pittsburgh, etc., R. Co. v. Backus, 154 U. S. 421.
The authorities might be multiplied upon this subject. The great weight of authority supports the ruling made in Muirhead v. Sands, 111 Mich. 487.
It is contended that, the statute having provided that the tax deed shall be conclusive evidence of title in the purchaser, the act is therefore void.
“Declaring tax titles conclusive is no new thing in legislation. * * * The legislature has repeatedly undertaken to give greater force to tax deeds than could legally be sanctioned. But the attempt, though unsuccessful, was never supposed to affect the whole tax law.” Judge Cooley in State Tax-Law Cases, 54 Mich. 367.
Whether the deeds in the present case are to be treated as conclusive or not is wholly unimportant. Even if that clause should be held unconstitutional, it would not render the whole act void. If the „court had jurisdiction to render the decree, no irregularities prior to the decree can now be set up to defeat the deeds.
3. Section 72 of the tax law provides: “The courts may, on application, put the purchaser in possession of the premises by writs of assistance.” It is the contention of counsel that this provision is unconstitutional, because it deprives the landowner of the right of trial by jury in an action of ejectment, and is in violation of section 27 of article 6 of the Constitution of this State, which provides that “the right of trial by jury shall remain.” The argument is that numerous questions of jurisdiction to enter the decree may arise, and these questions may rest upon facts to be passed upon, and which are still open to attack, affecting the validity of the title.
This is not a trial of the respondent’s right of possession, or of its title to the premises. ’ Those questions were involved in the issue upon the auditor, general’s petition. Upon the filing of the petition for the writ of assistance, the inquiries are:
(1) Whetner the court had jurisdiction to render the decree.
(2) Whether all the steps required by the statute have been taken in making the sale, filing the report of sale, etc.
(3) Whether the time for redemption has expired.
These are questions which may be determined by the chancery court in the tax proceedings. The provision of the statute for the issuance of a writ of assistance is the means provided by the legislature to enable the court to carry its decree into execution. The calling of a jury to determine the questions arising under this application would be but an idle ceremony. Where the court of chancery has power to decree, it has power to carry its decree into effectual execution. In cases of mortgage foreclosures it is the general rule that the purchaser of the lands sold under the decree is entitled to be put into possession by the court entering the decree. It was said in Ludlow v. Lansing, Hopk. Ch. 232, that “to transfer the title, and leave the purchaser to another suit to obtain possession from a party whose rights have been fully decided by this court, would be useless and vexatious circuity.” The object of a writ of assistance is to compel parties who are bound by a decree in foreclosure to give up the possession which the decree and sale under it estop them from further asserting. Ramsdell v. Maxwell, 32 Mich. 285. And matter set up in defense to a motion for a writ of assistance cannot be received to affect the decree determining the defendant’s rights, unless the matter goes to the jurisdiction of the court in rendering the decree. Howe v. Lemon, 47 Mich. 544; Muirhead v. Sands, supra.
We can see no distinction between a decree rendered in the foreclosure of a mortgage and the decree in a tax proceeding, as in the present case, so far as these questions are concerned. One deprives the party of the title and right to possession the same as the other; and the rules for the enforcement of a decree in a foreclosure proceeding are applicable to the enforcement of a decree in a tax proceeding. The respondent has had its day in court in this equitable proceeding. It is well settled in foreclosure proceedings that the purchaser of the premises under the decree cannot be compelled to resort to a court of law to obtain possession. In Kershaw v. Thompson, 4 Johns. Ch. 609, it appears that a decree of sale was made that did not contain any order that the purchaser be let into possession. An application for a writ of assistance was made, and the defense was specifically raised th _ the purchaser under the decree should be left to his remedy by ejectment. Mr. Chancellor Kent said:
“ If it was to be understood that, after a decree and sale of mortgaged premises, the mortgagor or other party to the suit, or, perhaps, those who have been let into the possession by the mortgagor pendente lite, could withhold the possession in defiance of the authority of this court, and compel the purchaser to resort to a court of law, I apprehend that the delay and expense and inconvenience of such a course of proceeding would greatly impair the value and diminish the results of sales under a decree. * * * It seems to be absurd to require the assistance of two distinct and separate jurisdictions for one and the same remedy, viz., the foreclosure and possession of “the forfeited pledge. * * * It may be safely laid down as a general rule that the power to apply the remedy is co-extensive with the jurisdiction over the subject-matter. A bill to foreclose the equity of redemption is a suit concerning the realty, and in rem; and the power that can dispose of the fee must control the possession.”
This is the rule of all the cases in foreclosure proceedings. Montgomery v. Tutt, 11 Cal. 190; Terrell v. Allison, 21 Wall. 289; Schenck v. Conover, 13 N. J. Eq. 220 (78 Am. Dec. 95); Stanley v. Sullivan, 71 Wis. 585 (5 Am. St. Rep. 245).
But counsel contend that our Constitution guarantees the right of trial by jury, and that, therefore, the respondent was entitled to a trial in an action of ejectment, where a jury might be called. This question was discussed by Mr! Justice Cooley in the State Tax-Law Cases, supra. It was there said:
“This case is a proceeding in equity instituted by the State to enforce against a parcel of land a lien which it’ . claims for taxes, and it is a different proceeding altogether from any which was known to our jurisprudence in 1850. It is a new proceeding, and therefore, if jury trial cannot fee had in it, that method of trial is not cut off, but is simply not given. There is nothing in the Constitution which renders it necessary to provide for jury trial in new cases. The constitutional provision is, ‘ The right of trial by jury shall remain,’ by which we are to understand merely that it is retained for the cases in which it existed before. * * * But it may be said, and is said, that, in the event of a sale taking place and of a deed being given in these proceedings, jury trial would be an idle ceremony, because the act makes the deed conclusive evidence of title in the purchaser. In response to this it may well be replied — and the experience of every practicing lawyer will confirm it- — -that jury trial in cases involving the validity of a tax deed was always an absurdity. * * * Such cases are therefore either tried by the court without a jury, or, if a jury is called, the court, by his charge, determines what the verdict should be, and the jury merely bow their heads in assent. Jury trial, therefore, as a great constitutional privilege in such cases, if not calculated to provoke a smile as an absurdity, is certainly without any claims upon courts for. the straining of a point for its protection. * * * It is often said that a court of chancery is not the proper tribunal for the trial of titles to land, and perhaps a notion has arisen from this that there is some constitutional impediment. If it were the fact, it would be immaterial in this case, for this, as we have already said more than once, is not a case in which titles are to be tried, or in which a title is even dis-puted. But the notion that the chancery court cannot try titles to land under proper legislative authority is quite baseless. My Brother Campbell showed this very satisfactorily in Hoffman v. Beard, 22 Mich. 59, 69. That case was a suit in partition, and the land was held adversely to the complainant.”
In Ward v. Farwell, 97 111. 593, the constitutionality of a statute allowing a receiver of an insurance company to file a bill to assess the stockholders was attacked because it did not provide for a trial by jury. The court cited the provision in regard to jury trial, as contained in the several constitutions that have been in force in Illinois, and said:
“The constitution of 1870, by which the question under consideration must be determined, guarantees the right of trial by a jury to all persons, whether natural or artificial, to the same extent and in the same manner it had been enjoyed previous to its adoption. The provisions of the previous constitutions above cited were never regarded, so far as we are advised, as being mandatory upon courts of equity, if, indeed, as having any application to proceedings in those courts. And it was, and still is, under the present constitution, the constant practice of those courts to decide, without the intervention of a jury, im-. portant questions of fact involving property rights, without at all consulting the wishes of the parties to the proceeding ; whereas, if the same questions were to arise in a common-law action, either of the parties to the suit would have the constitutional right to have them passed upon by a jury. And the right of a court of equity to pass upon questions of this kind does not depend upon the fact that the cause of action was one of equitable cognizance prior to the adoption of the existing constitution. It is sufficient if it is one in fact, without regard to when it became so or was first recognized by the courts as such. It is a fact well understood by all who are .familiar with the history of courts of equity that their jurisdiction, from the earliest times to the present, has been of a gradual and constant growth. Originally, the subjects over which they assumed jurisdiction were comparatively few; but, in process of time, they have gradually increased to an almost indefinite extent. Nor is it important whether this gradual growth in their jurisdiction is attributable to direct legislation, or to the enlarged views of the eminent chancellors who have presided over and shed so much luster upon those courts. It is sufficient if the subject-matter of the suit is one of equitable cognizance, without regard to when it first became so or was recognized as such; and in all such cases, except where some statute has otherwise expressly provided, the court may, if it thinks proper to do so, pass upon all questions of fact involved' in the controversy without the intervention of a jury. Of course it would not be competent for the legislature to defeat the right of trial by a jury in common-law cases by simply declaring they might be tried in courts of chancery, and that the proceedings therein should conform to the proceedings in chancery causes. This would simply be an attempted evasion of the provisions of the constitution. Where a new class of cases are, by legislative action, directed to be tried as chancery causes, it must appear that, when tested by the general principles of equity, they are of an equitable character, and can be more appropriately tried in a court of equity than in a court of law. And if of this character, when brought in a court of equity, they stand upon the same footing with other causes, and the court will have the right, as in other cases, to determine all questions of fact without submitting them to a jury. * * * The constitutional provisions we have cited were designed simply to secure the right of trial by jury in all tribunals exercising common-law jurisdiction as it had theretofore been enjoyed. It was not intended to confer the right in any class of cases where it had not previously existed; Nor was it intended to introduce it into special summary jurisdictions unknown to the common law, and which do not provide for that mode of trial,” — citing Johnson v. Railroad Co., 23 Ill. 203; Sedg. Stat. & Const. Law, 549; Ross v. Irving, 14 Ill. 171.
Some question is raised over the sufficiency of demand of possession of the premises. We think the testimony conclusively shows that a proper demand was made upon the proper agents of the respondent who were in possession of the premises. The deeds were produced and exhibited to the parties in possession, who refused to surrender.
The court below ordered the writ of assistance to issue, and, we think, very properly, under the showing made. That order mubt be affirmed, with costs.
The other Justices concurred. | [
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Brickley, J.
These consolidated suits involving the State Tax Commission and five Michigan counties concern principally the method of arriving at the state equalized value of real property in two respects: the effect of land contracts and other "creatively financed” transactions on "true cash value,” and the need to employ a "trending” factor to the data base of sales-ratio studies in order to more accurately pinpoint the "true cash value” of property on "the tax day.”
We hold that, when the seller of real property has contributed in a significant respect to the buyer’s ability to obtain financing at an interest rate artificially below the prevailing cost of borrowing, a method of valuation that separates the cost of such artificially low financing from the sales price to achieve the "true cash value of such property” is required by the applicable statutes, when they are read, as they must be, to comport with the constitution. We also find that the State Tax Commission has not committed an error of law or applied a wrong principle in refusing to adopt the plaintiffs’ proposed method of trending for the sales-ratio studies.
I
Background and Statement of Facts
Five counties are appealing the final state equalized valuations adopted by the State Tax Commission for each of those counties to be used for their 1982 property tax levy. The Washtenaw, Oakland, and Lapeer County cases came to this Court from the Court of Appeals where they were consolidated. Washtenaw County v State Tax Comm, 126 Mich App 535; 337 NW2d 565 (1983), lv gtd 419 Mich 864 (1984). The Livingston and Ingham County cases were originally joined with the Washtenaw case in the Court of Appeals, but were subsequently separated and not heard by that Court, although they were allowed to file a joint brief as amici curiae. When we granted leave in Washtenaw, Livingston and Ingham Counties sought and were granted their application to appeal the decision of the commission, bypassing the Court of Appeals, Livingston County v Michigan and Ingham County v Michigan, lv gtd 419 Mich 864 (1984), and were consolidated with Washte-naw.
In each case, the state equalized value (sev) determined by the commission for residential and certain other classes of property in each of these counties resulted in higher values than those calculated by the county boards of commissioners in the course of establishing their respective county equalized values (cev).
The petitioning counties made or requested the commission to make two types of adjustments to the results of their equalization studies. Those adjustments account for the differences between the cev and sev in these cases, and the propriety of those adjustments is at issue here. The commission, in its equalization studies, disallowed the adjustments made or requested by the counties, finding them to be contrary to the State Tax Commission Assessor’s Manual and applicable statutory and constitutional provisions. The commission also found individual studies in those counties to be lacking in other respects.
The first adjustment to the equalization studies in question was an effort by the counties to account for the effect of "creative financing.”
"Creative financing” occurs where the seller permits the buyer to assume the seller’s existing low mortgage ("assumption”), or the seller pays a lending institution to loan to the buyer at the low market interest rate ("buy down”), or the seller pays "points” to an institution to further an fha-guaranteed, below-market interest rate mortgage loan to the buyer ("fha mortgage”), or the seller sells to the buyer on a land contract ("land contract”), or the buyer both assumes the seller’s old mortgage and borrows more from the mortgagee ("blend”). [Washtenaw County, 126 Mich App 542-543 (opinion of Allen, J.).]
Substantial percentages of the sales used in the equalization studies in question involved creative financing. In determining their cev, the county commissioners applied or advocated the application of a discount in order to account for the price enhancement effect believed to be the by-product of seller-extended credit. Several counties used studies to support their contention that sales involving creative financing resulted in prices that were six to ten percent higher than those of cash or conventional term sales. The counties attributed this price enchancement effect to the high rates for institutional mortgages. (In 1982, they varied from 15.75 percent to 18.5 percent.) Typically, it is contended that, when a buyer takes advantage of a legally limited interest rate, assumes seller’s existing low interest rate mortgage, or is offered a buy-down by the seller, the seller accounts for the difference between the low rate and the prevailing interest rate by increasing the selling price of the property. A land contract is an example of a legally limited rate; by law the seller may charge no more than eleven percent interest, MCL 438.31c(6); MSA 19.15(lc)(6).
The commission disagreed with the counties’ factual conclusion that creative financing affects sales price, as well as with the legal premise that such an adjustment is allowable under the law, even if the effect were to be shown.
In the second type of disputed adjustment, the counties weighted more heavily the sales which occurred closest in time to "tax day,” December 31, 1981. In a period of declining property values, the counties claim that the sales occurring closest to tax day will be the most reliable for purposes of conducting a sales-ratio survey. The counties advocate an adjustment to the sales in their sales-ratio studies, so as to reflect the declining market as of December 31; this adjustment is referred to as "trending.” Unless such an adjustment is made, the counties maintain that the assessment levels would possibly exceed fifty percent. The commission disagrees, arguing that trending will not accomplish its intended purpose. Moreover, because the method is dependent upon a sufficient number of sales in a short period of time, the defendant further argues that it would be applicable in only a few of the more populous counties.
Because the facts in each county differ, the particulars are set forth by county.
Washtenaw County
The County Board of Commissioners for Washte-naw County adopted a 1982 cev of $1,768,505,675 for the residential class of property. The sev for the same class was determined by the commission to be $1,937,707,132, a figure derived from the county equalization study before reduction for creative financing. Washtenaw County conducted several studies, the final conclusions of which were that, of the 1981 residential sales in the county, eighty-nine percent involved creative financing, and that the prices of those sales were consequently enhanced by 8.2 percent. The critical sales-ratio study which resulted in these figures used a sample of 579 disclosed sales, 519 of which were creatively financed. As backup to this study, the county introduced four studies using cash equivalency discounting; a study of 1981 residential land contract sales; thirty-three affidavits from real estate brokers and salespersons; letters from local appraisers; an affidavit showing that, in one school district, alone, on one day, there were twenty-three residential listings giving one price for a cash sale and a higher price for a land contract sale; and finally, evidence of institutional interest rates in 1981.
The commission claims that neither the Michigan Constitution nor applicable statutory or administrative provisions permit this type of adjustment for creative financing. Moreover, the commission believes that the Washtenaw County studies were biased by self-interest and were flawed bé-cause they considered only one-half of the total market in Washtenaw County. Relying on a total of twenty-six studies regarding the effect, generally, of creative financing on selling price, the commission concluded that, while there was evidence on both sides, any effect was de minimus and no adjustments were necessary.
In response, Washtenaw County criticizes the commission studies, because they rely on undisclosed sales and focus on locations outside Washte-naw County. Washtenaw County claims that the samples were neither representative of the entire state nor of any region encompassing Washtenaw County.
Regarding the "trending” issue, or the weighting of sales used in sales-ratio studies that occur closest in time to tax day, Washtenaw County incorporates the arguments advanced by Oakland County. No specific adjustment of this type was made to the Washtenaw County equalized valuations.
Lapeer County
In advocating the first form of disputed adjust ment, Lapeer County focused solely upon the land contract form of creative financing. It conducted a thirty-month sales-ratio study as well as an appraisal study to arrive at its cev for several classes of property in 1982. For the residential class, the county commissioners adopted a cev of $403,599,-481. The commission determined an sev of $437,411,779 — an 8.3 percent difference. The commission apparently relied on assessments which considered only the actual sales price of property sold within the study period. Because twenty-eight percent of the 1980 and 1981 sales in Lapeer County were by land contract, the county claims that the commission’s reliance upon the face value of those contracts was in error. By contrast, the county advocates a discounting method which takes the interest rate of the individual land contract, divides it by the then current money market rate of interest, multiplies that by the unpaid balance at the time of sale and adds the amount of down payment to arrive at the "correct sale price.” They argue that had this method been used in determining sev, the "total County residential class sev starting base would have been lowered by approximately 5.8% . . . .” The county makes essentially the same argument in regard to the agricultural and developmental classes. The commission apparently employed appraisal studies in arriving at sev for those classes; employing a market data approach to appraisal, those studies used the actual sale prices of land contract sales as comparables.
The county claims that it presented "as part of its evidence a letter from the Federal Land Bank Association indicating that for appraisal work, land contracts must be discounted to a cash basis before they can be used.” Moreover, the county argues that any "factfinding” performed by the commission in this case does not apply to Lapeer County, since most of those findings arose from and were presented in conjunction with the Wash-tenaw County hearings.
The commission maintains that Lapeer County authorities "had no factual basis for their argument that the state equalized valuations for the agricultural, residential and developmental classes of property should be lower than that proposed by the State Tax Commission.”
Lapeer County did not raise the trending issue.
Oakland County
The Oakland County Board of Commissioners set the 1982 cev for the residential class at $9,075,300,224. The commission adopted an sev for the same class of $9,619,223,876. The difference in this case is due to the county’s "trending” adjustment, used to account for the "drastic decline” in volume of residential sales for 1981, as compared to previous years; the alleged stabilization of the market for the first five months of 1981; and a decline in values during the second half of the year. In order to account for these market phenomena, which the county maintained would not be reflected in either of the two commission-approved study periods of thirty months and twelve months, the county relied on the most current assessment data available in 1981 to determine the 1982 cev. The county supported its methodology with an independent sales study analysis by mathematician Dr. Michael Skaff.
The sev adopted by the commission was based on the Oakland County equalization studies which were not adjusted for "trending” of sales on tax day. The commission opined "that the use of any equalization study of less than twelve months duration would produce insufficient data upon which an informed and conscious exercise of value judgment could be made.” It found that a study, such as that conducted by Oakland County "would only exaggerate a temporary fluctuation or statistical accident in the real estate market.” In the Matter of Washtenaw County, Oakland County and Lapeer County 1982 State Equalization, Findings of Fact and Opinion. Moreover, as noted above, the commission argues before this Court that the development of a trending formula would be impracticable as applied in some counties and impossible as applied to others.
Oakland County did not make an adjustment for creative financing in its equalization study. However, the county argues in favor of such an adjustment, "[considering that over 50% of the 1981 sales in Oakland County involved land contract financing and that another significant segment of the sales involved assumptions of favorable mortgage terms . . . .”
Livingston County
The Livingston County Board of Commissioners determined the 1982 cev for the residential class to be $832,009,727. The county advocates adjustment for both creative financing and trending. The commission adopted an sev of $919,348,782, a 10.5 percent difference.
Livingston County submitted both a thirty-month and a twelve-month sales-ratio study. The twelve-month study compared the numbers of properties which sold for cash or on conventional terms with those which were creatively financed. Using a cash equivalency formula to reflect the portion of sales price attributable to financing, the board determined that the 1981 sales prices should be lowered by thirteen percent, resulting in a reduction of 8.2 percent in the 1982 assessed values to obtain cev.
The commission found that the twelve-month study was not conducted in accordance with the Assessor’s Manual. In addition, it held that the creative financing adjustment was improper, because the thirteen percent discount was applied in an across-the-board manner to sales not involving creative financing, and because the methodology by which the thirteen percent discount was determined was not shown.
Another Livingston County study also attempted to account for the declining market in 1981 by collecting sales samples for the three months prior to and three months after tax day. The county argues that if its evidence of a continuing decline in the market is not considered in setting sev, the level of assessment in the county as of tax day may exceed the fifty percent limit.
The commission’s position on this issue is identical to that taken in the Oakland County case. The commission maintains that "[i]mperfect value judgment will not be made more reliable by such trending. Assessments will still remain imperfect.”
Ingham County
The 1982 cev and sev for the residential property in Ingham County are the same: $1,452,045,-574. Although the county argued in favor of a creative financing adjustment to sev, it did not make such an adjustment to its 1982 cev, because the commission-approved methods did not seem to allow for such an adjustment, and because the market data available, comparing cash/conventional sales with creatively financed sales, covered only sixty percent of the residential property in Ingham County. The county, nonetheless, presented its sales data and the testimony of a statis tical analyst before the commission, in an effort to convince the commission that its methods were outdated and that the sev for Ingham County should be adjusted downward.
The sales data gathered by Ingham County showed that land contracts constituted approximately fifty percent of the sales in 1981. A comparison of cash/conventional versus land contract terms revealed an average ten percent increase in the sales price for the latter type of financing. Thus, the county advocated discounting all residential cash values by five percent.
The commission rejected the county’s arguments, adopting the same figure as that presented by the Ingham County Board of Commissioners, without adjustments. The commission maintains that the expert and opinion testimony presented by Ingham County showed that the difference in ratios between creatively financed and non-creatively financed sales could be due to any number of undefinable factors.
Ingham County does not raise the trending issue.
Court of Appeals Ruling
The Court of Appeals majority agreed with Washtenaw, Oakland, and Lapeer Counties’ creative financing position, relying in part on a study by the American Institute of Real Estate Appraisers that "land contract terms typically create a higher selling price . . . .” The Court noted that the counties had shown "that, to a certain extent, creative financing does artificially enhance the 'sales price.’ ” Washtenaw, supra, p 539, n 2. The majority concluded that the constitution requires uniformity and assessments based on true cash value, and that "a tax assessment system which does not consider creative financing is in fact unconstitutional.” Id., p 541.
The Court of Appeals also unanimously agreed with Oakland and Washtenaw Counties that trending provides a more accurate picture of "true cash value.” The Court noted that the commission had recognized the declining market in 1981 by authorizing twelve-month sales-ratio studies. By weighting the sales occurring closer to tax day, the Court felt that the goal of uniformity would be better served.
Thus the cases were remanded to the commission "to develop a method to account for creative financing . . . .” Washtenaw County, supra, p 542. In respect to Oakland and Washtenaw Counties, the majority opinion joined Judge Allen’s partial concurrence, which remanded "with instructions that sales-ratio studies extending over not less than a twelve-month period be reviewed and some weight given to sales occurring in the period closest to tax day.” Judge Allen’s opinion also instructed that "[a] formula for weighting to reflect changing market trends close to tax day should be devised by the [commission].” Washtenaw County, supra, p 556 (opinion of Allen, J.).
II
A. Scope of Review
On behalf of the commission, the Attorney General argues that the Court of Appeals exceeded the scope of appellate review by ignoring the commis-. sion’s factual finding to the effect that creative financing has at most a de minimus effect on the value of the property at issue. The commission had arrived at that conclusion by criticizing the studies put forth by the plaintiff counties and by relying on the commission’s own studies.
The scope of appellate review is clearly set forth in the constitution:
In the absence of fraud, error of law or the adoption of wrong principles, no appeal may be taken to any court from any final agency provided for the administration of property tax laws from any decision relating to valuation or allocation. [Const 1963, art 6, § 28.]
We view the commission’s finding of "de mini-mus effect” regarding the issue of creative financing as somewhat disingenuous. The commission has mightily resisted the principle that creative financing may be considered in evaluating the selling price of property. The Attorney General, in resisting that principle, argues that the counties used "unauthorized adjustments ... to recognize the alleged effects of so-called 'creative financing’ ” (emphasis added), and that "there is no method developed by the State Tax Commission, at the present time, to gather the data necessary to account and adjust for creative financing.”
The commission opined, as a matter of law, that state law does not permit the exclusion of creative financing from sale prices used in sales-ratio studies. It also found that "it is undeniably true” that half of the sales in these counties are creatively financed. In light of these findings, the commission cannot now shield its decision from review by a factual finding of "de minimus effect.”
Furthermore, the record on which the factual "de minimus” finding was based was developed by the commission after a remand by the Court of Appeals in Washtenaw for findings of fact and written opinion. Therefore, the finding would not apply to the claim of the counties of Ingham and Livingston, that were not involved in Washtenaw, but that were also denied relief by the commission on the creative financing issue.
By its conclusions of law, the commission has adopted a reviewable principle in this case, and we will consider the legal principle without relying on the commission’s factual findings. Our inquiry in this case will not rest on the degree to which creative financing influences the value of property, but rather on the principle of whether its possible effects must be considered.
B. Creative Financing
There seems to be no argument that it is the goal of the assessment process to determine, in the abstract, the usual selling price of a given piece of property between a willing buyer and a willing seller and to develop methodologies that make it possible to achieve uniformity in making such determinations within and between counties. The consensus flounders in this case when presented with the question whether the reported sales price of property may be examined to determine if it represents more than the value of the property being sold.
The commission argues that the Legislature has set forth, pursuant to Const 1963, art 9, § 3, the definition of true cash value as the "usual selling price,” MCL 211.27(1); MSA 7.27(1), and that even if creative financing has an effect on the sales price of a piece of property, it will in time become part of the usual selling price. The commission points out that it has been their policy to allow for the exclusion of individual sales from sales-ratio studies if the terms of financing are unusual. This, they contend, protects the ratio studies and the equalization figures from distortion by such unusual transactions. The commission thus concludes that when, as is admitted here, "the market con tains a preponderance of sales which are 'creatively’ financed, then those sales and their attendant 'prices’ are the market and the 'usual selling price’ or 'cash value’ . . .
The counties argue that an amount added to the sale of property to compensate for obtaining below-market financing can never be part of the sales price of the property, regardless of how usual it becomes.
The authority and framework for the assessment and equalization of property is founded in the constitution. Const 1963, art 9, § 3 provides in part:
The legislature shall provide for the determination of true cash value of such property; the proportion of true cash value at which such property shall be uniformly assessed, which shall not, after January 1, 1966, exceed 50 percent; and for a system of equalization of assessments.
The Legislature has determined the "true cash value” referred to in Const 1963, art 9, § 3 in § 27(1) of The General Property Tax Act:
"[C]ash value” means the usual selling price at the place where the property to which the term is applied is at the time of assessment, being the price which could be obtained for the property at private sale, and not at forced or auction sale. [MCL 211.27(1); MSA 7.27(1).]
The constitution clearly states that the Legislature shall determine the "true cash value of such property” (emphasis added). The implementing legislation refers to "the price which could be ob tained for the property” (emphasis added). It is evident to us from these plain words of both the constitution and the statute that any method of assessment or equalization of real property that ignores significant and ascertainable components of a sales price which are relevant to the cash value of the property — be they usual components or not — is flawed.
There is no dispute that the cost of borrowing in 1981, with mortgage rates in excess of fifteen percent, contributed to the depressed value of property that was reflected in the sales-ratio studies of the plaintiffs. It is also a safe assumption that the disparity between the prevailing cost of a mortgage and a land contract, limited by law to an interest rate of eleven percent, explained the prevalent use of that most common form of creative financing in 1981.
In contrast to the more conventional transactions, where the buyer buys the property from the seller and finances the purchase through a financial institution, the buyer under a land contract or other form of creative financing purchases both the real property and the financing from the seller. While an individual property owner/seller is not normally in a position to earn on a secured investment an amount equal to the mortgage lending rate of a financial institution, in 1981 it was possible, if not probable, that a land contract vendor was giving up something of value by loaning money at eleven percent interest. It is also possible that the vendor was selling property that, without creative financing, would not have sold at all or that would have sold for a lower price. As to the land contract purchaser, it is not speculative to say that borrowing at eleven percent, instead of at fifteen percent or more, represented considerable value.
It is obvious that in 1981 a land contract at eleven percent had a positive value to the purchaser and a negative or, at best, a neutral value to the vendor. We cannot gainsay the possibility that any such value for the below market rate financing would normally be reflected in the sales price of the property.
There are many factors external to property that influence and determine its real value; they include neighborhood conditions, location, property tax, general economic conditions, and the cost of borrowing. However, unlike those factors that influence value but are external to the transaction, creative financing by its nature is part of the transaction between the parties to the sale. And, to the extent that it represents something of value to one of them, it is not part of the real property and cannot be included in the determination of the true cash value of property. We have made it clear in the past that the sales price of property does not necessarily determine the true cash value of the property. Fisher-New Center Co v State Tax Comm, 380 Mich 340, 362; 157 NW2d 271 (1968).
In analyzing a somewhat analogous problem, in Antisdale v City of Galesburg, 109 Mich App 627; 311 NW2d 432 (1981), rev’d 420 Mich 265; 362 NW2d 632 (1984), where the Michigan Tax Tribunal had refused to factor out unusually low inter est rates on a federally subsidized mortgage in arriving at its value, we reversed the Michigan Tax Tribunal and stated:
To say that the mortgage balance had a value of $1,500,000 when it could be entirely assumed by giving up the use of $433,232 is to give an entirely new and foreign meaning to the word value. By failing to discount the outstanding mortgage balance of the comparable properties to the actual cost to the investor the Tax Tribunal adopted a wrong principle. [Antisdale, supra, pp 282-283.]
Even though that case involved the assessment of an individual piece of property, rather than equalization, the principle announced there applies with equal force here. The same general rules of valuation apply to both assessment and equalization. See MCL 211.27(3); MSA 7.27(3). The common denominator for either assessment or equalization is market value. Assessor’s Manual, Chapter VI, p 127.
We note with interest that in Woodgate Associates v City of Lansing, 1 MTTR 488 (Docket No 6719, June 13, 1978), where, in establishing the petitioner’s assessment, comparable sales that included creative financing were not discounted accordingly, the Tax Tribunal, in interpreting the statutory definition of true cash value, MCL 211.27(1); MSA 7.27(1), said:
This statutory limitation is obviously intended to avoid an undervaluation of property as a consequence of using, for comparison properties, sales that are of a distress [sic] nature, where the sale price is apt to be below the normal market value. If artificially low sale prices are not indicators of true cash value, then it follows that artificially high sale prices are equally offensive and inappropriate. [Id., p 491. Emphasis added.]
The Tax Tribunal further noted,
It makes little difference whether the comparative sale price is artificially inflated (because of a trade off of favorable terms at sale) or artificially depressed (because of a forced sale), because both result in something other than true cash value as defined by statute and case law. If the net effect is that a reported sale price is either artificially depressed or elevated, and if that sale price directly affected the computation of true cash value (and therefore assessment) of another property, such assessment is erroneous. [Id., p 492.]
The objectionable "favorable terms” referred to in Woodgate included
assumption of outstanding mortgages and land contracts by the buyer at considerably lower interest rates than what were available at the dates of sale, balloon payments, and a payback to a buyer from a seller of a portion of the reported sale price as a "commission fee.” [Id., p 491.]
The Attorney General makes a further argu ment to the effect that since the constitution has given the Legislature responsibility for "defining” true cash value, the Legislature has done so without allowing for across-the-board discounting of creative financing. Therefore, such discounting is not permissible. In furtherance of that argument, the defendant points to another statutory provision, §27(3) of The General Property Tax Act, MCL 211.27(3); MSA 7.27(3), which deals specifically with the cost of financing included in the sales price of property. That statute, in relevant part, provides:
Beginning December 31, 1978, a city or township assessor, a county equalization department, or the state tax commission before utilizing real estate sales data on real property purchases, including purchases by land contract, for the purpose of determining assessments or in making sales ratio studies for the purpose of assessing or equalizing assessments shall exclude from the sales data the following amounts allowed by subdivisions (a), (b), and (c) to the extent that the amounts are included in the real property purchase price and are so identified in the real estate sales data or certified to the assessor as provided in subdivision (d):
(a) Amounts paid for obtaining financing of the purchase price of the property or the last conveyance of the property.
(d) The purchaser of real property, including a purchaser by land contract, may file with the assessor of the city or township in which the property is located 2 copies of the purchase agreement or of an affidavit which shall identify the amount, if any, for each item listed in subdivisions (a) to (c). One copy shall be forwarded by the assessor to the county equalization department. The affidavit shall be prescribed by the state tax commission. [Emphasis added.]
The defendant claims that the constitutional language "The legislature shall provide for the determination of true cash value” is a grant of power to the Legislature to alter or in general define the meaning of true cash value. The defendant has advanced no authority, nor are we aware of any, that would permit such an expansion of the words to "provide for the determination of.”
The general meaning of true cash value predated the Constitution of 1963, and it is not likely that the drafters would incorporate that phrase, with its long history of interpretation and settled meaning, only to have its future left to the whim of the Legislature. The constitution specifies that property shall not be assessed beyond fifty percent of true cash value and to hold that true cash value can be defined by the Legislature would, for all practical purposes, make the fifty percent limitation meaningless. As Justice Cooley said,
"A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. 'For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.’ (Cooley’s Const Lim 81).” [Quoted in Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). Emphasis deleted.]
Limitations on taxes and assessments often play a prominent role in deliberations leading to a constitution’s adoption or rejection. It is not likely or probable that the voters, in adopting the Constitution of 1963, would understand that true cash value would be what the Legislature said it was, rather than its historical if not literal meaning.
We thus examine § 27(3) with the view that, if it derogates from art 9, § 3, it cannot be valid. And, our interpretation remains consistent with the principle that, whenever possible, interpretations that result in constitutional invalidity will be avoided. People v McLeod, 407 Mich 632, 657; 288 NW2d 909 (1980). See Thoman v City of Lansing, 315 Mich 566, 576; 24 NW2d 213 (1946) ("presumption of constitutionality following taxing statutes is stronger than applies to laws generally . . .”).
Under § 27(3), "[a]mounts paid for obtaining financing of the purchase price of the property” when "identified in the real estate sales data or certified to the assessor as provided in subdivision (d)” (emphasis added) must be excluded when "utilizing real estate sales data” in the process of equalizing assessments. The key words here are "real estate sales data.” The commission argues that "it is clear that individual sales in a sales ratio study may be adjusted for amounts paid by the purchaser for obtaining financing ... if the purchase price includes such amounts and if such amounts are either certified to the assessor by affidavit, provided to the assessor by means of delivering copies of the purchase agreement, or included on the face of the deed or contract.” (Emphasis deleted.) The defendant would, therefore, narrowly construe this phrase to mean the documents of an individual transaction specifically identifying such costs, whereas the plaintiffs construe it as referring to the kind of real estate data they have accumulated to support their figures which purport to identify a higher selling price for creatively financed transactions. The defendant also construes § 27(3)(a) to refer to mortgage initiation fees, appraisal costs, credit checks, attorney fees, and so forth.
We find the plaintiffs’ position more persuasive for the following reasons. First, the statute clearly and unequivocally refers to excluding the costs of financing "before utilizing real estate sales data . . . for the purpose of assessing or equalizing assessments . . . .” This certainly suggests that such exclusions of the cost of financing would have to include across-the-board adjustments, because equalizing almost always does just that. The equalization process does not deal with individual assessments.
Second, "real estate sales data” is the term used most frequently, even in the commission’s Assessor’s Manual, supra, Chapter VI, p 129, to mean the kind of data relied upon in the studies offered by the plaintiffs in support of their finding of price inflation due to the cost of financing. Possible sources for obtaining data are listed in the manual as realtors, lending institutions, and individual property owners.
Third, the term "real estate sales data” is not the most precise and, therefore, the most likely way to describe the documents used in a real estate transaction. The words, in and of themselves, argue against the more narrow interpretation that they refer to an individual transaction.
Finally, when this statute was adopted in 1976, subsection (d) employed the word "shall.” In 1978, "shall” was changed to "may.” 1978 PA 25. Subsection (d), in its original form, then, provided that all purchasers of real property would furnish copies of the purchase agreement or an affidavit identifying, among other things, the amounts paid for financing of the purchase price, as required in subsection (a). If by using "sales data” the Legislature meant the data of an individual transaction, then, adding the words "or certified to the assessor as provided in subdivision (d)” would have been repetitious. Under the defendant’s interpretation, the Legislature would only have had to refer to data identified in a real estate transaction, whether or not furnished to the assessor in subsection (d), or, if they had intended sales data to be confined to information that was furnished to the assessor, they would only have had to refer to the costs of financing identified in the information furnished to the assessor under subsection (d).
A more logical and literal reading of § 27(3) is that amounts paid for financing shall be excluded, if they can be identified in real estate sales data that are gathered in assessment and equalization studies or if they can be identified in the documents of individual transactions. Reading § 27(3) in its entirety, consonant with the constitutional mandate to achieve true cash value, it is our conclusion that § 27(3) excludes the cost of creative financing from the valuation of property.
We thus find that both § 27(1) and § 27(3) are within the constitutional mandate to determine true cash value and that both, the former by implication and the latter by expression, require the exclusion of creative financing from the equalization process to the extent such financing affects the sales price of real property.
C. Trending
The remaining issue in these cases is the propriety of statistically weighting sales study data to give greater weight to sales occurring closer in time to "tax day,” which by statute is the December 31 preceding each tax year. MCL 211.2; MSA 7.2.
Prior to the 1982 tax year the commission allowed the use of a thirty-month sales-ratio study in arriving at a county’s equalized valuation. For three periods — the first six months of the year prior to the tax year (which for these cases would be the first six months of 1981) and the previous two years — a ratio of the prior assessed value of the property to the value as determined by the sales study is computed. The three ratios are then added together and divided by three, the six-month period holding equal weight with each of the prior two years. In this manner, any wide fluctuation in one period between the aggregate values of property as assessed and as determined by a sales study is cushioned by the ratio of the two other periods. This final ratio is then used in the equalization process.
Beginning with the 1982 tax year, the commission authorized a one-year sales study. This one-year study of sales occurring in 1981 could be utilized if a sufficient number of sales occurred within the locality so that the study would be statistically reliable and if a substantial decline in property values was indicated. Thus, the commission allowed such localities to immediately reflect the declining market in local property values, instead of having that decline cushioned by prior years.
It is the contention of the three counties raising this issue that, as a result of the above statute, the use of even the optional one-year sales study is illegal and unconstitutional. Their premise is that all property must be valued for tax purposes as to its value as of the December 31 preceding the tax year. Therefore, they reason, by failing to statistically weight even the one-year study to give greater effect to sales occurring near to the tax date, the study is flawed. Furthermore, the real property market of 1981 was declining toward the end of the year, and since the one-year study gives equal weight to all sales throughout the year, the result of the equalization process, in their view, was to equalize the property within each county above the maximum of fifty percent of true cash value.
The Court of Appeals agreed with the counties, stating that "some such adjustment is needed to accurately reflect the value on tax day. While the commission correctly argues that insufficient sales occur on tax day for accuracy, and that a broad study may be necessary to encompass the fluctuations of the real estate market, there is no justification for ignoring evidence of an existing market trend.” Washtenaw, supra, p 555. While they expressed their preference for a system of weighting, the Court of Appeals did say they would "oppose use of any study of less than 12 months and also oppose extending the study into the next calendar year.” Id., p 556. The Court concluded that "[o]nly by permitting such weighting can an accurate picture of 'true cash value’ be presented.” Id.
Unlike its position on the creative financing issue, here, the commission has neither denied the desirability of achieving up-to-date assessments, nor, in our view, stated an erroneous principle of law. Rather, the commission disputes the counties’ belief that the weighting scheme proposed will accomplish the desired result. They contend that there would only be a few populous counties in which there would be a sufficient volume of sales for which a weighting factor could be utilized.
It will have an insignificant impact in a handful of populous counties and no impact whatsoever throughout the rest of the state. It will bring no appreciable precision to imperfect estimates of value.
The "tax day” statute, MCL 211.2; MSA 7.2, in part provides:
The taxable status of persons and real and personal property shall be determined as of each December 31, which shall be deemed the tax day, any provision in the charter of any city or village to the contrary notwithstanding. No assessing officer shall be restricted to any particular period in the preparation of the assessment roll but may survey, examine or review properties at any time prior to or after the tax day.
While tax day is the December 31 preceding the tax year, the assessment roll need not be completed until the first Monday of March of the tax year itself. MCL 211.24; MSA 7.24. This statute provides that "[o]n or before the first Monday in March” the local assessor "shall estimate, according to his best information and judgment, the true cash value of every parcel of real property and set the same down opposite such parcel.”
Between the mandate to determine the "status” of property on December 31, and the mandate to estimate true cash value of every parcel "[o]n or before the first Monday of March” is an uncertainty of the day or period for which property should be valued, which has not been addressed or argued by the parties. If there were such a date on which value was to be established, it would, given the state of the art of assessing, have to be a mythical value at best. Nonetheless, the Legislature, by specifying that a survey may be conducted both before and after December 31 and that values shall be estimated on or before the first Monday in March, has at least specified a general indication of a time framework within which to determine value.
We do not think it is within the role of the reviewing courts to attempt to prescribe methodologies that may or may not be more accurate than that employed by the administrative agency whose decision is being reviewed. Given the legislative imprecision as to the time of fixing value and the willingness of the commission to use a shorter study period where applicable, we think it has not been shown that the commission has applied a wrong principle or committed an error of law in refusing to use the "trending” methodology preferred by the plaintiffs.
Ill
Conclusion
Thus, as to the first issue, we affirm the holding of the Court of Appeals in Washtenaw, but modify the Court’s judgment to strike that portion of the judgment which remands these cases to the commission. The commission’s decision in regard to Livingston and Ingham Counties is left undisturbed. The rule announced herein shall apply to all assessments conducted after January 1, 1986 and all equalizations based on those assessments.
Prospective application of our holding on this issue is appropriate. As we have noted in the past,
The benefit of flexibility in opinion application is evident. If a court were absolutely bound by the traditional rule of retroactive application, it would be severely hampered in its ability to make needed changes in the law because of the chaos that could result in regard to prior enforcement under the law. [Tebo v Havlik, 418 Mich 350, 360; 343 NW2d 181 (1984), quoting Placek v Sterling Heights, 405 Mich 638, 665; 275 NW2d 511 (1979).]
In this case, the local governments have already collected and spent the 1982 tax levies in question; state aid, such as the school fund and revenue sharing, has already been allocated on the basis of those figures. It would represent a considerable administrative burden to require recalculation of the 1982 equalized valuations, especially in light of the fact that no method currently exists for taking the creative financing effect into account.
While we are not persuaded by the commission’s equal protection argument in behalf of the counties who are not involved in this case, we are sympathetic to the possibly unfair effect that such a decision might have in those counties which may also have experienced the effects of creative financing in the tax year in question.
Livingston and Ingham Counties argue that, in the face of a prospective ruling in this case, counties will be more hesitant in the future to challenge the practices of the commission. We are not persuaded by that argument, because the counties will indeed benefit from the prospective applica tion of the rule in this case, albeit not as much as from a retrospective holding. Part of the relief sought by the counties was a correction of the commission’s view of the applicable law. We expect the commission to change its interpretation of the law on the basis of our decision, and all counties will stand to benefit in future tax years from the methods which the commission will develop and implement. Thus, it is difficult to perceive that any real disincentive to litigate will result from our decision in this case to avoid the pitfalls and possible hardships of retroactivity.
Regarding the second issue, we reverse the judgment of the Court of Appeals and uphold the commission’s correct interpretation of the law and decision not to utilize the proposed trending methodology.
Williams, C.J., and Levin, Ryan, Cavanagh, and Boyle, JJ., concurred with Brickley, J.
Riley, J., took no part in the decision of this case.
Article 9, §3 of the 1963 Michigan Constitution requires the Legislature to provide for a system of equalization. Generally, equalization at both levels seeks to achieve uniformity of property tax assessment among the cities or townships within a county, in the case of intracounty equalization, and among all counties within the state, in the case of intercounty (state) equalization.
The process of equalization begins with the completion of property-assessments by the local assessors. Property must be assessed uniformly at fifty percent of its true cash value. Const 1963, art 9, § 3; MCL 211.27a(l); MSA 7.27(1)(1). Local assessors are required to use the commission’s Assessor’s Manual in preparing assessments, MCL 211.721; MSA 7.40, and they use sales-ratio studies or appraisal studies, rather than assessments of all individual pieces of property, in fulfilling their function. A sales-ratio study compares the sales prices of recent typical sales within a given property classification with the prior year’s assessed values for those same parcels. An appraisal study is similar, but is used in situations where there is an insufficient number of recent sales. Appraisal studies compare actual appraisals of a sampling of properties to the previous year’s assessments. The resulting ratio is applied across the board to all properties within the classification to obtain the assessed values for the current year.
After assessment is completed, the county boards of commissioners meet to perform county equalization. The commissioners must "examine the assessment rolls of the townships or cities and ascertain whether the real and personal property in the respective townships or cities has been equally and uniformly assessed at true cash value”. MCL 211.34(2); MSA 7.52(2). That determination is made through the use of an equalization study, also in the form of a sales-ratio or appraisal study, and outlined in the commission’s Assessor’s Manual, Chapter XVI. See MCL 211.721; MSA 7.40.
This is not to say that any disparity between an interest rate facilitated by the seller and the prevailing rate will necessarily add to the purchase price. It is possible that the advantage to both the vendor and vendee will be equal in such a situation. If there is no creative financing effect on sales price, then, of course, the method of valuation need not take it into account.
The tax tribunal was created by the Tax Tribunal Act, 1973 PA 186, MCL 205.701 et seq.; MSA 7.650(1) et seq. Pursuant to the act, the tribunal has jurisdiction over
(1) "[a] proceeding for direct review of a final decision, finding, ruling, determination, or order of an agency relating to assessment, valuation, rates, special assessments, allocation, or equalization, under property tax laws,” MCL 205.731(a); MSA 7.650(31)(a), and;
(2) "[a] proceeding for refund or redetermination of a tax under the property tax laws,” MCL 205.731(b); MSA 7.650(31)(b).
Matters formerly reviewable by the commission or a circuit court were made reviewable by the tribunal under the act. MCL 205.741; MSA 7.650(41).
In Emmet County v State Tax Comm, 397 Mich 550, 554; 244 NW2d 909 (1976), we held that equalization matters which both arise under the property laws and were appealable to the commission prior to the enactment of 1973 PA 186 are within the jurisdiction of the tribunal. Thus, "equalization” under MCL 205.731(a); MSA 7.650(31)(a), was construed to mean only intracóunty equalization. Intercounty or state equalization, at issue in this case, is thus not administratively reviewable.
The constitutions of 1850 and 1908 both required assessments to be made at "cash value.” See Const 1850, art 14, § 12; Const 1908, art 10, §7.
Contemporaneous decisions of this Court emphasized that the constitutional standard required assessment at "true cash value.” See, e.g., Avery v East Saginaw, 44 Mich 587, 589; 7 NW 177 (1880); Hayes v City of Jackson, 267 Mich 523, 531; 255 NW 361 (1934). In Perry v Big Rapids, 67 Mich 146, 147; 34 NW 530 (1887), this Court elaborated on the meaning of cash value in the constitution:
"The Constitution requires assessments to be made on property at its cash value. This means not only what may be put to valuable uses, but what has a recognizable pecuniary value inherent in itself, and not enhanced or diminished according to the person who owns or uses it.” (Emphasis added.)
We quote with approval from the brief of Lapeer County.
“It is plain that to 'provide for’ something is not the same as to 'define’ it. To claim the contrary, when that something is designated 'true,’ is an absurdity of language. Truth is an absolute. It simply is. Truth can give meaning to definitions, but definitions can never give meaning to truth. The [commission’s] construction would mean that the legislature is empowered by the Constitution to define truth. The obvious function of the word 'true’ is to negate that construction.”
The Legislature has apparently had an opportunity, in the form of Senate Bill 890 of 1982, to amend § 27(3) to make specific provision for creative financing. The bill did not pass. Judge Allen, in dissent in the Court of Appeals in Washtenaw, relying on a Senate Analysis of another 1982 bill which did not include a creative financing provision and which also did not pass, found the Legislature’s inaction on these occasions to be persuasive evidence of legislative intent not to direct the commission to exclude creative financing factors from sales prices under § 27(3). See Washtenaw, supra, pp 551-552.
We cannot agree. There are a myriad of reasons why legislators may oppose or fail to vote in favor of a particular bill. Reliance upon legislative inaction in these instances, alone, is an insufficient basis for a finding of legislative intent at the time of the enactment of § 27(3). It is equally as plausible that SB 890 was intended as clarification of § 27(3) and that some legislators did not believe such clarification was necessary, the words themselves being clear. The portion of the Senate Analysis quoted by Judge Allen premised its argument on the fact that "a general downward adjustment to compensate for the use of creative financing is not permitted by the Tax Commission.” This is hardly evidence of earlier legislative intent, especially in light of the plain language of the statute to the contrary, read in a manner consistent with the constitutional mandate of true cash value.
The Attorney General argues that any retroactive application of a decision to allow the consideration of creative financing will ipso facto render the state equalization for 1982 nonuniform. This would result from the fact that only several counties would be able to utilize it, while others who may be similarly affected would not. We also note the Attorney General’s argument, unresponded to by the counties, that there are taxing units such as the Huron-Clinton Metropolitan Authority encompassing properties within five counties, only three of which are involved in this case, and at least one school district whose boundaries fall within two counties, only one of which is involved in this case, which would result in a situation where some taxpayers in those two taxing units would be taxed on an equalized value that reflects creative financing and the others would not. The parties seem to agree that within those counties who would receive relief through a lower sev based on consideration of creative financing, school districts would be entitled to an increase in their 1982 school aid allocation and local units an increase in revenue sharing. There has been no discussion, however, as to whether those increases would come from corresponding reductions from the remaining units of government throughout the state or an increased appropriation from the state Legislature. We are mindful of our citation in Shavers v Attorney General, 402 Mich 554, 609, n 33; 267 NW2d 72 (1978) to Robinson v Cahill, 62 NJ 473; 303 A2d 273 (1973), cert den 414 US 976 (1973), in which the New Jersey Supreme Court, in applying a prospective remedy when it declared an education financing scheme unconstitutional, stated: "The present system being unconstitutional, we come to the subject of remedies. We agree with the trial court that relief must be prospective. The judiciary cannot unravel the fiscal skein.” | [
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] |
The certification by the Court of Appeals pursuant to Administrative Order No. 1984-2 that its decision in this case is in conflict with its decision in Cook v Bennett, 94 Mich App 93; 288 NW2d 609 (1979), is considered. In light of the fact that no application for leave to appeal has been filed and the fact that the Court has decided Ross v Consumers Power Co (On Rehearing), 420 Mich 567 (1984), the Court declines to take any further action. Court of Appeals No. 74433. | [
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On order of the Court, attorney James Cohen having appeared before the Court on June 4, 1985, to show cause why he should not be held in contempt of the Court for his failure to file an application for leave to appeal as directed by the Court and his failure to respond to the order of February 5, 1985, directing him to show cause, and the Court finding that no good cause has been shown for the lack of diligence of counsel, it is hereby ordered and adjudged that attorney James Cohen is in contempt of this Court. It is further ordered that attorney James Cohen pay to the Clerk of this Court the sum of $500 in court costs, payable to the State of Michigan, within ten days of the Clerk’s certification of this order. These costs are assessed because of the needless additional work required of this Court by the failure of Mr. Cohen to file an application or take other action within a reasonable time after his appointment. The Court finds that defendant’s appeal to this Court has been unreasonably delayed through the inaction of attorney James Cohen. The Clerk shall deposit the costs paid pursuant to this order with the State Treasurer for credit to the State General Fund. The costs are personal to the attorney and may not be charged back to the county. | [
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Brickley, J.
These cases involve the constitutionality of MCL 768.36; MSA 28.1059, the statute which introduced the verdict of guilty but mentally ill to this state. In both cases, it is asserted that the guilty but mentally ill verdict violates principles of due process of law. We hold the statute to be constitutional.
I
Defendant Bruce Ramsey was charged with first-degree murder, MCL 750.316; MSA 28.548, as a result of the death of his wife. Ramsey had first choked her, and then stabbed her thirty-two times. At trial, he raised the defense of insanity, claiming he believed that he was exorcising a demon from his wife by stabbing her and that she would return to life once the demon was removed.
In the trial court, defendant moved that the verdict of guilty but mentally ill be held unconstitutional and that the jury not be instructed on that verdict. According to defendant, he opted for a bench trial because his motion was denied.
Several witnesses, including Ramsey himself, testified in support of his claim of insanity. Defendant was portrayed as the product of a Southern fundamentalist religious family who had strayed from the church by drinking alcohol, smoking marijuana, and having an extra-marital affair.
A few months before the killing, Ramsey visited his mother in Kentucky. She gave him a pamphlet entitled "Defeated Enemies,” which concerned demons and demon-possessed people. Both Ramsey and a woman by the name of Cross testified that that weekend, Ramsey, while engaged in sexual intercourse with Cross, suffered a psychotic episode; Ramsey thought that Cross was a devil. Ramsey fled the room. When later found by Cross, Ramsey insisted that they return to their room to pray, which they did.
Ramsey testified regarding an episode the day before the killing. He found in the clogged choke of his truck a sign from God that he should stay with his wife. He also found messages from God in the lyrics of popular songs.
The day of the killing, Ramsey, after a full day of work, called his mother in Kentucky. He was excited; his mother described him as exuberant over his "return to God.”
As for the killing itself, which was witnessed by Ramsey’s children, who testified at trial, the victim and Ramsey had apparently argued. One of Ramsey’s children testified that the victim came to the child’s room crying. Ramsey entered the room and said, "Walk.” The victim left the room and locked herself in the bathroom. Ramsey broke down the bathroom door.
Ramsey testified that he had attempted to choke, and then to stab, the demon out of his wife. Ramsey’s son testified that he heard Ramsey say, "Die demon, die.” When Ramsey realized that the victim was dead and was not returning to life, he placed her body in bed, crawled in next to her, and stabbed himself in the chest. Found in that position by the police (the children had fled to a neighbor’s home), Ramsey was taken to a hospital. There, he made statements to family and friends to the effect that he was "screwed up” and that his wife "wasn’t supposed to die.” Hospital psychiatrists diagnosed Ramsey as acutely psychotic upon admission.
Psychiatrists called by the prosecution and the defense differed over whether Ramsey was mentally ill or insane at the time of the killing. Dr. Emanuel Tanay testified for the defense that Ramsey was acutely psychotic and legally insane at the time of the killing. A lengthy taped interview between Ramsey and Dr. Tanay was played to the court. Dr. Philip Margolis, however, testified for the prosecution that Ramsey was neither mentally ill nor insane at the time of the crime. Dr. Mar-golis stated that Ramsey’s behavior, rationalizing the killing after it had taken place, was consistent with an attempt to escape responsibility for the crime.
Dr. Irving Edgar, also testifying for the prosecution, initially testified that Ramsey was not psychotic at the time of the killing and that it was possible that the demon story was fabricated. On cross-examination, however, Dr. Edgar testified that he was not sure if Ramsey knew right from wrong when he was choking his wife and that Ramsey was probably psychotic following the choking.
The trial court found Ramsey guilty of the crime of second-degree murder, but mentally ill. Following a remand to the trial court for further factual findings, 89 Mich App 468; 280 NW2d 565 (1979), the Court of Appeals affirmed Ramsey’s conviction by way of an unpublished opinion per curiam. This Court granted Ramsey’s application for leave to appeal. 414 Mich 864 (1982).
Defendant Gary Boyd was charged with armed robbery, MCL 750.529; MSA 28.797, and assault with intent to commit robbery while armed, MCL 750.89; MSA 28.284, for conduct at the home of his former girlfriend. Boyd, after being admitted to the home of Ruby Hughes, suddenly and withoüt provocation grabbed her around the neck, held a knife to her throat, and demanded money. He led Hughes upstairs and assaulted two other women, robbing one of the other women of a few dollars. Boyd then dropped his knife and fled after stating that he knew that Hughes was going to shoot him in the back.
At trial, Boyd did not dispute that the events occurred. He presented an insanity defense. He related an extensive psychiatric history, including several hospitalizations, with one hospitalization exceeding eighteen months. Regarding the events of the crime, Boyd testified, "I don’t know. One minute we was talking and the next minute, before I know it, I had a knife around her side.”
Boyd presented three witnesses as to his mental state. Dr. Bruce Danto, a psychiatrist, testified that defendant was schizophrenic, psychotic, and insane at the time of the crime. Boyd’s mother and his sister testified to the effect that Boyd had been exhibiting strange behavior patterns for years and that he was alternately violent and paranoic, a compulsive gambler, and would sometimes see and hear nonexistent things.
Dr. Steven Bank, a psychologist, testified for the prosecution that Boyd was mentally ill, but not insane. He noted that defendant had denied that the crime had occurred when he was arrested. This denial, according to Dr. Bank, indicated a purposeful behavior inconsistent with insanity. He further testified that defendant had described himself as a "good con-man.”
The jury returned a verdict of guilty but mentally ill to both charged counts and the Court of Appeals affirmed Boyd’s convictions in an unpublished opinion per curiam. This Court granted Boyd’s application for leave to appeal. 415 Mich 851 (1982).
II
Both Ramsey and Boyd contend that the guilty but mentally ill verdict denied them the due process of law guaranteed by the Fourteenth Amendment to the United States Constitution. Their arguments, however, are subtly different. Ramsey argues that the danger of jury compromise due to the existence of the guilty but mentally ill verdict caused him to waive his right to a jury trial, and, therefore, he should be allowed to challenge the constitutionality of the verdict. Boyd’s argument is more straightforward. He contends that the submission of the guilty but mentally ill verdict to the jury encouraged the jury to return that verdict as a compromise between the verdict of guilty and the verdict of not guilty by reason of insanity. We will treat the arguments of both defendants jointly.
A fair trial is a right guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Drope v Missouri, 420 US 162; 95 S Ct 896; 43 L Ed 2d 103 (1975). Therefore, our task is to decide if the guilty but mentally ill verdict violates principles of fairness by, according to defendants, deflecting a jury’s attention from the issues of guilt or innocence by adding an irrelevant verdict which brings the risk of impermissible jury compromise. We must stress, however, that we are not concerned with the wisdom of the verdict. Arguments that a statute is unwise or results in bad policy should be addressed to the Legislature. Our concern here is only whether the statute is invalid because it denies criminal defendants a fair trial.
MCL 768.36(1); MSA 28.1059(1) provides:
If the defendant asserts a defense of insanity in compliance with section 20a [MCL 768.20a; MSA 28.1043(1)], the defendant may be found "guilty but mentally ill” if, after trial, the trier of fact finds all of the following beyond a reasonable doubt:
(a) That the defendant is guilty of an offense.
(b) That the defendant was mentally ill at the time of the commission of that offense.
(c) That the defendant was not legally insane at the time of the commission of that offense.
MCL 768.21a; MSA 28.1044(1) defines insanity:
A person is legally insane if, as a result of mental illness . . . that person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.
Finally, mental illness is defined in MCL 330.1400a; MSA 14.800(400a) as:
[A] substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.
The history of the guilty but mentally ill verdict is well set forth in Smith & Hall, Evaluating Michigan’s guilty but mentally ill verdict: An empirical study, 16 U Mich J L Ref 77 (1982). For our purposes here, it suffices to state that the statute was a reaction to this Court’s decision in People v McQuillan, 392 Mich 511; 221 NW2d 569 (1974). Following that decision, a large number of persons found not guilty by reason of insanity, whom professionals had determined to be presently sane, were released from institutions, with tragic results. Two of the released persons soon committed violent crimes. See Comment, Guilty but mentally ill: An historical and constitutional analysis, 53 U Det J Urban L 471, 471-472 (1976); Robey, Guilty but mentally ill, 6 Bull of Am Ass’n of Psychiatry 374-375. Amid public outcry, the Legislature responded with the guilty but mentally ill verdict.
The major purpose in creating the guilty but mentally ill verdict is obvious. It was to limit the number of persons who, in the eyes of the Legislature, were improperly being relieved of all criminal responsibility by way of the insanity verdict. As stated in the House analysis of the bill creating the verdict, one argument in favor of the verdict was that:
The new verdict will help a jury. Perhaps because there seems to be a tendency for people to assume that someone who commits a particularly offensive crime "must be insane,” juries frequently find defendants in such cases "not guilty by reason of insanity.” Sometimes, however, the defendants are not legally insane, and although it may well have been the intent of the jury that such defendants be committed for a long period, they must be automatically released under a Michigan Supreme Court ruling of September, 1974. [Third Analysis of HB 4363, Michigan House Legislative Analysis Section (July 15, 1975).]
There is nothing impermissible about such a purpose. It is well within the power of the Legislature to attempt to cure what it sees to be a misuse of the law. What we must decide, however, is whether the verdict acts to deny defendants a fair trial.
It is claimed that the guilty but mentally ill verdict introduces a confusing irrelevancy into jury deliberations. Therefore, the first question we must face is whether the inclusion of the guilty but mentally ill verdict is so confusing to the jury that it denies a defendant a fair trial.
To a certain extent, we must agree that the inclusion of the verdict complicates a trial and creates a greater opportunity for confusion. Under prior law, the jury had only to decide whether the defendant was sane. Under present law, the jury must engage in a two-step inquiry. But the fact that an extra step is added to the inquiry hardly makes the inquiry beyond a jury’s competence.
Furthermore, we reject the claim that a jury is unable to comprehend the distinctions made by the Legislature between the concepts of mental illness and insanity. Our statutory scheme recognizes a continuum of mental functioning. A person is mentally ill if suffering from "a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.” MCL 330.1400a; MSA 14.800(400a). A person is insane, however, only if that substantial impairment results in the lack of "substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.” MCL 768.21a; MSA 28.1044(1). Under these definitions, one must be mentally ill before he can be found insane, but the converse is not true. As stated by Justice Cav-anagh in People v Fultz, 111 Mich App 587, 590; 314 NW2d 702 (1981):
Insanity by definition is an extreme of mental illness. When a person’s mental illness reaches that extreme, the law provides that criminal re sponsibility does not attach. To put it alternatively, the statutes provide that all insane people are mentally ill but not all mentally ill people are insane.
Also, MCL 768.36(1); MSA 28.1059(1) requires the jury to find that the defendant is not insane, that is, that the defendant does not lack the substantial capacity to appreciate the wrongfulness of his conduct or the ability to conform his conduct to the law, before it can conclude that the defendant is guilty but mentally ill.
We conclude that the Legislature has created a clear distinction between mental illness and insanity. Of course, in particular cases, this distinction may be very subtle and difficult for the jury to apply. But, it is no more subtle or difficult than the distinction between the intent to do great bodily harm and the intent to kill, a distinction we allow juries to make which often determines whether a defendant is guilty of first- or second-degree murder. In short, we cannot say that the legislative distinctions between mental illness and insanity deny the right to a fair trial.
Both Ramsey and Boyd also contend that the inclusion of the guilty but mentally ill verdict infringed on their right to a fair trial by creating an unjustifiable risk of a compromise verdict. We find this claim to be wholly speculative, and must reject it.
All members of a criminal jury must agree beyond a reasonable doubt to the same verdict. That is not to say that individual jurors cannot change their initial view of a case and ultimately reach a common ground with the others. Provided that in the end all jurors agree beyond a reasonable doubt as to the verdict, there is absolutely no prohibition of a juror changing positions during deliberations. Juror deliberations, however, must be distinguished from juror compromise. When jurors give up their beliefs to settle on a common ground with other jurors, who may have also abandoned their convictions in the interest of agreement, a compromise verdict results. When jurors forsake their convictions simply to reach a verdict, the defendant has not been found guilty beyond a reasonable doubt by all members of the jury.
In People v Stahl, 234 Mich 569; 208 NW 685 (1926), People v Gessinger, 238 Mich 625; 214 NW 184 (1927), and People v Vail, 393 Mich 460; 227 NW2d 535 (1975), we recognized that jurors, as people generally, often will compromise with regard to their differences. In those cases, we recognized a fact, consistent with human nature. In each of those cases, however, the issue was not whether the jury had, in fact, compromised. Instead, the issue was whether allowing a greater charge not supported by the evidence to go to the jury constituted error requiring reversal of the defendants’ convictions, even though the defendant in each case was convicted of the lesser charge. And, it was not only the possibility of impermissible compromises which led this Court to conclude that reversal was required, but also the possibility that all jurors could be equally swayed by the inclusion in their deliberations of a greater, but legally improper, charge. The point of those cases, however, is not that the possibility of jury compro mise requires a conviction to be reversed. That possibility is present in every case. To the contrary, our decisions were based on the reality that compromise does occur, and, therefore, the boundaries within which it occurs must be legally and factually supportable.
The problem raised in Stahl, Gessinger, and Vail is not present in the present case. Jurors had not begun their discussions considering charges of which the defendants could not have been convicted as a matter of law. Exactly how the jurors in Boyd reached their decision, or how the typical jury would act in the case of Ramsey, is entirely a matter of speculation.
Parties who are concerned that the jury has compromised are free to poll that jury pursuant to MCR 2.512(B)(2). See also People v Pizzino, 313 Mich 97; 20 NW2d 824 (1945). Since there is no other error identified in the present cases which, in light of the possibility of compromise, could have prejudiced defendants, we must reject their claims. See Illinois v DeWit, 123 Ill App 723; 463 NE2d 742 (1984), which also rejected the argument that the possibility of a compromise violates due process. To hold otherwise would require us to presume a jury compromise in every case where more than one verdict or charge is submitted to the jury.____
Ill
Ramsey raises two additional issues regarding the guilty but mentally ill verdict. First, he argues that as a matter of policy this Court should hold that a mentally ill defendant cannot entertain the malice necessary to support a murder conviction. Alternatively, he argues that we should find that a trial court must, in its findings of fact following a bench trial, affirmatively state that the mental illness did not negate the necessary intent for second-degree murder.
Malice aforethought, or stated otherwise, the mental state necessary for the crime of murder, requires the intent to kill, the intent to do great bodily harm, and the intentional creation of a great risk of death or great bodily harm with the knowledge that death is the probable result. People v Aaron, 409 Mich 672; 299 NW2d 304 (1980). A finding of mental illness, even when defined as a substantial disorder of thought or mood, does not inexorably lead to the conclusion that the defendant did not entertain the requisite malice aforethought for murder. As explained in LaFave & Scott, Criminal Law, § 42, p 326:
A defendant in a criminal case, at the time he engaged in the conduct giving rise to the charges against him, may have been suffering from an abnormal mental condition which was not of a kind or character to afford him a successful insanity defense under the right-wrong test or other standard applicable in that jurisdiction. But, while this defendant is therefore ineligible for a finding of not guilty by reason of insanity, his mental abnormality may nonetheless be a most relevant consideration in the determination of whether he is guilty of the crime charged. Under the doctrine referred to as partial responsibility, diminished responsibility, or (somewhat less accurately) partial insanity, evidence concerning the defendant’s mental condition is admissible on the question of whether the defendant had the mental state which is an element of the offense with which he is charged.
Thus, while his mental illness may be a consideration in evaluating the requisite state of mind for the crime charged, we decline to accept Ramsey’s invitation to hold that a finding of mental illness negates malice aforethought as a matter of law.
The trial court in this case found that Ramsey entertained the malice aforethought necessary to support a conviction of second-degree murder. Defendant would have us require that the trial judge affirmatively state that the mental illness did not affect the defendant’s ability to form the requisite intent.
Had the trial judge indicated a refusal to consider the defendant’s mental illness as a diminishing factor in his decision of whether defendant possessed the requisite malice aforethought, we would find it necessary to address the question of the extent to which mental illness could diminish the intent requirement for second-degree murder. But he did not. We therefore are faced with a statement by the judge that defendant possessed the requisite intent.
We are disinclined, under the circumstances of this case, to place a further burden on the fact-finding of a judge in a bench trial which would require, in addition to a finding of guilt on the elements of the crime, an affirmative statement that all potential mitigating factors have been considered and rejected.
Boyd raises one matter which requires additional consideration. He claims that error which requires reversal occurred when the trial court, over objection, instructed the jury on the disposition of a defendant found not guilty by reason of insanity and on the disposition of a defendant found guilty but mentally ill. The Court of Appeals rejected Boyd’s claim on the strength of authorities now questionable in light of our recent decision in People v Goad, 421 Mich 20; 364 NW2d 584 (1984).
In Goad, we held that it was error to instruct the jury as to the disposition of a defendant found not guilty by reason of insanity. However, we expressly stated that our holding was prospective, which makes it inapplicable to Boyd. As to the propriety of giving instructions on the disposition of a defendant found guilty but mentally ill (CJI 7:8:01), Goad, supra, p 37, strongly intimated that such instructions are also improper:
We hold that in all jury instructions given more than 30 days after the filing of this opinion, the jurors shall not be given any information including, but not limited to, CJI 7:8:07 and 7:8:08 requiring the disposition of the defendant after their verdict.
We would now similarly hold that jurors should not be instructed on the disposition of a defendant found guilty but mentally ill. Although error occurred in the instant case, it does not require reversal, for the reasons stated in Goad.
Williams, C.J., and Ryan, J., concurred with Brickley, J.
Amicus curiae Michigan Psychiatric Society, branch of American Psychiatric Society, also contends that the guilty but mentally ill verdict is unconstitutional because it creates an irrational distinction. The society contends that, in psychiatric terms, the definitions of mental illness and insanity are identical. We note that claim was contradicted by the testimony of psychologist Dr. Steven Bank in Boyd, who found Boyd mentally ill but not insane. In any event, it is not the custom of this Court to decide constitutional issues raised by amici, but not the parties, and we express no opinion on the matter.
Ramsey also contends that we must review this case to determine if the Legislature used the least intrusive means to accomplish its purpose, citing Dunn v Blumstein, 405 US 330; 92 S Ct 995; 31 L Ed 2d 274 (1972), an equal protection case. We do not find that standard applicable to the due process challenge made here.
A study by the Center for Forensic Psychiatry in September of 1974 indicated that of some 350 persons found not guilty by reason of insanity only twenty percent of them suffered from mental illness sufficient to exculpate their actions. Thirty percent of those persons were found to have no mental illness whatsoever. The remaining fifty percent were viewed as having some psychosis or neurosis, but with no evident relationship between their mental state and their crime. Robey, supra. Of course, a verdict of not guilty by reason of insanity determines a defendant’s mental state at the time of the crime, not afterwards. Still, in view of these statistics and the number of persons released after McQuillan, and unless treatment of the mentally ill has progressed far beyond the level of which we are aware, one can hardly conclude that the Legislature was irrational in finding the insanity verdict to have been misused.
Ramsey and Boyd also find a verdict which does not distinguish a separate degree of criminal responsibility to be "so extraordinary that no direct analogy exists.” We note that novelty does not equal unconstitutionality. Furthermore, since sanity is only presumed in a normal prosecution, and must be proved beyond a reasonable doubt by the prosecution in this state when evidence of insanity is raised, see People v Savoie, 419 Mich 118; 349 NW2d 139 (1984), there is a direct analogy, the verdict of not guilty by reason of insanity. See Underwood v People, 32 Mich 1 (1875).
Nor do available statistics support the claim that jury compromise is actually occurring. Prior to the adoption of the guilty but mentally ill verdict, 0.024 percent of adult males arrested were found not guilty by reason of insanity. In 1982, 0.032 percent of adult males arrested were found not guilty by reason of insanity. Smith & Hall, supra, p 101. These statistics, while not only hopeful, can be interpreted to mean that the guilty but mentally ill verdict, having not decreased insanity verdicts, has been ineffectual and, perhaps, irrelevant. One could also interpret these statistics to mean that the guilty but mentally ill verdict has been very effective in avoiding improper insanity verdicts, as evidenced by the almost insignificant rise in the percentage of such verdicts. In any event, there is no real empirical support for the claim that juries have compromised what should be insanity verdicts by returning verdicts of guilty but mentally ill.
Ramsey also raises two issues which do not, strictly speaking, deal with the guilty but mentally ill verdict. We find neither argument persuasive. First, he claims that the prosecution introduced insufficient evidence of his sanity. The prosecution responds with a request that the case relied on by defendant, People v Murphy, 416 Mich 453; 331 NW2d 152 (1982), should be overruled. We decline to now consider that request. Expert witnesses testified for both the prosecution and the defense. Even though the prosecution’s experts were subjected to an unusually strong cross-examination by defendant, we cannot say that their testimony, viewed in the light most favorable to the prosecution, was insufficient evidence that Ramsey was sane, even under Murphy.
Ramsey’s remaining issue was not brought to the attention of the trial court or the Court of Appeals, and we will not consider it for the first time now.
Of course, if we were to hold that mental illness negates malice aforethought as a matter of law, a jury would have to be instructed that if they found the defendant mentally ill they could not find him guilty of murder. Considering the history of the guilty but mentally ill verdict, we doubt that such a result would comport with the intent of the Legislature.
Boyd also finds error in the trial court’s failure to reopen the proofs sua sponte. We find no clear error in the conclusion of the Court of Appeals that the trial court did not err. | [
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] |
On order of the Court, attorney Nicholas Tsalis having appeared before the Court on June 25, 1985, to show cause why he should not be held in contempt for his failure to file an application for leave to appeal as directed by the Court and his failure to respond to the order of February 27, 1985, directing him to show cause, and the Court finding that no good cause has been shown for the lack of diligence of counsel, it is hereby ordered and adjudged that attorney Nicholas Tsalis is in contempt of this Court. It is further ordered that attorney Nicholas Tsalis pay to the Clerk of this Court the sum of $300 in court costs, payable to the State of Michigan, within ten days of the Clerk’s certification of this order. These costs are assessed because of the needless additional work required of this Court by the failure of Mr. Tsalis to file an application or take other action within a reasonable time after his appointment. The Court finds that defendant’s appeal to this Court has been unreasonably delayed through the inaction of attorney Nicholas Tsalis. The Clerk shall deposit the costs paid pursuant to this order with the State Treasurer for credit to the State General Fund. The costs are personal to the attorney and may not be charged back to the county. | [
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Hooker, J.
The bill in this cause alleged a partner ship and prayed an accounting between Michael F. Griffin and the defendant, Thomas Griffin. The latter filed an answer, denying the partnership, and alleging that the transactions set forth in the bill created a trust in his favor, and that complainant’s wife, Gertrude Griffin, was so connected therewith as to make her a necessary party, and she was brought in. Her demurrer to the cross-bill was before us in the case of Griffin v. Griffin, 112 Mich. 87, and was overruled. She afterwards answered, as the complainant had previously done. Upon the hearing the complainant voluntarily caused his bill to be dismissed, and defendant Gertrude Griffin claimed that the cross-bill should fall with it; but the trial court held otherwise, and proceeded to hear the case. A decree was rendered in favor of the complainant in the cross-bill, Thomas Griffin. Gertrude Griffin has appealed.
Most of the questions of law applicable to this case were disposed of upon the former hearing. The claim that the dismissal of the original bill carried with it the cross-bill cannot be sustained, as that rule does not apply to cases where the cross-bill sets up additional facts relating to the subject-matter of the original bill, and asks affirmative relief upon them. See City of Detroit v. Detroit City R. Co., 55 Fed. 569; 5 Enc. Pl. & Prac. 663, and note. McGuire v. Van Buren Circuit Judge, 69 Mich. 593, impliedly recognizes this rule.
The testimony shows that M. F. Griffin was a lawyer, and that his brother, Thomas, came to reside with him, and engaged in business upon his own account, loaning money and dealing in real estate. Gertrude Griffin, the wife of M. F. Griffin, inherited some property, of which her husband appears to have had a general management as her agent, and the business affairs of the two brothers and Gertrude became involved. Finally, M. F. Griffin transferred the property that was in his name, or the most of it, to his wife, and she began an action in attachment against Thomas, and M. F. Griffin filed the original bill in this cause, alleging that he and Thomas were copartners. The circuit judge found that no partnership relation existed, and that Gertrude Griffin held property justly belonging to Thomas, and upon an accounting made a decree for a balance in favor of Thomas. The case involves a number of items and complicated transactions, which need not be discussed at length, as we think that the decree of the superior court was as favorable to the defendant Gertrude Griffin as she should expect, and the other parties have not appealed.
The decree will therefore be affirmed, with costs.
Montgomery, Moore, and Long, JJ., concurred. Grant, O. J., did not sit. | [
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Montgomery, J.
The circuit court, on an appeal from the probate court, entered a judgment allowing the account of William R. Stafford as executor. The proceeding is before us on error. Insuperable objections to a consideration of the points made confront us. The record shows that no request for a finding of facts or law was presented before judgment. After judgment was entered, a finding was made on request of the appellant, but no exception to this finding was filed. Circuit Court Rule No. 26 has been ignored. In Brown v. Haak, 48 Mich. 229, it was held that the request for findings must precede the entry of judgment. Indeed, the language of the rule is plain and unambiguous. We held in Co it v. Judge of Superior Court, McGrath, Mand. Cas. No. 704, that a trial court may vacate a judgment to afford opportunity for presenting a request for findings in a proper case, but no showing authorizing such action was made or attempted in this case. The appellee objected to the court’s filing findings, and, as the findings were not authorized while final judgment stood, we think the appellee was not bound to propose amendments, and was justified in ignoring the-findings. The failure to file exceptions to the findings would also, even if the findings were regular, preclude us from examining any other question than that of whether the findings support the judgment. Weist v. Morlock, 116 Mich. 606.
The judgment, will be affirmed, with costs.
The other Justices concurred. | [
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Reported ante, 254. | [
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The certification by the Court of Appeals pursuant to Administrative Order No. 1984-2 that its decision in this case is in conflict with its decisions in Askew v Parry, 131 Mich App 276 (1983), and Earle v Colonial Theatre Co, 82 Mich App 54 (1978), is considered. The Court declines to take further consideration of the questions presented. Reported below: 143 Mich App 520. | [
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Grant, O. J.
{after stating the facts). Was the verdict of the jury conclusive and binding upon the court? This is the sole question presented. The statute provides that a “trial or hearing shall be by the court without a jury, unless a jury be demanded by either party. ” Section 8259. Section 8261 is as follows:
“All cases of general average, salvage, and collision, and all cases relating to sailors’ wages or to the employment of seamen, arising under this act, shall be determined upon the trial or hearing, and upon appeal, accord ing to the principles established in courts of admiralty and maritime jurisdiction in such cases.”
It is also provided:
“The proceedings and practice under this act shall be the same as in personal actions at law, except as herein otherwise provided, so far as the same may be applicable.” Section 8281.
We think that section 8261 is conclusive against the contention of the relator. It provides that all cases of collision, whether upon trial or appeal, shall be determined according to the principles established in courts of admiralty and maritime.jurisdiction. Cases arising under this section come within the exception mentioned in section 8281. It was said in the case of The Empire, 19 Fed. 560:
“In chancery cases, the province of the jury is said to •be to ‘enlighten the conscience of the court;’ and, as the court of admiralty is but the chancery of the seas, I see no reason why we should not give it the same effect here.”
Under a much more stringent provision it was held that the verdict of the jury in an equity case was simply advisory. Basey v. Gallagher, 20 Wall. 670. See, also, The City of Toledo, 73 Fed. 220; Dunn v. Dunn, 11 Mich. 284; Brown v. Kalamazoo Circuit Judge, 75 Mich. 274 (5 L. R. A. 226, 13 Am. St. Rep. 438). The verdict of a jury is only advisory in cases of accounting by administrators, executors, and guardians. In re Pfeffer’s Estate, 117 Mich. 207.
There are other provisions of the water-craft law which throw some light upon the question. The court may refer any matter, during the progress of the cause, to an attorney or circuit court commissioner, to take evidence, and report the same to the court, with his opinion thereon; but his opinion shall not be binding on the court. Section 8260. So, in the case of an appeal to the Supreme Court, the case is heard de novo, and either party may take additional testimony, and the court shall enter such judgment or decree as shall be just. Sections 8270-8274. If the verdict of the jury is conclusive in the circuit court, it ought, for the same reason, to be conclusive in the appellate court. The legislature could not have intended that the verdict should be conclusive in one court and not in the other. A statutory provision which would lead to such a result must be so clear as to leave no doubt as to its meaning.
The writ is denied, with costs.
The other Justices concurred. | [
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Grant, C. J.
(after stating the facts). After the date of this alleged agreement, complainant asked defendant for a lease for six years. She refused, and on April 10, 1894, made a new lease for three years. This lease is in the usual form, and contains no reference whatever to the alleged agreement. It provided that the death of the defendant should terminate the lease. She was then over 70 years of age, and testified that she did not anticipate that she should live long, and feared that the planting of the orchard would make trouble among her sons. We find it unnecessary to determine whether the proofs on the part'of the complainant show a definite, complete, and certain contract, capable of enforcement. The proofs of the respective parties are in direct conflict, and the conclusion reached by the circuit judge depends upon the credibility to be given to the witnesses. The circuit judge saw them, heard their testimony, and made a finding of facts. There was ample evidence on the part of the defendant to sustain the finding. We see no reason to discredit the conclusion reached by the circuit judge. A detail of the evidence would be profitless, and would neither serve any good purpose nor form any precedent in other cases. We think the judge reached the correct conclusion, and the decree is affirmed, with costs.
The other Justices concurred. | [
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Grant, O. J.
(after stating the facts). The case appears to -have been submitted by counsel, and in the instruction of the court, upon the theory that the authority conferred upon the commission men by the deceased was material. This authority was contained in letters which passed- between the deceased and the commission men.. Mr. Morris R. Tousey was a witness for the plaintiff, and upon cross-examination was asked to produce the correspondence. The witness admitted the letters were in court, and in the possession of his counsel. His counsel stated that they were ready to produce them, if so ordered, but denied that they were material. The court declined to order their production, on the ground that it had not the power; that the proper course for the defendant was to issue a subpoena duces tecum. The court was in error. When written documents are in court, it is in the power of the court to order their production for examination, and for admission in evidence if found to be material. The only purpose of the subpoena duces tecum is that the documents may be produced in court. When they ai’e in court, in the hands of the parties or their counsel, the court should order their production. Powers v. Pussell, 26 Mich. 179.
Judgment reversed, and new trial ordered.
The other Justices concurred. | [
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