Defendants pleaded the general issue, and gave notice of special defenses based upon the statute of limitations and the infancy of two of the defendants. Upon the trial in justice's court the jury disagreed. A second trial was commenced before another jury. During the examination of the first witness, the attorney for defendants moved that the case be certified to the circuit court, for the reason that upon plaintiff's own showing the question of title to lands was in issue. This motion was granted by the justice. The case having reached the circuit court, it was there tried, and a verdict and judgment in favor of defendant was had. This judgment carried costs to defendant. A motion was then made by plaintiff to amend the judgment so as to award costs to plaintiff. Defendant now reviews by writ of error the order granting said motion. In the course of his opinion the learned circuit judge said: "The title to lands did not come in question on the trial and I now here certify." It is made clear, I think, by a reading of the various sections of the statute (Comp. Laws, §§ 782-789) that section 787 is complete in itself, and that the court was in error in refusing defendant costs. The statute is imperative, and the case made by defendant is clearly within its terms. The other class of cases, to which section 789 applies, are certified to the circuit court upon the demand of the defendant, without judicial determination that the title to lands appears or seems to be in question. If section 787 had been printed after, instead of before, section 789, it is probable that no question of the application of section 787 to the facts presented would have been raised. Whether counsel for defendant called attention to the fact, or whether the justice discovered without aid, that from plaintiff's own showing the title to land was in question is not important. The determination was one to be made by the justice, and, whether he was right or wrong, costs followed the judgment in the circuit SEGER v. NORTHWESTERN COOPERAGE & LUMBER CO. (No. 14.) (Supreme Court of Michigan. Jan. 4, 1915.) MASTER AND SERVANT (8_149*)-INJURY TO SERVANT-NEGLIGENCE-EVIDENCE. An employé was injured by a roller approx imately 3 feet long and weighing a little less than 200 pounds falling on him, while two employés were attempting to carry it down a stairway. One of the men was nearly 20 years old and accustomed to manual labor and weighed about 160 pounds; the other was about 30 years old and a little larger. To carry the roller, each man took hold of an end, and, as they got four or five steps down on the stairway, one of the men changed hands, and at that time missed his hold, and the roller slipped. Held as a matter of law not to show negligence of the employer in failing to instruct the men not to let the roller get away from them, or in not instructing them to lower it with ropes. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 291-295; Dec. Dig. § 149.*] Error to Circuit Court, Delta County; Richard C. Flannigan, Judge. Action by Adelbert M. Seger against the Northwestern Cooperage & Lumber Company. There was a judgment for defendant, and plaintiff brings error. Affirmed. Argued before BROOKE, C. J., and McALVAY, KUHN, MOORE, STONE, OSTRANDER, BIRD, and STEERE, JJ. A. W. Wolfe, of Gladstone (C. D. McEwen, of Escanaba, of counsel), for appellant. G. R. Empson, of Gladstone, for appellee. MOORE, J. This is a personal injury case. From a directed verdict in favor of the defendant the case is brought here by writ of error. The facts are not complicated. In addition to the oral proof, a photograph was introduced in evidence. This shows an iron stairway running from the lower floor of defendant's sawmill, which was used as a repair shop, to the floor above. This was a substantially built stairway, with open spaces at the back between the steps, with an iron handrail at the side at the proper height, and midway between this rail and the steps was another iron rail running parallel with the handrail. Under this stairway was a window. Still further back were three other windows. The plaintiff was foreman of defendant's hoop mill. He had occasion, just before noon, to remove a set screw from an arbor. It became necessary to drill it out. He attempted to do this at a bench 10 or 12 feet away from the stairs. Fearing he was drilling too deep, he stepped over to the window under the stairs to examine his work, and an iron roller fell from the stairway, and hurt him severely. The foreman of the sawmill testified that this roller was at the head of the stairs, that he directed two men to carry it downstairs. "The roller weighed about 150 pounds. One man could pick it up very easily." The plaintiff testified about the roller on cross-examination: "The roller was approximately three feet long. It was not solid. As I figure it, its weight was a little less than 200 pounds. The shaft projected at one end about four inches and the other about seven. It was a 24-inch shaft; it was a little less. The grease and frost in combination with its shape and weight made it dangerous to carry down the stairway. The shaft was a little bit large for a good hand hold." The claim of negligence is that the men should have been instructed not to let the roller get away from them, or that it should have been lowered with ropes. One of the men carrying the roller was For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes nearly 20 years old, and, though only a short time in the mill, was used to manual labor, and weighed about 160 pounds. The young man testified: lie for mere irregularities in the proceeding which might be reviewed on appeal, but only if the condemnation proceeding is void. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 697, 736-740, 742; Dec. Dig. § 268.*] 3. EMINENT DOMAIN (§ 215*)-CONDEMNATION IRREGULARITIES - DISQUAL PROCEEDINGS IFICATION OF JUROR. Disqualication of a juror in condemnation proceedings is ground for setting aside the judgment on appeal. FECT-ORDERS. Judgments and orders made by a disqualified judge are not voidable only, but are void. [Ed. Note. For other cases, see Judgment, Dec. Dig. § 9.*] 5. APPEAL AND ERROR (§ 185*)-QUESTIONS REVIEWABLE-QUALIFICATIONS OF JUDGE. Objections to the qualifications of a trial judge not available in the trial court may be presented in the Supreme Court. "The roller was lying between the log deck and the re-saw. Emil Lundstrum was working with me. I guess he was about 30 years old. I guess he was larger than I was. He was not very much taller. To carry it downstairs, well I took hold of one end, and he held hold of the other, and just as I got four or five steps down on the stairway I changed hands, and at the time I missed my hold and the roller slipped [Ed. Note. For other cases, see Eminent Doaway from me. I can't tell now whether I had main, Cent. Dig. § 553; Dec. Dig. § 215.*] mittens on or not; it was two years ago. Q4. JUDGMENT (§ 9*)-DISQUALIFICATION-EFState whether or not there was oil or grease on the end of the roller? Mr. Empson: I object to that as incompetent, irrelevant, and immaterial. Court: Oh, let us know just what the conditions were. A. I can't tell anything about that. I don't know, but I guess the roller had been used before. In carrying it down I went first. The end of the roller I had hold of may be an inch and a half diameter. The roller was seven or eight inches through the big part. The roller was hollow. I don't know how much it weighed; it was a little heavy, all right. Q. Was it about all you could do to lift it to carry your end of it? A. Oh, I could lift it all right, As we went down the stairs, my end became heavier. Q. Did you let it fall because it was heavy, or because it slipped? Mr. Empson: I object to that. Mr. Wolfe: I don't know whether Mr. Barrett gave us any instructions or not; I couldn't understand English at that time. He didn't give me any because he knew I couldn't understand. I had never had any experience in handling machinery before. I was 20 years old in October, 1910. I am still growing in height. I have not grown much since January 1, 1910. I don't know as I am stronger now than I was then. Q. Did you give any warning to the men below that you were going to carry that roller downstairs? A. Yes, I hollered, 'Look out! I hollered at the time I lost my hold. At the time I lost my hold, I just happened to look below, and I saw a man on the floor, and I hollered out. It rolled down a couple of steps on the stairway and then rolled off the side. can't tell the condition of the side of the stairway. I am working for the defendant now." I [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1166-1176, 1375; Dec. Dig. § 185.*] POSSESSION 6. EMINENT DOMAIN (§ 274*)-CONDEMNATION [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 753, 765-768; Dec. Dig. § 274.*] Mandamus, on relation of the Sandusky Grain Company, against Sanilac Circuit Judge. Writ granted. OS Counsel in the briefs discuss the doctrines Argued before BROOKE, C. J., and Mcof fellow servant, assumed risk, and con- ALVAY, KUHN, MOORE, STONE, tributory negligence. We think it unneces-TRANDER, BIRD, and STEERE, JJ. sary to dwell upon them for the reason that the facts disclosed by the record do not show actionable negligence on the part of the defendant. Judgment is affirmed. C. F. Gates, of Sandusky, for relator. John C. Hewitt, of Bay City, for respondent. OSTRANDER, J. We are asked to grant an order requiring the court below to grant an order restraining the Detroit, Bay City & Western Railroad Company from taking pos SANDUSKY GRAIN CO. v. SANILAC CIR- session of or performing any work upon, or CUIT JUDGE. (No. 25.) (Supreme Court of Michigan. Jan. 4, 1915.) 1. EMINENT DOMAIN (§ 274*)-INJUNCTION. Equity will not enjoin condemnation proceedings which are being conducted in the manner provided by the Legislature, on the ground of irreparable injury and anticipated and probable danger to the public. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. 88 753, 765-768; Dec. Dig. § 274.*] 2. EMINENT DOMAIN ($268*)—EJECTMENT VOID CONDEMNATION PROCEEDINGS. disturbing the surface of, Argyle avenue, in the city of Sandusky, Mich., in the construction of a spur track, until the further order of the court. From the pleadings it appears that the interested railroad company is building a line of road from Bay City to Port Huron, through the city of Sandusky, and when the original bill was filed was seeking opportunity to construct a certain spur or side track along Argyle avenue, connecting its main line with Where the court in condemnation proceed- the plant of the Sandusky Tile & Brick Comings had jurisdiction of the person of the ob-pany. For this purpose it had obtained and jector and the subject-matter, ejectment will not accepted a franchise, in the form of an ordi nance, passed January 26, 1914. It was charged in the bill, among other things, that it was proposing to construct the spur track, although the ordinance had not been submitted to a vote of the citizens of Sandusky. The answer sets up that the said ordinance was submitted to a vote of the citizens in August, 1914, at which election it was ratified and approved by a vote of more than twothirds of the qualified electors voting thereon. It is further said in answer to the bill that, negotiations for acquiring the property failing, it filed its petition August 21, 1914, in probate court, pursuant to the statute, to have the necessity for its contemplated use of the street determined and the damages and compensation it should pay ascertained; that complainants appeared in said proceeding and answered, and that thereafter, pursuant to the statute, a jury determined that the necessity existed and ascertained the damages and compensation to be paid for the contemplated use; that the report of the jury was duly confirmed by the probate court. It was upon the coming in of this sworn answer, and on October 8, 1914, that the restraining order already in force was vacated. Later, on or about October 22, 1914, a supplemental bill was filed, without notice to the railroad company, and, so far as the record discloses, without leave of the court. Like the original, it is a sworn bill, and charges, among other things, that the judge of probate, who acted in said condemnnation proceeding, was at the time the condemnation proceedings were pending, and is, a stockholder directly, personally, and financially interested in the said Sandusky Tile & Brick Company, and as such judge he appointed another stockholder in said company, the sheriff of the county, to make the list of freeholders from which the jury was made up to pass upon the necessity, etc., of using said street, the person so appointed preparing the said list of freeholders and afterwards summoning certain talesmen to complete the jury; that it was not until October 20, 1914, that complainants learned that the person so appointed was, as they claim, so disqualified to act, and not until October 19, 1914, that the facts affecting the qualifications of the probate judge came to their knowledge. The bill charges other actions amounting to legal, if not actual, fraud in the selection of the jury, but for the purposes of this opinion only the charge of the disqualification of the judge and of the officer who selected the jury will be considered. In the court below the cause stands upon the original bill and answer, the supplemental bill demurred to by defendant railroad, and an order which refuses a restraining order, for the reasons: "The supplemental bill in effect requires the court to review the proceedings of the probate court, a court of concurrent jurisdiction in condemnation proceedings. A jury in the probate court has found the necessity for taking the property, and this bill requires the court to de termine whether the proceedings are wholly void, or whether they are void only as to order I am of the opinion that the proper forum for of confirmation. An appeal has been taken, and stay is the Supreme Court. A remedy at law remains to complainants, and the finding, if necessary, although the proceedings may be void Without prejudice." as to part or whole, deprives the bill of equities, [1] That equity will not take jurisdiction to restrain condemnation proceedings which are being conducted in the manner provided rable injury and anticipated and probable by the Legislature, on the ground of irrepadanger to the public, is settled by Railway Co. v. Commissioners, 91 Mich. 444, 52 N. tend a boulevard across a railroad company's W. 52, in which case a city proposed to extracks. Such defenses, and indeed all demade in the condemnation proceedings. It fenses, to the proposed taking must be is settled, too, that although irregularities in a condemnation proceeding which might be reviewed on appeal cannot be set up in an action of ejectment for the land taken, if the court had jurisdiction of the subject-matter and of the person of the plaintiff, if the proceeding thereby taken is void, ejectment will lie. Tuller v. City of Detroit, 97 Mich. 597, 56 N. W. 1032. [2] And the disqualification of a juror in a condemnation proceeding will be ground for setting it aside on appeal. Mich. Air Line Ry. v. Barnes, 40 Mich. 383. [3, 4] Affirming the rule that judgments and orders made by a disqualified judge are not voidable merely, but are void, we have held that objections to the qualifications of the judge not available in the trial court Caille Brothers Co., 149 Mich. 601, 113 N. W. may be presented in this court. Bliss v. 317, 12 Ann. Cas. 513. [5, 6] The question is whether, in view of the settled law and the right of relators here to appeal from the order confirming the report of the jury, a court of equity ought to interfere by injunction to restrain the railroad company from presently taking advantage of its apparent right to enter upon the premises taken in the condemnation proceedings. I am of opinion that the controlling thing is the fact that, unless restrained, the railroad company may take the property, lay tracks, and accomplish, no award of damages to complainants having been made, what it undertook to accomplish in instituting the proceeding. Whether or not the probate judge was disqualified and the sheriff was disqualified are finally questions of fact, although by the demurrer the facts, for the purposes of this motion, are admitted. The equity court ought not to, and will not, review the condemnation proceeding, but if the proceeding is void the case is not different from the one made by the original bill, the railroad company has no right to enter upon the property, and the adequate remedy for complainants is an injunction. This court is not sufficiently advised concerning the ap peal from the order confirming the report of the jury to say that upon the record on appeal it can or should accomplish, by its order, what the court below may do in this cause. The writ will issue. HAYES v. AUDITOR GENERAL. (No. 12.) Const. art. 5, § 30, prohibits special acts where a general act is applicable, and declares that the question whether a general act can be made applicable is one for the courts. Pub. Acts 1913, No. 115, fixes the salary of county agents of the state board of corrections and charities in counties having a population of 150,000 or more. Before that time county agents in all counties received per diem allowances. Held that, even though there were only two counties in the state having 150,000 inhabitants, the statute was not bad as a local law, for Pub. Acts 1907 (Ex. Sess.) No. 6, charges county agents with numerous duties relating to the care of dependent children; and, the problem of dependency being particularly one of congested communities, the Legislature could base the salary of the agents on the population of the counties. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 102; Dec. Dig. § 93.*] MOORE, J. The question involved is admirably stated in the brief of the Attorney General as follows: "The relator is the county agent of the state board of corrections and charities for the county of Kent. He seeks by this proceeding to compel the Auditor General to pay him the salary fixed by Act 115 of the Public Acts of 1913, being 'An act to fix the salaries of the county agents of the state board of corrections and charities appointed in and for counties having a population of one hundred fifty thousand or more, and to repeal all acts or parts of acts contravening the provisions of this act.' gan to whom this act applies. The 81 other county agents of the state are not within its spondent that the act is a special one, within provisions. It is therefore the claim of the rethe provisions of the section of the Constitution above quoted, and is therefore void. There are but two counties in the state having a population of 150,000, and we take it as settled by the case of Attorney General ex rel. Dingeman v. Lacy, 146 N. W. 871, that the language of the act cannot give it a general character by the use of words general in their nature, but which limit its operation to special persons or special territory." The Attorney General cites many cases, among them is Henderson v. Koenig, 168 Mo. 356, 68 S. W. 72, 57 L. R. A. 659, and insists that the last-named case and the case of Attorney General, etc., v. Lacy, supra, are controlling and justify the refusal of the Auditor General. There is language used in the opinions cited which afford a basis for this contention. The cases, however, are distinguishable. In Henderson v. Koenig, supra, it is said at page 369 of 168 Mo., at page 75 of 68 S. W. (57 L. R. A. 659): "The Constitution has pointed out the precise and specific method by which county officers are to be paid, which is by fees; and if the Legislature desires to classify counties by population, and thus proportion the amounts of fees the various judges of probate may retain according to such ratio, then this must be done by appropriate legislative enactments. It cannot be done by making one or more judges of probate salfor the fees they may receive, and leaving the aried officers, and compelling them to account other judges of probate throughout the whole state unhampered by any such conditions, for this would not be 'a law uniform in its operation,' and therefore not a compliance with section 12 of article 9." And it was held that, as the Constitution provided that the officer should be paid by fees, the Legislature could not provide he should be paid a salary. In Attorney General v. Lacy, supra, it ap pears the Legislature undertook to call into existence in Wayne county a judicial officer unknown to all the rest of the state. It was held invalid for several reasons, which appear in the opinion. In the instant case no new office is created different from those existing in all the other counties of the state. These officers are appointed by the Governor, paid by the state, and are performing state functions as the agents of a state board. "The respondent, upon the advice of the legal Why should it not be said that the entire department of the state, declined to make such state is 'the district affected' by the act. payment upon the ground that Act 115 of 1913 County agents, under the provisions of Act is in conflict with the provisions of section 30 of No. 6 of the Public Acts of 1907 (Extra Sesarticle 5 of the Constitution, which reads as follows: The Legislature shall pass no local sion), are charged with numerous duties reor special act in any case where a general act lating to the care, investigation, and supercan be made applicable, and whether a gen- vision of dependent, neglected, and delineral act can be made applicable shall be a judicial question. No local or special act shall take quent children. It is a well-known fact that effect until approved by a majority of the elec- the problem of dependency, neglect, and detors voting thereon in the district to be affected.' linquency of children is practically limited "It is insisted upon the part of the state to communities with congested population. that the act in question is a special act and that Counties having 150,000 inhabitants or more a general act can be made applicable. It is conceded that there are but two persons holding must have congestion of population, and the office of county agent in the state of Michi- must, by virtue of that fact, have numerous cases of children requiring the services of See, also, State v. Sullivan, 72 Minn. 126, a county agent. Clearly the county agent 75 N. W. 8. The legislation was within the in a county containing a large urban popula- | legislative discretion. costs. STEERE, BIRD, STONE, KUHN, and OSTRANDER, JJ., concurred with MOORE, J. MCALVAY, J., I cannot agree with the foregoing opinion. The act in question has not made a constitutional classification. BROOKE, C. J., concurred with MCALVAY, J. tion will have much more to do, and should The writ will issue as prayed, but without therefore be paid more, than in a small rural community, where the problem of delinquency is almost unknown. But it is said that the previous act, being based upon a per diem of service, gave ample recognition to the difference in the amount of work done, and that, if a county agent devoted his entire time to the work, he received $939 per annum under the old act, but that the agent in Kent or Wayne, who can devote no more than his entire time, will receive $1,800 under the act in question. Is not that a matter of legislative discretion rather than of judicial determination? The Legislature undoubtedly had in mind the fact that, on account of the number of cases, their complexity, and the added responsibility entailed thereby, the counties with congested population demanded the services and therefore the pay of an efficient, high-grade officer with more or less expert knowledge and training, and that the amount of time devoted to the work was not necessarily the only criterion to measure the compensation. WEBBER v. BILLINGS. (No. 24.) (Supreme Court of Michigan. Jan. 4, 1915.) 1. APPEAL AND ERROR (§ 173*)-SCOPE OF REVIEW-QUESTIONS NOT RAISED AT TRIAL. In an action for injuries to plaintiff by the alleged negligence of defendant's servant, an objection that plaintiff failed to prove relationship of master and servant between defendant and the person charged with negligence could not be urged for the first time on writ of error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. § 173.*] 2. APPEAL AND ERROR (§§ 169, 719*)-SCOPE OF REVIEW QUESTIONS NOT RAISED AT TRIAL ASSIGNMENTS OF ERROR. Questions not raised at the trial nor covered by an assignment of error will not be reviewed. Error, Cent. Dig. §§ 1018-1034, 2968-2982, [Ed. Note.-For other cases, see Appeal and 3490; Dec. Dig. 88 169, 719.*] 3. APPEAL AND ERROR (§§ 719, 724*) — AsSIGNMENTS OF ERROR-REQUISITES. Assignments of error must be specific, and the Supreme Court will not consider arguments on alleged errors not covered by assignments. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 2997-3001, 3022, 3490; Dec. Dig. 88 719, 724.*] 4. MASTER AND SERVANT (§ 330*)-INJURIES TO THIRD PERSON-AUTOMOBILE-OPERATION FOR HIRE. In an action for injuries to plaintiff by the operation of defendant's automobile for hire by defendant's son, evidence held to justify a verdict finding that defendant was the owner of the automobile, that the parties were engaged in a part of the trip contracted for at the time of the accident, and that plaintiff was not guilty of contributory negligence. We all know it costs much more to live in a large town than in the smaller counties, and it is very likely the Legislature also took this fact into consideration in passing the law. It is not a new thing in this state to base the salary of an officer upon the population of the county where the service is to be rendered. The amount of the salaries paid the judges of probate depends upon the population of the counties. The more populous the county the larger the salary. Section 14454, Howell's C. L., and notes thereto. A case not on all fours, but involving the same principle, is the case of the People v. Leroy Brazee, 149 N. W. 1053, in which an opinion was handed down December 18, 1914. Justice Brooke, speaking for the court, said: "The contention of the respondent that the act in question violates article 5, § 30, of the state Constitution, in that, under the guise of a general act, it is really local legislation, is, in our opinion, untenable. It is true that it provides for a license fee of $100 in cities containing over 200,000 population, and but $25 in other cities, and it is likewise true that at the present time there is but one city in the state of Michigan which has a population of more than 200,000. This fact, however, is not necessarily controlling. The act operates upon all citizens alike, except that a larger sum is charged for the license in larger cities than in smallWherever the fee for the license is charged primarily for the purpose of regulation and not for the purpose of revenue, a variable sum may be fixed to meet the varying conditions under which the licensee operates. 25 Cyc. 608, and cases cited in note 74. It may well be that the Legislature appreciated the fact that T. J. Dundon, of Ishpeming (Thomas A. inspection for the purpose of proper regulation Lawler and Carl H. McLean, both of Lanin large cities would be much more expensive than such inspection in smaller cities, and that sing, of counsel), for appellant. A. W. Jurma, the larger sum was fixed for the purpose of of Ishpeming (W. T. Potter, of Ishpeming, of meeting such added expense of administration." counsel), for appellee. er ones. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dec. Dig. $ 330.*] Error to Circuit Court, Marquette County; Patrick H. O'Brien, Judge. Action by Melvin Webber against James H. Billings. Judgment for plaintiff, and defendant brings error. Affirmed. Argued before BROOKE, C. J., and McALVAY, KUHN, MOORE, STONE, OSTRANDER, BIRD, and STEERE, JJ. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |