that the judges at their voting precinct and voting booths were not supplied therewith and declined to receive votes on the advice of the solicitor, it is to be inferred that the ballots of the women of the city generally would have been refused had they tendered them. The result was that a large claim of votes, many times the majority mentioned, was denied the right of suffrage. The distinction must be kept in mind between depriving an individual of the ballot because of some disqualification peculiar to himself and the denial thereof to an entire class of voters. In the former, when not fraudulently done, but through error in judgment, there is no remedy. Cooley's Const. Lim. § 781; State v. Hanson, 87 Wis. 177, 58 N. W. 237, 41 Am. St. Rep. 38. But it is not so where a body of voters is denied the privilege as a class when numerous enough to have changed the result. The denial is then in the nature of oppression and operates to defeat the very purpose of the election; that is, of ascertaining the choice or sentiment of the electorate. Thus, excluding enough voters, on account of color, to change the result had they voted one way, has been held to render an election void. Howell v. Pate, 119 Ga. 537, 46 S. E. 667. Says Mr. McCrary, in his work on Elections (section 235): "It sometimes happens that the officers of election, though acting in good faith, commit errors which will vitiate the election. Thus, if they have adopted an erroneous rule in regard to the qualification of electors, by which legal votes were excluded, or illegal votes admitted, in numbers sufficient to change or render doubtful the result, the election is void, unless there is proof upon which the poll can be purged of illegal votes and the true result shown. And in such case if the erroneous rule affects a class of voters, and it has become generally known to the persons excluded by it, they may submit to it, without waiving any rights, although they do not present themselves at the polls and offer their ballots. They have the right to take notice of the decision of the board in other cases precisely like their own. To require each voter belonging to a class of excluded voters to go through the form of presenting his ballot, and having a separate ruling in each case, would be an idle and useless formality. We are to look at the substance, and not the formality." The same thought is expressed in section 276 of this work. A like rule seems to obtain when no opportunity is afforded those entitled to cast ballots in sufficient number to affect the result either owing to the polls not being opened in some precincts of the district, an insufficient number of ballots being supplied, or the rejection as invalid the vote of entire precincts of a district or county. People v. Salomon, 46 Ill. 415; Maloney v. Collier, 112 Tenn. 78, 83 S. W. 667; Hocker v. Pendleton, 100 Ky. 726, 39 S. W. 250; People v. Canaday, 73 N. C. 198, 21 Am. Rep. 465; Marshall v. Kerns, 2 Swan

(Tenn.) 68; Barry v. Lauck, 5 Cold. (Tenn.) 588; Burrough v. Hackney, 31 L. T. N. S. 69. According to the last state census, there were 19,179 native born women above 21 years of age residing in Des Moines, or 741 more than there were men of like age, and no time need be wasted in deducing from this proof that more qualified female voters than were necessary to overcome the majority resided in the city June 20, 1907, the day of the election. In view of the fair inference that probably more than half of those entitled to vote were denied the privilege, no consideration need be given the suggestion that but slight injury resulted from the deprivation of this important right. The suggestion that so much of section 1131 as allows women to vote without registration has been repealed is disposed of by what has been said. We reach the conclusion that the election was invalid, and that defendants should have been permanently enjoined from proceeding thereunder.

Reversed.

PEOPLE ex rel. ELLIS et al. v. CALDER et al.

(Supreme Court of Michigan. July 13, 1908.) 1. CONSTITUTIONAL LAW STATUTES-ENACTMENT-MOTIVE OF LEGISLATURE - JUDICIAL REVIEW.

Where the constitutionality of a local act is in question, evidence is inadmissible to prove that the legislators voting for its passage so voted without investigating the merits, and without in fact exercising their judgment and discretion on the merits, in compliance with a custom relating to local measures, and in reliance upon representations of local officers.

2. SAME-PRESUMPTIONS.

Courts must conclusively presume that the Legislature acted in good faith in repealing a local measure.

3. STATUTES-REPEAL-LOCAL ACTS - CONSTI

TUTIONALITY.

Const. art. 15, § 16, provides that "previous notice of any application for an alteration of the charter of any corporation shall be given in such manner as may be prescribed by law." Comp. Laws, §§ 8569, 8570, 8571, relating to such notices, provides that the absence of such notice shall not deprive the Legislature of the right to alter such charter, if the Legislature deem it a necessity on the giving, by the legislator introducing the bill, of one day's notice of his intention to so introduce it. Loc. Laws 1895, pp. 329, 408, Nos. 455, 492, both repealed the charter of a corporation at the same session of the Legislature. The corporation had no formal notice of the pending legislation, but heard of it, and was afforded a hearing by the Governor, and denied a hearing by both branches of the Legislature. The bills were introduced by the local legislators at the instance of municipal officers, and the required notice of one day was given. The acts were passed in due form. Held, that the repealing acts were not invalid for want of the notice required by the Constitution.

4. SAME.

The acts were not invalid, for the further reason that the constitutional provision did not refer to the repeal of a charter, but only to its alteration.

5. CONSTITUTIONAL LAW OBLIGATION OF CONTRACT CORPORATE CHARTER-REPEAL.

Laws, 1849, p. 294, No. 223, provided for the incorporation of a hydraulic company to supply water to a city, and contained no limitation on the life of the corporation, but provided that "the Legislature may at any time amend or repeal the act." Loc. Laws 1905, pp. 329, 408, Nos. 455, 492, each repealed the charter giving the company the right to present a claim, for the value of its tangible property, to the municipal council. Held, that the repealing acts were not unconstitutional, as impairing the obligation of the contract between the state and the corporation, since the state reserved the right to repeal the acts.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 10, Constitutional Law, § 390.

6. SAME DUE PROCESS OF LAW.

Nor does the repealing act take the property of the corporation without due process of law, contrary to the fourteenth amendment of the federal Constitution, and the Constitution of the state.

7. EMINENT DOMAIN-CORPORATE CHARTERREPEAL.

Nor do the repealing acts take private property for public use, in contravention of article 18, § 2, of the state Constitution. 8. CONSTITUTIONAL LAW OBLIGATION OF CONTRACTS-DUE PROCESS OF LAW.

The fact that the corporation mortgaged its franchise for the payment of bonds did not render the repealing acts unconstitutional as to the rights of the bondholders, as they could acquire no greater rights than the corporation bad.

9. EMINENT DOMAIN-DETERMINATION OF NECESSITY FOR TAKING-NECESSITY.

Nor are the repealing acts unconstitutional, by reason of the provision for the presentation of a claim for its tangible property to the city, because it permits property to be taken for the public without the determination of necessity, as provided by the Constitution, and that the compensation provided therein is unlawful and inadequate, since the provision, not being compulsory, has no force, unless the corporation chooses to accept it.

10. ESTOPPEL-EQUITABLE ESTOPPEL-OUSTING CORPORATION.

Where local acts, legally passed, repeal the charter of a corporation, the fact that the acts were passed in consequence of the wrongful conduct of certain local officers does not estop the municipality from bringing quo warranto to oust the corporation from exercising any rights under the repealed charter, as the proceedings of ouster were for the benefit of the city at large, and not for the benefit of those whose conduct was wrongful.

Error to Circuit Court, Kent County; Willis B. Perkins, Judge.

Quo warranto by the people, on the relation of George E. Ellis and others, against John F. Calder and others, to oust a corporation from exercising its franchise. From a judgment of ouster, defendants bring error. firmed.

Af

This is a quo warranto proceeding, instituted in the Kent circuit court to test the right of respondents to act as a corporation, under the name and style of the Grand Rapids Hydraulic Company. The Grand Rapids Hydraulic Company was incorporated under Act No. 223, p. 294, Laws 1849, for the purpose of supplying water for the use of the inhabitants of Grand Rapids. The act contained no limitation upon the life of the cor

poration, save this: It was provided that "the Legislature may at any time hereafter amend or repeal this act." In 1905 the Legislature exercised this authority (Loc. Laws 1905, pp. 329, 408), and by Acts No. 455 and No. 492 of the Local Acts of that year repealed said Act No. 223 of the Laws of 1849. At the same time it gave to said company the right to present a claim, for the value of its tangible property, to the common council of the city of Grand Rapids. The question in this case is whether said repealing acts are constitutional. Relators contend that they are. Respondents deny this. The circuit court held that they were constitutional, and entered a judgment of ouster against respondents. Respondents bring the case to this court for review. They contend that the repealing acts are unconstitutional for various reasons, which will be considered under the following heads: (1) Motives of the legislators; (2) Notice of hearing; (3) General constitutional objections; (4) Estoppel; (5) Provision for presentation of claim. Argued before GRANT, C. J., and BLAIR, MOORE, CARPENTER, and MCALVAY, JJ.

Kingsley & Wicks (John E. More, of counsel), for appellants. John E. Bird, Atty. Gen. (Moses Taggart and Ganson Taggart, of counsel), for appellees.

CARPENTER, J. (after stating the facts as above). 1. Motives of the legislators. The respondents admit that more than two-thirds of the members elect to each house voted for the repealing laws in question. They complain because they were denied the right to prove that they so voted without investigating the merits, and "without in fact exercising their judgment and discretion on the merits," in compliance with a custom relating to local measures, and in reliance upon the representations of the members of Kent county to the effect "that the delegation from Kent county was a unit in favor of said bill, and that it did not involve a subject in which the people of the State of Michigan were interested." We think the ruling complained of was correct. In People v. Gardner, 143 Mich., at page 108, 106 N. W., at page 543, we quoted with approbation from Cooley's Const. Lim. (7th Ed.) p. 257, as follows: "And although it has sometimes been urged at the bar that the courts ought to inquire into the motives of the Legislature where fraud and corruption were alleged, and annul their action if the allegation were established, the argument has in no case been acceded to by the judiciary, and they have never allowed the inquiry to be entered upon. The reasons are the same here as those which preclude an inquiry into the motives of the Governor, in the exercise of a discretion vested in him exclusively. He is responsible for his acts in such a case, not to the courts, but to the people." In this connection we notice the contention of respondents that in repealing that

law the Legislature must act in good faith. It is sufficient to say that the courts must conclusively presume that the Legislature did act in good faith. Under the rule above stated the courts have no authority to investigate that question. The only cases to which our attention is called which oppose this principle relate to certain proceedings of municipal bodies. The principle of those cases is limited. It does not extend even to legislative action of municipal bodies. It certainly does not apply to this case. This was decided in People v. Gardner, supra.

2. Notice and hearing. Respondents contend that they were not given the notice and hearing, to which they were entitled by section 16, art. 15, of our Constitution. That section reads: "Previous notice of any application for an alteration of the charter of any corporation shall be given in such manner as may be prescribed by law." The repealing law was enacted twice by the Legislature in 1905. One of these laws is No. 455 of the Local Acts; the other is Act 492 (Loc. Laws 1905, p. 408). Act No. 455 received the approval of the Governor April 5, 1905. Loc. Laws 1905, p. 329. Act No. 492 received the approval of the Governor April 25, 1905. It appears from respondents' plea that they had no formal notice of this pending legislation. They did, however, learn of it, and were afforded a hearing by the Governor, but were denied a hearing by each house of the Legislature. It also appears by their plea that the bills were introduced by legislators from Kent county, who had been requested to take this action by the municipal authorities of the city of Grand Rapids. It also appears that the legislator who introduced the bill had given more than one day's notice of his intention so to do. Each of the acts was passed in due form. Act 492 received a vote of more than two-thirds of the members elect to each house. Under these circumstances were respondents denied any rights given them by section 16 of article 15? At the first session of the Legislature, after the Constitution of 1850 took effect, it passed a law providing for the giving of notice in cases coming under said section 16. That law is found in sections 8569, 8570, and 8571, Comp. Laws 1897. Of this law it was said by Justice Christiancy, in People v. Hurlbut, 24 Mich., at page 54, 9 Am. Rep. 103: "The effect of this act, and of the constitutional provision under which it was framed, would be to justify the Legislature in disregarding, and probably-while the act remains in force-to impose upon them the duty to disregard the application as such, until the proper notice should have been given as provided by the act. It does not, however, operate to restrict the right of the Legislature itself to make such amendment as they may think the public interest may require; nor does it restrict the right of any member of either house of introducing a bill for that purpose on giving one day's previ

ous notice of his intention so to do. Nor do we think, as insisted by the counsel for the respondents, that the notice, when given in either house by a member, is by this act required as in case of an 'application' in behalf of the corporation or individuals, 'to set forth briefly the nature of the alteration applied for.' This provision applies only to cases where alterations are 'applied for' from without the Legislature itself, and is coextensive only with the provision requiring the publication of the notice of such application. The provision allowing a member of either house to give one day's notice of the intention to introduce a bill for such purpose was, we think, intended to recognize the almost universal custom of practicein legislative bodies in this country to require one or more days' notice from a member of his intention to introduce, or ask leave to introduce, a bill; in which case nothing more than the title or general object of the bill is usually required. It is urged that if this be the true construction of the Constitution and the act, both may be readily evaded; as it would always be practicable for the corporation to procure some member of the House or Senate to give the one day's notice, and to introduce the bill on his own responsibility as a member. This may or may not be true; but if true, it is a difficulty inherent in the natureof the subject itself, and for which the courts cannot provide a remedy. A proper respect for a co-ordinate branch of the government requires us to presume that each member of the Legislature acts upon his individual conviction of public duty, and that he will not become the willing instrument of designing parties to enable them to evade the statute or the Constitution." This reasoning, which we thoroughly approve, answers every argument advanced by respondents in support of their claim that they were entitled to notice under section 16 of article 15 above quoted. Perhaps it might also be stated that section 16 of article 15 has no application to a repeal of a charter. There is a distinction between an alteration and a repeal. See Yeaton v. Bank of Old Dominion, 21 Grat. (Va.) 593.

3. General constitutional objections. In the circuit court respondents urged that the repealing act impaired the obligations of the contract between the hydraulic company and the state, contrary to the provisions of the Constitution of the United States; that it deprived the company of its property without due process of law, contrary to the provisions of the Constitution of the state of Michigan and of the fourteenth amendment of the Constitution of the United States; that it took its private property for public use in contravention of section 2 of article 18 of the Constitution of Michigan. In our judgment none of these objections are tenable. The repealing act does not take from the corporation any personal or real property

acquired during its legal existence. It does take from it this, and only this: Its right to continue to be a corporation. It takes from it no right, franchise, or power which does not depend for its existence upon the granting clause of the charter, and these it had a legal right to take. Greenwood v. Freight Co., 105 U. S. 21, 26 L. Ed. 961. These rights it obtained from the Legislature of the state of Michigan. By its terms the law granting these rights might, at any time, be repealed by the Legislature. The corporation would exist until, and only until, the Legislature repealed the law creating it. The life of the corporation expired, according to the terms of its charter, with the repeal of the law. Any argument that the repeal destroyed any constitutional right must rest upon the impossible assumption that the corporation had a legal right to exist for a term longer than that specified in its charter. It had no such right. authority in support of this reasoning be needed, we think it is found in Greenwood v. Freight Company, supra. In this connection we consider the claim of respondents that the constitutional rights of certain holders of bonds of the corporation are impaired by the repealing acts. These holders of bonds are creditors of the corporation, who are secured by mortgages upon the corporate property and franchises. We deem it sufficient to say that the franchise mortgaged to secure these bonds was no other than that granted to the corporation. Nor did the mortgage in any way change its effect, or lessen the right of the Legislature to repeal it at any time. The bondholders acquired no greater rights than the corporation had. The existence of the bonds secured by the mortgage is therefore an entirely immaterial circumstance, and in no way affects the correctness of the foregoing reasoning.

If

4. Estoppel. Respondents contend that the repealing acts cannot be enforced, because they were passed in consequence of the wrongful conduct of certain officials of the city of Grand Rapids. Whether the principle of estoppel can ever be invoked to prevent the enforcement of a valid legislative enactment we do not decide. We do decide that it cannot be invoked in this case. Here the repealing acts are sought to be enforced, not for the benefit of those whose conduct was wrongful, but for the benefit of the entire inhabitants of a great city, who were guilty of no wrong. Their right to have the law enforced cannot be affected by the circumstance that some agent of the municipal ity acted improperly in procuring its enactment.

5. Provision for presentation of claim. The repealing acts give the corporation the right to present a claim for its tangible property to the common council of the city of Grand Rapids. It is contended that this provision is unconstitutional, because (a) it permits property to be taken for the pub

lic without the determination of necessity, as provided in the Constitution; and (b) that the compensation provided therein is unlawful and inadequate. It is a sufficient answer to each of these claims to say that this provision is not compulsory. It has no force, unless the corporation chooses to accept it. If the corporation does accept, it voluntarily sells its property on the terms stated in said provision. To this there is no constitutional objection.

It results from this reasoning that the judgment of the circuit court must be affirmed.

DUMMER v. UNITED STATES GYPSUM CO. et al.

July 13, 1908.) ORAL AGREEMENT

(Supreme Court of Michigan. 1. FRAUDS, STATUTE OF FOR EASEMENT VALIDITY. An oral agreement for a right of way over land for a switch track is void.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Frauds, Statute of, §§ 94, 95.]

2. EASEMENTS-PRESCRIPTION.

Title to an easement may be acquired by prescription in the same time that title to land may be so acquired.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Easements, §§ 13-34.] 3. SAME.

In determining whether title to an easement claimed over land for a railway switch right of way was acquired by prescription, periods of considerable time during which the easement was not used while mills in connection with which it is claimed were idle cannot be considered.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Easements, § 17.]

Error to Circuit Court, Kent County; Alfred Wolcott, Judge.

Petition by William F. Dummer against United States Gypsum Company and another. From a judgment for plaintiff, the gypsum company brings error. Reversed, and new trial ordered.

Argued before BLAIR, OSTRANDER, HOOKER, MOORE, CARPENTER, and McALVAY, JJ.

Butterfield & Keeney and Albert N. Eastman, for appellant. Kleinhans & Knappen (Charles Henry Dummer, of counsel), for appellee.

MOORE, J. This case was tried before a jury. At the conclusion of the testimony offered by the plaintiff, the trial judge directed a verdict in favor of the railroad company, but submitted the case against the other defendant. A verdict for $12,000 was rendered in favor of the plaintiff. The case is brought here by writ of error.

The issues involved and the claims of the respective parties were so admirably stated by the late Judge Wolcott in his charge to the jury that we cannot do better than quote therefrom:

"Gentlemen of the Jury: This is an action brought by William F. Dummer, as plaintiff,

against the United States Gypsum Company and the Pere Marquette Railway Company, as defendants. The court has already stated to you that you should return a verdict of no cause of action as to the Pere Marquette Railway Company. I have already stated on the record the reasons for directing a verdict as to that company, and will not repeat it again here. So you will consider this case as if brought against the United States Gypsum Company alone.

"In order that the jury may have clearly before it the situation, I will state to you the theories and claims on the part of both the plaintiff and defendant. In stating these claims I do not intend to intimate what the opinion of the court might be as to any point. What the facts are and what claims on either side have been established by the evidence are solely matters for the jury to determine from the evidence in the case.

"The plaintiff's claim in this case is substantially this: That in 1873 the mill properties now owned by the plaintiff south of Grandville on sections 19 and 20, of Wyoming township, were owned by the Grandville Plaster Company and the Grand River Valley Plaster Company, respectively, and that the property now owned by the defendant, the United States Gypsum Company, on sections 17 and 18, together with 15 acres on the south end of section 18, which now belong to one Olthoff, were owned by Dr. H. O. Weston. That upon section 20 was located a mill for the manufacture of gypsum products, which mill had at that time begun operations. That on section 19 a mill was then in process of construction, which mill was to be operated for the same purposes, and was in fact so operated after its construction. That on the property of Dr. Weston on section 18 was located a gristmill in active operation, and that Dr. Weston had also at that time the intention of putting up another mill on his property for the manufacture of gypsum products. That at this time, viz., in 1873, none of these mills had a side track or railroad facilities, but that a railroad was running through Grandville substantially east and west, and at a distance of about three-quarters of a mile from the mills of the Grandville Plaster Company and the Grand River Valley Plaster Company, called, respectively, the 'Red' and 'White' mills. This railroad was the same one that is now owned and operated by the Pere Marquette Railroad Company. That in the year 1873, under the conditions above stated, it was agreed by Dr. Weston and the owners of the red and white mill that all three mills should join in obtaining sidetrack facilities, and the plaintiff claims that to this end the owners of the red and white mills agreed that they would grade and complete, all ready for the ties and rails, a roadbed from the main line of the railroad substantially south through the village of Grandville and through the property of Dr. Weston, and down to the red and white mills, this embankment and

the track, when laid, to be used to connect all three mills with the main line of the railroad. The plaintiff claims that in consideration of this agreement on the part of the owners of the red and white mills to construct this roadbed and pay the entire cost thereof that Dr. Weston agreed to give to the owners of the red and white mills a perpetual right of way over his lands sixty feet wide upon a line agreed between them. The plaintiff claims that thereafter the projected line was surveyed and the owners of the red and white mill carried out their contract and agreement with Dr. Weston, and constructed at their expense and at a cost of between $3,000 and $4,000 the roadbed from the main line through the village of Grandville and across property owned by Mr. Hooper for the right of way across which the owners of the red and white mills paid and to the mill of Dr. Weston on section 19, and from that point to the red and white mill. The plaintiff claims that the grade and embankment and temporary bridge were completed ready for the ties and rails in 1873, with the exception of the short spur at the southerly end to the red mill, which was completed in 1874. The plaintiff claims that at once upon completion the representatives of the railroad company came to Grandville, and some agreement was made by which they agreed to put down ties and rails, and that the putting down of the ties and rails followed immediately after. And the plaintiff claims that this agreement with the said railroad was only supplementary to the one previously made between the then owners of the red mill and the white mill with Dr. Weston, and in furtherance of the same. The plaintiff claims that from the time of putting down these rails the owners of the red and white mills, now owned by Mr. Dummer, have continuously used this spur track for having conveyed in railroad cars to the railroad their manufactured products, and having conveyed to the mills from said railroad all their fuel and supplies down to the time of the temporary removal of the rails on the roadbed of the said spur track, and the right to the use of said main spur track was not interrupted until the time of the grievances complained of in this declaration. And the plaintiff claims that this user was continued, as above stated, excepting as the mills were from time to time shut down, and they had no occasion to use the spur track until the fall of 1902, at which time the defendant, the United States Gypsum Company, tore out the bridge across Buck creek, which was a constituent part of the spur track, and the defendant thereafter refused to replace the bridge or to allow the said bridge and the rails to be restored. The plaintiff claims that because of the agreement made in 1873, as claimed and carried out by the owners of the red and white mills, the owners of the red and white mills entered into the enjoyment and possession of the right of way un