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bridge, at a point some 200 feet or less from faulty highway which justifies a jury in the crossing, an unusual noise at the Carp finding a municipality in fault. But that furnace startled the team, they commencing is not this case, as the evidence was ample to dance, and the driver was not able to to show that snow was thrown and piled on bring them down to a walk until the cross- this highway in such a manner as to make ing of the railway by the highway was reach- an unnatural hump or ridge on either side ed. At this point he was thrown from the of the track. sleigh and lost control of the team. The evi- As to whether this condition of the highdence tended to show that an unusual and way was the proximate cause of the injury unnatural accumulation of snow had been presents the principal question in the case. formed at this point by shoveling from the The circuit judge left this question to the railroad tracks onto the highway at either jury under instructions, the language of side and into the traveled part thereof snow which is not complained of. It is contended, which had formed a very steep embankment, however, that there were no facts which the exact depth of which is not shown, but warranted the submission of this question to which was obviously a dangerous embank. the jury. The testimony upon this point ment. The jury awarded a verdict to the was given by Herman Prebe, and was as plaintiff, and the defendant brings error. follows: "A. Well, I came along with my The errors relied upon are a variance be- cord of wood, and coming onto the Carp tween the case made and the case attempted bridge the horses, they were going, driving to be made by the proofs; that the defect in along gently and slowly. The horses were the highway, if there was any defect, was young, and gay, and dancing, and coming not the proximate cause of the death of towards this end of the Carp bridge, right Mrs. Johnson, it being contended that the in front of the furnace, the horses got a proximate cause was the fright of the hors- little uneasy from the noise of the furnace. es occasioned by the steam escaping from They were making some noise in the furnace. the furnace, and the negligence of the driver, They seemed to take a stronger hold on the Herman Prebe, in the manner in which he lines than what they had; and I was standwas driving the horses and the manner in ing with my feet braced on the rack bewhich he stood on the sleigh, and his failure hind and holding my lines in my hands, tryto equip his horses with sleigh bells.
ing to hold the horses down to a walk, and The question of whether there was a vari- that is what I couldn't do, the few steps ance between the declaration and the proofs from the furnace on to this crossing. Q. is so closely connected with that of wheth- How fast were they going? A. They were er the condition of the highway was the jumping up and down some; not drawing, proximate cause of the injury that the dis- but jumping up and down. Q. Sort of dancussion of one necessarily involves a deter- cing, as horses will when they are excited ? mination of the other. It is contended that A. Yes; they were dancing up and down, and the declaration counts upon the team being me standing there then holding them in. I frightened at the highway crossing; where- wanted to slow them down to a walk, and as, it is said they were frightened at the they wouldn't walk them few steps. I didn't furnace. But if there was additional fright get them to walk; and, coming onto this at the crossing, and if it should be deter- | track, I got throwed off.
Q. How mined that the previous fright had not re- did you come to fall off the sleigh? You sulted in the driver losing control of the say you were standing there braced, holdteam in such sense as to make their pre- ing them in with the lines. How did you vious fright the proximate cause of the in- come to fall off ? A. Because the team was jury, we see no fault in alleging the fright going on a little trot, and by this drop, and which was the occasion of the injury as oc- me falling off as soon as they got onto the curring at the highway crossing.
track - Court: Q. What threw you off? It is next contended that there was no A. Well; the drop of the track. negligence proven against the city of Mar- lines dr ped out of my hands after I fell ; quette. This point was not very strongly not before. I don't remember them dropping pressed at the hearing. We do not think it out of my hands at all. They were in my open to serious question that there was evi. hands when I started to fall. I did not let dence in this case that at this crossing go of them before I fell. I have driven there was unnatural accumulation of horses 10 or 15 years, and had had considsnow and ice occasioned by shoveling from erable experience in driving during that the railroad track so as to produce a hump time. I am a farmer, and use horses in my on either side of the track of several inches business and haul wood to town more or depth; thus increasing the height of the less in the winter. I was driving that day bank on either side. We think it was at in my usual manner. I was standing in the least a question for the jury as to whether back of the box braced against the hind dashthis left the highway in a condition reason- board. I was not between the pile of wood ably safe and fit for travel. It is true that and the dashboard. I was standing on the the natural accumulations of snow and ice end of the bottom boards which stick out and the natural results of traveling on the behind the dashboard. The sides of the box same do not of themselves make a case of i which come up one or two feet high also
extend back beyond the hind end board. I didn't think to brace against the sides. I stood behind, and had my knees against the end board and had the lines in my hands. I should think according to my experience I could handle the team as well there as if I were sitting on the load. I should judge the drop from the traveled part of the highway to the track would be from 18 inches to 2 feet. I could not tell whether the snow was packed down hard or not. I did not look at that.
When my horses ran away and threw me off at the crossing, they took the load of wood along with them; and, when I regained consciousness, it was standing in front of Rustenhoven's saloon. I came into town afterwards with a load of wood. The wood was not spilled out at the crossing. I have had that team two years. It is à young team. They were not frightened at the furnace, but it is a young team, and always a little gay and dancing. They did not run awav or anything like that. The noise of the furnace never affected my horses on any previous occasion so much as then. They had noticed the furnace before, but it is not every time the same noise came out of the furnace that it was then. I can't remember of ever coming along there when there was such a noise that set the horses to dancing. This team ran away from me at home before this occasion.
Q. Were you doing all you could to stop your horses when they went into this crossing? A. Yes, sir. Q. You are sure about that? A. Yes, sir. Q. Couldn't you get them down to a walk before you got there? A. No. Q. Do you say the furnace scared your team? A. Yes, sir; that is where they got their hold on the lines. Q. Was it steam? A. I couldn't say; but it was a whistling noise from the furnace. What whistling they done or what they done I don't know. They first commenced to dance when I was on the bridge. Q. Did you have the crossing in mind when you were trying to hold the horses down? A. Yes, sir. Q. But you say they were jumping so you couldn't get them down? A. I couldn't get them down to a walk getting onto the track."
We have quoted this testimony at considerable length, as we deem it the controlling question in the case. It must be conceded that under our decisions, if it could be said that Prebe lost control of his horses and they were in fact running away and beyond control at the time they reached this crossing, the condition of the highway at that point could not be said to be the proxi. mate cause of the injury. But we think the case should properly fall within the line of cases of which Langworthy v. Green, 95 Mich. 93, 54 N. W. 697, is the leading case, in which it is held that a horse is not to be considered beyond control that merely shies or starts and for a moment has his own way. This case was followed in Gage v. Railroad Company, 105 Mich. 335, 63 N. W. 318, and
has been recognized in numerous decisions, including the case of Bleil v. Detroit City Railway, 98 Mich. 228, 57 N. W. 117, re lied upon by counsel for plaintiff.
We think it was open to the jury to say that, except for the condition of this highway, the driver had sufficient control of his team so that no serious consequences could have followed. It is true he was not able to bring them down to a walk in this short distance of less than 200 feet; but that absolute control of horses may be temporarily lost by the driver is an incident to travel upon the highway which public authorities are reasonably bound to take notice of. Such a movement of a team as would not be uncommon is not necessarily a loss of control within the meaning of the authorities. See, on this point, Wharton on Negligence, $ 103 ; Olson v. Chippewa Falls, 71 Wis, 558, 37 N. W. 575; Simons v. Township of Casco, 105 Mich. 588, 63 N. W. 500. We think the facts are such as to justify the submission of this question to the jury.
Under the heading, “City Not Responsible for Consequential Damages,” it is contended that the city is not responsible for Prebe's horses being frightened by the furnace company, and the city and Prebe are not joint wrongdoers. The question of whether there is sufficient causal connection between the defective highway and the injuries to the plaintiff's intestate to justify the court in submitting this case to the jury has been sufficiently discussed in dealing with the question of proximate cause. If it is open to the jury to find that the driver would not have lost the control of the team but for the defect in the highway, then the connection between the wrong and the injury is sufficient to justify a recovery.
We discover no error in the rulings in the admission of testimony, and think there was a case for the jury. The judgment is affirmed.
CHASE, Deputy Atty. Gen., v. KALAMAZOO
CIRCUIT JUDGE. (Supreme Court of Michigan. Sept. 15, 1908.) 1. WITNESS-SUBPONA-FEES AND EXPENSES -WITNESSES-COMPENSATION.
Fees in serving subpænas and witnesses' fees and mileage in criminal cases need not be paid in advance, but only after the trial upon due proof of attendance. 2. SAME-Form.
In a prosecution under Laws 1895, p. 358, No. 193, to prohibit and prevent adulteration, fraud, and deception in the manufacture and sale of articles of food, and drink, subpenas should be issued in the ordinary form and in the customary way; there being nothing in the statute to authorize any departure there from such as a notation therein that officer's fees and expenses in serving the subpæna and witness' fees named therein were not to be paid by the county.
Mandamus by Henry E. Chase, Deputy Attorney General, to compel John W. Adams,
Kalamazoo circuit judge, to issue subpænas the Attorney General's Department, he should in a criminal case in the usual form. Writ at once furnish that list to the clerk and issued.
have those subpænas issued. I think the Argued before GRANT, C. J., and BLAIR, same had better be sent to the dairy and MONTGOMERY, OSTRANDER, and HOOK- food commissioner." Subpænas were issued, ER, JJ.
and across their faces was written in red John E. Bird, Atty. Gen. (Henry E. Chase
ink: “Officer's fees and expenses in serving and Charles W. McGill, of counsel), for
this subpæna, and fees and mileage of witrelator. Alfred J. Mills, for respondent.
nesses named herein are not to be paid
by the county of Kalamazoo." Thereupon PER CURIAM. Certain complaints were
the relator, the Deputy Attorney General, made by one of the deputy dairy and food petitioned for the writ of mandamus to cominspectors of the state against certain per
pel the circuit judge to order the issuance sons in the county of Kalamazoo for vio- of these subpænas in the usual form in criinlation of section 3, No. 193, p. 358, Pub. Acts
inal cases. As printed in the petition, a 1895 (Comp. Laws, $ 5012). Examinations part of the language required by the respondwere had before an examining magistrate. ent's order to be indorsed on the face of The magistrate found reasonable cause to be- the subpæna was omitted, viz., that part lieve the defendants guilty, and bound them reserving the determination of whether such over to the circuit court for the county of fees and expenses should be paid by the Kalamazoo for trial. Informations were county or the state. filed to which the respondents pleaded not Fees in criminal cases are not required to guilty. One was against one Phillip Bres- be paid in advance. They are only paid aftSON. The case was set for trial. The pros- er the trial upon due proof of attendance. ecuting attorney appeared in the cases, and The statute makes it “the duty of all prosewas assisted by a duly accredited repre- cuting officers of this state to prosecute to sentative of the Attorney General's depart- completion all suits brought under the proment. A controversy arose between the pros- visions of this act upon the complaint of ecuting attorney and the representative of the commissioner or of any citizen." Section the Attorney General's office over the ques- 20, No. 193, p. 362, Pub. Acts 1895. We find tion of fees, the prosecuting attorney con- nothing in the statute to authorize the istending that under the pure food act the suing of a subpæna in any other than in the expenses of the witnesses and officers should
ordinary form. The proper time to raise be paid by the state; the Attorney General's
the question of liability is after the expenses department contending that they should be have been incurred, and by some proper paid by the county the same as other crim
proceeding to determine whether the state or inal cases. The representative of the Attor
the county is liable. Criminal trials should ney General appeared before the circuit court
not be delayed by raising questions of this of Kalamazoo county, and made a motion
character. It was the duty of the prosecutfor an order to compel the issuance of sub
ing attorney to instruct the clerk to issue pænas for witnesses. The prosecuting at
subpænas in the ordinary form and in the torney feared that the issuing of the sub
customary way. The court, when the matponas by his authority without protest would
ter was brought to its attention, should have estop the county from raising the question
instructed its clerk to issue the usual subof its liability. An unnecessarily accrimoni
panas in criminal cases. ous discussion occurred before the circuit judge upon the question. After patiently
The writ will issue, but without costs. hearing the discussion, the court made the following order: "It is ordered that the clerk of this county issué subpoenas for all witnesses in this cause which the prosecut
ROBINSON v. HARMON. ing attorney may ask for. Said clerk shall
(Supreme Court of Michigan. Sept. 15, 1908.) indorse on the face of each subpæna, namely: "Officer's fees and expenses in serving
1. STATUTES – INVALIDITY EXPRESSION IN
TITLE OF SUBJECT_CURED BY SUBSEQUENT this subpæna and fees and mileage of wit
AMENDMENTS. nesses named herein are not to be paid by
Sess. Laws 1873, p. 504, No. 198, 8 9 the county of Kalamazoo. The question (Comp. Laws, § 6234), was first amended by whether the state of Michigan or the dairy Pub. Acts 1877, p. 186, No. 177; the seventh and food department of the state of Michi
subdivision of section 9, p. 506, providing a
maximum car load freight rate for certain disgan or Kalamazoo county shall eventually tances. Section 9 was thereafter amended by pay the officers and witness fees in con- Acts 1883, p. 107, No. 116, Acts 1887, p. 286, nection with such subpænas so issued is left
No. 230, Acts 1889, p. 280, No. 202, Acts 1891,
p. 101, No. 90, and Acts 1907, p. 56, No. 54, for future adjustment and determination,
none of which amendments materially changed and is not intended by this order to be pre- subdivision 7 and all of which fully complied determined by this court. If the prosecut
with the constitutional requirements as to the ing attorney has a list of the witnesses, if
expression of the subject-matter in the title of
the act. Held, that any infirmity in the amendthe same has been furnished him by the
ment of 1877 was cured by the subsequent state, the dairy and food commissioner, or amendments.
2. CORPORATIONS-CORPORATE POWERS-RegULATIONS.
The authority of the Legislature to confer powers upon corporations created by it necessarily involves the authority to regulate and restrict the exercise of such powers.
(Ed. Note. For cases in point, see Cent. Dig. vol. 12, Corporations, $ 1573.] 3. STATUTES-CONSTRUCTION-GIVING EFFECT TO ENTIRE STATUTE.
In construing a statute effect will be given, if possible, to every word and clause contained in it.
[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Statutes, $ 283.] 4. CARRIERS REGULATIONS MAXIMUM CHARGES-CONSTRUCTION OF STATUTE.
Comp. Laws, 8 6234, subd. 7, provides that in transporting freight by car, loaded by the shipper and unloaded by the consignee, no railroad shall charge for transporting each car more than $8 for any distance not exceeding 10 miles, and not more than fifty cents a mile for the second 10 miles, etc. The maximum and minimum car load of the various classes of freight was established by experts. Held, in an action to recover an overcharge, that the statute was not ambiguous or uncertain on the ground that it applied to the transportation of cars only, and not freight, nor was it uncertain on the ground that a car load is not a fixed quantity, since, while the capacity of cars differs, the load which each could carry was fixed and certain. 5. SAME-OVERCHARGE-ACTIONS FOR EXCESS
-DEFENSES-UNREASONABLENESS OF RATES IMPOSED.
In an action under Comp. Laws, $ 6234, subd. 7, providing a maximum car load freight rate, to recover an overcharge in freight, defendant railroad having been organized in 1899 under the general railroad laws, which included section 6234, the question of whether statutory rates fixed thereby were unreasonable has no application, and will not be considered, since defendant was subject to all the provisions of the laws then in force.
Error to Circuit Court, Berrien County ; Orville W. Ooolidge, Judge.
Action by John Robinson, doing business as the Robinson Cider & Vinegar Company, against Judson Harmon, receiver. Judgment for plaintiff, and defendant brings error. Affirmed.
Argued before MONTGOMERY, P. J., and OSTRANDER, HOOKER, MOORE, and McALVAY, JJ.
Stevens, McPherson & Bills (Victor M. Gore, of counsel), for appellant. G. M. Valentine and E. B. Valentine, for appellee. John E. Bird, Atty. Gen., and George S. Law, Asst. Atty. Gen., for the State.
the circuit court for Berrien county, where the court instructed a verdict for plaintif. Defendant brings the case to this court by writ of error.
It is agreed that the amount of the judg. ment recovered is the correct amount, provided plaintiff is entitled to a judgment in his favor. The statute relied upon by plaintiff for a recovery is a subdivision of an important section of the general railroad laws of the state. The section deals with the general powers of railroad corporations, and liabilities and restrictions to which they are subject. Such general powers are granted, and such liabilities and restrictions are imposed, under nine subdivisions of section 9 of article 2, entitled, “Corporate Powers and Duties of Directors," of our general laws relative to the incorporation of railroad companies. Subdivision 7 of this section is the one before us for consideration. The part material to this case reads: "(6234) Sec. 9. Every such corporation shall possess the general powers and be subject to the liabilities and restrictions following; that is to say:
Seventh. To take, transport, carry, or convey persons and property on their said road, or through such tunnel, by the force and power of steam, animals, or any mechanical power, or by any combination of them, and to receive tolls and compensation therefor: Provided, that in transporting freight by the car, loaded by the shipper, and unloaded by the consiguee no railroad company shall charge for transporting each of said cars more than eight dollars for any distance not exceeding ten miles, nor more than fifty cents a mile for the second ten miles, nor more than twenty-five cents per mile for the third ten miles; and for distances exceeding thirty miles, in no case shall the charge between any two points on the said railroad exceed the minimum charge on the entire line. This provision shall not apply to the upper peninsula, nor to any company operating less than fifteen miles of road.” It is contended by the appellant that this rate-making statute is unconstitutional, unreasonable, and uncertain. The attack is not directed against the power of the Legislature to regulate freight charges within this state. Such power is admitted.
1. The first contention is that this statute was not enacted constitutionally. The general railroad laws of the state were revised by Act No. 198, p. 497, of the Session Laws of 1873. This act has from that time remained upon our statutes as the foundation of our general railroad legislation. Article 2 of this revision was entitled as in the present law, and also contained section 9. with its nine subdivisions. This section 9 was first amended by Act No. 177, p. 186, of Public Acts of 1877. This is the amendment which is claimed to have been invalid. as far as the seventh subdivision is concerned, for the reason that it was not in
MCALVAY, J. Plaintiff brought suit against defendant receiver to recover what was claimed by him to be an overcharge for freight, demanded of plaintiff and paid by him to defendant for transporting certain car loads of freight between different points in this state upon the line of the Pere Marquette Railroad Company, of which defendant was receiver, contrary to the provisions of subdivision 7 of section 6234 of the Compiled Laws of 1897. Plaintiff recovered a judgment in the justice court, where the suit was brought. Defendant appealed to
cluded in the title of the act. This section was again amended by Act No. 116, p. 107, Pub. Acts 1883, when all the constitutional requirements for valid legislation were complied with. Amendments to the section were afterwards made as follows: Act No. 230, p. 286, of 1887. Act No. 202, p. 280, of 1889. Act No. 90, p. 101, of 1891. Act No. 54, p. 56, of 1907. In each case no constitutional requirement has been omitted. In none of these amendments has subdivision 7 been altered or changed since 1883, except that in 1889 the words "or through such tunnel" were added to its third line. The infirmity, if any existed in 1877, was cured by subsequent enactments.
2. It is urged that this statute is void for uncertainty. Evidently the legislative intent in enacting this statute was to provide for the transportation of freight by the car load for shippers who would load the cars and ship the freight to consignees who would unload them. It is apparent, also, that the shipments in view were to be made for comparatively short distances, and that the rate for such transportation was to be a fixed maximum rate. This much may be gleaned from a general view of the statute. / The legislative authority to confer powers opon corporations created by it necessarily involves the authority to regulate and restrict the exercise of such powers. The power to fix. regulate, and establish' in this state rates for the transportation of freight by railroad corporations has been sustained by this court and is admitted by defendant. It appearing that legislation has been undertaken with the intent to exercise that power, it remains for the court to determine whether such attempt at legislation has been constitutionally expressed in language clear and certain. Much time and argument has been spent to convince the court that this statute is void for uncertainty.
We are unable to find the alleged ambigulty and uncertainty claimed by defendant to be contained in this seventh subdivision in the words "freight by the car" and "each of such cars" in the following sentence: "Provided, that in transporting freight by the car loaded by the shipper and unloaded by the consignee no railroad company shall charge for transporting each of such cars more than eight dollars for any distance not exceeding ten miles." Defendant contends that this may fairly be construed to mean "the transportation of cars independent of their contents or loads,” affirming "that at the outset the statute in terms applies to the transportation of cars." As usual, where a premise is assumed or incorrect, the correct conclusion cannot follow. The statute at the outset does not in terms apply to the transportation of cars, but in terms clear and unambiguous applies to “transporting freight by the car." Counsel for defendant has overlooked the controlling word of the clause, and consequently has missed its sig.
nificance. It has the same meaning as if it read “freight by the car load." This is evident from the context. A familiar rule of statutory construction is that, if possible, effect will be given to every word and clause of the statute. Our construction is the application of this rule, by which no uncertainty appears. The section is dealing with freight by the car, and fixing a maximum rate of charge by the car load for transporting such freight. The record shows that all the expert witnesses of defendant, who were asked, understood that this statute fised the rate for transporting freight by the car load.
Defendant urges that if this is the correct construction the uncertainty still remains, by reason of the fact that a car load of freight is not a fixed quantity. If there is anything certain in the testimony in the case, it is that the practical railroad men who were defendant's witnesses established the maximum and minimum car load of freight of every class referred to. The Legislature, in fixing these rates, necessarily took into consideration the common knowledge that freight for shipment differs in weight and bulk, that cars differ in capacity, and that the load in pounds which each car could carry with safety was fixed and certain. This statute treats of but one certain kind of rate fixing, for transporting freight by the car load, loaded by the shipper and unloaded by the consignee within the state and over the line of the receiving company only. What would constitute a car load would in each instance be determined by the article tendered for transportation, and the safe load in pounds of that article fixed by the size and strength of the car furnished. That cars differ in size, and therefore the car load would not be the same for all cars, is obvious, but is not for a court to attempt to equalize. Urider the Constitution the Legislature has been vested with authority to fix freight rates, and, having exercised that authority, there is no call, as far as this case is concerned, to question the legislative judgment.
3. Under the authorities the question of the reasonableness or unreasonableness of the statutory rate for the transportation of freight by the car is not involved in this case, The Pere Marquette Railroad Company was organized November 1, 1899, under the general railroad law of Michigan. The statute under discussion in this case (section 6234, Comp. Laws 1897), fixing the rate for transporting freight by the car, was included in the general railroad law at the time of such organization. The rule invoked, that courts will interfere to prevent the enforcement of unreasonable rates fixed by the Legislature, has no application to the case at bar. It will therefore not be necessary to consider the argument of defendant and the authorities cited in the consideration