bridge, at a point some 200 feet or less from the crossing, an unusual noise at the Carp furnace startled the team, they commencing to dance, and the driver was not able to bring them down to a walk until the crossing of the railway by the highway was reached. At this point he was thrown from the sleigh and lost control of the team. The evidence tended to show that an unusual and unnatural accumulation of snow had been formed at this point by shoveling from the railroad tracks onto the highway at either side and into the traveled part thereof snow which had formed a very steep embankment, the exact depth of which is not shown, but which was obviously a dangerous embankment. The jury awarded a verdict to the plaintiff, and the defendant brings error. The errors relied upon are a variance between the case made and the case attempted to be made by the proofs; that the defect in the highway, if there was any defect, was not the proximate cause of the death of Mrs. Johnson, it being contended that the proximate cause was the fright of the horses occasioned by the steam escaping from the furnace, and the negligence of the driver, Herman Prebe, in the manner in which he was driving the horses and the manner in which he stood on the sleigh, and his failure to equip his horses with sleigh bells.

The question of whether there was a variance between the declaration and the proofs is so closely connected with that of whether the condition of the highway was the proximate cause of the injury that the discussion of one necessarily involves a determination of the other. It is contended that the declaration counts upon the team being frightened at the highway crossing; whereas, it is said they were frightened at the furnace. But if there was additional fright at the crossing, and if it should be determined that the previous fright had not resulted in the driver losing control of the team in such sense as to make their previous fright the proximate cause of the injury, we see no fault in alleging the fright which was the occasion of the injury as occurring at the highway crossing.

It is next contended that there was no negligence proven against the city of Marquette. This point was not very strongly pressed at the hearing. We do not think it open to serious question that there was evidence in this case that at this crossing there was an unnatural accumulation of snow and ice occasioned by shoveling from the railroad track so as to produce a hump on either side of the track of several inches depth; thus increasing the height of the bank on either side. We think it was at least a question for the jury as to whether this left the highway in a condition reasonably safe and fit for travel. It is true that the natural accumulations of snow and ice and the natural results of traveling on the same do not of themselves make a case of

faulty highway which justifies a jury in finding a municipality in fault. But that is not this case, as the evidence was ample to show that snow was thrown and piled on this highway in such a manner as to make an unnatural hump or ridge on either side of the track.

As to whether this condition of the highway was the proximate cause of the injury presents the principal question in the case. The circuit judge left this question to the jury under instructions, the language of which is not complained of. It is contended, however, that there were no facts which warranted the submission of this question to the jury. The testimony upon this point was given by Herman Prebe, and was as follows: "A. Well, I came along with my cord of wood, and coming onto the Carp bridge the horses, they were going, driving along gently and slowly. The horses were young, and gay, and dancing, and coming towards this end of the Carp bridge, right in front of the furnace, the horses got a little uneasy from the noise of the furnace. They were making some noise in the furnace. They seemed to take a stronger hold on the lines than what they had; and I was standing with my feet braced on the rack behind and holding my lines in my hands, trying to hold the horses down to a walk, and that is what I couldn't do, the few steps from the furnace on to this crossing. Q. How fast were they going? A. They were jumping up and down some; not drawing, but jumping up and down. Q. Sort of dancing, as horses will when they are excited? A. Yes; they were dancing up and down, and me standing there then holding them in. I wanted to slow them down to a walk, and they wouldn't walk them few steps. I didn't get them to walk; and, coming onto this track, I got throwed off. Q. How

did you come to fall off the sleigh? You say you were standing there braced, holding them in with the lines. How did you come to fall off? A. Because the team was going on a little trot, and by this drop, and me falling off as soon as they got onto the track Court: Q. What threw you off? A. Well; the drop of the track. * * * My lines dropped out of my hands after I fell; not before. I don't remember them dropping out of my hands at all. They were in my hands when I started to fall. I did not let go of them before I fell. I have driven horses 10 or 15 years, and had had considerable experience in driving during that time. I am a farmer, and use horses in my business and haul wood to town more or less in the winter. I was driving that day in my usual manner. I was standing in the back of the box braced against the hind dashboard. I was not between the pile of wood and the dashboard. I was standing on the end of the bottom boards which stick out behind the dashboard. The sides of the box which come up one or two feet high also

I I

extend back beyond the hind end board. didn't think to brace against the sides. 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 a 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 proximate 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, relied 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 SUBPOENA-FEES AND EXPENSES

-WITNESSES-COMPENSATION.

Fees in serving subpoenas 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, subpoenas should be issued in the ordinary form and in the customary way; there being nothing in the statute to authorize any departure therefrom such as a notation therein that officer's fees and expenses in serving the subpoena 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 subpoenas in a criminal case in the usual form. Writ issued.

Argued before GRANT, C. J., and BLAIR, MONTGOMERY, OSTRANDER, and HOOKER, JJ.

John E. Bird, Atty. Gen. (Henry E. Chase and Charles W. McGill, of counsel), for relator. Alfred J. Mills, for respondent.

PER CURIAM. Certain complaints were made by one of the deputy dairy and food inspectors of the state against certain persons in the county of Kalamazoo for violation of section 3, No. 193, p. 358, Pub. Acts 1895 (Comp. Laws, § 5012). Examinations were had before an examining magistrate. The magistrate found reasonable cause to believe the defendants guilty, and bound them over to the circuit court for the county of Kalamazoo for trial. Informations were filed to which the respondents pleaded not guilty. One was against one Phillip Bresson. The case was set for trial. The prosecuting attorney appeared in the cases, and was assisted by a duly accredited representative of the Attorney General's department. A controversy arose between the prosecuting attorney and the representative of the Attorney General's office over the question of fees, the prosecuting attorney contending that under the pure food act the expenses of the witnesses and officers should be paid by the state; the Attorney General's department contending that they should be paid by the county the same as other criminal cases. The representative of the Attorney General appeared before the circuit court of Kalamazoo county, and made a motion for an order to compel the issuance of subpoenas for witnesses. The prosecuting attorney feared that the issuing of the subpœnas by his authority without protest would estop the county from raising the question of its liability. An unnecessarily accrimonious discussion occurred before the circuit judge upon the question. After patiently 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 prosecuting attorney may ask for. Said clerk shall indorse on the face of each subpoena, namely: 'Officer's fees and expenses in serving this subpoena and fees and mileage of witnesses named herein are not to be paid by the county of Kalamazoo. The question whether the state of Michigan or the dairy and food department of the state of Michigan or Kalamazoo county shall eventually pay the officers and witness fees in connection with such subpoenas so issued is left for future adjustment and determination, and is not intended by this order to be predetermined by this court.' If the prosecuting attorney has a list of the witnesses, if the same has been furnished him by the state, the dairy and food commissioner, or

the Attorney General's Department, he should at once furnish that list to the clerk and have those subpoenas issued. I think the same had better be sent to the dairy and food commissioner." Subpoenas were issued, and across their faces was written in red ink: "Officer's fees and expenses in serving this subpoena, and fees and mileage of witnesses named herein are not to be paid by the county of Kalamazoo." Thereupon the relator, the Deputy Attorney General, petitioned for the writ of mandamus to compel the circuit judge to order the issuance of these subpoenas in the usual form in criminal cases. As printed in the petition, a part of the language required by the respondent's order to be indorsed on the face of the subpoena was omitted, viz., that part reserving the determination of whether such fees and expenses should be paid by the county or the state.

Fees in criminal cases are not required to be paid in advance. They are only paid after the trial upon due proof of attendance. The statute makes it "the duty of all prosecuting officers of this state to prosecute to completion all suits brought under the provisions of this act upon the complaint of the commissioner or of any citizen." Section 20, No. 193, p. 362, Pub. Acts 1895. We find nothing in the statute to authorize the issuing of a subpoena in any other than in the ordinary form. The proper time to raise the question of liability is after the expenses have been incurred, and by some proper proceeding to determine whether the state or the county is liable. Criminal trials should not be delayed by raising questions of this character. It was the duty of the prosecuting attorney to instruct the clerk to issue subpoenas in the ordinary form and in the customary way. The court, when the matter was brought to its attention, should have instructed its clerk to issue the usual subpœnas in criminal cases.

The writ will issue, but without costs.

ROBINSON v. HARMON. (Supreme Court of Michigan. Sept. 15, 1908.) 1. STATUTES INVALIDITY EXPRESSION IN TITLE OF SUBJECT-CURED BY SUBSEQUENT AMENDMENTS.

Sess. Laws 1873, p. 504, No. 198, § 9 (Comp. Laws, § 6234), was first amended by Pub. Acts 1877, p. 186, No. 177; the seventh subdivision of section 9, p. 506, providing a maximum car load freight rate for certain distances. Section 9 was thereafter amended by Acts 1883, p. 107, No. 116, Acts 1887, p. 286, No. 230, Acts 1889, p. 280, No. 202, Acts 1891, p. 101, No. 90, and Acts 1907, p. 56, No. 54, none of which amendments materially changed subdivision 7 and all of which fully complied with the constitutional requirements as to the expression of the subject-matter in the title of the act. Held, that any infirmity in the amendment of 1877 was cured by the subsequent amendments.

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 upon 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 fixed 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. Under 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.

case.

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 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