*1 Miсhigan Peters PETERS v. MICHIGAN STATE COLLEGE. Compensation Agriculture—
1. Workmen’s —State Board oe Equally Divided Court. denying Order motion employee’s to dismiss for claim workmen’s injuries employee for received while an of State general supervision under of the State agriculture board of by equally is affirmed divided court subject to whether or not the the board to the (Const. 1908, 11, 7, 8; act art. §§ Comp. 1929, 8411, 245, Laws Act as amended No. Pub. 1943). Acts Agriculture 2. Costs —Public Board oe —Work- Question —State Compensation. men’s proceeding No costs are allowed whether determine thfe State board of workmen’s com- pensation act, public being (Const. 1908, involved 11, seq., §§7, j Comp. art. 8 2 et 1929, Laws as last §8407 amended Act 1945). No. Pub. Acts of Labor and Department Appeal Industry. No. Calendar April 11, 1947. (Docket
Submitted No. Decided 43,693.) February 16, 1948. Rehearing April 5, 1948. denied presented .against W. his claim
Bobert for while Michigan College injuries sustained Motion to Defend- dismiss denied. employ. ant Affirmed an divided court. appeals. equally H. Rapaport,
Raymond plaintiff. Shields, Ballard, Jennings & Bishop, for defend- ant. Reports. (for affirmance). April 23, On Reid, J.
plaintiff hearing application for Peters filed an Robert W. *2 Michigan employee adjustment claim an -as and College, is under the control and which State supervision agriculture, the State board alleg defendant, to as is hereinafter referred board ing injury persоnal Febru that he suffered ary in the course of arose of and 12,1946, which out employment. his May a motion to dis- defendant filed 1946,
On 4, adjust- hearing plaintiff’s application and miss ground defendant, ment of claim Michigan subject having to the elected to become and amendments workmen’s act subject provisions said act. thereto, was not to the denying deputy an entered order A commissioner motion. applied.to July the defendant 10, 1946, On com department pensation of labor commission industry for review of claim. The commission and opinion January pursuant 1947, simultane 9, on ously its, denying defendant’s order filed, entered deputy commis the case to а motion, and remanded From this order on merits. sioner to be heard appeals. being granted) (on leave defendant presented whether the defend sole issue subject corporation,- is to- the ant, constitutional Michigan provisions . as amended act, § § Comp. Laws 8408, 1929, 2 of act,
Part 1, (Comp. Acts 245, Act No. Pub. as amended Supp. § Supp. Ann. 1947 Cum. 8408,Stat. 1945, Laws § 17.142), part reads as follows: date of this 2. and after the effective On “Sec. private, employer, public every and section, specifically employee, every herein otherwise unless subject provisions provided, to the of this shall be thereby.” be bound act and shall § Comp. § act, 1929, 8411, Part Laws (Cоmp. Act No. Pub. Acts 1943 amended § Supp. Supp. 1945, 8411, Stat. Ann. 1947 Laws Cum. 17.145), reads as follows: following 5. The shall constitute em- “Sec. ployers act: county, 1. The State, “Public. each city, incorporated township, village and school district incorporated public public and each therein, commission this State authorized law to hold property generally; and-to sue or be sued Every person, private 2. “Private. firm and corporation, including public corpora- service *3 any person has tion, who in service under con- express implied, hire, tract oral or written.” “incorporated public The defendant is an board” meaning, quoted. the of seсtion 5 within above and 8, Sections 7 art. Constitution 1908, are as follows: ‘‘ 7. There shall be elected on the first Mon- Sec. April, day in nineteen hundred nine, a State agriculture to consist of members, six two of whom years, hold the years shall officefor two two for four years. every regular
and two for six At biennial spring election thereafter, there shall be elected two years. whose term members of office shall be six The members thus elected and their successors in office body corporate shall be a to be known as ‘The State Agriculture.’ Board of ‘‘ The State board of as shall, 8. Sec. necessary, president often as agricul- elect a college, tural who shall be a ex-offició member of privilege speaking board with the but not of vot- ing. preside meetings shall He at the of the board principal and be college. executive officer of the general supervision The board shall have the Michigan Reports. agri- college, all and control of and the direction perforin college shall such other and funds; cultural duties prescribed by law.” be 7, corporate, cited, above the defend- note that section We designated body con- hence our ant incorporated public is an that defendant clusion board. remaining com- it is
The sole is whether prescribe petent legislature that for the compen- subject to be the workmen’s defendant shall act. sation that, provision in section
Defendant claims (defendant) have shall cited, above the board college general supervision the direc and college agricultural funds, and all tion requiring prevents the board expend any agricultural funds for compensation. Circuit cites Robinson Washtenaw Defendant malpractice Judge, involved 225, which 228 Mich. against brought suits employed surgeon the univer-
of sity cir- hospital. had dismissed The suits been brought man- plaintiffs in those suits cuit court judge compel aside his circuit to set damus (defend-- board of of dismissal. оrders immunity suits) original claimed ant in hospital operated ground that the *4 the opinion regents The charitable the is a institution. ground page says, that that 227, in the case calling regarded objection only as for serious con- opin- at conclusion of the However, sideration. say, page stated in 230 we “On case ion liability think denial as plaintiffs’ we declarations safely on either be rested could to the ground,” referring instrumen- “State words, to the immediately taliides, charities,” as well as in the preceding excerpt opinion.- in that quoted^ In other we held that board of im- words, ground being mune both State instrumen- tality ground hospital being and on the of their elеemosynary charitable or institution.
Immunity of
defendant
the case at
as a
bar
governmental agency
provided
is not
for in
legislature by
our State Constitution and the
force
“incorporated public
of the words,
in
board” has
employer subject
cluded defendant
an
as
to the
workmen’s
act, thus to that extent
depriving
immunity
defendant of its
as an instru
mentality
government.
Benson
See
v. State
.
Hospital Commission,
Under act аs nally (1st enacted Act 10, No. Pub. Ex. Acts Sess.), private employer liberty was at to ac cept accept provisions or not to the act, but political the State gen subdivisions thereof (with exceptions) eral certain were included as sub ject to the act without their consent. part § 1, 5, act, as amended Act No. August (2 Comp. Pub. Acts 14, effective § 17.145]), [Stat. Laws Ann. under
heading,
incorporated public
“Public. 1.,”
boards
subject
are made
of the act. Such
incorporated public
boards were not
to nor
originally
(Act
mentioned
the act enacted
No.
Sess.]),
[1st
10, Pub. Acts 1912
Ex.
above referred
Agler Michigan Agricultural
to.
In the case of
College,
897),
рloyee 1913, which was be 18, was supra, hence in effective; of was 1913, fore the act respond say, page Agler 563, that “the we Case employers who come the list of within was not ent law 1912 automati of the of under the such list at the cally.” not within was Defendant injuries. just Agler his The words received time apply quoted situation to to the construed must be supposed of the liabi occurrence at time . in the at lity the Court case before Agler in the Case. was decided bar Agriculture Auditor Board of The case State consequence brought in General, 417, 226 Mich. part administrative an of the State effort plaintiff expenditures board control (the agriculture same board State board bar) at act in the case under an is defendant granting administrative board the State powers. had been administrative board If the such upheld it have exercised contention, would college. activities of the the educational control over administrative held that the State we In that case over, funds of control exercise no could board plaintiff being given college, such the-provisions the Constitution board under opinion). §§ (hereinbefore cited this art. giving provision However, Constitution sole control of the the State board exempt generally funds of the does not body great laws said from the board that section 8 article It is to noted be State. quoted closes above Constitution agri- referring wordfe, with perform other duties such culture, “shall ” prescribed by be law. pass- upon occasion have heretofore We constitutionality of the workmen’s *6 Michigan 249 v. one or other of its as to various act some among following: which are the cases, in several Co., 8; Axle 187 Mich. v. Detroit-Timkin Mackin (L. City 188 Detroit, Mich. 547 R. A. v. Wood Rapids 388); Blair, Lumber Co. v. C, 1916 Grand Corporation, v. 219 518; 190 Mich. Wall Studebaker Balmer, Mich. American Insurance Co. v. 434; Life Mich. 580. none of these cases has the act 238 phase any to found unconstitutional as been brought under therein. act consideration in the Case, have heretofore decided Mackin We supra, question fairly the act in that the title of purpose. expressed its purpose
The of the workmen’s act police partakes the nature of the exercise of promoting-the power. It aimed at is welfare people of the See Wallace v. State. App. (242 California, 75 Cal. 274 Pac. 892); Casey [2d] v. N. Hansen, Iowa, W. 50). sovereign power pro “The State includes safety, prosperity, morals, health,
tection
public,
comfort,
any
convenience
welfare
part
public.”
(Italics sup
substantial
Cady City
plied.)
Detroit, 289 Mich. 499, 504,
505.
corporаtion
not-vested
The defendant
police
powers
any
of a
na-
with
Constitution
corporation vested
is the defendant
Neither
ture.
regulate
welfare of
power
with
legislature
people
It is for
State.
powers.
such
exercise
of the State
5, 29,
article
As amended
provides as follows:
Constitution
shall,
have
29.
“Sec.
un-
conditions
the hours
relative to
laws
enact
Reports.
men,
der
women and
children
be em-
ployed.”
(which
Before the amendment of 1920
added
section),
word “men” in the above
we had decided
City
(L.
in Wood
Detroit,
“Whether police regulation, the a is or is not denominated munic- ipal corporations purpose carrying for are, subject legislative a measure, out such control.” compensation We find that the workmen’s a act is valid constitutional exercise of the of the legislature necessary expend- even when it makes the agricultura] college compen- iture of funds in the employees sation of under the terms and within the compensation of the workmen’s act. approved рiece legislation act is as aimed against any alone, not at the defendant nor peculiar activities the defendant of a nature scope The act is defendant. of a broad addressed subject liability employers the t<p in broad employment. compensation fields of The workmen’s change act does not undertake to or disturb the educational activities of the defendant board.
The control of State funds must be con- given purposes sidered to defendant for the particular peculiar the and educational activities of college, purpose the State for disturbing general relationship employer in this State of employee, evading nor promote' laws enacted to 1948] people general welfare of the this State. Ar- is not 11, 8, cited,
ticle withholding above to be construed as authority make the defendant board liable and question. entire workmen’s act in department remanding The order the claim of. hearing for on its merits’ is affirmed. No costs are public importance being allowed, matter of in- volved.- (concurring). ground I concur J. on the Butzel, the workmen’s act is a valid power. police
exercise J.,C. Bushnell, J., concurred with J. Sharpe, Butzel, (for reversal). My J. attitude toward Dethmers, opinion expressed Mr. Justice is wеll in Reid language employed by majority of this commenting dissenting opinion Court Agriculture Mr. State Board Justice Wiest General, 226 Mich. Auditor which Mr. Justice speaking majority of the Court, McDonald, said: disagreement
“I am in entire with conclusions *8 Mr. reached Justice Wiest in reference to the powers agriculture. and duties of the State board of opinion prevail completely If is to we policy his will have the well settled of overturned the State rela- management and tive to the control the of agricultural college. and of the These institutions very learning people are close to the hearts of Michigan. They have made of them of the most organizations uniquе known to the in that law, this, corporations they are constitutional created for the purpose independently discharging of State func- people incorporators; are themselves the tions. responsible only the the that control them are to of boards people they independent them; who elect are government.” every department . other of State Reports. Mr. in Justice contained statement To the Reid’s injury personal plaintiff suffered
opinion. that employ- of his the course and in of arose out which fact further added the be should defendant ment employment disputed and the that such it that is performing at time of plaintiff the was duties scope in furtherance injury were within his May legislature, operations. as re- college of prescribe employment, de- to such lates of shall be fendant I think act? not. opinion, Michigan my Brother’s As stated § provides that 11, 8, of art. the the Constitution supervision “shall have the board agri college, direction and control of all and the college Plaintiff’s at work, cultural funds.” injured, being performed time lie became squarely over which the defendant within field supervision. require given Furthermore, board payment directly such case af constitutionally-conferred fects the defendant’s agricultural and control of direction over all grant funds. The constitutional to defend supervision, ant direction respects, must these be deemed absolute to the ex legislature. therefrom of clusion interference Sterling Michigan, University 150); Weinberg Regents Mich. 369 L. R. A. Michigan, Mich. 246; Bauer v. Agriculture, Board 164 Mich. 415; State Board Agriculture supra. v. Auditor General, My opinion Brother’s cites no decisions authority proposition leg- Court that the directly indirectly islature exercise control or .those fields as to which the of the uni- over versity given the State board of are powers supervision by the Constitution. This *9 253 v. question is not because the has not heretofore been considered ject this Court. Our decisions on the sub- ranging shortly are numerous, after the grant powers regents by to the board of the Con- Through stitution of until recent times. them authority all runs uniform thread of to the effect delegates that the fields over the Constitution supervisory powers regents agri- legislature. culture are not to be invaded A review of these cases is essential here. People, Regents In rel. Drake, ex v. the Uni
versity, 4 application Mich. this Court denied an compel comply for mandamus to with legislature requiring ap a statute enacted pointment by professor aof of home opathy. response In to the claim that the statute it was unconstitutional аn in because constituted regents’ powers, vasion of the constitutional Court said: compelled recognize are “We in this might suggest binding
what force well doubts of the of the law.” Regents People University, In Mich. application
469, like for mandamus was made as reported application in the in 4 case Mich. and the granted majority was not because a of the Court could be convinced that “the under the to exercise such Constitution regents, with the control over the are vested .who university, supervision direc ‘general and the expenditures tion and of all ” (syllabus). interest fund’ People, Attorney General, rel. ex application University, received Mich. like in its as stated Court, like treatment because *10 Michigan Beports. (clearly opinion, changed previous views had not case). a to the last cited reference above Weinberg Regents University Mich In v. 246) igan, plaintiff brought against the Mich. suit regents recover the of materials furnished to valúe hospital. building university to a subcontractor in pub predicated upon requiring Action was lic boards, officers or a statute agents making contracts for public buildings require the construction of to secu rity by payment by bond for and all the contractor subcontractors of labor and material claims. The all regents, pital, contracting building for of the hos required security by A no such bond. judgment plaintiff for in the court below was re majority holding versed, of this Court that the regents. statute in did not control the The majority opinion, holding, in so alluded to the fact compel this Court had refused to to comply legislative with certain acts in the three last above cited cases. Sterling Regents University Michigan,
415, wherein the of the defendant college purpose expend for the of con- funds of building structing for lease the United States post purposes government challenged, office upholding power, such held that the Court, had exclusive, control and defendant board direc- appropriated tion of the funds of the college:. general purposes for the University Michigan In Board *11 General, Auditor 167 Mich. we a v. writ of mandamus to granted general
compel the auditor upon for the State certain issue warrant treasurer expenditures university after the auditor university it had refused to issue because the expended moneys accounting in violation of the laws granted ground this The writ was of State. independent of has control “that the board ’’ university. of the affairs of the Michigan Agricultural College, Agler In v. 897), greater N. A. discussed at
Mich. 559 C. C. opinion, length that later in this we held the defend subject to ant was not Weinberg Regents stated in v. for the reаsons
act of supra. Michigan, University of People use In of of for involving Michigan, 224 Mich. Brooks, con- proceedings the use and benefit of the demnation regents, said: we separate regents’ entity, is a in- “The ‘board management
dependent control of as to the of the State ’’ University. Agriculture v. Auditor General, Board 2) sibpra, as follows: (syllabus reads attached Act No. Pub. Acts condition ‘‘The money appropriated thereby 1923, State purpose carry- agriculture for the co-operation agricultural ing work extension Michigan Reports. department agriculture the United States with general supervisory to the should be beyond board, held, administrative of the State impose, being in conflict (Art. 11, §8) giving to the with the Constitution agriculture exclusive control of all State board of its funds.” summary all Mich This concludes review of subject, igan disclosing decisions on the the uniform period position taken over a Court of almost years, unmistakably opposition clear expressed by Mr. views now Justice Reid. Agler Agricultural College, supra,
we said: “By (1908), virtue the Constitution of 1909 put State board on the same
plane with the board of Michigan. beyond It ques- has been established tion lature nor decisions legis- of this Court that neither the officer or board of this State management interfere with the control and proрerty university.” affairs and *12 quotation From this this it is clear that all concerning Court has heretofore said independ- regents ence of the board of university ap- of the plies equal with force and effect to the State board agriculture present under constitutional powers. I my am not in accord with analysis Brother’s Agler Case. In that case we part, said, in follows: “For the by reasons stated Mr. Justice Grant Weinberg Case, we must conclude that it cannot
be said that the State board of or the university of the brought are under the act.” 1948]
The reasons stated Mr. Justice Grant in the Weinberg quoted Agler Case, and in the Case, are as follows:
“
university
‘If the
were under the control and
management
legislature,
undoubtedly
of the
it would
agricultural
come within
as do the
statute,
col-
lege,
public
asylums,
normal school, State
school,
prisons,
schools,
reform
houses of correction, et
supervision
cetera. But the
of the univer-
sity
regents.
is,
Constitution, vested
“
property
people
‘The
is the
property
and in
State,
this sense is State
so
exempt
as to be
from taxation. Auditor General v.
Regents
University Michigan,
This from the Case I deem controlling here. In that case we also said “under Constitution, State cannot control the action regents.” Sterling Regents Michigan, supra, commenting Weinberg Case, we said: might propriety upon “We with rest our decision *13 disposed that case, and should be to do it so were urgent
not for the
part
contention of the
counsel
apply.
of the relator that that case does not
Michigan Eeports.
to state some
therefore constrained
areWe
further
legislature
that the
has no control
show
reasons to
regents.
university or the
over the
board regents
“(1)
and the
The board
supreme authority,
power
their
from the same
derive
namely,
powers
far
so
as the
the Constitution.
by that.instrument,
of
are
necessarily
are defined
limitations
each
upon
imposed,
direct
and a
conferred
one
excludes
existence
the other,
language showing
contrary
absence
intent.
university
regents
nor the bоard
Neither the
is
powers
in article which defines the
mentioned
legislature;
relating
nor in
duties of the
the article
university
regents
and the board of
is
there
any language
conferring
can
be construed into
upon
reserving
br
control over that institution
separate
legislature. They
are
and distinct
powers
regents
bodies,
constitutional
with the
By
defined.
no rule
construction can it
held
be
upon
powers
can encroach
either
exercise the
upon the other.”
conferred
In Board
v. Auditor
supra,
General,
we said:
the,
provisions
“By the
Constitution of 1850,
repeated
(1908),
in the new Constitution of 1909
highest
juristic
made the
form of
person
corporа-
law,
known to the
a constitutional
independent authority,
tion of
which, within the
scope
equal
its functions,
is co-ordinate with and
legislature. By
that of the
the old Constitution
given
expenditures
it is
from the
‘direction and control of all
university
(section
interest fund’
art.
13);
‘general supervi-
the new Constitution
university,
sion of the
and the direction and control
’
expenditures
all
funds. Sec-
tion
art. 11. That
the board of
has inde-
pendent
university by
control of the affairs of the
authority
of these constitutional
is well
settled
former decisions of this Court.”
*14
Michigan
259.
v.
State
Agriculture
Board
v. Auditor General,
of
supra, 423, we
said:
also
“The
of
stands
footing
same constitutional
as the board of
university.
рrogress
The
which our univer
sity
large
has made is due
measure to the fact that
pro
wisely
the framers of the Constitution of 1850
against legislative
by placing
vided
interference
management
exclusive
in the hands of a constitu
people.
underlying
tional board elected
idea
the best results would be attained
centering
responsibility
body independent
in one
only
people.
answerable
Sterling
Regents
Michigan,
University
v.
See
150):
Mich.
382
L.
R. A.
110.
For this rea
gave
regents'
son the Constitution
absolute
management
university,
and the exclusive
control of all
received for
funds
its use. This Court
People,
has so
declared
numerous decisions.
ex
Regents
University,
rel. Drake, v.
[24]),
defense of
which waived the
brought
immunity
the court
before
in certain cases
application to
claims
act never
That
of claims.
brought
before the
industry.
department
*15
and
of labor
the
of
commission
Rogers
County Road Commis
Kent Board
See
of
rehearing
decided
sioners,
January
668,
5, 1948. said expressly 1943 re as in was the act thus amended § (Stat. pealed Ann. 87, Act No. Pub. Acts 2, § [42]), Supp. longer no 27.3548 and was 1947 Cum. case, action in the instant in effect when the cause of any, governmental The matter of im if arose. munity here, is the us irrelevant before legislature may, constitutionally, being whether the compensation apply employeеs the to workmen’s act agriculture. of the State Mr. his Justice bases conclusion that it is Reid legislature competent impose provi- the to the upon sions of the act the theory defendant on the that it constitutes an exer- power police solely legisla- cise of the vested in the people, through The ture. may Constitution, State powers government vest the of State or limit they will, and as consistent with the them where § guarantee 4, contained in article Consti- As said Clements v. tution the United States. McCabe, Mich. 207: beyond question people that,
“It
is
when the
police
adopted
Constitution,
this
their
State
legislature,
placed
excеpt
distinctly
re-
or
served
elsewhere.”
conferred
“general supervision
field of
agricultural
and
col-
and the direction
of all
people
“distinctly
lege funds,” the
have
reserved
’’
legislature
or
than
conferred elsewhere
the.
and
supervise,
contro],
Con-
direct or
power to
legislative intrusion.
have barred
itself
stitution
(L.
City
R. A.
power of the capacities and the enumerated communities ticular * * * *16 the ap it has not denied powers, will,'but at general legislature enact power laws of plicable to cities.” in the instant case different be
The situation
upon
powers conferred
the defendant
cause
agriculture
the Constitution are not
expressly
declared
be
laws
concluding-
do not overlook the
We
of this State.
that
in article
the defendant board
words
perform
pre
such other
as
duties
be
“shall
’ ’
give
legis
These words do not
law.
scribed
power
granted
invade the field
lature
agriculture by
exclusively
to the board
the Con
Agri
As
said in Bauer
v. Board
stitution.
I employment can per- conclude that the prosecution college for sons business, func- operations tions or is within defendant’s exclusive supervision; payment compensation, that the college personal injury funds, in the event of aris- - ing out and in employment the course of such agricul- involves an act of direction and control of again, tural funds which, is within the ex- clusive of the defendant board; competent these to it is not reasons for impose the workmen’s act on the *17 respect type employment defendant with to the here involved. department denying
The order of the defendant’s setting motion to dismiss and hearing th'e case for on its merits should be set aside and the cause re- 1948] department entry
manded granting of an order plaintiff’s defendant’s motion to dismiss application. public being costs, No in d . volve JJ., and
Boyles, North, Carr, concurred with J. Dethmers,
PFEIFFER v. HAINES. 1. Libel and Slander —Paid Political Quali- Advertisements — Privilege. fied political Paid advertisements, alleged libelous, pub to be municipal campaigns lished incident to preceding recall held, elections of city five members commission qualifiedly privileged. Special Damage. 2. Same —Publication Libelous Per Se — publication per se, plaintiff’s When is right libelous of re- covery dependent not proof special is damages. Privilege Malice—Burden, 3. of Proof. Qualified — Same — In an action arising newspaper for libel werq articles that qualifiedly privileged, plaintiff proving the burden of falsity both and malice even were words actionable though per se. Privilege. 4. Malice—Qualified Same — per that if a se, Rule libelous is plain- statement actionable required prove malice, tiff apply is does not where publication qualifiedly privileged. Truth as a to action defamatory statement, defense based on a Restatement, Torts, see 582. § publie public Criticism of concern, officer’s activities are Restatment, privileged, Torts, see 606.