tice in all these cases is perhaps as clearly and ably stated in 55 Pa. St., supra, as anywhere. In that case, Judge AGNEW says: "If a negro takes his seat beside a white man, or his wife or daughter, the law cannot repress the anger or conquer the aversion which some will feel. However unwise it may be to indulge in the feeling, human infirmity is not always proof against it. To assert separateness is not to declare inferiority in either. It is not to declare one a slave, and the other a freeman. That would be to draw the illogical sequence of inferiority from difference only. It is simply to say that, following the order of divine providence, human authority ought not to compel these widely-separated races to intermix. The right of each to be free from social contact is as clear as to be free from intermarriage. The former may be less repulsive as a condition, but not less entitled to protection as a right. When, therefore, we declare a right to maintain separate relations as far as is reasonably practicable, but in a spirit of kindness and charity, and with due regard to equality of rights, it is not prejudice or caste, but simply to suffer men to follow the law of races established by the Creator himself, and not to compel them to intermix contrary to their instincts." This reasoning does not commend itself either to the heart or judgment. The negro is here, and brought here by the white man. He must be treated as a freeman or a slave; as a man or a brute. The humane and enlightened judgment of our people has decided -although it cost blood and treasure to so determine-that the negro is a man; a freeman; a citizen; and entitled to equal rights before the law with the white man. This decision was a just one. Because it was divinely ordained that the skin of one man should not be as white as that of another furnishes no more reason that he should have less rights and privileges under, the law than if he had been born white, but cross-eyed, or otherwise deformed. The law, as I understand it, will never permit a color or misfortune, that God has fastened upon a man from his birth, to be punished by the law unless the misfortune leads to some contagion or criminal act; nor while he is sane and honest can be have less privileges than his more fortunate brothers. The law is tender, rather than harsh, towards all infirmity; and, if to be born black is a misfortune, then the law should lessen, rather than increase, the burden of the black man's life.

The prejudice against association in public places with the negro, which does exist, to some extent, in all communities, less now than formerly, is unworthy of our race; and it is not for the courts to cater to or temporize with a prejudice which is not only not humane, but unreasonable. Nor shall I ever be willing to deny to any man any rights and privileges that belong in law to any other man, simply because the Creator colored him differently from others, or made him less handsome than his fellows,-for something that he could not help in the first instance, or ever afterwards remove by the best of v.46N.w.no.15-46

life and human conduct. And I should have but little respect or love for the Deity if I could for one moment admit that the color was designed by Him to be forever a badge of inferiority, which would authorize the human law to drive the colored man from public places, or give him less rights than the white man enjoys. Such is not the true theory of either the Divine or human law to be put in practice in a republican form of government, where the proud boast is that "all men are equal before the law." The man who goes either by himself or with his family to a public place must expect to meet and mingle with all classes of people. He cannot ask, to suit his caprice or prejudice or social views, that this or that man shall be excluded because he does not wish to associate with them. He may draw his social line as closely as he chooses at home, or in other private places, but he cannot in a public place carry the privacy of his home with him, or ask that people not as good or great as he is shall step aside when he appears. All citizens who conform to the law have the same rights in such places, without regard to race, color, or condition of birth or wealth. The enforcement of the principles of the Michigan civil rights act of 1885 interferes with the social rights of no man, but it clearly emphasizes the legal rights of all men in public places. This idea of the equality of the races before the law was also shown in the legislation of 1867, relative to the public schools, which declared that "all residents of any district shall have an equal right to attend any school therein." Laws 1867, p. 43. This legislation was construed by this court as an act to prevent the exclusion of colored children from any public schools in the state, although separate schools for the education of blacks and whites might exist, where the accommodations and advantages of learning were fully equal one with the other. People v. Board, 18 Mich. 399. Our holding in the present case is also supported by the following authorities: Coger v. Packet Co., 37 Iowa, 146; Clark v. Directors, 24 Iowa, 267; People v. Board, 101 Ill. 308; Chase v. Stephenson, 71 Ill. 383; Messenger v. State, (Neb.) 41 N. W. Rep. 638; Baylies v. Curry, 128 II. 287, 21 N. E. Rep. 595; Board v. Tinnon, 26 Kan. 1; Railway Co. v. Green, 86 Pa. St. 421; Donnell v. State, 48 Miss. 680; Decuir v. Benson, 27 La. Ann. 1. See, also, the able dissenting opinion of DANFORTH, J., in People v. Gallagher, 93 N. Y. at pages 458-466, inclusive.

Under the circumstances, as admitted by the defendant upon this record, the only question to have been properly submitted to the jury was the amount of the plaintiff's damages. The judgment is reversed, and a new trial granted, with costs of both courts. The other justices concurred.

(82 Mich. 480) FULLER V. MAYOR, ETC., OF THE CITY OF JACKSON.

(Supreme Court of Michigan. Oct. 10, 1890.) DEFECTIVE SIDEWALK-CITY'S DUTY TO REPAIRNOTICE-INSTRUCTIONS.

1. Only when no cause of action is stated in the declaration is defendant justified in pleading

the general issue, and raising the objection at the trial; and, in a suit against the city for personal injuries sustained upon a defective sidewalk, it was proper, after the jury had been called, to overrule such technical objections as that the declaration was drawn as if upon a common law right and not upon the statute, that the place of the accident was not sufficiently described, and that the allegation was in the alternaLive, and therefore not sufficiently certain, since such objections, if available at all, must be raised

by demurrer.

2. Where a city charter expressly confers on the common council the control of all sidewalks, and imposes a liability for neglect and consequent injury, the city is liable for such injuries, although the property owner constructed the sidewalk.

8. In a suit against a city for personal injuries caused by a defective sidewalk it was proper to charge that before returning a verdict for plaintiff the jury must find that defendant, after notice of the defect, had reasonable time and opportunity to repair it, and had not used reasonable diligence therein.

4. Notice to the street commissioner or to an alderman that a street is defective is notice to the city.

5. Where plaintiff testified that in stepping across a hole in the sidewalk she stepped upon a board apparently sound, but in fact broken, it was error to charge that if defendant had notice of the hole, but not of the defect in the board, it was nevertheless liable, if in repairing the hole, the defect in the board would have been discov

ered.

Error to circuit court, Jackson county. Chas. E. Snow, (C. T. Gridley and Thomas A. Wilson, of counsel,) for appellant. Loud & Price, for appellee.

GRANT, J. Plaintiff brought suit for damages claimed to have resulted from a defective sidewalk. Defendant pleaded the general issue. Verdict and judgment were for the plaintiff. After the jury had been called, but before they were sworn, defendant's counsel objected to swearing the jury, or proceeding with the trial, because: (1) The declaration is drawn as if she had a common-law right to the action therein mentioned, and does not refer to or count upon the statute which authorizes a suit for injuries caused by a defective sidewalk. (2) The place of the accident is not sufficiently described, it being described as "a short distance east from the intersection of Pearl and Mechanic streets, in the city of Jackson, and on the south side of Pearl street." (3) The allegation is in the alternative, and therefore not set forth with sufficient certainty, the allegation being that the injury was caused by "stepping on a broken board, or into a hole." If any of these objections were good, they should have been raised by demurrer. The first objection is ruled by Railroad Co. v. Southwick, 30 Mich. 446. All the objections are purely technical. The declaration is sufficient to sustain a general verdict. Only when no cause of action is stated in the declaration is defendant justified in pleading the general issue, and raising the objections upon the trial. Otherwise, the plea walves all defects. The objections were properly overruled. We are not disposed to treat such objections with much favor.

The evidence tended to show that Pearl street was one of the principal streets of the city, and much traveled; that plaintiff

had lived on it several months, and passed over it every day; that the sidewalk was not ordered or built by the city, but was built by the owner of the property, of inch boards; that teams drove across it into a passage-way to another street; that a fence was put along the sidewalk to stop the teams, which was several times torn down; that the owner afterwards repaired the walk, and that some of the broken places were filled in with cinders; that there were two holes in the sidewalk, which had been caused by the passage of the teams, and that these holes had been there for some time previous to the accident; that the street commissioner was seen passing over Pearl street shortly before the accident, and that one of the aldermen frequently passed over the street, and saw teams passing over the sidewalk. No notice to the defendant was otherwise shown. The accident happened in the evening, but it was sufficiently light for plaintiff to see. plaintiff to see. No teams had passed over accident. She testified that when she came the sidewalk for some time previous to the to the hole, and saw it, she stepped over it onto the next plank, which was broken, and let her down; that her foot slipped under the next plank, and threw her backwards; that she had never noticed the broken board before; she could see everything plainly; was not thinking of the defective condition of the walk till she came right to it. The court instructed the jury (1) that the sidewalk was one over which the corporate authority of the city extended; (2) that they must find that the injuries of which plaintiff complained were the result of the neglect of the defendant to keep the sidewalk in reasonable repair, and in condition reasonably safe and fit for travel; (3) that she was free from contributory negligence; (4) that the defendant had reasonable time and opportunity, after knowledge by or notice to it that the sidewalk had become unsafe or unfit for travel, to put the same in proper condition for use, and had not used reasonable diligence therein after such knowledge or notice; (5) that knowledge on the part of the street commissioner or alderman of the unsafe condition of the sidewalk for a sufficient length of time before the accident to repair it was equivalent to notice to the city, and that the jury must determine whether such knowledge had been shown; (6) that if the jury found that the defendant had notice of the hole across which plaintiff stepped, but had no notice of the defect in the board, and that the defendant in repairing the hole would have discovered the defect in the board, the defendant would be liable.

The charge of the court was very long, but the above are substantially the propositions submitted to the jury. The first five instructions were correct. The defendant could not avoid liability by permitting the owner of the property to put down the sidewalk. When the sidewalk was once laid, no matter by whom, it then became the duty of the defendant to see that it was kept in proper repair, and safe condition for travel. safe condition for travel. By the terms of defendant's charter, the control of all sidewalks in the public streets and alleys of

the city is expressly conferred upon the common council, and the statute imposes a liability for neglect and consequent injury which the common law did not. This ruling does not conflict with McArthur v. Saginaw, 58 Mich. 357, 25 N. W. Rep. 313.

No fault is found with the second instruction, provided the others were correct. The determination of the question of contributory negligence was properly left to the jury. The plaintiff had no occasion for the exercise of care until she reached the hole. She was justified in stepping over it onto the board beyond, -only about a foot,-unless she knew that the board was either broken or defective. We find no evidence in the record that she knew of its condition, or had reason to believe it was unsafe to step upon it.

The fourth and fifth instructions were correct. Knowledge on the part of the street commissioner or alderman was notice to the defendant. This was settled in this state in the case of Dundas v. City of Lansing, 75 Mich. 509, 42 N. W. Rep. 1011. Further comment is therefore unnecessary.

The sixth instruction was clearly erroneous. It could not follow that because there was a hole in the walk the defendant would have knowledge, and therefore constructive notice, that the surrounding planks or boards were defective. There was no necessary connection or association between the two. Knowledge of one defect is not to be inferred by neglect to repair another. This was given great prominence in the oral charge of the court, and very likely had great influence in determining the verdict. For this error, the judgment will be reversed, and a new trial ordered, with costs. The other justices concurred.

(82 Mich. 503)

GULLIKSON v. GJOURD.

(Supreme Court of Michigan. Oct. 10, 1890.) INTOXICATING LIQUOR-CIVIL DAMAGE LAWS. 1. The Michigan liquor act of 1887 provides that "every wife * who shall be injured in her person or property or means of support, or otherwise, by reason of the intoxication of any person, or by reason of selling, giving, or furnishing any intoxicating liquors to any person, shall have a right of action against the person so furnishing such liquors which caused or contributed to such intoxication, or to such injury. Plaintiff's husband was drowned while intoxicated. Defendant kept a grocery and saloon, separated by a partition, with a door connecting them. He lived in rooms over the store and saloon, and was there when deceased and his companion went into the store and saloon. was evidence that they were intoxicated when they came; that deceased's companion had bought of defendant, the day before, a bottle of liquor, and other goods, and left them on the premises; and that defendant sent his bar-tender into the store with them to get the goods. There was also evidence that they and others went into the saloon and drank there. Held, that it was no defense that defendant had instructed his bar-tender not to open the saloon on the day in question, which was a Sunday.

There

2. Deceased having been furnished with liquor in defendant's saloon while he was at least partially intoxicated, and having been shortly afterwards drowned, the court properly refused to instruct that, "if deceased became in

toxicated by the liquer sold to his companion in the bottle, defendant was not liable."

Error to circuit court, Alpena county; R. J. KELLEY, Judge.

Turnbull & Dafoe, for plaintiff. Depew & Rutherford, for defendant.

GRANT, J. Defendant was a saloonkeeper. The husband of plaintiff became intoxicated on Sunday, November 27, 1887, fell from the dock into the water, and was drowned. Plaintiff brought this suit to recover damages under the liquor act of 1887, claiming that defendant furnished her husband with intoxicating liquors, which contributed to such intoxication. statute enacts that "every wife

The

who shall be injured in her person or prop. erty or means of support, or otherwise ✦✦✦ by reason of the intoxication of any person, or by reason of selling, giving, or furnishing any intoxicating liquors to any person, shall have a right of action against the person so furnishing such liquors which caused or contributed to such intoxication or to such injury. In reply to special questions the jury found that plaintiff's husband lost his life by reason of intoxication, caused in whole or in part by liquors furnished by defendant or his bar-tender, and that his bar-tender furnished her husband liquor while he was in an intoxicated condition. There was evidence to sustain these findings, and they are conclusive. The jury rendered a verdict in favor of plaintiff.

Defendant testified that he had instructed his bar-tender not to open his saloon on that day, and his counsel contends that this would constitute a complete defense to the action, and a charge to that effect was requested and refused. Defendant kept a grocery store and saloon, the two being separated by a partition, with a door connecting them. He lived in rooms over them. He was there at the time that deceased and his companion went into the store and saloon. There was evidence tending to show that they were intoxicated at the time they came; that they, with others, were in the saloon, and drank there; that deceased's companion had purchased of defendant, the day before, a bottle of liquor, and other goods, and was to call and get them on this Sunday; and that defendant sent his bar-tender with them into the store to get the goods. Under these circumstances it is no defense that he instructed his bar-tender not to open the saloon. The sale of intoxicating liquors was a part of the defendant's reg ular business. His bar-tender was his agent, intrusted wth the care of the business, and defendant is responsible for all sales made by him. The statute creates a liability against saloon-keepers, and they cannot avoid this liability by instructions given to those they place in charge of such business. The only way they can avoid it is by taking care that they themselves and their agents observe the law. Kreiter v. Nichols, 28 Mich. 496.

The court was requested to instruct the jury that, if deceased became intoxicated by the liquor sold to his companion in the bottle, then defendant was not liable. This request was properly refused, be

rause deceased, while at least partially intoxicated, was furnished other liquor in defendant's saloon, and shortly after

wards was drowned.

Upon the question of damages, the court, among other things, instructed the jury as follows: "You may arrive at it, if you desire to figure it out accurately, by taking the amount he would have contributed in any given year, and dividing that by one dollar, plus the legal rate of interest. For instance, if he would have contributed $200 per year, if you divide that by one dollar, plus six cents, that would give the proper worth of it if paid at once, and so on through the whole term of years." This charge must be taken in connection with the whole charge upon this subject. The above portion of the charge was merely an illustration of the method of arriving at the present worth of a sum of money payable in the future, and was evidently so understood by the jury. The charge upon this branch of the case was clear, explicit, and correct. Judgment affirmed, with costs. The other justices concurred.

(12 Mich. 344)

WILBUR V. STOEPEL et al. (Supreme Court of Michigan. Oct. 10, 1890.) CONTRACTS-PUBLIC POLICY-OFFICERS OF CORPOBATION-ESTOPPEL-INSTRUCTIONS-EVIDENCE. 1. Defendants, who owned the majority of the stock, and were directors of a corporation, without the consent of the other stockholder, made a contract with plaintiff by which in consideration of his becoming manager of the corporation at a certain salary, and of his purchasing stock, they agreed to repurchase his stock on certair. terms, if at the end of two years he concluded to withdraw from the company, or if before that time the company should dispense with nis services. Held, that the contract was void as against public policy, even if made in good faith, because it was inconsistent with defend

2. In an action on said contract, the mere fact that counsel ask the court to instruct that plaintiff cannot recover unless the jury find that the other stockholder consented to the agreement, does not warrant the court in charging that there is evidence that he did consent thereto.

8. Even if there was evidence of such consent, there being evidency of non-consent, it was error to call attention to the former without also calling the attention of the jury to the latter.

4. Although the company kept the manager in its employ for the two years, he could not enforce the agreement that the stockholders should take his stock at the end of that time, as the contract is not soverable.

5. At the end of the two years the manager gave notice of his withdrawal, and tendered his stock to said stockholders, but consented to conLinue his employment on their executing a mem. orandum reciting that, whereas the company had that day agreed to employ him as manager, therefore, in consideration of the advantages to them as stockholders by reason of such employment, they agreed that it should make no change in their mutual rights and responsibilities made by contract with reference to the purchase of stock, and that it should not affect any action taken thereunder. In the action against said stockholders on the agreement to purchase the stock they testified that they signed the agreement with the understanding and on the condition that the other stockholder sign it also, and that they left it with plaintiff's attorney to be delivered to plaintiff when it was so signed, and that when they made said memorandum they supposed said contract had been signed by said other stockhold

GRANT, J. This suit was brought upon the following written agreement: "In consideration of the undertakings of De Witt E. Wilbur, in connection with the Stoepel Lumber Company, and as part of the contract for the sale of $10,000 of the capital stock of said company by us to him, we hereby agree that if at the end of two years he decides to withdraw from said company we will repurchase the stock he buys of us, or so much of it as he may then have, for cash, at 80 per cent. of its par value; and if at any time during the first two years the said company dispenses with his services we agree to buy back the stock, on the same terms as above stated; but in either case we stipulate to have three months' time in which to take and pay for the same. April 1st, 1884. [Signed] WILLIAM C. STOEPEL. The first [Signed] JOSEPH E. WATSON. declaration filed in the case set forth the above agreement in hæc verba, and alleged that the defendants were largestockholders in the Stoepel Lumber Company; that they were desirous of selling 400 shares of its capital stock to plaintiff, and that he should become manager of the business; that he agreed to become a member of the corporation, and manager of its business, and that thereupon the above written contract was executed. The contract was not made with the company, but with two of its stockholders. One Henry R. Stoepel was also a large stockholder. This declaration did not allege any contract with him verbal or written, nor any consent on his part to the agreement sued on, nor did his name appear in the declaration. Issue was duly joined, and the case came to trial. Upon that trial there was no evidence of consent on the part of Henry R. Stoepel to the agreement, and the court held that the contract was void as against public policy, and thereupon the plaintiff withdrew a juror. Plaintiff then filed an amended declaration, in which he alleged that the two, Stoepel and Watson, on the 26th of March, 1884, owned a saw-mill and the