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filed September 1st, he requested the clerk to file it as of that date, and it was so filed. The sheriff also testified that the writ was in the hands of his deputy on September 2d. On the other hand, the return is dated by the sheriff, 'Sept. 1, 1899.' The return is indorsed with the file mark of the county clerk, 'Sept. 1, 1899.' The county clerk made an affidavit that the return was filed in his office September 1, 1899. The county clerk's assistant made affidavit that the file mark, 'Sept. 1, 1899,' is in her handwriting, and that she verily believes that the return was actually filed and indorsed by her September 1, 1899. Circuit Court Rule No. 38 requires the clerk to indorse on every paper the day on which the same is filed. As is made apparent in this case, it is important that the evidence of when papers relating to litigation are filed in the clerk's office shall be of a fixed and permanent character, and shall not rest in the recollection of interested parties. The filing placed upon the papers by the clerk becomes part of the records of the court, and cannot be contradicted by parol. Stevenson v. Bay City, supra; Mudge v. Yaples, 58 Mich. 307 (25 N. W. 297); Weaver v. Lammon, 62 Mich. 366 (28 N. W. 905); Attorney General v. Rice, 64 Mich. 385 (31 N. W. 203); Auditor General v. Board of Sup'rs of Menominee Co., 89 Mich. 552 (51 N. W. 483); Toliver v. Brownell, 94 Mich. 577 (54 N. W. 302); Holmes v. Cole, 95 Mich. 272 (54 N. W. 761)."

Our decisions in Covert v. Munson and Auditor General v. Hill, supra, are not in conflict with this opinion. In Covert v. Munson the facts were all admitted, and in Auditor General v. Hill, the question does not appear to have been presented, and the case was heard on appeal from the decree rendered in the tax proceedings.

In Ball v. Fagg, 67 Mo. 481, plaintiff offered parol evidence to prove that a certain ordinance was neither approved by the mayor, nor attested by the clerk, until a month later than the date it purported to have been approved. The trial court rejected the proof, and the ruling was sustained by the supreme court. To the same effect see State v. Main, 69 Conn. 123, 139 (37 Atl. 80, 36 L. R. A. 623, 61 Am. St. Rep. 30); Weir v. State, ex rel. Axtell, 96 Ind. 311, 316; West Chicago Street R. Co. v. Morrison, Adams & Allen Co., 160 Ill. 288 (43 N. E.

393); Walker v. Smith, 50 Ga. 487; Bennett v. Tiernay, 1 Ky. Law Rep. 312. We do not intend to intimate that direct proceedings may not be instituted in behalf of the public to correct the records in question.

In view of the importance to the public of the questions involved, we have felt it to be our duty to determine them (although the petition for the writ of certiorari does not contain, nor is it accompanied by, assignments of error), following the course we have occasionally adopted heretofore. Thomas v. Abbott, 105 Mich. 687 (63 N. W. 984); Lewis v. Board of Education of Detroit, 139 Mich. 306 (102 N. W. 756).

The order of the circuit judge is reversed, and the writ denied, but without costs to either party.

GRANT, MOORE, and MCALVAY, JJ., concurred with BLAIR, C. J. HOOKER, J., concurred in the result.

OSTRANDER, J. (concurring). I concur in reversing the order and determination of the circuit court, and in denying to relator the writ of mandamus. At the time relator tendered his money and bond to the respondent and demanded his license, an election had been held in Sanilac county, the votes had been canvassed and the supervisors had made the determination, declaration, and resolution required by section 13, Act No. 183, Pub. Acts 1899. By section 14 of this act it is provided that—

"The regularity of any proceedings prior to the adoption of such resolution by the board of supervisors shall not be open to question on the examination or trial of any person for the violation of any of the provisions of section one of this act."

Section 1 of the act makes it unlawful for any person, directly or indirectly, to manufacture, sell, give away, or furnish any liquors, or keep a saloon on and after May 1st next following after the adoption by the board of supervisors of the county of a resolution prohibiting the same as provided in section 13. Section 2 of the act provides that after said May 1st, and after the adoption of

said resolution, the provisions of the general liquor law shall be suspended and superseded in the county. It is evident that the legislature did not intend that interested persons might lie still until after an election had been held and the results thereof had been declared, and then avoid that result in a proceeding between parties neither of whom owed any duty, public or private, except to obey the law. So long as the law stood, the respondent owed no duty to any person under the suspended and superseded law. Suppose that the respondent, instead of refusing, had accepted relator's money and bond, and had issued to him the red card-had done just what it is sought in this proceeding to compel him to do. In a prosecution for violation of the local-option law relator would not be permitted to show in his defense the matters now presented as a reason for compelling respondent's action. The fact that he had paid the tax and had possession of the card would be no protection. It is clear, therefore, that until, in some proceeding brought for that purpose, the general law is declared to be operative and not superseded in Sanilac county notwithstanding the proceedings and the election which have been had, respondent does not owe relator the legal duty to comply with his request.

MONTGOMERY and BROOKE, JJ., concurred with OSTRANDER, J.

SCHARMAN v. BAY COUNTY BRIDGE COMMISSION.

1. NEGLIGENCE-HIGHWAYS AND BRIDGES-STATUTES.

The bridge commission created by the legislature to control the bridges of Bay county is not liable in an action on the case for negligence to the father of a minor killed by riding off the end of an open and unguarded drawbridge in the city of Bay City, under 1 Comp. Laws, § 3441, or 2 Comp. Laws, SS 5516-5521. By an equally divided court. MOORE, J., and BLAIR, C. J., and MONTGOMERY and MOALVAY, JJ., dissenting. 2. SAME-CONTRIBUTORY NEGLIGENCE-OPEN DRAWBRIDGE-NEGLECT TO GUARD.

A bicyclist, who, in the dark, rides off the end of an unguarded drawbridge open for the passage of a boat, is not, as a matter of law, guilty of contributory negligence. BROOKE and GRANT, JJ., dissenting.

3. COURTS--PRACTICE IN SUPREME COURT-DIVISION OF THE JUS

TICES.

A directed verdict will be affirmed where four of the eight justices of the Supreme Court hold that a verdict should be directed, but for a different reason than that adopted by the trial judge.

Error to Saginaw; Gage (William G.), J. Submitted November 11, 1908. (Docket No. 78.) Decided July 15, 1909. Motion for a new trial denied December 31, 1909.

Case by Gottfried Scharman, administrator of the estate of Calvin Scharman, deceased, against the Bay County Bridge Commission for negligently causing the death of plaintiff's intestate. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error. Affirmed by an equally divided

court.

De Vere Hall, for appellant.

Stoddard & McMillan, for appellee.

MOORE, J. Bay City is situate on opposite banks of the Saginaw river. The river is about one-half mile wide

from bank to bank. In the river is an island called the "Middle Ground." There is a highway from West Bay City to Bay City. On such highway each part of the river is spanned by a bridge having a draw or swing span for the passage of vessels, and going from the west eastward, in order, the roadway comprises the west bridge, an asphalt or macadam street about one-quarter mile in length over the island, and the east bridge having a span, both bridges having iron frames, with high sides and overhead beams. In dimensions, the east bridge from the west end to the draw or swing span is upwards of 120 feet, the span itself 202 feet, and the remaining length of the bridge from the span to the east end 129 feet. When the span is swung, the westerly end swings to the south. There is no gate or chain or guard or provision of any kind at either end of the span on either bridge, or at any place along the bridges or roadway, to prevent teams or pedestrians from passing off the open draw. The span is swung with a lever operated from near the center of the span, and, before swinging, the bridge tender rings a bell located above the center of the span to give warning. The bridge tenders are on the span, and no person is stationed along the roadway or on the bridges to give warning to the drivers of teams or pedestrians that the span is about to open.

The son of the plaintiff, after attending choir practice in the evening, rode east from West Bay City into the open draw, and was drowned. Plaintiff was appointed as administrator and brought this action; the declaration comprising three counts:

(1) Failure to keep the bridge and street in safe, fit, and convenient condition for travel.

(2) Failure to maintain a gate or gates on the roadway or bridges under sections 5516-5521, 2 Comp. Laws, thus rendering the bridges and roadway unsafe, unfit, and inconvenient for travel.

(3) Failure to maintain a gate or gates on the roadway or bridges under sections 5516-5521, 2 Comp. Laws.

At the conclusion of plaintiff's proofs, counsel for de

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