Campbell J. :
The facts material to the decision of this case are briefly as follows: Plaintiffs bring suit to recover for certain logs purchased by them of the Black River Steam Mill Company. That company had let out to certain parties a contract for cutting, hauling, running and delivering the logs at their boom at or near the mouth .of the Black River. The defendants, who were organized in due form under Chapter 66 of the Compiled Laws, assumed to exercise their functions over the main portion of the river over which these logs were to be floated. The contractors referred to did not make adequate provision for running the logs under their contracts. The amount of logs they contracted to deliver was two million feet, and there had been placed in the river, including this, sixty million feet belonging, except as above, to other owners. Defendants undertook and claimed to control all this lumber under the statute.. Jams and obstructions were caused from time to time by the accumulation of logs which filled the Stream-Defendants without the consent of any one assumed control of the logs of the plaintiffs, and run them down and delivered them at the boom, where they were run in by the owners or their employees or contractors. Defendants took from the boom logs enough to satisfy their claim for services, and advertised and sold them under the statute, and bid them in. The amount of their claim for expenses was made up by assessing the whole expenses of the company pro rata upon all the logs, including the [144]*144office and incidental expenses of the company, a sum paid for the transportation by land of a large amount of logs of other persons to avoid crowding the stream, and an amount paid a dam owner for flooding the stream to aid in floating down the logs in it.
This statement will suffice to explain the points arising in the case, as far as we deem them material for that purpose.
Inasmuch as the control of the logs of the Black River Steam Mill Company was put in the hands of their contractors, there is no room for any contract relation between plaintiffs and defendants; and the proceedings and claims of the latter depend for their validity entirely upon the statute under which they assume to act. And we deem it proper, in consideration of the necessity which seems to exist of having the rights of the numerous parties concerned understood as far as may be, to pass upon the principal questions discussed in the case and presented by the exceptions.?
The defendants became purchasers at their own sale. This was clearly illegal. The statute does not authorize it; and it is a settled doctrine in this State that no one can, without express authority of law, become a purchaser of property which it is his duty to sell for the best price it will bring. The duties of a seller can not be permitted to be affected by the interest of a buyer; and our courts have adopted the rigid rule of avoiding all such sales absolutely: — Dwight v. Blackmar, 2 Mich. 330; Clute v. Barron, 2 Mich. 192.
It was also claimed on the hearing that if defendants ever had any valid lien they lost it by delivery of the logs. The facts are not clear on this point, and we therefore abstain from deciding whether such a delivery would or would not be a relinquishment of any of the rights which the statute was designed to secure.
The principal inquiry we are called upon to enter into [145]*145relates to the' authority of such companies to assume control over logs of unconsenting parties, and to enforce compensation against the logs for thus controlling and managing them. As the exercise of such privileges is resisted upon grounds of constitutional immunity, it becomes necessary to understand in the outset precisely what condition such companies are placed in by the statute, and by other rules of law bearing upon the question.
It was decided in Moore v. Sanborn, 2 Mich. 519, that there was a common right of floatage in all streams susceptible of valuable use for lumbering. The statute under which the defendants were incorporated recognizes and attempts to secure this right. There can be no doubt of the fact, which indeed is apparent from the case before us, that there are many streams which are incapable of furnishing a commodious passage for all the lumber in their vicinity, and that in the attempt to crowd them to their utmost capacity, it is difficult if not impossible to insure the safe transit of logs without some general concert of action in keeping the stream open and clear of jams and obstructions. The statute however has not undertaken to regulate the use of any stream by uniform rules of priority or conduct; neither has it given to any person or company any monopoly, partial or total, in its enjoyment.
It authorizes any number of persons not less than five, to organize into a company, requiring them in their articles to show on what waters they design to carry on their operations. Any person who has logs to be run on those waters is entitled to become a member, and to have his logs run at a ratable proportion of the company expenses, and to have a longer notice previous to any sale for charges than strangers. The company is empowered to contract with those who are not members for the same work. The statute does not prohibit the creation of more companies than one to transact business on the same waters. We have heretofore, [146]*146on a former hearing of these eases, decided that there is no constitutional objection to so much of the statute as allows companies to organize and enter into contracts: — Ames v. Port Huron Log Driving and Booming Company, 6 Mich. 266. The present controversy arises out of the part of the law which assumes to give rights not arising out of contract.
The sixth section provides that whenever any. person puts logs or lumber into such waters without providing adequate force and means for breaking rollways and jams, or running, driving, booming, rafting, securing or clearing the banks of the same, and shall thereby obstruct the navigation or clearing the banks, such company may cause the rollways or jams to be broken, and the lumber to be run, driven, boomed, rafted, secured, or cleared from the banks, at the owner’s expense, and shall have a lien on so much thereof as shall be sufficient to satisfy all just and. reasonable charges proportioned to their amount and the expenses of running and securing the same, with power to sell for these charges and for the expenses of sale, on ten days notice personally served, or posted in three places in the town where the lumber is held, and a like notice in the company’s office, 'describing the property by its marks and supposed ownership, and specifying the amount of their claim. A longer notice is given where log owners have filed a description of their log-marks in the office ; but it is to be given in the same way.
These companies, which can be formed by any persons at their option, and which require no intervention or approval of any public authority, are authorized by this act to exercise some very important prerogatives. Their powers, if valid, may be carried out without any necessity arising from the obstruction of their own business. The law permits them, whenever the stream is obstructed by logs or lumber not adequately manned, to assume possession and manage and control it entirely, and collect their [147]*147own charges out of the proceeds of a sale in the mode referred to above.
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Campbell J. :
The facts material to the decision of this case are briefly as follows: Plaintiffs bring suit to recover for certain logs purchased by them of the Black River Steam Mill Company. That company had let out to certain parties a contract for cutting, hauling, running and delivering the logs at their boom at or near the mouth .of the Black River. The defendants, who were organized in due form under Chapter 66 of the Compiled Laws, assumed to exercise their functions over the main portion of the river over which these logs were to be floated. The contractors referred to did not make adequate provision for running the logs under their contracts. The amount of logs they contracted to deliver was two million feet, and there had been placed in the river, including this, sixty million feet belonging, except as above, to other owners. Defendants undertook and claimed to control all this lumber under the statute.. Jams and obstructions were caused from time to time by the accumulation of logs which filled the Stream-Defendants without the consent of any one assumed control of the logs of the plaintiffs, and run them down and delivered them at the boom, where they were run in by the owners or their employees or contractors. Defendants took from the boom logs enough to satisfy their claim for services, and advertised and sold them under the statute, and bid them in. The amount of their claim for expenses was made up by assessing the whole expenses of the company pro rata upon all the logs, including the [144]*144office and incidental expenses of the company, a sum paid for the transportation by land of a large amount of logs of other persons to avoid crowding the stream, and an amount paid a dam owner for flooding the stream to aid in floating down the logs in it.
This statement will suffice to explain the points arising in the case, as far as we deem them material for that purpose.
Inasmuch as the control of the logs of the Black River Steam Mill Company was put in the hands of their contractors, there is no room for any contract relation between plaintiffs and defendants; and the proceedings and claims of the latter depend for their validity entirely upon the statute under which they assume to act. And we deem it proper, in consideration of the necessity which seems to exist of having the rights of the numerous parties concerned understood as far as may be, to pass upon the principal questions discussed in the case and presented by the exceptions.?
The defendants became purchasers at their own sale. This was clearly illegal. The statute does not authorize it; and it is a settled doctrine in this State that no one can, without express authority of law, become a purchaser of property which it is his duty to sell for the best price it will bring. The duties of a seller can not be permitted to be affected by the interest of a buyer; and our courts have adopted the rigid rule of avoiding all such sales absolutely: — Dwight v. Blackmar, 2 Mich. 330; Clute v. Barron, 2 Mich. 192.
It was also claimed on the hearing that if defendants ever had any valid lien they lost it by delivery of the logs. The facts are not clear on this point, and we therefore abstain from deciding whether such a delivery would or would not be a relinquishment of any of the rights which the statute was designed to secure.
The principal inquiry we are called upon to enter into [145]*145relates to the' authority of such companies to assume control over logs of unconsenting parties, and to enforce compensation against the logs for thus controlling and managing them. As the exercise of such privileges is resisted upon grounds of constitutional immunity, it becomes necessary to understand in the outset precisely what condition such companies are placed in by the statute, and by other rules of law bearing upon the question.
It was decided in Moore v. Sanborn, 2 Mich. 519, that there was a common right of floatage in all streams susceptible of valuable use for lumbering. The statute under which the defendants were incorporated recognizes and attempts to secure this right. There can be no doubt of the fact, which indeed is apparent from the case before us, that there are many streams which are incapable of furnishing a commodious passage for all the lumber in their vicinity, and that in the attempt to crowd them to their utmost capacity, it is difficult if not impossible to insure the safe transit of logs without some general concert of action in keeping the stream open and clear of jams and obstructions. The statute however has not undertaken to regulate the use of any stream by uniform rules of priority or conduct; neither has it given to any person or company any monopoly, partial or total, in its enjoyment.
It authorizes any number of persons not less than five, to organize into a company, requiring them in their articles to show on what waters they design to carry on their operations. Any person who has logs to be run on those waters is entitled to become a member, and to have his logs run at a ratable proportion of the company expenses, and to have a longer notice previous to any sale for charges than strangers. The company is empowered to contract with those who are not members for the same work. The statute does not prohibit the creation of more companies than one to transact business on the same waters. We have heretofore, [146]*146on a former hearing of these eases, decided that there is no constitutional objection to so much of the statute as allows companies to organize and enter into contracts: — Ames v. Port Huron Log Driving and Booming Company, 6 Mich. 266. The present controversy arises out of the part of the law which assumes to give rights not arising out of contract.
The sixth section provides that whenever any. person puts logs or lumber into such waters without providing adequate force and means for breaking rollways and jams, or running, driving, booming, rafting, securing or clearing the banks of the same, and shall thereby obstruct the navigation or clearing the banks, such company may cause the rollways or jams to be broken, and the lumber to be run, driven, boomed, rafted, secured, or cleared from the banks, at the owner’s expense, and shall have a lien on so much thereof as shall be sufficient to satisfy all just and. reasonable charges proportioned to their amount and the expenses of running and securing the same, with power to sell for these charges and for the expenses of sale, on ten days notice personally served, or posted in three places in the town where the lumber is held, and a like notice in the company’s office, 'describing the property by its marks and supposed ownership, and specifying the amount of their claim. A longer notice is given where log owners have filed a description of their log-marks in the office ; but it is to be given in the same way.
These companies, which can be formed by any persons at their option, and which require no intervention or approval of any public authority, are authorized by this act to exercise some very important prerogatives. Their powers, if valid, may be carried out without any necessity arising from the obstruction of their own business. The law permits them, whenever the stream is obstructed by logs or lumber not adequately manned, to assume possession and manage and control it entirely, and collect their [147]*147own charges out of the proceeds of a sale in the mode referred to above. This renders them a species of river police, with power, not only to render help at the owner’s, expense so long as the obstruction continues, but also to absolutely deprive him, upon the first obstruction, of any further possession or management of his own property. Such a power bears no resemblance to that of persons who are obstructed in the exercise of their right of passage to remove a public nuisance which affects them individually, and must be abated before they can enjoy their own legal privileges. If the aggrieved party has á claim for expenses incurred in moving other property to forward his own, such a claim rests therefore on principles of its own, and if valid derives its validity from the circumstances which rendered the labor expended necessary. Those circumstances would not justify him in excluding the owner from aiding in the work, or in any interference beyond the fair exigencies of the case. A power of control over property, such as is set up and claimed by the corporation before us, depends for its validity entirely upon the statute. .
We are met therefore, at once, by the question whether, on a stream open to all persons, the' law can authorize a voluntary organization of persons, whether citizens or aliens, who may choose to assume a corporate character, to control, or authorize their servants and agents to control the property of those who are lawfully entitled to free navigation.
It is difficult to perceive by what process a public office can be obtained or exercised without either election or appointment. The powers of government are parcelled out by the Constitution, which certainly contemplates some official responsibility. Every officer not expressly exempted is required to take an oath of office as a preliminary to discharging his duties. It is absurd to suppose that any official power can exist in any person by Ms own assump-[148]*148tion, or by the employment of some other private person; and still more so, to recognize in such an assumption a power of depriving individuals of their property. Such claims are inconsistent with any idea of government whatever. And it is plain that the exercise of such a power is an act in its nature public and not private.
The case, however, involves more than the assumption "of control. The corporation, or rather its various agents, must of necessity determine when the case arises justifying interference, and, having assumed possession, it assesses its own charges, and having assessed them proceeds to sell the property seized to pay them, with the added expenses of such sale. These proceedings are all ex parte, and are all proceedings in invitum. Their validity must therefore be determined by the rules applicable to such cases.
Except in those cases where proceedings to collect the public revenue may stand upon a peculiar footing of their own, it is an inflexible principle of constitutional right that no person can legally be divested of his property without remuneration, or against his will, unless he is allowed a hearing before an impartial tribunal, where he may contest the claim set up against him, and be allowed to meet it on the law and the facts. When his property is wanted in specie for public purposes, there are methods assured to him whereby its value can be ascertained. Where a debt or penalty or forfeiture may be set up against him, the determination of his liability becomes a judicial question, and all judicial functions are required by the Constitution to be exercised by courts of justice or judicial officer's regularly chosen. He can only be reached through the forms of law upon a regular hearing, unless he has by contract referred the matter to another mode ■of determination.
When a company proceeds under this statute to take charge of logs in the stream, several questions of a judi■cial nature present themselves. The principal are, first [149]*149whether the circumstances exist which give the right of interference with the property in the stream; second, whether the company actually assumed charge of it, and safely and diligently moved and delivered it; and third, what was the legitimate expense of performing the services. All of these involve questions of fact, upon which there might easily be conflicting testimony. A party whom it is sought to charge has a right to have these questions of fact settled, before he can be compelled to pay such demands, or to have his property sold to satisfy them. If such a case does not come within the familiar constitutional rules, which assure to every one the right to due process of law, which preserve the right of trial by jury, and which vest judicial powers in stable hands, it would be difficult to find any meaning in those maxims. They have been so frequently and uniformly applied in cases like this that a citation of adjudged cases appears a useless ceremony. No case can be found anywhere, which would remove these questions from judicial cognizance.
The statute under which the company defendant 1 was incorporated not only makes all proceedings ex parte, but makes the company judge in its own cause, and empowers it to execute its own judgments. Such a proceeding is too plainly illegal to admit of an extended argument.
The judgment below should be reversed, and judgment rendered on the finding for plaintiffs, for nominal damages, with costs of both courts.
Martin Ch. J. and Christiancy J. concurred.