Charles E. Miller for plaintiff. See as to payment of fees in fraudulent debtors' cases, Bromley v. People 7 Mich. 472; proceedings therein are civil, Randall v. Auditors, on hearing for order to show cause, October, 1878. Edwin F. Conely for defendant. The Fraudulent Debtors' Act contemplates public and penal proceedings and that the county shall pay the fees, Comp. L. §§ 7174-87. MARSTON, C. J. One of the important questions raised in this case relates to the liability of counties to officers for their fees for services performed under the Fraudulent Debtors' Act. While many expressions may be found in that act which would give color to the theory that the proceedings are not strictly of a civil nature, yet there are certain provisions therein to which a controlling effect must be given, because so utterly at variance with well settled and unalterable legal principles of the criminal law. The whole object of the chapter and the proceedings thereunder is to enable the plaintiff to collect a money demand of a certain kind from his debtor out of property beyond the reach of an ordinary execution. The plaintiff has such control over the proceedings that he may cause them to be stopped at any time, and the defendant may also, in the manner prescribed by the statute, bring the proceedings to an end. If upon examination the defendant is discharged, any other creditor, and perhaps the same one, may commence new proceedings, specifying the same offense, and the first will be no bar; thus, if criminal, placing the accused twice in jeopardy. The party arrested, on being brought before the magistrate, may controvert the facts, and may at his option verify his allegations by his own affidavit, and in such case the complainant may examine him on oath touching any fact or circumstance material to the inquiry, and the answers of the defendant on such examination shall be reduced to writing and subscribed by him,-a course wholly unknown to our criminal law. The proceedings are not criminal. It is not claimed that there is any express provision of the statute making the fees in these cases a charge against the county. The thirteenth section of the act certainly does not so provide; it but fixes the rate of compensation. Nor does the fourteenth section even by implication make the charge a proper one against the county by providing that if the complaint is dismissed the complainant shall be liable for all fees, costs and expenses. If the complaint is dismissed the defendant should not be obliged to pay them, and it does not follow even in criminal cases, that the county under similar circumstances is obliged to pay the costs in all cases. They are very properly charged to the complainant. It is said, however, that where the complaint is not dismissed, the commissioner will lose his fees unless he can charge them to the county. If the proceedings are sustained the fees. are taxed against the defendant, and if he has property may thus be collected. If he has not, that fact would not justify a charge against the county. There are very many cases where costs are taxed up against the losing party, and are never collected for the same reason, yet no one thinks of looking to the county or public to pay them. The magistrate in these, as in all civil cases, may look to the plaintiff for his fees, and may require him to give security therefor, and if he does not in this way protect himself he has no one else to blame. If the plaintiff succeeds he recovers the amount so paid, or for which he is liable, from the defendant; if he does not, he is but paying certain officers of the law their statutory fees for services rendered at his request in an effort to collect a debt. It appears from the finding of the court in this case that the claim in question was presented to the board of auditors, and they fully informed of all the facts relating thereto and also that doubts existed as to the liability of the county therefor. It farther appears that the board took advice regarding the liability of the county, allowed the claim, and that it was paid. Under such a state of facts we are of opinion that the sum so paid cannot be recovered back. The mistake was one of law and not of fact. The same reasons which would prevent an individual from recovering back money paid under such a state of facts should apply here also. Our views upon this point are more fully set forth in Detroit v. Advertiser etc. Company ante p. 116, decided at the present term, and need not here be repeated. The judgment of the circuit court must be affirmed with costs. COOLEY and GRAVES, JJ., concurred. 43 140 66 3 43 140 95 381 95 490 43 140 98 480 43 140 111 504 43 140 113 699 43 140 114 472 43 140 126 533 126 535 43 140 S5NW 275 130 1250 43 140 150 2654 f150 655 CITY OF DETROIT V. DETROIT & HOWELL PLANK ROAD Co. Amendment of charters-Removal of toll-gates. A charter forbidding a turnpike corporation to erect toll-gates within city limits does not oblige them to remove gates brought within the limits by their subsequent extension. The rights of a private corporation under its charter cannot be taken away as forfeited until there is a judicial finding of the forfeiture. A legislature cannot bind its successors where the elements of con tract, concession and consideration do not appear. A legislative provision in a particular statute that the act shall bind only those who assent to it, may limit the scope of that statute, but is void as to any subsequent act on the same subject. Where the essential elements of a contract do not appear in a stat ute granting a franchise, the courts will not be astute in discovering contract obligations therein for the purpose of defeating later statutes on the same subject, but will solve all doubts in favor of the State. The right of the Legislature to change the methods or the extent of taxation must always exist where there is no express contract to the contrary. Municipal corporations are protected in their rights to property which they have lawfully acquired for local purposes, and cannot be deprived of it by the State. Act 219 of 1879 requiring any plank road company to remove its toll-gate beyond municipal limits is invalid as taking property without due process of law. The reserved right to amend the charter of a corporation will not authorize the Legislature to add requirements that would be inconsistent with constitutional principles, as by depriving it of its property without due process of law. Courts must look beyond the particular case to the governing principle and be governed thereby regardless of special and temporary inconvenience. MANDAMUS. Submitted January 20. Decided April 7. City Counselor F. A. Baker, E. F. Conely and Attorney General Otto Kirchner for relator. The power to amend, alter or repeal a charter, reserved by the Constitution or by an express provision of the act, is a reservation to the State of its full legislative power, and legislative action thereon can be held void only because it is unconstitutional on other grounds, Holyoke Co. v. Lyman 15 Wal. 500; Parker v. Metropolitan R. R. Co. 109 Mass. 506; Railroad Co. v. Georgia 98 U. S. 359; Tomlinson v. Jessup 15 Wal. 454; Fitchburg R. R. Co. v. Grand Junc. R. R. Co. 4 Allen 198; Mass. Gen. Hospital v. State Assur. Co. 4 Gray 227; Oldtown R. R. Co. v. Veazie 39 Me. 581; Schenectady P. R. Co. v. Thatcher 11 N. Y. 102; Buffalo v. Dudley 14 N. Y. 336; Northern R. R. Co. v. Miller 10 Barb. 260; Durfee v. Railway Co. 5 Allen 230; Joslyn v. Steamship Co. 12 Abb. Pr. (N. S.) 329; In re Lee & Co's Bank 21 N. Y. 9; Sherman v. Smith 1 Black 587; Anderson v. Com. 18 Gratt. 295; Miller v. State 15 Wal. 478; Pennsylvania College Cases 13 Wal. 190; Perrin v. Oliver 1 Minn. 202; Railroad Co. v. Greenbush 5 Lans. 461; Simpson County Court v. Arnold 7 Bush 353; Robinson v. Gardiner 18 Gratt. 509; Hyatt v. McMahon 25 Barb. 457; White v. R. R. Co. 14 Barb. 559; Iron City Bank v. Pittsburgh 37 Penn. St. 340; Com. v. R. R. Co. 55 id. 452; Bailey v. Power St. Church 6 R. I. 491; Zabriskie v. Railroad Co. 18 N. J. Eq. 178; acts of incorporation and other statutes derogating from the power of the State must be strictly construed, Dugan v. Bridge Co. 27 Penn. St. 303. Chas. A. Kent and G. V. N. Lothrop for respondent. COOLEY, J. A mandamus is applied for in this case to compel the respondent to remove beyond the city limits a toll-gate located on Grand River street. The questions the application presents are questions of statutory construction and of constitutional law. The respondent was incorporated April 8, 1848, for the purpose of building and maintaining a plank road from the city of Detroit to the village of Howell, with certain specified branches. The third section of the act of incorporation provided that the corporation "shall be subject to the provisions of an act entitled 'An act relative to plank roads,' approved March 13, 1848, except so far as otherwise provided in this act." The fifth section was as follows: "This act shall be and remain in force for the term of sixty years from and after its passage; but the Legislature may at any time alter, amend or repeal this act by a vote of two thirds of each branch thereof; but such alteration, amendment or repeal shall not be made within thirty years of the passage of this act, unless it shall be made to appear to the Legislature that there has been a violation by the company of some of the provisions of this act: Provided, That after said thirty years, no alteration or reduction of the tolls of said company shall be made during its existence unless the yearly net profits of said company, over and above all expenses, shall exceed ten per cent on the capital stock invested, provided there be no violation of the charter of said company." Laws 1848, p. 398. This act of incorporation was one of a considerable number passed by the same Legislature, all very short, and doing little beyond fixing the line of the proposed road, and the period of corporate existence, but referring for all other directions to the "Act relative to plank roads," subject to the provisions of which they were all made. That act prescribed a method of organization, |