# interview, he said: "Since I began to write, there has been a clear reaction against individual liberty. We are certainly tending towards state socialism, which will be a worse form of tyranny than that of any government now recognized in civilization." If we have no constitutional barriers against such legisla vision of the constitution of the United States which declares that "no state shall *** deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jursidiction the equal protection of the laws." Section 1, art. 14, Amend. That provision was ordained and established for the very purpose of taking away from every statetion, then Mr. Spencer's opinion, that and its legislature every one of the powers thus prohibited. Streubel v. Railroad Co., 12 Wis.67, cited in the opinion of the majority of the court, was decided long before that constitutional provision was adopted, and of course has no bearing upon the binding force of that provision. The case of Munger v. Lenroot, 32 Wis. 541, was decided subsequently to the adoption of that provision, but neither the opinion of the court nor the dissenting opinion therein make any reference to it, and hence it must be assumed that it was not con. sidered. The same is true in regard to Winslow v. Urquhart, 39 Wis. 260, and other cases referred to in the majority opinion. Those cases are entitled to be regarded as authority upon the questions of construction therein determined, but it seems to me they are not entitled to such weight as against the provision of the federal constitution quoted, which after all must be regarded as the supreme law of the land, anything in any state constitution or statute, or the decision of any state court, to the contrary notwithstanding. Article 6, Const. U. S. Besides, the question whether such legislation is repugnant to the constitutional provision quoted is one upon which the supreme court of the United States is the final arbiter; and hence, until determined by that court, the question would seem to be open to the expression of opinion. That court has never passed upon the precise question here presented. The act enables the contractor to limit his own duties, obligations, and liabilities by contract, and at the same time enables him, through the agency of a subcontractor, to bind the owner, without limitation, for all materials and labor that go into the structure. The subcontractor is not even limited to the specifications contained in the original contract, for by the terms of the act he may compel the owner to pay for what he never contracted. It not only makes the owner, without his consent, responsible for the contractor's contracts with subcontractors, but also for his frauds. It authorizes the subcontractor to compel the owner to pay the contractor's debts after he has, without notice of any adverse claim, paid to the contractor the whole contract price to enable him to pay his own debts. It does not in terms prohibit the owner from paying in advance or paying without notice, but precludes him, as against a subcontractor, from the benefit of such payment. It authorizes the contractor, after the making of the contract, to do what the legislature could not then do; that is, to change the terms of his contract without the consent of the owner, and hence to impair its obligations. Such legislation is a recent invention. It seems to be. long to that class which Herbert Spencer had in mind when, according to a recent such reaction and tendency endanger the American states as well as the European, would seem to rest upon a solid basis, instead of being mere speculation, as might otherwise be supposed. It seems to me that a man cannot reasonably be said to have due process of law, and legal protection of the laws, under an act which enables his contractor to bind him conclusively without his consent or knowledge, and contrary to the express terms of their written contract, and merely permits him, when sued thereon, to answer to the effect that by the terms of the act he has become so bound, and was unable to prevent it. On the contrary, before any conclusive statutory liability should be imposed upon any person, he should be guilty of some tort, or give his consent, or be in default, or have such notice as would enable him to protect himself against gross injustice, otherwise the creation of such liability is an arbitrary and unjustifiable imposition. By this provision of the constitution it was undoubtedly intended," said Jus tices FIELD and BRADLEY, each speaking for the whole court, "not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of prop. erty, but that equal protection and security should be given to all, under like circumstances, in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the preservation and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one, except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition." Barbier v. Connolly, 113 U. S. 31, 5 Sup. Ct. Rep. 357; Railway Co. v. Pennsylvania, 134 U. S. 238, 10 Sup. Ct. Rep. 533. "Clear and hostile discrimination against particular persons and classes, especially such as are of an unusual character, unknown to the practice of our governments, might be obnoxious to the constitutional prohibition." 134 U. S. 237, 10 Sup. Ct. Rep. 533. So it has been said by Justices BRADLEY and MATTHEWS, each speaking for the whole court, that, “in judging what is due process of law, respect must be had to the cause and object of the taking,-whether under the taxing power, the power of eminent domain, or the power of assessment for local improvements, or none of these; and, if found to be suitable or admissible in the special case, it will be adjudged to be due process of law;' but if found to be arbitrary, oppressive, and unjust, it may be declared to be not due process of King v. Hayes, 80 Me. 206, 13 Atl. Rep. 882; But high standing, the latest of which is by PETRIE V. TORRENT. (Supreme Court of Michigan. Oct. 16, 1891.) RIGHT TO ACCOUNTING-STATUTE OF FRAUDS. 1. A bill for an accounting alleged that plain tiff held an option on certain pine land, and that he agreed orally with defendant that plaintiff should give defendant the right to purchase such land and property; that each should pay onehalf the expense incurred in examining and estimating the pine on the lands, and, if defendant should purchase, he was to give plaintiff onethird of the profit arising from such purchase; that the purchase was made by defendant; that defendant had made large sales of such land, and of timber, but refused to account for the profits. Held, that an accounting would lie. law.'" Davidson v. New Orleans, 96 U. S. 107; Kentucky Railroad Tax Cases, 115 U. S. 331, 6 Sup. Ct. Rep. 57. In Railway Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. Rep. 462, the act of the legislature gave to the commission therein prescribed the final and exclusive authority to determine and fix what should be regarded as equal and reasonable rates of charges for the trans-cited, but also of other state courts of portation of property, and the act was held to deprive the company of its property without due process of law, and to deprive it of the equal protection of the laws, and accordingly reversed the supreme court of Minnesota, holding to the contrary. State v. Railway Co., 38 Miun. 281, 37 N. W. Rep. 782. To the same effect is Railway Co. v. Minnesota, 134 U. S. 467, 10 Sup. Ct. Rep. 473. Such imposition, through the agency of a public commission and fixed and public rates, upon any railway company entering into a contract for such transportation, was far less objectionable than to authorize a contractor, through the agency of a stranger and in secret, to impose such an arbitrary, unjust, and absolute liability upon the land. owner without his knowledge or consent, or any certain means of ascertaining the fact until 60 days after the completion of the work or the furnishing of the materials. A statute similar to the one in question was held void in Spry Lumber Co. v. Sault Sav. Bank Loan & Trust Co., 77 Mich. 199, 43 N. W. Rep. 778. In the opinion of the court in that case, by the late and learned Chief Justice CAMPBELL, it is said: "It strikes at the foundations of all property in land. There is no constitutional way for divesting a man's title except by his own act or default. Here his own act is not required, and his freedom from default is no defense. He may pay in full, in advance or otherwise, for all he has contracted for. He may contract for a house built in a certain way and of certain materials, and may have to pay for what he never bargained for, and what his building contractor had no right to put off upon him. The original contract plays no part in the matter, except as a fact which binds no one, and has no significance. Such a gross perversion of all the essential rights of property is so plain that no explanation can make it plainer. In a recent case in Pennsylvania it has been held that a subcontractor is chargeable with notice of all the terms and stipulations of the contract between the owner and the principal contractor, and is bound thereby, since his only connection with such owner is through and by means of such contract. Schroeder v. Galland, 134 Pa. St. 277, 19 Atl. Rep. 632. To authorize A., through the agency of a subcontractor, to impose an arbitrary, unjust, and absoJute liability upon B., without his default, and contrary to the express stipulations in the written agreement between them, and without any notice that will enable him to protect himself against such liability, and without his violating any statute or any law, or committing any tort or wrong, is, certainly, to deprive B. of his property, or rights of property, with out due process of law, and to deprive him of the equal protection of the laws. 2. The agreement, as shown by the bill, was not one for an interest in land, and it did not come within the statute of frauds. Appeal from circuit court,__Muskegon county, in chancery; ALBERT DICKERMAN, Judge. Bill for an accounting filed by Albert H. Petrie against John Torrent. Decree for complainant. Defendant appeals. Affirmed. Smith, Nims, Hoyt & Erwin, (Benton Hanchett, of counsel,) for appellant. Bunker & Carpenter, (Blair, Kingsley & Kleinhans, of counsel,) for appellee. LONG, J. This bill is filed for an accounting. The complainant has for many years been engaged in the general lumber business in this state. He resides at Muskegon. The defendant also resides at Muskegon, and is a lumberman. The bill sets out substantially that the firm of Hannah, Lay & Co., a copartnership of Traverse City, this state, prior to September 23 1885, were owners of large tracts of pine timber lands, situate in the counties of Grand Traverse and Kalkaska, this state, and saw-mills situate at Traverse City, and on Long lake, in Grand Trav erse county, and of lumbering outfits. That about the 3d day of December, 1885, complainant opened negotiations with Mr. Hannah, of the firm of Hannah, Lay & Co., for the option to purchase said tiniber lands, saw-mills, and lumbering outfit, and on that date entered into an agree ment with said firm by which they agreed to give him the first chance of purchasing said properties, or to find a purchaser therefor in the following spring, or as soon as Mr. Hannah returned from Europe, at the price of $2 per thousand feet, with the right to the complainant, or whoever he might interest in the matter, to send men upon the lands to estimate the quantity and ascertain the quality of the timber thereon, in order to determine whether to make the purchase of the said properties, and that on Mr. Hannah's return from Europe the following spring the firm would sell to the complainant, or to any person he might find, for the abovestated price, said timber, and also the sawmills and the lumbering outfit. That, lacking adequate capital to make the purchase of said properties, complainant set about finding a purchaser therefor, and to that end entered into negotiations with the defendant to induce him to become a purchaser, advising him of the negotia tions he had with the firm of Hannah, Lay & Co. That on March 10, 1886, he had a conversation with the defendant relative to the purchase of said lands and sawmills and lumbering outfit, in which conversation it was arranged and understood between him and defendant that said defendant should and would furnish the capital necessary to purchase such lands, saw-mills, and lumbering outfit, provided, on further investigation, it should turn out to be a desirable investment; and that it was further arranged, understood, and agreed by and between them that, in order to make said investigation in accordance with the arrangement made with Hannah, Lay & Co., each should select a man to go over and upon said lands to estimate the quantity and ascertain the quality of the timber thereon, to enable the defendant to determine whether he would purchase the same in accordance with complainant's agreement with Hannah, Lay & Co.; and, in case no purchase should be made by the defendant, each of the parties to pay the expense incurred by him in employing said men in estimating the timber; and, on the other hand, in case a purchase should be made under such agreement, defendant should pay to complainant for his services in looking up said tracts of land, saw-mills, and lumbering outfit, in securing the said first chance to purchase the same, and in giv. ing to defendant the sole opportunity to purchase the same, and for all complainant's services in connection therewith, one-third of the net profits which should be realized from such purchase; and that the defendant on that date, to-wit, March 10, 1886, then and there promised and agreed, to and with the complainant, for the consideration aforesaid, to pay to the complainant one-third of the net profits which should be realized from the purchase of said lands, saw-mills, and lumbering outfits, on the sale or other disposition of said properties. The bill further charges that about the 7th day of April, 1886, in pursuance of this arrangement, each employed a man to go upon and over the lands for the purpose of estimating the quantity and ascertaining the quality of the timber thereon. That the men completed their work July 4, 1886, and made their report to the complainant and defendant two days thereafter, and that complainant expended therein about the sum of $1,000. That while the men were so engaged the parties were informed by Hannah, Lay & Co. that the stumpage price of the timber would be $3 per thousand feet, and that the complainant was laboring under a mistake in supposing the purchase price was $2. That, in pursuance of this communication, he had a conversation with the defendant, in which it was arranged and agreed that, notwithstanding this modification of the purchase price, the men so employed should complete their work, and that the defendant would make the purchase at the increased price, and to pay to the complainant onethird of the net profits which should be realized out of the purchase. That from and after the 23d of September, 1885, and up to the time of the purchase by the defendant, complainant faithfully devoted his time, skill, and energy in securing to the defendant the said properties. That he conducted all the negotiations with Hannah. Lay & Co. relative to the purchase, visited Traverse City frequently to confer with that firm, and when the option had about expired procured an extension, and when the option so extended had elapsed he procured its restoration for a sufficient length of time to enable the defendant to perfect his arrangements to raise the necessary funds to make the first payment. That on or about the 15th day of October, 1886, when defendant was wavering with reference to making said investment, and had virtually abandoned the hope of making said purchase, he suggested to the defendant, and secured from Hannah, Lay & Co., a modification of the terms and conditions of the purchase, and a further extension of time, by which defendant was enabled to raise the funds for a cash payment on said purchase. That about November 7, 1886, in pursuance of said arrangements, and in performance thereof, the defendant purchased said land, saw-milis, and lumbering outfit, and received proper deeds of conveyance therefor. That said defendant paid for said lands, saw-mills, and lumbering outfit the sum of $769,000, of which amount $500,000 was paid in cash, and the balance secured by mortgage on part of the property conveyed. That for a long time prior to the purchase complainant had been actively engaged, both independently and in connection with defend. ant, in looking up purchasers for portions of said lands and parts of said property from defendant, in event of his purchase from Hannah, Lay & Co., in order to enable the defendant to make the purchase. That after the purchase he continued his efforts to make further sales for the defendant until the entire property had been disposed of, except that portion covered by defendant's contract with the Smith Lumbering Company. That prior to July 1, 1887, the defendant, with his advice and assistance, had sold all of said lands, sawmills, and lumbering outfit in the county of Grand Traverse, and portions of the lands in the county of Kalkaska, to various persons, firms, and corporations, for the aggregate sum of $778,000 and up wards, which said sum the defendant had received in cash or commercial paper, or securities equally good as cash, and that all of such commercial paper and securities have at this time been converted into cash; and that after making said sales there remained to the defendant a part of said lands situated in the county of Kalkaska, upon which there is upwards of 60,000,000 feet of valuable pine timber, well worth the sum of $300,000 and upwards, which pine timber and lands represent the net profits realized on said purchase. The bill further charges that on or about December 15, 1886. defendant entered into a written contract with the Smith Lumber Company of Kalkaska, Mich., by which it was to cut, log, and manufacture into lumber the timber from the last-named lands, and sell the lumber so manufactured by it, and turn over to the defendant one-half the gross receipts therefor. That the complainant was consulted by the defendant with reference to making this contract, and with reference to the terms and conditions thereof, and counseled, advised, and aided defendant in all things pertaining thereto. That the said Smith Lumber Company, shortly after making the contract, entered upon the work of cutting the said timber, and manufacturing the same into lumber at Kalkaska, and have since continually been and are still engaged in cutting, logging, manufacturing, and selling the same, and have turned over one-half the proceeds of said sales to the defendant. That said de fendant has received large sums of money from the proceeds of said sales which he has appropriated to his own use. That the defendant received monthly, as his share of the proceeds of said sales, in accordance with said contract, from twelve to fifteen thousand dollars, and that he has already received, as proceeds from said sales under the contract, upwards of $150,600, which he has appropriated and applied to his own use. That the moneys so received by the defendant are a portion of the net profits which have been realized on said purchase and sale of said proper. ties, and that the balance of said net profits is represented by the said lands, and the timber thereon, which is upwards of 30,000 000 of feet, and is worth the sum of $150,000. That the defendant refused to account to him for any sums so received as net profits on said purchase, and refuses to pay to him his just portion of the same, or any part thereof. That he has frequently applied to the defendant to come to a full and fair accounting respecting said profits, and to pay to him his share thereof; but that the defendant has put him off from time to time, upon one pretense or another, and has finally stated that he would not account for nor pay to him any portion of said net profits until he was ready. The bill waives answer under cath, and prays for an accounting of the profits realized by the defendant, and the payment to him of his share thereof. The answer alleges that in the early part of the year 1886 complainant said to the defendant that he had an option on the lands, lumbering outfit, and property of Hannah, Lay & Co., and the timber lands, at a valuation of $2 per thousand feet for pine timber, and the mills to be taken at their valuation, or in partial appraisal to be thereafter made, and wish him to become interested in the purchase under such option. That defendant expressed a willingness to consider the matter, but entered into no agreement with complainant concerning the same. That the defendant thereafter ascertained from Mr. Hannah, of the firm of Hannah, Lay & Co., that complainant had no option or agreement from that firm of the kind, or of the purport or effect, alleged by complainant in his bill. That in fact Mr. Han · nah had no confidence in the complainant, and would not enter into any transaction of that kind or character respecting said lands. That, defendant being desirous of purchasing pine timber lands in the spring of 1886, he sent his men upon the lands of Hannah, Lay & Co. to estimate the timber thereon. That such estimate was not made in pursuance of any agreement with the complainant, but for the defendant's information, and at his own expense; and he expressly denies that he entered into any understanding or agreement with the complainant to purchase the same, or to jointly estimate the timber upon the lands, or to pay to the complainant any part of the net or other profits that might arise to the defendant therefrom on the purchase of the same. He denies that he had any understanding or agreement with the complainant respecting the premises, or by which each was to employ a man to go over the lands and estimate the timber thereon, but that he sent a man on his own responsibility for that purpose, and that he is informed the complainant did likewise. That he paid the man so employed by him, but is not advised whether the complainant paid any sum for such purposes. He denies that on or about May 10, 1886, or at any other time, it was understood or agreed between him and complainant that if he made the purchase he should pay to the complainant onethird of the net profits which should be realized on the sale, or on the disposition thereof; and that if complainant expended money in looking up the lands, and employed men therefor, it was at his own risk, and not under the employment, charge, or risk of the defendant in any manner, nor upon any agreement or understanding that defendant should repay him therefor. That after negotiations were opened by defendant with Hannah, Lay & Co. for the purchase of these prop. erties, and while said negotiations were pending, the complainant (who at that time purported to be doing business in the neighborhood of Hannah, Lay & Co. at Traverse City) exercised his neighborly services on one or two occasions to ask the said Hannab, Lay & Co. to extend the time for the completion of said negotiations, but that said conduct on the part of complainant was done by him as a matter of accommodation to defendant, as defendant understood it,-a mere neighborly service. That such acts and doings were done at very little time or expense to complainant. He denies that complainant procured any modification of any agree ment to purchase from Hannah, Lay & | Co., and avers that he had no authority from the defendant to do anything of the kind, nor was he requested so to do by defendant in any way. The balance of the answer is a complete denial of complainant's claim in the bill that he has no rights or interests in the lands remaining unsold in the county of Kalkaska, and he charged that the complainant is justly and equitably indebted to him in the sum of over $112,000, and he claims the benefit of a cross-bill, and prays for affirmative relief. The answer also denies that the complainant under his bill is entitled to any relie' in a court of equity, and he asks the same advantage of his answer as if he had pleaded or demurred to the bill. After the cause was at issue by filing general replication, the proofs were taken in open court, in the Muskegon circuit court, in chancery, the same as a suit at law, and a decree entered therein, finding as follows: "(1) That the contract set forth by the complainant in his bill of complaint has been fully proved and established; that it is a valid and binding contract between the parties thereto; that by its terms the defendant agreed to furnish the money to make the purchase, and to purchase, from Hannah, Lay & Co., of Traverse City, Mich., the lands. timber, and other property mentioned in said bill of complaint, to sell the same, and to pay to the complainant, for his services and expenses in connection with the enterprise, and for securing and giving to the defendant the first chance to purchase said property, one-third of the profits derived from such purchase and sales; that at the time the bill of complaint was filed in this cause the complainant had fully and faithfully performed all that was required of him by said agreement: that the defendant had purchased and paid for the property before mentioned; that he had sold and received payment for all the same, except a certain tract of timbered land in Kalkaska county, in this state; that on the 9th day of November, 1886, with the advice and consent of the complainant, he had entered into a contract with the Smith Lumber Company of Kalkaska, a corporation organized under the laws of the state of Michigan, for the manufacture and sale of the timber on the before-mentioned lands in Kalkaska county; that that contract is still being executed, and that under it the defendant has received, as a portion of the proceeds of the timber cut from the Kalkaska county lands, a large sum of money, representing in part the profits derived from the purchase and sales of the property covered by the agreement between complainant and defendant; that when the bill was filed defendant had received from the sales made and from the Smith Lumber Company a sum largely in excess of the amount paid Hannah, Lay & Co. on purchase of the property and the expenses consequent thereon. (2) That the making by the complainant and defendant of said agreement, and the partial execution thereof, established between them relations of such a confidential and fiduciary character as entitled the com plainant to a statement from the defendant of the receipts and disbursements connected with the enterprise, and to payment of his share of the profits thereon, and to further statements and payments from time to time of the receipts under the contract with the Smith Lumber Company, and made it the duty of the defendant to render such statements on the request of the complainant, and to pay him his share of the profits at reasonable intervals; that the defendant has refused to render such statements or make such payments to the complainant, and has denied his right to the same, and to any participation in the profits of the transaction, and defendant has converted and appropriated to his own use all the profit moneys received by him. (3) That the complainant was and is entitled to a distribution of profits from time to time, and to receive one-third thereof as they accumulate, until the enterprise is fully closed, less such sums, if any, to be left in defendant's hands as would be deemed proper, under the circumstances, to guard against future loss; and, on the termination of the enterprise, complainant will be entitled to a final distribution and payment of his share of all the profits realized, and not previously paid to him. (4) That an account be taken by this court of all the receipts and disbursements of the complainant and defendant arising out of the contract and relations herein before mentioned and set forth, for the better clearing of which account the parties are to bring in their accounts and produce before said court, upon oath, if required, and leave with him all books and writings in their custody or control relating thereto, and are to be examined upon interrogatories as the said court shall direct; and said court shall also have power to examine other witnesses in relation to said account; and in taking said account he is to make to both parties all just allowances, including such items of interest as shall be just and equitable; and is to determine what, upon such accounting, appears to be due from each party to the other; that, after said accounting is taken, the defendant shall, on or before the 15th day of January and July in each year during the continuance of the enterprise, file with the register of this court a written statement, under oath, of all moneys received and disbursed by him from or on account of said enterprise prior to the first day of such month, and of the condition of the property undisposed of, and shall pay to the complainant his share of the profits on the 15th day of January in each year. (5) This court reserves further consideration of this case, and of all matters therein involved, until after the taking of such account, and either party is at liberty at any time to apply to the court as occasion shall require. From this decree defendant appeals. The defendant was not called as a witness, and put in no evidence, except the dep. osition of Perry Hannah, of the firm of Hannah, Lay & Co., and one John Thor sen. The contention in this court upon the part of the defendant is: (1) That the case made by the bill of complaint is a |