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Riley, J. We consolidated these three cases to determine whether error requiring reversal occurred by the admission of hearsay statements made to medical personnel pursuant to the hearsay exception of MRE 803(4). See 436 Mich 880 (1990). These cases present an opportunity for this Court to clarify the interpretation and application of MRE 803(4) to hearsay statements made to physicians by child victims of sexual abuse. Because we believe that neither the rationale supporting the medical treatment exception to the hearsay rule, MRE 803(4), nor our decision in LaLone requires the exclusion of all statements made to treating medical health care providers by the victims of child sexual abuse which identify their assailants, we affirm the convictions in People v Conn and People v Meeboer. We affirm the Court of Appeals reversal of defendant’s conviction in People v Craft because we believe the evidence does not sufficiently support admission of the hearsay statements under MRE 803(4). FACTUAL BACKGROUND PEOPLE v CONN This case involves an allegation of criminal sexual conduct against defendant, Bobby S. Conn, for allegedly committing acts of sexual intercourse with the complainant who was seven years old at the time. She and her mother were residing in an apartment with defendant at the time of the alleged sexual assault on or about June 1, 1984. Complainant was taken by her mother to see Dr. Samuel Scheinfield on February 16, 1984, after she complained of pain in her vaginal area. Dr. Scheinfield conducted an examination and was informed by complainant’s mother that the child had injured herself. When questioned by the doctor, complainant first indicated she fell upon her bicycle; she then indicated a boy, who was later determined to be approximately eighteen to twenty years old, had been "messing” with her; finally she indicated that defendant had sexually abused her. Following the doctor’s notification to the proper authorities, the police interviewed the defendant. He was subsequently charged with criminal sexual conduct in the first degree. MCL 750.520b(1)(a); MSA 28.788(2)(1)(a). At trial, the complainant testified that while residing with defendant and her mother, defendant would come into her bedroom dressed in his long johns and attempt to commit acts of sexual intercourse through the opening in the bottom half of his long johns. Complainant admitted she had first informed Dr. Scheinfield that a different individual had "messed” with her, but after her mother told her to be truthful with the doctor, she identified defendant, to whom she referred as her "dad,” had "messed” with her. Defendant did not testify or present any witnesses on his behalf. The jury rendered a guilty verdict against defendant. Defendant appealed his conviction in the Court of Appeals, arguing that the medical testimony regarding statements made by the complainant to Dr. Scheinfield had been improperly admitted because it constituted inadmissible hearsay and was not within the medical treatment exception, MRE 803(4). The Court of Appeals affirmed the conviction, holding that MRE 803(4) was properly ap plied in this instance because the statements made by the complainant to the doctor were reasonably necessary to make complete medical treatment available to this particular victim, namely a child sexual abuse victim. In lieu of granting leave to appeal, this Court remanded the case to the Court of Appeals for reconsideration in light of our decision in People v LaLone, 432 Mich 103; 437 NW2d 611 (1989). Upon remand, the Court of Appeals determined that the statements were admitted in violation of the rationale expressed in LaLone, and the defendant’s conviction was reversed. We granted leave to appeal, limited to the issue whether error requiring reversal occurred in the admission, under MRE 803(4), of statements made by the victim to medical personnel. This case was argued and submitted with People v Meeboer and People v Craft PEOPLE v MEEBOER The Meeboer family babysat the six-year-old complainant at their residence from January 9 through January 11, 1986. She alleged that during this time period she was sexually penetrated by the twenty-year-old defendant while his mother, father, and sister were absent from the house. Eleven days after the date of the alleged occurrence, complainant’s aunt and uncle were babysitting the complainant at their home and, while bathing complainant, observed swelling and redness around the vaginal area. Following further examination and questioning by her aunt, after initially stating that nobody had done anything to her, complainant disclosed to her aunt and uncle that defendant had "messed” with her. As soon as complainant’s mother was informed of the sexual assault, including the identity of the perpetrator, she notified the police. Complainant was then taken to the hospital, where she was referred to Dr. Karen Bentley, a specialist in the area of child sexual abuse. Dr. Bentley performed an examination of the complainant on January 22, 1986, which included a physical examination and a recording of the complainant’s medical history. The doctor concluded that sexual penetration had occurred. Charges of criminal sexual conduct in the first degree were brought by the Genesee County Prosecuting Attorney’s Office against defendant. MCL 750.520b(1)(a); MSA 28.788(2)(1)(a). The trial court admitted, over objection, the testimony of Dr. Bentley relaying complainant’s identification of the defendant as her abuser. The trial court determined that this hearsay evidence was reasonably necessary for purposes of medical treatment or diagnosis and was therefore within the medical treatment exception to the hearsay rule, MRE 803(4). The doctor’s brief testimony regarding complainant’s statements describing the incident corroborated the testimony rendered by the complainant. Defendant presented an alibi defense after the prosecution completed its case in chief. He attempted to establish that he was never alone with the complainant for the entire time of January 9 through 11, 1986. The jury found defendant guilty of first-degree criminal sexual conduct on April 16, 1986. Defendant appealed his conviction in the Court of Appeals alleging, among other issues, error in the admission of the statements by the complainant to Dr. Bentley regarding the identification of defendant. The Court of Appeals, relying upon a line of Michigan and federal case law, affirmed the finding of the trial court that this type of statement is admissible as substantive evidence pursuant to MRE 803(4) because it is necessary for the diagnosis and treatment of a child sexual assault victim. We remanded the case to the Court of Appeals for reconsideration in light of our decision in People v LaLone, supra. Upon remand, the Court of Appeals affirmed its earlier holding, relying on four factors to distinguish the facts of this case from those in LaLone, finding that the victim’s statements regarding identification were admissible. We granted defendant’s application for leave to appeal. PEOPLE V CRAFT This case involves allegations of criminal sexual conduct against defendant, Theodore R. Craft, for allegedly committing acts, of sexual intercourse with the complainant, his four-year-old stepdaughter. It is alleged that on March 25, 1984, the complainant was sexually assaulted in the bedroom of her mother and defendant-stepfather. Complainant’s school teachers noticed that complainant urinated frequently and that she had a discharge in her underwear. They contacted protective services regarding suspected child abuse. On March 29, 1984, complainant was taken to a clinic by her mother. Dr. David Cooke performed a physical examination resulting in a determination, based upon the vaginal examination and discussion with the complainant, that sexual abuse had occurred. The doctor reported his finding of sexual assault to proper authorities, and the child was removed from defendant’s residence and placed in a foster home. During the trial, defense counsel elicited information from the doctor that, in addition to stating that a boy had touched her in the vaginal area while she was at home, complainant had also informed him that a boy who lived in another house had touched her and put something on her vagina. Complainant also made conflicting statements to Dr. Cooke regarding whether it was a boy or girl who committed the alleged acts. All this information was admitted into evidence through the medical hearsay exception, MRE 803(4), and reliance by the trial court on the Court of Appeals decision of People v Wilkins, 134 Mich App 39; 349 NW2d 815 (1984). On May 23, 1984, complainant was taken to Dr. Barrett by the foster mother to determine the source of a discharge she had observed in the complainant’s underwear. At this examination, Dr. Barrett found that the vaginal lips of complainant were more gaping than those found in most children her age, although not sufficiently pronounced to indicate sexual activity. The doctor also concluded from her examination that there were no signs of venereal disease and that the hymen had been broken. Dr. Barrett then questioned complainant about whether anybody had done anything to her in the genital area, and thereby learned the identity of defendant. Defendant was charged with violation of MCL 750.520b(1)(a); MSA 28.788(2)(1)(a) on July 6, 1984. Dr. Barrett testified at trial regarding the statements made by the complainant identifying defendant as the perpetrator of the sexual assault. The doctor’s testimony is consistent with the complainant’s in-court version identifying defendant as the assailant and describing defendant’s conduct during the assault. The doctor stated that the information regarding the sexual assault, as communicated by the complainant, was related to the rendering of proper medical treatment to the complainant. The trial court permitted the doctor’s testimony to be admitted on the basis of the medical treatment exception, MRE 803(4). Defendant attempted to assert an alibi defense by bringing in witnesses to establish that he was not alone, and had not had an opportunity to be alone, with complainant in his bedroom. Defendant also testified on his own behalf and essentially reaffirmed, that he could not have committed the sexual assault without it being in the presence of someone in the household, and he further denied that any sexual assault occurred. The jury returned a guilty verdict on October 17, 1984. Defendant appealed his conviction in the Court of Appeals, which reversed in a short per curiam opinion. Relying on our decision in LaLone, supra, the Court of Appeals held that the testimony by Dr. Barrett was inadmissible hearsay and a new trial was required. The dissent opined that the statements by the victim to the physician had been properly admitted into evidence and cited as authority the dissent in People v Conn (On Remand) and People v Meeboer (On Remand). This Court granted the prosecutor leave to appeal in order to resolve the apparent conflict between these cases. ANALYSIS I Exceptions to the hearsay rule are justified by the belief that the hearsay statements are both necessary and inherently trustworthy. See Solomon v Shuell, 435 Mich 104, 119; 457 NW2d 669 (1990); 5 Wigmore, Evidence (Chadbourn rev), § 1420, p 251. Hearsay evidence is not admissible at trial unless within an established exception. See People v Eady, 409 Mich 356; 294 NW2d 202 (1980). In order to be admitted under MRE 803(4), a statement must be made for purposes of medical treatment or diagnosis in connection with treatment, and must describe medical history, past or present symptoms, pain or sensations, or the inception or general character of the cause or external source of the injury. Traditionally, further supporting rationale for MRE 803(4) is the existence of (1) the self-interested motivation to speak the truth to treating physicians in order to receive proper medical care, and (2) the reasonable necessity of the statement to the diagnosis and treatment of the patient. The trustworthiness of a child’s statement can be sufficiently established to support the application of the medical treatment exception. Furthermore, we find that the identification of the assailant is necessary to adequate medical diagnosis and treatment. A. TRUSTWORTHINESS OF STATEMENT While in cases involving adults a cognitive con nection between speaking the truth to physicians and receiving proper medical care may seem obvious, further analysis of the circumstances surrounding the examination of a child is necessary to determine whether the child understood the need to be truthful to the physician. The United States Supreme Court recently found error in the contention that a child’s hearsay statements are presumptively unreliable when the child is found incompetent to testify at trial. Idaho v Wright, 497 US 805, —; 110 S Ct 3139, 3151; 111 L Ed 2d 638 (1990). All three children in the instant cases were found competent to testify. Although Wright involved a Confrontation Clause challenge against admission of hearsay statements under the residual hearsay exception, it is analogous to the present case because the Court in Wright was also required to address the inherent reliability of a child’s statements regarding sexual abuse. In Wright, the Court held that no mechanized test should be formulated to determine whether a child’s out-of-court statement is reliable. Id., 110 S Ct 3150. Instead, it favored a totality of the circumstances test, citing several state and federal court decisions which highlight certain factors, including the spontaneity and consistent repetition of the statement, the mental state of the declarant, the use of terminology unexpected of a child of similar age, and the lack of motive to fabricate. Id. The Court warned against bootstrapping the admission of a hearsay statement on extrinsic or corroborating evidence, holding that the evidence "must possess [an] indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.” Id. Through analysis under the Confrontation Clause, some evidence may be excluded that Would otherwise be admissible under an exception to the hearsay rule. Id., 110 S Ct 3146. We conclude that there is no risk in the present cases of violating the Confrontation Clause guarantees, because the admissibility of the hearsay statements is analyzed under MRE 803(4), an established hearsay exception. Moreover, we believe that it is sufficient to establish the trustworthiness of a child’s statement through an analysis which is not more demanding than required under the Confrontation Clause. Hearsay statements can be admitted where they sufficiently satisfy the underlying rationale of the applicable exception. A child can have the same selfish treatment-related motive to speak the truth as any adult. See State v Larson, 472 NW2d 120 (Minn, 1991). The inquiry into trustworthiness should therefore consider the totality of circumstances surrounding the declaration of the out-of-court statement. While the inquiry into the trustworthiness of the declarant’s statement is just one prong of the analysis under MRE 803(4), it is very important that the understanding to tell the truth to the physician be established. Factors related to trustworthiness guarantees surrounding the actual making of the statement include: (1) the age and maturity of the declarant, (2) the manner in which the statements are elicited (leading questions may undermine the trustworthiness of a statement), (3) the manner in which the statements are phrased (childlike terminology may be evidence of genuineness), (4) use of terminology unexpected of a child of similar age, (5) who initiated the examination (prosecutorial initiation may indicate that the examination was not intended for purposes of medical diagnosis and treatment), (6) the timing of the examination in relation to the assault (the child is still suffering pain and distress), (7) the timing of the examination in relation to the trial (involving the purpose of the examination), (8) the type of examination (statements made in the course of treatment for psychological disorders may not be as reliable), (9) the relation of the declarant to the person identified (evidence that the child did not mistake the identity), and (10) the existence of or lack of motive to fabricate. Although some courts hold that corroborative evidence relating to the truth of the out-of-court statement should not be considered in determining whether to admit the statement, we believe the better reasoned view is that the reliability of the hearsay is strengthened when it is supported by other evidence. Corroborating physical evidence of the assault, evidence that the person identified as the assailant had thé opportunity to commit the assault, and resulting diagnosis and treatment can support the trustworthiness of the child’s statements regarding a sexual assault and aid in the determination whether the statement was made for the purpose of receiving medical care. While these factors are neither inclusive nor exclusive, an analysis of the available evidence can support an application of MRE 803(4) even where it is not apparent that the child understood that statements must be truthful in order to receive proper care. The contention by the dissent that analysis of these factors incorporates a "substitute” component for the self-interest motivation factor for the application of MRE 803(4), post, p 345, misconstrues a major premise of our analysis: that due to the tender years of the hearsay declarants, the understanding to tell the truth may not be as apparent as it is with adults; that investigation into the circumstances surrounding the making of the hearsay statements is required in order to establish whether the child understood the need to be truthful to the physician. The gravamen of our analysis is that hearsay statements must simply be analyzed with more precision because of the young age of the declarants. Moreover, courts have not asserted a lack of conscious connection as a basis for excluding statements by children that are otherwise admissible under the medical treatment exception. In LaLone, supra at 112, we cited with approval the decision in United States v Iron Shell, 633 F2d 77 (CA 8, 1980), where the court held that statements made by a sexually abused child to the doctor were admissible. The nine-year-old victim’s statements related the details of the assault, but not the identity of the assailant. The court found that the victim’s motive was consistent with the purpose of FRE 803(4) because there were no facts indicating a motive other than a patient seeking treatment. Iron Shell, supra at 84. Moreover, the court found that the young age of the victim mitigated against a finding that the statements were not within the traditional rationale of the rule. Id. We further believe that admission of these statements is consistent with our holding in LaLone. Although in LaLone we did not analyze the facts according to a totality of circumstances test, upon such analysis it is clear that the declarant’s hearsay statement of identification was properly excluded. While under MRE 803(4) a statement does not necessarily have to be made to a medical doctor, the fact that the statement was made to a psychologist "suggests that the statement by the victim in this case may be less reliable than a statement made to a physician.” Id. at 113. The meeting during which the accusatory statements were made occurred after the complainant told the police of the abuse by the defendant, and after an investigation into those allegations had begun. The complainant was fourteen years old and knew that a case was being prepared against defendant. Furthermore, the complainant had already been re moved from her home, and in fact it was the Department of Social Services who initiated the examination by the psychologist of the complainant. We held in LaLone that "it has not been shown that the reliability of the complainant’s statement reaches the level necessary to fall within MRE 803(4).” Id. at 114. We did not, however, create a prophylactic exclusion of all hearsay statements of identification made to physicians. LaLone should be interpreted in light of its factual background, and does not preclude admission of statements where an analysis of the totality of the circumstances surrounding the declaration of the hearsay statement supports the underlying requirements of MRE 803(4). B. REASONABLE NECESSITY In order to ensure reliability of out-of-court statements of identification, the statements must be reasonably necessary to diagnosis and treatment. The purpose of statements identifying the assailant need not be merely to establish fault or to provide for social disposition of the child. Identification can be as important to the health of the child as treatment of the physical injuries that are apparent to the physician. Identification of the assailant may be necessary where the child has contracted a sexually transmitted disease. It may also be reasonably necessary to the assessment by the medical health care provider of the potential for pregnancy and the potential for pregnancy problems related to genetic characteristics, as well as to the treatment and spreading of other sexually transmitted diseases such as syphilis and gonorrhea. Furthermore, certain diseases, such as acquired immune deficiency syndrome, cannot be detected in the early stages after a sexual assault. Disclosure of the assailant’s identity also refers to the injury itself; it is part of the pain experienced by the victim. The identity of the assailant should be considered part of the physician’s choice for diagnosis and treatment, allowing the physician to structure the examination and questions to the exact type of trauma the child recently experienced. In addition to the medical aspect explained above, the psychological trauma experienced by a child who is sexually abused must be recognized as an area that requires diagnosis and treatment. A physician must know the identity of the assailant in order to prescribe the manner of treatment, especially where the abuser is a member of the child’s household. As found in Wilkins, supra, sexual abuse cases involve medical, physical, developmental, and psychological components, all of which require diagnosis and treatment. It should be noted that reference here is to psychological treatment resulting from physical abuse of a child. Our holding in LaLone does not preclude this result because LaLone involved statements made during a psychological examination, rather than psychological treatment resulting from a medical diagnosis. A physician should also be aware of whether a child will be returning to an abusive home. This information is not needed merely for "social disposition” of the child, but rather to indicate whether the child will have the opportunity to heal once released from the hospital. Statements by sexual assault victims to medical health care providers identifying their assailants can, therefore, be admissible under the medical treatment exception to the hearsay rule if the court finds the statement sufficiently reliable to support that exception’s rationale. II In all three cases, the hearsay statements were made by the declarants with the understanding that they were receiving medical treatment or diagnosis in connection with treatment, and described the external sources of their injuries. In LaLone, we held that "the identity of an assailant cannot fairly be characterized as the 'general cause’ of an injury.” Id. at 113. We believe statements describing an external source may require some type of identification, while the general character of the cause does not necessarily require identification. The statements must be specific enough to allow for identification of the external source of injury. In Conn, the hearsay statement was made by the seven-year-old declarant with the understanding that she was receiving medical treatment or diagnosis in connection with treatment. The declarant had complained of pelvic pain and was brought by her mother to see the doctor. In Meeboer, the six-year-old victim was examined by a physician after her uncle noticed her scratching her private parts and her aunt noticed redness and swelling after giving her a bath. When notified, the victim’s mother called the police and then took the child to the hospital, where they were referred to the physician to whom the child made the statement identifying the defendant as her assailant. Finally, in Craft, the four-year-old hearsay declarant was brought to the doctor’s office because her foster mother noticed a discharge in her underwear. The physical symptoms in these cases required examinations by the physicians for purposes of medical diagnosis and treatment. These statements identifying the assailants were also descriptions of the external sources of these victims’ injuries. The statements were made in response to inquiries concerning how the victims were injured. A. TRUSTWORTHINESS To be admissible under MRE 803(4), these statements must also be made with the understanding by the declarant of the need to tell the truth to the physician. Sufficient evidence was introduced in People v Conn and People v Meeboer in support of the reliability of the hearsay statements to allow the application of MRE 803(4). The disputed hearsay statement made by the victim in Conn did not identify the defendant by name, but rather described her assailant, directly implicating defendant. The victim was seven years old when she spoke to the doctor. She attended school at that time, responded appropriately to the doctor’s inquiries, and was found competent by the court to testify. She did in fact testify at trial, and the defense had ample opportunity to cross-examine her while she was on the stand. The victim spoke with the doctor and identified the defendant as the cause of her injuries before any investigation against him had begun. In fact, it was the doctor who alerted the proper authorities to the sexual abuse. The child was in an environment of receiving medical care, and was not in any way pressured to accuse the defendant as her assailant. Upon examination of the victim’s pelvic area, the physician found labial irritation. When asked how that area got hurt, the victim initially stated that she had fallen off her bicycle. The child testified that her mother told her to tell the doctor that a male baby sitter had sexual contact with her, but when then told by her mother to tell the doctor the truth, the doctor testified that the victim described her assailant as "a man that was living in the home with her and someone that she had multiple sexual experiences with.” The initial motive to fabricate was in response to the mother’s plan to protect the defendant from criminal prosecution. Despite initial conformity with that plan, the victim named the defendant as her assailant when told to tell the truth. From a review of the record, it appears that the circumstances surrounding the child’s declaration of the hearsay statement sufficiently demonstrate the understanding on the part of the victim to tell the truth to the physician. Any conclusion raised by her tender years that she could not formulate a self-interested motivation to speak the truth to her physician was sufficiently countered by circumstantial evidence of her understanding of the need to be truthful. In Meeboer, the child made the statement of identification when she was six years old. The court found the victim competent to testify. She was still six years old at the time of trial. The examination took place two days following discovery by the child’s family of possible abuse. Although the police had been alerted to the family’s suspicion of defendant, there is no indication that the examination was a pretext for an investigation. The physician was attempting to determine whether in fact abuse had occurred. Nor was there evidence indicating that the child fabricated her story. The child knew the defendant, for she had often stayed with his family, so she would not have mistaken his identity. Furthermore, the child stayed at his home during the weekend the assault occurred, although there was conflicting testimony regarding the issue of his opportunity to be alone with the child. During trial the physician testified that she was aware, before conducting the examination, that the child might have been a victim of sexual abuse. When asked during the examination if anyone had done something to her they were not supposed to do, the child answered that the defendant had genital contact with her, using his hand and penis, as well as contact with her rectum and mouth with his penis. The exact words used during the examination are not reflected in the record. The doctor testified, however, that the child pointed to her genital area when asked where she was touched, and indicated that the penis entered her vagina further than the doctor’s finger upon examination, which indicated more than a one-inch penetration. While there was testimony, which her mother disputed, that the child might have seen adult cable movies depicting sexual encounters, there was no other evidence of the manner by which this six-year-old child would know the nature and mechanics of sexual intercourse. The physician qualified as an expert in pediatrics and in identification of sexual abuse in children. While the physician was a member of a child abuse team at Hurley Hospital whose purpose it was to investigate alleged complaints of abuse and neglect, there does not appear from the record any use of leading or improper questions. The child was asked what happened, and she answered that the defendant had sexual encounters with her. The identification of the defendant was almost incidental to the remainder of the statement conveying what happened. The victim experienced discomfort in her pelvic area, her family brought her to the doctor to determine its cause, and she answered questions initiated by the physician. The circumstantial evidence of trustworthiness is sufficient to establish that the child had the selfish motivation to speak truthfully to her physician. B. REASONABLE NECESSITY We further find that in these two cases the identification of the assailant was reasonably necessary to the victims’ medical diagnosis and treatment. In Conn, the foundation for admission of the statement of identification was created by a conclusory assertion that the statement of identification was reasonably necessary to diagnosis and treatment. In light of the ambiguity concerning the requirements for admission under prior case law, however, it is appropriate to consider the circumstances surrounding the statement to determine whether the statement was reasonably necessary to diagnosis and treatment. The doctor testified that he inquired into the identity of the assailant as an aid for his diagnosis and treatment. He inquired into the identity of the assailant so he could scan for sexually transmitted diseases. Furthermore, since the doctor learned that the assailant was a member of the victim’s household, he in fact began her future treatment by alerting the authorities. The mother was incapable of protecting her daughter from the assaults of the defendant. Had she been more capable, the information gleaned by the doctor could have alerted her to the immense problem in her own household and been used by her to ensure that her daughter healed and did not suffer any more physical or emotional abuse. The fact that child protective services were alerted does not turn the question of the assailant’s identity into an issue of social disposition. The victim was removed from her home and allowed to physically heal. She began psychological therapy, and was at the time of trial receiving therapy. Treatment and removal from an abusive environment is medically beneficial to the victim of a sexual abuse crime and resulted from the victim’s identification of the assailant to her doctor. The questions and answers regarding the identity of her assailant can therefore be regarded as reasonably necessary to this victim’s medical diagnosis and treatment. In Meeboer, a specific foundation was established for admission of the statement of identification under MRE 803(4). In fact, the trial judge warned counsel to lay a firm foundation before proceeding with his questioning. The physician testified that she was a member of the child abuse team at Hurley Hospital that investigated allegations of sexual assault. She had attended a seminar on sexual abuse, during which she participated in a workshop on the emotional effect of sexual assault on children. In response to questions regarding the purpose for her questioning the child, the physician stated: Basically it gives me an idea of what to look for when I’m examining the child and some questions to ask while I’m examining. And, also, to get an idea of how the child is handling the alleged sexual abuse so that I can, perhaps, work to allay any fears or any apprehension when I’m going to be doing the exam. She then answered in the affirmative the questions of the trial judge whether she was going to treat the victim and whether she was going to make a medical diagnosis in connection with her medical treatment. C. PEOPLE v CRAFT In People v Craft, we are not persuaded that sufficient evidence was presented to support admission under MRE 803(4) of the child’s statement of identification to the physician. The victim was only four years old, making it more difficult to establish that she understood the need to be truthful to her physician. The circumstances surrounding the examination of the child, during which the defendant was named as the assailant, do not adequately establish that this child knew she must speak truthfully to her physician. Because of the need for frequent urination and a discharge in her underwear, the child’s teachers notified protective services and the police. After her mother was also notified, the child was examined by a physician, who noted that the child’s vaginal opening was larger than expected of a four-year-old child, and the hymen was not intact. No lacerations or scarring was noticed, however. The child did not implicate defendant as the person having sexual contact with her, although she did indicate that a boy had touched her. This examination was the first indication by the child that some sexual assault or encounter may have occurred. The second examination of the child was conducted by a different doctor, and took place after the child was removed from her home. The foster mother noticed a discharge in the child’s underwear, and brought her to the doctor to determine the source of the discharge. Through the physician’s testimony, the record shows that the victim identified defendant as her assailant in response to general questions regarding who might have touched her. The child understood that defendant had put "his weenie,” which was "straight,” and a "rubber on his weenie” in her genital area. The child indicated by pointing to her genital area where her assailant’s "weenie” would be on him. Such knowledge of the mechanics of sexual intercourse strengthens the assertion that this child did not fabricate her story, and the mother of the victim admitted that she knew no reason why the child would lie, nor how she would know of the mechanics of sexual intercourse, aside from the possibility that the child witnessed her mother and defendant engaged in intercourse. An investigation of possible sexual abuse was ongoing during that time, however, and we cannot conclude from this record whether the child was influenced in her accusation of the defendant. The initial examination of the child took place two days after the alleged assault. The child resided with her family at that time, and she did not accuse defendant of any wrongdoing during that examination. The child was then removed from her home and placed in foster care. Several weeks later, she was exam ined again by a different physician, during which examination the child implicated the defendant as her assailant. The passage of time between the two examinations, as well as the participation of investigative authorities before the examination during which the child indicated«that defendant had assaulted her, demonstrates the insufficiency of the evidence presented in support of the application of MRE 803(4). The physician in Craft testified that the purpose of her examination and questions was to determine the source of the vaginal discharge. She also established her opinion that information regarding the identity of the assailant was not necessary to proper diagnosis, but was necessary for treatment and reporting. It was very important to determine if an adult male had penetrated the child in order to screen for sexually transmitted diseases. The doctor considered the identification of the assailant to be necessary for treatment and reporting in that she did not pursue further diagnostic studies of the victim’s secondary complaint of incontinence because she wanted to see how the child healed outside the home. The identification of the assailant was reasonably necessary with reference to the placement and the physical and psychological treatment of the child. While perhaps the information necessary for treatment of an ailment that is capable of diagnosis without that knowledge falls within MRE 803(4), we do not resolve that issue because we believe that an analysis of the totality of the circumstances does not support the finding that the statement was made with the requisite understanding by the declarant to speak the truth to her physician. We therefore affirm the decisions of the Court of Appeals in People v Meeboer and People v Craft, and reverse the decision of the Court of Appeals in People v Conn. Boyle, Griffin, and Mallett, JJ., concurred with Riley, J. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: Statements made for purposes of medical treatment or medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably necessary to such diagnosis and treatment. [MRE 803(4).] People v LaLone, 432 Mich 103; 437 NW2d 611 (1989). This examination by Dr. Scheinfield predated the alleged sexual assault. Defense objected to such testimony; however, the trial court permitted its admission. Complainant’s mother was charged with and convicted of cruelty to children and as an accessory after the fact to criminal sexual conduct in the first degree. She was tried jointly with defendant Conn; however, each defendant had separate juries. People v Conn, 171 Mich App 55; 429 NW2d 839 (1988). 432 Mich 916 (1989). People v Conn (On Remand), 182 Mich App 13; 451 NW2d 555 (1990). 436 Mich 880 (1990). See People v Wilkins, 134 Mich App 39; 349 NW2d 815 (1984). See United States v Iron Shell, 633 F2d 77 (CA 8, 1980). People v Meeboer, unpublished opinion per curiam of the Court of Appeals, decided April 6,1988 (Docket No. 97072). 432 Mich 932 (1989). People v Meeboer (On Remand), 181 Mich App 365; 449 NW2d 124 (1989). 436 Mich 880 (1990). People v Craft, unpublished opinion per curiam of the Court of Appeals, decided January 23,1990 (Docket No. 108572). 436 Mich 880 (1990). In fact, the Court later reasoned: Corroboration of a child’s allegations of sexual abuse by medical evidence of abuse, for example, sheds no light on the reliability of the child’s allegations regarding the identity of. the abuser. [Id., 110 S Ct 3151.] See also State v Larson, 472 NW2d 120, 125 (Minn, 1991) (trustworthiness guarantees must be shown by the totality of the circumstances surrounding the actual making of the statement, not evidence corroborating the statement), and Huff v White Motor Corp, 609 F2d 286, 293 (CA 7, 1979) (corroborative evidence is not a consideration relevant to admissibility under the hearsay exceptions). United States v Renville, 779 F2d 430, 441 (CA 8, 1985); Wright, 110 S Ct 3150; Myers, Child Witness Law & Practice, § 5.37, p 369; Wilkins, supra at 44. Larson, supra at 125. See also Myers, n 18 supra at 365 (spontaneity is an important indicator of reliability) and 366 (leading questions may influence the statement, thus potentially decreasing its reliability). United States v Nick, 604 F2d 1199, 1204 (CA 9, 1979); Larson, supra at 125. Wright, 110 S Ct 3150; Myers, n 18 supra at 367. Nick, n 20 supra at 1204. LaLone, supra at 110. Nick, n 20 supra at 1204; Myers, n 18 supra at 370. Larson, supra at 125; Wright, 110 S Ct 3150; Myers, n 18 supra at 370. See Wright, 110 S Ct 3150; Huff, n 17 supra at 293. See Myers, n 18 supra at 364. Nick, n 20 supra at 1204. Id. See also People v Hackney, 183 Mich App 516, 528; 455 NW2d 358 (1990). See also Renville, n 18 supra at 441; Wilkins, supra at 44. But see Cassidy v State, 74 Md App 1; 536 A2d 666 (1988), and Mosteller, Child sexual abuse and statements for the purpose of medical diagnosis or treatment, 67 NC L R 257, 293 (1989), stating that the naiveté of children is not a sufficient substitute for the selfish interest foundation to the medical treatment exception. See also Mosteller, n 31 supra at 268. "Phs Recommendations for Management of Persons After Occupational Exposures That May Place Them at Risk of Acquiring hiv Infection,” Center for Disease Control, Morbidity & Mortality Weekly Report, January 26, 1990, vol 39, no RR-1, p 2. See also LaLone, supra at 117 (Archer, J., concurring in part and dissenting in part). The victim was ten years old at the time of trial. See n 4. The prosecutor impeached this part of the mother’s testimony with a prior inconsistent statement made by her at the preliminary examination, where the mother testified that the child could not have witnessed her mother and defendant engaged in intercourse.

Mallett, J. We granted leave to determine which government entity is responsible for compensating private attorneys assigned to represent indigent criminal defendants in appealing their convictions. We hold that the counties remain responsible for this cost, and reverse the decision of the Court of Appeals. FACTS This dispute arose out of the legal representation in a criminal case in which the plaintiff-appellant, Mr. James A. Frederick, represented a criminal defendant in the appeal of his conviction. Judge Robert Ferguson of the 26th Circuit Court appointed the plaintiff-appellant as the appellate counsel for the indigent defendant, Mr. David Cook, on May 10, 1989. On that same day, the court administrator for the 26th Circuit Court sent Mr. Frederick a form letter, informing him that the court did not intend to compensate him for his services. Mr. Frederick performed various services in his capacity as appellate counsel, and on September 5, 1989, he submitted a bill to the county requesting payment for services and expenses incurred in the amount of $312.15. The court administrator wrote Mr. Frederick on October 5, 1989, again informing him that the court’s budget did not contain funds to compensate him for his services. She requested that Mr. Frederick inform her of any authority designating who is responsible for paying assigned appellate attorneys. The plaintiff’s counsel demanded payment in two letters to the court administrator, dated October 12, 1989, and October 17, 1989. Again, payment was refused in a letter which stated that there was no authority designating the county as the governmental entity responsible for compensating assigned appellate counsel. On March 8, 1990, the plaintiff filed in the Court of Appeals a complaint for superintending control to compel the defendant, the Chief Judge of the 26th Circuit Court, to authorize payment to the plaintiff for his appellate services ordered by the 26th Circuit Court on May 10, 1989. The Court of Appeals dismissed the complaint, finding there was no clear legal duty on the part of the defen dant to compensate the plaintiff. 186 Mich App 20; 463 NW2d 438 (1990). The plaintiff appealed this dismissal, and we granted leave to appeal on November 13, 1990. 437 Mich 856. I Neither party disputes the fact that an indigent defendant is entitled to have the assistance of counsel upon an appeal of right, guaranteed by the Fourteenth Amendment of the United States Constitution. See Douglas v California, 372 US 353; 83 S Ct 814; 9 L Ed 2d 811 (1963). What is at issue in this case is whether the county is responsible for funding the costs and fees of private attorneys assigned by the court to represent indigent criminal defendants on appeal. A Traditionally, the county has been the primary unit in directing Michigan’s criminal justice system. [J]udicial circuits are drawn along county lines and counties are required by statute to bear the expenses of certain courtroom facilities ([MCL 600.551] MSA 27A.551), [repealed] circuit court commissioner salaries ([MCL 600.1067] MSA 27A.1067), stenographer’s salaries ([MCL 600.114] MSA 27A.114), juror’s compensation ([MCL 600.1231] MSA 27A.1231), and fees for attorneys appointed by the court to defend persons who cannot procure counsel for themselves ([MCL 775.16] MSA 28.1253). [OAG, 1967-1968, No 4,588, pp 49, 50 (June 12, 1967).] As early as 1894, this Court addressed the financial obligation of a county as it relates to appellate expenses. In People v Hanifan, 99 Mich 516, 517; 59 NW 611 (1894), the Court stated that it was within the province of the county, rather than the state, to fix an attorney’s compensation for services rendered on appeal. This conclusion was based on Const 1850, art 10, § 10, which granted the county board of supervisors exclusive power to fix the compensation for all services rendered for the county. An 1857 statute provided that if an attorney appointed to defend an indigent defendant followed the case to the Supreme Court on appeal, he was entitled to an enlarged compensation. The Hanifan Court held that neither the trial court nor the appellate court should fix his compensation, but that this should be done by the county board of auditors. Id. at 518. Three years later, this Court reaffirmed its earlier Hanifan position that counties were responsible for the expenses of appointed attorneys’ compensation for services rendered on appeal. In De Long v Muskegon Co Bd of Supervisors, 111 Mich 568; 69 NW 1115 (1897), the Court held that an attorney appointed to defend an indigent person charged with a criminal offense was not entitled to compensation from the public for services in appealing a judgment of conviction when he undertook the appeal of his own accord and without a court order. In reaching this conclusion, the De Long Court said: No attorney can defend a prisoner, and subject the county to pay for such expense, without an order of the court. It is the duty of the circuit judge to examine into the circumstances, and determine whether it is his duty to appoint an attorney to defend at the expense of the county. The order of the circuit court is the sole authority for subjecting the county to the expense of the prisoner’s defense. [2 How Stat] Section 9047 means this, and nothing more .... [Id. at 570. Emphasis added.][ ] De Long still stands for the proposition that counties are absolved from their financial obligation of assuming appellate expenses only when an attorney seeks to represent a defendant on appeal without an order from the court. Where an attorney has an order from the court compelling representation of a defendant on appeal, § 9047 subjects the county to the expense of the appeal. De Long is an 1897 case, decided long before criminal defendants were granted the constitutional right to an appeal. However, De Long remains illustrative. Counties paid appellate attorney fees when the court granted an order allowing the attorney to make an appeal. We believe it follows that counties should continue to pay appellate attorney fees when the constitution in effect grants an order allowing criminal conviction ap peals. Pursuant to the Michigan Constitution and under Administrative Order No. 1989-3, trial courts are under a duty to grant an order assigning appellate counsel for an indigent criminal defendant. Administrative Order No. 1989-3 requires that assignment and payment of appellate counsel remain a local matter. In In re Meizlish, 387 Mich 228; 196 NW2d 129 (1972), this Court held that a local court rule which limited the fees the county would pay for assigned counsel did not violate an attorney’s rights under the Due Process and Equal Protection Clauses of the United States or Michigan Constitution. Whether the federal or state constitution requires a public entity to compensate assigned attorneys is not an issue presently before us. Rather, the issue is one of statutory interpretation. B While the Appellate Defender Act, MCL 780.711 et seq.; MSA 28.1114(101) et seq., and Administrative Order No. 1989-3 provide for a system of indigent appellate representation that involves private attorneys as well as the State Appellate Defender Office, both are silent as to the payment of these private attorneys. MCL 775.16; MSA 28.1253 is not. It provides that the county treasurer must compensate an attorney for his services in representing an indigent criminal defendant. When an accused is unable to procure counsel [u]pon proper showing, the chief judge shall appoint ... an attorney to conduct the accused’s examination and to conduct the accused’s defense. The attorney appointed by the court shall be entitled to receive from the county treasurer« . . . reasonable compensation for the services performed. [Emphasis added.] The defendants in this case argue that the language of MCL 775.16; MSA 28.1253 indicates that the county is responsible for compensating only trial attorneys because the term "accused” only applies to defendants at the trial level. They contend. that the term "accused” does not apply to convicted defendants appealing their conviction. This argument is unpersuasive for several reasons. First, while the term "accused” does technically apply only to those not yet convicted, its common meaning includes all those being prosecuted, throughout all stages of the criminal process. Indeed, the Michigan Constitution of 1963 uses "accused” in referring to a postconviction defendant: "In every criminal prosecution, the accused shall have ... an appeal as a matter of right . . . .” Const 1963, art 1, § 20 (emphasis added). Second, when MCL 775.16; MSA 28.1253 was first enacted in 1857, there was no appeal of right; it was solely discretionary with the appellate court. However, the 1963 Constitution provides that every defendant is entitled to an appeal in the Court of Appeals. Const 1963, art 1, § 20. The Fourteenth Amendment of the United States Constitution makes it clear that a state may not grant appellate review in such a way as to discriminate against some convicted defendants because of their poverty. Douglas v California, supra. Because the appeal is now a right of the defendant, it constitutes a basic and significant part of the accused’s defense. The state’s criminal proceedings against this individual begin at the point of arraignment and continue throughout the appeal of right. Thus, the defense must address each stage of these proceedings. Third, the county is responsible for providing counsel for indigent suspects who are questioned by the police; at this "Miranda stage” the suspect has not been charged and so is not an "accused.” Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Nonetheless, the county pays for the suspect’s counsel if the suspect requests that an attorney be made available to him. Furthermore, the term "defense” as used in MCL 775.16; MSA 28.1253 includes all proceedings in which a criminal defendant can assert a defense, including errors made in the trial court. This is so, particularly with proceedings made available to the defendant by right, such as the appeal of right in the Court of Appeals. Black’s Law Dictionary (5th ed), p 377, defines "defend” as "[t]o contest and endeavor to defeat a claim . . . made against one in a court of justice.” An appellate attorney attempts to contest and defeat a claim as much as a trial attorney does. As a California court noted: An appeal is merely a continuation of the earlier proceedings . . . under the common and usual meaning of the word "defend,” that assigned counsel in the appellate department ... is "defending” his client .... [Marks v Los Angeles Co Superior Court, 245 Cal App 2d 779, 783; 54 Cal Rptr 169 (1966).][ ] C The parties point to other statutory positions to support their respective positions, and we address each separately. MCL 775.17; MSA 28.1254 states that an attorney cannot be forced to make an appeal to the Supreme Court. This case does not involve the discretionary appeal to the Supreme Court, but rather only involves paying the costs and fees of an indigent defendant’s appeal of right. Further, at the time of its enactment there was only the discretionary appeal to the Supreme Court. There was no Court of Appeals nor an appeal of right. Thus, this statute does not provide for payment of an assigned appellate attorney. The defendant argues that unless trial counsel is the one to provide appellate services, MCL 775.18; MSA 28.1255 prohibits two attorneys from receiving compensation in one case. We disagree with this construction of § 18. The plain meaning of this statute is to prevent two attorneys from collecting funds for performing identical and repetitive services. Otherwise, if one attorney began the trial, but had to withdraw for whatever reason, certainly it cannot be argued that substitute counsel could not receive compensation. Assigned appellate counsel are, in one sense, substitute counsel on appeal. They take over where the trial counsel ended. Assigned appellate counsel do not receive compensation for services already performed by the trial counsel, and thus do not violate MCL 775.18; MSA 28.1255. Further, under MCL 49.159(1); MSA 5.757(1), the county rather than the state pays the prosecuting attorney, including the prosecution on appeal. MCL 49.159(1); MSA 5.757(1) provides: The prosecuting attorney shall receive compensation for his or her services, as the county board of commissioners, by an annual salary or otherwise, orders and directs. [Emphasis added.] Prosecutors and defense attorneys are adversaries, but both perform similar functions for their respective clients. That prosecutors are more popular than defendants is not enough reason for a county to abandon certain costs to the state. Nor does MCL 600.9947; MSA 27A.9947 support the contention that the Legislature intended that the state would assume the responsibility for paying assigned appellate attorneys. Section 9947 provides: (1) The legislature shall appropriate sufficient funds in order to fund: (e) At least 100% of all court operational expenses in the state fiscal year beginning October 1, 1988. Section 9947 manifests the Legislature’s intention to reorganize the court system; the subsections of § 9947 "at most, merely express an intention of the Legislature with regard to appropriations which will be made in future years.” OAG, 1983-1984, No 6,125, pp 38, 40 (February 10, 1983). This intention, however, is not binding on subsequent Legislatures: [A]ny provision that does not take initial effect, during the ensuing fiscal year is intended to function only as an authorization — an intention to appropriate. [Oakland Schools Bd of Ed v Superintendent of Public Instruction, 392 Mich 613, 620; 221 NW2d 345 (1974).] One legislature cannot limit the power of successor legislatures to appropriate funds. Harsha v Detroit, 261 Mich 586, 590; 246 NW 849 (1933); Atlas v Wayne Co Bd of Auditors, 281 Mich 596; 275 NW 507 (1937). Because § 9947 was enacted in 1980 and became effective on September 1, 1981, it cannot bind the Legislature with regard to 1988 appropriations. Therefore, the promise or intention expressed in MCL 600.9947; MSA 27A.9947 is not binding and cannot compel the state to assume the responsibility for paying the fees of assigned appellate attorneys. II Under MCR 3.302, a complaint for superintending control may be filed when there is no other adequate remedy. In this case, the plaintiff could not appeal the circuit court’s decision because that decision was not an order of the circuit court, but rather a letter submitted by the court’s administrator. The circuit court issued no judgment or order which the plaintiff could appeal, and thus a complaint for superintending control was proper. The standard for issuing a writ of superintending control is to determine whether the lower court failed to perform a clear legal duty. People v Flint Municipal Judge, 383 Mich 429; 175 NW2d 750 (1970). Because we determine that our common law and MCL 775.16; MSA 28.1253 clearly establish the county’s responsibility for paying assigned appellate attorneys, under Administrative Order No. 1989-3, the Chief Judge of the 26th Circuit Court has a clear legal duty to order the county’s compensation of assigned appellate attorneys. Because the chief judge failed to perform this duty in this case, we hold that the Court of Appeals should have granted the writ for superintending control. CONCLUSION All courts in this state are part of Michigan’s one court of justice, Const 1963, art 6, § 1. However, the Legislature retains power over - the county and may delegate to the local governments certain powers. See, e.g., Alan v Wayne Co, 388 Mich 210; 200 NW2d 628 (1972); Wright v Bartz, 339 Mich 55; 62 NW2d 458 (1954); Const 1963, art 7, § 1. In MCL 775.16; MSA 28.1253, the Legislature did just that. It directed the chief judge of the circuit court to appoint an attorney to represent an indigent defendant’s defense, and directed the county to pay for such services. We reverse the decision of the Court of Appeals, and direct the Chief Judge of the 26th Circuit Court to enforce payment for plaintiff’s services. Cavanagh, C.J., and Levin and Brickley, JJ., concurred with Mallett, J. The relevant text of the letter follows: [P]ursuant to Administrative Order 1989-3, an order of this Court has been entered appointing you Defendant’s counsel on appeal and pursuant to statute a trial transcript shall be provided. Our budget does not presently contain funds to compensate you for your service nor am I aware of any statutory authority designating a governmental entity to make payment in this regard. The total costs and fees for the state in 1989 was approximately $1,673,000. Almost sixty percent was attributable to the Wayne, Macomb, and Oakland Circuit Courts and the Detroit Recorder’s Court. This provision is now found at Const 1963, art 7, § 9. The revised provision vests the county with the exclusive power to fix the compensation of county officers. The 1857 Legislature recognized the need to compensate counsel for work in cases wherein counsel pursued appellate review to the Supreme Court. 1857 PA 109, §2, which has been consistently reenacted, now appears as MCL 775.17; MSA 28.1254, which provides: An attorney shall not, in such case, be compelled to follow a case into another county or into the supreme court, but if he does so, may recover an enlarged compensation to be fixed by the court. Section 9047 is the citation of 1857 PA 109, §2, the statutory predecessor of MCL 775.17; MSA 28.1254, one of the relevant statutory provisions in this case. Const 1963, art 1, § 20 grants to a criminal defendant an appeal as a matter of right. Under Administrative Order No. 1989-3(5)(b)(iv), the local designating authority or chief judge of the circuit may sanction an attorney who refuses an assignment without cause, by rotating that attorney’s name to the bottom of the roster. Indeed, some members of this Court were concerned about costs to be borne by local governments: Nor has there been any independent examination of those states that have such a system to determine the fiscal implications for local governments which will bear the cost of the system. [Administrative Order No. 1989-3, 432 Mich cxxviii, Boyle, J., dissenting.] In Meizlish, the court rule awarded a maximum of $50, which was paid attorney Meizlish. The Court held that "in general, the court rule does provide reasonable compensation for court appointed attorneys for indigents.” 387 Mich 235-236. Thus, the issue before the Court was not whether assigned attorneys could be paid no compensation, but rather whether $50 was generally reasonable, and not arbitrary and capricious so as to violate the attorney’s rights to due process and equal protection. While we decline to discuss these constitutional issues, we do note that, in light of MCL 775.16; MSA 28.1253 as interpreted by us today and Administrative Order No. 1989-3, paying assigned appellate attorneys no fees is not reasonable. See also Powell v United States, 60 F Supp 433, 439 (ED Va, 1945), aff’d 152 F2d 228 (CA 4,1945), aff’d 330 US 238 (1947). Only one attorney in any one case shall receive the compensation above contemplated .... As amicus curiae Michigan Appellate Assigned Counsel System informed us, in most instances indigent defendants are provided with a new attorney on appeal. However, if the defendant prefers that his trial attorney perform appellate services and the trial attorney agrees, the defendant may waive new counsel. Administrative Order No. 1989-3(12). Since the outcome of this case between these parties would not be affected by Const 1963, art 9, § 29, we do not address that question.

Memorandum Opinion. The circuit court quashed an investigatory subpoena issued by the Attorney Grievance Commission. Because this action exceeded the authority of the circuit court, we vacate the court’s order and remand the case for reconsideration. I In August 1988, a request for investigation was filed against the respondent attorney, alleging professional misconduct. The Attorney Grievance Commission issued a written admonishment in September 1989. However, the admonishment was rejected by the respondent in October 1989. MCR 9.106(6). In August 1991, the Grievance Administrator caused the issuance of an investigative subpoena. MCR 9.112(D)(1). The subpoena directed the respondent to appear at the office of the commission on a date in September 1991. The respondent was directed to bring "[a]ny and all notes, documents, records, files, ledgers, photographs, or any other evidence relating to the referenced Request for Investigation.” The subpoena also stated that the respondent would be required to testify under oath. The respondent appeared as required, but did not answer all the questions of the Grievance Administrator. The administrator then filed in circuit court a petition for an order to show cause why the respondent should not be held in contempt. MCR 9.112(D)(2). The respondent’s answer to the petition included a statement that "[t]he unwarranted delay of three years [in the investigation of this matter] has prejudiced respondent and the petition is barred by laches.” The circuit court refused to hold the respondent in contempt. It found instead that ”the passage of one and three quarters years from date of rejection of the Admonition by Respondent to the issuance of the subpoena, was untimely and therefore the subpoena is quashed.” The Grievance Administrator has filed in this Court an application for leave to appeal, which we treat as a complaint for superintending control. II The court rule, MCR 9.112(D)(2), formerly MCR 9.114(C)(2), provides that a person who "without just cause” fails to comply with an investigatory subpoena "is in contempt.” The rule further states that the Grievance Administrator "may initiate a contempt proceeding under MCR 3.606 in the circuit court.” The role of the circuit court is limited by the rule. The principal question before the circuit court is whether to invoke its contempt power. In order to make that determination, the circuit court must resolve the issues whether the respondent has failed to comply with the subpoena and whether, if there has been such a failure, it is excused by just cause. The resolution of those issues will enable the court to decide whether to hold the respondent in contempt. If one or both of those issues are resolved in favor of the respondent, the circuit court should enter an order declining to hold the respondent in contempt. The circuit court may not quash the Grievance Administrator’s subpoena. The circuit court must exercise care as it inquires into whether just cause exists for a respondent’s failure to comply with the subpoena. The "just cause” must concern the subpoena itself, not the underlying investigation or other ancillary matters. For instance, a respondent might have just cause to oppose a subpoena if it were improperly issued, if it were addressed to the wrong person, if it were vague or overbroad, or if it would require violation of an applicable privilege. A further illustration that pertains to this case is that a respondent might have just cause to oppose a subpoena if it were somehow untimely, whereas the circuit court lacks authority to conclude that an underlying investigation is untimely. For these reasons, we vacate the order of the circuit court, and we remand this case to the circuit court for reconsideration of the Grievance Administrator’s petition for an order holding the respondent in contempt. Cavanagh, C.J., and Levin, Brickley, Boyle, Riley, Griffin, and Mallett, JJ., concurred._ At the time these events arose, this rule provision was found in MCR 9.114(C)(1). This language was, at that time, found in MCR 9.114(C)(2). Obviously, if a finding of contempt is made, the court must decide upon a proper judicial response to the contempt. It might be said that failing to hold the respondent in contempt is the same as refusing to enforce the subpoena, and that refusing enforcement is essentially the same as quashing the subpoena. The distinctions are not great, it is not for the circuit court to declare void a discovery instrument issued by the Attorney Grievance Commission, whose authority is conferred by the Supreme Court. A respondent who sought a determination that an entire investigation was untimely would need to approach this Court with a complaint for superintending control of the Attorney Grievance Commission. The Grievance Administrator has also filed motions for immediate consideration and to seal the record, which we grant. MCR 9.126(A). The respondent’s motion to dismiss is denied.

ORDER On order of the Court, the matter of the 1992 reapportionment of the Michigan Legislature is again considered. We are called upon to reapportion the Michigan Legislature. To accomplish this task, we appointed a panel of special masters, whose product we have carefully considered. Having also considered the views of those who commented upon the plan, in writing or in person at the public hearing held on March 4, 1992, we today approve, with modification, the apportionment plan presented by the masters. The apportionment plan of the masters has been drawn in accordance with the criteria stated in In re Apportionment of State Legislature — 1982, 413 Mich 96, 141-142, 154-156; 321 NW2d 565 (1982), reh den 413 Mich 149; 321 NW2d 585 (1982), app dis sub nom Kleiner v Sanderson, 459 US 900; 103 S Ct 201; 74 L Ed 2d 161 (1982). The masters also examined § 2 of the Voting Rights Act of 1965, as amended in 1982 (vra), 42 USC 1973. After the parties stipulated that, as in 1982, 16.4 percentage points was the maximum allowable population divergence, the masters ruled that they would consider no plan with greater divergence than 16.4 percentage points. Some who commented on the report of the masters expressed concerns regarding the population divergence found in the masters’ plan. In 1982, we directed that the divergence between the largest and smallest districts could not exceed 16.4 percentage points. Mahan v Howell, 410 US 315; 93 S Ct 979; 35 L Ed 2d 320 (1973). The plan developed by the masters approaches, but does not exceed, that limit. We remain persuaded that a population divergence of 16.4 percentage points is constitutional in light of the "substantial and legitimate state concerns” which underlie this apportionment. Brown v Thomson, 462 US 835; 103 S Ct 2690; 77 L Ed 2d 214 (1983). These valid state concerns focus on the importance of honoring jurisdictional lines, in order to foster effective representative government. We are persuaded that the objectives of preserving county and municipal boundaries, and of minimizing shifts of municipalities and voters, justify the population divergence that is present in the masters’ plan. Others have suggested that the masters’ plan would violate the vra, particularly with regard to the apportionment of Wayne County. This statute is violated if "the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by [the vra] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 42 USC 1973(b). Thornburg v Gingles, 478 US 30, 43-46; 106 S Ct 2752; 92 L Ed 2d 25 (1986), teaches that one makes this determination through an examination of the "totality of circumstances.” We are persuaded, however, that the masters did consider the totality of circumstances and that they were appropriately concerned with recognition of vra interests. To that end, in adopting today’s reapportionment plan, we have accepted for the most part the masters’ plan while reconfiguring House Districts 4, 5, 11, 13 and 14 in order to provide a better racial balance throughout these. districts. See appendixes a-e. With the modifications noted in the preceding paragraph, we adopt the reapportionment plan drawn by the masters. It is hereby ordered and the Secretary of State is directed to publish as provided by law and hold legislative elections in accordance with the reapportionment plan hereby approved. This Court retains no further jurisdiction. APPENDIX A House District 4 Total Population 80,416 Total Black Non-Hispanic 68,943 Total Hispanic 558 Wayne County (part) Detroit city (part) Tract 5046 Tract 5151 Tract 5179 Tract 5047 Tract 5152 Tract 5180 Tract 5107 Tract 5161 Tract 5181 Tract 5108 Tract 5162 Tract 5183 Tract 5109 Tract 5163 Tract 5184 Tract 5111 Tract 5164 Tract 5185 Tract 5112 Tract 5165.99 Tract 5186 Tract 5113 Tract 5166 Tract 5187 Tract 5114 Tract 5167 Tract 5188 Tract 5115 Tract 5168 Tract 5102 Tract 5116 Tract 5169 Tract 5103 Tract 5117 Tract 5175 Tract 5106 Tract 5147 Tract 5177 Tract 5165 Tract 5148 Tract 5178 APPENDIX B House District 5 Total Population 81,775 Total Black Non-Hispanic 57,255 Total Hispanic 735. Wayne County (part) Detroit city (part) Tract 5048 Tract 5036 Tract 5064 Tract 5052 Tract 5037 Tract 5065 Tract 5053 Tract 5049 Tract 5066 Tract 5031 Tract 5050 Tract 5067 Tract 5032 Tract 5051 Tract 5068 Tract 5033 Tract 5061 Tract 5069 Tract 5034 Tract 5062 Tract 5070 Tract 5035 Tract 5063 APPENDIX C House District 11 Total Population 84,357 Total Black Non-Hispanic 67,242 Total Hispanic 1,075 Wayne County (part) Detroit city (part) Tract 5342 Tract 5356 Tract 5378 Tract 5343 Tract 5357 Tract 5454 Tract 5344 Tract 5365 Tract 5455 Tract 5347 Tract 5366 Tract 5456 Tract 5350 Tract 5370 Tract 5457 Tract 5351 Tract 5371 Tract 5458 Tract 5352 Tract 5372 Tract 5355 Tract 5377 APPENDIX D House District 13 Total Population 80,119 Total Black Non-Hispanic 57,645 Total Hispanic 1,127 Wayne County (part) Detroit city (part) Tract 5353 Tract 5451 Tract 5464 Tract 5354 Tract 5452 Tract 5465 Tract 5373 Tract 5453 Tract 5466 Tract 5424 Tract 5459 Tract 5467 Tract 5426 Tract 5460 Tract 5468 Tract 5427 Tract 5461 Tract 5469 Tract 5428 Tract 5462 Tract 5440 Tract 5439 Tract 5463 APPENDIX E House District 14 Total Population 79,577 Total Black Non-Hispanic 54,247 Total Hispanic 839 Wayne County (part) Detroit city (part) Tract 5406 Tract 5413 Tract 5435 Tract 5407 Tract 5414 Tract 5436 Tract- 5408 Tract 5415 Tract 5437 Tract 5409 Tract 5417 Tract 5438 Tract 5410 Tract 5418 Tract 5441 Tract 5411 Tract 5432 Tract 5442 Tract 5412 Tract 5434 Tract 5443 The following table reflects percentage of minority population in the plan proposed by the masters and that adopted by the Court in these House districts. District Masters’ plan Plan as adopted 4 89.89% 85.73% 5 65.41% 70.02% 11 95.80% 79.71% 13 57.10% 71.95% 14 67.04% 68.17%

ON RESUBMISSION Brickley, J. The plaintiff brought these two actions after his son committed suicide in a Michigan State University Department of Public Safety holding cell. In the first action, the plaintiff sued officers Linda Zezulka, Richard Bernitt and Fer-man Badgley, and the three corporations involved in the original construction of the msu Department of Public Safety building. In the second action, the plaintiff sued Michigan State University in the Court of Claims. On August 4, 1983, the parties agreed to consolidate the two cases into one proceeding. Eventually, the corporate defendants were voluntarily dismissed from the circuit court action, and defendants Bernitt and Badgley were found not liable by a jury. The plaintiff has not appealed any issues related to these defendants. The jury returned a verdict for the plaintiff against Zezulka and the Court of Claims against msu. Both actions were upheld by the Court of Appeals. We must determine .if a plaintiff can maintain a claim against a governmental entity and its officers for a pretrial detainee’s suicide under either state law or 42 USC 1983. While this Court’s order granting leave to appeal specified eight issues for consideration, only four need resolution: 1) Whether the public building exception, MCL 691.1406; MSA 3.996(106), to governmental immunity is applicable to the claims against Michigan State University; 2) Whether the plaintiff presented sufficient evidence of deliberate indifference to support a claim under 42 USC 1983 that Zezulka violated Hickey’s civil rights; 3) Whether, relative to plaintiff’s negligence claims, Zezulka’s actions were discretionary decisional, affording her the protection of state governmental immunity under Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984); and 4) Whether, relative to the plaintiff’s negligence claims, the trial court erred when it failed to give Zezulka’s requested standard jury instruction on comparative negligence and a requested instruction on intervening cause. We hold that the plaintiff’s claim against msu is barred by state governmental immunity. In so holding, we find that the public building exception, MCL 691.1406; MSA 3.996(106), is inapplicable to this case. We also hold that the plaintiff presented insufficient evidence of deliberate indifference to support a claim under § 1983 and we reverse the trial court’s denial of judgment notwithstanding the verdict on the civil rights claim. Further, we find that Zezulka’s actions were ministerial-operational and do not afford her the protection of state governmental immunity, and that the trial court correctly refused to instruct the jury on intervening cause. Finally, the signers of this opinion would hold that the trial court also correctly refused to give an instruction on comparative fault. We therefore reverse the decisions of the Court of Claims and the Court of Appeals applicable to msu. We reverse the decisions of the circuit court and the Court of Appeals with regard to the plaintiff’s § 1983 claim against Zezulka and direct entry of judgment for the defendant on that claim. Because a majority of the Court has found error in the failure to instruct on comparative fault, we reverse the decisions of the circuit court and the Court of Appeals with regard to the plaintiff’s negligence claim and remand for a new trial limited to the issue of the plaintiff’s damages. I. FACTS AND PROCEDURAL HISTORY On October 3, 1982, between 1:00 a.m. and 2:00 a.m., Hickey was observed driving erratically on Harrison Road in East Lansing, Michigan. Zezulka, an officer of the msu Department of Public Safety (dps), stopped Hickey, administered a number of field sobriety tests, and eventually placed him under arrest for driving under the influence of intoxicating liquor, MCL 257.625a; MSA 9.2325(1). Zezulka then transported Hickey to the East Lansing Police Department (elpd) for Breathalyzer tests. Both Zezulka and elpd Sergeant Louis Muhn observed that Hickey appeared to be in a good mood and appeared to have a generally positive demeanor. While at the elpd, Sergeant Muhn asked Hickey for some general background information, which was necessary for the Breathalyzer tests, and observed Hickey for at least twenty minutes prior to Zezulka’s departure with Hickey. Zezulka then requested that she be allowed to transport Hickey to the Ingham County Jail. However, Zezulka’s superior denied the request because he was concerned about manpower shortages while she was gone. Zezulka complied with her superior’s order and took Hickey to the dps for processing and photographing. After processing Hickey, Zezulka placed him in a holding cell at about 3:20 a.m. Zezulka did not remove any of Hickey’s personal articles or clothing, including his belt, even though the dps had a written policy to remove personal articles from prisoners. The policy stated: No prisoner shall be left unattended unless he is first searched and secured in a segregation room. All offensive and defensive weapons or other objects which could harm an officer, the prisoner or other prisoners shall be removed and properly secured. [Emphasis added.] However, Zezulka did advise Hickey that he would soon be taken to the Ingham County Jail. The Court of Appeals described the holding cell in which Zezulka placed Hickey as “a nine to ten foot high ceiling and a concrete bench along one side. Above the [stone] bench was a heater with a metal mesh that was supported by four metal brackets which extended one to two inches from the wall,” 177 Mich App 606, 610; 443 NW2d 180 (1989), and ran along the upper portion of the wall. The door to the holding cell was solid metal and had a 10 X 10 inch window that officers used to view any detainees. A desk officer monitored any sounds coming from the area through a microphone located in the cell. After placing Hickey in the holding cell, Zezulka went about her other duties. Although the dps also had a policy stating that the officer who brings a detainee into the department is responsible to check on the detainee, Zezulka did not check on Hickey until she went to take him to the Ingham County Jail at 3:57 a.m., approximately thirty-seven minutes after she initially placed him in the holding cell. Upon entering the cell, Zezulka saw Hickey hanging by a noose fashioned from his belt and socks. Hickey had hanged himself from one of the four metal brackets that attached the heating unit to the wall. Despite efforts to revive Hickey, he was pronounced dead on arrival at Sparrow Hospital in Lansing, Michigan. On November 1, 1982, John Joseph Hickey, Sr., filed a complaint in the Ingham Circuit Court as the personal representative of the John Joseph Hickey, Jr., estate against Zezulka and the other defendants. For the purposes of this appeal, the plaintiff’s complaint alleged negligence, gross negligence, and intentional and grossly negligent acts in violation of Hickey’s civil rights under 42 USC 1983. On June 9, 1983, the plaintiff also commenced a lawsuit in the Court of Claims against msu, claiming that the holding cell where Hickey hanged himself was in a dangerous or defective condition and that msu violated Hickey’s civil rights. Msu and Zezulka filed answers and amended answers to the plaintiff’s complaint, claiming state governmental immunity as a defense. However, Zezulka’s pleading did not include an affirmative defense of qualified immunity to the plaintiff’s 42 USC 1983 claim. Zezulka did not allege that defense until filing a subsequent motion for summary disposition. In an opinion dated May 10, 1985, the trial court held that Hickey had sufficiently pleaded a cause of action under the public building exception, MCL 691.1406; MSA 3.996(106), to avoid msu’s governmental immunity. The trial court also held that Zezulka’s failure to remove Hickey’s belt was a ministerial act not entitled to lower-level governmental immunity under Ross, supra. Finally, the trial court held that although no valid claim existed under the Eighth Amendment of the United States Constitution against msu or the individual defendants, a claim under 42 USC 1983 for violating Hickey’s Fourteenth Amendment rights had been sufficiently pleaded against Zezulka. The trial court did not discuss Zezulka’s claims of qualified immunity. The claims against Zezulka and the other individual defendants were tried by a jury. During the trial, witnesses gave testimony about suicides, the effects of intoxication, and the effect of isolating drunken and suicidal individuals. One expert testified that intoxicated persons normally do not look depressed because they do not care about the things that originally depressed them. Other experts testified that they did not expect any officer to be able to ascertain if a person is suicidal. The testimony also indicated that Hickey died after only a few minutes in the holding cell. At the close of the plaintiff’s proofs, the defendants moved for a directed verdict arguing, inter alia, that the plaintiff had failed to present any evidence of deliberate indifference to Hickey’s civil rights. At the end of the trial, the trial court gave instructions to the jury. On the plaintiff’s civil rights claim, the trial court stated: The essential element which must be present as a threshold consideration to support a 1983 action in this case is that the intentional or negligent conduct of Defendants . . . must have deprived the complainant of rights .... [Emphasis added.] Defendants’ counsel did not object to this instruction. However, defense counsel did object to the trial court’s refusal to give the requested standard jury instruction on comparative negligence and a requested instruction on intervening cause as they applied to the plaintiff’s negligence claim. In response, the trial court stated that it believed the requested instructions were "conceptually not possible” because they would destroy the plaintiff’s cause of action. The jury found that Zezulka was negligent and violated Hickey’s civil rights, but that defendants Badgley and Bernitt were only negligent and did not violate Hickey’s civil rights. The jury then found that only Zezulka’s "negligence and/or violation of . . . Hickey’s civil rights” was a proxi mate cause of Hickey’s death. The jury awarded the plaintiff a verdict of $1 million against Zezulka. After the trial, Zezulka’s counsel made a number of postjudgment motions, including a motion for judgment notwithstanding the verdict arguing, inter alia, that the plaintiff presented insufficient evidence of deliberate indifference, which were all denied by the trial court. In its review of the jury instructions, the trial court noted that during the course of trial: I compare jury instructions. One of my notes to myself was that deliberate indifference was lacking; and when Counsel for the Defendant and Counsel for the Plaintiff came in with their proposed instructions, they had agreed on that instruction. ... I do not interject myself when counsel agree on instructions. It doesn’t matter what I think what the law may be. If counsel want to agree, that’s up to them. [Emphasis added.] In December 1985, the Court of Claims heard the plaintiff’s case against msu. The Court of Claims found that the dps holding cell was in a dangerous or defective condition because it was not constructed as a detoxification cell. The court then awarded the plaintiff $650,000 on the basis of its findings. The Court of Appeals upheld this award, as well as the jury verdict against defendant Zezulka. The Court of Appeals first determined that the Court of Claims did not err in finding that the dps building was a proximate cause of decedent’s death. 177 Mich App 613-614. The Court of Appeals distinguished Reardon v Dep’t of Mental Health, 430 Mich 398; 424 NW2d 248 (1988), by noting that this case did not involve any third party intervention as did Reardon. 177 Mich App 614. The Court of Appeals also found that Zezulka was not entitled to state governmental immunity because her actions were ministerial-operational and "entail[ed] only minor decision-making . . . Id. at 615. The Court of Appeals then held that Zezulka waived her qualified immunity defense to the plaintiff’s § 1983 claim because she failed to plead it as an affirmative defense. Id. at 616. The Court of Appeals also found that the circuit court did not commit error in the jury instructions that were given or refused. The Court held that Zezulka waived her appeal of the § 1983 instruction because she failed to object to it at trial. Id. The Court held that Hickey committed an intentional, not negligent, act so comparative negligence could not be applied. Id. at 617. Finally, the Court concluded that because Hickey’s suicide was foreseeable, the trial court did not err when it refused to give an instruction on intervening cause. Id. at 617-618. From this decision, defendants msu and Zezulka appealed. On July 10, 1990, we granted leave to appeal. 435 Mich 861. On September 27, 1991, we ordered reargument and supplemental briefing limited to the issues regarding the trial court’s refusal to instruct with regard to comparative negligence and superseding, intervening cause. 438 Mich 1202. We directed the parties to address whether a jury may be asked to compare varying degrees of fault where defendant claims plaintiff’s act was intentional and plaintiff claims defendant’s act was negligent. We further ordered that Justice Mallett would participate in the decision of this case on resubmission. II. PUBLIC BUILDING EXCEPTION A A governmental agency is immune from tort liability for actions undertaken while performing governmental functions. MCL 691.1407; MSA 3.996(107). Although very broad, this immunity is subject to a limited number of narrowly drawn exceptions, Ross, supra at 618, including the public building exception, MCL 691.1406; MSA 3.996(106): Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. [Emphasis added.] To apply the public building exception, the plaintiff must prove that 1) a governmental agency is involved, 2) the public building in question is open for use by members of the public, 3) a dangerous or defective condition of the public building itself exists, 4) the governmental agency had actual or constructive knowledge of the alleged defect, and 5) the governmental agency failed to remedy the alleged defective condition after a reasonable period of time. Williamson v Dep’t of Mental Health, 176 Mich App 752, 760; 440 NW2d 97 (1989); Ransburg v Wayne Co, 170 Mich App 358; 427 NW2d 906 (1988). However, the only question before us is whether a dangerous or defective condition existed in the dps holding cell. In general, governmental agencies "are subject to liability for a dangerous or defective condition of a public building without regard to whether it arises out of a failure to repair and maintain.” Bush v Oscoda Area Schools, 405 Mich 716, 730; 275 NW2d 268 (1979). A public building may be dangerous or defective because of improper design, faulty construction, or absence of safety devices. Id. However, a court should only look to the uses or activities for which the public building is assigned to determine if a dangerous or defective condition exists. Id. at 731. Clearly, the question is not only whether the physical condition caused the injury incurred, but also whether the physical condition was dangerous or defective under the circumstances presented. Reardon, 430 Mich 410-411. In Reardon we held that "the duty imposed by the public building exception relates to dangers actually presented by the building itself. To hold otherwise would expand the exception beyond the scope intended by the Legislature when it enacted the immunity act.” Id. at 415. We also found that the purpose of the public building exception was to promote the maintenance of safe public buildings, "not necessarily safety in public buildings.” Id. In Schafer v Ethridge, a companion case to Reardon, we held that where proper supervision would have "offset any shortcomings in the configuration of the room,” the public building exception does not apply. Id. at 417. B The plaintiff made three principal arguments throughout the course of trial to avoid msu’s governmental immunity defense. First, the plaintiff claimed that the holding cell’s design and structure was a dangerous or defective condition. Second, the plaintiff argued that the lack of a detoxification cell and state-of-the-art equipment in the dps were sufficient evidence to show a dangerous or defective condition. Third, the plaintiff argued that the placement of the heating unit and the metal brackets were dangerous or defective conditions that proximately caused Hickey’s death. 1 The plaintiff alleged that the building’s improper design prevented proper supervision and allowed the public building exception to be applied. de Sanchez v Genoves-Andrews (On Remand), 179 Mich App 661; 446 NW2d 538 (1989). Although we agree that a claim of improper design may allow the public building exception to be applied, that outcome is not required here. In de Sanchez, the Court of Appeals found that a dangerous condition existed because a holding cell specifically assigned for potentially suicidal patients in a mental hospital had dividing bars over the bathroom stalls. Id. at 668-669. However, the Court of Appeals also noted that "[t]he relationship between the inadequacy of the rest room structure for staff observance of patients’ activities within the rest room and the decedent’s suicide is too tenuous to permit recovery under Reardon . . . .” Id. (Emphasis added.) Similarly, just because the dps building was designed so that a detainee’s activities could not be observed at all times does not automatically allow recovery under the public building exception to be applied. The plaintiff here attempted to argue that the failure to have the holding cell in view of the guard station was a defective condition. As in Reardon, however, more effective supervision would have overcome this alleged design defect in the holding cell. Therefore, a claim based on the inability to observe Hickey because of the structural design of the dps is an insufficient basis on which to apply the public building exception. Before a claim under a building design defect can support invoking the immunity exception, such a design must more directly cause the injury at issue. 2 The plaintiff’s claim that msu shouíd have a detoxification cell and state-of-the-art equipment is also controlled by Reardon. In Reardon, we held that an area not "configured in the most modern design possible at the time” is not necessarily in a dangerous or defective condition. Id. at 417. During the trial, numerous witnesses testified about the appropriate designs, structures, and equipment necessary for a holding facility to care for intoxicated persons. The witnesses testified that under some circumstances, a holding facility should have a special detoxification cell for housing intoxicated persons. However, the only fact that was clearly established by all the testimony was that if the dps building had been up-to-date and had used state-of-the-art technology, Hickey’s suicide may have been detected earlier and possibly prevented. Under Reardon, proving that the msu facility was not up-to-date or using the most modern designs possible is insufficient. Therefore, the plaintiff cannot avoid msu’s governmental immunity defense by suggesting that state-of-the-art designs and technology were necessary. 3 The plaintiff also alleged during trial that the heating unit and the metal brackets were dangerous or defective because they were improperly placed even for a normal jail cell. In addition to the evidence about the design and structure of the holding cell in which Hickey committed suicide, the evidence presented showed that this holding cell was designated in the prisoner processing guidelines as one of the three rooms in which detainees should be held prior to transfer to a local jail. Additional evidence indicated that msu officers had used all of the holding cells to segregate detainees prior to transfer to the county jail since the mid-1970s, that the holding cells were never used for permanent detention, and that no one had ever been held in the dps building for more than a few hours before being transferred to another facility. The testimony at trial also indicated that no one prior to Hickey ever attempted suicide in any of the holding cells in the dps building. We find that our opinion in Bush resolves this allegation. In Bush, we concluded that whether a given room, in this case a cell, is dangerous or defective must be determined in light of the uses or activities for which it is specifically assigned. Id. at 731. In that case we held that a nonlaboratory classroom used for laboratory activities was dangerous or defective. Id. We focused on the fact that the classroom did not meet the requirements of a laboratory classroom, the specific use to which it was assigned at the time of the accident. Id. at 732. Msu’s holding cell was specifically intended and assigned for temporary detention. Even the plaintiff did not argue that the cell was used for any purpose except the temporary lockup of arrestees. We must, therefore, determine if this cell, with the installation of the heating unit, specifically used and assigned for temporary detention, was dangerous or defective. We hold that it was not. The experts testifying at trial, in addition to discussing whether a detoxification cell would have been more appropriate for holding Hickey, also reviewed whether any jail or holding cell could be "suicide proof.” The record indicates that even though the experts disagreed on many issues, they conceded, if questioned, that no jail or holding cell could be suicide proof. Some of the testimony indicated that even a detoxification cell was not suicide proof. We find this testimony to be conclusive. This particular cell had a combination sink and toilet, a water faucet and a towel bar/handle that could possibly provide an anchor for a similar suicide attempt. There would seem to be no limits on the possibility of suicide in an ordinary lock-up cell, particularly one that was only being used for temporary custody, even the temporary custody of an inebriated individual. To suggest that any physical feature of a jail cell, otherwise benign, that can conceivably become a part of a plan of one who is desperately driven to self destruction can become a "dangerous or defective condition” under the public building exception statute, simply crosses the outer limits of any reasonable reading of the intent of that statute when considered in the context of its history, purpose, and wording. If msu should have had a cell intended to be suicide proof, or if this suicide victim should have been confined in such a cell, those "should haves” may well have amounted to negligence, see, e.g., Motion v City of Cleveland, 839 F2d 240, 246 (CA 6, 1988) (the failure to build a suicide-proof cell only proves mere negligence), but they do not convert the heating unit and metal brackets in question into a dangerous and defective condition given the normal uses and purposes for which the cell was designed and assigned. At most, the plaintiff’s claim relates to safety in the public building, including any possible duty that the officers had to protect Hickey from harming himself. However, Hickey’s unfortunate death does not relate to the maintenance of a safe public building for the specific use and purpose for which it was assigned. Therefore, the dps temporary holding cell, the heating unit, and the metal brackets were not a dangerous or defective condition under the public building exception. Msu is entitled to immunity under the governmental tort liability act, MCL 691.1407; MSA 3.996(107), and the plaintiff’s claim is barred. III. 42 USC 1983 We must resolve only one . issue related to the plaintiff’s claim against Zezulka under 42 USC 1983: whether the plaintiff presented sufficient evidence of deliberate indifference to Hickey’s civil rights. If a defendant bases its motion for judgment notwithstanding the verdict on the insufficiency of the evidence as a matter of law to support the claim, a failure to object to an erroneous jury instruction does not prevent entry of judgment for the defendant. See Boyle v United Technologies Corp, 487 US 500, 513-514; 108 S Ct 2510; 101 L Ed 2d 442 (1988); City of St Louis v Praprotnik, 485 US 112, 118-121; 108 S Ct 915; 99 L Ed 2d 107 (1988). See also 9 Wright & Miller, Federal Practice & Procedure, § 2537, pp 599-600. In York v Detroit (After Remand), 438 Mich 744; 475 NW2d 346 (1991), we adopted the prevailing federal rule that a pretrial detainee’s due process rights under the Fourteenth Amendment are protected to the same extent as the rights guaranteed convicted prisoners under the Eighth Amendment. Thus, the plaintiff could not establish a constitutional violation in support of a § 1983 claim absent a showing of deliberate indifference, and mere negligence does not amount to deliberate indifference. Id. at 759. This, then, takes us to the question whether the evidence supports a finding that any of Zezulka’s acts or omissions constituted deliberate indifference toward Hickey’s civil rights as a pretrial detainee. The plaintiff alleged that Zezulka breached her duty of care and violated Hickey’s civil rights by failing to remove Hickey’s belt before he was placed in the dps holding cell and by failing to properly monitor him while he was in the cell. We conclude that such omissions on the part of Zezulka do not amount to deliberate indifference. We find the circumstances in Edwards v Gilbert, 867 F2d 1271 (CA 11, 1989), analogous and the court’s reasoning in that case especially persuasive. In Edwards, a juvenile convicted of sexual assault was held in a county jail to await sentencing. The juvenile committed suicide by hanging himself with a bedsheet. The evidence at trial showed that the guards checked the juvenile every fifteen minutes, but that this procedure did not prevent his suicide. The Edwards court analyzed the plaintiff’s due process claim, stating: Invocation of fourteenth amendment substantive due process also adds nothing to plaintiff’s case [because] "in regard to providing pretrial detainees with such basic necessities as food, living space, and medical care the minimum standard allowed by the due process clause is the same as that allowed by the eighth amendment for convicted persons.” In a prisoner suicide case, to prevail under section 1983 for violation of substantive rights, under either the eighth or fourteenth amendment, the plaintiff must show that the jail official displayed "deliberate indifference” to the prisoner’s taking of his own life. See Whitley v Albers, 475 US [312, 327; 106 S Ct 1078; 89 L Ed 2d 215 (1986)]; State Bank of St Charles v Camic, 712 F2d 1140, 1146 (CA 7, 1983). [Id. at 1274-1275. Emphasis added; citation omitted.] In Edwards, the court held that the defendants’ acts did not constitute deliberate indifference to a potential suicide by the prisoner where no suicide had been attempted or threatened. Id. at 1276. The court stated: In the absence of a previous threat of or an earlier attempt at suicide, we know of no federal court in the nation or any other court within this circuit that has concluded that official conduct in failing to prevent a suicide constitutes deliberate indifference. [Id. at 1275.] In this case, there was no evidence presented that Hickey threatened to commit suicide or attempted suicide before being placed in the holding cell by Zezulka. Nor was there any testimony, other than the fact that Hickey was intoxicated, that he behaved in such a manner as to put Zezulka on notice that he was likely to commit suicide. The Edwards court also rejected the plaintiff’s argument that the defendants were deliberately indifferent because they violated certain state laws and regulations regarding housing of juveniles in adult jails. Id. at 1276. The court noted that the United States Supreme Court has held that officials do not lose their qualified immunity when sued under § 1983 merely because their conduct violates a statutory or administrative provision. Davis v Scherer, 468 US 183, 194; 104 S Ct 3012; 82 L Ed 2d 139 (1984). Another federal court has also rejected the argument that failure to follow established procedures constitutes deliberate indifference sufficient to support a § 1983 claim. In State Bank of St Charles v Camic, 712 F2d 1146, the court held: Even if the defendants disregarded one or more of their established procedures, such as checking the cells every hour . . ., the actions of the defendants do not constitute deliberate disregard because the defendants had no actual knowledge that the detainee was a suicide risk. We agree. The plaintiff’s allegation that Zezulka violated certain mandatory dps regulations does not rise to the level of deliberate indifference, the state-of-mind required to sustain an action under § 1983 for a violation of a pretrial detainee’s civil rights. Therefore, we conclude that the plaintiff has presented insufficient evidence of deliberate indif ference on the basis of the acts or omissions of defendant Zezulka. At the close of the plaintiff’s proofs, the defendants moved for a directed verdict, arguing that the plaintiff presented no evidence of deliberate indifference. Subsequent to the entry of the judgment in this case, Zezulka renewed this argument in her motion for judgment notwithstanding the verdict. Because the plaintiff has presented insufficient evidence to support a claim under 42 USC 1983, we reverse the trial court’s denial of Zezulka’s motion for judgment notwithstanding the verdict on this claim and direct entry of judgment for defendant. IV. STATE GOVERNMENTAL IMMUNITY A We now turn to the plaintiff’s state law claims against defendant Zezulka. We must initially determine whether Zezulka is entitled to state governmental immunity. To be entitled to that immunity, Zezulka must show that she was: 1) acting during the course of [her] employment and acting, or reasonably believe[d] [she was] acting, within the scope of [her] authority; 2) acting in good faith; and 3) performing discretionary, as opposed to ministerial acts. [Ross, supra at 633-634. Citations omitted.] Although both parties agree that Zezulka satisfied the first two prongs of the state governmental immunity test, the parties argued extensively over whether Zezulka was performing a discretionarydecisional act. We note that the inquiries of immunity and negligence cannot be confused. Canon v Thumudo, 430 Mich 326; 422 NW2d 688 (1988). "[T]he relevant inquiry is not whether the specific act complained of was negligent, but whether it was discretionary-decisional in nature.” Id. at 350. In Ross, supra at 634-635, we decided that activities requiring personal deliberation, decision, and judgment are discretionary-decisional actions. However, acts requiring mere obedience to orders or performance of duties in which the individual had little or no choice are ministerial-operational activities. We also stated that the difference between discretionary-decisional acts and ministerial-operational acts was a difference between deciding to engage in an activity and the actual performance of that activity. We clarified this analysis in Green, supra at 12-13, when we stated that conduct involving routine administrative tasks or minor decision making, but not requiring the exercise of significant decision making, will be considered ministerial-operational in nature. Finally, we have also held that the failure to follow established policies or the failure to follow established security procedures are ministerial-operational actions to which governmental immunity would not apply. Ross, supra at 651; Bandfield v Wood, 421 Mich 774; 364 NW2d 280 (1985). With this background in mind, we undertake a factual analysis of the conduct at issue to determine whether Zezulka should be entitled to state governmental immunity. Green, supra at 9-10. B The plaintiff challenged Zezulka’s claim of state governmental immunity on two grounds. First, the plaintiff argued that the failure to remove Hickey’s belt when he was put into the dps holding cell was a ministerial-operational activity. Second, the plaintiff argued that the failure to properly monitor Hickey once he was lodged in the holding cell was also a ministerial-operational action barring Zezulka’s state governmental immunity claim. 1 Msu’s prisoner processing guidelines require the removal of all harmful objects from any detainees. The testimony about the removal of harmful objects showed that although the guidelines were not considered mandatory when they were written, the senior dps officers considered removing a detainee’s belt to be a mandatory requirement. These officers believed that the policy mandated the removal of all objects that could be harmful to the prisoner. These officers and additional experts also testified that a detainee’s belt is always harmful. However, other testimony, including statements by Zezulka, indicated that the dps guidelines were not specific directives, did not always require removal of a detainee’s belt, and should be based on the officer’s discretion. Although not every deviation from an established policy or rule will be considered a ministerial-operational action, Canon, supra at 350, the preparation of a detainee for holding was a ministerial-operational task that bars Zezulka’s claim of immunity. Similar to the nurse’s activities in Green, supra, the removal of harmful objects from a detainee was a routine practice that required only limited decision making. Furthermore, Zezulka wás not deciding to engage in an activity, but was performing an activity under an estab lished policy. Ross, supra at 635. Therefore, we find that Zezulka’s actions in preparing Hickey for confinement were ministerial-operational activities not entitled to state governmental immunity. 2 Zezulka’s alleged failure to properly monitor Hickey once he was put into the holding cell is also a ministerial-operational act that bars her state governmental immunity claim. In Willis v Dep’t of Social Services and Regulski v Murphy, companion cases to Ross, we held that the failure to supervise children during the course of recreation and classroom activities was a ministerial-operational activity not entitled to the protections of governmental immunity. Ross, supra at 640, 651. See Bandñeld, supra. Our focus in these two cases was clearly on the visual monitoring of the children involved and not on the broader aspects denoted by the term "supervision.” The Random House Dictionary of the English Language: Unabridged Edition, p 1911. If the actions in Willis, Regulski and Bandñeld were considered ministerial-operational in nature, clearly the failure to monitor Hickey once he was put in holding was a ministerial-operational activity that avoids Zezulka’s claim of governmental immunity. The testimony at trial indicated that the msu officer who brought in a detainee had the responsibility to properly monitor the detainee during detention. As with the failure to remove Hickey’s belt, Zezulka was applying an established policy that only required minor decision making. Therefore, any failure to monitor Hickey once he was put into the holding cell was a ministerial-operational act which bars Zezulka’s claim to governmental immunity. V. JURY INSTRUCTIONS Now that we have determined that Zezulka has no state governmental immunity defense to the plaintiff’s negligence claims, we must decide whether the trial court should have given Zezulka’s requested standard jury instructions on comparative negligence, SJI2d 11.01, and an instruction on intervening cause. Zezulka timely requested the comparative negligence and intervening cause instructions, but the trial court refused to give them. The trial court found that the standard jury instructions on comparative negligence and the requested instruction on intervening cause would destroy any cause of action for wrongful death based on a jail suicide. A The defendant states that there is no record of the specifically requested instruction on the issue of intervening cause; therefore, we look first to the standard jury instructions to determine whether such an instruction would be appropriate in this case. The standard instructions do not include an instruction that would allow a jury to find that conduct by the plaintiff himself was an intervening, superseding cause of the plaintiff’s harm, to the extent that the defendant, though negligent, is relieved from liability. See SJI2d 15.05 and 15.06. The note on use accompanying SJI2d 15.05 states that the instruction should be used only when there is evidence that the sole proximate cause of plaintiff’s harm may have been the conduct of a third person. The note on use accompanying SJI2d 15.06 makes a similar recommendation, limiting the use of that instruction to cases where there is evidence that an outside force may have been the sole proximate cause of the plaintiff’s injury. While neither of these standard jury instructions would have been appropriate on the facts of this case, we must decide whether the trial court should have crafted its own instruction with regard to intervening cause. Like the standard instructions, most of the cases reviewing the applicability of an intervening cause jury instruction are concerned with the intervention of a third party or outside force. See, e.g., Parks v Starks, 342 Mich 443; 70 NW2d 805 (1955); Johnston v Harris, 387 Mich 569, 574-575; 198 NW2d 409 (1972) (intentional acts of a third party can be superseding events that bar the defendant’s liability). While there is some support for the theory that the conduct of the plaintiff may also be a superseding cause of the plaintiff’s injury, see 57A Am Jur 2d, Negligence, § 650, p 607, we are not persuaded that in this case an instruction with regard to intervening cause was appropriate. A superseding cause is one that intervenes to prevent a defendant from being liable for harm to a plaintiff that the defendant’s antecedent negligence is a substantial factor in bringing about. See 2 Restatement Torts, 2d, § 440, p 465. We have previously held that in order to be a superseding cause, thereby relieving a negligent defendant from liability, an intervening force must not have been reasonably foreseeable. Davis v Thornton, 384 Mich 138, 148; 180 NW2d 11 (1970); Comstock v General Motors Corp, 358 Mich 163, 178-180; 99 NW2d 627 (1959). While a defendant will not be liable for injury caused by an intervening force that was not reasonably foreseeable, [i]f the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby. [2 Restatement Torts, 2d, § 449, p 482.] This statement has also been made with regard to the acts of a plaintiff in relation to a defendant’s negligence: Generally, where the defendant’s negligence has created a stimulus for the plaintiff’s act there is no break in the chain of events which would prevent the negligent defendant’s liability. [57A Am Jur 2d, Negligence, § 650, p 607.] This is so because, "[i]f the acts of the plaintiff are within the ambit of the hazards covered by the duty imposed upon the defendant, they are foreseeable and do not supersede the defendant’s negli gence.” Id. at § 652, p 609. Thus, where the defendant’s negligence consists in enhancing the . likelihood that the intervening cause will occur, Johnston v Harris, supra at 573, or consists in a failure to protect the plaintiff against the very risk that occurs, Prosser & Keeton, Torts (5th ed), § 44, p 303, it cannot be said that the intervening cause was not reasonably foreseeable. In Moning v Alfono, 400 Mich 425, 441; 254 NW2d 759 (1977), we made a similar finding, quoting Prosser, supra: "If the intervening cause is one which in ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, he may be negligent, among other reasons, because he has failed to guard against it; or he may be negligent only for that reason.” Thus, in Moning, we found that by marketing slingshots directly to children, the defendants had created the risk that a child would use the slingshot, and we concluded that the defendants could not be relieved from liability by the fact that the risk to which they subjected the plaintiff had indeed come to pass. In this case, Zezulka owed Hickey a duty of ordinary care for his safety, requiring her to use reasonable care under the circumstances. Generally, a person is under no duty to aid or protect another individual; however, a special relationship between the parties may give rise to such a duty. 2 Restatement Torts, 2d, § 314A, p 118. The custodial relationship between the dps and Hickey is such a special relationship that gives rise to the duty to give aid and protect from harm. Id. Zezulka did not challenge on appeal the issue of her duty toward Hickey; therefore, it is not subject to our review. MCR 7.302(F)(4)(a). The crux of the plaintiff’s case is that Zezulka breached her duty to protect Hickey from harm by failing to act with ordinary care and that her negligence consisted of her failure to remove Hickey’s belt and her failure to supervise Hickey while he was in the dps holding cell. The jury found that Zezulka was negligent. This issue also was not appealed and therefore is not subject to our review. One of the factors in determining whether certain conduct constitutes negligence is an assessment whether the defendant knew or should have known that his conduct was likely to result in harm — "should the defendant have reasonably foreseen that what he was doing or had done up to then might cause harm — if so, he was negligent.” Davis, supra at 146. In fact, negligence cannot be found to exist "unless an actor, who is under a duty to act, fails to act after he has perceived or should have perceived an unreasonable risk of harm to another.” Samson v Saginaw Professional Bldg, Inc, 393 Mich 393, 406; 224 NW2d 843 (1975). Therefore, on the facts of this case, a finding by the jury that Zezulka’s failure to remove Hickey’s belt, and her failure to properly supervise him in the dps holding cell, constituted negligence would be nonsensical if Hickey’s subsequent intentional act of harming himself was not reasonably foreseeable by Zezulka. When a defendant owes a duty of ordinary care to give aid to and to protect an individual from harm because of the special relationship between the parties, and the plaintiff’s claim is that the defendant was negligent in failing to prevent or in creating a stimulus for the plaintiff’s own act that intervened to cause him harm, it cannot be said that the intervening act is a superseding cause of his injury. Thus, by negli gently enhancing the likelihood of Hickey’s intervening act of suicide, and by failing to protect Hickey from the very risk she created, Zezulka cannot be relieved from liability because the risk she created actually came to fruition. "A peril produced in part, at least, by defendant’s negligence does not excuse the negligence.” Adelsperger v Detroit, 248 Mich 399, 402; 227 NW 694 (1929). Therefore, an instruction to the jury that, after finding Zezulka negligent, it could relieve Zezulka of liability for her negligence if it found that Hickey’s act of suicide was not reasonably foreseeable, was neither necessary nor appropriate in this case. We agree with the Court of Appeals that the trial court did not err by refusing to give such an instruction. Hickey, supra at 617. B The signers of this opinion also agree with the Court of Appeals that a comparative negligence instruction is improper in a jail suicide case, Hickey, supra at 617. The standard jury instruction requested by Zezulka provides as follows: Plaintiff’s negligence, if any, does not bar a recovery by the plaintiff against the defendant, but the total amount of damages to which the plaintiff would otherwise be entitled shall be reduced by the percentage that plaintiff’s negligence contributed as a proximate cause to [his/her] [injury/ property damage]. This is known as comparative negligence. [SJI2d 11.01. Emphasis added.] The note on use accompanying SJI2d 11.01 states that the instruction should be used only where there is a question for the jury regarding the negligence of the plaintiff. Therefore, this standard instruction would be appropriate in this case only if the evidence showed that Hickey acted negligently in harming himself. In the case before us, the trial court determined that Hickey’s conduct was intentional, rather than negligent, for purposes of applying the standard comparative negligence jury instruction. Therefore, because the standard jury instruction should only be given when the plaintiff’s negligence is a partial proximate cause of the injuries that occurred, and in this jail suicide case the action taken by the decedent was voluntary and intentional, we find that the standard jury instruction regarding comparative negligence was not proper here. While the trial court did not err by refusing to give the standard jury instruction on comparative negligence, we must consider whether some instruction with regard to comparative fault would have been appropriate. In deciding this issue, we look to prior decisions by this Court for guidance. This Court initially accepted the doctrine of comparative negligence in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979); see also Kirby v Larson, 400 Mich 585; 256 NW2d 400 (1977). Throughout our analysis, although . we continuously referred to the application of the comparative "fault” of the parties, Placek at 660-662; Kirby at 642-645, we also stated that the doctrine only applies when the negligence of the plaintiff became an issue in the case. It is doubtful that we envisioned allowing an apportionment of fault when a plaintiff undertakes a voluntary and intentional activity which causes harm to himself, where a defendant has a duty to protect that plaintiff from harm, including injury by his own intentional acts. Zezulka does not dispute that our courts and other jurisdictions do not extend comparative fault analysis to cases where a party acted intentionally in causing harm. Rather than apportioning fault between the parties, one of whom was only negligent and one of whom acted intentionally, courts have placed one hundred percent of the fault on the party whose actions were intentional. Thus, a defendant who intentionally injures a plaintiff is not entitled to mitigation of damages on the basis of the fact that the plaintiff’s negligence was also a proximate cause of his injury. See Vining v Detroit, 162 Mich App 720, 727; 413 NW2d 486 (1987); Melendres v Soales, 105 Mich App 73, 82; 306 NW2d 399 (1981). In Melendres, the Court of Appeals reasoned that in such situations the defendant had not been negligent and therefore there were no degrees of negligence to compare. Further, in cases where the plaintiff’s injury is caused at least in part by his own intentional act, as in the case of a person who commits suicide, the general rule is that fault is not apportioned between the plaintiff and a negligent defendant, and instead the plaintiff’s claim is barred. Schwartz, Comparative Negligence (2d ed), § 5.5, p 110 (using the example of a plaintiff who knowingly and voluntarily steps in front of a defendant’s speeding car). However, as we noted above in section v(a), a jail suicide case presents an exception to the rule that there is no duty to give aid to and protect another person from harm. Therefore, if apportionment of fault is not available, a defendant who negligently causes a person’s suicide will bear the full burden of the plaintiff’s damages, despite the fact that the plaintiff acted intentionally in harming himself. We must determine, then, if an apportionment of fault is appropriate in such a case. Zezulka has made no argument to this Court in support of her claim that the trial court erred by refusing to give a comparative fault instruction in this case. The plaintiff notes that Zezulka breached her duty to use ordinary care in protecting Hickey from harm, including his own intentional act of harming himself. The plaintiff argues, then, that it would be nonsensical to allow Zezulka to plead in mitigation of damages the very occurrence she negligently failed to prevent. We agree with the plaintiff that apportionment of fault on the basis of the fact that a plaintiff intentionally harmed himself is not appropriate in a jail suicide case. It has been said that the doctrine of contributory negligence "is an expression of the highly individualistic attitude of the common law, and its policy of making the personal interests of each party depend upon his own care and prudence.” Prosser, supra at § 65, p 452. See also 2 Restatement Torts, 2d, § 463, comment b, p 506. In adopting a system of comparative negligence, this Court abandoned only the effect of contributory negligence as a total bar to a plaintiff’s recovery, to the extent that a plaintiff’s negligent contribution to his own injury would merely reduce his award of damages. Placek, supra at 650, n 1. However, a jail suicide presents a situation where a defendant has a duty to give aid to and protect another person in the defendant’s custody, even from his own intentional acts. Thus, a defendant in a case such as this breaches her duty by negligently failing to prevent another person’s violation of the standard of care with respect to his own safety. We hold then, that in a jail suicide case, a negligent defendant cannot plead, in mitigation of damages, the fact that a plaintiff, to whom she owed a duty, violated a standard of care for his own protection. Further, we note that the conclusion that fault should not be apportioned where a party acted intentionally is based in part on the idea that intentional and voluntary conduct differs from negligence not only in degree, but also in kind. Prosser, supra at §65, p 462. Intentional and voluntary conduct, such as that undertaken by Hickey in this case, is qualitatively different from levels of negligence, and therefore is not capable of intelligent comparison by the courts or by a jury. Furthermore, because there are no degrees of intentional conduct, as there are with negligence, an attempted comparison would logically lead to a defeat of any claim based on one’s negligence that results in a suicide where there is a duty to protect another person from' harm. We find it difficult, in the situation before us, to envision a jury instruction that would accurately advise a jury on how to apportion fault between these two distinct types of conduct. Therefore, the signers of this opinion would conclude that the trial court did not err in refusing to give the standard jury instruction regarding comparative negligence, and we would hold that apportionment of fault is not appropriate in a jail suicide case. VI. CONCLUSION We hold that the plaintiff’s claims against msu are barred by governmental immunity. Because the holding cell was not dangerous or defective for the purpose for which it was intended, the public building exception, MCL 691.1406; MSA 3.996(106), is inapplicable and cannot be used to impose liability on msu. Therefore, the decisions of the Court of Claims and the Court of Appeals are reversed, and this case is remanded to the Court of Claims for entry of a judgment in favor of msu. We also hold that, applying the proper deliberate indifference state-of-mind requirement, the plaintiff presented insufficient evidence to support the claim, and we reverse the trial court’s denial of Zezulka’s motion for judgment notwithstanding the verdict on the § 1983 claim and direct entry of judgment for the defendant. We agree with the trial court and the Court of Appeals that Zezulka is not protected by state governmental immunity because her alleged improper actions were ministerial-operational in na ture. Further, we find that the trial court correctly refused to give a jury instruction regarding intervening cause. Finally, the signers of this opinion find no. error in the trial court’s failure to instruct on comparative fault. The jury verdict form in this case directed the jury to make separate findings with regard to whether Zezulka was negligent and whether she violated Hickey’s civil rights. The jury answered both of these questions in the affirmative. The form next directed that if either of these questions were answered "yes,” the jury should then answer a third question: "Was Defendant Linda Zezulka’s negligence and/or violation of John Joseph Hickey’s civil rights a proximate cause of his death?” The jury answered this question "yes.” We observe that, even though the verdict left some question whether or not the jury found proximate cause with regard to only one or both of the claims, both the negligence claim and the civil rights claim were based on precisely the same conduct by Zezulka. It therefore would have been illogical for the jury to have found proximate cause on one claim and not the other. Thus, we are compelled to conclude that either claim would support the jury’s verdict. Thus, having concluded that Zezulka should have been granted judgment notwithstanding the verdict on the civil rights claim, we direct entry of judgment for Zezulka on that claim. However, a majority of the Court has found error in the trial court’s failure to instruct on comparative fault. Therefore, we reverse the decision of the Court of Appeals with regard to the negligence claim and remand for a new trial pursuant to MCR 2.611(A)(1)(g), which provides: (A) Grounds. (1) A new trial may be granted to all or some of the parties, on all or some of the issues, whenever their substantial rights are materially affected, for any of the following reasons: (g) Error of law occurring in the proceedings, or mistake of fact by the court. [Emphasis added.] Because the trial court’s error in failing to instruct on comparative fault does not affect the jury’s finding that Zezulka’s negligence was a proximate cause of Hickey’s injury, the issues to be determined on the retrial ordered are limited to the amount of damages and comparative fault; the range of appropriate proof within these parameters is for the trial court to determine. Mallett, J., concurred with Brickley, J. Levin, J., concurred with Brickley, J., except with regard to the building exception issue. Riley, J. While I concur with the analysis of parts n, hi, iv, and v(A) of the lead opinion, I disagree with the holding in v(b) that a comparative fault instruction was unnecessary in this case. Considering the finding by the jury that Mr. Hickey’s suicide was a foreseeable consequence of Officer Zezulka’s negligence in this custodial setting, I agree with the finding that no intervening cause instruction need be given. I believe, however, that a comparative fault instruction should have been given. As a general rule, a plaintiff may not recover damages in negligence for the intentional suicide of another. Where a plaintiff intentionally commits an act that brings about an injury, the risk of which was increased by the defendant’s negligence, the plaintiff ordinarily loses any cause of action he might have because of defendant’s negligence. Where, however, the defendant assumes a duty to protect the plaintiff from that injury, as in this involuntary custody situation, I agree that the plaintiff should not lose his cause of action. I disagree, however, that the other extreme should be adopted — that the defendant then assumes all responsibility, and liability, for injuries that the plaintiff intentionally commits upon himself. The assumption of a duty to protect the decedent while in defendant’s custody merely establishes a legal basis for holding defendant negligent. The mere existence of a duty does not automatically lead to the conclusion that the decedent’s fault should not be considered. Decedent’s fault, or contributing cause of his injury, is his intentional and unreasonable exposure to the danger created by defendant’s negligence. 2 Restatement Torts, 2d, § 466, p 511. The conceptual difficulty which appears to blind the signers of the lead opinion arises from the use of the word "negligence” in Placek’s reference to the conddct of the plaintiff. It is clear from Placek that the goal of the Court was to establish "a fair system of apportionment of damages.” Id. at 660. This goal is not served; rather, it is thwarted when a slightly negligent defendant is held liable for one hundred percent of the damages caused principally by the wrongful intentional conduct of a plaintiff. Jurors are capable of reaching a rational and sensible balance between the decedent’s fault and the negligent jailer’s fault. Comparison of "qualitatively different” conduct, which the signers of the lead opinion find to be "not capable of intelligent comparison,” is not only possible, but is required by this Court’s adoption of "pure” comparative fault. Many courts, including Michigan courts, have successfully compared the fault of both parties in similar instances. With the proper instruction, a jury will not necessarily preclude recovery, for the plaintiff by finding the plaintiff one hundred percent at fault because of his intentional act of suicide. An instruction on comparative fault is necessary to apportion the damages between two parties responsible for the injury. In the present case, the jury found Officer Zezulka negligent for failing to remove Mr. Hickey’s belt. While she should be held accountable for enhancing the risk of suicide, Mr. Hickey should also be responsible for his own conduct. Cavanagh, C.J., and Boyle and Griffin, JJ., concurred with Riley, J. Levin, J. I write separately because the findings of the Court of Claims judge support application of the building exception to governmental immunity, and the judgment entered on that basis for the plaintiff. I John Hickey was arrested for drunken driving by Linda Zezulka, an officer of the Michigan State University Department of Public Safety. He was taken to the Department of Public Safety. He was placed in a holding cell at 3:20 a.m. Although an msu Department of Public Safety rule mandated the removal of potentially danger ous personal articles, Zezulka did not remove Hickey’s belt or any other article of clothing. At 3:57 a.m., Zezulka went to the holding cell to remove Hickey for transportation to the Ingham County Jail. She found that he had hanged himself with a noose he first fashioned from his belt and socks, and then attached to a protruding metal bracket holding a heating unit to the wall of the cell. He was pronounced dead on arrival at a hospital. Hickey’s father, John Hickey, Jr., filed an action against Zezulka and other defendants alleging negligence and intentional and grossly negligent acts in violation of Hickey’s civil rights under 42 USC 1983. He also commenced an action against Michigan State University in the Court of Claims, asserting that the holding cell Hickey was placed in was in a dangerous or defective condition and that msu had also violated Hickey’s civil rights under 42 USC 1983. A jury found that Zezulka was negligent and had violated Hickey’s civil rights, and that this was a proximate cause of his death, and awarded $1 million in damages. The Court of Claims found that the holding cell was in a dangerous and defective condition and that this was a proximate cause of Hickey’s death, and awarded $650,000 in damages. Both awards were affirmed by the Court of Appeals._._ II The finder of fact in the Court of Claims was the trial judge in the negligence action. The judge found that the cell in which Hickey was placed was used not only for temporary detention, but for temporary detention of inebriated persons: Now, intoxication has been a problem for years, and I don’t think it’s any secret to Michigan State University in dealing with the students on their campus that they deal on a regular basis with intoxicated individuals. . . . [I]t appears that their procedure is pretty consistent with other agencies in dealing with persons arrested for driving while intoxicated; namely, that they are held until such time as they may safely be released. And the purpose of holding, as [defense expert] Mr. Kamka stated, was for the detoxification process. Now, Michigan State University, in the opinion of this Court, knew that intoxicated persons would be placed in the facility, and the Court would so find. And if it was only for holding purposes, then it should not have been used for purposes which went beyond holding .... I guess the bottom line, though, is that if Michigan State University had individuals who were intoxicated, then they should not have placed individuals in cells which were not designed for persons who were intoxicated. . . . Michigan State, in essence, has admitted that it had no detoxification cell. It [Room 171] was being used, in the opinion of this Court, for precisely that purpose. The judge further found that, used as a cell for the temporary detention of inebriated persons, the cell was dangerous and defective: But the Court is of the opinion, based on the testimony and the testimony which the Court deems credible and applying not a standard of preponderance of the evidence but a standard ... of beyond a reasonable doubt, is of the opinion that the facility here was improper by design in the specific manner alleged, the bench location and the location of the heating device. And the Court’s opinion in large part, in very large measure, rests on the testimony of [defense expert] Mr. Kamka. [T]he Court is of the opinion, and disregarding the question of the lighting, that Mr. Kamka’s testimony was clear and unequivocal that the heating device should have been recessed or in a position other than where it was located. But the Court is of the opinion that Mr. Kamka himself indicated he would have recommended that the heating device be removed and that it should not have been placed in the position in which it was located. Now, this device was in such close proximity to anyone standing on the bench that it was a ready-made tool for anyone in a position to want to use it. The judge also found that the defect was a proximate cause of Hickey’s death: The Court is of the opinion that the existence of the heating device in the form in which it existed over the bench was a proximate cause of the death of the decedent. The judge further found that msu had knowledge of this defect and failed to take action to protect those confined in the cell: So even if I’m to disregard all other testimony and rely primarily on that of Mr. Kamka, the Court is of the opinion that the experience was such that no holding facility should be built with an exposed device which provides access for suicide. And I find it very difficult to even conceive of building a modern-day facility — and I’m not talking 1984 or ’85; I’m talking 1970 and even before that — with a device protruding, from a wall in such close proximity to a bench or that which is able to be reached by someone who has been placed in such a cell. Now, Michigan State University, in the opinion of this Court, knew that intoxicated persons would be placed in the facility, and the Court would so find. And if it was only for holding purposes,, then it should not have been used for purposes which went beyond holding in the sense that it was argued to this Court. In conclusion on that issue, Michigan State, in essence, has admitted that it had no detoxification cell. [Room 171] was being used, in the opinion of this Court, for precisely that purpose. Michigan State had prior knowledge of the use of alcoholic beverages on the campus, the need or the reality of arresting individuals who are overintoxicated or are intoxicated, over-imbibed or whatever, and yet chose to use a cell which was not designed for that purpose for temporary placement of such individuals. In the opinion of this Court, that was an improper use of the cells or, in the specific, of the cell in question here relative to the placement of this individual. The finder of fact thus concluded that the cell was specifically assigned for temporarily holding persons arrested for drunk driving, and not merely for "temporary detention.” The question, therefore, is not whether "any jail or holding cell could be [made] 'suicide proof,’ ” but, rather, having in mind that the holding cell was used as. a temporary holding cell for inebriated persons, whether it was dangerous or defective to the extent that, had it been more carefully designed or constructed, or equipped with safety devices, the suicide of John Hickey would have been less likely to have occurred. Bush v Oscoda Area Schools, 405 Mich 716, 730; 275 NW2d 268 (1979). The majority concludes that the cell was "specifically intended and assigned for temporary detention.” There was, however, testimony that the cell was used, on many occasions, as a temporary detention cell for persons arrested for ouil, and the finder of fact so found. The issue in Bush was whether a schoolroom, temporarily being used as a science laboratory, was dangerous or defective. A student had been injured by an alcohol explosion during a laboratory experiment. This Court said: The trier of fact must determine whether the room was defective when used as a physical science classroom and, if so, whether the defect was a cause of Foxworth’s injuries. Conceding that the alleged ’’course of classroom conduct . . . would be dangerous even in a properly equipped labora tory,” it is yet possible that if the room were properly equipped the accident would not have occurred or the injuries would have been less severe. The question of the significance of the defect in relation to the alleged injuries is a question of fact. [Id. at 732. Emphasis added.] This Court in Bush thus held, in effect, that although no laboratory can be made "danger proof,” the trier of fact could nevertheless conclude that it was defective, and that the defect was a cause of the injury. Accordingly, the absence of expert testimony that a cell might be made "suicide proof” is not determinative._ If the plaintiff had specifically argued that a lack of supervision allowed the public building exception to apply, as was suggested several times during the trial, his claim would fail. The failure to supervise clearly implicates the conduct of individuals, not any danger presented by the physical condition of a public building, and would be barred by Reardon and Bush, supra. The Court of Appeals relied on Davis v Detroit, 149 Mich App 249; 386 NW2d 169 (1986), which stated that the lack of a detoxification cell created a defective and dangerous condition allowing application of the public building exception. Because Davis was decided prior to Reardon, it is of questionable authority. In view of our holding regarding the insufficiency of the evidence of deliberate indifference, we need not deal with Zezulka’s claim that she is entitled to qualified immunity despite having failed to properly plead that affirmative defense. With regard to the jury instruction given by the trial court, it necessarily follows from our holding today that a proper instruction must incorporate a deliberate indifference standard of liability. The federal circuit courts have applied the deliberate indifference standard to due process claims in a number of jail suicide cases. These courts have found that the negligent failure to prevent a suicide is an insufficient basis upon which to rest a Fourteenth Amendment due process claim under 42 USC 1983. Molton v City of Cleveland, supra; Partridge v Two Unknown Police Officers of the City of Houston, 791 F2d 1182, 1187 (CA 5, 1986); Roberts v City of Troy, 773 F2d 720 (CA 6,1985); State Bank of St Charles v Camic, 712 F2d 1140, 1146 (CA 7,1983). As in Green v Berrien General Hosp Auxiliary, Inc, 437 Mich 1; 464 NW2d 703 (1990), this case must be decided on the basis of the law as it existed before the Legislature’s amendments of the governmental tort liability act, MCL 691.1401-691.1413; MSA 3.996(101)-3.996(113), in 1986. 1986 PA 175. If the plaintiff had claimed that Zezulka failed to evaluate Hickey as suicidal, that claim would fail. Under Canon, supra at 338,. the failure to evaluate Hickey as suicidal must be considered a discretionary-decisional action that would be entitled to governmental immunity. However, that is not the claim here. Instead, the plaintiff’s second claim rests on Zezulka’s failure to properly supervise Hickey. A prisoner suicide presents a unique situation where the state has voluntarily taken complete and total control of the plaintiff’s actions and well-being. Because of this unique nature, we limit our holding to similar jail- or incarceration-type situations. Therefore, we do not decide whether a plaintiff’s intentional conduct could be a superseding cause of the plaintiff’s injury in other situations not similar to the facts of this case. We have often cited with approval the sections of the Restatement dealing with superseding cause. See, e.g., Johnston v Harris, supra; Sweet v Ringwelski, 362 Mich 138; 106 NW2d 742 (1961); Comstock v General Motors Corp, 358 Mich 163; 99 NW2d 627 (1959). We find these sections instructive on this issue not previously decided by this Court. We note as well that the comment accompanying the standard jury instruction regarding comparative negligence cites Placek, supra, indicating that the standard instruction, which we have already said would not be appropriate in this case, is derived from this Court’s reasoning and our decision in Placek. In fact, our Brother Justice Griffin questioned Zezulka’s counsel during oral argument whether she had abandoned her claim that a comparative negligence instruction should have been given, and she responded in the affirmative. See Prosser, supra at § 67, p 478, noting that in some jurisdictions that recognize the law of strict liability in tort, apportionment of damages, on the basis of the plaintiff’s negligence, is not available: A few courts have held the doctrine [of comparative negligence] to be entirely inapplicable to actions for strict products liability, reasoning that to compare a user’s fault with the maker’s no-fault responsibility is to mix apples with oranges, and that to reduce the user’s damages would undermine the strict products liability goal of encouraging manufacturers to anticipate and protect against consumer negligence. A strict products liability case is analogous to a jail suicide case because in both situations the plaintiff’s fault exceeds the defendant’s in both degree and kind, and the defendant’s duty encompasses the foreseeable violation of the standard of care by the plaintiff. While this Court has not adopted the doctrine of strict products liability, see Prentis v Yale Mfg Co, 421 Mich 670; 365 NW2d 176 (1984), we nevertheless find this reasoning persuasive and supportive of our holding here that Zezulka is not entitled to mitigation of damages based on the fault of Hickey in taking his own life. See Prosser & Keeton, Torts (5th ed), § 44, p 311; Jamison v Storer Broadcasting Co, 511 F Supp 1286 (ED Mich, 1981); Dist of Columbia v Peters, 527 A2d 1269, 1275 (DC App, 1987); Lancaster v Montesi, 216 Tenn 50; 390 SW2d 217 (1965); Stasiof v Chicago Hoist & Body Co, 50 Ill App 2d 115; 200 NE2d 88 (1964); Wallace v Bounds, 369 SW2d 138 (Mo, 1963); Scott v Greenville Pharmacy, Inc, 212 SC 485; 48 SE2d 324; 11 ALR2d 745 (1948). See McLaughlin v Sullivan, 123 NH 335; 461 A2d 123 (1983); Seiler v Bethany, 746 P2d 699 (Okla Ct App, 1987). Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979). This problem was discussed in Prosser & Keeton, Torts (5th ed), § 65, p 453: It is perhaps unfortunate that contributory negligence is called negligence at all. "Contributory fault” would be a more descriptive term. Negligence as it is commonly understood is conduct which creates an undue risk of harm to others. Contributory negligence is conduct which involves an undue risk of harm to the actor himself. Negligence requires a duty, an obligation of conduct to another person. Contributory negligence involves no duty, unless we are to be so ingenious as to say that the plaintiff is under an obligation to protect the defendant against liability for the consequences of the plaintiff’s own negligence. Ante, p 444. See Davis v Detroit, 149 Mich App 249; 386 NW2d 169 (1986), York v Detroit (After Remand), 438 Mich 744; 475 NW2d 346 (1991), Molton v City of Cleveland, 839 F2d 240 (CA 6, 1988), Dezort v Hinsdale, 35 Ill App 3d 703; 342 NE2d 468 (1976) (the court found that the issue of contributory fault of the decedent in a jail suicide case was a question for the jury), and Belen v Harrell, 93 NM 601, 604; 603 P2d 711 (1979) (the trial court erred in refusing to instruct the jury regarding contributory negligence in a jail suicide case). It may be true, as noted in the lead opinion, that a few jurisdictions do not apply comparative fault principles in strict products liability cases (ante, p 444, n 11). However, many other jurisdictions do apportion fault in such cases. See, e.g., Sun Valley Airlines, Inc v Avco-Lycoming Corp, 411 F Supp 598 (D Idaho, 1976); Butaud v Suburban Marine & Sporting Goods, Inc, 555 P2d 42 (Alas, 1976). In Michigan, the application of comparative fault principles to products liability cases is required by statute. MCL 600.2949(1); MSA 27A.2949(1). This statute applies to all products liability actions, including those based upon breach of warranty. Karl v Bryant Air Conditioning, 416 Mich 558, 569; 331 NW2d 456 (1982). Such an action generally focuses upon the fitness of the product, irrespective of the defendant’s conduct.” Prentis v Yale Mfg Co, 421 Mich 670, 692; 365 NW2d 176 (1984). It is, therefore, apparent that courts and juries are able to compare different kinds of conduct and that such a comparison is even required by statute in certain actions, MCL 691.1406; MSA 3.996(106). The rule — Police Services General Order Number 82-09 — provides: No prisoner shall be left unattended unless he is first searched and secured in a segregation room. All offensive and defensive weapons or other objects which could harm an officer, the prisoner or other prisoners shall be removed and properly secured. The jury found the other defendants negligent, but that their negligence was not a proximate cause of Hickey’s death. Brickley, J., ante, p 426. Id. In Reardon v Dep’t of Mental Health, 430 Mich 398, 410; 424 NW2d 248 (1988), this Court referred to Bush and Lockaby v Wayne Co, 406 Mich 65; 276 NW2d 1 (1979), as cases where the building exception applies when the design or use is dangerous or defective in light of the uses or activities for which the building has been designed or is being used. Ante, pp 425-426. The opinion refers to "a” cause. The defect here alleged, thus, need not have been the sole cause, and the triers of fact properly found that the building defect and Zezulka’s negligence were both proximate causes of the injury.

Leave to file a brief amicus curiae is granted. We note the argument that the Court has by its discussion of MCL 600.9947; 27A.9947 foreclosed consideration of the question of the state’s ultimate responsibility to pay the costs of appointed appellate counsel (439 Mich 1, 13-14). We observe that resolution of that question was not necessary to decision of this case and that this Court has not adjudicated the merits of that question. Reported at 439 Mich 1.

Per Curiam. The question presented by the defendant’s delayed application for leave to appeal is whether a person whose conviction has been reversed or otherwise set aside, but who nonetheless remains in the custody of the Department of Corrections, is subject to the 180-day rule of MCL 780.131; MSA 28.969(1) and MCL 780.133; MSA 28.969(3). The circuit court and the Court of Appeals have held that the rule does not apply to such a defendant. We affirm. I A seven-count felony information was filed against defendant on December 18, 1984. Initially, defendant pleaded guilty of assault with intent to commit murder, armed robbery, and possession of a firearm during the commission of a felony. He was sentenced to fifteen to twenty-five years imprisonment for the assault and robbery convictions and to a consecutive two-year term for the felony-firearm conviction. On June 16, 1986, defendant filed a motion to withdraw his guilty plea on the basis that a transcript of the plea proceeding could not be located or prepared. On June 27, 1986, the trial court granted defendant’s motion to withdraw and set aside his guilty plea. On April 1, 1987, defendant pleaded nolo con tendere to all seven charges. He was again sentenced to prison, this time with his longest term being ten to fifteen years, consecutive to the mandatory two-year sentences for the felony-firearm convictions. II The issue presented by the instant appeal arises from the fact that from the time his motion to withdraw the guilty plea was granted until shortly before the nolo contendere plea, the defendant remained in the custody of the Department of Corrections at the Kinross Correctional Facility, even though he was not being held pursuant to any conviction and sentence. Shortly after the expiration of 180 days after the setting aside of his initial plea, the defendant moved to dismiss on the basis of MCL 780.131; MSA 28.969(1) and MCL 780.133; MSA 28.969(3). The circuit court denied the motion, and shortly thereafter the defendant tendered his nolo contendere plea to the charged offenses. After sentencing, the defendant filed a motion to withdraw the nolo contendere plea, raising speedy trial and 180-day rule issues. The motion was again denied by the circuit court. Defendant appealed, claiming that his convictions must be reversed because his case was not scheduled for trial within 180 days of June 27, 1986, the date on which his initial guilty plea was set aside by the trial court. The Court of Appeals affirmed in an unpublished per curiam opinion. It rejected defendant’s contention, relying principally on the context of the language of § 1 of the statute. The Court said: requires that the Department of Corrections accompany the notice with a statement as to "the term of commitment under which the prisoner is being held, . . . the time remaining to be served on the sentence, . . . the time of parole eligibility of the prisoner, and any decisions of the parole board relating to the prisoner.” All of this information would be pertinent only to an inmate who is serving a sentence which is independent of any charges which resulted in a conviction which was reversed on appeal, or set aside on a withdrawn guilty plea. Therefore, we conclude that within the context of § 1, an "inmate” must be a prisoner who is serving a sentence unrelated to the pending charges. [Unpublished opinion per curiam of the Court of Appeals, decided October 8, 1990 (Docket No. 99305), pp 2-3.] Section 1 of the act requires that the Department of Corrections give written notice of the inmate’s location to the prosecuting attorney of the county in which the warrant, indictment, information or complaint is pending. Unless the prisoner was somehow "lost” in the penal system, such notice would hardly be deemed necessary in situations such as defendant’s because the prosecutor to whom the notice would be sent is the one who caused the confinement initially. Further, § 1 The defendant has filed a delayed application for leave to appeal to this Court. III This issue has arisen a number of times in Court of Appeals decisions, with conflicting results. Cases such as People v Pixler, 134 Mich App 143; 350 NW2d 765 (1984), and People v Holbrook, 180 Mich App 710; 447 NW2d 796 (1989), have held that the statute does not apply to persons in the posture of defendant Chambers. On the other hand, cases such as People v Walker, 111 Mich App 641; 314 NW2d 721 (1981), and People v Leroy, 157 Mich App 334; 403 NW2d 555 (1987), have concluded that charges must be dismissed where the initial conviction was reversed and the defendant was not retried within 180 days. The statute speaks of "any untried information” brought against "any inmate of a correctional facility.” Reading these phrases in isolation, the defendant has a plausible argument that the stat ute applies without regard to whether the incarceration resulted from a sentence of commitment separate from the case for which the defendant is awaiting prosecution. However, we agree with the Court of Appeals in the instant case and in Pixler and Holbrook that, reading the statute as a whole, the Legislature intended that the statute apply to an inmate who is incarcerated as a result of a conviction other than the untried information in question. Defendant, by contrast, was effectively in the status of a pretrial detainee. This case is unusual because the defendant remained in a Department of Corrections facility for many months after his initial conviction was set aside. However, the position argued by the defendant would produce anomalous results in more typical cases. Normally, following the setting aside of a conviction, the Department of Corrections would be notified of the change of the inmate’s status and the defendant would be transferred to local detention facilities either for pretrial incarceration or release on bail. If defendant Chambers’ theory were to be accepted, the statute would apply to such a defendant, even though that person would be treated in the same manner as a newly charged defendant. Accordingly, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, the judgment of the Court of Appeals is affirmed. Brickley, Boyle, Riley, Griffin, and Mallett, JJ., concurred. Cavanagh, C.J., and Levin, J. We would grant or deny leave to appeal, but would not dispose of this case by an opinion per curiam. The charges were assault with intent to commit criminal sexual conduct involving sexual penetration, MCL 750.520g; MSA 28.788(7), second-degree criminal sexual conduct, MCL 750.520c(1)(e); MSA 28.788(3)(1)(e), assault with intent to commit murder, MCL 750.83; MSA 28.278, two counts of armed robbery, MCL 750.529; MSA 28.797, and two felony-firearm counts, MCL 750.227b; MSA 28.424(2). The issue whether the plea of nolo contendere waives the issue of the application of the 180-day rule is not present in this case. See People v Smith, 438 Mich 715; 475 NW2d 333 (1991). The parties have regarded the issue as preserved, and we will proceed to address the question. Whenever the department of corrections receives notice that there is pending in this state any untried warrant, indictment, information, or complaint setting forth against any inmate of a correctional facility of this state a criminal offense for which a prison sentence might be imposed upon conviction, the inmate shall be brought to trial within 180 days after the department of corrections causes to be delivered to the prosecuting attorney of the county in which the warrant, indictment, information, or complaint is pending written notice of the place of imprisonment of the inmate and a request for final disposition of the warrant, indictment, information, or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time or disciplinary credits earned, the time of parole eligibility of the prisoner, and any decisions of the parole board relating to the prisoner. The written notice and statement shall be delivered by certified mail. This section was amended by 1988 PA 400, but the amendment does not affect the portion of the statute relevant to the instant appeal. In the event that, within the time limitation set forth in section 1 of this act, action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice. The circuit court’s ruling addressed only the defendant’s generaspeedy trial motion claims, and not the 180-day rule theory. At the plea proceeding defense counsel indicated the defendant’s intention to appeal with regard to the 180-day rule issue. The record does not provide an explanation for this situation.

Per Curiam. This defendant was resentenced by a judge who used a presentence report that had been prepared for his original sentencing, more than seven months earlier. The resentencing oc curred after the defendant waived his right to an updated presentence report. The Court of Appeals then ordered that the defendant again be resentenced, holding that a defendant may not waive the updating of the report. We conclude that the Court of Appeals erred, and so we reinstate the judgment of the trial court. I In October 1986, the defendant broke and entered an occupied dwelling. He was charged with that offense and also as an habitual (fourth-felony) offender. In January 1987, the defendant pleaded guilty of breaking and entering. The plea agreement had two elements. First, the parties agreed to a sentence of from ten to fifteen years in prison. Second, the prosecutor agreed to dismiss the supplemental information. On January 26, 1987, the defendant received the agreed-upon term of imprisonment, and the court granted the prosecutor’s motion to dismiss the supplemental information. Four months later, the defendant moved for resentencing. The basis of the motion was that the sentencing guidelines had not been consulted when the defendant was sentenced. The motion was heard in July 1987. The court granted a resentencing and ordered an updated presentence report, but apparently the updated report was never prepared. On September 11, 1987, the defendant was re-sentenced. One of the topics discussed during the lengthy hearing was whether it would be possible for the trial court to reduce the ten-year minimum sentence without causing the entire plea bargain to be set aside. During the course of the hearing, the defendant became persuaded that there was little likelihood that he would receive a reduced minimum sentence. Following a midday break, defense counsel reported that the defendant wished to waive an updated presentence report and go forward with an immediate resentencing. The defendant was concerned that a stay in the county jail while awaiting the preparation of an updated presentence report would jeopardize his participation in a college-level educational program. After obtaining the defendant’s personal waiver of his right to a reasonably updated presentence report, the trial court again imposed a term of from ten to fifteen years in prison. The court based its sentence on what it had heard during the proceedings of that day, "as well as the information contained in the presentence report that was previously prepared . . . .” The defendant again appealed his sentence. In a memorandum opinion, the Court of Appeals remanded the case for resentencing on the ground that a defendant cannot waive the preparation of an updated presentence report. The Court explained: Defendant next argues that the trial court erred in resentencing defendant without the preparation of an updated presentence report. At a resentencing, the trial court is obligated to utilize a reason ably updated presentence investigation report. People v Triplett, 407 Mich 510, 515; 287 NW2d 165 (1980). Furthermore, the defendant cannot waive the preparation of a presentence investigation report. People v Brown, 393 Mich 174; 224 NW2d 38 (1974). While we agree with the prosecutor that the circumstances presented in a re-sentencing differ from that presented in an original sentencing and, therefore, waiver of an updated presentence report might be appropriate, we nevertheless believe that we are compelled by the court’s decision in Brown to hold that defendant could not waive the preparation of an updated presentence report. The Court of Appeals urged this Court to consider the issue: We do, however, urge the prosecutor to seek leave to appeal in this matter so that the Supreme Court may revisit this issue and determine whether a strict rule against waiver of a presentence investigation report is required in the context of resentencing. The prosecutor seeks leave to appeal. ii A sentencing judge must use a presentence report. MCL 771.14(1); MSA 28.1144(1); MCR 6.425(A). In People v Brown, supra at 179-181, the defendant expressly sought to waive his right to have a presentence report prepared. He had spent approximately eleven months in the Wayne County jail, and he wished his sentencing to be delayed no further. In ordering that Mr. Brown be resentenced, this Court held "that public policy precludes recognition of such waiver”:_ We are satisfied that the statute bespeaks a conviction that our criminal justice system is better served by requiring that a judge who is about to sentence a person have the information contained in a presentence report before making the decision whether to put that person on probation, fine or imprison him. It would militate against this conviction to recognize a right to waive the requirement even if the prosecutor, judge and defendant deemed it expedient in a particular case, for the Legislature, speaking for all the people, has ordained otherwise. [Brown, 393 Mich 181.] People v Triplett, supra, involved a defendant who was resentenced in 1976 on the basis of a presentence report that had been prepared in 1972 for his original sentencing. The defendant objected in the trial court, saying that the outdated, report failed to reflect the extent to which he had been rehabilitated during his imprisonment. After describing the importance of the presentence report, we ordered a resentencing: Although this Court has not until today passed on the requirement that a reasonably updated presentence report must be utilized in sentencing for felonies, we have repeatedly indicated that such reports must be complete, accurate, and reliable. . . . Our holding that a reasonably updated report must be utilized at felony sentencing is merely a logical extension of such earlier indications. Indeed, our holding is a necessary corollary to the principle that sentencing must be individualized and tailored to the particular circumstances of the case and the offender at the time of sentencing .... [Triplett, 407 Mich 515.] In the years since Brown and Triplett were decided, the Court of Appeals has applied these rules in a variety of factual contexts. Presentence reports that are several years old have been held not to be "reasonably updated.” Reports that were prepared several months earlier, in connection with unrelated offenses, have also been held not to be adequate. A five-month-old report was found not to have been properly used where there were significant allegations that the defendant’s circumstances had changed during the interim. However, the Court of Appeals also has held that a supplemental presentence report can provide the necessary updating. Further, in some, circumstances where the trial court has no sentencing discretion, an updated report may not be necessary. The Court of Appeals additionally has stated, in dictum, that a defendant cannot waive the right to have a current presentence report prepared. People v LeBlanc, 120 Mich App 343, 347; 327 NW2d 471 (1982). In the present case, the Court of Appeals has restated that principle as the holding of the case. III As explained above, we held in Brown that a defendant may not waive a presentence report. We reaffirm that holding today. However, with regard to whether an updated report is required at a resentencing, we believe that the controlling principles are stated in the following passage adapted from the dissent of Justice T. M. Kavanagh in Brown: Because the manner in which the pertinent facts are compiled is not as crucial as is the content or accuracy of this information after it reaches the hands of the trial judge, we believe that when this evidence is already before the court, and a counseled defendant requests immediate sentencing, it is not error for a trial judge to accept a waiver of the [updated] presentence report. Just as a defendant is permitted to waive the protections guaranteed by the Constitution, he may likewise waive rights provided by statutes so long as he does so in an intelligent, understanding and voluntary manner. [Brown, 393 Mich 186.] For those reasons, a defendant or the prosecutor may waive the right to a reasonably updated presentence report at resentencing where each believes the previously prepared report is accurate. Of course, a different case would be presented where the previously prepared presentence report contained information that was manifestly stale. To base a sentence on such information would obviously jeopardize the public interest. Unless the prior report is manifestly outdated, however, a defendant at resentencing may waive preparation of an updated report. In this case, the prior report was not stale, and the defendant affirmatively waived his right to a new report. Further, the defendant does not explain how this waiver was involuntary or how he has been prejudiced. In such circumstances, the prior report must be presumptively determined to satisfy the requirement of Triplett that the report be "reasonably updated.” In these circumstances, we believe that the defendant effectively waived his right to have the presentence report updated. Therefore, we reverse the judgment of the Court of Appeals, and re instate the judgment of the trial court. MCR 7.302(F)(1). Cavanagh, C.J., and Levin, Brickley, Boyle, Riley, Griffin, and Mallett, JJ., concurred. MCL 750.110; MSA 28.305. MCL 769.12; MSA 28.1084. Defense counsel explained her hope that the trial court would be willing to reduce the minimum by a year or two, and that the prosecutor would be receptive, as well. The prosecutor took the position that, if the court intended to impose other than a ten-year minimum sentence, then the original plea bargain should be set aside and the defendant again be subjected to the supplemental information. People v Hemphill, unpublished memorandum opinion of the Court of Appeals, decided July 19, 1991 (Docket No. 123634). See former MCR 6.101(K) and GCR 1963, 785.12. People v McDonald, 99 Mich App 150, 152-153; 297 NW2d 639 (1980); People v Bruce, 102 Mich App 573, 580; 302 NW2d 238 (1980). People v Anderson, 107 Mich App 62, 66-67; 308 NW2d 662 (1981); People v McKeever, 123 Mich App 533, 539-541; 332 NW2d 596 (1983). People v Crook, 123 Mich App 500, 503; 333 NW2d 317 (1983). People v Hart, 129 Mich App 669, 674; 341 NW2d 864 (1983). People v Foy, 124 Mich App 107, 110-112; 333 NW2d 596; 65 ALR4th 177 (1983).

Riley, J. In the instant case, we granted leave to appeal to consider the single issue whether the City of East Lansing has the statutory authority to enact and enforce its sign ordinance that eliminates nonconforming billboards and signs over a reasonable period of time. The trial court granted plaintiffs’ motion for partial summary disposition, reasoning that the city did not have the statutory authority to eliminate existing signs without compensating sign owners. The Court of Appeals affirmed. On appeal, the city argues that MCL 117.4i(5); MSA 5.2082(5) gives it the statutory authority to forcibly terminate nonconforming billboards and signs over a reasonable period of time. We agree and reverse. I Before the adoption of the current sign code on October 7, 1975, the City of East Lansing regulated signs with respect to size, height, setback, and spacing in a number of the zoning districts pursuant to certain provisions of the zoning code. In most areas of the city, other than residential districts, signs were essentially unregulated except for minimal structural standards so that they would not fall down or blow over. In the late 1960s, the city undertook a study of sign regulations and traffic ordinances after recognizing that the inordinate number of signs and billboards on the main thoroughfares were contributing to a number of traffic accidents, and were also aesthetically unattractive. In 1973, the city retained the services of Donald E. Cleveland, P.E., who prepared a report for the City of East Lansing Planning Commission recommending detailed standards with respect to height, size, placement, sign clearance, and setback of signs. Dr. Cleveland suggested these improvements to avoid confusing or misleading traffic, to eliminate vision obstructions necessary for traffic safety, and to otherwise improve the public safety along the city’s major streets. The city council eventually accepted the recommendation of the planning commission to adopt Dr. Cleveland’s report and, as a first step, enacted ordinance no. 330. This ordinance prohibited the placement of new signs until the city completed the adoption of a comprehensive sign code. Two years later, the current sign code was adopted. In most situations, the new sign code did not require the elimination of existing billboards and signs within the city. The code did, however, require many sign owners to replace their existing signs and billboards that did not meet the height, size, placement, and location requirements of the new sign code within eight years. Each of the plaintiffs, and their individual signs, presents a different factual scenario. Adams Outdoor Advertising has three groups of signs located in East Lansing which did not conform with the sign code as of May 1, 1987. These are off-premises signs, which , means that they directed attention to a use, business, commodity, service, or activity not conducted, sold, or offered upon the premises where the signs were located. Little Caesar Enterprises, Inc., owns a freestanding sign located near the front of its building, Baryames Cleaners has two freestanding signs identifying its business, and Denny’s Schwinn owns a freestanding sign and has two wall signs on its building. None of these signs meet the height, size, placement, or location requirements of East Lansing’s sign code. On or about February 27, 1987, the city notified the plaintiffs that they had to comply with the size, height, placement, and location requirements of the sign code or remove their nonconforming signs by May 1, 1987. Each of the plaintiffs applied for and were denied variances from the City of East Lansing Building Board of Appeals. The plaintiffs then sued defendant, seeking relief from the denial of their request for a variance. After defendant answered the complaints, plaintiffs moved for partial summary disposition on the theory that the city failed to state a valid defense. Plaintiffs specifically argued that the amortization provision of the sign code, § 8.39(8), was enacted without statutory authority. The City of East Lansing predicated its statutory authority on MCL 117.4i(5); MSA 5.2082(5), which empowers home rule cities with the authority to regulate billboards. After evaluating both arguments, the trial court granted plaintiffs’ motion for partial summary disposition. The Court of Appeals affirmed, finding that the De Mull [v City of Lowell, 368 Mich 242; 118 NW2d 232 (1962)] holding [is] dispositive of the instant case. Defendant’s ordinance, § 8.39(8), called for the elimination of all nonconforming signs. Such action has not been authorized by the Legislature. De Mull, supra, pp 250-252. In addition, defendant did not purchase and condemn the signs thereby abating the use. Defendant has failed to distinguish De Mull or persuade us that this decision is inapplicable. Therefore, in reviewing the pleadings, we find that the portion of defendant’s answer based upon § 8.39(8) is so clearly untenable as a matter of law, that no factual development could deny plaintiffs right to recovery against this defense. City of Hazel Park [v Potter, 169 Mich App 714, 718; 426 NW2d 789 (1988)]. The trial court properly granted plaintiffs partial summary disposition and dismissed that part of defendant’s answer at issue.[ ] II We agree with the Court of Appeals that the resolution of this issue requires analysis of this Court’s decision in De Mull, supra. However, we do not agree with the Court of Appeals determination that De Mull requires the decision it reached. Rather, we conclude that De Mull is distinguishable because this Court held that in amending the zoning enabling act to provide statutory protec tion for nonconforming uses and structures, the Legislature did not intend to allow the elimination of such nonconforming uses or structures by an ordinance prescribing a time limitation. We based our holding on an interpretation of the legislative history of 1947 PA 272, MCL 125.583a; MSA 5.2933(1). That section provides in pertinent part: The lawful use of land or a structure exactly as the land or structure existed at the time of the enactment of the ordinance affecting that land or structure, may be continued, except as otherwise provided in this act, although that use or structure does not conform with the ordinance. [Emphasis added.] The De Mull Court found significant the fact that the original Senate bill would have allowed for the removal of nonconforming uses and structures over a reasonable period of time. Id. at 252. However, the Senate chose not to authorize amortization as an exception to the statutory protection of nonconforming uses and structures in the zoning enabling act after receiving an opinion from the Attorney General’s office questioning the constitutionality of the amortization provision. Id. at 251-252. Thus, the De Mull Court held that there is no implied power under MCL 125.583a; MSA 5.2933(1) to eliminate over time nonconforming uses and structures. The question that must be answered, then, is whether the Legislature, in enacting the home rule act, also intended to prevent the enactment of an ordinance that requires nonconforming signs to be made to conform or removed within a specified period of time. We conclude that the Legislature did not intend to limit the scope of the defendant’s power to regulate billboards under the home rule act to the same extent that a city’s power to zone with respect to nonconforming uses and structures is restricted. The plaintiffs argue, however, that this Court’s holding in De Mull, that the Legislature did not authorize the amortization of nonconforming uses and structures under the zoning enabling act, controls the scope of a city’s power to regulate signs, regardless of whether the regulation is pursuant to the zoning power or another arm of the police power. It is true that in De Mull we declined to infer a legislative authorization to amortize nonconforming uses and structures. However, our conclusion in De Mull was based on the legislative history of a provision of the zoning enabling act, and therefore cannot be used to restrict the scope of the defendant’s power granted under a provision of a separate act, the home rule act. In De Mull, the statutory protection of nonconforming uses and structures, combined with the legislative history of that provision in the zoning enabling act, caused us to hold that there is no implied power to amortize in the zoning context. However, neither the home rule act, nor any other statute prescribing the power to regulate billboards, includes a similar protection for nonconforming signs, nor is there legislative history indicating that the Legislature chose not to grant the authority to amortize nonconforming signs. Therefore, De Mull did not establish a precedent, for all cases where a city’s exercise of its police power has an effect on property, that amortization is only authorized where expressly stated by the Legislature. Our finding of no legislative authorization to amortize in De Mull should not be read to extend beyond the zoning context. This reading of De Mull, as not restricting a city’s authority to regulate billboards under the home rule act, is also consistent with this Court’s longstanding liberal interpretation of that act. We noted in Gallup v Saginaw, 170 Mich 195, 200; 135 NW 1060 (1912), that the home rule act is one of general grant of rights and powers, subject only to certain enumerated restrictions, instead of the former method of only granting enumerated rights and powers definitely specified. We must assume the act was passed with that intent and construe it accordingly.[ ] The zoning authority under the home rule act is clearly subject to many restrictions, enumerated by the Legislature in the zoning enabling act. The separate power to regulate billboards is not so restricted. Further, in construing the same section of the home rule act at issue here, MCL 117.4i; MSA 5.2082, we have said that the act is comprehensive, " 'but it leaves many things to be implied from the power conferred.’ ” People v Sell, 310 Mich 305, 312; 17 NW2d 193 (1945) (citation omitted). " 'Considering its purpose, [the act] should be construed liberally and in a home-rule spirit.’ ” Id. at 312-313. Therefore, while the power to amortize nonconforming signs is not expressly delegated in the home rule act, it can be inferred from the broad language of MCL 117.4i(5); MSA 5.2082(5), without limitation by the statutory protection of nonconforming uses under the zoning enabling act and this Court’s decision in De Mull. Contrary to the plaintiffs’ argument, a broad interpretation of the defendant’s power to regulate signs in the home rule act leads to the conclusion that the defendant did not lack the statutory authority to enact its sign ordinance, including the provision eliminating nonconforming signs over time. CONCLUSION In the instant case, the trial court granted plaintiffs’ partial motion for summary disposition after finding that the amortization provision of the East Lansing sign code was enacted without legislative authority. At that point, plaintiffs did not raise the remaining issues whether the ordinance eliminating nonconforming signs over time is unconstitutional, as applied to each sign, or whether the enforcement of the sign code against nonconforming signs would be an unconstitutional taking. Accordingly, we reverse the decision of the Court of Appeals and remand this case to the trial court to resolve the remaining issues. Cavanagh, C.J., and Brickley, Boyle, and Mallett, JJ., concurred with Riley, J. Levin, J. (separate opinion). The majority holds that the Legislature has empowered the City of East Lansing to require that signs and billboards put in place before enactment of the challenged sign code either be removed or modified within a reasonable period of time to conform to the size, height, setback, and placement standards of the sign code, but that, in particular circumstances, a sign owner may have a claim for just compensation. The cases have been remanded for further proceedings. I agree with that disposition. A home rule city is authorized to require, without payment of compensation, compliance with reasonable sign and billboard regulations. But if enforcement of the regulations would effect a taking, the constitution requires that just compensation be paid. It makes little difference to the plaintiffs or the City of East Lansing whether the city must pay just compensation to the owners of signs and billboards put in place before the sign code was enacted because the provision of the home rule act relied on by the city does not specifically authorize termination of nonconforming uses by ordinance of time limitation, or whether the city must instead pay because the amortization provision of the sign code effects a taking and is unconstitutional either on its face or as applied to particular plaintiffs. This action would not have been commenced if the. City of East Lansing were willing to pay compensation. The fundamental issue, then,' is whether, when there is a taking, the city can enforce the sign code without paying just compensation by providing a reasonable time for compliance with the new regulations. Although this case has not been tried, and a factual record has not been developed, it appears that the on-premises sign regulations are, in general, reasonable and do not result in a taking, but that enforcement of the off-premises sign regulations, as applied to billboards and roof signs owned by Adams Outdoor Advertising, may well result in a taking. Off-premises signs generally constitute the primary, and often the entire, use of the property on which they are located. In contrast, on-premises signs are incidental to the conduct of a business. The ordinance calls for the elimination of roof signs, and thus "takes” those signs from Adams Outdoor, at least with a lower-case t, and possibly a capital, constitutional t. Adams Outdoor and amicus curiae Outdoor Advertising Association of Michigan contend that the size restrictions on billboards substantially affect their commercial value and therefore effect a taking. The facts and the law with regard to the claim of a partial taking can be developed on the remand that the majority has ordered. I On October 7, 1975, the City of East Lansing adopted a sign code establishing size, height, placement, and setback standards for all signs and billboards in the city, and prohibiting construction, erection, or maintenance of certain types of signs. The code requires that all signs and billboards, including those extant before adoption of the code, conform to the newly promulgated standards and prohibitions no later than October, 1983; this delay in the mandatory effective date is characterized as an amortization provision. The deadline was twice extended, first to May 1, 1984, and later to May 1, 1987. The sign code, as amended, thus required removal of signs and billboards not in compliance by May 1, 1987. Plaintiffs, owners of preexisting nonconforming signs and billboards, applied for variances, which were denied. Plaintiffs then sought relief by filing these actions, consolidated at the circuit court and appellate levels, claiming that the city was without authority to ordain amortization of preexisting nonconforming uses, and that amortization constituted a denial of due process and the taking of property without just compensation. The city responded that the amortization provision was a reasonable exercise of the power to regulate signs and billboards delegated by the Legislature to home rule cities, and that elimination by amortization does not constitute a taking. Plaintiffs moved for partial summary disposition, asserting failure to state a valid defense. The circuit court granted the motion on the ground that the city was without statutory authority to enact the amortization provision. The Court of Appeals affirmed in an unpublished opinion. A Before adoption of the new sign code, the City of East Lansing regulated sign size, height, setback, and spacing in the zoning code. Outside residential districts, signs were subject to minimal regulation, addressed primarily to structural standards. In the late 1960s, the city began a comprehensive study of sign regulations and traffic ordinances. This study was apparently prompted by considerations both of traffic safety and aesthetics. In May, 1973, the city planning commission received a report, prepared by a consultant, recom mending standards for sign height, size, placement, setback and clearance. When the new code was adopted in 1975, sign regulations located in the zoning code were repealed. The new sign regulations were promulgated as a chapter of the building code. B Plaintiff Adams Outdoor owns three groups of signs located in East Lansing that do not conform with the sign code. Each nonconforming sign owned by Adams Outdoor is defined by the code as an "off-premises” sign, "which directs attention to a use, business, commodity, service or activity not conducted, sold or offered upon the premises where the sign is located.” Five of the Adams Outdoor signs are roof signs, which are prohibited anywhere in East Lansing. Adams Outdoor also maintains seven billboards on West Grand River; these billboards violate provisions of the code limiting total display area and establishing standards for height, setback, and spacing. Plaintiff Little Caesar Enterprises, Inc., owns a freestanding sign located at its place of business, on East Grand River. Plaintiff Baryames Cleaners, Inc., has two freestanding signs at its West Grand River location. Plaintiff Denny’s Schwinn has a freestanding sign located at its place of business on East Grand River, and also has two wall signs attached to the building. All these signs violate one or more of the new standards, but were constructed in apparent compliance with ordinances then in effect. II This Court has said that the police power "belongs to subordinate governmental divisions when and as conferred by the State either through its Constitution or constitutionally authorized legislation.” The Court of Appeals said that the East Lansing amortization provision "called for the elimination of all nonconforming signs. Such action has not been authorized by the Legislature.” The Court cited De Mull v City of Lowell, 368 Mich 242, 252; 118 NW2d 232 (1962), where this Court said that the Legislature had "withheld permission to destroy [nonconforming uses] by time limitation or otherwise.” The plaintiff in De Mull challenged the provision of a city zoning ordinance that required termination of the use of his property as a junkyard within a three-year period. The Court, in striking down "this ordained 3-year death sentence for nonconforming uses,” said that the power delegated to the city in the zoning enabling act did not include authority to enact an amortization provision: Whatever the law may be in other States, law stemming as it does from specific and variant statutory zoning enactments and judicial construction thereof, the fact remains that the cities of Michigan have not as yet been authorized, by requisite legislative act, to terminate nonconforming uses by ordinance of time limitation.[ ] [Emphasis added.] The Court said that, in amending the zoning enabling act in 1947 to provide for the treatment of nonconforming uses, the Legislature had specifically considered and rejected a grant of authority "for elimination of a nonconforming use by an ordinance of time limitation.” The Court said that the Legislature, out of concern about the constitutionality of a provision authorizing amorti zation, had solicited the advice of the Attorney General and, in response to his opinion, had "carefully refrain[ed] from enactment of any such authorization . . . .” A The City of East Lansing seeks to distinguish De Mull on the basis that this Court there addressed a delegation of police power by the city or village zoning enabling act, while the amortization provision in the East Lansing sign code was enacted pursuant to a delegation of the police power by an amendment of the home rule act granting authority to regulate signs and billboards. The city offers various arguments in support of its contention that regulation of signs and billboards by a home rule city, including amortization of preexisting signs and billboards, is not subject to. De Mull. I am of the opinion that the principle set forth in De Mull, respecting the delegation of authority to enact provisions calling for amortization, governs disposition of this case without regard to how the new sign code might be character ized. As the 1947 opinion of the Attorney General recognized, a substantial deprivation of private property rights necessarily implicates the takings question. Authority to ordain such a deprivation of property rights must be expressly granted, and is not "implicit” in the billboard language of the amendment of the home rule act. In adopting the nonconforming use provisions of the city and village zoning enabling act discussed in De Mull, and similar provisions concerning nonconforming uses in other delegations of the zoning power, the Legislature recognized in each instance the need for specific delegation of authority respecting nonconforming uses. As set forth in De Mull, the Legislature considered and rejected a further, more expansive grant of authority to terminate nonconforming uses by ordinance of time limitation, and indicated that a specific delegation of authority would be required before a local governmental unit could enact an ordinance amortizing nonconforming uses. Such a specific delegation has not been enacted respecting signs and billboards. With minor linguistic differences, enactments of the Legislature concerning the treatment of nonconforming uses grant municipalities and other local governmental units authority to provide for continued use of land and improvements as lawfully used before enactment of a zoning limitation. Each enactment grants local governmental units the authority to enact ordinances providing for completion, resumption, restoration, reconstruc tion, extension, or substitution of nonconforming uses. In each enactment, the Legislature has "withheld permission to destroy them, by time limitation or otherwise.” Each enactment grants local governmental units the power to acquire private property by purchase or condemnation "for the removal of nonconforming uses.” I would read this as underscoring that if a community wishes to "remove” nonconforming uses, the means of doing so is by "purchase or condemnation.” B The provision of the home rule act authorizing regulation of signs and billboards was added by 1939 PA 175. This provision codified or, minimally, recognized this Court’s decision in Wolverine Sign Works v Bloomfield Hills, 279 Mich 205; 271 NW 823 (1937). The sign owner in Wolverine Sign Works leased private land and, before February, 1927, had erected billboards. After April, 1927, the city enacted sign ordinances and zoning restrictions. The plaintiff was denied a permit to maintain the billboards. In October, 1933, members of the plaintiff’s painting crew were arrested while working on the billboards. The Court said that the city’s treatment of nonconforming signs "destroys the lease use, a property right, and incidentally takes from the owner of the land the right of such rental.” The Court held that the authority to regulate billboards pursuant to the police power did not extend to termination of nonconforming signs, and said: The city may establish zones and prohibit the erection of billboards therein and may, to promote public health, safety and general welfare, within reasonable considerations, regulate the maintenance of billboards but may not arbitrarily strike down the maintenance of erected billboards or vest such power of arbitrary action in municipal officers.[ ] [Emphasis added.] Nothing in the amendatory language, enacted two years after Wolverine Sign Works was decided, supports a judicial construction that the Legislature intended to grant home rule cities the authority to terminate nonconforming signs and billboards, which in the words of this Court in Wolverine Sign Works, would "destroy” property rights. Nor does the amendatory language suggest an extraordinary legislative purpose to tolerate amortization in the context of signs and billboards, for the provision speaks only of "licensing, regulating, restricting and limiting the number and locations of billboards within the city.” (Emphasis added.) C The city contends that while a zoning code regulates the use of land in relation to other land, its sign code applies uniformly throughout the city, and distinguishes signs by types, regulates the location of signs, and establishes technical requirements concerning size and height. A number of provisions of the new sign code are, however, expressly or implicitly tied to zoning districts. Section 8.36(1) links permission to maintain certain off-premises signs to their location on property zoned m and property zoned b-2. The provisions of §§ 8.33 and 8.34 implicitly link sign regulations, by "types of premises,” including commercial, office, and professional center designations, to permitted uses defined in the provisions of the zoning ordinance concerning zones b-1, b-3, and B-4. This Court in Krajenke Buick Sales v Hamtramck City Engineer, 322 Mich 250, 252; 33 NW2d 781 (1948), looked behind the defendant city’s claim that the challenged regulation was a building code. The regulation’s distinction between "residential areas”, and "business streets” made oblique but significant reference to zoning districts. The Court found the "building code” to be a zoning ordinance, and invalidated the ordinance for failure of enactment in accord with procedural requirements of the zoning enabling act. The off-premises sign regulations of the East Lansing sign code governing location and imposing other requirements function as zoning. D The sign code has substantial effect on vested property rights of owners and lessees of preexisting nonconforming uses, even where the sign code does not ordain differential treatment of signs or billboards on the basis of zones within the city, as may be the case with respect to roof signs. A treatise writer observed: Where the particular restriction constitutes, or would constitute, a substantial interference with land use, the municipality ordinarily must treat it as a zoning regulation and must follow statutory or charter zoning procedures, even though other authority for the particular type of ordinance has been granted.[ ] [Emphasis added.] The restrictions imposed by the amortization provision of the sign code respecting off-premises signs clearly constitute a "substantial interference with land use,” and hence with property rights. The erection and maintenance of off-premises signs generally constitutes the primary use of land devoted to that use. Billboard operators such as Adams Outdoor generally own or rent land for no purpose other than to erect and maintain billboards; such use is not "incidental” to the ownership or rental of land. Regulations restricting and, in the case of roof signs, ultimately eliminating such use, are not, as the city argues, divorced from the use of land so as to escape constitutional limitations on zoning enactments. Regulation of signs and billboards has been analyzed as a form of zoning in earlier decisions of this Court and by courts in other states. The amortization provision of East Lansing’s sign code, whether or not "zoning,” has an impermissible retroactive effect on nonconforming uses, and is invalid insofar as enforcement would constitute a taking of property without payment of just compensation. III The city argues that a majority of state courts, when faced with a constitutional challenge to amortization ordinances as a taking of property without compensation, have managed to overcome these objections, approving the uncompensated termination of nonconforming uses. The courts approving amortization as a reasonable imposition on private property rights have based their conclusions upon policy arguments of dubious merit. Further, the authorities to the contrary, while less numerous, are more persuasive. Authorities holding that amortization is consti tutionally permissible invariably begin by acknowledging the principle that nonconforming uses are not subject to immediate termination. Zoning enactments have traditionally been prospective in effect, partly in the expectation, it has been said, "that existing nonconforming uses would be of little consequence and . . . would eventually disappear.” But, as a commentator observed, "the number of nonconforming uses did not decrease, but rather increased due to indifferent or unsympathetic administration of the zoning ordinances, incorrect granting of variances, and influential political pressures.” The impetus for amortization may be communal frustration with how long it has taken nonconforming uses to "eliminate themselves.” The Supreme Court of Missouri explained that some communities have addressed the problem of persistent nonconforming uses by recourse to legislative legerdemain: [Z]oning zealots have been casting about for other methods or techniques to hasten the elimination of nonconforming uses. In so doing, only infrequent use has been made of the power of eminent domain, primarily because of the expense of compensating damaged property owners, but increasing emphasis has been placed upon the "amortization” or "tolerance” technique which conveniently bypasses the troublesome element of compensation.[ ] Courts in states passing favorably on amortization "reason” that, where the private loss to property owners is outweighed by the public benefit of amortizing nonconforming uses, there is no constitutional difficulty if the period of amortization is reasonable. A reasonable amortization period has been said to be one that allows affected property owners adequate time to recover their investment. In this connection, reference is sometimes made to the economic life of the property, such as a "depreciation” period, either in financial accounting or tax accounting terms. While a community is surely empowered to exercise police power in furtherance of public health, safety, and general welfare, and "[e]very exercise of the police power is apt to affect adversely the property interest of somebody,” the notion that the right or need of the community to exercise its police power may somehow "outweigh” private property interests runs counter to the constitutional limitation requiring payment of just compensation for a taking. The introduction of a temporal component does not alter the analysis. As the court in Hoffmann v Kinealy, 389 SW2d 745, 753 (Mo, 1965), said: To our knowledge, no one has, as yet, been so brash as to contend that such a pre-existing lawful nonconforming use properly might be terminated immediately. In fact, the contrary is implicit in the amortization technique itself which would validate a taking presently unconstitutional by the simple expedient of postponing such taking for a "reasonable” time. All of this leads us to suggest, as did the three dissenting justices in Harbison v City of Buffalo [4 NY2d 553, 566-567; 176 NYS2d 598; 152 NE2d 42 (1958)], that it would be a strange and novel doctrine indeed which would approve a municipality taking private property for public use without compensation if the property was not too valuable and the taking was not too soon, and prompts us to repeat the caveat of Mr. Justice Holmes in Pennsylvania Coal Co v Mahon, 260 US 393, 416; 43 S Ct 158; 67 L Ed 322; 28 ALR 1321 [1922], that "[w]e are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” The application of "generally accepted accounting principles” in this context is unpersuasive. No reasonable person would seriously suggest that the owner of the Empire State Building could be required, in the exercise of the police power, to remove the building from the land, or even to rebuild it to current specifications, at the conclusion of a thirty- or fifty-year period mandated pursuant to the Internal Revenue Code as representing the useful life of buildings for tax depreciation purposes, without paying just compensation. Proponents of amortization, such as the City of East Lansing, gloss over the difference between on- and off-premises signs and billboards. The city acknowledges the general judicial "reluctance” to permit amortization of nonconforming uses in relation to "primary” uses, but asserts that signs and billboards are "secondary” and thus may be eliminated by amortization. I might agree insofar as freestanding on-premises signs and billboards are at issue. As respects off-premises signs and billboards, I cannot agree. The city might justify regulating or revising the technical specifications for on-premises signs and billboards to improve traffic safety, in an effort to make the community more aesthetically pleasing, or for other similar public purposes, without incurring the obligation to compensate the owners. Reducing the proliferation of flashing lights and neon displays may further such purposes without impinging upon property rights. As long as signs may still be displayed to inform potential customers of a particular business location, the relatively modest cost of rebuilding or relocating a sign may not be constitutionally objectionable. Such a sign is, I agree, essentially an incidental use of the property, and the primary function of the property, as a place where business is conducted, is virtually unaffected. Such regulation may not, therefore, amount to a taking. The same apology cannot be made for an amortization provision as applied to off-premises signs. Retroactive application of significant changes in standards for such signs, particularly "regulations” that abolish an off-premises sign altogether, appear to constitute a taking of property without compensation, for, in such cases, the sign is itself the use of property. From the standpoint of the owner of the affected property, maintenance of the sign is itself the "business” being conducted on the property. The abolition of roof signs under East Lansing’s sign code thus appears to constitute a taking of private property. The imposition of such a taking in homeopathic doses cannot be sustained, despite the asserted underlying public policy. Unless signs and billboards become contraband, neither the state nor local governmental units may confiscate them, or deprive their owners of the right to maintain and display them without payment of just compensation. Decisions of this Court and enactments of the Legislature clearly attest that signs and billboards are not contraband. 437 Mich 925 (1991). Adams Outdoor Advertising v East Lansing, unpublished opinion per curiam of the Court of Appeals, decided April 20, 1990 (Docket Nos. 110816-110818). Dr. Cleveland based his recommendations on the prevailing sign industry standards and the most recent scientific information concerning vision and reaction time in driving. Cleveland, Traffic Safety Considerations in Roadside Displays, report prepared for the Planning Commission, City of East Lansing, Michigan (May, 1973). In 1983, this deadline was extended to May 1, 1984, and was later extended to May 1,1987. Adams Outdoor Advertising has three roof signs located at 111 North Harrison, two roof signs located at 1108 East Grand River, and seven billboards located at 1502 West Grand River. Under East Lansing’s sign code, the roof signs are expressly prohibited, art V, § 8.38(12), and the billboards violate art IV, § 8.36, by exceeding the permissible display area. Crawford, Local zoning control of billboards — A guide for Michigan attorneys, 1989 Det C L R 1473. MCR 2.116(C)(9). The plaintiffs also alleged that enforcement of the sign code was unconstitutional, as applied to each sign, and a taking in violation of US Const, Am V; Const 1963, art 10, § 2. Because the trial court only-considered the issue of statutory authority in granting plaintiffs’ motion for partial summary disposition, we will not consider these issues at this time. On remand, the trial court must evaluate these allegations only in light of the arguments raised by the parties. MCL 117.4i(5); MSA 5.2082(5): For licensing, regulating, restricting and limiting the number and locations of billboards within the city. Adams Outdoor Advertising, n 2 supra, slip op, p 4. 1921 PA 207, MCL 125.581 et seq.; MSA 5.2931 et seq. Such elimination of nonconforming uses and structures over a specified period of time is commonly referred to as "amortization.” See 82 Am Jur 2d, Zoning and Planning, § 188, p 702. 1909 PA 279, MCL 117.1 et seq.; MSA 5.2071 et seq. Const 1963, art 7, § 34 compels the same conclusion. It states that "provisions of [the] law concerning counties, townships, cities and villages shall be liberally construed in their favor.” (Emphasis added.) Our construction of MCL 117.4i(5); MSA 5.2082(5) comports with this requirement. We are simply holding that the amortization provision of the East Lansing sign code is a police power ordinance, properly enacted under MCL 117.4i(5); MSA 5.2082(5), that enables cities the authority to regulate signs and billboards in the interest of the health, safety, and welfare of the community and to promote the aesthetic value of the city. While we do not dispute much of the dissent’s analysis, I cannot agree with the inclusion of the taking argument in this case. Although it has been alleged by the plaintiffs in their pleadings, it was not considered by the trial court in granting plaintiffs’ motion for partial summary disposition. Therefore, we believe that the dissent’s discussion can only be viewed as dicta, interesting dicta, but irrelevant to the outcome of this case. Absent a taking, there would be less need to be concerned with whether there is legislative authority for a city to promulgate an amortization provision, or whether such a provision is violative of the constitutional requirement that just compensation be paid where there is a taking. The home rule act was amended to authorize a city charter to provide "[f]or licensing, regulating, restricting and limiting the number and locations of billboards within the city.” MCL 117.4i(5); MSA 5.2082(5). Plaintiffs Denny’s Schwinn, Baryames Cleaners, Inc., and Little Caesar Enterprises, Inc., would indeed incur some expense in complying with the new on-premises regulations and, at the same time, modernizing their signs. The new code provides: "Any existing sign on the effective date of this Chapter or any amendment hereto, which does not at that time comply with all of the provisions hereof, including any amendment: ... (8) Shall not be placed, maintained or displayed by any person on or after May 1, 1987.” Article VI, § 8.39. Const 1963, art 1, § 17, and art 10, § 2, and the United States Constitution, Fifth and Fourteenth Amendments. MCR 2.116(C)(9). The city has also asserted at each stage of court proceedings that, because the amortization provision of its sign code was not invalid as a matter of law, summary disposition was improper. The city contended that the reasonableness of the sign code should be assessed with respect to each plaintiff at trial. Plaintiffs’ complaints address the constitutional issues, but Adams Outdoor’s motion for summary disposition addressed only the issue of statutory authority. Nonetheless, the city’s pleadings, including its brief in opposition to the motion for summary disposition, argue that the amortization provision does not effect a taking, and cite cases decided in other states where the courts found amortization not to be facially unconstitutional. The trial court order does not advert to the taking issue. The order recites "Plaintiffs’ claim that the Defendant’s Sign Code, Section 8.39(8) was invalid because Michigan law prohibits a Michigan municipality from eliminating by time a lawful, nonconforming use of property!)]” The order also incorporates by reference the "findings” made following the hearing. Plaintiffs’ counsel specifically noted at the hearing that he was arguing the case only on a statutory basis. In his oral ruling, the trial judge relied primarily on De Mull v City of Lowell, 368 Mich 242, 252; 118 NW2d 232 (1962), but also said: That decision in Central Advertising never points out that if you have an alternative to amortization, you have no problem. In other words, if the ordinance permits [sic] the signs, and the option of compensation or amortization exists, then it’s fine. But if you only give them amortization, then you have problems. I grant the motion. Similarly, the Court of Appeals did not expressly reach the taking issue but, following De Mull, observed that "defendant did not purchase and condemn the signs thereby abating the use.” The city council began implementing the recommendations by enacting, in August, 1973, a moratorium that barred further placement of signs pending adoption of a new sign code. The moratorium remained in effect until the new code was enacted. The sign ordinance was enacted as Chapter 99 of Title VII, Building Regulations of the Code of the City of East Lansing. Section 8.21(16). Section 8.21(24), as amended, defines "[r]oof sign” as "any sign which is attached to a building and any part of which extends more than one (1) foot above either the top line of the building silhouette or any portion of the roof surface.” Section 8.38(12) prohibits construction, erection, or maintenance of any roof sign. Three of the Adams Outdoor roof signs are located on North Harrison, and two are located on East Grand River. Section 8.36(2). Id. Id., §8.36(4). id., §8.36(5). A freestanding sign is "a sign the principal support of which is independent of any building.” Section 8.21(10). Clements v McCabe, 210 Mich 207, 215; 177 NW 722 (1920). See also City of Livonia v DSS, 423 Mich 466, 492-494; 378 NW2d 402 (1985) (discussing continued vitality of Clements); Detroit Osteopathic Hosp v Southfield, 377 Mich 128, 132; 139 NW2d 728 (1966); Krajenke Buick Sales v Hamtramck City Engineer, 322 Mich 250, 254; 33 NW2d 781 (1948); Kalamazoo v Titus, 208 Mich 252, 265; 175 NW 480 (1919). Id., p 250. Id. 1947 PA 272, MCL 125.583a; MSA 5.2933(1). The zoning enabling act, 1921 PA 207, and the provision of the home rule act "authoriz[ing] cities to include the power to zone in their charters,” 1921 PA 348, were signed within one day of each other. See Korash v Livonia, 388 Mich 737, 741-742; 202 NW2d 803 (1972). Both were enacted in response to this Court’s decision in Clements, n 17 supra, p 216, that the City of Detroit did not have the power to zone. De Mull, supra, p 251. The draft enactment had provided in part: " 'The legislative body in cities and villages may provide for the removal of such nonconforming uses or structures by specifying a reasonable period or periods in which such removal shall be required. In determining such periods consideration shall be given to the type of use and the type, age and other characteristics of the structures.’ ” [Id., p 252.] Id, p 251. The Attorney General opined that the proposed provision authorizing amortization, which would have required a municipality to " 'specify[ ] a reasonable period based on type of use and the type, age and other characteristics of structures, would be held invalid, since it contemplates ordinances which would set definite periods of time.’ ” Id, p 252, quoting OAG, 1947-1948, No 146, p 218 (March 7, 1947). The Court said: The legislature heeded the foregoing opinion and meaningfully eliminated, from then drafted section 3a, authorization to do that which the defendant city has attempted to ordain. Thus it must be held that [the amortization provision] of the city’s zoning ordinance is invalid for want of legislative warrant. [De Mull, supra, p 252.] MCL 125.581 et seq.; MSA 5.2931 et seq. MCL 117.4i(5); MSA 5.2082(5). MCL 125.216; MSA 5.2961(16) (county zoning), MCL 125.286; MSA 5.2963(16) (township zoning), MCL 125.583a; MSA 5.2933(1) (city or village zoning). MCL 125.216(1); MSA 5.2961(16)(1) (county zoning), MCL 125.286(1); MSA 5.2963(16)(1) (township zoning), MCL 125.583a(1); MSA 5.2933(1)(1) (city or village zoning). MCL 125.216(2); MSA 5.2961(16)(2), MCL 125.286(2); MSA 5.2963(16)(2), MCL 125.583a(2); MSA 5.2933(1)(2). De Mull, supra p 252. To the extent that East Lansing is subject to both the home rule act and the zoning enabling act, and insofar as the two enactments embody overlapping grants of authority pursuant to the police power, the specific provisions of the zoning enabling act governing nonconforming uses are controlling. MCL 125.216(3); MSA 5.2961(16)(3), MCL 125.286(3); MSA 5.2963(16)(3), MCL 125.583a(3); MSA 5.2933(1)(3). MCL 117.4i(5); MSA 5.2082(5). Wolverine Sign Works, supra, p 207. Id., p 208 (emphasis added). See n 30 and accompanying text. The city acknowledges that zoning and sign codes both regulate setback and height requirements, but asserts that the purposes of the requirements are different in the two types of enactments. The effect, termination of nonconforming uses, is, however, the same under either denomination. 8.36 Signs Permitted — Off-Premises Signs. Off-premises, free standing or wall signs including bill board structures or signs shall be permitted on premises which are not otherwise used or occupied for the uses or purposes described in sections 8.30 through 8.35 of this Chapter subject to the following restrictions: (1) Off-premises signs shall be permitted only on premises which are zoned b-2 or m and which are located on major streets. (4) Such signs shall be set back not less than twenty-five (25) feet from the nearest existing or future curb line, or, in the absence of curbs, twenty-five (25) feet from the edge of pavement or the minimum setback for buildings and structures for the zoning district within which the sign is located, whichever is greater .... [Emphasis added.] These were terms of the rudimentary zoning ordinance in place at the time of enactment of the disputed provision. The ordinance provided: "In residential areas and excluding business streets, all structures, whether frame, fireproof or otherwise shall conform to the established front building line of existing adjacent, structures on same side of street or avenue, providing that the provisions of the foregoing subsection shall not be deemed to apply to structures already in existence on any corner lot.” [322 Mich 252.] Roof signs are apparently prohibited by the code throughout the city, § 8.38(12), and must "not be placed, maintained or displayed by any person on or after May 1, 1987.” Section 8.39(8). 1 Rathkopf, Zoning and Planning, § 1.02[3], pp 1-29. See, e.g., Dingeman Advertising, Inc v Algoma Twp, 393 Mich 89; 223 NW2d 689 (1974); Superior Twp v Reimel Sign Co, 362 Mich 481; 107 NW2d 808 (1961). See also Columbia v Omni Outdoor Advertising, Inc, 499 US —; 111 S Ct 1344, 1350; 113 L Ed 2d 382 (1991), characterizing the regulation of billboard size, spacing, and location as "surely a common form of zoning . . . .” The same assumption, or equation between zoning and sign regulation, is made by most of the authorities that hold that amortization does not amount to an unconstitutional taking of property without compensation. New Castle v Rollins Outdoor Advertising, Inc, 475 A2d 355 (Del, 1984); Fayetteville v McIlroy Bank & Trust Co, 278 Ark 500; 647 SW2d 439 (1983); Ackerly Communications, Inc v Seattle, 92 Wash 2d 905; 602 P2d 1177 (1979); Lubbock Poster Co v Lubbock, 569 SW2d 935 (Tex Civ App, 1978), cert den 444 US 833 (1979); Art Neon Co v City and Co of Denver, 488 F2d 118 (CA 10, 1973), cert den 417 US 932 (1974); Nat’l Advertising Co v Monterey Co, 1 Cal 3d 875; 464 P2d 33 (1970); Naegele Outdoor Advertising Co v Minnetonka, 281 Minn 492; 162 NW2d 206 (1968); Grant v Baltimore, 212 Md 301; 129 A2d 363; 172 NW2d 382 (1957). Bane v Pontiac Twp, 343 Mich 481, 492; 72 NW2d 134 (1955) (township ordinance affecting the location of and sanitary facilities in trailer homes; an enactment requiring termination of preexisting nonconforming uses, and having the effect of a zoning ordinance, could not be applied retroactively against the plaintiffs). See Detroit Edison Co v City of Wixom, 382 Mich 673, 690 (1969). Addressing this question nearly thirty years ago, at a time when the authorities were more evenly divided than today, the court in Hoffmann v Kinealy, 389 SW2d 745, 752 (Mo, 1965), observed that although the holdings in other jurisdictions may, in some instances, be enlightening and persuasive, it is neither our duty nor our inclination to rule a question of first impression in this state simply by counting foreign cases and then falling off the judicial fence on the side on which more cases'can be found. See also PA Northwestern Distributors, Inc v Zoning Hearing Bd of Moon Twp, 526 Pa 186; 584 A2d 1372 (1991); Lamar Advertising of South Georgia, Inc v Albany, 260 Ga 46; 389 SE2d 216 (1990); Ailes v Decatur Co Area Planning Comm, 448 NE2d 1057 (Ind, 1983); Akron v Chapman, 160 Ohio St 382; 116 NE2d 697 (1953); United Advertising Corp v Borough of Raritan, 11 NJ 144; 93 A2d 362 (1952), holding that amortization provisions are violative of constitutional limitations. Los Angeles v Gage, 127 Cal App 2d 442, 454; 274 P2d 34 (1954). Graham, Legislative techniques for the amortization of the nonconforming use: A suggested formula, 12 Wayne L R 435, 437 (1966). See also Lachapelle v Goffstown, 107 NH 485, 486-487; 225 A2d 624 (1967): In the beginning zoning "sought to safeguard the future, in the expectation that time will repair the mistakes of the past.” Experience has demonstrated that this expectation and prophecy has not been fulfilled and that something more than time and hope is required to eliminate or restrict nonconforming uses. [Citation omitted.] Hoffmann v Kinealy, n 43 supra, p 750. A further factor sometimes taken into account in calculation of a reasonable amortization period is whether the affected property owner, by virtue of the prospective ban on the similar use of property by other owners in the community, receives the benefit of a temporary "monopoly” on the nonconforming use. The implicit assumption of this analysis is that the community has a greater right to deprive persons of the use and enjoyment of their property if the community has taken action that indirectly enhances the value of such property. This argument, like the balance of the analysis applied by the courts finding that amortization does not effect a taking, overlooks the principle that unless a property right is at the outset insubstantial, neither the state nor local governmental units to which the state delegates police power may deprive persons of the use and enjoyment of their property without paying just compensation. The gratuitous, and assertedly fortuitous effects, if any, of "monopoly” do not alter this principle. Zahn v Los Angeles Bd of Public Works, 195 Cal 497, 512; 234 P 388 (1925). While the absence of a factual record prevents determination of the question, Adams Outdoor may also sustain an incremental, but substantial financial loss by virtue of the city’s ordained 300-square-foot limit for off-premises billboards, §8.36(2). This limit does not allow maintenance of 14 by 48 foot "painted bulletin” billboards. Both the smaller "poster” billboard, with dimensions of 12 by 25 feet (i.e., 300 square feet), and the larger painted bulletin are standard sizes and thus commercially recognized statewide and nationally. Nonetheless, if the billboards owned by Adams Outdoor are of the larger size, the amortization provision requires Adams Outdoor to absorb not only the cost of tearing down the old billboards and erecting new ones, but also a substantial, perpetual reduction in the stream of income from its property attributable to the difference in rental value between the two sizes. See Wolverine Sign Works, supra. MCL 252.303; MSA 9.391(103) recognizes that "outdoor advertising is a legitimate commercial use of private property, is an integral part of the marketing function and an established segment of the economy of this state.”

Memorandum Opinion. On several prior occasions, this Court has found it necessary to communicate, sua sponte, our views concerning a public question of substantial importance to the whole body politic. In re 1976 PA 267, 400 Mich 660; 255 NW2d 635 (1977); In re Districting for Court of Appeals, 372 Mich 227; 125 NW2d 719 (1964); In re Head Notes to the Opinions of the Supreme Court, 43 Mich 641; 8 NW 552 (1881). A similar occasion has now arisen. On April 1, 1992, we entered an order adopting, with modifications, the apportionment plan submitted by the special masters. Accordingly, this Court’s order of April 1, 1992, remains the law of Michigan, cloaked with the presumption of constitutionality until an appeal is filed in the proper court, the United States Supreme Court, and that Court rules otherwise. Thus, this memorandum opinion is entered to communicate the basis of our decision and, in the spirit of comity, to assist the federal court in the suit filed in the United States District Court for the Eastern District of Michigan. _ I A recurring part of the American political scene is the periodic apportionment and districting that follows each decennial census. It is axiomatic that apportionment is of overwhelming importance to the political parties. In recent years, other segments of society have increasingly realized the importance of this undertaking. Although apportionment is primarily a legislative task, this Court’s involvement in the process is of long standing. The constitutions of 1835, 1850, and 1908 required that the Legislature be apportioned following each decennial federal census. The purpose was to achieve a degree of fair representation, based on population. Districts were to be contiguous, and of a reasonably compact shape. Recognizing the importance of local communities, and the harm that would result from splitting the political influence of these communities, each of these constitutions explicitly protected jurisdictional lines. In a number of early mandamus actions against the Secretary of State, this Court was asked to rule that an apportionment was inequitable or otherwise violative of the constitutional provisions regarding the allocation of districts. Where relief was granted, it was ordinarily in the form of an order compelling the Secretary of State to conduct the election under the preceding valid apportionment. The principle that apportionment should honor jurisdictional lines was taken one step further in the 1952 amendments of the 1908 constitution. The districts of a thirty-four-member Senate were frozen into designated counties. The Legislature’s decennial apportionment task was .limited to the House. Under the 1908 constitution, as amended in 1952, few state constitutional issues remained. During the following years, however, an evolving appreciation of the constitutional aspects of apportionment helped develop the one-person/one-vote movement. After apportionment issues were found to be justiciable, this Court ruled in Scholle that the 1952 amendments concerning Senate districts were invalid. While Scholle was being litigated, the 1961 Constitutional Convention was in progress. The framers produced a constitution that called for a Senate that would be apportioned under a weighted formula involving both land area and population. Const 1963, arts 2-5. The 1963 constitution specifically directed that, in apportioning the Legislature, the highest allegiance was to be given to county lines. Wherever possible, city and township lines were also to be followed. Districts were to be compact, contiguous, and as nearly uniform in shape as possible. The 1963 constitution also established the Commission on Legislative Apportionment (cla). This body had eight members, four from each of the leading political parties. The 1963 constitution further provided that, if the cla was unable to adopt a plan, the rival plans were to be submitted to this Court, which was then to "determine which plan complies most accurately with the constitutional requirements.” Not long after the adoption of the 1963 constitution, the United States Supreme Court issued its decision regarding the principles of one-person/ one-vote. In time, this led to a determination that the weighted land/population formulation for apportioning the Michigan Legislature needed to be set aside. Notwithstanding that much of the language found in the 1963 apportionment sections was no longer to be enforced, the cla process continued in 1972, with the eventual result that this Court apportioned the state. A decade later, this Court decided In re Apportionments of State Legislature — 1982, 413 Mich 96; 321 NW2d 565 (1982). Observing that the United States Supreme Court had overturned the 1963 constitution’s requirements concerning the allocation of legislative districts, this Court concluded that "[w]hen the weighted land area/population apportionment formulae fell, all the apportionment rules fell because they are inextricably related.” 413 Mich 138. This Court recognized, however, that it retained the "responsibility to provide for the continuity of government by assuring that the people will be provided the opportunity to elect a lawfully apportioned Legislature in the 1982 election.” 413 Mich 116. To that end, we asked Bernard J. Apol, former Director of Elections for the Secretary of State, to produce maps in conformance with a set of directions drawn from the Michigan Constitution and other controlling authorities. A clarified set of directions, sent to Mr. Apol in response to his inquiry, was recounted in a later opinion written by Justice Levin and Justice Fitzgerald: 1. The Senate consists of 38 districts. 2. The House consists of 110 districts. 3. All districts shall be contiguous, single-member districts. 4. The districts shall have a population not exceeding 108.2% and not less than 91.8% of the ideal district which, based on the 1980 census, would contain 243,739 persons in the Senate and 84,201 persons in the House.[ ] 5. The boundaries of the districts shall first be drawn to contain only whole counties to the extent this can be done within the 16.4% range of divergence and to minimize within that range the number of county lines which are broken. 6. If a county line is broken, the fewest cities or townships necessary to reduce the divergence to within 16.4% shall be shifted; between two cities or townships, both of which will bring the district within the range, the city or township with the least population shall be shifted. 7. Between two plans with the same number of county line breaks, the one that shifts the fewest cities and townships statewide shall be selected; if more than one plan shifts the same number of cities and townships statewide, the plan that shifts the fewest people in the aggregate statewide to election districts that break county lines shall be selected. 8. In a county which has more than one senator or representative, the boundaries of the districts shall first be drawn to contain only whole cities and townships to, the extent this can be done within the 16.4% range of divergence and to minimize within that range the number of city and township lines which are broken. 9. If a city or township line is broken, there shall be shifted the number of people necessary to achieve population equality between the two election districts affected by the shift, except that in lieu of absolute equality the lines may be drawn along the closest street or comparable boundary; between alternative plans, shifting the necessary number of people, the plan which is more compact is to be selected. 10. Between two plans, both of which have the same number of city and township breaks within a particular county, the one which minimizes the population divergence in districts across the county is to be selected. 11. Within a city or township which is apportioned more than one senator or representative, election district lines shall be drawn to achieve the maximum compactness possible within a population range of 98%-102% of absolute equality between districts within that city or township. 12. Compactness shall be determined by circumscribing each district within a circle of minimum radius and measuring the area, not part of the Great Lakes and not part of another state, inside the circle but not inside the district. The plan to be selected is the plan with the least area within all the circles not within the district circumscribed by the circle. [Omitted are footnotes containing further clarification of this Court’s directions to Mr. Apol. In re Apportionment — 1982 (opinion of Levin and Fitzgerald, JJ.) 413 Mich 154-156.] Following a hearing, this Court adopted the apportionment plan submitted by Mr. Apol. We explained that the plan would remain in effect until the Legislature and the Governor enacted a new plan. The 1982 apportionment was challenged in the United States Supreme Court, but that Court dismissed the appeal for want of substantial federal question. Kleiner v Sanderson, 459 US 900; 103 S Ct 201; 74 L Ed 2d 161 (1982). Since 1982, the Legislature has made one significant attempt to apportion itself. However, that effort (1983 PA 256) was found to be unconstitutional because of the manner in which it was enacted. II Following the 1990 census, the Legislature again failed to apportion itself. Apparently foreseeing deadlock, the Legislature did not move past the preliminary stages of an attempt. In 1991, a lawsuit was filed in the Iosco Circuit Court, in which the plaintiffs asked the circuit judge to find the 1982 apportionment no longer valid in light of changes in the population, to enjoin elections under the 1982 apportionment, and to undertake a new and proper apportionment of the Michigan Legislature. Governor John M. Engler thereafter asked this Court to authorize the circuit judge to certify questions that would aid in apportioning the Legislature. At about the same time, an original action was filed in this Court. Our jurisdiction was invoked under Const 1963, art 4, which had formed the basis of our 1982 actions. In light of the pendency of this new matter, we dismissed the Iosco Circuit Court case. Still giving the Legislature additional time in which to proceed, we entered a December 9, 1991, order that appointed three special masters and directed them to submit an apportionment plan if the Legislature and the Governor did not enact one by January 15, 1992. The masters considered plans that had been submitted by several sources, including the major political parties. In addition, they conducted several days of hearings. On February 20, 1992, they issued their report. The masters determined that none of the plans submitted to them was satisfactory. They stated that these plans "either fail to comply with the 1982 criteria or do so only facially.” Further, the plans exhibited "a disregard of some specific criteria, such as community of interest.” The masters said that one of the political parties had presented a plan that included "districts whose configuration would challenge both the candidates and the voters to understand where their district lies.” Thus the masters drew their own plan. In doing so, they followed the same criteria used by Mr. Apol in 1982, although they also gave significant attention to § 2 of the Voting Rights Act of 1965, as amended in 1982 (vra), 42 USC 1973. The statute had not played a role in the 1982 apportionment. Explaining their method, the masters also said this: The panel did not consider political partisanship in any way and its plan is "incumbent neutral,” in that no attempt whatsoever was made to determine what effect the redrawn districts might have on existing officeholders. The panel concluded that these concepts, as well as "political fairness,” which might quite properly be considered in legislatively drafted plans should not be considered by nonpartisan masters. After observing that the political parties had stipulated that, as in 1982, 16.4 percentage points was the maximum allowable population divergence, the masters continued: The one thing that became clear as this panel reviewed the submittals and set about its own task, was that there should be no absolute hierarchy of criteria. While counties may be the building blocks of our apportionment system (1982, 413 Mich 125), county lines were "broken” when necessary to achieve acceptable population divergence; flexibility in population divergence was employed to maintain minority electorial participation already realized; vra interests were recognized and followed, but not to the exclusion of concerns of integrity of existing boundary lines, communities of interest, compactness and contiguity. [Emphasis supplied.] From these decisional principles, the masters produced an apportionment plan that was filed with this Court on February 20, 1992. Following submission of the masters’ plan, we invited comment, and conducted a public hearing on March 4, 1992. After full and careful consideration of the record and of the subsequent comments addressed to this Court, we adopted, with modification, the plan submitted by the masters. In re Apportionment of State Legislature — 1992 (Neff v Secretary of State), 439 Mich 251; 483 NW2d 52 (1992). III Among the comments we received regarding the report of the special masters, there are two areas that warrant extended discussion. Some persons felt that the masters’ plan would have violated the vra. We will address that question in section iv. Concern was also expressed regarding the population divergence found in the masters’ plan. In 1982, we had directed that in apportioning the Legislature, the maximum permissible divergence between the largest and smallest districts would be 16.4 percentage points. The proposal developed by the masters approached, but did not exceed, that limit. The masters’ plan for the Senate had a maximum deviation of 15.81 percentage points (ranging from 7.76 percent under the average to 8.05 percent over), and the plan for the House had a range of 16.13 points (from 8.01 percent under the average to 8.12 percent over). The plaintiffs and the intervening defendants in this matter (whose interests aligned with the major political parties) stipulated before the masters to the use of the 16.4 percentage-point divergence figure. They noted in the stipulation that our 1982 decision was appealed to the United States Supreme Court on the basis of a challenge to that maximum deviation, but the Court dismissed for lack of a substantial federal question. Kleiner v Sanderson, supra. Such dismissal is a disposition on the merits and has precedential effect. Hicks v Miranda, 422 US 332; 95 S Ct 2281; 45 L Ed 2d 223 (1975). As we have mentioned, several of the persons who commented on the masters’ plan argued that the range was excessive and violated the Equal Protection Clause. The focus of their argument was Brown v Thomson, 462 US 835, 839; 103 S Ct 2690; 77 L Ed 2d 214 (1983). That case concerned the apportionment of the Wyoming House of Representatives and focused particularly on the allocation of one seat to the smallest county in the state. Because of the small population of that county, the plan had a total deviation from the average of 89 percentage points. Those who criticized the masters’ use of the 16.4 percentage-point limit focused on the following language in the United States Supreme Court’s decision: In view of these considerations, we have held that "minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.” [Gaffney v Cummings, 412 US 735, 745; 93 S Ct 2321; 37 L Ed 2d 298 (1973).] Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations. See, e.g., Connor v Finch, 431 US 407, 418 [97 S Ct 1828; 52 L Ed 2d 465] (1977); White v Regester, 412 US 755, 764 [93 S Ct 2332; 37 L Ed 2d 314] (1973). A plan with larger disparities in population, however, creates a prima facie case of discrimination and therefore must be justified by the State. See Swann v Adams, 385 US 440, 444 [87 S Ct 569; 17 L Ed 2d 501] (1967) ("De minimis deviations are unavoidable, but variations of 30% among senate districts and 40% among house districts can hardly be deemed de minimis and none of our cases suggests that differences of this magnitude will be approved without a satisfactory explanation grounded on acceptable state policy”). [462 US 842-843. Emphasis added.] We were persuaded that those who criticized the masters’ population range had read too much into the United States Supreme Court’s statement in Brown. That decision did not create a 10 percentage-point limit. The Wyoming case before the Court had far larger divergences. The illustrative cases cited by the Court preceded our 1982 decision and the United States Supreme Court’s dismissal of the appeal of that decision. Rather, Brown merely said that larger divergences must be justified by valid state concerns. In fact, Brown itself reaffirmed the validity of the very state policies that Michigan has historically used in its apportionment of the Legislature: We have recognized that some deviations from population equality may be necessary to permit the States to pursue other legitimate objectives such as "maintain[ing] the integrity of various political subdivisions” and "providfing] for compact districts of contiguous territory.” [Reynolds v Sims, 377 US 533, 578; 84 S Ct 1362; 12 L Ed 2d 506 (1964).] As the Court stated in Gaffney, "[a]n unrealistic overemphasis on raw population figures, a mere nose count in the districts, may submerge these other considerations and itself furnish a ready tool for ignoring factors that in day-to-day operation are important to an acceptable representation and apportionment arrangement.” 412 US 749. There also can be no question that Wyoming’s constitutional policy — followed since statehood — of using counties as representative districts and ensuring that each county has one representative is supported by substantial and legitimate state concerns. In Abate v Mundt, 403 US 182, 185 [91 S Ct 1904; 29 L Ed 2d 399] (1971), the Court held that "a desire to preserve the integrity of political subdivisions may justify an apportionment plan which departs from numerical equality.” See Mahan v Howell [410 US 315, 329; 93 S Ct 979; 35 L Ed 2d 320 (1973)]. Indeed, the Court in Reynolds v Sims, supra, singled out preservation of political subdivisions as a clearly legitimate policy. See 377 US 580-581. Moreover, it is undisputed that Wyoming has applied this factor in a manner "free from any taint of arbitrariness or discrimination.” Roman v Sincock, 377 US 695, 710 [84 S Ct 1462; 12 L Ed 2d 620] (1964). The State’s policy of preserving county boundaries is based on the State Constitution, has been followed for decades, and has been applied consistently throughout the State. [462 US 842-843.] As noted, the result in Brown was to let stand an apportionment plan with far larger deviations than that submitted by our panel of masters. No one can deny that it would have been possible to achieve lower levels of population divergence. Indeed, if one ignored all jurisdictional boundaries, one could probably produce districts that varied by only a fraction of a percentage point. However, there are compelling reasons not to proceed in such a manner. For well over a century, Michigan law has recognized that effective representative government is strongly enhanced by apportioning the state in a manner that honors jurisdictional lines. State legislators are to represent their constituents. A legislator can perform that function only if there is some real community of interest among the represented group — without that, the legislator cannot speak effectively on the group’s behalf. Neither can the group address its legislator in any useful manner. When a small portion of a jurisdiction is split from the remaining body and affixed to another governmental entity in order to reduce population divergence, the shifted area is likely to lose a great portion of its political influence. For that compelling reason, grounded in sound public policy, all four Michigan Constitutions have provided that jurisdictional lines, particularly county lines, are to be honored in the apportionment process. We were thus convinced that the objective of preserving county and municipal boundaries, and the minimizing of shifts of municipalities and voters, justified the moderate disparity iñ district size present in the masters’ plan. Accordingly, we rejected the suggestion that the population variance in the masters’ plan was excessive. iv As mentioned earlier, several of the persons who commented on the masters’ plan expressed concern that it would violate § 2 of the Voting Rights Act of 1965, as amended in 1982 (vra). 42 USC 1973. This statute is violated if "the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens . . . .” In analyzing whether such a violation has occurred, a court examines "the totality of circumstances” to determine whether members of the protected class "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Those who challenged the masters’ plan as a violation of the vra observed that the proposed apportionment would have included five Senate and thirteen House districts in which a majority of persons would have been non-Hispanic blacks. Two types of argument were presented to challenge this aspect of the apportionment plan. One was the assertion that more districts could have been formed in which a racial minority comprised the majority of persons in the district (a so-called minority-majority district). Challengers also complained that several of the masters’ minority-majority districts were "packed,” i.e., they contained excessive concentrations of minority persons. A In determining whether the statute was violated, we followed the guidance of the United States Supreme Court, which had stated in Thornburg v Gingles, 478 US 30, 43-46; 106 S Ct 2752; 92 L Ed 2d 25 (1986), that one must examine the "totality of circumstances.” The Court also provided a list of factors that should be considered as one reviews the totality of the circumstances. The parties failed to demonstrate significant violations of these factors, most of which concern the extent to which racial discrimination has impeded the political participation of minority persons in Michigan. The parties did not establish that Michigan has ever been a jurisdiction with de jure segregation. African-American persons have been elected to statewide office in the executive and judicial branches, and to the state’s educational governing boards. Numerous black persons have served in the Legislature, and many hold office at the local level. The parties have shown no history of keeping black persons away from the polls through devices such as discriminatory poll taxes or literacy tests. Nor have they shown that Michigan has used unusually large election districts, majority vote requirements, or anti-single-shot provisions, or other practices that prevent black persons from achieving effective political representation. One may contrast the great bulk of reported vra decisions, which concern discriminatory patterns that the parties failed to show have ever been a problem in Michigan. For instance, the United States Supreme Court’s 1991 Chisom decision involved a Louisiana districting scheme that had impeded election of a black Supreme Court justice. Similarly, the United States Supreme Court’s 1991 affirmance in Jeffers came in a case where a federal district court discussed an amazingly resilient pattern of discriminatory racial practices. Problems with multimember southern electoral districts (which are treated in Gingles and Chisom, and mentioned in Jeffers) arise in a great number of reported vra cases. B As mentioned earlier, the specific vra objections lodged against the masters’ plan were twofold. The first was a claim that the vra requires an effort to maximize the number of "viable” minority-majority districts, i.e., districts in which the minority population is sufficient to assure that minority persons are able to elect candidates of their choice. The other was that the masters had drawn districts into which an excessive number of black persons were concentrated. The arguments in favor of those objections were based upon the view that the vra, originally enacted to shield southern blacks against Jim Crow abuses, was transformed in 1982 into a sword to be wielded by those seeking to assure proportional representation of minorities. It is thought by some that, in order to give black persons a reasonable opportunity to elect candidates of their choice, it is necessary that approximately 65 percent of a district be comprised of black persons. In Ketchum, the United States Court of Appeals for the Seventh Circuit supplied an explanation of the 65-percent figure that is often used to assure that a district is drawn in compliance with the vra. Where the political power of a minority is reduced by artificially drawing districts with less than 60- or 65-percent minority population, claims of dilution ("fracturing”) arise. C In considering whether such violations were present in the masters’ plan, we looked to decisions in several other jurisdictions. Ketchum is such a case, for it illustrates a concept called "retrogression,” in which an apportionment plan reduces the political clout of a minority group. The most recent census showed that the black and Hispanic populations of Chicago had increased significantly, relative to the white population, yet Chicago’s fifty aldermanic districts were somehow apportioned to decrease the number of districts that could reasonably be expected to elect minority aldermen. The Seventh Circuit affirmed the finding of a vra violation, and ordered additional proceedings concerning the remedy. Another significant decision arose from a dispute concerning Hispanic representation on the Los Angeles County Board of Supervisors. In Garza, the Ninth Circuit offered a statement that appears at first reading to support those who believe that the vra requires gerrymandering to achieve the maximum possible number of minority-majority districts. The court said that "[t]he deliberate construction of minority controlled voting districts is exactly what the Voting Rights Act authorizes.” However, that strong statement must be understood in its context. In violation of both the Fourteenth Amendment and the vra, the electoral districts for the Los Angeles County Board of Supervisors had been gerrymandered, with discriminatory intent, to preclude Hispanic represen tation on the Board. The statement quoted at the conclusion of the preceding paragraph of this opinion came in the remedy portion of the Garza opinion. To paraphrase, the deliberate construction of minority-controlled voting districts is exactly what the Voting Rights Act authorizes as a remedy when a violation has been proven. However, absent any other vra violation, it is not a statutory violation to fail to gerrymander a map to maximize the number of minority-majority districts. We were aware that the California Supreme Court had affirmed, with slight modification and over a strongly worded dissent, an apportionment plan devised by masters who " 'endeavored to draw boundaries that will withstand [§ 2 vra] challenges under any foreseeable combination of factual circumstances and legal rulings.’ ” There was much in the California decision with which we agreed, but we did not believe it necessary to ignore Michigan’s other lawful apportionment criteria in an effort to maximize the number of minority- majority districts. While some might find advantage in assuming that persons of one ethnic or racial background can be represented effectively only by permanently reserving a fixed number of districts for legislators of each race, we credited the citizens of Michigan with higher aspirations. D It was also suggested that the masters’ plan had "packed” too many black persons into some of the districts in Wayne County. Again, we sought guidance from decisions in other jurisdictions. In Rybicki I, the federal district court in Illinois considered a claim that a legislative apportionment plan discriminated against black voters by diluting their voting strength and providing white voters a disproportionate opportunity to elect candidates of their choice. The court found some purposeful dilution of black voting strength, and some instances of retrogression and intentional discrimination. However, the court rejected a claim of purposeful discrimination based on the "packing” of black votes on Chicago’s South Side and the creation of a "wall” separating black and white residential areas. While posttrial motions were pending in the case, Congress amended the vra, eliminating the need to prove an intentional act. The district court thus reconsidered the case under the "effect” or "results” test and issued Rybicki II. The court found that additional relief was necessary to eradicate vote dilution in certain districts in which "packing” had been proven at trial. However, in so doing, the court emphasized that the "wasting” of minority votes (many districts were more than 80 percent black and several were more than 90 percent black) did not itself constitute a violation of the vra, under the totality of the circumstances. Indeed, the court noted that one "interior” district in the city had such a heavy concentration of blacks that it "seems doubtful that, absent the most outlandish gerrymandering,” it ever could be "deconcentrated.” Id. at 1152, n 6. Rather, the court undertook a "tracing” analysis to see whether certain district lines had been drawn to correspond with lines of racial division. It found several instances where "lines of highly concentrated black districts correspond to pronounced divisions between black and white populations,” and others where "district lines, though not corresponding to such marked racial divisions, nevertheless correspond to significant divisions between blacks and whites and therefore are at least suspect.” Id. at 1157. Examining the parties’ claim of packing, we observed that the masters had succeeded in spreading the black population of Wayne County to a greater extent than was the case under the 1982 apportionment. In the Senate, three of the districts drawn in 1982 had very high concentrations (93.14 percent, 79.56 percent, and 77.64 percent) of black persons, whereas the masters proposed districts that, at the highest concentrations, were significantly more diverse (84.81 percent, 70.74 percent, and 70.23 percent black). In the House, five districts drawn in 1982 had over 90 percent black persons. The masters reduced that number to three. They also reduced the number of arguably packed (over 80 percent black) districts from nine to seven. As in the Chicago apportionment discussed in the Rybicki decisions, it was certain that portions of the City of Detroit are home to large concentrations of black persons. Obviously, districts can reflect that fact without being the product of gerrymandering. Such districts are not automatic violations of the vra, nor should they be viewed as unfair if they accurately reflect the racial composition of persons residing in a particular area. In Rybicki II, the court discussed "tracing,” in which district lines are compared to known residential patterns, to determine whether maps have been drawn to reinforce racial barriers. A check of the plan proposed by the masters revealed no such problem. It was true that the Detroit city limits and the Wayne-Oakland County line were also district lines. However, these are neutral lines that the masters followed in accordance with sound public policy reflected in state constitutional provisions for over 150 years and in accordance with specific directives from this Court that were unsuccessfully challenged in the United States Supreme Court in 1982. E During the course of the public hearing, and in the written submissions that were received in the days surrounding the hearing, we were told by several persons that the masters’ plan could be improved. Suggestions were offered concerning ways in which lines could be redrawn. Respectful of the persons who offered these comments, and thankful for their efforts to assist the process, we nevertheless declined to make significant changes in the masters’ plan because the masters’ plan comported with the constitutional and statutory requirements of fair representation. Had there been a violation of the vra, this Court would have insisted on an apportionment plan that vigorously remedied the denial of voting rights. However, the vra has not previously been violated in the course of legislative apportionment in Michigan and, in light of the totality of the circumstances, it was not violated under the masters’ plan. Absent a violation, there was no need to redraw Michigan’s legislative districts in order to effect a vra remedy._ We were satisfied that the legislative districts drawn in 1982 reflected the distribution of Michigan citizens at that time, and that the districts proposed by the masters likewise reflected the distribution of Michigan citizens in 1992. Moreover, with modification of five of the House districts proposed by the masters, we were able to provide an even better racial balance in those southeast Michigan districts. We were persuaded that there was no showing that "the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens” or that members of a protected class "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” The Court therefore determined that the masters’ plan as modified by this Court complied with the requirements of the vra. In sum, for the reasons given in our April 1, 1992, order, as further explained in this memorandum opinion, we adopted with modification the apportionment plan submitted by the masters. Cavanagh, C.J., and Levin, Brickley, Boyle, Riley, Griffin, and Mallett, JJ., concurred. To this point, there has been no affirmative defense by the defendant in the federal case of the state’s apportionment plan. The Attorney General has not, as yet, raised questions of jurisdiction, abstention, or res judicata. See, e.g., Illinois Legislative Redistricting Commission v LaPaille, 786 F Supp 704, 709-710 (ND Ill, 1992), and Members of the California Democratic Delegation v Eu, — F Supp — (ND Cal, March 3, 1992). The terms "apportionment” and "districting” are sometimes given slightly different meanings (apportionment referring to the allocation of legislators to an area, and districting referring to the alteration of district lines). For the sake of simplicity, and in keeping with established usage in Michigan, we will simply use the word "apportionment.” See, generally, Const 1835, art 4, §§ 2-6; Const 1850, art 4, §§ 2-4; Const 1908, art 5, §§ 2-4. For instance, Const 1850, art 4, § 3 and Const 1908, art 5, § 3 required that, to the extent it could be done without violating the other rules governing apportionment, the House of Representatives was to be apportioned so that the population was divided as evenly as possible. The 1908 constitution spoke of representative districts that consisted of "convenient and contiguous territory.” Const 1908, art 5, § 3. For instance, the 1835 constitution said that no county line could be broken in apportioning the Senate. Const 1835, art 4, § 6. The 1850 constitution repeated that rule, and added that no city or township could be divided in forming a representative’s district. Const 1850, art 4, §§ 2, 3. As originally enacted, the 1908 constitution continued those rules, though it permitted municipalities to be broken where they crossed county lines. Const 1908, art 5, §§ 2, 3. Houghton Co Bd of Supervisors v Secretary of State, 92 Mich 638; 52 NW 951 (1892), Giddings v Secretary of State, 93 Mich 1; 52 NW 944 (1892), Williams v Secretary of State, 145 Mich 447; 108 NW 749 (1906), Stevens v Secretary of State, 181 Mich 199; 148 NW 97 (1914), and Stenson v Secretary of State, 308 Mich 48; 13 NW2d 202 (1944). From the constitutional language regarding the method of apportionment, and by implication from the provision requiring that census data be employed, this Court enforced an inexact requirement of fairness in numerical representation. Usually, this Court also stated that the Legislature still had an opportunity to apportion correctly. Const 1908, art 5, § 2, as amended. Counties with more than one senator were to be apportioned by the county board of supervisors. Another provision of the 1952 amendments said that the Board of State Canvassers was to apportion the House of Representatives each decade, if the Legislature failed to handle the task. Const 1908, art 5, § 4, as amended. See Baker v Carr, 369 US 186; 82 S Ct 691; 7 L Ed 2d 663 (1962). See Scholle v Secretary of State, 360 Mich 1; 104 NW2d 63 (1960), vacated and remanded sub nom Scholle v Hare, 369 US 429; 82 S Ct 910; 8 L Ed 2d 1 (1962), reh den 370 US 906; 82 S Ct 1247; 8 L Ed 2d 402 (1962), Scholle v Secretary of State (On Remand), 367 Mich 176; 116 NW2d 350 (1962), cert den sub nom Beadle v Scholle, 377 US 990; 84 S a 1901; 12 L Ed 2d 1043 (1964). House districts were to be as nearly square as possible. Const 1963, art 4, § 6. Reynolds v Sims, 377 US 533; 84 S Ct 1362; 12 L Ed 2d 506 (1964). Regarding apportionment during this time period, see In re Apportionment of State Legislature — 1964, 372 Mich 418; 126 NW2d 731 (1964); In re Apportionment of State Legislature — 1964, 372 Mich 461; 127 NW2d 862 (1964); In re Apportionment of State Legislature —1964, 373 Mich 247; 128 NW2d 721 (1964); In re Apportionment of State Legislature — 1964, 373 Mich 250; 128 NW2d 722 (1964); In re Apportionment of State Legislature — 1965, 376 Mich 410; 137 NW2d 495 (1965); In re Apportionment of State Legislature — 1965-1966, 377 Mich 396; 140 NW2d 436 (1965), app dis sub nom Badgley v Hare, 385 US 114 (1966), reh den 385 US 1021 (1967). In re Apportionment of State Legislature — 1972, 387 Mich 442; 197 NW2d 249 (1972). Reh den 413 Mich 149; 321 NW2d 585 (1982), app dis sub nom Kleiner v Sanderson, 459 US 900; 103 S Ct 201; 74 L Ed 2d 161 (1982). Marshall v Hare, 378 US 561; 84 S Ct 1912; 12 L Ed 2d 1036 (1964). As this Court explained in the 1982 case, 413 Mich 140-142: Apart from population and land area, we see in the constitutional history of this state dominant commitments to contiguous, single-member districts drawn along the boundary lines of local units of government which, within those limitations, are as compact as feasible. We accordingly direct that election districts shall be drawn in accordance with the following criteria: (a) Senate and House election district lines shall preserve county lines with the least cost to the federal principle of equality of population between election districts consistent with the maximum preservation of county lines and without exceeding the range of allowable divergence under the federal constitution which, until the United States Supreme Court declares otherwise, shall be deemed to be 16.4% (91.8%-108.2%). Where it is necessary to break county lines, because otherwise the range of allowable divergence would be exceeded, there shall be shifted the fewest cities or townships necessary to reduce the population divergence sufficiently to bring it within the range of allowable divergence. Because of the narrowness of the range of allowable divergence, we anticipate that only one plan will organize the counties with the least breaking of county lines. (b) After the county lines are drawn, the election district lines within those counties to which there is apportioned more than one senator or representative shall be drawn on city and township lines with the least cost to the federal principle of equality of population between election districts consistent with the maximum preservation of city and township lines and without exceeding the range of allowable divergence. Where it is necessary to break city or township line's, because otherwise the range of allowable divergence would be exceeded, there shall be shifted the number of people necessary to achieve population equality between the two election districts affected by the shift. (c) Within a city or township to which there is apportioned more than one senator or representative, election district lines shall be drawn to achieve the maximum compactness possible within a population range of 98%-102% of absolute equality between districts within that city or township. [Footnotes omitted.] Using 1990 census data, these figures would be 244,613 persons in the Senate and 84,503 persons in the House. Slight modifications were made by this Court prior to adoption. This Court also invited the Legislature and the Governor to substitute their own plan for the 1982 election, provided it was enacted into law by May 4, 1982. Such an enactment did not occur. Anderson v Oakland Co Clerk, 419 Mich 142; 350 NW2d 232 (1984); Anderson v Oakland Co Clerk, 419 Mich 313; 353 NW2d 448 (1984). The problem was that, in enacting 1983 PA 256, the Legislature violated Const 1963, art 4, § 24, which provides that "[n]o bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title.” The Governor of Michigan and a majority of the state senators belong to one political party, while a majority of the representatives belong to the other major party. In advance of the decennial census results, we had received a request in early 1990 from several legislators who asked us to reopen the 1982 case, and to apportion the state. We declined. In re Apportionment of State Legislature, 437 Mich 1208; 463 NW2d 713 (1990). In the 1982 decision, we clearly explained that "[t]he weighted land area/population formulae,” "the remaining apportionment rules of art 4, §§ 2-6,” "the function of the commission [cla],” and "the commission itself” were "inextricably interdependent” and therefore "not severable.” However, this Court did not invalidate Const 1963, art 4, § 6 insofar as it authorized this Court to fulfill its "responsibility to provide for the continuity of government by assuring that the people will be provided the opportunity to elect a lawfully apportioned Legislature in the 1982 election.” 413 Mich 116. In re Executive Message of the Governor, unpublished order of the Supreme Court entered December 9, 1991 (Docket No. 92124); In re Apportionment of State Legislature — 1992 (Neff v Secretary of State), 439 Mich 1203 (1991). Id. The presiding judge was Judge Harold Hood of the Court of Appeals. The other two panel members were retired Judge T. John Lesinski of the Court of Appeals and retired Judge William R. Peterson of the 28th Judicial Circuit. By order of January 23, 1992, Judge William A. Porter of the 46th Judicial Circuit was substituted for Judge Peterson. January 15 passed with no legislative enactment. In re Apportionment of the State Legislature — 1992, order of the Supreme Court entered February 20,1992 (Docket No. 92092): On order of the Court, a hearing will be held in the Supreme Court courtroom on March 4, 1992 at 2:00 p.m. regarding the legislative reapportionment plan submitted by the Special Panel of Masters. The parties to this action may file briefs not later than March 2, 1992 and may request oral argument. In addition, any interested persons or organizations, including those who appeared as parties amicus curiae before the Special Panel, who wish to present objections to the adoption of the aforesaid reapportionment plan shall submit a written statement outlining the proponent’s position in this regard to the Supreme Court Clerk no later than March 2, 1992. Participation in the hearing will be limited to those timely filing such statements of position. The time to be permitted to each person who wishes to address the Court will be announced by the Clerk prior to the beginning of the hearing. Those who presented views at the hearing or otherwise submitted comments on the masters’ plan included: Aclu Fund of Michigan, For Women Members of the Michigan Legislature; Alcona County Board of Commissioners; Latinos for Fair Representation; Charlevoix County Board of Commissioners; Michigan Legislative Black Caucus; Montmorency County Board of Commissioners; naacp; Senate Democratic Caucus; Robert Block, City Administrator, City of Southfield; Raymond A. Charron, Judge, 26th District Court; Floyd Clack, State Representative 80th District; Harry Gast, State Senator 22nd District; Tom Hickner, State Representative 101st District; Glen Hop, Chair, 9th District Republican Committee; Thomas W. Jones, Detroit; John F. Kelly, State Senator 1st District; Thomas E. Klunzinger, Haslett, Ingham County; Carl J. Marlinga, Macomb County Prosecutor; Jim McBryde, State Representative 99th District; John McEwan, Former Mayor, City of River Rouge; James McNutt, State Representative 102nd District; Arthur Miller, State Senate Minority Leader, 27th District; Winifred Motherwell, Haslett, Ingham County; Richard Posthumus, Senate Majority Leader, 31st District; Thomas G. Power, State Representative 104th District; Norman S. Primus, South Bend, Indiana; Gary L. Randall, State Representative 89th District; Linda and Christopher Richardson, Livonia; David Robertson, State Representative 83rd District; Nelson W. Saunders, State Representative 7th District; Harold Schuitmaker, Chair, 4th District Republican Committee; John Strand, State Representa tive 84th District; Lynn Tate, President, River Rouge School Board; William Van Regenmorter, State Senator 23rd District; Donald VanSingel, State Representative 19th District; Ted Wallace, State Representative 10th District; Virginia L. White, Meridian Township Clerk, Ingham County; Thomas F. Wieder, Ann Arbor; Coleman A. Young, Mayor, City of Detroit. We note that in Members of the California Democratic Delegation v Eu, supra, a three-judge federal panel dismissed a vra challenge to the California congressional apportionment, deferring to the decision of the California Supreme Court in Wilson v Eu, 1 Cal 4th 707; 4 Cal Rptr 2d 379; 823 P2d 545 (1992). The panel stated: Absent the conferring of exclusive jurisdiction on the federal courts, and absent allegations that the state court’s proceedings were in bad faith or unconstitutional, we must abstain and presume that the state courts will safeguard federal constitutional and voting rights. Where abstention is required, and the state court proceeding has been concluded, the remedy is dismissal. [— F Supp —. Citations omitted. Slip op, p 15.] Total population divergence is the sum of the number of percentage points that separate the smallest district from an "ideal” (average) district and the number of percentage points that separate the largest district from the ideal. See New York City Bd of Estimate v Morris, 489 US 688, 700; 109 S Ct 1433; 103 L Ed 2d 717 (1989). The source of the 16.4 percentage-point figure was the United States Supreme Court’s decision in Mahan v Howell, 410 US 315; 93 S Ct 979; 35 L Ed 2d 320 (1973). There, the Court permitted a Virginia apportionment which included a 16.4 percentage-point variation. The Court said that that range "may well approach tolerable limits.” 410 US 329. Our order to the masters left open the matter of the allowable population divergence. We said: 4. Except as otherwise required by constitution or by law, the criteria to be employed in adopting a plan are those set forth in In re Apportionment of State Legislature — 1982, 413 Mich 96, 141-142 (1982). However, we intimate no opinion with respect to the range of allowable population divergence (see Mahan v Howell, 410 US 315 [1973], and Brown v Thomson, 462 US 835; 103 S Ct 2690; 77 L Ed 2d 214 [1983]), or with respect to the application of the Voting Rights Act (see Thornburg v Gingles, 478 US 30 [106 S Ct 2752; 92 L Ed 2d 25 (1986)]). [439 Mich 1203 (1991).] The masters provided a statistical analysis of the plan, which in part showed the following: Senate House Average population over ideal 9,843.21 3,851.08 Average population under ideal Population of districts with 9,843.05 3,453.28 4,706,065 4,532,080 least population needed to elect a majority (50.63%) (48.76%) Number of districts within 3% of ideal 18 35 Number of districts within 4% of ideal 20 57 Number of districts within 5% of ideal 24 63 Number of districts within 6% of ideal 26 81 Number of county breaks 1 12 Ratio of largest district to smallest 1.17 to 1 1.18 to 1 The masters entered an order on January 17, 1992, which stated that "a plan with a range of divergency in excess of 16.4 percent (91.8 percent to 108.2 percent) cannot be justified and will not be considered.” The plans submitted by the political parties complied with the panel’s order, but contained divergence ranges of about that magnitude. The Wyoming plan had an average deviation of 16 percentage points. 462 US 839. Indeed, in our 1982 decision, we noted the emergence of 10 percentage points as a de minimis divergence. 413 Mich 128, n 17. The United States Supreme Court also acknowledged that the constitutionality of a state legislative apportionment plan is not to be judged by the more stringent population-divergence standard that governs congressional apportionment. See Mahan, supra. Where election district lines are drawn along county and city boundary lines, the apportioning body may, within limits, depart from the goal of population equality in order to satisfy other rational, legitimate state goals such as preserving the integrity of political subdivisions. Id.; see also Reynolds v Sims, supra. The average divergence in the masters’ plan was 4.024 percentage points in the Senate, and 4.309 points in the House. That was a significant improvement over the average deviations in the 1982 apportionment, which were 5.306 percentage points in the Senate and 5.07 points in the House. 413 Mich 207-208. It could be argued that the Wyoming plan, with its 16 percentage-point average variation presented too great an overall level of variation. The majority and concurring justices did not reach that question because of the limited nature of the challenge to the Wyoming plan. Counties are the basic organizational unit of Michigan government. For example, the officials responsible for basic law enforcement and public recordkeeping — the prosecuting attorney, sheriff, clerk and register of deeds — are selected on a county basis. Const 1963, art 7, §4. And many vital government services, which are an important part of the work of the Legislature, are provided at the county level. Similarly, the judicial circuits, Michigan’s courts of general jurisdiction, are drawn on county lines. Const 1963, art 6, § 11. Likewise, districts for the Michigan Court of Appeals are drawn on county lines. Const 1963, art 6, § 8. We previously have emphasized that this respect for jurisdictional boundaries extends to political entities within counties, as well as to the counties, themselves, and that it has historical underpinnings. Apportionment of Wayne Co Bd of Comm’rs — 1982, 413 Mich 224; 321 NW2d 615 (1982). There, we held that election districts for county commissioners must be drawn so as to preserve city and township lines, to the extent that this is compatible with the federal principle of equality of population. Of the plans urged as alternatives to the masters’ plan, only one had a significantly smaller population divergence. However, this alternative plan would have required us to break more county lines and thus to shift more people into districts dominated by voters from another county. (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in [42 USC 1973b(f)(2)], as provided in subsection (b) . . . . (b) A violation of subsection (a) ... is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) . . . in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. [42 USC 1973.] Wayne County Population Divergence Black Population Senate District 1 230,664 -13,949 (5.70%) 126,448 (54.82%) Senate District 2 229,997 -14,616 (5.98%) 162,704 (70.74%) Senate District 3 227,783 -16,830 (6.88%) 159,973 (70.23%) Senate District 4 227,314 -17,299 (7.07%) 192,798 (84.82%) Senate District 5 226,121 -18,492 (7.56%) * 158,043 (69.89%) House District 2 81,492 -3,011 (3.56%) 52,722 (64.70%) House District 3 82,454 -2,049 (2.42%) 72,918 (88.43%) House District 4 82,133 -2,370 (2.80%) 73,833 (89.89%) House District 5 80,058 -4,445 (5.26%) 52,365 (65.41%) House District 6 82,732 -1,771 (2.10%) 56,842 (68.71%) House District 7 82,977 -1,526 (1.81%) 68,790 (82.90%) House District 9 81,439 -3,064 (3.63%) 65,369 (80.27%) House District 10 80,748 -3,755 (4.44%) 74,513 (92.28%) House District 11 81,669 -2,834 (3.35%) 78,241 (95.80%) House District 12 80,522 -3,981 (4.71%) 73,498 (91.28%) House District 13 80,124 -4,379 (5.18%) 45,747 (57.10%) House District 14 82,260 -2,243 (2.65%) 55,146 (67.04%) Genesee County House District 48 83,304 -1,199 (1.42%) 57,718 (69.30%) In Gingles, where an apportionment of multimember districts was found to violate the vra, the Court also provided several threshold requirements for finding a vra violation. "First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. Second, the minority group must be able to show that it is politically cohesive. . . . Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it ... to defeat the minority’s preferred candidate.” 478 US 50-51. Reported vra decisions reveal uncertainty regarding whether these threshold tests must be shown where there is a challenge to the apportionment of single-member districts. Assuming the threshold requirements apply, it is clear that Michigan has geographically compact areas with ample black persons to constitute a majority of some districts. With regard to whether black persons in Michigan vote in a politically cohesive manner and whether white voters are also likely to vote as a bloc, we made no findings. Although proofs had been taken during the evidentiary hearing before the masters, we were not satisfied that it was then possible to make such generalizations regarding the voting practices of such large and diverse groups of Michigan voters. In Gingles, the Court presented these considerations: "1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process; "2. the extent to which voting in the elections of the state or political subdivision is racially polarized; "3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; "4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process; "5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process; "6. whether political campaigns have been characterized by overt or subtle racial appeals; "7. the extent to which members of the minority group have been elected to public office in the jurisdiction. "Additional factors that in some cases have had probative value as part of plaintiffs’ evidence to establish a violation are: "[8.] whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group. "[9.] whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.” [478 US 36-37.] This list was taken from the legislative history (S Rep No 417, 97th Cong [2nd Sess], pt I at 28-29, reprinted in US Code Cong & Admin News, pp 206-207 [1982]) which, in turn, came from the analytical framework of White v Regester, supra, as refined and developed in several federal decisions. Nor did the parties’ proofs sufficiently demonstrate a community of interest between and among the voter populations of Oakland County and the voter populations of the City of Detroit and Wayne County. African-American persons are the principal minority group in Michigan, and therefore our discussion was, in the main, limited to vra arguments concerning black persons. However, we were aware that Michigan also has a substantial Hispanic population, and many persons of other racial and ethnic backgrounds. In this regard, we observed that the masters’ plan reflected, in part, their desire to preserve intact a concentration of Hispanic population in southwest Detroit. Several vra cases refer to "single-shot” voting, which is also called "plunking.” Where a person can vote for several candidates in a field, the single-shot voter selects only one, in order to avoid adding votes to those against whom the person’s most preferred candidate is running. Chisom v Roemer, 501 US —; 111 S Ct 2354; 115 L Ed 2d 348 (1991). Jeffers v Clinton, 730 F Supp 196 (ED Ark, 1989), aff’d 498 US 1019; 111 S Ct 662; 112 L Ed 2d 656 (1991). Despite the express language of the proviso at the end of 42 USC 1973(b), some would argue that the number of minority-majority districts should be proportional to the statewide minority population. That would not be an appropriate objective in Michigan, since much of the state’s minority population lives in areas where it is not possible to form a minority-majority district. As the United States Supreme Court explained in Gingles, the 1982 amendment of the vra was a congressional response to Mobile v Bolden, 446 US 55; 100 S Ct 1490; 64 L Ed 2d 47 (1980), in which a plurality of the Court agreed that a discriminatory intent was an element of a vra violation. The 1982 amendment substituted an "effect” test for the "intent” requirement stated in Bolden. Ketchum v Byrne, 740 F2d 1398, 1415 (CA 7, 1984), cert den 471 US 1135 (1985). The figure had appeared in an earlier vra decision, United Jewish Organizations of Williamsburgh, Inc v Carey, 430 US 144; 97 S Ct 996; 51 L Ed 2d 229 (1977). The court in Ketchum explained: A guideline of 65% of total population has been adopted and maintained for years by the Department of Justice and by reapportionment experts and has been specifically approved by the Supreme Court in circumstances comparable to those before us as representing the proportion of minority population reasonably required to ensure minorities a fair opportunity to elect a candidate of their choice. This figure is derived by augmenting a simple majority with an additional 5% for young population, 5% for low voter registration and 5% for low voter turn-out, for a total increment of 15%. This leads to a total target figure of 65% of total population. Obviously if voting age population statistics are used, 5% would drop out of the formula, leaving something in the vicinity of 60% of voting age population as the target percentage. [740 F2d 1415.] However, we observe that the 65-percent rule has been questioned in a number of recent opinions. See, e.g., Burton v Sheehen, — F Supp — (SD SC, May 1,1992). One also encounters in some cases the concept of an "influence district.” These may be found in areas where there are insufficient members of a minority group to form a minority-majority district, but enough that the minority group can have a significant voice in the district. See, generally, Gingles, 478 US 46, n 12, Chisom, 115 L Ed 2d 364, n 24, Armour v Ohio, 775 F Supp 1044 (ND Ohio, 1991), and Hastert v Illinois Bd of Elections, Ill F Supp 634 (ND Ill, 1991). We read Armour and Hastert to mean, quite simply, that apportionment must proceed fairly, with significant blocks of minority groups neither being assembled nor dispersed through gerrymandering. By contrast, the Alaska Supreme Court took the position that a VRA-based corrective measure was unnecessary where there was no "retrogression” of minority interests in the affected area. Kenai Peninsula Borough v Alaska, 743 P2d 1352 (Alas, 1987). Garza v Los Angeles Co, 918 F2d 763, 776 (CA 9, 1990), cert den 498 US 1028; 111 S Ct 681; 112 L Ed 2d 673 (1991). We note that the United States Supreme Court has recently noted probable jurisdiction in Voinovitch v Quilter, 504 US —; 112 S Ct 2299; 119 L Ed 2d 223 (1992). Quilter is an unpublished January 31, 1992 decision of the United States District Court for the Northern District of Ohio (Docket No. 91CY-2219). In Quilter, the defendants included the Republican members of the apportionment board and the person who had drafted the apportionment plan. They contended that the vra requires, wherever possible, the creation of minority-majority districts. However, the federal panel stated: We conclude that the Voting Rights Act and federal precedent do not dictate such a per se requirement. While creation of such districts may be an appropriate remedy under .certain circumstances, Defendants here failed to make the requisite findings which demonstrate a violation of the Voting Rights Act, thereby permitting such remedy. [Quilter, slip op, p 2.] Wilson v Eu, n 34 supra. For example, the California Supreme Court said that their masters acted "quite properly” in assembling a plan that was "incumbent neutral.” As noted above, the masters in this matter said that "there should be no absolute hierarchy of criteria.” They further explained that "[wjhile counties may be the building blocks of our apportionment system (1982, 413 Mich 125), county lines were 'broken’ when necessary to achieve acceptable population divergence; flexibility in population divergence was employed to maintain minority electorial participation already realized; vra interests were recognized and followed, but not to the exclusion of concerns of integrity of existing boundary lines, communities of interest, compactness and contiguity.” That is an appropriate interplay of the vra and other concerns. If there were an "absolute hierarchy of criteria,” one could not move to a second requirement until one had exhausted the mathematical possibilities of maximizing the first. And one might never reach a third or fourth criterion. In this regard, we noted that in Watkins v Mabus, 771 F Supp 789, 805 (SD Miss, 1991), the federal district court said that it was expressing no opinion regarding whether the vra requires a state to maximize the number of minority-majority districts. Watkins was affirmed in part. 502 US —; 112 S Ct 412; 116 L Ed 2d 433 (1991). In the second of his two dissenting opinions in Jeffers, 730 F Supp 226-284, Judge Eisele discussed the election of Virginia Governor Douglas Wilder, and suggested that black/white voting patterns may, in significant part, be a reflection of political trends rather than racial distrust. He also observed that if the number of minority-majority districts is maximized, then it necessarily follows that black influence is elsewhere minimized, which reduces the number of districts in which blacks, fully participating in an integrated process, can hold the balance of power. The experience in Michigan has been that black voters sometimes choose white candidates and that white voters sometimes choose black candidates. If whites and blacks cannot compete fairly in an integrated political process, the alternative is to relegate minority citizens to second-class status as wards of the political/electoral system. These dangers are well discussed by Judge Eisele, writing for the court in Turner v Arkansas, 784 F Supp 553, 559-563 (ED Ark, 1991), aff’d 504 US —; 112 S Ct 2296; 119 L Ed 2d 220 (1992). "Packing” is another abusive form of gerrymandering, which can reduce artificially the political power of a minority. When districts are drawn with over 80 percent minority population, care must be given that minority political influence has not been "wasted” by placing in such a district persons who properly belong in a district with a lesser percentage of minority persons. Rybicki v State Bd of Elections (Rybicki II), 574 F Supp 1147, 1152 (ND Ill, 1983). Rybicki v State Bd of Elections (Rybicki I), 574 F Supp 1082 (ND Ill, 1982). Rybicki v State Bd of Elections (Rybicki II), n 67 supra. The court asked the redistricting commission to submit new district lines in several areas to accommodate the vra. Subsequently, the parties reached agreement and the court approved. Rybicki v State Bd of Elections (Rybicki III), 574 F Supp 1161 (ND Ill, 1983). We calculated these figures by applying present (1990 census) demographic data both to the districts proposed by the masters and to the districts that were drawn in the 1982 apportionment. We further observed that all the minority-majority House districts proposed by the masters had populations that were below the size of the average ("ideal”) district. This had also been true under the 1982 apportionment. Drawing districts in such a fashion bolsters the relative voting strength of persons living in those districts, and diminishes the perceived problem of "wasted” minority votes. It also reduces the effect of significant population decreases in the affected areas. For instance, some noted population disparities; others urged that voters with common interests could be more effectively grouped. Still others maintained that more regular boundaries could have been drawn. And a number of persons complained of the masters’ disinterest in the location of incumbents’ residences. These comments illustrated that apportionment is a legislative function. Such ideas could have been aired in a legislative debate regarding development of a plan. However, the masters followed our 1982 criteria, which ignored the political considerations with which the Legislature could have dealt effectively. Additionally, some criticized the use of census tracts rather than vote tabulation districts. There were reasonable arguments on both sides of this question. Because the masters had produced a satisfactory plan, and the suggested change in method would have caused great delay, we declined to set aside the plans on this basis. Finally, there were complaints that precincts had been split between districts, requiring that voters at the same polling place vote in different districts. This is an inevitable consequence of apportionment, particularly where different agencies apportion federal, state, and local legislative bodies. There is a statutory mechanism for adjusting precincts to deal with such situations. MCL 168.655; MSA 6.1655. Compare Illinois Legislative Redistricting Commission v LaPaille, supra, in which a three-judge federal panel discussed the Illinois Supreme Court’s decision regarding apportionment of the Illinois legislature. People ex rel Burris v Ryan, 147 Ill 2d 270; 167 Ill Dec 903; 588 NE2d 1033 (1992). In LaPaille, the panel observed that it was unclear whether the Illinois Supreme Court had considered, or made any findings regarding, the vra, the Fourteenth Amendment, or the Fifteenth Amendment. The table reproduced ante, 439 Mich 253, showed the effect of the modifications made in the five House districts: District Masters’ plan Plan as adopted 4 89.89% 85.73% 5 65.41% 70.02% 11 95.80% 79.71% 13 57.10% 71.95% 14 67.04% 68.17% The gravamen of one argument made before this Court was that an affected area of Detroit and neighboring Wayne County communities with the same external boundaries as it had in 1982 will lose three seats. The 1982 apportionment produced seventeen seats in the House of Representatives, of which ten are currently held by black legislators. The vka claim was that the loss of three seats (due to loss of population and reduction of population divergence) will be three black seats. The argument that three black seats will be lost was entirely speculative, given the fact that it is undisputed that there are eleven minority-majority districts created by the Court’s plan, and a twelfth seat, the 2nd House district which has a 64.07 percent black population. Indeed, if one looks to the population of the affected area, it is clear that the plan increases the likelihood of electing black legislators. Using the figure of eleven minority-majority seats out of 110 seats in the House of Representatives, 8.3 percent of the state’s population (the black population in the affected area) has the capacity to elect ten percent of the representatives in the House. Using the figure of twelve minority-majority seats (including District 2 at 64.07 percent), that 8.3 percent will be capable of electing eleven percent of the House. In that order, we stated, inter alia: Others have suggested that the masters’ plan would violate the vra, particularly with regard to the apportionment of Wayne County. This statute is violated if "the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by [the vra] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 42 USC 1973(b). Thornburg v Gingles, 478 US 30, 43-46; 106 S Ct 2752; 92 L Ed 2d 25 (1986), teaches that one makes this determination through an examination of the "totality of circumstances.” We are persuaded, however, that the masters did consider the totality of circumstances and that they were appropriately concerned with recognition of vra interests. To that end, in adopting today’s reápportionment plan, we have accepted for the most part the masters’ plan while reconfiguring House Districts 4, 5, 11, 13 and 14 in order to provide a better racial balance throughout these districts. [439 Mich 252-253.]

Cavanagh, C.J. We address in this case the authority of a local governing body to disapprove a proposed subdivision plat pursuant to the Subdivision Control Act (sca), MCL 560.101 et seq.; MSA 26.430(101) et seq., and the scope of such a body’s authority to place conditions on the approval of such a plat consistent with this Court’s decision in Arrowhead Development Co v Livingston Co Road Comm, 413 Mich 505; 322 NW2d 702 (1982). We conclude that the local township board of trustees in this case acted within its authority under the sca and Arrowhead. I. FACTS AND PROCEDURAL HISTORY On December 15, 1987, Meridian Township granted the developer plaintiffs’ request to rezone a fifty-three-acre parcel of property north of Haslett Road in Meridian Township for single-family, medium density residential development. The proposed subdivision plan submitted in connection with the rezoning provided for two access routes to Haslett Road. The first was an indirect access at the western end of the development, connecting via a stub street, Wood Knoll Drive, to an existing subdivision cul-de-sac, Creekwood Lane, which in turn opens onto Haslett Road. The second was a direct boulevard access opening directly onto Haslett Road at the eastern end of the development. The development of the overall subdivision was apparently envisioned in four stages, although the parties dispute whether it was understood, at the time of the rezoning, whether the direct access road would be built contemporaneously with the first stage of the development, or would not be completed until later stages of the development. In any event, the developer submitted a preliminary plat for the first phase of the development, entitled Meadowbrook Estates, on March 2, 1988. This plat proposed construction of twenty-five new homes on an 8.8-acre parcel at the eastern end of the overall development area. For this initial phase of the development, access to Haslett Road was to be provided only through Creekwood Lane, and not through the direct boulevard access. As required by the sca, the developer submitted the plat to the Ingham County Health Department, the Ingham County Drain Commission, and the Ingham County Road Commission, and obtained the necessary approvals. The road commission, however, imposed the condition, not challenged by the developer, that a direct access route to Haslett Road be built for hauling and construction purposes. The Tri-County Regional Planning Commission and the Haslett Public Schools also approved the plat. The Meridian Township Planning Commission conducted a public hearing on the plat on June 20, 1988, and heard evidence that increased traffic from the proposed development would aggravate an already dangerous traffic condition at the intersection of Creekwood Lane and Haslett Road. Nevertheless, the planning commission approved the plat on July 11, 1988, by a vote of five to three, with two of the dissenting commissioners expressing concern about the increased traffic load on the Creekwood-Haslett intersection. The planning commission’s approval was subject to six conditions, none challenged by the developer. The fifth condition was that future development beyond the twenty-five homes of phase one would require the construction of the proposed direct access route to Haslett Road. The Meridian Township Board of Trustees, the final local authority with regard to plat approval, considered the proposed plat at its regular meeting of September 20, 1988, and disapproved it by a vote of five to one. At meetings on October 3 and November 22, 1988, the board amended the minutes of its September 20 meeting to specify the reasons for its disapproval of the plat and the key condition of approval, which were adopted by a vote of five to two, as follows: (1) The subdivision is designed in such a way as to encourage use of Creekwood [Lane] by through traffic. Such a design is not consistent with Section 101-4.12(a) of the subdivision regulations, which states that streets shall be so arranged so as to discourage their use by through traffic. (2) The alignment of Wood Knoll Drive provides sole access onto Creekwood [Lane], which requires egress onto Haslett Road at a point where there is less than 750 feet of sight distance — in violation of Section VII.B.1 of the County Road Commission Plat Procedures. It would be practical for the proprietor to provide access to Haslett Road farther to the east, where there is 750 feet of sight distance. The developer filed suit to overturn the disapproval of his plat on November 3, 1988, contending that (1) the township board failed properly to approve or disapprove the plat within ninety days of filing, with reasons for disapproval and conditions for approval stated in writing, in accordance with SCA § 112(2), and (2) the township board lacked substantive authority under the sca and Arrowhead, supra, to disapprove the plat and condition its approval on the requirement that the developer build the direct access route to Haslett Road. The Ingham Circuit Court, on February 1, 1989, granted the township’s motion for summary disposition, rejecting the developer’s § 112(2) claim, finding that the board’s disapproval of the plat was supported by SCA § 182(4)(a), and distinguishing Arrowhead. The court also stated, in its oral opinion of January 25, 1989, that the township board was entitled to require the developer to build an entrance to Haslett Road more than 750 feet east of the Creekwood-Haslett intersection, thereby indicating that the court also endorsed the board’s reliance upon § VII.B.1 of the road commission plat procedures. The developer appealed. The Court of Appeals affirmed the circuit court’s ruling with regard to the § 112(2) issue, but reversed with regard to SCA § 182(4)(a) and § VII.B.l of the road commission plat procedures, and held that the township board’s condition for approval violated the rule of Arrowhead. The Court remanded the case to the circuit court to consider whether the township board’s action was justified under § 101-4.12(a) of the Meridian Township Subdivision Regulations. The township applied for leave to appeal to this Court. In lieu of granting leave to appeal, we remanded the case to the circuit court for clarification of its ruling, while retaining jurisdiction. 437 Mich 1022 (1991). On June 25, 1991, the circuit court clarified its opinion as follows: In the opinion granting summary disposition to Defendant (issued from the bench on January 25, 1989), this Court did, indeed, view Haslett Road as the existing public street and Creekwood [Lane] as not being "suitable access” to that public street. The Court recognizes that Creekwood is literally, a public street itself, and that it provides some access to the outside world. The issue is whether the legislature authorized a township to decide whether such a residential street provides "suitable” access. In this Court’s view the legislature did grant that authority, and the township may withhold permission to develop the plat until suitable access is provided. We then granted leave to appeal, 439 Mich 868 (1991), and we now reverse the judgment of the Court of Appeals, finding ourselves in agreement with the reasoning of the circuit court. II. ANALYSIS A. THE TOWNSHIP BOARD’S STATUTORY AUTHORITY The authority of local governing bodies to approve and disapprove proposed subdivision plats is created and governed by the sca. SCA § 106 provides: No approving authority or agency having the power to approve or reject plats shall condition approval upon compliance with, or base a rejection upon, any requirement other than those included in [SCA § ] 105. SCA § 105 provides: Approval of preliminary and final plats shall be conditioned upon compliance with: (a) The provisions of this act. (b) Any ordinance or published rules of a municipality or county adopted to carry out the provisions of this act. (c) Any published rules of a county drain commissioner, county road commission, or county plat board adopted to carry out the provisions of this act. In this case, the township board asserts three grounds for its rejection of the developer’s proposed plat, one deriving from each quoted subsection. The board argues that its action is supported by (1) a "provision[ ] of this act,” namely, SCA § 182(4)(a), (2) a "published rule[ ] of a municipality,” namely, § 101-4.12(a) of the Meridian Township Subdivision Regulations, and (3) a "published rule[ ] of a ... county road commission,” namely, § VII.B.l of the Ingham County Road Commission Procedures for Plat Street Development. We do not address the validity of the township board’s reliance upon § 101-4.12(a) of the subdivision regulations, in view of the fact that neither the circuit court nor the Court of Appeals has passed on that issue, and we find that we need pot address that issue in order to resolve this case. The three issues before this Court are the validity of SCA § 182(4)(a) and § VII.B.l of the road commission plat procedures as bases for the township board’s action and the relevance of this Court’s decision in Arrowhead. B. SCA § 182(4)(a) Section 182(4)(a) of the sca states: The governing body shall . . . [r]eject a plat which is isolated from or which isolates other lands from existing public streets, unless suitable access is provided. [Emphasis added.] The Court of Appeals held that § 182(4)(a) does not apply to the instant situation since access to the subdivision is gained by Creekwood [Lane], an existing public street. Nor does the plat isolate any other lands from any public streets. [Slip op, p 4.] This interpretation would preclude rejecting any plat on the basis of § 182(4)(a) unless it were totally isolated, without regard for the suitability of whatever minimal access to some public street is provided. The interpretation thus effectively rewrites § 182(4)(a) so as to eliminate the requirement of "suitable access.” While "isolated” generally connotes detachment or separation, it is a common and ordinary usage of the term to employ it in referring to a relatively remote or inaccessible place or area, even though there may well be "some access” to such an area. It is thus a fair usage of the term to say that the proposed twenty-five-home subdivision in this case would be relatively "isolated” from Haslett Road, the main public street nearby, and therefore relatively isolated "from existing public streets.” In any event, reading § 182(4)(a) as an integrated whole, it clearly provides that the remedy for "isolation” is to provide "suitable access.” Not just any access, or some access, but suitable access. It. would contradict ordinary usage to deem any access, no matter how minimal or inconvenient, to automatically constitute suitable access. One standard dictionary defines "suitable” as "[appropriate to a given purpose or occasion,” and offers such synonyms as "fit, . . . meet, proper, appropriate, apt, fitting, happy, [and] felicitous.” The American Heritage Dictionary of the English Language: New College Edition (1982), pp 1217, 508. "Suitable . . . implies ability to meet requirements related to a particular need or to an occasion . . . .” Id. at 508. Under the Court of Appeals interpretation, if a plat starts out totally isolated from any public street, a township is free to reject the plat until and unless access is provided to the plat that the township finds to be "suitable” — that is, apt, fitting, appropriate, and able to meet the requirements of the particular situation. But if a plat starts out relatively isolated from existing public streets, but possessing some minimal access via a single entrance, as in the instant case, then § 182(4)(a) allegedly does not even apply. The existing access must automatically be deemed "suitable” for purposes of § 182(4)(a), no matter how inapt, inconvenient, inadequate, and in fact unsuitable, such access may be. This is an incongruous interpretation. Cf. Franges v General Motors Corp, 404 Mich 590, 612; 274 NW2d 392 (1979) ("statutes should be construed to prevent absurdity, hardship, injustice or prejudice to the public interest”). The Court of Appeals interpretation, in effect, rewrites § 182(4)(a) to read as follows: The governing body shall . . . [r]eject a plat which is totally isolated from or which totally isolates other lands from any existing public street, unless some access is provided to any existing public street. [Emphasized words added.] The effective excision of the term "suitable” from § 182(4)(a) violates, of course, the familiar principle of statutory construction that "[e]very word of a statute should be given meaning and no word should be treated as surplusage or rendered nugatory if at all possible.” Baker v General Motors Corp, 409 Mich 639, 665; 297 NW2d 387 (1980). At the very least, the foregoing analysis demonstrates that the meaning of § 182(4)(a) is open to serious question and cannot be resolved on the basis of a purely mechanical or literal interpretation. This brings into play the broader principles that govern our interpretation of the sca. Const 1963, art 7, § 34 states: The provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed in their favor. Powers granted to counties and townships by this constitution and by law shall include those fairly implied and not prohibited by this constitution. [Emphasis added.] We just recently reaffirmed the importance of this principle of liberal construction. See Adams Outdoor Advertising v East Lansing, 439 Mich 209, 218, n 14; 483 NW2d 38 (1992). Furthermore, as we have held: The primary and fundamental rule of constitutional or statutory construction is that the Court’s duty is to ascertain the purpose and intent as expressed in the constitutional or legislative provision in question. Also, while intent must be inferred from the language used, it is not the meaning of the particular words only in the abstract or their strictly grammatical construction alone that governs. The words are to be applied to the subject matter and to the general scope of the provision, and they are to be considered in light of the general purpose sought to be accomplished or the evil sought to be remedied by the constitution or statute. [White v Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979).] Thus, the township board’s authority under § 182(4)(a) must be broadly and liberally construed in light of the stated legislative purposes of the Subdivision Control Act, which, as set forth in the act’s preamble, are, inter alia: [T]o promote the public health, safety and general welfare; to further the orderly layout and use of land; . . . [arid] to provide for proper ingress and egress to lots .... The township board’s authority to determine whether the access provided to a proposed subdivision is "suitable,” above and beyond the minimal existence of any access to any existing public street, flows naturally from § 182(4)(a) when that provision is interpreted in light of the principles set forth above. The township board’s ability to ensure "suitability” of access clearly serves the stated legislative concerns relating to public safety, the orderly use of land, and proper ingress to and egress from lots. In sum, we conclude that while Creekwood Lane is, technically, a public street and would provide some access to the outside world for the proposed subdivision, the township board was entitled to conclude that Creekwood Lane would not provide suitable access to the subdivision in light of all the circumstances, in particular the safety concerns regarding the Creekwood-Haslett intersection discussed more fully in part 11(c). Therefore, § 182(4)(a) supports the township board’s disapproval of the proposed plat. C. ARROWHEAD Finally, the condition for plat approval imposed by the township board in this case — that the devel oper construct a direct access route from his initial proposed plat to Haslett Road, across the developer’s own land slated for eventual development and as envisioned by the developer’s own overall development plan — does not conflict with this Court’s decision in Arrowhead. The contrary argument rests on a strained and overbroad reading of Arrowhead that disregards the many distinguishing features of this case. In Arrowhead, the developer submitted for approval a subdivision plat adjoining Chilson Road, a public county road. A steep hill on Chilson Road threatened to create a hazardous sight obstruction for traffic entering and leaving the proposed subdivision by Navajo Trail, one of three planned entrances to the subdivision. The Livingston County Road Commission approved the plat subject to the condition that the developer remove the hill on Chilson Road and perform related regrading and resurfacing work to eliminate the sight obstruction. See id., 413 Mich 507-509. We stated the dispositive issue as follows: Whether a county road commission has authority to require a subdivision developer to make improvements on a county road located entirely outside the platted subdivision as a condition precedent to plat approval .... [Id. at 510.] Not surprisingly, we answered the question in the negative. In the first place, we noted that the county road law, MCL 224.21; MSA 9.121, places upon counties themselves the duty to maintain and improve public county roads, and specifies borrowing and taxation as the permissible methods for financing such improvements, not the imposition of such costs on the developers of nearby subdivisions. 413 Mich 512-513. In the second place, we noted that the sca simply did not authorize a condition such as that imposed by the road commission in Arrowhead. Id. at 513-516. The only purported statutory basis for the disputed condition was SCA § 183(1)(b), which provides that a road commission may require "[a]dequate provision for traffic safety in laying out drives which enter county roads and streets . . . .” (Emphasis added.) This clearly did not authorize a requirement that the developer improve the county road itself. We expressly emphasized two other crucially important factors in Arrowhead. First, we noted that conditioning plat approval on the developer’s improvement of land totally outside his own property would exceed the authority of local governments under the sca because "only the parcel or tract of land in which the proprietor has an ownership interest can be partitioned or divided by him . . . .” 413 Mich 517 (emphasis added). "[W]e think the Legislature cannot be said to have intended implicitly to extend the requirements of § 183(1)(b) to roads outside the subdivision which are not required to be shown on a plat.’ ” Id. at 518. Second, we noted that serious constitutional problems might arise from requiring a developer to improve a public road, conferring substantial benefits on other persons and property, without any compensation or allocation of costs. [N]owhere does there exist any statutory provision defining suitable standards governing cost allocation of off-site improvements. Apart from the constitutionality of the proposed exaction in this case, a question we neither reach nor decide, it is clear that it would be impermissible to impose the entire cost of an off-site improvement on a single subdivision developer where other persons or property would be specially beneñted. [Id. at 519. Emphasis added.] Significantly, this Court noted in Arrowhead that "under § 183(1)(b) the commission could have required that Arrowhead lay out Navajo Trail in a way which would locate its intersection with Chilson Road at a safe distance from the hazardous sight obstruction . . . .” 413 Mich 518 (emphasis added). This hypothetical condition bears a remarkable similarity to the condition that the township board has imposed in this case, which is essentially that the developer locate the main access road to his subdivision at a safe distance from the sight obstruction (the s-curve) on Haslett Road. The developer in this case has not been asked to remedy the sight obstruction on the county road itself, as was the developer in Arrowhead. The distinctions between this case and Arrowhead are thus self-evident and fundamental. The disputed condition in this case would not require the developer to undertake any improvement of public land, or of any land outside his own property that he himself has slated for eventual development. The required access road would not confer any special benefits on the public or on other persons or property; it would primarily benefit the developer’s own property and would further his overall development plans. As discussed in part ii(b), the township board has ample statutory authority to require that the developer provide for safe and suitable access to his own proposed subdivision. While the required access road would extend beyond the boundaries of the initial plat submitted by the developer, it does not constitute, as did the county road in Arrowhead, a road "outside the subdivision which [is] not 'required to be shown on a plat.’ ” 413 Mich 518. To the contrary, the required access road would traverse the developer’s own property across the overall planned subdivision, which the developer himself has already slated for eventual platting and development. In sum, nothing more has been asked of the developer in this case than that he develop his own property in a manner consistent with governing statutes, local regulations, and legitimate safety concerns. The duty to provide suitable access in accordance with such statutes and regulations rests with the developer. The township board’s request in furtherance of that goal does not in any way conflict with Arrowhead, and is, indeed, arguably endorsed by Arrowhead. III. CONCLUSION The courts cannot sit in judgment on the precise merits of the myriad discretionary and factbound decisions reached every day by democratically elected local governing bodies in the area of zoning and development. We can only review whether local governing bodies have discharged their powers in a manner consistent with applicable law. We find no basis for concluding that the township board has done otherwise in this case. We therefore reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court. Levin, Boyle, and Griffin, JJ., concurred with Cavanagh, C.J. The existing Creekwood Lane subdivision contains twenty-five homes. This procedural issue does not arise before this Court because the developer did not file any cross-application for leave to appeal from the Court of Appeals decision, and the issue was not raised in the township’s application for leave to appeal. We therefore express no view on the merits of that issue. Unpublished opinion per curiam, decided October 17, 1990 (Docket No. 115162). Following the initial release of our decision in this case, the parties belatedly advised us that the 1980 Ingham County Road Commission regulations of which § VII.B.1 was a part were apparently replaced by new regulations adopted in 1987, before the underlying dispute occasioning this litigation even commenced. Because of this, and because we are able to resolve this case on the basis of SCA § 182(4)(a) and Arrowhead, we do not discuss § VII.B.1. The dissent does not clarify whether it fully subscribes to the Court of Appeals analysis in this regard. Instead, the dissent, contrary to the considered factual judgment of the township board, simply offers its own opinion that the proposed Creekwood Lane access in this case is, in fact, suitable. The dissent relies upon the township’s purported "policy of allowing single accesses to developments of fifty homes or less . . . .” Post, p 644. Such a general policy could not, however, reasonably operate to preclude the township board from assessing the particular safe-access and other issues posed by each development. Equally untenable is the suggestion that the township’s prior consent to the construction of the existing Wood Knoll Drive stub street adjoining Creekwood Lane constituted some sort of irrevocable advance consent to the development of any new subdivisions seeking to use that stub street for access. See post, pp 643-644. The township was not under any legal requirement, "at the time the Creekwood subdivision was developed,” post, p 644, to give advance notice of what hypothetical future subdivisions adjoining Creekwood Lane it might approve or disapprove, and on what grounds. See MCL 8.3a; MSA 2.212(1): All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning. The original proposed plat in Arrowhead had shown Navajo Trail as an internal cul-de-sac not connecting to Chilson Road. The Livingston County Road Commission, however, required the developer to open the cul-de-sac so as to make Navajo Trail the third access road into the subdivision. See Arrowhead, 413 Mich 509. This Court’s decision in Arrowhead was influenced by the fact that the road commission itself had, in a sense, created the sight obstruction hazard that it then demanded the developer fix by making improvements to Chilson Road itself. See id. at 518. The dissent states: Because the governing body must act only within the limits of authority given to it by the sca, it must rely only upon a plat submitted pursuant to the sca, rather than a plan submitted for rezoning purposes. [Post, pp 645-646.] Obviously, it is the plat that is submitted that either must be approved or disapproved, with appropriate conditions, by the local governing body under the sca. But we are aware of no authority, and the dissent cites none, that would preclude the local governing body from considering the full context of the submitted plat and any available, competent evidence bearing upon the plat, including related rezoning plans, in reaching an informed decision to approve or disapprove the plat, as long as the governing body acts in full accordance with the sca and any other applicable laws.

In the absence of any objection by the Grievance Administrator, the motion to vacate the automatic stay of MCR 9.122(C) is granted. Reconsideration denied January 31,1992.

T. M. Burns, P. J. Defendant was convicted by a jury of uttering and publishing a forged instrument. MCLA 750.249; MSA 28.446. He was sentenced to 2-1/2 to 14 years in prison and appeals as of right. At trial, James Cooper testified that while he was working as a cashier at Don’s Truck Stop on May 2, 1974, defendant entered the truck stop and placed a check before him. Mr. Cooper’s relevant testimony was as follows: "Q. Did he say anything to you, when he came into the station, sir? "A. Not anything what he said. He was mumbling, and he just laid the check up there and said he wanted to cash it. ”Q. What did you do when Mr. Mask put the check up on the counter? ’A. I asked for identification. "Q. Did you look at the check, at all? ’A. Yes, I looked at it. "Q. Did you see that endorsement at that time? "A. Yes, I did. "Q. And what was Mr. Mask’s action, response when you asked for identification? ’A. He told me he didn’t have any. ”Q. What did you do at that point, sir? ’A. I couldn’t take the check. r,Q. Now after that time, did anyone else enter the station? ’A. After that time, Mr. Lonnie entered.” Mr. Lonnie, who apparently accompanied defendant to the truck stop, stated to the cashier that he would endorse the check. He endorsed his name and added his driver’s license number and address. The cashier agreed to cash the check, stating that he would have to go and get the money. Leaving defendant and Lonnie standing at the counter, Cooper called the police. After 15 minutes, the police arrived with the defendant and Lonnie still standing at the counter. It was later determined that the check had been stolen and that the payee’s name (Stephen W. Wood) had been forged thereon. Of the issues raised on appeal, one merits discussion and mandates reversal. Did the trial court commit reversible error by denying defendant’s motion for a directed verdict because the evidence produced at trial was insufficient as a matter of law to convict defendant of the crime charged? Two of the elements of the crime of uttering and publishing which must be proven beyond a reasonable doubt are knowledge of the falsity of the instrument and intent to defraud. People v Kimble, 60 Mich App 690, 694; 233 NW2d 26 (1975). There was insufficient evidence produced by the prosecutor to prove these elements. Defendant’s "knowledge” of the falsity of the check was proven by the weakest of circumstantial evidence. The evidence produced at trial was not sufficient as it was clearly not inconsistent with other reasonable hypotheses upon which defendant’s innocence might be maintained. People v Wingfield, 62 Mich App 161; 233 NW2d 220 (1975). The evidence indicated that defendant sought to cash a U.S. Treasury check payable to a Stephen Wood. The check was endorsed in the name of the payee. When asked for identification, defendant responded that he had none. Defendant did not represent himself as Stephen Wood. Mr. Wood testified that he never received the check, that the endorsement was not his signature, and that he had not authorized the endorsement. There was no evidence that the check had been stolen or endorsed by the defendant. The prosecutor argues that defendant tacitly put himself forward as Stephen Wood by presenting the check and by not stating that he was not the payee. It is also urged that proof of the mental elements of the crime can be based upon the fact that Stephen Wood neither endorsed the check nor authorized another to do so. These facts are equally probative of the argument that someone other than defendant stole the check, forged the endorsement and passed it to the defendant. Evidence of such elements as knowledge of falsity and intent to defraud is rarely clear and convincing and often can only be proven with circumstantial evidence. In the instant case, however, there is an almost total lack of probative evidence of these elements. We can only conclude that the prosecutor’s burden of proving defendant’s guilt beyond a reasonable doubt was not met. Cf. People v Gadson, 348 Mich 307; 83 NW2d 227 (1957). Reversed. M. F. Cavanagh, J., concurred.

Bashara, J. The defendant was convicted on June 22, 1971 of armed robbery, MCLA 750.529; MSA 28.797, and rape, MCLA 750.520; MSA 28.788. He was sentenced to concurrent prison terms of 10 to 15 years by Judge Joseph A. Moynihan. The convictions were subsequently affirmed by this Court, but the case was remanded for resentencing because the presentence report may have contained improper material. People v Jones, 47 Mich App 160; 209 NW2d 322 (1973). The opinion of the Court of Appeals gave Judge Moynihan two options. He could hold an evidentiary hearing to determine if the presentence report contained a prior conviction that was constitutionally infirm which would require resentencing. In the alternative he could set aside the sentence and order resentencing. Judge Moynihan chose the latter alternative. He granted the defendant’s motion to strike the prior conviction and other arguably improper material from the presentence report. He then disqualified himself from the resentencing proceeding. The case was reassigned to Judge George Bowles for resentencing. However, Judge Bowles granted another motion to strike additional material from the presentence report, and in turn disqualified himself from the case. The matter was then reassigned to Judge Thomas Foley, who resentenced the defendant to terms of 20 to 40 years. The defendant appeals from the resentencing. Defendant’s sole contention is that Judge Foley’s substantially higher sentence without supporting objective criteria violated the due process guarantees of US Const, Am XIV. To adequately set the framework for discussing this issue, it is necessary to set forth the colloquy at the time of resentencing before Judge Foley, taken from the concise statement of facts filed in this Court: "The Court: The Court has reviewed at length the Probation Report. The matter was not tried in my Court, and I think the record should so reflect. Your attorney informs me this went to the Court of Appeals. "The Defendant: Yes. "The Court: This I wasn’t aware of. I knew it has passed through the hands of a couple other judges who disqualified themselves. It went to the Court of Appeals and apparently there was something in the Probation Report originally that should not have been there and this was deleted and the first judge disqualified himself and it went to the second judge and apparently there was something in the Probation Report yet at that time that should not have been there and this was deleted and that judge disqualified himself and so it ended up in this Court. "Now it is a very serious charge. As you know, you have been found guilty by a jury in front of Judge Moynihan of this Circuit. "You have been found guilty on two charges, Robbery Armed and Carnal Knowledge of Female Under Sixteen Years which according to the report took place during the robbery. "Now we have an added factor in this case that you have an arrest and conviction February 4, 1961, Assault with Intent to Rape. You were convicted and sentenced to five to ten years in the State Prison, Southern Michigan. You were discharged from parole on that particular charge. These are serious and this is especially serious when I note that you had a gun and you used that as a weapon to force compliance with your desires in the course of the robbery. "I have taken these into consideration. I have taken you age into consideration. Is that fourty-four now? ’’The Defendant: Forty-six. ’’The Court: Forty-six, two years. "It is the Sentence of the Court you be committed to the Michigan Corrections Commission, placed in the Commission’s custody at State Prison, Southern Michigan, to serve a minimum term of not less than twenty years, a maximum term of not more than forty years with no recommendation. You will receive credit for 1,003 days.” Appellant’s counsel objected to the increased sentence citing North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969), and arguing that any increase in sentence over that originally imposed before appeal had to be specifically supported on the record by reasons justifying the increase. Judge Foley recapitulated his basis for imposing sentence as follows: ’’The Court: Well, as I have indicated, this came in because of disqualification. I had no knowledge of the prior sentence other than the fact it was a sentence and the method by which it came here for sentencing. You actually filled me in prior to sentencing today counsel. "I am not bound by the sentence of another judge. I have reviewed this transcript or rather the Probation Report, the life-style of this individual, prior crime, seriousness of the crime that he is before this Court on. I have stated the reasons for my sentence. You’ve got Count I, Robbery Armed. Count II, Carnal Knowledge of Female Over the Years of Sixteen. The man had a revolver and he used it to force his intentions. He had a prior record of similar type of crime, Assault with Intent to Rape. He has done time on that. "Now in my view of this Probation Report which you have had access to and you apparently did not dispute anything in the Probation Report, the seriousness of the offense, the prior offense, it is my best judgment that the sentence of not less than twenty and not more than forty years is applicable to this case and that is what I have sentenced.” Defendant argues that North Carolina v Pearce, supra, is dispositive of the issue. In that case a defendant’s conviction was overturned and a new trial ordered. After retrial and subsequent conviction the defendant was sentenced to what amounted to a longer period of incarceration than the original sentence. The Supreme Court was there much concerned with the chilling effect that the possibility of subsequently greater sentences might impose on the right to appeal. The majority, speaking through Justice Stewart, indicated that: "[Wjhenever a judge imposes a more severe sentence after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon * * * identifiable conduct on the part of the defendant after the time of the original sentencing proceeding.” 395 US at 726. At first blush it might appear that Pearce mandates no greater sentence on remand unless the resentencing judge can identify conduct after the original sentencing which justifies the greater punishment. However, the Pearce doctrine was tempered in the subsequent case of Colten v Kentucky, 407 US 104; 92 S Ct 1953; 32 L Ed 2d 584 (1972). There the defendant was fined $10 for disorderly conduct in a quarterly or justice court in Fayette County, Kentucky. He appealed to the circuit court of the county where, after a trial de novo, he was fined $50. The Supreme Court recognized the difference between the facts in Pearce and Colten where Kentucky has a two tiered system of trial de novo. Justice White, writing for the 7 to 2 majority put Pearce in what we consider to be its proper perspective. "But Pearce did not turn simply on the fact of conviction, appeal, reversal, reconviction, and a greater sentence. The court was there concerned with two defendants who, after their convictions had been set aside on appeal, were reconvicted for the same offenses and sentenced to longer prison terms. In one case the term was increased from 10 to 25 years. Positing that a more severe penalty after reconviction would violate due process of law if imposed as purposeful punishment for having successfully appealed, the court concluded that such untoward sentences occurred with sufficient frequency to warrant the imposition of a prophylactic rule to insure 'that vindictiveness against a defendant for having successfully attacked his first conviction * * * [would] play no part in the sentence he receives after a new trial * * * ’ and to ensure that the apprehension of such vindictiveness does not 'deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction * * * .’ 395 US, at 725.” Colten v Kentucky, supra, 116. Reviewing the facts as they exist here we are not convinced that the mandate of North Carolina v Pearce, supra, has been circumvented. It is immediately apparent that the resentencing here was not as a result of a new trial. In fact, the conviction was affirmed. This Court gave Judge Moynihan the option of reviewing the propriety of guilty plea convictions appearing in the record or setting aside and resentencing. He chose the latter course of his own volition. More importantly, when Judge Moynihan disqualified himself and referred the matter to another judge, he removed the source of the problem upon which reversal in North Carolina v Pearce, supra, was grounded. There no longer existed the fear of a retaliatory motive on the part of the sentencing judge. We must also note that the state of the presentence report was in a position more favorable to the defendant when it finally came to the attention of Judge Foley. Both Judges Moynihan and Bowles deleted information upon the request of defense counsel. Finally, the statements of Judge Foley, quoted in the certified concise statement of facts, reveal that he was not aware of the prior sentence nor any of the particular background of the case. In fact, his only knowledge of past events apparently arose when defense counsel willingly discussed some history with Judge Foley. The statements of Judge Foley as to his rationale for the imposition of the length of sentence are clearly set out in the concise statement of facts. They indicate no retaliatory or arbitrary motives. Rather, they reflect the careful reasoning of a seasoned judge exercising his discretion as statutes and the case law admonish him to do. Affirmed.

Per Curiam. Defendant pled guilty to assault with intent to rob being armed, contrary to MCLA 750.89; MSA 28.284, and was sentenced to a prison term of from 7-1/2 to 15 years. About five months later, the defendant filed a motion to set aside the plea and for a new trial. The trial court denied that motion, and defendant appeals here. Defendant based his motion below on the claim that his plea was not voluntary because he was under the influence of drugs when it was entered. He now argues that the trial judge erred in ruling on that claim without holding an evidentiary hear ing pursuant to People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). We disagree. People v Ginther, supra, established a rule limiting appellate review in certain cases: If the record made before a defendant tenders a guilty plea does not factually support claims he wishes to urge on appeal, he must first move in the trial court to set aside the plea, and seek a separate record factually supporting the claims. See, also, People v Taylor, 387 Mich 209, 218; 195 NW2d 856 (1972). That rule applies to allegations by defendant that his plea was involuntary because he was under the influence of drugs at that time, if, as here, the record does not reflect that fact, People v Kenny Smith, 20 Mich App 307; 174 NW2d 8 (1969). Claims of involuntary pleas must be heard by the trial judge, and a testimonial hearing held, even in cases where the guilty plea proceeding contains a statement by defendant that his plea is completely voluntary and that it is not induced by promises other than those on the record. That rule is stated in People v Bartlett, 17 Mich App 205, 218; 169 NW2d 337 (1969), as follows: "We recognize that it is relatively easy for a defendant disappointed as to either the length of the sentence or distressed with his incarceration in prison to file the kind of affidavit that Bartlett filed in this case. Claims such as these are rightly looked upon with suspicion. Nevertheless, if Bartlett’s assertions are true, he is entitled to withdraw the plea of guilty upon which he was convicted. "There is no way that a trial judge or we can decide the truth or falsity of the defendant’s assertions on affidavit without a testimonial hearing.” That rule is in keeping with the strong constitutional mandate that a waiver of the right to pro ceed to trial must always be "voluntary”. See, People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972) . As the Bartlett Court points out, there is the potential for the assertion of a large number of frivolous claims that the plea was involuntarily entered. Consequently, the Michigan courts have imposed one limitation on the above rule. The assertion that defendant did not act voluntarily must be supported by an affidavit, and that affidavit must contain more than mere vague allegations, in order to entitle the defendant to an evidentiary hearing. People v Scruggs, 14 Mich App 47; 165 NW2d 316 (1968), People v Kindell, 17 Mich App 22; 168 NW2d 909 (1969), People v Dickerson, 17 Mich App 201; 169 NW2d 336 (1969), People v Bartlett, supra, People v Wanzer, 36 Mich App 169; 193 NW2d 384 (1971), People v Buchanan, 49 Mich App 574; 212 NW2d 290 (1973) , People v Winegar, 380 Mich 719; 158 NW2d 395 (1968), People v Williams, 391 Mich 832 (1974). Here, defendant tendered no affidavits at all, even though the very form on which defendant filed his motion indicated that necessary supporting affidavits should be attached. We hold that the trial judge properly ruled without a testimonial hearing on defense counsel’s bare assertion that defendant "told me he was using drugs heavily” at the time of the plea. We further hold that the trial judge did not abuse his discretion in denying defendant’s motion to set aside the plea. Affirmed.

N. J. Kaufman, J. We are asked to determine when, if ever, an indigent plaintiff may be ordered to post a security bond for costs under GCR 1963, 109. Plaintiff, an elderly woman whose sole income is a monthly social security check of $197, brought a six million dollar malpractice suit in Wayne County Circuit Court against defendant hospital and five doctors. Defendant hospital requested the court to order plaintiff to post a Rule 109 surety bond in an amount sufficient to cover all costs which might be awarded defendant hospital in the event it successfully defended the lawsuit. The trial court ordered plaintiff to file a surety bond of $2,500 with the court clerk. Plaintiff, through her attorneys, brings this interlocutory appeal, claiming that the security bond requirement is violative of equal protection doctrines and contrary to GCR 1963, 120. Both GCR 1963, 109, and GCR 1963, 120, con sider the problem of the litigation expenses of indigents. GCR 1963, 109, reads, in pertinent part: "In any civil actions, upon motion made by any defendant, all plaintiffs, when it appears reasonable and proper to the court, may be required to file with the clerk of court a bond to the defendant with sureties to be approved by the court in an amount sufficient to cover all costs which may be awarded by the trial court, or, if the plaintiff appeals, by both the trial and appellate courts, such amount to be determined by the court in its discretion. Notwithstanding the above: "(1) any plaintiff who shows by affidavit that he is financially unable to furnish a security bond and whose complaint states a meritorious claim may be allowed to proceed without furnishing security for costs.” GCR 1963, 120, reads, in pertinent part: ".2 Suspension of Fees and Costs for Persons Receiving Public Assistance. Upon any person submitting to the clerk of the court an affidavit that he is then receiving any form of public assistance, the payment of all fees and costs as to that person in the action, required to be paid by law or court rule, shall thereupon be suspended. ".3 Waiver or Suspension of Fees and Costs by Court for Indigent Persons. In instances where the person is not receiving public assistance, the court shall order waiver of the payment of all fees and costs as to a person in the action, required to be paid by law or court rule, or shall order the suspension of the payment of those fees or costs until the conclusion of the litigation upon that person submitting to a judge of the court an ex parte affidavit stating facts showing that person’s inability to pay those fees and costs because of indigency.” Were a Rule 109 security bond to be considered a Rule 120 "fee or cost”, Rule 120 would clearly mandate that defendant’s motion for security be denied. This discretionary language of Rule 109 would be overruled by the mandatory language of Rule 120. However, we do not believe that the Supreme Court intended that the Rule 120 prohibitions against assessing indigents certain fees and costs were meant to cover Rule 109 security bonds. Rule 120 is limited, by its express language, to "all fees and costs * * * required to be paid by law or court rule”. (Emphasis supplied.) The rule, we believe, refers to court costs and fees that must be paid by litigants to the court. Statute and court rule mandate the payment of fees or costs to the court in a number of instances. Rule 109 does not concern a fee that must be paid to the court. Cf., Caswell v Stearns, 259 Mich 445; 243 NW 255 (1932). Rather than a mandatory payment to the court for administrative services rendered, Rule 109 provides for a discretionary order of security for a defendant. Rule 109 concerns the interests of both litigants, whereas Rule 120 concerns only the indigent vis-a-vis the state. Rule 120 determines that, as a matter of policy, an indigent need not pay certain fees or costs to the state; the rule does not determine that a defendant sued by an impecunious plaintiff can never have security for costs. In sum, we do not believe that the Supreme Court’s 1971 adoption of GCR 1963, 120, without any alteration of GCR 1963, 109, was intended to excuse impoverished plaintiffs from posting security in all cases. We have only concluded that Rule 120 does not govern in this case; we must still determine how the applicable rule, Rule 109, is to be construed. As a preliminary matter, we believe that a Rule 109 security motion shall only be granted on the movant’s showing substantial reason. E.g., Rice v Naimish, 8 Mich App 698; 155 NW2d 370 (1967) (if plaintiff were to litigate the issue a fifth time, the trial court should consider Rule 109 security.) The bond should certainly not be required simply because the plaintiff is poor. Buckley v Johns, How NP 64 (Wayne CC, 1868), cited in In re Ford’s Estate, 339 Mich 339, 347; 63 NW2d 417 (1954). If the trial court believes that a Rule 109 bond would be proper absent plaintiff’s poverty, he must then assess the indigent plaintiff’s financial ability to post bond. In this regard, the rule attempts to balance the right of a poor plaintiff to seek justice with the need of a defendant to have an opportunity for security. In our view, the rule establishes a strong preference for waiver of the bond where the indigent plaintiff’s pleadings show a “meritorious claim” — Le., a legitimate cause of action. In cases where the indigent plaintiff’s pleadings show a tenuous legal theory, the plaintiff’s interest in free access to the courts becomes less significant when weighed against the defendant’s greater need for security. In short, the fulcrum of the rule’s balance is the legitimacy of the indigent plaintiff’s theory of liability. This is not to say that legitimacy of the claim will always be determinative. The rule clearly allows for sound trial court discretion. We can imagine few cases, however, where a discreet trial court will require an indigent plaintiff, pleading a valid theory of liability, to post security. In the present case, assuming arguendo that a security bond would have been proper absent plaintiffs poverty, we believe the trial court’s failure to waive the bond was an abuse of discretion. Once it was determined that this plaintiff pleaded a legitimate cause of action, an order that this plaintiff post a $2,500 security bond was inappropriate. The security provided to this one defendant was more than plaintiffs yearly social security income.* * Defendant’s motion gave no explanation of the necessity of that sum, nor indicated any particular hardship that would result were the bond to be denied. We cannot bar this plaintiff from the courts because of her poverty. We limit our holding to a determination that the present trial judge abused the sound discretion required of him by GCR 1963, 109. No security bond should have been required. We need not consider on present appeal if a trial judge’s proper exercise of the discretion allowed under the rule might ever be a denial of equal protection or due process. Compare Boddie v Connecticut, 401 US 371; 91 S Ct 780; 28 L Ed 2d 113 (1971), with United States v Kras, 409 US 434; 93 S Ct 631; 34 L Ed 2d 626 (1973), and Ortwein v Schwab, 410 US 656; 93 S Ct 1172; 35 L Ed 2d 572 (1973). We reverse the court’s order requiring a security bond in the present case and remand for further proceedings. US Const, Am XIV; Const 1963, art 1, § 2. MCLA 728.4; MSA 27.3654 (common pleas steno fee), MCLA 728.19a; MSA 27.3670(1) (common pleas entry fee), MCLA 728.24; MSA 27.3675 (miscellaneous common pleas fees), MCLA 701.17; MSA 27.3178(17) (Probate Court fees), MCLA 711.2; MSA 27.3178(562) (name change fee), MCLA 600.2528-29; MSA 27A. 2528-29 (circuit court fees), MCLA 600.2537; MSA 27A.2537 (jury fee), GCR 1963, 902(4) (Supreme Court fees), GCR' 1963, 822.3(1) (Court of Appeals fees), Wayne County Circuit Court Rule 3.4 (schedule of fees). We do not extensively consider defendant’s assertion that an indigent plaintiffs attorney should be ordered to "advance” the GCR 1963, 109 security if that attorney has already advanced other expenses of litigation. It suffices to say that such an order would not only be of dubious ethical propriety, but would dissuade attorneys from representing impoverished clients. See Code of Professional Responsibility and Canons, DR5-103(B), and Adkins v E I DuPont de Nemours & Co, 335 US 331; 69 S Ct 85; 93 L Ed 43 (1948). Our decision to review the judge’s discretion in ordering the security bond might suggest the demise of Goodenough v Burton, 146 Mich 50; 109 NW 52 (1906). Goodenough was never meant to prohibit an inquiry into an abuse of discretion. See In re Ford’s Estate, 339 Mich 339, 346; 63 NW2d 417 (1954).

D. E. Holbrook, Jr., P. J. Plaintiff, a guest passenger, instituted suit against the defendant, owner-operator, following a single-vehicle accident which occurred on July 4, 1970. A jury trial was held on May 5 and 6, 1975, resulting in a verdict of no cause of action. On appeal plaintiff raises two allegations of error. Resolution of the first, however, is dispositive. Plaintiff initially contends that the trial court reversibly erred by instructing the jury that under the guest passenger statute, MCLA 257.401; MSA 9.2101, it was necessary for the jury to find that the defendant’s conduct constituted gross negligence in order for the plaintiff to recover. We agree with plaintiffs contention. In Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975), the Michigan Supreme Court in a 3-2 decision held the guest passenger statute unconstitutional as violative of the Equal Protection Clause of the Michigan Constitution. While we do not feel bound to follow a 3-2 decision of the Michigan Supreme Court, we nevertheless choose to do so for two reasons. First, we agree with the logic and reasoning of Justice Levin’s majority opinion in that case. Second, while Manistee Bank & Trust Co v McGowan, supra, standing -alone is not binding precedent we conclude that when considered in conjunction with Dunham v Lowinger, 395 Mich 793 (1976), a 6-0 determination, it is. The jury verdict is therefore set aside and this case is remanded to the trial court for a new trial. Reversed and remanded.

Quinn, J. Defendant appeals from a circuit court judgment which reinstated criminal charges against her. Those charges had been dismissed by the examining magistrate at the preliminary examination on the basis of illegal search. The circuit court properly held that the search was legal, United States v Johnson, 154 US App DC 393; 475 F2d 977 (1973). Armed with a proper search warrant authorizing a search for heroin, any other controlled substance, paraphernalia, and "if a police woman present may search woman described below if on premises; may search others present only if in a room where narcotics or paraphernalia in plain view”, the police went to the premises named in the warrant. After entry, the police identified themselves to the two persons present, stated they had a warrant and explained it. The police then inquired who lived there, and defendant said that she did. When asked for identification, defendant stated that it was in her purse. The police handed her the purse and requested that she "dump the contents out”. Defend ant complied with the request and drugs were disclosed. Defendant was arrested and charged with violation of the controlled substance act, MCLA 335.341(4)(a); MSA 18.1070(41)(4)(a). As stated in Johnson, supra, at 395: "[F]rustration of the warrant’s purpose should not be permitted where the facts reveal that to be the likely result were the purse not searched.” Affirmed. R. B. Burns, J., concurred.

J. H. Gillis, P. J. Judge Allen and I are in agreement with that portion of Judge Kelly’s opinion which affirms the conviction. We agree with the language set forth therein and the reasoning embodied in his opinion for affirmance. We further agree that the defendant should receive any credit for time served to which he may be entitled. GCR 1963, 785.8(3), People v Peterson, 62 Mich App 258; 233 NW2d 250 (1975). We, however, disagree with Judge Kelly’s determination that the trial court erred when sentencing defendant by failing to provide him with an opportunity to inform the court of any specific or mitigating circumstances relevant to imposing sentence. The total sentencing transcript consists of 7-1/4 pages. The attorney had some input at the time of sentence, and towards the end of the transcript covering the plea, the trial court said, "Anything more, Mr. Pliskow?” We all recognize that it is the duty of the attorney to speak for and on behalf of his client. When Mr. Pliskow advised the court that there was nothing further, we would construe this statement to mean that neither defense counsel nor his client had any additional statements to make to the court. We cannot equate the facts in this case with those in People v Gonzales, 60 Mich App 450, 454; 231 NW2d 393 (1975). In the Gonzales case, the court advised the defendant that he had discussed the matter in chambers with his counsel. It was apparent that defendant was not present during the discussion. Such is not the situation in our case where the record clearly denotes that the defendant was standing with counsel before the bench during the entire discussion. Again, in People v Brewer, 60 Mich App 517, 523; 231 NW2d 375 (1975), the judge’s remarks at sentencing indicated he had discussed the matter of sentencing at length with defense counsel in chambers; on appeal we stated that this Court could not assume that this off-the-record discussion allowed the defendant any opportunity to allocute. The facts here, again, are contra to those in the Brewer case. We, therefore, vote to affirm the conviction without a remand to the trial court for the purpose of resentencing. Allen, J., concurred.

Per Curiam. Plaintiff filed suit against defendants in common pleas court, seeking reimburse ment for workmen’s compensation paid to one of plaintiffs employees. The suit was removed to Wayne County Circuit Court and consolidated with an action defendants had previously filed against plaintiff for injuries suffered in an accident involving plaintiffs bus. The circuit court, on defendants’ motion, ordered plaintiffs suit for reimbursement dismissed. Plaintiff appeals that order. Tyrone McKinnon was driving one of plaintiffs buses when it collided with a car owned by defendant Jerry Spivey and driven by defendant Bonnie Sue Spivey. Plaintiff alleged payment of over $5,-000 for lost wages and medical expenses attributable to the injuries McKinnon suffered in the collision. Claiming that Bonnie Sue Spivey’s negligence caused the collision, plaintiff sought reimbursement from defendants for these workmen’s compensation payments. When plaintiff, unable to find McKinnon, could not produce him for depositions, defendants moved for dismissal of plaintiff’s action pursuant to GCR 1963, 313.4. An order barring the deposition or testimony of McKinnon was granted instead. On the day set for trial, defendants moved to dismiss plaintiffs claim, basing the motion on plaintiff’s failure to bring the action in the name of the injured employee McKinnon. The trial court, agreeing with defendants that MCLA 418.827(1); MSA 17.237(827)0), requires that the action against a third-party tortfeasor be brought in the employee’s name, dismissed the suit for reimbursement. The statutory provisions on reimbursement of compensation payments, MCLA 418.827; MSA 17.237(827) state: "(1) Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies but the injured employee or his dependents or personal representative may also proceed to enforce the liability of the third party for damages in accordance with the provisions of this section. If the injured employee or his dependents or personal representative does not commence the action within 1 year after the occurrence of the personal injury, then the employer or carrier, within the period of time for the commencement of actions prescribed by statute, may enforce the liability of such other person in the name of that person. Not less than 30 days before the commencement of action by any party under this section, the parties shall notify, by certified mail at their last known address, the bureau, the injured employee, or in the event of his death, his known dependents or personal representative or his known next of kin, his employer and the carrier. Any party in interest shall have a right to join in the action. "(2) Prior to the entry of judgment, either the employer or carrier or the employee or his personal representative may settle their claims as their interest shall appear and may execute releases therefor. "(3) Settlement and release by the employee is not a bar to action by the employer or carrier to proceed against the third party for any interest or claim it might have. "(4) If the injured employee or his dependents or personal representative settle their claim for injury or death or commence proceedings thereon against the third party before the payment of workmen’s compensation, such recoyery or commencement of proceedings shall not act as an election of remedies and any moneys so recovered shall be applied as herein provided. "(5) In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.” These provisions were first enacted as MCLA 413.15; MSA 17.189 in 1952. 1952 PA 155, § 1. The 1969 revision of the state’s Workmen’s Compensation Act, 1969 PA 317, only renumbered these provisions. Prior to 1952, an employee, injured by a third party, was required to elect his remedy. If he chose compensation, the right to proceed against the third-party tortfeasor was given to his employer or the employer’s compensation carrier. Under former MCLA 413.15; MSA 17.189 and present MCLA 418.827; MSA 17.237(827), an injured employee has, for one year, the exclusive right to bring an action against the third-party tortfeasor. After one year, the employer or carrier who has paid compensation may initiate an action. The statute states that the action may be brought "in the name of that person”, obviously referring to the injured employee. Against the tortfeasor who has injured an employee, there is but one cause of action. See Muskegon Hardware & Supply Co v Green, 343 Mich 340; 72 NW2d 52 (1955). Where the liability of a third party is successfully asserted, the employee and the employer or carrier share in any recovery, according to the statutory scheme. MCLA 418.827(5); MSA 17.237(827)(5). Because the statute gives the employer or carrier who has paid compensation a substantive right to recover against a third-party tortfeasor, there is no doubt that the employer or carrier, as the case may be, is a real party in interest. Muskegon Hardware & Supply Co v Green, supra. In Muskegon Hardware & Supply Co, supra, an employer brought suit to recover compensation paid the widow of an employee. After the 3-year statute of limitations had run, the trial court permitted the widow and the personal representative of the deceased employee to join as parties plaintiff. The Supreme Court rejected defendant’s argument that an action not brought in the name of the employee or his dependents or his personal representative failed to state a cause of action. "We cannot say that the failure to bring the suit originally in the name of the widow or personal representative is fatal.” 343 Mich at 346. GCR 1963, 201.2 states that, "Every action shall be prosecuted in the name of the real party in interest”. The provision that the liability of a-third-party tortfeasor may be enforced in the name of the injured employee was introduced when the employee’s election of remedies was removed. We view this provision as a prevention against splitting the cause of action against the tortfeasor, which after the 1952 amendment to former MCLA 413.15; MSA 17.189 was shared by the employee and the employer or the carrier. Paragraph (3) of MCLA 418.827; MSA 17.237(827) indicates that this view is correct, by providing that a defendant remains subject to suit by an employer or carrier after settlement and release by the employee. Settlement with one real party in interest waives the defense of splitting a cause of action. Wolverine Insurance Co v Klomparens, 273 Mich 493; 263 NW 724 (1935). Equally indicative of the correctness of this view is the fact that an employer or carrier is generally able to join as a named plaintiff in an employee’s suit. See Harrison v Ford Motor Co, 370 Mich 683; 122 NW2d 680 (1963). Under the General Court Rules of 1963, the equity rule of compulsory joinder of parties is the appropriate means of preventing the undesirable results caused by splitting a cause. "The compulsory joinder provisions of Rule 205 do in fact replace the common law rule against splitting a cause.” 1 Honigman & Hawkins, Michigan Court Rules Annotated, Committee Comment, GCR 1963, 205. The court below erred in dismissing plaintiff’s suit on the basis of MCLA 418.827; MSA 17.237(827). Plaintiff’s right to bring the action is governed by GCR 1963, 201.2 and any objection by defendants to an action in which the employee was not a named plaintiff should have invoked the provisions of GCR 1963, 205, Necessary Joinder of Parties. Such an objection is waived if not timely asserted. GCR 1963, 111.3. Reversed and remanded for trial. Costs to plaintiff.

D. E. Holbrook, P. J. Defendant was found guilty by a jury of armed robbery, contrary to MCLA 750.529; MSA 28.797. He was sentenced to prison for a term of 10 to 50 years and he appeals as of right. At trial the prosecutor introduced largely uncontested evidence which tended to show that on May 6, 1974, defendant went with two friends to Ray’s Motel in Stevensville, Michigan. A 71-year-old woman was managing the motel in an effort to assist her friends who owned it. Defendant inquired about renting an apartment for his wife and himself. The evidence is not clear as to whether defendant at that time looked at a room suitable for two people, but at any rate, after being informed of the price for such a room he decided it was too expensive. The manager then informed the defendant that the motel rented sleeping rooms for men at a lower price. At this point, one of the men tenants of the motel entered the office to pay his rent. Defendant went to make a phone call which he told the manager was to his wife, but which he later testified was an incomplete call intended for his mother. While making the phone call, defendant saw the other man pay $50 towards his rent. Defendant then exited the motel and returned a short time later with a friend. He and his friend went to see the room. When they returned, defendant put his hand in his pocket and pointed an object at the manager, announcing a stickup. The manager was ordered by the defendant to open the cash register and lie on the floor. She believed the defendant had a gun in his pocket. Defendant took the money from the cash register, and the men left. At trial, defendant took the stand in his own defense and admitted most of the allegations. However, he claimed that he had not gone to the motel for the purpose of committing a robbery but was under the influence of LSD, marijuana and alcohol and was moved to commit the crime by the sight of the money tendered by the customer. Defendant’s first allegation of error is that certain lesser included offenses should not have been contained in the charge to the jury. We must first note that no objection was made to the instructions as given; in fact, defense counsel indicated satisfaction with the charge. Absent a showing of manifest injustice, a defendant who seeks review of an allegedly erroneous instruction must make a timely objection. People v Spaulding, 42 Mich App 492, 496; 202 NW2d 450, 452 (1972). This case does not entail a compromise verdict unsupported by the evidence as was the case in People v Tolliver, 46 Mich App 34; 207 NW2d 458 (1973). Rather, in this case, defendant was convicted pf the highest crime with which he was charged. A review of the record fails to disclose any manifest injustice. Defendant cannot prevail on this issue. Defendant next argues that the prosecutor questioned certain witnesses in a manner which was intended to establish by innuendo facts which were never directly proven or capable of proof by competent evidence and that this action by the prosecutor constituted reversible error. Defendant made no objection below to the questions asked by the prosecutor. However, we have searched the record for error reflecting clear injustice and have found none. See People v Hicks, 2 Mich App 461; 140 NW2d 572 (1966). This was not a case of blatant prosecutorial misconduct as was present in People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969). The most that can be said is that the prosecutor did not prove that certain questions answered by certain witnesses should have been answered in another manner. If this was error at all, then, in view of the overwhelming evidence of guilt, we rule that it was, beyond a reasonable doubt, harmless. Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967), People v Inman, 54 Mich App 5; 220 NW2d 165 (1974), MCLA 769.26; MSA 28.1096, GCR 1963, 529.1. The record here indicates that defendant received an abundantly fair trial. Affirmed. D. F. Walsh, J., concurred.

D. E. Holbrook, Jr., J. Defendant was convicted by a jury on October 31, 1974, of larceny in a building. MCLA 750.360; MSA 28.592. On November 18, 1974, the trial court sentenced the defendant to a term of from 2 to 4 years in prison. On December 9, 1974, defendant filed his claim of appeal as of right with this Court. At trial the prosecution presented two witnesses, a security guard and a sales person from Hughes & Hatcher’s Northland store where the larceny occurred. Over objection, the prosecution was excused from producing another person who had assisted in detaining the defendant outside of Hughes & Hatcher and was indorsed on the information. This is the basis for defendant’s first claim of error. Initially, we note that defendant did not move for a new trial. Such a motion is required under People v Robinson, 390 Mich 629; 213 NW2d 106 (1973). Although in that case the Supreme Court remanded for an evidentiary hearing as to the testimony that the witness would have given or the reason why the witness was not produced, the holding in that case explicitly states: "In appeals filed after this opinion is published [January 28, 1974] a defendant desiring reversal or a new trial because of a failure to produce an unindorsed or an indorsed witness shall, before filing his brief on appeal, move the trial court for a new trial.” (Emphasis supplied.) People v Robinson, supra at 634. The purpose behind the remand in People v Robinson, supra, was to give that defendant the opportunity to make his motion for a new trial since he could not have known of the new requirement. Likewise, the early decisions of this Court followed the action taken and not the holding of People v Robinson, supra. This was a correct procedure since most of these cases were necessarily filed with this Court before the publication of People v Robinson, supra. The language of the holding is clear, before the appellate courts of this state will review a claim that the prosecutor failed in his statutory duty to produce a witness a motion for a new trial is required. The holding does not excuse a motion for a new trial when a hearing has already been held and the trial court has already excused the witness’s production. But see, People v Wynn, 60 Mich App 636, 640; 231 NW2d 269 (1975). A motion for a new trial should have been filed in this case since defendant could not have filed his claim of appeal until over nine months had elapsed from the publication of People v Robinson, supra, and it was not filed until 10-1/2 months had elapsed. At the trial the Hughes & Hatcher security officer used a box with a Hughes & Hatcher label on it to store the evidence that he brought including the shirt in question. The defendant argues that this is reversible error since his defense was that the shirt did not come from Hughes & Hatcher. In his closing argument defense counsel pointed out that the shirt was one of five in a Hudson’s bag. The other four shirts definitely had Hudson labels on them while the shirt in question was a brand sold at both Hughes & Hatcher and Hudson’s. Furthermore, the shirt in question did not have any sales tag on it. However, the box was never introduced into evidence, only the contents. It cannot be denied that the jurors observing the shirt in question being removed from a Hughes & Hatcher box might be influenced against defendant’s claim that the shirt might have come from another store. Cf. People v Kudla, 223 Mich 137; 193 NW 844 (1923), People v Benberry, 24 Mich App 188; 180 NW2d 391 (1970). However, in this case defense counsel did not object to the box being present. He only objected to its admission. Nor did he request a curative instruction. In fact, during his closing argument he attempted to use the box in his favor by pointing out that the prosecution must be trying to influence the jurors’ minds by such a device. When defendant attempts to use a possible error to his tactical advantage and the results are not to his liking, this Court will not allow him to use that as grounds for reversal. People v Morgan, 50 Mich App 288, 291-292; 213 NW2d 276 (1973), lv den, 392 Mich 813 (1974), People v Brocato, 17 Mich App 277, 305; 169 NW2d 483 (1969). We have reviewed defendant’s remaining allegations of error and find them without merit. Affirmed. The trial court excused the production of this witness on the grounds that the Southfield police department had madé a diligent effort to produce this witness. Because of our disposition of this issue we do not need to review this finding by the trial court; nor do we need to decide the issue of whether this witness is a res gestae witness since once a person is indorsed on an information it is incumbent on the prosecution to produce the person or to explain why he cannot be produced. People v Kern, 6 Mich App 406, 410; 149 NW2d 216 (1967). We treat the date of publication as the date that the opinion is published in the official Michigan Reports advance sheet. See also People v Koehler, 54 Mich App 624, 640; 221 NW2d 398 (1974) (O’Hara, J., dissenting). Eg., People v Koehler, supra at 640, People v James, 51 Mich App 777, 784-785; 216 NW2d 473 (1974), lv den, 394 Mich 756 (1975). MCLA 767.40; MSA 28.980. There was testimony that the security officer found the tag in the Hughes & Hatcher bathroom upon entering it immediately after having observed the defendant enter the bathroom.

R. M. Maher, J. A jury found defendant guilty of delivery of heroin, MCLA 335.341(3)(a); MSA 18.1070(41)(3)(a). He received a 3-1/2 to 20 year sentence, and appeals of right. Defendant admitted at trial that he delivered heroin to Richard Upton on March 13, 1974. His defense was entrapment, based upon his allegations that the drugs sold to Upton, a drug addict turned state police informant, had been purchased from Upton about two weeks earlier, and that Upton and Noreen Earhart, a state police detective, feigned withdrawal sickness to bring about the sale. The trial court, without stating whether it believed defendant’s account of where he obtained the heroin, found no entrapment. I. The defense of entrapment is available where the prosecution is aimed at the sale of contraband originally obtained from a government agent. Although no Michigan case has considered the propriety of the government prosecuting the distribution of narcotics that it had supplied, cases from other jurisdictions strongly condemn this practice. In People v Strong 21 Ill 2d 320; 172 NE2d 765 (1961), the Supreme Court of Illinois had this to say about police furnishing narcotics in their attempts to control narcotics traffic: "While we are sympathetic to the problems of enforcement agencies in controlling the narcotics traffic, and their use of informers to that end, we cannot condone the action of one acting for the government in supplying the very narcotics that gave rise to the alleged offense. We know of no conviction for sale of narcotics that has been sustained when the narcotics sold were supplied by an agent of the government. This is more than mere inducement. In reality the government is supplying the sine qua non of the offense.” 21 Ill 2d at 325; 172 NE2d at 768. Other state court decisions finding entrapment in narcotics cases when the government is the initial source of the drugs later delivered include: State v McKinney, 108 Ariz 436; 501 P2d 378 (1972), State v Boccelli, 105 Ariz 495; 467 P2d 740 (1970), State v Sainz, 84 NM 259; 501 P2d 1247 (NM App, 1972), Jones v State, 285 So 2d 152 (Miss, 1973), Striplin v State, 499 P2d 446 (Okla Crim App, 1972). The Federal courts have also applied the defense of entrapment to prosecutions for dealing in illegal narcotics that a government agent had supplied to a defendant. The leading Court of Appeals case, United States v Bueno, 447 F2d 903 (CA 5, 1971), was decided before United States v Russell, 411 US 423; 93 S Ct 1637; 36 L Ed 2d 366 (1973). In Bueno, the Fifth Circuit found offensive the spectacle of "the government buying heroin from itself, through an intermediary, the defendant, and then charging him with the crime”. 447 F2d at 905. The majority’s choice in Russell, supra, of the "subjective” test for entrapment that denies that defense to the "unwary criminal”, 411 US at 436, has led some Federal courts to refuse to hold entrapment applicable in every prosecution for the return of drugs to the government. For example, in United States v Hampton, 507 F2d 832 (CA 8, 1974), cert granted, 420 US 1003; 95 S Ct 1445; 43 L Ed 2d 761 (1975), two judges of the Eighth Circuit affirmed a conviction for narcotics distribution, finding no error, in light of Russell, in the trial court’s refusal to instruct that if the government had provided defendant with the heroin he distributed, there should be no conviction. Judge Heany in dissent wrote that he "would have this Circuit adopt the Fifth Circuit rule that entrapment is established as a matter of law to a charge of possessing contraband or distributing contraband to a government agent, where such contraband was supplied to the defendant by a government agent, including a paid informer”. 507 F2d at 836. The Fifth Circuit, as Judge Heany’s dissent indicates, has distinguished Russell from those cases where the government supplies contraband. In Russell, a government informant supplied a difficult to obtain, yet legal, ingredient used to manufacture an illegal drug. See, e.g. United States v Oquendo, 490 F2d 161 (CA 5, 1974), United States v Gomez-Rojas, 507 F2d 1213 (CA 5, 1975). The Third Circuit, like the Fifth, does not find that Russell precludes holding as a matter of law that there can be no conviction for the sale of narcotics which a government agent had supplied to a defendant. United States v West, 511 F2d 1083 (CA 3, 1975). It is unnecessary for this Court to determine whether under the test approved by the majority in Russell a government-to-defendant-to-government transfer of drugs would not always constitute entrapment. People v Turner, 390 Mich 7; 210 NW2d 336 (1973), adopted as the rule for this state the "objective” test urged by Justice Stewart in his dissent in Russell, 411 US at 439; 93 S Ct at 1646; 36 L Ed 2d at 377. In deciding if there has been entrapment, Michigan courts do not look to the predisposition of a particular defendant, i.e., determine whether the police conduct was directed at a good or at a bad person; the inquiry concerns only police conduct and "whether the actions of the police were so reprehensible under the circumstances, that the Court should refuse, as a matter of public policy, to permit a conviction to stand”. People v Turner, 390 Mich at 22. In categorizing certain police actions as reprehensible, we find it significant that certain Federal courts, even though bound by the majority opinion in Russell, are so offended by "take back sales” that they hold these transactions to automatically constitute entrapment. There can be no doubt that if defendant obtained heroin from Upton, a police informant, and later sold the same heroin back to Upton, his conviction for that sale would be invalid. It is difficult to conceive of a clearer instance of manufactured crime, of "police conduct * * * [that] falls below standards, to which common feelings respond, for the proper use of governmental power”. Sherman v United States, 356 US 369, 382; 78 S Ct 819; 2 L Ed 2d 848 (1958) (concurring opinion by Justice Frankfurter). We attach no importance to the fact that defendant alleges that an informant, and not a police officer, was the source of the heroin he sold. The government, after utilizing an informant, cannot disown his actions. Sherman v United States, 356 US 369, 373-374; 78 S Ct 819; 2 L Ed 2d 848 (1958). Even if police officers working with an informant claim ignorance of the fact that the informant was the supplier of contraband, entrapment is still available as a defense, United States v Gomez-Rojas, supra, "When persons who are not law-enforcement officials act with official encouragement or assistance, they should be treated as government agents for purposes of the entrapment defense. Otherwise, its protection could be avoided by indirection.” Note, 73 Harv L Rev 1333, 1341 (1960). II. During the trial below, a hearing out of the presence of the jury was held to determine if defendant had been entrapped. This Court has held that decision by the judge, rather than the jury, is the correct procedure when entrapment is raised. People v Habel (On Rehearing), 53 Mich App 399; 220 NW2d 74 (1974), People v Zeegers, 61 Mich App 546; 233 NW2d 76 (1975), People v Fraker, 63 Mich App 29; 233 NW2d 878 (1975), People v Sheline, 64 Mich App 193; 235 NW2d 177 (1975), lv granted, 395 Mich 817 (1976), People v Cushman, 65 Mich App 161; 237 NW2d 228 (1975). These decisions recognize that the entrapment test ennunciated in Turner presents questions about the propriety of police conduct ill-suited for jury resolution. "[T]he determination of the lawfulness of the Government’s conduct must be made — as it is on all questions involving the legality of law enforcement methods — by the trial judge, not the jury.” United States v Russell, supra, 411 US at 441; 93 S Ct at 1647; 36 L Ed 2d 379 (dissenting opinion by Justice Stewart). At the hearing on entrapment, only defendant and Noreen Earhart, a state police detective, gave testimony. Defendant testified that Upton, whom he had met some years earlier at a methadone clinic, sold him a quantity of heroin approximately two weeks before Upton and Earhart arrived at defendant’s home on March 13, 1974, looking for heroin. Defendant’s description of the amount of heroin he purchased from Upton varied. Defendant was out with his wife when Upton and Earhart arrived on the night of March 13, hut a babysitter told them how defendant could be reached. Defendant claims it took two telephone calls from Upton to persuade him to return home. When defendant arrived, Upton told him he was experiencing withdrawal sickness and needed heroin. Defendant then left and returned with what he alleges was part of the heroin Upton had earlier sold him. Defendant testified that although he was still using heroin when he made the purchase from Upton, he was trying to quit and had left the heroin at a friend’s house to prevent ready access to it. Earhart testified on the separate record that she could not dispute defendant’s allegation that Upton was the source of the heroin sold on March 13, 1974. Upton was not called to testify at the separate hearing. He had earlier, under cross-examination before the jury, given the following testimony: "Q. I see. How did you support yourself during this period of time, from say the time you went to work for the State Police in January until the middle of March when this occurred? "A. How’d I support myself? "Q. (Nodded head) ’A. Hustlin’. ”Q. You hustled? 'A. Yes. "Q. Sold some drugs? ’A. Yes, sir. "Q. This was after the period that you went to work for the State Police? 'A. No, not during that period I didn’t.” This testimony is contradictory and the prosecution did not claim at trial that it refuted defendant’s allegations. A clear denial of defendant’s allegation that Upton supplied the heroin did not come until after the court ruled there was no entrapment. The prosecution, attempting to rebut defendant’s presentation of entrapment before the jury, asked Upton on redirect examination whether he had given any narcotics to defendant since he began work with the state police intelligence unit. He testified that he had not, though he admitted giving defendant narcotics before he began working as an informant. The trial court did not make findings of fact when it ruled that there had been no entrapment. It cannot be determined with any certainty from the record whether the ruling was due to the court’s disbelief of defendant or to the view that Upton’s activity, as described by defendant, did not constitute entrapment. The prosecution, pointing out that inconsistencies in defendant’s testimony impugn his credibility, urges this Court to find in the record adequate factual support for the trial court’s ruling. We are not overly impressed with defendant’s credibility, and find portions of his testimony at least confusing, if not contradictory. On the other hand, what the record discloses about Upton gives us reason to be skeptical about his testimony, and we think some significance should be given to his failure to testify at the entrapment hearing. The trial court is in a better position than this Court to determine what truth there is to defendant’s allegations about the source of the heroin delivered on March 13, 1974. We therefore remand this cause for an evidentiary hearing to determine whether Upton supplied the heroin. III. The resolution of the factual issue this case presents will most likely depend upon which witness, defendant or Upton, is the most believable. We think that, as a general rule, it should be a defendant’s burden to establish by a preponderance of the evidence the facts constituting entrapment. The defense of entrapment, crucial only after all elements of the offense have been proved beyond a reasonable doubt and, under Turner, available regardless of defendant’s predisposition, allows a defendant to avoid conviction and punishment because of the public policy against certain police actions. It seems right that the defendant who invokes this public policy to avoid the consequences of his proscribed conduct should have to demonstrate a deviation from accepted standards of law enforcement. This burden upon a defendant does not contravene the basic rule of criminal law that a defendant enjoys the presumption of innocence. While a defendant cannot be required to establish his alibi, People v McCoy, 392 Mich 231; 220 NW2d 456 (1974), entrapment, unlike alibi, does not negate defendant’s complicity in the crime charged. Similarly, while self-defense and insanity, when raised, must be excluded by proof beyond a reasonable doubt, People v Stallworth, 364 Mich 528; 111 NW2d 742 (1961), People v Woodfork, 47 Mich App 631; 209 NW2d 829 (1973), entrapment as defined in Turner is easily distinguishable from these defenses: it does not go primarily to the question of what motives or perceptions caused or accompanied an individual’s conduct. If the "subjective” test for entrapment was applied in Michigan, it would be doubtful whether a defendant could be required to establish the defense. It seems somewhat inconsistent with the presumption of innocence to make a defendant claiming entrapment prove his lack of predisposition to crime, to prove that he was an "unwary innocent”.* * While we are not aware of any jurisdiction which employs an objective test for entrapment and requires the prosecution to prove that a defendant was not entrapped, New York, which has statutorily defined entrapment as police methods that "create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it”, Penal Law 1965, § 40.05, requires a defendant establish entrapment by a preponderance of the evidence. Penal Law 1965, § 25.00, People v Laietta, 30 NY2d 68; 281 NE2d 157 (1972), cert den, 407 US 923; 92 S Ct 2471; 32 L Ed 2d 809 (1972). The drafters of the Model Penal Code also decided upon an "objective” test for entrapment, and give the defendant the burden of proving "by a preponderance of the evidence that his conduct occurred in response to an entrap ment”. Model Penal Code, § 2.13 (Proposed Official Draft, 1962). Remanded for hearing to determine whether defendant was entrapped. We retain jurisdiction. Despite the Fifth Circuit’s willingness to apply United States v Bueno, 447 F2d 903 (CA 5, 1971), even after United States v Russell, 411 US 423; 93 S Ct 1637; 36 L Ed 2d 366 (1973), Bueno, with its emphasis upon the conduct of government agents and its lack of concern with defendant’s willingness to engage in crime, does seem to apply an "objective” test that Russell rejected. See Note, 7 U of Mich J of L Ref 361, 363, n. 11 (1974). We need not decide the propriety of submitting the issue to the jury after a ruling against the defendant by the judge. The trial court utilized this procedure, but there is no indication of prejudice to defendant. Submission to the jury may be appropriate in some cases. Wise, Annual Survey of Michigan Law, Criminal Law and Procedure, 21 Wayne L Rev 401, 424 (1975). Upton’s participation in developing drug cases appears to have been an extremely lucrative proposition. He was paid $12,000 plus some expenses for the first part of 1974. He admitted still using drugs while working for the state police, and selling drugs in the past. Testimony from defendant about his response to police conduct is relevant, and can be introduced to show the type of provocation and incitement employed by police. But, under the Turner test, it is not essential to determine defendant’s motivation in committing the crime charged. For a brief discussion of the approaches to the burden of proof used in Federal courts, see Kamisar, LaFave and Israel, Modern Criminal Procedure, 495 (4th ed, 1974). The Fifth Circuit holds that when a defendant testifies that he was supplied narcotics by a government agent, the burden is upon the prosecution to prove beyond a reasonable doubt that the government informer did not supply the drugs, e.g., United States v Gomez-Rojas, 507 F2d 1213 (CA 5, 1975). Since entrapment is a jury question in Federal courts, they must be concerned with problems of jury confusion in deciding questions about the burden of going forward and the burden of persuasion. It is not unheard of, in fact, it may be the majority practice, to place the burden of proof on the defendant even when the subjective test is used. See 29 Am Jur 2d, Evidence, § 156, p 188.

D. E. Holbrook, Jr., P. J. The plaintiffs instituted the initial suit on December 10, 1973, charging the defendants with libel for an article published on page 3A of the Detroit Free Press’ November 20, 1973, edition. The suit also charged that the Free Press repeated the libel in a December 1 editorial. The article, written by defendant Heldman, charged Balfour Peisner with inadequately representing an indigent criminal defendant who was appealing his manslaughter conviction from Recorder’s Court to this Court. The suit charged that the article and the editorial constituted libel per se and sought actual and punitive damages in the amount of $6,412,000. The defendants filed their answer to the plaintiffs’ complaint on January 2, 1974. Twelve days later the defendants filed their counterclaim seeking $300,000 for abuse of process, both common law and statutory. The counterclaim alleged that the plaintiffs’ suit was filed for "vexation and trouble” to force the Free Press to hire Mr. Peisner to write a retraction of the November 20 article. This claim was based in part on Mr. Peisner’s letter of November 23 to the editor of the Free Press demanding a retraction, in part on Mr. Peisner’s letter to the assistant court administrator on November 29, and in part on Mr. Peisner’s letter to an assistant clerk of the Court of Appeals on December 7. The plaintiffs filed a motion to dismiss the defendants’ counterclaim on the basis that the counterclaim was not timely filed and that the counterclaim failed to set forth a cause of action against the plaintiffs. The trial court denied the plaintiffs’ motion which the plaintiffs appeal by leave granted. The plaintiffs also served the Free Press with certain interrogatories concerning the Free Press’ financial situation. When the Free Press refused to answer the questions as irrelevant and inadmissible, the plaintiffs sought to compel the Free Press to answer the interrogatories. Following the trial court’s denial of that motion, the plaintiffs were granted leave to appeal this question also. I. While the plaintiffs’ motion in this case was labeled "a motion to dismiss” it is properly labeled a motion for summary judgment under GCR 1963, 117.2(1). DeNike v Otsego County, 45 Mich App 711, 714, n 1; 206 NW2d 786 (1973). A motion brought under GCR 1963, 117.2(1) tests the legal sufficiency of the complaint only. Todd v Biglow, 51 Mich App 346, 349; 214 NW2d 733 (1974), lv den 391 Mich 816 (1974). In deciding such a motion the trial court must consider all the defendants’ well-pleaded allegations as true. Weckler v Berrien County Road Commission, 55 Mich App 7, 9; 222 NW2d 9 (1974). Thus for purposes of the plaintiffs’ summary judgment motion the court was required to accept as true the allegation that Mr. Peisner wrote various letters and instituted the libel action to cause "vexation and trouble” for the defendants. In their counterclaim the defendants allege that they have both a statutory cause of action and a common law cause of action for abuse of process. Since they argue that the two causes of action are separate, we will examine each claim independently. The defendants base their claim to a statutory cause of action for an abuse of process on MCLA 600.2907; MSA 27A.2907. However, a careful study of this inarticulately drafted statute convinces us that it does not create a cause of action for abuse of process. Contrary to the defendants’ contention the phrase "for vexation and trouble” as used in the statute refers only to the lack of probable cause necessary to maintain an action for malicious prosecution. It does not relate to any element of abuse of process. In addition, we have exhaustively reviewed the paucity of case law interpreting this 130-year-old statute. Our study of these cases reinforces our view that this statute does not create a cause of action for abuse of process. The cases that we have discovered in our research that have interpreted this statute have almost uniformly been cases for malicious prosecution. The only case we were able to discover that relied on abuse of process implied that the statute was unavailable in a case claiming abuse of process. On appeal this Court reversed a verdict that had trebled the plaintiff’s damages because the plaintiff had proven abuse of process and not malicious prosecution. Parson v Cadillac Outfitting Furniture Co, 11 Mich App 472, 475, 477; 161 NW2d 401 (1968). Hence, we conclude that the statute does not create a cause of action for abuse of process independent of the common law. LaLone v Rashid, 34 Mich App 193, 201, 203; 191 NW2d 98 (1971). In each case in which the use of the statute has been approved, the Court has first outlined the elements necessary to plead a common law cause of action. While we are hesitant to ascribe any purpose behind such an ancient legislative enactment, we are firmly convinced that the purpose of this statute is to permit a person with a valid common law cause of action to recover treble damages. LaLone v Rashid, supra at 203. Since the defendants do not have a statutorily defined cause of action for abuse of process, in order to maintain their counterclaim they must rely on the common law cause of action for abuse of process. The two essential elements for a claim of abuse of process are (1) an ulterior purpose, and (2) an act which is improper in the regular conduct or prosecution of the case. Spear v Pendill, 164 Mich 620, 623; 130 NW 343 (1911), Pilette Industries, Inc v Alexander, 17 Mich App 226, 227-228; 169 NW2d 149 (1969), 3 Restatement, Torts, § 682, comment a, p 464, Prosser, Torts (4th Ed), § 121, p 856. Viewing the pleaded facts, together with their reasonable inferences, most favorably to the defendants, we find that the plaintiffs’ libel action had an ulterior motive. It would be possible for the trier of fact to conclude that the libel action was instituted solely to coerce the Free Press to "hire” Balfour Peisner to write a retraction of the November 20, 1973, article. The letter to the Free Press on November 23 sought more than just a retraction, it sought to force the Free Press to publish an article favorable to the plaintiffs. Likewise, the letters to the Courts could be interpreted as an attempt to bring pressure on the Free Press to accede to the plaintiffs’ wishes. However, before the defendants have stated a cause of action for abuse of process, they must also allege that the plaintiffs have committed some act that is irregular in the use of the process. This they have failed to do. The only improper act that the defendants allege that the plaintiffs have taken is to institute the libel action. However, the mere institution of a lawsuit is not enough to create a cause of action for abuse of process. Spear v Pendill, supra. The acts of the plaintiffs occurring prior to December 10, 1973, are irrelevant on this element of the cause of action since prior to that date there was no process to misuse. They are only relevant to show that the plaintiffs, in this case, had an ulterior motive in instituting the initial action. Spear v Pendill, supra, quoting Wood v Graves, 144 Mass 365, 368; 11 NE 567, 577; 59 Am Rep 95 (1887). The correct cause of action for the wrongful institution of a lawsuit is an action for malicious civil prosecution. Such cause of action is directed against the introduction of groundless suits merely to harass a person. Prosser, supra at § 120, p 851. However, it is readily apparent from reviewing the elements of the tort of malicious civil prosecution that the cause of action is not available to the defendants in the present case. One of the essential elements of such a cause of action is that a prior proceeding has been terminated in the prior defendant’s favor. Turbessi v Oliver Iron Mining Co, 250 Mich 110, 112; 229 NW 454; 69 ALR 1059 (1930), Harris v Federal Asphalt Products, Inc, 1 Mich App 318, 319; 136 NW2d 43 (1965), 3 Restatement, Torts, § 674(b), p 440, Prosser, supra at 853-854. Since the original libel action has not yet been terminated, it is impossible for the defendants to maintain a counterclaim for malicious civil prosecution arising out of the principal action. Cf. GCR 1963, 203.2. The trial court erred in not granting the plaintiffs’ motion for summary judgment as to the defendants’ counterclaim for abuse of process. The defendants have failed to plead sufficient facts to state a cause of action for abuse of process and cannot plead sufficient facts to state a cause of action for malicious civil prosecution. II. Subject to certain exceptions, in Michigan, only relevant, admissible, nonprivileged information is subject to pretrial discovery by the use of interrogatories. GCR 1963, 309.4, GCR 1963, 302.2(1), Wilson v Saginaw Circuit Judge, 370 Mich 404, 411; 122 NW2d 57 (1963). Hence the question we must address ourselves to becomes: Should evidence of a corporate defendant’s financial situation be admissible to measure punitive damages in a libel action? This precise question is a question of first impression in Michigan. As a general rule, evidence of a libel defendant’s wealth or reputed wealth is admissible in Michigan and most other jurisdictions. Farrand v Aldrich, 85 Mich 593, 600; 48 NW 628 (1891), Brown v Barnes, 39 Mich 211, 214-215; 33 Am Rep 375 (1878). See also cases collected at 50 Am Jur 2d, Libel & Slander, §475, pp 1005-1006, n 14-18. The rule is subject to several exceptions though, one being central to this case. Evi dence of a libel defendant’s financial situation is inadmissible when the defendant is a corporation, at least when the plaintiff is seeking only actual damages. Randall v The Evening News Association, 97 Mich 136, 138-140; 56 NW 361 (1893). On appeal the plaintiffs ask us to follow the general rule and strictly limit the exception enunciated in Randall v The Evening News Association. The defendants, on the other hand, argue that the exception set forth in Randall v The Evening News Association should be liberally interpreted. In addition, they contend that the plaintiffs are not entitled to receive punitive damages and therefore this case comes squarely within the holding of Randall v The Evening News Association. Gertz v Robert Welch, Inc, 418 US 323, 350; 94 S Ct 2997, 3012; 41 L Ed 2d 789 (1974). The United States Supreme Court ruled in Gertz v Robert Welch, Inc that constitutionally the states could not impose punitive damages for libel without a showing that the defendant acted with knowledge of the falsity or with a reckless disregard for the truth. Gertz v Robert Welch, Inc, supra, see New York Times Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686; 95 ALR2d 1412 (1964). Contrary to the defendants’ contention, however, the plaintiffs’ pleadings do allege that the defendants acted with requisite intent. Since the plaintiffs may recover punitive damages if they are able to prove their allegations, we must determine if as a matter of policy evidence of a corporate defendant’s financial situation should be admissible. As the plaintiffs noted, the explicit holding of Randall v The Evening News Association is clear, in a libel case where only actual damages are sought the financial situation of a corporate de fendant is inadmissible. Randall v The Evening News Association, supra, at 140. The Supreme Court premised their holding in that case on the theory that such evidence was irrelevant to the issues being tried and highly prejudicial. Randall v The Evening News Association, supra, at 139, 140. The stated reason for admitting evidence of a libel defendant’s wealth is that it is related to his social standing in the community. Darling v Mansfield, 222 Mich 278, 279; 192 NW 595; 34 ALR 1 (1923), Farrand v Aldrich, supra. However, in the case of a corporation, it has no social standing to be enhanced by reputed wealth. "Its [the corporation’s] libelous utterances will sting and injure according to the extent of its circulation, the character of the paper published, as it is known by its publications, and the character of the party assailed. A newspaper published by a corporation which is reputed to pay no dividends may have as extensive a circulation as one published by a corporation which is reputed to pay large dividends. So, one reputed to be worth $50,-000 may have as extensive a circulation as another reputed to be worth $500,000.” Randall v The Evening News Association, supra, at 140. The plaintiffs base their argument on the theory that the purpose of punitive damages is to punish the defendants for their misdeeds. Dalton v Meister, 52 Wis 2d 173, 180; 188 NW2d 494, 498 (1971), cert den, 405 US 934; 92 S Ct 947; 30 L Ed 2d 810 (1972), Prosser, supra at § 2, p 9. They argue that the only way by which the jury may intelligently measure the correct level of punishment is through evidence of the defendant’s financial situation. Tipps Tool Co v Holifield, 218 Miss 670, 686; 67 So 2d 609, 616 (1953). To support their position the plaintiffs cite numerous cases from our sister states. See, e.g, Rosenberg v J C Penney Co, 30 Cal App 2d 609, 627; 86 P2d 696, 705 (1939), Tipps Tool Co v Holifield, supra, Neigel v Seaboard Finance Co, 68 NJ Super 542, 554; 173 A2d 300, 307 (1961), Roth v Greensboro News Co, 217 NC 13, 21; 6 SE2d 882, 887 (1940), Fawcett Publications, Inc v Morris, 377 P2d 42, 53 (Okla 1962), appeal dismissed, 376 US 513; 84 S Ct 964; 11 L Ed 2d 968 (1964), see also Annotation, Evidence of wealth or reputed wealth of defendant in action for libel or slander 34 ALR 3, 8. While acknowledging that the plaintiffs are advocating the position taken by a majority of our sister courts, we feel that the better rule is to exclude such evidence. In Michigan the purpose of punitive damages (also known as exemplary or vindictive damages) is not to punish the defendants for their misdeeds. Smith v Jones, 382 Mich 176, 204; 169 NW2d 308 (1969), Boydan v Haberstumpf, 129 Mich 137, 140; 88 NW 386 (1901), Stuyvesant v Wilcox, 92 Mich 233, 241; 52 NW 465; 31 Am St Rep 580 (1892). The purpose of punitive damages is to fully compensate the plaintiffs for the injury suffered by them because of the defendants’ actions. Detroit Daily Post Co v McArthur, 16 Mich 447, 453 (1868), Oppenhuizen v Wennersten, 2 Mich App 288, 297; 139 NW2d 765 (1966). As Mr. Chief Justice Cooley stated: "The purpose of an action for tort is to recover the damages which the plaintiff has sustained from an injury done him by the defendant. In some cases the damages are incapable of pecuniary estimation; and the court performs its duty in submitting all the facts to the jury, and leaving them to estimate the plaintiff’s damages as best they may under all the circumstances. In other cases there may be a partial estimate of damages by a money standard, but the invasion of the plaintiff’s rights has been accompanied by circum stances of peculiar aggravation, which are calculated to vex and annoy the plaintiff and cause him to suffer much beyond what he would suffer from the pecuniary loss. Here it is manifestly proper that the jury should estimate the damages with the aggravating circumstances in mind, and that they should endeavor fairly to compensate the plaintiff for the wrong he has suffered. But in all cases it is to be distinctly borne in mind that compensation to the plaintiff is the purpose in view, and any instruction which is calculated to lead them to suppose that besides compensating the plaintiff they may punish the defendant is erroneous.” Stilson v Gibbs, 53 Mich 280, 284; 18 NW 815 (1884). Although the focus is on the plaintiffs’ injuries in measuring punitive damages, the focus is on the defendants’ actions in determining if punitive damages should be awarded. Long v Tribune Printing Co, 107 Mich 207, 215; 65 NW 108 (1895), Gertz v Robert Welch, Inc, supra. It has long been the position of the courts of Michigan that the sting of the libel will be much greater when the defendants have acted with either knowledge of the falsity of the material or with reckless disregard for the truth. Long v Tribune Printing Co, supra at 215-216. Since the injury is greater because of the defendants’ actions, the plaintiffs are entitled to recover greater damages. Watson v Watson, 53 Mich 168, 176; 18 NW 605; 51 Am Rep 111 (1884). Since punitive damages are not intended to punish the defendants for their actions, evidence of the Free Press’ financial situation is immaterial. The financial situation of the Free Press does not aggravate or mitigate the plaintiffs’ injuries. The plaintiffs’ injuries are no greater if the Free Press earns $5,000,000 per year and has a net worth of $50,000,000 than if the Free Press only earns $5,000 per year and has a net worth of $500,000. Randall v The Evening News Association, supra. Furthermore, we agree with the trial court that the introduction of this evidence would only create collateral issues and confuse the jury on the issue of liability. Determining the financial situation of a modern corporation requires more than simply presenting the corporation’s balance sheet and profit and loss statement to the jury. There are simply too many variables in modern accounting techniques to make the figures meaningful to laymen without detailed analysis. The trial court did not err in denying the plaintiffs’ motion to compel the Free Press to answer the interrogatories pertaining to its financial situation. Such evidence would be inadmissible at trial and is therefore not subject to discovery through interrogatories. Reversed in part and affirmed in part. Remanded for proceedings consistent with this opinion. No costs, neither party having prevailed in full. The decision of this Court in that case, with substituted defense counsel, is reported in People v McIntosh, 62 Mich App 422; 234 NW2d 157 (1975). See MCLA 600.2907; MSA 27A.2907. Belt v Ritter, 385 Mich 402; 189 NW2d 221 (1971), Taft v J L Hudson Co, 37 Mich App 692; 195 NW2d 296 (1972), LaLone v Rashid, 34 Mich App 193; 191 NW2d 98 (1971), Sottile v DeNike, 20 Mich App 468; 174 NW2d 148 (1969), Leeseberg v Builders Plumbing Supply Co, 6 Mich App 321; 149 NW2d 263 (1967). But see Parson v Cadillac Outfitting Furniture Co, 11 Mich App 472; 161 NW2d 401 (1968). Prior to Gertz v Robert Welch, Inc, 418 US 323; 94 S Ct 2997; 41 L Ed 2d 789 (1974), if the defendants were merely negligent in publishing a libel they could be held liable for punitive damages on the same theory. Long v Tribune Printing Co, 107 Mich 207, 215; 65 NW 108 (1895).

M. J. Kelly, J. On November 7, 1974, defendant was convicted by a Shiawassee County Circuit Court jury of the charged offense of sale of a controlled substance, phencyclidine, MCLA 335.341(l)(b); MSA 18.1070(41)(l)(b). Defendant was subsequently sentenced to serve 24 months on probation with the first 60 days to be spent in the county jail, and was ordered to pay $200 in fines and $200 in costs. He appeals of right. The prosecution was based on the testimony of an undercover police detective, William F. Williams, who testified that he purchased the phencyclidine from defendant at "Jake’s Place”, in Shiawassee County, on January 15, 1974. Defendant offered the defense of alibi. Defendant’s mother, Mrs. Palucki, testified that at the time of the alleged sale her son was first with her at home and then accompanied her to the office of an attorney with whom she had an appointment. To rebut this alibi defense, the prosecution introduced testimony of two police detectives involved in the alleged sale and testimony of the attorney’s secretary. In the challenged instruction, the court stated: "Now regarding the defense of alibi, this defense is as legitimate a defense as any other defense and you are to give the same credit to the witnesses who testified concerning it as you do to witnesses who testified to anything else. "If you have a reasonable doubt as to whether the defendant was at Jake’s Place at the time and place named, then you should acquit him. "The burden of proof is upon the State to show that the Defendant was there at the time and place in question and this burden of proof does not shift to the Defendant. "You are to scrutinize any evidence in relation to alibi, however, since alibi as a defense is easy to prove and hard to disprove. Therefore, you should be careful and cautious in examining the evidence in regard to it.” (Emphasis supplied.) At trial, defense counsel promptly objected to the emphasized portion. The issue is whether the instruction mandates reversal under People v McCoy, 392 Mich 231; 220 NW2d 456 (1974). The people do not dispute defendant’s claim that the challenged portion of the alibi instruction is violative of the McCoy holding. Rather, they contend, under both the facts of this case and the dictates of McCoy, the instructional error does not mandate reversal. The people say that the significant evidence against defendant vitiates any error —that the alibi was a sham. Second, and more importantly, that the McCoy reversal was not founded solely on instructional error but was based on: "The combination of an erroneous alibi instruction, failure to balance the defendant-denigrating alibi instruction with an appropriate instruction on the credibility of an accomplice’s testimony, plus improper closing remarks of the prosecutor.” McCoy, supra, at 240. We would like to agree with the people’s argument. We find however that the above quotation constitutes the law of the case in McCoy. The law of future cases is contained in a different quote: "For cases tried after the publication of this opinion, it will be deemed reversible error (1) to denigrate the alibi defense 'as easily proven and hard to disprove’ or to suggest that it is the burden of the defendant to 'establish’ the defense.” Id. (Emphasis supplied.) We have a very simple task to perform. We find the offending language and we reverse. But, we do so reluctantly. There should be room for a trial judge to denigrate an alibi defense. An examination of the record in this case indicates that the alibi proofs are patently flimsy. A denigrating instruction here makes sense. We would ordinarily hold that not only was there no manifest injustice here, but that the denigrating language amounted to a fair comment on the evidence under GCR 1963, 516.1. As we read McCoy, we are without such discretion. See also, People v Burden, 395 Mich 462; 236 NW2d 505 (1975), People v Daniels, 60 Mich App 458; 231 NW2d 386 (1975), People v McCartney, 60 Mich App 620; 231 NW2d 472 (1975), People v Davis, 61 Mich App 220; 232 NW2d 683 (1975), People v McMillan, 68 Mich App 113; 242 NW2d 518 (1976), Cf. People v Cain, 67 Mich App 433; 241 NW2d 233 (1976). Reversed.

R. B. Burns, J. The defendant appeals the trial court’s denial of his motion to vacate his sentence and set aside his plea of guilty to the added count of manslaughter. MCLA 750.321; MSA 28.553. We affirm. The court advised and informed the defendant of his rights, as provided by GCR 1963, 785.7. While the court was taking the defendant’s plea, the record indicates the following questions and answers: ’’The Court: Why are you pleading guilty to killing Constance Richards * * * ? "Defendant: Because I did it. "The Court: Well, did you do it? "Defendant: I did. I blacked out, and I stabbed the girl.” Later the record indicates the following: "Defendant: I remember stabbing two people, Ricky Richards and stabbing the girl.” The record actually shows the defendant stabbed four people, one man and three women. One woman died. The record also shows that at the time of the stabbing the defendant was the only person in possession of a knife. The judge ascertained a sufficient factual basis to accept the defendant’s plea of guilty. Affirmed. M. J. Kelly, J., concurred.

Danhof, J. On June 1, 1971, plaintiff Robert Carreras, who was then employed as a truck driver, delivered to the defendant’s mill a load of corn gluten. Plaintiff on direction of Kenneth Johnson, an employee of the defendant, positioned his truck so as to dump his load into a metal hopper designed to receive the load. At the bottom of the hopper there was a rotating screw auger approximately 10 inches in diameter which carried the material out of the hopper and into the defendant’s building. The front end of the truck was elevated so as to dump the load out a small door in the tailgate. The unloading went smoothly at first, but after a short time the gluten ceased to flow. Plaintiff explained to Mr. Johnson that this was because the cohesive mass had settled in transit. After several attempts to free the load plaintiff decided to climb into the truck with a shovel. He tossed the shovel over the side of the truck intending to follow it in to free the load. However, the shovel bounced around and fell out the open door at the rear end of the truck and into the hopper, jamming the auger. Plaintiff told Mr. Johnson to shut off the power to the auger. Johnson when deposed testified that he pushed four buttons to stop the machinery and informed the plaintiff that the conveyer had been shut off. Plaintiff asked for and received confirmation from Johnson that the power was off, then climbed into the hopper with a crowbar supplied by Johnson. Johnson was then sent to find a light for the plaintiff. Plaintiff’s efforts to free the shovel were successful, however, when the shovel popped free the auger blade began to turn again, amputating plaintiff’s left leg above the knee. In plaintiff’s action for negligence a jury returned a verdict of $500,000 in favor of Mr. Carr-eras and $50,000 in favor of his wife the co-plaintiff. The first issue raised on appeal is whether the trial court erred by allowing certain testimony on redirect examination related to a 1972 safety code. The rule is that on redirect examination a witness ought to be allowed to explain an answer made on cross-examination. Prieskorn v Kiehler, 4 Mich App 679, 681; 145 NW2d 397 (1966). While the 1972 safety code may not otherwise be relevant to a 1971 accident, the substance of the code was first brought into issue by defense counsel who when cross-examining plaintiff’s expert witness asked him about various changes in the 1972 code, and himself introduced portions of the code on cross-examination. A review of the record indicates that the trial court restricted the plaintiffs attorney on redirect examination to eliciting testimony only as to those portions of the 1972 code brought out on cross-examination. To do so was not error. Prieskorn v Kiehler, supra. The second issue is whether the trial court committed reversible error by denying the defendant’s motion for a mistrial after the jury heard testimony of a safety measure taken by the defendant after the time of the accident. In his opening statement defense counsel explained to the jury at some length why it was not feasible to put a grate over the screw auger. Later, during cross-examination of the plaintiffs expert witness, he asked: "Q. You have a PhD in Engineering and you fell into the pit? 'A. Yes, I did. "Q. It’s not possible, is it, Mr. — Dr. Youngdall to design a piece of machinery fool-proof from every possible type of accident, is it? 'A. No, but you can make it reasonably safe and this wasn’t reasonably safe.” Apparently in response to the above, the following questioning took place between the plaintiffs attorney and the expert witness on redirect examination: "Q. One final question, Professor Youngdall. Mr. Davis went over in detail your falling into the pit when you went out to Honnegers Mill and I believe you told him that you did indeed fall up to your groin? "A. Yes. ”Q. Did you fall all the way to the auger blades? ’A. No. "Q. Why not? 'A. Because there was a grating over the pit where, I had had one bar removed so that the measurements could be made because the grating was there, it kept me from falling in and getting hurt, I got dirty.” After excusing the jury from the courtroom the defense counsel moved for a mistrial. The motion was denied. The trial court then asked him whether he wished the court to instruct the jury to disregard any subsequent repairs. The defense counsel declined this offer. The trial court did not commit reversible error in denying the defendant’s motion for a mistrial. First, since the defendant put feasibility of repair into question, the above response by the witness indicating safety measures were feasible would appear to fall within an exception to the general rule excluding evidence of subsequent repairs. McCormick, Evidence (2d ed), §275, p 667. Next, where the question was answered before objection and the defendant declined a curative instruction, it was not error to let the testimony stand. Murphy v Manistee R Co, 194 Mich 595, 600-601; 161 NW 876 (1917). Finally, even if admission of the above testimony were deemed error, the record does not show the plaintiff argued subsequent repair as proof of negligence. Moreover, there were other facts shown upon which a verdict could have been rendered, so that if error occurred, it was not reversible. Judis v Borg-Warner Corp, 339 Mich 313, 325-326; 63 NW2d 647 (1954). The third issue is whether it was reversible error to allow certain exhibits to be taken into the jury room. The general rule is that it is within the discretion of the trial court to allow exhibits to be taken into the jury room. Silverstone v London Assurance Corp, 187 Mich 333, 342; 153 NW 802 (1915). While an exhibit may be used as a testimonial aid to help the jury understand the evidence, it "must be sponsored by a witness who uses it to relate his personal knowledge or scientific skill and understanding”. Finch v W R Roach Co, 295 Mich 589, 595; 295 NW 324 (1940). Further, where the correctness of a representation is disputed, it is for the jury to settle. Richmond v Atkinson, 58 Mich 413, 415; 25 NW 328 (1885). In the present case, plaintiffs expert witness, an economist, testified as to the potential loss of income on the part of the plaintiff. In his testimony he assumed that the plaintiffs income could vary along the scale of potential incomes. His projections as to loss of earnings were based on the various possible future income levels of the plaintiff. All this information was summarized on two charts subsequently labeled plaintiffs exhibits 15 and 16. On direct examination the witness testified in detail as to the basis for his figures summarized on the chart. He was also cross-examined at length as to the accuracy of his projections on plaintiffs future earning capacity. It was apparent from the record that the witness sponsored the exhibits as illustrative of his expert opinion in the case. As such, the exhibits were correctly used to aid the jury. Finch v W R Roach Co, supra. Further, the jury could properly determine the correctness of the projections, which were put in dispute by the defendant on cross-examination. Richmond v Atkinson, supra. Given the complex nature of the expert’s testimony and given that the charts were properly founded on his testimony, we cannot find that the trial court abused its discretion in allowing the jury to take the charts into the jury room for their deliberations. Silverstone v London Assurance Corp, supra. The fourth issue is whether the trial court abused its discretion in not admitting certain evidence of the plaintiffs post-accident income as it related to the plaintiffs incentive to work. Blacha v Gagnon, 47 Mich App 168, 174; 209 NW2d 292 (1973), states: "It is within the discretion of the trial court to admit evidence bearing on the question of whether an injured party possessed sufficient incentive to return to work.” [Citations omitted.] The defendant sought to admit evidence of alleged interest income the plaintiff received from investing an advance payment made to him by the defendant’s own insurance carrier amounting to about $1000 annually. The trial court refused to admit such evidence to the jury to show a reduced incentive to work on the part of the plaintiff. The court felt it would allow the defendant to benefit from its own act. In viewing the relatively small amount of income, the prejudicial effect on the plaintiff and the source of such income, we cannot say the trial court abused its discretion in the exclusion of this evidence. Defendant’s fifth contention on appeal is that it was error to admit a 26-year-old photograph of the plaintiff as a track star into evidence. Defendant cites no authority to support his position. The determination of the relevancy and materiality of evidence is a matter of discretion with the trial judge. Simonetti v Rinshed-Mason Co, 41 Mich App 446, 457; 200 NW2d 354 (1972), lv den, 388 Mich 784 (1972). The trial judge found that the photograph depicting the plaintiff as a track star sufficiently related to the issue of plaintiffs mental anguish and damages resulting therefrom to allow it into evidence. The record contains numerous references to the place that physical activity had in the life of the plaintiff prior to the accident. Thus, it appears the trial judge properly exercised his discretion. Simonetti v Rinshed-Mason Co, supra. Defendant also claims several errors in the trial judge’s instructions to the jury. The defendant had requested that because Mr. Johnson, defendant’s employee, had suffered a stroke prior to trial and was unable to testify, standard jury instruction (civil) 10.08 be delivered. Instruction 10.08 reads in pertinent part: "Because — has died and cannot testify, you must presume that (he) (she) was in the exercise of ordinary care * * * ”. However, Mr. Johnson was deposed prior to trial and his deposition was admitted into evidence at trial. Instruction 10.08, by its own language, is inapplicable under these circumstances. It was not error to deny defendant’s request. Defendant’s second objection to the charge involves the judge’s refusal to instruct the jury that the plaintiffs 11 children had no claim for damages. We note that the court delivered a cautionary instruction to the potential jurors prior to voir dire regarding the extent to which the number of defendant’s children could be considered. In his final charge to the jury the judge said: "Now there are two plaintiffs in this trial and each is entitled to separate consideration of his or her own case. I shall not repeat my instructions for each plaintiff and unless I tell you otherwise, all instructions apply to each plaintiff.” The charge, taken as a whole, leaves no room for misunderstanding. Johnston v Narmore, 1 Mich App 160, 164; 134 NW2d 837 (1965), aff'd, 378 Mich 491; 146 NW2d 655 (1966). Defendant further objects to the trial court’s refusal to instruct the jury that if the plaintiff had failed to select the least dangerous course of action he was contributorily negligent as a matter of law. The requested instruction was not delivered because the trial judge found it argumentative, contrary to GCR 1963, 516.6(4). The instruction as requested incorrectly states the law of contributory negligence in that it refuses to recognize, or allow the jury to find, that two or more alternative courses of conduct may be reasonable. The law requires only that a person act as a "reasonably careful” person would, not that he select the optimum alternative in each and every circumstance. Thus, the error in refusing to deliver this instruction, if any, is harmless. Jones v Michigan Racing Association, 346 Mich 648; 78 NW2d 566 (1956). Defendant next claims error in the trial court’s giving of a so-called vigilance or Gleason instruction over defendant’s objection. The instruction as delivered was taken substantially from Gleason v Sutter, 350 Mich 292, 297; 86 NW2d 288 (1957), a factually similar case in which the plaintiff was assisting the defendant in attempting to free a load of corn which had become jammed in the hopper to a corn crusher. There, as here, the plaintiff was given the defendant’s assurances (although implicit) that to do so was safe. The Glea son court quoted with approval the following language from Watkinson v Reichle, 292 Mich 484, 487-488; 290 NW 877 (1940), which is the substance of the delivered instruction: "[I]f the defendant, by his own act, has thrown the plaintiff off his guard, and given him reason to believe vigilance was not needed, the lack of such vigilance on the part of the plaintiff is no bar to his claim.” The defendant correctly observes that in Gleason and all the cases cited therein, there was evidence that the plaintiff acted at the defendant’s direction or request. It contends that such a relationship is absent in the instant case and that, therefore, the instruction was inappropriate. We disagree. Whether or not plaintiff acted on his own is a factor in establishing the defendant’s duty but not the plaintiffs contributory negligence. Contributory negligence results when the plaintiff has failed to honor his duty to himself to safeguard his own welfare. The nature of the defendant’s duty to the plaintiff is immaterial on this issue, and the trial court correctly instructed on the plaintiffs duty elsewhere in his charge. Defendant next contends that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict either because the plaintiff had failed to establish that the defendant had breached any duty to the plaintiff, or because the defendant had established contributory negligence as a matter of law. The duty owed the plaintiff by the defendant is a product of the relationship between the parties. Both agree that initially plaintiff was an invitee on the premises. Defendant, however, argues that when the plaintiff stepped into the hopper he did so without request or consent, thus exceeding the scope of his invitation and reducing his status to that of a licensee or trespasser. We find ample evidence in the record upon which the jury could have concluded that the plaintiff remained an invitee up to the time of the accident, evidence including the conduct of defendant’s agent, Mr. Johnson, who rendered assistance to plaintiff in freeing the shovel and who at no time objected to the plaintiffs actions. In addition, we feel that breach of the defendant’s duty is supported by the proofs to the extent that reasonable men could so conclude. Testimony presented by the plaintiff established that there had been a protective grate over the auger when installed but that it had later been removed by the defendant. Plaintiff also presented expert testimony that the auger controls were inadequate and that the equipment was improperly maintained. From such evidence the jury could reasonably conclude that the defendant had breached the duty owed to either a licensee or invitee. As to the defendant’s contention that the plaintiff was as a matter of law contributorily negligent, we cannot agree. There is ample evidence in the record to support a finding that plaintiff acted with reasonable regard to his own safety, not the least of which was Mr. Johnson’s assurances that the auger had been rendered inoperative. Finally, defendant asks this Court to find the trial court committed error in denying its motion for remittitur. The remedy defendant seeks is not lightly given as the judgment is a product of jury deliberation and judicial discretion. That portion of the award which compensates the defendant for loss of earnings and medical expenses is relatively capable of mathematical computation. However, in such a case no objective process will yield the value of a limb or the worth of freedom from pain. This Court will not substitute its judgment for that of the jury unless the jury verdict is "the result of prejudice, caprice, passion, partiality, sympathy, or kindred reasons rather than a result of the consideration of the evidence and actual existing conditions * * * ”. Stowers v Wolodzko, 386 Mich 119, 141; 191 NW2d 355 (1971). Defendant urges that the verdict was a product of sympathy towards the plaintiff and an abrogation of the jury’s duty. We are unable to conclude that this was the case, nor can we say that the verdict is grossly excessive so as to "shock the judicial conscience” of the court. Stevens v Edward C Levy Co, 376 Mich 1; 135 NW2d 414 (1965). Affirmed. Costs to plaintiffs.

D. E. Holbrook, Jr., J. Defendant was charged with felonious assault. MCLA 750.82; MSA 28.277. He was convicted by a jury on February 25, 1975, of the lesser included offense of simple assault. MCLA 750.81; MSA 28.276. Defendant was sentenced to one year’s probation, the first 90 days to be served in the county jail. He now appeals as of right. The incident occurred as the defendant was awaiting processing for an unrelated misdemeanor at the county jail. As part of his processing he was eating in the detention room. The food at the jail is served on metal trays. The victim of the assault, a guard at the jail, was escorting another inmate from one of the holding cells through the detention room when words passed between the defendant and the guard. There is some dispute regarding what exactly was said but as the guard, approached the defendant, the defendant admits he threw coffee in the guard’s face. The guard stated that the defendant hit him in the face with the food tray. The defendant admitted striking the guard with his fist but he testified that the guard provoked him. Several witnesses, both officers and prisoners, testified in support of the guard’s version of the incident. Others testified favorably to the defendant. In addition the incident was recorded on video tape. Although the view of the participants was obstructed by a food cart and some other inmates, the tape did show there were other potential witnesses present during the incident. However, at trial officers were unable to identify persons in the tape who were not called at trial. Other testimony revealed that there were prisoners in the holding cells who might have viewed the altercation. The victim, whose only training was in connection with being a guard, was placed in charge of the investigation. He made no attempt to discover who these potential witnesses were or to determine if they actually saw the fight. Even though defense counsel learned of these potential witnesses before trial, he made no motion to compel their endorsement on the information or disclosure of their names. However, he did request the trial court to instruct the jury that they could infer by the absence of such witnesses that their testimony would have been detrimental to the prosecutor’s case. This instruction was refused, but the trial court did not state its reasons for the refusal. The trial court’s refusal of this instruction constitutes defendant’s sole issue on appeal. As a general rule, the prosecution is required to endorse on the information and to produce at trial all res gestae witnesses. MCLA 767.40; MSA 28.980, People v Keywell, 256 Mich 139, 141; 239 NW 288 (1931), People v Harrison, 44 Mich App 578, 585; 205 NW2d 900 (1973). If the prosecution does not produce all the res gestae witnesses, the defendant is entitled to an instruction that it should be presumed that the missing res gestae witnesses would have testified favorably to the defendant. People v Gibson, 253 Mich 476, 478; 235 NW 225 (1931), People v Simpson, 57 Mich App 320, 322, 324-325; 225 NW2d 748 (1975). Such an instruction can alleviate any possible prejudice suffered by the defendant by the failure of the prosecution to call all res gestae witnesses. People v Gordon, 60 Mich App 412, 417; 231 NW2d 409 (1975). While in case of doubt it is better to err on the side of granting such requests, the threshold question we must answer is when is it an abuse of discretion to deny the defendant the opportunity to have such an instruction given. After reviewing the policy behind the requested instruction, we hold that it is only necessary to give it when it would be reversible error not to produce the witness. While it has long been required that all res gestae witnesses be endorsed on the information and produced at trial, numerous exceptions have grown up over the years. People v Koehler, 54 Mich App 624, 637-638; 221 NW2d 398 (1974), People v Bennett, 46 Mich App 598, 619-620; 208 NW2d 624 (1973), rev’d on other grounds, 393 Mich 445; 224 NW2d 840 (1975). One of the exceptions, the failure of the defendant to move for endorsement and production of a witness known to him, is applicable in this case. People v Bartlett, 312 Mich 648, 655; 20 NW2d 758 (1945), People v Williams, 42 Mich App 278, 281-282; 201 NW2d 286 (1972), People v Rasmus, 8 Mich App 239, 243; 154 NW2d 590 (1967). There are two reasons for this exception to the res gestae rule. First,, it places the prosecutor on notice that the defendant knows of other persons that may be possible res gestae witnesses. It also gives that prosecutor an opportunity to correct his mistake by presenting the "newly discovered” witness for examination at trial. Second, the defendant’s request for endorsement and production gives the trial court an opportunity to make a ruling on whether the witness is indeed a res gestae witness. Accord, People v Robinson, 390 Mich 629; 213 NW2d 106 (1973). The continuing validity of this exception to the res gestae rule has been questioned in light of the decision in People v Robinson, supra. People v Gordon, supra at 415, People v Buero, 59 Mich App 670, 675-677; 229 NW2d 880 (1975). However, People v Robinson, supra, does not question the reasoning behind the exception, it only changes the time that the issue must be raised. See People v Coppernol, 59 Mich App 745, 753; 229 NW2d 913 (1975). The clear holding of People v Robinson, supra, is that the issue of nonproduction of res gestae witnesses must be raised in a motion for a new trial. People v Robinson, supra at 634, People v Baines, 68 Mich App 385; 242 NW2d 784 (1976), People v Van Riper, 65 Mich App 230; 237 NW2d 262 (1975). The same reasoning applies when the alleged error is the failure to give an instruction concerning the failure of the prosecution to produce a res gestae witness. While the trial court did have an opportunity to decide whether or not the missing witnesses are res gestae witnesses, it did not have the opportunity for post-trial reflection as suggested in People v Robinson, supra. Furthermore, the prosecution was denied an opportunity to cor rect its mistake by producing the alleged res gestae witnesses for a hearing. Since in this case no motion was made to compel the endorsement of the prisoners; to compel discovery of the prisoners’ names; or for a new trial, we conclude that the trial court did not abuse its discretion in denying defendant’s request for an instruction on the failure of the prosecution to endorse and produce the prisoners. Affirmed.

R. B. Burns, J. Plaintiff appeals from a summary judgment on behalf of defendant, the workmen’s compensation carrier for plaintiff’s decedent’s employer. The death resulted from an industrial accident for which plaintiff alleges that defendant should be responsible because of negligent inspection of the employer’s premises. Defendant’s motion for summary judgment was based upon MCLA 418.827(8); MSA 17.237(827X8), a section added to the Workmen’s Compensation Act by 1972 PA 285, reading as follows: "The furnishing of, or failure to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance, or pursuant to a contract providing for safety inspections or safety advisory services between the employer and a self-insurance service organization or a union shall not subject the insurer, self-insurance organization or the accident fund, or their agents or employees, or the union, its members or the members of its safety committee, to third party liability for damages for injury, death or loss resulting therefrom.” Plaintiff brings a three-pronged constitutional attack on the statute; the questions raised are of first impression in this state. Plaintiff first contends that the statute constitutes a violation of equal protection by discriminatorily prohibiting an action against compensation carriers while allowing actions against other third party tortfeasors. Apparently realizing that this legislative classification is not "inherently suspect” such that a "strict scrutiny” standard of judicial review would be applied, plaintiff urges that the statute fails to satisfy the "traditional” or "rational basis” test of equal protection. As stated in People v Harper, 1 Mich App 480, 483; 136 NW2d 768, 769 (1965), quoting from Gauthier v Campbell, Wyant & Cannon Foundry Co, 360 Mich 510, 514; 104 NW2d 182, 184 (1960): " ' "The standards of classification are: "' " '1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.’ Citing cases.” ’ ” We think it clear that this statute does not constitute a denial of equal protection. A rational basis for the classification can be readily hypothesized: the Legislature granted immunity to the carriers in order to encourage safety inspections. Plaintiff next contends that the grant of immunity to the compensation carrier is in direct violation of public policy. The Legislature has determined otherwise. We defer to the Legislature as more competent to determine the public policy. Plaintiff last claims a violation of Const 1963, art IV, § 24, for failure of this amendatory section to fall within the expressed object of the larger act. The title of the Workmen’s Compensation Act of 1969, MCLA 418.101, et seq.; MSA 17.237(101) et seq., reads as follows: "An act to revise and consolidate the laws relating to workmen’s compensa tion; and to repeal certain acts and parts of acts”. The title of the previous Workmen’s Compensation Act, MCLA 411.1 et seq.; MSA 17.141 et seq., read in relevant part: "An act to promote the welfare of the people of this state, relating to the liability of employers for injury or death sustained by their employees, providing compensation for disability or death resulting from occupational injuries or disease or accidental injury to or death of employees and methods for the payment, and apportionment of the same * * * .” The title expressly refers to "the liability of employers”. The 1969 act proceeds in "revising and consolidating” to limit an employee’s remedies against his employer to the act, and to define "employer” to include "insurer”. MCLA 418.131; MSA 17.237(131). We find that the Legislature’s grant of immunity to a compensation carrier is clearly within the expressed purpose of the Workmen’s Compensation Act. We find the statute to be constitutional as against the challenges brought herein. Affirmed. Costs to defendant.

T. M. Burns, J. Plaintiffs sought a writ of mandamus compelling defendants to either properly maintain a road or to abandon it. The trial court denied the writ. Plaintiffs appeal as of right. Lake Boulevard is a county road in Indian River, Michigan, which runs parallel and adjacent to Burt Lake on one side and plaintiffs’ property on the other. The portion of the road pertinent to this suit is 10 feet wide and is part asphalt and part gravel. The record indicates that the road’s primary use is for local traffic. Part of the roadway running between the lake and plaintiffs’ property is used as a beach by the public and the resultant noise, litter and uncoordinated parking of vehicles has interferred with plaintiffs’ use and enjoyment of their property. Plaintiffs testified, and the record indicates, that the extent of defendants’ maintenance of the road has been minimal at best and that there is a total lack of signs to control traffic on the road. The trial court found that despite the lack of maintenance of Lake Boulevard, there was no showing that such maintenance was unreasonable relative to the maintenance of other roads in the county. The court denied the writ of mandamus because there was no showing of unreasonable, arbitrary or capricious actions by the defendants. Do defendants have an affirmative duty to maintain Lake Boulevard in a reasonable condition? MCLA 224.21; MSA 9.121 provides in part: "It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel.” This statute imposes an affirmative duty on the county to keep its roads in reasonable repair. Mullins v Wayne County, 16 Mich App 365; 168 NW2d 246 (1969). One should not have to wait until he suffers personal injuries due to unsafe roads before he can enforce that statutory duty. Was the trial court correct in declaring that plaintiffs failed to prove that Lake Boulevard was not kept in reasonable repair by defendants? The trial court found that the road was not in "excellent” condition, and the court seemed to place great reliance on the fact that other roads in the county were maintained in a similar fashion. It was not error to judicially notice the relative condition of other roads, but the condition of other roads is not relevant. Defendants have an affirmative duty to keep all county roads in reasonable repair and reasonably safe for travel. That other roads are not reasonably maintained does not excuse defendants from meeting their duty as to Lake Boulevard. There was no evidence presented that the other roads were reasonably maintained. Our de novo review of the record convinces us that Lake Boulevard is not reasonably maintained nor reasonably safe for traffic. Reasonable maintenance and safety require regular snow plowing, grading and proper signing. Lake Boulevard has not received such maintenance. The use of the public roadway as a public beach and parking lot is improper. But the regulation of such activity is not the duty of defendants. We hold that defendants have an affirmative duty under MCLA 224.21; MSA 9.121 to keep Lake Boulevard in reasonable repair so that it will be reasonably safe and convenient for public travel and find that defendants have breached this duty. The other issues raised on this appeal are without merit. The judgment of the trial court is reversed, a writ of mandamus is awarded, and it is ordered and adjudged that defendants forthwith repair and maintain Lake Boulevard so as to be safe and convenient for public travel. No costs, a public question being involved. N. J. Kaufman, J., concurred.

N. J. Kaufman, J. Defendant appeals by right from the May 6, 1975 judgment of the Kalamazoo County Circuit Court which revoked his probation pursuant to a finding that he had violated one of the terms of his probation order. Defendant was subsequently sentenced to a term of from 2-1/2 to 5 years in prison. In 1973, the defendant was convicted on his plea of guilty to the crime of entering a building without breaking with the intent to commit the crime of larceny. MCLA 750.111; MSA 28.306. He was subsequently placed on probation for two years, the first six months to be spent in the county jail. One of the terms of his probation order prohibited him from leaving the State of Michigan. Early in 1975, defendant’s probation officer received information which led him to believe that the defendant had violated that provision by traveling to Florida. On February 28, 1975, a petition for a bench warrant and probation violation hearing was filed by the probation officer and a warrant issued. The defendant was arraigned in circuit court on the violation charge on April 29, 1975. At that time, he demanded a hearing on the charge and requested the appointment of an attorney. Both requests were met. The hearing was held on May 6, 1975. The sole witness was the defendant’s probation officer, Mr. John Roseboom. Roseboom testified that he received a phone call on February 24, 1975, giving him information which led him to believe that the defendant had illegally left the state. He further testified that the defendant came to his office on February 28, 1975, and, in response to the probation officer’s question, admitted that he had visited a brother who lived in St. Petersburg, Florida. The probation officer stated that he had not given the defendant Miranda warnings before asking him that question. The defense then moved that the probation officer’s testimony be stricken because no warnings had been given. However, the trial judge denied the motion, stating that he was not aware of any authority which required probation officers to give Miranda warnings before questioning a client. Through his attorney, the defendant then indicated that he would like to. testify about the extenuating circumstances that caused him to leave the state. However, the trial judge refused to allow him to testify at that time. The court reasoned that information about extenuating circumstances could only be considered as a part of the sentencing procedure, not part of the guilt-determining process. The defendant was advised to explain the extenuating circumstances to the probation officer who would prepare the presentence report. On appeal, defendant propounds three claims of error. Defendant first contends that error was committed when he was not given a preliminary hearing to determine the existence of probable cause that he had violated the terms of his probation. Defendant bases this contention on Gagnon v Scarpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973). In Gagnon, the Supreme Court adopted for probation revocation proceedings the due process rules it had formulated for parole revocation proceedings in Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972). As part of these rules, the Court mandated both preliminary and final revocation hearings, with the former designed to ascertain probable cause for revocation. 411 US at 781-782. This Court, however, has noted that the Su preme Court "was not establishing an inflexible structure for probation revocation procedures”. People v Blakely, 62 Mich App 250, 254; 233 NW2d 523 (1975). As such, a single revocation hearing will provide due process if it is sufficiently close in time to the notice of violation that a defendant will not be held for a substantial time period without some kind of determination that he violated probation. Id. The Michigan statutory procedure utilized here was found to satisfy Gagnon in People v Leroy Jackson, Jr, 63 Mich App 241; 234 NW2d 467 (1975). Defendant here was arraigned within 72 hours following his arrest and the final revocation hearing was held seven days later. The expeditious manner in which this proceeding was handled satisfies the Morrissey-Gagnon standards as applied by Michigan case law. Defendant’s second appellate contention is that the trial court erred by admitting, over defense objection, the statement of defendant’s probation officer that defendant admitted going out of Michigan in violation of his probation. Defendant argues that, prior to admitting the violation, he was not informed of his constitutional rights pursuant to the dictates of Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Therefore, he contends, the probation officer’s testimony was improperly admitted. Defendant cites no authority in support of his argument, and our research has discovered none. Indeed, relevant case law from this and other jurisdictions militates against the application of the Miranda rules to probation revocation hearings. First, as the Supreme Court stated, "the revocation of * * * [probation] is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to * * * [probation] revocations”. Morrissey v Brewer, supra, at 480. See also Gagnon v Scarpelli, supra, at 781. The Miranda rules, by their own terms, only apply to criminal prosecutions, specifically to "custodial police interrogation” and to the use of statements in criminal trials. Miranda v Arizona, supra, at 439. The "minimal” due process requirements for probation revocation hearings were explicitly established in Gagnon. The requirement that more than just defendant’s own testimony be required to find a violation was not, as defendant would have us hold, one of these rights. Second, cases in other jurisdictions have uniformly rejected the application of Miranda rules to probation revocation proceedings. These opinions have stressed the fact that probation revocation is "not an adversary or a criminal proceeding, * * * but is more in the nature of an administrative hearing intimately involved with the probationer’s rehabilitation”. United States v Johnson, 455 F2d 932, 933 (CA 5, 1972), cert den 409 US 856; 93 S Ct 136; 34 L Ed 2d 101 (1972). Further, a probationer retains only those rights which: "are compatible with his probationary status. * * * This is so because the defendant expressly agrees to be subject to the supervision and surveillance appropriate to a probationer, to avoid the more onerous regimen of a prisoner.” United States v Delgado, 397 F Supp 708, 712 (SD NY, 1974). See also Cunningham v State, 488 SW2d 117 (Tex Crim App, 1972), State v Johnson, 9 Wash App 766, 514 P2d 1073 (1973). In United States v Deaton, 468 F2d 541 (CA 5, 1972), the Court distinguished United States v Johnson, supra, and, in doing so, pointed out the appropriate application of the Miranda rules. The Court reaffirmed its holding in Johnson that "Miranda warnings are not required as a condition to the admission in evidence at the revocation hearing of statements made by the parolee to the parole officer”. Id. at 544. In Deaton, however, such statements were admitted against defendant in a subsequent criminal trial. This use, the Court held, was improper. In Michigan, revocation hearings are "summary and informal and not subject to the rules of evidence * * * applicable in criminal trials”. MCLA 771.4; MSA 28.1134. Parenthetically, other state and Federal courts have also held the Fourth Amendment exclusionary rule inapplicable to probation revocation hearings. See e.g., United States v Winsett, 518 F2d 51 (CA 9, 1975), United States v Delgado, supra, People v Wilkerson, 541 P2d 896 (Colo, 1975). Defendant’s final argument on appeal is that the trial judge erred in refusing to allow the defendant to testify about extenuating circumstances at the revocation hearing. We find that the court and prosecutor are correct in arguing that, once defendant admitted that he had violated a condition of probation, his explanation of why he had left the state was more relevant to sentencing. As such, the court’s refusal to admit this evidence was within its broad discretion. People v Wood, 2 Mich App 342; 139 NW2d 895 (1966). Affirmed. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Cert den 410 US 934; 93 S Ct 1386; 35 L Ed 2d 597 (1972).

Quinn, J. Plaintiff appeals from a decision by Michigan Employment Relations Commission which reversed a decision by an administrative law judge that defendants had committed an unfair labor practice. The decisive issue is whether the decision appealed from is supported by competent, material and substantial evidence on the whole record, Const 1963, art 6, § 28. By oral contract, defendants employed Robert Holmes as a projectionist for a new theater operated by them. Holmes was a member of plaintiff and the oral employment agreement was that Holmes would work two weeks while defendants and plaintiff worked out a contract. Holmes was paid union scale wages. Plaintiff sent George Klokis to defendants as a relief projectionist and he worked as such. After two weeks no contract was reached and the projectionists were placed on day to day employment. Plaintiff demanded union scale wages for Holmes and Klokis. Defendants maintained it was economically impossible for them to pay union scale wages on the basis of box office receipts. No contract was ever reached between plaintiff and defendants, and defendants finally discharged Holmes and Klokis. At the request of plaintiffs agent, defendants formalized that discharge by letter dated January 31, 1973. Thereafter, plaintiff filed an unfair labor practice charge under MCLA 423.16; MSA 17.454(17). MERC found no per se unlawful activity, that there was no antiunion motivation, that only incidental harm to employee rights was involved, and that there was sound economic basis for defendants’ actions. From our review of the record, these findings are supported by competent, material and substantial evidence on the whole record. NLRB v Great Dane Trailers, 388 US 26; 87 S Ct 1792; 18 L Ed 2d 1027 (1967), supports the decision of MERC. Affirmed, with costs to defendants. J. H. Gillis, P. J., concurred.

N. J. Kaufman, J. Defendant was convicted of manslaughter, MCLA 750.321; MSA 28.553, after a bench trial in Wayne County Circuit Court. He was subsequently sentenced to a term of from 4 to 15 years in prison and now appeals of right. Defendant’s conviction resulted from the death of Ann Harris, his aunt. The prosecution claimed that Ms. Harris’ death on April 8, 1974 was caused by a beating which defendant inflicted with his fists. Robert Hendrix, M.D., a witness for the prosecution, testified that, on April 12, 1974, he did an autopsy on the body of Ms. Harris, deceased; that he observed three surgical wounds on the scalp and bruises on the face, chest, arms and legs. He testified that there were "many bruises”, several days old. He observed bruises on the eyelid and bridge of the eye and testified that the bruises on the various parts of the body were consistent with physical force, such as a fist fight. Internally, there was bleeding "within the skull and the brain”, a subdural hematoma. Direct injury was considered the origin of the bleeding. He testified that, in his opinion, "the brain lesions were produced by physical violence, multiple blows to the head and to the rest of the body”. The decedent’s niece, Hazel Peace, testified that she had seen Ms. Harris in the hospital on April 8, 1974, shortly after the incident. Ms. Peace related that decedent’s face was bruised and swollen and that decedent had stated that defendant had hit her. At trial, after a motion by the prosecutor, the court allowed the preliminary examination testimony of one Mary Johnson to be read into evidence. The prosecutor was allowed to introduce the testimony pursuant to MCLA 768.26; MSA 28.1049 upon sufficient proof of the witness’s unavailability. Ms. Johnson’s testimony was challenged by defense counsel as barred by the husband-wife privilege. Defendant and Ms. Johnson had lived together and, at the time of the preliminary examination, were affianced. She had given birth to a child by him. The trial court denied this challenge. Ms. Johnson testified that she had witnessed the alleged beating and that she had seen decedent swing a board at defendant. She testified that defendant had not hit decedent in the head or chest but later stated that defendant had hit decedent in the eye. The prosecution impeached these statements with a prior one in which Ms. Johnson had related that she saw defendant hit Ms. Harris "a number of times”. Defendant took the stand in his own behalf. He testified that on April 8, 1974, decedent had become intoxicated and had started an argument. He claimed that, when his back was turned, decedent swung an object at him. When Mary Johnson yelled, he turned and hit decedent in the eye in a "reflex” action. He claimed that decedent’s eye was red from the blow but that he had hit her only once. On appeal, defendant raises three claims of error, two of which relate to the admissibility of Mary Johnson’s preliminary examination testimony. Defendant first contends that the testimony should have been excluded by the husband-wife privilege. This privilege is embodied in MCLA 600.2162; MSA 27A.2162, which provides with certain exceptions not relevant here, that: "A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent.” Case law is clear in requiring that the privilege be applicable only where the witness is legally married to the party asserting the privilege. People v Zabijak, 285 Mich 164; 280 NW 149 (1938), People v Minchella, 268 Mich 123; 255 NW 735 (1934) , cert denied 293 US 619; 55 S Ct 217; 79 L Ed 707 (1934), reh den, 55 S Ct 345; 79 L Ed 707 (1935) , habeas petition denied 297 US 692; 56 S Ct 384; 80 L Ed 985 (1936). Michigan no longer recognizes as valid common-law marriages. MCLA 551.2; MSA 25.2; In re Leonard Estate, 45 Mich App 679; 207 NW2d 166 (1973). Nonetheless, defendant urges that this Court not rigidly apply the requirement of a legal marriage but, instead, look to the relationship of the parties to determine whether the incidents of that relationship are those which the statute was intended to protect. Although the contention is cogent, clear Supreme Court precedent requires that we reject this contention. The Supreme Court or Legislature may alter the rule, but we may not. Second, defendant asserts that Mary Johnson’s preliminary examination testimony should not have been admitted into evidence because plaintiff failed to exercise due diligence in producing her as a res gestae witness. Following a defense objection, the trial court held a hearing to determine if the due diligence requirement had been satisfied. This objection involves the interaction of the res gestae witness rule, MCLA 767.40; MSA 28.980, and the statutory provision allowing admission of a witness’s preliminary examination testimony "whenever the witness giving such testimony cannot, for any reason, be produced at trial”. MCLA 768.26; MSA 28.1049. In examining this interaction, "the reasons for the witness’s unavailability at trial must be weighed against the defendant’s constitutional right of confrontation. Barber v Page, 390 US 719; 88 S Ct 1318; 20 L Ed 2d 255 (1968). The Michigan statute must give way to the right of confrontation where a witness’s absence from trial stems from the prosecution’s lack of good faith efforts to secure the witness’s presence.” People v Nieto, 33 Mich App 535, 537-38; 190 NW2d 579 (1971). (Footnote omitted.) See also People v Herman Brown, 38 Mich App 69; 195 NW2d 806 (1972). A defendant has the right to have a witness’s demeanor placed before the trier of fact. Defendant, in the instant case, objected to Ms. Johnson’s nonproduction under the res gestae witness rule but objected to the introduction of her preliminary examination testimony solely on the basis of privilege. In any case, our review of the record convinces us that the trial court did not, as is required for reversal, abuse its discretion in finding due diligence by the prosecution. People v Rimson, 63 Mich App 1; 233 NW2d 867 (1975). The police had, on several occasions, attempted to contact the witness. They had left a subpoena with the witness’s sister, who had said that she would deliver it to the witness. The aid of the witness’s family was enlisted, but to no avail. The police noted no leads as to her whereabouts. Notwithstanding these facts, we find this to be a close case. Although we might have required a greater effort by police, we cannot find their actions to have been so lacking that the trial court’s approval constituted an abuse of discretion. Defendant’s final claim of error is that the trial court failed to make the specific findings required in nonjury criminal cases by GCR 1963, 517.1 and People v Jackson, 390 Mich 621, 627; 212 NW2d 918 (1973). The court stated: "This Court finds that the essential elements of the crime of manslaughter, an included offense within the original charge in this case has been proven beyond a reasonable doubt. That the proof[s] submitted beyond a reasonable doubt prove that the defendant, Monroe H. Stanford, committed this offense, this unlawful killing of one Ann B. Harris without malice, and that indeed the defendant, Monroe H. Stanford, is guilty of the crime of manslaughter.” The purpose of special findings of fact in nonjury criminal cases is to aid appellate review. People v Robert Jackson, 63 Mich App 249; 234 NW2d 471 (1975), People v Owens, 13 Mich App 469, 483, fn 7; 164 NW2d 712 (1968) (dissent by Levin, J.). Such findings, according to 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 594, "must disclose the basis for each ultimate fact necessary to sustain the court’s conclusions of law. But a mere recital of the conclusory facts which constitute the elements of the cause of action or defense will often be too general and not specific enough.” The Supreme Court noted, however, that where it is apparent from the record that the issues raised were not complex, and that the trial judge was aware of these issues and resolved them, remand is not required. People v Jackson, 390 Mich 621, 627, fn 3; 212 NW2d 918 (1973). The Court cited People v George Scott, 21 Mich App 217; 175 NW2d 312 (1970), as an example of when a remand is not required. There, before announcing his verdict, the trial judge recited the statutory charge and reviewed the evidence bearing on the sole issue in conflict. In the instant case, the trial court merely stated his ultimate finding in conclusory language. The evidence raised questions concerning the possibility of mistake, the extent of the alleged beating and causation. The trial court made no findings on any of these disputes. We, therefore, remand this case to the trial court which shall, within 60 days, make findings of fact pursuant to GCR 1963, 517.1. We retain jurisdiction.

Bronson, P. J. We must determine if present plaintiff has a right to continue his lawsuit against defendant, Chrysler Corporation, after plaintiff has released from liability four other defendants and they have been dismissed, with prejudice, from the litigation. In 1968, plaintiff-appellant sought legal and equitable relief from the Wayne County Circuit Court, alleging that Peter Fink, Jack Freeman, and present appellee Chrysler defrauded plaintiff and other common stockholders of Frank Motor Homes. In 1971, two more defendants, PRF Industries and Travco Corporation, alleged to be the successor corporations to Frank, were added. Plaintiff’s general allegations were that defendants forced Frank Motor Corporation’s stockholders to sell their stock at an excessively low price to certain of defendants, thereby enabling the defendants to gain control of the enterprise. Upon renaming the business, defendants operated and controlled the concern for their own benefit. Further specifics of the complaint, though interesting, need not be set forth to resolve the question we will address. In 1974, plaintiff negotiated releases with all defendants, save Chrysler Corporation. The trial court dismissed with prejudice plaintiffs claims against the released defendants. Chrysler subsequently brought a motion for "accelerated judgment and/or summary judgment or partial accelerated judgment and/or summary judgment”. Chrysler claimed that the release of one or more joint tortfeasors has the effect of releasing from liability all remaining tortfeasors. Chrysler further claimed that a dismissal with prejudice as to defendants Fink, Freeman, PRF Industries and Travco Corporation necessarily terminated plaintiffs suit against Chrysler, for the dismissal was an adjudication of the merits of the case against plaintiff. The trial court granted summary judgment primarily on the first ground, holding that the release of some of the intentional joint tortfeasors released all intentional joint tortfeasors. The trial judge additionally concluded that the dismissal with prejudice of the cause of action as to the four released defendants necessarily destroyed plaintiffs cause of action against Chrysler. I. Effect of Release. We conclude that the release of the four defendants did not release defendant Chrysler from all liability. To reach this conclusion, we need only consider MCLA 600.2925(2); MSA 27A.2925(2): "(2) It shall be lawful for all persons having a claim or cause of action against 2 or more joint tortfeasors to compound, settle with, and discharge, at any time prior to rendition of a judgment in said action, any and every one or more of said joint tort-feasors for such sum as such person may deem fit, without impairing the right of such person or persons to demand and collect the balance of said claim or cause of action from the remaining joint tort-feasors, against whom such person, or persons, has such claim or cause of action, and not so released.” The language of the statute seems clear — a plaintiff may proceed to sue one joint tortfeasor even after releasing other joint tortfeasors. Barring a release of Chrysler under some other doctrine, the statute would seem to permit plaintiff to continue litigation, against Chrysler. However, the trial judge believed that the statute did not apply to "intentional joint tortfeasors”. He concluded that the Michigan Supreme Court, in Moyses v Spartan Asphalt Paving Co, 383 Mich 314; 174 NW2d 797 (1970), limited the statutory release provisions to nonintentional tortfeasors. After careful study of Moyses, we find that we disagree with the learned lower court judge. Al though Moyses accomplishes a considerable number of things, it does not bifurcate joint tortfeasors falling within the statute. Moyses does distinguish intentional and nonintentional tortfeasors who fall outside the statute — i.e., who are not joint tortfeasors — but it does not attempt to make the same distinction within the statute. A careful review of Moyses is in order. After addressing a preliminary procedural question of joinder, the Court turned to the scopé of MCLA 600.2925(1); MSA 27A.2925(1), concerning contribution among joint tortfeasors. After setting forth the specific definition of joint tortfeasors, the Court concluded that the defendants and proposed, third-party defendants in that case were not joint tortfeasors, but were at best severally liable. 383 Mich at 331-332. Because the statute was inapplicable, the Court turned to nonstatutory, common-law principles to determine contribution rights. It examined the common law of contribution, found it unsatisfactory, and proceeded to alter the common-law principles of contribution between or among "wrongdoers”. The Court’s alterations of common law clearly did draw a distinction between intentional and unintentional tortfeasors: "Stimulated by the national advancement of principles set forth in the Uniform Contribution Among Tortfeasors Act, supra, the tendency of other courts to provide by judicial action the right of contribution on behalf of all but intentional wrongdoers, and the compelling admonitions of modern writers like Prosser, we have decided to overrule what is left of Michigan’s common-law bar of contribution between or among 'wrongdoers’, wilful or intentional wrongdoers excepted.” 383 Mich at 334. This distinction was made, however, with reference to the formulation of a new common-law doctrine, not with reference to statutory interpretation. The conclusion we draw from Moyses is that there is a statutory right to contribution among joint tortfeasors, and, outside the statutory coverage, a new common-law right of contribution among unintentional "wrongdoers” and the old common-law prohibition among intentional tortfeasors. Moyses really says nothing about the doctrine of release other than the clear holding that MCLA 600.2925; MSA 27A.2925 applies only to joint tortfeasors. We need only decide if defendants are joint tortfeasors within the Moyses definition to determine if the release provisions apply. The lower court judge in the present case concluded: "That the defendants are joint tortfeasors is not disputed. As plaintiff so aptly stated, 'Defendants were engaged in pure, classical, and archetypical joint tortfeasor conduct’.” We agree with that assessment. The plaintiff alleged that defendants were engaged in a conspiracy to defraud the stockholders. A conspiratorial tort is the oldest form of a "joint tort”. See Prosser, Torts (4th ed), § 46, p 291. We are convinced that the purpose of the statute is served by allowing plaintiff to proceed against Chrysler. To paraphrase Judge, now Justice, Levin, to restrict the statutory definition of joint tortfeasor in this remedial legislation to nonintentional tortfeasors is to aid those who least deserve the protection of a release doctrine — intentional tortfeasors. See Duncan v Beres, 15 Mich App 318, 328-329; 166 NW2d 678 (1968). It would indeed be anomalous to allow plaintiff to sue unreleased negligent tortfeasors while allowing an unreleased intentional tortfeasor to escape liability. In sum, because defendants were alleged to be joint tortfeasors, and because MCLA 600.2925(2); MSA 27A.2925(2) allows a plaintiff to continue to sue a defendant even after release of fellow joint tortfeasors, plaintiff’s suit against Chrysler is not barred. II. Effect of dismissal with prejudice. We can more readily dismiss appellee’s second contention that the dismissal with prejudice of plaintiff’s cause of action as to the four released defendants necessarily destroyed plaintiff’s action against Chrysler. Because, as we have concluded, plaintiff could negotiate a financial settlement, releasing the codefendants, it follows that plaintiff could take the less significant step of agreeing to dismiss the suit against the four defendants without necessarily impairing his action against Chrysler. Cf., Boucher v Thomsen, 328 Mich 312; 43 NW2d 866 (1950) (covenant not to sue certain defendants and dismissal of those defendants with prejudice held not to prevent suit against remaining defendant). Reversed and remanded for further proceedings. We again state that we do not look with favor on hybrid motions. See Knapp v Dearborn, 60 Mich App 18, 26; 230 NW2d 293 (1975), and Hobbs v State Highway Department, 58 Mich App 189, 190, fn 1; 227 NW2d 286 (1975). Release is the subject of a GCR 116.1(5) accelerated judgment motion. Nonetheless, we will consider the question presented. See Van Liere v State Highway Department, 59 Mich App 133, 136, fn 1; 229 NW2d 369 (1975). MCLA 600.2925(2); MSA 27A.2925(2) has been repealed and replaced by MCLA 600.2925d; MSA 27A.2925(4) for torts committed on or after January 1, 1975. This new statutory scheme is not applicable to the present case and will not be discussed. E.g., release of a servant releases master if master’s sole liability is based on principles of respondeat superior. See Drinkard v William J Pulte, Inc, 48 Mich App 67; 210 NW2d 137 (1973). Chrysler’s motion did contend that because its sole liability was derived from its status as employer of released conspirator Freeman, it should be released. The trial judge did not consider this ground and we are unable to determine if Chrysler is entitled to dismissal on this ground. Chrysler is free to renew this argument below. Again we note that we are unable to tell from the present record if Chrysler’s liability is solely in the nature of a respondeat superior liability. If this is shown to be the case, we would be forced to reassess our consideration of the dismissal with prejudice issue.

Per Curiam. Plaintiff appeals of right from summary judgment in favor of defendants in a suit to foreclose a mechanic’s lien on property owned by the defendants. Plaintiff brought action in Genesee County. The complaint alleged that the owner, Union Lake Associates, and Woodward Development Co., had entered into a contract with Tri-Cities Construction, Inc., to construct a shopping center and that plaintiff began furnishing asphalt materials and labor on June 12, 1973. On July 10, 1973, plaintiff served the owner with a notice of intent to claim a lien. The last of materials and labor was furnished on August 20, 1973, and on September 12, 1973, plaintiff recorded a statement of account and lien. Seven days later plaintiff caused the statement of account and lien to be served upon the owner by posting a true copy on the premises owned by defendant Union Lake Associates in Fenton. On March 21, 1974, plaintiff recorded a copy of the proof of service and a true copy of the statement of account and lien with the Genesee County Register of Deeds. Defendants moved for summary judgment on the ground that plaintiff had not complied with MCLA 570.6; MSA 26.286. In an opinion dated July 19, 1974, the trial court held that the statute mandated strict compliance and that plaintiff had failed to comply with the posting provisions, which was deemed fatal to the attachment of the lien. MCLA 570.6; MSA 26.286 provides in pertinent part: "Every person recording such statement or account as provided in the preceding section, except those persons contracting or dealing directly with the owner, part owner or lessee of such premises, shall within 10 days after the recording thereof, serve on the owner, part owner or lessee of such premises, if he can be found within the county or in case of his absence from the county, on his agent having charge of such premises, within the county wherein the property is situated, a copy of such statement or claim; but if neither of such persons can be found within the county where such premises are situated, then such copy shall be served by posting in some conspicuous place on said premises within 5 days after the same might have been served personally, could the principal or agent, as aforesaid, have been found.” The issue raised for our consideration is framed in the trial court’s opinion: "The statute provides that the party recording the statement of lien shall serve the owner or other appropriate party personally within the first 10 days after such recording. If the recording party is then unable to personally serve the owner or other appropriate party within the county, the recording party is allotted 5 more days in which to post a copy of the statement on the premises. "The undisputed fact of the present case is that plaintiff sought to fulfill the statute by posting the copy of the statement 7 days after the recording. "The case law points out that the above statute must be strictly complied with.” We agree and affirm. In Vorrath v Garrelts, 35 Mich App 463, 465-466; 192 NW2d 547 (1971), this Court set forth the applicable rule: " 'Strict’ not 'substantial’ compliance is the rule of construction concerning the question of whether or not o llP*Tl flri’flPnpC! "In Burman v Ewald, 192 Mich 293, 295 [158 NW 853] (1916), the Court said: " 'The statute providing for a mechanic’s lien, being in derogation of the common law, must be strictly construed to the point when the lien attaches; that thereafter, because of its remedial character, a liberal construction may be indulged.’ (Emphasis supplied.)” See also Wallich Lumber Co v Golds, 375 Mich 323; 134 NW2d 722 (1965), Lowrie & Webb Lumber Co v Ferguson, 312 Mich 331; 20 NW2d 209 (1945), Grand River Lumber & Coal Co v Glenn, 234 Mich 310; 207 NW 855 (1926). The plaintiff urges us to reverse the grant of summary judgment on the authority of Hurd v Meyer, 259 Mich 190; 242 NW 882 (1932). In that case the property upon which a lien was claimed was located in Oakland County and defendant resided in Wayne County. A brief recitation of facts is set forth at 195 of the opinion: "Upon being credibly informed that the owners did not reside in Oakland County, plaintiffs agent posted the claim of lien upon the premises. Personal service was not made upon the owners. There is testimony fairly indicating that Mr. Meyer during the time the building was in the process of construction usually visited the place each Saturday, and that Mrs. Meyer went to the property once in every 2 or 3 days.” As in the instant case, defendant resided in a county other than the one in which the property was located. There was testimony indicating that defendant could be found at various times in Oakland County, yet the Court held that upon being "credibly informed” that the owner did not reside in Oakland County, the posting complied with the statute. We decline to apply the holding of Hurd to this case because the facts in Hurd do not indicate that the posting took place during the first ten days. We presume the contrary; that is, that the posting took place within the exact mandate of the statute, "within 5 days after the same might have been served personally”. For the first time on appeal, plaintiff submits the affidavit of the process server which states that "he was advised that the owners of the premises were located somewhere in the Detroit area, not within the county, and he was further advised that work on the project had been stopped”. Thereafter, he went to the job site which appeared to be abandoned and at that time posted the notice. Ex parte affidavits, filed for the first time in the appellate brief, may not serve to enlarge the record on appeal. People v Nelson Johnson, 58 Mich App 473, 478; 228 NW2d 429 (1975), People v Taylor, 383 Mich 338, 362; 175 NW2d 715 (1970). However we do not believe that the facts asserted in the affidavit would require us to reach a different result. Quite the contrary — we would reach the same result. This is an historically highly technical area of creditor’s rights and real estate law and we are unwilling to inject a substantial compliance ruling. We readily admit that the plaintiff in this case could be said to have substantially complied with the statute. We are unable to say, however, that it strictly complied. Judgment affirmed. Costs to appellees.

On Rehearing R. B. Burns, P. J. In this case we have granted defendants’ application for rehearing and entertained additional oral argumentation. The facts are simple, and stipulated. During the period at issue, plaintiff was a landowner and taxpayer in Swartz Creek, but a resident of Bloomfield Hills. Swartz Creek undertook to enter into two sewage disposal and water supply contracts to be financed by municipal bonds, which bonds were to be redeemed by ad valorem taxation. As required by MCLA 46.175b; MSA 5.2767(5.2), notice to this effect was published in the Swartz Creek News. Plaintiff never received a copy of the newspaper, and asserted that he was not aware of the publications until long after the statute’s prescribed period for petition and referendum had expired. Plaintiff claims violation of his constitutional right to due process of law under the Federal and state constitutions. US Const, Am XIV; Const 1963, art 1, § 17. On the authority of Ridenour v County of Bay, 366 Mich 225; 114 NW2d 172 (1962), International Salt Co v Wayne County Drain Commission, 367 Mich 160; 116 NW2d 328 (1962), and Alan v Wayne County, 388 Mich 210; 200 NW2d 628 (1972), we agreed with plaintiff, and we held MCLA 46.175b; MSA 5.2767(5.2) to be unconstitutional. Harter v City of Swartz Creek, 66 Mich App 522; 239 NW2d 422 (1976). We reconsider the issue: Is notice by publication as provided by MCLA 46.175b; MSA 5.2767(5.2) sufficient to satisfy the constitutional requirement of due process of law? It is in the answer to this question that we conclude that our earlier opinion was incorrect. Mullane v Central Hanover Bank & Trust Co, 339 US 306; 70 S Ct 652; 94 L Ed 865 (1950), has long been the leading statement of the United States Supreme Court on due process notice requirements. The Court was significantly concerned about the "fiction” of actual notice by publication: "Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper’s normal circulation the odds that the information will never reach him are large indeed.” 339 US 306, 315. Repeatedly referring to "the limits of practicability” and "due regard for the practicalities and peculiarities of [each] case”, the Court emphasized the necessity of "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”. 339 US 306, 314. Notice by publication was recognized as a "customary substitute” where "it is not reasonably possible or practicable to give more adequate warning”. 339 US 306, 317. Alan v Wayne County, supra, analyzed Mullane and reached the following conclusion, 388 Mich 210, 351: c'Mullane holds only that the method of notice chosen must give reasonable assurance of actually giving notice in light of other available means: * * * The kind of notice required depends on the circumstances of the case and the availability of other means in both a theoretical and economic sense.” Turning to the circumstances of this case, we face the inevitable: the message of Mullane and Alan is that any determination of the constitutionality of a particular statutory notice scheme will be essentially judgmental. Our concern, in the absence of hard and fast rules, is to avoid the unpredictability generated by approving a totally unrestrained ad hoc approach. While we have determined that plaintiff has a right to notice, the balancing approach of Mullane and Alan requires us to specifically weigh plaintiff’s right against the factors of economy and practicability in determining the form that this notice must or should take. In Mullane, plaintiffs were the beneficiaries of a trust; the Court expressly found their property interest to be "substantial”, and notice by publication only was deemed insufficient. Both Ridenour, supra, and International Salt, supra, involved special assessment districts and stand for the proposition that in such cases publication of notice in a local newspaper would always be constitutionally deficient as to known parties. By contrast, the property right to be free from an increase in general ad valorem taxation is qualitatively less compelling. In the Alan case the Court specifically recognized the Ridenour decision but continued: "We do not hold that due process requires personal notification of every taxpayer, nor do we hold that there must be any mailed notice or personal notice to everyone. Mullane holds only that the method of notice chosen must give reasonable assurance of actually giving notice in light of other available means: " 'The statutory notice to known beneficiaries is inad equate, not because it in fact fails to reach everyone\ but because under the circumstances it is not reasonably calculated to reach those who could easily be informed by other means at hand. ’ Mullane, 319. (Emphasis added.) "The kind of notice required depends on the circumstances of the case and the availability of other means in both a theoretical and economic sense.” 388 Mich 210, 350-351. In the present case notices of the bond issues were published in the Swartz Creek News. Both notices, attached hereto, had headlines in large bold type: "CITY OF SWARTZ CREEK RESOLUTION”. Both notices set forth the entire resolution, the contract involved, the city’s obligation and the right to petition for referendum. The notices were approximately 8 inches by 9 inches and were printed in adequate type. In our opinion the notices were calculated to give reasonable notice to the taxpayers involved. We reverse our previous holding and affirm the summary judgment. No costs, a public question.

J. H. Gillis, P. J. A jury found defendant, charged with armed robbery, guilty of larceny from a person, MCLA 750.357; MSA 28.589. He received a sentence of 3-1/2 to 10 years imprisonment. On defendant’s motion, this Court ordered a remand for a rehearing, in accordance with People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), to determine whether a new trial should be granted for failure of the prosecution to produce a res gestae witness at trial. From the trial court’s denial of a new trial, defendant appeals. At trial the complaining witness, Ann Baker, testified that defendant held a knife against her back and took her purse containing $40 as she was carrying her wash from a Detroit laundry. Her son, James, although he did not see a knife, substantially corroborated his mother’s testimony. Ann Baker’s sister, Zinnia Baker, was helping Ann carry the laundry at the time of the alleged robbery. She was indorsed on the information but not produced at trial. At trial the court found that the prosecutor did not exercise due diligence in his attempts to produce this res gestae witness. Defendant claimed that he was falsely accused of robbery. Characterizing himself as a con artist, he testified that he had tricked Ann Baker out of $40 by purporting to sell her a "hot” television in the alley behind the laundry. When the box supposedly containing a television was found to be empty, defendant alleges, Ann Baker invented a robbery to get even. At the hearing on remand, Zinnia Baker offered extensive testimony concerning her recollection of the transactions involved on the day of the alleged robbery. She corroborated in all pertinent parts the basic testimony that her sister had previously given at trial. Minor inconsistencies between the sisters’ testimony did occur, the same as they generally occur between any two eyewitnesses. For example, the precise point where the defendant first appeared with the knife was inconsistent in minor details. There was a minor inconsistency as to whether or not a telephone call was immediately made by one of the sisters or was made a few minutes later. The trial court concluded that because the conflicts involved minor incidental mat ters, "it would not affect the outcome of the case no matter whose testimony of the two was believed in this regard”. Having read the transcripts of the testimony taken at the remand, we are convinced that the trial court was correct in this determination. It is rather clear to the majority of this panel that the witness’s testimony was cumulative and not only would not have aided the defendant, but such testimony would have been beneficial to the prosecution. We, therefore, conclude that Zinnia Baker’s testimony was cumulative and there was no miscarriage of justice. Affirmed. Quinn, J., concurred.

Bronson, P. J. On August 8, 1974, plaintiff brought a civil damage action in circuit court for redress of her statutorily created right to be free from discrimination on the basis of sex in private employment. The specific statutes relied upon were the Michigan State Fair Employment Practices Act, MCLA 423.301 et seq.; MSA 17.458 et seq., and the equal pay act, MCLA 750.556; MSA 28.824. The last complained of action by defendant was the allegedly wrongful discharge of plaintiff on June 22, 1970. Consequently, defendant made a motion for accelerated judgment pursuant to GCR 1963, 116.1(5), on grounds that plaintiffs claim was barred by the statute of limitations. On February 14, 1975, the trial judge granted that motion, and plaintiff appeals that ruling here. The trial judge applied the three-year limitation period for injury to the person, found in MCLA 600.5805(7); MSA 27A.5805(7), to plaintiffs cause of action. Plaintiff does not argue that a longer period must apply to her claim. Instead, she argues that when she filed a complaint with the Michigan Civil Rights Commission pursuant to the Michigan State Fair Employment Practices Act, supra, the running of the statute of limitations period was tolled. We cannot agree, and we therefore affirm the trial court. Plaintiff relies on the tolling statute, MCLA 600.5856; MSA 27A.5856, which provides as follows: "The statutes of limitations are tolled when "(1) the complaint is filed and a copy of the summons and complaint are served on the defendant, or when "(2) jurisdiction over the defendant is otherwise acquired, or when, "(3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.” She argues that § (2), tolling the statute of limitations when "jurisdiction over the defendant is otherwise acquired”, applies to prior administrative proceedings. We reject that view, for a long line of Michigan cases have applied the tolling provisions only when jurisdiction over defendant is gained pursuant to court proceedings involving the same cause of action. In Buscaino v Rhodes, 385 Mich 474, 482; 189 NW2d 202 (1971), our Supreme Court explained the scope of the tolling statute as follows: "MCLA §600.5856 (Stat Ann 1962 Rev §27A.5856) merely provides a substitute for the repealed CL 1948, §609.19 (Stat Ann §27.611). It deals only with prior lawsuits between the parties which have not adjudicated the merits of the action. This understanding of MCLA § 600.5856 (Stat Ann 1962 Rev § 27A.5856) conforms with the scheme of the five preceding sections of the Revised Judicature Act, all of which deal with extension and suspension of periods of limitations.” (Emphasis added.) That requirement of a lawsuit was recently reiterated in Smith v Bordelove, 63 Mich App 384, 386; 234 NW2d 535 (1975): ’’Where a suit is commenced, but later dismissed without prejudice, the statute is tolled for the period of time during which the court had jurisdiction over the defendant, and thereafter the statute begins to run again.” (Emphasis added.) Consistent with those expressions of the rule, the cases holding that the limitations period was tolled have all involved prior court proceedings. See Shrader, Inc v The Ecclestone Chemical Co, Inc, 22 Mich App 213; 177 NW2d 241 (1970), Stewart v Michigan Bell Telephone Co, 39 Mich App 360; 197 NW2d 465 (1972), and Reich v State Highway Commission, 43 Mich App 284; 204 NW2d 226 (1972). Plaintiff contends that even if, as a general rule, a lawsuit must be involved in order to toll the running of the limitations period, special considerations attach when a civil rights action is involved. She argues that the ordinary tolling rules must give way to the preeminent public policy of this state to protect its citizens against discrimination on the basis of sex. We agree that the policy of enforcing an individual’s civil rights is to be given "highest priority”, but we hold that the same tolling provisions apply regardless of the nature of the cause of action. We look to Federal law, as did plaintiff, in reaching this result. In particular, we find the analysis in Johnson v Railway Express Agency, Inc, 421 US 454; 95 S Ct 1716; 44 L Ed 2d 295 (1975), to be helpful. In that case, the Supreme Court was called upon to determine if the filing of a charge of employment discrimination with the Equal Employment Opportunity Commission pursuant to § 706 of Title VII of the Civil Rights Act of 1964; 42 USC 2000e-5, tolled the running of the period of limitation applicable to an independent action, based upon the same facts, instituted under 42 USC 1981. Under Federal law, the state statute of limitations and tolling statutes apply unless they violate Federal policy. There, petitioner conceded that no state tolling provision was applicable, so the Court was required to examine the conflict with Federal policy. The majority opinion, written by Justice Black-mun, held that the running of the statute of limitations did not violate the broad remedial purposes of Title VII. The reasoning was as follows: "Although state law is our primary guide in this area, it is not, to be sure, our exclusive guide. As the Court noted in Auto Workers v Hoosier Corp. 383 US, at 706-707, 16 L Ed 2d 192, 86 S Ct 1107, considerations of state law may be displaced where their application would be inconsistent with the federal policy underlying the cause of action under consideration. "Petitioner argues that a failure to toll the limitation period in this case will conñict seriously with the broad remedial and humane purposes of Title VII. Specifically, he urges that Title VII embodies a strong federal policy in support of conciliation and voluntary compliance as a means of achieving the statutory mandate of equal employment opportunity. He suggests that failure to toll the statute on a § 1981 claim during the pen dency of an administrative complaint in the EEOC would force a plaintiff into premature and expensive litigation that would destroy all chances for administrative conciliation and voluntary compliance. "We have noted this possibility above and, indeed, it is conceivable, and perhaps almost to be expected, that failure to toll will have the effect of pressing a civil rights complainant who values his § 1981 claim into court before the EEOC has completed its administrative proceeding. One answer to this, although perhaps not a highly satisfactory one, is that the plaintiff in his § 1981 suit may ask the court to stay proceedings until the administrative efforts at conciliation and voluntary compliance have been completed. But the fundamental answer to petitioner’s argument lies in the fact — presumably a happy one for the civil rights claimant — that Congress clearly has retained § 1981 as a remedy against private employment discrimination separate from and independent of the more elaborate and time consuming procedures of Title VII. Petitioner freely concedes that he could have fled his § 1981 action at any time añer his cause of action accrued; in fact, we understand him to claim an unfettered right so to do. Thus, in a very real sense, petitioner has slept on his § 1981 rights. The fact that his slumber may have been induced by faith in the adequacy of his Title VII remedy is of little relevance inasmuch as the two remedies are truly independent. Moreover, since petitioner’s Title VII court action now also appears to be time-barred because of the peculiar procedural history of this case, petitioner, in effect, would have us extend the § 1981 cause of action well beyond the life of even his Title VII cause of action. We find no policy reason that excuses petitioner’s failure to take the minimal steps necessary to preserve each claim independently.” (Emphasis added, footnotes omitted.) We find the reasoning applicable here, as both this state and the Federal government have strong public policies in favor of remedying any violation of an individual’s civil rights. We hold that the tolling of the statute of limitations is simply independent of the nature of the cause of action. Affirmed. No costs, a public question being involved. Bashara, J., concurred. The cases where tolling was not allowed are also instructive. See Beach v UAW, 19 Mich App 560; 172 NW2d 901 (1969) (pursuing union remedies does not toll the statute), Forest v Parmalee, 60 Mich App 401; 231 NW2d 378 (1975) (mere notice of the existence of a potential claim does not toll the statute), and Smith v Bordelove, 63 Mich App 384; 234 NW2d 535 (1975) (stating the rule but finding no prior suit).

Per Curiam. Defendant was charged with first- degree murder, MCLA 750.316; MSA 28.548, for the October 6, 1972, shooting death of David Michael Baker. At the conclusion of a four-day jury trial he was found guilty of the charged offense and subsequently sentenced to life imprisonment. This appeal is taken by right and raises several issues, one of which requires reversal. The other issues will be considered only as they may recur at a new trial. The people’s case rested primarily on the eyewitness testimony of Miss Leslie Foust. She testified that at about 8:15 p.m. on the evening of October 6, 1972, a black man who identified himself as "Jackie” came to the door of the house where she resided with the decedent Baker. The man inquired as to the whereabouts of a man known to both himself and Miss Foust and then left. A few minutes later another black man appeared at her door and asked to use the telephone. The second man appeared to Miss Foust to be one whom she had seen standing outside by a car when "Jackie” had come to the door. After this second man had gained entry he drew a gun, shot and killed Baker and then shot Miss Foust twice before leaving. The defense at trial was alibi. During the people’s case in chief no evidence was presented establishing a connection between the defendant and the person named Jackie. However, on cross-examination of the defendant it was developed by the prosecutor that a man by the name of Jackie Evans was known to the defendant. The questioning made reference to an interview the defendant had had with a Battle Creek police officer: ”A. It didn’t happen. I don’t have no recollection of anyone asking me about a man named William Elevens. ”Q. To help you a little bit, he lived in Albion. ”A. It still doesn’t tell me anything. ”Q. And you do not recall questioning along that line? ’A. No, I don’t. "Q. I’ll give you one more hint. He was known as Jackie. Do you remember? "A. I know a Jackie. ”Q. What is his name. ’A. I know a Jackie Evans. "<?. Jackie who? 'A. Evans. "Q. And did you not tell the police that he stayed with you at 91 West Grand Circle? ’A. No Jackie Evans stays with me at 91 Grand Circle.” After the defense rested the prosecutor called Battle Creek police officer Alan Tolf to testify as to statéments made to him by the defendant after the defendant’s arrest in November of 1972. Subsequent to a Walker hearing held during trial these statements were ruled admissible. Officer Tolf was then permitted to testify without further objection as a rebuttal witness: ”Q. Now, did you make any inquiry about his knowing Jackie? ”A. Yes, sir, I did. ”Q. And what did he say in response to that? ”A. I asked Mr. McGee if he had a black person by the name of Jackie, a black male by the name of Jackie living with him around October of 1972 and he stated that he did. ”Q. And did he indicáte whether they were friends or whether thé guy was renting or what the detail was? "A. Yes, sir, he stated that they were close as brothers. ”Q. And did you ask him whether — well, tell us what else you asked him about Jackie and anything he told you about Jackie. "A. I asked him what Jackie’s last name was, and he stated that he thought it was Blevens or something like —it sounded like Blevens and that he wasn’t sure, because he’d never asked this individual what his last name was. "Q. Did he indicate how long the man lived with him? ’A. I don’t really recall. "Q. And did he say where he lived with him? 'A. No, sir, he couldn’t recall where they were staying at the time. "Q. Only that they wer;e staying together at that time? ! 'A. Yes, sir. "Q. Did you ask him specifically about October 6, 1972? 'A. Yes, sir, I did. "Q. What did he say about that? ’A. He stated that he thought that he and Jackie were together, but he didn't recall where they were staying on that particular day.” The guidelines for the admission of proper rebuttal testimony have been firmly settled in this state since the early case of People v Quick, 58 Mich 321, 323; 25 NW 302 (1885), in which the court stated: "|I]t is not proper to divide up the testimony on which the people propose to rest their case, and nothing which tends to prove the commission of the crime itself or its immediate surroundings can be classed as rebutting evidence under ordinary circumstances, if at all.” Other more recent cases which have dealt with the question are People v McGillen #1, 392 Mich 251, 264-268; 220 NW2d 677 (1974), and People v Bennett, 393 Mich 445; 224 NW2d 840 (1975). We agree with the defendant that the testimony of Officer Tolf was not proper rebuttal. Virtually the only contested issue of fact in this case was the identity of the killer of David Michael Baker. The prosecution’s evidence on this issue was limited to the testimony of Miss Foust, the only surviving eyewitness to the crime, who identified the defendant as the man who did the shooting. Obviously any other evidence tending to establish the presence of the defendant at the scene of the crime was vitally important to the prosecution’s case. The testimony of Officer Tolf relating an admission by the defendant that he knew and was staying with a man named Jackie around the time of the murder was such evidence and it should have been introduced in the people’s case in chief. It was reversible error to admit this testimony as rebuttal evidence. See People v Bennett, supra, at pp 449-450. With reference to the other issues which may recur in a new trial, any ruling on the admission of the defendant’s misdemeanor convictions should be guided by People v Renno, 392 Mich 45; 219 NW2d 422 (1974). Furthermore, any alibi instruction should meet the requirements of People v McCoy, 392 Mich 231; 220 NW2d 456 (1974), and People v Burden, 395 Mich 462; 236 NW2d 505 (1975). We accordingly reverse the defendant’s conviction and remand for proceedings consistent with this opinion. People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).

Quinn, J. The crime that defendant was convicted of and sentenced for and the facts are fully set forth in the dissent. We agree with the resolution of the admissibility of the confession issue as found in that dissent. The trial court properly denied defendant’s motion to suppress the evidence resulting from the search and seizure. Defendant had no standing to challenge the legality of the search and seizure. He was not present at the time of the search and seizure; he had no proprietary and possessory interest in the suitcase and its contents or in the automobile; nor were the suitcase and contents in his possession when seized, Brown v United States, 411 US 223; 93 S Ct 1565; 36 L Ed 2d 208 (1973). Affirmed. J. H. Gillis, P. J., concurred.

Bronson, P. J. Defendant was charged with possession of heroin, contrary to MCLA 335.341(4)(a); MSA 18.1070(41). Prior to trial, defendant filed a motion to suppress the heroin which was the subject of the prosecution on grounds that it was the product of an illegal search. The trial judge granted that motion, quashed the information, and ordered defendant dismissed. The prosecutor appeals here. The search in question occurred on the night of October 10, 1974. A team of Detroit police officers were dispatched that night to execute a search warrant for a house located at 9356 Mansfield in the City of Detroit. The warrant authorized a search of the premises, and named defendant as the owner of the house. As the police converged on the above location, a man later identified as defendant was observed exiting the house. Patrolman Roger Lehman stopped defendant, and identified himself as a police officer. When the police learned that defendant lived in the house, they ordered him to unlock the front door. Defendant responded that he did not have his keys with him, and that he would have to use the intercom to convince someone inside to open the front door. Defendant spoke to a person named Dwight over the communication system, instructing Dwight to let him into the house. A few minutes later, Dwight Calhoun appeared at the door. Patrolman Lehman identified himself as a police officer, but Calhoun just stood there. When Lehman tried to open the locked storm door, Calhoun slammed the inside door shut. Three of the officers quickly moved up and knocked down the front door. As they did so, Officer Lehman observed Calhoun running toward a downstairs bedroom. Lehman started chasing Calhoun after instructing another officer, Anthony Conant, to bring defendant inside. Conant escorted defendant into the house as the other members of the police team "secured” the house.* Patrolman Lehman meanwhile pursued Calhoun into the bedroom, and saw Calhoun toss a "pack” onto the bed. The "pack” was retrieved and was found to contain suspected heroin. Calhoun was placed under arrest and escorted back into the living room. Other persons, variously described as five, six, or eight in number, were found in the house and brought into the living room by other police officers. After Calhoun was brought into the living room, and the house was otherwise "secured”, Conant proceeded to search the whole house. He found two plastic bags of suspected narcotics under the bar in the basement. When Conant returned, defendant again indicated upon questioning that he was the owner of the house and lived there. Defendant was then placed under arrest and searched. Suspected heroin was found in his pocket. All of the other persons in the house were also searched, but there is no indication that anything was found on their persons. Laboratory tests revealed that the envelope found in defendant’s pocket contained 8.5 grams of heroin. Defendant was charged only with possession of the 8.5 grams of heroin found concealed on his person. Consequently, when the search was ruled illegal and the evidence suppressed, the charges against defendant were also dismissed. The prosecutor on appeal contends that defendant was properly searched. The prosecutor makes three arguments to justify the search of defendant’s person. First, the prosecutor argues that the search warrant authorized a search of the "premises”, and that all hiding places located inside the house are part of the "premises”. Secondly, the prosecutor claims that, even if this was not strictly a "premises search”, a person found in the house when the search warrant is issued can in some cases be searched. A search was justified here because of defendant’s presence on the premises, his ownership of the premises, and the reasonable expectation that an item sought would be found on his person. Finally, the prosecutor argues that the police had probable cause to arrest defendant when they found a controlled substance in the property owned by him. The search is then justified as incident to that arrest. We reject all of these legal bases for the search, and affirm the trial court. The prosecutor’s first legal theory is based upon MCLA 780.651; MSA 28.1259(1), which authorizes a magistrate to issue a warrant to search any "house, building or other location or place where the property or thing which is to be searched for and seized is situated”. The argument goes as follows: Since the clothing of the defendant is a "place where” heroin could be located, the trial judge must have intended to allow a search of the same pursuant to his warrant for the "premises”. The prosecutor misses the point of the statute. MCLA 780.651; MSA 28.1259(1) only authorizes a magistrate to issue warrants to search certain places. Once a warrant has actually been issued, it cannot be broadly 'interpreted. A search warrant must describe the premises to be searched and the property to be seized with particularity, and the executing officers must narrowly follow that description, Marron v United States, 275 US 192, 196; 48 S Ct 74, 76; 72 L Ed 231, 237 (1927), People v Franks, 54 Mich App 729; 221 NW2d 441 (1974). It is true that the magistrate could have issued a warrant to search any individual found on the premises, but he did not do so. The "particularity” requirement prevented the police officers from legally extending the scope of the warrant so as to authorize a search of defendant’s person. The prosecutor argues in the alternative that the courts of other states have allowed the search of individuals found on the premises to prevent the complete frustration of the warrant. Otherwise, it is claimed, occupants would simply conceal contraband upon their person as the police announce their presence. Applying the test found in those cases, the prosecutor states that there was "reasonable cause” for the police to believe defendant had upon his person property subject to the warrant. Particular accent is put on defendant’s presence on the scene and his ownership of the house. Our courts have never explored the extent to which persons found upon the premises as a search warrant is executed can be searched without another warrant. This is not the occasion to decide that issue, for all of the cited cases require at the very least presence upon the premises being searched. That factor cannot be found here. The defendant was stopped outside of the house. There hardly could be any items on his person which were subject to the search warrant, since the. items too were outside the designated premises. Taking defendant back inside did not change the situation. Even if the police acted legally in doing so, an issue we do not decide here, failure to search defendant’s person certainly would not "frustrate” the execution of the warrant. There could be little fear that items in the house would be taken and concealed by defendant, who was being detained and watched by Officer Conant. The prosecutor’s final claim is that the police had probable cause to arrest defendant for possession of the narcotics found in the basement of the house. If that contention is true, then the police properly searched the person of defendant incident to that arrest. The trial judge, however, ruled that the police lacked probable cause to arrest the defendant. He found People v Davenport, 39 Mich App 252; 197 NW2d 521 (1972), to be controlling here, and we agree. In Davenport, police officers went to a house where defendant resided with three other persons for the purpose of executing a search warrant for those premises. As the police broke down the door to gain entry, they observed the defendant running upstairs with a small box. The police reached an upstairs bathroom in time to retrieve three envelopes and a bit of loose marijuana as the defendant attempted to flush them down the toilet. Marijuana was also found in those envelopes. A search of the whole house was then conducted, and a bag of narcotics paraphernalia and .26 grams of heroin were found in the basement. Both items were at the bottom of a barrel of soiled clothes, and the heroin was contained in a prescription bottle, bearing defendant’s name, for another, nonnarcotic drug. The Court in Davenport held that there was insufficient evidence to support a jury verdict convicting Davenport of possession of the .26 grams of heroin. Judge, now Justice Levin, writing for the Court, expressed the reasoning of the panel as follows: "Davenport cannot be convicted on the theorem that someone must have been in possession of the heroin. "Davenport’s residence in the house and the presence in the bag of a plastic bottle carrying a label bearing his name were the only evidence connecting him to the heroin found in the brown bottle. Four persons lived in the house. It is not reasonable to infer from the fact that Davenport was one of the occupants that he— rather than Phillips or Brown or Green — was the person who placed the capsules in the brown bottle. In addition to the plastic bottle labeled with Davenport’s name, there were two plastic bottles bearing the name of one of the other residents, Ardis Phillips. There was no evidence that the brown bottle, the bag, or the barrel belonged to Davenport. Clearly there were innocent theories — unrebutted by any evidence — which accord with the facts. It is as likely that Ardis Phillips or anyone else living in the house, who would have had equal access to the basement, was in possession of the heroin. "More than mere association must be shown to establish joint possession. 'An additional independent factor linking the defendant with the narcotic must be shown.’ ” 39 Mich App 252, 256-257. (Emphasis supplied, footnotes and citations omitted.) While the Court found there to be sufficient evidence to find defendant guilty beyond a reasonable doubt of possession of the marijuana, a general verdict required reversal. Davenport stands for the proposition that joint control of a dwelling house is insufficient to sustain a conviction for knowingly possessing an illicit drug contained therein without some further evidence connecting the defendant with that drug. The prosecutor accurately points out that Davenport was directly concerned with guilt beyond a reasonable doubt, while the present situation involves the lesser "probable cause” standard. However, the principles of Davenport still apply. In assessing probable cause, the quantum of proof is different, but there still must be some evidence of the type or quality necessary to support a conviction. That concept was well stated by Justice Levin in his dissenting opinion to People v Smith, 49 Mich App 630, 639-640; 212 NW2d 768 (1973), rev’d on other grounds, 393 Mich 432; 225 NW2d 165 (1975), in the context of an arrest for carrying a concealed weapon: "The majority apparently agree that the evidence is insufficient to convict Smith, but hold thát it is adequate to support the binding-over decision. The standard of jury persuasion is indeed higher than the standard which guides the magistrate. But we are not. concerned with the weight to be given an inference in assaying guilt or innocence, but rather with a question of law: Should the trier of fact be permitted to infer from the evidence that Smith was carrying a concealed weapon? If the answer to that question is, as I believe, that the trier of fact should not be permitted to draw that inference, then the people have failed to establish an element of the offense.” (Emphasis supplied.) There must be at least some evidence of an additional independent factor linking the defendant with drugs found on the premises, although the weight to be given to the factor need be less to support an arrest. That concept is illustrated by Johnson v United States, 333 US 10; 68 S Ct 367; 92 L Ed 436 (1948). In that case, a Seattle police narcotics officer received information that unknown persons were smoking opium in the Europe Hotel. Federal narcotics agents were called and accompanied the Seattle police officer to the hotel. A strong odor of burning opium was detected outside room number 1. The agents knocked, and a voice inside inquired as to who was there. The police officer identified himself, and there was a slight delay during which noise was heard in the room. Defendant opened the door, and the police officer told defendant he wanted to talk to her. She acquiesced and admitted the officer. Defendant, found to be the sole occupant of the room, was "arrested” and the room was searched. Opium and smoking apparatus were found. Although the defendant clearly had at least joint control of the premises and drugs were determined to be present there, the Supreme Court held that no probable cause existed to support her arrest. The required additional factor, that she was the sole occupant of the room, was not discovered until after the defendant was arrested: "The Government, in effect, concedes that the arresting officer did not have probable cause to arrest petitioner until he had entered her room and found her to be the sole occupant. It points out specifically, referring to the time just before entry, 'For at that time the agents did not know whether there was one or several persons in the room. It was reasonable to believe that the room might have been an opium smoking den.’ And it says,' * * * that when the agents were admitted into the room and found only petitioner present they had a reasonable basis for believing that she had been smoking opium and thus illicitly possessed the narcotic.’ Thus the Government quite properly stakes the right to arrest, not on the informer’s tip and the smell the officers recognized before entry, but on the knowledge that she was alone in the room, gained only after, and wholly by reason of, their entry of her home. It was therefore their observations inside of her quarters, after they had obtained admission under color of their police authority, on which they made the arrest. "Thus the Government is obliged to justify the arrest by the search and at the same time to justify the search by the arrest. This will not do.” 333 US 10, 16, 17. (Footnotes omitted.) Johnson, then, indicates that the quality of the evidence must be examined in making the probable cause determination. Certain additional factors found to be sufficient to link the defendant to drugs found on the premises reappear frequently in the cases. These include: (1) attempted flight and destruction of the evidence by the defendant, People v Davenport, supra, (2) close proximity to the narcotics, People v Davenport, supra, 256, fn 4; Ker v California, 374 US 23, 36, 37; 83 S Ct 1623; 10 L Ed 2d 726 (1963), Commonwealth v Anderson, 224 Pa Super 19, 23; 302 A2d 504, 506 (1973), (3) the existence of reliable information that defendant is trafficking in drugs of the type found in plain view, Davis v United States, 327 F2d 301 (CA 9, 1964), (4) the linking of defendant directly to the specific property in which the drugs are found, such as through his admission of its ownership, Carlo v United States, 286 F2d 841 (CA 2, 1961), cert den, 366 US 944; 81 S Ct 1672; 6 L Ed 2d 855 (1961), and (5) knowledge by the defendant of the precise location of the drugs, People v Davenport, supra, 256, fn 4. There are undoubtedly other proper factors, but these are the ones most frequently appearing. In the instant case, none of those additional factors were present. Defendant was known to be the owner and an occupant of the house, and drugs were found in an out-of-the-way place in that house. However, there was no other evidence linking defendant to those drugs at the time of his arrest. We have the same set of facts as described in Davenport — mere joint occupancy by the defendant with others of a dwelling in which illegal drugs are located. It is certainly "as likely” that Dwight Calhoun, or one of the other persons on the premises, placed those drugs in the basement. Under those circumstances, we must hold that the police officers had no probable cause to arrest defendant for knowingly possessing the drugs found in the basement of his house. The seizure of the heroin involved here cannot be justified as the product of a search incident to arrest. Since the other possible legal bases for the search have also been rejected, we must uphold the decision of the trial judge suppressing the evidence and quashing the information. Affirmed. M. F. Cavanagh, J., concurred! A copy of the warrant does not appear in the record. However, the discussion between the prosecutor, defense counsel, and the judge at the preliminary examination indicates the scope of the search warrant: "Mr. McCloskey [the prosecutor]: Under the search warrant, your Honor, they had the authority to search the entire premises. "The Court: That’s in the search warrant? "Mr. McCloskey: Do you have a copy of the search warrant? "I would assume that they exceeded their range, your Honor, but that might be proper subject of a different type of hearing in this court. But I would — I don’t think that question has been raised. "Yes, your Honor, it is generally search the premises known as 9356 Mansfield, which is a 2-story single dwelling. And then it goes on to describe the rest of the — more specifically the type of dwelling it is, and exactly where it is located. "But it’s to search the entire premises. "The Court: It says that, entire premises? "Mr. McCloskey: No, it says premises, your Honor, but I think that would assume the entire premises, it doesn’t limit it to the first floor or the second floor or any specific room in the place. I think that’s a reasonable reading on the face of the search warrant, that it means the entire premises, since it is not limited. "Mr. Mitchell [defense counsel]: Your Honor, I don’t think it [the narcotics seized from the person of defendant] should be admitted. * ** * If they had a search warrant they could just serve the search warrant. There is nothing in the search warrant that says they had to search the person of Mr. Summers out on Mansfield. The search warrant was to search the premises. Now they went— "The Court: What about the fact he was coming out as they were going to execute the search warrant? "Mr. Mitchell: Well he still was not in the — the search warrant is to search the premises, not to search this man. They had no — they had no — even after the man got in the house they had no cause to search the man.” The prosecutor has never argued here or below that the warrant expressly authorized a search of the person of defendant. Officer Conant was never directly asked whether defendant voluntarily went into the house. A fair reading of the testimony, however, indicates that he had little choice. For example, on cross-examination of Conant, the following exchange occurred: ”Q. [defense attorney]: All right. Well when you came around to the front of the house you did see — did you see Mr. Summers, is that right? "A. I did. "Q. And Mr. Summers was outside of the house, is that right? "A. He was. ”Q. Now Mr. Summers was outside of the house, and you took him back in the house, is that right? "A. I did. "Q. Now he wasn’t a member of your crew, was he? "A. No, he was not. "Q. And you didn’t think he was going to aid you at all in making this raid, did you? 'A. I did not know what he was going to do. 'A. No, I did not. After we gained entry Patrolman Lehman told me to bring him on inside. "Q. All right. You took him on inside? 'A. I did. "Q. Now when you went inside, what did you do immediately after you got inside? 'A. Well I was in the living room with Mr. Summers. ”Q. All right. You kept Brother Summers right close to you, is that right? "A. He was there. "Q. All right. What did you do after you kept him in your close view like that; did you ever go anyplace else in the house? 'A. Not until after the house was secured, then I went to the basement.”

Per Curiam. Plaintiff Kaminskas, a taxpayer of the City of Detroit, and plaintiff associations, unions allegedly representing city employees who are residents, taxpayers and voters in the City of Detroit, filed a complaint against the City of Detroit, the Detroit Civil Service Commission, the Mayor of Detroit, and the Detroit City Council in the Wayne County Circuit Court. The court granted defendants’ motion for summary judgment, holding that plaintiffs had alleged no personal harm and hence had no standing to sue. Plaintiffs appeal this decision as of right. We affirm. The complaint sought a declaratory judgment that the city charter had been violated by the hiring of provisional employees and also sought an injunction against further violations of the charter. The plaintiffs claimed that the Civil Service Commission had authorized the hiring of provisional employees contrary to the civil service examination system mandated by the charter. The complaint alleged "harm and detriment of the employees who could seek advancement and the voting taxpayer who has a right to expect compliance with the charter and the opportunity for employment”. In short, damage to present and prospective employees and voting taxpayers was very generally pleaded. We must decide if present plaintiffs are the proper plaintiffs to advance these general claims and to contest the actions of defendants. The action cannot be maintained as a taxpayers’ suit. The action is clearly not a taxpayers’ suit under GCR 1963, 201.2, MCLA 600.2041(3); MSA 27A.2041(3), for there is no mention at all of the expenditure of state funds. Nor is the action a municipal taxpayers’ suit. A municipal taxpayers’ suit does not arise out of any specific statutory or court rule grant of standing to sue, but is a judicially sanctioned action whereby muncipal taxpayers are allowed to challenge unlawful municipal acts that injure the plaintiffs as taxpayers. Menendez v Detroit, 337 Mich 476, 482; 60 NW2d 319 (1953). Menendez requires that the plaintiff allege a particular kind of injury: "[I]t is clearly recognized that prerequisite to a taxpayer’s right to maintain a suit of this character against a unit of government is the threat that he will sustain substantial injury or suffer loss or damage as a taxpayer, through increased taxation and the conse quences thereof. This is uniformly true of all the Michigan cases considering this subject.” While there is some variance in Michigan case law concerning the character or quantum of taxpayer’s loss that is required in the pleadings, all cases we have surveyed require, as a minimum, a clear statement of present or prospective damages to taxpayers. The present complaint gave the trial court no indication of how the plaintiffs, as taxpayers, would be adversely affected by the defendants’ policies of hiring provisional employees instead of civil service employees. The mere conclusion of "harm and detriment to the taxpayer”, without a description of the harm, is insufficient. As was stated in Andrews v South Haven, 187 Mich 294, 304; 153 NW 827 (1915): "The bill does not show that complainant has sustained or will suffer any loss or damage as a taxpayer by reason of what is charged. No increase in taxation * * * is shown. * * * To entitle him to equitable relief as a taxpayer, present or prospective damages must be shown. Baker v City of Grand Rapids, 142 Mich 687 (106 NW 208) [1906].” Plaintiffs claim that if their suit does not qualify as a taxpayers’ suit, they qualify as individuals, or as representatives of individuals, who have suffered damages and have cognizable grievances. Again, we disagree. Plaintiff Kaminskas makes no allegations that she has been wrongfully denied employment by the hiring of provisional employees. Plaintiff associations make no allegations that they are authorized to represent anyone who has been injured by the provisional hirings. All we find in the complaint are allegations of "harm and detriment” to some employees, not necessarily those represented by plaintiff associations. Inasmuch as plaintiffs have failed to show any facts whereby they are injured or represent anyone injured, they lack standing. Inglis v Public School Employees Retirement Board, 374 Mich 10, 13; 131 NW2d 54 (1964). Plaintiffs finally contend that the Detroit Charter, Article 6, ch 5, §6-515, allows them to maintain this action. The section, entitled "Payrolls”, reads: "Any sum knowingly or wilfully paid contrary to this chapter or any departmental policy or rule may be recovered in an action brought by any person from any officer who made or approved the payment, or from the sureties on the official bond of the officer. All monies recovered shall be paid into the city treasury. Any person may bring a suit to restrain an officer from making any payment contrary to this chapter, or any departmental rule, regulation or order.” (Emphasis added.) The trial judge interpreted this section as providing a citizen’s remedy for the alleged expenditure of public funds and found it inapplicable to the issue of the Civil Service Commission’s power to appoint provisional employees. We agree with the trial judge’s result, but we dispose of § 6-515 in a different manner. The section, were it really to allow "any person” to challenge an illegal expenditure of funds, would allow the present plaintiffs to challenge the hiring of provisional employees and the expenditure of funds to pay them. We cannot, however, interpret §6-515 to mean that "any person” whatsoever may sue. The charter’s allowance of a suit by any person must be restricted by traditional legal doctrines of standing, capacity, and real party in interest, for the city charter cannot have a provision that conflicts with or contravenes any general law of the state. MCLA 117.36; MSA 5.2116. See Marks v Battle Creek, 358 Mich 114, 117; 99 NW2d 587 (1959). Section 6-515 of the charter does not affect our conclusion that none of the plaintiffs had standing to sue. Plaintiffs failed to demonstrate that they suffered any injury as individuals or as taxpayers as a result of the hiring of provisional employees. They are consequently not proper parties to this action, for they lack the requisite standing. Western v Allen Park, 37 Mich App 121, 123; 194 NW2d 542 (1971). Affirmed. No costs, a public question being involved. Compare Moshier v Romulus, 54 Mich App 65, 67; 220 NW2d 37 (1974) ("generally affects all taxpayers”), with McManus v Petoskey, 164 Mich 390, 394; 129 NW 681 (1911) ("inevitably necessitate[s] the raising by tax an * * * amount.”). In plaintiffs’ answers to defendants’ interrogatories, we do find assertions that the hiring of provisional employees has caused a deprivation "of available money for salary increases [and] promotions” and "excessive layoffs”. We do not find any indication that plaintiffs represent any persons who have suffered these alleged harms. We find instead the cryptic statement, as part of an answer, that association members’ injuries are "immaterial”.

N. J. Kaufman, J. Defendant was convicted by a Calhoun County Circuit Court jury of breaking and entering with intent to commit larceny, MCLA 750.110; MSA 28.305. He was subsequently sentenced to a term of from 4 to 15 years in prison and now appeals as of right. At trial, James Stone, the complainant, testified that, at about 2:30 or 3 a.m. on the morning of October 28, 1973, he was sleeping in the living room of his house and was awakened by noise from his bedroom. He saw defendant, whom Stone had known since defendant was a child, rifling a set of drawers. When Stone tried to stop defendant, the two scuffled and defendant ran out of the house. The complainant testified that, although he had locked the rear door of his house when he retired, after the crime he found that the latch on that door and the one on his bedroom door had been torn open. Soon after defendant ran out, Stone called the police and reported the loss of a check and some half-dollars. Defendant took the stand in his own behalf. After admitting two prior criminal convictions, he claimed that earlier in the evening of the alleged robbery he had been invited to the Stone residence by a Sandra Taylor who also lived there. According to defendant, when he arrived at the house he found the door open, knocked and walked in where he observed Mr. Stone lying on the couch. After trying to awaken Mr. Stone, defendant was "turning around, looking around and hollering for somebody else” when Mr. Stone arose, scuffled with defendant, and forced defendant to flee the premises. On appeal, defendant propounds three claims of error. First, defendant contends that the trial court committed reversible error by allowing, over defense objection, the investigating officer to make mention of defendant’s mug shots. Before defendant had taken the stand and admitted prior convictions, the prosecutor called Officer McGaha, the investigating officer. McGaha testified that, while he was responding to the call from Mr. Stone, he saw defendant standing at an intersection near the Stone residence. The officer stated that defendant was breathing deeply as though he had been running. On three different occasions during the course of his testimony, Officer McGaha testified that he had examined police department mug shots to determine if the man he had seen near the Stone residence was the defendant. The officer’s first reference to mug shots occurred during direct examination, was properly objected to by defense counsel, and was stricken by the prosecutor himself. Officer McGaha’s second reference to mug shots occurred during cross-examination and was not objected to by either party. The witness’s third reference to mug shots occurred during redirect examination when the witness stated that he had picked out defendant’s mug shot, whereupon defense counsel objected to the testimony and moved that it be stricken. However, the trial judge refused to do so on the basis that "it was brought out in the cross-examination of the witness in answer to the question of counsel as to how he determined who the defendant — who the party was — and so he explained that. So I assume the prosecutor has a right to further questioning”. Defendant’s appellate challenge is based on this ruling. It is true that where a defendant has not taken the stand the testimony concerning a defendant’s mug shot or admission of the photo itself will impermissibly place his criminal record before the jury. People v Heller, 47 Mich App 408; 209 NW2d 439 (1973). This Court, as defendant notes, has looked with disfavor on the introduction of evidence, even oblique or unresponsive testimony, referring to a defendant’s criminal record before he has taken the stand. See, e.g., People v Deblauwe, 60 Mich App 103; 230 NW2d 328 (1975), People v Buffa, 51 Mich App 680; 216 NW2d 494 (1974), People v McCartney, 46 Mich App 691; 208 NW2d 547 (1973). Cf. People v Willis, 60 Mich App 154; 230 NW2d 353 (1975), People v Averill, 59 Mich App 507; 229 NW2d 827 (1975). However, we take an equally dim view of a defendant using invited error as a basis for appeal. People v Collins, 63 Mich App 376; 234 NW2d 531 (1975). In the instant case, defense counsel questioned Officer McGaha about his identification of defendant with full knowledge from the prior stricken testimony that mug shots were used to make that identification. He nonetheless elicited the fact that mug shots were used. Nor did he attempt to have the officer’s testimony stricken as unresponsive. We, therefore, agree with the court and with the plaintiff that the challenged testimony was invited by prior defense questioning. We do not, however, condone the unnecessary, repetitive and prejudicial eliciting by the prosecutor of the same information brought out by defense counsel. This action did not rise to the level of reversible error. Defendant’s second claim of error is that he was denied a fair trial when the prosecutor improperly vouched for the credibility of a prosecution witness and denigrated defendant’s testimony. There was no defense objection to the remarks challenged on appeal. While a prosecutor may not vouch for the evidence or place the weight of his office behind the prosecution, he, within limits, may argue the credence of witnesses to the jury where, as here, the testimony is conflicting and the result depends on which of two witnesses is to be believed. People v Davis, 57 Mich App 505; 226 NW2d 540 (1975), lv den, 394 Mich 817 (1975). We find that the challenged statements did not exceed proper limits and certainly did not constitute a miscarriage of justice. MCLA 768.26; MSA 28.1049. People v Phillips, 61 Mich App 138; 232 NW2d 333 (1975). Defendant’s final appellate contention is that the trial court committed reversible error in its instruction to the jury on consideration of lesser included offenses. In the challenged instruction, the court stated, in relevant part: "So when you retire to the juryroom, you will have the right to consider four possible verdicts. If you are convinced beyond a reasonable doubt that the Defendant did, on the date mentioned, break and enter the home of Mr. Stone with intent to commit the crime of larceny therein, then, of course, the Defendant is guilty, and you should bring in a guilty verdict. "Now, if you are not convinced that the Defendant is guilty of the offense in count one, you may consider whether or not you are convinced beyond a reasonable doubt that he did feloniously enter the premises of Mr. Stone without breaking with intent to commit the crime of larceny therein. If you are not convinced beyond a reasonable doubt that the Defendant committed that offense, you may determine whether or not the Defendant did, on the date mentioned, enter the premises of Mr. Stone, that is the dwelling-house of Mr. Stone without permission from the owner. "If, on the other hand, you are not convinced beyond a reasonable doubt that the Defendant committed or is guilty of any one of the three offenses mentioned, then, of course, he would be not guilty, and you should acquit him.” Defendant argues that, by instructing the jury that they must consider the offenses in a specific order, the court was unduly restricting the jury’s ability to decide the case and, perhaps, to reach a compromise verdict. Defendant did not object to this instruction. This issue has produced a significant amount of recent case law. See, e.g., People v Ray, 43 Mich App 45; 204 NW2d 38 (1972), People v Harmon, 54 Mich App 393; 221 NW2d 176 (1974), People v Bankston, 61 Mich App 275; 232 NW2d 381 (1975), People v Don Francisco Lopez, 65 Mich App 653; 237 NW2d 599 (1975). The standard for determining when it may be reversible error to require the jury to consider offenses in a particular order was recently stated in People v Waldron, 64 Mich App 648, 653; 236 NW2d 732 (1975): "Although it is not the law in this state that a jury must consider possible verdicts in any particular order, an instruction to this effect, although undesirable and expressly discouraged, is not reversibly erroneous. It is only when a jury is instructed that they must first decide the greater charge and reach unanimous agree- meat on it before they can even consider lesser offenses that reversible error arises.” (Emphasis supplied.) Unlike People v Ray, supra, and People v Harmon, supra, the cases on which defendant relies, the instant instruction did not require unanimous agreement on one charge before considering a lesser charge. Therefore, no error was committed. We reiterate, however, that such an instruction is not favored and may impinge on the jury’s deliberations or create confusion. The Supreme Court has recently noted that: "To speak of a requirement that the jury 'justify’ its conclusion that the defendant is not guilty of the higher charge before 'allowing’ it to convict of the lesser is antithetical to the nature of a jury trial. See People v Reed, 393 Mich 342; 224 NW2d 867 (1975).” People v Chamblis, 395 Mich 408, 420; 236 NW2d 473 (1975). We read this statement as encouraging minimal intrusion upon jury deliberations. It further recognizes the prevalence of compromise verdicts and the ability of a jury to "do justice”. We do not read it as a statement on the instant issue clear enough to alter the state of the law. Affirmed. Circuit judge, sitting on the Court of Appeals by assignment.

R. M. Maher, J. Defendant, upon a charge of breaking and entering, MCLA 750.110; MSA 28.305, pled guilty to an added count of attempted breaking and entering. On November 14, 1974, he was sentenced to three years probation. One of the conditions of his probation was payment of "costs or fines in the sum of $400 forthwith or at the rate of $20 per month”. On May 8, 1975, defendant appeared before the trial court on an order to show cause why his probation should not be revoked for his failure to make any payments towards the costs. After a brief hearing, the court found defendant in violation of his probation. On May 15, 1975, the court sentenced defendant to three to five years imprisonment. Defendant appeals. It is not disputed that defendant violated the conditions of his probation by failing to make any payments towards costs. Defendant contends that his nonpayment, due to his indigency, cannot be used as a basis for revocation of his probation and imposition of a prison term, for such action constitutes a poverty-based discrimination prohibited by the Fourteenth Amendment. The prosecution counters with the assertion that defendant did not establish his indigency. In other contexts, the equal protection clause of the Fourteenth Amendment has been used to prohibit imprisonment of indigents for nonpayment of fines or levies. In Williams v Illinois, 399 US 235; 90 S Ct 2018; 26 L Ed 2d 586 (1970), the Supreme Court found an invidious discrimination in the Illinois scheme in which a prisoner, unable to pay a fine imposed along with a prison term, was held in jail beyond the statutory maximum term to satisfy the fine. The Court later held, in Tate v Short, 401 US 395; 91 S Ct 668; 28 L Ed 2d 130 (1971), that imprisonment of an indigent without means to pay accumulated traffic fines, in a state with a "fines only” policy for traffic offenses, constituted impermissible discrimination on the basis of economic status. Cf. Morris v Schoonfield, 399 US 508; 90 S Ct 2232; 26 L Ed 2d 773 (1970). The reasoning behind the holdings in both Williams and Tate applies to probation revocation. Payment of costs as a condition of probation is legitimate, Fuller v Oregon, 417 US 40; 94 S Ct 2116; 40 L Ed 2d 642 (1974), but where indigency prevents a probationer from fulfilling such a condition, his subsequent imprisonment constitutes a discrimination on the basis of economic status. The prosecution does not attempt to demonstrate any significant state interest served by this discrimination, nor is any apparent to us. Without such justification, the revocation of an indigent’s probation for failure to make payments towards costs must be viewed as an impermissible denial of equal protection. Cf. People v Hernandez, 53 Mich App 91; 218 NW2d 394 (1974). In holding that revocation of an indigent’s probation for failure to make payments ordered as a condition of probation violates the probationer’s constitutional rights, we in no way challenge the long-held view that probation is a privilege, the granting of which rests within the discretion of the trial court. People v Good, 287 Mich 110; 282 NW 920 (1938), People v Jim Williams, 57 Mich App 439; 225 NW2d 798 (1975). The decision to terminate that privilege, however, cannot be based upon the probationer’s financial situation of indigency. Dicta in People v Gallagher, 55 Mich App 613, 620; 223 NW2d 92 (1974), directly supports this position: "If restitution ordered is not paid because the defendant has been unable to pay it, he should not have probation revoked or be imprisoned. The principle involved is the same as that involved in imprisonment for failure to pay a fine that cannot be paid. See People v Kay, 36 Cal App 3d 759; 111 Cal Rptr 894 (1973); Tate v Short, 401 US 395; 91 S Ct 668; 28 L Ed 2d 130 (1971).” The Supreme Court, in Fuller v Oregon, supra, considered the Oregon recoupment statute under which repayment of costs for providing counsel could be made a condition of probation. Though Fuller was concerned with the effect of the recoupment statute upon the Sixth Amendment right to counsel, the opinion emphasized that the obligation to repay was not imposed upon all probationers who had been provided counsel. The Court noted that the statute "is carefully designed to insure that only those who actually become capable of repaying the State will ever be obligated to do so”. 417 US at 53; 94 S Ct at 2124; 40 L Ed 2d at 654. The statute’s limitation made a decision on the question now before us unnecessary. 417 US at 53, n. 12; 94 S Ct at 2124; 40 L Ed 2d at 654. At the show cause hearing, defendant attempted to demonstrate his inability to make payments as ordered. He testified that he had told his probation officer about his unemployment and that he was unable to make the payments. Defendant’s probation officer testified that he was aware of defendant’s unemployment and inability to make payments. The court was apparently uninterested in defendant’s financial situation and would not allow further inquiry into the matter by defendant’s counsel. The prosecution only presented evidence showing defendant’s nonpayment of costs. While the record does not demonstrate conclusively that defendant was unable to make the $20-a-month payments, we cannot, as the prosecution would have us, deny defendant’s claim on that basis. Defendant established, as best he could, his inability to make payments. The lack of more extensive proofs resulted from the court’s limiting counsel’s presentation. We must hold, on the record before us, that the revocation of defendant’s probation and the imposition of sentence were invalid. We realize that installment payments are often suggested as a means to avoid equal protection obstacles to fines or orders for payment of restitution or costs, see, e.g., Williams v Illinois, supra, 399 US at 244, n. 21; 90 S Ct at 2024; 26 L Ed 2d at 595. We are aware that $20 a month is not an unduly large sum, and also that even unemployed persons might be able to gather that amount from various sources. Our decision here does not preclude further inquiry into defendant’s ability to fulfill the conditions of his probation. We trust that this opinion will not be taken as prohibiting any probation conditions requiring the payment of costs or restitution. It is not in disagreement with People v Double, 57 Mich App 633; 226 NW2d 594 (1975), which rejected an equal protection claim by a probationer who admitted his ability to make the payments required as a condition of his probation. Defendant’s sentence is reversed and his probation reinstated.

R. B. Burns, J. This appeal results from a suit filed by plaintiff against the various named defend ants (hereinafter "Preferred Mutual”, "Meadow-brook”, and "Flame Gas”) to recover losses for the damage to her home which occurred as a result of pipes freezing and bursting. Plaintiff purchased an old farmhouse in September of 1970 and insured it with a Preferred Mutual homeowner’s insurance policy purchased through Meadowbrook. She extensively remodeled the farmhouse and had a propane gas-fired central heating system installed. A 1000-gallon storage tank was installed by Flame Gas in October, 1970, and she contracted with them to service the home. The damage to the house occurred during the last of plaintiff’s numerous extended vacations during the fall and early winter of 1971-1972. Plaintiff discovered the damage upon returning to the house on January 26, 1972, and immediately contacted the insurance agency. Meadowbrook reported the loss to Preferred Mutual, and the latter promptly assigned the R. J. Tompkins Company, a local adjusting agency, to handle the claim. Plaintiff’s insurance policy contained an exclusion for "vacant or unoccupied” buildings "unless the insured shall have exercised due diligence with respect to maintaining heat in the building”. The preliminary investigation of Mr. David Tompkins, adjuster, apparently convinced him that plaintiff had failed to exercise such diligence, a conclusion of which he informed the insurer by letter. On March 8, 1972, after receiving instructions from Preferred Mutual, Mr. Tompkins informed plaintiff that her claim was being denied. The claims manager for Meadowbrook, a Mr. Frank Ball, had sold the policy to plaintiff. Mr. Ball testified at trial that, upon learning of Preferred Mutual’s denial of coverage, he contacted the Arden Construction Company to proceed with re pairs to the house, informing Arden that Meadow-brook would pay the bill if Preferred Mutual would not. On April 6, 1972, Mr. Ball sent a scathing letter to Preferred Mutual’s claims manager threatening to terminate the relationship between the organizations unless Preferred Mutual reconsidered plaintiff’s claim, and enclosing information suggesting that plaintiff had been covered by a "keep full” agreement with Flame Gas. Mr. Ball’s letter inspired a higher-level exchange of correspondence including Defense Proposed Exhibit "Q”, a letter in which Mr. Frank Gobel, Executive Vice-President of Meadowbrook, informed Mr. Albert Akulonis, Vice-President of Preferred Mutual, that "[i]t appears that our insured, Leslie Krajenke [sic], is the daughter of one of our large commercial clients who is up in arms about the claim denial and threatens to take his business away if the loss is not satisfied”. This was confirmed by Frank Ball’s testimony at trial. On May 3, 1972, Preferred Mutual informed the Tompkins Agency that its receipt of the new evidence concerning an automatic delivery agreement had convinced it to accept the claim. On June 16, 1972, a meeting was held between Mr. Robert Tompkins, Mr. David Tompkins, plaintiff, and her father, Mr. Charles Langs, to discuss her additional living expenses incurred due to the property damage. The meeting became heated and terminated abruptly. Plaintiff then ignored several attempts by David Tompkins to communicate with her by letter, and Tompkins did not proceed to adjust out the claim. On August 31, 1972, plaintiff commenced her action in the Oakland County Circuit Court. Meanwhile, the Arden Company had filed a mechanic’s lien on the house for failure of either Preferred Mutual or Meadowbrook to pay its bill. The house was subsequently sold and the repair bill was paid out of the proceeds. The case proceeded to trial. Meadowbrook filed a cross-claim against Preferred Mutual, alleging that Meadowbrook was always acting as agent and seeking indemnification for any losses, the cost of litigation and attorney’s fees. At the close of proofs, the various attorneys moved for directed verdicts and the judge took a number of issues from the jury. Plaintiff’s claim for $2,508.60 expended on repairs to the house was entered in her behalf against Preferred Mutual. Meadowbrook’s request for a directed verdict against Preferred Mutual was granted, and the court took proofs and allowed $3,300 for attorney’s fees incurred in defense of this claim. The court also directed a verdict in favor of Flame Gas absolving it of any liability regarding plaintiff’s claim for loss or theft of tools from her farmhouse. The trial court proceeded to instruct the jury as to the permissible scope of plaintiff’s damages as follows: "I have directed part of the verdict, as you know, and Mrs. Krajenke is entitled to recover from Preferred Mutual those damages which she suffered. She has the burden of proving the damages which she is entitled to recover, except as to the house damage, she no longer has any burden there because I’ve directed a verdict in her favor of $2,508.60 for that. "She has then, still the burden of proof on her claim for additional living expenses, the tool loss and any exemplary damages for the failure of Preferred to satisfy the claim for the building damage of $2,508.60.” On its return, the jury found for plaintiff in the sum of $12,785. On March 5, 1975, Preferred Mutual moved for a new trial based upon allegations of error by the trial court in directing a verdict of $2,508.60 for damage to the home, error in directing a verdict for attorney’s fees for Meadowbrook and error in allowing the question of exemplary damages to go to the jury. This motion was denied, and Preferred Mutual appeals. We first consider the directed verdict finding Preferred Mutual liable under the contract of insurance for the $2,508.60 in damage to the house. We agree that plaintiffs temporary physical absence from her primary residence was insufficient under the law of Michigan to render the house "vacant or unoccupied” for purposes of the policy. Stupetski v Transatlantic Fire Insurance Co, 43 Mich 373; 5 NW 401 (1880), Shackelton v Sun Fire Office, 55 Mich 288; 21 NW 343 (1884). This directed verdict is affirmed. We next consider the directed verdict granting Meadowbrook attorney’s fees in defense of plaintiffs action, and the conclusion embraced therein that Meadowbrook was acting within the scope of its agency, or that Preferred Mutual subsequently ratified Meadowbrook’s arrangement with Arden Company. The record clearly indicates that Meadowbrook was acting beyond the scope of its agency in promising to pay Arden in the face of Preferred Mutual’s denial of coverage. Plaintiffs father held substantial commercial properties, all insured through Meadowbrook. Both the testimony of Frank Ball and the letter offered as Defense Proposed Exhibit "Q” indicate the fatal degree of interference with the agency relationship resulting from the influence of Mr. Langs. We note further our belief that the exhibit should have been admitted over the objection for lack of foundation as authenticated by witness Ball. See Flickema v Henry Kraker Co, 252 Mich 406; 233 NW 362 (1930). Additionally, we note from count 3, paragraphs 21-23 of plaintiffs complaint that Meadowbrook was sued directly in its individual capacity on the Arden agreement, with no mention of any agency relationship between Preferred Mutual and Meadowbrook. But for the presence of this contract with the Arden Company, Meadowbrook would have been dismissed from the action, as was the R. J. Tompkins Company. It is also clear that Preferred Mutual’s subsequent admission of liability did not operate as a legally effective ratification of Meadowbrook’s actions. In David v Serges, 373 Mich 442, 444; 129 NW2d 882, 883 (1964), the Court quoted with approval from 1 Restatement of Agency, 2d, § 82, p 210: "Ratification is the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him.” Meadowbrook’s act was not "done or professedly done on [Preferred Mutual’s] account”. In Gandy v Cole, 35 Mich App 695; 193 NW2d 58 (1971), the Court did not find that a principal had ratified the acts of his agent when the facts indicated that the agent had stated to the third party that he was acting in his own individual capacity. The Court concluded that absent a representation to the third party , that the agent was working on behalf of his disclosed principal, there could be no ratification. We do not find a ratification in this case. The directed verdict on fees in favor of Meadowbrook was improvidently granted, and is hereby vacated. There is no question for the jury, and Meadow-brook shall bear its own fees. We turn to the question of the submission of exemplary damages for the jury’s consideration. Plaintiff claims that exemplary damages may be awarded in a contract action where the defendant has acted in a reckless, negligent or malicious manner in breaking the contract and that the defendant acted in a malicious manner and should be liable for punitive damages. Defendant claims that as a general rule exemplary damages are not allowed for a breach of contract and that plaintiff has not submitted any proofs that would create an exception to the general rule. In Frishett v State Farm Mutual Insurance Co, 3 Mich App 688, 692, 693; 143 NW2d 612, 614 (1966), this Court stated: "In the case before us the appellant has alleged the acts of the defendant were intended to inflict extreme mental suffering. "In our opinion the law of Michigan as set forth in Stewart v Rudner, supra [349 Mich 459; 84 NW2d 816 (1957)] and Carter v General Motors Corp, supra, [361 Mich 577; 106 NW2d 105 (1960)] is consistent with the principles enunciated in the Restatement of the Law, 1948 Supp, Torts § 46: " 'One who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily harm resulting from it.’ and as continued in comment (g) under the aforementioned section: " 'In short, the rule stated in this section imposes liability for intentionally causing severe emotional distress in those situations in which the actor’s conduct has gone beyond all reasonable bounds of decency. The prohibited conduct is conduct which in the eyes of decent men and women in a civilized community is considered outrageous and intolerable. Generally, the case is one in which the recitation of the facts to the average member of the community would arouse his resentment against the actor and lead him to exclaim "Outrageous!”.’ ” (Emphasis in the original.) As previously noted, the judge’s instruction did nothing more than mention the term "exemplary damages”, with no elucidation whatsoever of the relevant law or the permissible scope of the jury’s consideration. The record reveals that plaintiffs counsel included a charge on exemplary damages that the judge admittedly overlooked; further, that Preferred Mutual’s counsel forthrightly objected to the submission of any charge on punitive or exemplary damages. In Smith-Douglass v Walch, 391 Mich 201, 204; 215 NW2d 142, 144 (1974), the Court stated: "Where, however, the record is completely silent as to any instruction on the controlling legal issue supported by the testimony presented to the jury, a new trial may be ordered.” (Emphasis in the original.) It is impossible for us to determine the fraction of the award for plaintiff that represents the jury’s consideration of exemplary damages. We must reverse and remand for a new trial. For purposes of retrial, we note our opinion that the circuit judge was in error in excluding defense proposed exhibits "H” and "I” from evidence. Reversed and remanded for a new trial.

AFTER SECOND REMAND Cavanagh, C.J. We revisit in these cases the issue of the existence and scope of exceptions to governmental immunity from tort liability under MCL 691.1407(1); MSA 3.996(107X1). We hold that there is no public nuisance exception to governmental immunity, and that, to whatever extent a nuisance per se exception may exist, it is not implicated by the facts of either case before us. I. FACTS AND PROCEDURAL HISTORY A. LI v FELDT Plaintiff Chen Li was injured in an automobile collision on May 5, 1983, which was allegedly caused, in part, by an improperly timed traffic light operated by the City of Ann Arbor. The defendants before us in Li are the city and two of its employees, Kenneth Feldt and John Robbins. Li filed suit on March 11, 1986, and the trial court initially granted summary disposition for the defendants. The Court of Appeals initially reversed in part and remanded for further proceedings regarding Li’s claim of intentional nuisance. 162 Mich App 767; 413 NW2d 493 (1987). This Court vacated and remanded in light of Hadfield v Oakland Co Drain Cornm’r, 430 Mich 139; 422 NW2d 205 (1988), in which a majority of this Court held that § 7(1) mandates an historical approach to determining the existence of exceptions to governmental immunity. 430 Mich 882 (1988). On remand, the Court of Appeals found that there was an historically recognized intentional nuisance exception to governmental immunity, and again reversed the trial court’s summary disposition. 170 Mich App 256; 428 NW2d 36 (1988). This Court granted leave to appeal, 432 Mich 891 (1989), and reversed, reaffirming Hadñeld’s historical approach and finding that there is no. intentional nuisance exception to governmental immunity. 434 Mich 584; 456 NW2d 55 (1990). This Court again remanded the case to the Court of Appeals, to determine whether a public nuisance or nuisance per se exception to governmental immunity existed, and whether either exception applied to the facts presented, "if, and to the extent that, [such issues] were properly raised before the Court of Appeals.” Id. at 596._ On second remand, the Court of Appeals held that the relevant issues had been adequately raised and preserved in that Court, that both public nuisance and nuisance per se were historically recognized exceptions to governmental immunity, that Li had stated a claim of public nuisance on the facts presented, and that Li’s claim of nuisance per se was sufficiently colorable on the facts presented to warrant further consideration by the trial court. 187 Mich App 475, 492; 468 NW2d 268 (1991). The Court of Appeals therefore reversed again the trial court’s summary disposition. We granted leave to appeal, 437 Mich 1006 (1991), and, for reasons set forth below, we now reverse again the judgment of the Court of Appeals. B. GARCIA v CITY OF JACKSON Plaintiffs’ decedent Javier Garcia, a young boy, drowned on February 26, 1983, after he went swimming in the holding pond behind the Holton Dam in Jackson. The pond was connected to the Grand River by a 2,000-foot-long, five- by ten-foot, underground conduit, the mouth of which was not guarded by a grating. Garcia was sucked into the conduit and dragged through it into the Grand River, where his body was later found. Another young boy had drowned in a similar manner at the Holton Dam in 1981, producing a public outcry. At the time Garcia drowned, signs had been placed around the pond warning against swimming; indeed, Garcia’s friend who accompanied him on that tragic day warned him against swimming in the pond. It was not until October 10, 1983, however, nearly eight months after Garcia’s death, that the City of Jackson began making physical improvements at the dam site to enhance its safety. Garcia’s father, on his own behalf and as the personal representative of his son’s estate, and others, filed suit against the city on June 23, 1983. Garcia’s first complaint alleged nuisance per se and nuisance in fact, an amended complaint alleged only nuisance per se, and . a second amended complaint alleged only wilful and wanton misconduct. The substance of the allegations remained, however, that the city had maintained the Holton Dam in a dangerous condition, when it knew or should have known that drownings were likely to result. The trial court initially granted summary disposition for the city. The Court of Appeals reversed and remanded, holding that Garcia had stated a claim of intentional nuisance and that intentional nuisance constituted an exception to governmental immunity. 152 Mich App 254; 393 NW2d 599 (1986). This Court, just as in Li, vacated and remanded in light of Hadfield, supra. 430 Mich 877 (1988). On remand, the Court of Appeals, one judge dissenting, again reversed the trial court’s summary disposition, finding its earlier decision unaffected by Hadfield. 174 Mich App 373; 435 NW2d 796 (1989). This Court granted leave to appeal, 432 Mich 891 (1989), and, deciding the case together with Li, reversed, holding that intentional nuisance was not an historically recognized exception to governmental immunity. 434 Mich 584; 456 NW2d 55 (1990). This Court, just as in Li, remanded the case to the Court of Appeals to determine whether a public nuisance or nuisance per se exception to governmental immunity existed, and whether either exception applied to the facts pre sented, "if, and to the extent that, [such issues] were properly raised before the Court of Appeals.” Id. at 596. On second remand, the Court of Appeals, again over a dissent, held that the relevant issues had been adequately raised and preserved in that Court, that public nuisance and nuisance per se were historically recognized exceptions to governmental immunity, that "the factual allegations in this case can support the claim of nuisance per se or public nuisance sufficiently to avoid a grant of summary disposition for the defendant,” that Garcia should be afforded an opportunity on remand to amend his pleadings to more clearly state the law and facts relied upon, and that the trial court should then determine whether Garcia had adequately pleaded a claim of public nuisance or nuisance per se. 190 Mich App 197, 201-202; 475 NW2d 851 (1991). The Court of Appeals therefore reversed again the trial court’s summary disposition. We granted leave to appeal and ordered the case considered together with Li, 438 Mich 863 (1991), and, for reasons set forth below, we now reverse again the judgment of the Court of Appeals. II. ANALYSIS A. PUBLIC NUISANCE It has become almost de rigueur to begin a discussion of nuisance, as did the Court of Appeals in Li (On Second Remand), 187 Mich App 480, by quoting Justice Talbot Smith’s typically apt description of it as "the great grab bag, the dust bin, of the law.” Awad v McColgan, 357 Mich 386, 389; 98 NW2d 571 (1959). The Court of Appeals in Li (On Second Remand) also noted Prosser and Kee ton’s descriptions of nuisance as an " 'impenetrable jungle’ ” and " 'all things to all people,’ ” 187 Mich App 480, quoting Prosser & Keeton, Torts (5th ed), § 86, p 616, while adding its own apt metaphor that "[w]hile nuisance may be an impenetrable jungle, the issue of exceptions to governmental immunity for nuisance per se and public nuisance is more akin to an arid wasteland, with few landmarks to be found.” Id. While we sympathize with these metaphors, we think the Court of Appeals overlooked the implications of the latter. The very aridity of the historical case law in this area actually makes it easier to apply the governing historical test for exceptions to governmental immunity. MCL 691.1407(1); MSA 3.996(107)(1) provides: Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.[ ] This Court, in Li v Feldt (After Remand), 434 Mich 584, 592-595; 456 NW2d 55 (1990), squarely reaffirmed the historical approach articulated by Justice Brickley’s plurality opinion in Hadfield, supra, for purposes of determining the scope of possible exceptions to the immunity conferred by § 7(1). Under this approach the question is whether the claimed exception was clearly recognized in authoritative Michigan case law before July 1, 1965. See Li (After Remand), 434 Mich 594-595. This Court in Hadfield found such a clearly recognized historical exception in the-case of the tort of "trespass-nuisance.” See Hadfield, 430 Mich 154-169 (Brickley, J.). Where the historical case law regarding a claimed exception truly constitutes an "arid wasteland,” however, that would seem to be a strong indication that the exception cannot properly be recognized under §7(1). This indication is confirmed in the case of the claimed public nuisance exception to governmental immunity. The argument for historical recognition of a public nuisance exception rests largely upon Justice Boyle’s concurring opinion in Hadfield, 430 Mich 206-207 — which in turn relied upon Attorney General ex rel Wyoming Twp v Grand Rapids, 175 Mich 503; 141 NW 890 (1913), and Trowbridge v City of Lansing, 237 Mich 402; 212 NW 73 (1927)— and upon Pound v Garden City School Dist, 372 Mich 499; 127 NW2d 390 (1964). Wyoming Twp and Trowbridge do not support the existence of a public nuisance exception. In the first place, both cases involved plaintiffs seeking only prospective equitable relief in the form of abatement, to which this Court, in both cases, found they were entitled. As Justice Brickley correctly noted in Hadfield, such cases do not even fall within the purview of governmental immunity and cannot properly be cited in that context. See Hadfield, 430 Mich 152, n 5, 174, n 15. Justice Boyle in Hadfield, after citing Wyoming Twp and Trowbridge, stated: Presumably, this Court, after recognizing the remedy of abatement against the government for a public nuisance, would not deprive a private individual who suffered special harm because of the same nuisance from a remedy well established at common law [e.g., damages]. It should follow that the public nuisance remedy, even where not based on invasion of another’s property rights, is an exception to governmental immunity. [Id. at 207.] We conclude, however, that this does not follow. The distinction between the government’s liability for prospective equitable relief and its liability for retrospective damages or compensation, and the principle that the former kind of liability is generally not barred by sovereign immunity, are fundamental to sovereign immunity law. The United States Supreme Court, for example, has long recognized this distinction in the context of the states’ Eleventh Amendment immunity from suit in the federal courts, which immunity, the Court has held, does not extend to prospective equitable relief or ancillary costs associated therewith. See, e.g., Missouri v Jenkins, 491 US 274, 278-280; 109 S Ct 2463; 105 L Ed 2d 229 (1989); Will v Michigan Dep’t of State Police, 491 US 58, 71, n 10; 109 S Ct 2304; 105 L Ed 2d 45 (1989) (noting that "[t]his distinction is 'commonplace in sovereign immunity doctrine’ ”); Edelman v Jordan, 415 US 651; 94 S Ct 1347; 39 L Ed 2d 662 (1974); Ex parte Young, 209 US 123; 28 S Ct 441; 52 L Ed 714 (1908). This Court recognized this basic distinction in McDowell v State Highway Comm’r, 365 Mich 268; 112 NW2d 491 (1961). Upholding an assertion of governmental immunity in that case, we noted that "plaintiffs attempt to hold a department of the State, and so the State, responsible in damages for a tort. No question of abatement of a nuisance, or of other relief a court of equity might properly grant, is or could be before us on review of these judgments of the court of claims.” Id. at 269-270 (emphasis added, citation omitted). Furthermore, as Justice Brickley noted in Had-field, both Wyoming Twp, in which the plaintiffs sought abatément of river sewage dumping which affected riparian landowners, and Trowbridge, in which the plaintiffs sought abatement of the operation of a "piggery” which afflicted neighboring landowners with offensive insects and odors, fell comfortably within "the category of trespass-nuisance.” Hadfield, 430 Mich 174. Given that the challenged conduct in both Wyoming Twp and Trowbridge wás "clearly trespass-nuisance and in line with the exception adopted [in Hadfield],” id. at 175, we see no basis for reading either case as establishing a public nuisance exception. We find Pound, supra, to be of no more help in establishing a public nuisance exception. At the outset, the question arises whether Pound is properly even considered as part of the relevant body of historical case law for purposes of § 7(1). As Justice Brickley noted in Hadfield, 430 Mich 176, n 17, "it may ... be argued” that it is not, given that the bill which became 1964 PA 170 was introduced and passed by the Senate before Pound was decided. Justice Brickley did not decide this issue in Hadfield, however, and his opinion did not command a majority in any event. Upon further consideration, we now conclude that Pound is properly considered for purposes of § 7(1). First, while the drafters of 1964 PA 170 incorporated the language preserving the scope of governmental immunity "as it existed heretofore,” and the Senate initially passed it, before Pound was decided, that language was not finally passed by either House of the Legislature or enacted into law until after Pound was decided. See n 6. We believe it is the date of final passage that is most relevant for interpretive purposes; furthermore, a time-relative statutory term like "heretofore” should ordinarily be interpreted with reference to the date the language takes legal effect. We thus agree with the Court of Appeals in Li (On Second Remand), 187 Mich App 486-487, that the Legislature, in adopting 1964 PA 170, must be presumed to have been aware of Pound and to have felt no need to modify the bill to exclude Pound from its scope. Second, the intent of the 1964 Legislature in this regard is no longer controlling in any event. The Legislature amended the statute in 1986 by, in part, replacing "as it existed heretofore” with "as it existed before July 1, 1965.” 1986 PA 175, § 1. This amendment mooted the issue regarding what date the word "heretofore” in the original statute should be interpreted with reference to. Pound, decided more than a year before July 1, 1965, plainly falls within the scope of the amended language. Thus, Pound must be considered as part of the historical case law under § 7(1) for purposes of applying the test adopted in Hadfield and Li (After Remand). Pound involved a claim for injuries caused by water dripping off the roof of the defendant’s public school building, which caused a neighboring public sidewalk to become coated with ice on which the plaintiff slipped and fell. This Court, relying heavily on Ferris v Detroit Bd of Ed, 122 Mich 315; 81 NW 98 (1899), found that the claim was not barred by governmental immunity. In Ferris, ice and snow had fallen from the roof of the defendant’s public school building onto the plaintiff’s private premises, causing him to slip and fall. Ferris was thus a classic trespass-nuisance case. As Justice Brickley noted in Hadñeld, 430 Mich 159-160, Ferris exemplifies the development of the trespass-nuisance exception to governmental immunity. As this Court stated in Pound, that case involved facts similar enough to those in Ferris to meet that case’s criterion of "a direct injury to the person of the plaintiff, while outside the limits of the defendant’s premises.” We hold, therefore, that [the claim in Pound is] sufficient to state a cause of action to which the defense of governmental immunity may not be interposed. To hold otherwise would be to establish a distinction between a plaintiff who is directly injured while upon his own premises by the wrongful act of defendant and another plaintiff who is likewise directly injured in a place, such as a public way, where he has a right to be and which is not subject to the authority of defendant. Such a distinction would be without justification in logic or public policy. Defendant cites several cases which have sustained the defense of governmental immunity to actions for tortious injury, but in those cases the injury which plaintiff sustained did not occur, as in Ferris and Pound, "outside the limits of the defendant’s premises” but rather occurred in areas subject to the authority of defendants. See, e.g., McDowell v State Highway Comm’r, 365 Mich 268. [Pound, 372 Mich 501-502. Emphasis added.] Pound’s citation and distinction of McDowell is highly significant. McDowell, like the instant case of Li, involved a claim arising from the allegedly unsafe maintenance of a roadway. In McDowell, the state highway department’s allegedly negligent failure to drain water from the surface of a highway permitted a dangerous sheet of ice to form. The facts of Li are thus far closer to those of McDowell than to those of Pound. In both Li and Garcia, like McDowell but unlike Pound, the injury occurred in an area subject to the authority of the defendant. Thus, neither Li nor Garcia falls within the narrow exception to governmental immunity enunciated in Pound. In sum, Pound did not establish any public nuisance exception to governmental immunity; rather, it established, at most, a narrow corollary to the narrow trespass-nuisance exception recognized by cases such as Ferris and Hadfíeld. Finding no other basis for a public nuisance exception in the case law before July 1, 1965, we conclude that no such exception exists under § 7(1). Thus, to whatever extent the plaintiffs in Li and Garcia may have properly stated claims of public nuisance — and we emphasize that we do not pass on that question — such claims are barred by governmental immunity. B. NUISANCE PER SE Whether there was an historically recognized nuisance per se exception to governmental immunity poses a more difficult question. Justice Boyle, in her concurring opinion in Hadfield, 430 Mich 207-208, expressed the view that a damages claim alleging a nuisance per se would fall outside the scope of governmental immunity, relying upon Wyoming Twp, supra, Trowbridge, supra, and Royston v City of Charlotte, 278 Mich 255; 270 NW 288 (1936). As noted above, however, both Wyoming Twp and Trowbridge involved claims for prospective equitable relief, not damages, and are thus inapposite to the governmental immunity issue. Royston does provide some support for a nuisance per se exception, stating squarely (albeit in dicta and without supporting citation), that "[a]cts in the discharge of governmental functions which create a nuisance per se do not come within the immunity otherwise accorded.” 278 Mich 260. While the significance of this language has been questioned, see, e.g., Hadfield, 430 Mich 175, n 16 (Brickley, J.), we note that it is undeniably part of the body of historical case law for purposes of applying §7(1), although, to be sure, it lacks the weight which would be accorded to language constituting the ratio decidendi of a case. The significance of Royston’s dicta is augmented by a consideration of dicta in Burford v Grand Rapids, 53 Mich 98; 18 NW 571 (1884), which held that governmental immunity barred a suit for damages arising from the injury of the plaintiff’s horse, which was hit by a recreational bobsled on a public street. The plaintiff argued, inter alia, that the defendant was not entitled to immunity because, by authorizing recreational sledding (or "coasting,” as it was then called) on the street, it had essentially authorized an activity constituting a nuisance per se. Chief Justice Cooley, for the unanimous Court, stated: If it were unquestionable that coasting upon a public highway was always a nuisance, there would be much plausibility in this contention, and perhaps it should be accepted as sound. . . . But coasting does not necessarily interfere with the customary use of the street, and might be indulged in with no serious inconvenience to any one .... On the contrary, as [coasting] itself is healthful and exhilarating, it seems eminently proper, if the street is not put -to other public use, that this diversion be allowed, if not expressly sanctioned. [Id. at 103-104; see also Rosario v City of Lansing, 403 Mich 124, 135, n 9; 268 NW2d 230 (1978) (opinion of Fitzgerald, J.) (citing this language in Burford as the apparent, though uncited, authority for Royston’s dicta).] We conclude, however, that we need not now decide whether cases such as Royston and Burford establish a clearly recognized nuisance per se exception in the pre-1965 case law. As our case law has long recognized, a nuisance per se is an activity or condition which constitutes a nuisance at all times and under all circumstances, without regard to the care with which it is conducted or maintained. See Hadfield, 430 Mich 207 (Boyle, J., concurring); Gerzeski v Dep’t of State Highways, 403 Mich 149, 168; 268 NW2d 525 (1978) (Ryan, J., dissenting); Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399, 411; 97 NW2d 90 (1959); People v Detroit White Lead Works, 82 Mich 471, 476-479; 46 NW 735 (1890). "[U]nlike the nuisance in fact, nuisance per se is not predicated on the want of care, but is unreasonable by its very nature.” Hadfield, 430 Mich 208 (Boyle, J., concurring). Neither the operation of the traffic light in Li nor the maintenance of the holding pond in Garcia can be said to constitute an intrinsically unreasonable or dangerous activity, without regard for care or circumstances. To the contrary, both activities serve obvious and beneficial public purposes and are clearly capable of being conducted in such a way as not to pose any nuisance at all. The very essence of the claims in both Li and Garcia is that the underlying activities became unreasonable and dangerous under the particular circumstances of each case because the defendants allegedly exercised improper or inadequate care. Thus, regardless of whether nuisance per se might qualify as an exception to governmental immunity, neither Li nor Garcia presents a colorable claim of nuisance per se. III. CONCLUSION We reverse the judgments of the Court of Appeals and reinstate the trial courts’ grants of summary disposition for the defendants. Brickley and Mallett, JJ., concurred with Cavanagh, C.J. Riley, J., concurred only in the result. Because Li’s suit fell outside the two-year statute of limitations applicable to actions under the statutory "defective highways” exception to governmental immunity, see MCL 691.1402, 691.1411(2); MSA 3.996(102), 3.996(111)(2), the applicability of that statutory exception does not arise as an issue in this case. For convenience, we will henceforth refer to the plaintiffs in Garcia in the singular as "Garcia.” As originally enacted by 1964 PA 170, § 7, the second sentence of this provision stated that "[ejxcept as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is hereby affirmed.” (Emphasis added.) 1970 PA 155, § 1, made a minor grammatical change in the first sentence of this provision. 1986 PA 175, § 1, made further stylistic changes in this provision and, as noted' above, the substantive change of replacing "heretofore” with "before July 1, 1965.” July 1, 1965 was the effective date of 1964 PA 170. That is, a municipal garbage dump where hogs were kept to consume the garbage. Justice Boyle now, in addition to Wyoming Twp and Trowbridge, relies upon Dermont v Mayor of Detroit, 4 Mich 435 (1857), and Burford v Grand Rapids, 53 Mich 98; 18 NW 571 (1884), to support the existence of a public nuisance exception. See Boyle, J., post, pp 480-481. She also suggests reliance upon five cases cited by Wyoming Twp: Onen v Herkimer, 172 Mich 593; 138 NW 198 (1912), Merritt Twp v Harp, 131 Mich 174; 91 NW 156 (1902), Seaman v City of Marshall, 116 Mich 327; 74 NW 484 (1898), Ashley v Port Huron, 35 Mich 296 (1877), and Pennoyer v Saginaw, 8 Mich 534 (1860). See Boyle, J., post, p 481, n 6, citing Wyoming Twp, 175 Mich 534. Dermont does not support the claimed public nuisance exception. That case rejected a claim for damages against a city arising from the flooding of the plaintiff’s cellar by the city sewer, stating: The law is well settled in this country, and in England, that towns and boroughs are not liable to individuals for defects in their roads or bridges, except by some statute; and it is obvious that the powers granted to and exercised by the defendants in laying out streets and constructing sewers, are identical with those of highway commissioners in establishing highways and building bridges. [4 Mich 442-443.] Even if Dermont had authorized recovery against the city, the case would fall squarely within the trespass-nuisance tradition. With re gard to Burford, while the Court in that case passingly referred at one point to the claim being one of "public nuisance,” 53 Mich 100, a thorough examination of Burford reveals, as we discuss in part ikb), that the hypothetical exception to governmental immunity suggested in dicta in Burford is more properly characterized as relating to the concept of nuisance per se. Of the five cases cited by Wyoming Twp, 175 Mich 534, two — Onen and Merritt Twp — involved only actions for equitable relief, and thus are no more relevant to the governmental immunity issue than Wyoming Twp itself. While Seaman explicitly authorized, and Ashley and Pennoyer may have implicitly countenanced, damages relief against the governmental defendants, all three cases are classic examples of the tort of trespass-nuisance. This is reflected both in Justice Brickley’s discussion of Pennoyer, Ashley, and Seaman in his Hadñeld plurality opinion, 430 Mich 155-159, and in the explicit language used by this Court in the original decisions. See, e.g., Ashley, 35 Mich 301 (emphasis added): The right of an individual to the occupation and enjoyment of his premises is exclusive, and the public authorities have no more liberty to trespass upon it than has a private individual. [Quoted with emphasis in Hadfield, 430 Mich 157.] Thus, as we discuss in the text with regard to Wyoming Twp and Trowbridge, we see no basis for stretching such cases, falling clearly within the trespass-nuisance tradition, to support an ill-defined and otherwise unsupported "public nuisance” exception. Senate Bill 1132 was introduced on February 6, 1964, and passed the Senate on March 24, 1964. Pound was decided on April 6, 1964. The House of Representatives subsequently passed the bill with amendments (none of which affected the relevant language) on April 22, 1964. The Senate repassed the amended bill on April 23, 1964, and Governor Romney signed it into law as 1964 PA 170 on May 19, 1964. This is also consistent with the plain language of Li (After Remand), which stated that § 7(1) "preserved judicially created exceptions to immunity which were formulated before July 1, 1965.” 434 Mich 592. In response to Justice Boyle’s assertion that "we may yet be persuaded that a limited public nuisance exception to governmental immunity exists,” Boyle, J., post, p 480, we can only state that, while Justice Boyle may be so persuaded, a majority of this Court today rejects any such eventuality. Furthermore, while the nuisances alleged in Wyoming Twp and Trowbridge may perhaps be described as nuisances per se, see Hadfield, 430 Mich 175 (Brickley, J.), we would be hesitant to draw any broad conclusions from them regarding any nuisance per se exception to governmental immunity, when they are so much more readily viewed, as discussed in part ii(A), as falling within the trespass-nuisance tradition. While post-1965 case law cannot support the existence of an historically recognized exception to governmental immunity under § 7(1), we acknowledge the force of the arguments which have been made for the desirability of recognizing a nuisance per se exception to governmental immunity. See, e.g., Hadfield, 430 Mich 208 (Boyle, J., concurring) ("[t]o hold otherwise, would allow the state an absolute right to use its property in any manner it may choose without regard for the public at large or private persons”), citing Gerzeski v Dep’t of State Highways, 403 Mich 149, 169; 268 NW2d 525 (1978) (Ryan, J., dissenting).

Riley, J. We granted leave to appeal to determine whether the public building exception to governmental immunity, MCL 691.1406; MSA 3.996(106), applies to a slip and fall injury occa sioned by an accumulation of grease or oil on a hallway floor. The Court of Appeals held that the exception was applicable to these facts and reversed the trial court’s grant of summary disposition in the defendant’s favor. We disagree with the findings of the Court of Appeals majority, and hold that the transitory condition was not caused by a dangerous or defective condition of the building itself, thus the public building exception does not apply. I. FACTS AND PROCEDURAL HISTORY A Plaintiff Gerald Wade was a prison inmate at the Lakeland Correctional Facility in Coldwater, Michigan. On January 25, 1987, plaintiff slipped on some foreign substance and fractured his kneecap. Plaintiff sued the State of Michigan, Department of Corrections, under the public building exception to governmental immunity on the basis of the theory that it failed to repair and maintain the Lakeland facility, a public building. In the Court of Claims, defendant moved for summary disposition pursuant to the governmental immunity statute, MCL 691.1407; MSA 3.996(107). The court granted defendant’s motion on the basis of its finding that an accumulation of grease or oil on the floor did not amount to a defect of the building itself. The Court of Appeals reversed, finding little distinction between dangerous conditions caused by a structural defect in the floor and a floor covered with an accumulation of oil or grease. Wade v Dep’t of Corrections, 182 Mich App 519, 525; 453 NW2d 683 (1990). The majority rejected the statutory interpretation, which differentiates between risks of injury on the basis of what occasioned the risk. Id. Judge Mackenzie dissented, on the basis of her belief that the public building exception is confined to the duty of preserving the structural integrity of a public building. B Although not specified in the record, the trial court granted defendant’s motion for summary disposition pursuant to MCR 2.116(C)(7) and (C)(8). MCR 2.116(C)(7) tests whether a claim is barred because of immunity granted by law, and requires consideration of all documentary evidence filed or submitted by the parties. MCR 2.116(G)(5); Green v Berrien General Hosp Auxiliary, Inc, 437 Mich 1, 4, n 4; 464 NW2d 703 (1990). MCR 2.116(C)(8), failure to state a claim upon which relief can be granted, tests the legal sufficiency of the complaint and allows consideration of only the pleadings. MCR 2.116(G)(5); Scameheorn v Bucks, 167 Mich App 302, 306; 421 NW2d 918 (1988). Under both subrules, all well-pleaded allegations are accepted as true, and construed most favorably to the non-moving party. Scameheorn, supra at 306; Haywood v Fowler, 190 Mich App 253, 256; 475 NW2d 458 (1991). A court may only grant a motion pursuant to MCR 2.116(C)(8) where the claims are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Scameheorn, supra at 306. Immunity granted by law, such as governmental immunity, pursuant to MCL 691.1401 et seq.; MSA 3.996(101) et seq., is an affirmative defense and requires that the defense be stated in the party’s responsive pleading. MCR 2.111(F)(3)(a). Leite v Dow Chemical Co, 439 Mich 920 (1992). In order to survive a motion for summary disposition, the plaintiff must, however, allege facts justifying application of an exception to governmental immunity. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 621, n 34; 363 NW2d 641 (1984); Gibson v Grand Rapids, 162 Mich App 100, 103; 412 NW2d 658 (1987). II. REVIEW OF MICHIGAN CASE LAW In Reardon v Dep’t of Mental Health, 430 Mich 398; 424 NW2d 248 (1988), this Court examined the scope of the public building exception to governmental immunity. MCL 691.1406; MSA 3.996(106). We held that the intent of the Legislature in enacting the public building exception was to "impose a duty to maintain safe public buildings, but not necessarily safety in public buildings.” (Emphasis added.) Reardon, supra at 417. The duty to repair and maintain relates to the structural condition of the premises, and a government engaged in a governmental function is open to liability only where the injury results from a dangerous or defective condition of a building. Id. Although factually distinguishable from the instant case, the holding in Reardon delineating the public building exception is controlling. In Reardon, a nursing student was assaulted in her dormitory. She alleged that the room, and therefore the building, was unsafe and defective because of the number of master keys in circulation among the employees. In Schafer v Ethridge, 430 Mich 398; 424 NW2d 248 (1988), the companion case of Reardon, a severely mentally retarded resident of a center for developmental disabilities was impregnated while staying in the acute care wing. The complaint alleged that the layout of the wing created a dangerous condition allowing an assault to occur. This Court rejected the application of the public building exception to these facts on the grounds that no evidence was presented that a condition of the building contributed to the assaults or posed a danger to the plaintiffs. Reardon, supra at 417. In Reardon, we discussed the statutory genesis of the public building exception. In response to the judicial abrogation of governmental immunity for municipalities in Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961), in 1964 the Legislature passed Public Act 170. The purpose of this act was to restore governmental immunity to nonsovereign agencies, and to provide for uniform treatment of governmental entities when engaged in governmental functions. See Reardon, supra at 408. Earlier constructions of the governmental immunity act by this Court indicated that with the expansion of governmental activity in recent years, services provided by governmental agencies are not essentially governmental in nature. Pichette v Manistique Public Schools, 403 Mich 268, 279; 269 NW2d 143 (1978). We then found that public policy required a narrow construction of the term "governmental function,” and imposed a broad duty on the government to protect the public from injury by maintaining safe public places. Id. at 285. A "narrow” interpretation of the public building exception which limited application of the exception to the specific physical structure of the building itself was explicitly rejected. Tilford v Wayne Co General Hosp, 403 Mich 293, 299; 269 NW2d 153 (1978). The decisions in Lockaby v Wayne Co, 406 Mich 65, 77; 276 NW2d 1 (1979), and Bush v Oscoda Area Schools, 405 Mich 716, 731; 275 NW2d 268 (1979), also reflect narrow interpretations of governmental function and governmental immunity. In Bush, this Court rejected the defendant’s contention that the injury must result from dangerous or defective conditions caused by inadequate or negligent repairs or maintenance, and found that "a building may be dangerous or defective because of improper design, faulty construction or the absence of safety devices.” Id. at 730. In Ross, supra, the Court reconsidered the scope of the governmental immunity statute. Our purpose in interpreting the immunity act was to create a cohesive, uniform, and workable set of rules to define an injured party’s rights, and the governmental entity’s liability. Id. at 596. We concluded that the intent of the act was to bring into uniformity the liability for state and non-sovereign governmental agencies. Id. at 608. The decision in Ross settled prior inconsistencies in governmental immunity jurisprudence by finding that the heart of the act, § 7, provides for broad immunity from tort liability for governmental agencies engaged in governmental functions. Ross, supra at 595. The language of § 7 is "in the broadest possible language,” and the term "governmental function” was likewise to be construed broadly. Id. at 618. From this broad grant of immunity, the Court recognized four narrow statutory exceptions, including the public building exception. The more recent decision in Hyde v Univ of Michigan Bd of Regents, 426 Mich 223, 245; 393 NW2d 847 (1986), also recognized that exceptions to governmental immunity are to be narrowly construed: Subsequent Court of Appeals decisions, however, continued to interpret the public building exception broadly. In Davis v Detroit, 149 Mich App 249, 262; 386 NW2d 169 (1986), the Court found that the Legislature intended to impose a "broad duty” on governmental agencies to maintain safe buildings. And, in Ray v Dep’t of Social Services, 156 Mich App 55, 63; 401 NW2d 307 (1986), the Court discussed the broad application of the public building exception, stating that "it was the intent of the Legislature to apply the same standard of care and duty as would be applied to a department store or supermarket or a privately owned place of business open to the public.” The only differences between private tort liability and that of governmental agencies noted by the Court in Ray were the notice and knowledge requirements in the public building exception statute. Id. Various Court of Appeals decisions since our 1988 decision in Reardon, supra, have recognized that the public building exception is now to be interpreted more narrowly, and is limited to dangers actually presented by the building itself. "[T]he scope of this [public building] exception has been narrowed considerably in the time since Pichette and Tilford Puroll v Madison Heights, 187 Mich App 672, 673; 468 NW2d 52 (1990). See Merritt v Dep’t of Social Services, 184 Mich App 522, 523; 459 NW2d 10 (1989) (an accumulation of ice on a parking lot maintained by the defendant was not within the public building exception; the scope of the exception was narrowed since Tilford); Dew v Livonia, 180 Mich App 676, 679; 447 NW2d 764 (1989) (the intent of the Legislature was to apply the public building exception to " dangers actually presented by the building itself,’ and not to all injuries incurred inside or adjacent to a public building”); Wing v Detroit, 178 Mich App 628, 631; 444 NW2d 539 (1989) (the plaintiff’s claim regarding her slip and fall at the Detroit Zoo requires an expansion of pre-Ross decisions which is precluded by Reardon). See also Abrams v Schoolcraft Community College, 178 Mich App 668; 444 NW2d 533 (1989), Eberhard v St Johns Public Schools, 189 Mich App 466; 473 NW2d 745 (1991), Hall v Detroit Bd of Ed, 186 Mich App 469; 465 NW2d 12 (1990), and Hemphill v Michigan, 173 Mich App 335; 433 NW2d 826 (1988). The exception has been held applicable where the claim alleges an injury occasioned by a defective or dangerous condition of the building itself. Williamson v Dep’t of Mental Health, 176 Mich App 752, 758; 440 NW2d 97 (1989) (a mentally retarded resident drowned in the bath due to an improper design of the shower and bath). III. ANALYSIS Having reconsidered the scope of the governmental immunity statute, this Court remains persuaded that the legislative intent regarding application of the public building exception statute is limited to injuries occasioned by a "dangerous or defective physical condition of the building itself.” The statutory scheme does not contemplate transitory conditions because they are not related to the permanent structure or physical integrity of the building. Reardon, supra at 409. In Reardon, we recognized the holding in Bush with approval, reasoning that as long as the injury is presented by a structural condition of the building, it does not matter whether the condition arose because of improper design, faulty construction, or the absence of safety devices. Id. at 410. Our decisions in Pichette, Tilford, Lockaby, and Bush, are in harmony with Reardon, because these decisions preceded our resolution in Ross, which more broadly defined the scope of governmental functions and immunity. Reardon, supra at 415. Plaintiff maintains that Reardon does not apply in this case because the injuries to the plaintiffs in Reardon were caused by the acts of third parties. We disagree. We find no substantive difference between acts of third parties which directly or negligently cause injury to the plaintiff from the facts involved in the present case. The significant, and we believe determining, aspect of both situations is that the dangerous condition was not caused by a dangerous or defective condition of the building itself. We agree with the reasoning of dissenting Judge Mackenzie who found in this case: "plaintiff has alleged nothing more than negligent janitorial care. That is not enough to bring this case within the public building exception to governmental immunity.” Wade, supra at 527. In contesting defendant’s motion for summary disposition, plaintiff asserted that pursuant to the public building exception, he was obligated to establish the source of the substance on the floor in order to prove that the accumulation was the result of some building defect. Plaintiff argues that since no source was alleged in the complaint or the prisoner’s accident report, he should be allowed to develop facts to show that a building defect caused the accumulation. The trial court, after reviewing only pleadings, found that the mere accumulation of grease or oil did not amount to a defect in the building itself, and therefore, plaintiff did not properly establish facts in his complaint that would have avoided governmental immunity. The Court of Appeals reversed and remanded on the grounds that the physical condition of the floor was a physical condition of the building itself. The Court stressed that the result, a slippery floor, is the same regardless of whether the dangerous condition is caused by an accumulation of oil or grease rather than a defect in the building itself. The Court relied on the pre-Reardon case of Ray, supra. In light of our holding in Reardon, we find the interpretation of the public building exception in Ray overly broad. In the instant case, the Court of Appeals opined that Ray, was still good law after Reardon. It rejected an interpretation of Reardon that would find the public building exception inapplicable to these facts because the condition was not part of the building itself. We do not agree. The assertion in Ray that a governmental entity is held to the same standards as private landowners, Ray, supra at 63, is not consistent with the finding in Ross of a clear legislative judgment to treat public and private tortfeasors differently. Ross, supra at 618. Mere negligence by á governmental agency does not trigger liability. IV. CONCLUSION In sum, we conclude that the public building exception is to be narrowly construed, and does not encompass claims of negligent janitorial care. A spill on the floor does not become part of the building itself by virtue of the risk of injury it may create for the plaintiff. Moreover, we do not believe the Legislature intended "dangerous or defective condition of a public building” to refer to such transitory conditions. The use of the ninety-day period for conclusively presuming knowledge, as well as the reference to time to "repair” the defect, reinforces our belief that the public building exception does not encompass transitory conditions or ordinary daily maintenance. The following opinion was filed with the Clerk of the Supreme Court on March 24, 1992, after the release of the opinion of the Court on March 23, 1992 — Reporter. In the present case, plaintiff’s claim alleges no more than mere negligence: that grease, oil, food, and water were allowed to accumulate on the floor. This accumulation was the transitory condition which caused the plaintiff’s injury. Furthermore, no defect of the public building itself was pleaded. We find, therefore, that plaintiff failed to state a claim upon which relief could be granted, and the trial court properly granted defendant’s motion for summary disposition. We therefore reverse the decision of the Court of Appeals. Cavanagh, C.J., and Brickley, Boyle, Griffin,. and Mallett, JJ., concurred with Riley, J. The public building exception to governmental immunity, MCL 691.1406; MSA 3.996(106), provides in pertinent part: Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. Knowledge of the dangerous and defective condition of the public building and time to repair the same shall be conclusively presumed when such defect existed so as to be readily apparent to an ordinary observant person for a period of 90 days or longer before the injury took place. 437 Mich 972 (1991). 182 Mich App 519; 453 NW2d 683 (1990). Paragraph 8 of plaintiff’s complaint alleges that the slip and fall was caused by an accumulation of "oil, grease, water and food” on the hallway floor of the correctional facility, and paragraph 10 alleges defendant allowed a defective or dangerous condition to exist, which consisted of “an accumulation of grease, oil, water, food or other slippery matter . . . .” MCL 691.1406; MSA 3.996(106), n 1 supra. The statute providing for governmental immunity from tort liability, MCL 691.1407; MSA 3.996(107), provides in pertinent part: (1) Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed. In Maki v East Tawas, 385 Mich 151; 188 NW2d 593 (1971), the Court held 1964 PA 170 to be unconstitutional as violative of the Title-Object Clause of Const 1963, art 4, § 24. In response, the Legislature amended the title of the act, but essentially maintained the body of the act. The title of the act, as amended by 1970 PA 155 and 1978 PA 141, states that it is An act to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in the exercise or discharge of a governmental function, for injuries to property and persons; to define and limit this liability; to define and limit the liability of the state when engaged in a proprietary function; to authorize the purchase of liability insurance to protect against loss arising out of this liability; to provide for defending certain claims made against public officers and paying damages sought or awarded against them; to provide for the legal defense of public officers and employees; to provide for reimbursement of public officers and employees for certain legal expenses; and to repeal certain acts and parts of acts. The other exceptions are not applicable to the present case. They concern maintenance of public highways, MCL 691.1402; MSA 3.996(102); operation of a government-owned motor vehicle by an officer or agent, MCL 691.1405; MSA 3.996(105); and performance of proprietary functions by government entities, MCL 691.1413; MSA 3.996(113). See also Jolly v St Clair, 428 Mich 860; 400 NW2d 597 (1987). Plaintiff did not allege that the dangerous condition arose out of a dangerous or defective condition of the building itself, hence we do not address that issue in this opinion. See Henkey v Grand Rapids, 185 Mich App 56, 57; 460 NW2d 271 (1990) ("The pertinent inquiry should not concern the genesis of the danger,” but rather the knowledge of the danger by the governmental entity).

Griffin, J. A statute which became law as the result of a vote of the people of Michigan prohibits the use of public funds to pay for an abortion unless the abortion is necessary to save the moth er’s life. We are required to decide whether that statute, § 109a of the Social Welfare Act, violates the equal protection guarantee of the Michigan Constitution. The trial court, following related decisions of the United States Supreme Court, found no constitutional violation. A divided panel of the Court of Appeals then reversed. The majority found that Michigan’s Equal Protection Clause offers greater protection than its federal counterpart and that § 109a impinges upon a state right to an abortion; thus, the majority concluded that § 109a does violate the Equal Protection Clause of the Michigan Constitution. In reviewing the decision of the Court of Appeals, we emphasize the limited scope of the question presented. This case does not concern a woman’s right under the federal constitution to choose to terminate her pregnancy. That right, articulated for the first time in Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973), reh den 410 US 959 (1973), is not, nor could it be, restricted by our decision today. Rather, this case concerns whether § 109a exceeds the limits of equal protection established by our state constitution. We conclude that it does not and reverse the decision of the Court of Appeals. I As the result of an initiative petition, a legislative proposal which became § 109a was placed before, and adopted by, the Legislature in 1987. Thereafter, in response to a referendum petition, the measure was submitted to the electorate and approved by the voters in the 1988 election. Section 109a amended the Social Welfare Act, which provides authority for Michigan’s participation in the Medicaid program. Jointly funded by the federal government and state governments that choose to participate, the Medicaid program provides reimbursement for medical services to needy persons. The costs of nearly all medically appropriate services required by qualified participants are reimbursed through the Medicaid program. One exception is reimbursement for abortion. In 1976, Congress passed the first of the so-called Hyde Amendments, which prohibited the use of federal funds to pay for the costs of an abortion under the Medicaid program unless the abortion was neces sary to save the life of the pregnant woman. After federal funding for Medicaid abortions was withdrawn, Michigan provided one hundred percent of the funds required until § 109a became effective. Section 109a provides: Notwithstanding any other provision of this act, an abortion shall not be a service provided with public funds to a recipient of welfare benefits, whether through a program of medical assistance, general assistance, or categorical assistance or through any other type of public aid or assistance program, unless the abortion is necessary to save the life of the mother. It is the policy of this state to prohibit the appropriation of public funds for the purpose of providing an abortion to a person who receives welfare benefits unless the abortion is necessary to save the life of the mother. [MCL 400.109a; MSA 16.490(19a).] This lawsuit was filed against two state officials responsible for administration of the Medicaid program. At the time of the filing of their complaint, plaintiffs Jane Doe and her mother, Nancy Doe, were indigent women eligible to receive medical assistance through the state’s Medicaid program. Their complaint alleged that Jane Doe, then fifteen years old, had become pregnant when she was raped in January 1989. Nancy Doe requested medical assistance for a first trimester abortion for her daughter to protect her daughter’s physiological and psychological health. According to the complaint, Jane Doe had been affected periodically by an unspecified seizure disorder, and it was feared that her pregnancy would aggravate the disorder. In addition, both Jane Doe and her mother believed that an abortion would reduce the emotional trauma associated with the pregnancy. However, neither the plaintiffs nor Jane Doe’s physician represented that an abortion was necessary to save Jane Doe’s life. In accordance with § 109a, the Michigan Department of Social Services refused to pay for the requested abortion. That refusal prompted this lawsuit. In the complaint, plaintiffs maintained that § 109a violates the Michigan Constitution, specifically its Equal Protection, Due Process, and Civil Rights Clauses, as well as a claimed right to privacy. As relief, plaintiffs sought a declaratory judgment and a permanent injunction prohibiting enforcement of § 109a. After minimal discovery, defendants filed a motion for summary disposition. The trial court, relying on People v Bricker, 389 Mich 524; 208 NW2d 172 (1973), and citing two United States Supreme Court cases, Harris v McRae, 448 US 297; 100 S Ct 2671; 65 L Ed 2d 784 (1980), reh den 448 US 917 (1980), and Maher v Roe, 432 US 464; 97 S Ct 2376; 53 L Ed 2d 484 (1977), ruled that § 109a does not violate the Michigan Constitution. Thus, it granted the motion for summary disposition and dismissed the suit. Thereafter, a divided panel of the Court of Appeals reversed, 187 Mich App 493; 468 NW2d 862 (1991), and this Court then granted leave to appeal. 437 Mich 1047 (1991). II Our state constitution declares that "[n]o person shall be denied the equal protection of the laws . . . .” The wording of the parallel clause in the federal constitution is almost identical. It provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws.” In this case, plaintiffs complain that § 109a accords unequal treatment between two classes of Medicaid-qualified, pregnant women — those who choose childbirth and those who choose abortion. The women who choose childbirth receive reimbursement for medical expenses related to childbirth, while those who choose abortion receive no reimbursement for the expenses related to abortion. Of course, it is well established that even if a law treats groups of people differently, it will not necessarily violate the guarantee of equal protection. Neither constitution has been interpreted to require "absolute equality.” San Antonio Independent School Dist v Rodriguez, 411 US 1, 24; 93 S Ct 1278; 36 L Ed 2d 16 (1973), reh den 411 US 959 (1973). Likewise, it is well established that the equal protection guarantee is not a source of substantive rights or liberties; rather, it is a measure of our constitution’s tolerance of government classification schemes. Id., 411 US 58 (Stewart, J., concurring). Thus, when legislation is challenged as violative of the equal protection guarantee under either constitution, it is subjected to judicial scrutiny to determine whether the goals of the legislation justify the differential treatment it authorizes. As the Court of Appeals panel concedes, in deciding such cases the appellate courts of this state have employed a mode of analysis similar to that which has been developed by the United States Supreme Court. 187 Mich App 510. Generally speaking, legislation challenged on equal protection grounds is accorded a presumption of constitutionality, and it is reviewed by applying a rational basis standard. Shavers v Attorney General, 402 Mich 554, 613; 267 NW2d 72 (1978). Under that standard, a statute will not be struck down if the classification scheme it creates is rationally related to a legitimate governmental purpose. Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975). On the other hand, in two situations the equal protection guarantee is less tolerant of legislation that creates a classification scheme — when the classification is based upon suspect factors (such as race, national origin, or ethnicity), or when the legislation that creates the classification impinges upon the exercise of a fundamental right. Plyler v Doe, 457 US 202, 216-217; 102 S Ct 2382; 72 L Ed 2d 786 (1982), reh den 458 US 1131 (1982). In these situations, a higher standard of review, strict scrutiny, is applied. A statute reviewed under this strict standard will be upheld only if the state demonstrates that its classification scheme has been precisely tailored to serve a compelling governmental interest. Id. III While recognizing that plaintiffs base their case on the state constitution, we believe a brief review of the reasoning that underlies related decisions of the United States Supreme Court is instructive. In a series of cases, that Court has held that the Hyde Amendment and state statutes which restrict Medicaid funding of abortions do not violate the equal protection guarantee of the federal constitution. In Maher, the Court upheld a Connecticut statute that limited state funding to medically necessary abortions performed during the first trimester of pregnancy. A few years later, in Harris, the Court reaffirmed Maher and validated a version of the Hyde Amendment that allowed Medicaid abortion funding only when the mother’s life was in danger or when she had become pregnant as the result of rape or incest. Finally, in Williams v Zbaraz, 448 US 358; 100 S Ct 2694; 65 L Ed 2d 831 (1980), the Court upheld an Illinois statute that mirrors § 109a; it provided Medicaid funding for abortion only when the woman’s life was threatened by the pregnancy. Under its analysis, the Maher Court first determined that indigent women desiring abortions did not constitute a suspect class. After noting that no such suspect class had been recognized in earlier decisions, id. at 470-471, the Court found that the challenged legislation did not create a suspect classification even though the effect of the legislation fell upon those who could not pay: "[T]his Court has never held that financial need alone identifies a suspect class for purposes of equal protection analysis.” Id. at 471. Thus, the Court turned to the question whether the statute impinged upon the exercise of a fundamental right. The underlying fundamental right was the right of privacy as articulated in Roe v Wade, supra. In Beal v Doe, 432 US 438, 454; 97 S Ct 2366; 53 L Ed 2d 464 (1977), the Court declared that the right of privacy in the federal constitution includes "the abortion decision.” However, in Maher, the nature and scope of the right established in Roe was clarified. The Court said, "Roe did not declare an unqualified 'constitutional right to an abortion,’ as the District Court seemed to think. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy.” Maher, 432 US 473-474. The decision’s focus then shifted to the effect of the government’s refusal to fund an abortion on the woman’s freedom to choose. It concluded that a refusal by government to provide funding for an abortion did not interfere with the right of a woman to choose an abortion: The Connecticut regulation places no obstacles— absolute or otherwise — in the pregnant woman’s path to an abortion. An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut’s decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there. [Id. at 474.] The United States Supreme Court has held in other cases that a legislature’s election not to fund the exercise of a fundamental right does not impinge upon that right, Regan v Taxation with Representation, 461 US 540; 103 S Ct 1997; 76 L Ed 2d 129 (1983). For example, private schools, though constitutionally permitted, have never been entitled to support from the state under the Equal Protection Clause: "It is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must, as a matter of equal protection, receive state aid.” Norwood v Harrison, 413 US 455, 462; 93 S Ct 2804; 37 L Ed 2d 723 (1973). Moreover, abortion funding cannot be equated to situations where public funding is required because the government has monopoly control over the means of exercising a fundamental right. The government has no monopoly on the performance of abortions or on the means to pay for abortions. Private clinics perform abortions, and, as in Jane Doe’s case, private funds can be made available for that purpose. In determining that government’s failure to fund abortion does not impinge upon the exercise of a fundamental right, the Harris Court explained, "[I]t simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.” 448 US 316. Just because a pregnant woman may have the right to choose an abortion does not mean that she has a right to have the government pay for it. Because in these cases the Court found no suspect classification and no impingement upon the exercise of a fundamental right, it applied the rational basis standard of scrutiny, i.e., whether the legislation is rationally related to a legitimate governmental interest. On this point, even the Roe Court acknowledged that the state has an "important and legitimate interest ... in protecting the potentiality of human life.” 410 US 162. And in Beal v Doe, 432 US 446, the Court recognized a "strong and legitimate [state] interest in encouraging normal childbirth.” In explaining the rational basis of a decision by government to provide funding for medically necessary services generally, but not for medically necessary abortions, the Court in Harris said: "Abortion is inherently different from other medical procedures, because no other pro cedure involves the purposeful termination of a potential life.” 448 US 325. Finally, the Court has emphasized that no burden is imposed upon the government to remain neutral regarding abortion: "[The right recognized in Roe] implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.” Maher, 432 US 474. For these and other reasons, the Court has concluded that legislation which provides funding for medical services generally, but not for abortions, is within the limits of the Equal Protection Clause of the federal constitution. As the Court of Appeals majority in this case candidly conceded, Clearly, if the issues presented were to be adjudicated under the federal constitution, whether under the Equal Protection or Due Process Clauses of the Fourteenth Amendment, or some "right of privacy” extracted from the First, Third, Fourth or Ninth Amendments, plaintiffs’ challenges to the constitutional validity of [§ 109a] would be rejected. [187 Mich App 522-523.] IV We turn now to an examination of the reasoning employed by a majority of the Court of Appeals panel in reaching its contrary conclusion under the Michigan Constitution. The panel’s analysis begins with a declaration that "our [state] Constitution affords a right to an abortion.” Id. at 508. Then, the panel proceeds to a conclusion, which it considers "dispositive in this case,” that § 109a is violative of the Equal Protection Clause of Const 1963, art 1, § 2. Id. at 510. The panel finds support for its decision in the following propositions: (1) that Michigan’s Equal Protection Clause provides greater protection than the federal Equal Protection Clause, (2) that Michigan courts are free to analyze state constitutional provisions differently than federal courts analyze federal constitutional provisions, and (3) that § 109a impinges upon a fundamental right under the Michigan Constitution, which triggers strict scrutiny. In due course, we shall examine, in turn, each of these propositions. First, however, we pause to comment briefly on the assertion that our state constitution includes the right to an abortion. A In this appeal, plaintiffs and supporting amici curiae have argued that a state constitutional abortion right should be inferred from previous decisions of this Court and of the Court of Appeals. For example, they rely on Advisory Opinion on Constitutionality of 1975 PA 227, 396 Mich 465, 504-505; 242 NW2d 3 (1976), wherein it was said, This Court has long recognized privacy to be a highly valued right. De May v Roberts, 46 Mich 160; 9 NW 146 (1881). No one has seriously challenged the existence of a right to privacy in the Michigan Constitution nor does anyone suggest that right to be of any less breadth than the guarantees of the United States Constitution. The United States Supreme Court has recognized the presence of constitutionally protected "zones of privacy.” Griswold v Connecticut, 381 US 479, 484; 85 S Ct 1678; 14 L Ed 2d 510 (1965); Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973). These zones have been described as being within "penumbras” emanating from specific constitutional guarantees. Often mentioned as a basis of the right to privacy are the 1st, 3rd, 4th, 5th, 9th and 14th Amendments to the United States Constitution. The people of this state have adopted corresponding provisions in art 1 of our Constitution. Plaintiffs also find support for a state constitutional right to abortion in the Court of Appeals decision in People v Nixon, 42 Mich App 332; 201 NW2d 635 (1972), remanded 389 Mich 809 (1973), On Remand, 50 Mich App 38; 212 NW2d 797 (1973). In Nixon, the Court determined that because Michigan’s criminal abortion statute was enacted to protect pregnant women from unsafe abortions, the statute became obsolete as advances in medical technology increased the safety of abortion for pregnant women. On the other hand, defendants respond that the conclusions drawn by the Court of Appeals in Nixon were dicta and have not been adopted by this Court. Indeed, defendants argue that a subsequent decision of this Court, People v Bricker, supra, overruled Nixon and established that no separate state right involving abortion exists. Further, defendants challenge reliance on Advisory Opinion on Constitutionality of 1975 PA 227, because that decision did not deal with abortion or any closely related subject, and because it was a decision with no precedential authority. Whatever the merit of these and other arguments available to both sides concerning the existence of a separate state right to an abortion, we find it is unnecessary to decide that issue in this case, given our conclusion with regard to the funding question. As the discussion that follows makes clear, even if it is assumed arguendo that a state constitutional abortion right coextensive with the federal right exists, we are able to conclude that § 109a does not violate the Michigan Constitution, just as the United States Supreme Court was able to uphold the denial of public funding in Maher and Harris, without need to question the validity of Roe. B To support its conclusion that § 109a is invalid, the Court of Appeals panel claims that the equal protection guarantee in our state constitution provides greater protection than the corresponding guarantee in the federal constitution. 187 Mich App 517. Specifically, the panel concludes that the Equal Protection Clause of our constitution was adopted for the purpose of "creating rights broader in scope than those afforded under its federal counterpart.” 187 Mich App 516. However, a review of the jurisprudence and constitutional history of this state suggests the opposite — that our Equal Protection Clause was intended to duplicate the federal clause and to offer similar protection. The Court of Appeals panel seeks to justify its expansive reading of our equal protection guarantee by pointing to textual differences between the 1908 and 1963 Constitutions, and by referring to the debates of the Constitutional Convention which preceded adoption of the 1963 Constitution. However, we are not persuaded by these considerations. While the 1908 Constitution was in effect, the only basis for a state guarantee of equal protection was found in a few words included in a broad statement concerning "Political Power” in art 2, § 1: "All political power is inherent in the people. Government is instituted for their equal benefit, security and protection.” (Emphasis added.) Despite this sparsity of words, the pre-1963 decisions of this Court ruled that equal protection rights under the state constitution were the same as under the federal constitution. See In re Fox Estate, 154 Mich 5; 117 NW 558 (1908), rev’d on other grounds 159 Mich 420; 124 NW 60 (1909); Naudzius v Lahr, 253 Mich 216, 222; 234 NW 581 (1931). Nevertheless, it is understandable that the delegates to the convention which produced the 1963 Constitution would have considered it appropriate to draft a more adequate statement to describe the equal protection rights to be secured. However, if it had been their purpose to create more or different rights than those encompassed in the federal Equal Protection Clause, surely they would not have chosen these words: "No person shall be denied the equal protection of the laws . . . .” Obviously, except for the adjustment necessary because they were drafting a state, rather than the federal, constitution, the language is essentially the same as the Equal Protection Clause of the Fourteenth Amendment, which provides: "No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” It is true that the delegates included in art 1, § 2 a second clause relating to civil rights: "nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin.” However, that a separate clause to provide explicit protection for civil rights was adopted in the midst of the civil rights movement, does not, in and of itself, suggest any purpose on the part of the delegates to broaden the scope of the preceding Equal Protection Clause. Accordingly, we do not find in the wording used, nor in its arrangement, any evidence of purpose on the part of the drafters to provide broader protection in the Equal Protection Clause of the state constitution than is found in its federal counterpart. Rather, the pattern suggests a deliberate effort to duplicate the protection secured by the federal clause. Furthermore, a careful examination of the record of the debates of the Constitutional Convention confirms this view. We note that when the Committee on Declaration of Rights, Suffrage, and Election offered its report recommending adoption of art 1, § 2, including the Equal Protection Clause as now worded, it was accompanied by a minority report proposing substitute language. The substitute focused, not on the Equal Protection Clause, but on the separate Civil Rights Clause. The amendments which would have expanded coverage of that clause were rejected, and the committee’s proposal was then adopted and ultimately became Const 1963, art 1, §2. To support its assertion that the framers of our constitution intended to provide broader equal protection rights than those secured by the federal constitution, the Court of Appeals majority makes only two references to the proceedings of the Constitutional Convention. First, it notes that the "convention comment to Const 1963, art 1, § 2 clearly stated, 'This is a new section.’ ” 187 Mich App 515. Second, it calls attention to a statement by the chairman of the Committee on Declaration of Rights, Suffrage, and Elections: "[T]here has been a distinct trend in recent State Constitutions to incorporate equal protection or civil rights clauses to apply to all persons as well as those singled out for special attention because of more apparent discrimination.” [Id. Emphasis added by the Court of Appeals.] It is unnecessary to take issue with either point to observe that the extent of support mustered from the convention proceedings is very thin. Furthermore, if the purpose of quoting the chairman was to suggest that the delegates intended our state’s Equal Protection Clause to be broader ("all persons”) than its federal counterpart, the argument misses its mark. The federal clause assures equal protection to "any person.” The portions of the convention debate that focused on equal protection do not support the analysis of the Court of Appeals majority. Rather, we draw from a reading of the convention record the firm conclusion that the delegates intended to affirm and incorporate the basic notions of equal protection that prevailed at the time. C In addition to concluding that our state’s equal protection guarantee is broader in scope than the federal guarantee, the Court of Appeals panel claims to have rejected "the method used by the United States Supreme Court in analyzing the federal Equal Protection Clause in favor of a different analysis of Michigan’s Equal Protection Clause.” Id. at 518. The panel states: Beyond our freedom to read our own state’s Equal Protection Clause more broadly than that of the United States Constitution, we are also free to reject the method used by the United States Supreme Court in analyzing the federal Equal Protection Clause in favor of a different analysis of Michigan’s Equal Protection Clause. See [City of Mesquite v] Aladdin’s Castle, Inc, 455 US [283] 293 [102 S Ct 1070; 71 L Ed 2d 152 (1982)]. [Id][ ] Despite this assertion, the Court of Appeals actually accepts the basic framework for equal protection analysis as developed by the United States Supreme Court: As the United States Supreme Court has acknowledged, and we find equally true under our state constitution, the Equal Protection Clause, like the Due Process Clause, "is not susceptible of exact delimitation. No definite rule in respect of either, which automatically will solve the question in specific instances, can be formulated.” Although the "equal protection” provision of our constitution is not a clause with precise definition, we recognize it can be violated by legislation that either affects a fundamental interest, as in this case, or creates a suspect classification, and that cannot be justified by any compelling interest of the state. In a case that does not involve a fundamental interest or a suspect class', a determination whether the legislation violates the Equal Protection Clause is made under the rational basis test, which requires that the party challenging the statute show it is without reasonable justification. [187 Mich App 510-511. Citations omitted.] There is no suggestion by the panel that equal protection claims should not be reviewed using this framework, nor is any alternative framework proposed. Moreover, even though it claims that it is employing a method of equal protection analysis distinct from that used by the United States Supreme Court, the panel scrutinizes § 109a under Michigan’s Equal Protection Clause just as the Supreme Court scrutinized abortion funding restrictions under the federal Equal Protection Clause. Because § 109a is alleged to create a classification scheme that treats some indigent women differently than others, the panel first determines the appropriate level of judicial scrutiny to apply. To determine if strict scrutiny is to be applied, the panel inquires whether § 109a impinges upon the exercise of a fundamental right. Again, the panel follows the Supreme Court; it analyzes the effect of § 109a on the "right to procreative choice.” Id. at 523. It is in analyzing the effect of a funding restriction on the right of procreative choice that the Court of Appeals majority disagrees with the United States Supreme Court. In contrast to that Court, the panel concludes that § 109a does impinge upon the exercise of the right to choose an abortion: [I]f [a Medicaid-qualified pregnant] woman chooses to have an abortion, even where medically necessary or required to terminate a pregnancy resulting from rape or incest, § 109a directly prevents the state from providing funds for that care. It is the woman’s exercise of one fundamental right — the right to an abortion — which triggers § 109a’s restrictions. Her right to bear the child is not similarly impinged upon. We recognize that, while the woman’s indigency also acts as a barrier to her freedom of choice, the state is not required to remedy that condition. But the state itself, by adoption of § 109a, has created a direct barrier to the woman’s exercise of her right to an abortion. There is thus an inequality within the program, with the distinction based on an indigent pregnant woman’s exercise of an option which the constitution vouchsafes to her individually. If she exercises her constitutional right to abortion, she is excluded from a program for which she is otherwise qualified; if she elects not to exercise that constitu tional option, she may continue to receive the benefits of this statutory program. [Id. at 524.] Having determined that § 109a does impinge upon the exercise of a fundamental right under the Michigan Constitution, the panel then applies strict scrutiny. Predictably, it concludes that § 109a cannot meet this demanding level of review and strikes down the section. Obviously, the critical element in the panel’s analysis is not its purported rejection of basic equal protection analysis as developed by the United States Supreme Court, but its conclusion that § 109a impinges upon the right to choose an abortion. We agree with the panel that the Equal Protection Clause would require strict scrutiny of § 109a if the section were to impinge upon the exercise of a fundamental right. Thus, we turn to the question whether § 109a impinges upon the exercise of a fundamental right in the Michigan Constitution. D The Court of Appeals majority concludes that § 109a directly interferes with the exercise of a woman’s right to choose an abortion. 187 Mich App 524. It appears that the basis of this conclusion is an assumption that Medicaid-qualified women have an entitlement to funds for an abortion. Although the panel does not actually state that such an entitlement exists, it at least suggests such an entitlement when it compares the situation of Medicaid-qualified women before and after adoption of § 109a. The panel notes that ”[b]efore the enactment of § 109a, all Michigan women, rich and poor alike, were able to exercise [their right of procreative choice].” Id. at 523. However, the panel continues, after the enactment of § 109a, benefits once offered are taken away so "the state itself, by adoption of § 109a, has created a direct barrier to the woman’s exercise of her right to an abortion.” Id. at 524. In addition, the panel asserts that when a Medicaid-qualified woman elects to have an abortion, she is "excluded from a program for which she is otherwise qualified . . . .” Id. We disagree. In the absence of some burden on the government to provide funds for the exercise of a right, a decision by the Legislature not to fund the exercise of a right is distinct from a legislative action that impinges upon that right. Regan v Taxation with Representation, 461 US 549. Likewise, even where the state has previously funded the exercise of a right, it is not required to continue such funding. See Atkins v Parker, 472 US 115; 105 S Ct 2520; 86 L Ed 2d 81 (1985). For public policy reasons, the state may choose to eliminate benefits that it previously offered. Thus, when the state offers a particular benefit to persons receiving public assistance, it retains the "power to substitute a different, less valuable entitlement at a later date. . . . '[A] welfare recipient is not deprived of due process when the legislature adjusts benefit levels.’ ” Atkins, 472 US 129-130. See also Saxon v Dep’t of Social Services, 191 Mich App 689; 479 NW2d 361 (1991), lv den 439 Mich 884 (1991). Clearly, the right involved in this case is not a right to continue to receive funds that were offered in the past; rather, it is the right to choose an abortion without unduly burdensome government interference. Like the United States Supreme Court, we do not see how a decision to offer funds only for childbirth takes away any of the choices that would be available to an indigent woman if the state did not offer funds for childbirth. It maybe that in the absence of state funding her indigency acts as a barrier to choosing abortion, but "[a]n indigent woman who desires an abortion suffers no disadvantage as a consequence of [Michigan’s] decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires.” Maher, 432 US 474. Similarly, an indigent woman who desires an abortion is not excluded from the Medicaid program. Whether a Medicaid-qualified woman wants to terminate her pregnancy or to carry her fetus to term, she is treated in the same way that any other Medicaid-qualified pregnant woman is treated: she is offered reimbursement for the expenses of childbirth, but not for the expenses of an abortion. Further, we do not find that an offer to fund childbirth impermissibly influences the procreative decisions of an indigent woman. The state’s election to subsidize childbirth does not coerce a woman into forfeiting her right to choose an abortion any more than the state’s election to subsidize public schools coerces parents into forfeiting their right to send their children to private schools. See Norwood v Harrison, supra. As with the decision to fund public schools, the state may have made childbirth a more attractive option by paying for it, but it has imposed no restriction on obtaining an abortion that was not already there. Maher, 432 US 474. For these reasons, we disagree with the Court of Appeals and conclude that the state’s decision to fund childbirth, but not abortion, does not impinge upon the exercise of a fundamental right provided by the Michigan Constitution. v Having determined that § 109a does not impinge upon the exercise of a fundamental right, we hold that the Court of Appeals erred when it subjected § 109a to strict scrutiny. Because § 109a does not impinge upon the exercise of a fundamental right, and because, at least with respect to the funding of abortions, our equal protection guarantee does not offer greater protection than the federal equal protection guarantee, the proper standard of review is the rational basis test as articulated earlier. Like the United States Supreme Court, we conclude that § 109a is rationally related to a legitimate governmental purpose. Contrary to the suggestion of the Court of Appeals, there is no constitutional obligation on the state to remain neutral regarding abortion any more than there is an obligation on the state to remain neutral regarding the exercise of other fundamental rights. The state has a legitimate interest in protecting potential life, and it has a legitimate interest in promoting childbirth. Equally important, the Legislature has a legitimate interest in allocating state benefits in a way that reflects its determination of the public policy of the state. Our constitution does not require that we have a government without values; it requires only that, in the pursuit of certain values, our government will not improperly interfere with the exercise of fundamental rights. Because no medical procedure besides abortion involves the deliberate termination of fetal life, and because of the high cost of childbirth and the relatively lower cost of abortion, it is rational for the state to pursue its legitimate interests by paying for childbirth, but not abortion. In reaching this decision, we are cognizant of plaintiffs’ argument that "[t]he sentiment of the legislature, or, in fact, of the electorate, with regard to a given issue does not change the role of the judiciary.” Similarly, we agree with the Court of Appeals that "[t]he legislative power of the people, through the initiative and referendum, does not give any more force or effect to voter-approved legislation than to other legislative acts . . . .” 187 Mich App 527. Just as important, however, is the principle that the limits of legislative power are defined by our federal and state constitutions, not by the sentiment of the judiciary. Marbury v Madison, 5 US (1 Cranch) 137; 2 L Ed 60 (1803). Thus, as we previously have observed, "[t]hat the legislative solution appears undesirable, unfair, unjust or inhumane does not of itself empower a court to override the legislature and substitute its own solution.” Manistee Bank & Trust Co, 394 Mich 666-667. Whatever the circumstances surrounding the adoption of § 109a, we are unable to find any basis in the history or text of our constitution that would support the conclusion of the Court of Appeals. For these reasons, we hold that the Equal Pro tection Clause of our constitution permits the state to fund the expenses of childbirth even though the state does not fund abortions. The decision of the Court of Appeals is reversed. Cavanagh, C.J., and Levin, Beickley, and Riley, JJ., concurred with Griffin, J. MCL 400.1 et seq.; MSA 16.401 et seq. The 1963 Constitution contains two clauses relating to equal protection. Art 1, § 1 states, "[a]ll political power is inherent in the people. Government is instituted for their equal benefit, security and protection.” Art 1, § 2 states, ''[n]o person shall be denied the equal protection of the laws . . . .” These provisions will be referred to as the Equal Benefit Clause and the Equal Protection Clause, respectively. In the circuit court, the plaintiffs alleged several constitutional violations — violations of the Due Process Clause (art 1, § 17), the right of privacy (art 1, § 23), the right of equal protection of the laws (art 1, §§ 1, 2), and the right of protection of civil rights (art 1, § 2). US Const, Am XIV, § 1. 187 Mich App 493; 468 NW2d 862 (1991). The powers to propose laws, and to approve or disapprove laws enacted by the Legislature are reserved to the people by Const 1963, art 2, § 9. Pursuant to MCL 168.471 et seq.; MSA 6.1471 et seq., the initiative petition was filed with the Secretary of State on April 30, 1987. The petition was certified on June 12, 1987, by the Board of Canvassers and submitted to the Legislature as 1987 PA 59. 1987 PA 59 was enacted by the Legislature on June 23, 1987; however, before it became effective, a second petition was presented to the Secretary of State to have 1987 PA 59 placed on the ballot and subjected to a referendum vote of the people. This petition was certified by the Board of Canvassers, and 1987 PA 59 was placed on the November 1988 ballot. The Medicaid program was established by Congress in 1965 as part of the Social Security Act. 42 USC 1396 et seq. See 42 USC 1396d(b). PL 94-439, § 209, 90 Stat 1434. Subsequent versions of the Hyde Amendment have been enacted by Congress. One version was upheld by the United States Supreme Court. See Harris v McRae, 448 US 297, 302-303; 100 S Ct 2671; 65 L Ed 2d 784 (1980), reh den 448 US 917 (1980), discussed below. Several organizations and a number of individuals were allowed to intervene as defendants. The identity of the plaintiffs was revealed to the trial court in camera. MCR 2.116(0(10). Within hours of the trial court’s ruling, Jane Doe received an abortion paid for with donated private funds. Although her abortion may render the case moot, we consider it appropriate to decide this case. "A disposition based on mootness is not required where the underlying conduct is capable of repetition, yet evades review.” Mead v Batchlor, 435 Mich 480, 487; 460 NW2d 493 (1990). In addition, this case raises an issue of sufficient public importance that a decision on the merits is warranted. Id. Const 1963, art 1, § 2. US Const, Am XIV, § 1. The Fifth Amendment has been interpreted to contain an equal protection component that is applied to the federal government. Harris, supra, 448 US 321. For example, see Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975). See also Fox v Employment Security Comm, 379 Mich 579; 153 NW2d 644 (1967); Alexander v Detroit, 392 Mich 30; 219 NW2d 41 (1974). Although these two tiers of review have been the basis of most equal protection analysis, there are cases in which the courts have used a middle tier of heightened scrutiny. This middle tier requires that the challenged classification scheme further a substantial governmental interest. Plyler, 457 US 217. Typically, this middle tier has been applied to classifications based on gender or mental capacity. See, for example, Craig v Boren, 429 US 190; 97 S Ct 451; 50 L Ed 2d 397 (1976), reh den 429 US 1124 (1977). However, it has not been so restricted. See Plyler v Doe; Metro Broadcasting v FCC, 497 US 547; 110 S Ct 2997; 111 L Ed 2d 445 (1990). See also Manistee Bank & Trust Co, supra. See also Beal v Doe, 432 US 438; 97 S Ct 2366; 53 L Ed 2d 464 (1977). PL 96-123, § 109, 93 Stat 926. Typically, the Court will look for some "indicia of suspectness.” These indicia include a history of purposeful unequal treatment or a degree of political powerlessness that commands extraordinary protection from the majoritarian political process. San Antonio School Dist, 411 US 28. In Regan, the denial of tax-exempt status for a nonprofit corporation was upheld because the corporation intended to devote substantial amounts of its time to lobbying. The Court held that there was no obligation on Congress to support the corporation’s lobbying with a tax exemption, even though the right to lobby the government is fundamental. See, for example, Boddie v Connecticut, 401 US 371; 91 S Ct 780; 28 L Ed 2d 113 (1971). In Boddie, the Court struck down a court fee which precluded indigent women from going into court,to obtain a divorce. Because the state court system was the only system empowered to dissolve marriages, the fee was found to violate due process requirements. Jane Doe’s case more closely resembles Kadrmas v Dickinson Public Schools, 487 US 450, 460; 108 S Ct 2481; 101 L Ed 2d 399 (1988). In Kadrmas, a school district in North Dakota ended its policy of providing free transportation to school and began charging a fee for bus service. The plaintiffs, a family living near the poverty line, complained that the fee was unconstitutional because it placed a greater obstacle to education in the path of the poor than in the path of wealthier families. Finding that North Dakota had neither a legal nor a practical monopoly on the means of transporting children to school, the Court rejected the argument: "The Constitution does not require that [bus] service be provided at all, and it is difficult to imagine why choosing to offer the service should entail a constitutional obligation to offer it for free.” 487 US 462. The panel also asserts that the state is without a compelling interest to satisfy strict scrutiny. Although we do not here focus separately on this point, it will be discussed in the analysis which follows. MCL 750.14; MSA 28.204. The statute provides, Any person who shall wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony, and in case the death of such pregnant woman be thereby produced, the offense shall be deemed manslaughter. In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed. Given our reversal of the Court of Appeals decision on the dispositive funding question, and without intimating any view regarding the merits, we vacate, and direct that no precedential weight is to be accorded, the discussion and conclusion in the Court of Appeals opinion regarding the underlying issue of a state constitutional right to abortion. Moreover, in its opinion the Court of Appeals majority makes clear that its decision rests solely on the Equal Protection Clause of Const 1963, art 1, § 2, and not on the succeeding Civil Rights Clause. 187 Mich App 534-535. 1 Official Record, Constitutional Convention 1961, pp 740-741. This conclusion is supported by earlier decisions of this Court and of the Court of Appeals. See, e.g., Moore v Spangler, 401 Mich 360, 370; 258 NW2d 34 (1977); Fox v Employment Security Comm, n 18 supra at 588; Roy v Rau Tavern, Inc, 167 Mich App 664, 667; 423 NW2d 54 (1988); Doster v Estes, 126 Mich App 497, 512; 337 NW2d 549 (1983); cf. NAACP v Dearborn, 173 Mich App 602, 613-614; 434 NW2d 444 (1988). It is true, as the Court of Appeals majority has stated, that " '[t]he United States Supreme Court does not have a monopoly on correct constitutional interpretation.’ ” 187 Mich App 518 (citation omitted). Of course, this Court has the authority to determine that a provision in our state constitution should be interpreted or applied differently than a parallel provision in the federal constitution. City of Mesquite v Aladdin’s Castle, Inc, supra at 293; People v Thompson, 424 Mich 118, 125; 379 NW2d 49 (1985); Delta Charter Twp v Dinolfo, 419 Mich 253; 351 NW2d 831 (1984). However, in certain cases where textual similarities and historical considerations have pointed to a common meaning, this Court has seen fit to adopt a construction given by the United States Supreme Court to a parallel provision in the federal constitution in the absence of compelling reason to impose a different interpretation. See, e.g., People v Nash, 418 Mich 196; 341 NW2d 439 (1983); People v Catania, 427 Mich 447; 398 NW2d 343 (1986); People v Collins, 438 Mich 8; 475 NW2d 684 (1991). The panel does not suggest that § 109a creates a suspect class, which also would trigger strict scrutiny. See, for example, Bob Jones Univ v United States, 461 US 574; 103 S Ct 2017; 76 L Ed 2d 157 (1983). Of course, the state’s decision to subsidize childbirth cannot be characterized simply as an attempt to encourage women to choose childbirth instead of abortion. As Professor McConnell explains in his article, The selective funding problem: Abortions and religious schools, 104 Harv L R 989, 1011-1012 (1991): [T]he medical services involved in childbirth serve a function beyond "terminating pregnancy” and improving the mother’s health. They are more than just a substitute for abortion; they are also a means of caring for a child. While the appropriate way to deal with pregnancy is a controverted issue, everyone agrees that if a child is to be born, the birth should be completed as safely as possible. Medical services at birth should be understood as part of a network of government-funded social services for the benefit of children .... 187 Mich App 531. Because the Court of Appeals found that § 109a violated the Equal Protection Clause, it did not address the other constitutional arguments advanced by plaintiffs. Plaintiffs have not renewed their other constitutional claims before this Court; however, we conclude that those claims would not affect our decision today. We review due process claims using substantially the same standards as we use to review equal protection claims. Shavers v Attorney General, 402 Mich 612-613. Further, our analysis under the Equal Protection Clause incorporates the claim that a woman’s privacy right is violated by § 109a.

The request to answer the questions certified by the United States District Court for the Eastern Distrist of Michigan is declined.

Per Curiam. The question presented is whether an automobile insurance policy, providing both uninsured motorist coverage and underinsured motorist coverage, with a $50,000/$100,000 policy limit for each coverage, limits the liability of the insurer to a total of $50,000/$100,000, as the insurer contends, or instead provides, as the insured contends, separate $50,000/$100,000 limits where the injury or death is occasioned by the combined negligence of an uninsured driver and an under-insured driver. We agree with the insurer that the total liability under the policy is limited to $50,000/$100,000, without regard to whether the injury or death is caused by one or more uninsured drivers, one or more underinsured drivers, or both uninsured and underinsured drivers. The decision of the Court of Appeals is reversed, and the decision of the circuit court granting summary disposition for the insurer is reinstated. i Christopher Boissonneault was killed in a multivehicle accident. The driver of the automobile in which Boissonneault was riding while drag racing with another automobile ran a stop sign and collided with a third vehicle. The automobile in which Boissonneault was riding was under- insured. The other automobile involved in the race was uninsured. Boissonneault was covered by an automobile insurance policy written by the plaintiff, Auto-Owners Insurance Company. The policy provided uninsured motorist coverage. An endorsement "extended” the coverage to accidents with under-insured motorists. The declarations page stated identical liability limits of $50,000 per person, and $100,000 per occurrence, for each coverage. The declarations page also stated, a premium of $6 for the uninsured motorist coverage and a separate premium of $3 for the underinsured motorist coverage. Linda D. Boissonneault, as personal representative of the decedent, claimed the right to recover $50,000 under the uninsured motorist coverage, and an additional $50,000 under the underinsured motorist coverage. Auto-Owners commenced this action, seeking a declaration that the underinsured motorist coverage was an extension of the uninsured motorist coverage and that Auto-Owners’ liability to the decedent’s estate was limited to $50,000. The circuit court granted Auto-Owners’ motion for summary disposition. The Court of Appeals reversed, stating: Although the [policy] language clearly provides that underinsured coverage is an "extension” of uninsured coverage, the term "extension” is not defined. Further, there is nothing in the policy, or in the record, to indicate that the use of the term precludes simultaneous maximum coverage under both provisions.[ ] II Boissonneault stresses that the declaration page provides separate premiums, $6 for uninsured motorist coverage and $3 for underinsured motorist coverage, and reasons that the policy therefore provides separate $50,000 liability limits. We agree that the uninsured and underinsured coverages are separate — uninsured motorist coverage, at least, can be purchased without the purchase of underinsured motorist coverage. It is a separate question whether a separate or additional policy limit of $50,000 is provided, or, rather, whether the total limit of the insurer’s liability is $50,000. If . both vehicles involved in the accident were, as was the vehicle in which Boissonneault was riding, underinsured, the total limit of liability would indisputably be $50,000. Similarly, if the vehicle in which Boissonneault was riding was uninsured, as was the other vehicle involved in the accident, the total limit of liability would, again, indisputably be $50,000. We are of the opinion that a reasonable policyholder would not expect that the policy would provide for recovery of an additional $50,000 by reason of the happenstance that the accident involved both an uninsured vehicle and an underinsured vehicle, rather than two uninsured or two underinsured vehicles. Reversed and remanded to the circuit court. Cavanagh, C.J., and Levin, Brickley, Boyle, Griffin, and Mallett, JJ., concurred. Riley, J., concurred only in the result. The automobile insurance policy covering the automobile in which Boissonneault was a passenger provided bodily injury liability limits of $20,000 per person and $40,000 per occurrence. Three persons were killed in the accident. This coverage was described in the policy’s insuring agreements, part i ("coverages”), subpart d ("uninsured motorist”), and provided that Auto-Owners agreed [t]o pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, arising out of the ownership, maintenance or use of such uninsured motor vehicle; provided [that], for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the Company or, if they fail to agree, by arbitration. This endorsement was headed "underinsured motorist coverage,” and provided: In consideration of the premium at which this policy is written, it is hereby agreed that Uninsured Motorist Coverage is extended to bodily injury, sickness or disease, including death resulting therefrom, sustained by the insured and arising out of the ownership, maintenance or use of an automobile with respect to which a bodily injury liability bond or insurance policy is applicable at the time of the accident but which provides lower limits of liability than those specified in the Declarations hereof; provided that with respect to this extension, the Company’s liability shall be limited to (1) the amount by which the limits stated in the Declarations hereof exceed the total limits of all bodily injury bonds or insurance policies applicable to the person or persons responsible for the damages, and (2) such damages are in excess of the total limits of all such bodily injury bonds or insurance policies. All terms and conditions applicable to Uninsured Motorist Coverage are applicable to this extension. 182 Mich App 375, 380-381; 451 NW2d 635 (1990).

On order of the Court, the Court, on its own motion, amended paragraph 1, part iv, to read as follows: We turn now to the question whether enforcement of the township’s ordinance amounts to an unconstitutional regulatory taking. As already indicated, that inquiry requires us to consider whether the challenged ordinance substantially advances a legitimate governmental interest and, if so, whether it denies the owners economically viable use of their land. Nollan, supra, 483 US 825. [438 Mich 385, 397-398 (1991).]

Levin, J. The question presented concerns the scope of administrative appellate review by the Workers’ Compensation Appellate Commission of a decision of a magistrate, and the scope of judicial appellate review on leave granted by the Court of Appeals or this Court. We conclude that the wcac did not, on administrative appellate review, exceed its authority in reversing the decisions of the magistrates and in awarding benefits, and that the Court of Appeals panel in Holden erred in reversing, and the panel in Weiss did not err in affirming, the wcac. I Before the reforms enacted in 1985, hearings in workers’ compensation cases were conducted by a referee, also referred to as an administrative law judge, with de novo review by the Workers’ Compensation Appeal Board. Judicial review was obtainable on application, not as of right, in the Court of Appeals and this Court. In an effort to address the large number of backlogged appeals, the Department of Labor considered proposals for changes in the administrative appellate review process. In 1980, the Lesinski Report, summarizing the results of the department’s Workers’ Compensation Adjudication Project, proposed that decisions of a magistrate be made conclusive "unless fraudulently obtain[ed] or contrary to the great weight of the evidence.” No procedural reform legislation was, however, enacted. In 1984, Theodore J. St. Antoine, the Governor’s Special Counsel on Workers’ Compensation, recommended significant changes in the decision-making process. Like the Lesinski Report, St. Antoine recommended that de novo review of the hearing officer’s decision be eliminated. He proposed that the question, on administrative appellate review, should be whether the decision of the hearing officer is supported by "substantial . . . evidence on the whole record.” He said that this standard was "deliberately designed to allow the Appeal Board a bit more latitude” than it would have had under the "great weight of the evidence” standard proposed in the Lesinski Report. St. Antoine said this would enable the reviewing panel to "remedy any serious misstep by [a hearing officer] in assessing the evidence and making factual findings.” St. Antoine’s proposals were in general adopted by the Legislature when it enacted 1985 PA 103. Magistrates replaced referees, and the wcac replaced the wcab. A Under Act 103, beginning October 1, 1986, de novo review was eliminated. Henceforth, findings of fact by a workers’ compensation magistrate were to be considered conclusive, on administrative appellate review by the wcac, if supported by "competent, material, and substantial evidence on the whole record.” MCL 418.861a(3); MSA 17.237(861a)(3). This substantial evidence standard provides for administrative appellate review more deferential to the hearing officer’s decision than de novo review, but for more searching review by the wcac than judicial review under the "any evidence standard.” The constitution provides for such limited judicial review: Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law. [Const 1963, art 6, § 28.] Act 103 did not change the standard for judicial review of final decisions in workers’ compensation proceedings. The Legislature had provided, under former law, that it was the findings of fact made by the wcab that were to be conclusive on judicial appellate review, in the absence of fraud. Act 103 provides that the findings of fact made by the wcac, not the findings of the magistrate, are to be conclusive, on judicial appellate review, in the absence of fraud. The Legislature, by employing the language of the constitution in stating that the fact finding of the wcac is final subject to limited judicial review, made clear that judicial review by the Court of Appeals or this Court of a wcac decision is to be of the findings of fact made by the wcac and not the findings of fact made by the magistrate. And the findings of fact made by the wcac are conclusive if there is any competent evidence to support them. As under prior law, judicial review is obtainable on application, not as of right, to the Court of Appeals and this Court. B The substantial evidence standard, like the standard for judicial appellate review, is rooted in Const 1963, art 6, § 28, which provides that administrative agency decisions subject to judicial review following a hearing shall be minimally reviewed to determine whether the decision is "supported by competent, material and substantial evidence on the whole record.” (Emphasis added.) As originally introduced in the Senate, the 1985 legislation would not have defined what constitutes "substantial evidence on the whole record.” The House Substitute, which became Act 103, retained the "substantial evidence on the whole record” standard, but added definitions of "substantial evidence” and "whole record” taken from MERC v Detroit Symphony Orchestra, Inc, 393 Mich 116; 223 NW2d 283 (1974), where this Court considered the meaning of "substantial evidence” in the context of judicial review of findings of fact by the Michigan Employment Relations Commission pursuant to the labor mediation act. The House Substitute also added language, again taken from Detroit Symphony, providing that the wcac’s review of a magistrate’s decision should include both a "qualitative and a quantitative” analysis of the evidence to ensure a full, thorough, and fair review. As enacted, the "substantial evidence on the whole record” standard largely parallels the description of substantial evidence in MERC v Detroit Symphony Orchestra. The statute provides that findings of fact made by a magistrate shall be considered "conclusive by the commission if supported by competent, material, and substantive evidence on the whole record”: —" '[Substantial evidence’ means such evidence, considering the whole record, as a reasonable mind will accept as adequate to justify the conclusion.” (Emphasis added.) —" '[W]hole record’ means the entire record of the hearing including all of the evidence in favor and all the evidence against a certain determination.” (Emphasis added.) —Wcac review of the evidence "shall include both a qualitative and quantitative analysis of that evidence and ensure a full, thorough, and fair review thereof.” (Emphasis added.) —The wcac "may adopt, in whole or in part, the order and opinion of the worker’s compensation magistrate as the order and opinion of the commission.” (Emphasis added.) In apparent recognition of the difference between judicial appellate review of an administrative agency’s decision, and administrative appellate review by the wcac of a magistrate’s decision, the Legislature did not enact, as part of the substantial evidence standard for workers’ compensation administrative appellate review purposes, the merc language that review by the wcac is to be "undertaken with considerable sensitivity” to provide "due deference to administrative expertise” and to avoid displacing a "choice between two reasonably differing views.” MERC v Detroit Symphony Orchestra, supra, p 124. C The question on judicial appellate review is, in each case, whether the wcac acted in a manner consistent with the concept of administrative appellate review that is less than de novo review in finding that the magistrate’s decision was or was not supported by competent, material, and substantial evidence on the whole record. In judging, on judicial appellate review, whether the wcac acted .properly, this Court and the Court of Appeals begin with the words of the Legislature. This Court and the Court of Appeals consider whether there are issues of credibility of live witnesses to be determined by the magistrate, the evidence considered and ignored by the magistrate and the wcac, the care taken by the magistrate and the wcac, and the reasoning and analysis of the magistrate and the wcac. We agree with the Court of Appeals in Weiss that the stringent constitutional and statutory limitations on judicial appellate review suggest that some latitude must be given the wcac, should it find that the magistrate’s findings of fact are not supported by "competent, material, and substantial evidence on the whole record,” if there is to be any effective appellate review, administrative or judicial, at all. And that if the appellate courts were not to allow such latitude to the wcac, they would find that they were increasingly called upon to perform the appellate reviewing function so that there would be effective appellate review at some level. Due deference should be given to the administrative expertise of the wcac, as well as to the administrative expertise of the magistrate. Recognition that a wcac panel brings to the table the administrative expertise of more than one person may, depending on the factual or legal issue, be appropriate. A carefully constructed opinion by the wcac enables the Court of Appeals and this Court to determine whether the wcac duly recognized and observed the limitations on its reviewing function contemplated by the substantial evidence stan dard. If the opinion is carefully constructed, a reviewing court should ordinarily defer to the collective judgment of the wcac unless it is manifest that it exceeded its reviewing power. We do not now offer a judicial standard in exegesis of the legislatively stated standard. If it appears on judicial appellate review that the wcac carefully examined the record, was duly cognizant of the deference to be given to the decision of the magistrate, did not "misapprehend or grossly misapply” the substantial evidence standard, and gave an adequate reason grounded in the record for reversing the magistrate, the judicial tendency should be to deny leave to appeal or, if it is granted, to affirm, in recognition that the Legislature provided for administrative appellate review by the seven-member wcac of decisions of thirty magistrates, and bestowed on the wcac final fact-finding responsibility subject to constitutionally limited judicial review. II In Holden, the magistrate denied death benefits to the widow of a Ford employee who suffered a cardiac episode at work, and died shortly thereafter. The wcac reversed the magistrate, and was in turn reversed by the Court of Appeals which reinstated the magistrate’s decision. A Carl Holden managed food service operations in three dining rooms and four cafeterias for Ford Motor Company. He oversaw the cafeteria and dining rooms in Ford’s Renaissance Center facility and managed dining facilities in four other metropolitan Detroit locations. In addition to overseeing daily lunch preparation and service for over 1,000 Ford executives and employees, Holden was responsible for executive dinners and company-sponsored parties. Holden’s supervisor testified that Holden was very conscientious. On July 11, 1986, Holden arrived around 8:30 a.m. at his office in the Renaissance Center. First cook Daniel Micallef testified that he was in Holden’s office when he arrived. Holden took off his coat and "made like a sigh.” Holden did not look well and "[h]is color was like a gray, grayish color.” Holden said that "he had just took [sic] the stairs and he wasn’t feeling well. His hands were clammy and his chest hurt.” Micallef left Holden sitting in his chair. He returned shortly thereafter to speak to Holden. Holden was lying on his desk, gasping for air. Emergency medical personnel were called; Holden was taken to the hospital, where he died within an hour. Holden was assigned a parking space in Renaissance Center "m” lot. To reach the elevators, Holden had to climb three flights of approximately ten stairs each. While Holden could have parked in another lot, this too would have required him to climb three flights of stairs to reach an elevator. Dr. Werner Spitz, then the Wayne County Medi cal Examiner, board certified in pathology and forensic pathology, and plaintiff’s expert witness, testified that Holden suffered a myocardial infarction caused by job-related stress and precipitated by stair climbing. Dr. Donald L. Newman, board certified in family practice and Holden’s personal physician, testified on the basis of his review of records, including Spitz’ autopsy report, the death certificate, a job description and witness statements. Newman opined that Holden suffered a myocardial infarction precipitated by stair climbing. Dr. Robert A. Gerisch, board certified in internal medicine and specializing in cardiology, testified for Ford. He said that he had examined the tissue slides from the autopsy, hospital records, Spitz’ deposition testimony and Holden’s job description. He opined, on the basis of his examination of the tissue slides and the record of an ekg taken at the hospital shortly before Holden died, that Holden did not suffer a myocardial infarction. Gerisch said that the tissue slides did not evidence scarring that would indicate either a recent or an old myocardial infarction. He also testified, however, that the characteristic scarring that occurs after a myocardial infarction is not reflected in the heart muscle tissue for six to eight hours after the infarction occurs. He added that the ekg indicated "an acute infarction type of pattern or ischemia which, if it persists, could develop into an infarction.” Gerisch opined that, given the condition of Holden’s heart, there was a one hundred percent probability that he would eventually suffer a myocardial infarction, but that he actually died of ischemia that brought on arrhythmia. He said that the heart was depleted of all oxygen by the ischemia, caused by narrowed arteries, which brought about the arrhythmia which, corrected only temporarily at the hospital, resulted in Holden’s death. B The magistrate found that the claimant failed to establish the requisite nexus between the claimed injury to the heart and work. The magistrate found that there was almost no testimony concerning specific episodes of job stress that might be related to Holden’s death. He rejected testimony that Holden was a worrier as "grossly speculative and without foundation.” He reviewed Micallef’s testimony and concluded that Holden "had yet to engage in any physical activities following his arrival on the premises.” He found that the medical testimony that climbing stairs was related to Holden’s "cardiac episode” was speculative. The magistrate said that because of the paucity of evidence showing that "any 'heart damage’ or myocardial infarction” related to a specific incident in the work place, it would be superfluous for him to go into any of the medical testimony. C The wcac first set out the legal framework for its review, acknowledging that its review of a magistrate’s findings was a limited review for substantial evidence. The wcac then observed that under Miklik v Michigan Special Machine Co, 415 Mich 364, 367, 370; 329 NW2d 713 (1982), a plaintiff must establish by a preponderance of the evidence that there is heart damage, and a relationship between the damage and specific incidents or events at work. The wcac reviewed the findings of the magis trate, and concluded that the magistrate had failed to find whether Holden sustained heart damage. The wcac reviewed the magistrate’s finding that Spitz’ opinion that Holden suffered a myocardial infarction was unsupported. The wcac said that it was "compelled] ... to disagree” with the magistrate’s finding that Spitz had failed to indicate a basis for his opinion; the wcac said that its review of the record indicated that Dr. Spitz testified that his microscopic examination of the heart tissue, conducted several weeks after the original autopsy report, revealed extensive old and recent myocardial infarction. The magistrate’s finding overlooks this testimony and thus is erroneous. [Emphasis added.] The wcac said that because the magistrate made no further findings regarding heart damage, it was incumbent on the wcac to do so. The wcac noted that Spitz and Newman testified that Holden suffered a myocardial infarction caused by job-related stress and precipitated by stair climbing. Conversely, Gerisch testified for Ford that Holden did not suffer heart damage, but died as a result of a disturbance in heart rhythm. The wcac said that it found Spitz’ testimony was more persuasive because he is a trained pathologist who specializes in the microscopic examination of tissue, as was done in the instant case, while Gerisch is an internist. The wcac added, alternatively, that a myocardial infarction was not the only compensable heart damage, particularly in cases where "all the experts agree that the decedent suffered a heart failure which resulted in death.” (Emphasis added.) The wcac ruled that there is heart damage where the heart fails to function, resulting in sudden death, because of arrhythmia. The wcac also found the requisite relationship between the cardiac damage and Holden’s work. The wcac said that the magistrate focused on the stress inherent in employment, but ignored evidence that climbing stairs precipitated the heart failure. The wcac reviewed the evidence of stair climbing, noting that Holden linked it to his distress, and that Micallef testified that Holden would have climbed the stairs immediately before the cardiac episode. The wcac ruled that the claimant was not required, under the 1980 amendment of the statute, to establish that the claimed injury was "contributed to or accelerated the condition in a significant manner” because the 1980 amendment, applicable where the worker claims only that a heart or cardiovascular condition was contributed to or aggravated or accelerated, is not applicable where the claim is based on an asserted injury. Here, observed the wcac, the claimant did not contend that the employment contributed to or aggravated or accelerated Holden’s arteriosclerosis. The wcac concluded that stress related to the work combined with the arteriosclerosis to cause an infarction, or, alternatively, arrhythmia resulting in the failure of the heart to function. In sum, the wcac ruled that failure of the heart to func tion, either as a result of an arrhythmia or as a result of an infarction, is a compensable injury. This Court has not acted on Ford’s cross appeal claiming that the 1980 amendment required the claimant in this case to show and the wcac to find that Holden’s employment contributed to or aggravated or accelerated Holden’s underlying condition —arteriosclerosis—in a significant manner. D We conclude that the wcac did not exceed the legislatively prescribed reviewing function. The wcac acknowledged that its review of the magistrate’s decision was limited by the "substantial evidence on the whole record” standard. Having determined that the magistrate’s findings and conclusions were not supported by substantial evidence on the whole record, the wcac proceeded to assess the evidence on the whole record in light of Miklik and to make its own findings. The wcac explained why it found Spitz’ testimony more persuasive than Gerisch’s. It further explained that Gerisch’s testimony concerning a fatal arrhythmia also indicated the requisite heart injury. The wcac similarly reviewed the magistrate’s finding that the claimant failed to establish a relationship between the cardiac episode and Holden’s employment. It explained why it found the magistrate’s finding was not supported, stating that the magistrate focused only on evidence concerning generalized stress and ignored evidence of a specific incident. Finally, the wcac noted that both Spitz and Newman testified concerning the connection between stair climbing and the arrhythmia, and resultant heart failure and death, which testimony the magistrate also ignored. We conclude that the wcac gave adequate reasons, grounded in the record, for reversing the fact finding of the magistrate. E The Court of Appeals panel in Holden, in reversing the wcac, began its review concerning the application of the substantial evidence standard by undertaking an independent review of the record and the magistrate’s opinion. The Court then reviewed the wcac’s opinion. Finally, the Court explained why it found that the magistrate’s find ings were supported by "substantial evidence and should not have been overturned” by the wcac. The review undertaken by the Court of Appeals in Holden was not the limited judicial appellate review envisioned by the Legislature. The statute clearly provides that the Court of Appeals is to review the final decision of the wcac, not the decision of the magistrate. III In Weiss, a magistrate entered a closed award of benefits for personal injury. The wcac affirmed the magistrate’s finding that Weiss had suffered an injury, but modified the order to provide an open award. The Court of Appeals affirmed. A Vera Weiss was employed as a registered nurse in a facility operated by the Jewish Home for the Aged. On November 18, 1985, she injured her lower back while moving a heavy paraplegic patient from a bed to a wheelchair. Weiss was absent from work for five days. She returned to work, but found that her back pain progressively worsened. Her supervisor sent her to an industrial clinic. Weiss testified that before the back injury she was continuously employed as a registered nurse in a facility where the "standard nursing duties” involved the daily dressing, transferring and feeding of patients. Weiss said that after the back injury she was unable to perform these tasks because of pain caused by lifting, twisting, and bending. Weiss is no longer employed. Weiss was initially treated by an orthopedist, Dr. Norman Pollak, at the industrial clinic recommended by the Jewish Home. He diagnosed Weiss on December 17, 1985, as suffering from sciatica affecting the l5 nerve root. Pollak continued to treat Weiss until April 15, 1986. Although he testified that Weiss was able to return to work on April 15, 1986, he recommended that she receive cortisone injections into the layer of tissue surrounding her spinal cord. Weiss refused this procedure because she feared complications. From February, 1986, until February, 1987, Weiss was treated by Dr. Mark Rottenberg, board certified in physical medicine and rehabilitation. His initial diagnosis, based on x-rays, was that Weiss suffered from a lumbosacral strain involving the sacroiliac joint with possible lumbosacral disc disease and radiculopathy (pinched nerve). He also found that Weiss had problems with her right knee. In May, 1986, Rottenberg ordered a cat scan; then, in September, 1986, an electromyography and a thermogram, and the previous set of x-rays were repeated. Finally, he ordered a sedimentation-rate test. Rottenberg concluded, on the basis of the results of the tests and Weiss’ continuing complaints of lower back pain, that she suffered from a lumbosacral disc disease with a bulging disc and canal narrowing at L4-5 and right lumbosacral radiculopathy. He further concluded that because the rest of Weiss’ tests, including the sedimentation rate for arthritis, were negative, that the disc narrowing was attributable to trauma rather than arthritic disease. Finally, he concluded that, because Weiss’ February, 1986, x-rays of the lower back and right knee had been negative, while those taken in September, 1986, were abnormal, her condition was deteriorating. He concluded that Weiss’ knee injury resulted from the tearing of a medial meniscus muscle due to her compensating for the right leg radiculopathy. Clinical tests that Rottenberg performed were also positive. He testified that he found a decreased sensation to pin prick testing over Weiss’ right si region, that the straight leg raising tests were positive after seventy degrees for the left and sixty for the right, and that the Fabere-Patrick test was positive for si discomfort. A Hoover test was negative. Positive Hoover test results would have suggested that Weiss had learned to report a back problem, rather than true underlying pathology. Rottenberg was of the opinion that Weiss was disabled as a result of a work-related injury. Dr. William Miller, an orthopedist, examined Weiss for the Jewish Home on one occasion, September 5, 1986. Miller took x-rays, ordered an emg, a sedimentation rate, and a rheumatoid ar thritis factor. He testified that the x-rays showed a narrowing of the disc space between L5-S1. He did not order a cat scan. In addition to these tests, Miller also performed clinical tests. He performed a straight leg raising test, first with Weiss in a supine position, and then in a standing position, and found limitations in her range of motion in both positions — at seventy degrees bilaterally for the supine test. Weiss demonstrated excellent straight leg raising on her left leg, when she mounted the examination table, leading off with her left leg. He noted that she did not mount the table from the right. Miller found that Weiss’ demeanor during the office visit invalidated the results of his physical examination. He said that while he was taking her history, Weiss fidgeted and moved around in her chair, which led him to believe that her responses were less than candid. He also said that he found that during the examination her expressions of pain were "exaggerated.” Miller testified that he also obtained positive results when he performed a Fabere-Patrick test, and that the vertical compression test was positive. He observed that when he asked Weiss to walk on her toes, she had a decided limp on her right side. Miller concluded, on the basis of these findings, that while Weiss may have had a lower back sprain with some nerve root irritation in the past, she was able to return to work when he examined her. B The magistrate found that Weiss had been temporarily disabled, and entered a closed award of benefits ending on September 5, 1986. The magistrate, under the heading “findings,” summarized portions of the testimony of the three physicians. The magistrate then stated, without further discussion, under the heading “conclusion,” that Weiss was injured on November 18, 1985, but "based on the medical opinions as well as the demeanor of the witnesses at the trial level, it appears that the plaintiff’s problems with her low back resolved as of the date of Dr. Miller’s examination on September 5, 1986.” c Weiss and Jewish Home both filed appeals with the wcac. The wcac, after comparing the testimony of the three physicians, determined that Weiss had been and continued to be disabled, and modified the award to provide an open award of benefits. The wcac acknowledged the limited scope of administrative appellate review, and explained why it concluded that the evidence supported the magistrate’s finding that Weiss established her entitlement to benefits beyond April 21, 1986. It noted that only Pollak, who saw Weiss when she was sent to his industrial clinic by Jewish Home, supported Jewish Home’s claim that Weiss had failed to establish entitlement beyond April 21, 1986. Pollak, who treated Weiss between December 17, 1985 and April 18, 1986, found her disabled throughout that period. Further, when he released Weiss for unrestricted work, Pollak continued to recommend that she undergo epidural steroid injections. The wcac concluded that Pollak’s recommendation that Weiss receive epidural injections was inconsistent with his decision to return her to unrestricted work. It also concluded that Pollak’s evaluation of Weiss was biased by her reasonable refusal to accept the potentially harmful injections. The wcac found that the magistrate, who determined that Weiss was entitled to benefits beyond April 21, 1986, “reasonably accorded less weight to Dr. Pollak’s testimony than to that of Dr. Rottenberg and that consequently his conclusion that [Weiss’] disability continued beyond April, 1986 was appropriately supported.” The wcac reviewed the magistrate’s finding that Weiss’ back injury was resolved by September 5, 1986. It said that while it is ordinarily required to defer to the findings of a magistrate who has had the opportunity to observe a witness testifying, where both the magistrate and the wcac review deposition testimony, it is not required to give the magistrate’s reading of the deposition “the same degree of restraint.” Reviewing the magistrate’s findings, the wcac observed that the magistrate based his opinion solely on Miller’s deposition testimony. It then reviewed Miller’s and Rottenberg’s deposition testimony, and noted that Miller saw Weiss on only one occasion, while Rottenberg was her treating physician. Both physicians had performed clinical tests with similar results, but interpreted those results differently. The wcac explained why it found that Miller’s physical examination of Weiss was "superficial and sorely lacking.” It said that while Miller concluded, solely on the basis of his observation of Weiss during the examination, that her complaints of pain were exaggerated, Rotten-berg performed a clinical test that objectively supported his conclusion that her complaints of pain were real. After reviewing Miller’s testimony and comparing his conclusions with those of Rottenberg, the wcac explained why it found that Miller "consistently, if not arbitrarily, ignored not only all of the objective evidence but also many of the clinical findings derived from his one-time physical examination of the plaintiff.” It concluded that Miller’s testimony was biased in favor of his employer, the Jewish Home. The wcac said that " 'reliable testimony from a treating physician ... is always preferable,’ ” to that of a one-time examining physician. Finally it explained why Weiss’ back injury constituted a disability under the statute. The wcac concluded that the magistrate’s finding that Weiss’ back injury had resolved itself as of the date of Miller’s examination was unsupported by substantial evidence, and modified the magistrate’s award to provide for an open award. D We again find that the wcac did not exceed the appropriate exercise of its reviewing function. The wcac, after acknowledging the limited scope of administrative appellate review, affirmed the magistrate’s finding of personal injury, and explained why it found that it was supported by a preponderance of the evidence. It next reviewed Weiss’ claim that the magistrate’s finding that her back injury had resolved itself was not supported by substantial evidence. It noted that while it was required ordinarily to defer to a magistrate’s assessment of the testimony of live witnesses, this is not required when reviewing the testimony of experts who testify, as did the three physicians in this case, on deposition because then the magistrate is not in a better position than the wcac to assess the evidence. The wcac observed that Miller saw Weiss on only one occasion, while Rottenberg was her treating physician. Both physicians had performed the same clinical tests with similar results, but interpreted those results differently. The wcac explained why it found that Miller’s physical examination of Weiss was "superficial and sorely lacking.” It noted that while Miller concluded, solely on the basis of his observation of Weiss during the examination, that her complaints of pain were exaggerated, Rottenberg performed a clinical test that objectively supported his conclusion that her complaints of pain were real. After reviewing Miller’s deposition and comparing his conclusions with those of Rottenberg, the wcac explained why it found that Miller "consistently, if not arbitrarily, ignored not only all of the objective evidence^] but also many of the clinical findings derived from his one-time physical examination of the plaintiff.” The wcac added that " 'reliable testimony from a treating physician ... is always preferable,’ ” to that of a one-time examining physician. Finally the wcac explained why Weiss’ back injury constituted a disability under the statute. We conclude that the wcac gave adequate reasons, grounded in the record, for reversing the fact finding of the magistrate. E The review by the Court of Appeals in Weiss of the wcac’s decision is generally illustrative of an appropriate judicial review of the wcac’s application of the substantial evidence standard. The Court of Appeals reviewed the wcac’s decision, noting the legal standard that it was applying, and explaining why it gave greater weight to one expert’s testimony and lesser weight to another. The Court noted that the wcac had explained why it agreed with the magistrate that Weiss was disabled, and why it modified the magistrate’s order to provide for an open award. Then, having implicitly found that the wcac correctly applied the substantial evidence test, the Court of Appeals found that there was "some competent evidence” to support the wcac’s factual determination that there was not substantial evidence in . support of the magistrate’s decision that Weiss’ injury was resolved as of the date of Miller’s examination in September, 1986. Holden, reversed; Weiss, affirmed. Cavanagh, C.J., and Brickley, Boyle, Riley, Griffin, and Mallett, JJ., concurred with Levin, J.j 185 Mich App 305; 460 NW2d 316 (1990). 185 Mich App 687; 462 NW2d 821 (1990). 1985 PA 103. Workers’ Compensation Adjudication Review Project, Final Report to the Director [of the Michigan Department of Labor], October 1, 1980, appendix B-17 (emphasis added), and see id., pp 155-158. St. Antoine, Workers’ Compensation in Michigan: Cost, henefits, and fairness, p 71. Section 206 (MCL 418.206; MSA 17.237[206]) provided for the abolition of the office of hearing referee. Section 209 (MCL 418.209; MSA 17.237[209]) provided for a gubernatorially appointed six-member Qualifications Advisory Committee to, among other things, recommend for appointment to the Governor the members of the Board of Magistrates and the Workers’ Compensation Appellate Commission. Section 213 (MCL 418.213; MSA 17.237[213]) established a gubernatorially appointed thirty-member Board of Magistrates. Section 274 (MCL 418.274; MSA 17.237[274]) established a gubernatorially appointed seven-member Workers’ Compensation Appellate Commission. See Civil Service Comm v Dep’t of Labor, 424 Mich 571, 577-587; 384 NW2d 728 (1986), for a discussion of prior law, and of the reforms enacted by Act 103. Judicial review is limited review. In Koopmans v Parsons, 250 Mich 464, 467-469; 231 NW 87 (1930), this Court said that "[i]f there is evidence in support of [the board’s] conclusion, the award will not be disturbed. . . . With the testimony on the other side of the issue we are not concerned, because we do not weigh the evidence.” Similarly, in Kostamo v Marquette Iron Mining Co, 405 Mich 105, 135-136; 274 NW2d 411 (1979), this Court said that it would interfere with findings of the wcab only when convinced that there was no evidence to support them. In Aquilina v General Motors Corp, 403 Mich 206, 213; 267 NW2d 923 (1978), construing MCL 418.861; MSA 17.237(861), this Court said that review was to determine whether questions of law were correctly decided and whether there was any fraud associated with, or "any competent evidence” to support, the findings of fact made by the WCAB. The findings of fact made by the board acting within its powers, in the absence of fraud, shall be conclusive. The court of appeals and the supreme court shall have power to review questions of law involved in any final order of the board .... [MCL 418.861; MSA 17.237(861). Emphasis added.] The findings of fact made by the commission acting within its powers, in the absence of fraud, shall be conclusive. The court of appeals and the supreme court shall have the power to review questions of law involved with any final order of the commission .... [MCL 418.861a(14); MSA 17.237(861a)(14). Emphasis added.] The legislative history of § 861a(14) indicates that the Legislature carefully considered whether it would retain language in § 861 providing that the findings of fact made by the board/commission are conclusive in the absence of fraud. See SB 7, Substitute for SB 7 (s-4), House Substitute for SB 7 (H-4) and House Substitute for SB 7 (h-5). MCL 418.861a(14); MSA 17.237(861a)(14). In Civil Service Comm v Dep’t of Labor, n 7 supra, p 622, this Court said that "[a] magistrate’s decision is reviewable by the newly constituted appellate commission under precisely the same standard that applies to judicial review of decisions of administrative tribunals generally.” If a claim for review of a Hearing Referee’s order is filed, the board shall promptly review the order, together with the records of the hearing. . . . [F]indings of fact made by the hearing referee shall be conclusive if supported by competent, material, and substantial evidence on the whole record. . . . The Board may adopt, in its entirety, the opinion of the hearing referee provided for under section 852 as the opinion of the board. [SB 7, § 859, as proposed on January 10, 1985. Emphasis added.] The first full Senate revision made no substantive change: "Findings of fact made by a [hearing referee] in his or her order and opinion under section 851 shall be considered conclusive by an appeal panel of the commission if supported by competent, material, and substantial evidence on the whole record.” Substitute for SB 7 (s-4), § 861A(2). House Substitute (H-5) for SB 7, which would have provided for a substantial evidence standard that was virtually identical to the language in the apa, was rejected by the House, and House Substitute (H-4) was sent back to the Senate. Compare MCL 24.306; MSA 3.560(206) with House Substitute (h-5). House Substitute for SB 7 (h-4), § 861A(2). The statute provides that final orders of the merc are reviewable by the Court of Appeals, and that "findings of the commission with respect to questions of fact if supported by competent, material, and substantial evidence on the record considered as a whole shall be conclusive.” MCL 423.23(2)(e); MSA 17.454(25)(2)(e). The Court said: What the drafters of the Constitution intended was a thorough judicial review of administrative decision, a review which considers the whole record — that is, both sides of the record— not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency. Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive administrative fact-finding by displacing an agency’s choice between two reasonably differing views. [MERC v Detroit Symphony Orchestra, supra, p 124.] The Court adopted a portion of the opinion of the United States Supreme Court in Universal Camera Corp v NLRB, 340 US 474, 496; 71 S Ct 456; 95 L Ed 456 (1951), where the Court construed the federal "substantial evidence” standard in the National Labor Relations Act. The Court said with respect to findings by a referee, or magistrate: We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board’s than when he has reached the same conclusion. [Emphasis added.] House Substitute for SB 7 (h-4), § 861AQL1). According to Welch, Worker’s Compensation in Michigan: Law & Practice, § 21.13, § 861A(11) was added by House Substitute for SB 7 (h-4), because there was much concern about limiting the scope of the review of the new appellate commission. The House Substitute also provided the wcac with the authority to adopt the opinion of the magistrate, in whole or in part, not only the opinion in its entirety, as the opinion of the wcac. House Substitute for SB 7 (H-4), § 861A(8). The statute provides: (1) Any matter for which a claim for review under section 859a has been filed shall be heard and decided by the appellate commission. (2) Until October 1, 1986 findings of fact made by a worker’s compensation magistrate shall be considered conclusive by the commission if supported by competent, material, and a preponderance of the evidence on the whole record. (3) Beginning October 1, 1986 findings of fact made by a worker’s compensation magistrate shall be considered conclusive by the commission if supported by competent, material, and substantial evidence on the whole record. As used in this subsection, "substantial evidence” means such evidence, considering the whole record, as a reasonable mind will accept as adequate to justify the conclusion. (4) As used in subsections (2) and (3) "whole record” means the entire record of the hearing including all of the evidence in favor and all the evidence against a certain determination. (10) The commission or a panel of the commission, may adopt, in whole or in part, the order and opinion of the worker’s compensation magistrate as the order and opinion of the commission. (11) The commission or a panel of the commission shall review only those specific findings of fact or conclusions of law that the parties have requested be reviewed. (12) The commission or a panel of the commission may remand a matter to a worker’s compensation magistrate for purposes of supplying a complete record if it is determined that the record is insufficient for purposes of review. (13) A review of the evidence pursuant to this section shall include both a qualitative and quantitative analysis of that evidence and ensure a full, thorough, and fair review thereof. (14) The findings of fact made by the commission acting within its powers, in the absence of fraud, shall be conclusive. The court of appeals and the supreme court shall have the power to review questions of law involved with any final order of the commission .... [MCL 418.861a; MSA 17.237(861a).] When it does so, the wcac should carefully explain why it chose to adopt one expert’s opinion in preference to another. This Court explained the importance of a carefully reasoned opinion at the administrative appellate review level when it said: [W]e cannot review a decision of the wcab as a question of law unless its findings of fact are sufficiently detailed so that we can separate the facts it found from the law it applied, and that conclusory findings are inadequate because we need to know the path it has taken through the conflicting evidence, the testimony it has adopted, the standards followed and the reasoning used to reach its conclusion. [Kostamo v Marquette Iron Co, n 8 supra, p 136. See also Zaremba v Chrysler Corp, 377 Mich 226, 228; 139 NW2d 745 (1966).] Universal Camera, n 16 supra, p 491. Holden was fifty-six years old at the time of his death. Spitz performed an autopsy. In his autopsy report Spitz said that Holden died of arteriosclerotic and hypertensive heart disease, that his heart was enlarged, and his arteries were reduced to one quarter of their original diameter. The report also stated that Holden was "somewhat overweight,” weighing 186 pounds and measuring five feet, nine inches tall. Spitz made notes during the autopsy: Organs congested and edema of the lungs and brain. Heart enlarged 400 grams. No scars, no recent infarct. Hypertrophic left ventricle wall. Bowels okay. Arteriosclerosis of arteries, 3+ with planks [sic] and scars and ulcerations. Arteriosclerosis of coronary arteries. Up to 75 percent reduction of passage. Chronic gastritis. Spitz retained tissues of the heart and other organs for later examination. He testified that, after examining the heart tissue, he concluded that "Mr. Holden suffered of [sic] severe arteriosclerotic and hypertensive heart disease with evidence of old and recent myocardial damage.” Spitz explained that the cause of death as listed in the autopsy report, arteriosclerotic and hypertensive heart disease, was an all encompassing term and not á specifically — specific term indicating the mechanism. And, this is because of the reasons that arteriosclerotic and hypertension, heart disease is recognizable on the day of the autopsy. In fact, also a myocardial infarction in progress is a microscopic examination. Spitz testified that he is required by law to file a death certificate promptly after performing an autopsy. Only later did he perform a microscopic examination of the heart and organ tissues retained for that purpose. Spitz testified that while Holden’s employment did not cause his underlying condition, arteriosclerosis, he believed there was a "good possibility” that Holden’s death was hastened as a result of his employment. Spitz testified, when* asked if there were any specific incidents or events which caused or significantly contributed to Holden’s heart damage, that The general worry that goes on with an increased work load and the completion of the same and specifically the climbing up of the stairs on the last day of his life when he came to the work area complaining of chest pain after he had just run up the flight of stairs all point towards my previously stated opinion. He explained that emotional and physical stress make the heart beat faster, that because the heart is beating faster it needs more fuel, oxygen, which it obtains by pumping more blood. When, however, the blood supply is inadequate because of underlying disease, then the heart may sustain a myocardial infarction. He testified further that the sustained stress such as Mr. Holden’s during a prolonged period prior to his demise could be [sic] contributed to his demise, and that the last day’s effort in coming up the stairs, that may have been the straw that broke the camel’s back. Ischemia means "lack of blood” which causes a lack of oxygen. when the heart is arrhythmic, it is without rhythm and is not pumping properly and thus is not causing blood to flow to the tissues. Gerisch was not asked, nor did he give an opinion, whether climbing three flights of stairs on the day of Holden’s collapse could have contributed to the ischemia or arrhythmia and therefore to his death. The record evidence concerning when such stairs were climbed, their number, and the interval between this activity and decedent’s collapse is sketchy indeed. Without such information I found that the medical testimony positing such as a cause of death to be grossly speculative and such is rejected. The magistrate added, however: In any event, the Magistrate rejects Dr. Spitz’ opinion as unsupported by proper hypothetical question and Dr. Spitz’ opinion as expressed at page 19 of his deposition: "It is my opinion that the stress at Mr. Holden’s employment as well as consisting of both emotional and physical types of stress connected with the job aggravated and accelerated his heart disease and brought on the demise.” is utterly and completely without evidentiary foundation. Further, Dr. Spitz’ testimony is rejected relative to his conclusion concerning the occurrence of a myocardial infarction since he fails to indicate the basis for such conclusion anywhere in his testimony. The magistrate concluded that the claimant failed to establish by the preponderance of the evidence that Holden received an injury within the meaning of the act since the proofs presented failed to establish that Holden was engaged in a stressful activity on July 11, 1986, or shortly prior thereto. The magistrate concluded that there was no evidence that Holden was engaged in any stressful activity on the last day of work. Construing MCL 418.401(2)(b); MSA 17.237(401)(2)(b). MCL 418.861a(14); MSA 17.237(861a)(14). The wcac cited this Court’s decision in Kostamo v Marquette Iron Mining Co, n 8 supra, p 126, n 9; and Volter v Ford Motor Co, 1985 WCABO 432, "where it was held that an electrical conduction defect, requiring the implantation of a pacemaker and causing disabling pain, constituted heart damage.” The wcac found that the magistrate ignored Micallef’s testimony concerning the stair climbing, and the testimony of Spitz and Newman that the stair climbing precipitated the arrhythmia and resultant heart failure and death. MCL 418.301(2); MSA 17.237(301)(2). Sections 401 and 301 of the wdca were amended in 1980, effective January 1, 1982. 1980 PA 357. Both now provide that "[mjental disabilities and conditions of the aging process, including but not limited to heart and cardiovascular conditions, shall be compensable if contributed to or aggravated or accelerated by the employment in a signMcant manner." MCL 418.301(2), 418.401(2)(b); MSA 17.237(301)(2), 17.237(401)(2)(b), as amended. Ford and Jewish Home argue that where a magistrate’s findings of fact are supported by the opinion of a qualified expert who has a rational basis for the view expressed, the magistrate’s findings are necessarily supported by substantial evidence even though the experts disagree and the wcac had, as here, a rational basis for reconciling their conflicting opinions or for assessing them differently than the magistrate. Ford’s and Jewish Home’s reliance on Great Lakes Steel v Michi gan Public Service Comm, 130 Mich App 470; 344 NW2d 321 (1983), is misplaced. Great Lakes states that the expert testimony there being considered could not be reviewed under the substantial evidence test. Further, the language of the statute mandates that the wcac review the entire record, including expert testimony. The wcac noted that the magistrate, who had questioned Micallef on this issue, made no reference to Micallef’s testimony concerning stair climbing. The magistrate apparently did not reject Micallef’s testimony because he found it incredible, but because he found it "sketchy indeed.” The Court of Appeals noted, but did not question, Ford’s argument that the wcac failed to apply the proper legal standard for heart cases. Ford argued at oral argument that the wcac’s application of the substantial-evidence test is a question of law subject to de novo review on appeal. Therefore, because on appeal the Court of Appeals again reviews the administrative agency findings for substantial evidence, the scope of review by the Court of Appeals is identical to that of the appellate commission. Such a review, under the guise of de novo review of questions of law, transforms the Court of Appeals review into another "substantial evidence” review of the facts. This was clearly not the intent of the Legislature. See n 2. This facility served elderly patients who require skilled medical care and physical assistance. Weiss left work until February 3, 1986, when she returned to part-time "light” work for a short period. Weiss found however, that she was unable to do the lighter work, which involved bending and kneeling, because of severe back pain. She testified that she performs electrolysis treatments in a beauty salon, and that in lieu of payment she exchanges her services, of about forty-five .minutes two or three days a week, for massage therapy and whirlpool treatments. Dr. Miller testified that his practice is focused almost entirely on examining patients for employers. The magistrate concluded: A review of the whole record as well as the medical testimony indicates that the plaintiff was injured on November 18, 1985 and received an injury to her low back which possibly involved a nerve root irritation. However, based on the medical opinions as well as the demeanor of the witnesses at the trial level, it appears that the plaintiff’s problems with her low back resolved as of the date of Dr. Miller’s examination on September 5, 1986. The record also indicates that the plaintiff apparently has had some problems with her right knee, but it appears from the record that said problems do not arise out of her employment with Jewish Home for the Aged. Therefore, it is found that the plaintiff has established by preponderance of evidence that she was disabled from November 19, 1985 to November 24, 1985, and November 26, 1985 to September 5, 1986, as a result of an injury to her low back on November 18, 1985, arising out of and during the course' of her employment with the Jewish Home for the Aged. MCL 418.301; MSA 17.237(301). Jewish Home argues that the Court of Appeals is constitutionally required to independently review the magistrate’s decision before it reviews the wcac’s decision. In light of the clear language of both the constitution and § 861a(14), this argument fails.

Mallett, J. Plaintiffs, injured in a one-car accident in Gratiot County, Michigan, filed separate product liability actions against defendant Ford Motor Company in Wayne Circuit Court. Because plaintiffs were injured there, defendant contends that venue is proper only in Gratiot County. Plaintiffs appeal a Court of Appeals decision reversing the trial court’s denial of defendant’s motion for change of venue. 187 Mich App 63; 466 NW2d 346 (1991). We reverse the decision of the Court of Appeals. FACTS This is a products liability case involving a 1982 Ford Escort in which plaintiffs were injured in a one-car accident in Gratiot County. The car was designed, manufactured and inspected at Ford Motor Company’s Wayne Assembly plant, located in Wayne County, Michigan. Plaintiffs, Julius and Kathy Lorencz, as next friends of Nicholas Lorencz, and Frances and LaVern Gross, filed separate products liability actions against Ford Motor Company in Wayne Circuit Court. Each claimed venue was proper in Wayne County because the car was defectively designed, manufactured, and assembled at Ford’s Wayne County facilities. Defendant Ford Motor Company filed motions in both lawsuits for change of venue claiming it was improperly laid in Wayne County. Ford argued that venue belonged only in Gratiot County since that is where plaintiffs’ injuries arose and defendant conducted business there. The trial court denied defendant’s motion, stat ing that plaintiffs’ cause of actions arose, in part, in Wayne County as required under the venue statute, MCL 600.1629(1)(a); MSA 27A.1629(1)(a). The court agreed with plaintiffs that because defendant admitted the car was designed, manufactured, and assembled in Wayne County, part of the cause of action arose in Wayne County, therefore, venue was properly laid in Wayne County. On appeal, the Court of Appeals reversed the decision of the trial court and found that in a tort action, the county where all or part of a plaintiff’s injuries or damages occur is the first priority for determining proper venue. 187 Mich App 64. The Court held: [I]n actions based on tort the county of first priority for venue is the county or counties in which the injuries or damages occurred. The statutory phrase "in which all or part of the cause of action arose” refers to the situs of the injuries or damages and not to the situs of the wrongful act or acts. [187 Mich App 75.] i We are asked to construe the meaning of MCL 600.1629(1)(a); MSA 27A.1629(1)(a), part of the changes of the Revised Judicature Act passed by the Legislature in 1986. It was originally designed to eliminate forum shopping and the filing of only tangentially related lawsuits in Wayne, Oakland, and Macomb counties. A number of versions of the bill, HB 5150, were considered by the Legislature before final enactment. The language actually adopted, however, nullified HB 5150’s original purpose. The first draft of HB 5150 amended MCL 600.1627; MSA 27A.1627, the former tort venue statute, by eliminating the language allowing a plaintiff to file a tort claim in the "county in which all or a part of the cause of action arose.” HB 5150 would have inserted a new § 2 in § 1627, which stated: In a tort action, venue shall be determined in the following order of priority: (A) The county in which all or a part of the injury occurred. (B) The county in which a defendant resides. (C) If none of the defendants meets any of the criteria in subdivision (B), the county in which any plaintiff resides[ ] This version of the bill was rejected by the House. On December 11, 1985, the House unanimously adopted amended § 1627 and the language "in which all or a part of the cause of action arose,” rejecting the language that limited venue to the situs of the injury. The amended version of HB 5150 was eventually incorporated, unchanged, into HB 5154, revisions to the Revised Judicature Act, and sent to the Senate. The Senate passed HB 5154 on March 18, 1986. On July 6, 1986, HB 5154 was enacted into law and signed by the Governor without any further modifications to the venue provisions that subsequently became § 1629. In a cause of action arising from a tortious injury, there are four elements: "1. The existence of a legal duty by defendant toward plaintiff; 2. the breach of such duty; 3. the proximate causal relation between the breach of such duty and an injury to the plaintiff; and 4. the plaintiff must have suffered damages.”[ ] It is clear that a breach of duty can occur in a different venue than the injury in a tort case. For example, in a products liability action, the product can be designed in one county, manufactured in another, and the injury may occur in yet a third. A plaintiff, alleging proper facts, can file suit in any one of these places because all or a part of the cause of action arose in any one of them. Under the plain language of MCL 600.1629(1)(a); MSA 27A.1629(1)(a), venue would be properly laid in any one of them. ii The Court of Appeals panel in Lorencz, however, took a different view. It held that under MCL 600.1629; MSA 27A.1629, venue is properly laid only in the county which is the situs of plaintiff’s injuries, or where plaintiff’s damages arose, not where all or part of the cause of action occurred. The panel went through a lengthy discussion of the history of § 1629, its legislative intent and purpose. It quoted various legislative materials and committee reports, including the House Legislative Analysis Section’s first analysis after the wording of the proposed statute had been changed from "where the injuries occurred” to "[where] all or a part of the cause of action arose.” However, the Court of Appeals focus in its discussion of the House Analysis is misplaced. Instead of looking at the precise wording of the statute, which is in the analysis, the Court of Appeals focused on the discussion of the reason to vote in favor of the proposed bill. At one time, the Legislature had before it a version of the venue statute that corresponded perfectly to the Court of Appeals ruling in this case. It was rejected. Because the plain wording of the statute conflicts with the finding that venue is proper only at the situs of an injury, the panel’s concentration on the statute’s original intent is improper. III When a statute is clear and unambiguous, judicial construction or interpretation is unnecessary and therefore, precluded. Dussia v Monroe Co Employees Retirement System, 386 Mich 244, 248-249; 191 NW2d 307 (1971); Land v George Schmidt Co, 122 Mich App 167, 170; 333 NW2d 30 (1982); City of Lansing v Lansing Twp, 356 Mich 641, 648-650; 97 NW2d 804 (1959); Wills v Iron Co Bd of Canvassers, 183 Mich App 797, 801; 455 NW2d 405 (1990). However, if construction is necessary, the Court is required to determine and give effect to the Legislature’s intent and employ the ordinary and generally accepted meaning of the words used by the Legislature. Town & Country Dodge, Inc v Dep’t of Treasury, 420 Mich 226, 240; 362 NW2d 618 (1984). "When determining legislative intent, statutory language should be given a reasonable construction considering its purpose and the object sought to be accomplished.” Wills, supra, p 801. Additionally, it is the primary objective in statutory interpretation and construction to effectuate legislative intent without harming the plain wording of the act. 22 Callaghan, Michigan Civil Jurisprudence, Statutes, § 108, p 379. Our reading of the statute, MCL 600.1629(1)(a); MSA 27A.1629(1)(a), "[a] county in which all or a part of the cause of action arose,” leads us to conclude that it is unambiguous and needs no judicial interpretation. Under the statute, venue is proper where part or all of the cause of action arose, not merely at the situs of the injury. That a cause of action may arise in more than one place, making venue proper in more than one jurisdiction, is apparent from the clear wording of the statute. CONCLUSION Because of the clear meaning of the wording where "all or a part of the cause of action arose,” we reverse the decision of the Court of Appeals and find that venue is properly laid in Wayne County. Cavanagh, C.J., and Levin, Brickley, Boyle, and Riley, JJ., concurred with Mallett, J. MCL 600.1629(1)(a); MSA 27A.1629(1)(a) provides: (a) A county in which all or a part of the cause of action arose and in which either of the following apply is a proper county in which to commence and try the action: (i) The defendant resides, has a place of business, or conducts business in that county. (ii) The registered office of a defendant corporation is located in that county. [Emphasis added.] HB 5150 (November 5, 1985). 1985 Journal of the House 2583 and Substitute for HB 5150. 1985 Journal of the Senate 2546. 1986 Journal of the Senate 590. 1986 Journal of the House 1932. Thomas v Process Equipment Corp, 154 Mich App 78, 86; 397 NW2d 224 (1986), citing Lefever v American Red Cross, 108 Mich App 69, 72; 310 NW2d 278 (1981). What the Legislature actually enacted may not have been what it intended to do; however, we are not entitled to say that the language it did adopt is equivalent to what it actually rejected.

Per Curiam. Plaintiff appeals by right the jury’s verdict of no cause of action in this negligence suit. She alleges that the trial court committed reversible error with regard to evidentiary questions. Plaintiff first claims that the trial court wrongfully excluded portions of the deposition testimony of her medical expert, Dr. Maurice Meier. Dr. Meier’s deposition testimony was initially preserved by means of videotape. From the record, it appears that when the videotape was played at the trial the technician stopped the machine whenever an objection was made in order that the judge could rule thereon. Unfortunately, none of the testimony, objections or rulings were transcribed into the record. GCR 1963, 315 is addressed specifically to the use of visual (videotaped) depositions. A review of that rule reveals that the procedure utilized in the case at bar was ineffective to preserve plaintiff’s issue for review. First, GCR 1963, 315.6(1) requires that videotaped depositions played in court must be stenographically recorded by the court reporter. Because this was not done, we are unable to review the judge’s rulings on the excluded evidence. Second, subrule 315.6(3) states that when any ruling sustaining an objection is made the court must order the excluded portion stricken. All excluded material must be retained and shall constitute a separate record. The order is to be in writing and it must specify the hours, minutes and seconds of the deposition which were excluded. Because no order was entered specifying the excluded material and, perhaps, the basis for the rulings, we are further hampered in our ability to review plaintiff’s claim; although the deposition was not transcribed into the record, review might still have been possible if plaintiff had submitted the videotape and the order required by subrule 315.6(3). Under GCR 1963, 315.9, an appellate court may give leave to view portions of the videotape, upon a party’s request, but in such cases the party must still file a transcript of pertinent portions of the deposition. The failure of the parties and the court to proceed under GCR 1963, 315 precludes our review of plaintiffs assertion regarding the material excluded from the videotaped deposition. This case illustrates the necessity for care when modern technology invades the courtroom. The drafters of the court rule anticipated many of the problems which could arise; it is now up to the bench and the bar to implement the rule. Otherwise, a procedure which is intended to better enable the jury to weigh the evidence by seeing and hearing witnesses who cannot be present in person will instead wreak havoc with regard to a party’s right to full appellate review. To remedy the failure to proceed under GCR 1963, 315, plaintiff asserts that we should review her claim of error by analyzing the attorneys’ lower court arguments on the rulings. These arguments were made and transcribed on the day after the deposition was played in court and purport to set forth the essence of the excluded material and the court’s reasons for excluding it (in plaintiff’s attorney’s words). Plaintiff also cites certain statements made by defense counsel during closing argument as reflective of the excluded testimony and the court’s rulings thereon._ In answer to plaintiffs suggestion, we say only that, in cases such as this, review of the claim that the trial court erred in excluding certain testimony of a medical expert requires that the reviewing court be able to read the stricken testimony and analyze it in light of the record presented at trial. Many times, the expert’s exact choice of words is crucial to the issue. Without a transcript of the testimony which was excluded, rather than a transcript of the attorneys’ versions of what the witness said, we cannot fairly judge whether the trial court erred in excluding it. Further, without the trial court’s rulings (transcribed word-for-word), we cannot fairly find error or lack thereof for to do so we would be only speculating that the attorneys’ verbalized impressions of such rulings were accurate without fault. As was said in another, but similar, context: "And it is better for the sake of dependable precedent that the facts be established with clarity before an appellate court undertakes to decide whether the plaintiff in like instance of factual uncertainty is or is not on sound legal ground. To quote Cardozo again (from Ruediger v Klink, 346 Mich 357 at 371): " 'More and more, we lawyers are awaking to a perception of the truth that what divides and distracts us in the solution of a legal problem is not so much uncertainty about the law as uncertainty about the facts — the facts which generate the law. Let the facts be known as they are, and the law will sprout from the seed and turn its branches toward the light.’ "In their understandable zeal to establish promptly the asserted rights of clients, lawyers are occasionally prone to forget that all worthy substantive law depends upon facts of evidentiary certainty, and that the quicksand of uncertain facts is the principal cause of bad precedent and the painful task of distinguishing cases which, sometimes, are not distinguishable.” Chatham Supermarkets, Inc v Ajax Asphalt Paving, Inc, 370 Mich 334, 340; 121 NW2d 836 (1963). Plaintiffs second claim of error is that the trial court erred in refusing to admit plaintiffs mother’s testimony that plaintiff complained of pain. Such testimony was ruled inadmissible as self-serving hearsay. The ruling was in error. Under MRE 803(3), "[a] statement of the declarant’s then existing * * * physical condition (such as * * * pain * * *)” is not excluded by the hearsay rule, even though the declarant is available as a witness. The court erred when it refused to admit the mother’s testimony into evidence. Such error was harmless, however, because the separate record of the mother’s testimony discloses that she never said that her daughter complained of pain. The only testimony which even approximated such a statement was Mrs. Gorshe’s comment, that sometimes plaintiff said she "had a rough day”. No reversible error having been found, we affirm the lower court. Affirmed. GCR 1963, 315.6(2) contemplates that the trial judge will preview the deposition and rule on the objections. GCR 1963, 315.3(2) states: "Every visual deposition shall be timed by means of a digital clock or clocks, which shall record hours, minutes, and seconds, which digital clock or clocks shall at all times during the taking of the deposition be in the picture.” We note particularly that at no time during trial did plaintiff object to the fact that the court reporter was not transcribing the deposition, objections or rulings thereon. Nor did plaintiff attempt in any way to preserve in writing the testimony which was stricken. The deposition testimony was apparently a significant part of plaintiff’s case; it was thus plaintiff’s duty to ensure that, if crucial portions of Dr. Meier’s testimony were excluded, plaintiff could secure appellate review thereof.

T. M. Burns, P.J. The defendant, Common Pleas Court of Detroit, appeals as of right a February 14, 1978, Wayne County Circuit Court order of superintending control that ordered an official reporter to attend each session of the Common Pleas Court, including the Landlord-Tenant Division, and report verbatim all proceedings unless the parties, with the approval of the judge, specifically agree otherwise and that reversed the contempt citation of attorney Conrad W. Smith by Judge George D. Kent of the Common Pleas Court, Landlord-Tenant Division. We affirm. We are not persuaded by defendant’s argument that the circuit court erred in determining that an order for superintending control was the appropriate remedy in this case. Jurisdiction over matters in which a writ of superintending control is sought is provided by GCR 1963, 711. That part of this court rule in issue here, 711.4(b), provides: "When an appeal in the Supreme Court, the Court of Appeals or the circuit court is available, that method of review must be used. If superintending control is sought and an appeal is available, the complaint for superintending control must be dismissed.” Defendant contends that because an appeal of right was available in each of the separate cases involved in the instant complaint, the circuit court did not have jurisdiction. However, in Cahill v Fifteenth District Judge, 393 Mich 137; 224 NW2d 24 (1974), the Supreme Court held that an action for superintending control is appropriate where a litigant seeks to review the general policies and practices of an inferior court even though the individual litigant may have a right of appeal. See also Wayne County Prosecutor v Recorder’s Court Judge, 81 Mich App 317; 265 NW2d 134 (1978), Detroit v Recorder’s Court Judge, 85 Mich App 284, 288; 271 NW2d 202 (1978). The complaint in the instant case does challenge a general practice of the Common Pleas Court, Landlord-Tenant Division. Specifically, it alleges that that court has refused to provide a court reporter in cases where one has been demanded and the $3 fee paid. It would be burdensome to litigants to require them to appeal their individual cases each time their right to a court reporter has been denied them. Further, in view of the fact that the entitlement to litigants of a court reporter is so clear that it cannot be denied, it would waste valuable court time to require individual appeals in every case. Therefore, the circuit court did not err in entertaining this aspect of plaintiffs action for a writ of superintending control. We also find that the circuit court’s jurisdiction over the contempt conviction of attorney Conrad Smith was proper. The complaint, when read as a whole, sets forth numerous instances of conduct by a Landlord-Tenant Division judge that evidence an overt and continuing prejudice against the Landlord-Tenant Clinic, its clients, and attorney Smith. Therefore, although attorney Smith’s contempt conviction standing alone would not provide jurisdiction for superintending control, when combined with other actions of the judge as alleged in the complaint, the contempt conviction does appear to be an integral part of the complaint of general practices of the Landlord-Tenant Division of the Common Pleas Court. We hold, then, that the circuit court did not err when it exercised jurisdiction over the contempt citation of attorney Smith pursuant to a writ for superintending control. We also have reviewed that portion of the record pertaining to the circuit court’s reversal of the contempt citation of attorney Smith. We find no error. The record reveals that there is a strong antagonism between a judge of the Landlord-Tenant Division and attorney Smith, who is the supervising attorney of the Landlord-Tenant Clinic. Further, it appears that the contempt conviction did not arise out of an incident in which contemptuous behavior was committed during a sitting of the court. Rather, it resulted from conduct that took place after the last case on the day in question had been called and at an hour when the court was not in session. Finally, the comments by attorney Smith to the judge from which the contempt conviction arose do not present such a threat to the administration of justice as to need an immediate punishment for contempt. For these reasons, we hold that the case before us is controlled by In the Matter of Meizlish, 72 Mich App 732, 738-741; 250 NW2d 525 (1976). The circuit court did not abuse its discretion in reversing attorney Smith’s summary contempt conviction. Defendant’s final argument is that the circuit court erred in ordering the Common Pleas Court to make a court reporter available in all cases regardless of whether the litigant requesting one has paid the $3 fee created by the state Legislature and the applicable Common Pleas Court rule. In pertinent part, MCL 728.4; MSA 27.3654, a statute addressed to practice in the Common Pleas Court, provides: "If either party demands a reporter he shall pay upon demand to the clerk of the court the sum of $3.00 for the reporter. The sum may be taxed as costs.” Similarly, Common Pleas Court Rule 38 provides: "In all matters where a reporter is used, a fee of Three Dollars ($3.00) shall be paid forthwith to the Court Clerk by the plaintiff or moving party, prior to the trial or the hearing. Said fee may be assessed as costs.” This court rule, which applies generally to all common pleas actions, is similar to one that is addressed solely to the Landlord-Tenant Division: "In all matters where a reporter is used, a fee of $3.00 shall be paid forthwith by the plaintiff or moving party, prior to the trial or hearing. Said fee may be assessed as costs.” Common Pleas Court Rule 46.4(b). It appears that the only landlord-tenant litigants in this state required to pay a $3 fee for a court reporter are those in the Landlord-Tenant Division of the Detroit Common Pleas Court. Plaintiff argues that this requirement violates equal protection of the laws and that the circuit court did not err in ordering a court reporter to be present at all sessions of the Common Pleas Court, Landlord-Tenant Division, without regard to whether the $3 fee had been paid. A party attacking a statutory classification on the grounds of equal protection has the heavy burden of demonstrating that the classification lacks reasonable basis. Detroit Police Officers Ass’n v Detroit, 385 Mich 519, 522; 190 NW2d 97 (1971). If a reasonable relationship exists between a classification and a legitimate state interest, there is no violation of equal protection. In re Konke Estate, 98 Mich App 249; 296 NW2d 226 (1980). We can think of no valid justification for the distinction between landlord-tenant litigants who must assert and defend their rights in the Detroit Common Pleas Court, Landlord-Tenant Division, and litigants who must proceed in the various district courts of this state to assert and defend the same rights that would permit the instant classification and different treatment with regard to the payment of court reporter fees. As was noted by our Supreme Court in Fox v Employment Security Comm, 379 Mich 579, 589; 153 NW2d 644 (1967): "Legislation which, in carrying out a public purpose for the common good, is limited by reasonable and justifiable differentiation to a distinct type or class of persons is not for that reason unconstitutional because class legislation, if germane to the object of the enactment and made uniform in its operation upon all persons of the class to which it naturally applies; but if it fails to include and affect alike all persons of the same class, and extends immunities or privileges to one portion and denies them to others of like kind, by unreasonable or arbitrary subclassification, it comes within the constitutional prohibition against class legislation.” (Quoting Haynes v Lapeer Circuit Judge, 201 Mich 138, 141; 166 NW 938 [1918].) The dictates of equal protection do not comport with a statutory scheme by which some residents of this state are required to pay a fee for a court reporter while others are not even though their litigation may involve similar legal and factual issues. This classification violates the precept in our constitution that the judicial power of the state is vested exclusively in "one court of justice”. Const 1963, art 6, § 1. Litigants in our "one court of justice” cannot be treated differently by the Legislature. Therefore, the statute mandating the payment of a $3 fee for a court reporter in the Detroit Common Pleas Court, MCL 728.4; MSA 27.3654, as well as the attendant Common Pleas Court Rules based upon the statute, CPR 38 and 46.4(b), are unconstitutional. The circuit court did not err in ordering judges of the Detroit Common Pleas Court to provide a court reporter at all judicial proceedings without regard to whether a $3 fee had been paid. Affirmed.

Per Curiam. Defendant was arrested in connection with his participation in the purchase of cocaine by an undercover police officer and was charged with delivery of a controlled substance. MCL 333.7401(1), (2)(a)(iv); MSA 14.15(7401X1), (2)(a)(iv), and MCL 333.7214(a)(iv); MSA 14.15(7214)(a)(iv). Defendant filed a motion to quash the information, alleging that the statutory provisions under which he was charged violated the title-object clause of the Michigan Constitution. Const 1963, art 4, § 24. This motion, together with similar motions presented in six unrelated cases, was heard by a special panel of four Oakland County Circuit Court judges. The panel held that Article 7 of the Public Health Code, MCL 333.7101-333.7545; MSA 14.15(7101)-14.15(7545), was unconstitutional, and it granted defendants’ motions. From an appeal by the prosecution, we reverse and remand for trial. People v Trupiano, 97 Mich App 416; 296 NW2d 49 (1980).

J. H. Gillis, J. On July 19, 1978, defendant tendered a plea of nolo contendere to a charge of receiving and concealing stolen property over the value of $100. MCL 750.535; MSA 28.803. He was placed on three years probation with the last six months to be served in the Detroit House of Cor rection. The conditions of defendant’s probation expressly prohibited violation of any state or federal criminal law and, for two years, the driving of an automobile. On November 29, 1979, a warrant for violation of probation was issued, and defendant was arraigned on that warrant. The notice of probation violation charged that: "On 10/17/79 the defendant was arrested on the charges of Assault With Intent to do Great Bodily Harm and P.O.F.I.C.O.F. [possession of a firearm during the commission of a felony] 79-7418.” A hearing on the charges was conducted on December 6, 1979. The complaining witness testified that she was waiting for a bus on the day of the incident when defendant approached in an automobile and tried to pick her up. She refused his offer of a ride and boarded her bus. However, when she got off the bus and walked toward her school she was again approached by defendant, who grabbed her and attempted to drag her to his car. The complainant struggled, and defendant pulled out a gun, hit her in the head a couple of times, and then shot her. When the complainant followed after defendant to get the license number of his car she was shot again. The complainant testified that she was released from the hospital after four or five days. Following the testimony, the prosecutor noted that defendant was in violation of his probation simply by driving the automobile. The trial court then observed that defendant violated his probation by driving with a gun in the car. The court also concluded that the shooting itself was not the accident that defense counsel made it out to be and found the defendant guilty of violating the terms of his probation. On appeal, defendant contends that his probation was revoked for reasons not specified in the notice of violation. Generally, a trial court’s decision to revoke probation may be based only on the conduct charged in the notice of probátion violation. People v Givens, 82 Mich App 336, 341; 266 NW2d 815 (1978), People v Elbert, 21 Mich App 677, 681; 176 NW2d 467 (1970). However, where the conduct charged in the notice is clearly established and far outweighs the other grounds for revocation stated by the judge, the statement of the other grounds for revocation of probation is not an error resulting in a denial of due process. People v McDonald, 97 Mich App 425, 429; 296 NW2d 53 (1980). At the hearing below, it was clearly established that defendant assaulted the complainant with intent to do great bodily harm and that he possessed a firearm during the commission of that act. Further, that conduct far outweighed the fact that defendant was driving an automobile and had concealed a weapon within that vehicle. Therefore, it is unnecessary to con sider the remarks of the prosecutor and trial court regarding other grounds for revocation as error requiring reversal. Id. Nonetheless, we are disturbed by the manner of notice defendant actually did receive. In pertinent part, MCL 771.4; MSA 28.1134 reads: "Provided however, That the probationer shall be entitled to a written copy of the charges against him which constitute the claim that he violated his probation, and shall be entitled to a hearing thereon.” Even absent such a statutory mandate, written notice of the claimed violations is a minimal requirement of due process. Gagnon v Scarpelli, 411 US 778, 782; 93 S Ct 1756; 36 L Ed 2d 656 (1973), Morrissey v Brewer, 408 US 471, 486-489; 92 S Ct 2593; 33 L Ed 2d 484 (1972). The purpose of the notice requirement is to provide a defendant a reasonable opportunity to dispute, with evidence, the claimed violation. Insufficient or incomplete notice deprives a defendant of the ability to adequately prepare a defense. Cf., People v Irving, 99 Mich App 367, 370; 297 NW2d 668 (1980), Givens, supra. The notice below quite literally charged defendant with violating the terms of his probation by being arrested for assault wpi intent to do great bodily harm and "P.O.F.I.C.O.F.” The conditions of defendant’s probation, while requiring that he not violate any criminal laws, did not prohibit him, nor could they prohibit him, from being arrested. The notion that a person is presumed innocent until proven otherwise is basic to our system of criminal justice, and an arrest, standing alone, does not per se indicate wrongdoing or justify revocation. See Hines v State, 358 So 2d 183, 185 (Fla, 1978). Even if the notice were interpreted as charging defendant with the commission of the two offenses, it nevertheless did not serve to apprise him of that conduct which violated the conditions of his probation. Although a notice of probation violation need not be as specific as an indictment or information, Hines, supra, it should allege facts sufficient to give written notice of the claimed violation which, if proved, would constitute a violation of the probation terms and conditions. Crum v State, 286 So 2d 268 (Fla Dist Ct App, 1973). Thus, the allegations should indicate the specific probation conditions violated, as well as the dates and events supporting the charges. Kartman v Parratt, 397 F Supp 531, 534 (D Neb, 1975). In the instant case, for example, the notice of probation violation might have provided: The probation department now charges that the probationer has violated the terms of probation as follows: (1) On October 17, 1979, on McGraw at Seacot . Streets in Detroit, the probationer violated a state criminal law by committing an assault on one Darlene Fayson with the intent to do great bodily harm, in contravention of MCL 750.84; MSA 28.279. (2) The probationer further violated the state criminal law at the above time and location by committing the assault while in possession of a firearm, in contravention of MCL 750.227b; MSA 28.424(2). Generally, proper written notice is a prerequisite to valid probation revocation. People v Wood, 2 Mich App 342; 139 NW2d 895 (1966). However, here it appears that defendant received actual notice of the charged violations by other means. An information had already been issued charging defendant with the two offenses. In fact, on the same day as defendant’s revocation hearing, he pled guilty to those charges. At the hearing, neither defendant nor counsel requested additional information regarding the claimed violations. Defense counsel expressly stated that he and defendant were prepared to proceed. In light of these circumstances, the failure to provide defendant with adequate written notice of the alleged probation violations was not error requiring reversal. Irving, supra, In re Cobos, 326 Mich 537; 40 NW2d 717 (1950), see also People v Melson, 19 Ill App 3d 438; 311 NE2d 763 (1974), People v Burrows, 18 Ill App 3d 1046; 310 NE2d 478 (1974). Affirmed. "Mr. Roberts [Prosecuting Attorney]: Nothing further. I’d like to have the record .reflect that 79-01222, one of the conditions of probation was no driving. We’ve had testimony that man was driving. I think the court should be aware of that. "The Court: Do you have any other witnesses? "Mr. Roberts: Nothing further. "The Court: Mr. Rice, part of the terms of probation was that Mr. Hunter should not violate any of the laws of Michigan and even if this were an accident, he was driving in the car with a gun. That in itself is a violation of probation. There is no indication to me this was an accident. In fact, it is very strange to me why the charge is assault to do great bodily harm. I am going to recommend a new warrant for the proper charge because the witness testified there was a second shot fired at her. So I have no question at this time that probation has been violated. So I find Mr. Hunter guilty of probation violation. He did commit a felony while on probation.” This is apparently an abbreviation of possession of a firearm while in commission or attempted commission of a felony. MCL 750.227b; MSA 28.424(2). ' Due process, as guaranteed by the Fourteenth Amendment, requires proof of guilt beyond a reasonable doubt to support any criminal conviction. In re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970). Concededly, a probation-revocation hearing is not governed by the same standards of proof and evidentiary rules as a criminal trial. Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972), Gagnon v Scarpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973). Nonetheless, revocation based solely on the fact of an arrest is abhorrent to the concept of due process. The conditional liberty of a probationer is of value not merely to that individual but to society itself through its stake in returning him to a normal and useful existence. Revocation for arrest alone invites arbitrary revocation, the very possibility of which diminishes the likelihood of rehabilitation. Id.

V. J. Brennan, J. Defendant appeals as of right from a judgment finding it liable to plaintiffs for damages based upon a breach of fiduciary duty and negligence. This action was initially brought by two former customers of Computer Payroll and Accounting Systems, Inc. (hereinafter CPAS) against defendant bank. CPAS had previously arranged with plaintiffs, all employers, to perform designated payroll services. CPAS, on behalf of the employers, would calculate and pay the employees’ federal, state, and local withholding taxes, calculate the employees’ net pay, and prepare the net payroll checks. Plaintiffs would then issue checks made payable to CPAS in the amount of the payroll and CPAS’s service fee. Plaintiffs and CPAS would then simultaneously exchange these checks. CPAS maintained its primary general account at defendant bank. The employees’ payroll checks were drawn on this account, and plaintiffs’ corresponding covering checks were likewise deposited in this account. The checks delivered to CPAS from plaintiffs were usually deposited on the same day they were given. Because of the time element, defendant began to encounter some difficulties with the account in the summer of 1975. One problem involved uncollected funds, where a check representing sufficient funding had been deposited but the bank on which it was drawn had not yet paid. Another problem was overdrafting, where the cov ering check had not even been deposited but the payroll checks had been issued and were being cashed. Thereafter began a series of meetings and telephone conversations between defendant bank and CPAS in an effort to resolve the funding of this account. Subsequently, on December 17, 1975, the national bank examiners instructed the defendant bank that the primary account must be closed. The next day the account was closed, and defendant returned all payroll checks presented from December 17, 1975, forward. In January, 1976, CPAS was forced into involuntary bankruptcy. Soon thereafter, plaintiffs filed the instant complaints alleging defendant bank’s liability predicated on breach of contract, breach of fiduciary duty, negligence, and fraud and conversion. CPAS, because of the involuntary bankruptcy, was never made a party defendant. The lower court found in favor of plaintiffs as to liability for breach of fiduciary duty and negligence. The defendant appeals as of right from this judgment. Essentially, only, two issues are before this Court. The first is whether the trial court erred in its finding that defendant bank owed a fiduciary duty to the customers of its depositor, CPAS. The trial court acknowledged that traditional banking laws would protect defendant from such liability. However, it found that the circumstances of the case took it outside of traditional banking laws. Rather, it concluded that the bank had a fiduciary duty toward the plaintiffs. The trial court reasoned that the account was in the nature of a trust and held the defendant bank to a "fiduciary duty”. It opined that the fiduciary duty flowed from such facts as that CPAS was in a new type of business, that CPAS’s business necessitated the use of banking channels, that the sole purpose of the account was to furnish a payroll service, and that defendant knew or should have known that numerous separate employees were indirectly putting money into the account via CPAS. While neither the industry of Counsel nor our own research has resulted in finding any case which deals with the precise issue we are called upon to decide, we are unpersuaded that any of the above facts, either individually or collectively, are sufficient to take the instant case out of the realm of traditional banking laws so as to create a fiduciary duty in favor of CPAS’s customers. A fiduciary duty arises where there is a fiduciary relationship between the parties. Familiar examples are: trustees to beneficiaries, guardians to wards, attorney to clients, and doctors to patients. The duty arises out of the relation subsisting between two persons of such a character that each must repose trust and confidence in the other and must exercise a corresponding degree of fairness and good faith. Black's Law Dictionary (4th ed), pp 753-754. In the instant case, there was no relationship whatsoever between the plaintiffs and defendant bank. Defendant bank did not even know the identity of the plaintiffs nor that they were customers of CPAS. While it is true that the defendant bank could have learned the identity of the customers of CPAS, such an investigation would neither have been proper nor required. It is generally no business of a bank to pry into the affairs of depository customers to determine who the customers of the depositor are or to act on behalf of such persons. In the instant case, we find no privity between plaintiffs and defendant bank on which to base a fiduciary relationship. Also, the nature of CPAS’s business and its need for use of banking services does not automatically create a fiduciary duty on the part of defendant bank. Other businesses, such as check cashing companies, savings and loan associations, credit unions, escrow agents, and money order companies, are not so dissimilar as to their nature and need. Yet the courts have not imposed fiduciary duties upon their depository banks. Nor do any of the facts surrounding this case lead us to conclude that CPAS’s general account with defendant bank possessed any special "trust” qualities. The fact that the money deposited in the account was intended to be used for a specific purpose by CPAS does not make it a trust fund on behalf of defendant bank. The money deposited becomes a trust fund only if it had been deposited with defendant bank on the understanding that it should be set apart for a particular purpose and not commingled with other money of the bank. A trust cannot be implied unless the understanding was that the money deposited for a specific purpose was not to be mingled. Reichert v American State Savings Bank, 264 Mich 366, 368-369; 249 NW 876 (1933), Goodenough v Union Guardian Trust Co, 275 Mich 698, 704; 267 NW 772 (1936). On the evidence in record, there is no showing of either an agreement or an intention of defendant bank or its depositor, CPAS, to set the account up as a trust account. Under Michigan law, the mere fact that some of the checks had "payroll account” printed on them is clearly insufficient to convert the account into a "trust-type” account and to create special duties on the part of defendant bank. Borgess Hospital v Union Industrial Trust & Savings Bank, 265 Mich 156; 251 NW 363 (1933). While we have found no Michigan cases pre cisely on point, Columbia Land Co v Empson, 305 Mich 220; 9 NW2d 452 (1943), is instructive. In Columbia, the Michigan Supreme Court refused to recognize liability on the part of the defendant bank running in favor of plaintiff corporation based upon the malfeasance of the depositor. The Court noted that the bank had no duty toward third parties absent a showing of special tenuating circumstances, viz: fraud, bad faith, connivance, personal benefit or collusion. The Court noted that the bare fact that the depositor itself was a fiduciary did not create any special obligations on the part of the bank for the protection of third parties. The Court cited approvingly the following applicable rule of law: " 'The mere fact, however, that a bank knows that moneys deposited with it have by a depositor been acquired in a fiduciary capacity does not impose on it the duty, or give it the right, to institute an inquiry into the conduct of its customer in order to protect those for whom he may hold the fund, but between whom and the bank there is no privity.’ 26 RCL, § 174, p 1316.” Id., 229. Careful consideration of both the factual and legal aspects of this issue convinces us that nothing alleged nor proven imposes a fiduciary duty upon the defendant bank. To so hold defendant liable under the facts of this case is too radical a departure from well-established, traditional banking laws. The admonition of Justice North aptly describes our concern with the ramifications of the trial court’s decision. "It is too obvious for argument that except the rule [nonliability] announced in the above-cited authorities is followed, a bank accepting a deposit under the circumstances of the instant case would be compelled to do one of two things. It would be compelled to accept and administer the deposit at its peril or to act as a 'supersnooper’ by way of investigating each transaction related to such an account. The banking business of the country should not be hampered or penalized by the adoption of so harsh a rule.” Seaboard Surety Co v State Savings Bank of Ann Arbor, 307 Mich 48, 58-59; 11 NW2d 321 (1943), dissent of North, J. The second issue before this Court is whether the trial court erred in finding that defendant bank breached a "business duty” to plaintiffs. A reading of the trial court’s decision indicates that it reasoned upon the basis of tort liability, i.e., negligence. A fundamental requisite for tort liability is the existence of a duty owing from a defendant to a plaintiff. The element of "duty” is predicated upon a legal relationship between the parties which imposes upon one party a legal obligation for the benefit of the other party. Moning v Alfono, 400 Mich 425, 436-439; 254 NW2d 759 (1977), Clark v Dalman, 379 Mich 251, 260; 250 NW2d 755 (1967). However, in the context of the facts and circumstances of the instant case as previously noted, we are unable to find any evidence of a relationship, agreement, undertaking, or contract on which we can impose a general duty running from' defendant bank to plaintiffs. Indeed, the only relationship which we can discern is the narrow one governed by the Uniform Commercial Code: plaintiffs were the holders of dishonored checks upon which the bank was the drawee. MCL 440.3101 et seq.; MSA 19.3101 et seq., MCL 440.4101 et seq.; MSA 19.4101 et seq. Since liability was neither alleged nor found on this ground, this statutory duty is not before this Court. A case similar to the instant case is Pennsylva nia National Turf Club, Inc v Bank of West Jersey, 158 NJ Super 196; 385 A2d 931 (1978). In that case, the bank was sued on the basis of negligence in allowing a depositor, Mr. Zeek, to overdraw his account by substantial margins, which culminated in substantial damage to the plaintiff. The lower court reasoned that the bank’s pattern of conduct in handling the Zeek account throughout its existence constituted a negligent failure to exercise reasonable care which, in turn, permitted Zeek to carry out his scheme, causing damage to the plaintiff. The appellate court rejected this negligence theory, instead holding that regardless of the manner in which the bank handled the Zeek account the bank owed no duty to the plaintiff giving rise to an action in negligence. The court stated: "However, a fundamental requisite for tort liability is the existence of a duty owing from defendant to plaintiff. [Citations omitted.] In the context of the record facts herein, the bank owed no general duty to Turf Club by way of warning or other notice, merely because the latter undertook to cash its depositor’s checks, which turned out to be dishonored for insufficient funds. Beyond the duty relating to return of the instruments, the drawee bank herein had no duty arising out of a relationship to the holder of the checks which could ripen into tort liability. In the absence of evidence of any agreement, undertaking or contract between plaintiff and defendant from which any special duty can be derived, the improper handling of the Zeek account cannot in the abstract serve as a stepping stone for liability to plaintiff.” Id., 203. We adopt both the holding and rationale as set forth by the Turf Court. Therefore, we conclude that the trial court erred and that the bank cannot be held liable to the plaintiffs under a legal theory of negligence. We find the record barren of any unique relationship by which we can factually distinguish the instant case from other commercial transactions regulated by traditional banking laws and the Uniform Commercial Code. Again, we reiterate that to hold defendant liable under these facts is too radical a departure from well-established law. Under the facts and circumstances of this case, we are unable to find the requisite relationship between plaintiffs and defendant necessary for either a fiduciary or negligence theory of recovery. Since this is fatal to plaintiffs’ cause of action, it is unnecessary to consider the corollary issues raised on appeal. The judgment below is reversed, and the case remanded for entry of judgment in favor of defendant. Costs to be paid by plaintiffs.

D. C. Riley, P. J. Defendant was convicted by a jury of larceny from a person, contrary to MCL 750.357; MSA 28.589, sentenced to serve from one to ten years in prison, and appeals as of right. Of the six assertions of error raised by defendant, we conclude that none, individually or collectively, necessitates reversal and therefore affirm defendant’s conviction. I Defendant contends that the trial court committed error requiring reversal by allowing the prosecutor to recall two police officers to rebut the defendant’s testimony that he repeatedly told the officers that he was helping a friend move when he was arrested. After careful examination of the record, we conclude that the rebuttal testimony was permissible since its evidentiary function was to impeach, contradict, and repel defendant’s inconsistent testimony at trial. In the instant case, the prosecutor’s case in chief primarily rested on the complainant’s positive identification of the defendant. The defendant took the stand on his own behalf and presented an alibi defense. The essence of his alibi was that he had spent the relevant period of time helping a friend move from one home to another. Defendant testified that he was on his way home from helping this friend move when he was picked up by the police and taken to a restaurant where the complainant erroneously identified him as her assailant. On cross-examination, the defendant was asked if he had told the complainant when she identified him that he had been helping a friend move. The defendant testified that he, indeed, had told his alibi to the complainant. Moreover, he affirmatively testified that he also had told his alibi to the police officers when they first stopped him. The defendant, on redirect examination, maintained that he attempted to explain to the officers where he had been but the officers kept telling him to "shut up”. And, on recross-examination, defendant testified that he offered his alibi to the police but that they were not interested in hearing it. In rebuttal to the defendant’s testimony that he had consistently told the complainant and the police officers his side of the story, the prosecution recalled the two arresting officers. In response to narrow, specific questions, both officers testified that, contrary to defendant’s testimony, he had not told them at the time of his arrest that he had been helping a friend move. On these facts, we find that the officers’ testimony was proper rebuttal testimony. Initially, it is necessary to address the pivotal issue of whether testimony is ever admissible at trial to show that the accused remained silent at the time of the arrest. People v Bobo, 390 Mich 355, 359; 212 NW2d 190 (1973), establishes the general rule that the silence of an accused may not be used against him at trial subject to the recognized exception that a defendant’s refusal to speak is admissible to impeach his own inconsistent statements at trial. "We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. 'Nonutterances’ are not statements. The fact that a witness did not make a statement may be shown only to contradict his assertion that he did. ” (Emphasis added.) In Bobo, the Court explicitly recognized that their previous holding in People v Graham, 386 Mich 452; 192 NW2d 255 (1971), continued as the viable exception. In Graham, the defendant testified that he repeatedly told the police at the time of his arrest and while incarcerated that he wanted to explain the whole situation involved in his arrest. The prosecutor cross-examined the defendant as to these assertions. Thereafter, in rebuttal, the police officers were permitted to testify that the defendant had remained silent. The Graham Court noted that an accused has a right to testify or not testify in his own behalf. But once he chooses to take the stand to testify, this privilege cannot be convoluted into a license to commit perjury. Hence, the introduction of otherwise inadmissible evidence is permissible to contradict, impeach, or controvert his trial testimony. Thus, the Graham Court, on facts very similar to the instant case, reached the following, oft-cited conclusion: "In our holding today, we stress that the defendant’s refusal to speak during interrogation is admissible only to impeach his own inconsistent statements at trial.” Id., 458. The facts in the instant case closely parallel the facts in Graham. At trial, defendant testified that he continually attempted to tell his side of the story. Like defendant Graham, "[h]e painted a picture of an innocent individual who attempted at every turn to explain a basic misunderstanding”. Id. The testimony of the police officers fell within this recognized exception, i.e., impeachment of defendant’s own inconsistent statements at trial. See, also, Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971), People v Ames, 60 Mich App 168; 230 NW2d 360 (1975), People v Gant, 55 Mich App 510; 222 NW2d 784 (1974), People v Shegog, 44 Mich App 230; 205 NW2d 278 (1972). Having concluded that the testimony of the police officers was admissible to impeach defendant’s own inconsistent statements at trial, we also conclude that it was properly brought in as rebuttal testimony. Defendant’s interjection of an alibi defense made evidence bearing on this defense both relevant and material. The defendant attempted to strengthen this alibi by testifying on cross-examination that he initially told the police officers that he had an alibi but that the officers were uninterested. Clearly, evidence which directly contradicts this direct assertion of defendant, even though elicited on cross-examination, is proper rebuttal testimony. In People v McGillen #1, 392 Mich 251, 266, 268; 220 NW2d 677 (1974), the Court, after stating that a party is free to contradict the answers which he has elicited from his adversary on cross-examination as to germane, relevant, and material matters, stated: "Generally, the only type of contradictory evidence that is admissible [on rebuttal] is that which directly tends to disprove the exact testimony given by a witness.” (Emphasis added.) The testimony of the police officers squarely falls within these confines. The defendant attempted to bolster his alibi defense by testifying that he previously told the story to the police officers. The rebuttal testimony of the officers was that he had not told them. It was a simple contradiction of defendant’s testimony that directly tended to disprove the exact testimony given by the witness. As so limited, it was proper rebuttal testimony, serving to impeach defendant on a material and relevant matter. McGillen #1, supra, People v Parker, 65 Mich App 592, 595; 237 NW2d 572 (1975), lv den 397 Mich 816 (1976), People v Rosemary Gibson, 71 Mich App 543, 550; 248 NW2d 613 (1976). Finally, we note that People v Bennett, 393 Mich 445; 224 NW2d 840 (1975), and its progeny are inapplicable to the facts of the instant case. Bennett stands for the legal proposition that a prosecutor may not use rebuttal testimony to introduce substantive evidence which properly belongs to his case in chief. It is aimed at preventing an unfair ordering of proofs. This problem does not exist in the instant case. The prosecutor was precluded from introducing in its case in chief any evidence of defendant’s silence by the Bobo rule. Hence, there is no problem of improper and unfair ordering of proofs. More specifically, the Bennett opinion is aimed at the ruse of eliciting a "denial” of some statement not properly in the case so as to interject an issue under the guise of rebutting the "denial”. The "denial” by the defendant is used as a spring board for introducing substantive evidence on a collateral matter. In the instant case, the prosecutor did not elicit a "denial” that the defendant made specific statements; rather, the defendant positively and affirmatively testified that he did indeed make the statements to the police. In rebuttal, the prosecution limited its scope solely to direct contradiction of the statements allegedly made. In short, the facts in Bennett and the instant case are diametrically opposite, and, hence, Bennett is not controlling. II Defendant asserts that the trial court committed error requiring reversal by failing to recognize its discretionary authority to exclude references to defendant’s prior conviction in 1977 of issuing a check without account or credit. Whether or not to allow impeachment by prior convictions is within the trial judge’s discretion. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). However, as stated in People v Cherry, 393 Mich 261; 224 NW2d 286 (1974), "the trial court must positively indicate and identify its exercise of discretion”, in allowing or barring testimony regarding prior convictions. The instant judge never explicitly recognized his discretion on the record and it is not clear that he considered the factors enunciated in People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978). Although the court erred in failing to explicitly note the Crawford factors on the record, examination of the lengthy argument the court had with counsel prior to his ruling convinces us that he considered the appropriate standards before making his ruling. See People v Joyner, 93 Mich App 554, 560-561; 287 NW2d 286 (1979). Further, the error was harmless beyond a reasonable doubt. People v Wilkins, 82 Mich App 260, 272; 266 NW2d 781 (1978). Ill We find no merit in defendant’s contention that the trial court erred in admitting into evidence a photograph of defendant taken shortly after his arrest. We note that the admission of such evidence rests within the sound discretion of the trial judge. People v Eddington, 387 Mich 551, 562; 198 NW2d 297 (1972). In addition, the trial court’s decision regarding the admissibility of evidence will not be disturbed on appeal unless clearly erroneous. People v McKinney, 88 Mich App 715; 278 NW2d 728 (1979). Since defendant’s appearance at the time of trial differed from his appearance at the time of the incident and identification was a primary issue in the case, and since the photograph in question was taken shortly after defendant’s arrest on the day of the incident, we conclude that the trial judge clearly did not err in exercising his discretion to admit the photograph into evidence. IV Defendant’s next assignment of error concerns the prosecutor’s comment during closing argument to the effect that the complainant had a chance, after the incident in question, to pick defendant out of a photographic display, despite the fact that this comment lacked support in the record. As defendant points out, the record does not substantiate that the complainant was shown a photograph of the defendant or that she attended a photographic identification. However, in light of the fact defense counsel failed to object at trial and since the trial judge read the jury a cautionary instruction (see CJI 3:1:09), we believe that the improper argument did not rise to the level of error requiring reversal. V Defendant claims that he was denied effective assistance of counsel because defense counsel elicited inculpatory testimony from one of the arresting officers during cross-examination concerning defendant’s silence at the time of his arrest. In People v Hanna, 85 Mich App 516, 523; 271 NW2d 299 (1978); the Court set forth the standard of review to be used when determining whether a defendant has been denied effective assistance of counsel: "On review of such a claim, the questions posed are: Did defense counsel perform at least as well as a lawyer with ordinary training and skill in the criminal law, and did he conscientiously protect his client’s interests, undeflected by conflicting considerations? If a mistake was made by defense counsel, was that mistake one but for which defendant would have had a reasonable likelihood of acquittal?” (Footnote omitted.) However, the Michigan courts have determined that decisions relative to trial strategy will not support a claim of ineffective assistance of counsel. People v Garcia, 398 Mich 250, 266; 247 NW2d 547 (1976), People v Roberson, 90 Mich App 196, 204; 282 NW2d 280 (1979), People v Malchi White, 81 Mich App 226, 229; 265 NW2d 100 (1978). Our review of the record convinces us that defense counsel performed up to the standard outlind in Hanna, supra. It is probably the case that defense counsel was told by his client that he had told the arresting officers upon his arrest that he had been helping a friend move at the time of the incident since defendant testified to that effect later in the trial. Thus, it appears that defense counsel’s questioning of the police officer was valid trial strategy. The fact that she elicited an answer which she did not expect should not serve as a reason for finding her assistance to defendant ineffective. We therefore reject this contention. VI Finally, defendant claims that the trial court committed error requiring reversal by failing to instruct the jury, sua sponte, on the inherent dangers of identification testimony. CJI 7:7:01. We note at the outset that, contrary to defense counsel’s brief, trial counsel did request an identification instruction and objected to the court’s failure to so instruct the jury. As defendant points out in his brief, the courts have recently recognized the inherent unreliability of eyewitness identification. See United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967), People v Anderson, 389 Mich 155; 205 NW2d 461 (1973). As the commentary to CJI 7:7:01 indicates, however, under certain circumstances, instructions on identification would serve only to confuse the jury and therefore should not be given. An example would be where the witness is positive as to identity, even after searching cross-examination, and where the witness was in a position permitting him or her clearly to observe the person committing the crime. In the instant case, the complainant was positive of her identification of defendant as the man who took her money, even after extensive cross-examination. We cannot say that the trial court abused its discretion in denying defense counsel’s request to instruct the jury on the dangers of identification testimony. Affirmed. Unlike the case of People v Denny, 86 Mich App 40; 272 NW2d 332 (1978), where the admission of a similar conviction discouraged the defendant from taking the stand, here defense counsel, for tactical reasons, chose to soften the impact of the prior conviction by questioning defendant about it on direct examination. See People v Wilbourne, 44 Mich App 376; 205 NW2d 250 (1973). In addition, we believe that had the judge properly delineated his discretion on the record, evidence of the conviction could have been admitted. In light of defendant’s fleeting reference to his prior conviction and the prosecutor’s failure to mention it at all, we consider its admission into evidence harmless. We further note that by Supreme Court Administrative orders adopted May 9, 1980, the Court amended MRE 609. MRE 609(a)(2) now provides that before allowing impeachment by evidence of a prior conviction, the court determines "that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination.” 408 Mich cxv (1980). The commentary to the recommended instructions provide the following guidelines: "NOTE: The identiñcation instruction should be given only when the identifying witness was not in a position which would permit him to observe clearly the person committing the crime, when the witness is not positive as to identity, when his positive statements as to identity are weakened by qualification, by failure to identify the defendant on one or more other occasions or by a prior inconsistent identification or when his identification testimony otherwise appears to be doubtful. No instruction on identiñcation testimony should be given when the identifying witness had a good opportunity for positive identification, he is positive in his identification and his identification is not weakened by prior inconsistent identification or by prior failure to identify, but remains, even after cross-examination, positive and unqualified. To give an instruction on identification under these circumstances would serve only to confuse the jury.” (Emphasis in original.) CJI, p 7-85.

G. R. Corsiglia, J. An appeal is taken from an order of the Livingston County Circuit Court awarding money found in a suitcase buried on vacant, open and unimproved land to the finder, Duane Willsmore, and the Township of Oceola, pursuant to the provisions of the Lost Goods and Stray Beasts Act, MCL 434.1 et seq.; MSA 18.701 et seq., (hereinafter referred to as the "Lost Goods Act”). Interested persons are referred to a prior decision of this Court upon appeal from a summary judgment entered in this case. Doe v Oceola Twp, 84 Mich App 514; 270 NW2d 254 (1978). This case is framed as a declaratory judgment action under GCR 1963, 521. Upon remand, following trial, various motions for directed verdict were granted by the trial court, and the case was withdrawn from the jury. The order and the judgment at issue adjudicated the respective rights of the parties to the money; hence, for purposes of clarity, all parties will be referred to as "claimants” irrespective of their status as plaintiffs or defendants below. The claimants involved in this litigation are as follows: (1) Duane Willsmore, the finder; (2) The Township of Oceola, claimant under the provisions of the Lost Goods Act; (3) Thomas Powell, the land-contract vendee, also claiming the money as the "true owner”; (4) The State of Michigan through the Attorney General, claimant under the Code of Escheats, MCL 567.11 et seq.; MSA 26.1053(1) et seq. The Director of the Michigan State Police was dismissed at trial as an unnecessary party and does not present issues on appeal. The land contract vendors voluntarily relinquished any claim that they may have had for the money and are not parties to this suit. Briefly, the facts are as follows: While hunting on unposted and unoccupied property in Oceola Township in October of 1974, claimant Duane Willsmore found a substantial amount of money ($383,840) buried in a watertight suitcase. He was attracted to the buried suitcase because he noticed an area with branches arranged in a crisscross pattern. When he kicked aside the branches and sod, he found the suitcase in a freshly dug hole. Willsmore took the suitcase, as yet unopened to his home. Later the same day he informed the State Police of his find. A state trooper and claimant Willsmore together pried open the suitcase and discovered the money inside. The State Police took custody of the money, and eventually it was deposited in an interest-bearing account. Albeit a bit tardily, claimant Willsmore complied with the provisions of the Lost Goods Act of Michigan. This act provides that the finder shall give notice to potential owners, post notice in two places within the township of the find, publish notice in a newspaper if the goods are of a value of $10 or more and give notice in writing to the township clerk. The statute requires that these things be done within very short time periods. Claimant Willsmore did not comply with the strict language of the statute. This lapse is understandable in light of the advice he received from the police. After the State Police took custody of the suitcase, they told the finder and his wife to keep silent about the money, informed them that their lives might be in danger, suggested that leaving town for a time might he a good idea and even transported them in a state vehicle at speeds reaching up to 100 m.p.h. accompanied by officers armed with rifles. There is no indication on the record that the delay in complying with the provisions of the Lost Goods Act was a willful refusal to comply, or that it caused it to be more difficult for the true owner of the money to be located. Indeed, claimant Willsmore’s initial action upon finding the property was to notify a governmental authority, not attempt to keep it himself. It is understandable that after receiving instructions from the State Police to keep quiet, claimant Willsmore did not act within the time limits set in the statute. As an initial note, this Court affirms the finding of the trial court that claimant Willsmore substantially complied with the notice provisions of the Lost Goods Act. See Meredith v Melvindale, 381 Mich 572; 165 NW2d 7 (1969). Claimant Willsmore filed a declaratory judgment action in order to obtain a determination of the ownership of the money he found. The State of Michigan intervened in the suit, claiming right to the money under the Code of Escheats. The Township of Oceola claimed an interest in the money under the Lost Goods Act. The land contract vendee, Thomas Powell, also intervened, alleging true ownership and that his rights as a land contract vendee of the property upon which the money was found entitled him to the money. Claimant Powell had been the land contract vendee for less than three months when the money was found. By the time of trial, claimant Powell’s interest in the property had been terminated by a writ of restitution entered against him. The land contract vendors declared earlier that they wanted no interest in the money. Prior to trial, the trial court granted a motion for summary judgment in favor of the finder and the township. This judgment was appealed, and in a prior decision this Court reversed the lower court and remanded for a full hearing on the facts. Doe v Oceola Twp, supra. After several days of trial, at the trial’s conclusion, the court made rulings of law sufficient to dispose of the case on motions for directed verdict. The court found in favor of the finder, Duane Willsmore, and the Township of Oceola, under the Lost Goods Act, and divided the money in an approximate fifty-fifty split. All parties except the township appeal. Since this case involves a substantial sum of money and substantial uncharted areas of law, this Court feels compelled to discuss the various arguments on appeal in detail. Although the law in this area is somewhat confused, it is a universally accepted fundamental principle of property law that the true owner, assuming he presented himself within the one-year statute of limitations of the Lost Goods Act, would be entitled to the money before any other party in this case. However, true ownership must be established to the satisfaction of the court. On the point, this Court affirms the trial court’s directed verdict against claimant Powell asserting a right to the money as the true owner. In the prior appeal from a summary judgment granted by the trial court, this Court remanded, stating: "In the instant case, final determination of the respective rights of each of the parties to the property discovered by plaintiff John Doe rests primarily upon both the weight and the credibility which the trial court assigns to the testimony of defendant Powell. Regardless of which legal theory the court chooses to apply to the facts of this case, if defendant Powell’s assertion of ownership were accepted by the trier of fact, he would prevail.” Id., 519. Upon remand, the trial court concluded, as a matter of law, that claimant Powell’s assertion of true ownership failed. Voluntarily, and perhaps wisely, claimant Powell did not present himself at trial. His attorneys attempted to introduce his deposition testimony, and the trial court ruled that it was inadmissible. In a civil suit the Fifth Amendment may act as a shield to protect a party from cross-examination which would tend to incriminate him. However, claimant Powell attempted to use it as a sword and his absence at the trial was by choice. In addition, because of his continued assertion of the right to remain silent in the face of relevant cross-examination questions at his deposition, the trial court had an alternative basis for excluding the deposition testimony. Claimant Powell argues on appeal that he answered inquiries at his deposition regarding facts sufficient to establish his ownership of the money. He argues that many of the questions at the deposition were unrelated to the facts at issue, and the Attorney General was attempting an impermissible fishing expedition in search of incriminating evidence. However, our reading of the deposition testimony compels us to concur with the ruling of the trial judge. Claimant Powell sought to use, as a standard for answering questions, his own attorney’s opinion, or his personal opinion, whether the questions were germane to the issues before the court. Such a standard is almost inevitably self-serving. At Powell’s deposition, virtually the only answer he would give was the bald assertion that he was the true owner of the money. When asked the sum of money in the suitcase, his answer was incorrect. Due to the nature of the controversy, it was required that a party claiming as true owner prove his ownership. When faced with questions about how he obtained the money and hid it, claimant Powell had the right to assert his constitutional privilege to remain silent. However, the Court not only had the right, but also the duty, to conclude from such silence that claimant Powell did not carry his burden of proof. His right to the money in light of his deposition testimony, even if it were admissible, is an issue about which a trier of fact could reach but one conclusion. Claimant Powell’s claim as true owner fails as a matter of law. In order to establish ownership, he was required to carry the burden of proof. Because of his continued assertion of the right to remain silent at his deposition, relevant cross-examination was impossible. Claimant Powell, by choice, did not testify at the trial. Other evidence bearing on his alleged ownership of the money was not admissible because of its nature as hearsay. The trial court was justified in granting a directed verdict against claimant Powell, claiming as the true owner. Ad questiones legis non repondent juratores; ad questiones facti non respondent judices. (Jurors do not answer the questions of law; judges do not answer the questions of fact.) Claimant Powell is the only party in this suit making a claim as the true owner of the money. Although this case does not reach the happy conclusion of returning the money to its true owner, this should not obscure other desirable policies of the law involved. It is doubtful that there is a person alive today who has not inadvertently parted with some possession of value. The statutes involved in this case were enacted by a Legislature composed of such human beings. This Court will assume as its touchstone that the Legislature intended to create a system of law which would reunite people with the things that they prize, should they become separated from them. Balancing this goal is the need for certainty of title to property. In addition, an obvious goal of any scheme of legislation to reunite ownership and possession is honesty on the part of the finder. If honesty is not encouraged, human nature will limit the number of times that such finds are reported. Surprisingly, in spite of our unfortunate tendency to lose track of our possessions, very little case law has developed in Michigan under the Lost Goods Act or the Code of Escheats. Consequently, this Court is confronted with a situation involving basic statutory construction. The property law doctrine of "treasure-trove” was never adopted in Michigan. Indeed, very few states in this country incorporated this English classification of property into their common law since its historical development was derived from the plundering Roman armies. As far as history records, the Romans did not plunder across the Atlantic Ocean. We decline to adopt the rule where the reason does not apply. Further, in the prior decision of the Court of Appeals in this case, it was stated: "As the disputed fact of defendant Powell’s ownership of the property discovered by plaintiff John Doe has such important ramifications upon the legal rights of the parties, we find it appropriate that this matter be returned to the trial court in order that the weight and credibility to be given his testimony may be determined in a trial on the merits. Should any part of his testimony be disbelieved, the court will be forced to make other determinations of fact, bearing especially upon the intent of the original 'owner’ which also should be made following a full trial.” Id., 521. In the prior decision of this Court, a summary judgment by the trial court was considered. The posture of the case following a full trial upon remand is very different. The trial court had before it certain undisputed facts following the presentation of proofs, including the approximate age of the money buried. It is undisputed from the trial testimony that the money had been in the ground for only a few months, at most. The teller bands wrapped around part of the money indicated that recently it had been in a bank. Hence, even if the doctrine of treasure-trove were a part of Michigan law, it could not apply in the instant case. The brief period of time that the money was buried also effectively eliminates the Code of Es-cheats from application to this case. As noted by this Court in its prior decision, the state carries the burden of establishing its right to escheatable property. The Attorney General has the power to intervene to claim property as escheatable upon one of three grounds: (1) Death of an owner intestate with no known heirs; (2) Owner’s disappearance or absence from last known place of residence for a continuous period of seven years leaving no known heirs; or (3) Owner’s abandonment of the property. See MCL 567.14; MSA 26.1053(4). Clearly, the first two possible grounds for state control of this money do not apply. No evidence was introduced at trial indicating the death of the owner intestate with no known heirs. Undisputed evidence was introduced indicating the money had been buried only a few months. It is the third basis of standing which might appear to apply in this case. At first glance, it seems that the trier of fact had an issue to resolve, to-wit: Whether the property was "abandoned” within the common understanding of the term. If so, the case would have been incorrectly withdrawn from the jury by the trial court. However, the Code of Escheats establishes a clear, narrow definition of "abandonment” which could not apply to the money based on undisputed facts before the trial court. Under the Code of Escheats, "abandoned property” is defined as "property against which a full period of dormancy has run”. MCL 567.15(e); MSA 26.1053(5)(e). A "period of dormancy” is defined to mean a full and continuous period of seven years during which an owner has ceased, failed, or neglected to exercise dominion or control over his property or to assert a right of ownership or possession. MCL 567.15(f); MSA 26.1053(5)(f). Until a period of dormancy has run, the state has no interest in property which appears to have been separated from its owner or one who has a right to possession. If claimant Powell had left the money with the State Police for seven years without asserting a right to it, the Code would apply. Such is not the case before this Court. Clearly, money in the ground for only a few months does not fall within the plain language of the Code of Escheats. Nor does it fall within the policy and historical derivation of the Code. The Law of Escheats developed out of the need for a sovereign to take title when tenure failed because of the absence of heirs. The statute has always been strictly construed, and the burden is on the state to prove that the property is escheatable. Initially, the Code of Escheats involved only real property. It was later expanded to cover personal property in certain narrow instances. In general, it covers personal property in situations where the property has been left with holders who would not be considered "finders” in the usual sense. For example, it is commonly applied to banks and similar institutions. It is generally not applied to individual holders of funds. The Attorney General argues that the Code should apply because it does not cut off title. However, we note that a true owner who does not present himself to reclaim property within a reasonable time and after reasonable publicity is unlikely to suddenly appear at a later date. Effectively then, in most such cases, the act would place title and benefit of a find in the sovereign. No provision exists giving a reward to a finder such as claimant Willsmore. While such a construction of the Code of Escheats may benefit the people of the State of Michigan when the found property is a large sum of money, this Court perceives an overriding public policy in favor of the individual honest-citizen finder of the property. We hold that the Code of Escheats is not applicable to the instant case. Claimant Powell asserts an interest in holding the funds as the land contract vendee. Under certain old common-law precedents, including the doctrine called "locus in quo”, a property owner would be given the right of first possession to hold property for the return of the true owner. The theory is based on the assumption that the owner will be able to find property if it remains in the hands of someone tied to the location where the property was found. Claimant Powell cites Oakland County v Bice, 386 Mich 143; 191 NW2d 338 (1971), in support of his right to possession. However, the case is not on point. In Oakland County, the Supreme Court held that certain money taken from the defendant should be returned, although the defendant would not answer questions regarding the way it was obtained, citing possible self-incrimination. The case is distinguishable from the instant case because the defendant in Oakland County had clear and undisputed prior possession of the money and possession was wrongfully disturbed. Consequently, absent proof of some better right of possession, the money should be restored. In the instant case, claimant Powell has established no similar clear right of prior possession. His claim as the true owner who would be entitled to possession failed as a matter of law. He was not in possession of the property upon which the money was found. At best, he claims under a theory of constructive possession as the land contract vendee. This Court can find no precedent in Michigan which would require it to grant claimant Powell possession of the money under a theory of constructive possession based upon his status as land contract vendee. Land contracts are frequently used as a method of conveyance in Michigan. Adoption of a principle of law granting possession to a land contract vendee would set an impracticable precedent. The interest of a land contract vendee is not always of record. Further, under rules of forfeiture, frequently land contracts do not result in ultimate title. In this case, testimony at trial indicated that claimant Powell no longer even retained an interest in the property upon which the money was found. A true owner returning in search of his goods would find it very difficult to locate a holder in the position of claimant Powell. Title records would not necessarily record his existence. He did not have possession of the property at the time of the find, nor at any later date. Indeed, under the terms of the land contract, it was unlikely that he was able to take possession at the time of the find in a manner likely to reunite the true owner of the money with his funds. Due to the frequent use of land contracts in Michigan, this Court does not find a basis to award the money to claimant Powell by establishing a precedent in favor of the locus in quo owner. This Court finds that the Lost Goods Act is applicable to this property. It could be argued that applying the Lost Goods Act to a suitcase buried on another’s land will encourage inappropriate behavior on the part of people in order that they might become "finders” under the provisions of the act. However, upon reflection, this argument is of limited merit. In the type of case where such a "find” would be inappropriate, the publicity given under the provisions of the Lost Goods Act would bring forward the true owner of the property, very possibly the property owner upon whose land it was found. Notice provisions would require notice to this potential true owner. In addition, in a different factual context, the remedy of trespass would be appropriate to discourage such "finds”. The facts of this case do not support a trespass argument against the finder. The testimony indicated that the land was unposted and unoccupied, and that it had been hunted upon for many years by claimant Willsmore without objection. At best, this was a technical trespass, and the land contract vendee was not in possession to assert such a suit. The Lost Goods Act encourages the goals which this Court considers important in such cases. It provides certainty of title to property by eventually vesting clear title after a set period of time. It encourages honesty in finders by providing penal ties for not turning in property in accord with its provisions and providing incentives for compliance. The act provides notice to potential true owners and publication to seek them out. It provides for registration of the find in a central location where an owner could locate the goods with ease. Parenthetically, this Court notes that the registration more effectively serves the purpose than leaving the goods with the locus in quo owner. The Lost Goods Act provides for appraisal of the goods. There is a reasonable time limit before title to goods is cut off from the former owner or holder. The public obtains a portion of the benefit of a find through receipt of one half of the value by the township. The finder receives an award for his honesty by receiving one half of the value of the property plus costs. Parties to this suit urge this Court to draw a distinction between categories of found property. Many of these distinctions are derived from the common law of other states. This Court has examined the case law precedent in Michigan both prior to the Lost Goods Act and following its enactment. The Michigan Lost Goods Act is a very old statute, dating back to the early nineteenth century. In the historical development of the common law, distinctions between "property embedded in the soil”, "mislaid property” and "locus in quo” did not develop until after the enactment of the Lost Goods Act. The doctrine of "property embedded in the soil” did not become a part of the common law. until the late nineteenth century. See, e.g., Elwes v Brigg Gas Co, 33 Ch D 562 (1886), Allred v Biegel, 240 Mo App 818; 219 SW2d 665 (1949). "Mislaid property” was also developed as a doctrine by the common-law courts in the late nineteenth century. See Deaderick v Oulds, 86 Tenn 14; 5 SW 487 (1887), Foster v Fidelity Safe Deposit Co, 264 Mo 89; 174 SW 376 (1915), A.E.S. Ta4y, "Problems in the Law of Finding: The U.S. Approach”, 37 Australian Law J 350, 351 (1964). The doctrine of the "locus in quo” was brought into existence in the mid-nineteenth century. See Bridges v Hawkesworth, 21 LJQB 75; 15 Jur 1079 (1851), 8 Am J Leg Hist 224, 235 (1964). It should be noted that all three doctrines were developed subsequent to the drafting of the Michigan Lost Goods Act. Hence, to expect the act as drafted with the term, "lost goods”, to reflect such distinctions is inappropriate. "Lost property”, as used in the act, is a broad generic category. We construe the act in terms of the understanding its draftsmen would have had of the term, "lost property”. We conclude that the statute is in effect a "finder’s statute”. The provisions of the act are an eminently reasonable solution to a troublesome problem. Obviously there is a potential for a true owner to turn up in a year and a day to discover that his title has been cut off. However, a line must be drawn to establish clear title to goods at some point. The line which the Legislature has drawn in the Lost Goods Act appears to be a reasonable exercise of legislative judgment. The publicity provided by the provisions of the act will provide some protection for the true owner. Public policy in favor of honesty by finders supports vesting clear title in them at some point. To do otherwise would cause practical problems of continuous bailment. As an early Michigan case noted, the finder of lost goods under the common law obtained only first possessory rights better than all but the true owner. If a true owner were to present himself at a later date, even years after goods were found, the holder of the goods would have to give a good account. The holder (finder) was placed in the position of a permanent bailee for the true owner. Wood v Pierson, 45 Mich 313; 7 NW 888 (1881). The Lost Goods Act provides protection to the finder, a reasonable method of uniting goods with their true owner, and a plan which benefits the people of the state through their local governments. The trial court correctly applied it in this case to grant motions for a directed verdict in favor of the finder, Duane Willsmore, and the Township of Oceola. Affirmed. No costs, a public question being involved.

Per Curiam. Plaintiff was personally injured when a car owned by defendant struck the rear of her car. She filed a complaint alleging serious impairment of bodily function due to defendant’s negligence. Defendant failed to file a timely answer, whereupon. plaintiff brought a motion for default judgment, GCR 1963, 520. The motion was denied following a hearing. Subsequently, defendant answered the complaint and filed a motion for entry of an order dismissing the case under an unspecified court rule. Defendant alleged that plaintiff had failed to present evidentiary support for her claim. An affidavit by defendant’s attorney, in which he attested to the veracity of the statements in the motion, was attached to the motion. Plaintiff answered that there was a genuine issue of material fact as to whether plaintiff sustained a serious impairment of bodily function. In an affidavit attached to plaintiff’s answer, her chiropractor opined that she sustained serious impairment of a bodily function as a result of the accident. A medical report purportedly was attached to the affidavit, but none has been found in the file. Plaintiff now appeals the trial court’s order granting summary judgment in defendant’s favor. MCL 500.3135; MSA 24.13135 preserves tort actions for noneconomic losses to a person injured in an automobile accident where the injured party can establish death, serious impairment of a bodily function or permanent serious disfigurement. This Court has repeatedly held that whether the complainant has suffered serious impairment of a bodily function is a fact question. However, where the injuries are so insubstantial that the plaintiff has failed to reach the threshold of serious impairment, the trial court may remove the cause from the jury and dismiss the case. In order for the court to take the question from the jury, it must first determine that no reasonable juror could view plaintiffs impairment as serious. McKendrick v Petrucci, 71 Mich App 200; 247 NW2d 349 (1976), Hermann v Haney, 98 Mich App 445; 296 NW2d 278 (1980), Gallagher v Parshall, 97 Mich App 654; 296 NW2d 132 (1980), Vitale v Danylak 74 Mich App 615; 254 NW2d 593 (1977). Factors to be considered in determining whether this claim has been established include the extent of the injuries, treatment required, duration of the disability, extent of residual impairment and prognosis for eventual recovery. However, not all of the above criteria are necessary to establish serious impairment of bodily function, nor is the list all-inclusive. Hermann v Haney, supra, 449. Since the trial court considered plaintiffs testimony given at the default judgment hearing and supporting affidavits, it is assumed summary judgment was granted under GCR 1963, 117.2(3), Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974), lv den 391 Mich 816 (1974). In passing on a motion based on subrule (3), benefit of every reasonable doubt must be given to the opposing party. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). Initially, plaintiff contends that opposing counsel’s affidavit filed in support of the motion is not based upon the affiant’s personal knowledge, rendering the motion fatally defective. It is not necessary to address this procedural question because we disagree with the trial court’s finding that there is no genuine issue of material fact as to plaintiffs injuries. At the default judgment hearing, plaintiff testified that she had incurred injuries to her neck, back and shoulders as a result of the accident. She also testified that she received treatments immediately after the accident, that she continued to be under a doctor’s care at the time of the hearing, and that she was instructed to stay off her feet. She further alleged that she cannot perform housework or lift anything and that she has headaches twice a week for which she takes pain medicine. We disagree with the trial court’s conclusion that plaintiffs injuries were "mostly minor”. Reasonable jurors could conclude that plaintiff’s impairment was serious. Viewing the record in the light most favorable to the plaintiff, there is at least a genuine question of fact as to the extent of her injuries. Similarly, see McKendrick, supra, Cassidy v McGovern, 86 Mich App 321; 272 NW2d 644 (1978), Pohl v Gilbert, 89 Mich App 176; 280 NW2d 831 (1979). Reversed and remanded. Costs to abide the outcome.

M. J. Kelly, P.J. Petitioner, Port Huron & Detroit Railroad Company, appeals as of right a decision of the Michigan Tax Tribunal which found the petitioner liable for a single business tax deficiency of $17,073.51, under MCL 208.57(3); MSA 7.558(57)(3). Prior to the hearing below, the parties stipulated that at all times pertinent the petitioner was a corporation electing subchapter S status under the Federal Internal Revenue Code. 26 USC 1371 et seq. The parties also agreed that the petitioner corporation is the "taxpayer” from which the single business tax may be collected. MCL 208.10(2); MSA 7.558(10)(2). As a transportation company, the petitioner’s state tax liability was to be calculated under the terms of MCL 208.57(3); MSA 7.558(57)(3) which provided: "For any tax year ending on or before December 31, 1977, the tax base attributable to this state shall be 30% of the tax base otherwise computed under the provisions of subsection (1). In no event shall the tax so computed be less than an amount equal to the 5ryear average tax liability measured as a percentage of gross receipts, determined by computing the percentage that the taxpayer’s liability for the taxes levied under Act No. 85 of the Public Acts of 1921, as amended, being sections 450.304 to 450.310 of the Michigan Compiled Laws, Act No. 281 of the Public Acts of 1967, as amended, being sections 206.1 to 206.532 of the Michigan Compiled Laws, Act No. 301 of the Public Acts of 1939, as amended, being sections 205.131 to 205.147 of the Michigan Compiled Laws, and the tax levied on the inventory portion of personal property under Act No. 206 of the Public Acts of 1893, as amended, being sections 211.1 to 211.157 of the Michigan Compiled Laws, or Act No. 282 of the Public Acts of 1905, as amended, being sections 207.1 to 207.21 of the Michigan Compiled Laws, bears to the gross receipts of the taxpayer. The 5-year average tax liability under this subsection shall be computed and determined from the 1971 to 1975 tax years. This subsection shall expire December 13, 1977. ” Petitioner calculated and paid its 1976 single business tax based upon its position that the phrase contained in MCL 208.57(3); MSA 7.558(57)(3), "the taxpayer’s liability for [Michigan income tax]” referred to the petitioner’s Michigan income tax liability which for the period in question was zero. The Michigan Department of Treasury, Revenue Division, conducted an audit of the petitioner for the 1976 tax year. As a result of this audit, the department determined that the petitioner should have included in the calculations of its alternative tax under the second part of MCL 208.57(3); MSA 7.558(57X3) the Michigan income tax paid by petitioner’s shareholders which was attributable to the distributive income that the shareholders received from the petitioner corporation. Applying these amounts to the tax computation formula of § 57(3) would leave the petitioner with a tax liability of $14,056. To the propriety of the order of the Tax Tribunal directing payment of this amount and additional interest charges, the petitioner raises two issues. We begin by noting the applicable standard of review for decisions of the Michigan Tax Tribunal. By statute, the Legislature has limited the scope of our review to the circumstances specified in Const 1963, art 6, § 28; MCL 205.753(1); MSA 7.650(53X10): "In the absence of fraud, error of law or the adoption of wrong principles, no appeal may be taken to any court from any final agency provided for the administration of property tax laws from any decision relating to valuation or allocation.” See also Michigan National Bank, Lansing v City of Lansing, 96 Mich App 551, 553; 293 NW2d 626 (1980). The first issue raised by the petitioner concerns the department’s interpretation of the tax computation provision of § 57(3). Specifically, petitioner challenges the department’s holding that taxes paid by the petitioner’s shareholders pursuant to their election to be taxed under subchapter S should be counted toward "the taxpayer’s liability for the taxes levied under” the former Michigan Income Tax Act, MCL 206.1 et seq.; MSA 7.557(101) et seq., as a basis for determining the petitioner’s single business tax liability. Because of its subchapter S status, the petitioner corporation had no income tax liability for the prior five-year period upon which the single business tax was to be determined. Thus, argues petitioner, since the corporation’s average income tax liability was zero, its single business tax liability should also be nothing. The department contends that the statutory phrase "the taxpayer’s liability”, as applied to Michigan income taxes paid from 1971 through 1975, includes those income taxes paid by the petitioner’s shareholders upon distributive income generated by the petitioner’s business activities. If such tax payments are included in the § 57(3) formula, the petitioner’s single business tax liability is $14,056, exclusive of interest. From the above dispute, we must determine whether "the taxpayer’s liability” is that of the corporation or its subchapter S shareholders. The fundamental rule of statutory construction is that we must ascertain and give effect to the Legislature’s intent. City of Lansing v Lansing Twp, 356 Mich 641; 97 NW2d 804 (1959), Arbor Sales, Inc v Dep’t of Treasury, 104 Mich App 181; 304 NW2d 522 (1981). See also Production Credit Ass’n of Lansing v Dep’t of Treasury, 404 Mich 301, 312; 273 NW2d 10 (1978), in which the Supreme Court found the presence of undefined terms of art in the former Income Tax Act "indicative of a legislative intent that the act be inter preted in accordance with the experience and understanding of those who would be expected to use and interpret the act”. With respect to the Single Business Tax Act, the Legislature provided several definitional sections applicable to this case. Initially, under MCL 208.2; MSA 7.558(2), the act denotes the scope of terms specially defined in §§ 208.3 to 208.10 of the act, MCL 208.3-208.10; MSA 7.558(3)-7.558(10), and a reference for terms not specifically defined: "(1) For the purposes of this act, the words and phrases defined in sections 3 to 10 shall have the meanings respectively ascribed to them in those sections. "(2) A term used in this act and not defined differently shall have the same meaning as when used in comparable context in the laws of the United States relating to federal income taxes in effect for the tax year unless a different meaning is clearly required. A reference in this act to the internal revenue code includes other provisions of the laws of the United States relating to federal income taxes.” Thereafter, in MCL 208.10(2); MSA 7.558(10X2), the definition of "taxpayer” is provided: " 'Taxpayer’ means a person liable for a tax, interest or penalty under this act”. The "tax” referred to in this definition is that levied under MCL 208.31(1); MSA 7.558(31)(1) and is generally equal to 2.35% "upon the adjusted tax base of every person with business activity in this state which is allocated or apportioned to this state”. Finally, "business activity” is defined in MCL 208.3(2); MSA 7.558(3X2): " 'Business activity’ means a transfer of legal or equitable title to or rental of property, whether real, personal, or mixed, tangible or intangible, or the performance of services, or a combination thereof, made or engaged in, or caused to be made or engaged in, within this state, whether in intrastate, interstate, or foreign commerce, with the object of gain, benefit, or advantage, whether direct or indirect, to the taxpayer or to others, but shall not include the services rendered by an employee to his employer, services as a director of a corporation, or a casual transaction. Although an activity of a taxpayer may be incidental to another or other of his business activities, each activity shall be considered to be business engaged in within the meaning of this act.” Although the petitioner’s shareholders fit within the definition of "person” provided in MCL 208.6(1); MSA 7.558(6)(1), it is apparent that they are not "person[s] liable for a tax” under the act, since the single business tax may be levied only against "persons with business activity in this state”. As we interpret the permissible scope of business activity as defined above, the activities of petitioner’s shareholders are not included. We also note the reference to subchapter S corporations contained in the former Income Tax Act, MCL 206.81(2); MSA 7.557(181X2), as bearing on the single business tax liability of the petitioner: "A corporation which has filed a proper election under subchapter S of the internal revenue code shall not be subject to the tax imposed by this act with respect to the taxable years for which such election is in effect. Each participant shall include his proportion ate share of the taxable income whether or not distributed and whether or not distributable.” As written, a corporation electing subchapter S status was simply not liable for the corporate income tax formerly imposed under MCL 206.61; MSA 7.557(161). Where the definition of taxpayer in the present act includes only the petitioner corporation and such corporation incurred no state income tax liability by electing under subchapter S, the Tax Tribunal erred by including the shareholder’s tax liability in the computation of petitioner’s single business tax assessment. The petitioner also alleges that if § 57(3) of the Single Business Tax Act is interpreted to include shareholder tax liability, the act would deny to the petitioner its right to equal protection of the laws. US Const, Am XIV; Const 1963, art 1, § 2. We decline, however, to consider the petitioner’s constitutional challenge. **** It is well settled that appellate courts of this state will not review constitutional questions in cases fairly disposed of on alternative grounds. Lisee v Secretary of State, 388 Mich 32, 40-41; 199 NW2d 188 (1972), In re Winkle, 372 Mich 292; 125 NW2d 875 (1964), app dismissed 379 US 645; 85 S Ct 611; 13 L Ed 2d 551 (1965). The opinion and order of the Michigan Tax Tribunal affirming the assessment of $17,073.51 in deficient taxes and interest is reversed and the case remanded for entry of an order dismissing said assessment against the petitioner. Reversed and remanded. C. L. Horn, J., concurred. The total deficiency includes $14,056 for the 1976 tax year plus interest of $3,017.51 computed to September 1, 1978. Since amended by 1977 PA 273, effective December 15, 1977. The taxes referred to in this section, upon which the single business tax is computed, are (1) franchise fees, MCL 450.304 et seq.; MSA 21.205 et seq., (2) the Michigan income tax, MCL 206.1 et seq.; MSA 7.557(101) et seq., (3) the intangibles tax, MCL 205.131 et seq.; MSA 7.556(1), and (4) the tax levied on the inventory portion of the general property tax, MCL 211.1 et seq.; MSA 7.1 et seq., or public utilities material and supplies tax, MCL 207.1 et seq.; MSA 7.251 et seq. The parties stipulated to the petitioner’s liability under the remaining taxes listed in § 57(3): "6. The Petitioner was liable for Franchise Fees for the period 1971 to 1975 and included the correct amount of such Franchise Fees in its calculation under Section 57(3) of said Act (MCL 208.57[3]). "7. The Petitioner was not liable for any Intangibles Tax, and had no inventory subject to the General Property Tax, or Utility Material and Supplies Tax, and correctly did not include any such tax in its calculation of the alternative single business tax under Section 57(3) of said Act (MCL 208.57[3]).” " 'Person’ means an individual, firm, bank, financial institution, limited partnership, copartnership, partnership, joint venture, association, corporation, receiver, estate, trust, or any other group or combination acting as a unit.” "For receiving, earning or otherwise acquiring income from any sources whatsoever there is levied and imposed on every corporation except a financial institution a tax of 5.6% of the taxable income as defined in section 32 subject to the source and attribution rules contained in this act.” See Stockier v Dep’t of Treasury, 75 Mich App 640; 255 NW2d 718 (1977), app dismissed 435 US 963; 98 S Ct 1598; 56 L Ed 2d 54 (1978), in which a previous panel of this Court found against the plaintiffs equal protection challenge to the Single Business Tax Act.

M. J. Kelly, J. In this case, we are asked to declare unconstitutional those sections of the Michigan Adoption Code, MCL 710.54; MSA 27.3178(555.54) and MCL 710.69; MSA 27.3178(555.69), which prohibit the exchange of money or other consideration in connection with adoption and related proceedings. The plaintiffs appeal of right from a January 29, 1980, order of the lower court, denying their motion for summary judgment under GCR 1963, 117.2(3) and granting the defendants’ own motion under the same rule. The parties are in agreement as to the pertinent facts in this decision. Jane Doe and John Doe are pseudonyms for a married couple residing in Wayne County. In response to interrogatories posed by the Attorney General concerning the Does’ marriage and whether any children were born of the marriage, the Does filed virtually identical affidavits stating the following information: "2. That he [she] was married in the City of Farming-ton, Michigan, on August 20, 1965. ”3. That he [she] is the father [mother] of two sons, ages eleven and seven years.” From the nonresponsive answer to question 3, we are unable to say whether the two children were born of the Does’ marriage or are adopted. It is alleged that Jane Doe has undergone a tubal ligation, rendering her biologically incapable of bearing children and that the Does "wish to have a child biologically related to JOHN DOE”. Mary Roe is employed as a secretary by John Doe and also resides in Wayne County. The complaint alleges that these parties contemplate and intend to enter into the following agreement: "(a) That JANE DOE and JOHN DOE will pay MARY ROE a sum of money in consideration for her promise to bear and deliver JOHN DOE’s child by means of artificial insemination. "(b) That a licensed physician will conduct the artificial insemination process. "(c) That prior to the delivery of said child, JOHN DOE will file a notice of intent to claim paternity. "(d) That at the time the child is born, JOHN DOE will formally acknowledge the paternity of said child. "(e) That MARY ROE will acknowledge that JOHN DOE is the father of said child. "(f) That MARY ROE will consent to the adoption of said child by JOHN DOE and JANE DOE”. The agreement also provided that plaintiffs would pay to Mary Roe the sum of $5,000 plus medical expenses. In addition, Mary Roe would be covered by sick leave, pregnancy disability insurance, and medical insurance from her employment while she is off work having the child and recuperating from the delivery. The plaintiffs allege that the disputed statutory provisions impermissibly infringe upon their constitutional right to privacy. This right, first recognized in Griswold v Connecticut, 381 US 479; 85 S Ct 1678; 14 L Ed 2d 510 (1965), was more recently described in Carey v Population Services International, 431 US 678; 97 S Ct 2010; 52 L Ed 2d 675 (1977). In Carey, the Court specifically held that the decision "whether or not to bear or beget a child” was among those protected by the constitu tional right of privacy. See also Harris v McRae, 448 US 297; 100 S Ct 2671; 65 L Ed 2d 784 (1980) ("The constitutional underpinning of Wade [Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973)] was a recognition that the 'liberty’ protected by the Due Process Clause of the Fourteenth Amendment includes not only the freedoms explictly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family life”.) While the decision to bear or beget a child has thus been found to be a fundamental interest protected by the right of privacy, see Maher v Roe, 432 US 464; 97 S Ct 2376; 53 L Ed 2d 484 (1977), we do not view this right as a valid prohibition to state interference in the plaintiffs’ contractual arrangement. The statute in question does not directly prohibit John Doe and Mary Roe from having the child as planned. It acts instead to preclude plaintiffs from paying consideration in conjunction with their use of the state’s adoption procedures. In effect, the plaintiffs’ contractual agreement discloses a desire to use the adoption code to change the legal status of the child — i.e., its right to support, intestate succession, etc. We do not perceive this goal as within the realm of fundamental interests protected by the right to privacy from reasonable governmental regulation. The plaintiffs also allege that the state has no compelling interest sufficient to justify the prohibitions embodied in the disputed statutes and, in addition, that the provisions are drawn too wide to reflect any legitimate state interests in this area. Our disposition of the foregoing issue, however, renders consideration of this issue unnecessary. Affirmed. The statutory provisions sought to be declared invalid provide: "Sec. 54. (1) Except for charges and fees approved by the court, a person shall not offer, give, or receive any money or other consideration or thing of value in connection with any of the following: "(a) The placing of a child for adoption. "(b) The registration, recording, or communication of the existence of a child available for adoption or the existence of a person interested in adopting a child. "(c) A release. "(d) A consent. "(e) A petition. "(2) Before the entry of the final order of adoption, the petitioner shall file with the court a sworn statement describing money or other consideration or thing of value paid to or exchanged by any party in the adoption proceeding, including anyone consenting to the adoption or adopting the adoptee, any relative of a party or of the adoptee, any physician, attorney, social worker or member of the clergy, and any other person, corporation, association, or other organization. The court shall approve or disapprove fees and expenses. Acceptance or retention of amounts in excess of those approved by the court constitutes a violation of this section. "(3) To assure compliance with limitations imposed by this section, by section 14 of Act No. 116 of the Public Acts of 1973, being section 722.124 of the Michigan Compiled Laws, and by section 4 of Act No. 263 of the Public Acts of 1913, as amended, being section 331.404 of the Michigan Compiled Laws, the court may require sworn testimony from persons who were involved in any way in informing, notifying, exchanging information, identifying, locating, assisting, or in any other way participating in the contracts or arrangements which, directly or indirectly, led to placement of the person for adoption.” "Sec. 69. A person who violates any of the provisions of sections 41 and 54 of this chapter shall, upon conviction, be guilty of a misdemeanor, and upon any subsequent conviction shall be guilty of a felony.” The Carey Court summarized those previous decisions in which the right of privacy prohibited unwarranted governmental interference or regulation and which compelled the Court’s conclusion as to the right to bear children: "Although '[t]he Constitution does not explicitly mention any right of privacy,’ the Court has recognized that one aspect of the 'liberty’ protected by the Due Process Clause of the Fourteenth Amendment is 'a right of personal privacy, or a guarantee of certain areas or zones of privacy.’ Roe v Wade, 410 US 113, 152 [93 S Ct 705; 35 L Ed 2d 147] (1973). This right of personal privacy includes 'the interest in independence in making certain kinds of important decisions.’ Whalen v Roe, 429 US 589, 599-611 [97 S Ct 869; 51 L Ed 2d 64] (1977). While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions 'relating to marriage, Loving v Virginia, 388 US 1, 12 [87 S Ct 1817; 18 L Ed 2d 1010] (1967); procreation, Skinner v Oklahoma, 316 US 535, 541-542 [62 S Ct 1110; 86 L Ed 1655] (1942); contraception, Eisenstadt v Baird, 405 US [438], at 453-454 [92 S Ct 1029; 31 L Ed 2d 349 (1972)]; id., at 460, 463-465 (White, J., concurring in result); family relationships, Prince v Massachusetts, 321 US 158, 166 [64 S Ct 438; 88 L Ed 645] (1944); and child rearing and education, Pierce v Society of Sisters, 268 US 510, 535 [45 S Ct 571; 69 L Ed 1070; 39 ALR 468] (1925); Meyer v Nebraska, [262 US 390, 399; 43 S Ct 625; 67 L Ed 1042; 29 ALR 1446 (1923)].’ Roe v Wade, supra, at 152-153. See also Cleveland Board of Education v LaFleur, 414 US 632, 639-640 [94 S Ct 791; 39 L Ed 2d 52] (1974).” 431 US 678, 684-685.

Beasley, J. Plaintiffs own real property fronting on and known as 127 Pope Street, in the City of Lapeer, the dimensions of which are 32.1 feet wide by 110 feet deep on the east and 111 feet deep on the west. The rear of the property abuts plaintiffs’ new and used car and truck dealership. After a nonjury trial, judgment was entered holding (1) a valid nonconforming use for parking and storage of automobiles for sale respecting the south 87.5 feet, (2) multiple residential zoning of the north 23 feet is unconstitutional and confiscatory, and (3) enjoining the city from interfering with plaintiffs’ use of the property for parking and storage of automobiles. Intervening defendants, who will also be referred to as defendants in this opinion and who own adjoining properties, appeal as of right. Plaintiffs purchased the lot on August 2, 1973. At that time, there was a one-family residence on the lot, although it had been represented to plaintiffs by city officials that all but approximately the northern 13 feet of the lot was, or would shortly be, zoned for business. On September 20, 1973, a new zoning ordinance became effective for the City of Lapeer which, in conformance with the statement to plaintiffs, divided plaintiffs’ lot, and all property on that same block, into part business and part residential uses. The dividng line ran approximately 23 feet south of the north line and parallel to Pope Street. In early 1974, pursuant to permission given, plaintiffs tore down the residential house at 127 Pope Street and then, in August, 1974, fenced and blacktopped the lot preparatory to using it for parking of some 12 to 14 cars and for ingress and egress to plaintiffs’ adjoining dealership on Gene-see Street. At that time, at least the south 87.5 feet of the subject lot was zoned for business which permitted these uses, but no certificate of occupancy for a change of use was either requested or obtained. In December, 1974, after a hearing requested by intervening defendants, the zoning board of appeals held that the boundary between the multiple residential district and the business district was a line 23 feet off Pope Street. Thus, under this holding, the north 23 feet of the lot was zoned multiple residential, while the south 87.5 feet of the lot was zoned business. In may, 1975, intervening defendants brought suit against the City of Lapeer, seeking judicial review of the decision of the zoning board of appeals. While that suit against the city was pending, on June 7, 1976, the zoning ordinance was amended so that the subject lot was entirely zoned multiple residential. On July 26, 1977, a consent judgment was entered in the law suit filed by intervening defendants against the City of Lapeer. This consent judgment set aside the zoning board of appeals decision of December 3, 1974, and identified the zoning boundary between the multiple residential and business districts as a line at the rear of the subject lot, the effect being to zone the subject lot entirely multiple residential. Subsequently, in August, 1977, plaintiffs attempted to intervene in that action in which consent judgment was entered, but their petition to intervene was denied on October 17, 1977. Also on October 17, 1977, plaintiffs applied for a variance for the property at 127 Pope Street to authorize parking of automobiles on the subject lot, which request for variance was denied by the zoning board of appeals on December 1, 1977. Plaintiffs then filed the within law suit and obtained the successful result indicated. On appeal, intervening defendants claim that the trial court erred in finding a lawful nonconforming use because they say that when plaintiffs purchased the property it was used for residential purposes and, on tearing down the residential structure, plaintiffs did not obtain a certificate of occupancy, or other form of permission, to change the use from residential to commercial, that is, blacktopping the lot, erecting a fence and using it to store and display motor vehicles and to provide access to their new and used car business. Plaintiffs disagree, saying that the new zoning ordinance, adopted on September 20, 1973, made it clear that the south 87.5 feet of the subject lot was zoned for business uses. Plaintiffs also. claim that the undisputed testi mony is that when, in 1974, they tore down the old residence, blacktopped and fenced the lot and established it as a parking lot accessory to their business, no question of zoning was raised by anyone, although plaintiffs’ intended use was clear to the city. Plaintiffs also say that in the fall of 1974 defendants sought to have the zoning board of appeals interpret the zoning map so as to draw the line between the multiple residential and business zoning to the rear of plaintiffs’ lot, rather than 23 feet from the front. Plaintiffs say that the zoning board of appeals declined defendants’ request and, in their December 3, 1974, determination, confirmed the fact that the lot was zoned B-l. Plaintiffs say that it was not until June, 1976, that the city rezoned the entire lot to multiple residential. In finding a valid, nonconforming use, the trial court held that plaintiffs believed that the subject lot was substantially zoned for, or about to be zoned for, business when they bought it, that they would not have purchased it if it had not been represented to them to be usable business property, and that there was sufficient evidence upon which they could base a belief that the property was zoned, or about to be zoned, for business. The trial court noted that plaintiffs requested and obtained permission to tear down the residential building on the premises and went about paving the lot and using it for commercial parking openly, and that these facts were apparently well known to the city. The trial court concluded that, when the plaintiffs acquired the subject lot in 1973, they had a right to assume they could use it for business purposes, and that they have used the property continuously for parking in conjunction with the dealership. The 1973 zoning ordinance defines nonconforming use in Article 7.02(B) as follows: "Nonconforming Use: A use which lawfully occupied or land at the effective date of this Ordinance or amendments thereto, and that does not conform to the use regulations of the district in which it is located.” We hold that the trial court was not clearly in error in concluding that the south 87.5 feet of the subject lot was lawfully zoned for business by September 20, 1973, shortly after being purchased by plaintiffs. We find that this conclusion was substantially upheld by the zoning board of appeals when that body determined, on December 3, 1974, that the rest of the subject lot, other than the north 23 feet, was zoned for business use. We further find that, since plaintiffs’ use of the subject real property as a parking lot was already in existence at the time of the July, 1976, amendment to the zoning ordinance, the essential requirement for a finding of a nonconforming use was met. The enabling statute for nonconforming uses in home rule cities provides: "The lawful use of land or a structure exactly as the land or structure existed at the time of the enactment of the ordinance affecting that land or structure, may be continued, except as otherwise provided in this act, although that use or structure does not conform with the ordinance.” In Dusdal v City of Warren, the Supreme Court said:______ "A prior nonconforming use is a vested right to continue the lawful use of real estate in the manner it was used prior to the adoption of a zoning ordinance. Though the ordinance be reasonable, it cannot operate to oust the property owner of his vested right.” Since we conclude that the city zoned the south 87.5 feet of the subject lot for a business use after plaintiffs acquired the property, defendants’ technical objection that plaintiffs failed to obtain an explicit permission by way of a certificate of occupancy to use as a parking lot cannot be used as a basis to defeat a lawful, nonconforming use. As indicated, the south 87.5 feet of plaintiffs’ property was zoned for business purposes at the time plaintiffs commenced to so use it. The use to which plaintiffs have put the property is within the business classification established in the ordinance. As indicated, eventually a consent judgment was entered in another law suit between intervening defendants and the City of Lapeer which set aside the line between multiple residential use and business uses established in the zoning ordinance and confirmed by the board of zoning appeals after the December, 1974, hearing and establishd a new line at the rear of the subject lot to distinguish between business use and multiple residential use. Plaintiffs were not a party to the law suit in which the consent judgment was entered. In American Mutual Liability Ins Co. v Michigan Mutual Liability Co, we said: “First, collateral estoppel rules do not require that a consent judgment bind a party to facts which were originally in issue in the action that was settled. A consent judgment reflects primarily the agreement of the parties. * * * The action of the trial judge in signing a judgment based thereon is ministerial only. The parties have not litigated the matters put in issue, they have settled. The trial judge has not determined the matters put in issue, he has merely put his stamp of approval on the parties’ agreement disposing of those matters.” (Footnotes and citations omitted.) The consent judgment entered into between the City of Lapeer and defendants is not binding on these plaintiffs or upon the trial court. The consent judgment did not operate to defeat plaintiffs’ lawfully established nonconforming use. We are then left with the north 23 feet of the subject lot. In this connection, the trial judge ruled as follows: "I think it should also be mentioned that although I don’t determine that it is an unconstitutional zoning ordinance, it certainly is going to be difficult for anybody to build anything under the present zoning having á lot that is economically practical, it may not be impossible to build a single family dwelling , but I’m satisfied from the testimony of Mr. Whitman and indeed the testimony of Mr. Lonsberry as well, that there is no reasonable way that anyone can build either a residential multiple R-2 or R-l on the lot in question, with it’s twenty-three foot width, price is not the only alternative but I’m satisifed as Mr. Whitman indicated that financing would be very difficult, that if it were built it would be to sell and that the present owner, Mr. Peterson, because of his investment todate [sic], would have no possible way of building anything that would be able to be sold where he could make a profit at it.” "* * * I think the neighborhood is reasonably well kept however in this area, one side of the lot in question is presently a large building now that Mr. McAr thur owns and rents out to a number of people. On the other side is the single residence of Mr. LeDuc. Both of these places that I just mentioned do border on the rear of Mr. Peterson’s present business property. I do not think that lot six is going to have such a diminution of value of the property in that area that the parties would be greatly affected by the continuation of the present parking lot in question on lot six. I find that significant, that one of the individuals, Mr. McArthur who is an owner in the area, that if he could buy the property in question he would use it for a parking lot for his own tennants [sic] and now it may be that as a tennant [sic] and could legally under the present zoning use that if he bought that for parking but if that’s true, at least it’s an indication that in this particular area that the parking of the cars that the plaintiff is doing is something that is accepted to some extent as a reasonable use. "Now, I admit that some off street parking by the tennants [sic] in the homes might be somewhat different than parking for used cars but I have seen the dimensions of this particular lot in question and it seems to me that there would not be the amount of traffic generated out of such a size lot, when there is indeed a front exit as well as rear exit. One to Genesee Street, the other to Pope Street. It also seems it is the type of business that does not operate in the late evening and probably not on weekends as well, although that’s a guess on my part.” We note that it would seem impossible under existing building codes to use a parcel 32.1 feet wide by 23 feet deep for residential purposes, particularly while the rear adjoining 87.5 feet was being actively used for business purposes. Under the circumstances of this case, we decline to find the trial court’s findings clearly erroneous and we, therefore, affirm the trial court’s finding that permits the north 23 feet to be used for business purposes. In summary, when plaintiffs acquired the sub ject real property, or very soon thereafter, it was zoned part business (the south 87.5 feet) and part multiple residential (the north 23 feet), and plaintiffs used the entire lot for parking in conjunction with the automobile dealership, which was a business use after August, 1974. The property was not rezoned so as to zone the entire lot multiple residential until June 7, 1976. On that date, plaintiffs had established an in-place, ongoing, lawful business use. After the rezoning of June 7, 1976, plaintiffs’ business use became a nonconforming use lawful under the authority and for the reasons herein indicated. Affirmed. No costs, a public question being involved. Defendant City of Lapeer has not appealed. There is no explanation in the record why plaintiffs’ witness said 13 feet rather than the 23 feet specified in the zoning ordinance. MCL 125.583a; MSA 5.2933(1). 387 Mich 354, 359-360; 196 NW2d 778 (1972). See, also, Norton Shores v Carr, 81 Mich App 715; 265 NW2d 802 (1978), Village of Holly v Gromak, 81 Mich App 241; 265 NW2d 107 (1978). DeMull v City of Lowell, 368 Mich 242; 118 NW2d 232 (1962), and Dingeman Advertising, Inc v Algoma Twp, 393 Mich 89; 223 NW2d 689 (1974). 64 Mich App 315, 327; 235 NW2d 769 (1975). Hibbard v Hibbard, 27 Mich App 112; 183 NW2d 358 (1970).

Per Curiam. Defendant was convicted by a jury of conspiracy to commit first-degree murder, MCL 750.157a; MSA 28.354(1). He was acquitted of first-degree murder, MCL 750.316; MSA 28.548. Testimony at trial established that defendant was hired by Linda Hamilton to cause the death of her husband. On appeal, defendant contends that he was denied a fair trial as a result of the prosecutor’s closing argument. He asserts that the prosecutor improperly commented on defendant’s failure to call alibi witnesses. It is well established that where the defendant presents evidence of an alibi, the prosecutor may comment on the weakness of the alibi defense by pointing out the lack of corroboration testimony to the jury during closing argument. People v Hunter, 218 Mich 525, 528; 188 NW 346 (1922), People v Fuller, 44 Mich App 297, 299; 205 NW2d 287 (1973), affd 395 Mich 451; 236 NW2d 58 (1975). Where defendant produces no testimony in support of the alibi, the prosecutor’s comment is improper. People v Shannon, 88 Mich App 138, 145; 276 NW2d 546 (1979). In the case at bar, defendant testified that he was with relatives and friends during the shooting. Consequently, the prosecutor’s comments were not improper. Hunter, supra. Defendant further cites MCL 768.20(2); MSA 28.1043(2) in support of this allegation of prosecutorial impropriety. The statute requires the prosecutor to file a list of alibi rebuttal witnesses and does not concern the issue raised. See People v Terry Alexander, 82 Mich App 621, 627; 267 NW2d 466 (1978). Next, defendant alleges that the trial court erred in denying his motion in limine to exclude evidence of his recent conviction as an aider and abettor in the murder of a key prosecution witness. The court ruled that the prosecutor could impeach defendant’s credibility by asking him if he had been convicted of a felony, without specificity as to its nature or victim. There are several cases from this Court holding that the use of evidence of an unspecified felony for impeachment constitutes error. Cf., People v Jones, 92 Mich App 100, 109-114; 284 NW2d 501 (1979), People v Garth, 93 Mich App 308, 315-320; 287 NW2d 216 (1979), People v Vincent, 94 Mich App 626, 633-638; 288 NW2d 670 (1980), People v Dixon, 99 Mich App 847, 849; 298 NW2d 647 (1980) . However, there is another line of cases which approve of the rule as being a fair compromise under the circumstances of the case. See People v Moseley, 94 Mich App 461, 465; 290 NW2d 39 (1979), People v Hollis, 96 Mich App 333, 340; 292 NW2d 538 (1980). In People v VanDorsten, 96 Mich App 356, 359; 292 NW2d 134 (1979), this Court noted that the trial court recognized and properly exercised its discretion in allowing impeachment by use of evidence of unnamed felonies. Subsequently, the Supreme Court reversed, holding: "[W]e reverse the Court of Appeals judgment, and kemand the case to the Calhoun Circuit Court for a new trial. It is improper to impeach a defendant by telling the jury only of the existence of unnamed prior felony convictions, without providing the names of the offenses. It is the nature, rather than the fact, of a prior felony conviction which the jury is to use in its evalúa-* tion of credibility.” 409 Mich 942; 298 NW2d 421 (1980). The circumstances herein present a strong case in support of the trial court’s ruling. The prosecutor was allowed to introduce evidence of defendant’s complicity in the other murder in its case in chief due to the fact the defendant had suppressed evidence. People v Salsbury, 134 Mich 537, 569-570; 96 NW 936 (1903). Therefore, the impeachment evidence was merely cumulative. In addition, we note that defense counsel was free to elicit testimony from the defendant establishing the nature of the felony. He apparently chose not to proceed in that manner for tactical reasons. See Garth, supra (dissent of Brennan, J.), 320. Nonetheless, we feel constrained to abide by the Court’s decision in VanDorsten in holding that the ruling was erroneous. However, we find the evidence of defendant’s guilt so overwhelming that the error was harmless. It is difficult to imagine that any of the jurors would have voted to acquit, absent the error. Moseley, supra, People v Makidon, 84 Mich App 287; 269 NW2d 568 (1978), modiñed on other grounds 406 Mich 953; 277 NW2d 644 (1979). Defendant also requests reversal on the ground that he was denied a speedy trial, US Const, Am VI; Const 1963, art 1, §20. A balancing of four factors is required in reviewing this claim: the length of the delay; the reason for the delay; the defendant’s assertion of his right; and prejudice to the defendant. People v Grimmett, 388 Mich 590, 606; 202 NW2d 278 (1972). Approximately 29 months passed before defendant was brought to trial. However, careful review of the record reveals that nine months of the delay were caused by defendant’s motion to remand for a new preliminary examination. This delay is attributed to defendant because, after the long delay, he waived the examination, leading us to conclude that the motion was a stalling tactic. A further nine months of delay were also the cause of dilatory motion tactics of defendant’s second set of attorneys. Much of the delay was the result of the death of the prosecution witness whose murder defendant aided and abetted. He can hardly claim the prosecutor should bear the consequences of that delay. Defendant asserted his right to a speedy trial three times. We note that defendant’s requests for a speedy trial appear insincere in view of the other motions filed which prevented the trial from commencing. See People v Collins, 388 Mich 680, 693; 202 NW2d 769 (1972). We find no substantial prejudice resulting to the defense or to defendant personally. Pretrial incarceration is always "prejudicial” in that the accused is denied many of his civil liberties. Barker v Wingo, 407 US 514, 532; 92 S Ct 2182; 33 L Ed 2d 101 (1972). Defendant asserts that his pretrial incarceration was excessively oppressive. However, this allegation has not been supported in the record. Of the two types of prejudice the defendant may experience while awaiting trial, prejudice to his defense is considered the more crucial. People v Chism, 390 Mich 104, 114; 211 NW2d 193 (1973). This defendant’s case was not prejudiced by the delay. The alibi defense to the murder count was evidently believed by the jury as he was acquitted of the charge. At any rate, his claim that the delay prevented him from locating alibi witnesses, which included his mother, wife, stepfather and sister, is incredulous. We find that the prosecutor has overcome the burden of proving defendant was not prejudiced. Collins, supra, 695. Balancing the four factors, we find no speedy trial violation. See People v Petrov, 75 Mich App 532, 534; 255 NW2d 673 (1977). Finally, defendant seeks reversal due to an alleged violation of the corpus delicti rule. Defendant asserts that a witness was improperly allowed to testify as to admissions made by the killer of the prosecution witness which implicated the defendant. We find the corpus delicti rule inapplicable to this collateral issue. See People v Porter, 269 Mich 284; 257 NW 705 (1934). In addition, the evidence was relevant as tending to prove defendant suppressed evidence leading to an inference of guilt. People v Salsbury, supra, People v Randall, 294 Mich 478, 482; 293 NW 725 (1940). Affirmed.

Per Curiam. Defendant was convicted by a jury for conspiracy to deliver a controlled substance and delivery of a controlled substance, contrary to MCL 750.157a; MSA 28.354(1) and MCL 333.7401; MSA 14.15(7401). Defendant was the owner and driver of a van from which, undercover police officers testified, an illegal drug sale was transacted. The van was seized, and a warrant to search the van was issued on the basis of the affidavit of an officer, who was neither the arresting officer nor one of those working undercover. The search produced incriminating evidence. Defendant contends that the search of his van was illegal because the supporting affidavit for the warrant was insufficient to establish probable cause. The affidavit was not based totally upon the affiant’s own personal observations but upon information relayed to him by fellow police officers. Defendant argues that probable cause could not be based upon this affidavit since it failed to meet the two-pronged test set forth in Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), and Spinelli v United States, 393 US 410; 89 S Ct 584; 21 L Ed 2d 637 (1969). Those cases essentially hold that when an affidavit contains hearsay statements of a confidential informant it must show that the tip was accompanied by some of the underlying circumstances upon which the informant based his conclusions. Second, there must be some basis for concluding either that the informant was credible or that his information in the particular instance was reliable. We do not believe the Aguilar-Spinelli test is applicable to the situation presented here. A number of decisions have held the test inapplicable to information supplied by ordinary citizens. People v Tooks, 403 Mich 568, 577-578; 271 NW2d 503 (1978), People v Harris, 95 Mich App 507, 511; 291 NW2d 97 (1980), People v O’Brien, 89 Mich App 704, 714; 282 NW2d 190 (1979), People v Rodriguez, 83 Mich App 606, 609; 269 NW2d 199 (1978), People v Emmert, 76 Mich App 26, 30-31; 255 NW2d 757 (1977). These decisions all concur that it would be illogical to place a dutiful citizen in the same category as the professional stool pigeon who is often described as a confidential informant and is often himself criminally disposed. We find no reason to distinguish police officers and ordinary citizens for the purpose of meeting the Aguilar-Spinelli test. When one police officer receives information from a fellow officer, the law allows him to assume that his source is credible. See United States v Cox, 464 F2d 937 (CA 6, 1972). Where this information is then presented to a magistrate in an application for a search warrant, the magistrate too may consider the source to be credible. Of course, the information set forth in an affidavit still must be sufficient to convince the magistrate that there is probable cause to believe that the items to be sought will be found in the place to be searched. The affidavit here stated that the affiant gained his information from two police officers who took part in a planned surveillance and whose function it was to make drug purchases. The magistrate could assume that the two officers had experience in this area and had the ability to sufficiently identify illicit drugs. The affiant further stated that it had been his experience that people who sold drugs out of vehicles often carried other drugs in their vehicles. We conclude that the magistrate had probable cause to believe that a search of defendant’s van would produce evidence of marijuana or PCP. Finally, the standard of review for the issuance of search warrants is succinctly stated in People v Iaconis, 29 Mich App 443, 462; 185 NW2d 609 (1971): "This Court may not substitute its judgment for that of the magistrate unless there has been a clear abuse of discretion in his determination of probable cause.” Defendant was also convicted of delivery of a controlled substance under § 7401 of the Public Health Code. MCL 333.7401; MSA 14.15(7401). The Michigan Constitution in pertinent part provides, "No law shall embrace more than one object, which shall be expressed in its title”. Const 1963, art 4, § 24. Defendant argues that his conviction for delivery is invalid in that the Public Health Code embraces substantially more than one object and that nowhere in its title is there reference to controlled substances or criminal penalties for the sale thereof. This same argument was recently rejected in People v Trupiano, 97 Mich App 416, 420; 296 NW2d 49 (1980), lv den 409 Mich 895 (1980). We believe that drug use and addiction comprise a serious health problem. The proscription against unlawful use, sale, or delivery of those drugs is therefore a related object of the Public Health Code and is embraced by the title which sets forth as its purpose "to protect and promote the public health” and to "provide for the prevention and control of diseases”. The title-object clause of the constitution was not designed to prevent the Legislature from simplifying, consolidating, and codifying laws relating to public health. See Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441; 208 NW2d 469 (1973). Defendant also contends that criminal provisions relating to drug sales should more properly be made part of the penal code. This argument was rejected in People v Milton, 393 Mich 234; 224 NW2d 266 (1974). Section 7401 is germane to public health, and the fact that it is also germane to the penal code does not change our decision regarding its constitutionality. Defendant’s conviction is affirmed. The people’s motion to affirm is denied.

R. H. Campbell, J. Defendant appeals as of right after a jury convicted him on February 20, 1979, of breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305, and felonious assault, MCL 750.82; MSA 28.277. On April 19, 1979, defendant was sentenced to concurrent prison terms of 4-1/2 to 15 years for the breaking and entering conviction and 2-1/2 to 4 years for the assault conviction. Defendant argues that the trial judge erred in permitting the prosecutor to introduce at trial the testimony of an alleged accomplice who was not indorsed on the information. We agree but find that it was not reversible error for the reasons herein indicated. During trial, defense counsel objected to the prosecutor’s calling Lionel Gonzales as a witness because Gonzales had not been indorsed on the information as one of the prosecution’s witnesses and because defendant had not received notice that Gonzales would testify. The trial court overruled defendant’s objection, holding that, because Gonzales was an alleged accomplice of defendant, it was not necessary for the prosecutor to have indorsed him before offering his testimony. MCL 767.40; MSA 28.980 requires the prosecutor to indorse on the information and produce at trial all res gestae witnesses whose identities are known by the prosecutor at the time the information is filed. People v Castelli, 370 Mich 147; 121 NW2d 438 (1963), People v Harrison, 44 Mich App 578; 205 NW2d 900 (1973). The purpose of this rule is to insure a full disclosure of the facts surrounding the criminal incident, to protect the accused against the suppression of any testimony that may be favorable to him, and to give the defendant the benefit of cross-examination. People v Raider, 256 Mich 131, 135; 239 NW 387 (1931). However, this general rule is not without exceptions. One of these exceptions is that the prosecutor is not required to indorse or call as a witness any accomplice of the defendant. People v Phillips, 61 Mich App 138; 232 NW2d 333 (1975), People v Czymanski, 52 Mich App 605; 218 NW2d 95 (1974). The reason for this exception was stated by the Supreme Court in People v Raider, supra, 135-136. "Obviously the exceptions were founded upon the recognized inclination or inducement of those close to the accused, by community of interest in the crime or relationship, to perjure themselves, if they deem it necessary, in his behalf, and the incongruity of requiring the prosecution to make such witnesses its own.” In People v Thomas, 49 Mich App 682, 686-687; 212 NW2d 728 (1973), a panel of this Court rejected the claim of a defendant that the trial judge had erred in granting a prosecution motion to indorse an alleged accomplice after the jury had been impanelled. The Court concluded that because the prosecutor was not required to indorse an accomplice of the defendant, "error cannot be predicated upon his late, albeit unnecessary, motion to do so”. Similarly, in People v Lytal, 96 Mich App 140, 162; 292 NW2d 498 (1980), a panel of this Court considered the identical issue and found it to be without merit, "since the prosecutor has no obligation to indorse, produce or call an accomplice witness, his decision to do so at trial cannot be deemed improper”. We do not agree that these two cases were properly decided and we decline to follow them. Both Lytal and Thomas based their conclusions upon the argument that, because a prosecutor has no duty to indorse or call an alleged accomplice of the defendant, the prosecutor may do so if he wishes without giving prior notice to the defendant. However, we believe that the conclusion of this argument does not follow from its premise. That is, the rationale for the rule that the prosecutor need not indorse or call an accomplice of the defendant is that a requirement that he do so would create an anomalous situation in which the prosecutor would be calling as his own a witness more likely to be favorable to the defendant. But that reasoning has no application in this or similar cases in which the prosecutor wishes to call an alleged accomplice whose testimony will not be adverse to the prosecutor. Thus, under these circumstances, the purpose of this exception to the general rule that the prosecutor must call all res gestae witnesses has no application and the prosecutor should be permitted to call the witness only if he has satisfied the dictates of the general rule. Lytal and Thomas were wrongly decided because they applied a rule of criminal procedure to a situation in which it was not intended to be applicable. In doing so, these two cases used the rule, which was meant to be a shield for the prosecutor, in such a way as to permit it to become a sword. Finally, when critically examined, the rule that the prosecutor need not indorse or call witnesses who are alleged accomplices of the defendant violates the due process safeguards to which an accused is entitled. We observe that the accomplice exception has been questioned by this Court. In People v Potts; 55 Mich App 622; 223 NW2d 96 (1974), this Court questioned the rule that a prosecutor has no duty to call an accomplice but found that the question was one for the Supreme Court and refused to modify what it regarded as binding precedent. In People v Irwin, 47 Mich App 608; 209 NW2d 718 (1973), another panel of this Court stated that it was not unlikely that the rule permitting -the prosecution not to indorse accomplices should be re-examined. Again, the Court considered itself bound by Supreme Court precedent that held that the prosecution is not obligated to indorse accomplices. The Supreme Court itself has suggested that the accomplice exception need not apply in the instant situation. In People v Koukol, 262 Mich 529; 247 NW 738 (1933), the defendant was jointly charged with three other individuals. The prosecution moved to indorse these witnesses when the case was brought on for trial. The defendant objected at that point, claiming surprise and seeking a continuance. The Supreme Court found that, if these witnesses were indorsed, the defendant was entitled to a reasonable opportunity to prepare for trial. The Court found error in denying the defense motion for a continuance. While the Koukol Court made no reference to the accomplice exception in its opinion, it clearly applied the general rules regarding res gestae witnesses. Had the Court intended the accomplice exception rule to leave a prosecutor free to call an unindorsed accomplice witness at trial, without any notice to the defendant, the Koukol Court would not have found reversible error in the failure to grant a continuance. We recognize that a prosecutor need not indorse any accomplice witness he does not anticipate calling. If, however, a prosecutor believes he might call an accomplice witness, we hold that he must indorse that accomplice, as he would any other res gestae witness. The prosecutor should designate on the information that he believes the witness is an accomplice. Should the prosecutor not wish to call that witness, he must move to strike that witness’s name from the information. This rule provides a defendant with notice that the prosecution plans to call an accomplice. It also leaves intact the general accomplice exception, which was formulated to protect a prosecutor from calling accomplice witnesses who would be likely to perjure themselves for defendant’s benefit. People v Raider, supra. This new rule should be applied prospectively. In the case at bar, although the defendant objected to the prosecutor calling Gonzales as a witness, he did not claim surprise. The trial record also discloses that cross-examination of Gonzales was very thorough. No issue raised by defendant in this appeal presents reversible error. Thus, any error was harmless and we affirm the conviction. M. F. Cavanagh, P.J., concurred.

Per Curiam. This case involves a contract of indemnification between defendant-appellee, General Motors Corporation, and defendant-appellant, Darin & Armstrong, Inc. The original posture of the lawsuit involved herein was a personal injury claim by plaintiff against four defendants, of which two were General Motors and Darin & Armstrong. After dismissal of one of the original defendants, a jury trial commenced in Wayne County Circuit Court, a settlement was entered into with another defendant and a verdict was rendered for plaintiff against both remaining defendants in the amount of $522,000. The jury also returned a verdict in favor of General Motors on its third-party claim against Darin & Armstrong for $522,000. A motion for new trial filed by Darin & Armstrong was denied in an order of the trial court. At the time of oral arguments on this appeal, Darin & Armstrong had settled with plaintiff. Therefore, this appeal concerns only the contract of indemnifica tion between Darin & Armstrong and General Motors. Defendant Darin & Armstrong first argues that the trial court erred in refusing to grant its motion for directed verdict concerning General Motors’ claim for contractual indemnity. It must here be noted that both Darin & Armstrong and General Motors filed motions for directed verdict concerning General Motors’ contractual indemnity claim against Darin & Armstrong. A trial court in considering a motion for directed verdict must view the testimony and all legitimate inferences in a light most favorable to the nonmoving party. If the evidence establishes a prima facie case, the motion must be denied, Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975), Weeks v Feltner, 99 Mich App 392; 297 NW2d 678 (1980), Wynn v Cole, 91 Mich App 517; 284 NW2d 144 (1979). In slightly different terms, this Court has held that a motion for directed verdict should be denied when the facts, when viewed in a light most favorable to the nonmovant, are such that reasonable persons could honestly reach different conclusions. Tiffany v The Christman Co, 93 Mich App 267; 287 NW2d 199 (1979). Under this standard, two inquiries become pertinent. First, when viewing all the facts and inferences in a light most favorable to General Motors, can it be said that General Motors failed to establish a prima facie case of contractual indemnity? Secondly, when viewing the evidence and inferences in a light most favorable to Darin & Armstrong, could reasonable persons honestly reach different conclusions as to General Motors’ claim against Darin & Armstrong? As to the first inquiry, defendant Darin & Armstrong argues that the trial court erred in refusing to grant its directed verdict motion since: (1) the indemnification agreement contained so many provisions dealing with the allocation of risk that it was ambiguous and unenforceable, (2) the provisions dealing with allocation of risk were over-broad and vague, and (3) the contract did not manifest an intent to indemnify General Motors. This Court does not find Darin & Armstrong’s argument persuasive. When the pertinent portions of the contract between General Motors and Darin & Armstrong are reviewed, it becomes clear that the "general conditions” of the principal contract were modified by certain "special conditions”. The trial court held that the "special conditions” provided the applicable indemnification agreement. The trial court’s construction of the contract in question would not appear to be clearly erroneous. The introduction to the special conditions attached to the contract provided that: "The General Conditions, Specification Section No. 1, are part of this Specification and shall apply in all respects except as modified and extended in the following articles of this section. These Special Conditions, are to supplement, void, supersede, and amend those General Conditions, as the case may be. Where any article of the General Conditions is supplemented hereby, the General Conditions shall be considered as added thereto. Where any such article is amended, voided, or superseded thereby, the provisions of such article not so specifically amended, voided, or superseded shall remain in effect.” (Emphasis added.) The trial court was correct in holding that the "Special Conditions” of the agreement between General Motors and Darin & Armstrong provided the applicable indemnity provision. Darin & Armstrong further contends that the indemnity provision appearing within the special conditions section of the general agreement was overbroad and vague. Although Darin & Armstrong’s brief on appeal does not clearly indicate the rationale for this assertion, it seems that its reasoning is based on MCL 691.991; MSA 26.1146(1). This statute provides that an indemnity provision in a construction contract which seeks to protect the promisee from liability for personal or property damage arising from the sole negligence of the promisee is void as against public policy. See Robertson v Swindell-Dressler Co, 82 Mich App 382; 267 NW2d 131 (1978), lv den 403 Mich 812 (1978), Robinson v A Z Shmina & Sons Co, 96 Mich App 644; 293 NW2d 661 (1980), Peeples v Detroit, 99 Mich App 285; 297 NW2d 839 (1980). The intent of the indemnity provision in the case at bar was not to indemnify General Motors for liability premised on General Motors’ sole negligence. Rather, the provision provides: "Except as specifically provided, with respect to property damage only, under the paragraph hereof entitled 'Fire and Supplemental Insurance’, the Contractor assumes all risks of damages or injuries, including death, to property or persons used or employed on or in connection with the work, and all risks of damages or injuries, including death, to any persons or property wherever located, resulting from any action, omission or operation under the Contract or in connection with the work, whether such action, omission or operation is attributable to the Contractor, any Subcontractor, any material supplier, anyone directly or indirectly employed by any of them, or any other person. Contractor shall indemnify, hold harmless and defend the Owner, its employees, agents, servants and representatives from and against any and all claims and demands of whatever nature, regardless of the merit thereof, which may be asserted against Owner or on account of any such damages or injuries, including death, whether or not such damages or injuries, including death, are caused in part by the negligence of Owner, its employees, agents, servants or representatives, provided, however, that Contractor shall not be obligated to indemnify Owner hereunder for any damages or injuries, including death, caused by or resulting from the sole negligence of Owner. ” (Emphasis added.) It can be seen that this provision states in unambiguous terms that indemnity will not be available to General Motors if liability is premised upon General Motors’ sole negligence. As its last contention on this issue, Darin & Armstrong argues that the indemnity provision did not manifest an intent by the parties to have Darin & Armstrong indemnify General Motors. The law surrounding the construction of indemnity contracts has been recently summarized by this Court as follows: "Indemnity contracts, like other contracts, are to be enforced so as to effectuate the intentions of the parties. Gartside v Young Men’s Christian Ass’n, 87 Mich App 335, 339; 274 NW2d 58 (1978). In ascertaining the intentions of the parties, one must consider not only the language used in the contract, but also the situation of the parties and the circumstances surrounding the contract. Gartside, supra. Indemnity contracts are construed most strictly against the party who drafts them, and against the party who is the indemnitee. Gartside, supra, Fireman’s Fund American Ins Cos v General Electric Co, 74 Mich App 318; 253 NW2d 748 (1977).” Peeples, supra, 294-295. In interpreting the indemnity provision at issue in the instant action, the trial court indicated that it showed a clear intent for Darin & Armstrong to indemnify General Motors. The trial court stated as follows: "I think that the language in the General Motors contract or l-A-3 which we have left here of the special conditions is very specific in its intent, that the owner is to be indemnified from acts of negligence, including its own but not those acts of negligence which might be found to be its sole acts of negligence. That language was obviously drafted to get around the statute but it is clear and I think the Court would have to rule as a matter of law that this is not broad and overbroad language and invalid under any of the cases cited and, therefore, Mr. Dickinson’s motion will be denied.” The trial court’s findings are not clearly erroneous. The indemnity provision appears to envision that Darin & Armstrong would indemnify General Motors from personal injury accidents occuring at the construction site. Darin & Armstrong fails to establish that there are any circumstances in this case that would indicate that the unambiguous language of the indemnity provision was not to be observed. In summary, the trial court did not err in denying Darin & Armstrong’s motion for directed verdict. The trial court was correct in concluding that the indemnity provision contained within the special conditions controlled over the general conditions of the contract and, thereby, provided the applicable indemnity provision. Additionally, the indemnity provision was not overly broad, vague or violative of the statute which prevented General Motors from seeking indemnity for injuries caused solely by its own negligence. Finally, the indemnity provision evidences a clear intent for Darin & Armstrong to indemnify General Motors on the facts of this case. The remaining inquiry as to this issue concerns whether the trial court erred, after having concluded that the indemnity provision was unambiguous and pertained to the facts at hand, when it refused to grant General Motors’ motion for a directed verdict. In denying General Motors’ directed verdict motion, the trial court stated: "The other side of that coin, and this is where I am sure that Mr. Brochert and Mr. Rutt, if you listen to what I say you probably feel you are entitled to a motion for directed verdict, that you are entitled to an indemnity; I do not agree with that either because, and this may seem a little hard for you to understand, but I still do not feel that I can take and say that because the evidence seems at this point to be all — let me rephrase that. You have all said except for Mr. Dickinson, Mr. Brochert has said, Mr. Rutt has said, Mr. Erlich has said that is very clear from all the evidence that has been presented that the jury simply could not find that Darin & Armstrong was not negligent. I cannot say that. They might find Darin & Armstrong was not negligent at all. That is still within their province. Although I would be very surprised, I cannot say that they would not find that General Motors would be negligent. So, I do not think you are entitled to a motion for directed verdict. I think you are entitled to an instruction framed somewhere along the lines of Mr. Brochert’s instruction that if the jury does find that General Motors and Darin & Armstrong were both negligent, then General Motors is entitled to indemnification. I do not think that that is something that can be left to the jury because there is no way the way I read the law is they could find both of them negligent and for Darin & Armstrong to not be liable to General Motors under the indemnification provisions of the contract.” General Motors argues that the construction of a contract is a matter of law for the court and that once the trial court, in the case at bar, determined that the indemnity provision was unambiguous and applicable, a directed verdict should have been granted in its favor. The trial court’s reason for denying General Motors’ motion for directed ver diet would appear to be the trial court’s belief that it was possible for the jury, on the facts of this case, to find General Motors negligent, but find Darin & Armstrong not negligent. This Court does not believe that this reason justified the trial court’s refusal to grant General Motors’ directed verdict motion. The trial court had previously held that the indemnity provision was clear and unambiguous and was applicable to the facts before the court. It is true that in Nanasi v General Motors Corp, 56 Mich App 652, 661; 224 NW2d 914 (1974), this Court held that the question of whether an indemnity contract was "clear and unmistakable” was a question to be reserved for the trier of fact. However, in the case at bar, the trial court had ruled as a matter of law that the indemnity provision was "very specific” and valid. If the trial court had held that the indemnity provision was specific enough so as to establish a prima facie indemnity claim, but not so specific as to clearly and unmistakably provide for indemnity, then perhaps there would have been justification for denying General Motors’ motion for directed verdict. The fact that the jury could have found that General Motors was liable and that Darin & Armstrong was not liable (so as to make the indemnity provision moot) was not a reason for denying General Motors’ motion, since this possibility could easily have been dealt with through an appropriate instruction. However, this being said, we conclude that any error committed was harmless in the totality of circumstances presented by the instant case. The jury returned a verdict finding General Motors eligible for indemnification from Darin & Armstrong for the full amount of the judgment. In this context, it is not reasonable to suggest that the jury’s verdict should be upset. In short, the jury’s verdict was in favor of General Motors’ indemnity claim; so any error committed by the trial court in refusing to grant General Motors’ directed verdict motion is, at this point, inconsequential. The next issue to be addressed by this Court is General Motors’ claim that the trial court erred in failing to grant its motion for a directed verdict on its cross-claim for common-law indemnity. This issue need not detain us, in that it is our conclusion that General Motors waived its right to common-law indemnity immediately prior to closing arguments. This being the case, General Motors will not now be heard to contend that the trial court erred in denying its directed verdict motion. It was General Motors which decided to abandon its common-law indemnity claim prior to this case’s submission to the jury. By so doing, this Court concludes that General Motors has waived, or failed to preserve, any right to now contend that a directed verdict on its common-law indemnity claim should have been granted. The final issue to be addressed in this appeal is whether the trial court erred in denying General Motors actual attorney fees after General Motors’ contractual indemnity claim against Darin & Armstrong proved successful. In connection with this issue, it must first be noted that the lower court record neither substantiates nor refutes General Motors’ allegation that the trial court denied a request for the assessment of attorney fees. There is nothing in the lower court file to indicate that General Motors requested such an assessment or that the trial court denied the request. Defendant Darin & Armstrong does not deny that General Motors requested such an assessment, nor does it deny that the trial court refused to grant the assessment. The general rule concerning the assessment of costs and attorney fees in an indemnity action is stated in 41 Am Jur 2d, Indemnity, § 36, pp 725-727 as follows: "As a necessary part of his damages an indemnitee may recover against his indemnitor interest and his expenses, or necessary defensive fees and expenses, including costs which have been awarded against him in the trial court on his unsuccessful defense of a claim after due notice to the indemnitor. "As a general rule, and unless the indemnity contract provides otherwise, an indemnitee is entitled to recover, as part of the damages, reasonable attorneys’ fees, although there is some authority to the contrary. The allowance of attorneys’ fees is limited to the defense of the claim indemnified against and does not extend to services rendered in establishing the right of indemnity.” (Footnotes omitted.) Whether this Court has accepted this general rule of law is in some doubt. In State Farm Mutual Automobile Ins Co v Allen, 50 Mich App 71, 78; 212 NW2d 821 (1973), it was held that reasonable attorney fees incurred in prior litigation with "a third-party not with the defendant” may be recoverable. This Court cited from McCormick, Damages, § 66, p 246 as follows: " '[WJhere the present defendant has by his wrongful conduct, be it tort or breach of contract, caused the present plaintiff to defend or prosecute previous legal proceedings, the law reverses its restrictive attitude and allows that plaintiff to recover all the expense, including counsel fees, reasonably incurred by him in the prior litigation.’ (Emphasis in original.)” Allen, supra, 78-79. It would appear that the Court of Appeals has taken the view that attorney fees are recoverable in an indemnity action where the fees were an expense incurred in a prior action commenced by principal plaintiff and defended by the party now seeking indemnity and attorney fees. In other words, the attorney fees requested have to have been an expense incurred in the defense of the claim indemnified against and not an expense incurred in establishing the right of indemnity. See Birou v Thompson-Brown Co, 67 Mich App 502; 241 NW2d 265 (1976), lv den 397 Mich 808 (1976), for the application of this rule. If one applied the above-stated rule literally to the case at bar, one might conclude that General Motors was not entitled to attorney fees since a separate indemnity lawsuit was not filed. Rather, the case at bar involves one lawsuit filed by principal plaintiff which was coupled with a third-party indemnity action filed by General Motors. However, we conclude that the above rule is only meant to indicate that General Motors should recover the attorney fees incurred in defending against the plaintiffs principal action and not any attorney fees incurred in the indemnity action against Darin & Armstrong. It is also necessary to bear in mind that General Motors’ indemnity claim in the case at bar was contractual and not based upon the principles of common-law indemnity. Therefore, General Motors’ right to recover attorney fees must be based upon the indemnity agreement in issue. The indemnity agreement in the case at bar provides that the "Contractor shall indemnify, hold harmless and defend the Owner”. (Emphasis added.) One could possibly conclude that this language is not specific enough to enable General Motors to make a claim for attorney fees. It is a long-stand ing rule in the construction of indemnity contracts that, in order to be effective, the terms must be unequivocal. Meadows v Depco Equipment Co, 4 Mich App 370; 144 NW2d 844 (1966), Fireman’s Fund American Ins Cos v General Electric Co, 74 Mich App 318; 253 NW2d 748 (1977), Darin & Armstrong v Ben Agree Co, 88 Mich App 128; 276 NW2d 869 (1979), lv den 406 Mich 1007 (1979). Although this conclusion would not be unreasonble, it is our belief that the better resolution is that the words "hold harmless and defend the owner” strongly indicate that Darin & Armstrong had the contractual obligation to defend General Motors. Darin & Armstrong does not contest General Motors’ allegation that a request to defend the action was made. Under these circumstances, this Court concludes that the trial court did err in not awarding General Motors attorney fees in connection with its successful contractual indemnity claim. On the basis of the last issue, this case is remanded to the trial court so that an assessment of reasonable attorney fees can be made in favor of General Motors. No other error having been found, the judgment of the trial court in all other respects is affirmed. Affirmed in part and remanded. Costs to defendant-appellee General Motors. We do not retain jurisidiction.

T. M. Burns, P.J. The defendant City of Detroit comes before this Court appealing an April 27, 1979, lower court order granting summary judgment in favor of plaintiff on stipulated damages of $276,126.45. We reverse. On September 4, 1970, and July 13, 1973, the Detroit Common Council passed two resolutions that vacated certain streets in the City of Detroit for construction of a sewage treatment facility. On the streets and alleys that were to be vacated pursuant to these resolutions, plaintiff, Michigan Bell, owned several facilities. Qn May 26, 1974, plaintiff filed a complaint in the Wayne County Circuit Court and claimed that defendant had to condemn and compensate Bell for the easements that it owned on the vacated streets and alleys. The damages as stated were later stipulated by defendant. In a May 28, 1978, relocation agreement, plaintiff agreed to move its facilities but without prejudice to its suit for reimbursement from the defendant for the cost of doing so. On April 13, 1979, the Wayne County Circuit Court ruled that plaintiff did have a vested property right in the easements that it owned on the vacated streets and alleys. It was further found that plaintiff had not only a property right in these easements for its facilities, but that it also had a contractual right which defendant could not abridge. The lower court found that defendant was obligated to pay just compensation for condemning plaintiff’s easements. Damages were awarded in the amount of those previously stipulated. The defendant city now appeals, and we reverse. Under the Michigan telephone act, MCL 484.1 et seq.; MSA 22.1411 et seq., telephone companies are given the authority to construct telephone lines along public streets. Upon acquisition of the franchise from the state, a telephone utility’s easement becomes a vested right. City of Niles v Michigan Gas & Electric Co, 273 Mich 255; 262 NW 900 (1935). This franchise from the state Legislature is separate from, and in addition to, any franchise granted by the local municipality in which the utility operates. Lansing v Michigan Power Co, 183 Mich 400; 150 NW 250 (1914). Once the utility accepts the right to operate the franchise, it becomes a contractual right protected by the Fourteenth Amendment for the life of the utility corporation. Id. The dispute in the present case is a simple one. Defendant contends that its police powers permit it to require plaintiff to move its facilities from one street to another for the purpose of making way for a public improvement. Plaintiff, on the other hand, contends that because its easements are vested, it may not be required to relocate its facilities without reimbursement from defendant, as would be the case in any condemnation proceeding. Local governments have no inherent power to regulate public utilities. Detroit v Michigan Public Utilities Comm, 288 Mich 267; 286 NW 368 (1939). The power to do so must be expressly granted in the state constitution, statutes, or municipal charter in order for a municipality to be able to exercise such power. Traverse City v Consumers Power Co, 340 Mich 85; 64 NW2d 894 (1954), Public Utilities Comm, supra. As a general proposition, regulation of a public utility by a local government is valid and constitutional if it is authorized, reasonable, and related to public health, safety, or general welfare. Kalamazoo v Kalamazoo Circuit Judge, 200 Mich 146; 166 NW 998 (1918). Thus, even though a utility has a valid franchise from the local municipality, it may be subject to all regulation by that governmental unit which is reasonably necessary to protect public welfare. Consumers Power Co, supra, Detroit v The Fort Wayne & E R Co, 90 Mich 646; 51 NW 688 (1892). Further, even where the public utility is possessed of a franchise from the state, local units of government are not thereby divested of power to regulate the utility in such ways as are necessary to reasonably protect the general welfare of the community. Consumers Power Co, supra. In Center Line v Michigan Bell Telephone Co, 26 Mich App 659; 182 NW2d 769 (1970), this Court held that where a telephone utility company was forced to relocate its equipment to make way for an urban renewal project, the burden of the relocation had to be born by the taxpayers, not the utility. However, the Court narrowed its holding to the specific case of urban renewal because the Court found that in that situation the Legislature exempted utilities from the common-law principle that subordinated their rights to those of the municipality to exercise the police powers. The Court noted: "Nothing in this opinion should be construed as an attempt to alter the common law right of the city to subordinate the utility’s interest to an exercise of police power in any other setting than urban renewal.” Id., 664. Although our state Supreme Court has held that a school district was not empowered by the Legislature to require a public utility to relocate its facilities without compensation, Detroit Board of Education v Michigan Bell Telephone Co, 395 Mich 1; 232 NW2d 633 (1975), the Court left unanswered the question of whether relocation without compensation can be required by a governmental authority in other circumstances, such as those of the case at bar. The authority of a municipality to exercise police powers for the common good and regulate a utility was made evident in Fort Wayne & ER Co, supra, 654: "The charter of the city of Detroit commits the regulation, supervision, and control of its streets to the common council. It empowers the council to improve the same and to determine the nature and details of such improvement. It gives to the common council the power to control, prescribe and regulate the manner in which the streets shall be used and enjoyed. These powers are held in trust for the public benefit. They cannot be surrendered or delegated to private parties. All franchises granted or contracts made with reference to the use of streets must be made, not only with due regard to their lawful and proper use by others, but subject to the exercise by the municipality of the powers referred to. "The permission given respondent [the utility] to use this street is in subordination to the general power of the municipality over its streets. The city is not under obligation to conform its treatment of its streets to the construction of respondent’s road-bed, but, on the contrary, respondent must conform the construction of its road-bed to such reasonable regulations as are made by the municipality in the reasonable exercise of its powers respecting the use, control, regulation, and improvement of its streets. Street railways occupy public streets subject to the use of such streets by the public, subject to such burdens as may be made necessary by reason of the improvement of such streets, and subject to such changes in the construction of road-beds as improved and changed conditions may demand.” At common law, and in most recent cases to consider this issue, the right of the public utility to use public streets is subject to the right of the local government to require the utility to relocate its lines and facilities at its own expense when made necessary by considerations of public health and welfare. The Pacific Telephone & Telegraph Co v The Redevelopment Agency of Glendale, 87 Cal App 3d 296; 151 Cal Rptr 68 (1978), State Highway Dep’t v Roberts, 215 A2d 250 (Del Ch, 1965), Chicago v Chicago City R Co, 324 Ill 618; 155 NE 781 (1927), Wichita v Kansas Gas & Electric Co, 204 Kan 546; 464 P2d 196 (1970), Commonwealth v Louisville Water Co, 479 SW2d 626 (Ky, 1972), Central Maine Power Co v Waterville Urban Renewal Authority, 281 A2d 233 (Me, 1971), Manchester Gas Co v Griffin Construction Co, 119 NH 179; 399 A2d 970 (1979), Port of New York Authority v Hackensack Water Co, 41 NJ 90; 195 A2d 1 (1963), Southern Union Gas Co v Artesia, 81 NM 654; 472 P2d 368 (1970), New York Telephone Co v Binghamton, 18 NY2d 152; 219 NE2d 184 (1966), Southern Bell Telephone & Telegraph Co v The Housing Authority of Raleigh, 38 NC App 172; 247 SE2d 663 (1978), Urban Renewal Agency of Eugene v Pacific Northwest Bell Telephone Co, 23 Or App 384; 542 P2d 908 (1975), State v Public Utilities Dist, 55 Wash 2d 645; 349 P2d 426 (1960), City of Edmonds v General Telephone Co of the Northwest, Inc, 21 Wash App 218; 584 P2d 458 (1978). The construction of a sewer facility clearly is a governmental function. Beauchamp v Saginaw Twp, 74 Mich App 44; 253 NW2d 355 (1977). Therefore, the case before us is unlike the situation in Center Line, supra, where the public utility was required to relocate equipment to make way for an urban renewal project which amounted to condemnation for a proprietary function rather than a governmental function. On the facts before us, then, we hold that the common-law rule requiring a utility to remove its facilities at its own expense where necessary to protect the public health or general welfare is applicable. As a conse quence, the lower court erred in holding that defendant was obligated to reimburse plaintiff for the relocation expenses. Reversed.

Mackenzie, J. On January 31, 1979, defendant was convicted by a jury of larceny by conversion contrary to MCL 750.362; MSA 28.594. He was sentenced to probation for five years with one of the conditions requiring restitution of $8,447.31 to complainant, Michigan National Bank of Port Huron. Defendant appeals as of right. The evidence at trial revealed the following factual scenario. In September, 1976, defendant was a licensed real estate broker and president of American Heritage Realty, Inc., a Michigan corporation. During this time, American Heritage Realty maintained three accounts at the Michigan National Bank in Port Huron from which defendant was the only corporate officer authorized to withdraw funds. Donald Hunter, the bookkeeper for the corporation, testified that he deposited $1,500 into the corporate escrow account on September 16, 1976. A bank teller erroneously credited the account with $11,500. Although he noticed the mistake, Hunter testified that he did not inform the bank because he thought that the bank would correct it. He did, however, tell defendant of the $10,000 overage that day. Hunter testified that on October 8, 1976, he received the corporate bank statement and noticed that the $10,000 overage had not been corrected. Hunter stated that he immediately notified the bank by phone, drafted a letter to the bank informing it of the overage, and had the defendant sign the letter. Hunter did not know, however, if the letter had in fact been sent. Hunter testified that the next day, at defendant’s direction, he wrote a corporate check for $9,950 drawn on Michigan National Bank and payable to Commerical and Savings Bank. Hunter testified that he had been told that defendant was going to use the check to open accounts at the Commerical and Savings Bank. He testified that after several accounts were opened, he made deposits and withdrawals at defendant’s direction. Defendant was the only person authorized to withdraw money from the accounts. James Frye, an officer of Commercial and Savings Bank, testified that on October 9, 1976, the check for $9,950, along with an additional $2,000, was deposited into three corporate accounts, to wit: $8,950 into a savings account, $1,000 into a checking account, and $2,000 into a third account. By October 12, 1976, $8,450 had been withdrawn from the accounts. In November, 1976, an additional $489.28 was withdrawn. Frye verified that only defendant was authorized to withdraw money from the accounts. Luanne Veroby, an assistant supervisor of bookkeeping at Michigan National Bank, testified that she received a call on Tuesday, October 12, 1976, from a person identifying himself as the bookkeeper for American Heritage Realty. The caller informed her that there was a $10,000 overage in the corporate account. She testified that she was positive of the date because it followed Columbus Day, a bank holiday. She immediately informed her supervisor. On October 13, 1976, the check for $9,950 was received by Michigan National Bank, which honored it. James M. MacTaggart, vice president of marketing and overdrafts for Michigan National Bank, testified that on October 15, 1976, he first learned of the overage and dishonored the check, sending it back to Commercial and Savings Bank. Later, Commercial and Savings Bank notified Michigan National Bank that the 48-hour deadline for dishonoring checks had passed and threatened to sue if the check was not honored. Upon demand, Michigan National Bank honored the check. MacTaggart testified that he subsequently called defendant and asked him to attend a meeting to discuss how American Heritage Realty intended to pay Michigan National Bank. The meeting, held in late October, was attended by MacTaggart, bank president Frank Gandreoni, Donald Hunter, and defendant. At the meeting, MacTaggart stated that defendant offered to pay the overdraft with a 90-day note. After examining the assets of American Heritage Realty, the bank refused the offer. No other discussions were held, and in late October the bank froze American Heritage Realty’s accounts. On December 7, 1976, MacTaggart signed a complaint for larceny by conversion against defendant. In People v Scott, 72 Mich App 16, 19; 248 NW2d 693 (1976), the elements of larceny by conversion were held to be the following: " '(3) First, the property must have some value. " '(4) Second, the property of another must be delivered over to the defendant. (It is immaterial whether the property is delivered by legal or illegal means.) " '(5) Third, the defendant must have (embezzled the property/money; (converted the property/money to his own use); or (hidden the property/money with the intent to embezzle or fraudulently use such property/ money). " '(6) Fourth, at the time of the (embezzlement) (conversion) (hiding) the defendant must have intended to defraud or cheat the owner permanently of that property. " '(7) Fifth, the (embezzlement) (conversion) (hiding) of the property/money must have been without the consent of the owner.’ 5 Michigan Proposed Criminal Jury Instructions 1047 (1975). See, also, People v Franz, 321 Mich 379; 32 NW2d 533 (1948), People v Doe, 264 Mich 475; 250 NW 270 (1933).” In the case at bar, defendant contends that the prosecution has not established sufficient evidence for the jury to conclude that the last four elements of the crime were proven beyond a reasonable doubt. See People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979). Defendant initially argues that there was no delivery of the bank’s money to defendant. The thrust of the argument is that there was no voluntary transfer of possession to defendant because money in a bank account remains the property of the bank which has actual possession of the money and becomes the depositor’s debtor. In support of this argument, defendant cites the Uniform Commercial Code definition of delivery, MCL 440.1201; MSA 19.1201, and Neely v Rood, 54 Mich 134; 19 NW 920 (1884). The facts, however, contradict defendant’s version of the events. Michigan National Bank did not continuously have the funds on deposit. Rather, on October 9, 1976, defendant transferred the funds to several accounts at Commercial and Savings Bank, where they remained until October 12, 1976. On that date, they were deposited into American Heritage Realty, Inc.’s business checking account at Michigan National Bank. However, between the latter date and October 27, 1976, $9,615.27 was withdrawn from the account. Thus, even though resulting from a bank error, there was a voluntary transfer of possession of the funds from Michigan National Bank to defendant. Moreover, due to defendant’s actions, the bank did not retain control of the money. Defendant contends that as Michigan National Bank employees knew about the $10,000 error by October 8 or October 12, 1976, the bank could have refused to accept the check received October 13, 1976, payable to Commercial and Savings Bank. See MCL 440.3409; MSA 19.3409. The testimony of MacTaggart indicated that Michigan National Bank did in fact make a provisional settlement for the check after it failed to give timely notice of dishonor. See MCL 440.4212; MSA 19.4212, MCL 440.4213; MSA 19.4213. Thus, when MacTaggart became aware of the discrepancy on October 16, 1976, the bank was liable for the check to Commercial and Savings Bank and had been threatened with a lawsuit. The fact that the bank may have been able to avoid the loss initially had its employees acted more expediently does not, in our opinion, exculpate defendant’s actions. Because the check was finally paid as of October 15, 1976, and American Heritage Realty continued to exercise dominion over the money, there was sufficient evidence of delivery. The next question is whether there was sufficient evidence at trial that defendant converted the money to his own use. Defendant argues that the prosecution only succeeded in proving that complainant, Michigan National Bank, delivered money to Commercial and Savings Bank for deposit in certain commercial accounts held by American Heritage Realty, Inc., but defendant contends that the record is devoid of any evidence that defendant personally received or converted any of the funds. We do not believe that the phrase "converted to his own use” connotes as narrow an interpretation as defendant suggests. The gist of this element is that defendant exercises dominion or control or uses the property against the interest of the actual owner. The fact that defendant herein apparently converted the bank’s money to the use of the corporation, of which he was president and an employee, did not prevent the jury from concluding that this element of the offense had been proved. We note that the evidence showed that defendant was informed of the bank error and, instead of immediately correcting it, ordered the bookkeeper to draw a check for almost the entire amount and to have it deposited in separate accounts in another bank and that defendant was the only person authorized to withdraw money from any of the aforementioned accounts. Such conduct on defendant’s part leads us to conclude that he actually did the acts complained of or authorized them on behalf of the corporation. See People v Cheff, 37 Mich App 1, 10-15; 194 NW2d 401 (1971). Next, defendant argues that there was insufficient evidence that defendant intended to cheat or defraud the bank of the $10,000. Defendant contends that the bank’s error causing the overage and his offer on behalf of the corporation to repay the bank by signing 90-day notes are inconsistent with the claim of an intent to defraud. We disagree. Hunter testified that he informed defendant of the bank error initially on September 16, 1976, and again on October 8, 1976, prior to defendant’s authorization of the withdrawal of $9,615.27 over a period of 15 days. We reiterate that the fact that the bank perhaps could have prevented the loss initially does not affect defendant’s culpability. MacTaggart testified that when he first confronted defendant regarding repayment, defendant said nothing and then smiled and said that he was not going to do anything regarding repayment. Defendant finally offered to repay the money by signing 90-day notes, refusing to make monthly payments. When this form of repayment was rejected on the basis of the corporation’s assets and liabilities, defendant did not attempt to repay the money by alternate means. In summary, we find that although there was some evidence to support defendant’s theory of a loan, there was also sufficient evidence from which the jury could conclude that he intended to deprive the bank permanently of the money. See People v McIntosh, 103 Mich App 11; 302 NW2d 321 (1981), Hampton, supra. Defendant argues that because employees of Michigan National Bank had knowledge of the mistake prior to accepting the check drawn on the corporate escrow account, the bank consented to the overdraft. Under the Uniform Commercial Code, MCL 440.4401; MSA 19.4401, "[a]s against its customer, a bank may charge against his account any item which is properly payable from that account even though the charge creates an overdraft”. According to the official U.C.C. Comment, payment of an overdraft "carries an implied promise to reimburse the drawee”. Thus, a bank may agree to loan its customer funds by covering an overdraft check. In the case at bar, however, there was sufficient evidence to support the jury’s finding that the bank did not agree to loan defendant the money. Certain bank employees were apprised of the error prior to payment, but the check was paid and the deadline to dishonor it had passed before news of the error reached higher bank officers. The bank only agreed to pay the check under threat of a lawsuit from Commercial and Savings Bank. Again, we note that the bank’s negligence does not insulate defendant from criminal liability. The facts similarly belie defendant’s assertion that the bank misused process by using the criminal courts to collect a civil debt. Contrary to this contention, the record indicates that civil proceedings to collect the debt from the corporation were pending at the time of trial. We can only conclude that the prosecution was initiated in an effort to vindicate the law. See People v Moore, 43 Mich App 693, 697; 204 NW2d 737 (1972). Finally, defendant contends that the Legislature did not intend the statute proscribing larceny by conversion to apply to persons writing checks with insufficient funds. Defendant argues that such conduct is properly punishable only under the statute making it a crime to write checks without sufficient funds, MCL 750.131; MSA 28.326. In People v LaRose, 87 Mich App 298; 274 NW2d 45 (1978), a panel of this Court held that where defendant’s only act constituting a "false pretense” was the presentation of an insufficient funds check, it was an abuse of prosecutorial discretion to charge him with obtaining money by false pretenses rather than writing a check without sufficient funds. The LaRose Court noted that: "Prosecuting attorneys have broad discretion in determining under which of two possible applicable statutes a prosecution shall be instituted. People v Lombardo, 301 Mich 451; 3 NW2d 839 (1942), People v Heber, 42 Mich App 582; 202 NW2d 571 (1972). Prosecutorial discretion is not, however, unlimited. People v Birmingham, 13 Mich App 402, 406-407; 164 NW2d 561 (1968). "It is necessary to distinguish between cases where the two possible applicable statutes prohibit the same conduct and cases where the statutory crimes are distinct. In People v Sanford, 65 Mich App 101; 237 NW2d 201 (1975), aff'd 402 Mich 460; 265 NW2d 1 (1978), for example, the defendants argued that the prosecutor had abused his discretion in charging them with assault with intent to rob while unarmed, MCL 750.88; MSA 28.283, instead of with unarmed robbery, MCL 750.530; MSA 28.798. The defendants contended that it was a denial of equal protection to have two statutes with different penalties prohibiting the same conduct. Because the assault charge required an assault, whereas the robbery charge required either an assault or force and violence, the two statutes prohibited different conduct. The prosecutor, therefore, had discretion to charge under either statute. Also see People v Graves, 31 Mich App 635; 188 NW2d 187 (1971), where this Court noted that a conviction of larceny in a building, MCL 750.360; MSA 28.592, in contrast to simple larceny, MCL 750.356; MSA 28.588, requires proof of the additional aggravation of stealing from a building. Since the statutes are distinct, the prosecutor had not abused his discretion in charging the greater offense. And in People v Shaw, 27 Mich App 325; 183 NW2d 390 (1970), lv den 385 Mich 760 (1971), this Court found no error in charging the defendant with forgery, MCL 750.248; MSA 28.445, instead of with the misdemeanor of unauthorized use of a credit card, MCL 750.219a; MSA 28.416(1). While recognizing that general statutes are controlled by specific statutes, the Court emphasized that the specific credit card offense did not necessarily involve the same elements as the more general forgery statute”. Id., 302-303. In McIntosh, supra, this Court held that the prose cutor did not abuse his discretion in charging defendant with larceny by conversion rather than refusal or wilful neglect to return rented property. The Court reasoned that the element of intent to deprive the owner permanently of his property requisite for the more serious crime differentiates the offenses so that it could not be said that refusal to return rented property is merely a specific species of larceny by conversion. In the case at bar, the prosecutor was required to prove more than that defendant, with the intent to defraud, presented a check for payment without having sufficient funds. See MCL 750.131; MSA 28.326, LaRose, supra, 300-301. In fact, the prosecutor had the burden of proving that valuable property was mistakenly delivered to defendant, that defendant, knowingly and with intent to deprive the owner of the property, converted it to his use, and that the owner did not consent to the conversion. Moreover, defendant’s conduct in hiding the error from the bank, transferring the funds to several accounts in another bank, and spending the money amounted to more than writing a check without having sufficient funds in the account. In summary, we find that defendant was properly charged and convicted with larceny by conversion. Affirmed.

J. H. Gillis, J. Plaintiff, Beadling, served as Director of the House of Representatives Fiscal Agency since 1970. On January 27, 1977, he was fired from that position by the House Appropriations Committee. Plaintiff is also a veteran of the United States Navy, having been honorably discharged from that service branch in November of 1954. On February 7, 1977, plaintiff wrote to the Governor and requested a hearing concerning his discharge pursuant to the preference in employment act, MCL 35.401 et seq.; MSA 4.1221 et seq. Plaintiff received a response from the Governor one week later which indicated that appropriate action would be taken once an opinion from the Attorney General was received. Plaintiff waited for further reply and then commenced the present mandamus action on July 27, 1977. Following trial on a stipulated set of facts, the lower court denied mandamus relief. Plaintiff appeals as of right. The issuance of a writ of mandamus is not a matter of right but is discretionary and is governed by equitable principles. Board of Education of Oakland Schools v Superintendent of Public Instruction, 401 Mich 37, 43-44; 257 NW2d 73 (1977). "Mandamus lies only when there is a clear legal duty incumbent on the defendant and a clear legal right in the plaintiff to the discharge of such duty. Miller v Detroit, 250 Mich 633; 230 NW 936 (1930). The specific act sought to be compelled must be of a ministerial nature, that is, prescribed and defined by law with such precision and certainty as to leave nothing to the exercise of discretion or judgment. Taylor v Ottawa Circuit Judge, 343 Mich 440; 72 NW2d 146 (1955), Bills v Grand Blanc Twp, 59 Mich App 619; 229 NW2d 871 (1975), State Board of Education v Garden City School Dist, 62 Mich App 376; 233 NW2d 547 (1975).” Board of County Road Comm’rs of the County of Oakland v State Highway Comm, 79 Mich App 505, 509; 261 NW2d 329 (1977). This Court will not interfere with the denial of mandamus relief absent a clear abuse of discretion. Cyrus v Calhoun County Sheriff, 85 Mich App 397, 399; 271 NW2d 249 (1978). The lower court concluded that the Legislature did not intend to include itself within the provisions of the preference in employment act. This conclusion was reached through interpretation of the statutory authorization for the agency, MCL 4.326a; MSA 2.138(16a), and reliance on Board of Education of City of Detroit v Campbell, 256 Mich 350; 239 NW 370 (1931). The Campbell decision concerned a bylaw adopted by the Detroit Board of Education requiring employees to retire at the age of 70. The defendant protested his mandatory retirement, alleging that it violated the act as applied to municipalities. The school board prevailed in a declaratory action, and the Supreme Court affirmed. The Court stated that school districts were not within the confines of the act since they were neither "public departments”, "public works”, nor "municipalities”. Further, it was observed that the statute creating school districts gave school boards full power over their teachers and other employees "notwithstanding any general or special law to the contrary”. The Court viewed that as evidence of a legislative intent to exclude school districts from the act. Id., 354-355. The statute creating the House Fiscal Agency lacks similar language and, therefore, does not by its own terms exclude the agency from the ambit of the preference in employment act. Further, it appears that the act itself includes the Legislature within the definition of "public department”. The primary rule of statutory construction is to determine and effectuate the Legislature’s intent. King v Director of Midland County Dep’t of Social Services, 73 Mich App 253, 258; 251 NW2d 270 (1977). The statute here was originally enacted as 1897 PA 205 and was designed to give preference to Civil War veterans seeking employment in public departments and public works. However, the right to a hearing prior to discharge was only provided to veterans employed in public works. Veterans working in public departments were provided the right to a hearing by a subsequent amendment to the act. 1907 PA 329. The 1907 amendment was an apparent response to the narrow interpretation given to the act in Ellis v Common Council of Grand Rapids, 123 Mich 567, 569; 82 NW 244 (1900). In Ellis, the Supreme Court refused to extend the hearing right to veterans employed in public departments. The Court stated: "A 'public department’ is defined as 'a division of official duties or functions; a branch of government; a distinct part of a governmental organization: as, the legislative, executive, and judicial departments; the department of state, of the treasury, etc.’ ” At the time, the Michigan Constitution divided the government into three "departments”: the legislative, executive, and judicial. Const 1850, art 3, § 1. The Legislature is presumed to be aware of judicial interpretation of a statute, and when the statute is substantially reenacted the Legislature is deemed to have adopted that construction. Jeruzal v Wayne County Drain Comm’r, 350 Mich 527, 534; 87 NW2d 122 (1957). Here, the Legislature can be presumed to have adopted the Ellis definition of public department and to have intended to include its own employees within the act. Nevertheless, the act is unconstitutional when applied in this manner. Article 3, §2 of the 1963 Constitution provides: "The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” This section makes it clear that the three government branches are to be separate and coequal. In the Matter of the Petition for a Representation Election Among Supreme Court Staff Employees, 406 Mich 647, 662; 281 NW2d 299 (1979). The concept of separation of powers would be violated if the executive branch was allowed to judge the competency of a discharged employee of the legislative branch and order reinstatement. Plaintiffs position was one of some sensitivity within the legislative process. His responsibilities included review of the Governor’s proposed budgets and development of the Legislature’s proposed budgets. To permit executive overview of that position would allow a dangerous incursion into the legislative realm. While the constitution expressly permits the Legislature to enact laws for the resolution of disputes involving public employees, Const 1963, art 4, §48, that provision is inapplicable in this situation since it would otherwise substantially impair the separation of powers clause. Cf., People v Blachura, 390 Mich 326, 333; 212 NW2d 182 (1973). In summary, although the lower court erred in concluding that the Legislature intended to exclude itself from the preference in employment act, denial of mandamus relief was nonetheless appropriate as application of the statute to legislative employees is unconstitutional. Affirmed. The House Fiscal Agency was established by 1965 PA 412, as amended, MCL 4.326a; MSA 2.138(16a): “There is created an agency to be known as the house fiscal agency to be of service to the appropriations committee of the house. It shall be governed by a committee of 3 members, including the chairman and 2 other members of the committee to be appointed by the chairman, 1 from the minority party.” As director of the agency, plaintiff was responsible for personnel matters, review of the Governor’s proposed budgets, development of the Legislature’s proposed budgets, analysis of bills introduced in the Legislature, as well as other special projects requested by members of the Appropriations Committee. MCL 35.402; MSA 4.1222 provides in part: "No veteran or other soldier, sailor, marine, nurse or member of women’s auxiliaries as indicated in the preceding section holding, an office or employment in any public department or public works of the state * * * shall be removed or suspended, or shall, without his consent, be transferred from such office or employment except for official misconduct, habitual, serious or willful neglect in the performance of duty, extortion, conviction of intoxication, conviction of felony, or incompetency; and such veteran shall not be removed, transferred or suspended for any cause above enumerated from any office or employment, except after a full hearing before the governor of the state if a state employee, * * * and at such hearing the veteran shall have the right to be present and be represented by counsel and defend himself against such charges * * 1897 PA 205 provided in part: "Section 1. The People of the State of Michigan enact, That in every public department, and all public departments in all municipal corporations, and upon the public works of the State of Michigan, honorably discharged union soldiers, sailors and marines of the late rebellion shall be preferred for appointment and employment; age, loss of limb or other physical impairment which does not, in fact, incapacitate, shall not be deemed to disqualify them: Provided, however, That the applicant shall have been a resident of the State for at least five years and of the county in which the office or position is located for at least two years and possesses other requisite qualifications. "Sec. 2. No veteran holding an office or employment in the public works of any city or town of the State shall be removed or suspended, or shall, without his consent be transferred from such office or employment, except after a full hearing before the mayor of such city or before the common council of such town, and at such hearing the veteran shall have the right to be present and to be represented by counsel. Such removal, suspension or transfer, shall be made only upon a written order of the mayor or of the common council.” Const 1963, art 4, § 48 provides: "The legislature may enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service.”

Per Curiam. This was an action for survivor’s benefits under the no-fault insurance act, MCL 500.3108; MSA 24.13108. In her complaint, plaintiff alleged that she and Kenneth Bennett lived together as husband and wife, that Bennett was killed in a truck/train collision in Detroit, Michigan, and that Bennett had been insured under a no-fault automobile insurance policy issued by defendant. A request for admissions filed by defendant pursuant to GCR 1963, 312.1 revealed that plaintiff and Kenneth Bennett had never gone through a ceremonial marriage. Defendant moved for summary judgment pursuant to GCR 1963, 117.2(1) and/or 117.2(3). The trial judge held that plaintiff did not qualify as a dependent under MCL 500.3110; MSA 24.13110 and granted the motion. We elect to treat the trial court’s ruling as a grant of summary judgment under GCR 1963, 117.2(3) based on a holding that there was no genuine issue as to any material fact, and that defendant was entitled to judgment as a matter of law. Defendant’s motion was accompanied by an affidavit from defendant’s attorney, a practice that is condemned in certain instances. Here, however, such an affidavit was proper because it was based on the attorney’s personal knowledge. Compare Witucke v Presque Isle Bank, 68 Mich App 599, 604, fn 2; 243 NW2d 907 (1976). If the trial court’s holding on the underlying question of statutory interpretation was correct, then a grant of summary judgment based on the affidavit and plaintiffs admissions was proper. MCL 500.3110; MSA 24.13110 provides in relevant part: "(1) The following persons are conclusively presumed to be dependents of a deceased person: "(a) A wife is dependent on a husband with whom she lives at the time of his death. "(b) A husband is dependent on a wife with whom he lives at the time of her death. "(c) A child while under the age of 18 years, or over that age but physically or mentally incapacitated from earning, is dependent on the parent with whom he lives or from whom he receives support regularly at the time of the death of the parent. "(2) In all other cases, questions of dependency and the extent of dependency shall be determined in accordance with the facts as they exist at the time of death. "(3) The dependency of a surviving spouse terminates upon death or remarriage. The dependency of any other person terminates upon the death of the person and continues only so long as the person is under the age of 18 years, physically or mentally incapacitated from earning, or engaged full time in a formal program of academic or vocational education or training.” In plaintiff’s brief on appeal, she admits that she does not qualify as a dependent under subsections (2) and (3). Her contention is that, despite never having gone through a ceremonial marriage with Bennett, she was his "wife” as the term is used in subsection (l)(a). In support of this contention, plaintiff has referred us to West v Barton-Malow Co, 394 Mich 334; 230 NW2d 545 (1975), and State Farm Mutual Automobile Ins Co v Traycik (After Remand), 86 Mich App 285; 272 NW2d 629 (1978). The West case involved a provision of the Worker’s Disability Compensation Act which provided that "[n]o person shall be considered a dependent unless he or she is a member of the family of the deceased employee”. The Court said, at 394 Mich 338-339; 230 NW2d 547: "From á reading of the words of the statute it is evident that the Legislature did not intend to establish a strict definition of an eligible dependent. Instead, the Legislature employed words with expansive meanings and intended, we believe, to allow the administrative agency and the courts to interpret the statute in light of the individual factual situations that would arise.” "Family” has long been given an expansive meaning by Michigan courts. See Holmberg v Cleveland-Cliffs Iron Co, 219 Mich 204; 189 NW 26 (1922), and Boston-Edison Protective Ass’n v The Paulist Fathers, Inc, 306 Mich 253; 10 NW2d 847 (1943). In contrast, no Michigan authority gives "wife” the expansive meaning for which plaintiff argues. Plaintiff’s reliance on the Traycik case, which involved an insurance policy provision excluding coverage for "any member of the family of the insured residing in the same household as the insured”, is similarly misplaced. In the construction of Michigan statutes, words and phrases are understood according to common and approved usage. MCL 8.3a; MSA 2.212(1). The American Heritage Dictionary of the English Language (New College Edition, 1976) defines "wife” as "a woman married to a man”. In Michigan, consent alone has not been enough to effectuate a marriage since January 1, 1957. See MCL 551.2; MSA 25.2. We note that plaintiff does not claim that she and Bennett contracted to live together before that date. Plaintiff was not Bennett’s "wife” according to the common and approved usage of that word. Affirmed. Costs to defendant.

Beasley, J. On December 5, 1979, plaintiff, Dorothy D. Tinkle, was awarded a judgment of divorce from defendant, Harry E. Tinkle. She appeals as of right. The parties were married in 1941, and there were no minor children at the time of the divorce. Plaintiff is employed as a schoolbus driver, earning approximately $8,000 per year, and defendant is employed as a sales representative for an importer, earning slightly less than $17,000 per year. The divorce was awarded pursuant to a property settlement agreement placed on the record in open court with both parties and their counsel present. Plaintiff offered proofs in support of her complaint for divorce, acknowledging her agreement to the property settlement as part of her testimony as follows: ”Q. [Plaintiffs attorney]: Mrs. Tinkle, did you hear the property settlement, which I read fully on the record? "A. Yes. "Q. Do you understand that if the Judge grants the judgment of divorce, that those provisions would be incorporated into the judgment that was outlined — your right to the assets, forthwith, regarding all of the property, do you understand that? "A. Yes. "Q. And are you in agreement with that? "A. Yes sir. "Q. Do you understand that you do not have to settle this matter and that you have a right to have a trial before the Court — this Judge? "A. Yes. "A. Would you rephrase— r,Q. (Interposing): Do you understand that this is the end of the situation with regard to the property? "A. Yes.” On completion of proofs, the trial judge awarded plaintiff a judgment of divorce and stated that the parties’ property settlement "shall be the order of the court”. On October 22, 1979, before the trial judge signed and entered the judgment of divorce, plaintiff filed a "petition to set aside settlement judgment and bring matter on for trial”, claiming she had been under stress with medical problems aggravated by the divorce pressures so that she "was unable to fully comprehend” the settlement. After a hearing, the trial court held that the parties had knowingly and voluntarily entered into the settlement agreement and that, as there was no showing of fraud or mutual mistake, plaintiff was bound by her settlement agreement. The general rule is that a consent judgment cannot be set aside or modified except for fraud or mutual mistake. Insofar as the property settlement provisions of divorce judgments rest upon agreement of the parties they come within the general rule. Prior to no-fault divorce, as a matter of public policy, under the divorce statutes the grounds for divorce could not be stipulated but had to be proved by competent evidence on the record. There is no claim here that fraud or mutual mistake was practiced by defendant on plaintiff. Neither does plaintiff claim nor prove that she was so insane or mentally ill as to lack capacity to make a binding property settlement agreement. With respect to her claim that her physical condition, taken together with the pressures of the divorce litigation, prevented her from comprehending that which she said she agreed to, we note that the trial judge, hearing both the divorce proceedings and the petition to set aside the settlement, found plaintiff’s claim to be without basis. We decline to upset the trial judge’s finding in that regard; she did not abuse her discretion. Last, plaintiff claims that another exception to the binding quality of consent judgments in di vorce cases is where a property settlement is inequitable, citing Dougherty v Dougherty. In Dougherty, the trial judge heard the divorce as a contested matter, after which he made findings for sale of the marital property and equal division of the net proceeds. When plaintiff-wife moved to amend the property settlement, the trial judge re-reviewed his findings, decided he had inadvertently failed to give consideration to defendant’s liabilities and, therefore, amended the property settlement. When his motion for new trial was denied, defendant-husband appealed, claiming that the property settlement first ordered by the trial court was final and that it was error for the trial court to modify it. This Court affirmed the modified property settlement except to give defendant-husband additional time to complete removal of nursery stock. Dougherty is readily distinguishable from the within case in that the divorce judgment was not based upon the agreement of the parties. The use of the expression "property settlement” to designate the disposition and division of property in divorce judgments does not necessarily mean the parties agreed or consented to the division. In Dougherty, there was no consent or agreement to the trial court’s division of the property; rather, it was the trial court’s finding after hearing on the merits. The Dougherty divorce decree was final and not subject to modification in the sense that any decree or judgment is final and not subject to modification. On the other hand, the property settlement here was fully and completely agreed to by the parties on the record in open court. As such, it partook of the nature of a binding contract between the parties. Under such circumstances, we do not reopen the proceeding and attempt to discover whether the parties’ agreed-to property settlement is exactly the same as a court would have arrived at if the case had been fully tried on the merits. Settlements, duly arrived at by the parties and placed on the record in open court in the presence of counsel, are entitled to a high degree of finality. While we do not intend to review the equities of property settlements duly agreed to and placed on the record in open court where parties later attempt to renege on such agreements, we do note in this case that the record does not indicate anything unconscionable about the property settlement reached by the parties and their counsel. Affirmed, with costs. In general, the property settlement agreement divided the marital property, reserved alimony and awarded her attorney fees. Kline v Kline, 92 Mich App 62, 71; 284 NW2d 488 (1979), Blaske v Blaske, 33 Mich App 210; 189 NW2d 713 (1971). Martin v Martin, 105 Mich App 710; 307 NW2d 408 (1981), Fansler v Fansler, 344 Mich 569; 75 NW2d 1 (1956). St Clair Commercial & Savings Bank v Macauley, 66 Mich App 210, 215; 238 NW2d 806 (1975). 48 Mich App 154; 210 NW2d 151 (1973). The phraseology, "Divorce Judgment” was substituted for "Divorce Decree” in the 1963 General Court Rules, which purported to eliminate the distinction between law (judgment) and equity (decree). Oknaian v Oknaian, 90 Mich App 28; 282 NW2d 230 (1979), Kutchai v Kutchai, 233 Mich 569; 207 NW 818 (1926).

V. J. Brennan, P. J. Plaintiff appeals from an adverse judgment by the trial court which dismissed her complaint and granted defendant township an injunction restraining plaintiffs use of her residence in violation of the Bloomfield Township Zoning Ordinance. The following factual summary frames the present controversy. Plaintiff owns and resides in a large home located in a residential neighborhood in Bloomfield Township, Oakland County. She works as a psychotherapist and marriage counselor. Until 1978, plaintiff rendered her professional services from an office located in a district zoned for office and business use. Subsequently, she began to practice her psychotherapy and social work from her home. This, of course, necessitated clients coming to her home. In 1974, defendant township had adopted Ordinance No. 265 by which plaintiffs residence and surrounding property had been zoned R-3, single-family residential use, the most restrictive use category under the ordinance. That ordinance provides in pertinent part: "Principal Uses Permitted: "In a R-l, R-2, and/or R-3 One-Family Residential District the use of land, the location and erection of new buildings or structures, and the alteration, enlargement, and moving of existing buildings or structures from other locations and/or districts shall conform to the following specified uses, unless otherwise provided in this Ordinance. "1. One-family detached dwellings. "6. Accessory building and uses, customarily incident to any of the above permitted uses * * *.” Bloomfield Township Zoning Ordinance, Article IV, Section 400. "For the purpose of this Ordinance terms not herein defined shall have the meaning customarily assigned to them; and certain terms or words used herein shall be interpreted as follows: "1. Accessory Use, or Accessory: an 'accessory use’ is a use which is clearly incidental to, customarily found in connection with, and (except in the case of accessory off-street parking spaces or loading) located on the same zoning lot as, the principal use to which it is related. "When 'accessory’ is used in the text, it shall have the same meaning as accessory use.” Bloomfield Township Zoning Ordinance, Article II, Section 201. Defendant township subsequently cited plaintiff for "operating a business in a R-3 one-family residential district” in violation of the ordinance. After receiving the citation, plaintiff discontinued treatment of patients in her home and resumed her practice at her former office location. Plaintiff then commenced the instant action against the defendant in Oakland County Circuit Court seeking declaratory and injunctive relief. Defendant counterclaimed to enjoin plaintiff from using her residence for treating patients. Plaintiff now appeals as of right from a decision adverse to her. On appeal, the main thrust of plaintiff’s argument is that her home occupation of psychotherapy and social work is a permissible "accessory use” under the zoning ordinance. The controlling section of the zoning ordinance defines "accessory use” as a use which is "customarily incident” to any of the permitted principal uses. Plaintiff conceptualizes the term "accessory use” as having two separate prongs: customary and incidental. She then attempts to satisfy these two elements by demonstrating that (1) it is customary (usual practice) for social workers to practice from their homes and (2) her practice is incidental (subordinate) to the principal use of the home as a residence. We disagree and find that plaintiff’s approach of separately proving that her use is "customary” and "incidental” is mistaken. Plaintiff’s activity must be "customarily incident” to the residental use, not merely customary and incidental. The term "customarily” modifies "incident” in the ordinance and does not stand on its own. None of plaintiff’s authorities for the proposition that her practice is customarily done in homes is relevant to her claim that it is "customarily incident” to her residential use. The term "incident” is pivotal here. Plaintiff’s characterization of the term "incidental” as meaning "less predominate” rather than "dependent upon” overlooks the great weight of authority interpreting ordinances providing for "accessory uses”. The defendant township correctly cites to this Court the following examples of accessory uses: a tennis court for use by occupants, Hardy v Calhoun, 383 SW2d 652 (Tex Civ App, 1964), a garage, Nelson v Goddard, 43 Mich App 615; 204 NW2d 739 (1972), a horseshoe pitching court, New Orleans v Estrade, 200 La 552; 8 So 2d 536 (1942), a private swimming pool, Thomas v Zoning Board of University Park, 241 SW2d 955 (Tex Civ App, 1951), servant’s quarters, Meador v Nashville, 188 Tenn 441; 220 SW2d 876 (1949), auto racing on fair grounds, Boissonneault v Saginaw County Agricultural Society, 330 Mich 143; 47 NW2d 53 (1951), and off-street parking for a hospital, Sisters of Bon Secours Hospital v Grosse Pointe, 8 Mich App 342; 154 NW2d 644 (1967). Michigan cases have found the following not to be accessory uses of property: use of a garage adjacent to home in residential district for storage of trucks used in grocery business elsewhere, People v Scrafano, 307 Mich 655; 12 NW2d 325 (1943), commercial radio station operated from a home, Muskegon Heights v Wilson, 363 Mich 263; 109 NW2d 768 (1961), selling produce grown on farms other than one’s own, DiPonio v Cockrum, 373 Mich 115; 128 NW2d 544 (1964). The last three cases cited are sharply distinguishable from those cited in the previous paragraph, where an accessory use was found. In the first group of cases, the use in question enhanced the principal use of the property, and accordingly was found to be "accessory”. In the second group, the use did not enhance the principal use of the property, and was found not to be "accessory”. Even the language of plaintiff’s cases on this issue reinforce this conclusion. The cases refer to a use which is "factually subordinate”, "ancillary”, or "auxiliary” to the principal use. All of these suggest that the accessory use must depend upon the principal use. Applying these standards, "incidental” use in plaintiffs case would have to be one which furthers her use of the property as a residence. Her social work activity does not. Therefore, we affirm the trial court’s conclusion that plaintiffs practice does not qualify as an "accessory use” of her residence. We have examined the other issues raised on appeal by the plaintiff and find them to be without merit. Thus, we but briefly address them. The ordinance does not violate the Township Rural Zoning Act because it does not totally exclude plaintiffs practice of social work and psychotherapy from the township. MCL 125.297a; MSA 5.2963(27a). Plaintiffs construction of the term "use” in the Township Rural Zoning Act is strained and illogical. The recent case of Robinson Twp v Knoll, 410 Mich 293; 302 NW2d 146 (1981), does not persuade us otherwise and is factually distinguishable from the instant case. We further find that the ordinance advances several legitimate governmental interests and is valid under the applicable standards of review for zoning ordinances. Robinson Twp v Knoll, supra. Finally, the application of the ordinance to plaintiffs home practice of social work and psychotherapy does not constitute invalid discrimination. The judgment of the lower court is affirmed.

Per Curiam. Defendant, Lamont C. Thomas, was convicted in a bench trial of carrying a concealed weapon, contrary to MCL 750.227; MSA 28.424, and was sentenced to not less than three years nor more than five years in prison. He made a motion for a new trial, claiming that evidence of the gun upon which the charge was based was produced through an illegal search and seizure. Upon denial of the motion, defendant appeals as of right. Defendant was the front-seat passenger in an automobile that was stopped for failing to signal a left turn. Upon approaching the stopped vehicle, Sergeant Hawks and Officer Brown observed defendant bend forward so that his head was at or below the level of the dashboard. Sergeant Hawks found an open bottle of malt liquor standing upright on the floorboard between defendant’s feet and placed him under arrest for possession of open intoxicants in a motor vehicle. The 14-year-old driver of the car was issued a citation for having no valid operator’s license in her possession. Defendant and the driver were taken to the patrol vehicle and, pursuant to departmental policy, a wrecker was called to tow the vehicle. No one was present at the scene who could have driven the vehicle back to defendant’s house. Prior to the arrival of the wrecker, Officer Brown searched the vehicle. This was pursuant to departmental policy that vehicles be searched prior to being towed. Officer Brown discovered two bags of marijuana in the unlocked glove compartment. Upon Brown’s return to the patrol car, Sergeant Hawks asked her if she had checked underneath the dashboard. Brown replied that she had not. Sergeant Hawks proceeded to make a second search of the vehicle. He checked under the front seat and looked up under the dashboard. He opened the two vent doors under the dash and looked inside the air vents. He also unlocked the trunk and checked inside it. Hawks discovered a loaded, .38-caliber revolver in the air vent on the passenger’s side of the vehicle. Neither officer made a list of the items found in the vehicle. Defendant claims that the inventory search of his automobile was unreasonable in scope and was merely a pretext for a prohibited search without a warrant. Therefore, he claims that the subsequent seizure of the gun was unreasonable and a violation of his Fourth Amendment rights. Plaintiif argues that the seizure of defendant’s automobile and the subsequent search of its interior properly falls within the inventory search exception to the warrant requirement of the Fourth Amendment. The validity of inventory searches of impounded vehicles was upheld by the United States Supreme Court in South Dakota v Opperman In Opperman, the police found a bag of marijuana in an unlocked glove compartment during an inventory search of a car that had been impounded for multiple traffic violations. The Court held that the conduct of the police was reasonable under the Fourth Amendment, stating that whether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case. The Court noted that in the case before them the inventory search was part of standard police procedure and that there was no suggestion that this procedure was a pretext concealing an investigatory motive. It further noted that the inventory search was not unreasonable in scope, since a car’s glove compartment is a customary place for the temporary storage of valuables and since vandals would have had ready and unobstructed access to an unlocked glove compartment once inside the car. In regards to the authority of police to impound vehicles, the Court stated: "In the interests of public safety and as part of what the Court has called 'community caretaking functions,’ Cady v Dombrowski [413 US 433, 441; 93 S Ct 2523; 37 L Ed 2d 706 (1973)], automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.” The Court stated three reasons behind the practice of inventorying an impounded vehicle’s contents: (1) the protection of the owner’s property while it remains in police custody, (2) the protection of the police against claims or disputes over lost or stolen property, and (3) the protection of the police from potential danger. In the instant case, defendant had been lawfully placed in custody after having been arrested for possession of open intoxicants in a motor vehicle. Since the other occupant of the vehicle was too young to drive legally, it was proper for the police to impound the car rather than leaving it parked on the road where it might obstruct traffic and jeopardize public safety. Under these circumstances, it was reasonable, pursuant to departmental policy, to conduct an inventory search of the vehicle prior to its being towed. We find, however, that the search conducted was unreasonable in scope. Air vents, unlike glove compartments, or trunks, are not customary places for the storage of valuables. Nor are they areas within plain view. We believe that the facts and circumstances in this case, particularly Sergeant Hawks’ second thorough search which included the air vents and the area underneath the car’s dashboard, indicate that the "inventory” search here went beyond a mere search for valuables prior to the impounding of the car. Rather, it appears to have been made solely to search for contraband and, thus, since no effort was made to obtain a warrant, was an impermissible search without a warrant. Plaintiff contends that even if the inventory search of the front air vent conducted by Sergeant Hawks was unreasonable in scope, the search of the vent and the subsequent seizure of the gun was nonetheless proper. Plaintiff claims that Sergeant Hawks had probable cause to believe that a crime was being committed in his presence and, therefore, could properly search the car after Officer Brown discovered marijuana in the glove compartment during her inventory search. We do not agree. In Chambers v Maroney, the United States Supreme Court recognized that automobiles could be searched without a warrant in circumstances which would not justify the search without a warrant of a house or an office. The Court said: "Neither [Carroll v United States, 267 US 132; 45 S Ct 280; 69 L Ed 543 (1925)], nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords. But the circumstances that furnish probable cause to search a particular- auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable. Where this is true, as in Carroll and the case before us now, if an effective search is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search. "In enforcing the Fourth Amendment’s prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution. As a general rule, it has also required the judgment of a magistrate on the probable-cause issue and the issuance of a warrant before a search is made. Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search. Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. Hence, an immediate search is constitutionally permissible.” The instant case did not involve "exigent circumstances” which would justify a search without a warrant. Here, unlike Chambers, the automobile was already in the process of being lawfully taken into police custody. Since the car and its occupants were already in police custody, the police could apply for a search warrant without any reasonable possibility that the car could be taken out of the jurisdiction or that contraband could be removed before a search could be conducted. Thus, it was not necessary here to make the choice which in Chambers constituted the basis for upholding the validity of the search. There was no danger here that the car would flee and no longer be available after obtaining of a search warrant if it proved obtainable. Having decided that Sergeant Hawks’ second "inventory” search of the automobile was unreasonable in scope, it is unnecessary for us to address defendant’s two other allegations of error. The decision of the lower court is reversed, and defendant’s conviction is vacated. Reversed. US Const, Am IV. 428 US 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976). For Michigan cases which have followed Opperman, see, People v Long, 94 Mich App 338; 288 NW2d 629 (1979), People v Godwin, 94 Mich App 286; 288 NW2d 354 (1979), People v Boutell, 80 Mich App 216; 263 NW2d 36 (1977). Id., 375-376. Id., 368-369. Id. People v Edwards, 73 Mich App 579, 584; 252 NW2d 522 (1977). Godwin, supra. Long, supra. People v Roberson, 80 Mich App 241, 243; 263 NW2d 42 (1977). 399 US 42; 90 S Ct 1975; 26 L Ed 2d 419 (1970). Id., 50-51.

Cooley, J. The title to a horse is in controversy in this suit. Plaintiff claims it by purchase from Albert Molitor, the former owner, and the • defendant Eobinson claims a right to hold it as constable by virtue of a levy of an execution issued on a judgment in .favor of Crippen, the other defendant. The levy was made after the pretended purchase by plaintiff, and defendants dispute the bona fieles of the purchase. Several exceptions were taken to the proof of the judgment and execution, but we think no error wras committed in receiving them in evidence. The real controversy arose upon the fact that no visible change of possession took place at the time the purchase of the horse was said to have been made. The statute,,Comp. L., § 4708, provides that “Every sale made by a vendor of goods and chattels in his1 possession, or under his control, and every assignment of goods and chattels by way of mortgage or security, or upon any condition whatever, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things sold, mortgaged, or assigned, shall be presumed to be fraudulent and void, as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith, and shall be conclusive evidence of fraud, unless it shall be made to appear, on the part of the persons claiming under such sale or assignment, that the same was made in good faith, and without any intent to defraud such creditors or purchasers.” Under this statute it became necessary for plaintiff to take upon himself the burden of showing the bona fides of his purchase, and he became a witness on his own behalf, and testified to purchasing the property in good faith and paying the purchase price in money. There being no distinct evidence to the contrary, plaintiff claimed that there was nothing on this branch of the case to leave to the jury; in other words, that good faith was conclusively made out by this evidence, thus left to stand uncontradicted. The circuit judge, however, held that the question must be submitted to the jury, and in this he was correct. The jury were under no obligation . to believe the plaintiff’s statement, and unless it convinced their reason, they were entirely at liberty to reject it altogether. They must take the evidence with all its surroundings; and often other things 'which go to characterize a transaction are more convincing Ithan positive evidence of any single witness, especially 'if an interested witness. But the judge committed a grave error in giving to the jury his construction of the statute. “Gentlemen of the jury,” he said, after reciting the statute, “if one of the jurors should sell a horse to another of the jurors, and should not make an immediate delivery of that horse, and should not have it followed by an immediate and continued change, and an actual change of possession of the property; if at that time the one who sold the horse had debts standing out against him, that sale would be absolutely void as against those creditors of yours; they, the creditors, could come right in and take that horse upon your debt, no matter how bona fide the sale may have been. The sale may have been a perfectly good sale as between the parties to the sale, yet against outside parties who were creditors or subsequent purchasers in good faith, the sale under this statute would be absolutely void. And the fact that there was no immediate change of possession, and a continued change of possession, and an actual change of possession at the time of the sale, is conclusive evidence under this statute that the sale is fraudulent.” This is a singular misapprehension of the statute. It converts the prima facie case which the statute expressly authorizes the party, if he can, to overcome by evidence, into a case absolutely conclusive. The mere contrast of the statute with the charge renders the error too manifest for comment. The judgment must be reversed, with costs, and a' new trial ordered. The other Justices concurred.

Graves, J. Van Baalen was fined in the Recorder’s court in the city of Detroit for having carried on the business of a pawnbroker without license, contrary to a city ordinance, and he has brought the case here by certiorari. The ground taken is that the ordinance, which among other regulations not complained of, exacts a fee of $200, is unreasonable in consequence of the magnitude of the charge, and is therefore invalid. The recorder found the facts, and among others, that the business of pawnbroking gives rise to a heavy city expense, and especially in the increase of police duty and supervision which it necessitates, and he ascertained and found in terms that the sum charged • does not greatly exceed the incidental and consequential expense, and it appears plainly enough from his explanations and from matters subject to judicial notice that it is quite impossible to say the city can derive a particle of profit from the rate objected to. Of course the subject will not admit of nice calculation, and it would be futile to require anything of the kind. Where the power to license is not evidently abused and made a pretext for doing what is a violation of constitutional right, the courts ought not to interfere with municipal discretion. The case is governed by former decisions. Ash v. The People, 11 Mich., 347; Kitson v. The Mayor, 26 Mich., 325. The judgment should be affirmed, with costs. The other Justices concurred.

Per Curiam. In these eases nothing is suggested beyond what was considered by the court upon the original arguments, and the motions are therefore denied. The court does not consider it to be its duty to spread out every reason which may have influenced its conclusions upon every question that arises in a case. Opinions must be reasonably brief, and if cases can be completely and properly disposed of within a moderate compass it is better that they should be. The court does not wish to be understood that arguments have necessarily been overlooked because they have not been noticed in the opinion. It is not wise or seemly to insert a discussion on all points that counsel choose to raise. It is questionable how far rehearing can be allowed on alleged mistakes of judgment in an appellate court, but they must generally be denied whether a possible authority exists or not to grant them, unless new evidence has been found since the decision of the case, of such a nature as to require consideration. The previous decisions of the court explain their general views on the subject of review and rehearing. Hutchins v. Kimmell, 31 Mich., 126; Taylor v. Boardman, 24 Mich., 287: 25 Mich., 527; Ryerson v. Eldred, 23 Mich., 537; Adams v. Field, 25 Mich., 16; Case v. Case, 26 Mich., 484; Detroit Savings Bank v. Truesdail, 38 Mich., ; Wood v. Truax, 39 Mich., ; Vannetter v. Crossman, 39 Mich., .

Graves, J. Cady sued Barron and Collins on a promissory note of the following tenor: “St. Clair, July 30, 1873. $300. Three months after date we promise to pay to the order of PL P. Cady three hundred dollars at St. Clair, Michigan, value received, with ten per cent, interest. Geo. F. Collins. W. B. Barron.” Barron set up in defense, 1. That he joined as maker of the note for Collins’ accommodation merely and never had any interest in the consideration and never received any benefit, either directly or indirectly, on account of the note, and that Cady knew when it wras made and when he received it that he (Barron) was in fact only surety for Collins upon it. 2. That after the note fell due, Cady, in consideration of money paid him by Collins for the future use of the principal for some months, bound himself to allow Collins that time to make payment and prolonged the time for payment accordingly. 3. That he (Barron) neither assented to such arrangement nor had any knowledge of it, and has never ratified it or acquiesced in it or waived the right to take advantage of it. He gave evidence conducing to make out this defense, but the circuit judge ruled against it and directed the jury to give their verdict in favor of Cady. This was error. If the facts were as claimed by Barron, he was discharged from liability on the note. It is sufficient to refer to Smith v. Sheldon, 35 Mich., 42; Bank of Albion v. Burns, 46 N. Y., 170. The principle applies as well to the case of a joint maker, who is in fact an accommodation maker, as to the case of those who are ostensible sureties. The difference is that in the one case, as all may perceive, there are present and visible to the payee the prima facie signs of suretyship which he must be presumed to interpret correctly, whereas in the other case there are no such external marks and proof is required to establish the- payee’s knowledge of the actual relation. The judgment must be reversed with costs and a new trial granted. The other Justices concurred.

Cooley, J. The action in the court below was trover to recover the value of a horse, a buggy, a sleigh, a quantity of household furniture and ornaments, some articles of female apparel, etc. Many of these were claimed by the plaintiff as gifts from J ames Zimmerman, her husband. The plaintiff in error, defendant below,, claimed all the articles under a chattel mortgage given by the husband subsequent to the alleged gifts. The chattel mortgage bore date July 29, 1875, and was not signed by the wife. The principal controversy in the court below was over the question of fact, whether the alleged gifts had ever been made. In general term’s Mrs. Zimmerman testified that they had been. Thus she said of the horse: “He gave me the horse in the fall of 1871.” And again: “ My husband also gave me some robes, a harness and a cutter. . Wolf robe and lap-robe was given to me in the summer of 1872. The robe was given to me in the winter of 1873. He said, ‘I bought these things for you.’ When he brought up' the buggy he brought it to the door and asked me to go for a drive. He said'he had bought that buggy for me, and ‘now give it to you, with the horse, for your own use, to do as you please with it.’ After he gave it to me I used the horse and every thing about it.” It is insisted for the defense that there was no evidence of a gift which should have been submitted to the jury. The exact point seems to be that Mrs. Zimmerman swore only to conclusions of law; but it is further said that it did not appear that exclusive possession of the property was given to her in any case, or that, when the gift was by the husband, there was any change of possession whatever. We cannot agree that there was no evidence of a gift. As to many of the articles facts were stated which would make out a gift if possession was actually delivered, and as to all of them there was some evidence. The mere statement, “ My husband gave me some robes,” cannot be treated as a conclusion merely; it avers the act of giving, and would justify a finding that a gift took place, if nothing was drawn out on further examination to qualify it. The question of a change of possession must bé considered in connection with the other facts in the case. • It was shown by the plaintiff that after the gift of the horse she went to the stable where it was kept and gave directions respecting the keeping, and afterward controlled it. This evidence was objected to, but it was quite proper as apart of the res gestee and as tending to show whether that was done in respect to possession which should have been done under the circumstances. But it is no doubt true that in respect to the property in general there was no open and visible change of possession. But how could there have been? The donor and donee were husband and wife, living together at a public hotel. Must, she separate from him in order to be competent to receive-from him a gift ? If he gives her a picture or an article of furniture, must she procure it to be kept by some one else instead of placing it in her own apartment? Some Pennsylvania cases are cited in which the court has used somewhat strong language respecting the evidence which should be required to make out a gift from husband and wife. Chief Justice Black said, in Gamber v. Gamber, 18 Penn. St., 363-366, that, a married woman-claiming property must show her right “by evidence which does not admit of a reasonable doubt.” This is a very strong statement, and lays down a much more severe and stringent rule than is applied to other .persons. In this State no such distinction is recognized. Convincing proof is required, but nothing more. No doubt the circumstances of the relation, and the facility with which frauds may be accomplished under the pretense of sales or gifts between husband and wife ought to be carefully weighed in determining whether or not a gift has been made, but when all are considered -the one question and the only question is, whether the wife has established her right by a fair preponderance of evidence: if she has, no court has any business to require more. , The plaintiff sought to estop the wife from claiming the property as against his mortgage by showing. that the mortgage was given in part for her own board, and that she, knowing that fact, failed to notify defendant of her claim. Had she known at • the time, that the defendant was to take a mortgage as security for the payment for her board subsequently, and failed then to assert her right, there would be justice in setting up an estoppel against her. But there was no offer to show any such fact. The offer made was to show her knowledge long afterwards, and when defendant had taken the property into his own possession. It was manifestly immaterial at that time. So was the offer of evidence to show that plaintiff’s husband gave her an expensive diamond in 1875. The fact did not concern this defendant in any way. It was shown by undisputed evidence that at that time the husband was perfectly solvent, and apparently able to make such a gift without wronging any one. Other errors are assigned which have no force, but there is one upon which the judgment must be reversed. The plaintiff put in considerable evidence to show the value of the property. The defendant was entitled to meet this by any evidence that would fairly tend to qualify or rebut it. Among other things, he sought to show that after he took the property on his chattel mortgage he caused it to be publicly advertised and sold at auction by a constable, and that sums were realized much below the value as testified to by the plaintiff’s, witness. This was competent evidence. Smith v. Mitchell, 12 Mich., 180; Worthington v. Hanna, 23 Mich., 530. A witness testified that the horse was advertised and sold, and that he brought at auction $60, or perhaps $65 or $75. But when the constable testified in respect to other articles, that he made sale of them, after advertising them, the evidence that he advertised them was struck out, and the defendant was not suffered to show what notice of the sale was given, and it did not even appear whether or not th.e sale was a public sale. Yet the judge by his charge made this of prime importance. He told the jury that unless there was evidence before them from which they could say that the sale was publicly advertised, then the evidence of the prices at which the articles were sold was no evidence at all. This of course rendered what had been testified on that point wholly immaterial. There was no such evidence of public advertisement, for the very sufficient reason that the judge had ruled it out. It is said in this court that even if evidence of the prices paid at the auction sale were technically admissible, yet that under the circumstances of this case it could constitute no safe guide for the jury, for the reason that, the property being claimed by Mrs. Zimmerman, the presumption must be that persons attending the sale would make allowance in their bids for the contingencies of title. The conclusion we are asked to draw is, that the plaintiff in error cannot be supposed to have been injured by evidence which, though admissible, the jury ought not to have regarded. But the same argument might have been made in Smith v. Mitchell. And it may be remarked that it does not appear that any dispute concerning the title was made known at the time of the sale, and if it had been, bidders might well have supposed Mrs. Zimmerman intended to rely on her suit for the recovery ©f damages for the conversion of her property instead of following it in the hands of purchasers. The judgment must be reversed, with costs, and a new trial ordered. The other Justices concurred.

Graves, J. The defendant in error being deputy sheriff and having an execution in his hands in favor of one Ballentine and against Hugh McKay, a son of plaintiff in error, seized thereon as Hugh McKay’s property twenty-six bags of wheat which were found in his father’s barn. The plaintiff in error claimed the wheat and brought this suit in trespass before a justice for the value, and after judgment the cause was taken to the circuit court by appeal where the jury found the wheat was the property of Hugh, the execution debtor, and returned a verdict for Boss. The plaintiff then brought error. The only ground of controversy was the ownership of the wheat, and the burden was on the plaintiff to establish his claim and satisfy the jury that he was owner. He tried to do this. He took the stand himself and swore that the crop was sown, raised and harvested on land he owned and occupied, and was his property; and his son Hugh testified for him that plaintiff owned the wheat, and being cross-examined denied having admitted to the threshers that certain wheat found separated from the rest by a line of hay belonged to him, and also denied having said to Boss on the occasion of the levy that he had wheat he would sell as soon as he could and pay his debts. In the course of plaintiff’s cross-examination he was required, against an objection that it was not material, to relate certain facts tending to show that a piece of forty acres embraced by his claim of ownership and possession, had been occupied and enjoyed by Hugh for several years, and had been assessed to him and as his property by act and direction of the plaintiff. And subsequently the defendant was allowed to testify, against an objection that it was not competent or material, that on the occasion of the levy Hugh did inform him that he had wheat which he would sell as soon as he could and pay his debts. These objections are plainly untenable. The inquiry of the plaintiff was admissible cross-examination. It was directed to show, among other things, that one parcel of land his direct testimony conduced to exclude from Hugh’s control and enjoyment and include in his own possession, was in fact held by Hugh; and it also tended to repel any possible inference there might have been against Hugh’s ownership as a consequence of his having no place to raise the crop, and Boss’ contradiction of Hugh was admissible to affect Hugh’s credit. The requested instruction that possession was prima facie evidence of title, and that the burden of overthrowing it was on the defendant, was fallacious and irrelevant. It assumed as unquestioned fact that the wheat was in the plaintiff’s possession, and that the question of ownership was left to the influence of that condition. Neither was correct. The plaintiff’s possession as well as ownership was disputed. He did not stake his case on any presumption of title, but adduced direct and positive evidence of ownership, and the defendant gave similar evidence against it, and the issue was necessarily to be decided on this evidence. Willett Shepard, 34 Mich., 106; Wallace’s Lessee v. Miner, 6 Ohio, 366; Galpin v. Page, 18 Wall., 350, 366; Hill v. Chambers, 30 Mich., 422, 428. The circumstance that the plaintiff was vested with the legal title to the barn became unimportant, because the case for the defense was very strong to show that as to the wheat in question the barn was actually occupied by Hugh, and with the full assent of plaintiff. The other points are properly abandoned. They have, not a shadow of merit. We are satisfied from the record that the case was justly disposed of by the circuit judge and by the jury. The judgment must be affirmed with costs. The other Justices concurred.

Graves, J. The plaintiffs in error were lumber dealers, and in November, 1876, they commissioned the defendant in error to -make sales for them. The transaction was reduced to writing in the form of a proposition made by ■Butts and accepted by -Cummers. The writings were as follows: "Mobley, Mich., Nov. 28th, 1876. Messrs. J. Cummer & Son : Gents: — I will take your stock of lumber to sell in States Ohio, Pennsylvania, Indiana, Kentucky, New York, and New England and other States, where it may seem to be to best interest to sell, at (1.00) one dollar per M. corn’s upon all grades of stock M. foot and pay myowa traveling expenses, you to furnish me with say two million feet at Morley, and four million at Clam Lake, or in_ all about six million feet. I shall at selling, sell at prices current in the different markets, striving at all, times to get full market rates. I shall expect you to furnish me the full am’t at least of six million to dispose of or thereabouts, and more should the trade look as if it should pay_ you. You to agree not to crowd or solicit orders, but in case orders are sent you which are from parties I have not seen or solicited to open trade, I shah not expect you to allow me any corn’s. I agree to devote my time that seems necessary to dispose of your stock at best and in most expeditious manner, and also agree not to sell for other parties except in this case: Suppose I was to take an order you had not the stock to ffh, I would first give you the privilege and if you could not I am at liberty to buy or sell to fill such order from others, the same to govern as to shingles, lath or hard wood lumber. My intention is to first make your stock and business my first and sole business, and give my time and attention and knowledge to make it pay all it will for you. You are to furnish me full list of parties you have •sold, rates of freight to different points, and post me as much as possible as to the business standing of customers. I will use due and proper diligence while selling to not sell parties unworthy of credit, and you to have privilege of not filling any orders whom you know are not worthy of credit, which I may send you, until such time as you are satisfied with responsibility of such parties. Will also agree that for good cause this agreement shall be cancelled, upon sixty days notice by either party. My idea is to handle your stock to best advantage as to price, and dispatch in disposing of same, and trust I can do it to our mutual profit and satisfaction. Yours resp’y, Lewis C. Butts.” “Morley, November 29, 1876. Lewis C. Butts: Sir — Your proposition dated 28 inst. carefully considered. We accept it, making no ■ exceptions. Yours with respect, J. Cummer & Son.” Butts proceeded to act under this arrangement and made several trips and effected sales of a considerable •quantity of lumber, but much less than six million feet. The plaintiffs in error became dissatisfied, however, and assuming that they were entitled to . do so, proceeded on the 14th of April, 1877, to terminate the relation by notice as specified in the contract. They paid him for the commissions earned up to that time, and refused to recognize the further continuance of the agency and denied his right to claim anything more. He insisted that there was no sufficient cause for his dismissal, and that he was entitled to whatever gains or profits he might or would have made if the arrangement had not been interrupted, and he brought this suit to enforce such claim and was allowed to recover $500. Now the written agreement expressly provided for a revocation by either party on a notice of sixty days and prescribed no other condition than that there should be “ good cause.” It made no provision that- the party who should thus put an end to the contract in accordance with, itself should indemnify the other for the loss of expected gains, and of course contemplated nothing of that kind. Such a termination of the contract would be pursuant to itself, and would have the assent of the parties as originally given in the instrument. There would be no breach to give rise to a cause of action. The parties have differed radically as to whether plaintiffs in error had “ good cause ” for terminating the agency, and there was great controversy about it at the trial. The judge attempted to construe this expression as it stood in the writing and facing towards each party, but it does not seem to us that he succeeded in ascertaining the meaning and full extent of the meaning which it is probable the one party or the other intended and which the phrase would not be too narrow to cover. He told the jury there might be other grounds of good cause than those noticed, and submitted the case under this intimation that other grounds might be found. The difficulty is inherent. It exists in the terms adopted by the parties. . > The requirement of “good cause” as something on •which the right to revoke by one or the other should depend, is as here introduced too vague to be fairly intelligible. It is manifestly applied to each party, but the phrase “good cause” in such connection as to parties and subject matter, has no such distinct sense as to furnish a common and intelligiblé criterion for the parties, or any determinate sense whatever. It is impossible to say that the wills of the parties concurred and that each meant exactly what the other did, or even to say what either meant. The room for difference of opinion is immense, and the case is one where the parties have failed to express themselves in terms capable of being reduced to lawful certainty by judicial effort. As employed, the expression has no frontier of meaning which can be defined. Metc. on Cont., 316; Bishop on Cont., §§ 22, 581; 2 Pars, on Cont., 561; Domat [Cush, ed.] Art. 178, § 2, Pt. 1, B. 1; 1 Chitty on Cont., 92, 93. See also Crane v. Partland, 9 Mich., 493; Caswell v. Gibbs, 33 Mich., 331; Greene v. Bateman, 2 Wood. & Min., 359; Smidt v. Tiden, L. R., 9 Q. B., 446: 9 Eng., 379; Hazard v. New England Marine Ins. Co., 1 Sumn., 218; Buckmaster v. Consumers’ Ice Co., 5 Daly, 313; Coles v. Hulme, 8 B. & C., 568, 573; Cooper v. Hood, 28 L. J. C., 212; Guthing v. Lynn, 2 B. & Ad., 232: 1 Sugd. V. & P. [8 Am. ed.], 134; Bayley v. Fitzmaurice, 8 El. & B., 664: s. c. 9 H. L. Cas., 78. The passage in question being ineffective on account of its radical uncertainty, there was nothing to-detract from the exercise of the right of revocation as it actually occurred, provided the plaintiffs in error acted in good faith. Nothing more was required. On this record the claim for profits is at least irrelevant. As a consequence and without- considering other matters, the judgment must be reversed with costs and a new trial ordered. The other Justices concurred.

Cooley, J. The controversy in this case concerns the right to stop in transit certain logs sold by plaintiffs to tbe copartnership of E. Eldred & Co., and which, came to the control of the defendants in the Muskegon river. The logs were sold by two different contracts in writing, one of which it is conceded was fully performed, and the logs delivered under it. A copy of the other is given in the margin. Under it the plaintiffs cut and put into the west branch of Muskegon river 135,481 feet of logs, but not in time for the main drive on the Muskegon river. Eldred & Co. had an arrangement with the booming company to receive, run and boom on Muskegon lake, these logs together with a large amount of other logs belonging to them and marked in the same manner, except that these, in addition to the mark of Eldred & Co., had a figure upon them, put on by plaintiffs to indicate the camps from which they were taken, and by which it was possible to identify them. The delivery of the logs into the west branch of the Muske gon was completed about tbe first of March, 1877. The place of delivery was some fifty or sixty miles above Big Rapids. The delivery not being in time for the main drive in the Muskegon river, plaintiffs under their contract became obligated to drive them until the main drive should be overtaken, and they employed one Watson to drive them to the mouth of the west branch. He drove them to Big Rapids where defendants took charge of them by request of Eldred & Co., though this' was long after the main drive had passed, and run them to the mouth of the river, where they delivered them on the order of Eldred & Co. to the firm of Blanchard, Borland & Co. Before this time, howevér, the firm of E„ Eldred & Co. had lost credit, and had ceased to meet; their obligations, and plaintiffs served written notice-on defendants to retain the logs, and not ■ deliver to Eldred & Co., or to any other party or parties, without the order of plaintiffs. This notice seems to have been served immediately before the delivery commenced. Defendants disregarded the notice, and were sued in trover; the charges for running the logs having previously been tendered them. The circuit judge was of opinion that as soon as the logs were delivered into the west branch of the river they were delivered to Eldred & Co., and he therefore instructed the jury to find for the defendants, which they did. It is not contended in this court that this charge was correct. The plaintiffs were not only to put •the logs into the west branch, but they were also to drive them until the main drive was overtaken. This was never done. Possibly what was done by Watson in allowing defendants to take possession of the logs on the order of Eldred & Co. was equivalent to delivery and acceptance by Eldred & Co., but the facts concerning Watson’s authority, and what took place respecting deliv ¡cry, were not submitted to the jury, and as we have no authority to draw conclusions of fact, we are not at liberty to find that delivery in law has actually taken place. The judgment must be reversed, with costs, and a new trial ordered. The other Justices concurred. This article of agreement, made the twelfth day of December, in the year of our Lord one thousand eight hundred and seventy-six, between Elisha Eldred & Co., of Chicago, and State of Illinois, of the first part, and Alfred E. Underhill and Almeron M. Underhill of Missaukee county, Michigan, parties of the second part, witnesseth, That the said parties of the second part (for the consideration hereinafter mentioned, to be performed by the said party of the first part), does hereby covenant and agree with the said Elisha Eldred & Co., parties of the first part, as follows, to-wit: To cut, haul and deliver to -the said parties of the first part, in the west branch of the main Muskegon river, one hundred thousand feet or thereabouts, board measure,'of good board and strip white pine saw logs, to be taken from the following described lands, to-wit: the northeast fractional quarter of northeast fractional quarter of section five (5), in township twenty-two (22) north, of range six (6) west, in the county of Missaukee and State of Michigan. All of said logs are to be selected from good, sound, thrifty pine, to be long butted when necessary so as to be' free from butt shakes and to be otherwise free from ring rot, or any other defects which would render the same unmerchantable in quality. Wo log to scale less than eighteen '(18) inches in diameter at the small end, scaling measurement, and sufficient deduction to be made in all crooked logs so as to make them straight; to be measured or scaled by a competent person that may be selected by the said parties mutually, and in accordance with Doyle’s scale, so called, the expense of scaling to be mutually borne by the parties to this contract. All of the above mentioned logs to be well and properly cut, and not to be cut up into the limbs any further than will make them good board and strip logs, and to be cut in such lengths as the said party of the first part or his agent may direct from time to time. All to be plainly marked with the recorded mark of the parties of the first part, being O + S and U, made with marking hammer on end of each log. No old logs, none cut from down and dead timber, and no logs with any other side or end mark on than that of the parties of the first part, and none having had other marks cut out or defaced are to be put in, and no logs from timber sawed down accepted or received on this contract. And all logs scaled and marked with the side and end mark of said first party, or either of them, and left on the bank, skidways or in the woods, are to be and remain their property, but to be paid for only when they shall be delivered afloat as aforesaid, in marketable condition, and then at the fair, actual market value thereof, at the time of such delivery. And no logs with said first party’s mark on them shall be sold or delivered, to any one else without the written consent of said party of the first part, first had and obtained. All, damages to logs, in putting down rollways or slides, to be made good by said parties of the second part. It is understood and agreed by and between the parties hereto, that all the logs are to be delivered afloat in the main Muskegon river, as early as they can be run or floated down in the spring of 1877, and in ease of failure to put in said logs in time for the main drive at the time herein stated, then the party of the second part is to drive the said logs, free of all expenses to the parties of the first part, until the main drive be reached; and all logs not driven are to be scaled back and deducted from the scale. All said logs to be cut from the lands of the parties of the first part, as hereinbefore described, and to be free from all incumbrances whatsoever. And it is further agreed by said parties, that the number of feet in each log shall be marked on end of same by the scaler appointed as hereinbefore provided, and such scaler shall be furnished with a man to so mark said logs as aforesaid, at the expense of said second parties. And it is further -understood and agreed between the parties to this contract, that all the logs so cut, scaled, marked and delivered afloat, as hereinbefore provided, are to be received by said parties •of the first part, to the amount of one hundred thousand feet or thereabouts in board measure, and paid for at the rate of eight dollars and seventy-five cents, ($8.75) per thousand feet, as follows, to-wit: to advance to said party of the second part, in the performance of this agreement, ($50) fifty dollars December 15, 1876; ($50) fifty dollars January 15th, 1877; ($50) fifty dollars February 15th, 1877; ($50) fifty dollars March 15th, 1877; when all said logs are afloat in the main Muskegon river, an amount which, with the advances then already made, sufficient to make eight dollars and seventy-five cents per M feet on all logs so delivered after retaining ■an amount sufficient to pay for the land bought of the Grand Rapids & Indiana Railroad Company, amounting to ten hundred and fifty dollars, with interest from date of purchase, out of the eight dollars and fifty cents per thousand feet. All the above advances or payments to be made in proportion to the amount of work actually done, it being understood that all money so advanced is to be applied solely to the prosecution of this job, and to no other purpose. The balance that may be due (after deducting the amount of advances) to be paid as follows, to-wit: on the purchase of the land from the Grand Rapids and Indiana Railroad Company, In witness whereof, parties to this contract have hereunto set their hands and seals the day and year first above written. In duplicate. Emsha Eudeed & Co. [seas.] AIjBBED E. RKDEEHIUi, [SEAM] AliMEEON M. UnDEEHIXiM [SEAIi.J

Cooley, J. In October, 1875, Henry B. Anderson sold, to the defendant Arthur Eichmond a parcel of land in Ionia county, and took back a mortgage for $650, being part of the purchase price. This sum was represented by three promissory notes, and the mortgage was intended to secure their payment, but by mistake one of the notes was not described therein. Anderson did not discover the error until the following January, when he endeavored to sell the mortgage, and found this error an impediment. He then applied to Eichmond to have the error corrected, Eichmond was then having business relations with Waldo, the complainant in this suit, and Waldo heard the conversation which took place between Anderson, and Eichmond, or at least so much of it as was necessary to understand what was contemplated. The person to whom Anderson proposed to sell his mortgage was the defendant Mattison, but it was decided that, instead of correcting the old mortgage, Eichmond and his wife should execute a new one running directly to Mattison. To this Eichmond agreed. It seems that at this time Eichmond was indebted to Waldo on some patent right trades, and on January 10, 1876, which must have been within a very short time of the talk between Anderson and Eichmond resulting in the agreement for a new mortgage, Eichmond gave a mortgage to Waldo for the indebtedeness to him. There is reason for believing that none of this indebtedness was then due. Waldo retained the mortgage in his hands, and did not place it upon record until as hereinafter stated. The new mortgage to be given by Eichmond to Mattison was executed, and placed in the hands of an attorney at Saranac, to be exchanged for a discharge of the. old one. Anderson’s counsel called at the attorney’s office March 6, 1876, to effect the exchange, but were confronted with instructions from Richmond that the mortgage to Mattison was not to be delivered until the discharge of the mortgage to Anderson had been sent to Ionia and placed upon record, and proper evidence of that fact brought back. As this would leave an interval between the discharge of one mortgage and the recording of the other, the instructions naturally excited suspicions, but these seem to have been quieted in some manner, and the discharge was sent to Ionia and recorded on that day. Within a short time thereafter, and on the same day, Waldo’s mortgage, of which Anderson and Mattison were ignorant, was placed upon record, and when the mortgage to Mattison was also recorded, it assumed the position on the record of a second mortgage. The foregoing is a very meagre outline of the facts. Waldo now files his bill to foreclose his mortgage and to subordinate the lien of Mattison’s mortgage to his own. We are satisfied from the evidence that Waldo was cognizant of all the proceedings resulting in the giving of the Mattison mortgage, knew it was to be given as a substitute for the mortgage to Anderson and for the same debt, and that he connived with Richmond to put his own mortgage on record precisely at the time when the record would be likely to give no information to the parties concerned, but would give his lien precedence of a mortgage which in equity should be a prior lien to his own. The instructions respecting the delivery of the Mattison mortgage must have had this in view, and it is impossible to doubt that Waldo and Richmond planned and have endeavored to carry out a gross fraud. The circuit judge held that under the circumstances Mattison was entitled to stand in the position previously occupied by Anderson as a prior encumbrancer to Waldo. We think this is entirely correct. The case is fully covered by French v. Stone, 38 Mich. The decree must be affirmed with costs. The other Justices concurred.

Marston, J. This case is similar to, and is governed by Grand Rapids v. Blakely, just decided. The judgment must be affirmed with costs. The other Justices concurred.

Per Curiam. Until the expiration of two years from the date of the judgment there will be no bar to a new writ. Dismissing a writ of error is equivalent to a non-suit, and cannot prevent further proceedings, which are a matter of right until barred by statute.

Per Curiam. Cooper had filed a bill of divorce against Jennie Mayhew, an infant, on tbe ground that she bad defrauded him into a marriage with ber. An order was made granting ber temporary alimony, and tbe appeal was taken from this order. Tbe guardian ad litem of tbe defendant is claimed to have admitted bis ward’s fraud, but be has no right to bind ber by bis admissions, and tbe fraud cannot, therefore, be held to have been admitted. Tbe case, therefore, cannot be distinguished in principle from an ordinary divorce case, and in such cases it is within tbe discretion of tbe court to make an interlocutory allowance, which this court will not review. Tbe order is not a final order, and is not subject to appeal. Motion to dismiss granted.

Graves, J. In June, 1876, Gower sued Quinlan in ejectment for lot seven on the plat of Monrovia, which is now included in the village of Lexington. The circuit judge sitting without a jury made the following finding on which judgment was entered for the defendant: George Gower vs. Patrick Quinlan. In 1852, Almeda Smith (afterwards Bardwell) was in possession of the lands in question under color and claim of title. She was the widow of Edmund Smith, deceased, and in 1855 the administrator of Edmund Smith, deceased, obtained against her and her then husband Bufus Bard-well a decree in the circuit court of Sanilac county, in chancery, requiring them to convey to him, said administrator, the lands in question. In 1856 Edmund Smith, by administrator, conveyed the lands in question to John Carroll. In 1860 John Carroll conveyed to Patrick Byan. In 1876 Patrick Byan conveyed the same to the plaintiff, George Gower. In 1866 Almeda Smith deeded to Benoni Hayes, and delivered to him the possession, she having remained in possession up to this time (1866) from 1852. This color and claim of title and actual possession passed by several mesne conveyances to Calvin Eenton during this same year 1866. Calvin Eenton giving to his grantors a mortgage to secure the purchase money for the premises. In 1873 Eenton deeded to Bobinson, subject to this mortgage, and Bobinson also gave to Eenton a mortgage to secure the purchase money, and in the same year Bobinson deeded to Bridget A. Quinlan, wife of this defendant, subject also to these same mortgages, by Eenton and Bobinson and Mrs. Quinlan, and the husband and family went into possession, and the actual possession and occupation, under color and claim of title, had been continuous and uninterrupted from Mrs. Smith, to and including Mrs. Quinlan. A year or two prior to the commencement of this suit, Mrs. Quinlan died, leaving surviving her, her husband, this defendant, Patrick Quinlan, and four children, all of said children being still minors, and two of them still living with the father on the premises, and the other two making it their home there, but being absent most of the time. The mortgages before mentioned (Eenton to his grantors and Bobinson to Eenton) were both assigned to this plaintiff, and in 1874 the last mortgage (Bobinson to Eenton) was foreclosed by advertisement, and sold to the plaintiff, George Gower, and he still remains the owner of whatever title was acquired thereby. In 1837 the United States conveyed the lands in question, with other lands, to Ira Porter. In 1842 Ira Porter conveyed to William Munroe. Afterwards, William Monroe died, and his heirs conveyed to Andrew, George and John Munroe, in 1882. In 1865 Andrew Munroe conveyed to Benoni Hayes, who is before mentioned, and in 1866 George Munroe and wife conveyed to Benoni Hayes, and in 1874 John (with whom Andrew joined) conveyed to Patrick Quinlan, the defendant. In 1874 Mary A. McKenzie deeded to Patrick Quinlan, the defendant, and in 1876 John S. Jenness deeded to him the lands in question, but what title, if any, McKenzie or Jenness had, does not appear. Sundry objections were made to the most if not all the records and proofs produced in evidence, but for the purposes of this trial, the defense is rested upon the claim that the heirs of Bridget Quinlan should have been made parties, and that if the above points are not well made, this defendant is entitled to the undivided one-third, in his own right, through the Munroe title, and plaintiff having claimed the whole, cannot recover an undivided interest. CONCLUSIONS 03? LAW. Defendant is entitled to judgment. E. W. HARRIS, Circuit Judge. The plaintiff contends that the facts entitle him to recover and do not support the judgment given for the defendant. His position is that Mrs. Smith began an adverse possession in 1852, which was kept up by her and others succeeding to her right until it ripened into a title, and that such title became vested in Gower through the Robinson mortgage which he foreclosed. This view cannot be maintained on the facts. Whatever may have been the true character of Mrs. Smith’s possession between 1852 and 1855, the decree made in the latter year which required her to convey to the administrator of her former husband, shifted her position and placed her in the same condition in regard to her possession as though she had then voluntarily made conveyance to the administrator. Her previous possession was of no avail any longer as a holding to help make out a continuous adverse possession. Her entire right was determined by the decree, and her possession thereafter, even when joined to that of her successors in the same right, appears to have been too short to give rise to a title under the mortgage founded on adverse possession. Granting that Mr. Gower has become owner of two undivided thirds of the original title, and still upon the facts disclosed he fails to make out a case. The finding shows that Mr. Quinlan is in as owner of an undivided third, and therefore as a tenant in common. His possession appears to be lawful and not inconsistent with the right of any other tenant in common. There is no finding that he has ousted any one, or any thing to show the existence of any obstacle to the entry of the holders of the other undivided interests. Hence, according to the case, Mr. Gower has not established an ejectment right, and the judgment must be affirmed with costs, and the cause will be remanded for such other proceedings as may be proper. The other Justices concurred.

Cooley, J. The action in the court below was brought by Horr to recover possession of three lots in the city of East Saginaw lying together and occupied as one parcel. To make out his title Horr proved the following facts: 1. That some time prior to February 6, 1873, one William Gallagher was in possession of and actually occupying said premises, and that he enclosed them and built a house thereon which he occupied with his family. 2. That while so occupying, and on the sixth day of February aforesaid, William Gallagher sold the premises to Boswell G. Horr, and executed to him a deed purporting to convey the same. 3. That on February 23, 1873, Eoswell G. Horr sold the premises to John Gamble, and executed to him a deed of conveyance under which John Gamble went into possession. 4. That as a part of the transaction of sale John Gamble was to and did give a mortgage to Eoswell G. Horr for ten thousand dollars, the purchase price of said premises, and covering the same, which mortgage was afterwards assigned to Eollin A. Horr, who foreclosed the same by advertisement under the power of sale, and received a deed on the foreclosure which became absolute May 7, 1878. 5. That John Gamble occupied the premises until his death, which occurred before this suit was brought, and that Emma Gamble is his widow and was in possession when this suit was instituted. This showing made out a prima facie case for the plaintiff. William Gallagher having had peaceable possession and occupancy of the premises, and having assumed to convey them as owner, must be deemed prima facie to have had a right to do so; and his prima facie right is shown to have passed to Eollin A. Horr. This was a sufficient showing until in some manner it was met on the part of the defense. Hall v. Kellogg, 16 Mich., 135, 139; McFarlane v. Ray, 14 Mich., 465. To meet this case defendant showed that the premises were sold for delinquent taxes of 1873 and 1874 to one Hoffman, who sold to one Garvey, and that Garvey brought ejectment against defendant and her children, the heirs at law of John Gamble, and took judgment against them by default; that he obtained possession -under this judgment, but afterwards, and before Horr brought suit, put Mrs. Gamble in possession again, so that she occupied claiming under the tax-title subsequent to that time. Plaintiff then offered to show, and was allowed under objection by defendant to show, that the tax-title was wholly invalid and void. As it is not questioned, that this showing was ample if admissible, we-need not examine or consider it. The objection by defendant to this showing is made under Comp. L. § 1130, which provides that “ no person shall be permitted to question the title acquired by such Auditor General’s deed, without proving that he, or the person through whom he claims title, had title to the land at the time of the sale thereof for non-payment of taxes, or subsequently, which title was acquired from the United States or from this State.” It is said with truth that plaintiff has not traced title to either the United States or to this State, and it is therefore insisted that by the express terms of the section he is precluded from questioning the tax-title. If this section is strictly construed and applied, it is plain that the objection of defendant is well taken. If the contestant of a tax-title must in every case trace his title back to the government, this plaintiff is excluded, for he goes no farther back than William Gallagher in the showing he makes. But if that is the proper construction of the statute, it must operate very unjustly in a great many cases; for the cases are numerous in which titles which are perfectly good and based upon undoubted equities, cannot be traced back to the government. Every title based upon an adverse possession is of that sort, and there are many which must have-originated in some government grant the evidence of which is lacking in some particular though no one questions its origin. It is not to be presumed that the legislature intended to preclude the owners of such titles from contesting illegal claims against them, unless the language of the statute plainly so declares. They are as-well deserving the protection of the law as any others. But as all titles in this State are supposed to have' been granted or originally recognized and confirmed by the United States or by this State, it must follow that when one produces such evidence as raises a presumption of title in him, according to the settled rules of law, this presumption must be sufficient to bring- his case within the protection of this statute. “ Title in a private person,” it is said, “supposes a grant from the State or sovereign power.” People v. Trinity Church, 22 N. Y., 44, 47. And when the law raises such a presumption, this negatives, because it is inconsistent with, any supposition that the government has never conveyed, •or that, having conveyed, some other party now holds under its grant. The showing in this case was therefore sufficient: it made out a prima facie case which was in no way met, overthrown or weakened. This view leaves ample scope for the operation of the statute in cases where it would be entirely equitable. A mere intruder or trespasser on unoccupied lands might well be precluded from contesting any prima facie title of another, and so might one who should attempt to defend under an outstanding title with which he is in no way connected. We cannot suppose the statute was intended to go further than to embrace these cases and others resting upon similar reasons. It certainly cannot embrace the case of one who shows a title prima facie sufficient under common law rules. It is suggested that plaintiff was bound by the judgment in ejectment recovered by Garveythat judgment having been recovered before his title by foreclosure became absolute, and therefore before it could be said to have accrued. There is no force whatever to this suggestion. Plaintiff’s right dates from the giving of the mortgage, and not from the completion of the foreclosure. The judgment must be affirmed with costs, and the record remanded. The other Justices concurred.

Marston, J. This case was commenced and tried in justice’s court and then brought into the circuit court upon appeal. At the time of filing note of issue with the clerk of the circuit court, a written demand was made and filed that the cause be tried by a jury. Afterwards the court of its own motion, the attorneys of the respective parties objecting thereto, caused an order to be entered, reciting therein that it appearing to the court the trial would require the examination of a long account, the cause be referred to Germain H. Mason pursuant to the statute. This is alleged as error. The statute authorizes the court upon its own motion to' direct a reference, when the trial of an issue of fact requires ' the examination of mutual accounts, or of a long account on one side, or where the taking of an account shall be necessary for the information of the court before judgment, “but no such case shall be referred if either party shall, within ten days after the joining issue, file with the clerk a written demand for a trial by jury.” 2 Comp. Laws, § 5809. This, ease having been commenced in justice’s court, and the issue there joined, no written demand for a trial by .jury could have been filed in the circuit court in accordance with the above provision. If therefore this provision of the section can be held as applicable only to cases commenced in the circuit court, would it not follow that the other provision of the same section,- authorizing a reference upon the court’s own motion, should be so limited also? Under the constitution the parties are entitled as matter of right to a jury trial, but in civil cases they shall be deemed to have waived this right, unless a jury is demanded in such manner as shall be prescribed by law. It is only, therefore, after a method of demanding a jury has been prescribed, that a party can be said to have waived his right by not demanding. And a right to demand at a time which by no possibility can be complied with, and is inapplicable to the case, cannot be considered as a manner prescribed by law within the meaning of this constitutional provision. Circuit Court Rule 61 provides that a party desirous of a trial by jury shall make his demand therefor in writing and file the same with the clerk on or before the first day of the term for which the cause is noticed for trial, and at or before the first call of the calendar; otherwise he shall be deemed to have waived his right to a jury. The demand in this case was clearly made within the time and in the manner herein prescribed. The parties having thus asserted their right, they could not be deprived thereof against their consent. Indeed, the court, it seems, did not proceed upon the .theory that the right had been waived. . - It is suggested that under' § 4953 the jury fee should have been paid, and it not having been in this case, the demand was not made in the manner prescribed by law. This payment need not be made at the time the- jury is demanded. The most that could be insisted upon would be to require payment before the jury should be called in the case or swornbut whether this is so or not, a failure to pay at the time the demand is made .cannot be considered as nullifying the demand. I am of opinion that the court erred in referring the case, and that the judgment should be reversed with costs, and a new trial ordered. The other Justices concurred.

Campbell, C. J. Patterson levied on the furniture and contents of a saloon owned by Bayne, including the liquors and other stock. He made his seizure at night on the 8th of April, 1878, and turned Bayne out of possession. The next morning he appointed two appraisers, one of whom was attorney for the plaintiff in an attach ment proceeding under which a levy was made at once after the execution levy and previous to the appraisement. These appraisers made an inventory, and the sheriff, in the absence of Bayne, and before he had served process under the attachment on him, set apart certain tables and other furniture as exempt and carried away the remainder, which Bayne replevied. The property set apart as exempt was subject to a recorded mortgage of five hundred dollars, although only appraised at a little over $250. The sheriff had no right in making a levy on personalty to turn Bayne away from his own premises, and having done so, we think could not treat him as having lost his rights through absence during the next morning. The sheriff kept the key and thus kept exclusive possession of the realty until after he had finished his exemption selections. In all this he acted unlawfully. It was also unlawful to select the attorney for the plaintiff in the attachment suit as an appraiser. And we think the selection for defendant of property covered by a mortgage to more than its appraised value was a fraud on the defendant. He was entitled to the full statutory amount of exempted property if he owned it. The levy on mortgaged property was in law only a levy on the right of redemption and no selection could under the law be made of any specific portion of it so as to bind the mortgagee. The articles selected do not seem to have been such as were adapted to enable Bayne, to conduct his usual business. The case presents some very unpleasant features. We think the judgment must be reversed with costs and a new trial granted. The other Justices concurred.

Graves, J. This is a writ of error to a judgment in ejectment against the plaintiff where the judge heard the evidence and made an express finding of facts. The objection raised is that the finding does not warrant the judgment. Except in one particular the ease is in substance and effect the same as Yelverton v. Hilliard, 38 Mich., 355. The action was commenced November 12, 1875, and the defense asserted is that during the ten years next preceding, the defendant and his predecessors in right were in continued adverse possession under tax-deeds from the Auditor General, and that the plaintiff was thereby bound pursuant to the act of 1863. Sess. L. 1863, p. 388; 2 Comp. L., p. 1973; Toll v. Wright, 37 Mich., 93, 103. The facts are conclusively in favor of Yelverton’s right to judgment unless the finding relative to the adverse possession is sufficient to defeat it. This is conceded, and as the finding expressly states that there was in fact such adverse possession- from the 12th of November, 1875, back to January 4th, 1866, we may consider the period for controversy as extending no farther than from that time back to November 11, 1865, an interval of a little less than two months. The law governing these findings has been many times explained. We recall the following cases: Trudo v. Anderson, 10 Mich., 357; Thomas v. Sprague, 12 Mich., 120; Peabody v. McAvoy, 23 Mich., 527; Feller v. Green, 26 Mich., 70; Compton v. Blair, 27 Mich., 397; Todd v. Davis, 32 Mich., 160; Burk v. Webb, id., 173; Tower v. Detroit, Lansing & Lake Michigan R. R. Co., 34 Mich., 328; Shelden v. Dutcher, 35 Mich., 10; Brown v. McHugh, 36 Mich., 433. This court has no power in law cases to weigh or construe evidence and make inferences or deduce results. That jurisdiction, is confined to other tribunals. Its authority in reviewing law matters is restricted to ques_ tions of law, and hence though evidence may be reported which a tribunal competent to find the facts might consider abundantly sufficient to make out certain required results, it cannot have any force here. As observed in Thomas v. Sprague, supra, “when a finding of facts is required, it should state something more than evidence; it should state conclusions of fact,” and as laid down in Feller v. Green, supra, where the facts given lead to a very strong inference, the conclusion cannot be drawn here “unless it is so entirely inevitable as in fact to become a conclusion of law.” The conclusions of fact mentioned are those ultimate propositions of fact, whether few or many, which the evidence makes out and on which the law of the case depends, and not those subordinate facts which only help to the establishment of the main ones. Peabody v. McAvoy, supra; Todd v. Davis, supra; Burk v. Webb, supra: Shelden v. Dutcher, supra; Brown v. McHugh, supra. The rule so well settled in this State as to the office and frame of these findings ought to be carefully observed when the claim of adverse possession is set up. [Che doctrine which sanctions the divestiture of the true owner by hostile occupancy is to be taken strictly, and the case- is not to be made out by inference, but by clear and cogent proof. Brandt v. Ogden, 1 Johns., 156; Jackson v. Sharp, 9 Johns., 163; Kincaird v. Scott, 12 Johns., 368; Jackson v. Schoonmaker, 2 Johns., 230; Gay v. Moffit, 2 Bibb, 506; Huntington v. Whaley, 29 Conn., 391; Coburn v. Hollis, 3 Met., 125. Tested by these authorities the present finding fails to show an adverse possession from the 4th of January, 1866, for the additional time necessary to make out ten years. It contains circumstances which are at most evidence on the subject, and on which a finding one way or the other might have been made. No such condition of things is affirmed as the law implies in its definition of adverse possession, and the process of ascertaining facts would have to be carried much further in the direction favorable to the claim of the defendant before it- could be said that nothing remained except to recognize that the ease called for the law of adverse possession. We do not mean that it is needful to use any particular phrase. The view is that there should be an express finding in terms certain and explicit, of a state of facts which without going further would satisfy the legal- definition. The author of the American note to Taylor v. Horde, 2 Smith’s Leading Cases [561], observes that the legal conception of that adverse possession which is required to constitute a bar to the assertion of a legal title by the owner of it, or by one against whom the adverse occupant brings ejectment, is expressed with singular completeness and accuracy by Mr. Justice Duncan, where he says it must be “ an actual, continued, visible, notorious, distinct and hostile possession.” Applying this description to that part of the finding in question, and the insufficiency of the latter is manifest. Without stopping to inquire how much is wanting, it is enough that there is no finding in any form of an actual and continued possession, either hostile or otherwise, during the period mentioned. In Yelverton v. Hilliard it was expressly found that the possession was broken for some weeks. Here it is not found that there was possession during a like period. There the possession was negatived. Here possession is not found. The distinction is plain. The effect may be the same, however. Rayner v. Lee, 20 Mich., 884, is cited to the proposition that slight interruptions in the possession cannot operate to destroy that continuity which the doctrine of adverse possession demands. The case has no application. The objection there made was on the ground that it appeared by the evidence that on brief occasions between the going out of one tenant and the entry of another the premises were not actually occupied. There was no evidence of any intention by the claimant to abandon his right. The suit was in equity to quiet title, and the evidence as well as the law was for the judge. And when it came up on appeal this court was bound to review the evidence and ascertain the facts for itself, and we reached the conclusion that the evidence proved that the possession originally acquired had never been abandoned, and so found. The circumstances of the two cases are not parallel; but if the evidence in the case before us was all returned and equally strong, we could not find the fact. The case is in the same predicament as Shelden v. Dutcher and Brown v. McHugh, previously cited. The judgment must be reversed, and one entered here for the plaintiff, with the costs of both courts, and the cause must be remanded for such other proceedings as may be proper. The other Justices concurred.

Cooley, J. The Tittabawassee Boom Co. sued Blanchard to recover charges for running logs for him in the season of 1875, under a contract made in April of that year. It is not disputed that he made the contract with them, nor that they ran the logs under it, and were entitled to recover of some on9 their bill amounting to' over f1,200. Blanchard’s defense is, that he sold the logs the same season to the copartnership of T. Saylor & Co., who agreed to pay for running them; that the boom company were informed of the sale and understood that they were to look to T. Saylor & Co., for payment for their services, and that in June, 1875, the company received from T. Saylor & Co. an acceptance at two months which they took no steps to collect when due, but retained until the November following, when the acceptors failed and made assignment. Blanchard claims that under these facts the boom company had discharged him and accepted T. Saylor & Co. as their debtors, or if not, that at least the boom company discharged him to the extent of the acceptance of T. Saylor & Co. by receiving the same and failing to take proper steps for its collection or to put him in position to collect it. I. We do not think there is any evidence in the case from which the jury could have been at liberty to find •that the boom company agreed to accept T. Saylor & Co. as their debtors. It is not claimed that any express ■understanding to that effect was proved. It was shown that the company knew of the sale of the logs, and that 'T. Saylor & Co. had agreed to pay for running them; ,but this in no manner affected the express contract of Blanchard to pay for their services. That contract continued in force notwithstanding the sale, and if T. Saylor & Co. should make payments upon it, they would only pay what Blanchard was legally bound for. II. We think, however, that the boom company did make the $700 acceptance their own. The circumstances relating to this were the following: The boom company made a draft on Blanchard for $700 at two months, which he returned by letter, saying to the company, “ draw on T. Saylor & Co.they thereupon drew on T. Saylor & Co. a draft of same date and amount, and payable at the same time, which was presented to and accepted by T. Saylor & Co., but was never paid. When the draft fell due in August it was protested, but no notice was given to Blanchard, nor did he know of the non-payment until after T. Saylor & Co. had failed in November, when for the first time he was called upon to pay the boom company’s bill. Under these circumstances the draft of T. Saylor & Co. must be regarded as having been received as conditional payment, and by the failure to notify Blanchard of its dishonor, the company made it their own. Jennison v. Parker, 7 Mich., 355; Phœnix Ins. Co. v. Allen, 11 Mich., 501. It is insisted by defendant in error that this point is not fairly made by exception and assignment of error; but we are inclined to hold that it is. The judge after instructing the jury that the mere drawing and acceptance of the draft would not discharge the defendant, added: “ There must have been an agreement or understanding to the effect that by the acceptance of that draft the defendant should be discharged from liability, or that the draft should be taken as payment on the account for the $700.” This was excepted to. Now to make the draft a payment on the account for the $700 we think no agreement to that effect was necessary: it was sufficient that the boom company made the draft their own by their neglect to notify Blanchard of its dishonor. The judgment must be reversed and a new trial ordered. The other Justices concurred.

Cooley, J. The relator was arrested in the county of Oakland on process issuing out of the circuit court of the United States for the eastern district of Michigan, in a civil suit brought by Marshall Field and others, and taken to the city of Detroit, in Wayne county, where he gave the usual appearance bail to the marshal and was discharged. He was thereupon immediately arrested again on civil process issuing out of the Superior Court of Detroit at the suit of other plaintiffs, and gave appearance bail to the sheriff. Subsequently he was surrendered in exoneration of his bail to the sheriff, and then moved in the Superior Court for discharge from the arrest on the process of that court. The grounds of the motion were, first, that the affidavits for the arrest were insufficient; and second, that the arrest was made in disregard of a privilege from arrest to which the relator was then entitled. The motion was overruled. I. We are all satisfied that the affidavits for arrest made out a sufficient prima facie case, and that relator was not, on that ground, entitled to a discharge. The suit was brought for the value of goods sold and delivered to a copartnership of which relator was a member, and the evidence of the affidavits strongly tended to show that the purchase was made without the intention to pay for the goods, and with the knowledge that the purchasers were either at the time insolvent or that they proposed fraudulently to give to their affairs the appearance of insolvency. II. The question of privilege has been ably presented and argued in this court. It is admitted that the relator would not have been within reach of the process of the Superior Court of • Detroit had he not been brought within the city by the United States marshal, but as under the law he had the legal right to give bail to the marshal in the county of his residence, it is argued that his going with the officer to Detroit must be regarded as voluntary. But it does not appear that the marshal informed the relator of this fact, and it is not probable that he was aware of his rights in that regard. It appears very evident that the moving parties in the last mentioned suit did not expect he would be relieved from his arrest in Oakland county, for the affidavits show that while the marshal was gone to make the arrest their attorneys were engaged in preparing elaborate papers for ■relator’s arrest in Detroit, on process which could be served in that city only, and the inference is irresistible that they anticipated his being brought there. We do not, however, base our conclusion on that fact. It is sufficient that relator was brought into the city of Detroit under arrest on process which was returnable within that city, and that he was under the necessity of accompanying the officer to the place of return unless he should sooner succeed in obtaining bail, and that this may or may not have been within his power. His presence in Detroit must consequently be considered compulsory. In support of the action of the court below in refusing to discharge the relator the following positions are taken'-. First, It is said that, conceding that defendant was privileged from arrest, still the arrest was not void, but only, voidable. This is true. Fletcher v. Baxter, 2 Aik; (Vt.), 224; Sperry v. Willard, 1 Wend., 32; Fox v. Wood, 1 Rawle, 148; Wilmarth v. Burt, 7 Met., 257; Waterman v. Merritt, 7 R. I., 345. But a motion for a discharge is a very suitable proceeding for avoiding it. Second, It is urged that the privilege only extends to persons going to, attending upon or returning from a court; and that as the relator must be considered as going at the time to or from a place of confinement under the process of arrest, he was not within the privilege. Our attention is called to no authority which thus restricts it. There is no doubt whatever that the privilege exists in the case of all proceedings in their nature judicial, whether taking place in court or not. Fletcher v. Baxter, 2 Aik. (Vt.), 224; Sanford v. Chase, 3 Cow., 381; Clark v. Grant, 2 Wend., 257; and in Rimmer v. Green, 1 M. & S., 638, it was very justly recognized in the case of bail attending for the purpose of justification. In Commonwealth v. Hawes, 13 Bush, 697, where the privilege was allowed in the case of one brought within the jurisdiction on process of extradition, it is clearly shown that the reason of the privilege must determine its extent; and the reason applies as forcibly to the facts of this case as it would if relator had been brought to Detroit to attend upon a trial of his case upon the merits. Third, It is said that the question whether the privilege should be recognized and protected was one addressing itself exclusively to the Superior Court, under whose process the arrest was made; and that court having declined to recognize it, no other court should interfere. If the question were merely whether the process of the Superior Court had not been employed in contempt of its authority, or to the prejudice of proceedings therein, it might no doubt be safely left to that court to assert its proper dignity and redress any wrong which had been committed. Commonwealth v. Hambright, 4 S. & E., 149. But the privilege in this case arises not under the process of the Superior Court, but under that of the Federal court, and the latter, if either, is the court that on its own account would be interested in protecting the privji". lege. But we cannot agree that an appeal to the federal court for a discharge of the relator on habeas corpus was the sole remedy. The privilege does not concern the dignity of the court merely, but it is primarily and above all conferred for the just protection of the party himself, in order that the performance of a duty, or the submission to process which the party cannot resist, shall not be made use of to his injury or oppression. If any court were disposed to suffer its own process to be employed for such a purpose, any other court with competent authority should interfere to correct the wrong. United States v. Edme, 9 S. & R., 147; Magnay v. Burt, 5 Q. B., 381; Henegar v. Spangler, 29 Geo., 217. Otherwise a local court, taking advantage of the enforced presence of officers, parties or witnesses in attendance upon the general courts located within its territorial jurisdiction, might permit parties to subject others to its authority in plain disregard of the statutory limitations upon it. It is for the protection of the party that we interfere in this case, that he may not be unwarrantably forced to a trial in a local court to whose process he was not properly subject. The writ of mandamus will issue as prayed. The other Justices concurred.

Campbell, C. J. Proceedings were had under the statute to condemn land of plaintiff for a school-house site, in which the jury found a necessity for using the land, and awarded fifty dollars damages. The circuit court confirmed the proceeding and rendered judgment. Smith brings certiorari and alleges various defects. He appeared in the circuit and made no showing by affidavit or otherwise impugning the proceedings, but claimed they were defective and irregular. The several assignments of defects first set forth rest upon alleged insufficiency of showing the regular designation of a site and its necessity. The petition, signed by the assessor, as he sets forth by authorization from the board, recites that the site was resolved upon at a special school meeting called for that purpose, and that the reason of the application was that they had been unable to agree with Smith upon compensation.. The authority to the assessor contains similar full allegations. The venire goes further and recites the presentation to the circuit court commissioner of the district records, but this the law does not require. All that can be necessary to invoke the jurisdiction is to present á petition to the proper officer setting forth the designation and the disagreement with the owner. It would be absurd to require such a petition to contain copies of all proceedings which would merely be evidence in support of its allegations, unless plainly required by statute. In all legal proceedings it is usually enough to allege the necessary facts, leaving their establishment to be made when controverted or otherwise made necessary to be shown affirmatively. In the present case it may be fairly assumed that the designation was shown to the jury as a step towards establishing its necessity. Section 3732 of the Compiled Laws expressly refers to it as a fact to be laid before the jury. If not so shown, Smith was represented there and knew it, and should have pointed out the omission by affidavit to the circuit court. The objection that it does not appear there was no circuit judge in the county has no force. The statute does not require him to act in preference to a commissioner, but puts them on the same footing. § 3714. It appears that John Barber acted on the jury, when no such name appears in the venire and return, John Barker’s name appearing instead. The statute expressly provides for challenges and for summoning talesmen, as well as for strildng off superfluous names. As Smith does not appear to have made any objection to this juror, and nothing appeared to the contrary, it must be assumed he waived any objection, if there was any. He could not stand by and see the jury sworn without challenge or objection and then complain of the incompetency of one of them as something to be presumed, although not in any way indicated by the record. So far as the oath is concerned, the- commissioner certifies it was the oath required by § 3718. He also certifies that after the jury were sworn an adjournment was had by consent of parties, and that both parties were represented by counsel on the inquest. The presumption under these circumstances is that all was correctly done, in the absence of a showing to the contrary. The claim that it appears the designation was made by the board and not by the district is not true in fact. There is in one place such a statement, but it is evidently a slip, and does not contradict the action of the district. If the board had also acted and come to the same conclusion with the district, it could not have done any harm. The statute, when it provides for filing these proceedings in the circuit court, where they are to be confirmed if regular, contemplates that if any thing is done during their course which is contrary to the rights and wishes of either party, and which would not appear on the record, the objecting party will make some showing to that effect. It does not require the record itself to contain a full narrative of all that takes place before the commissioner or jury. When the petition, notice, venire and finding, and the commissioner’s certificate, show a compliance with all that the statute' sets out as necessary, the papers being regular on their face raise a presumption against any wrong not appearing. , If a party who has had every means of knowledge, and who has been fully heard, will mot venture to make any responsible showing in derogation of correctness, he cannot prevail to overthrow what he has not seasonably objected to. We think the proceedings should be affirmed with costs. The other Justices concurred.

Per Curiam. The declaration in this case was sent to '.the county clerk without an entry fee. The clerk declined to file it until the fee was paid, and notified the parties accordingly. The fee was then paid. Meanwhile the plaintiffs, supposing the declaration had been filed, had served a copy. Held that until the declaration was filed, there was no suit in existence, and as the service of the declaration was a substitute for process, service made before filing ,was entirely void, and the party could not be put i» default for not appearing. The defect was jurisdictional and the proceedings could not be aided by any amendment. The question being a novel one, no costs were allowed on the motion.

Cooley, J. The charter of thev city of Ludington, enacted in 1873, empowers the common council, among other things, “To license and regulate saloons, restaurants, and billiard rooms, or prohibit the same or any of them.” Laws 1873, vol. 2, p. 171. When this charter was granted, the constitution of the State provided that “The legislature shall not pass any act authorizing the grant of license for the sale of ardent spirits or other intoxicating liquors.” Art. IV., § 47. While this remained in force it was of course as incompetent for the legislature to act indirectly through municipal authorities in the grant of licenses, as to do so by more direct action. The .section, however, was stricken from the constitution by a vote of the people taken in the year 1876. In 1878, after the constitution had been thus amended, the common council of Ludington passed an ordinance which by its first section provided that “No person or persons shall keep or maintain a saloon or restaurant within the limits of the city of Ludington without first obtaining a license therefor in the manner hereinafter provided.” Other sections pointed out the method of obtaining a license, and fixed the license fee at one hundred and fifty dollars a year. The tenth section declared that “The words saloon and restaurant as used in this ordinance shall not be construed to include any place of business kept exclusively for the purpose of furnishing meals, nor to any place of business kept exclusively and only for the purpose of selling any or all of the following articles, to-wit: cigars, tobacco, confectionery, nuts, candies, ice cream, pop, cakes, fruits, vegetables or lemonade.” These exceptions seem carefully designed to exclude from the operation of the ordinance all keepers of saloons' and restaurants not engaged in the sale of intoxicating drinks, but to include all those who are or shall be so engaged. The ordinance is therefore manifestly an ordinance to license saloons and restaurants for the sale of intoxicating drinks, because in its terms it manifestly applies to them and not to others. It is in this particular radically different from the ordinance of Ann Arbor which was sustained in Kitson v. Ann Arbor, 26 Mich., 325, for that applied to saloons generally. Treating this as an ordinance for the licensing of places for the sale of intoxicating drinks, it is plain that it cannot be sustained. The legislature of 1873 had no power, under the constitution as it then whs, to authorize such licenses, and it is not presumable that any unconstitutional power was intended to be exercised in granting the charter. But if the charter at that time did not confer or attempt to confer the authority, neither does it do so now. The meaning of the charter is the same to-day that it was when adopted, and it cannot be affected and enlarged by any subsequent change of the constitution. The intent to be sought for in the ■charter is the intent of the body which passed it, namely, the legislature of 1873; and that was clearly not an intent to authorize the licensing of sales of intoxicating •drinks. The conviction was therefore erroneous. The conviction must be reversed with costs against ■the city. The other Justices concurred.

Cooley, J. The parties to this suit appear to have had a controversy over a plumber’s bill, which has resulted in two suits, one of which is now before us. The following facts may be taken as conceded by the parties. McEwen had made a contract for doing certain work at the price of $144. He had also sold Bigelow gas fixtures at the price of sixty dollars. It is not disputed that McEwen performed his contract, but he claimed to have done considerable extra work and furnished extra materials for which he demanded payment. Bigelow disputed this bill for extras. He had, however, paid McEwen $258.32, which was $49.32 more than he admitted to be owing him. Apparently to recover this balance he brought suit against McEwen before Justice Comstock. Within an hour after the commencement of this suit, McEwen sued Bigelow for the amount of his bill before Justice Toll. The Comstock suit proceeded to judgment first. Bigelow declared on the common counts only, and it does not appear that his special contract with McEwen was in any way in issue in that suit. He showed that he had paid McEwen $253.32 and then gave him credit for $144 by plumbing and .gas fitting, per agreement, $60 for gas fixtures, and claimed and took judgment for a balance of $49.32. McEwen claimed no set-off in the Comstock suit, but he proceeded to a trial of the suit before Justice Toll. In that suit he proved his bill, including the extras, and allowed Bigelow a credit for his payments. Bigelow claimed that the suit and judgment before Justice Com-stock was a bar to the suit before Justice Toll, but his claim was not allowed, and McEwen had judgment for the full amount of his claim, less the payments made by Bigelow, deducting from the latter the sum of $49.32 which Bigelow had recovered in the suit before Justice Comstock. The circuit court reversed this judgment. I. There was no error in holding that the first suit and the judgment rendered by Justice Comstock was not a bar to the suit brought before Justice Toll. The Corn-stock suit did not necessarily involve the same subject matter at all. The suit was for money paid; and the only way McEwen’s bill was brought into it was by the action of Bigelow in giving credit for a portion of it. Now McEwen had a right to use his bill by way of defense in that suit, or to withhold it at his option, and he chose to have it examined and tried in a separate suit. Under such circumstances, if Bigelow gave credit for what he claimed was the amount of McEwen’s bill, he did so at his peril; he could not in any such manner fix the amount of a contested bill. Had he declared Upon a special contract with McEwen, so as distinctly to put in issue the contract and what was covered by it, the question would be different; here he sued, as already stated, only for money paid generally. II. It is said that by deducting from Bigelow’s payments the sum for which Comstock had rendered judgment, Justice Toll indirectly reviewed and set aside that judgment. This is a mistake. Justice Toll merely ascertained, by evidence of the proceedings before Justice Comstock, that of the payments made by Bigelow to McEwen, $49.32 had not been applied in satisfaction of McEwen’s bill; and this was very just and very proper. III. In the suit before Justice Toll, Bigelow offered the evidence of one Hills as that of an expert in plumber’s work, and the justice rejected it. The reason given for rejecting it was that though Hills appeared to have been a plumber many years ago, he had not been such for twenty years. This was a long time to be out of a business that must have changed so greatly in that time, and we cannot say that the ruling was clearly erroneous. The court must exercise a judicial discretion regarding the reception of evidence purporting to be that of experts; and presumptively there must in a business like this' be much better expert evidence than that of a person so long out of the business. The court is not obliged to receive the evidence of every person called who may appear to have some little knowledge of the business, but who has no personal knowledge of the matters in controversy. He must decide within the limits of a- fair discretion whether the experience of the supposed expert had been such as to make his opinions of any value. Some other supposed errors in the proceedings before Justice Toll are pointed out, but we do not think they are well assigned, or that they require special attention. The judgment of the circuit court should be reversed, and that of the justice affirmed, with costs of both courts. The other Justices concurred.

Graves, J. Eawson entered into an executory agreement with Babcock to sell him certain premises in the village of Decatur, 'and gave him possession. The agreement was made July 26, 1876, and it provided that Babcock should pay $2,433.40 in two equal payments, one with interest at ten per cent, on or before January 1st,. 1877, and the other with interest at ten per cent; on or before January 1st, 1878. It further provided that he should keep the building insured for $1,500 in a good company for Eawson’s benefit, and that in case Babcock should fail to perform on his part, then Eawson should have the right to elect to consider himself released and discharged of and from all liability in any of the covenants specified to be done and performed on his part, and all payments and improvements made by Babcock should be deemed forfeited without further notice as stipulated damages for non-performance of contract. There were no other terms bearing on the subject of possession. January 23d, 1878, Eawson took summary proceedings before a circuit court commissioner under Comp. L., ch., 211, to recover possession. He alleged in his complaint that Babcock was holding contrary to the conditions' of the before mentioned agreement, and also holding unlawfully and against his rights. The commissioner decided in Eawson’s favor and Babcock appealed, and on trial in the circuit court without a jury the judge ruled against Eawson and he brought error. The payment of purchase money due January 1st, 1878, was not made, and on the 5th of that month Eaweon served a written notice that the contract had become forfeited by reason of the non-payment of purchase money and requiring Babcock to immediately surrender possession of' the property. ■ On trial Bawson claimed that in consequence of Babcock’s default and of the foregoing notice, the holding was contrary to the conditions of the executory agreement, and that without further notice he was entitled to recover under that part of the first subdivision of Comp. L., § 6706, which allows summary redress where the holding is “contrary to the conditions or covenants.of any executory contract for the purchase of lands or tenements and this position is now maintained with much ingenuity in the brief of Bawson’s counsel. It was insisted by counsel for Babcock that the case was not within the provision referred to, and that Babcock’s right was that of tenant at will, and that proceed-, ings to expel him could not be taken until the termination of his estate by three months’ notice, and the judge, adopted this view. No such notice was given or could be. The decision by the circuit judge was right. The case is governed by Raynor v. Haggard, 18 Mich., 72. The executory contract contained no provisions regulating the right of possession. Whatever right existed on the strength of it, depended on implications. It did not assume to say expressly that Babcock should have possession at all, and no condition or covenants were inserted prescribing any mode or time of possession, or any time or event for yielding possession. The retention of possession was not therefore contrary to the conditions or covenants of the contract, because there were none on the subject. Whether, in case there had been, the holding would have been, such as to require three months’ notice to terminate the right, is a point not decided. The case does not require it. The refusal of the judge to admit'Bawson’s notice' of his election to forfeit the contract worked no prejudice. It could not place Babcock in the attitude of a vendee. holding possession contrary to covenants and conditions about possession, since there were none. According to the facts in the record Babcock’s possession was that of tenant at will, requiring three months’ notice under the statute, and the proceeding was premature. The judgment Bhould be affirmed with costs. The other Justices concurred.

Graves, J. The plaintiff sued the defendant before a justice of the peace and declared on a promissory note of which the following is a copy: “Bast Saginaw, April 22d, 1872. $200.00. Bor value received I promise to pay Daniel Herbage or bearer the sum of two hundred dollars with ten per cent, interest the 22d day of April, 1873. W. B. SCHENDALL.” Endorsed: “ Patrick McEntee.” The justice rendered judgment for the plaintiff, but the circuit court reversed it on certiorari. It seems to have been supposed that in Rothschild v. Grix, 31 Mich., 150, the former was held to be a maker of the note there in question upon the ground that the paper was nonnegotiable. But that was not the view of the court. Wetherwax v. Paine, 2 Mich., 555, had already settled the law in this State in regard to paper not negotiable, and the court was of opinion that the same rule applied to paper which was negotiable. In discussing .the course of the courts of New York on the question it was suggested that the distinctions they assumed between negotiable and non-negotiable paper as a reason for applying one rule to the former and another to the latter did not seem to be a sound distinction and ought not to be adopted. We think Rothschild v. Grix governs here. On its face the paper now in question imported that for the purpose of adding to its credit the defendant at its inception gave his name as promissor of payment, and made himself liable in character of maker. The record presents no farther question. If either party indulged a wish or purpose that the effect should be different, or conceived an opinion that it was different, it is immaterial. In the absence of controlling facts the transaction stands as its own interpreter. The judgment of the circuit court should be reversed with costs, and that of the justice affirmed. The other Justices concurred.