"All sales shall stand confirmed, subject to the right of redemption provided for in section seventy-four, unless objections thereto are filed within eight days after the time limited for filing such report, without the entry of an order or further notice.”

We find no jurisdictional irregularity, and feel compelled to reverse the order below, and dismiss the petition, with costs.

GRANT, C. J., MOORE and LONG, JJ., concurred. HOOKER, J., did not sit.

WABASH RAILROAD CO. v. COMMISSIONER OF RAILROADS.

RAILROADS-INTERLOCKING SWITCH AND SIGNAL SYSTEM AT CROSSINGS-DIVISION OF EXPENSES.

3 How. Stat. § 3301, authorizes the railroad commissioner to require railroad companies to maintain flagmen or gates at crossings of other roads, and provides that the expense thereof shall be borne jointly, in equal proportions, by the two companies. Section 3310, added as an amendment to the same statute, gives like authority with respect to the interlocking switch and signal system, but makes no provision for the apportionment of the expense between the companies. Held, that the sections are in pari materia, and hence the expense of the interlocking system, when ordered by the commissioner, is to be shared equally by the companies involved.

Mandamus by the Wabash Railroad Company to compel Chase S. Osborn, commissioner of railroads, to vacate an order apportioning between relator and another railroad the expense of an interlocking switch. Submitted June 6, 1899. Writ granted July 11, 1899.

Edward A. Gott, for relator.

Horace M. Oren, Attorney General, for respondent.

MONTGOMERY, J. The line of the relator's road is intersected at Britton, Lenawee county, by the Cincinnati Northern Railway. On the 6th day of April, 1899, the respondent, acting under authority of section 3310, 3 How. Stat., made an order that the two roads construct and maintain an interlocking switch and signal service, and that the expense should be borne three-fourths by the relator and one-fourth by the Cincinnati Northern. This is an application for mandamus to require respondent to vacate this order, and enter an order requiring the two companies to bear the expense in equal parts.

Section 3301, 3 How. Stat., is a portion of the act to provide for the appointment of a commissioner of railroads, and define his powers and duties and fix his compensation. This section authorizes the commissioner to require railroad companies to station flagmen at crossings, or maintain gates, and further provides that, when this is done, the expense thereof shall be borne jointly, in equal proportions, by the two companies. By a subsequent amendment, section 3310, 3 How. Stat., was added to the act providing for a commissioner of railroads, etc., and, as it now stands, reads as follows:

"Authority is hereby given to said commissioner, and it shall be his duty, if he shall deem it practicable, to prescribe the use of the interlocking switch and signal system, or some other system that will secure equal safety of the operation of trains of cars, at all crossings and junctions. of railroads in this State."

It will be observed that, unless the two sections (3301 and 3310) are to be read together, there is no limitation placed upon the authority of the commissioner as to fixing the proportion of the expense to be borne by each company. The attorney general contends that section 3310 is to be construed independently, and that the commissioner is authorized to fix the proportion in his discretion. It will be seen, however, that no such power is expressly given by this section; nor does this section, in terms, give authority to require the railroads to bear the expense at

all, although it is clear enough that this was expected. The two sections are in pari materia. Both relate to provisions for safety at crossings, and should be construed together. Thus construed, the first section fixes the proportion to be borne by each company.

The writ must issue.

The other Justices concurred.

MCFADDEN v. BRADY.

1. TAX SALES-VALIDITY-WANT OF REPORT.

A tax sale is rendered void by the failure of the county treas urer to file a report thereof in the office of the county clerk, as required by section 70 of the tax law of 1893.

2. SAME-PRESUMPTIONS.

The provision of section 99 of the tax law, that no tax, or sale for any tax, shall be rendered invalid by showing that any record, statement, certificate, affidavit, paper, or return cannot be found in the proper office, and, unless the contrary is affirmatively shown, the presumption shall be that such record was made, and such certificate, statement, affidavit, paper, or return was duly made and filed, does not apply to the report of sale required to be filed with the county clerk by the county treasurer.

3. SAME-BILL TO QUIET TITLE-DEFENSES—ATTEMPTED PAYMENT. A tax deed cannot be shown to be invalid, on a bill to quiet title by one claiming thereunder, on the ground that the owner attempted to pay the taxes, and was prevented through no fault of his own. Kneeland v. Wood, 117 Mich. 174, followed.

4. SAME-PROOF OF PUBLICATION-SUFFICIENCY.

An affidavit showing the publication of a copy of the aud itor general's petition in a tax proceeding, and of the order of hearing thereon, for "four successive weeks prior" to the day fixed for the hearing, is insufficient to prove a publication for "four successive weeks next prior" to such day, as

required by section 66 of the tax law, where the order was dated 70 days before the day fixed for the hearing.

5. SAME-JURISDICTION-PAROL EVIDENCE.

Under the provision of said section that proof of the publication of such petition and order shall be filed in the office of the county clerk before any final order is made, the filing of such proof is prerequisite to the jurisdiction of the court to enter a decree of sale, and any deficiency therein cannot be supplied by parol.

Appeal from Baraga; Haire, J., presiding. Submitted January 6, 1899. Decided July 11, 1899.

Bill by Charles W. McFadden against Thomas Brady and others to quiet title. From a decree dismissing the Affirmed.

bill, complainant appeals.

Chadbourne & Rees, for complainant.

E. J. Mapes, for defendants.

MONTGOMERY, J. Bill to quiet title. Complainant claims under tax deeds based on the sale of 1893 for taxes of 1891, and on the sale of 1894 for taxes of 1892. Defendants own the government title. The case was heard in open court, and the bill of complaint dismissed. The case is brought here on appeal.

1. The tax deed of 1893, for taxes of 1891, was held void for the reason that no report of sale was filed in the office of the county clerk, as required by section 70 of the tax law (Act No. 206, Pub. Acts 1893). This holding is supported by Millard v. Truax, 99 Mich. 157, and Jenkinson v. Auditor General, 104 Mich. 34. It is insisted, however, that the court was in error in finding as a fact that no report of sale was filed. The evidence upon this point was that no report was found in the files of the case in the circuit court in chancery. Complainant cites section 99 of the tax law, which provides, "No tax, or sale of property for any tax, shall be rendered or held invalid by showing that any record, statement, certificate,

affidavit, paper, or return cannot be found in the proper office, and, unless the contrary is affirmatively shown, the presumption shall be that such record was made, and such certificate, statement, affidavit, paper, or return was duly made and filed," and contends that, under this section, the absence of the report is no evidence that such a report was not in fact made. This contention cannot be sustained. We think the purpose of reversing the presumption as to records of judicial proceedings is not manifested by these provisions. It will be observed that the report of sale is not specifically mentioned, but the papers mentioned are certificate, affidavit, paper, and return,—such papers as are usual in proceedings preceding the decree. We held in Benedict v. Auditor General, 104 Mich. 269, that this provision did not apply to the affidavit of publication in the proceeding to adjudicate the tax delinquent. The case is analogous.

2. As to the deed of 1894, for taxes of 1892, the court held the deed invalid, on the ground that the owner had attempted to pay the taxes, and had been prevented through no fault of his own. Complainant contends that this proceeding is not a proper one in which to try this question. We think the contention should be allowed. See Kneeland v. Wood, 117 Mich. 174.

3. The defendants further contend that, as to the tax of 1892, the proceedings taken in 1894 are invalid, for want of a sufficient affidavit of publication; and, as this point was distinctly made in the court below, we are bound to consider it. The affidavit was as follows:

"Sylvester Kinney, being duly sworn, deposes and says that he is the publisher of the L'Anse Sentinel, a newspaper published at L'Anse, in the county of Baraga and State of Michigan, and circulating in said county; that he is familiar with the facts herein set forth; and that the order and petition, of which the annexed printed advertisement is a true copy, was duly published in said newspaper once a week for four successive weeks (five publica