were obliged to wait, in the clear, the passing of 16 regular, besides several extra, trains each day. It further appeared that the lack of trackage compelled defendant to store loaded cars at Milwaukee Junction, Durand, and other nearby stations, and as a result the beets could not be delivered to the factory fast enough to keep the plant supplied. There was much more testimony along this same line which tended to show that defendant was in fault for failure to deliver the cars at the plant when needed.

On the other hand, testimony was offered tending to discredit some of plaintiff's testimony in this regard, and other testimony tending to show that the cars were delivered as rapidly as plaintiff could take care of them. The testimony presented a cleancut question of fact, and was such that the jury might have determined it either way. Counsel's contention that a verdict should have been directed for defendant on this issue, in the face of this testimony, is not easily understood. We shall simply have to dispose of it by saying we disagree with them.

2. Counsel argue that the trial court was in error in refusing to instruct the jury that the switching service on the spur which plaintiff counts upon as not having been performed or properly performed was "plant switching" for which defendant was not liable. The interstate commerce commission has drawn a distinction between "plant switching" and "terminal switching," holding that the former is outside of the contract of the carrier, and, therefore, unlawful as a rebate, while the latter is within its contract of carriage (14 I. C. C. 237-246). This distinction has been discussed by the Federal courts. See Los Angeles Switching Case, 234 U. S. 294. Much controversy was indulged in at the trial as to whether the switching service on the spur at the plant, which was contracted for and rendered by defendant, was "plant

switching" or "terminal switching." The declaration filed in this case covered a wide range of recovery. It was framed to recover for the demurrage paid under protest; for diverting cars of beets to other sugar factories; for the value of beets frozen and rotted by reason of delayed deliveries; for the wages of servants who were idle because of failure to deliver cars promptly, and for the failure of defendant to promptly switch the cars at the plant. At the close of the testimony the trial court was of the opinion, for various reasons which need not be herein recited, that but one question should be submitted to the jury, and that was the question of damages occasioned by a failure to deliver cars to the spur or exchange track, and the jury were expressly instructed that no damages arising by a failure to switch the cars after they were placed on the spur should be allowed, as will be shown by the following excerpt:

"I think, gentlemen of the jury, that there is no question but that in this case this railroad company was not obliged to do this switching in the yard of the complainant of these cars, and that whatever was done was volunteered, and that the complainant cannot find fault with reference to that or require it; and that the failure of the company, if there was any failure, and I may not say that there was, if there was any failure that that cannot be considered in this case by you, this failure to do this switching. So no claim of delay can be made on this ground."

We refrain from any comment as to the correctness of this instruction, but refer to it solely for the purpose of showing that the trial court instructed the jury in accordance with defendant's contention. In view of this elimination by the court we can see no occasion for discussing the question as to whether switching service on the spur and at the plant should be denominated "plant switching" or "terminal switching."

3. A considerable portion of the demurrage charge accrued on cars held at Milwaukee Junction, Durand, and other nearby stations. Plaintiff contended that demurrage could not be properly charged until the cars arrived at Mt. Clemens. Defendant insisted this was a proper charge if the cars were held at these stations because plaintiff could not handle them. The trial court took defendant's view and charged the jury in part that:

"The defendant company had the right to assess demurrage upon cars consigned to plaintiff which were held at Milwaukee Junction, Durand, or any station upon its road, because of the plaintiff's inability to receive and dispose of them at the factory, and was not called upon to wait until it had brought said cars to Mt. Clemens before charging demurrage upon the same."

As the trial court agreed with counsel in this contention, it will receive no further consideration.

4. It was urged upon a motion for a new trial that the verdict was against the overwhelming weight of the testimony. The issue of fact was submitted to the jury as favorably to defendant's case as the proofs would permit, and we think the conclusion reached by them is amply justified by the record. The record is quite persuasive that the real difficulty lay in the lack of terminal facilities of defendant at Mt. Clemens, and in the fact that the switching crew had to use the main track for switching purposes which would have been unnecessary had plaintiff's spur been connected with the siding. Had it been so connected switching operations could have gone forward while main line trains were passing. The application for a new trial upon this ground was properly overruled. The judgment must be affirmed.

OSTRANDER, C. J., and MOORE, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ., concurred.

PEOPLE, ex rel. BROWN, v. PARSONS.

1. MUNICIPAL CORPORATIONS-CHARTER-CONSTRUCTION—ABSURDITY. A section of a city charter will not be given a literal construction, where such construction would lead to a manifest absurdity.

MEM

2. ELECTIONS-LANSING CHARTER-CONSTRUCTION-INTENT BERS OF CITY COUNCIL-ELIGIBILITY AS CANDIDATES. Section 53 of the charter of the city of Lansing, providing that "No member of the city council shall, during the period for which he was elected, be elected or appointed to, or be competent to hold, any office or position or receive any employment directly or indirectly connected with the city government," construed, and held, to be the intent to prevent the holding of two offices by one man at the same time, and the holding by one man of a second office during the period of the term of his first office. and not to disqualify aldermen from succeeding themselves or from being elected to the office of mayor or city treasurer for the term succeeding their terms as aldermen.

Certiorari to Ingham; Collingwood, J. Submitted March 13, 1918. (Calendar No. 28,333.) Decided

March 13, 1918.

Mandamus by the people of the State of Michigan, on the relation of William C. Brown, prosecuting attorney of Ingham county, to compel Judson A. Parsons, clerk of the city of Lansing, to remove certain petitions from his files and to refrain from placing certain names upon the official ballot for city offices. Judgment for relator. Respondent brings certiorari. Reversed.

Cummins & Nichols, Edward Cahill, and Walter S. Foster, for relator.

Joseph H. Dunnebacke, City Attorney, Jason E.

Nichols, Frank L. Dodge, and Warner & Raudabaugh, for respondent.

PER CURIAM. Certiorari to mandamus. The learned circuit judge held that under the provisions of section 53 of the charter of the city of Lansing certain aldermen were disqualified to succeed themselves in office by election, and that certain other members of the council were disqualified to be elected to the office of mayor and of city treasurer. The charter provision is as follows:

"No member of the city council shall, during the period for which he was elected, be elected or appointed to, or be competent to hold any office or position or receive any employment directly or indirectly connected with the city government."

* * *

Given a literal construction this section of the charter leads to the manifest absurdity that the moment a citizen was elected a member of the city council, he would thereupon become disqualified to hold the very office to which he had been elected. It is obvious that the legislative body (in this case the people) had no such intention, but that their purpose was to provide against the same evils which brought about the adoption of section 7 of article 5 of the Constitution of the State. This section has been repeatedly construed by this court, notably in the case of Fyfe v. Kent County Clerk, 149 Mich. 349, and in Murtha v. Lindsay, 187 Mich. 79.

We are of opinion that the evils sought to be remedied by the enactment of the legislation in question were the holding of two offices by one man at the same time, and the holding by one man of a second office during the period of the term of his first office. Given this construction, the provision in question affords the protection sought.

The order of the lower court is reversed.