instance recognizing prima facie rights of relationship, in the final test are not strictly bound by demands founded upon purely technical claims or naked legal rights, but may and should, in making the award, be governed by the paramount consideration of what is really demanded by the best interests of the child. Corrie v. Corrie, 42 Mich. 509 (4 N. W. 213); In re Heather Children, 50 Mich. 261 (15 N. W. 487); Chapsky v. Wood, 26 Kan. 650 (40 Am. Rep. 321); Richards v. Collins, 45 N. J. Eq. 283 (17 Atl. 831, 14 Am. Dec. 726)."

We are unable to find, however, that this court has ever said, or interpreted the rule to mean, that a father would be deprived of the possession of his child where it clearly appears that he is a man of good habits, honest, and well able to provide for his child. The only charge that can be made against the petitioner in this case is that during the time immediately after the death of the mother of the child, he did not bestow upon it that affection that might be expected of a parent, but, as the learned trial judge found, this might be explained by the fact that he knew the grandparents would do many things for it that he should have done and that he saw that the child was being attended to. However, he never relinquished the right of the custody of his child, and it was only a short period after his second marriage that he requested its possession. It may be true that the respondent is as much attached to the child as the parent and that she is as suitable to have its custody and as able to provide and care for it, but nevertheless, unless it clearly appears that the parent is for some reason unfit to have its possession, the rule is well established in our law that the parent is entitled to the possession of his child against all others. The reason for this rule is very aptly stated by the court in Weir v. Marley, 99 Mo. 484 (12 S. W. 798), cited by counsel for petitioner in his brief, from which opinion the following is quoted:

"In all civilized countries, in which the family is regarded as the unit of social organization, its minor members must and ought to be subject to the custody and control of those who are immediately responsible for their being, for the reason that by nature there has been implanted in the human heart those seeds of parental and filial affection that will assure to the infant care and protection in the years of its helplessness, to be returned to the parents again when they in their turn may need protection, in their years of helplessness and of their child's strength and maturity. The law, at the birth of an infant, imposes upon the parents the duty of such care and protection, to the performance of which the instincts of nature so readily prompts, and clothes him with the right of custody, that he may perform it effectually, upon the presumption that such custody, being in harmony with nature, is best for the interest, not only of the parent and child, but also of society; conceding, however, that the primary object is the interest of the child, the presumption of the law is that its interest is to be in the custody of its parent. The law has made provision, in two instances, whereby this presumption may be overcome; in the statutes providing for the adoption and apprenticing of children, when, for their interest, this right of custody is permitted to be transferred to another. In regard to all other contracts by parents, for the custody of their children, this presumption must obtain; and, while the parent may, by his inability or failure to discharge properly his duty towards his child, forfeit his right to its custody, because the interest of the child demands it, yet, upon the trial of an issue, involving such a forfeiture, he is entitled to the benefit of such presumption; and, unless the interest of the child does demand it, such forfeiture cannot take place. He cannot deprive himself of this right of custody, which is the concomitant of a personal trust imposed upon him by the law of nature, as well as by positive law, and essential to the discharge of the duties of that trust, by contract per se, otherwise he might deprive his child and society of the benefits which the law contemplates will inure to each by the personal discharge of his parental duties."

The respondent having failed to show that the father, George C. Goldinger, is not a fit person to have the care and custody of his son, it follows that the order made by the learned trial judge must be vacated and an order entered awarding the permanent custody of his child to the petitioner. No costs.

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

COMMON COUNCIL OF THE CITY OF DETROIT v. ENGEL.

1. MUNICIPAL CORPORATIONS-DETROIT Charter-BonDS.

By amendment to section 41, chap. 7 of the "old charter," in effect November 27, 1916, held, that the common council of the city of Detroit, with the consent of the board of estimates, had authority to issue bonds for the erection of buildings for hospital purposes.

2. SAME-BONDS-APPROVAL BY BOARD OF ESTIMATES.

Where the common council of the city of Detroit allowed and approved a certain sum to be raised by taxation for the recreation commission fund, for the purchase of lands and buildings thereon for use as a play center, and the board of estimates refused the same as a tax item but passed it as a bond issue, as park and boulevard bonds, subject to the approval of the council, which body thereafter concurred, held, valid, although it would have been more orderly for the council to have acted first.

8. SAME-BONDS WRONGLY NAMED VALIDITY.

Held, that bonds wrongly named are not therefore necessarily invalid, since it will be presumed that the proceeds of said bonds will be applied as legally authorized.

4. SAME SEWER PURPOSES-AUTHORITY TO BOND. Under the charter of the city of Detroit previous to its revision under the "home-rule law," the common council had power to raise by taxation for sewer purposes in one year $200,000 and also to bond for "such sums of money as shall be deemed necessary and expedient," provided the gross debt limitation was not exceeded.

There being no authority in said charter of the city of Detroit or in any special act authorizing the purchase of real estate "for extension of public service," bonds authorized for the purchase of certain frontage at the harbor line, held, invalid.

6. SAME AMENDMENT OF CHARTER-VALIDITY OF BONDS. Where the charter of the city of Detroit (Charter 1883, as amended) empowered the common council by and with the consent of the board of estimates annually to provide a public sewer fund, a public building fund, and a fund for the purchase or construction of public utilities, and to issue bonds therefor, and all necessary steps were taken under said authority to issue certain bonds for said purposes, without being submitted to vote of the people, held, that said bonds were valid although before said bonds were sold a new charter under the provisions of the home-rule act (Act No. 279, Pub. Acts 1909) went into effect requiring "approval by three-fifths of the electors voting thereon."

7. SAME DETROIT CHARTER-BONDS-ORDINANCE-RESOLUTION. The contention that action looking to the issue and sale of bonds should have been taken by ordinance rather than by resolution, held, not sustained, in view of title 6, chap. 1, § 6, of said charter.

8. SAME BONDS-MUNICIPAL BONDS-SCHOOL BONDS.

Held, that the school bonds and library bonds of the city of Detroit are not to be included in the two per cent. limit of indebtedness for municipal purposes specified in the charter.

9. SAME DETROIT CHARTER-CONSTRUCTION-REPEALING CLAUSESAVING CLAUSE.

Held, that, in the adoption of the new charter, construing the "repealing clause" and the "saving clauses" together, it was not the intention to abate the right to carry out the sale of bonds authorized under the old charter.

10. SAME-ANNUAL EXPENSES-CAPITAL EXPENDITURES. Under title 6, chap. 7, § 5, of the "new charter," bonds may be issued to meet "capital expenditures" so-called, as distinguished from ordinary annual expenses of a department for the coming year.

Certiorari to Wayne; Hunt, Codd, and Hosmer, JJ. Submitted July 2, 1919. (Calendar No. 28,841.) cided July 17, 1919.

De

Mandamus by the common council of the city of Detroit to compel George Engel, controller, to prepare and execute certain bonds. From an order granting the writ, defendant brings certiorari. Affirmed.

Walter Barlow, for appellant.

Edmund Atkinson, for appellee.

STONE, J. This case is here upon certiorari to review proceedings had in the circuit court for the county of Wayne on the petition of the common council of the city of Detroit, for a writ of mandamus commanding George Engel, controller, to prepare bonds of the city and to cause them to be duly executed and recorded in the books of his office and transmitted to the city treasurer for delivery to the parties to whom they have been awarded, incident to an effort to effect their sale. In the petition of the plaintiff to the circuit court there is not only a presentation of its contentions in support of the validity of the bonds under consideration, but a full presentation of the reasons upon which the controller based his refusal to prepare the bonds. In his answer and return the defendant admits all the facts presented, but he denies that from said statements any inference should be drawn that the bonds mentioned should be by him, as controller, prepared and transmitted to the treasurer of the city of Detroit for delivery to the persons