| Mich. | Oct 26, 1869
This is a motion to dismiss an appeal in Chancery on the ground that the appeal bond was not approved by an officer having authority to approve 'it.
By § 3,597 Comp. L. as amended in 1858 (Sess. L. 1868 p. 6 § 4), the party taking an appeal is required to file
The act incorporating the City of Corunna created the office of Recorder to be filled by an election by the Electors of the city; and at the last election S. B. Raynale was chosen. In defining the powers and duties of the Recorder, the act provided that by virtue of his office he should be a justice of the peace with all the like powers and duties as other justices of the peace in said city, and that in addition to liis other powers and duties, he should possess the same powers and duties as are exercised by the Circuit Court Commissioner of the County of Shiawassee.
The charter also provided that the court to be held by such officer, should be denominated the “ Recorder’s Court of the City of Corunna,” and that his title when exercising the powers of a justice should be “Recorder.”
The approval of the bond in this case was made by Mr. Raynale, while holding said office of Recorder, and his certificate of approval endorsed on the bond is subscribed, “S. B. Raynale, Recorder of the City'of Corunna, and ex-officio Circuit Court Commissioner, Shiawassee Co., Mich.”
The first point presented by the motion, is whether this officer was authorized to perform the official act in question.
In proceeding to examine this point, it must be conceded that in order to perform the act of approval in a legal manner, Mr. Raynale must have been either a Circuit Judge or Circuit Court Commissioner, or been by some law empowered to perform the act in another capacity.
It is not asserted that the office of Recorder with its powers and jurisdiction as constituted and given by the charter of Corunna, aside from the provision purporting to confer the powers of a Circuit Court Commissioner would
The law as amended in lb58 had explicitly designated by their official titles, the officers authorized to approve bonds in chancery appeals, and no others, though possessing superior authority, could legally do the business; nor could any authority to perform the act, be implied from a statute conferring power on a City Judge in terms so general as those, and to give the Recorder of Corunna an authority equivalent to that of a Circuit Court Commissioner.
It is seen therefore, that the approval of the bond by Mr. Raynale can only be supported by deciding that his becoming Recorder under the charter of- Corunna made him a Circuit Court Commissioner.
As before observed, the statute relating to the approval of appeal bonds in chancery required the approval to be made by a Circuit Judge or Circuit Court Commissioner.
Mr. Raynale was not a Circuit Judge and he could not perform the act in question in his capacity of Recorder merely. In his certificate endorsed upon the Bond he described himself as Recorder and “ ex officio Circuit Court Commissioner.”
Was he a Circuit Court Commissioner ?
At the time of the adoption of the present Constitution, and long prior thereto, we had county officers, by law designated as Circuit Court Commissioners, who were authorized to perform many ministerial and judicial duties; and when the Constitution was framed, provision ivas made by § 16 of article 6 to retain these officers, but in so doing it was provided that they should be elected by the electors
Although the Constitution does not bestow on these officers any official title, no doubt has ever existed as to what was intended.
From the adoption of the Constitution Until the present time, the Legislature, and the Courts have always acted on the idea that the office known as Circuit Court Commissioner, when the first Constitution was in force, was meant to be perpetuated by § 16 of article 6 of the present Constitution.
The Circuit Court Commissioner, by whom appeal bonds in chancery are to be approved, must therefore be considered as the officer contemplated by this provision, and who is necessarily to be chosen by the electors of the whole county or appointed by the Governor.
The express requirement of the Constitution, as to the mode of choice, must not only preclude every other mode, but must be taken as a circumstance bearing upon the identity of the office. The Legislature can in no manner infringe this fundamental regulation or evade its operation. Whatever power they may confer on local or municipal tribunals, the office of Circuit Court Commissioner can only be constituted as declared in the Constitution, and filled as therein provided, by the electors of the county, or in case of vacancy, by executive appointment. And the provision in the charter of Corunna relating to the Recorder’s Court, in so far as it may be regarded as an attempt to constitute the Recorder a Circuit Court Commissioner in virtue of his office as Recorder, is in conflict with the Constitution and invalid.
It follows from this view that Mr. Raynale was not a Circuit Court Commissioner and could not perform the act cf approval which the case required. The approval of the bond by him was therefore ineffectual.
But, we arc of opinion however, that this defect is not
The appellee will be entitled to the costs of this motion, and tbe appellants will be allowed thirty days to cause a new bond to be made and approved according to § 3,597 Comp. L., as amended by § 4 of act No. 4 of 1858, and substituted in place of tbe present defective one, as authorized by § 4,543 Comp. L., by filing the same with the return in this Court. And in case the appellants fail to complete the substitution of such new bond within the time specified, the appeal will stand dismissed.