51 Mich. 503 | Mich. | 1883
Lead Opinion
The Legislature at its last session passed an act of which the following is a copy:
SeotioN 1. The People of the State of Michigan enact, That two of the regular terms of the circuit court for' the county of Ingham, heretofore appointed, shall be held during the remainder of the year A. D. eighteen hundred and eighty-three, within the city of Lansing, and during each year thereafter, two of the regular terms of said court shall be held within said city: Provided, That the common council of said city, or the citizens thereof, shall furnish and provide, free of expense to said county, a suitable place for holding said court, within- said city, and transacting the business thereof, and also a suitable and sufficient jail, for the incarceration of prisoners during the sittings of said court, both to be inspected and approved by the judge of said court, or the prosecuting attorney of said county, which approval shall be in writing, and shall be filed with the clerk of said county.
Seo. 2. Within ten days after this bill shall, take effect and become a law, and said approval be so filed, the circuit judge of the fourth judicial circuit shall designate which of the two regular terms of the circuit court for said county of Ingham, heretofore appointed for the year A. D. eighteen hundred arid eiglity-tliree, shall .be so held within said city, which designation shall be in writing, and shall be immediately thereafter transmitted by him to the clerk of said county.
*505 Seo. 3. The judge of said circuit shall thereafter, when fixing and appointing times of holding the several terms within his circuit, in such appointment determine and designate which of the regular terms, to be then fixed and appointed, shall be so held within said city of Lansing, for the two years then next ensuing.
Approved May 11, 1883.
In pursuance of said act, and in accordance with its requirements, the common council of the city of Lansing provided a suitable place for holding said circuit court and transacting the business thereof in the city; also a jail for the purposes stated in the act; and on the 15th dav of September the presiding judge in said circuit, by proper order for the purpose, designated two of the regular terms of said court, one in October and the other in December, 1883, to be held in Barnes’ block in said city.
On the 19th of September said circuit judge caused to be made and directed to the relator the following order :
“STATE OF MICHIGAN-OIROUIT COURT FOR THE COUNTY OF INGHAM.
To John W. Whallon, Ji'sg., Cleric, of said County — Sir: You are hereby required and directed to be and appear at the said circuit court to be held at the city of Lansing, at the rooms of the building heretofore designated by me, which designation is on file in your office, for the purpose of holding such court therein, on the second Monday of October next, at the opening of the court on that day, and to act as clerk thereof during the sitting of the same; and also that you do bring with you, ready to be used in the business of said court, the law and chancery journals thereof, the common rule book and special motion book kept in your office, and all the files and papers in your office, in each and every case that has been, or may be hereafter, placed upon the calendar of said court, for hearing or trial at the next term thereof; to be holden at the city of Lansing on the day aforesaid.
G. T. Gridley, Circuit Judge.
Dated September 19, 1883.”
TJpon the receipt and filing of this order by the relator, he presented to the circuit judge for said county of Ingham the following petition:
*506 “ To Hon. G. T. Gridley, Oirouit Judge in and for the-Circuit Court for the Coirnty of Ingham: The petition of John W.. Whallon, county clerk for the said county of Ingham, respectfully shows that he has received and filed-in "the said clerk’s office the three several orders made by the Hon. the circuit judge for said circuit court for the? county of Ingham, copies of which are hereto attached.
That your petitioner is greatly embarrassed by the said orders, which seem to him in clear violation of the Constitution and laws of this State. Your petitioner, therefore, requests that the said orders, and each of them, may be-vacated and set aside for the reasons following, to-wit:
1st. Because the said Act number 85 of the Session Laws of 1883, is null and void, the city of Mason being the-county seat of said county of Ingham, and the said Legislature had no power to remove the same to ihe city of Lansing, such power being only in the Board of Supervisors-of said county, in pursuance of section 8, of article 10 of the Constitution of this State.
2d. Because, by the Constitution of this State, (section 4-of article 10,) the sheriff and county clerk are required to-hold their offices at the county seat, which is and has been at the city of Mason for many years, and not at the city of Lansing; and the statates of this State also require the-sheriff and clerk to hold their offices at the county seat.
3d. Because the said Act No. 85 has not conferred upon the said circuit judge any authority to make any order requiring the sheriff and clerk to remove their offices to the city of Lansing, or to attend courts at any other place than the county seat of said county.
,4th. Because the said Legislature has no authority to require the holding of circuit courts in organized counties at any other place than at the county seat; that the said county of Ingham has a court-house and jail at Mason, and the-said sheriff and clerk both hold their offices there, as they have always done, and great inconvenience and confusion would arise if they attempt to remove their offices, papers and records away from the said county seat.
And your petitioner will ever pray, etc.
JOHN W. WhAI/LON.”
Which said petition was duly considered by said circuit judge, and on the 26th day of September was denied. And thereupon said relator filed his petition in this Court for a mandamus requiring said circuit judge to vacate and set aside said last-named order, for the following reasons l
2. Because said Act and the above-mentioned order upon your petitioner are in violation of section four of article ten of the Constitution of this State, by which your petitioner is required to keep his said office at the coimty seat of said county, which is, and for many years has been, at the city of Mason, and not at said city of Lansing. And because, also, your petitioner is required bv the General Statutes of this State to hold and keep his said office at the county seat.
3. Because the Legislature were without power, and could not lawfully require the terms of said circuit court to be held at any place in said county other than the county seat therein.
4. Because said Act of the Legislature does not confer upon said circuit judge any power or right to require your petitioner to attend upon the session of said court at the city of Lansing, or to remove his said office or any part
•thereof, or the books, papers, records or flies belonging thereto or kept therein to said city of Lansing, or away from said county seat.
5. Because the removal of such records, books, papers and files, in obedience to said order, would be contrary to the rights of your petitioner in the premises, as well as the public and individual persons interested in such records, books, papers and files, and would be attended with great inconvenience, confusion and hazard.”
To this petition the respondent demurs.
It is urged in behalf of the relator that the Act under consideration does not, by its provisions, require or direct the clerk or sheriff to be present or attend the sessions of said circuit court to be held at Lansing. If the Legislature had the power to require any of the terms of the circuit court to be held at Lansing, sections 5620 and 6002 of the Compiled Laws sufficiently specify the duties of these officers; but, independently of these sections, we think it
It is also claimed by relator that the Legislature has no power to change the regularly appointed terms of the court. The number of terms of the circuit court and the time of holding the same have always been discretionary with the Legislature, provided there shall be at least two in every county, and in counties of ten thousand inhabitants, -or over, at least four terms held in each year, as required by the Constitution. Article 6 § 11; 2 Comp. L. §§ 4939, 4979; People v. Northrup 50 Barb. 147 ; also in 37 N. Y. 203 ; Bouldin v. Ewart 63 Mo. 330; People v. Moneghan 1 Park. Crim Rep. 570; Northrup v. People 4 Abb. Pr. (N. S.) 227. Under our statute the Legislature has conferred the power upon, the circuit judge to fix the time for holding the several terms. 2 Comp. L. p. 1508, sec. 3, § 4939. In doing this, however, it has not divested itself of the power to change the times fixed by the circuit judge. Ex parte Charles Shean 25 Ohio St. 440. There is no limitation on the power of the Legislature in this regard, except as hereinbefore referred to. The Act in question does not change the number of terms fixed by the cii’cuit judge before its passage, neither is it sought thereby to change the time appointed for holding the same, but to change the place in the county at which two of the terms shall be held.
The important question raised by the demurrer to the relator’s petition is the constitutionality of the Act authorizing the change'of the place at which two of the terms are to be held, from Mason to Lansing. The relator claims such change is in violation of art. 10, sec. 8 of the Constitution, which reads as follows:
“No county seat once established shall be removed until the place to which it is proposed to be removed shall be designated by two-thirds of the board of supervisors of the county, and a majority of the electors voting thereon*509 Bhall have voted in favor of the proposed location, in such manner, as shall be prescribed by law.”
Counsel for relator maintain that “county seat,” as used in this section of the Constitution, means the same as “seat of justice;” that the terms are synonymous; that the holding of courts at the county seat must be taken for granted as being the chief object' for which a county seat was established; and that when a county seat is established it draws to it, ex necessitate rei, the holding of courts-there; and they make reference to the origin of counties in our political and judicial system, and their organization, and the action of the Legislature, territorial and State, in, locating and establishing places for holding courts of record within State jurisdiction, to support their views.
A careful examination, however, shows that such action has not been sufficiently uniform to aid very much in solving the question presented. Under the Act of Congress organizing the Northwest Territory, for the purposes of government the entire territory consisted of one district. The laws were made by the governor and three judges, subject to the disapproval of Congress. These three judges constituted the Supreme Court. The laws were to have force in all parts of the district, and the governor was authorized, for the execution of process, civil and criminal, to» make proper division of the district, and to lay out those-parts, where the Indian title had become extinct, into townships and counties. 1 Comp. L., pp. 26, 27. No time or place seems to have been fixed or designated at which the courts were to be held. The courts were, however, invested with common-law jurisdiction. Ord. 1787, paragraph 4. Just what course was pursued by the Governor and Judges upon this subject, under this ordinance, within the territory included within this State, does not very clearly appear.
The territorial government of Michigan was organized in 1805, and the legislative power continued in the Governor and Judges of the territory until 1824. During this-period many counties were established, and their bounda-
On the organization of this court the territory was divided into three districts, and a district court was established in each. The number of terms to be held, and time of holding same, were fixed in the Act of organization. No particular place was mentioned at which the terms of the court were to be held, that being left entirely with the marshal of the territory. 1 Terr. L. 17, 18. The clerk of each of these courts was appointed by the judges thereof, id. 10, 18; 2 Terr. L. 60.
The county court was established in 1815, and under the territorial jurisdiction and until the territory contained more than one county, it was required to be held at Detroit. 1 TeiT. L. 184. The Governor appointed the clerk of this court. 1 Terr. L. 716 § 9.
The circuit courts were organized under our territorial existence in 1825. 2 Terr. L. 265. Under the act creating the same they were required to be held in certain counties named in the act, and in certain places specifically named at the court-houses in said counties, and the clerks of the county courts were required to perform the duties of the office of clerks of such circuit courts.
In 1833 the circuit court of the territory was reorganized. One was established in each organized county. The clerks of the several counties were charged with the duties of the clerk of said court, and the county court was abolished. 3 Terr. L. 1022.
Previous to the adoption of the Constitution of 1835 the places of holding courts were almost invariably termed seats of justice. 1 Terr. L. 323, 321, 325, 328, 329, .330. In but = few instances do we find the term “county seat ” used in our territorial enactments in connection with holding the circuit court. We find it used in several in•stances after the office of supervisor was created for the ■several townships, and a place for their meetings was to be provided for and certain offices located there. 2 Terr. L. •317, 325 ; 3 Terr. L. 972.
The district or circuit court was the first court required to be held in the several counties, and the places of holding .the same were, in several instances, changed.
I think the various acts of the Governors and Judges, and of the Legislative Council, under our territorial system, pretty clearly indicate that the place of holding the circuit court — or what is termed in .those acts the “ seat of justice” — and the county seat — did not necessarily mean the same thing. None of the county officers were required to have their offices at the county seat, until 1832. 3 Terr. L. 972. The clerk of the county was not charged with •the duties of clerk of the circuit court until 1830. It was the clerk of the county whose office was required to be held at the county seat. Id. 972: 2 Terr. L. 759.
The county seat has always been the place designated for ■doing the county business; the place at which the public buildings were to be erected; the place where the probate and county courts were to be held, and the offices of the ■county clerk, county treasurer, and register of deeds were to be located; and the board of supervisors were to hold ■their several sessions there. Laws 1827, p. 379; 2 Terr. L. 270, 625 ; 3 Terr. L. 972 and 1010; Kev. St. 1838, p. 35.
The circuit court has general common-law jurisdiction,
There has never been any express constitutional provision upon the subject in anywise limiting the power of the Legislature to establish or change the place for holding the circuit court when once located.
We now come to the constitutional provisions and the State legislation had thereunder. In the Constitution of 1835 there is no provision requiring any court or officer to-have his office at the county seat or at the seat of justice. In fact, neither of these terms are to be found in that instrument, and it is silent upon the subject as to when the circuit court shall hold its sessions, or who shall designate the place of holding the same. See articles 6 and 7.
After the adoption of this Constitution the State was divided into four judicial circuits. The counties composing each, and the number of terms, and the time for holding the same in each, was by statute specifically designated. Lev. St. 1838, pp. 381, 382, 383. Each county was required to provide a suitable court-house, and it was also provided by statute: “ If, by reason of war, pestilence or other calamity, it shall be deemed unsafe or inexpedient to hold any court at the time and place appointed therefor, whether it be a stated term or a session by adjournment, the justices or judges of the court, or any one of them, may appoint another place within the same county, and any other time for holding same.” Also, by another section of the same statute, it is provided whenever the court-house
In the Revision of the statutes in 1838 the court-house was erected for the use of the county, (id. p. 35 § 16,) and there was no general provision requiring the circuit court to be held at'the county seat, and there never was any such requirement in either of our State Constitutions, or in any general enactment of the Legislature.
The Revised Statutes of 1846 p. 377, required the county court to be held at the county seat, and the circuit court was required to be held at the court-house, if there was one in the county, and if not the sheriff and county clerk were required to designate the place in the county where it should be held, (Rev. St. 1846 p. 353 § 6,) and the only provision we find, in Constitution or laws, requiring the court-house to be located at the county seat, was enacted more than 25 years after the adoption of our present Constitution. See Pub. Acts 1877 p. 50.
The whole subject was in the power of the Legislature previous to the adoption of the Constitution in 1835. The Legislature was not deprived of that power by that instrument.
Previous to the adoption of our present Constitution the Legislature had in some cases designated the seat of justice as the place of holding the circuit court; in .others the county seat; in others at some place away from the county seat. In some instances it authorized the marshal to designate the place; and in others the .Governor or commissioners located the place. I regard these facts as very significant upon the question as presented by the relator. Had the people of our State regarded the permanent location of the place of holding the circuit court essential to the establishment of the county seat, I can hardly think they would have failed to have incorporated it in the original act, ©r at least in some general legislative enactment.
As already shown, under o,ur territorial existence, and under the Constitution of 1835, the Legislature determined the places of holding the circuit court in the several counties, and an examination of the legislation upon this subject, after the adoption of the present Constitution, I think shows satisfactorily the intention to continue the power over this question, where it has always been exercised. See Sess. L. 1855 p. 12; id. pp. 48, 422; Sess. Laws 1851 p. 150; Sess. Laws 1857 p. 162; id. p.438; Sess. Laws 1859 p.4; Sess. Laws 1863 p. 297.
The legislation complained of in this petition is not new in this country. In several of the sister states similar action has been taken, arid the courts required to be held in several different places in the county, and it has been held the power, of the Legislature to make such changes was properly exercised. Trimble v. State 2 Iowa (Greene) 404; Zee County v. Deming 3 Iowa (Greene) 101; Bouldin v. Ewart 63 Mo. 330; Herndon v. Hcmhms 65 Mo. 265; Ex parte Shean 25 Ohio St. 440.
The silence of the Constitution as to where the circuit court shall be Leld, and the action of the Legislature since its adoption upon this subject, if not sufficient to settle the question conclusively in favor of the power of the Legislature, is, I think, certainly sufficient to raise a reasonable doubt as to the unconstitutionality of the act in question,
It is not pretended in this case that the Constitution, in ■express words, forbids the legislation in question, but by necessary implication does so; that it was intended, when .the Constitution was made, to limit the power of the Legislature as ■ claimed; that such is the spirit of the provision in the section relied on.
“ ‘ When the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the legislature, we cannot declare a limitation under the notion of having discovered something in the spirit of the constitution which is not even mentioned in the instrument,’ ” “nor are the courts at liberty to declare an .act void, because in their opinion it is opposed to a spirit supposed to pervade the constitution, but not expressed in words.” “ £It is difficult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written constitution give that authority.’ ” Cooley Const. Lim. 169, 171,172,182, and cases cited.
This Court can only arrest the execution of a statute when it conflicts with the Constitution; and, after as careful an examination as I have been able to give to the1 question presented, I am compelled to say the relator has failed to point out in the Constitution the restriction claimed upon the legislative power to pass the act in question, and I think his petition should be denied, without costs. I will also add, I concur in what is said by Mr. Justice Campbell, that this county of Ingham is by the Constitution itself
Concurrence Opinion
The Legislature at its. last session made provision whereby the circuit judge in whose circuit the county of Ingham lies, was required to designate two of his four terms in each year to be held at Lansing, the seat of government of the State, in said county, and respondent accordingly made an order for holding a term there on Monday, October 8th. The relator asked this court for a mandamus to compel the respondent to rescind that order, which, after consultation, we refused, the judges reserving further time to reduce their views to writing. Having concurred in that action of the Court, I therefore proceed to express such views as have occurred to me, concurring, however, with my brother Sherwood in his opinion.
It is not insisted that there is any provision of the State Constitution which prohibits the holding of circuit courts away from county seats directly, but the prohibition is supposed to rest in certain provisions requiring the county clerk, who is expressly made clerk of such courts, to keep' his office at the county seat, as the sheriff, treasurer, register of deeds and judge of probate are required to keep theirs in the same place. This claim is made in connection with a further one, that such a change of terms amounts,as far as it goes, to a partial removal of the county seat to T,arising without the action of the supervisors and voters of the county, which must first be had in favor of it. It is insisted the clerk and sheriff cannot be taken away from their offices, and that the court itself is an inseparable incident to the county seat.
We are not called on to consider any special theories of
"We may, therefore, consider the questions as they were considered on the argument, and determine as well as we can how far relator is right in his claims.
In my opinion there is no difficulty whatever arising out of the location of the clerk’s and sheriff’s offices. The Constitution, in express language, as originally enacted and until recently amended, made the clerk of the county, clerk •of the Supreme Court, whenever it was held in the county, and it left the places of holding that court to be determined by the Legislature. Terms of the Supreme Court have been held at Lansing for over twenty-five years, and no in-convenience has come from it. There never has been any difficulty in having a clerk appear by deputy in the courts, .and if, as has frequently happened, two courts and the .board of supervisors or other county bodies have met simultaneously, neither of them has been compelled to give way to enable the others to act. Neither is there any difficulty .about his office files. The law never required him to have . his office either in or near the court-room, and our present legislation indicates a pui’pose to have the county offices built more solidly and safely than court-houses are usually, .and expressly discriminates between the buildings. Pub. Acts 1877, p. 50. There is still less force in the argument .as applied to the sheriff, for his duties are almost entirely •outside of his office, and call him to all parts of the county.
The only question that requires attention is that relating to the supposed fixed location of circuit courts as ancient and inseparable adjuncts to county seats, which by their name are said to be seats of justice. And it is claimed that
This argument is quite as forcible from the same ancient common-law analogies in favor of the seat of government within the same county. Our Constitution calls Lansing the “ seat of government,” and by the practice and theory of England and most other commonwealths, all departments of the government, of which the judicial department is co-ordinate in importance with the rest, are usually represented at its central seat. There are very strong reasons of general convenience in favor of having a tribunal of original jurisdiction at that point. It has been uniformly held in this State that /the circuit courts are in no sense county agencies or instrumentalities. There are very few cases in which the county in its own right is even interested in litigation. On the other hand, the State has required special legislation to enable it to resort to this very circuit court not only as a forum of litigation, but also to review some action by State officers of an administrative and not judicial character; It has never been supposed that the Legislature was bound to put the sessions of the Ing-ham circuit court at Lansing, but we are somewhat at a loss to see why the implications in favor of permitting it are not as strong as those in favor of the county seat, if the grounds urged are valid at all.
The courts at Westminster, sitting in bank, had original jurisdiction, and were entirely independent of county considerations in their localization. And yet when it became necessary to summon juries from the proper venue, the courts did not seek the county, but the juries were brought up to the court, and its position at Westminster was considered as essential to the general theory of justice. The great charter itself protected this fixed position of the great courts. Their original jurisdiction was like that of our circuits.
To hold that the sitting of courts there is as necessary an incident, and their removal a destruction of its vital existence, must involve the recognition and perpetuation of what depends on inference. And relator has undertaken to establish this inferential necessity. And this is entirely, based on what is claimed to be its incorporation into the fabric of our inherited and continued institutions.
It is not beyond the power of the people, in making constitutions, to reject what is not essential to republican government. It can hardly be claimed that the system of counties, however old and valuable, might not be replaced entirely, or essentially modified. An American county does not much resemble an English county; and a Michi-' gan county differs in many things from counties elsewhere. And it strikes one forcibly, in reading our own- Constitution, that when it requires several things to be done in
It is true that we have long had courts meeting, at county seats, and that our laws have generally required it in terms. But the fact of such legislation removes much of the force of the argument derived from usage. That which rests on law can be abrogated by law, and can hardly be treated as a recognition of perpetual obligation. But in looking over the history of our institutions it will appear that while the county has from great antiquity been respected as an important factor and locality in judicial matters, the superior sanctity of one place over another in the county is not so obvious. When the county first appears as the seat of justice, the county court was the court of general original jurisdiction, and therefore the most important court to the people. But that county court was purely a county institution, in which the county freeholders were judges of law and fact, and the sheriff a mere presiding officer. Com. Dig. “ County” (C 2.) That court had a local habitation in the county in most cases, but there is much reason to believe it was the episcopal city, and not any mere county locality which fixed it.
It is claimed, and probably with truth, that when the king’s judges executed their commissions in the county there was still a shire-town generally resorted to for judicial purposes. But there seems to be no foundation for the claim that this was ever deemed essential. The English respect for places having old associations would naturally lead to some uniformity, and the existence of commodious buildings would also be attractive. But, while the general usage
We can hardly be justified in finding any constitutional claim to immunity for county seats on English usage so varied and uncertain as this. It is certain that in some large counties, as in Tort, the Three Ridings were frequently, as they are now, distinct judicial seats, and other •counties had different court towns, either fixed or varied. There are many American counties with more than one seat of justice. But our own history is no more settled on this matter than that of some other places. During the period after the Revolution, when Michigan was still held by Great Britain, the country west of Lower Canada was divided into districts for judicial purposes, as is well known, and Detroit was the place of holding court in the district of Hesse, afterwards the Western District. During the same period counties were also laid out, and Detroit was in one of those counties. But at no time were the counties put to any judicial use. They were election and military divisions, but it is not known that at that time- they had any other purpose, and their existence has been somewhat obscure. After Michigan was made a separate territory, it was again divided into districts, one-eontaining Detroit, one Michilimackinae, and others different parts of the territory. Courts had beeif held by the British authorities reg
It has also been usual for the Legislature to make provision not only for temporary seats of justice away from the-county seat, but to allow changes in case of supposed necessity to be determined, not by the executive or judiciary, but by the ministerial officers of the court. This was fully illustrated on the argument.
. If the usage has been, as it seems to have been, so largely open to variation, the only conclusion seems to be that, while it is deserving of great respect and ought not to be slighted, it cannot properly be regarded as having been deemed beyond legislative interference, or as essentially a, part of the local existence of the county seat. It is not, therefore, so sacred a heritage as to be entitled to any im-. plied protection under the Constitution.
I do not think the law invalid.