Peninsular R. Co. v. Howard

• Decision Date: 10 January 1870
• Court: Michigan Supreme Court
• Parties: The Peninsular Railway Co. v. George Howard et al

20 Mich. 18

The Peninsular Railway Co. v. George Howard et al

Supreme Court of Michigan

January 10, 1870

Heard January 5, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Appeal from the Probate Court of Cass County.

The Peninsular Railway Company desiring to lay the track of their road across land owned by George Howard and occupied by Benjamin Thompson, lying in the township of Ontwa, in the County of Cass, presented their petition to the Probate Court of Cass County, for the appointment of three Commissioners, under the provisions of § 19 of the "Act to provide for the incorporation of Rail Road Companies," (as amended, Laws of 1859, p. 559), to determine the necessity of taking the land for the use of the rail road, and the compensation to be allowed to the owner.

On the 6th of July, 1868, the day appointed for the hearing before the Probate Court, the respondents--Howard and Thompson--demanded a jury as provided by the statute. In compliance with this demand the court "directed that there be drawn from the petit jury box of the County, twelve names, to be inserted in a venire for a panel of jurors in the premises, and that a venire issue in due form for said jurors, requiring them to attend in person at the Probate Office in Cassopolis in said County on the 22d day of July, A. D. 1868, at 10 o'clock A. M., to make a jury in said behalf." The names of twelve jurors were drawn from the petit jury box and summoned to attend as required by the statute. Of the twelve drawn and summoned, three did not appear as required in the venire; and their places were supplied by three--then summoned by the Sheriff. The jury, thus procured, took and subscribed the oath prescribed by law and proceeded to view the premises and hear the proofs and allegations of the parties:--they affirmed the necessity of taking the land described in the petition, and assessed the damages of the respondent Howard at three hundred dollars, and of the respondent Thompson at one dollar.

The report of the jury having been confirmed by the Probate Court, the respondent Howard claimed an appeal to this Court under the provisions of section 23 (Comp. L. 1967). The appellant sets forth the grounds of his appeal by his affidavit stating that "on the twenty-second day of July, 1868, three of said jurors failed to appear, and by order of the said Judge of Probate, without the knowledge or consent of this deponent, the said Sheriff placed three other names on the said jury, to wit: Joseph Harper, Orren S. Custared and Jordan P. Osborn, one of whom, the said Orren S. Custard, as appears by his own deposition on file, and as he admitted on oath on the trial of the matter aforesaid, is not a freeholder nor the owner of any real estate in the State of Michigan, or elsewhere. Deponent further says that Levi Norton and Lemuel Chapman, were both at the time of being drawn on said jury, stockholders in the said Peninsular Railroad Company, and at the time of rendering their verdict as hereinafter expressed, stock holders and interested in said company, and constituting a component part thereof, as one of the directors of the said company, and its attorney knew, at the time of the drawing, and empaneling and swearing of said jurors, though this deponent had no knowledge whatever of the facts of their interest and of the said Custard not being a freeholder, till after said jury were sworn and met on the line of said Road to locate the same, on the said north east quarter of said section eighteen, when he immediately filed his protest against the said jury proceeding to act in the premises, which the said jury under the order and advice of M. S. Brackett, Esq., Attorney of said Company refused to listen to, but against protest, proceeded to appropriate about six and one-half acres of deponent's land, lying and being a part of the north east quarter of section eighteen aforesaid, then and still owned and possessed by this deponent, and as this deponent alleges contrary to law and against the just rights of this deponent. This deponent further says that he has been notified by the Attorney of the said corporation, M. S. Brackett to appear this the third day of August, before the Honorable the Court of Probate, for the said County of Cass, and show cause why the report and verdict of said jury should not be confirmed; and in compliance with said notice comes and shows the following reasons why the said report and verdict should not be confirmed, viz:

1st. The jury were not a legal jury, for the reason one of them, Orren Custard, was not as required by the statute, a freeholder.

2d. Two of them, to wit: Lemuel Chapman and Levi Norton were stockholders in and constituted a part of said company, and were thereby rendered incompetent to act in the premises.

3d. The property proposed to be taken was sworn by the lowest testimony to be worth from five hundred and fifty to six hundred dollars, and only three hundred were allowed.

4th. The verdict and report is against law and evidence in all respects, and therefore ought not to be confirmed, and further deponent says not."

D. D. Hughes, for the Railway Co.

This was a proceeding to condemn certain lands of the respondent by petition to the Probate Court, under the general railroad law of this State. The petition was presented to the Probate Court of Cass County on the 22d of June, 1868, and is governed by the law of 1859.--Laws of 1859 p. 559.--A jury was drawn and summoned, heard the case and made a report to the Probate Court. The case comes to this Court under the statute.--Comp. L. § 1967. No assignment of errors has been filed in this Court, and the petitioners have no guide to the questions sought to be raised by the respondent, except such as are set forth in the affidavit for appeal.

Both respondents appear by counsel, and it does not appear, that any cause was shown against the granting of prayer of the petition, and the respondents demanded a jury. An order was made, granting the prayer of the petition and complying with the demand for a jury. The jury were regularly sworn, and proceeded to view the premises, and hear the proofs and allegations of the parties, and reduced the testimony to writing. The respondents appeared before the jury at the time of the examination of the premises, and the taking of the proofs, and proceeded to prove, by way of challenge, that two of the jurors, Levi D. Norton and Lamuel Chapman, were stockholders in the Peninsular Railroad Company.

This testimony was properly rejected by the jury. It was not offered to the Court which drew and swore the jury at all, but to the jury itself; and whatever may be said as to the qualifications of the jurors as sought to be proved, it is very clear that the jury could not hear and decide the challenge. The act itself does not point out the method of trying the jury, but the proceeding is in a court of record, possessing full incidental power to execute the jurisdiction conferred.

It is very clear that all questions as to the competency of the jury are to be settled by the Court, as much so as in ordinary cases in the Courts, and the record fails to show that any objection was made to any juror in the presence or hearing of the Court, or that any such objection was made or testimony offered to the Court.

A challenge must be made at the proper time or it is waived.--Eggleston v. Smiley, 17 Johns 133; Milwaukee v. Hale, 1 Doug. 306; Bourke, v. James, 4 Mich. 336; Slight v. Henning, 12 Mich. 371.

The testimony offered to the jury to show that O. S. Custard, a juryman, was not a freeholder, was properly rejected on the same grounds.

Balch, Smiley & Balch, for respondents.

I. The first point made as a cause for setting aside all the proceedings, subsequent to the drawing of the jury, is that they were not a constitutional and legal jury. (See Const. of Mich., Art. 18 § 2.) The necessity for the taking the private property desired, and the compensation to be rendered therefor shall be ascertained by a jury of twelve freeholders. Twelve names were drawn from the petit jury box of Cass County by the Judge of Probate. Three of whom did not appear. Joseph Harper, Orrin S. Custard and Jordan P. Osborn were then summoned as talesmen. Orrin S. Custard, as appears by the testimony taken and returned in the case was not a freeholder. Two of the jury, to wit: Lemuel Chapman and Levi D. Norton, were stockholders and constituted a part of the said Railway company, and were therefore disqualified. They could not be called impartial; they were interested in getting defendant's land and in getting it as cheap as possible. The law requires jurors to be disinterested and impartial. The spirit of the law is well shadowed forth in our statutes for struck or special juries. (Comp. L §§ 4380, 4383.) The jurors should certainly be free from interest in...