People ex rel. Whipple v. Judge of Saginaw Circuit Court

• Decision Date: 08 January 1873
• Citation: 26 Mich. 342
• Court: Michigan Supreme Court
• Parties: The People on the relation of Benjamin Whipple v. The Judge of the Saginaw Circuit Court

26 Mich. 342

The People on the relation of Benjamin Whipple v. The Judge of the Saginaw Circuit Court

Supreme Court of Michigan

January 8, 1873

Submitted on Briefs October 30, 1872.

Application for writ of prohibition.

Writ of prohibition denied, with costs.

Green & Scofield, for relator.

Marston & Hatch, for respondent.

OPINION

Christiancy Ch. J.

This was an application for a writ of prohibition to restrain the judge of the circuit court for the county of Saginaw, from trying, or entertaining jurisdiction of, an action of replevin instituted by the relator against Arthur Hill and Miron Bunnell, in the circuit court for Bay county, in May 1871, and removed to the circuit court for Saginaw county, by an order made by the circuit court commissioner of Bay county, January 11, 1872. The ground upon which the order of removal was made, was that the judge of the circuit court for Bay county, had been employed (before going on to the bench) as counsel in the same matter involved in this suit, and had been consulted by said Whipple in relation to bringing said action.

This fact is not disputed by the relator; but it is insisted by his counsel that the circuit court commissioner had no power to grant the order of removal; because, first, the fact that the circuit judge for Bay county had been consulted and employed as counsel in the subject matter to be litigated, constituted no ground for the removal of the cause, by whomsoever the order might be made; and, second, because if the fact stated constituted a ground for removal, the order could not be made by the circuit court commissioner, but should have been made by the judge of an adjoining circuit.

The relator places his main reliance upon the first ground

The statute under which the power for making the order of transfer is claimed by the respondent and denied by the relator, is the act of February 12, 1855, as amended in 1858: Sess. L. 1855, p. 273; Comp. L. 1857, §§ 3445-3452.

The first section of this act is in these words: "That whenever any civil suit or proceeding shall be pending in any circuit court in this state, either on the law or equity side of said court, in which the judge of said circuit court shall be interested as a party, or as a member of any corporation which is a party to said suit, or has heretofore been consulted or employed as counsel in the subject matter to be litigated in said suit, or in which he would be excluded from sitting as a juror by reason of consanguinity or affinity to any party to said suit; the same may be transferred to some other circuit court in the manner provided by this act."

The second section (as amended in 1858) provides that the application for such transfer may be made to the "circuit court commissioner of the county where said suit is pending, or to the judge of any adjoining circuit, who is not within the disqualifications mentioned in the first section:" Sess. L. 1858, p. 14, § 30. It also provides that the parties to any such suit may, by stipulation in writing, consent to the transfer of such suit or proceeding, without any application to the judge or commissioner; such stipulation to have the same effect as an order for the same purpose. The subsequent sections provide for notice of hearing the application or petition, the hearing of the same, and the filing of the order, and the transfer of the files, records and papers, etc.

But it is insisted by the relator that, unless the judge of the court where the action is pending had been consulted or employed as counsel, etc., before the passage of the act in question, the fact that he has been thus consulted or employed is not made a cause for the transfer of the suit; and the statute does not apply to the case. This argument is based upon the letter of the clause of section one (which I have placed in italics), "or has heretofore been consulted or employed," etc. This language, it is said, necessarily refers to the time of the passage of this act, and, to bring the case within it, the consultation or employment must have taken place prior to the passage of the act; and if we look only to ordinary definition and grammatical construction of the words, this position must be admitted to be well taken.

But the primary object of all interpretation or construction of statutes is, to ascertain the real intention of the legislature; and no specific or artificial rules of interpretation can be of any value, which do not contribute to this end. Legislatures are not grammar schools, and in this country, at least, it is hardly reasonable to expect legislative acts to be drawn with strict grammatical or logical accuracy. It is quite true, that in ascertaining the meaning of a statute provision, we are not at liberty to go entirely outside of the statute and guess at a meaning for which the statute furnishes no support.

We must infer the intention from the language used. By this however, I do not mean that we are to consider the meaning of the particular words only in the abstract, but as applied to the subject matter and general scope and purpose of the whole act. And in making this application, in order to ascertain the real intent, we may often be required to consider the provision in connection with other statutes and the common law. In construing the language of the present statute, it is proper first to...