26 N.W. 694 (Mich. 1886), Prosecuting Attorney v. Judge of Recorder's Court

Citation:26 N.W. 694, 59 Mich. 529
Opinion Judge:[59 Mich. 540] CAMPBELL, C.J.
Attorney:[59 Mich. 532] Geo. F. Robison and F.A. Baker, for relator. [59 Mich. 536] Alfred Russell, James Caplis, and E.F. Conely, for respondent.
Case Date:February 03, 1886
Court:Supreme Court of Michigan

Page 694

26 N.W. 694 (Mich. 1886)

59 Mich. 529




Supreme Court of Michigan

February 3, 1886


Page 695

[59 Mich. 532] Geo. F. Robison and F.A. Baker, for relator.

[59 Mich. 536] Alfred Russell, James Caplis, and E.F. Conely, for respondent.

[59 Mich. 540] CAMPBELL, C.J.

This is an application to compel the judge of the recorder's court to proceed to the trial of certain indictments for bribery, found in the circuit court for the county of Wayne, and quashed by respondent for want of jurisdiction. It is opposed on several grounds, the material of which were--First, that this court cannot proceed on relator's representation, or at all, to review respondent's action in this way; second, that the indictments were found by an unlawful grand jury; third, that the offenses charged are, under the charter of Detroit, only to be presented under the city charter, in the way there pointed out, and with the penalties there prescribed. All other questions are subordinate.

It is a general rule that the attorney general should represent the people in this court; but, while we should require this in most cases, there is no rule of law that we are aware of which would prevent our considering an application by the prosecuting attorney to set a court in motion to proceed in a case which is under the control there of that officer. [59 Mich. 541] When the case is finally disposed of below, the removal of it for review belongs to the attorney general; but where the case is still pending below, and relief is sought here ancillary to it, we think it not improper to hear the prosecuting attorney, reserving the power, if deemed necessary, to call in the attorney general.

Whether mandamus will lie depends, in our opinion, on whether the action of the court below in quashing the indictment is final and beyond review. Under the constitution of this state this court is given general superintending control over all inferior courts, with power to issue all the various classes of original and remedial writs, including writs of error, mandamus, procedendo, etc. The writ of procedendo has been practically superseded for many years by the writ of mandamus, and we are not aware of any example of its use in this state. There are also cases where there may perhaps be a choice of methods of procedure. Under the common law and under our constitution no writ of error or other proceeding lies on behalf of the public to review a judgment of acquittal in a criminal case, as no one can be twice put in jeopardy; but there is no rule of law to prevent the review of proceedings which have not gone to a trial. It is very well settled that a decision quashing an indictment may be reviewed. The only question has been, what is the better form of review? In Regina v. Wilson, 6 Q.B. 620, it was held that certiorari was not the proper writ, and that writ of error was. But the certiorari used in that case was one merely going to the jurisdiction of the quarter sessions to hear a motion to quash; and as the indictment was found there, it was held there might be power to quash, and the judgment, having been rendered over a matter within the jurisdiction, was held more properly removable by writ of error. There is, however, a serious objection to the writ of error for such a purpose under our practice: that it involves delay, and does not lead as readily as a mandamus to a trial on the merits, which public policy requires should not be unduly delayed; and in cases where the refusal of the inferior court [59 Mich. 542] to entertain the case is for some supposed want of jurisdiction, a mandamus has been usually regarded as more appropriate, although the lines are not clearly drawn. In Queen v. Justices of Middlesex, 2 Q.B.Div. 516, the office of a mandamus to...

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