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.
Party Name:PROSECUTING ATTORNEY v. JUDGE OF THE RECORDER'S COURT.
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
 
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Page 694

26 N.W. 694 (Mich. 1886)

59 Mich. 529

PROSECUTING ATTORNEY

v.

JUDGE OF THE RECORDER'S COURT.

Supreme Court of Michigan

February 3, 1886

Motion.

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 set an inferior court in motion was recognized as applicable, where it has refused to entertain jurisdiction on some matter preliminary to a hearing on the merits, and would reach just such a case as this. Other cases cited on the argument are also in

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point; and in Attorney General v. Police Justice, 40 Mich. 631, we ourselves issued a mandamus to compel the police justice of Detroit to entertain a complaint. See, also, King v. Mawbey, 6 Term R. 628; Reg. v. Adamson, 1 Q.B.Div. 201. Judgment on a writ of error in such a case would merely vacate the order to quash, and while, no doubt, the recorder's court would in such case proceed, yet the real purpose of this application is to speed the trial, and a mandamus seems more fitting than a writ of error where that duty would be inferred rather than expressed. The duty of an appellate court is to mould its process, if possible, so as to reach the proper end, and we have no doubt a mandamus is better than any other writ in a case like the present, where there has been no action below on the merits.

As the court below quashed the indictments for want of jurisdiction to entertain them, the defect set up in the formation of the grand jury was not the basis of its decision; but as, if tenable, it might properly answer this application, we should perhaps not pass it by entirely. In our opinion, it appears sufficiently that the grand juror actually appearing as William Stoflet was the person really meant to be summoned, and was lawfully sworn. We do not, however, see how this question should have been entertained by the recorder. The indictment was found in another court of constitutional jurisdiction, broader than that of the recorder's court, and not in any respect a court of inferior jurisdiction. The inquiry into the constitution of its grand jury involves a power of supervision which is not and cannot be given to the recorder's court, which must take the indictments[59 Mich. 543] sent to it from the circuit court as valid, if, upon their face,...

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