Chandler v. Nash

• Decision Date: 15 July 1858
• Court: Michigan Supreme Court
• Parties: Zachariah Chandler and another v. Martin A. Nash and another

5 Mich. 409

Zachariah Chandler and another v. Martin A. Nash and another

Supreme Court of Michigan

July 15, 1858

Heard July 13, 1858 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Certiorari to William B. Wells, a notary public and attorney of the Supreme Court, acting in the place of Circuit Court Commissioner for the county of Ionia.

The proceeding before the notary was an application, on the part of defendants in error, for the dissolution of an attachment issued from the Ionia Circuit Court against their property, at the suit of plaintiffs in error; and was based upon the following petition:

"To William B. Wells, notary public, residing in the county of Ionia: The petition of Martin A. Nash and Hiram T. Barstow, of the town of Ionia, in the county of Ionia, state of Michigan, respectfully showeth: That your petitioners have received notice that a writ of attachment has been issued from the Circuit Court of the county of Ionia, on the application of Zachariah Chandler and Edward Orr, of the city of Detroit, state of Michigan, directed to the sheriff of the county of Ionia, commanding him to attach and safely keep the goods and chattels, moneys and effects, lands and tenements, of your petitioners, as fraudulent debtors (except such articles as are exempt by law from execution), which writ of attachment has been served upon your petitioners. Your petitioners hereby further state and allege, that they have not assigned their property with the intent to defraud their creditors, within the meaning of section second, of title twenty-four, of chapter one hundred and fourteen, of the Revised Statutes of the state of Michigan. Your petitioners, therefore, pray that Zachariah Chandler and Edward Orr, plaintiffs in attachment, may be cited to appear before you, the said notary public, on a day, and at a time and place, in said citation to be mentioned, to show cause why the said attachment should not be dissolved, and the property attached by virtue of it restored to the defendants in attachment. Martin A. Nash, H. T. Barstow."

This petition was duly verified, and was accompanied by affidavit showing that the Circuit Court Commissioner for the county was disqualified from acting in the premises, he being attorney for plaintiffs in the attachment suit.

On the 22d day of June, 1857, the notary public issued to plaintiffs in error a citation, based on such petition, to appear, and "show cause why such attachment should not be dissolved, and the property restored to the defendants in the attachment."

The notary public returns to the certiorari in this case, that, in obedience to such citation, the parties respectively appeared before him by counsel, and proceeded to a hearing of the case, on the 8th day of July, 1857. That, on the part of plaintiffs in error, it was shown that, previous to the issuing of such attachment, the defendant Nash was one of the firm of Barstow & Nash, and that he (the said Nash) had assigned to the other member of said firm all his rights and interest in the property of said firm, Barstow at the same time covenanting to pay all the debts of said firm, and save Nash harmless therefrom; that afterwards, on the 4th day of April, 1857, before the issuing of such attachment, said Barstow made an assignment for the benefit of the creditors of the said firm, of all the goods and chattels, evidences of debt, and property of every name and nature, that had theretofore belonged to the said firm of Barstow & Nash--but at the date of said assignment owned by the said Barstow--to one Larmon B. Townsend; and that afterwards the said writ of attachment was issued against the goods and chattels, lands and tenements, of the said Nash & Barstow. And that it further appeared, that, previous to the said assignment by said Barstow to said Townsend, and previous to the said sale and conveyance from the said Nash to the said Barstow, the said Nash had sold and conveyed certain real estate to one Luro B. Nash; but that there was no evidence presented in the said showing by the said Chandler and Orr, that the said Barstow and Nash had at any time sold, assigned, conveyed, or disposed of any of their joint partnership property, with intent to defraud the creditors of Barstow & Nash.

And from the testimony submitted to said notary, he decided "That the assigning or disposing in any manner by an individual member of a firm of his individual private property not belonging to the firm of which he was a member, would not authorize the issuing of an attachment against the property of the firm, or in the name of the firm, or against the firm of which he happened to be a member." And that "It appearing that there had been no act on the part of the said firm of Barstow & Nash, disposing of property belonging to said firm, with intent to defraud the creditors thereof, on motion of A. F. Bell, attorney for said defendants, it was ordered that the said attachment issued in said cause be dissolved, and that the property attached be restored to the said defendants, Hiram T. Barstow and Martin A. Nash."

Proceedings set aside as void.

Jerome & Swift, and C. I. Walker, for plaintiffs in error:

1. The proceeding is unquestionably special in its character, not according to the course of the common law; and the jurisdiction of the officer must affirmatively and distinctly appear from the record: Wight v. Warner, 1 Doug Mich., 384; Clark v. Holmes, 1 Doug. Mich., 390; Trader v. McKee, 1 Scam. 558; Straughan v. Inge, 5 Ind. 157.

Here it does not appear, from the petition or record, that the property of the applicants had been attached, but the contrary appears; and it is only a defendant whose property has been attached that can apply under the statute: Comp. L., § 4773.

The fact that the record shows no objection taken to jurisdiction does not relieve the difficulty. Consent can not confer jurisdiction as to subject matter: State v. Caroline, 20 Ala. 19; State v. Bonney, 34 Me. 223; Hurd v. Tombes, 7 How. Miss., 229; Leigh v. Mason, 1 Scam. 249.

2. The statute attempting to confer jurisdiction in such cases upon notaries public is unconstitutional. The judicial power given by the constitution is exclusive in its character. The legislature can not organize new courts not therein provided for, or confer judicial power upon officers not therein named. The judicial power is vested in the Supreme Court, in probate and municipal courts, and in justices of the peace: Const., Art. VI, § 1.

The legislature is, also, authorized to provide, by law, for the election of one or more persons in each organized county, with judicial powers not exceeding those of a judge of the Circuit Court at chambers: Ibid., § 16. Courts of conciliation may also be established: Ibid., § 23.

The election of Circuit Court Commissioners is authorized by section 16, but the legislature can not confer judicial powers on notaries public. They are not elected, and the policy of the constitution, as well as its very letter, requires all judicial officers to be elected, unless it be judges of courts of conciliation. See The State v. Judge of 6th District, 9 La. An., 62.

Where the constitution has distributed the judicial power as ours has, the legislature can not confer it upon officers not named or provided for in the constitution: State v. City of Rockford, 14 Ill. 420; Gibson v. Emerson, 2 Eng. 173; Lewis v. Webb, 3 Greenl. 330; 2 Story on Const., §§ 1590, 1592; Martin v. Hunter's Lessee, 1 Wheat. 329.

Bell & Soule, for defendants in error:

When a court declares a law unconstitutional, it, in effect, declares that the sovereign power of the people has so far been abdicated by themselves: People v. Draper, 15 N. Y., 549. Plenary powers in the legislature, for all the purposes of civil government, is the rule, and prohibition to exercise a particular power is an exception. In inquiring, therefore, whether a particular statute is constitutional, it is for those who question its validity to show that it is forbidden. Courts will not declare a law unconstitutional when it is made so by inference or presumption only, or when the question rests in doubt: Fletcher v. Peck, 6 Cranch 87; Ex parte McCollum, 1 Cow. 564.

The legislature is not forbidden by §§ 1 and 16 of art vi of the constitution to vest in notaries public the power to perform the duties of Circuit Court Commissioner when that officer is disqualified to act. Those sections vest the judicial power of the state in the courts therein mentioned, and in justices of the peace; but not in the judges or officers of those courts. The 16th section provides for the election of Circuit Court Commissioners, to be vested with judicial powers not exceeding those of a Circuit Judge at chambers; yet the legislature have conferred upon that officer judicial powers not possessed by a Circuit Judge at chambers--as in cases of forcible entry and detainer, and summary proceedings against tenants, etc., and in issuing warrants for the arrest and examination of offenders in certain cases. When the Circuit Judges act in these cases, they act, not as judges, but as commissioners: Cunningham v. Bucklin, 8 Cow. 184. And if the legislature can confer such powers upon Circuit Judges and commissioners, they may confer them upon notaries also. But the act in question does not give notaries equal or concurrent power with the commissioner or judge, nor, indeed, any general power whatever, peculiar to the notary, or in common with any other officer or court, but simply gives the right to act as commissioner in peculiar instances; and in so doing does not tread on any ground covered by the constitution: Sill v. Village of Corning, 15 N. Y., 300. The constitution expressly creates a Probate Court, and...