People v. Smith

• Decision Date: 19 April 1861
• Citation: 9 Mich. 193
• Court: Michigan Supreme Court
• Parties: The People v. Hezekiah Smith

9 Mich. 193

The People v. Hezekiah Smith

Supreme Court of Michigan

April 19, 1861

Heard April 13, 1861 [Syllabus Material] [Syllabus Material] [Syllabus Material]

On exceptions from the recorder's court of Detroit, where defendant was informed against for resisting the service, by a constable of Detroit, of a warrant issued for his arrest by a justice of the peace of said city, March 22, 1861, on a charge of assault and battery, and made returnable before the police justice. In the recorder's court the prisoner moved to quash the information, on the ground that the constable had no legal right to serve the warrant. This motion was denied, and the case went to trial, "the prisoner," as stated in the bill of exceptions, "with the consent of the court, having waived his right to a trial by jury, under § 33 of chapter 6 of the city charter." The recorder found him guilty.

Case remanded to the recorder's court.

J. J. Speed, for defendant:

1. The powers and duties of constables in Detroit were defined by § 18 of the charter (Laws of 1857, p. 90), which provided, among other things, that "the director of the poor and constables shall have the power and perform the duties of township officers elected under the general laws of the state, subject to the provisions of this act." Further rights, powers, duties and liabilities might be prescribed by the common council: § 20.

The constitution (art. xi) provides for not exceeding four constables in each township, "whose powers and duties shall be prescribed by law." It was evidently the intention of the constitution, that in case of township officers, they should have no common law powers, but where there was in existence a law defining their powers, it should continue until altered or repealed by the legislature; and if they had any common law powers, they should have them no longer, unless it should be so declared by the legislature inasmuch as such powers should be "prescribed by law." If township constables have no common law powers, the constables elected under the charter had none, because they had only the powers of township constables.

By the statute, township constables were, among other things, empowered to serve process directed to them "in any township in their county." They were also declared to be ministerial officers of justices of the peace: Comp. L., §§ 574, 575, 576.

The statute under which the warrant was issued under which defendant was sought to be arrested, does not specify the particular officers by whom this process shall be served. It must be directed to some one authorized by law to serve it. Township constables, sheriffs, and in some cases coroners, are authorized to serve warrants by virtue of provisions in the same statute which authorizes their issue. Though the statute does not say to whom the warrant shall be directed, the conclusion is irresistible that township constables and sheriffs are the only persons to whom it may be directed, unless some other officer should be empowered to serve it by virtue of his office. City constables were so empowered by section 18 above quoted, but in amending this section, March 12, 1861, all allusion to constables was omitted in the section as amended. The statute conferring powers upon city constables being thus repealed, it must be held that the legislature intended those powers should no longer be exercised. At least, the legislature making certain provisions relative to the constables which included and gave even greater power than they had at common law, the legislature impliedly repealed the common law, having exhausted the subject: 10 Pick. 37; 12 Mass. 537, 535; 1 Pick. 43, 45; 1 Ashm. 179; 3 Binn. 595; 8 Port. 434; 14 Mo. 147; 6 N. H., 59. By a repeal of these provisions they took away all the power that had been conferred, and left the officers without any power, either statutory or common law: 3 Cush. 150.

2. The right to a trial by jury could not be waived: Cancemi's Case, 18 N. Y., 128; 8 Mich. 110

D. E. Harbaugh, Prosecuting Attorney for Wayne county, for the people.

G. V. N. Lothrop, on the same side:

The office of constable is a very ancient one. And at the common law he was a conservator of the peace, and a ministerial officer of justices, coroners, etc. And this office is probably found wherever the common law has gone in the United States. And his duties and functions remain substantially what they were at common law.

In Michigan, the office has certainly existed from an early period. Under the territorial and state organization he has been a conservator of the peace, and the ministerial officer of justices.

The question now arises, whether the constables in this city have power to execute process. It is not denied that the office legally exists, or that it is legally filled. But it is insisted that they have no power, because the last clause of section 18 of chapter 4 of the revised charter was repealed last winter. Is this so?

So far as townships are concerned, the office is a constitutional one. In this city the office is statutory: Rev. Charter, chap. 2, § 1.

By the Compiled Laws, p. 241, constables are made the ministerial officers of justices, and are authorized to serve any process lawfully directed to them, in any township in the county.

It may be said that this relates only to town constables. I doubt whether it does, exclusively so. If it has that strict construction, can a town constable serve a process in his county except in "townships?" Can a Springwells constable serve a process in the city of Detroit?

Waiving this, how does the case stand otherwise?

Let us see what duties and powers are expressly conferred on constables by existing statutes.

I. Civil duties.

1. Justices' courts of civil jurisdiction, both in town and city, exist under a common constitutional and statutory authority: Const., art. vi; Comp. Laws, §§ 3653 and 3670. Justices' writs of summons run to "any constable of the county" (§ 3665); so of civil warrants (§ 3673); and of civil attachments (§ 3678); and of writs of replevin (§ 3696); and subpoenas and attachments for witnesses (§§ 3744, 3746); so making jury lists and serving venires (§§ 3757, 3759); so keeping charge of jury (3772); so of executions (§ 3790, et seq.); and see further provisions (§§ 3824 to 3831).

These leave no doubt that a constable is the ministerial officer of justices' courts, in the city as well as elsewhere, in civil cases.

II. Duties in criminal cases.

1. All justices may hold court for the trial of minor criminal offenses: Comp. Laws, § 3624.

The next section authorizes the justice to issue his warrant for the arrest of the accused, "requiring the officer to whom it is directed," etc. The statute does not in terms name to what officer it may be directed. But section 3931 authorizes the court to direct "any constable of the county" to make a jury list.

By section 3932 the venire may be directed to any constable of the county. By section 3937 the jury may be put in charge of any constable. And by section 3943 the warrant to execute the sentence may run to any constable of the county. This can leave no doubt but constables are empowered to perform all ministerial duties of a justice's court held for criminal trials.

2. The above examination has shown that constables may act in all cases as ministerial officers of justices sitting for criminal trials.

The police justice of Detroit is merely a justice of the peace, whose jurisdiction is limited to that of justices sitting for criminal trials, and as examining magistrates: Laws of 1850, pp. 464-5, § 2. Warrants of arrest, or executions issued by himself, or issued by a justice of the peace and returnable before him, are governed by the laws applicable to justices of the peace acting in like capacity. See §§ 3 and 6.

3. In proceedings before examining magistrates.

The warrant of arrest may be issued to any constable (Comp. L., § 5979); the order of commitment may be to a constable: § 5986.

The result is, that for all the purposes for which a justice of the peace or the police justice may sit, constables are recognized as their ministerial officers, to whom all their lawful processes may be directed. And of course they may execute all such writs. In other words, they have all the usual rights and powers of such ministerial officers.

In the case before the court, the warrant of arrest was on a charge which could be tried by the police justice. It was issued by a justice of the peace of the city of Detroit, returnable before the police...