Allor v. Board of Auditors of Wayne County
| Decision Date | 11 February 1880 |
| Citation | 4 N.W. 492,43 Mich. 76 |
| Court | Michigan Supreme Court |
| Parties | ALLOR v. THE BOARD OF AUDITORS OF WAYNE COUNTY. |
Constables are, under the constitution and laws of this state, common law peace officers, with their duties in some respects changed and enlarged by statute. A constable of the city of Detroit has power to execute the criminal process of a justice of the peace of such city, for offences committed in the county of Wayne and outside of the city, and is entitled to compensation from the county for such services. His powers are not superceded by those of the police. Sections 13, 35, 36 and 38 of the Police Act of Detroit construed.
Mandamus.
Maybury & Conely, for relator.
C.J. Reilly, for respondent.
Relator who is a constable of the Tenth ward of the city of Detroit presented a bill for services as such for allowance by the board of auditors, which they refused to consider. It is admitted by their answer that the bill is correct, if they have power to audit it. The services performed were in the arrest of parties charged to have committed crimes outside of the city and in Wayne county, partly subject to the trial by a justice and partly beyond his trial powers; and in one case the respondent was arrested on a charge of bastardy, he being in the township of Esorces. The arrests were all made on warrants which were issued by justices whose offices were held in Detroit, and who belonged there. The auditors declined to consider the claim, on the ground that all such warrants should have been served by the police and not by constables. This objection is based on certain provisions of an act entitled "An act to establish a police government for the city of Detroit," approved April 17, 1871. This statute appears to be a re-enactment, with a few alterations of a former act bearing the same title approved January 24, 1855. It is not apparent, but it is not very important why the act of 1871 was passed as an original instead of as an amendatory act.
Possibly difficulty may have arisen under intermediate legislation amending the city charters in 1869. On the fifteenth day of April, 1871, a law had been passed to cure any previous irregularity or defect in the powers of the board. 3 Laws of 1871, p. 186. Whatever may have been the fact, the new law is, so far as has been shown to us, the only one involved in the present controversy, and we need not go behind it.
The sections of the police act supposed to bear upon the claim of relator are sections 13, 35, 36 and 38. These sections are substantially if not verbally identical with previous amendments adopted in 1867, and counsel, regarding the act of 1871 as only amendatory, have cited these former provisions instead of those of 1871. The statute of 1871 has, however, evidently superseded the older statute, and is the only law now in force, except as it may have been amended since, directly or by implication.
Section 13, so far as now involved, contains the following provisions: "The members of the police force of the city of Detroit shall possess all the common law and statutory powers of constables, except for the service of civil process; and any warrant for search or arrest, issued by any magistrate of the state of Michigan, may be executed in any part of said state by any member of said police force, without backing or indorsement from any other magistrate or officer of said state; and for all offences commttted in the county of Wayne, the expenses incurred in serving such warrant shall be certified by the board of police and audited and paid by said county; and in all other cases such expense shall be determined by and paid under the direction of the proper auditing board of the county in which the offences charged in said warrant shall have been committed." **** "The members of said police force shall also serve and execute all process and subpoenas issued in the recorder's court and the police court of said city, and all process and subpoenas in criminal cases issued by justices of the peace in said city"
Section 36 abolished the offices of marshal and deputy marshal, and provided that the duties should be performed by the superintendents of police, or by the captains and sergeants under their directions. This section, like some others, is evidently copied from the law of 1865, and refers to matters which had been before abolished.
Section 38 is open to the same criticism and refers to obsolete matters.
The powers given by section 13 are not exclusive, and have, therefore, no bearing on the present issue. Section 35 is exclusive, as far as it applies at all, and we are required to decide whether this section can be applied to the case before us, and whether, if so applicable, it is so far valid. It did not, as first passed, in 1865, apply to justices, except when holding courts.
It was suggested for the respondents that we have already passed upon the validity of this statute in the case of People v. Mahaney, 13 Mich. 481. There is nothing decided by that case which settles or seriously concerns this controversy. The only question, then, before the court was whether the office of city marshal had been lawfully abolished by the police act. It was decided that the statute was passed in a constitutional manner, so far as this court could lawfully inquire into the course of legislation, and that the substitution of the police officer for the marshal was within the general ________ of the title, and that the office could be lawfully abolished.
The court very carefully abstained from passing upon the validity of other parts of the act. It was distinctly stated that no decision could properly be made upon the validity of particular powers and provisions, until some case should arise calling for a decision. The amendments of 1867 had not then been adopted.
The city marshal of Detroit, as provided for at that time, was not an officer named in the constitution, nor a necessary officer for any purpose. He had not any statutory powers which were not concurrent with those of other known officers. If his office had been abolished, as it might have been, with no one designated in his place, no serious confusion could have arisen. Sheriffs or constables could perform his statutory powers, and the common council could provide as they pleased for such powers as he derived from their grant.
It is unfortunate that other portions of the law have not been sooner brought up for construction. It has been changed in some important particulars since 1865, and amendments have been made to the city charter which cannot fail to create discussion. The provisions before referred to are more or less dependent on the sections concerning the organization and government of the force, which were claimed with much earnestness on the argument to allow the police board and its officers and servants to interfere with the powers of the courts, as well as of the city.
Upon that subject it is for most purposes enough to say that no court in the exercise of its functions can be lawfully subjected to the control or interference of any execution or ministerial authority. or can receive directions for any purpose except from such other courts as are authorized by the constitution to have "superintending control over inferior courts." No court has a right to allow any other interference or to submit to it. And in this same regard it is also very clearly settled by the constitution that judicial power can only be vested in courts and judicial officers, and that all of the judges and judicial officers, without exception, must be elected directly by the people of the state or of their local districts. This makes it necessary to be cautious in extending other powers when a conflict is likely to be created.
The constitution has also provided that no one shall be deprived of liberty without due process of law, and has provided that no warrant shall issue except upon oath or affirmation establishing probable cause. It has been settled for centuries and the doctrine has been recognized here, that except in cases of reasonable belief of treason or felony, or breach of the peace committed in presence of an officer, there is no due process of law without a warrant issued by a court or magistrate upon a proper showing or finding. Dunivan v. People, 10 Mich. 169; ...
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