Goetz v. Black

Decision Date04 January 1932
Docket NumberNo. 127.,127.
Citation240 N.W. 94,256 Mich. 564
PartiesGOETZ et al. v. BLACK.
CourtMichigan Supreme Court


Appeal from Circuit Court, Genesee County; James S. Parker, Judge.

Independent suits by Alfred Goetz and seventeen others against Edward D. Black. Judgments for defendant, and plaintiffs appeal; the eighteen cases being consolidated for the purpose of appeal only.


Argued before the Entire Bench.Patrick H. O'Brien, Walter M. Nelson, and Maurice Sugar, all of Detroit, for appellant.

Brownell & Gault, Charles A. Withey, and George W. Cook, all of Flint, for appellee.


Alfred Goetz and seventeen other plaintiffs have each brought an independent suit against Edward D. Black, defendant, to recover a statutory penalty. For the purpose of appeal only, the eighteen cases have been consolidated and considered as one. Each plaintiff claims that, after being arrested and illegally detained for several days in the Genesee county jail, he caused, on the 10th day of July, 1930, a petition for habeas corpus in legal and proper form to be presented to defendant, one of the circuit judges of Genesee county, and that defendant refused to grant the petition and order the issuance of the writ. The petitions are not before us. They are neither attached to nor set forth in the declarations, nor have they at any time been filed in any court. No suits were ever begun by or on account of the petitions, except the instant ones to collect the penalty. Defendant moved to dismiss on the ground that the petitions were not filed in the office of the clerk of the court, that the application was not made in due form in accordance with the court rules and practice of the court, and that the acts of defendant were judicial and not ministerial. The circuit court entered an order of dismissal.

We shall only discuss the first reason for the dismissal, as it is decisive. It was not necessary for plaintiff to file the petition for the writ of habeas corpus with the court prior to its presentation to the circuit judge, but, whether granted or denied, it became necessary to file it, and thus have a suit properly begun as a condition precedent to any further preceedings in or on account of the suit.

The right to a writ of habeas corpus is fundamental to personal liberty. Its sources in the common law go back to the earliest struggles for freedom, and precede the provision of the Magna Charta that no ‘freeman shall be taken or imprisoned * * * unless by the lawful judgment of his peers, or by the law of the land.’ (1 Comp. Laws 1929, p. 5). This pronouncement, however, was insufficient, for certain abuses arose as set forth in case CCCV, reported in 1 Anderson 297, 123 English Reprints, 482 (1591). It was found that frequently persons lawfully discharged on habeas corpus were recommitted to some secret place; officers were imprisoned and terrified to such a degree that they would no longer serve the writ; and there existed a general disregard of the right of habeas corpus by the Crown. These abuses are recited in the preamble to the statute of 31 Car. II, c. 2 (5 Statutes at Large, p. 458). This act provided that a return must be made to a writ within three days of its service, prescribed heavy penalties for failure to obey the writ, and prohibited the recommitment of persons discharged on habeas corpus except by proper court order. It also extended the authority to grant habeas corpus to issuance of the writ during vacation time, and provided for a penalty of five hundred pounds to be paid by any authorized court or officer who failed to grant the writ required by the act to be assessed. The privilege of habeas corpus was further developed from time to time and established the basic right of freedom from unlawful detention. The earliest colonists brought it to this country as a part of the common law, and it became, and ever since remained, the law of the land. It was incorporated in the Constitution of the United States (article 1, § 9, subd. 2). It became part of the Bill of Rights in article 2 of the ordinance for the government of the Northwest Territory (1 Comp. Laws 1929, p. 97), which subsequently became the law of Michigan Territory, and has existed in every Constitution of the state of Michigan. Article 2, § 11, of the Constitution of 1908, provides that: ‘The privilege of the writ of habeas corpus shall not be suspended unless in case of rebellion or invasion the public safety may require it.’

Also in section 10, art. 7, the circuit courts are expressly empowered to grant writs of habeas corpus. The constitutional provision relative to habeas corpus has been termed ‘a mandate to the judiciary to see that no man be deprived of his liberty without a hearing.’ See Parsons v. Russell, 11 Mich. 113, 129, 134,83 Am. Dec. 728, in which case, as well as in Re Jackson, 15 Mich. 417, the history of the writ is more fully set forth.

In order to insure the issuance of the writ when legally applied for, the Legislature has provided that any judge who shall willfully or corruptly refuse or neglect to consider such application or petition shall be deemed guilty of malfeasance in office (section 15208, C. L. 1929); that such writ be granted without delay, unless it shall appear from the petition itself, or from the documents annexed, that the party applying therefor is, by the provisions of the law, prohibited from prosecuting such writ (section 15211, C. L. 1929); further, that if any court or officer authorized by the law to authorize such writs shall refuse to grant such writ when legally applied for, every member of such court who shall have assented to such refusal, and every such officer, shall severally be liable to the party aggrieved in $1,000 damages (section 15216, C. L. 1929). While a judge may, of his own volition, upon being informed that some one is illegally detained, issue the writ without a petition (section 15215, C. L. 1929), nevertheless when a petition is filed it must be in proper legal form. Section 15210, C. L. 1929, provides in seven subsections what the writ must contain. It must positively state that certain facts and conditions exist; it must negative the existence of others; it must be properly sworn to. If a verified petition sets forth in substance the necessary allegations, as provided by the statute, it becomes the absolute duty of the judge to issue the writ, and, in the event of his refusal, the petitioner has a number of remedies. He may apply to another judge, if there is more than one for the circuit; he can secure relief by applying to this court by appeal, in the nature of certiorari, or by asking for an original writ which would be issued forthwith, or he may seek the redress prescribed by the statutes as hereinbefore referred to. However, in order to seek any of the remedies, except the presentation of the petition to another judge of the same circuit court or the commencement of an original suit in this court, it is necessary that a suit be previously begun. There is only one method of bringing such suit, and that is by filing the petition with the court without any substantial delay after its grant or refusal. Unless a petitioner properly begins the suit, he abandons the proceeding. A writ of habeas corpus proceeding is a suit.

While application for a habeas corpus may be addressed to the circuit court or judges (section 15208, C. L. 1929), the power to issue the writ is vested in the circuit court by article, 7, § 10, of the state Constitution. See, also, section 13941, C. L. 1929. The circuit court is ...

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