Hewitt v. Saginaw Circuit Judge

• Citation: 39 N.W. 56,71 Mich. 287
• Court: Supreme Court of Michigan
• Decision Date: 11 July 1888
• Parties: HEWITT v. SAGINAW CIRCUIT JUDGE.

39 N.W. 56

71 Mich. 287

HEWITT v. SAGINAW CIRCUIT JUDGE.

Supreme Court of Michigan

July 11, 1888

On application for mandamus.

Application for mandamus by John H. Hewitt as relator against the circuit judge of Saginaw county.

SHERWOOD, C.J.

The relator lives in the county of Saginaw, and is plaintiff in a cause in the circuit court for that county, and wherein the Flint & Pere Marquette Railroad Company is defendant. The cause came on for trial at the June term, and a jury was summoned for that purpose. The defendant thereupon challenged the array of the panel upon the following grounds, as stated by his counsel: " First, that the persons selected to serve as petit jurors in the year 1887, and from which the jurors for the May term, 1888, of this court, were drawn, in part from the 1st, 2d, 3d, 4th, 5th, 6th, 7th, and 8th wards of the city of East Saginaw, were not selected by the assessor of said city, and the aldermen of each ward thereof, as is required by law, but it says such selection was made by the assessor of said city alone; second, that the lists of persons selected to serve as petit jurors for the May, 1888, term of said court, and filed in the office of the clerk of this court, from all or any of the wards of the city of East Saginaw, were not made out and signed by the assessor of said city and the alderman of said wards, nor by the assessor and a major part of the aldermen but were made out, signed, and returned to the clerk of Saginaw county by the assessor of said city alone third, and, for further cause of such challenge, it says that the list of jurors returned from the various townships and wards in Saginaw county, and on file in the office of the clerk of Saginaw county, in the year 1887, and from which lists the jury impaneled in this cause was drawn shows that 376 names were selected and returned as petit jurors, and 216 names were so selected and returned as grand jurors, making the total number exceed by 192 the number which by law could be returned, and that the list of names so returned to serve as petit jurors exceeds by 176 the number which by law could be returned to serve as such petit jurors; fourth, that the list of persons selected and returned from all the wards of the city of Saginaw, and from which the jurors from said city for the May term, 1888, of said court, were drawn, are all designated as petit jurors, and not one-half petit and one-half grand jurors, as required by law, and so the number of persons so selected as petit jurors from said city is excessive by upwards of 135; fifth, that the lists of persons returned as petit jurors in 1887, and from which jurors for the May term, 1888, of this court, were drawn, from the townships of Brady, Chapin, Fremont, James, Jonesfield, Saginaw, and St. Charles, is largely in excess of the number which by law could be returned from said townships, and from each of said townships; sixth, that in the lists of persons returned to serve as jurors in 1887, and from which the petit jurors for the May term of said court for 1888 were drawn, from the townships of Brady, Fremont, Saginaw, and St. Charles, 78 names are returned, sixty of which are designated as petit jurors, and that the number of persons returned from said townships are largely in excess of that which is allowed by law; seventh, that the number of names returned to the county clerk from the townships and wards of Saginaw county, and from which the jurors for the May, 1888, term of said court, were drawn, had no regard to the population of the respective townships and wards, or to the population of Saginaw county, computed according to the last census of said townships, wards, and counties." These statements of causes of challenge the plaintiff admitted to be true. The circuit judge by his order sustained the challenge, discharged the jury, and continued the cause for trial until the next term of the court. The relator now asks that the circuit judge may be required by a writ of mandamus to vacate and set aside said order. The respondent, in making answer to the order to show cause, admits the facts stated in relator's petition to be true, and insists that he should not be required to set aside the order, for the reason that the statutes relating to securing a jury for the trial of the case have not been complied with by the township and city officers.

The principal questions raised by the record in the case arise under section 7554 and 7556 of Howells' Statutes relating to the duties of officers in returning lists of persons to serve as jurors in the circuit court. By the first section referred to it is provided that "the supervisor and township clerk of each township," and, in cities, "the supervisor or assessors, as the case may be, and alderman of each ward or assessment district, *** make a list of persons to serve as petit and a list to serve as grand jurors for the year ensuing, the number to be based upon the population shown in the last census." By the charter of the city of East Saginaw, which lies in said county, the office of assessor is created, and he is required to make and return lists of persons to serve as jurors. Local Acts 1885, pp. 350, 365. By the provisions of the charter of the city of Saginaw the comptroller is made the assessor of the city, and is required to make out and return the list of jurors for each ensuing year. Local Acts 1887, p. 727. It appears by the return of the circuit judge that the persons selected as petit jurors in 1887, and from which the jurors were drawn at the May term, 1888, in the suit in question, were drawn, in part, from the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth wards in the city of East Saginaw, and were not selected by the assessor of the city, and the alderman of each ward thereof, but the selection was made by the assessor alone; and that the lists of persons selected and returned were not signed by the assessor and alderman, but by the assessor only. This, it is claimed by relator's counsel, is not a compliance with the law, and rendered the action taken by the circuit judge necessary. The selection of the jury, secured to litigants by our constitution, is of first importance to parties, and they have a right to have such jury "constituted in substantial conformity with the law as established; and where a departure has occurred, and the positive provisions enacted to secure and guard 'the right of trial by jury' have been violated or disregarded, there is no warrant in our jurisprudence for treating the deviations as harmless irregularities;" and, when the party to be affected thereby seasonably makes his objections to such deviations, he stands on substantial and valuable rights, and a right to have his challenge prevail. The provisions of the law cannot be set aside, although it may appear to us that neither party has been injured by the transgression. That we never can for a certainty know, and...