Jackson v. People

• Decision Date: 16 November 1860
• Citation: 9 Mich. 111
• Court: Michigan Supreme Court
• Parties: Charles Jackson v. The People

9 Mich. 111

Charles Jackson v. The People

Supreme Court of Michigan

November 16, 1860

Heard July 7, 1860 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Certiorari to the recorder's court of the city of Detroit, where Jackson was convicted on a complaint for obstructing an alley in said city.

In 7 Mich. 432, will be found the report of a trial of Jackson on an information for the obstruction of the same alley. After the decision in that case, the common council of said city passed an ordinance "to prohibit and punish the obstruction of streets and alleys." The first section of this ordinance provided "that no person shall obstruct any street or alley of said city, by placing or maintaining in the same any incumbrance, article or thing which in any manner shall impede, interrupt or impair the use of said street or alley for the passage of teams or pedestrians." The second provided that "no person shall build, place or maintain in any street or alley of said city any fence, building, house, barn, railroad track, shed or construction of any nature." The third fixed the penalty on conviction in the recorder's court of a violation of this ordinance.

Under this ordinance the present proceedings were had against the plaintiff in error, and substantially the same evidence was produced to sustain the complaint as is reported in 7 Mich. The testimony being concluded, the plaintiff in error requested the court to charge the jury:

"If the jury are satisfied from the evidence that the alleged obstructions complained of were in the locus in quo long before the passing of said ordinance, and that the defendant has done no act since that time to maintain or keep them there, he is guilty of no offense, and the jury must acquit him." The court refused so to charge, except with the addition and qualification, that if the jury find the locus in quo to be an alley, the failure to remove the obstruction after the ordinance was passed was an offense for which the complaint in this case would lie.

The plaintiff in error further requested the court to charge the jury that "simply allowing an obstruction of an alley to stand, without any affirmative act to maintain it, does not authorize a prosecution in the name of the people." The court refused so to charge, except with the addition and qualification that if the defendant put them there originally, he is liable for allowing them to remain.

The court also charged the jury, that if there was an alley in the place in question, the complainant had a right to have it freed from obstructions by a public prosecution under the ordinance, no matter whether one man only, or many, were incommoded by the obstruction.

In return to the certiorari, the recorder's court, by its clerk and under its seal, transmitted to this court "the whole of the evidence and proceedings in the said prosecution, mentioned and referred to in the writ" of certiorari.

Judgment reversed.

L. Bishop and D. C. Holbrook, for plaintiff in error:

No public prosecution lies for obstructing the place in question, as it is only a cul-de-sac and not a public way: 7 Mich. 433. It can make no difference that the prosecution is under a city ordinance, as the violation of a city ordinance is a criminal offense: 2 Doug. Mich., 334.

The ordinance was ex post facto, and, therefore, void 1 Bish. Cr. L., §§ 108, 346; 1 Kent 450; 3 Dall. 386; 6 Cranch 138; 1 Blackf. 193; 16 B. Monr., 15; 4 Tex. 470.

But it is said that on the common law writ of certiorari, only the question of jurisdiction will be considered; and that if the recorder's court had jurisdiction of the case, the determination of that court upon all points of law must be final. We are well aware of the general language in the New York cases on this subject. But in these cases the point passed off without discussion or careful consideration. In 25 Wend. 166, Senator Paige reviews the subject more fully. But convictions for penalties formed an exception to the old rule, and in such cases the whole evidence must be returned, that it may be seen whether the court below had authority to convict, as well as jurisdiction to try. The question being whether a party was legally convicted, the whole proceedings and the whole evidence must be set forth in the return: 2 Str. 996; 1 Yeates 471; 4 Rawle 192; 20 Wend. 105. This has been the uniform practice of this state. The following cases have been decided upon the merits, upon a return of the whole evidence and proceedings: 1 Doug. Mich., 48; Ibid., 178; 2 Doug. Mich., 117; Ibid., 120; Ibid., 334; Ibid., 368; Ibid., 372; Ibid., 374; 1 Mich. 17; 2 Mich. 408; 3 Mich. 18; 7 Mich. 472.

A. Russell, for the people:

A common law certiorari brings up for review only the record, or written pleadings, orders or entries in the nature of a record, and not testimony or matter in pais. The writ does not command or authorize the making up and authentication of a record of what passed orally at the trial below, for the sole purpose of the return: Bac. Abr., tit. "Certiorari;" 1 Doug. Mich., 320; 3 Caines 86; 6 Cow. 555, 556; 7 Cow. 108, 157; 17 Wend. 470; 19 Wend. 42; 25 Wend. 312; 20 Wend. 145; 20 Wend. 103; 25 Wend. 168; 2 Hill 9; 2 Hill 398; 35 N. H., 521, and cases cited; 4 Jones Law, 309; 13 Ill. 663; 14 Ill. 381; 18 Ill. 324; 3 Wis. 740; 5 Wis. 191; 1 Tidd Pr., 398; 2 Burr. Pr., 193, 197.

In New York for a series of years, the decisions are unbroken, and New Hampshire, Illinois, Wisconsin and North Carolina courts hold the same doctrine, and follow the New York and English cases.

In Morewood v. Hollister, 2 Selden 315, Pratt J., in his opinion in the S. C., affirms the doctrine, but the court held that the cases in 17, 19 and 20 Wend., were erroneous in deciding that the certiorari given by the N. Y. L. and T. acts did not enlarge the powers of the common law writ.

But this case does not attack the previous decision in respect to that writ: 4 Seld. 569; 3 Barb. 401; 15 Barb. 186; 24 Barb. 521.

It follows, then, that this court can not review the merits upon this writ, but merely the question of jurisdiction; because the merits, i. e., the testimony, or mass of facts from which the fact, always disclosed by the record, as the decision, springs, can be made matter of record only by force of a statute.

And in New Hampshire by statute they now have a bill in all cases of special inquiry: 35 N. H., 521.

There is no difference between civil and criminal cases in respect to the review upon certiorari. But if there was, in 7 Mich. the present case was held not to be a criminal case.

But there is one practical difficulty in this case. The clerk has certified the evidence. How can the clerk of a court of record certify what the evidence was at a trial? The judge, if anybody, must so certify; for in no sense are the judge's minutes matter that the clerk can certify. They are not of record in the court below. A court, as such, by its clerk can not do this. The magistrate must do it as a person.

The return shows jurisdiction of party and subject matter, and that the proceedings were regular. The charter invests the council with power to pass the ordinance. The recorder's court is made the tribunal for the trial of breaches of ordinances. The defendant was served with process, put in a plea, demanded and received a jury. That there was some evidence, appears from the recital of the verdict in the judgment (7 Mich. 486), and this court will certainly not weigh facts: Ibid.

The complaint alleged an offence over which, if the offense charged was true in fact, the recorder's court had jurisdiction; and the jurisdiction can not be made to depend upon the truth or falsity of the facts, or upon the evidence being sufficient or insufficient to establish the corpus delicti brought under investigation. Otherwise the recorder would be liable to an action for imprisoning Jackson: 1 Q. B., 66; Ibid, 620; 1 Man. and G., 257; 1 B. and B., 137; 18 Ark. 380; 8 Q. B., 413.

The ordinance is not ex post facto. It does not make the placing of an obstruction before the ordinance criminal, but the continuing it afterwards. The doctrine here is the same as in nuisances; namely, that the mere continuance is a fresh nuisance: 1 Denio 257, cases cited; 2 Kern. 492; 16 Pick. 175.

Campbell, J. Christiancy, J., Manning, J. Concurred. Martin, Ch. J. concurred in the result.

OPINION

Campbell J.:

The first question which arises is, how far are we at liberty to look into the proceedings returned by the recorder's court, to ascertain whether the recorder erred in any respect within our supervisory control.

It is claimed on behalf of the people that, upon a certiorari at common law, the only thing to be determined is whether the court below had jurisdiction; and that if jurisdiction existed, the discretionary power of the court can not be inquired into. And it is further claimed that the jurisdiction depends upon the subject matter of the complaint. Applying this rule to the case before us, it is insisted that the recorder's court has jurisdiction of all complaints for obstructing alleys, and that this jurisdiction being called into exercise by such a complaint, its proceedings thenceforth are not examinable unless an unauthorized judgment is given beyond the one allowed by law. As the same immunity from review applies to all special tribunals not acting according to the course of the common law, it becomes very important to ascertain how far this doctrine is correct; for if true it certainly gives them an extent of authority over persons and property not possessed by any of the higher courts.

There are certain classes of questions which, by the common understanding from time immemorial, belong to the course of judicial inquiry under...