McBride v. Common Council of Grand Rapids

• Decision Date: 06 October 1875
• Citation: McBride v. Common Council of Grand Rapids, 32 Mich. 360 (Mich. 1875)
• Court: Michigan Supreme Court
• Parties: James E. McBride v. The Common Council of Grand Rapids

32 Mich. 360

James E. McBride v. The Common Council of Grand Rapids

Supreme Court of Michigan

October 6, 1875

Heard April 21, 1875

Error to Kent Circuit.

Proceedings in this court dismissed, with costs.

Hughes O'Brien & Smiley, for plaintiff in error.

W Wisner Taylor and H. E. Thompson, for defendants in error.

Cooley J. Campbell and Marston, JJ., concurred. Graves, Ch. J. concurred.

OPINION

Cooley, J.:

This case comes before us on writ of error to the circuit court for the county of Kent. The proceeding in the court below was on application for a mandamus to compel the respondents to issue a warrant in payment of a salary claimed to be owing to him by the applicant. The circuit court denied the writ, and is understood to have done so on the ground of want of authority.

The authority, if there be any in the circuit courts, comes from the constitution. By Section eight of Article six of that instrument it is provided that "the circuit courts shall have original jurisdiction in all matters, civil and criminal, not excepted in this constitution, and not prohibited by law; and appellate jurisdiction from all inferior courts and tribunals, and a supervisory control of the same. They shall also have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other writs necessary to carry into effect their orders, judgments and decrees, and to give them a general control over inferior courts and tribunals within their respective jurisdictions." If this section gives the power to the circuit courts to award the writ in all cases to which it is applicable, then it might have been awarded in this instance; but if not, then the circuit judge was right in his conclusion.

The argument on one side is, that the section does not undertake or purport to confer the power to issue the enumerated writs generally, but only to issue them when "necessary to carry into effect their orders, judgments and decrees, and to give them a general control over inferior courts and tribunals within their respective jurisdictions." This argument is supported by what seems to be the most obvious meaning of the section; a meaning that should control unless difficulties of construction arise which must lead to the conclusion that the most obvious meaning was not the one intended.

The difficulty which was suggested on the argument is, that some of the enumerated writs are not adapted to carrying into effect the orders, judgments and decrees of the circuit courts, and to giving them control over inferior courts and tribunals; and consequently the restrictive words of the section must be confined in their application to the "other writs" which the circuit courts are empowered to issue. In other words, that the meaning of the section is, that the circuit courts shall have general power to issue the writs of habeas corpus, mandamus, injunction, quo warranto and certiorari, and they shall also have power to issue such other writs as may be necessary to give effect to their general jurisdiction.

This argument renders it necessary to consider how far these several enumerated writs are essential to the jurisdiction which it is conceded is conferred upon the circuit courts by the constitution. That jurisdiction is a general "original jurisdiction in all matters civil and criminal," with a few exceptions, and appellate and supervisory jurisdiction over the inferior courts. It is not contended that the writs of injunction and certiorari are not appropriate and necessary to this general jurisdiction. Indeed, without them, or some process devised by legislation to take their place, this general jurisdiction could not be exercised. But it is said that the writ of quo warranto finds no necessary employment in the exercise of this general jurisdiction and consequently the grant of power to issue it is futile unless it is to have some further office.

The enumeration of the writ of quo warranto in this section is somewhat remarkable, as the writ itself long since passed out of use, and it is not at all probable that the constitutional convention designed to restore it. If, as was undoubtedly the case, an information in the nature of a writ of quo warranto was intended, instead of the writ itself, then it is by no means apparent that it is not a proper process in the exercise of the ordinary jurisdiction of the circuit courts.

This information is adapted for the cases of intrusions and usurpations of office and the unlawful exercise of franchises. It is the ordinary proceeding in which all questions of this nature are disposed of. Public rights and private rights are concluded by the trials which are had upon it; and whether considered as a "civil" or a "criminal" "matter," the cases which are disposed of by means of it are among the most important which are known in the law. Now there is no express exception of these cases from the jurisdiction conferred upon the circuit courts in such general terms, and I can conceive of no sufficient reason for a suggestion that those general terms do not embrace them.

So far as the writ of habeas corpus is concerned, it is undoubtedly necessary in many cases to employ it as an auxiliary writ in both civil and criminal cases. But I think authority over the cases in which this writ is called for is also granted in the general grant of jurisdiction over all matters civil and criminal. It cannot be contended for a moment that those general words do not give jurisdiction over many of the cases which are adjudicated on this writ. All cases, for instance, where civil rights are involved; cases of the custody of children and other dependent persons, and the like. But then the adjudications in other cases are equally final as regards the particular matter determined; made so by the express terms of the statute, which was in force when the constitution was adopted. --Comp. L.,§ 7033. And I think without any enumeration of writs whatever, we should have no difficulty in holding that authority over this writ of habeas corpus was a part of the general jurisdiction of the circuit courts. It has belonged to the jurisdiction of those courts ever since they have been in existence in the state; and we can hardly understand why it was mentioned here at all, unless it was to preclude the legislature from depriving the court of this portion of its former authority. But we may say the same of the mention of the writs of injunction and certiorari. No one will pretend that the general grants of jurisdiction in all matters civil and criminal is enlarged by the mention of these writs as process the circuit courts may issue.

As regards the writ of mandamus the case is quite different. It is a very proper writ to enable the circuit courts to give effect to their appellate and supervisory authority in some cases, and is often made use of for such purposes.--See Layton v. State, 28 N.J.L. 575, 577. But beyond that it has no necessary office in the scope of circuit court powers. The writ is not a judicial, but a prerogative writ.--3 Bl. Com., 110. It was so defined by Lord Mansfield, who spoke of it as a prerogative writ flowing from the king himself, sitting in the Court of King's Bench, superintending the police, and preserving the peace of the country.--The King v. Barker, 1 Wm. Black., 352. Formerly no issue could be made upon the return to it, but if the return made sufficient answer to the application the proceeding must stop there, and the party injured by its falsity was put to his action on the case for damages.--3 Bl. Com., 111. The statute 9 Anne made provision for a traverse in some cases, but it was not until that of 1 Wm. IV, c. 21, that the right to take issue on the return was given generally. Even after that statute a writ of error did not lie to review the final determination of the Court of King's Bench.-- Rex. v. Dean & Chapter of Dublin, Strange, 536; same case in error, 2 Bro. Par. Cas., 554. The writ of error was given by Stat. 6 and 7 Vic., c., 67; 3 Broom & Hadley's Com., 458. The difficulties in the way of a review in the customary method are pointed out in the New Jersey case to which reference has already been made. "The nature and design in the proceeding, in its original institution, precluded the idea of a review by writ of error. It was not in the nature of a civil suit between parties to settle private rights. The award of the mandamus does not purport to adjudge or decide any right. It is rather in the nature of an award of execution than of a judgment. It is the mode of compelling the performance of acknowledged duty, or enforcing an existing right, rather than deciding what that right or duty is. The award is no finality. It concludes nothing. If the writ is denied, the relator cannot have error, and if granted, the award could not be pleaded in bar. Like a procedendo, or a prohibition, it was a simple command to perform a duty. The award of a mandamus to an inferior court, to proceed to judgment, to issue an execution, to restore an appeal,--to a public officer, to perform a specified duty,--is not founded on a judicial determination of any right. There is no judgment, or order in the nature of a judgment, from which error can lie. The use of the writ has been extended to cases which involve more directly private right; but even in such case at common law there was no judicial determination of the right on the proceeding on mandamus."-- Layton v. State, 28 N.J.L. 575, 576. All the authorities speak of the writ as discretionary, and both Mr. Selwyn in his Nisi Prius, (7 Am. Ed., 1078) and Mr. Chitty in his General Practice (Vol. 1,791), assign as a reason why the power to issue it ought to be exercised with great caution, that a writ of error does not lie on this...