People ex rel. Bingham v. Brighton

• Decision Date: 10 January 1870
• Citation: 20 Mich. 57
• Court: Michigan Supreme Court
• Parties: The People ex rel. Ira P. Bingham v. The Village of Brighton

20 Mich. 57

The People ex rel. Ira P. Bingham v. The Village of Brighton

Supreme Court of Michigan

January 10, 1870

Heard January 7, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Certiorari: To Herman C. Hause, Esq., a justice of the Peace for the County of Livingston, to review the proceedings for the opening of Hamburg street in the village of Brighton.

The President and Trustees of the village of Brighton, a corporation created by an act of the Legislature of the State of Michigan, and made subject to Chapter No. 72 of the Complied Laws, proceeding under section 27 of said chapter (Comp. L., § 2124) to lay out a street to be known as Hamburg street, directed the Clerk of said corporation, as provided by the act, to issue a venire for a jury to determine the necessity for such street, and the compensation to be allowed to the owners of lands to be taken for that purpose. The Clerk holding also the office of Justice of the Peace, made the venire returnable before himself as such Justice. The venire commanded the officer to summon "twelve disinterested freeholders residing without the limits of the village of Brighton." The return to the venire was in these words: "I certify that by virtue of the within precept, I have personally summoned each of the several persons below named, to appear at the time and place within mentioned." Following the signature of the constable are the names of twelve persons.

On the return day named in the venire,--June 10th, 1869,--the relator, Ira P. Bingham, appeared at the place appointed for the assembling of the jury, and upon his affidavit that the Justice was a material witness for him, moved that the proceedings be transferred to some other Justice; which motion the Justice declined to entertain. The relator also objected to the jury being sworn by the Justice before whom the venire was returnable, on the ground that he was the Clerk of the corporation, by whose order the proceedings had been instituted; which objection the Justice declined to entertain.

The jury then proceeded to view the premises, and having returned to the office of the Justice, the further proceedings he states in his return to the writ of certiorari, as follows:

"Thereupon the counsel aforesaid for the said President and Trustees of the village of Brighton offered and read in evidence to said jury, without objection, certain records of the votes resolutions, orders and proceedings of the President and Trustees of the village of Brighton relative to the laying out and establishing of a public street in the said village, designated therein as Hamburg street, over the lands and on the line described in said venire facias. But which record, as I kept no minutes, and took no copies thereof, I, as such Justice of the Peace, am not able to certify and return, otherwise than by stating their purport and effect as aforesaid. The same being records kept by and in the control of the Clerk of said village, and over which I, as such Justice of the Peace, have no control. The said Ira P. Bingham, by his counsel aforesaid, then produced as a witness before said jury, one John W. Power, and offered to prove by him certain records of the township of Brighton, which they claimed tended to show that the laying out and establishing of said street, designated as Hamburgh street, in the village of Brighton, by the President and Trustees of said village was unnecessary, to which offered proof, the President and Trustees aforesaid, by their counsel, objected to as being incompetent, immaterial, irrelevant, and not pertaining to the subject of inquiry before the jury, which objection was sustained by the jury who refused to receive said evidence. Ira. P. Bingham and Henry Soule were then each severally sworn as witnesses by the foreman of said jury, and testified, each of them, as to the quantity of land claimed by each of them and embraced in the premises described in said venire facias, and the said Ira P. Bingham was examined by his counsel as to the value of such parts thereof as he claimed. Alanson P. Dickinson was then sworn as a witness at the request of the said counsel for said Ira P. Bingham, who then offered to prove by said witness his opinion as to the value of the whole premises described in said venire facias, and embraced in said Hamburgh street, to which offered evidence, the President and Trustees aforesaid by their said counsel objected to as being incompetent, immaterial, irrelevant and not pertinent to the subject of inquiry before said jury, which objection the said jury sustained and refused to receive said offered evidence; and thereupon no further evidence being offered, the said jury having heard the proofs and allegations of the parties, as aforesaid, and the arguments of counsel on either side, retired to consider of their verdict to be given, and after being absent sometime returned and delivered to me, the said Justice of the Peace, their verdict and assessment in writing duly signed by them and each of them, which verdict and assessment is hereunto annexed, marked exhibit "C," and is herewith returned. And I do further certify and return, that upon the return of said verdict and assessment as aforesaid by the said jury to me, I, the said Justice of the Peace did enter the said verdict and assessment at length upon my docket, and did enter judgment thereupon in manner and form following, to wit: and upon the return of the verdict and assessment of the jury aforesaid, I, the said Justice do hereby render judgment therefor, and that the verdict and assessment aforesaid be, and the same is hereby confirmed."

The verdict affirmed the necessity of taking the lands as proposed, and assessed the damages of the relator at ninety-three dollars.

A certiorari to this Court having been allowed, July 12th, 1869, and the return of the Justice filed, a rule was entered requiring him to make further return in the matter, and that he give precisely the day and date of his judgment of confirmation of the verdict of the jury in said proceedings. To which the Justice made "further return, that the judgment of confirmation of the verdict of the jury in said order mentioned was made and entered on a piece of paper (in substance the same as heretofore returned) and laid in my docket for safe keeping until I could consult some one, as I had no form to make it by. I made the same on the day and at the time that I entered the proceedings in my docket, to wit: on or about the tenth day of June, A. D. 1869, being the day or the next day after I received the said verdict of the jury above referred to, but that the judgment referred to was not written on my docket in form as heretofore returned, until several days afterwards, to wit: on or about the 21st day of July, A. D. 1869, it was entered, in form and substance, the same as I had drafted it and left it in my docket on the day that I made the entry of the finding of the jury. The said entry of the judgment on the docket was written on the same day and copied from the paper above referred to, after the service on me of the writ of certiorari in the matter referred to in said order, to wit: on or about the 21st day of July last, all of which is respectfully certified to and returned this 15th day of September, 1869."

The cause having been noticed for hearing in this Court, the respondents move to quash the certiorari; which motion, and the merits of the cause are argued together.

Proceedings quashed.

H. H. Harmon, on the motion to quash.

The defendants move to quash the writ upon two grounds:

First. That it was improvidently and improperly issued. Second. That it is improperly directed.

We submit that it was improvidently and improperly issued: Because,

I. The proceedings sought to be reviewed are mere corporate acts, not judicial in character, done in the exercise of a power conferred by statute, and not subject to that mode of review. People v. Mayor, &c., of New York, 2 Hill 10; In matter of Mount Morris Square, 2 Hill 14; Mayor of Albany, 23 Wend. 283; Harlow v. Pike, 3 Greenleaf 438; 2 Bur. Pr., p. 194, and cases there cited.

II. The relator had an adequate remedy by appeal: Comp., L. § 2124; Matter of Mount Morris Square, 2 Hill 27, and cases there cited; People ex rel., Woodward v. Covert, 1 Hill 674; Wood v. Randall, 5 Hill 264; Storm v. Odell, 2 Wend. 287; Comstock v. Porter, 5 Wend. 98; Parsons, C. J., in Savage v. Gulliver; 4 Mass. 178; People v. Farwell, 4 Mich. 566; Farwell v. Taylor, 12 Mich. 113.

Upon the analogy of the statutes, section 4998 Compiled Laws, as amended by session laws 1861, page 466, in the case last cited, and the statutes in this case, section 2124, Compiled Laws. That case is decisive on this point.

It is improperly directed, because,--

1. It seeks to bring into this Court, for review, the acts and proceedings of the President and Trustees of the village of Brighton, and to that end should have been directed to them and not to the Justice. See Goodrich v. Com. of Lima, 1 Mich. 385; Lawton v. Com. of Cambridge, 2 Cains 181.

2. The acts and proceedings of the Justice are ministerial and not judicial, and they together, with those of the jury, are but parts in the execution of a power conferred by statute on the President and Trustees. In matter of Mount Morris Square, 2 Hill 19, 27, Comp. L. § 2124; Revised Statutes, 1838, p. 535, § 7 and Revised Statutes, N. Y., p. 522, §§ 106-7-8.

Upon the analogy of these statutes, Root v. Barns, 1 Mich. 38; Pugsly v. Anderson, 3 Wendell 468; and People v. Supervisors of Queens, 1 Hill 195, are decisive on this point.

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