People ex rel. Royce v. Goodwin

• Decision Date: 20 April 1871
• Citation: 22 Mich. 496
• Court: Michigan Supreme Court
• Parties: The People ex rel. Eli P. Royce v. Daniel Goodwin

22 Mich. 496

The People ex rel. Eli P. Royce v. Daniel Goodwin

Supreme Court of Michigan

April 20, 1871

Heard April 15, 1871

Information in the nature of a quo warranto. The nature of the case and the facts sufficiently appear in the opinion.

Respondent entitled to final judgment on the demurrer. Respondent entitled to costs against the relator.

Dwight May, attorney-general, and D. D. Hughes, for the relator.

D. B & H. M. Duffield, and G. V. N. Lothrop, for the respondent.

OPINION

Campbell, Ch. J.

This is a proceeding in the nature of a quo warranto, to determine the right of Hon. Daniel Goodwin to exercise the functions of circuit judge of the eleventh judicial circuit. Having pleaded his election, and the determination of the board of state canvassers in his favor, the attorney-general replied by several replications, presenting a number of questions supposed to be material. These are demurred to, except one that offered an issue to the country, on the question whether respondent received the largest number of votes.

The principal question presented is whether the constitution requires a circuit judge to reside in his circuit. The provision relied upon is section twenty-two of article six, which declares that "whenever a judge shall remove beyond the limits of the jurisdiction for which he was elected, or a justice of the peace from the township in which he was elected, or, by a change in the boundaries of such township shall be placed without the same, they shall be deemed to have vacated their respective offices." By section seven of the same article, it is provided that no alteration or increase of circuits shall have the effect to remove a judge from office.

Section twenty-two plainly declares that a judge who resides in the circuit shall, if he removes from it, vacate his office, but it does not in terms require him to reside within it or prevent the election of one who resides elsewhere, and section seven contemplates the possibility of legislative action which may put his residence outside of his circuit. The words of the constitution not expressly requiring residence, it becomes necessary to determine whether such a requirement is to be drawn from the context or from any recognized principles of law or usage.

There are many officers of long standing, in regard to which the necessity of residence arises from the nature of their duties, or from ancient custom or law. Town officers, and the ministerial officers of counties, have this duty laid upon them, and if the constitution were silent upon the subject, nothing but legislative interference, and in some cases, possibly, not even that would suffice to dispense with residence. The constitution says nothing concerning most of these officers, and only provides for a special emergency, as quoted above, concerning justices. Probate judges, who are officers of modern origin, and who have no representative, but only judicial, functions, are included in the prohibition of section twenty-two, and if that implies the necessity of residence, then no further provision would be necessary to compel it. But by section thirteen of article six, it is declared concerning each judge of probate, that he "shall be elected by the electors of the county in which he resides." So by article four, section five, senators and representatives are required to be "qualified electors in the respective counties and districts which they represent. At the common law the electors of any precinct might choose their representatives at large. We have here, then, proof that in such cases as were doubtful it was deemed necessary to declare distinctly that incumbents should be residents. There being no such declaration in regard to circuit judges, we must find the restriction, if it exists, in the necessary incidents of the office, or in some binding usage.

These judges, when the constitution was adopted, performed the same functions which had before devolved, under the old constitution, upon the judges of the Supreme Court, who were elected or appointed at large. The practical identity of the system was explained in the case of The People ex rel. Whipple v. The Auditor-General, 5 Mich. 193. Their duties were performed partly in the circuit courts, and partly in the Supreme Court, which took them away from their circuits. But under section eleven of article six, they could sit in any other circuit when requested, and could be required by law to do so. They were not, therefore, like a probate judge, confined to locality in performing their duties, neither was their jurisdiction, like his, confined to local interests.

When we consider the nature of their functions, their independence of local affairs becomes still more apparent. Judges differ from all other public...