People ex rel. Shumway v. Bennett

• Decision Date: 08 July 1874
• Citation: 29 Mich. 451
• Court: Michigan Supreme Court
• Parties: The People on the relation of Nathan Shumway and others v. Davis D. Bennett

29 Mich. 451

The People on the relation of Nathan Shumway and others

v.

Davis D. Bennett

Supreme Court of Michigan

July 8, 1874

Heard May 13, 1874

Information in the nature of a quo warranto, to test the right of respondent to exercise the office of president of the village of Fairfield. Judgment of ouster entered.

Judgment of ouster rendered against the respondent, with costs.

Isaac Marston, Attorney General, and C. A. &. S. C. Stacey, for the relators.

Walker & Weaver, for the respondent.

OPINION

Campbell J.

This is a proceeding to inquire by what warrant the respondent claims to exercise the office of president of the village of Fairfield in Lenawee county, Michigan.

The controversy is concerning the legal existence of that village, which was organized in December, 1873, under the village act of 1873.

The proceedings (except in one or two points) appear affirmatively to have followed the forms indicated by the act. Thirty-four petitioners applied to the judge of the circuit court for Lenawee county, November 10, 1873, describing a tract of land in the township of Fairfield, containing one thousand and forty acres, or less than two square miles, and showing the number of inhabitants therein to be three hundred and sixty-two. Upon this showing they prayed that it might be submitted to the legal voters, whether a village to be called Fairfield should be organized.

The judge entered an order for an election to be held in the Masonic Hall in the township of Fairfield (on said territory), on the first day of December, 1873.

Notices were posted up by the county clerk in upwards of ten public places (although not certified to be ten of "the most public places") in the territory, and the election showed sixty-five ballots for, and twenty-six against the corporation.

The judge, upon the return of these facts, declared the result favorable, and ordered the first election of the new corporation to be held December 29, 1873, at which time respondent was elected.

It appears from the facts agreed upon in the case before us, that there were two clusters of houses in the district at its respective ends,--one called Baker's Corners, or Fairfield, containing about four-fifths of the inhabitants, and the other a railway station called Jasper, containing about one-fifth. These settlements cover not far from forty acres. The remaining lands, of about one thousand acres, are farming lands. The inhabitants of Jasper, and most of the farm owners, are opposed to the incorporation. No notice was given of an intention to apply for it, and no one had an opportunity of being heard on the subject. All of the election notices were posted in the Baker's corners settlement, a mile from Jasper.

As the statute provides for no evidence of posting except the clerk's certificate, that must be in full compliance with law. As he did not certify that the places chosen were among the most public places in the district, it is questionable whether the omission is not one of substance. As a matter of fact it is likely that the railway station is a more public place than some, at least, of those certified, and if the facts were open to a hearing, the failure to post any notices in Jasper could hardly be explained away. But the case was not argued upon this point, and the other questions go to the whole merits.

The proceedings are assailed as fatally invalid, and the law is objected to as not conforming to the constitution. The important objections seem to be, that the proceedings are adverse, and wrongfully bring farming lands and separate villages together without consent, that no hearing is had where the propriety of boundaries or of any of the measures proposed can be disputed, and that the authority to carry out the business cannot be lawfully given to the court or judge.

The machinery for organizing villages and similar municipal corporations is not uniform, but is found modified in different States and countries by local usage. There are, however, some generally recognized principles which are never lost sight of. The most important, perhaps, is the fundamental rule, that, while the law may extend great facilities to persons and communities desirous of becoming incorporated, yet a compulsory incorporation can only come from direct legislative action, or the action of such persons or bodies as may by the law of the land be vested with sufficient delegated authority to bind the community. There are few if any acts of State, bearing upon individuals, more important than those which determine their liability to be included in particular municipalities; and the cases are very rare in which they have not been allowed an opportunity of being heard in every step of the proceedings.

It is manifest that one of the first and most vital questions involved is that of boundaries. It may be too plain for dispute that certain lands are so occupied as to require corporate organization for their convenient government. There may be, for example, in any township, a small region densely inhabited with more people than all the rest. Any question on which they unite could be carried by their votes at a township election. But it would be tyrannical to allow them to determine for themselves what property should be made tributary to their local interests, in which the rest of the town had no concern. That question should be decided on its own merits by an authority so constituted as to be presumably impartial, and such a determination, wherever made, belongs to policy rather than law, and is political, and not judicial. Any confusion which has been discovered in the authorities has arisen from the use of the term "judicial" in more than one sense, and in applying it sometimes to all acts involving discretion and judgment, instead of confining it to the "judicial power" which belongs to courts of justice, and relates to controversies on questions of public or private right.

As no one can be compelled against his will to become a member of a private corporation, or subject to its control, the Legislature can prescribe such conditions as they deem most desirable, as the terms on which private corporations may be formed; and can entrust any functions in relation to such incorporation to such persons as they may designate, unless there is some constitutional limitation on the authority which may be so vested. The acceptance of a charter being the voluntary act of the persons incorporated, they can never be legally aggrieved by it.

But it seldom, if ever, happens that all the inhabitants of a precinct desire to accept a new political bond; and while the private will may be lawfully subjected to the public will, it cannot lawfully be bound unless by the action of those who are invested with valid authority of compulsion. And in a constitutional government, there are some restrictions which will prevent the delegation of such authority indefinitely, or to all persons. The common law, in England, and the usages of various States in this country, furnish precedents for determining with more or less precision, under what conditions this compulsion may be exercised.

It is said to have been a settled principle at common law that the king had a prerogative right to grant charters, municipal as well as private. But this was nothing more nor less than a prerogative to confer privileges. It did not involve a power to impose political obligations unless by way of condition. He could not compel the acceptance of any charter.-- City of Paterson v. Society, etc., 4 Zab. 385, citing 1 T. R., 572; Willcock on Mun. Corp., 30.

And as acceptance was necessary to make the king's charter operative, it will be found that the municipal charters which he gave were all given to existing communities, having a recognized and organized existence, and in the habit of acting as one body, through elections or agencies and officers. So far as we can judge from history, they were to all intents and purposes already as complete corporations for all practical purposes, as our simpler municipal bodies, and accustomed to what was practically corporate action, and known as quasi corporations. But even these could get nothing from the royal grant but liberties or franchises. Any coercive or exclusive power, which by the principles of the common law could not be granted by the king's charter, could only be given by act of parliament.--1 Kyd 61.

The royal charters, then, were not imposed upon any one, but were merely offered for acceptance to existing communities, it being reasonably and legally implied that every person whose lot was cast in the community was, by his settlement and continuance there, made a consenting party to what was assented to by the community and suited to its circumstances. The same principle has been applied by decisions in this country, where it has been said judicially that persons who build on streets adjacent to a city, or in such compact form as involves the necessity of an analogous organization, may be fairly regarded as consenting to be incorporated by legislation, where such consent is held to be necessary,--as it seems to be so regarded in some States, which deny or qualify the power of the Legislature to include absolutely or for all purposes, lands not so occupied.-- Morford v. Unger, 8 Iowa 82; Covington v. Southgate, 15 B. Mon. 491; Langworthy v. Dubuque, 13 Iowa 86; Fulton v. Davenport, 17 Iowa 404; Buell v. Ball, 20 Iowa 282.

It may be questioned whether any such difficulty can prevent the exercise of power by the Legislature, whose discretion is very broad, and not usually open to controversy. But such considerations, if not restraining the power, have generally governed the policy of legislation, and have, in all cases of doubt, determined...