Underwood v. McDuffee

• Decision Date: 14 May 1867
• Citation: 15 Mich. 361
• Court: Michigan Supreme Court
• Parties: George W. Underwood v. David McDuffee

15 Mich. 361

George W. Underwood v. David McDuffee

Supreme Court of Michigan

May 14, 1867

Heard May 3, 1867 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Hillsdale circuit.

This was an action of assumpsit. After issue joined, the cause was referred bye stipulation to a referee, who found for the plaintiff.

A bill of exceptions was signed, and exceptions were taken to the referee's report. Both were overruled by the circuit court and the report was confirmed. The cause was removed to this court by writ of error.

Judgment affirmed, with costs.

Newberry & Pond, for plaintiff in error:

1. The person appointed referee had no authority to act as such until sworn, and not having been sworn, the proceedings before him were without jurisdiction, and hence, the judgment based upon his report is erroneous.

a. By the common law all officers of justice are required to be sworn: 34 Vt. 517, 524.

b. The constitution of this state expressly provides that all officers, executive and judicial, shall, before they enter upon the duties of their respective offices, take and subscribe an oath provided: Const., art. 18, § 11; Comp. Laws, 73.

A referee we submit is an officer within the meaning of this provision, and he is not exempted by any law from taking the oath. When the law requires a person appointed to office to be sworn before entering upon the duties of the office he does not become an officer until sworn: 34 Vt. 517. The proceedings before the referee and his report were, therefore, a nullity, and no judgment should have been entered upon such report: 8 Vt. 396.

2. The act under which the case was referred is unconstitutional, and hence all proceedings under said reference are void.

It is unconstitutional in that it undertakes to create a judicial officer unknown to and unauthorized by the constitution.

a. The constitution vests the entire judicial power in certain courts named, in justices of the peace, and in certain specified officers: Const., art. 3, § 1; Id., art. 6, §§ 1, 2, 16 and 23.

It also designates the judicial officers who shall constitute the courts named; that is, by whom the judicial power vested in the several courts shall be exercised: Const., art. 6, §§ 1, 2, 6, 7, 13, 17, 23 and 27. It limits the number of justices of the peace to four for each township: Art. 6, § 17. It provides for a limited number of officers of a judicial character, not strictly officers of either of the courts, upon whom judicial power may be conferred, and prescribes the nature of such powers: Art. 6, § 16.

It is evident from these provisions, that it was the intention of the framers of the constitution not merely to invest the entire judicial power in certain officers and courts named, and leave the legislature to provide for the exercise of the judicial powers vested in the courts through or by such judicial officers as it might from time to time prescribe, but to designate the officers through or by whom such powers should be exercised: 5 Mich. 409; 14 Ill. 419; 34 Id. 358.

The legislature can not provide that any circuit court may have more than one judge, or for the election or appointment of any person either as an officer or attache of a court existing under the constitution, or otherwise, in addition to those named in the constitution, to exercise any of the judicial powers vested by the constitution in the courts and officers therein named: 5 Mich. 409; 4 Green Iowa, 104.

The act in question does this; a referee appointed under it exercises, in relation to the case in which he is appointed, a portion of the judicial power vested in the court.

It provides for a trial of the cause before a referee, to be conducted in the same manner as a trial by the court. His report may be filed in vacation or in term, and judgment may be entered thereon as if the case had been tried by the court: Laws, 1861, p. 158, §§ 5, 6, 8, 10.

The only answer that will or can be suggested to this position, is that the judicial acts thus performed by the referee have no effect until adopted by, and made the acts of, the court: 5 Minn. 78; 32 Mass. 148. This is not true. Many of the judicial acts the referee performs in the trial of the cause never do or can come before the court for review. The finding of the facts is a judicial act, and such finding is as conclusive as, if not more conclusive than, the verdict of a jury: 14 Mich. 152.

That the reference was by stipulation of the parties does not render the proceedings valid. The parties can not by consent create a court or a judicial officer whose proceedings can be recognized as valid: 3 Green (Iowa), 458; 4 Id. 120.

It is also unconstitutional because the new sections purporting to amend the old are not really amendments, but substitute provisions in no way resembling the former ones: Const., art. 4, §§ 20, 25.

We submit that the judgment should be reversed.

D. L. Pratt, for defendant in error:

1. After stipulating to try the cause before a referee, and after proceeding to the trial of the cause, and after the evidence was all put in on both sides, it was too late for defendant to object to the jurisdiction of the referee.

2. No oath is now required of the referee.

Section 4192 of the Compiled Laws required referees to be sworn. That section was repealed: Laws of 1861, p. 158.

Referees are not judicial officers, and are not required to take the official oath: 1 Burrill's Prac., 335; 1 Johns. 314; 12 Id. 129, 218.

Judicial officers have power to hear, try and determine questions submitted to them: 2 Burr. Law Dic., 108, 2d edition.

Referees have only power to hear, try and report to the court the facts found and the conclusions of law, and if the report is confirmed by the court, it stands as the finding of the court, and judgment is rendered thereon in the same manner as if the action had been tried by the court: Laws of 1861, pp. 159, 160.

If referees are required to take the official oath, why are not arbitrators, auditors, commissioners of estates, and other persons appointed for a temporary purpose?

If those officers are required to take the official oath, then the law requiring them to take any other oath is unconstitutional.

Section one, of article eighteen, of the constitution, says. "And no other oath, declaration or test, shall be required as a qualification for any office or public trust." See §§ 4192, 4198, 5158, 2925 of the Compiled Laws, for the oaths required of referees, auditors, arbitrators and commissioners of estates.

3. The referee did not exercise judicial powers contrary to the constitution. He was not a judicial officer. He had no power "to hear and determine" any question of law or fact: 5 Mich. 417, 419.

Circuit courts had power to refer cases to referees before the present constitution was adopted. By section one, article six, of the constitution, the same judicial powers were vested in circuit courts that they then exercised: 7 Mich. 341.

4. The referee is not required to report the evidence, only the facts found: Laws 1861, p. 159.

C. Kent, on same side:

1. The referee need not be sworn, because not an officer within the meaning of the constitutional provision requiring all officers to take a certain oath. He is a temporary officer of the court for certain purposes, but has no office. There is less reason why he should take the oath than there is that a juryman should do so.

If he be an officer, then his acts are valid as to third parties without the oath.

2. If the referee exercise judicial power at all, the power exercised is no more judicial than that of a jury, a clerk of court in taxing costs, or commissioners on estates.

The referee is part of the circuit court. The judicial power is conferred on the circuit court, including therein the judge and all the usual instruments of the court, including clerk, jury and referees. A referee law confining judicial power, if the present one does, was in existence when our constitution was formed. No fault had been found with it, and it is not supposable that the constitutional convention intended to make such a law constitutional by mere implication.

Only one case directly in point is to be found, and that arose in Minnesota, whose constitution is like ours so far as the subject is concerned. That decision is directly in favor of the views I maintain: 5 Minn. 73.

2. Our constitution does not differ, so far as this question is concerned, from those of two-thirds of the states, and in nearly all of them either referee or arbitration laws as objectionable as ours have long existed. The court will not hold this law unconstitutional on any doubtful grounds.

3. If the referee law be unconstitutional, still the parties in this case are bound by their stipulation. The acts of the referee are good by virtue of the stipulation, if not under the law. The law under which the referee acted became, in substance, a part of the stipulation.

OPINION

Campbell J.:

In this case, the parties in the court below consented to a reference of the matters put in issue by the pleadings to a referee of their own nomination, who heard the case and made his report. Exceptions were taken to it, which were overruled, and judgment was entered on the finding. The cause is now brought before this court on questions chiefly relating to the validity of the reference, and the authority of the referee.

It is first objected that the referee was not sworn. The statute does not require this, but it is...