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Vol. II.)

McBride v. COMMON Council of Grand Rapids.

[No. 12.

poration had already contracted debts or incurred liabilities exceeding one half of its capital stock then actually paid in and unimpaired, and of its other property and assets ; and we are of the opinion that the debts were such debts as the stockholders could assess themselves to pay, under the provisions of chapter 136 of the General Statutes. The exceptions must be overruled, and there must be

Judgment on the verdict.


[OCTOBER, 1875.]




Writs of injunction, certiorari, and habeas corpus, and informations in the nature of quo

warranto, are necessary to the ordinary jurisdiction of circuit courts; but the jurisdiction given to such courts by article 6, section 8, of the Michigan Constitution, does not authorize them to issue such writs, and especially writs of mandamus, except for

the purposes of the jurisdiction that is conferred in general terms upon them. The history and nature of the writ of mandamus examined and expounded.

The facts are sufficiently stated in the opinion.

COOLEY, J., delivered the opinion of the court. This case comes be, fore us on writ of error to the circuit court for the county of Kent. The proceeding in the court below was an 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 court, comes from the Constitution. By section 8 of article 6 of that instrument, it is provided that " The circuit court 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 court 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 Vol. II.)


(No. 12.

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 court, 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 court 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 adopted 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 an 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 Vol. II.)


[No. 12.

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. Laws, $ 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 grant of jurisdiction in all matters civil and criminal is enlarged by the mention of these writs as process the circuit court 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. 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, 2 Wm. Black. 352 ; 3 Burrow, 1266. 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. 4, 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, Stra. 536; Same Case in error, 2 Bro. Par. Cas. 554. The writ of error was given by stat. 6 & 7 Vict. c. 67; 3 Broom & Hadley, 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 a 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 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 resolve an appeal, — to a public officer to perform a specified duty,

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Vol. II.) McBride v. Common COUNCIL OF GRAND RAPIDs.

(No. 12. 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 issue 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. 575, 576. All the authorities speak of the writ as discretionary, and both Mr. Selwyn in his Nisi Prius (7th 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 in this proceeding. See also High on Extraordinary Remedies, $ 536, and cases cited.

The clause in the Constitution giving this jurisdiction to the circuit courts must be construed in connection with the preceding section, art. 6, § 3, which gives to this court a general superintending control over all inferior courts. How is this superintending control to be exercised in cases of mandamus, if the circuit courts possess the general authority ? The Constitution gives the authority to the circuit courts, and neither makes provision for a review, nor enjoins it upon the legislature to do so. If it had enjoined legislation in the premises, the injunction, from the nature of the case, could not have been compulsory. Thus the intent of the Constitution that this court should have a general superintending control of inferior courts would, in this regard, be counteracted and controlled by an intent that the circuit court should possess this general authority with no method of review ; a conflict of purpose not to be lightly imputed in the case of an instrument presumably drawn with care, as a Constitution is supposed to be.

It is to be borne in mind also that the jurisdiction claimed for the circuit courts would be one coördinate with that of this court, and from its very nature might be exercised by the circuit courts while this court had the very same subject matter under consideration. The proceeding in one court could not be pleaded in abatement or in bar to that in the other, in such discretionary matters; and nothing but the refusal of a judge to exercise his authority over the writ could preclude most unseemly as well as vexatious proceedings in some cases, if parties should see fit to resort to them. These are circumstances entitled to no little weight when we are seeking the meaning of a somewhat blind provision of the Constitution as this must be conceded to be.

There is another consideration which, in my mind, has considerable importance. The principal occasions for the issue of the writ are to enforce some public or private right, by the action of one of the circuit courts, or of a state officer. The circuit courts could not of course issue this writ to each other ; consequently all such cases must be conceded to be beyond the reach of this provision. But so far as the state officers are concerned, if authority to issue the writ to them is given, it is conferred, not upon the circuit courts generally, but upon a single circuit court; because their offices are within a single circuit. Thus the authority, as it applies to this most important class of cases, is not a general authority, but an authority that by force of circumstances is special, and gives to one circuit judge a large authority in executive and administrative matters which no other judge can exercise. Is it probable that this was intended? And to Vol. II.)


(No. 12.

go further, is it probable that the convention ever intended that the executive heads of departments should be subject to control in their duties by the circuit courts? I cannot bring my mind to that conclusion.

It has always been a principle in this country, that the several departments of the government should, as much as possible, be protected against interference, except so far as was necessary to make each a peaceful and salutary check upon the others. But whenever one is given any control over another, it has always been thought proper and respectful that such control should come from the highest authority, and not from any other. A power to remove a judge, for instance, would not be conferred upon a head of a department, but it would be lodged with the governor, as the chief executive, or with the legislature. The same would be true in the case of such executive officers as may be controlled in their duties by judicial process ; unless the court of last resort is overburdened with business, as the supreme court certainly was not when our Constitution was framed, it is hardly to be supposed that a system would be devised under which the heads of departments, in the performance of duties, often of the very highest importance, and demanding promptness and expedition, should be subject to the discretionary interference of two courts, with all the annoyances, vexations, and delays that must be certain in many cases to result, especially as one was not a court of last resort, and its decision denying the writ would bind no one, but might be disregarded by the parties, and a new proceeding instituted for the same purpose in the highest court. It would be thought more respectful to those officers, and at the same time less vexatious and less likely to prove detrimental to the public service, if all such matters were to go at once to the court of last resort. The legislature has acted upon an idea like this in the legislation regarding proceedings in the nature of a quo warranto ; for while it recognizes in the circuit courts a general jurisdiction in the case of informations, it expressly excepts from their authority the cases of informations against the state officers. Comp. L. § 7101.

These considerations lead me to the conclusion that the Constitution does not give to the circuit courts jurisdiction of the enumerated writs except for the purposes of the jurisdiction, which in general terms is conferred, and that the writ of mandamus has a very limited application within that jurisdiction, not extending to the present case. The conclusion is that the circuit court was right in denying the writ.

It has been deemed desirable to give an opinion on the jurisdictional question, because, although the circuit courts have not, so far as I know, been in the practice of issuing the writ of mandamus, yet with the confident assertion in some quarters that they may do so, the question is certain to keep coming up until it is decided. It was once before brought to our attention by a refusal of a circuit judge to issue the writ, but as it was not necessary to decide it then, the question was passed without notice.

The proceedings in this court should be dismissed with costs.
GRAVES, C. J., dissented.

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