authorizing the city attorney to order the clerk to issue warrants, renders it clear that the section was only intended to apply to prosecutions under the ordinances, or where the city occupies the position of party litigant, and when the city is in that position, its attorney cannot be permitted to control or influence the determination of the questions to be decided: Paul v. Detroit, 32 Mich. 108, 117. But, are the clerk and attorney judicial officers, or conservators of the peace, and therefore proper officials to determine questions of probable cause? Sections 1 and 19 of Art. 6 of the Const. vest the judicial power in the Supreme, circuit and probate courts; in justices of the peace and in such municipal courts of civil and criminal jurisdiction as may be established by the Legislature, in cities, and provides that the judges of said courts, and justices of the peace, shall be conservators of the peace within their respective jurisdictions. An act conferring certain judicial powers on notaries public, was held unconstitutional in Chandler v. Nash, 5 Mich. 409, and upon the same principle, the jurisdiction of circuit court commissioners is limited to such powers as do not exceed those of a circuit judge at Chambers: Const. Art. 6 § 16; Rowe v. Rowe, 28 Mich. 353.

Again, the section of the charter providing a milder punishment, for bribing a member of the common council of the city of Detroit, than that prescribed for bribing other officials, or members of the common councils of other cities, is unconstitutional:

1. Amendments or modifications of the general criminal statutes, are not germane to a city charter, and not within the title of an act to provide a charter for a city.

2. The section, in question, is a suspension of a general law of the State, in the interest or for the benefit of a particular class of individuals, and they in one locality. The effect is the same as though the general bribery statutes [§§ 9241 and 9242 How. Stat.] contained a proviso limiting the punishment for their violation, by a member of the common council of the city of Detroit, to one year's imprisonment in the State prison and a fine of one thousand dollars. Such legislation violates the constitutional provision that no man shall be deprived of life, liberty or property, except by due process of law, or as is frequently expressed "by the law of the land": Cooley's Const Lim., pp. 351, 391; Holden v. James, 11 Mass. 396; Bull v. Conroe, 13 Wis. 233-8; Simonds v. Simonds, 103 Mass. 572; Lewis v. Webb, 3 Greenl. (Maine) 326, 336; Durham v. Lewiston, 4 Ib. 140; Picquet Appel

lant, etc., 5 Pick. 64; Budd v. State, 3 Humph. 483; Wally's Heirs v. Kennedy, 2 Yerg. 554; Officer v. Young, 5 Yerg. 320; Griffin's Ex'or v. Cunningham, 20 Grat. 31; Arnold v. Kelley, 5 W.Va. 446. Again, the offenses charged are within secs. 9241 and 9242 of How. Stat. punishing the bribery of, or acceptance of a bribe, by "any executive, legislative or judicial officer."

These sections have been in force ever since 1838: Rev. Stat. 639, 640, and cover all cases of bribery of persons who occupy positions of public trust and are known as "officers." All officers are either legislative, executive or judicial, because the government is divided into such branches or departments, and persons belonging to one cannot exercise powers properly belonging to another: Art. 3, Const. That these words were intended to include all officers, is shown by How. Stat. §§ 9243 and 9244, which, as originally enacted, [§§ 10 and 11 chap. 6 Rev. Stat. 1838] relate to the bribery of "any master in chancery [now circuit court commissioner, public acts 1875, page 152], auditor, juror, arbitrator, umpire or referee." Now, referees, arbitrators, jurors and auditors, are not officers, nor required to take the constitutional oath: Underwood v. McDuffy, 15 Mich. 361. No one will pretend that an alderman, or a councilman, is not an "officer" in the full legal sense and they are legislative officers: People v. Hurlbut, 24 Mich. 44; Park Com. v. Com. Council, 28 Mich. 228; Atty. Gen. v. Ib., 29 Mich. 108; Atty. Gen. v. Board of Councilmen, 58 Mich. 213. Art. 4 § 38 Const. authorizes the Legislature to confer upon incorporated cities and villages, local powers of a "legislative and administrative character," and though the bribery statutes were passed prior to the adoption of the Constitution of 1850, the authority of the Legislature to confer such power on a city or village was no less, prior to, than after such adoption. Municipalities have always exercised legislative power, and will continue to do so as long as the right of local self-government is retained by the people, and local officers, members of the local legislature, are necessarily legislative officers within the meaning of the statutes punishing bribery.

Alfred Russell, for respondent :

The prosecuting attorney has no standing in this court by virtue of his office. The Attorney General, alone, can invoke the writ, if any one can. No statute or practice has made it the office of this writ to review the final orders of the recorder's court. Mandamus does not lie to direct the recorder

to proceed, because he has proceeded. The people cannot review, in a criminal case, in any form, and if defendants had pleaded not guilty, and after the introduction of evidence the recorder had directed a verdict, on the same grounds urged for quashing the indictments, no review could be had by the people to set aside such verdict. How does the case, as presented, differ in principle? By the general law of 1846, bribery is made a felony justiciable by a grand jury, but by the special law of 1883, which repeals all inconsistent prior acts, this offense, committed by a city official, is made a misdemeanor, justiciable by sworn complaint in the city criminal court, and warrant thereupon directed by the city attor ney, recorder, or recorder's court. This sworn complaint satisfies the constitutional requirement of a showing of probable cause; the clerk is not authorized to issue a warrant without the direction of the city attorney, the judge or the court, and this function is administrative or executive-not judicial. As to practice in U. S. courts: Murray's Lessee v. Hoboken, L. & 1. Co., 18 How. 280; Hurtado v. California, 110 U. S. 516; Ex parte Wilson, 114 U. S. 417; cases cited page 425. The suggestion that the general laws of the State are superseded in a particular locality is destitute of merit. Nobody ever doubted the competency of making laws for a municipality, different from those in other localities, and such has been the custom for a quarter of a century, and this fact of user fixes their constitutionality by showing that conflict with the Constitution could not have been clear. Practice and acquiescence, in such a case, afford an "irresistible" answer: Stuart v. Laird, 1 Cranch. 299.

Edwin F. Conely, for respondent:

(The points of counsel as to the illegal composition of the grand jury are omitted, the court holding that the recorder had no power to inquire into this question.-REPORTER.)

P

The proceedings should have been by complaint in the recorder's court: Detroit City Charter, 1883, p. 24, § 13; Ib., p. 129, § 22. These provisions are said to be unconstitutional. If there is any doubt, the statute should be held valid: Sears v. Cottrell, 5 Mich. 251; People v. Mahaney, 13 Mich. 483; People v. Braman, 30 Mich. 460; Pack v. Barton, 47 Mich. 520; and some express constitutional provision should be pointed out: Cooley's Const. Lim., 5th ed., pp. 197, 198, 200, 201, 203, 205 and cases cited in note; Scott v. Smith's Exr's, 1 Mich. 295; People v. Gallagher,

4 Mich. 244; Tyler v. People, 8 Mich. 319; People v. Mahaney, 13 Mich. 481; Pack v. Barton, 47 Mich. 520. The offense of bribing, or attempting to bribe, a member of the common council of the city of Detroit, is made a misdemeanor by the charter of 1883, and is therefore "an offense under this act," which gives the council power to provide for the imprisonment in house of correction, at hard labor or otherwise, of all persons liable to be imprisoned under this act, or any act relating to the city, or any ordinance of the council: p. 72, § 54. The term, "offending against this act," as distinguished from offending against other laws, or acts, or ordinances, is often used in the charter (citing pages and sections), which further distinguishes by providing, that, "in all prosecutions for crimes, misdemeanors and offenses under the laws of this State, the court is to be governed by the general laws of the State." Charter, p. 133, § 31. And the recorder's court is given exclusive jurisdiction of all cases of "offenses arising under this act, or any ordinance or regulation of the common council," by means of a special proceeding to be commenced by complaint, etc. In considering the matter of the disposition of fines, imposed and collected at the central station, the Supreme Court treats the proceeding as one under the charter of 1857 itself, because the penalties are therein provided; hence the fines should be paid finally to the board of education: Charter 1857, ch. 13, §§ 10, 11, 12; Wayne Co. v. Detroit, 17 Mich. 390; People v. Controller of Detroit, 18 Mich. 445; Mixer v. Supervisors Manistee Co., 26 Mich. 422; Fennell v. Bay City, 36 Mich. 186.

The legislative intent was to make certain acts, "offenses under this act," as distinguished from offenses under the ordinances and general laws of the State, and, as embodied in the legislative action in question, is constitutional and valid. The Legislature has not undertaken to distinguish between individuals guilty of the same criminal conduct, but makes special provision for punishing unlawful acts, in a single city, or creates a special office, and by the creative act provides for punishing misconduct therein. That special provision can be made for punishing unlawful acts, in a single city, ought not to be the subject of argument now: Cooley's Const. Lim., 5th ed., p. 481-2, note 1 (and cases last above cited); William Roberts' case, 51 Mich. 548. The office of member of the common council of the city of Detroit is a special or particular one. There is no such general office throughout the State. City officers are always special, created by special enactments defining their powers,

duties and obligations; or by a special act calling them into existence under some act defining such powers, etc. To say that the Legislature can create such a special office, and yet cannot specially provide for the punishment of misconduct. therein, is absurd. The course of legislation, long continued, is otherwise. (Citing numerous acts.)

Nor is there any suspension of the general law of the State, within the meaning of the decisions, which condemn the enforcement of the law against one and not another.

Bribery statutes were adopted in 1838: R. S. 1838, pp. 639, 640; yet particular provision was made in respect to such executive officers as sheriff, constable and the like: R. S. 1838, p. 642; How. Stat., § 9255. And officers of public institutions are distinguished: How. Stat., §§ 9355, 9356. And the fact that the Legislature has provided, specially, for the cases of members of the common council, is an interpretation that its general acts only include general State officers, and this would harmonize with the letter and spirit of the constitution of 1836: Art. 3, § 1.

"Due process of law," does not mean a law of general operation: Cooley's Const. Lim., 5th ed., p. 434, 81 and 82; and the term is explained in Wimer v. Bunbury, 30 Mich. 201. "Probable cause," is a general term at common law, and has no special signification in the constitution. It is generally used with other language which completes the expression, as "probable cause to believe," or "to suspect," or "reasonable ground of suspicion": Gallaway v. Burr, 32 Mich. 332; Hamilton v Smith, 39 Mich. 222. Probable cause will justify a merely executive officer in making an arrest, without warrant, in cases of felony, though not supported by oath: Drennan v. People, 10 Mich. 169; People v. Wilson, 55 Mich. 506; Bishop on Crim. Pro., vol. 1, § 164. And in cases of legal arrest, without warrant, none need thereafter be issued: Ib., § 179. But when a warrant is necessary, it should be supported by the same "probable cause," but under oath. The constitution does not distinguish between warrants: Art. 6, § 26; and the same "probable cause" is necessary in the cases of justices' warrants and capias ad respondendum, and all other writs of arrest in civil cases, and in proceedings under ordinances where arrest is contemplated, supported by oath. If the charter does not require "probable cause," etc., and by the constitution is thus far invalid, the proceedings providing for ordinance cases must fall with the proceedings under the act; but the same provision was in the charter of 1857: Laws of 1857,