Whallon v. Circuit Judge for Ingham County

Shebwood, J. The Legislature at its last session passed an act of which the following is a copy: SeotioN 1. The People of the State of Michigan enact, That two of the regular terms of the circuit court for' the county of Ingham, heretofore appointed, shall be held during the remainder of the year A. D. eighteen hundred and eighty-three, within the city of Lansing, and during each year thereafter, two of the regular terms of said court shall be held within said city: Provided, That the common council of said city, or the citizens thereof, shall furnish and provide, free of expense to said county, a suitable place for holding said court, within- said city, and transacting the business thereof, and also a suitable and sufficient jail, for the incarceration of prisoners during the sittings of said court, both to be inspected and approved by the judge of said court, or the prosecuting attorney of said county, which approval shall be in writing, and shall be filed with the clerk of said county. Seo. 2. Within ten days after this bill shall, take effect and become a law, and said approval be so filed, the circuit judge of the fourth judicial circuit shall designate which of the two regular terms of the circuit court for said county of Ingham, heretofore appointed for the year A. D. eighteen hundred arid eiglity-tliree, shall .be so held within said city, which designation shall be in writing, and shall be immediately thereafter transmitted by him to the clerk of said county. — 505 — Seo. 3. The judge of said circuit shall thereafter, when fixing and appointing times of holding the several terms within his circuit, in such appointment determine and designate which of the regular terms, to be then fixed and appointed, shall be so held within said city of Lansing, for the two years then next ensuing. Approved May 11, 1883. In pursuance of said act, and in accordance with its requirements, the common council of the city of Lansing provided a suitable place for holding said circuit court and transacting the business thereof in the city; also a jail for the purposes stated in the act; and on the 15th dav of September the presiding judge in said circuit, by proper order for the purpose, designated two of the regular terms of said court, one in October and the other in December, 1883, to be held in Barnes’ block in said city. On the 19th of September said circuit judge caused to be made and directed to the relator the following order : “STATE OF MICHIGAN-OIROUIT COURT FOR THE COUNTY OF INGHAM. To John W. Whallon, Ji'sg., Cleric, of said County — Sir: You are hereby required and directed to be and appear at the said circuit court to be held at the city of Lansing, at the rooms of the building heretofore designated by me, which designation is on file in your office, for the purpose of holding such court therein, on the second Monday of October next, at the opening of the court on that day, and to act as clerk thereof during the sitting of the same; and also that you do bring with you, ready to be used in the business of said court, the law and chancery journals thereof, the common rule book and special motion book kept in your office, and all the files and papers in your office, in each and every case that has been, or may be hereafter, placed upon the calendar of said court, for hearing or trial at the next term thereof; to be holden at the city of Lansing on the day aforesaid. G. T. Gridley, Circuit Judge. Dated September 19, 1883.” TJpon the receipt and filing of this order by the relator, he presented to the circuit judge for said county of Ingham the following petition: — 506 — “ To Hon. G. T. Gridley, Oirouit Judge in and for the-Circuit Court for the Coirnty of Ingham: The petition of John W.. Whallon, county clerk for the said county of Ingham, respectfully shows that he has received and filed-in "the said clerk’s office the three several orders made by the Hon. the circuit judge for said circuit court for the? county of Ingham, copies of which are hereto attached. That your petitioner is greatly embarrassed by the said orders, which seem to him in clear violation of the Constitution and laws of this State. Your petitioner, therefore, requests that the said orders, and each of them, may be-vacated and set aside for the reasons following, to-wit: 1st. Because the said Act number 85 of the Session Laws of 1883, is null and void, the city of Mason being the-county seat of said county of Ingham, and the said Legislature had no power to remove the same to ihe city of Lansing, such power being only in the Board of Supervisors-of said county, in pursuance of section 8, of article 10 of the Constitution of this State. 2d. Because, by the Constitution of this State, (section 4-of article 10,) the sheriff and county clerk are required to-hold their offices at the county seat, which is and has been at the city of Mason for many years, and not at the city of Lansing; and the statates of this State also require the-sheriff and clerk to hold their offices at the county seat. 3d. Because the said Act No. 85 has not conferred upon the said circuit judge any authority to make any order requiring the sheriff and clerk to remove their offices to the city of Lansing, or to attend courts at any other place than the county seat of said county. ,4th. Because the said Legislature has no authority to require the holding of circuit courts in organized counties at any other place than at the county seat; that the said county of Ingham has a court-house and jail at Mason, and the-said sheriff and clerk both hold their offices there, as they have always done, and great inconvenience and confusion would arise if they attempt to remove their offices, papers and records away from the said county seat. And your petitioner will ever pray, etc. JOHN W. WhAI/LON.” Which said petition was duly considered by said circuit judge, and on the 26th day of September was denied. And thereupon said relator filed his petition in this Court for a mandamus requiring said circuit judge to vacate and set aside said last-named order, for the following reasons l — 507 — 1. Because the above-mentioned Act of the Legislature is inoperative and void, as being in violation of section eight of article ten of the Constitution of this State; the county seat of said county of Ingham having been established as aforesaid, and now being at said city of Mason, the Legislature could not lawfully provide for the removal of the'same therefrom in whole or in part, except in the manner provided by said section. 2. Because said Act and the above-mentioned order upon your petitioner are in violation of section four of article ten of the Constitution of this State, by which your petitioner is required to keep his said office at the coimty seat of said county, which is, and for many years has been, at the city of Mason, and not at said city of Lansing. And because, also, your petitioner is required bv the General Statutes of this State to hold and keep his said office at the county seat. 3. Because the Legislature were without power, and could not lawfully require the terms of said circuit court to be held at any place in said county other than the county seat therein. 4. Because said Act of the Legislature does not confer upon said circuit judge any power or right to require your petitioner to attend upon the session of said court at the city of Lansing, or to remove his said office or any part •thereof, or the books, papers, records or flies belonging thereto or kept therein to said city of Lansing, or away from said county seat. 5. Because the removal of such records, books, papers and files, in obedience to said order, would be contrary to the rights of your petitioner in the premises, as well as the public and individual persons interested in such records, books, papers and files, and would be attended with great inconvenience, confusion and hazard.” To this petition the respondent demurs. It is urged in behalf of the relator that the Act under consideration does not, by its provisions, require or direct the clerk or sheriff to be present or attend the sessions of said circuit court to be held at Lansing. If the Legislature had the power to require any of the terms of the circuit court to be held at Lansing, sections 5620 and 6002 of the Compiled Laws sufficiently specify the duties of these officers; but, independently of these sections, we think it — 508 — within, the power of the circuit judge to command the services of these officers at the regular terms of the coui’t. They are officers of the court, and subject to its direction in all things necessary to a proper administration of the law during its sessions. It is also claimed by relator that the Legislature has no power to change the regularly appointed terms of the court. The number of terms of the circuit court and the time of holding the same have always been discretionary with the Legislature, provided there shall be at least two in every county, and in counties of ten thousand inhabitants, -or over, at least four terms held in each year, as required by the Constitution. Article 6 § 11; 2 Comp. L. §§ 4939, 4979; People v. Northrup 50 Barb. 147 ; also in 37 N. Y. 203 ; Bouldin v. Ewart 63 Mo. 330; People v. Moneghan 1 Park. Crim Rep. 570; Northrup v. People 4 Abb. Pr. (N. S.) 227. Under our statute the Legislature has conferred the power upon, the circuit judge to fix the time for holding the several terms. 2 Comp. L. p. 1508, sec. 3, § 4939. In doing this, however, it has not divested itself of the power to change the times fixed by the circuit judge. Ex parte Charles Shean 25 Ohio St. 440. There is no limitation on the power of the Legislature in this regard, except as hereinbefore referred to. The Act in question does not change the number of terms fixed by the cii’cuit judge before its passage, neither is it sought thereby to change the time appointed for holding the same, but to change the place in the county at which two of the terms shall be held. The important question raised by the demurrer to the relator’s petition is the constitutionality of the Act authorizing the change'of the place at which two of the terms are to be held, from Mason to Lansing. The relator claims such change is in violation of art. 10, sec. 8 of the Constitution, which reads as follows: “No county seat once established shall be removed until the place to which it is proposed to be removed shall be designated by two-thirds of the board of supervisors of the county, and a majority of the electors voting thereon — 509 — Bhall have voted in favor of the proposed location, in such manner, as shall be prescribed by law.” Counsel for relator maintain that “county seat,” as used in this section of the Constitution, means the same as “seat of justice;” that the terms are synonymous; that the holding of courts at the county seat must be taken for granted as being the chief object' for which a county seat was established; and that when a county seat is established it draws to it, ex necessitate rei, the holding of courts-there; and they make reference to the origin of counties in our political and judicial system, and their organization, and the action of the Legislature, territorial and State, in, locating and establishing places for holding courts of record within State jurisdiction, to support their views. A careful examination, however, shows that such action has not been sufficiently uniform to aid very much in solving the question presented. Under the Act of Congress organizing the Northwest Territory, for the purposes of government the entire territory consisted of one district. The laws were made by the governor and three judges, subject to the disapproval of Congress. These three judges constituted the Supreme Court. The laws were to have force in all parts of the district, and the governor was authorized, for the execution of process, civil and criminal, to» make proper division of the district, and to lay out those-parts, where the Indian title had become extinct, into townships and counties. 1 Comp. L., pp. 26, 27. No time or place seems to have been fixed or designated at which the courts were to be held. The courts were, however, invested with common-law jurisdiction. Ord. 1787, paragraph 4. Just what course was pursued by the Governor and Judges upon this subject, under this ordinance, within the territory included within this State, does not very clearly appear. The territorial government of Michigan was organized in 1805, and the legislative power continued in the Governor and Judges of the territory until 1824. During this-period many counties were established, and their bounda510 ■ríes early defined, and it was customary, when it became necessary to hold courts of record therein, for the Governor and Judges to designate by their own action, or through commissioners appointed for that purpose, (whose action was subject to the governor’s approval,) the seat of justice in such counties. 3 Terr. Laws 840; id. 1379, 899 and 908. The supreme court of the territory was the first court organized, and was required to be held at the seat of government, and its location has always been a subject of legislative discretion. 1 Terr. L. 9. In certain cases a change was permitted, as in case of war, pestilence or other public calamity. 1 Terr. L. 9, 15, 16. On the organization of this court the territory was divided into three districts, and a district court was established in each. The number of terms to be held, and time of holding same, were fixed in the Act of organization. No particular place was mentioned at which the terms of the court were to be held, that being left entirely with the marshal of the territory. 1 Terr. L. 17, 18. The clerk of each of these courts was appointed by the judges thereof, id. 10, 18; 2 Terr. L. 60. The county court was established in 1815, and under the territorial jurisdiction and until the territory contained more than one county, it was required to be held at Detroit. 1 TeiT. L. 184. The Governor appointed the clerk of this court. 1 Terr. L. 716 § 9. The circuit courts were organized under our territorial existence in 1825. 2 Terr. L. 265. Under the act creating the same they were required to be held in certain counties named in the act, and in certain places specifically named at the court-houses in said counties, and the clerks of the county courts were required to perform the duties of the office of clerks of such circuit courts. In 1833 the circuit court of the territory was reorganized. One was established in each organized county. The clerks of the several counties were charged with the duties of the clerk of said court, and the county court was abolished. 3 Terr. L. 1022. — 511 — In none of these enactments is it assumed or taken for ■granted that the circuit court was to he held at the county seat, but the place was especially named or indicated when .the designation thereof was not intrusted to the marshal or Governor. 1 Terr. L. 17; id. 183, 186, 326. Previous to the adoption of the Constitution of 1835 the places of holding courts were almost invariably termed seats of justice. 1 Terr. L. 323, 321, 325, 328, 329, .330. In but = few instances do we find the term “county seat ” used in our territorial enactments in connection with holding the circuit court. We find it used in several in•stances after the office of supervisor was created for the ■several townships, and a place for their meetings was to be provided for and certain offices located there. 2 Terr. L. •317, 325 ; 3 Terr. L. 972. The district or circuit court was the first court required to be held in the several counties, and the places of holding .the same were, in several instances, changed. I think the various acts of the Governors and Judges, and of the Legislative Council, under our territorial system, pretty clearly indicate that the place of holding the circuit court — or what is termed in .those acts the “ seat of justice” — and the county seat — did not necessarily mean the same thing. None of the county officers were required to have their offices at the county seat, until 1832. 3 Terr. L. 972. The clerk of the county was not charged with •the duties of clerk of the circuit court until 1830. It was the clerk of the county whose office was required to be held at the county seat. Id. 972: 2 Terr. L. 759. The county seat has always been the place designated for ■doing the county business; the place at which the public buildings were to be erected; the place where the probate and county courts were to be held, and the offices of the ■county clerk, county treasurer, and register of deeds were to be located; and the board of supervisors were to hold ■their several sessions there. Laws 1827, p. 379; 2 Terr. L. 270, 625 ; 3 Terr. L. 972 and 1010; Kev. St. 1838, p. 35. The circuit court has general common-law jurisdiction, — 512 — and has always been a State court, held by judges paid by the State, and is in no sense a loc&I court. Its judges may interchangeably perform the duties of the office 'in any part of the State. For the convenience of the people its terms are required to be held in the several counties. The place in the county where it is held has always been regarded as the seat of justice for that county. These places have, with an occasional exception, (when the county seat was first established,) been located at the county seat, but do not necessarily constitute a part thereof. The county seat exists without this court, and the location of the seat of justice has always been a subject of legislative discretion. There has never been any express constitutional provision upon the subject in anywise limiting the power of the Legislature to establish or change the place for holding the circuit court when once located. We now come to the constitutional provisions and the State legislation had thereunder. In the Constitution of 1835 there is no provision requiring any court or officer to-have his office at the county seat or at the seat of justice. In fact, neither of these terms are to be found in that instrument, and it is silent upon the subject as to when the circuit court shall hold its sessions, or who shall designate the place of holding the same. See articles 6 and 7. After the adoption of this Constitution the State was divided into four judicial circuits. The counties composing each, and the number of terms, and the time for holding the same in each, was by statute specifically designated. Lev. St. 1838, pp. 381, 382, 383. Each county was required to provide a suitable court-house, and it was also provided by statute: “ If, by reason of war, pestilence or other calamity, it shall be deemed unsafe or inexpedient to hold any court at the time and place appointed therefor, whether it be a stated term or a session by adjournment, the justices or judges of the court, or any one of them, may appoint another place within the same county, and any other time for holding same.” Also, by another section of the same statute, it is provided whenever the court-house — 513 — shall be destroyed, or from any cause shall be unsafe, inconvenient or unfit for the holding of the court, the circuit court may appoint some other convenient building in the vicinity as a temporary place for holding the court. Rev. St. 1838 p. 415 §§ 2 and 4. In the Revision of the statutes in 1838 the court-house was erected for the use of the county, (id. p. 35 § 16,) and there was no general provision requiring the circuit court to be held at'the county seat, and there never was any such requirement in either of our State Constitutions, or in any general enactment of the Legislature. The Revised Statutes of 1846 p. 377, required the county court to be held at the county seat, and the circuit court was required to be held at the court-house, if there was one in the county, and if not the sheriff and county clerk were required to designate the place in the county where it should be held, (Rev. St. 1846 p. 353 § 6,) and the only provision we find, in Constitution or laws, requiring the court-house to be located at the county seat, was enacted more than 25 years after the adoption of our present Constitution. See Pub. Acts 1877 p. 50. The whole subject was in the power of the Legislature previous to the adoption of the Constitution in 1835. The Legislature was not deprived of that power by that instrument. Previous to the adoption of our present Constitution the Legislature had in some cases designated the seat of justice as the place of holding the circuit court; in .others the county seat; in others at some place away from the county seat. In some instances it authorized the marshal to designate the place; and in others the .Governor or commissioners located the place. I regard these facts as very significant upon the question as presented by the relator. Had the people of our State regarded the permanent location of the place of holding the circuit court essential to the establishment of the county seat, I can hardly think they would have failed to have incorporated it in the original act, ©r at least in some general legislative enactment. — 514 — It seems impossible, if tbe Constitutional Convention designed to permanently establish the holding of the circuit court at the county seat beyond the power of legislative removal, that it should not have inserted a clause in the Constitution of 1850 to that effect. Several minor offices were thus located, as we have already seen. The subject of the circuit court, its terms, the election of the circuit judges, changing the limits of the circuit, and the number of circuits, were repeatedly before the Convention, but no place for holding the circuit court was established by the proceedings of the Convention. Neither do we obtain any information from their proceedings as to the views of the Convention on the subject. As already shown, under o,ur territorial existence, and under the Constitution of 1835, the Legislature determined the places of holding the circuit court in the several counties, and an examination of the legislation upon this subject, after the adoption of the present Constitution, I think shows satisfactorily the intention to continue the power over this question, where it has always been exercised. See Sess. L. 1855 p. 12; id. pp. 48, 422; Sess. Laws 1851 p. 150; Sess. Laws 1857 p. 162; id. p.438; Sess. Laws 1859 p.4; Sess. Laws 1863 p. 297. The legislation complained of in this petition is not new in this country. In several of the sister states similar action has been taken, arid the courts required to be held in several different places in the county, and it has been held the power, of the Legislature to make such changes was properly exercised. Trimble v. State 2 Iowa (Greene) 404; Zee County v. Deming 3 Iowa (Greene) 101; Bouldin v. Ewart 63 Mo. 330; Herndon v. Hcmhms 65 Mo. 265; Ex parte Shean 25 Ohio St. 440. The silence of the Constitution as to where the circuit court shall be Leld, and the action of the Legislature since its adoption upon this subject, if not sufficient to settle the question conclusively in favor of the power of the Legislature, is, I think, certainly sufficient to raise a reasonable doubt as to the unconstitutionality of the act in question, — 515 — and in sncb case the rule is well settled that the law must be sustained. Chief Justice Marshall, in stating this rule in Ogden v. Saunders 12 Wheat.. 270 says: “It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favour of its validity, until its violation of the constitution is proved beyond all reasonable doubt.” Scott v. Smart’s Ex’rs 1 Mich. 295; Sears v. Cottrell 5 Mich. 251; Tyler v. People 8 Mich. 320; Cooley’s Const. Lim., and cases cited at page 182. It is not pretended in this case that the Constitution, in ■express words, forbids the legislation in question, but by necessary implication does so; that it was intended, when .the Constitution was made, to limit the power of the Legislature as ■ claimed; that such is the spirit of the provision in the section relied on. “ ‘ When the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the legislature, we cannot declare a limitation under the notion of having discovered something in the spirit of the constitution which is not even mentioned in the instrument,’ ” “nor are the courts at liberty to declare an .act void, because in their opinion it is opposed to a spirit supposed to pervade the constitution, but not expressed in words.” “ £It is difficult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written constitution give that authority.’ ” Cooley Const. Lim. 169, 171,172,182, and cases cited. This Court can only arrest the execution of a statute when it conflicts with the Constitution; and, after as careful an examination as I have been able to give to the1 question presented, I am compelled to say the relator has failed to point out in the Constitution the restriction claimed upon the legislative power to pass the act in question, and I think his petition should be denied, without costs. I will also add, I concur in what is said by Mr. Justice Campbell, that this county of Ingham is by the Constitution itself — 516 — made exceptional. The most important clause wbicb iff supposed by implication to locate the circuit court at the county seat, is that which requires the clerk, who is a constituent part of the court, to keep his office at that place p but the force of this, in the case of Ingham county, is wholly overthrown by another clause, which makes him clerk of the Supreme Court, which is located at Lansing. The other Justices concurred.