People ex rel. Robison v. Swift

Campbell, C. J. This is an application to compel the judge of the recorder’s court to proceed to the trial of certain indictments for bribery, found in the circuit court for the county of Wayne, and quashed by respondent for want of jurisdiction. It is opposed on several grounds, the material of which were: 1. That this court cannot proceed on relator’s representation, or at all, to review respondent’s action in this way; 2. That the indictments were found by an unlawful grand .Fiy; 3. That the offenses charged are, under the charter of Detroit, only to be prosecuted under the city charter, in the way there pointed out, and with the penalties there prescribed. All'other questions are subordinate. It is a general rule that the attorney general should represent the people in this Court; but, while we should require this, in most cases, there is no rule of law, that we are aware of, which would prevent our considering an application by the prosecuting attorney to set a court in motion to proceed in a case which is under the control, there, of that officer. — 541 — When the case is finally disposed of below, the removal of it for review belongs to the attorney general; but where the case is still pending below, and relief is sought here ancillary to it, we think it not improper to hear the prosecuting attorney, reserving the power, if deemed necessary, to call in the attorney general. Whether mandamus will lie depends, in our opinion, on whether the action of the court below in quashing the indictments is final and beyond review. Under the constitution of this State this Court is given general superintending control over all inferior courts, with power to issue all the various classes of original and remedial writs, including writs of error, mandamus, procedendo, etc. The writ of procedendo has been practically superseded for many years by the writ of mandamus, and we are not aware of any example of its use in this State. There are also cases where there may, perhaps, be a choice of methods of procedure. Under the common law, and under our constitutions, no writ of error or other proceeding lies, on behalf of the public, to review a judgment of acquittal in a criminal case, as no one can be twice put in jeopardy; but there is no rule of law to prevent the review of proceedings which have not gone to a trial. It is very well settled that a decision quashing, an indictment may be reviewed. The only question has been, what is the better form of review? In Regina v. Wilson, 6 Q. B. 620, it was held that certiorari was not the proper writ, and that writ of error was. But the certiorari used in that case was one merely going to the jurisdiction of the quarter sessions to hear a motion to quash; and as the indictment was found there, it was held there might be power to quash, and the judgment, having been rendered over a matter within the jurisdiction, was held more properly removable by writ of error. There is, however, a serious objection to the writ of error for such a purpose under our practice : that it involves delay, and does not lead as readily as a mandamus to a trial on the merits, which public policy requires should not be unduly delayed ; and in cases where the refusal of the inferior court — 542 — to entertain a case is for some supposed want of jurisdiction, a mandamus has been usually regarded as more appropriate, although the lines are not closely drawn. In Queen v. Justices of Middlesex, 2 Q. B. Div. 516, the office of a mandamus to set an inferior court in motion was recognized as applicable, where it has refused to entertain jurisdiction on some matter preliminary to a hearing on the merits, and would reach just such a case as this. Other cases cited on the argument are also in point; and, in Attorney General v. Police Justice, 40 Mich. 631, we ourselves issued a mandamus to compel the police justice of Detroit to entertain a complaint. See, also, King v. Mawbey, 6 Term. R. 628; Reg. v. Adamson, 1 Q. B. Div. 201. Judgment on a writ of error, in such a case, would merely vacate the order to quash, and while, no doubt, the recorder’s court would in such case proceed, yet the real purpose of this application is to speed the trial, and a mandamus seems more fitting than a writ of error where that duty would be inferred rather than expressed. The duty of an appellate court is to mould its process, if possible, so as to reach the proper end, and we have no doubt a mandamus is better than any other writ in a case like the present, where there has been no action below on the merits. As the court below quashed the indictments for want of jurisdiction to entertain them, the defect set up in the formation of the grand jury was not the basis of its decision; but as, if tenable, it might properly answer this application, we should perhaps not pass it by entirely. In our opinion, it appears sufficiently that the grand juror, actually appearing as William Stoflet, was the person really meant to be summoned, and was lawfully sworn. We do not, however, see how this question should have been entertained by the recorder. The indictment was found in another court of constitutional jurisdiction, broader than that of the recorder’s court, and not in any respect a court of inferior jurisdiction. The inquiry into the constitution of its grand jury involves a power of supervision which is not and cannot be .given to the recorder’s court, which must take the indict — 543 — ments sent to it from the circuit court as valid, if, upon their face, they appear to be valid. It is very questionable whether such an objection could be made by motion and on affidavits at all; but, as the point is not well taken on the facts, we need not consider it further. No objection is pointed out to the sufficiency of any of the indictments if they come within the statutes at all, and it is not usually considered proper to quash indictments on motion of respondents, in eases of any importance, for defects that can be reviewed on error. Archb. 64. We see no reason for doubting their sufficiency, if proper at all. But it is claimed that the general statutes against bribery ■do not cover municipal officers, and that the charter furnishes the only rule of prosecution and punishment, and further, that if the State law ever covered them it has ceased to do so. By sections 9241 and 9242 of How. Stat. provision is made for the punishment of bribery in the ease of “ any executive, legislative or judicial officer.” Succeeding sections reach the cases of circuit court commissioners, auditors, jurors, arbitrators, and referees. The cases of electors is also covered, and expressly applies to all general, special, township, or charter elections. Chapter 325, How. Stat. All of ■these provisions go back to the early stages of state government. More recent statutes apply to the officers of public institutions. Until the charter of Detroit of 1857, unless these statutes reached municipal officers, there was no statute that covered them. If we take the language of some of the text-books, including Blackstone, we might suppose that the common law made no bribery punishable but that of judges. But there is no doubt this was never law. Archb. 580; 2 Bish. Crim. Law, § 85, and notes. In Rex v. Vaughan, 4 Burr. 2494, it was held, after solemn argument, that it was an offense at common law to commit bribery in regard to the procurement of an office granted in England, although to be exercised in a colony; and in aid of this view, Lord Mansfield refers to the case of Rex v. Plympton, 2 Ld. Raym. 1377, — 544 — which was bribery of a corporator voting for the mayor of a corporation. It was evidently the purpose of the revisers of 1838 and 1846 to substitute statutory punishment for the common-law offenses as far as possible. It would have been a very strange rule that the bribery of a voter, in a municipality, should be punished so severely if it was no offense to bribe the municipal authorities. If the terms “executive,, legislative and judicial,” do not reach municipal officers exercising such functions, no very good reason can be found for not confining the words to officers of state, as was claimed by counsel, which would leave county as well as town officers outside of the law. The words apply, in our opinion, just as well to local as to state functionaries, the character of whose duties falls within any of those definitions. Under our system of local self-government, there is no public corporation that has not an organic connection with the State, or which does not require guarding to promote the interest of the whole body politic. Most, if not all of them have duties to perform directly for the State. A construction which would take cities and other public corporations out of the protection of these laws would be a dangerous and not a natural one. The question then arises whether the fact, that, by the charters of 1857 and 1883, special punishments much lighter than those under the general laws are applied to the bribery of city officials, indicates the repeal, to that extent of the general laws, under the well-known rule that the creation of a smaller penalty supersedes the larger one. It is claimed, on behalf of the people, that it is not competent for the Legislature to pass discriminating penal laws which shall make the same offense punishable in different degrees in different places ; and that, as all crimes are punishable under the laws of the land, and not as such by municipal action, so it is contrary to the constitutional rules of right to discriminate. It is not disputed that there may be occasion, in regulating cities, to create new crimes not likely to be dangerous elsewhere; but the contention is that the general laws of the State must have uniform operation. — 545 — There is much force in this position. In the view we take of the charter it is not, however, important. The charter of 1857, which was the first of those long and complicated attempts to cover everything, which have made so much mischief and confusion in our city codes, was manifestly prepared with an idea that it was possible to put cities on a footing like that of counties palatine, where crimes, as well as local disorders, were treated as offenses against the local sovereignty, and not against the State. The intention of its framers, which must be deemed to have been the intention of the Legislature which adopted' their scheme, was evidently not to change the general laws, so far as the State saw fit to enforce them, but to allow the municipality, without the interference of the State, to deal with certain wrongs as local grievances. That this was so will appear in various ways. In the first place, it is not in the power of the recorder’s court to deal with any criminal acts not committed within the city of Detroit; and under both charters the offenses now under consideration, as punishable under the charters, were cognizable in the recorder’s court, which would lead to the anomaly that the same act done outside of the city would not be a charter offense, while if within the city, it would be, and would not be so heinous. This, however, is a minor consideration. By comparing the various provisions of these two charters it will be seen that every offense to which the charter affixed a punishment was made to inure, if a fine or penalty was imposed, to the benefit of the city treasury, and not to the library fund : Charter of 1857, c. 6, §25; Charter of 1883, c. 12, § 25. By the charter of 1857 all prosecutions for offenses arising “ under the laws of this State” were required to be prosecuted by indictment or information under the general laws, and by the prosecuting attorney; while all prosecutions under the charter, or under the city ordinances, were to be commenced by a different form of sworn complaint, and under the supervision of the city attorney. Chapter 6, §§ 5 to 14, 20 to 15. The charter of 1883 makes the same discriminations, but gives to the clerk power to issue — 546 — warrants, which was not clearly, if at all, indicated by the old charter: Charter of 1883, c. 12, §§ 12, 13, 16, 21. A still more important indication is found in both charters, when they provide that, for all violations of the charter to which no express punishment is attached, the common council may provide for punishment by fines, penalties, forfeitures and imprisonment: Charter of 1883, e. 7, § 54; Charter of 1857, o, 5, § 21, subd. 66. Provision is also made that imprisonment shall be in the house of correction, where enforced labor appears to come within the constitutional provisions referring to crimes: Article 18, § 11. Nothing is more elementary than that a crime can only be punished, as such, under the law of the land. But whoever drew up that charter had it in mind that the violation of a State law might be punished criminally, on its own behalf by the city, and such was the construction placed by the city authorities upon the old charter for many years, until the public authorities intervened, to compel the city to pay over all moneys collected for violations of the charter into the library fund, as crimes; and not as local wrongs : Wayne Co. v. Detroit, 17 Mich. 390; People v. Controller, 18 Mich. 445. Those decisions, as well as some others in regard to unlawful arrests, seem to have escaped the notice of the compilers of the charter of 1883, where the old mistakes are perpetuated and aggravated. ¥e are satisfied that these mitigated provisions were not introduced into the charter with any idea of changing State prosecutions or punishments, but under the erroneous notion that they created municipal grievances which no one was interested in but the city. No such proposition is maintainable, and these provisions are invalid for that reason, and for the further reason that the only way provided for enforcing them is in direct violation of the constitution, which makes prosecuting attorneys, whose functions were alreadj’- understood, necessary officers in every county, and which allows no one to be arrested without due process of law. It has already been decided that no arrest can be lawfully made without warrant, except in the cases existing at common — 547 — law before our constitution was adopted: People v. Moore, 2 Doug. 1; Quinn v. Heisel, 40 Mich. 576; Sarah Way’s Case, 41 Mich. 299. No warrant can issue under the constitution “ without probable cause, supported by oath or affirmation : ” Article 6, § 26. It was never lawful for any one to determine this in a criminal case, unless upon inquest, or by the action of a court, judge, or justice of the peace, or person exercising his functions. It is one of the most important functions that can be exercised under the law. In this State, circuit court commissioners exercise the powers of a judge at chambers, but this is under warrant of the constitution itself. Even where an indictment has been found, if the defendant is not in custody, the clerk' of a court has no power to issue process of arrest, but the law is express that a warrant may be issued by the court to which the indictment shall be presented or'by a justice of the Supreme Court, or judge of the court for the county where the indictment is found; “ but such warrant shall not be issued by any other officer: ” How. Stat. § 9513. In Thompson v. Ellsworth, 39 Mich. 719, where an order was made enforceable by attachment in case of default, it was held that an attachment issued by the register, without the direct order of the court itself, was void. A clerk cannot exercise any judicial power over criminals. This charter makes him, and not the recorder, authorized to issue warrants on complaint, and makes the city attorney, instead of the prosecuting attorney, manager of the prosecution of all violations of the charter provisions. These provisions all depend on each other, and cannot be enforced. Some stress was laid on what is said to have been practical construction. We are not aware of any case ever brought into this Court, based on violation of the Detroit charter, and prosecuted to enforce its penalties directly, in which the record raised any such question. It would be contrary to all justice to allow either the State, or persons charged with ofEenses, to be estopped by the neglect of individuals to insist on such defenses as the law gives them; and constitutional provisions which, in criminal cases, concern the welfare of — 548 — the State quite as much as they do private persons, cannot be destroyed by any such laxity of practice. We think the indictments are valid under the laws of the State, and are not affected by any charter provision, and that the recorder should be directed to entertain and try the cases under the indictments, in accordance with the general criminal laws. The other Justices concurred.