Glinnan v. Judge of Recorder's Court

Ostrander, J. The relators, 10 in number, are, respectively, respondents in certain criminal cases pending in the recorder’s court of the city of Detroit, in which cases they are severally charged with the crime of bribery. In another information they are charged jointly as conspirators. Informations having been filed and a plea of not guilty entered for each of the relators by order of the court, the prosecuting attorney thereafter asked for an order changing the venue for trial from the said recorder’s court to some county in the State other than the county of Wayne. The application was supported by certain affidavits. The ground upon which a change of venue was asked was that a fair and impartial jury could not be secured. The motion of the prosecuting attorney coming on to be heard, relators presented to the court affidavits of citizens of the city of Detroit in opposition to the motion of the prosecuting attorney, and to the effect that fair and impartial trials could be secured in the city of Detroit. On the 30th of November, 1912, the court entered an order transferring the causes for trial to the sixteenth judicial circuit, which is the county of Macomb. A motion was made to vacate the order, and in support of the motion to vacate, the relators severally filed affidavits, in which, among other things, it is stated that said respondents, because of their financial condition, cannot make a fair, full, and complete defense in the county of Macomb. Upon this motion the prosecuting attorney filed 152 affidavits of residents of Macomb county, which, in substance, state the opinion of the affiants to be that fair and impartial trials can be had in said county of Macomb. The motion was argued, and thereupon the judge of said recorder’s court, on December 27, 1912, made an order denying the motion to vacate the order theretofore entered. Thereupon the relators filed their petition in this court for an order requiring the judge of the recorder’s court to show cause why a peremptory mandamus should not issue, requiring him to vacate and set aside his order changing the venue in said causes, and to proceed with the trials. [676] The order to show cause was issued, and return has been made thereto, and counsel for relators and for the people have been heard. The propositions presented and argued on the part of the relators are: (1) That respondent, the judge of the recorder’s court, had no authority or jurisdiction to make the order changing the venue, first, because they are entitled of right, under the Constitution, to a trial by a jury of the county where the crimes charged against them are alleged to have been committed; and, second, because the recorder’s court of the city of Detroit is a municipal court of limited jurisdiction, and is not invested with the power to order a change of venue for the trial of criminal cases. (2) If the court had jurisdiction to make the order, the power is one involving the exercise of judicial discretion, and in the particular case judicial discretion has been abused. (3) Mandamus is the only adequate remedy open to relators. 1. First. The constitutional provision relied upon is section 13 of article 2 of the Constitution of 1909, and appeared as section 27 of article 6 of the Constitution of 1850. The provision is: “The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases unless demanded by one of the parties in such manner as shall be prescribed by law.” The legislature, by section 10 of Act No. 157 of the Laws of 1851, provided, with respect to the powers to be exercised by circuit courts: “ Each of the said courts, upon good cause shown, may change the venue in any cause pending therein, and direct the issue to be tried in the circuit courts of another 'county, and make all necessary rules and orders for the certifying and removing such cause, and all matters relating thereto, to the court in which such issue shall be ordered tobe tried; and the court to which such cause shall be so removed shall proceed to hear, try and determine the same; and execution may thereupon be had, in the same manner as if the same had been originally pros [677] ecuted in their county, except that in all criminal cases where the defendant shall he convicted and sentenced to imprisonment in a common jail, the court awarding the sentence, shall have the authority to direct and shall direct that the defendant be imprisoned in the common jail of the county in which the prosecution was commenced.” This provision of the statute has been, since its enactment, changed by legislation. Act No. 12, Laws of 1871; Act No. 309, Pub. Acts 1905; Act No. 161, Pub. Acts 1907; Act No. 67, Pub. Acts 1909 (4 How. Stat. [2d Ed.] § 11784). But the language which has been quoted has never been changed, and it stands and the statute law is today substantially as it was in 1851. The question presented is not a new one, and was determined against relators’ contention in People v. Peterson, 93 Mich. 27 (52 N. W. 1039), and in People v. Fuhrmann, 103 Mich. 593 (61 N. W. 865). For more than 20 years (the Peterson Case was decided in 1892) the point has been regarded as settled, and we deem it unwise to overrule the decisions which have been referred to. Second. Among other things, the charter of the city of Detroit provides: “Thesaid recorder’s court shall have original and exclusive jurisdiction of all prosecutions and proceedings in behalf of the people of this State, for crimes, misdemeanors, and offenses arising under the laws of this State, and committed within the corporate limits of the city of Detroit, except in cases cognizable by the police court of the city of Detroit or by the justices of the peace of said city.” There is no express provision in the charter of Detroit, as there is in the act providing for a superior court of Grand Rapids (Act No. 11, Pub. Acts 1905, § 30), which confers upon the recorder’s court the power to change the venue in any cause pending therein. The charter of the city of Detroit contains this provision relative to the recorder’s court: “ Shall have power to issue all lawful writs and process and to do all lawful acts which may be necessary and [678] proper to carry into complete effect the powers and jurisdiction given by this act, and especially to issue all writs and process, and to do all acts which the circuit courts of this State within their respective jurisdictions may, in like cases, issue and do by the laws of this State.” We are of opinion that the recorder’s court of the city of Detroit, with respect to the matter now in issue, is empowered to do what the circuit courts of the State might do under like circumstances. 2, 3. The judge of the recorder’s court, it is conceded, was called upon to exercise judicial discretion. It was exercised in favor of the people and against the relators. It is sought to review such exercise in mandamus proceedings; that is to say, to substitute the discretion of this court for that of the judge of the recorder’s court. In Lyle v. Cass Circuit Judge, 157 Mich. 33 (121 N. W. 306), which was an application for a mandamus to compel the circuit judge to grant a change of venue, an exhaustive opinion was written by the late Justice Hooker, in which the authorities are collected and at considerable length are reviewed. In the opinion it is said: “ Were it competent for us to review his conclusions upon the merits, I should reach a different conclusion from his; but I think that it is not.” It is said in argument that this case does not decide that, where the court has jurisdiction, but relinquishes it and refuses to proceed further, this court will not interfere, and that what relators seek to do in this proceeding is, not to compel the trial court to arrive at a particular decision, but to proceed with the trial of the causes — an argument obviously fallacious and based upon premises which are not true in fact. The trials do not proceed in the recorder’s court, because the court has determined that they shall take place in another jurisdiction. The decision in Lyle v. Cass Circuit Judge is controlling, and for reasons stated therein we decline to review the discretion exercised by the recorder’s court. [679] The writ of mandamus is refused, and no costs are awarded. Steers, C. J., and Stone, J., concurred with Ostrander, J.