Allor v. Board of Auditors

4 N.W. 492, 43 Mich. 76

Opinion

Campbell, J.

Eelator, who is a constable of the tenth ward of the city of Detroit, presented a bill for services, as such, for allowance by the board of auditors, which they refused to consider. It is admitted by their answer that the bill is correct, if. they have power to audit it. The services performed were in the arrest of parties charged to have committed crimes outside of the city and in Wayne county, partly subject to trial by a justice ancl partly beyond his trial powers, and in one case the respondent was arrested on a charge of bastardy,— he being in the township of Ecorces. The arrests were all made on warrants which were issued by justices whose offices were held in Detroit, and who belonged there. The auditors declined to consider the claim on the ground that aE such warrants should have been served by the police and not by constables. This objection is based on certain provisions of an act entitled “An act to establish a police government for the city of Detroit,” approved April 17, 1871. This statute appears to be a re-enactment, with a few alterations, of a former act bearing the same title, approved January 24, 1865. It is not apparent, but it is not very important, why the act of 1871 was passed as an original instead of as an amendatory act. Possibly difficulty may have arisen under intermediate legislation amending the city charter in 1869. On the 15th day of April, 1871, a law had been passed to cure any previous irregularity or defect in the powers of the board. 3 Laws of 1871, p. 186. Whatever may have been the fact, the new law is, so far as has been shown to us, the only one involved in the present controversy, and we need not go behind it.

The sections of the Police Act supposed to bear upon the claim of relator are sections 13, 35, 36 and 38. These sections are substantially if not verbally identical with previous amendments adopted in 1867, and counsel, regarding the act of • 1871 as only amendatory, have cited these former provisions instead of those of 1871. The statute of 1871 has, however, evidently superseded the older statutes, and is the only law now in force, except as it may have been amended since, directly or by implication.

Section 13, so far as now involved, contains the following provisions: “The members of the police force of the city of Detroit shall possess all the common law and statutory powers of constables, except for the service of civil process; and any warrant for search or arrest, issued by any magistrate of the State of Michigan, may be executed in any part of said State, by any member of said police force, without baching or endorsement from any other magistrate or officer of said State; and for all offenses committed in the county of Wayne, the expenses incurred in serving said warrant shall be certified by the board of police, and audited and paid by said county; and in all other eases such expenses shall be determined by and paid under the direction of the proper auditing board of the county in which the offenses charged in said warrant shall have been committed.” * * * * “ The members of said police force shall also serve and execute all process and subpoenas issued in the recorder’s court and the police court of said city, and all process and subpoenas in criminal cases, issued by justices of the peace in said city.”

- Section 85. “ The members of the Metropolitan police force shall have the exclusive power, and it shall be their duty, to serve all process within the city of Detroit, issuing from the recorder’s court, police court, and from justices of the peace in criminal cases, within said city, whether directed to constables, the sheriff, or otherwise, and shall be detailed by the proper officers to attend, instead of deputy sheriffs or constables, all courts of criminal jurisdiction of said city. All the duties now performed by deputy sheriffs in serving writs, executing orders of said court, attending said court, conveying prisoners to and from the county jail for arraignment or trial before said court, and in conveying prisoners to the Detroit House of Correction, the Eeform School, county jail, State prison, or other place of punishment and imprisonment, under the judgment, sentence, order, or process of said court, shall be performed by the members of said' police force; and in no ease shall deputy sheriffs, or any constable of said city, receive or be paid by the county or State any fee or compensation for services directed in this section, or in any part of this act, to be performed by the members of said forcé. The actual expenses of travel and of performing duties under this section shall be paid by the county of Wayne, upon bills allowed by said board of police and endorsed by the president and secretary thereof.”

Section 36 abolished the offices of marshal and deputy marshal and provided that the duties should be performed by the superintendent of police, or by the captains and sergeants under his directions. This section, like some others, is evidently copied from the law of 1865, and refers to matters which had been before abolished.

Section 38 is open to the same criticism and refers to obsolete matters.

The powers given by section 13 are not exclusive, and have, therefore, no bearing on the present issue. Section 35 is exclusive, so far as it applies at all, and we are required to decide whether this section can be applied to the case before us, and whether if so applicable, it is so far valid. It did not, as first passed in 1865, apply to justices except when holding courts.

It was suggested for the respondents that we have already passed upon the validity of this statute in the case of People v. Mahaney 13 Mich. 485. There is nothing decided by that case which settles or seriously concerns this controversy. The only question then before the court was whether the office of city marshal had been lawfully abolished by the Police Act. It was decided that the statute was passed in a constitutional manner, so far as this court could lawfully inquire into the course of legislation, and that the substitution of the police officers for the marshal was within the general purview of the title; and that the office could be lawfully abolished. The court very carefully abstained from passing upon the validity of other parts of the act. It was distinctly stated that no decision could properly be made upon the validity of particular powers and provisions, until some case should arise calling for a decision. The amendments of 1867 had not then been adopted.

The city marshal of Detroit, as provided for at that time, was not an officer named in the Constitution, nor a necessary officer for any purpose. He had not any statutory powers which were not concurrent with those of other known officers. If his office had been abolished, as it might have been, with no one designated in his place, no serious confusion could have arisen. Sheriffs or constables could perform his statutory powers, and the common council could provide as they pleased for such powers as he derived from their grant.

It is unfortunate that other portions of the law have not been sooner brought up for construction. It has been changed in some important particulars since 1865, and amendments have been made to the city charter which cannot fail to create discussion. -The provisions before referred to are more or less dependent on the sections concerning the organization and government of the force, which were claimed with much earnestness on the argument to allow the police board and its officers and servants to interfere with the powers of the courts, as well as of the city.

Upon that suDjeet it is for most purposes enough to say that no court, in the exercise of its functions, can be lawfully subjected to the control or interference of any executive or ministerial authority, or can receive directions for any purpose except from such other courts as are authorized by the Constitution to have “ superintending control over inferior courts.” 'No court has a right to allow any other interference or to submit to it.

And in this same regard it is also very clearly settled by the Constitution that judicial power can only be vested in courts and judicial officers, and that all of the judges and judicial officers, without exception, must be elected directly by the people of the State or of their local districts. This makes it necessary to be cautious in extending other powers when a conflict is likely to be created.

The Constitution has also provided that no one shall be deprived of liberty without due process of law, and has provided that no warrant shall issue except upon oath or affirmation establishing probable cause. It has been settled for centuries, and the doctrine has been recognized here, that except in cases of reasonable belief of treason or felony, or breach of the peace committed in presence of an officer, there is no due process of law without a warrant issued by a court or magistrate upon a proper showing or finding. Drennan v. People 10 Mich. 169; Quinn v. Heisel 40 Mich. 576; Sarah Way’s Case 41 Mich. 299.

The question is whether the power of justices in Detroit in criminal matters, and in the enforcement of their process, or the power of constables in that city to serve their criminal process has been taken away by any valid legislation. Both of these matters belong together. Apd in considering this question we are bound to construe the Police Act in view of its title and its lawful purposes, assuming, so far as we reasonably can, that broad language should be confined to lawful objects, and inferring no unlawful intent, except where too plain to be mistaken.

It is not, and it certainly cannot be claimed, that under our Constitution there can be any such thing as a municipal government -which is not managed by popular representatives and agencies deriving their authority from the inhabitants. No business which is in its nature municipal can be controlled by State or any other outside authorities. People v. Hurlbut 24 Mich. 44; Hubbard v. Springwells 25 Mich. 153; Park Com’rs v. Common Council of Detroit 28 Mich. 228; Attorney General v. Common Council of Detroit 29 Mich. 108; Attorney General v. Holihan 29 Mich. 116.

There can be no complete city corporation without means of enforcing such regulations as are necessary for the peace and good order of the community, and this can only be done by the aid of officers. A great majority of the regulations needed to prevent confusion in cities lie entirely outside of criminal law, and authorize interference of an official character where no arrest would be lawful. And in many of these cases it is not uncommon for quarrels to arise which go far enough to create breaches of the peace, when it would be very dangerous if the municipal officer must at that point stop short in the performance of his civil duty and call to his aid a different officer. Until the Police Act of Detroit was passed, there was no't a single place in the State where these functions were not united, and the Police Act itself attempts to' unite them, not by giving city officers functions under State law, but by giving State officers functions under municipal regulations, and depriving municipal officers of municipal powers. We can hardly believe that when the police system was adopted in 1865 the Legislature had any idea that they were doing more than adding desirable auxiliaries to municipal authority. It is not to be supposed they meant to revolutionize our institutions by superseding local by central authority. The police force is nothing more nor less, so far as it is lawfully constituted, than an additional force of constables and watchmen appointed by the State for certain limited purposes; and unless some power exists in the Legislature not only to add to the force of local peace officers but to supersede them entirely for all common law purposes, the provisions complained of in this statute cannot be maintained if they are to be construed as respondents construe them.

The purpose of the Police Act expressed in its title furnishes no suggestion which would lead courts or officers to look for any legislation in the body of the act to affect their powers or jurisdiction in any matters not relating to the interests and peace of the city of Detroit. No liberality of construction could allow an inferential or express repeal of the general laws of the State except to that extent. And it is not easy to see how under such a statute courts whose criminal powers are not confined to the city and for most purposes ai*6 entirely extra-territorial to it, can be included within its terms merely because they may hold sessions there. The general laws direct how they shall act and what officers shall be their bailiffs. Any such officer must obey their mandate, or stand punishable. A large portion of the police force which respondents correctly or incorrectly claim to be subject entirely to orders from superiors, would by such a rule be subjected to conflicting orders, which would create confusion, because all are not employed in the same duties. This, of itself, might raise serious questions if the police can be made exclusive officers for any of these purposes. It is not clear that the act will bear so extreme a construction even in regard to the municipal courts properly so called. If any court under it is compelled to depend on the discretion of the police authorities for officers to perform its mandates, it would be such a subjection of judicial to ministerial oversight as could not be tolerated. We are, therefore, called on to look with some care into the constitutional provisions and the general legislation had under them, touching the matters now litigated. And it must be borne in mind that the jurisdiction of the local courts, and the functions of local officers, while distinct in many respects, have more or less connection.

The power of justices of the peace to try civil causes is so fixed by the Constitution that they are absolutely necessary magistrates in cities as well as elsewhere. Their power to try criminal offenders is statutory, but it is contemplated by the Constitution that it shall exist to some extent, and the general statutes have extended this jurisdiction to a large class of minor offenses, and it can only be restricted by the special municipal criminal jurisdictions in cities. A municipal court could not be authorized to try extra-municipal crimes, and no attempt has ever been made to permit it. The result is that the general statutes of the State give every justice in Detroit power to dispose of all criminal business within the county of Wayne arising beyond the city. Those same laws make constables competent and compellable to serve their criminal process, as the sheriff is also in some cases. Comp. L. chapter 179.

The power to examine and commit persons charged with crimes beyond the cognizance of justices to try, is also entrusted to justices of the peace in common with various judges, judicial officers, and city officers. Comp. L. ch. 259. This power is not exercised by those officers as courts, and it is not in the proper sense of the term judicial power. It may be vested in other persons than courts, as well as in courts. It belongs to the duties of conservators of the peace; and the Constitution has made supreme and circuit court judges, as well as justices of the peace, such conservators. Art. 6 § 19. The difference between this power and that of trying offenders is referred to, among other cases, in Daniels v. People 6 Mich. 381 and Ex parte Farnham 8 Mich. 89. This power of preliminary examination was by the Police Court Act of 1850 vested in the police court of Detroit, and that act was continued by the schedule to the Constitution, see. 11.

But no reference is made in the original Police Court .Act or in the first Police Act to the important functions of conservators of the peace in the prevention of crime, which is fully provided for by chapter 258 of the Compiled Laws. It is very remotely referred to if touched at all by the present act. This'power is not one which can be taken away by implication, if at all. It is essential to the public safety, and the constitutional grant of this power to various judicial officers, — which was only limited by section 11 of the schedule, — is imperative. No doubt others may be, as they always have been, entrusted with similar powers. But no one in whom the Constitution has vested it can be deprived of it. This power exists in the city as well as out of it, and in relation to crimes threatened to" be done there or elsewhere.

In view of the peculiar provisions found in various portions of the act, it is perhaps not a strained construction to construe it, — so far as crimes committed within the city are concerned, — as intended to cut off deputy sheriffs and constables from performing any criminal services whatever. But the sheriff himself — (whose duties under the laws of the State are all, — unless with some possible slight exceptions, — as well performed by deputy as in person) is not covered by all of these sweeping provisions; and inasmuch as all of the courts of record sit in Detroit, he would be substantially deprived of his office in its most important functions if he had been, and if the act covered any but city crimes. For the purposes of the present controversy it is necessary, in order to avoid attributing to the Legislature an intention very far beyond the title of the act, to hold that the section which gives exclusive power to the police force for the service of process “in criminal cases within said city” does not refer to any cases where the crime was committed out of the city. -But we do not mean to be understood as recognizing the legality of any such exclusive power any where, under the laws of the State and the Constitution. The shape the controversy has ijaken and the differing characters of the relator’s claims ‘‘render it necessary to refer to rules which may apply somewhat further.

Counsel on the argument very properly and very ably placed the right to redress chiefly on the ground that the rights and duties of constables were for many purposes recognized and fixed by our constitutional polity, and so connected with the course of criminal justice as to be beyond legislative annihilation. The argument, although dealing with very ancient affairs, in no sense belongs to mere antiquarian curiosity. It is very unfortunate and very discreditable that so little heed is sometimes paid to the continued and perpetual importance of institutions which form an essential element in the organic life of our government. Courts, at least, are bound to respect what the people have seen fit to preserve by constitutional enactment, until the people are unwise enough to undo their own work. The loss of interest in the preservation of ancient rights is not a very encouraging sign of public spirit or good sense.

The municipal corporations of this State, — as we have had frequent occasion to declare, are all organized, and constitutionally required to be organized, in such a way as to preserve to the inhabitants full means of local self-government. There has never been a time when the city of Detroit has not had in common with townships the right to choose its own constables. When the city was not divided into wards, they were chosen at large. When so divided, each ward was given the choice of its own constable, as well as of other ward officers. For election purposes, each ward is made by the Constitution equivalent to a township. Art. 7 see. 1. The Constitution, in terms, requires each township toi elect constables. Art. 11 sec. 1. It required, the Legislature to provide for cities and villages (Art. 15 sec. 18); and it continued in force all existing corporations. Schedule, sec. 2. No municipal corporation had ever existed here or in England, without constables or officers answering to constables. Under the charter of Detroit there are no other officers chosen by the people or by the corporation, having powers at all analogous.

It cannot be maintained that legislation would be valid which retained the names but destroyed the powers of such officers. While there is an undoubted power to vary the duties of such officers, it cannot be lawful to so change those duties as to practically change the office. When offices are named in a Constitution they are named as having a known legal character.

The general laws of the State have made constables in all important particulars what they were at common law, when our American systems were framed. They are here, and always have been, the local peace officers of their vicinage, the ministerial officers of justices of the peace, and the bailiffs of courts of record of criminal jurisdiction 'in the county.

The only powers they have ever possessed as process-servers for civil purposes have been given to them not as a change in their own offices, but as the result of a change in the official powers of justices. It is simply because they are the ministerial officers of justices that civil process was issued to them as a result of civil powers conferred on justices. Those civil powers have no concern whatever with the municipal interests.

It would serve no useful purpose to enter into any of the doubtful questions concerning the origin and meaning of the term constable. His powers and duties are among the best known subjects of legal inquiry. From the high constable of the realm to the ordinary constable, the different ranks were all, within their several" spheres, guardians of the public safety, and conservators j and defenders of the public peace, with power to summon j to their aid any persons whom they found it necessary to call. The ordinary constable is the most ancient peace officer known, and was by various names, but with substantially identical powers, the legal head of his community for the purpose of enforcing the peace. Until conservators of the peace were appointed, he had during much of the time nearly all of the authority afterwards conferred on them. The watchmen and other persons from time to time provided for by statute, and now represented by the police, were usually legally subordinate and to some extent under his direction. Most arreBts were made by him or under his supervision. The office was an onerous one, and in process of time became more troublesome than pleasant, and met with the treatment which all offices meet which deal with the handling of rogues and vagabonds, but it has never ceased to be important and responsible. And it is remarkable as the one office which, in all the mutations of prerogative, has continued since the times long prior to the Conquest an office filled by popular choice for the preservation of the peace in the territory of its constituents. See 1 Backus on Sheriffs, Coroners and Constables, 38 et seq.; Finch’s Law, chap. 22, fol. 127; Comyn’s Dig. “Leet” M. 6-12; 2 Hale P. C. ch. 10, 11, 12; Tomlin’s Law Die. “Constable;” King v. Routledge Doug. 531.

The researches of the counsel for relator have brought forward many interesting references which it is not necessary for us to dwell upon, as they generally tend to the same result.

It will appear from these and many other authorities, that the one class of duties belonging to the office of constable which never changed, is the performance of the functions of a peace officer in the arrest of criminals and the prevention of crimes and disturbances. Other duties have become obsolete, and still others have been granted and changed.

It is as a peace officer that he has been known to our laws from the beginning, and it is as such that our General Statutes chiefly refer to him. As before suggested, he is required to be chosen in Detroit, and he is the only peace officer who is chosen by the corporation or the people of Detroit. "We think the Constitution used the name as having a known meaning, and that while the police may be auxiliary they cannot supersede him in his functions; and that his service of process in the cases brought to our notice is authorized and to be compensated under the criminal laws of the State.

The mandamus must issue as prayed, but without costs.

The other Justices concurred.