Cooley, C. J.
When the case of the Iron Cliffs Company was decided, I assumed — unwarrantably, it seems — that the judgment, though rendered by a divided court, would be •accepted by the circuit judges as law and followed by tins ■Court as a precedent, until it should be overruled by a •majority of this Court. I have always supposed that was the proper course, and it seemed to me a course so necessary to a dignified and orderly administration of justice, that it ¡never would have occurred to me that any other could be taken. Such a division of the Court is liable to occur •at any time; and there are so many cases in which, by reason of interest, consanguinity or former connection with the controversy, some one judge is disqualified from sitting, that there would be constant liability to an equal division ■if the Court consisted of an unequal number. If, therefore, a decision made may be disregarded by a circuit-judge because not made by a majority, we have and can have no ••settled law for the State at large, and each circuit judge will determine for himself conclusively what shall be the law for his circuit, and may make it different from the law of the ■adjoining circuit. This would so much resemble a judicial scandal that I should deem it my duty to prevent it by yielding my own opinion when the same question should come up •again, if yielding should be essential to prevent such a consequence. The notion that there can be anything improper •or opposed to good morals in a judge yielding his opinion when a proper administration of justice requires it, is one I ■do not quite understand. Judges are certainly doing that •every day: it would be a great mistake to assume that every [445]*445judgment in which a court unites, expressed in all -respects-the views of every concurring judge.
In this particular case the reasons for abiding by the first judgment are peculiarly strong, because the case is substantially the same. The State proceeds in each county separately to obtain an order of sale: if one proceeding had been-provided for instead of several — as might have been done but for reasons of convenience — the doctrine of res adjudicatawould unquestionably apply.
I have no inclination to go again into an examination of' the legal questions. I have read with interest the opinion of' my brother Campbell herewith filed, but I cannot see how it strengthens his former opinion. Much that my brother Sherwood says on the constitutional question I do not concur in, for the reason that it is distinctly opposed to the current of authority — and I may say to the almost unanimous consent of authority. The intervention of the judiciary in tax proceedings is provided for in many States, and is had and has been-had for a great many years without question. I shall take the liberty of adding a reference to cases in a note to this.1 [446]*446When my brother Sherwood says that due process of law “ can never be made to mean less than the prosecution of a ■suit in our courts according to the prescribed and well-settled rules of practice for the purpose of establishing some right or determining the title to or the value of property; and no person can be deprived of liis property against his will without it,” he lays down a principle which is entirely proper in judicial proceedings, and which might be applied and enforced under this statute, but which has'always been held entirely inapplicable in ordinary tax proceedings. Appealing to that principle, therefore, seems to me to be attacking his own general views as applied in this case.
Personally I have little care how this case shall be decided ; but it seems to me that on constitutional questions the Court [447]*447is drifting to this position: That those statutes are constitutional which suit us, and those are void which do not. My own views of the proper distinctions between legislative and judicial authority do not permit of my concurring.
Champlin, J. I concur in the foregoing.
Campbell, J.
As I stated my reasons for holding the proceedings in the circuit courts under the Tax Law of 1882 invalid in the case of Iron Cliffs Mining Co. v. The State of Michigan, I do not deem it necessary upon the present controversy, which involves no different considerations, to repeat them. The argument, except on the direct constitutional questions, was chiefly aimed at impugning the propriety of declaring laws unconstitutional where there is any serious [448]*448difference of opinion in courts or among judges. But as every judge is sworn to support the Constitution and nothing else, and as his duty to support the statutes must therefore depend on their conformity to the Constitution, I do not think, at this late day in American jurisprudence, that any judge is called upon to vindicate or explain his right or duty to decide such questions as on his official responsibility he is satisfied they should be decided. Whatever care is required of him in forming his conclusions, he is bound to act upon them when formed.
Neither is it true that any of the questions.presented can be regarded as new. The division between judicial and administrative functions is radical and is found defined more or less clearly in all systems of jurisprudence. Powers that have been exercised since the beginning of the government by executive functionaries cannot be regarded as judicial; and under our Constitution, which expressly confines the judicial power to courts which are designated, and forbids each department to exercise any functions of the others except in the few specifically named cases, courts cannot become executive agencies. And if attempts are made to put controversies in the way of judicial decision, it must be by due process of law, which, when applied to courts, compels them to confine their action to cases where the methods conform to the settled principles of jurisprudence. I have previously given my reasons for the conviction that this proceeding is not due process of law, either executive or judicial. If the judgment here is held not conclusive, then it is in law no judgment at all, and leaves the court precisely where the Auditor General was left before. Finality is the clear object of the change. The action of the Supreme Court of the United States in refusing to treat the Court of Claims as a judicial body until its judgments were made final, is an illustration of this principle.
As parties on both sides, in the former controversy and in this, did not deny the power of the Legislature to employ commissioners to draft single laws, I did not then and will not now discuss that question, and it has been done on two [449]*449or three occasions which have not been questioned, and arc not likely to be. The question is under this law, and the law providing for the Commission, whether commissioners can be allowed to intervene in the actual work of legislation. That they have done so, in the most important functions of both bodies of the Legislature, I have endeavored to show heretofore and do not propose to discuss again. But it seems to be assumed by counsel that the objections to such private interference with legislation by commissions are novel.1 Upon this matter it may not be out of place to refer to the legal history of the State,' which indicates, on all of the questions involved here, more foresight than is now supposed to have existed.
Free access — add to your briefcase to read the full text and ask questions with AI
Cooley, C. J.
When the case of the Iron Cliffs Company was decided, I assumed — unwarrantably, it seems — that the judgment, though rendered by a divided court, would be •accepted by the circuit judges as law and followed by tins ■Court as a precedent, until it should be overruled by a •majority of this Court. I have always supposed that was the proper course, and it seemed to me a course so necessary to a dignified and orderly administration of justice, that it ¡never would have occurred to me that any other could be taken. Such a division of the Court is liable to occur •at any time; and there are so many cases in which, by reason of interest, consanguinity or former connection with the controversy, some one judge is disqualified from sitting, that there would be constant liability to an equal division ■if the Court consisted of an unequal number. If, therefore, a decision made may be disregarded by a circuit-judge because not made by a majority, we have and can have no ••settled law for the State at large, and each circuit judge will determine for himself conclusively what shall be the law for his circuit, and may make it different from the law of the ■adjoining circuit. This would so much resemble a judicial scandal that I should deem it my duty to prevent it by yielding my own opinion when the same question should come up •again, if yielding should be essential to prevent such a consequence. The notion that there can be anything improper •or opposed to good morals in a judge yielding his opinion when a proper administration of justice requires it, is one I ■do not quite understand. Judges are certainly doing that •every day: it would be a great mistake to assume that every [445]*445judgment in which a court unites, expressed in all -respects-the views of every concurring judge.
In this particular case the reasons for abiding by the first judgment are peculiarly strong, because the case is substantially the same. The State proceeds in each county separately to obtain an order of sale: if one proceeding had been-provided for instead of several — as might have been done but for reasons of convenience — the doctrine of res adjudicatawould unquestionably apply.
I have no inclination to go again into an examination of' the legal questions. I have read with interest the opinion of' my brother Campbell herewith filed, but I cannot see how it strengthens his former opinion. Much that my brother Sherwood says on the constitutional question I do not concur in, for the reason that it is distinctly opposed to the current of authority — and I may say to the almost unanimous consent of authority. The intervention of the judiciary in tax proceedings is provided for in many States, and is had and has been-had for a great many years without question. I shall take the liberty of adding a reference to cases in a note to this.1 [446]*446When my brother Sherwood says that due process of law “ can never be made to mean less than the prosecution of a ■suit in our courts according to the prescribed and well-settled rules of practice for the purpose of establishing some right or determining the title to or the value of property; and no person can be deprived of liis property against his will without it,” he lays down a principle which is entirely proper in judicial proceedings, and which might be applied and enforced under this statute, but which has'always been held entirely inapplicable in ordinary tax proceedings. Appealing to that principle, therefore, seems to me to be attacking his own general views as applied in this case.
Personally I have little care how this case shall be decided ; but it seems to me that on constitutional questions the Court [447]*447is drifting to this position: That those statutes are constitutional which suit us, and those are void which do not. My own views of the proper distinctions between legislative and judicial authority do not permit of my concurring.
Champlin, J. I concur in the foregoing.
Campbell, J.
As I stated my reasons for holding the proceedings in the circuit courts under the Tax Law of 1882 invalid in the case of Iron Cliffs Mining Co. v. The State of Michigan, I do not deem it necessary upon the present controversy, which involves no different considerations, to repeat them. The argument, except on the direct constitutional questions, was chiefly aimed at impugning the propriety of declaring laws unconstitutional where there is any serious [448]*448difference of opinion in courts or among judges. But as every judge is sworn to support the Constitution and nothing else, and as his duty to support the statutes must therefore depend on their conformity to the Constitution, I do not think, at this late day in American jurisprudence, that any judge is called upon to vindicate or explain his right or duty to decide such questions as on his official responsibility he is satisfied they should be decided. Whatever care is required of him in forming his conclusions, he is bound to act upon them when formed.
Neither is it true that any of the questions.presented can be regarded as new. The division between judicial and administrative functions is radical and is found defined more or less clearly in all systems of jurisprudence. Powers that have been exercised since the beginning of the government by executive functionaries cannot be regarded as judicial; and under our Constitution, which expressly confines the judicial power to courts which are designated, and forbids each department to exercise any functions of the others except in the few specifically named cases, courts cannot become executive agencies. And if attempts are made to put controversies in the way of judicial decision, it must be by due process of law, which, when applied to courts, compels them to confine their action to cases where the methods conform to the settled principles of jurisprudence. I have previously given my reasons for the conviction that this proceeding is not due process of law, either executive or judicial. If the judgment here is held not conclusive, then it is in law no judgment at all, and leaves the court precisely where the Auditor General was left before. Finality is the clear object of the change. The action of the Supreme Court of the United States in refusing to treat the Court of Claims as a judicial body until its judgments were made final, is an illustration of this principle.
As parties on both sides, in the former controversy and in this, did not deny the power of the Legislature to employ commissioners to draft single laws, I did not then and will not now discuss that question, and it has been done on two [449]*449or three occasions which have not been questioned, and arc not likely to be. The question is under this law, and the law providing for the Commission, whether commissioners can be allowed to intervene in the actual work of legislation. That they have done so, in the most important functions of both bodies of the Legislature, I have endeavored to show heretofore and do not propose to discuss again. But it seems to be assumed by counsel that the objections to such private interference with legislation by commissions are novel.1 Upon this matter it may not be out of place to refer to the legal history of the State,' which indicates, on all of the questions involved here, more foresight than is now supposed to have existed.
The Constitution of 1835 contained no limitation on the number or quality of the courts which the Legislature might establish, and the full judicial power over certain classes of subjects was vested in some persons and bodies which, under our decisions,, could not now be allowed to exercise it. The Legis[450]*450lature, as one of its earliest acts in the spring of 1836, before the judicial department of the State had gone into operation, and when the government was still imperfect, appointed Judge Fletcher, who had previously compiled the territorial laws, to prepare and arrange a code of laws for the State and report to the Legislature. Instead of a compilation, which it appears was all that the Legislature intended (see preface to Bev. Sc. 1838), he prepared a new and what was meant to be a complete Code, in separate chapters, whereby the law on several subjects was essentially revolutionized. Before the Legislature had acted upon it, some important matters were found to have been entirely overlooked, and the commissioner was given further time to report. An adjourned session was held in the spring of 1837, chiefly for the purpose of examining the chapters submitted, when it was found further omissions existed, which were mostly attempted to be supplied immediately by new reference and direction. At that session, after examination by the Legislature, the various chapters were adopted with some amendments, and two commissioners were appointed to arrange them under proper titles and publish them. Before those commissioners finished their task, some further omitted chapters were adopted and included by a new Legislature, and the Bevised Statutes went into operation on the first day of August, 1838. Before the session of January, 1839, so many further omissions and defects were discovered that much of the time of the Legislature was spent in changing the Code, in some things radically and completely (as in the case of imprisonment for debt, where the reviser had not carried out the intent of his instructions), and in some supplying defects less extensive but not less serious. From that time until 1846 no session passed without a large amount of such amendment.
In March, 1844, the judges of the Supreme Court and the Chancellor were directed to appoint a commissioner learned in the law to consolidate and revise the general laws, who was to be united with the Chancellor and the presiding judge. of the First circuit in a council of revision, and the result, as agreed upon by the council, was to be reported to the Legisla[451]*451ture. This report, which was chiefly the work of the able jurist who now presides over the Eighteenth judicial circuit, was reported to the Legislature of 1846, and left their hands very considerably modified, and in some parts changed altogether. This system, both as reported and as modified, introduced some radical changes, and the amendments rendered it more or less incongruous. 'It, however, like the Revision •of 1838, superseded the great body of general laws on most subjects, and was intended to be a complete code. It did not escape the same fate of numerous changes in subsequent legislatures, although it was not found to require the same supply of original omissions. Nevertheless the confusion created by all this changing action was one of the chief causes of calling the Constitutional Convention of 1850, and among the things urged upon that body as important were the condition of the tax laws and the methods of legislation. Upon the former subject a number of efforts were made to give conclusive effect to tax proceedings and sales, and in every instance the propositions were rejected as illegal as well as arbitrary appropriations of private property. The difficulties of collecting land taxes were similar to those now asserted, and very much more serious in proportion. No argument has been put forth recently in favor of extreme measures which was not then used quite as strenuously. But it was not deemed wise to attempt to take away absolutely entire estates by summary and absolute forfeiture, without inquiry being left open into the legality of the confiscation. During the same convention a number of propositions were presented for the appointment of commissioners to prepare both general and topical revisions and codifications of all the laws, and of the law on certain subjects. It was further proposed to have commissioners appointed to compare existing laws with the new Constitution, and report the result to the Legislature. All of these were rejected by very decisive votes, and all of the objections made were based on the mis■chief of allowing laws to be changed except by the sole action of the Legislature, which, it was urged, could not be .and had not been applied with full intelligence to extended [452]*452schemes which reflected the minds of others, and could not,, on their passage, be thoroughly compared and digested by the body of legislators so as to enable them to realize their full effect on the whole legal system of the State. And the-result was that the Constitution was made to contain a provision, not only forever forbidding any general revision of' the laws, but also requiring compilations to introduce no-changes whatever in the statutes, and to be made and certified under adequate security against them. Article 18, §15.
Several other articles were adopted, the general purpose of which was to make laws short and intelligible, and to prevent', the passage of any act without having its meaning clearly and directly brought repeatedly to the attention of every member. ,
It cannot be said that the constitutional convention did not. mean the Legislature to be protected against the substitution-of the judgment of others for their own, and did not feel the danger of it. And if ever the preparation of bills in advance by legislative sanction is not forbidden, it is Only because the language used applies to a general and not to a partial revision. But this omission does not leave the door open to the introduction into the actual work of legislation, of a participation by persons not members, and not selected; by any constituency for that purpose, and still less for admitting advocates on one side, with important authority in the-direction of business, without’, making provision for having, the other side represented or defended by any one.
The only previous instances in which such commissions-have heretofore been created, are the Constitutional Commission of 1813, and the revision of the laws concerning cities- and villages. In both cases very eminent men were chosen. The power to allow such action concerning the Constitution was not generally acquiesced in, and the popular sense-rejected the whole scheme. The Village Law was found open, to constitutional objections which did not occur to its distinguished compiler. And the experience of many years has-shown that the voluminous city and village charters of which our statute books are full, have almost always been adopted by [453]*453the Legislature on the faith of those who drew them, and have almost as uniformly turned out to be discordant and unwise in many of their provisions, and in many cases either unconstitutional or impracticable in execution. The propounders of new schemes have not kept in mind the necessity of making legislation harmonious either with other laws or with the Constitution, and have honestly in their zeal magnified benefits and failed to appreciate difficulties, which are not alwaj's on the surface, and will not occur to the minds of any but unprejudiced observers. These difficulties are not necessarily fatal obstacles to the existence of power to act, but they bear very strongly on the impropriety of treating an excess of power as frivolous and immaterial. I have said in my former opinion all that I care to say upon the power of receiving the commissioners into the full privileges of debate and consultation, and into a considerable control of the course of business of the two houses which represent here the principal functions of the ancient Parliament which derived its name from its debates and not from its laws, and was never very active in changing the laws, but inflexibly •excluded outside interference as a breach of privilege.
I am of opinion that the decree dismissing the proceeding should be affirmed.
Sherwood, J.
I am not insensible of the great and important interests, both public and private, to be affected by the final disposition of this case, and I believe- I fully appreciate the serious consequences which may, possibly, finally follow an equal division of the members of this Court upon the question of the constitutionality of our general tax law presented in this issue. However much it is to be regretted that a decision by a majority of the Court cannot be made, still I cannot escape the conviction that it is my duty as a member of this Court, in this case as in every other, to act in accordance with the best understanding I can get of the question involved, uninfluenced by considerations of expediency or of policy. Entertaining these views, and having once passed judgment upon the questions presented, [454]*454it is perhaps needless for ine to say that I listened with intense interest to the able arguments so forcibly presented by the distinguished counsel on their review of the question upon the hearing of this case. And after having again given to the subject the most careful and thorough consideration of which I am capable, I am compelled to say that I am unable to arrive at any other or different conclusion than was expressed by my brother Campbell in the Iron Cliffs case, and to which I gave my assent. It is not my purpose now to enter into any re-discussion of the general question so ably treated in the opinion filed by him in that case.
There are certain great natural rights which are fundamental and pertain to every citizen in this country. One of these is the right to private property. The people have always been very vigilant in protecting these rights. Fearing that in some way or in some manner they might be impaired or infringed under one pretense or another in after generations, the fathers of our system of government, in making the organic laws of state and nation, secured the continued existence of these rights by express provisions in their Constitution. For the protection and enforcement of these rights courts were instituted, both of law and equity. When the court of law failed, in consequence of the rigid rules by which it was governed, to furnish the proper means of protection or redress, just at that point equity took cognizance of the matter under the flexible power exercised in that court, and the manner of exercising it which is found in the practice of these courts, which, under the various statutes adopted for that purpose, have long been well settled, and are older by far than the constitutions themselves. And these means of enforcement and protection of these elementary rights are what is called “due process of law.” It can never be made to mean less than the prosecution of a suit in our courts according to the prescribed and well-settled rules of practice, for the purpose of establishing some right or determining the title to or value of property, and no person can be deprived of his property against his will without it. Such due process of law requires a person, [455]*455■when liis property is sought to be taken from him in a court of law or equity, to be personally notified in some manner,, if he is within the jurisdiction of the court, of the proceedings taken or about to be taken for that purpose. This law seeks, by a proceeding in a court of equity, to finally and conclusively, and without any opportunity for review, deprive the citizen of his property, he being within the jurisdiction of the court, and it may be living on the very property intended to be taken, without giving him any personal notice of the 'pendency of the suit. I regard this proceeding, as authorized by this law, not only a clear violation of the provisions of our constitutions, both state and national, but of the elementary principles upon which these provisions are founded. Here I leave this point, and should not have alluded to it only that some of my brethren did not regard the question of personal notice as properly raised upon the record in the Iron Cliffs case, and therefore declined to discuss it.
The other ground upon which I place my objection to the constitutionality of this law has been so well and ably discussed by my brother Campbell that I do not feel called upon to give it further attention. I am clearly of the opinion, however, that the manner in which the law was made was not only in conflict with the letter but the spirit of article 4 of our Constitution. The people are required to elect the persons whom they wish to make our laws, and they have fixed the number which shall compose each brand! of the Legislature for that purpose. The Constitution gives the Legislature no power to select others, nor to authorize the Governor of the State to select others, to take seats upon the floor of each house and participate in the most important parts of legislation. It requires no peculiar sagacity to discover that such a commission with such privileges, composed of five of our ablest and most learned and influential citizens, would completely control the legislation of our State in very many cases and upon most important subjects. No one doubts, I apprehend, that such was the object and intention in placing the gentlemen who composed the com[456]*456mission which took a part in the enactment of the law in question.' Five more unexceptionable men than those composing that commission cannot be found in our State; but I do not think, under our Constitution, the Legislature has the authority to thus abnegate the power conferred upon it, and transfer it to any other body not known to our Constitution or laws. In effect, it is an usurpation of legislative functions, and in direct conflict with the provision of our Constitution above last referred to. The review of the question upon this point more than ever confirms me in the correctness of the views I have herein expressed.
I cannot accept the suggestion of counsel for appellant that it is the duty of those members of this Court who do not believe the law to be constitutional to unite in a decision that it is, when the members' of the Court are equally divided upon the question, on the ground that they have doubts or should have doubts, when in fact they have none. I do not believe the position sound either in law or morals. I know of no provision of the Constitution or of our statutes, nor of any practice, requiring any such thing to be done; but on the contrary, the law anticipates just such a condition of things as now occurs in this case, and directs just what judgment shall be entered by this Court, without requiring any member of the Court to stultify himself in the manner suggested. Neither do I anticipate any such results from the disposition of the case made as counsel for appellant fears may follow.
The objectionable features of the law, and the illegal manner of its enactment, have been generally and pretty fully discussed and pointed out. With these eliminated, and such other needful changes as will readily suggest themselves to the legislator, I apprehend no difficulty will occur in the enactment of a general tax law which will meet the requirements of the Constitution and the necessities of our people without depriving any citizen of his just and legal rights.
I concur in the opinion of my brother Campbell given in this case, and agree with him that the decree entered therein in the Wayne circuit by Judge Chambers should be affirmed.