People v. Colleton

26 N.W. 771, 59 Mich. 573, 1886 Mich. LEXIS 1054

• Court: Michigan Supreme Court
• Decided: February 3, 1886
• Status: Published

Opinion

Sherwood, J.

The defendant in this case was arrested on a warrant issued upon a complaint made to the clerk of the police court of Grand Iiapids, for keeping his saloon open, in violation of law, on Sunday.

The complaint was taken, reduced to writing, sworn to before, and the warrant issued thereon by, the clerk of said court, upon which the defendant was arrested, tried and convicted in the police court, and, on his appeal to the circuit court, he was again tried and convicted, and the case is now before this Court on error to the circuit.

But a single question is presented upon the record needing consideration.

It is claimed by the defendant that both courts were without jurisdiction in the case; that the clerk of the police court of the city of Grand Rapids had no power to take the complaint and issue the warrant in the case, and so far as the act of the Legislature organizing said court, and the acts amendatory thereto, authorize the exercise of such judicial power by the clerk, they are unconstitutional.

That the ■ statute under which the proceeding in the case was taken provides that the complaint shall be made to a justice of the peace, or a police justice; and that it must be made to appear from the examination of witnesses that the offense has been committed, before he shall issue his warrant for the arrest of the defendant.

We think the position taken by defendant’s counsel is correct upon both grounds : Section 1, Art. 6,- Const.; Pub. Acts 1885, p. 125, § 5; How. Stat. §§ 2280, 7093 ; People v. Lynch, 29 Mich. 273 ; Morton v. Crane, 39 Mich. 530.

The prosecution of the defendant, for the offense charged, could only be had in some court of competent jurisdiction, the existence of which is authorized by the Constitution, and the taking of the complaint, and the examination of witnesses, and the determination therefrom whether or not the offense has been committed, preliminary to issuing the warrant, involve judicial action, which can only be taken by a court, and which cannot be performed by a clerk; neither can the power to perform it be conferred upon that officer.

The verdict in the case must be set aside, and the proceedings dismissed, and the defendant discharged.

The other Justices concurred.