Shurbun v. Hooper

40 Mich. 503, 1879 Mich. LEXIS 604

• Court: Michigan Supreme Court
• Decided: April 9, 1879
• Status: Published

Opinion

Marston, J.

Tbe principal question raised in this case relates to the constitutionality of tbe statute which authorizes probate courts to appoint commissioners to pass upon claims against tbe estates of deceased persons.

It was argued that by tbe constitution all judicial power was exclusively given to tbe courts and persons named therein; that commissioners were not included, although tbe power given and exercised by them under tbe statute was clearly judicial.

That such commissioners act in a certain sense judicially in tbe allowance of claims, has been repeatedly recognized by this court. Fish v. Morse, 8 Mich., 34; Clark v. Davis, 32 Mich., 157.

It does not necessarily follow, however, that the statute under which they act is in violation of the constitution. As was said in Streeter v. Paton, 7 Mich., 347, such legislation is older than our present constitution. The validity of such legislation and of the proceedings of such commissioners has been recognized and acted upon in very many cases, so that at this late day, it would require a clear showing to justify a construction which would be contrary to the long and well settled practice.

In the case last referred to it was said: “By courts, as the word 'is used in the constitution, we understand permanent organizations for the administration of justice, and not those special tribunals provided for by law, that are occasionally called into existence by particular exigencies, and that cease to exist with such exigencies.”

The same distinction was noticed in Underwood v. McDuffee, 15 Mich., 366, where the term “officer,” as used in Art. 18, § 1 of the constitution, was said to apply and refer to such offices as have some degree of permanence, and are not created by a temporary nomination for a single and transient purpose.

It is clear, under the construction given the constitution in these cases, that the statute in question is not open to objection. Commissioners are appointed to act in a given case, and not generally; their appointment is temporary — for a single and transient purpose — and when they have acted in a given case, their powers cease. The conclusion arrived at by them, where within their power, if not appealed from, will be final and conclusive; and all claims in favor of or against the estate must be presented to and passed upon by them, and cannot be withdrawn from their consideration, to be adjudicated upon elsewhere. Green v. Probate Judge, ante, p. 244.

If there was any objection, growing out of the statute of limitations, to the validity of the claims passed upon, it should have been raised before the commissioners or on appeal, and cannot properly be considered in this action. *

The judgment must be affirmed with costs.

The other Justices concurred.