Walker v. Brockway

1 Mich. N.P. 57
CourtCircuit Court of the 10th Circuit of Michigan
DecidedNovember 15, 1869
StatusPublished

This text of 1 Mich. N.P. 57 (Walker v. Brockway) is published on Counsel Stack Legal Research, covering Circuit Court of the 10th Circuit of Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. Brockway, 1 Mich. N.P. 57 (Mich. Super. Ct. 1869).

Opinion

[58]*58By the- Court,

Brown, J.

The constitution of this- States article' 7, section 1, declares that" “ every civilized male inhabitant of Indian descent, a native of the United States and not» member of any tribe, shall be an elector and entitled to vote.’’

The plaintiff does not claim that he is entitled^ to vote on. the ground that he is a white person, but it is admitted that his legal right — if he has any such right — to vote, rests on the provision of the constitution referred to, to wit: on the ground that he is an American citizen of Indian descent.”

Before proceeding to discuss the plaintiff’s right under the constitution to vote, we will examine the questions presented' by the counsel for the defendants.

1st, Were the defendants, while sitting as a Board of Registration, acting in a judicial capacity; or, rather, were their official acts judicial in their nature; and,

2d If judicial, are they liable in an action for damages for an error of judgment , or even improper and corrupt conduct.

On the part of the plaintiff, the attention of the Court has been directed to Art. 6, Sec. 1, of our State constitution, which provides that “ the judicial power is vested in one supreme court, in circuit courts, in probate courts, and in justices of the peace. Municipal courts of civil and criminal jurisdiction maybe established by the legislature in cities.”

From this it is argued that the legislature cannot vest in any court, person or persons, judicial power beyond the provisions of this article, 'and that if the law of 1859, creating a Board of Registration is to be construed as conferring upon said Board judicial power, it is in violation of the provisions of the Constitution just quoted, and therefore void.

If, then, it should appear that the Registration Board act-judicially in dertermining the qualifications of electors,the plaintiff insists that the law of 1859 would be void. If void, it confers no power whatever on the persons assuming to act as a Board; and it would logically follow, that having no power ter act, they could not be held responsible for declining to act. Their responsibility would, in such case, be n'o greater than the responsibility of any other person to whom application might be made for registration.

[59]*59But it is contended that the Board acts not in a judicial capacity, hut, in the language of the plaintiff, “not strictly, perhaps, executive, but executive and ministerially combined ’’

The attention of the Court has been directed to the constitutional provision that the “powers of the State Government are divided into three departments: the legislative, executive and judicial;” and to the further provision that no person belonging to one department shall exercise the powers that properly belong to another, except in cases expressly provided in the Constitution ; from which it is argued that the judicial cannot be united with the executive power, or with the executive and ministerial. It is claimed that it is the duty of the Board of Registration to administer, not to expound, interpret, or e xplain the law.

In determining whether a person acts in a judicial or ministerial character, it is important to determine the nature of t lie acts to be performed. The law of 1859 prescribes the duties oi the Board of Registration. It enacts that such Board, “ at every session, shall have power, and it shall be their duty, to question every person presenting himself for registration, touching not only his residence, but his other qualifications as a voter These other qualifications are prescribed by law.

. The case of Gordon vs. Farrar et al.. 2 Douglass, 411, was an action brought against the defendants, who were Inspectors of Election for the Second ward of the city ot Detroit, for refusing to receive the plaintiffs vote at an election for the purpose of choosing'a Representative in Congress, held November 4,1844.

Art. 2, Sec. 1, of the Constitution as amended in 1889, and which was in force in 1844, provided that “ every while male inhabitant above the. age of twenty-one years, having resided in the State six months next preceding any election, shall be entitled to vote at such election; 'and every white male inhábil ant who may be a resident of this State at the time of the signing of the Constitution shall have the right of voting as aforesaid," &o.

The statute then in force entitled “ An Act to preserve the purity of elections”made it the duty of the Inspectors, whenever a person should be challenged as unqualified, to tender lo such person an oath, and thereupon to put certain Questions specified [60]*60in the Act, '• and all such other questions as may test his qualifications as a resident of the town or ward, his citizenship, and his right to vote at that poll.”

Where a person is permitted to establish his qualifications by his own oath, by answers to certain questions prescribed by the statute, the Inspectors would be compelled to receive his vote, leaving them, in such case, no discretion — no opportunity for the exercise of their judgment in the matter. It may be well said that as to those questions the Inspectors would not be acting judcially, simply because they exercise no discretion, po judgment; but are bound by the answers of the person challenged.

It was said, in the case referred to, that the plaintiff was not permitted to establish the fact that he was a white person by his own oath, and thus compel the Inspectors to receive his vete, and that in passing upon that question the Inspectors acted judicially.

The Court then proceeded to decide the case on the ground that the Inspectors cannot be held liable for an error in judgment.

In the case of The People ex rel. of Dean vs. The Board, of Registration of Nankin, 15 Mich., 158, the Court says: “It was the duty of the respondents, when the relator offered to be sworn to his qualifications, to examine him on oath; and xohile they would not be absolutely bound by his statements, they hud no right to reject him ou mere inspection.” If, then, the Board is not bound by the statements of the relator, but is permitted to weigh testimony, and adjudicate upon it, it seems clear that i^ acts in,a judicial capacity, and the 13th section of the Registry Act but confirms this view.

Whether the Legislature had the power to make provision for a Registration Board with power to act judicially I do not deem it necessary for the purpose of this case to determine; but as the question has been raised, it may be well to suggest whether the constitutional provision respecting “judicial pow. ers" does not refer exclusively to th e judicial powers of courts ; in other words, whether it does not mean that all such judieia power as must, from the nature of the case, be exercised by a court, shall be vested in one Suprefiie Court, in Circuit Courts, [61]*61in Probate Courts, and in Justices oí the Peace, and in such municipal courts as may be established by the Legislature in cities. In the case of Daniels vs. The People, 6 Mich., 388, Judge Campbell, in delivering the opinion oí the Court, says: “ By the judicial power of courts is generally understood 'the power to hear and determine controversies between adverse parties and questions in litigation.” Referring to Story on Const., § 1640, et seq.:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Vail v. Owen
19 Barb. 22 (New York Supreme Court, 1854)
Brown v. Smith
24 Barb. 419 (New York Supreme Court, 1857)
Weaver v. Devendorf
3 Denio 117 (New York Supreme Court, 1846)
Harman v. Brotherson
1 Denio 537 (Court for the Trial of Impeachments and Correction of Errors, 1845)
Kilham v. Ward
2 Mass. 236 (Massachusetts Supreme Judicial Court, 1806)
Gordon v. Farrar
2 Doug. 411 (Michigan Supreme Court, 1847)
Daniels v. People
6 Mich. 381 (Michigan Supreme Court, 1859)
People v. Dean
14 Mich. 406 (Michigan Supreme Court, 1866)

Cite This Page — Counsel Stack

Bluebook (online)
1 Mich. N.P. 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-brockway-micirct10-1869.