author: Per Curiam.

text:
    The People ex. rel. the Treasurer of Wayne County v. the Controller of the City of Detroit.

      Central Police Court: Pines: Penal Laws: Library fund. The prosecutions of ' offences at the Central Police Court, chap. IS, sec. 11 City Charter, are to he regarded as prosecutions under the penal provisions of the City Charter, and not under the municipal ordinances, and the fines so collected are to he applied to the support of township libraries. — 17 Mich. 890.

      Heard and decided May 10.

      Mcmcla/nms to B. G. Stimson, Controller of the City of .Detroit.
    The following is the petition filed:
    “ Your petitioner, Paul Gies, respectfully represents and states to the court now here, that he is the duly elected and qualified treasurer of the county of Wayne, in said state, and that being such treasurer it becomes and is the duty of all officers and other persons, who shall collect or receive any moneys on account of any fines for breaches of the penal laws and for penalties, to pay the same over to your petitioner, within twenty days after the receipt thereof; that it is the duty of your petitioner to keep an accurate account of all such moneys paid to him, separate and distinct from all other accounts, and to credit the same to the library fund, and to account therefor to the board of supervisors of said county at each annual meeting of said board; and your petitioner further shows that it is also his duty as such treasurer, between the 1st and 10th days of April, in each year, to apportion among the several townships in said county, according to the number of children therein, between the ages of four and eighteen years, as shown by the last annual statement of the county clerk on file in his office, all fines for any breaches of the penal laws and for penalties, or upon any recognizances in criminal proceedings, when collected and paid in to him.
    Your petitioner further shows that as he is informed, and verily believes to be true, the Central Police Station Court, so called, of the city of Detroit, is established and held under the provisions of an Act, “entitled an Act to revise the charter of the city of Detroit, approved February 5, 1857,” approved March 12, 1861, and also under an ordinance of the City of Detroit, passed March 6, 1866, to which said ordinance reference is made for certainty, and a co}Dy whereof is hereto annexed marked A.
    And your petitioner further shows that said court held its first session, and first went into operation on the 2nd day of April, A. D. 1866, and that since that time and previous to the date hereof, large sums of money have been collected in said Central police station court, in payment of fines imposed by said court, for offenses tried and determined therein, and that said moneys were by the clerk of said Central police station court paid in to Edward S. Lead-beater, the treasurer of the city of Detroit.

      And your petitioner shows that said Edward S. Lead-beater, received in his capacity as treasurer of- said city, from the said clerk of said Central police station court, being said fines aforesaid, the sum of eleven thousand and eighty-six dollars and twenty-five cents, ($11,086.25).
    And your petitioner further shows that it is by law the duty of Benjamin G. Stimson, controller of said city, to open and keep an account with the treasurer of said city, in which he shall charge the said treasurer of said city with all moneys raised or received for each of the several funds of said city, and it is made the duty of the treasurer of said city to report to the said controller, at the end of each month, the amount received and credited by him to each fund, and on what account received; and your petitioner further avers that the aforesaid sum of eleven thousand and eighty-six dollars and twenty-five cents, has been so reported by said City Treasurer to said Benjamin G. Stimson, controller of said city of Detroit, together w ith the fund to which the same was credited, and that said city treasurer has been charged by said controller with said sum in his account with him.
    And your petitioner further shows that on the 16th day of November, A. D. 1868, Emil P. Benoit, who was then county treasurer of said county, and the predecessor of your petitioner was ready and willing to receive said moneys and on said day duly and regularly demanded officially of said city treasurer, that he should pay over said moneys to such Treasurer of Wayne county, as aforesaid, and also on the same day duly demanded of Benjamin G. Stimson, who is the controller of said city of Detroit, that he should draw his warrant in favor of such Treasurer of Wayne county, upon said city treasurer, for the said, moneys above stated. Your petitioner further states that said city treasurer, of said city of Detroit after said demand, and on said 16th day of November, 1868, utterly refused to pay over said moneys to such Treasurer of Wayne county, and that said Benjamin G. Stimson, controller of said city, after said demand, and on said 16th day of November, 1868, utterly refused to draw his said warrant for said moneys upon said treasurer, and in favor of such Treasurer of Wayne county.
    Your petitioner further represents that said Edward S. Leadbeater, treasurer of said city, has no power to disburse said moneys, nor any of the funds in the city treasury, except upon a warrant signed by said Benjamin G. Stimson, controller of said city, and has, therefore, and for that reason refused to pay over said moneys to your petitioner without said warrant of said controller.
    And your jietitiouer further states that he is advised and believes that he is entirely without remedy in the premises, unless it be afforded to him by the interposition of this honorable court, by their writ of mandamus, and he therefore prays that an order may be made requiring said Benjamin G. Stimson, controller as aforesaid, to show cause within eight days after service on him of a copy of this petition, why a mandamus should not issue from this court, commanding him to draw his said warrant upon said Edward S. Leadbeater, city treasurer, in favor of your petitioner for all moneys remaining in said Edward S. LeadbeateBs hands from those received by him, for fines and penalties imposed in said central police station court, of said city of Detroit, and that such other and further order may be had in the premises as justice may require.
    The following is the ordinance referred to in foregoing: AN ORDINANCE to prescribe the duties of the police justice in all cases of violation of city ordinances.
    It is hereby ordained by the common council of the city of Detroit :
    Section 1. It shall be the duty of the police justice to attend the city hall, or any other police station house where the lock-up shall be, on every day of the week, Sundays excepted, at the hour of seven o’clock, A. m., to examine into, try and determine the case of every person confined in said station house for vagrancy, disorderly conduct, or drunkenness, when the nature and circumstances of the case or complaint are such that the same may, and in the opinion of such justice should he summarily disposed of without a jury. All other cases of persons so confined, and the cases of all persons whatsoever, arrested on warrant issued from the Recorder’s Court, shall he tiled and disposed of in the mode and manner now provided hy law. Dpon conviction of any person or persons for any of the offenses herein set forth, the police justice may commit him or her to the Wayne county jail, or to the Detroit house of correction, for not more than six months, and impose a fine not exceeding fifty dollars and costs, and in default of the immediate payment thereof, to commit such person or persons to the Wayne county jail, or to the Detroit house of correction, for a term not exceeding six months, or until such fine and costs he paid.
    Section 2. The police justice shall receive for his services in performing the duties required hy the foregoing section the sum of 200 dollars per annum.
    Section 3. It shall be the duty of the clerk of the police court to attend the city hall or any other police station house where the lockup shall he, on every day of the week, Sundays excepted, at the hour of seven o’clock a. m., to keep a true record of the proceedings before the police justice at said station, in proper books to be provided therefor, and file and safely keep all papers pertaining to such proceedings; it shall be his duty to receive all costs, fines and dues of every description, from either party to complaints or prosecutions before said police justice, and which, by law, are taxable as justice’s costs, and shall pay the same weekly to the city treasurer, and take his receipt therefor.
    Section 4. Said clerk shall receive as compensation for performing the duties specified in said section 3, the sum of 200 dollars per annum.
    Section 5. This ordinance shall take effect from and after the first Monday in April next.
    Approved March 6, 1806.
    The following is the answer of the defendant:
    This respondent, Benjamin G. Stimson, now comes by his attorneys, Gray & Moran, and for answer to the said petition, and for canse why the writ prayed for should not be issued, says:
    . He admits that as charged in the said petition, said Gies is Treasurer of the County of Wayne, and that it is the duty of all persons receiving or collecting money for fines or penalties for breaches of the penal laws to pay the same over to said treasurer, to be by him kept and applied as stated in the petition.
    But this respondent avers that the penal laws referred to are the general penal laws of the state, and do not mean breaches of the provisions of city ordinances of a limited and local application and intended merely for the better government of the city for and in which they are operative.
    lie admits that the central police station court was established under the statute and ordinance referred to in said petition; that said court went into operation at the time stated, that fines to the amount stated were collected by the clerk of said court, and were by him paid over to the Treasurer of the city of Detroit, who now holds the same.
    Bespondent also admits the duties of the said city treasurer and controller to be as stated in said petition, and that said treasurer did report to said controller as stated. H'e also admits the demand for the said money, and the refusal to pay the same as stated, and that said city treasurer cannot pay over said moneys or any other moneys in the city treasury, save on the warrant of this respondent. And this respondent, further answering, says:
    That the said fines, as aforesaid, imposed and collected in said court, were not imposed for or on account of any breaches of any penal law of the state. That long prior to the passage of the Act of 1861, referred to in said petition, there was and still is in force in said city, an ordinance duly ordained by the common council of said city, and approved by the mayor, a true copy of which is hereto annexed, marked exhibit “A,” and which respondent prays may be taken as a part of his answer.
    That all the fines so imposed and collected in said court were for offences against and complaints made expressly charging a violation of the provisions of said ordinance; that the greater portion of said fines were imposed upon charges of drunkenness or being a drunken person; that many of said fines were imposed ■ for violations of the provisions of one, two, four, five, six and seven of said ordinance hereto annexed and marked “Af that in all cases the complaints, under which the parties were tried and convicted, charged the offence of a violation of the said city ‘ordinance and referred expressly to such ordinance.
    All of which this respondent is ready to verify and prove, and prays that said writ do not issue, and that he be herein dismissed with his costs, etc.
    (Signed) B. G. STIMSON, Collector.”
    To the above answer was attached a statement setting forth a summary of fines collected at the Central station police court, to wit:
    Pound concealed See. 1, eh. 69............$ 40
    Making noise . . “ 2, “ ...........2,288
    Vagrancy . ... 11 3, as amended, eh, 69........ 280
    Disorderly persons “3,......“.......4,837
    Indecent exposure “7,..... “....... 130
    Drunken persons . “ 3,..... “.......5,162
    $12,737

      P'. J. D. Van Dylce, Prosecuting Attorney, and

      H. M. Duffield and Q. V. W. Lothrop, for relator.
    Under the decision in the County of ■ Wayne v. the City of Detroit, 17 Mich. 390, we are clearly entitled to a mandamus for the fines collected for drunkenness, vagrancy and disorderly conduct, under sections 30 of the ordinance referred to, and which, as shown by the return, amount to $10,279.
    xThe ordinance referred to in the return can have no more weight than the ordinance of March. 6, 1866, which was passed upon in that case.
    We are also equally entitled to the fines collected under section 2, for it is included in Comp. L. p. 493, § 1550, as amended in in laws of 1865, p. The amendment to city charter' specifies disorderly conduct — Latos 1861, p. 201.
      The amendment to the charter says “ vagrancy or disorderly conduct.” The fines uuder this section amount to $2,288.
    The remaining sections 1 and 7, are comprehended and referred to by the charter of the city as “violations of the city ordinances relative to breaches of the peace.” The statute prohibited these offences, and affixed a penalty to their commission equally as to drunkenness, and disorderly conduct, but instead of referring to them specifically, described them generally.
    We contend that a violation of any of these ordinances is a breach of a penal law.
    All of them except sections 1 and 4, are offences' under the general laws of the state.
    Sections 2 and 3 are included in Comp. L., p. 498, § 1550, as amended by laws of 1865, p.
    Sections 5 and 6 are included in Oomp. L., p. 600, § 1579, and p. 151$, § 5874, and p. 1544, § 5880, and p. 151$, § 588

    Section 7 is included in Comp. L. 1541, § 5861.

    Section 8 in Comp. L., p. 151$, § 5868.

    See our brief in County of Wayne v. City of Detroit.

      Cray & Mor am, and T. Rooney n, for respondent.
    In 17th Michigaoi Repoo-ts, p. 897, is the decision of this court on a similar case.
    That case’ holds:
    1. That the continued provision as to fines for' breaches of penal laws extends -to the city of Detroit.
    2. That in cases decided under authority of section 11, of chapter 13, of the Charter, the convictions are to be deemed as made under the charter, and not under the ordinance founded on it.
    3. That this law is a penal law within the meaning of the constitution.
    So far this court will doubtless consider the question as settled, and not open for'argument.

      In regard to the larger part of the convictions (in fact all of them, except those for indecent exposure,) no specific penalty by way of fine is provided for, in the general law.
    The proceedings are more to prevent than to punish. See 1 Comp. Latos, chap. 42, p. 492.

    The charter gives a specific penalty for these offences when committed in Detroit, leaving the general law to be applied in the county everywhere.
    The general provisions are not repealed as to the city by the charter, nor can the application of the one law be pleaded in bar of a prosecution under the other. See 8 E. D. Smith {H. T. Com. PI.) 156; Hyatt’s case 1 Wencl, 880; 9 Howard, 569; 14 Howard, 19; 14 Alabama, 400: 6 Indiana, 852 ; 24 Missouri, 96; 18 Wend., 841; 15 Id., 215; Bish. Or. Law, § 99, 'p. 690; Wheat. Cr. Law, § 5p2, 564.

    The general law of the state in a certain sense makes vagrancy and drunkenness offences throughout the state, to be guarded against and prevented within the .locality of the city of Detroit. The charter of the city provides for their punishment, when they have been committed, by fine.
    And the same charter places the fines in the city treasury.
    The constitutional provision has its scope of operation and application under the general law. The charter is in effect but a municipal regulation.
    This is the equitable construction. The county and city share alike in the proceeds arising under the general law.
    And such is the legislative construction. This ought to be observed and upheld, if possible.
    The proceeds of the convictions under sections 1 and 2 of the ordinance, are certainly not offences under the general law. They are mere municipal regulations.
    Making a noise is punishable at common Nlaw, only when it amounts to a nuisance. See 1 Russell on Crimes, 827.

      For these and other reasons, we contend that the mandamus should not issue as prayed for.
   Per Curiam.

All those fine moneys which were collected of persons convicted of drunkenness, or as disorderly persons or vagrants, amounting in all to $10,279, are within the previous decision of this court in Wayne County v. The City of Detroit, 17 Mich. 390, and there could have been no valid excuse for not paying them over on demand. We held before, that the penalties in those cases were not collected under the city ordinance at all,, but under section 11 of chapter 13 of the city charter: the city ordinance being a mere re-enactment of that section, and therefore entirely idle and nugatory.

The remaining moneys are not covered by the former decision, but we think they fall within the same principle. It is the statute which gives the police justice the authority to hear and determine these cases, which prescribes what species of criminal conduct he shall take cognizance of, and what penalty he shall impose. We do not decide, nor intimate whether, if these cases were ordinary prosecutions under the city ordinances, the penalties imposed by the ordinances could be regarded as imposed under “the penal laws of the state.” That question is not before us. The ordinary prosecutions for breaches of the city ordinances are had in the Becorder’s Court, and not before the police justice. At the Central Police Court, are to be tried the cases of vagrancy and disorderly conduct — which cases do not come under the ordinances at all; and also “violations of the city ordinances relative to breaches of the peace.” In regard to these latter cases, however, it is to be observed that the statute makes new and peculiar regulations concerning them, and that it does not refer to the ordinances at all except to ascertain what conduct is made a breach of the public peace by them. The ordinances are referred to for definition, and not for penalties.

This will be made very apparent by looking into the ordinance before us in this case, where we find that the same conduct when punished under it by prosecution in the recorder’s court, may be punished by a fine of three hundred dollars; while if punished as a breach of the section in the city charter which we have referred to, the penalty is limited to fifty dollars. We are therefore of opinion that all of these prosecutions are to be regarded as prosecutions under the penal provisions of the city charter, and not as prosecutions in any proper sense under the municipal ordinances.

It was objected to this view, that in some cases shown by the return, the fines appear to have been imposed for acts which are neither vagrancy, disorderly conduct, nor breaches of the peace, and therefore, not within the section of the charter referred to, and not made criminal by any law of the state. The answer is, that the police justice only has authority to try in the court which imposed these fines, the cases enumerated, and we must assume that every case he has tried, was regarded by him as falling within one of these three classes. If m any case he has erred, and imposed a penalty for conduct which could not be' legally thus classified, the error was one of laV, for which the party convicted might at the time have had an appropriate remedy.

We cannot in this collateral proceeding, enter upon an investigation whether his rulings have been correct or not.

It is proper to say in this connection, that in coming to this conclusion, we do not, as counsel seem to suppose, hold any provision of the city charter to be unconstitutional. The charter provides that these fine moneys shall be paid into the city treasury, but it is to be presumed that the legislature designed the subsequent disposition of them to be in accordance with the constitutional provision.

The other Justices concurred.


source: Caselaw Access Project

license: Public Domain

text:
    Jesse Ganoe and another v. The Scow Jack Robinson.

      Water' Graft Law: Jurisdiction: Supreme Court; Appeal Cases. The jurisdiction given to this court under the water craft law, L. 186k, p. 107, in appeal cases, is none the less to he regarded as properly appellate, because it allows new testimony. ,
    The allegation of the tonnage of a vessel in such proceedings is essential to jurisdiction.

      Heard and decided, May 8.

    Appeal from Ottawa Circuit.
    This was a proceeding under the Water Craft Law (Latos 1864, JP- 107,) against the scow Jack Robinson, for a certain claim for tonnage alleged to constitute a lien against said scow.
    The claim was demurred to in the court below, but the demurrer was overruled, with leave to answer.
    The defendant answered — and complainant filed his replication.
    Judgment was rendered for complainant, jtnd defendant appealed to this court.
    When this case was called on for hearing, Mr. Pond for appellee, moved to dismiss the case for want of jurisdiction on the ground, that inasmuch as the statute contemplated a new hearing in this court, upon new evidence taken here, the jurisdiction was thereby made original, and not appellate, and a law granting to this court any but appellate jurisdiction was unconstitutional. But,
   Per Curiam.

The jurisdiction in these cases, is intended to resemble that formerly given in admiralty appeals to the 'United States Supreme Court, which is limited to appellate jurisdiction, and yet was once empowered under the statutes to hear new proofs in such cases. In our Circuit Court also, appeals are heard on new evidence when taken from probate and justice’s courts, and this was a familiar practice when the constitution was adopted. We think the jurisdiction is properly to be regarded as appellate.

Ilolm.es & Ballard, and A. Pond, for complainant and appellee.

Moore & Griffin, and H. O. Alceley, for defendant and appellant.

The case came on for hearing upon the merits, and it appeared that there was no evidence showing that the vessel sued, was over 10 tons burden.

The court held this to be a jurisdictional defect, and reversed the proceedings and dismissed the complaint.


text:
    Wm. Dinnen v. Robert Baxter.

      Justices court: Jurisdiction: Replevin: Affidavit. When nothing appears in a justice’s court to impeach the jurisdiction, in a replevin case when the affidavit had made out a proper showing, evidence on appeal, that the property involved was of greater value than one hundred dollars, cannot he allowed to overthrow the jurisdiction, and prevent the appeal from, being decided on the merits.

      Heard and Decided May 12.

    Case Made, from Wayne Circuit.
    This was an action of replevin commenced before a Justice of the Peace.
    The affidavit upon which the writ was founded, stated the value of the property replevied at $99, and not exceeding $100.
    The declaration claimed damages at $50.00. Judgment was rendered in favor of the plaintiff, whereupon defendant appealed the same to the Circuit Court.

      On the trial of the appeal, plaintiff was sworn as a witness, and testified that the value of the property described in the writ was over $150. The defendant thereupon moved the court to quash the writ and dismiss the case.
    The court held the motion under advisement, and directed the case to proceed. The defendant then introduced testimony tending to show that the property replevied was worth less than $100.
    At the conclusion of the evidence, the motion to dismiss was denied, and judgment rendered in favor of plaintiff: the court having found that the property replevied was worth less than $100.

      Ghipman é Weber, for plaintiff.

      B. T. Prentiss and Hoyt Post, for defendant.
   The court regarding the case as within the principle of Merrill v. Butler, recently decided, affirmed the judgment.


text:
    Louisa H. Skillman v. Jacob T. B. Skillman.

      Divorce: Dismissing case when the purpose of the litigation has terminated. The wife filed a bill for divorce, and the court granted a limited divorce for one year only, with $250 alimony. The defendant appealed. After the year had expired, the case not having been brought to a hearing in the Supreme Court, the complainant petitioned for alimony, and for an allowance for expenses. The record was voluminous, and the court being satisfied that if the cause was proceeded in, an allowance ought to be made to the complainant exceeding the alimony allowed by the court below, refused to retain the case in court, and dismissed the appeal, with costs to complainant.

      Heard and decided May 11.

    Appeal in Chancery from Macomb Circuit.
    The complainant filed her bill for a divorce, on the ground of cruelty. The Circuit Court, in August, 1867, awarded a limited divorce for one year only, with an allowance, by way of alimony of two hundred and fifty dollars.
    The defendant appealed.

      E. F. Mead and J. B. Eldridge, on affidavits showing tbe complainant’s needy condition, and her inability to employ counsel, now moved for an allowance for tbe support of herself and child, pending 'the litigation, and to enable her to bring tbe case to a hearing.

      A. B. Maynard, contra.
   Tbe court, after looking into tbe affidavits and tbe record — which was quite voluminous — being satisfied that if tbe case proceeded, an allowance ought to be made to complainant considerably exceeding tbe amount of tbe alimony allowed by tbe court below, and which was the only remaining subject of litigation, refused to retain tbe case in court, and dismissed it with one hundred dollars costs to complainant.


author: Campbell J.

text:
    Appeal of James W. Convers in the matter of the petition of the Grand Rapids and Ind. R. R. Co.

      Petition for appraisal under General B. B. Law : Map and /Sm'vey. Section 19 of the General E. E. Law, as amended, L. 1859, p. 559, 560, requires the petition for an appraisal of lands to declare among other things that the company has “ surveyed the route of its proposed road, in said com ty, and made a map and survey thereof \ by which said route is designated, and 1 that they have located their said road according to such survey and filed a cert tificate thereof, &c.
    The u map and survey” required by the statute must be something more than a general outline map giving an approximate idea of the situation of the road, without the means of fixing each point and course. The map must embody or be accompanied by such full and accurate notes and data as will furnish com píete means for identifying the precise position of every part of the line, with courses and distances throughout, so that there can be no doubt as to where any portion of it is to be found

      Jury in special proceedings : Presence of Court. The statute — Laws of 186U, p. Ik providing in such cases for an order by the court for a drawing of a jury and the issuing of the venire, contemplates that such drawing, &c., shall be made in the presence of the court at the time of making tbe order, aiid a jury drawn subsequently to the order and not in the presence of the court is itlega1.

      Jury: Yicinage: County. When.the names of jurors are required to be drawn from the box, the “ vicinage” from which they are to be summoned, means the coiuity, and not the town or neighborhood in which the land to be taken lies._

      Jury in other than criminal cases: Peremptoi'y challenge. Challenges for cause maybe made to jurors summoned under the railroad law, to assess damages, but peremptory challenges are not allowed in such proceedings. No peremptory challenge lies in any but criminal proceedings, except where given by statute, and in these special proceedings no provision has been made for them.

      Jury — Special cases : Peremptory challenges. The statute — # Comp. Laws^ § 4400 — allowing two peremptory challenges in u civil cases” does not apply to special proceedings not in the ordinary course of law.

      Heard and decided May 12th.

    Appeal from Kent Circuit.
    This is an appeal by James W. Converse, from proceedings on the part of the Grand Rapids and Indiana R. R. Go. to condemn certain lands of his for the use of said road.
    The material facts are stated in the opinion.

      George Gray, for complainant.
    1. The drawing of the jury was by the clerk, in the usual form, in presence of a justice of the peace and the sheriff. It is not required to be in presence of the court.— 1 Comp. Laws, 6J¡.1.

    2. It is objected that the jury were not all from the city of Grand Rapids or towns in the neighborhood. But the jury must be drawn from the jury-box; and the vicinity is equivalent to the vicinage dr county.
    3. The conditions precedent to the exercise of the right of eminent domain by a railroad company, are those prescribed by the statute in such case made and provided, and no other.
    The only question made under this head by the appellant is, that the line was not lawfully located through the city of Grand Rapids, inasmuch as the consent of the common council was not given, and if given, was ' not lawful, in so far as it purported to give the right to locate the line on certain streets of the city.
    The line was located, and the map filed. The consent of the common council was given, by ordinance of October 15, 1867, page 52. — Gen. R. R. Law, § 29, p. 6^.6.

      But we contend that this is a question, not between the appellant and the railroad company in this proceeding, and is not a condition precedent to the exercise of the right of eminent domain.
    The conditions are prescribed in § 19, p. 688, 1 Gomp. Latos; no others are imposed or in issue. These conditions are complied with, and no proofs are introduced contrary.
    The map filed shows streets, town lines, section lines, corners, &c. and was furnished with a scale, from which the whole can be determined. — Nee § 19, Supra.

      G. V. N. Lothrop, for defendant and appellant.
    1. All conditions precedent to the exercise of the right of eminent domain by a railroad company must be complied with.
    The company must comply with all the conditions of its charter, or of the laws requisite to enable it to go forward in the construction of its road before it can condemn lands. — 1 Redf. on Railroads, p. 281-5-6, 289; Atkinson v. Mar. é Gin. R. R. Go. 15 Ohio, St. 21; Gillinwater v. Miss. & A. R. Go. 18 III. 1.

    The lawful location of its line in Kent county was a condition precedent to this attempt by the company to seize on lands. — 1 Gomp. Laws, 1968.

      2. The railroad company can locate its line through any city without leave of the common council. — 1 Gomp, Laws, p. 61^3, 1978.

    3. No railroad company had any lawfully located route through the city of Grand Rapids at the time the petition was filed.

      a. The map was the only paper filed. No minutes of survey at all accompanied the map. This was necessary for by this alone, could the line on the map be run and determined. — 1 Gomp. Laws, 1960, 1968.

      b. The city council of Grand Rapids had never consented to the location of the line through the city. No part of the location was ever before them, except so much as was upon certain streets. And though the assent to locate through Almy, Ferry and Blossom streets was given by the ordinance of October 15th, yet this was repealed by the ordinance of October 29th.

      c. The common council had no authority to grant the use of a public street to the use of a steam railroad company; and hence no line could be lawfully located, which included such a street.
    It seems to be now fully settled, that where the fee of a public street is in the adjacent proprietor, neither the legislature, nor the local authority, nor both together, can authorize a steam railroad to be laid on such street, without first providing for compensation to such proprietor.— Cooley, Const. Law, 547 et. seq; Trustees v. A. & B. B. B. Co. § Hill, 567'; Williams v. N. 7. C. B. B. Co. 16 N. 7. 97; Carpenter v. O. & S. B. B. Go. 24 Id. 655; Mahon v. N. 7. G. B. B. Go. 24 Id; Wagner v. Troy Union B. R. Go. 25 Id. 531; Springfield v. Conn. Riv. Go. 4 Gush. 63; Troy v. Chest. B. B. Go. 23 N. II. 83; Nicholson v. N. 7. & N. II. R. B. Go. 22 ■ Conn. 74; Imlay v. Union Br. B. B. 26 Id. 249; City of Janesville v. Mil. & Mis. R. B. 7 Wis. 489; Ford v. Chi. & N. W. R. R. Go. 14 Id. 609; Pomeroy v. Ghi. <8 Mil. B. B. Go. 16 Id. 64O; Tate v. Ohio & Mis. B. B. Go. 7 Ind. 479; Scharmier v. St. P. B. B. Go. 10 Minn. 82; See Muffin v. R. R. Go. 16 Penn. St. 180.

    In New York it is held that where the fee of a street is vested in the people, or in the municipality, it is lawful for the legislature to devote the street to the uses of a steam railroad. — People v. Kerr, 27 N. 7. 188, 200, 213.

    Still, it is conceded, even in such case, that the public hold the fee of the street, not as private property, but only in trust for public uses; and, perhaps, only for uses pertaining to public ways. — People v. H. Y. & H. R. R. Co. J¡5 Barb. 88; People v. Kerr, 27 N. Y. 197-8-9, 212; Milbau v. Sharp, 27 Id. 611.

    In other states it is held that, even where the "fee of a street is in the public, still the adjacent owner has a private right that the street shall be kept open, with unobstructed access to his lot, and that this right is properly within the constitutional protection. — Tate v. O. & Miss. R. R. Go. 7 Ind. 479; Haynes v. Thompson, 7 Id. 38; Prutzman v. Ind. é C. R. R. Go. 9 Id. 461; New Albany & S. R. R. Go. v. O’Dale, 18 Id. 854; Cincinnati v. Giomminsville, 14 Ohio St. 528; Scharmier v. St. P. S P. R. R. Go. 10 Minn. 88.

    Such seems to be held in England.- — Thompson v. W. Sou. R. R. Go. 29 Law Times, cited in note to. Redf. p. 810; See also remarks of Balcón and Marvin, J. J. at end of People v. Kerr, 27 H. Y. 188.

    And all the cases agree that no street or highway can be appropriated to the uses of a steam railroad, except under authority from the legislature; and hence, that a mere municipal license is void. — Davis v. Mayor, 14 N. Y. 514; Milbau v. Sharp, 27 Id. 611; Com. v. N. K. R. R. 27 Penn. 854; Lackland v. N. Mis. R. R. Go. 81 Mis. 180; Milbau v. Sharp, 14 Barb. 485; People v. N. Y. & N. H. R. R. Go. 45, Id. 88.

    If built on a street without such authority from the sovereign legislature, it is a public nuisance. — People v. Kerr, 27 N. Y. 188; Davis v. Mayor, 14, Id. 514.

    And not only is it in such case a public nuisance, but if it works any special private injury to an adjacent pro pnetor, he may maintain his private suit, either for prevention or redress. — 2 Redf. § 205, p. 808; Corning v. Lawrence, 6 Johns. Oh. 489; Ketchum v. Buffalo, 14 N. Y. 856 j Davis v. Mayor, 14 Id. 514; Doolittle v. Supervisors, 18 Id.

      160; People v. Kerr, 27 Id. 188; Milbau v. Sharp, 27 Id. 611; Penn. v. Wheeling Bridge, 18 IIow. 564.

    Sucli authority must be clear. -It is not to be presumed. — State v. Warren R. R. 29 JSF. J. 858.

    4. The foregoing' cases fully establish that the railway company that assumes to use a street, must be able to show full authority from the sovereign legislature.
    The legislature has, in no case, authorized a railroad company to appropriate a public street for its road-way.
    The general railroad law does, indeed, authorize the crossing of streets. — 1 Gomp. Lates, 1972, Subdiv. 5 of 1961.

    But this gives no color to the claim to appropriate a highway for the line of road. — State v. Warren, 29 W. J. 858

    Nor can any such power be derived from the power given the common council to determine the route and grade.
    This gives the city no power to devote any land for that purpose. It may fix any lawful line; and no line can be lawful, the right to use which cannot in some way be lawfully acquired. After the line is fixed, the power to take and occupy the situs must be sought ele where.
    The very terms of the act show that it is only land held by the ordinary tenure as private property that can be acquired by a railroad company for its uses. — 1 Gomp. L. 1961, 1962, 1968.

    No property held for public uses can, by the railroad law, be either bought or condemned.
    Nor does the broad power ■ conferred on municipal corporations, to regulate and control public streets, give any power to authorize them to be appropriated to any but common public uses. — Davis v. Mayor, 14 N. Y. 517; People v. Kerr, 27 Id. 198-9; Laclclandv. N. Mo. R. R. Go. 81 Mis. 180; People v. M. Y. & N. H. R. R. Go. 45 Barb. 88.

    And, without express legislative authority, municipalities can make no ordinance, nor do any act, which restrains or surrenders such control. — E. Hartford v. B. Hartf. Bridge Go. 10 How. 584; MiTbau v. Sharp, 27 H. Y. 621-2.

    On this point I say, finally, that not only is there no authority in terms from the legislature .to take streets for railway tracks, but the claim is in conflict with the express provisions of the act. See the provisions for fencing. — 1 Gomp. Laws, 1987.

    This contemplates what is now recognized by all courts, that the use of a track for a steam railway is, from its very nature, an exclusive use.
    This company therefore had made no lawful location of their route through the city of Grand Eapids, and they were not entitled to an order for, commissioners.
    4. The jurors were drawn, not in presence of the court, or of the judge holding the court. They were drawn out of court, by persons not authorized by statute, and therefore the act was wholly unofficial. — Laws 1864, p• 18.

    5. The jurors were not from the vicinity, as required by the constitution. — Art. 18, Sec. 2.

    Not one drawn was from the city of Grand Eapids. Only two or three were even from adjacent ■ towns. Most of them were from remote towns in the county.
   Campbell J.

The appellant is owner of certain lands in and near Grand Eapids, and appeals from proceedings to condemn certain portions of them for the use of the Grand Eapids and Indiana Eailroad. Several objections are made to the regularity of the proceedings, whicli will be noticed, so far as may be necessary.

The first and preliminary objection rests on the alleged failure of the petitioners to file in the county registry, the map and survey required by law to be left there before any proceedings can bo had to take lands.

Section 19 of tbe general railroad law, as amended in 1859, (L. 1859, p. 559, 560,) requires the petition for an appraisal to declare among other things, “that the company have surveyed the route of its proposed road in said county, and made a map and survey thereof, by which said route is designated, and that they have located their said road according to such survey, and filed a certificate thereof, signed by a majority of the directors of said company in the register’s office of said county.”

The case shows that a map was filed in the register’s office, which is claimed to show the location of the road, but no other paper, survey or certificate was left in that office. It is claimed, however, that the map is sufficient, and that the term “ survey ” does not apply to anything but the work on the ground, of which the map is assumed to be the only record contemplated by the statute.'

We understand by the term “map and survey,” not only a delineation upon paper or other material, giving a general, or approximate idea of the situation of the road, but also such full and accurate notes and data as are necessary to furnish complete means for identifying and ascertaining the precise position of every part of the line with courses and distances throughout, so that there can be no doubt as to- where any portion of it is to be found. A map can. be made to contain all of these data, so as to need no reference to field notes, but the informa tion must exist somewhere. The map before us is singularly deficient. It purports to be drawn by a scale; but the lines of the road are not so laid down as to enable any one by the use of instruments to ascertain its location with any degree of accuracy. There is nothing to show its distance from corners, or other boundaries at any part of the line. There are no courses or distances given either on straight lines or on curves — and the lines are very irregular, and by no means parallel throughout — and a map drawn on suoh a scale could not be made accurately enough, by most draughtmen, to dispense with the aid of figures to denote place and distance.

We think that something more was needed under the statute.

It is also claimed, that the jurors were not drawn in the presence of the court as they should, as is alleged, have been drawn under the statute.

It appears that on January 23, 1868, the Circuit Court of Kent county ordered: “That there be drawn from the petit jury box of this county, a jury of twelve freeholders, &c. and that the clerk of this court issue a venire in the usual form, inserting' therein the names so drawn, and requiring such jury to meet at the hour of 2 o’clock in the afternoon of the seventh day of February next,” &c. On the 30th of January, the clerk in his office, and in presence of the sheriff, and of a justice of the peace, drew twelve names, and issued the venire.

Under the original provisions of section 20, of the statute, the clerk was directed to draw the names, but as it was to be done, “thereupon,” that is to say, upon the making of the order, it may be doubted 'whether it was not to be done at once, in presence of the court or judge. But by the law of 1864, p. 14, the language is changed, and it is provided that “thereupon, said court or judge shall make an order for the drawing of such jury from the petit jury bQX of" the county, and the said court or judge shall cause to be drawn twelve names from such box accordingly, .and shall issue a venire in the usual form,” &c. The statute contemplates that these things shall be done in the presence of the court, and at the time of making the order, so that everything may be consecutive, and may be done under judicial supervision. The counsel •for the railroad had overlooked the amendment of 1864, which made clear what may perhaps have been more doubtful before. The jury was not legally drawn.

The objection that the jurors were not of the vicinage but from distant towns is not tenable. When jurors are drawn from the jury box, the vicinage means the county No less range would make the drawing conform toother proceedings.

A peremptory challenge was allowed against a juror summoned as one of the talesmen, and he was set aside. This was erroneous. The only provision under our law' allowing peremptory challenges in matters not criminal is found m the chapter of the compiled laws relating to the “Trial of Issues of Fact,” and allows a challenge of two jurors in “civil cases” as well as in prosecutions. This does not apply to special proceedings not in the ordinary course of law, and which are regulated entirely by particular statute. Challenges for cause are necessary in all inquiries by jury, but peremptory challenges in other than criminal proceedings are confined to cases where the statutes have directly provided for them. In the recent case of Livermore vs. Hamilton, in the New York Court of Appeals (reported in New York Times of May 10) it was held, affirming the decision of the Supreme Court, that it was error to allow a peremptory challenge in proceedings under the Landlord and Tenant law, as such proceedings were not properly civil actions. These appraisals bear no resemblance to ordinary legal trials.

These points are all that we deem it necessary to decide in view of the position of the proceedings.

As the objections to the proceedings go to the original jurisdiction, and show that there was no right to make the application at all, our order must be simply to set aside the entire proceedings, so far as they affect the appellant, with costs. The statute provides for new proceedings where the title attempted to be acquired by the first appraisal is found defective. — (§ 1,970 C. L.)

The other Justices concurred.


author: Graves J.

text:
    The People v. the Regents of the University.

      Legislative interf&'ence with University: ValidityHomoeopathic professorship: Constitutional law. A law passed in 1855, (L. 1855¡ p. 232) assumed to limit the power of the regents to regulate and manage the university, by enacting tbe following proviso: “Provided, that there shall always be at least one professor of homoeopathy in the department of medicine.”
    Application having been made for a mandamus to compel the appointment of such a professor, the writ was not granted: the court being equally divided upon the question whether the legislature had power under the constiution to exercise any such control over the regents, who are vested with ‘c the general supervision of the university, and the direction and control of all expenditures from the university interest fund.”— Const. Art. 13, § 8.

      Heard January 5.

      Decided May 13.

    Motion for mandamus against the Regents of the University of Michigan.
    The petition set forth that the present constitution of said state, by Article XIII, section 6, constitutes the Regents of the University of the State of Michigan, the Board of Regents of the University of Michigan; and by section 7 of the same Article, constitutes them a body corporate, known by the name and title of the Regents of the University of Michigan.
    That the Legislature of said State, after the adoption of the constitution aforesaid, by section 5, entitled, An Act to provide for the government of the State University, and to repeal chapter 57 of the revised statutes of eighteen hundred and forty-six, approved April eighth, eighteen hundred and fifty-one, ordained as follows, viz: The Regents (meaning the Regents of said University,) shall have power to enact ordinances, by-laws and regulations for the government of the University, to elect a President, to fix, increase and reduce the regular number of professors and tutors, and to appoint the same, and to determine the amount of their salaries.
    That said Legislature still subsequently, by an act entitled An Act to amend an act, entitled “ An Act to provide for the government of the State University, and to repeal chapter fifty-seven of the revised statutes of eighteen hundred and forty-six, approved April eighth, eighteen hundred and fifty-one,” (which said act was approved February twelfth, eighteen hundred and fifty-five,) amended said section five, by adding thereto the following words, viz: “provided that there shall always be at least one professor of homeopathy in the department of medicine.”
    That although the enactment above referred to is imperative upon the said Regents of the University of Michigan, to appoint such Professor of Homeopathy in said depart- ' ment of medicine, at least within a reasonable time after the passage of said last act; and although nearly thirteen years have elapsed since the approval of said act; and although there was not at the time of such approval, and has never been since, any Professor of Homeopathy in said department of medicine; and although the said regents as a board or corporation, have often been petitioned and asked by citizens and residents of this state, as petitioner is informed and believes, to make the appointment of such professor, and thus carry into effect said law, yet the said board, or corporation of regents, have hitherto wholly neglected and refused and still do neglect and refuse, to make such appointment, in direct violation of said act, and of duty imposed upon them thereby; and have never, at any time, since the passage of said act, and the time it became operative, made any appointment of a professor of homeopathy in the department of medicine in said University, and as your petitioner is informed and believes are taking no steps to carry out and accomplish the true intent and meaning of said act.”

      The petition then concludes with the usual prayer for a mandamus.

    The answer of the respondents, sets forth that by the provisions of the Constitution of the State of Michigan, they have the general supervision of the University of said State, and the direction and control of all expenditures from the said University interest fund;' that the salaries of all professors in said University are payable wholly from said University interest fund; and these defendants claim and insist that it is their right, and their duty to determine what professors shall be appointed in said institution of learning; when the same shall be appointed, the amount of their respective salaries, and the' several times when the same shall become due and payable. And they further insist that the provision of said act of the legislature of the State of Michigan referred to in said petition, which was approved February 12, 1855, and which provides, “that there shall always be, at least one professor of homeopathy in the department of medicine,” does not make it imperative upon these defendants that they should appoint such professor at any particular time, or that. they should pay any appointee to such professorship out of the said University interest fund; and that a decision making such appointment mandatory upon these defendants would be in conflict with section eight of article thirteen, of the constitution of the State.
    That the Medical Department of the University is located at Ann Arbor, in said State, and that it numbers between three hundred and four hundred medical students, and is at present, and for several years past has been in a very flourishing condition; that these defendants have earnestly sought to act for the best interest of said department, and for the continued and lasting prosperity of said University in all its various departments; that a very careful consideration of the question as to the wisdom of appointing such a professor of homeopathy, to be an instructor in the medical department at Ann Arbor, has fully convinced these defendants that such an appointment would be greatly prejudicial to the best interests of said University: that it would engender discord and strife therein, and drive therefrom nearly all medical professors and students now therein; and they admit, therefore, that they have neglected and refused to make such appointment, under the belief that they had a clear and legal right so to do.
    That they are desirous of carrying out the expressed wishes of said legislatme, so far as they .can do so with safety to the best interests of the University under their charge, even though the said act of the legislature be not binding upon these defendants, and to that end and purpose they have proposed to establish a medical department of said University at some other place than Ann Arbor, in which the principles and practice of homeopathy shall be taught; and they are ready and desirous to establish such department, and to appoint one or more professors therein, as soon as they shall have the power and authority so to do, and the financial condition of said University shall warrant the additional expense, which shall thereby be incurred.
    That they have at the present time no funds in the treasury of said University, unappropriated, out of which the salary of a professor of homeopathy in the medical department thereof, could be paid; and they further say, that the present income of said University is all absorbed in the payment of the salaries of professors already legally appointed, and the incidental expenses necessarily incurred in carrying on the several departments thereof.”

      Dwight May, Attorney General, furnished no printed brief.

      D. Darwin Hughes, for relator.
    The motion is for a mandamus, to compel the regents to appoint a professor of homeopathy in the department Of medicine of the University, in pursuance of the act of the legislature of February 12, 1855. — Comp. L. 2,187.

    1. It is a fundamental rule of constitutional law that an act of the legislature, not prohibited by express words, or by necessary implication, cannot be declared void, as a violation of the constitution, and in cases of doubt, every possible presumption not clearly inconsistent with the language, and the subject matter is to be made in favor of' the constitutionality of state legislation.- — Sears v. Cottrell, 5 Mich. 251; Twitched v. Blodgett, 18 Mich. 162.

    If the law and the constitution can in any reasonable manner be reconciled with each other, then the law must stand.
    There is abundant reason and judicial authority to show that there is at least great doubt whether the power of the legislature to make this law has been taken away by the constitution. — People v. The Regents, 1¡. Mich. 105.

    2. There is nothing in the constitution, taken according to its plain and obvious meaning, which invalidates this law.
    That instrument recognized and affirmed certain powers which had been conferred upon the regents by the legislature, and, among other things, provided that the regents should have the “general supervision of the University, and the direction and control of its expenditures from the interest fund.” — Const. Art. 18, § 8. -,
    Supervision is the act of overseeing; inspection, superintendence. — Webster’s Dictionary.

    Control, is power, authority, government and command. — II.

    It is apparent enough that the two words, as used in this section, mean the same thing, and that the regents are given the same power over the University itself as they are over the disbursement of its funds.
    The word “control” when applied to the expenditure, cannot be construed as placing the University fund at the absolute disposal of tbe regents, independent of the legislature.
    The sense in which the Constitutional Convention used the word “ supervision ” is clearly shown by the first section of the article on education, where it provides that “The Superintendent of public Instruction shall have the general supervision of public instruction, and his duties shall be prescribed by law. ” Here the same words are used, giving power to the Superintendent of Public Instruction over the whole system of State instruction, of which the University is a part, which are used in giving power to the regents of the University, and if the argument is good, that these words make the regents independent of the legislature, then it logically follows that they, to the same 'extent, and in the same manner, place the regents under the absolute control and dispensing power of the superintendent, a state of things that will scarcely be conceded by any one.
    The first section, while it gives to the superintendent the general supervision of public instruction, also provides that his duties should be prescribed by law, showing clearly that within the meaning of the convention a “general supervision” is not inconsistent with absolute control in the legislature, and that such supervision should be in all respects under .the direction and control of the legislature.
    3. Such a construction as is contended for by the regents, brings the constitution in conflict with the declaration of the trust under which the University lands were granted to the State, Avhile it should be so construed as to harmonize with and carry into effect that grant. It is manifest that the Constitutional Convention should be understood as speaking in accordance with the terms of such grant, and the constitution should be construed as violating its terms or spirit if it can in any Avay be avoided.
    The first reservation of lands for a fund for this University was in 1804. — 2 U. S. Stat. ¶. 277.

      It was made final in 1826, — 4 Id. 180.

    In 1836, Congress, by an ordinance, proposed to cede tbe lands to the State as follows:
    “1. Section sixteen in every township for the use of schools.”
    This language is general, and contains no provision as to the manner of expending the money, except that it shall be for schools.
    2. “ That the 72 sections of land set apart and reserved for the support of a University are hereby granted and conveyed to the state, to be appropriated solely to the use and support of such University, in such manner as the legislature may prescribe.” — 1 Gomp. Laws, p. 88.

    The proposition contained in this ordinance was accepted by the State of Michigan. — Id. p. 4%-

    And thereupon the state was admitted into the Union. 1 Comp. Laws, p. 43.

    By the express terms of this grant, the appropriation of these lands to the purpose of the University for its support, was to be made in such manner' as the legislature may prescribe.
    This is no naked power which exhausted itself upon its execution by an appropriation or disposition of the lands, but it is a trust, which must last forever, and the application and appropriation of the fund must forever remain with the legislature, and be subject to its disposition; and the words “direction and control” in the constitution as applicable to the “expenditures” of the-interest fund arising from these lands must be construed by every rule of good faith, and every principle of'honesty and fair dealing, as a “ direction and control,” to be provided by act of the legislature which is the law to the regents, as it is the law of the land.
    Under the plain terms of this grant then the funds of the University are placed in the hands of the legislature as the hand and instrument of the state which is the trustee.-
    By what authority then is it claimed that the legislature has been deprived of this trust, and the regents have become vested with its powers.
    The answer and the only answer is, by one party to the compact creating the trust; by the trustee itself, of its own will, its own volition, upon its own motion, without the concurrence or consent of the source from which the trust flowed.
    Such a divesting of a trustee of the powers and duties of an express trust is inconsistent with every principle of fair dealing,' and is repugnant to the elementary rules and principles of the law of trusts.
    By the acceptance of the proposition contained in this ordinance the state is bound by solemn compact and treaty to maintain the university by the hand and strength, the the power of the legislative department of the state government; and in the light of this ordinance, and so as to accord with and carry out its terms and its meaning, must every provision of the constitution and every section of the laws, of the legislature be construed.
    The construction for which we contend pursues and is consonant with the terms of the grant.
    The constitution provides that the superintendent of public instruction shall have the “general supervision of public instruction.”

      That the regents shall have the general supervision of the university, and the direction and control of its expenditures of the interest fund.
    In the nature of things the legislature must perform its duties and execute its powers through some agents, and these agents must have supervision, direction, and control, but not such as places them above or out from under the power of the legislature.
    They have created the office of superintendent of public instruction to supervise the whole system of education, and to him must the regents, as well as the primary school officers, report. Under this general supervision of the superintendent are placed the regents, and they have supervision of the university as he has of the whole system, and also under him are placed the primary school officers to supervise that branch of the grant applying to their schools.
    The respective duties and powers-of all these officers are to be fixed by the legislature except that the constitution has provided that there shall be a board of regents through whom, for the purpose of electing a president of the university and expending the interest fund, the legislature shall act, and even those provisions are of doubtful validity for want of form in the convention to make them and preserve good faith in the execution of this grant.
    4. The construction for which we contend has always been held by the legislature, and undér such peculiar circumstances as to give it great weight.
    The present constitution was adopted at the general election of 1850. The old constitution was silent as to the university.
    The legislature of 1851 assembled almost immediately after the labors of the convention were concluded, and the constitution was adopted by the people.
    . It was composed largely of the members of the constitutional convention, having at least ten or .twelve members who had belonged to that body, and at least two who have been promoted to the bench of the Supreme Court.
    That body passed a law to carry into effect the provisions of the constitution upon this subject and for the reorganization and government of the university under that instrument.
    This law proceeded to designate the title and declare the objects of the university.

      Declared it to be under the government of the regents, and that the regents were the corporation.
    So far the law but in effect recites the constitution, and having plainly and carefully rehearsed its provisions it proceeds to declare, define and fix the power of the regents, and provide for the government of the university. — Laws of 1851, p. W5.

    This law in the plainest terms declares the construction of the constitution for which’ I contend.
    It is still in force and has for eighteen years been acted upon as the charter and fundamental law of the university. — 1 Comp. Laws p. 711.

    In 1855 the Legislature again declared this construction by the passage of the act now in question, and in 1859 they recognized the law of 1851 as binding and of full force by amending its provisions so as to modify the report of the regents to the superintendent, by omitting the journal of their proceedings. — Laius 1859 p. 768.

    And again in 1867 by cutting off certain supplies to the university until the act 'of 1855 shall be carried into effect.
    5. The regents themselves have given to the constitution the construction for which I contend.
    They are to-day acting and carrying on the government of the university under the law of 1851.
    They have by. solemn resolution yielded their obedience to this law of 1855 and made a pretence of executing it, and have sought the aid of this court for an enforcement of its provisions. — Regents v. Auditor General, 17 Mich. 161.

    6. Public policy and the welfare and prosperity of the University point to this construction.
    To make the Eegents independent of the Legislature is to perpetuate a contest, and lay the foundation for strife and jealousy, of which we have but seen the symptoms, and which can result only in disaster to an institution invaluable to the State, and of which we are already justly proud.

      The legislature has the exclusive control of the funds upon which the University must always depend.
    It controls the sale of the lands and is the taxing power in the State and upon these sources the University must depend for its support. It is fit and proper that the same body which furnishes the fund should have the absolute control of its disbursement, and to so divide it, that the Legislature shall have no voice in its expenditure, is to weaken the interest1 of the people in the institution and to introduce an element of disaster.
    7. The public good requires the. enforcement of this law.
    The policy which excludes the Homeopathic system of medicine from the University is bigoted and narrow minded.
    The system has risen to the dignity of a school which entitles it to respect and to careful attention and study. And it has come to be a main branch of the science of medicine, and as such should have a place in every leading university in the country, and especially in ours. •

      G. I. Walker, for respondents.
    The principal question involved in this case is; Has the Legislature the right under the Constitution, to require the Board of Regents to appoint a Professor of Homeopathy, as they have attempted to do by the act of 1855 F
    The University, as now organized was established under the act of March 18th, 1837, which act was re-enacted by the Revised Statutes of 1838 — 1846.—Rev. Statues, 1837 p 284 •' Rvo. Statutes, 1846, p. 216.

    Under this act the Legislature undertook to prescribe the number and kinds of professorships in the University, and to prohibit the establishment of any others except by Legislative consent. — § 8 of those acts.

      These acts continued in force until the adoption of the Constitution of 1851.
    The Convention that formed that Constitution exhibited, both in their debates and their work, a great distrust of the Legislative power. This is very manifest, in their restrictions upon legislative authority, both trivial and important.
    Indeed, this distrust is the most notable characteristic of that Constitution framed by them.
    This distrust was especially shown by their action upon the subject of education.
    . It is very evident that the Constitutional Convention of 1850 intended to place the entire power over the University in the hands of the Regents, who were elected by, and accountable to the people, and who as much represent the people as the Legislature themselves.
    The evil sought to be avoided was the interference with the internal affairs of this great educational institution by. a changing body not familiar with its condition or wants — Convention Debates pp. 187, 782-4, 802-4•

    This intent, may be clearly inferred from the general character of the Constitution; in its restriction of legislative power, and from the action of the Convention in relation to this very subject already referred to.
    But this is also very clear from the language of the Constitution itself.
    “The Board of Regents shall have the general supervision of the University, and the direction and control of all expenditures from the University Interest Fund.” — § 8, Art. XIII.

    They are to have not only the general supervision, but the exclusive direction and control of all expenditures, for there is no such thing as direction and control without its being exclusive.

    The Legislature of 1851 gave a fair interpretation to this Artiele in Section 5 of the act passed relating to the University, and this interpretation was subsequently adopted by the Supreme Court. — Session Laws, 1851, p. 205-6: The People, etc., vs. The Regents, 1± Mich., 78.

    “The Regents shall have power to enact ordinances, bylaws and regulations for the government of the University; to elect a President, to fix, increase and reduce the regular number of professors and tutors, and to appoint the same; and to determine the amount of their salaries. — Session Laws, 1851, p. 205-6.

    This supervision, this exclusive direction and control of expenditure, involves, as a necessary incident, and by the clearest implication, this power “ to fix, increase and reduce the regular number of professors,” and to determine the amount of their salaries.”
    As to this doctrine of implied powers, see Cooley Const. Lim. 63-L

    The amendment to this act of 1851, under which the relators claim that the Board of Regents are bound to appoint a Professor of Homeopathy, is, we insist, clearly unconstitutional, as an attempt upon the part of the Legislature to exercise the power exclusively conferred upon the Regents. — 1 Comp. Laws, 2187.

    If the Legislature can require the appointment of one professor, they can of another or any number of others. And if they can say what professorships shall exist, they can say what shall not, and who shall fill Professors’ Chairs. And if they can regulate the internal affairs of the University in this regard, they can as to all others, and thus the supervision, direction and control provided for by the Constitution in the Board of Regents is at an end.
    Professors are not expected to serve without salaries, and if the Legislature can regulate the number and kinds of professors, they can indirectly direct and control as to expenditures.
    Either the Legislature has no power of this sort, or that power lias no practical limit, and the old state of things is restored. The legislature is supreme, and the Eegents are their servants, bound to carry out their edicts, instead of being the representatives and servants of the people who elected them.
    We insist that they have no such power under the Constitution.
    The question is one of vital moment to the interests of the University, and we ask for it that careful consideration which its importance demands.
    This tendency to legislative usurpation, foreseen and foretold by the fathers, and so natural and inevitable in a system like ours, needs to be held in check by constitutional provisions, interpreted and enforced by the judicial department of the government — a department coordinate with, but not subordinate to, the Legislature; a department that as truly represents the sovereignty of the people as any other in the government. — Federalist, No. XL VII: Id. No. LXX.

   Graves J.

The Attorney General having applied for a mandamus to require the regents to appoint a professor of Homeopathy in the department of medicine in the University, pursuant to section 2,187 of the compiled laws, and the usual order for showing cause against the motion having been made, the Eegents at the last January term made answer to the order, and alleged for cause against the application, that the part of the section referred to which provided there should always be at least one professor of Homeopathy in the department of medicine, was repugnant to the provisions of Article 13 of the Constitution, which confers upon the Eegents the power of general supervision of the University. The question thus presented was ably argued by counsel, and we have considered it with an' earnest desire to reach a' decisive result. But in this we are disappointed by an equal division of opinion among the members of the court. As this circumstance would deprive our opinion of all force as judicial authority, we do not deem it expedient to superadd our reasonings to the elaborate arguments from the bar. It is seen that since the application cannot obtain the sanction of a majority of the court the motion must fail.

The other Justices concurred.


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    The People ex. rel. First National Bank v. Wayne Circuit Judge.

      Circuit Judge: Paver over a Referee's Report: Rfew trial: A Circuit Judge has no power to order a new trial — on the ground that a referee’s report is against the weight of evidence.

      Heard and Decided May 13.

    Application for writ of mandamus, to compel the respondent to vacate an order setting aside the report of a referee, and to enter judgment on the report.
    The petition set forth, that on the 6th day of December, 1865, the First National Bank of Detroit, commenced suit against George Blumburg, in tbe Circuit Court for the county of Wayne, in an action of assumpsit; that the general issue being pleaded, the cause was referred to a referee for trial, by stipulation of the attorneys, on the 1st of February, 1867; that on the 19th day of .November, 1868, the referee filed his report, in which he found in favor of the plaintiff; that no exceptions were filed on behalf of the defendant, to the report of the referee, but a motion for a new trial was entered in the special motion book on the grounds: 1st. That the facts in the cause were intricate, and the matters involved in the issue in such doubt and obscurity, is as to require a re-examination. 2d. That the finding of facts by the referee, was against the weight of evidence — and 3d. That the report of the referee was contrary to the evidence.
    That this motion was subsequently argued before the Hon. Jared Patchin, Judge of the said Court, who gave his decision in favor of the motion, and caused an order to be entered, setting aside the report of the referee, and granting a new trial.
    The answer of the Circuit Judge admitted the matters stated in the petition to be true, and set forth the following additional facts.
    That on the argument of said motion, the testimony taken before the referee in the cause was produced, read and commented on by the respective counsel without objection, and as was then stated by agreement between them; and that he believed himself to have been possessed at the hearing of said motion of a full and compílete knowledge of all the testimony taken before the referee.
    That it appieared that said cause was piending before the referee some eighteen months, and that nearly that time elapsed between the taking of tlie first testimony and the filing of the referee's report.
    That no question ivas raised on the argument of the motion, as to its regularity or the manner of getting the testimony before him.
    And that after examination of the testimony, it was the opinion of the circuit judge, that the conclusions of fact found by the referee in his report, “ were not only not sustained, but were dispiroved by the evidence.”

      A. Pond & O. I. Walker, for relator.

      P. W. Meddaugh, for respondent..
    It is a general pirinciple well settled, that mandamus
      will not lie to compel an inferior judicial tribunal to reverse its decision, or to decide any matter entertainable by it in a particular way.
    The proper province of the writ in such ease is simply to set the court in motion. — 18 Wend. 76; opinion of Tracy, and the cases there cited. — 21 Wend. 20j 20 Id. 658; 20, Pick. 484; Hx-parte Hoyt, 18 Peters, 279 ; 19 Wend. 68; Fish v. Weatherway; 2 Johns. Oases 215 ; Note B. as to mandamus and its uses.

    But when the court has no legal power to grant a new' trial, but assumes to do so, mandamus will lie to compel entry of judgment. — 1 Johns, cases 180; note a.

    So where the court permitted an amendment of that which was not amendable, it was held that mandamus was the proper remedy. — 18 Wend. 675.

    This court seems to have recognized this writ as affording the proper remedy when the circuit court has exceeded its legal authority, as for instance, in permitting amendment of a declaration, so as to change the form of action.— People v. Jiidge of Wayne county, 18 Mich. 266; People v. Judge of Wayne county, 1 Mich. 359; People v. Judge of Washtenaw, 1 Doug. 434-

    1. The court cannot by mandamus compel the circuit court to review its decision and reverse it; provided, the circuit court had jurisdiction of the matter of a new trial in this case.

      a. The case made by the relator by implication concedes the order of the court to have been proper — that there was a. sufficient showing to authorize a new trial’ if the court had authority to entertain the motion.
    The affidavit does not attempt to make out a case of abuse of the discretion, if the judge possesses it.

      2. The motion to set aside the report of the referee, was properly cognizable by the court; and the power to set aside the report, and award a new trial, is possessed by it.

      1st. The cause is commenced in the circuit court, and goes to issue there.
    It does not leave the court,,, nor is it at any time beyond the control of the court. The referee has a particular duty in the case to perform, and finally the court enters judgment.
    2d. When the report is filed, it stands like the “finding of the court in term time.” — Laws of I84.I, § 6i

    3d. Unless the court possesses this control over the report, great abuses may result.

      a. The referee may find a state, of facts against which the weight of testimony is overwhelming.

      b. He may report a state of facts, which there is no testimony to establish.
    The remedy for this is not to be found in sec. 8.
    The Act of 1861, makes no change in the law as it stood prior to this, which has any significance in connection with this question.
    No weight against our view is derivable from the fact, that the provision in the former, authorizing the court to require the referee to return the testimony, is here omitted.
    This provision conferred no power upon the court, which it did not possess without it, ’and might therefore well be omitted. — Fleter v. Heath, 11 Wend. 484.

    Nor does it make against our claim of the right of the court to set aside the report for the same reasons as. the verdict of a jury, that the statute provides a mode of relief against certain errors of the referee. °
    The only errors of the referee, which the statute indicates the remedy for, are those of law. — Laws of 1861 §§ 7 and 8.

    Without these provisions, there might be some diffitulty in determining how these matters should be brought to the knowledge of the court.

      As to errors of fact, .however, the mode of relief is suggested at once by the provision that the report “ shall stand as the finding of the judge in term time.”
    It is very.clear from the several provisions of this law, prescribing the mode for relief against the errors of the referee, that it was not the intention to leave parties to suits referred remediless, as in the case of arbitration.
    The court may compel the referee to return the evidence (as .we have heretofore indicated,) and may thus be possessed of tthe same means for hearing a motion for a new trial, as when the case is tried by jury in open court,
    The view taken of the statute by the relator, if it prevails in this court, will render the statute, valueless. No one will dare refer a case.
    On the other hand, why should not the court have control as over the verdict of a jury ?
    The tendency of recent legislation in our state seems to be towards clothing juries with absolute and irresponsible power over the facts of a case.
    Unless the courts will come to the rescue, trials will be a farce upon justice.
    4. As to this question, our statute does not differ from the early statute of New York. — 2 Rev. St. of N. Y. p. 806, 848.

    Held in New York under this statute, that the court might set aside the report' of the referee for the same causes as the verdict of a jury. — Fleter v. Heath, 11 Wencl. 477; 18 Wend. 675; 19 Id. 68; Roberts v. Carter, 28 Barb. 44%— 5 Call. 90.

    So held in Rhode Island, that the court might grant a new trial upon report of a referee. — 6 R. I. 251; and New Jersey, 5 Butch. 160.

    If the court does not possess authority to review and set aside the report of the referee for a finding without evidence or against it; then the act is unconstitutional.

      a. Because it vests judicial power in the referee. He may pass upon questions of law, viz:
    That certain testimony establishes a state of facts which, as matter of law, it has no tendency to establish — and his judgment is final. See Underwood v. McDuffer, 15 Mich. 861; Chandler v. Nash, 5 Mich. Ifi9.

    This law points out no remedy' for such an error, and for the court to afford it by construction, is to do just what we ask them to do for the other errors of the referee.
   Campbell J.

The only question before us on this application is, whether the circuit court can set aside a referee's report, as against the weight of evidence, and order a new trial.

We have had the subject of references, and their incidents before us several times, and have had our attention turned to questions not entirely foreign to this inquiry. But we have not heretofore felt called upon to consider the point now discussed, which is one of great practical importance.

We regard the judicial power vested in the circuit courts, by the constitution, as one which cannot be reduced or divested to any extent which would impair their general authority over proceedings pending before them. And it cannot be doubted that a power to grant new trials, is one not depending upon statutes in this state, but recognized as existing, and subject only to such regulation as would be proper in regard to all legal proceedings under the general provisions intended to produce system and efficiency. In looking at any statute which would seem to infringe any of their substantial powers, we are bound, therefore, to give no further effect to such reduction than is reasonably required to be done.

The fact that references are not compulsory, does not prevent them from being considered as a method of trial anthorized by law, and not to be treated with any disfavor. And when a party elects to adopt this form of trial, we cannot consider him as compelled to waive thereby any rights which are consistent with a resort to it. Where a reference is compulsory no question of waiver arises, and no right is lost which the law ever vested in him. But where it is not compulsory, he waives just so much of his rights as cannot be made consistent with the practice he has chosen.

It is not easy to see how by resorting to a reference, a person must necessarily lose any of the grounds for a new trial, which can be retained without inconvenience.

The discovery of new evidence, fraud, misconduct, and other causes independent of the method of trial, would not be any more difficult to consider in one case than in another. But the granting of new trials because a finding is against the weight of evidence, involves, as usually considered, a knowledge of the character and incidents of testimony, only possessed by the judge who hears a cause. Where an issue is sent down from this court for trial, it is not customary to set aside a verdict as against the weight of evidence, if satisfactory to the circuit judge; and such has always been the practice in courts sitting in bank, who are called upon to decide such cases heard before a single judge. Although, there is an abstract power to do otherwise, the case must be an extreme one which would justify a departure from the rule.

A referee is not a judge, and does not act judicially in the strict sense of the term. But the difficulty does not arise from the judicial character of the presiding officer, but from the fact that no testimony can appear to those who did not hear it, precisely as it does to those who hear it. And while cases may often exist where the difference would not be serious, yet the rule must in general be otherwise; and there is always a presumption that evidence has been properly considered. The referee-law provides no method, for preserving testimony. In case a party insists, before a referee, that there is no evidence tending to maintain a case, undoubtedly he raises a question of law, which will enable him to require a report showing what the testimony was, and this would be done by exception. But this does not require that minute and absolutely perfect reproduction of it which would be necessary to put the court in as good a position .as the referee, to appreciate it. And this cannot be compelled, or attained under the law.

We feel that there may be many cases where the existence of such a power as was exercised m this case would prevent injustice; but we think the law is not so framed as to provide any adequate means for its exercise. And we are compelled to hold that by electing to refer, the party loses his right to complain that the finding of the referee is against the weight of evidence.

The mandamus must be granted; but as the point is new, and one which it was desirable to have settled, we do not feel disposed to impose costs.

The other Justices concurred.


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    Tunis Ryerson et al. v. Samuel D. Eldred et al.

      Bill of review: Decree, mode of entering: Laches. The Circuit Court cannot allow a bill of review upon a decree made by this court on appeal. If allowable at all. it must be upon leave granted here.
    No review can be had of any decree of this court upon the record as it stands. If there can be any opening of a case decided on appeal, it must be for matters of fact newly discovered, and where there has been no laches.
    Decrees of this court are made complete by entry on the journal. No separate signing or enrollment is needed.

      /Sheriff's execution-deed: Altenng deei'ee: Dents of execution-debioi'. When a sheriff’s execution deed, under a judgment at law, is made after a decree of this court, it is no ground for altering a provision in such decree requiring tenants to account for rents to the execution-debtor.

      Heard and Decided May 11.

      This case was decided at the January term of 1869, and is reported ante p. IS.

    An application was now made for a re-hearing or such other relief as might be proper upon a showing substantially as follows:
    It is claimed that by the decree possession is given of a larger tract than was covered by the contract under which the rights of Samuel D. Eldred accrued. Copies of the various papers were set out, but as the court did not discover any misdescription, it will not be necessary to .recite them.
    The affidavits set out also that Samuel D. Eldred’s interest was sold on execution in December, 1864, and that a sheriff’s deed was made to one Bunker in January, 1869, and they claim that the sheriffs vendee, and not Eldred, was entitled to possession.
    They further set forth that the title had, before the assignment to Francis S. Eldred, become vested in all the partners by conveyance from Samuel D. Eldred to Eben Smith, and from Smith to them, and that it had been agreed before the hearing that'these papers might be read, and that the omission to set them forth in the bill was accidental.
    It was also set forth on belief that the assignee was not aware of the contract held by Samuel D. Eldred from the other partners. It was also claimed that the decree of the Supreme Court was not enrolled and signed by the judges-It also appeared that the Circuit Court had granted leave to file a bill of review, and one had been filed accordingly.

      E. S. Eggleston, in support of the application, cited

      Stafford v. Bryan, S Paige, Oh. B. Jff.

      G. V. A7. Lotlwop, contra, referred to

      Southard v. Bussell, 16 How. B. 5Iff, 670; Prevost v. Gratz, 1 Pet. O. G. B. 879; Daniel v. Mitchell, 1

      Story C. G. R. 200; Dexter v. Arnold, 5 Mason’s R. SOS; BaTcer v. Whiting, 1 Story O. G. R. 230; Mead v. Arms, S Vt. 11¡8; People v. Mayor of N. T. 25 Wend. R. 252.

      D. D. Hughes, in reply.
   Per Curiam.

We can pay no attention to the proceeding in the circuit allowing a bill of review. The 'decree complained of is a decree made by this court sitting as a court of last resort; and if any such bill can be permitted at all, it can only be done by the leave of this court. — Southard v. Russell, 16 How. R. 547; Stafford v. Bryan, 2 Paige, Ch. R. 47.

Nor is there any force in the suggestion that our decree has not been enrolled. Decrees in this court are never made in any other way than by entry on the journals. The decree, therefore, which was sent down to the circuit for execution, was final and complete.

It certainly seems a novel proposition that a re-hearing or review should be granted in this court after judgment actually entered and remitted to the circuit. It' seems to be laid down quite generally that the House of Lords (whose practice we follow principally in appeals), will not review its decisions. — Attorney General v. Ward, 1 Myl. & Cr. 449; Brown v. Aspden, 14 How. R. 25; Mitf. Eq. Pl. 79; People v. Mayor, 25 Wend. R. 252.

And it would be out of the question to have a rehearing in this court on any new facts or case, because we can only review or hear a case on the record as it comes up from the court below. — Sears v. Schwartz, 1 Doug. R. 504.

If there can be any relief it must be by permitting some proceeding to be had below, based upon a showing of some new facts which were not before us. If there is power to grant this relief it can only be for the same reasons which would justify the court below in granting it where there has been no appeal.

It does not appear from the papers now before us that the description of property in the decree is erroneous. We cannot discover any mistake from a comparison of the papers before us, and the contract professes to cover all property owned at Muskegon.

Upon the other points no equity whatever has been made out. The condition of the title was directly involved in the suit. It was discovered before the hearing that the deeds now offered were neither alleged nor proved, and after a hearing under such circumstances there could be no propriety in opening the case for that omission. But as the rights of Samuel D. Eldred under his contract, are the same in equity whether those deeds are proven or not, the defect becomes immaterial.

As the knowledge by Francis S. Eldred of the contract was shown by 'proof in the cause, any evidence to rebut it should have been introduced before hearing. He was a competent witness, and the only one likely to have known that fact, and there can be no possible excuse for not calling him. His affidavit now produced, moreover, does not deny the notice positively, and the proofs are quite as satisfactory to our minds.

It also appears that the execution proceedings were,- or should have been, known before the hearing, as there are proofs in the cause directly referring to them. But these also are immaterial, for until a' deed is obtained from the sheriff no possession can be obtained under ah execution title. ■ This deed was made after our decree, and the account, therefore, includes nothing that could interfere with it. If there should be any equities between Eldred and Bunker, these parties are not concerned with them.

There is no ground for relief shown, and the application must be denied, with costs.