
    The People ex rel. Christopher Allen v. The Circuit Judge for Kent County.
    
      Superior Court of Grand Bapids — Jurisdiction of Appeals from Justices.
    
    The circuit courts and courts of justices of the peace are constitutional courts, and the jurisdiction conferred on either hy the constitution is beyond the reach of legislation.
    The Superior Court of Grand Rapids can have no jurisdiction of appeals from justices’ courts, and Acts 49 of 1875 and 147 of 1877 transferring such jurisdiction from the circuit court to it, in certain cases, are so far unconstitutional and void.
    Mandamus to vacate an order dismissing an appeal.
    The facts are shown in the opinion.
    Submitted and decided October 24.
    
      Williams & Harlan for the writ.
    
      H. P. Churchill against.
   Cooley, C. J.

The relator appealed a case from a justice’s court to the circuit court for the county of Kent, and that court has dismissed the appeal on affidavits showing that one of the parties to the case resides within the city of Grand Rapids. The action of the court is based upon the supposition, that by the act creating the Superior Court of Grand Rapids (Laws 1875, p. 42) and the act amendatory thereof (Laws 1877, p. 138), jurisdiction of cases appealed from justices’ courts where one of the parties resides in tbe city of Grand Rapids, is taken from the circuit court and conferred upon the Superior Court.

The act last mentioned in terms purports to transfer this jurisdiction, but it does not in our opinion accomplish it. One difficulty in the case is that the act of 1877 wholly fails to make any provisions by means of which the Superior Court could obtain jurisdiction of appeal cases. All the statutes relating to appeals remain as they were before the act of 1877, and they still provide in terms that appeals shall be taken and returns made to the circuit court. How then shall the Superior Court obtain jurisdiction of these cases? No provision is made by statute for a transfer of them from the circuit to the Superior Court, and it is not claimed here that any authority to order such a transfer can be taken by implication. The circuit court appears to hold that as a necessary effect of the change effected by the statute of 1877, justices from whom are taken appeals, in cases where one of the parties resides in the city of Grand Eapids, are now by implication of law required to make their returns to the Superior Court. But why the implication of law should apply to the action of the justice in making his return to the appeal rather than to that of the circuit court to.effect a transfer afterwards, is not very apparent. Nor could any implication be effectual’ without the assistance of some showing for which no provision of law is made. The jurisdiction is to depend upon the residence of parties. Now, except in some special cases, the residence of the parties would be immaterial to the proceedings before the justice, and would neither be averred nor brought into question there; and if the justice must act with reference to it in making his return, he must in some manner determine the fact, and determine it correctly, or the appeal must be dismissed. It will not be pretended that the justice can judicially take notice of such facts: he could not judicially have any knowledge on the subject except as the facts were made known to him in some legal form. As the validity of the appeal would depend upon the correctness of his conclusion on this question, it would seem to follow that the parties must be entitled to be heard upon it; and thus by implication we have a judicial hearing made necessary for which no provision of law is made. This statement is sufficient to show how utterly the act of 1877 has failed to divest the circuit court of any portion of its appellate jurisdiction. It follows that the right of appeal to the circuit court remains undisturbed.

Under ordinary circumstances we should pause here and leave the important question of constitutional authority untouched; but as the question has been fully presented, and it .seems to us very clear, it is perhaps proper for us to add that we have been unable to understand on what ground it can be claimed that the supervisory authority of the circuit courts over justices’ courts, which is so specifically given by the constitution, can be taken away by legislation. Both these classes of courts are constitutional courts, and so far as any jurisdiction is conferred upon either by the constitution, it is beyond the reach of. the legislative power. In ■several particulars the jurisdiction of each is defined by the constitution, but in respect to none is that instrument more ■specific than in placing the circuit court as an appellate tribunal over the justices’ courts, and in giving it a supervisory control. While it may be and has been claimed that the appellate jurisdiction still remains, though some cases are removed from its scope, there can be no plausible argument, as we think, that the supervisory control is left unimpaired when as to a large class of cases it is wholly superseded, and the control conferred upon another tribunal. Any reasoning that would support such legislation would justify a like apportionment of the probate jurisdiction between the constitutional probate court and the municipal courts of legislative creation.

The writ must issue as prayed.

Graves and Campbell, JJ., concurred.

Marston, J., did not sit in this case.  