
    The People ex rel. Eli P. Royce v. Daniel Goodwin.
    
      Residence within the circuit not essential to eligibility to office of Circuit Judge. A person is eligible to the office of Circuit Judge who does not reside within the circuit for which he is elected, and may continue to be a non-resident during his official term.
    
      When removal from circuit vacates office of Circuit Judge. It is only when a Judge actually residing in his circuit removes from it that he vacates his office.
    
      
      Determination of Board of Slate Canvassers not subject to judicial inquiry. Where the result of an election is to he found hy the Board of State Canvassers, there can he no judicial inquiry behind their decision. When their determination is contested it can only he inquired into by the Legislature in joint convention.
    
      Heard April 15.
    
    
      Decided April 20.
    
    Information in the ■ nature of a quo warranto% The nature of the case and the facts sufficiently appear in the opinion.
    
      Dioight May, Attorney General, and D. D. Hughes for the relator.
    
      D. B. & II. M. Duffield and G. V. H. Lothrop for the respondent.
   Campbell, Ch. J.

This is a proceeding in the nature of a quo warranto, to determine the right of Hon. Daniel Goodwin to exercise the functions of Circuit Judge of the Eleventh Judicial Circuit. Having pleaded his election, and the determination of the Board of State Canvassers in his favor, the Attorney General replied by several replications, presenting a number of questions supposed to be material. These are demurred to, except one that offered an-issue to the country, on the question whether respondent received the largest number of votes.

The principal question presented is whether the Constitution requires a Circuit Judge to reside in his circuit. The provision relied upon is section 22 of article 6, which declares that “whenever a Judge shall remove beyond the limits of the jurisdiction for which he was elected, or a Justice of the Peace from the township in which he was elected, or, by a change in the boundaries of such township shall be placed without the same, they shall be deemed to have vacated their respective offices.” By section 7 of the same article it is provided that no alteration or increase of circuits shall have the effect to remove a Judge from office.

Section 22 plainly declares -that a Judge who resides in the circuit shall, if he remove from it, vacate his office, but it does not in terms require him to reside within it or prevent the election of one who resides elsewhere, and section 7 contemplates the possibility of legislative action which may put his residence outside of his circuit. The words of the Constitution not expressly requiring residence, it becomes necessary to determine whether such a requirement is to be drawn from the context or from any recognized principles of law or usage.

There are many officers of long standing, in regard to which the necessity of residence arises from the nature of their duties, or from ancient custom' or law. Town officers, and the ministerial officers of counties, have this duty laid upon them, and if the Constitution were silent upon the subject, nothing but legislative interference, and in some cases, possibly, not even that would suffice to dispense with residence. The Constitution says nothing concerning most of these officers, and only provides for a special emergency, as quoted above, concerning Justices. Probate Judges, who are officers of modern origin, and who have no representative, but only judicial, functions, are included in the prohibition of section. 22, and if that implies . the necessity of residence, then no further provision would be necessary to compel it. But by section IS of article 6, it is declared concerning each Judge of Probate that he “ shall be elected by the electors of the county in which he resides.” So by article J, section 5, senators and representatives are required to be “qualified electors in the respective counties and districts which they represent.” At the common law the electors of any precinct might choose their representatives at large. We have here, then, proof that in such cases as were doubtful it was deemed necessary to declare distinctly that incumbents should be residents. There being no such declaration in regard to Circuit Judges, we must find the restriction, if it exists, in the necessary incidents of the office or in some binding usage.

These Judges, when the Constitution was adopted, performed the same functions which had before devolved, under the old Constitution, upon the Judges of the Supreme Court, who were elected or appointed at large. The practical identity of the system was explained in the case of The People ex rel. Whipple v. the Auditor General, 5 Mich, R., 193. Their duties were performed partly in the Circuit Courts, and partly in the Supreme Court, which took them away from their circuits. ' But under section 11 of article 6, they could sit iu any other circuit when requested, and could be required by law to do so. They were not, therefore, like a Probate Judge, confined to locality in performing their duties, neither was their jurisdiction, like his, confined to local interests.

When we consider the nature of their functions, their independence of local affairs becomes still more apparent. Judges differ from all other public servants in having no representative duties. The judicial department of every civilized government is one of the three co-ordinate parts of the sovereignty which acts for the state in expounding the laws and enactments in which the other departments have acted for the people as legislators and the approvers of legislation. It represents only the law by which the people have by their proper agents bound themselves. It cannot, therefore, in any of its duties, be said to serve any county, or circuit, or district. Its services are all performed on behalf of the state, as the sovereignty from which all the law emanates. We held in the case of The People ex rel. Schmittdiel v. The Board of Auditors of Wayne County, 13 Mich. R., 233, that services in the administration of justice were in no proper sense local services. The salaries of all the Judges are payable out of the state treasury, and the only object of having local courts is to bring justice home to the people, but not to have cases decided as the desire of the people might shape the decision. And as any judge may lawfully sit anywhere, there is nothing whatever to make it important that he should reside in one place rather than another. By both the civil law and the English law, no judge was allowed to sit in his own home or county at all, to try criminal or civil cases. It is only during the present century that this restriction has been removed — so jealous was the law of any disturbing local influences which might warp justice. There is nothing, then, in the nature or duties of the office, which could justify us in importing into the Constitution a clause, which, from comparison of various parts of the instrument, may be safely assumed to have been purposely left out. We must, then, as matter of construction, decide that the Constitution does not require residence.

But it is some satisfaction to us, although no authority, to have the assurance, from statements made by the late Chief Justice Whipple during his life, that such a restriction was discussed in committee, and determined to be unwise. He was a very active and prominent member of the Constitutional Convention. It is evident from the clauses relating to Judges of Probate and members of the Legislature, that the necessity of a positive provision to secure the restriction was known to the convention and not overlooked. That is too apparent to escape notice.

Practical construction, which always has its value, is uniform on this question. The present respondent, who was President of that convention, was elected District Judge of the Upper Peninsula as ' soon as the Constitution took effect, and has held, through successive re-elections, either a district or a circuit judgeship for nearly twenty years, being all that time a non-resident. Judge Green was twice in office as Circuit Judge as a non-resident, and acted while residing out of his circuit. The question having been suggested to the other judges, we learn that they concurred in advising him that the Constitution did not contain, any requirement of residence. It is a little singular that the first instance of 'insistence to this construction should be against the only judge in the state who has been in office ever since the Constitution has been in force, and who has never been a resident of his district. If the question were doubtful, we could not ignore these notorious facts which are part of the judicial history of the state. But we do not regard the question as a doubtful one on the language of the Constitution.

We have deemed it. necessary to treat this question under the demurrer as one of substance, without inquiring into the technical accuracy of the pleading, because we have no jurisdiction to inquire beyond it. Counsel on both sides have overlooked the fact that the Constitution does not permit the regularity of elections to the more important public offices to be tried by the courts. It has provided that in all cases, where, by the Constitution or by statute, the result of elections is to be determined by the Board of State Canvassers, there shall be no judicial inquiry beyond their decision. It declares that “when the determination of the Board of State Canvassers is contested, the Legislature, in joint convention, shall decide which person is elected.” — Article 8, § 5.

This provision was doubtless suggested by the serious difficulties which would attend inquiries into contested elections, where the ballots of a great number of election precincts would require to be counted and inspected; and probably, also, to discourage tbe needless litigation of tbe right to the higher public offices at the instance of disappointed candidates where the public interest does not appear to require it. A legislative body can exercise a discretion in such cases, and could not be compelled to enter upon such an inquiry except upon a preliminary showing which the courts are not at liberty to require. The conclusive character given to the certificate of the canvassers is not a novelty. Similar provision has been made elsewhere. See the cases cited in Cooley Const. Lim., 623 et seq.

The result of this exclusion is that all the replications, except that relating to residence, tendered issues which are immaterial, because their determination cannot in any event ohange the canvasser’s certificate, which is, in this controversy, conclusive proof of the respóndent’s title to office. As the replications take no issue upon the existence of their determination, but distinctly admit it, and as there is no material issue of any kind tendered, the respondent is entitled to final judgment on the demurrer. He will be entitled to costs against the relator.

The other Justices concurred.  