Publications
A Brief History of the Michigan Supreme Court
Written by 1999 Coleman Intern Scott A. Noto
Edited by Jill H. Wright and Angela Bergman
A publication of the Michigan Supreme Court Historical Society
© 2001
This is not a complete history of the Michigan Supreme Court. I have chosen to call it a "survey" of Court history because I do not intend to interpret the actions of the Court but simply to present them. Many of the sources I relied on were published works written by reputable historical scholars. I hope that both the casual reader and the serious academic will find this piece useful and that it will enhance their understanding of the Michigan judicial system.
I would like to thank the Michigan Supreme Court Historical Society for giving me the opportunity to undertake this project. It has proven to be both a challenge and a pleasure. In particular, I would like to thank Jill H. Wright for her editorial work and for keeping me on schedule. Thanks also goes to the Board of Directors for their critiques of my manuscript. Most of all, I would like to thank the men and women who both sit and have sat on the Michigan Supreme Court for writing the history that I have merely recorded.
Scott A. Noto, 1999
Foreword
Wallace D. Riley
President, Michigan Supreme Court Historical Society
The following text is the result of the Michigan Supreme Court Historical Society's 1999 Coleman Internship program. The assignment was simply to create an overview of the history of the Michigan Supreme Court that would be easy to read, inexpensive to distribute, and would highlight the major changes in the Court over the years. The manuscript was written by the Society's undergraduate intern, Scott A. Noto, a Grand Rapids native studying U.S. History at the University of Chicago, and was edited by Executive Directors Jill H. Wright and Angela Bergman. Graphics for the manuscript were gathered by Melissa Witcher, the Society's 2001 Coleman Intern.
Any questions concerning the content of this manuscript, the Coleman Internship program, or the Michigan Supreme Court Historical Society can be directed to the office of the Executive Director by calling 517-373-7589.
INTRODUCTION
In his 1887 speech at a celebration of Michigan's semi-centennial, state Supreme Court Justice James V. Campbell noted:
In the old world, and in most parts of the new, the judicial system and the matters with which it dealt will be found to have been naturally developed from a historic past./ But in this state of Michigan…we do not look back to a long historic development.1
As Campbell suggested, the territory that became the state of Michigan differed significantly from others, particularly those on the east coast, whose legal practices and traditions were English in origin and custom. What made Michigan unique, according to Campbell, was the role its geographical setting played in its early settlement. The first explorers to Michigan were French, not English. Struggle over control of the Michigan peninsula characterized the history leading up to its incorporation into the United States. In 1796, Britain ceded the peninsula and what eventually became known as the Northwest Territory to the United States, marking the first time this region had come under the control of the U.S. government.
Michigan became an independent territory in 1805 and 32 years later, after a border conflict was settled with Ohio, achieved full statehood. The transition was by no means smooth; much criticism was raised regarding the laws and procedures established during the territorial period and what role, if any, they would play in the newly established judicial branch of the state government. Many of the attacks were directed at the system, but often they took the form of attacks on the justices of Michigan's Supreme Court.
The new state government inherited much of this criticism from the days of the territory. It can be argued that issues surrounding the judicial branch, and the Supreme Court especially, were some of the most closely scrutinized political issues of the state's early 19th Century history. The majority of these issues arose during the interim between Michigan's first constitutional convention in 1835 and its second in 1850. During this time, several attempts were made to reform the judicial branch. It proved to be a difficult and agonizing process for supporters of judicial reform; not only were they met with political opposition, but they had to work within a legal system that was fundamentally disorganized.
The early history of the Supreme Court of Michigan is one of disorganization and reorganization. As changes were made, the state's highest court gradually, painstakingly, gained the respect that its reformers had always felt it could have. The reorganization of the Court in 1858 was enhanced by four widely-recognized jurists—known collectively as the Big Four—who are often credited with providing the direction and structure recognizable in the Court today. They set the precedent that subsequent jurists followed—not so much in a philosophical or legal sense, but a precedent of honorable authority and recognition of the role the state Supreme Court could play in society. Their vision set the tone for the Court in the 20th Century and is in part responsible for the relative stability that it witnessed.
1805 Map of the Michigan Territory.
(Courtesy of the State of Michigan Archives. )
The cover of the 1805 publication of the Woodward Code.
(Courtesy of the Library of Michigan.)
THE TERRITORIAL SUPREME COURT On July 24, 1805, the first Supreme Court for the new Territory of Michigan was created. Its first justices were Augustus B. Woodward, Frederick Bates, and James Witherell.2 The first session of the territorial Supreme Court was held on July 29 at the house of Detroit resident James May. From July 9 through October 8, 1805, a series of statutes, known as the Woodward Code, were created to serve as the basis of Supreme Court legal procedure in the Michigan Territory.
Complaints about the Code soon began to mount.3 Some issues, such as indefinite tenure, were corrected; in March of 1823, an act was passed that limited the terms of Supreme Court justices to four years. Many of the controversies, however, endured well past 1835, the year that Michigan wrote its first constitution.
THE CONSTITUTION OF 1835
The constitution of 1835 established a peripatetic Supreme Court of three justices. Justices of the Michigan Supreme Court were appointed by the governor, with the consent of the senate, for seven-year terms. One session of the Supreme Court was to be held annually in one of the three judicial circuits: Wayne, Washtenaw, and Kalamazoo. Two justices constituted a quorum. The constitution proposed a state judiciary centered around the Supreme and Circuit Courts. Judges of both the Circuit Courts and the Supreme Court were to be elected by a joint ballot of both houses of the legislature and to be paid annual salaries of no more than $2,000 and $2,100, respectively. The constitution also provided the Supreme Court with both original and appellate jurisdiction in common law and equity cases.4
When the constitution was adopted, few restrictions were placed on the power of the legislative branch. The Supreme Court was, in fact, the only tribunal established by the constitution. All others were provided by statute.
The jurisdiction of the Supreme Court established by the constitution of 1835 was in many ways identical to the jurisdiction of the territorial Supreme Court. This included limited original jurisdiction over actions of right and the extra legal remedies of mandamus, quo warranto, and habeas corpus. The Court was also granted appellate jurisdiction to review Circuit Court decisions by writs of certiorari. One of the primary duties assigned to the justices by the constitution was to preside over the Circuit Courts in each of their representative districts.
In addition, the constitution established a separate Court of Chancery, allowing for appeals from the Court of Chancery to be made to the Supreme Court. One provision that was the source of subsequent ambiguity and eventual revision allowed the equity suits and processes pending in the territorial courts to be transferred to the Court of Chancery. One exception was that those suits in which the chancellor had been counsel or had some other interest were to be adjudicated by the courts in which they had originated, so as long as the Supreme Court possessed original jurisdiction in these cases.5 This provision led to extended litigation in the Supreme Court that did not begin to be resolved until 1850.
On July 4, 1836, the day that the state Supreme Court was to commence operation, all cases and legal processes that had been pending in the Supreme and superior Circuit Courts of the territory were to be transferred to the state Supreme Court. However, it was not until July 18 that the first members of the Court were appointed by Governor Stevens T. Mason. The reasons for this delay are unknown. Supreme Court historian Clark F. Norton indicated that it could have been due to the fact that Michigan had yet to be formally admitted to the Union, and the border dispute with Ohio, which was delaying the admission, was yet to be resolved.6 Nevertheless, on July 18, 1836, the Governor nominated fellow Democratic Party members William A. Fletcher, George Morrell, and Epaphroditus Ransom to be chief and associate justices of the Michigan Supreme Court, respectively. Morrell was assigned to the first Circuit Court, Fletcher to the second, and Ransom to the third. Each appointee was approved by an almost unanimous vote in the Senate.7
The three new justices, in addition to their circuit duties, inherited 103 cases pending review from the territorial courts. According to Norton, the majority of cases that came within the Supreme Court's cognizance before 1839 had not actually originated therein but were brought to the Court under its appellate powers.8 Of these cases, relatively few assumed a great deal of importance. As Norton explains:
…it was not unusual for cases to be reviewed by this process in which no more was at issue than such seemingly inconsequential objects as a sandy hog, an unsound horse, a saddle, a wagon, an ox, a cow, two stacks of hay, thirty dollars worth of beer, a silver watch, two kegs of nails, or a barrel of cucumbers.9
Arguing over a barrel of cucumbers before the highest court in the state of Michigan may seem comical by today's standards, but such a seemingly trivial case tried before the Court is reflective of an overall lack of organization and independent control and an overwhelming workload. As previously mentioned, not only did Supreme Court justices have additional Circuit Court duties to attend to, they also inherited a backlog of pending cases from the territorial courts and cases that had originated in the lower state courts. In 1837, yet another duty was assigned to the Supreme Court justices, acting as ex officio members of the Board of Regents of the new University of Michigan, a duty that quickly became a time-consuming annoyance.10 To complicate matters even further, the territorial government and court system still existed at the time that Michigan's first constitution was established and would continue to do so for several months after.11
According to Norton, the original jurisdiction of the Supreme Court was also limited in a geographical sense. The constitution of 1835 extended Supreme Court jurisdiction only to those cases that might arise within the judicial circuit in which it was then sitting. Thus, a case that originated in the Kalamazoo district could not be heard in the Washtenaw or Wayne districts but could only be heard in Kalamazoo. Because the Detroit area was the most densely populated, and was at that time the "home" of the Supreme Court, the majority of the cases were heard in the Wayne district.
Complaints against the Supreme Court date back as early as 1823. As Michigan began its new period of statehood, complaints against the Court took on an increasingly hostile tone; most were directed at the constitutional provisions of 1835, which established both the structure and jurisdiction of the Michigan Supreme Court. Although the original constitution established the Michigan Supreme Court, it nevertheless limited the Court's independence by placing it under the power of the legislature. In addition to the appointment of Supreme Court justices, this also meant that the jurisdiction, duties, and procedures of the Court were determined and overseen by the legislative branch.
REVISION OF THE WOODWARD CODE
Complaints against the Court soon led to the revision of the original Woodward Code. On March 8, 1836, William A. Fletcher, Circuit Court judge for the Michigan Territory, was commissioned to revise the Code. The revisions were to be presented to the legislature on January 1, 1837, although he asked for, and was granted, two extensions of time (it was during this period that he was appointed chief justice of the Supreme Court). The majority of the Revised Statutes were finally adopted in 1838 and set to take effect on September 1 that same year.
Less than a year later, the state legislature began to revise the Revised Statutes. Dissatisfaction with Fletcher's revisions took the form of a number of revisional acts that were passed by the state legislature between 1839 and 1846. Criticism was not limited to the state legislature. In a letter to William Woodbridge, Justice Charles W. Whipple, who sat with Fletcher on the Supreme Court, recommended that a three-person committee be formed to revise the Revised Statutes. In reference to the provisions found in the Revised Statutes, which he described as obscure and conflicting, Whipple remarked that, "Experience has developed its deformities, and it is certainly desirable to avoid, hereafter, the evils under which we are now laboring.…"12 Subsequent criticism took the form of written Supreme Court opinions. Ironically, one such opinion was written by Fletcher himself. It admitted that, "There is certainly a manifest inconsistency in these provisions.…"13
The harshest criticism, however, would come years later from Justice
James V. Campbell, who served on the bench from 1858-1890. In "Judicial
History of Michigan," a speech given during the celebration of Michigan's
semi-centennial in 1887, Campbell criticized Fletcher's revisions, saying
that Fletcher "…seemed disposed to go back rather than to advance
in liberality of practice." He added:
The result was unfortunate. It was intended that no serious change should be made in
the statutes. If this plan had been carried out no confusion would have arisen. But the
reviser shaped matters very much to suit himself, and the fact that
the chapters were first introduced separately prevented the Legislature
from discovering all the changes and omissions.14
Campbell criticized Fletcher again in a book he wrote in 1876 saying that "the statutes were hastily prepared, and, as usual…they omitted many things, and were quite imperfect, abolishing most of the existing general laws, and not providing adequately for the matters they had regulated." However, in his assessment of Fletcher's work, Campbell did acknowledge that "…his work furnished the greater part of the code as adopted, and has ever since remained the groundwork of our legal system."15
This latter observation is one that draws substantial support from Norton's analysis of Michigan's early Supreme Court history. The result of the changes, according to Norton, "…was to increase the efficacy, dignity, and influence of the Supreme and Circuit Courts." Norton cites, as examples, the following improvements that Fletcher's Revised Statutes made to the state judiciary: the geographical limitations on the Supreme Court's jurisdiction were eased, both the original and appellate jurisdiction of the Supreme Court were "somewhat" extended, and a fourth judicial circuit and a fourth justiceship were created.16
Unfortunately, although the Revised Statutes created a fourth Supreme Court justiceship, it did not then increase the number of justices that were required to call a quorum. Thus, although the Supreme Court now had four justices, only two justices constituted a quorum, allowing decisions at the state's highest court to be made by only half of its presiding justices.17
Another problem that plagued the functioning of the Supreme Court was the establishment of a separate Court of Chancery under the original constitution of 1835. This was one of the major provisions added as Michigan became a new state—a separate Court of Chancery was not provided for by any territorial provisions. The Court of Chancery proved to be a problem from the beginning. The source of the confusion was a clause in the provision that said all equity suits and processes still pending in the territorial courts would be transferred to the Court of Chancery except those cases in which the chancellor had some vested interest. These cases were to be adjudicated by the courts from which they had originated, provided that the Supreme Court had original jurisdiction. The Revised Statutes continued to allow direct appeals to be made from the Court of Chancery to the Supreme Court. One revision, however, authorized the chancellor to now sit on such appeals in order to provide the Supreme Court with the reasoning behind his decision.18
Another important change that Fletcher made in the Revised Statutes denied the Supreme Court the right of direct review in any judgment, order, or proceeding made by a justice of the peace—appeals from justice courts could go only to the Circuit Court of the proper county.19 While at first this seems like a reduction of the Supreme Court's authority, it significantly lightened the Court's workload, as over 150 of 197 docketed cases came directly to the Supreme Court from justice courts or other courts of minor jurisdiction.20
CALL FOR FURTHER REFORM
Less than six months after Fletcher's Revised Statutes had gone into effect, they not only had stirred much debate, confusion, and subsequent revision in the legislature and Supreme Court, but they quickly became the catalyst of a growing movement for judicial reform. In newspapers across the state articles and editorials were focusing more and more on the judicial branch. In his 1839 annual message to the legislature, Governor Mason argued for judicial reform saying, in particular, that he felt an independent Supreme Court was needed. As Mason stated, "…the proper business of the Supreme Court will very soon, if it does not now, require an amount of labor and diligence, which will occupy most of the ------------Judges…" The Governor recommended that three new judgeships be created whose only responsibility was to preside over the Circuit Courts. Furthermore, Mason called for a reduction in the number of Supreme Court justices, back to three, whose responsibilities then dealt specifically with business transacted in the Supreme Court.21
Despite Governor Mason's recommendation to the legislature, nothing was proposed. His idea, however, did receive a significant amount of support in the press. Editorials arguing for and against judicial reform appeared in the newspapers throughout 1839. The press was not the only supporter of judicial reform. The idea also received widespread support among the justices of the Supreme Court. One report quoted letters from Supreme Court justices discussing the various burdens and difficulties they encountered. In one such letter, Chief Justice William A. Fletcher estimated that seven or eight months were spent hearing Circuit Court cases, leaving only two or three to hear arguments before the Supreme Court. Justice Ransom also complained of Circuit Court overburdening, and Justice Whipple mentioned the amount of travel and time required to fulfill his Circuit Court duties, which forced him to miss sessions of the Supreme Court.22
When the Whigs gained control of several important government positions in 1840, the reform impulse that dominated news coverage the previous year quickly dissipated. It took only two years, however, for the issue to once again become a hot topic of debate. A committee report in the house blasted the current judicial system referring to it as, "A system…different entirely from that intended by its framers, illy adapted to the wants of the public, and in its operation deleterious to the intellectual and physical faculties of its ministers."23
The 1840s witnessed a variety of proposals to reform the judicial branch of the state government. Governor John S. Barry proposed to adopt elements of the nisi prius system. Barry's proposal eventually failed, although it was closer to passing than similar attempts made in 1846 and 1850. Despite this setback, some important measures were adopted that extended the authority of the Supreme Court. Presiding justices in the Circuit Courts were given the power to reserve important or challenging issues of law for the Supreme Court. The issues were to be decided within the judicial circuit from which the case had originated.24 Provisions that limited the Supreme Court's jurisdiction to the geographical boundaries of the judicial circuit within which it was sitting were abolished.25 Additional measures were adopted that extended the Supreme Court's control over the state judiciary, and thereby extended its autonomy.
In 1843, bills were passed that granted the Supreme Court even more authority over the Circuit Courts. The first bill authorized the Supreme Court to compel the Circuit Courts to issue venire facias de novo by writ of mandamus. The second gave the Supreme Court the authority, by mandamus, to review any decisions made in the Circuit Courts that overruled motions for new trials if there was no other such legal remedy on the books. Additionally, the second act authorized the Supreme Court to review and reverse all subordinate cases "…where the discretion of said courts have been unjustly or illegally exercised…"26 Another law passed in 1843 prohibited Supreme Court justices from participating in the review of any decisions they had made in the Circuit Courts.
The reorganization of the state judiciary and the extension of Supreme Court jurisdiction were by no means limited to the laws passed by the legislative branch. The act that organized the Supreme Court in 1836, in fact, granted the Supreme Court the power to make rules and regulations for practice in its courts. After much squabble, in 1843 the Court established a new code of 21 rules that prescribed practice and procedure. Two years later, in 1845, 24 more rules were adopted.27 Additionally, although no general revision of the rules was made between 1846 and 1852, at least 200 rules were adopted that mostly applied, but were not limited to, the Circuit Courts. According to Norton, the addition of these rules "…demonstrates clearly the extensive supervisory authority exercised by the court over the state judiciary."28
By 1844, attacks made on Fletcher's Revised Statutes were significant enough to warrant another revision of the Revised Statutes. Two years later, the Revised Statutes of 1846 were enacted. No changes were made to the number of justices, organization, or general jurisdiction. Supreme Court justices, still numbering three, were required as before to preside over the Circuit Courts in each of their judicial circuits. The Supreme Court also retained its peripatetic nature—four terms were to be held in one year at different places, but the location of these terms changed in accordance with population increases. The Court also retained its rule-making capability.
The most significant change the Revised Statutes of 1846 made was the elimination of the separate Court of Chancery. What was then to be done with the cases still pending in the Court of Chancery? According to the Revised Statutes of 1846, these cases were to be transferred to the Supreme Court under its direction, unless the parties involved both agreed to have their case transferred to a Circuit Court.29 The financial and logistical difficulties associated with the transferring of these cases naturally created some problems. A special amendatory act was passed by the legislature three days before the Revised Statues of 1846 were to take effect. The act, although it abolished the office of chancellor, allowed for the cases pending in the Court of Chancery to be heard in order to dispose of them without added cost, delay, or confusion.30
THE REVISED CONSTITUTION OF 1850
These changes, and several more like them, led finally to the revision of the state constitution in 1850. It seems that for the entire decade of the 1840s the court system and, in particular, the Supreme Court, were under a constant barrage of political attacks. Reforming the Supreme Court and the state court system in general proved to be no easy task: One's ideas of the changes needed seldom correlated directly with another's, especially if the two were from different political parties, which in the case of early 19th Century Michigan were the Democrats and the Whigs. While each party favored change, differences often erupted over the degree of change needed. The ideas posed by the more radical judicial reformers differed significantly from the ideas proposed by the more conservative, established politicians. The result, however, was not stalemate but compromise. Reforms were in fact made, but neither faction fully achieved what they had hoped. Nevertheless, as Norton points out, "…although neither side had won a clear-cut victory or had obtained all of its goals, by continuous pressure the reformers had forced the stand-patters to yield considerable ground."31
One such ground was the election of superior court judges. In 1845, an amendment to the state constitution was proposed that called for the election of all state officers, both judicial and executive. Although it received little support at first, it only took two years for a joint resolution calling for the election of Supreme Court justices to be brought up for a vote in the legislature. The resolution was defeated by a narrow margin: While the Senate passed it 15 to 1, the house was two votes shy, 28 to 30.32 Nevertheless, on the advice of Governor Epaphroditus Ransom, himself a former Supreme Court justice, a similar joint resolution calling for the popular election of state Supreme Court justices and various executive positions passed in 1848. The following year, in 1849, the amendment was approved by the minimum two-thirds majority of the legislature and then submitted to the general electorate as a referendum. Statewide, the amendment passed by a considerable margin: 38,117 to 728.33 Another matter, however, delayed the incorporation of this amendment into the constitution. During the same election that the referendum was being voted on by the people, a convention to revise the constitution was called. Thus, many leaders, including Governor Ransom, advocated a postponement of the effective date of the new amendment so the matter could be fully evaluated by the delegates at the constitutional convention.34
As the 1840s gave way to the constitutional convention of 1850, the debate over the nature of the -----------
Supreme Court had cooled significantly. Nevertheless, several changes were made, and several more were amended as the legislative and political process slowly evolved. In the end, the Court, despite many setbacks and compromises, came out with more authority and independence, a trend that continued during the latter half of the 19th Century and well into the 20th. Despite the application of constant pressure for judicial reform, the only two changes that stood were the elimination of the separate Court of Chancery and the change from appointment of superior court justices to popular elections, although the method of electing Supreme Court justices was not yet finalized. The constitution of 1850 declared: "For the term of six years and until the legislature otherwise provides, the judges of the several Circuit Courts shall be judges of the Supreme Court." One historian referred to this decision as the "noble experiment."
However noble, the experiment quickly failed. Five of the original eight judges resigned within six years. One died. The court lost momentum. Written opinions only occupied 1,616 pages in the printed reports during this period (1852-1858) compared to 3,455 pages of opinions during the six years that followed.35 By 1858, the state legislature had acted on a clause permitting them to reorganize the Supreme Court. The constitution of 1850 stipulated that the new court would consist of one chief justice and three associates, all chosen by popular election. On January 1, 1858, the Supreme Court was reorganized.
The first page of the 1850 Michigan Constitution.
Courtesy of the State of Michigan Archives.
THE BIG FOUR
The first chief justice of the reorganized Michigan Supreme Court was George Martin. Associates included Randolph Manning, Isaac P. Christiancy, and James V. Campbell. The reporter for this court was Thomas M. Cooley. When Randolph Manning died in 1864, Cooley joined the Court.
Justices Christiancy, Campbell, and Cooley, joined by Benjamin F. Graves in 1868, are known as the "Big Four" in Michigan judicial history. As some of the first justices to sit on the newly reorganized Court, the Big Four played a large role in shaping the Court as it is known today. They were widely respected justices, as well as well-known legal scholars. Cooley, in particular, was known for authoring several books on topics ranging from Michigan history to legal and constitutional philosophy. Together, the Big Four attained for the Michigan Supreme Court the respect and authority it and its supporters felt it had long deserved.
Of the four, James V. Campbell served for the longest time, around 32 years. Campbell was born on February 25, 1823, in Buffalo, New York, coming to Michigan with his family when he was still young. In 1844, he was admitted to the Bar and practiced until 1857. Not only a distinguished justice, Campbell also taught law at the University of Michigan for 25 years. He authored Outlines of the Political History of Michigan and the "History of the Admission of the State of Michigan into the Union."36
The second member of the Big Four was Isaac Christiancy, who served 17 years, giving up his seat in 1875 for the U.S. Senate. Christiancy, also born in New York, moved to Michigan in 1836 and established a law practice that he maintained while serving as Prosecuting Attorney for Monroe County from 1841 to 1846. In 1849, he was elected to the state Senate. A staunch abolitionist, Christiancy is credited with establishing the Republican Party in Michigan.37
The third member, Thomas M. Cooley, served for 21 consecutive years. Also from New York, Cooley came to Michigan in 1843, where he practiced law and served as a Court Commissioner and Recorder
A History of Governments was published by Thomas M. Cooley in 1885.
for the town of Adrian. In 1859 he became the Jay Professor of Law at the University of Michigan, a position that he held until 1884. First appointed to the Michigan Supreme Court in 1864, Cooley became chief justice in 1868 under a newly enacted statute that stipulated "after December 31, 1867…the office of the chief justice shall devolve upon the judge whose term shall soonest expire by its own limitations."38 Like Campbell, Cooley also wrote a number of books. His Treatise on Constitutional Limitations earned him a national reputation as one of the country's leading legal scholars.39
Benjamin Graves served for 25 years. He began his first term on the bench the same day that Cooley became chief justice, making him the fourth and final member of the Big Four. Born in New York, he eventually moved to Battle Creek where he set up a law practice. His commitment to public service, much like the other members of the Big Four, began almost immediately, and he served as the Master in Chancery and as a civil magistrate. In 1857, he was elected Judge of the Fifth Circuit and, under the pre-reorganized Court, served on the Supreme Court (recall that from 1852-1857, Circuit Court judges were elected to serve on the Supreme Court). His tenure on the reorganized Court lasted until 1883.
IMPORTANT CASES
Although the Big Four only sat on the bench together from 1868-1875, at least one member was on the Court from its reorganization in 1858 until 1890. During this 32-year period, a number of important judicial decisions were rendered. One such decision was handed down in 1866, with three of the Big Four—Campbell, Christiancy, and Cooley—sitting on the Bench. The case, People v. Dean, caused great alarm, especially among Republicans and Republican supported newspapers.
The case was decided during the July1866 term of the state Supreme Court. The issue was whether or not a man, who was part black, was eligible to vote. People v. Dean came at an important time in United States history. The Civil War had just ended. Advocates for black male suffrage and equal rights in general were at the peak of their influence.40
Dean, a resident of Wayne County, was challenged by election officials when he proceeded to vote in a township election. He then took the oath prescribed by law, swearing that he was a resident of the township and met the necessary qualifications to vote (one of them being a "white male citizen"—Dean claimed to be of Indian descent, permitting him to cast a ballot). A case was later brought against him in the Circuit Court for Wayne County where he was tried and convicted for voting illegally.
On appeal, the case went to the Michigan Supreme Court where the plaintiff brought witnesses to testify that, in their judgment, Dean did indeed possess some African blood. One such witness was a doctor named Zina Pitcher, whose 43-year practice of medicine was cited as ample evidence of the validity of his conclusion that there was precisely "one-sixteenth" of African blood in Dean. The doctor reached his conclusion by examining the blood vessels in Dean's nose, which he concluded to be the only clear indication that Dean possessed African blood. Other features like his skin ("of bilious temperament") and hair showed no signs.
The Michigan constitution limited suffrage to "white male citizens," but in his written opinion, James V. Campbell interpreted this clause to include: "all persons in whom white blood so far preponderates that they have less than one-fourth of African blood…no other person of African descent can be so regarded."41 Explaining his reasoning, Campbell asserted that "...the right of the people to determine the qualification of electors is undisputed. We are bound to adhere to the rule that they have established. The right to vote is granted to a certain designated class, and to no others."42 Thus, the ruling enabled Dean to vote because it was determined that he was only one-sixteenth African.
While Justices Cooley and Christiancy both concurred with Campbell's ruling, Justice George Martin dissented. In his written opinion, Martin asked:
By what authority of law, or principle of reason, can we fix a strain of one-eighth, one-sixteenth, or one-thirty-second of African blood as a standard of caste, so as to make a man white or black, as he happens to have more or less, and thereby admit or exclude him from the full rights of citizenship?43
He added, "Can we not at this day, and in a free state, rise above this rule of slavery, and occupy a still more liberal and humane ground?"44 Addressing the testimony of Dr. Pitcher, and perhaps taking a shot at his colleagues who agreed with Pitcher's conclusion that Dean possessed one-sixteenth African blood, Martin stated, "If this be the correct rule, we had better have the constitution amended, with all speed, so as to authorize the election or appointment of nose pullers or nose inspectors to attend the election polls in every township and ward of the state to prevent illegal voting."45 Martin concluded that Dean was white, and would have been, even if he possessed more African blood than he had shown. The decision by the Supreme Court urged state Republicans to vouch for a unanimous-decision law that would have required the concurrence of all four justices on the Supreme Court for a decision to be allowed. The bill, however, did not pass.
Just four years after the Dean case, the Michigan Supreme Court ruled on another widely-debated issue. It would prove to be one of the most significant and controversial cases to take place during the era of the Big Four. The case, People ex rel the Detroit and Howell Railroad Co. v The Township Board of Salem (popularly known as People v Salem) not only reflected the growing reputation of the Big Four and their disregard for popular politics, but also further established the Court's independence and authority.
The case involved public use of money to aid the building of privately owned railroads. The Michigan constitution of 1850 severely limited the state's participation in internal improvements. By 1870, the railroad debate became one of the state's most politically charged issues. At stake in People v. Salem was an application for mandamus by the Detroit and Howell Railroad Company to compel the Township Board of Salem to execute and issue bonds to aid in the construction of the proposed railroad.46 The Circuit Court of Washtenaw County ruled in favor of the railroad, and the case was then brought to the Michigan Supreme Court for appeal. The Court overturned the decision and deemed it unconstitutional. In his written opinion, Chief Justice Cooley addressed the issue of whether or not the railroads were a public entity. He concluded that in one sense they were "public highways" because they aided the public in travel, but otherwise:
They are not, when in private hands, the people's highways; but they are private property, whose owners make it their business to transport persons and merchandise in their own carriages, over their own land, for such pecuniary compensation as may be stipulated.47
Both Justices Campbell and Christiancy concurred with Cooley's decision, although Campbell differed in his interpretation of "obligation of contracts." Justice Benjamin Graves dissented.
Five years later, in 1875, Isaac Christiancy left for Washington to assume his position as a United States Senator. He was replaced by Isaac Marston. While Campbell would serve on the bench for another 19 years, 1883 marked the last year on the bench for Graves and 1885 for Cooley.
With Campbell still on the bench, the influence of the Big Four, if not collectively but individually, would continue. In 1887, a rather peculiar case was brought to the Michigan Supreme Court involving a cow. The official name of the case is Sherwood v Walker et al., but it is better known in Court history as The Cow Case.48
The plaintiff, interested in purchasing a cow, whose name was "Rose 2d of Aberlone," negotiated with the defendant the terms of the sale of the cow. The plaintiff agreed to pay the defendant 5.5 cents per pound. The sale was confirmed in writing. When the plaintiff sought to take possession of his newly purchased cow, the defendant refused to deliver the animal. In response, the plaintiff initiated a lawsuit.
The defendants claimed that at the time of the alleged sale, both parties believed that the cow was barren and could not breed. If it was indeed barren, it would cost $8, if not, it would have cost $750.
After the agreement was signed, the defendants discovered that the cow was pregnant, which was why they refused to surrender the animal to the plaintiff. The Circuit Court ruled in favor of the plaintiff. The defendants appealed.
The Michigan Supreme Court held that a party who has given apparent consent to a contract of sale may refuse to execute it, or may void it after it has been completed if the consent was founded, or the contract made, upon the mistake of a material fact—such as the subject matter of the sale, the price, or some collateral fact materially inducing the agreement—and this can be done when the mistake is mutual. Where the item actually delivered or received is different in substance from the thing bargained for and intended to be sold, there is no contract. However, if it is only a difference in some quality or accident, even though the mistake may have been the actuating motive to the purchaser or seller, or both, the contract remains binding. Where a cow was contracted to be sold upon the understanding of both parties that she was barren and useless for breeding purposes, and it appeared that such was not the case, the vendors had a right to rescind the contract, and refuse to deliver the property. The Cow Case has since received attention as, literally, a textbook example of contract law issues.
Although these cases are only three examples of many of the key decisions reached by the Michigan Supreme Court during the latter half of the 19th Century, they nevertheless typify the important role the Big Four played in shaping Michigan judicial history and the respect that its members earned throughout the state and even, for some, the country.
Whether or not one agrees with the decisions reached, it can be argued that the Big Four firmly established the place of the Michigan Supreme Court in the state's governmental affairs. Once characterized in the 19th Century as a confused and disorganized court, the Michigan Supreme Court had come to play a major role in the state's legal affairs by the turn of the century.
THE 20TH CENTURY COURT
While the Michigan Supreme Court of the 19th Century can be characterized by many changes, disorganization, and reorganization, the Court of the 20th Century witnessed very few changes in terms of structure and jurisdiction. The newly reorganized Court of 1858, empowered by some of the most reputable legal scholars in the state, quickly established its new authority. It was an authority that would endure—for the first time in the state's history. The important changes occurred in the makeup of the Court rather than its structure. Changes in personnel, including the first African-American and woman justices, brought new perspectives to the Court and further established its prestige. In addition, the impact of Michigan Supreme Court decisions would continue to escalate.Although a revised state constitution failed to pass the popular vote in both 1867 and 1876, by the first decade of the new century the issue had once again come up. Supporters for a constitutional convention argued that a new constitution was necessary because of the several changes that had taken place since the last one in 1850. On October 22, 1907, 96 delegates met at the state capitol. Five months later, on March 3, 1908, a new constitution was framed and ready to be submitted to the voters for approval on November 3.
Unlike its predecessor, the constitution of 1908 did not make any major changes to the Court. For the first time in its history, the state Supreme Court (and the judicial branch in general) survived a new constitution without being significantly altered. However, several items were added to the new constitution that would affect the Court. Soon after it was adopted, for example, several amendments were added pertaining to reapportionment, woman and child labor law, the direct primary election, and the election of the state highway commissioner. In 1913, additional amendments were added that strengthened the powers of initiative and referendum. The amendments passed in 1913 also granted voters the ability to propose constitutional amendments, which up until then could only be done by the legislature.
Most significantly, however, was the insertion of a Declaration of Rights as a separate article provision. Despite several attempts, women were not fully enfranchised by the constitution or the preceeding amendments. While the 1908 state constitution did extend suffrage to female property owners on questions involving taxation, full voting powers were not granted until the ratification of the nineteenth amendment to the United States Constitution in 1920.49
By 1908, the number of justices sitting on the Michigan Supreme Court had increased to eight, the number it maintained until 1969. Judicial tenure also changed at the beginning of the 20th Century, as it had several times during the previous century. Beginning with "good behavior" during the early years of the state, the legislature experimented with a number of years ranging from four to ten, not necessarily that in order. By the time the 1908 constitution was written, the number had settled on eight years. Judicial salaries rose steadily from the original compensation of $800 in 1805 to $12,000 in 1929. The number of cases also increased during the first few decades of the 20th Century. In 1870, the same year that People v Salem was decided, the Supreme Court handed down opinions on some 142 reported cases. Sixty-three years later, in 1933, the state's highest court rendered decisions for 700 reported cases.50
A number of changes were made by another new constitution, the constitution of 1963. The executive branch of the state government was consolidated into 20 departments, terms of office were expanded, and the legislature was expanded to 38 Senators and 110 Representatives. In terms of the judicial branch, the Court of Appeals was added by the constitution of 1963. In addition, the number of justices sitting on the Supreme Court was reduced from eight to seven, a level that it has since maintained (the actual reduction, however, did not occur until 1969). The most significant change, however, was the creation of the Civil Rights Commission, designed to secure equal protection of the law for all people.51
IMPORTANT "FIRSTS"
The 1960s were an era of the Court marked by important firsts. In 1961, Otis M. Smith, appointed by Governor John Swainson, became the first African-American justice to sit on the Michigan Supreme Court.
In 1973, Mary S. Coleman became the first woman to be elected and to sit on the state Supreme Court. Coleman eventually assumed the position of chief justice. As the head of Michigan's highest court, she found herself involved with many problems and issues in addition to her duty of reviewing the cases.
In 1997, the citizens of Michigan elected its first woman majority to the Court, and in the same year, the first African-American chief justice, Conrad L. Mallet, Jr., was elected by the Court.
MICHIGAN'S ONE COURT OF JUSTICE
Shortly after Mary S. Coleman became chief justice, she was approached by the Director of Budget and Management with the idea of state-funded courts in Wayne County and Detroit. At the time, the court system around the Detroit area was financially strapped. In addition to not having any money, they also needed reorganization. Instead of a District Court or a Municipal Court, Detroit had a Common Pleas Court whose judges were elected by the city's residents but had county-wide jurisdiction. In addition, a Recorders Court that dealt with felony criminal cases and a Traffic Court that Coleman said was "indescribable"52 also existed. Among other things, Coleman proposed that the Common Pleas Court should be a District Court much like cities in the rest of the state had and the Recorders Court should become part of the Circuit Court. After discussing the problem with the other justices, Coleman came to the conclusion that solving the problem in Detroit could not be done unless a move was made for state funding of all state courts.
Although a few of her colleagues felt that the attempt would result in chaos, Coleman remained confident.
As she recalls, "…I gave them the old Chinese proverb of chaos being written in two symbols, one of them meaning disorder and the other meaning opportunity, and I said, `I think this is a most marvelous opportunity.'"53
In Article VI, Section 1 of the Michigan constitution it states that, "The judicial power of the state is vested exclusively in one court of justice…"54 In Section 4, it specifies that "The supreme court shall have general superintending control over all courts…"55 Despite these provisions of the state constitution, however, Coleman noted that "The chasm between the constitution and reality is very broad."56 Her attempt to reorganize the Michigan court system and solve the problems plaguing the courts of Wayne County and Detroit was not met with widespread approval.
The problems plaguing the Michigan court system were not limited to the city of Detroit and Wayne County. Across the state, the pay scale for judges presiding at the same level varied significantly. The plan was to implement a graduated pay scale according to the level of the judiciary. Support did not come easily—many of the county commissioners, for example, were cautious to give up control of this matter to the government in Lansing, even though it would have helped free up their budgets. In addition, many County Clerks feared that the proposal would mean the loss of their jobs or the creation of a separate clerk for the Circuit Courts (the County Clerk was the clerk of the Circuit Court as well).
After much effort, in December 1980 the bill finally passed the legislature by a narrow margin. Not all the provisions advocated by Coleman were placed in the bill. For example, those that opposed the creation of separate clerks for the Circuit Courts effectively lobbied against this provision. Coleman was, however, glad to get the bill passed just before the new legislature and governor were scheduled to come in that January. As she explained, "We knew there would be new representatives and senators who would have to be educated all over again, so it was sort of a last minute triumph."57
Just two years after accomplishing what many critics and some of her colleagues deemed impossible, Mary Coleman retired from the Supreme Court. She described her time on the Court as one of her "most exhilarating experiences" and said, "As I look back, I tackled each problem with a sense of what was, in my opinion, fair and possible, legally speaking, as well as how it would affect the future of the state and the public good."58
THE COURT TODAY
The Michigan Supreme Court has changed significantly since its founding in 1836. It has seen the drafting of three new constitutions, numerous amendments and revisions of its rules and procedures, and the reduction and addition of the number of justiceships. It has also become more recognized as an independent branch of government and, through its decisions, has firmly established its place as the state's superior court.
At times the Court seemed on the verge of chaos, but as it and its proponents struggled to define the Court's role and the state judicial system in general, they laid the groundwork for the reorganized Court and the Big Four's bold definition of the role the Court would play in the legal affairs of the state of Michigan.
The Michgian Supreme Court has endured many changes since its inaugural year of 1836 when it met at the house of a Detroit resident named James May. Regardless of what form these changes have taken, the Court has always commanded the respect of the people it has been chosen to represent. It has seen over 100 justices sit on its bench.
As the history of the Michigan Supreme Court has proven, justice is by no means concrete. It continually takes on a new form, according to new laws, new customs and, most of all, according to the vision of the men and women who are called to define it. In this latter sense, the history of the Court is the history of the justices who have sat on it and the ideas, opinions, and views that they have exercised
through it. The history of the Michigan Supreme Court is also reflective of the society it represents. It is the people, after all, who elect the justices (although this has not always been true), and it is their problems and struggles that they call on the Court to resolve.
Epilogue
Former Chief Justice, Michigan Supreme Court
Scott Noto's excellent essay on the history of the Michigan Supreme Court does a yeoman service to the people of Michigan and the legal profession. It will surely whet the appetite of other scholars and historians who will find much to say about the Court in the late 19th and early 20th Century.
Of particular note is Mr. Noto's discussion of the efforts to reform the judiciary in the early years and the frustrations with which reformers were met. The pattern repeats itself in every generation. I believe it was Chief Justice Vanderbilt of New Jersey who first declared that judicial reform is no sport for the short-winded.
And so it has been in our time and so it will be in the years ahead. Efforts to craft a method of judicial selection that will free the justices from the taint of partisanship will continue, with the principal point of difference being exactly how to bring about the universally endorsed goal of an independent judiciary.
Proponents of the various appointive schemes, the so-called Missouri Plan, its several modifications, or the straightforward federal system of executive appointment and legislative confirmation, have often opposed any move to improve the elective process on the ground that keeping the system's warts will keep up the pressure to adopt a new system.
For myself, and many others, the single most needed judicial reform in Michigan is the abolition of partisan nominations to the Supreme Court. The change doesn't need a constitutional amendment. The Michigan Constitution of 1963 already says that Supreme Court justices are to be nominated as provided by law. Thus, a simple statutory enactment calling for a nonpartisan primary election would be a near perfect cure for the evils of partisanship on the Court.
What is needed is for all the reformers to get on the same page. Those who prefer an appointive system should not let the best be the enemy of the good. We already have a largely appointive system because of the governor's power to fill vacancies. The hybrid system works in the trial courts and in the Court of Appeals. It will work in the Supreme Court, too.
Endnotes
1 James V. Campbell, "Judicial History of Michigan" in The Semi-Centennial of the Admission of the State of Michigan into the Union, p. 102 (1886).
2 For a complete listing and biography of all Michigan Supreme Court justices from 1805-1998 see Jill K. Moore and Ellen Campbell, ed., Michigan Supreme Court Historical Reference Guide (Lansing: The Michigan Supreme Court Historical Society, 1998).
3 Alec R. Gilpin, The Territory of Michigan: 1805-1837. (East Lansing: Michigan State University Press, 1970). p. 84.
4 For more detailed information and citations of the original documents regarding the constitutional convention of 1835 see Clark F. Norton, "Michigan's First State Supreme Court, 1835-1836". Also see Harold M. Dorr, The Michigan Constitutional Conventions of 1835-36 (Ann Arbor: University of Michigan Press, 1940).
6 See Clark F. Norton, "Appointments to the Michigan Supreme and Chancery Courts, 1836-1850."
7 Executive Journal of the Senate of the State of Michigan, 1835-1836, p. 17. Free Press (Detroit), July 28, 1836.
8 Norton, Ibid., p. 309. Norton cites a total of 159 cases docketed in the supreme court before 1838 and that of them, only 6 came within its original jurisdiction. See Clark F. Norton "A History of the Supreme Court of the State of Michigan, 1836-57," (University of Michigan: unpublished doctoral dissertation, 1940), Table XIII, Appendix, p. 19.
9 Norton, "Michigan's First State Supreme Court, 1836-38," p. 314. A number of cases are cited here from a variety of Circuit Court record books.
10 Regents Proceedings, University of Michigan, 1836-1864 (Ann Arbor, 1915).
11 However, each justice attended only a few of the eight meetings of the Board in 1837. See Ibid., p. 301.
12 C. W. Whipple to W. Woodbridge, Pontiac, Dec. 21, 1839, W. Woodbridge Papers (Burton College), as quoted by Norton, "Judicial Reform..,", p. 208.
13 Raymond v. Wales, MS opinion, S.Ct., 1st cir., file No. 189; Blume, ed., Unreported Opinions of the Supreme Court of the State of Michigan, 1836-1843, p. 87, as quoted by Norton, "Judicial Reform..," p. 208.
14 Campbell, The Semi-Centennial of the Admission of the State of Michigan into the Union (1886), p. 126.
15 James V. Campbell, Outlines of the Political History of Michigan (Detroit: Schober and Co., 1876) p. 510.
16 For specific changes see Norton, Ibid., p. 208.
17 Norton, "Judicial Reform in Michigan," p. 210.
22 Documents of the House of Representatives of the State of Michigan, pp. 87-88, 90-91, as cited by Norton, Ibid.," p. 213.
23 Free Press (Detroit) January 23, 1839, as cited by Norton, "Judicial Reform," p. 211. See also "Unreported Michigan Supreme Court Opinions, 1836-1843," in Michigan Law Review (V. 42, 1943), p. 94-96, by the same author.
24 Michigan Public Acts (1840), 3: pp. 18-19.
25 Norton, "Judicial Reform," p. 227.
34 There is one technicality, however, that allowed for the election of three supreme court justices and several state officials to be elected at the general election of 1850. See Norton, p. 259.
35 Anonymous, "Organization and History of the Judicial System of Michigan." Unpublished manuscript, c. 1934. Michigan Supreme Court Historical Society Collection.
40 "Case and Controversy," p. 171. Author and publication unknown. Michigan Supreme Court Historical Society Collection.
45 44 Mich Doc 438-439 (1866).
49 Legislative Service Bureau, "Michigan's Four Constitutions," No. 13, August 1994. State Library of Michigan.
50 Anonymous, "Organization and History of the Judicial System of Michigan (c. 1934)," p. 24. Michigan Supreme Court Historical Society Collection.
51 Christopher J. Carl, "Michigan's Four Constitutions" (Lansing: Legislative Research Division, Legislative Service Bureau, Research Brief No. 13, August 1994) p. 4.
52 Interview with Mary Coleman, conducted by Roger Lane for the Michigan Supreme Court Historical Society Oral History Project. Michigan Supreme Court Historical Society Collection.
54 1963 Michigan Constitution, Article VI, sec. 1, p. 25.
56 Coleman interview with Roger Lane.
Glossary of Terms
As defined in Black's Law Dictionary, Sixth Edition unless otherwise indicated
Adjudicate - (v.) To settle in the exercise of judicial authority. To determine finally.
Appellate jurisdiction - (n.) The power vested in an appellate court to review and revise the judicial action of an inferior court, evidenced by an appealable order or an appealable judgment rendered by such court.
Common law - (n.) As distinguished from statutory law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs...In general, it is a body of law that develops and derives through judicial decisions, as distinguished from legislative enactments.
Court of Chancery - (n.) A court administering equity and proceeding according to the forms and principles of equity.
Efficacy - (n.) That produces the desired effect. (Webster's New World Dictionary, 1983)
Enfranchised - (n.) The act of making free (as from slavery); giving a franchise or freedom to;investiture with privileges or capacities of freedom, or municipal or political liberty. Conferring the privilege of voting upon classes of persons who have not previously possessed such.
Equity - (n.) Justice administered according to fairness as contrasted with the strictly formulated rules of common law.
Ex Officio - (Latin) Because of one's office.
Habeas Corpus - (Latin) The name given to a variety of writs, having for their object to bring a party befor a court or judge. In common usage, and whenever these words are used alone, they are usually understood to mean the habeas corpus ad subjiciendum. The primary function of the writ is to release from unlawful imprisonment.
Initiative - (n.) An electoral process whereby designated percentages of the electorate may initiate legislative or constitutional changes through the filing of formal petitions to be acted on by the legislature or the total electorate. The power of the people to propose bills and laws, and to enact or reject them at the polls, independent of legislative assembly.
Magistrate - (n.) A civil officer empowered to administer the law; a minor official, such as a justice of the peace. (Webster's)
Mandamus - (Latin) We command. This is the name of a writ which issues from a court of superior jurisdiction, and is directed to a priviate or municipal corporation, or any of its officers, or to an executive, administrative or judicial officer, or to an inferior court, commanding the performance of a particular act therein specified, and belonging to his or their public, official, or minsterial duty, or directing the restoration of the complainant to rights or privileges of which he has been illegally deprived.
Nisi prius - (Latin) The nisi prius courts are such as are held for the trial of issues of fact before a jury and one presiding judge. In America the phrase was formerly used to denote the forum (whatever may be its statutory name) in which the cause was tried to a jury, as distinguished from an appellate court.
Original jurisdiction - (n.) Jurisdiction to consider a case in the first instance. Jurisdiction of court to take cognizance of a cause at its inception, try it, and pass judgment upon the law and facts. (Distinguished from appellate jurisdiction.)
Peripatetic - (adj.) Walking or moving about, itinerant. (Webster's)
Quo warranto - (n.) In old English practice, a writ in the nature of a writ of right for the king, against him who claimed or usurped any office, franchise, or liberty, to inquire by what authority he supported his claim, in order to determine the right.
Reapportionment - (n.) A re-alignment or change in legislative districts brought about by changes in population and mandated by the constitutional requirement of equity of representation (i.e. one person, one vote mandate).
Referendum - (n.) The process of referring to the electorate for approval a proposed new state constitution or amendment of a law passed by the legislature.
Tribunal - (n.) The whole body
of judges who compose a jurisdiction; a judicial court.
Venire facias - (Latin) A judicial writ directed to the sheriff of the county in which a cause is to be tried, commanding him that he "causes to come" before the court, on a certain day therein mentioned, twelve good and lawful men of the body of his county, qualified according to the law, by who the truth of the matter may be the better known, and who are in no wise of kin either to the plaintiff or to the defendant, to make a jury of the county between the parties of the action.
Writ of certiorari - (n.) An order by the appellate court which is used by that court when it has discretion on whether or not to hear an appeal from a lower court.