Prac. 14. In People v. Dolan it was not known who drew the jury, but the court said:

"It is sufficient to maintain the authority of the grand jury to investigate criminal charges, and find indictments valid in their nature, that the body acted under color of lawful authority." People v. Dolan, 6 Hun, 232, 64 N. Y. 485, 493.

See, also, In re Gannon, 69 Cal. 541; Ex parte Haymond, 91 Cal. 545; State v. Belvel, 89 Iowa, 405 (27 L. R. A. 846); Ex parte Springer, 1 Utah, 214.

Missouri has a statute similar to our own. In discussing it, the supreme court of that State said, in the case of State v. Bleckley, 18 Mo. 430:

"In early days, in this State, it was common for the courts to grant new trials in criminal cases on account of some disqualification of jurors. Frequently after undergoing the labor and expense of a trial, lasting for days, and after a verdict of guilty was found, a new trial was ordered because the prisoner had discovered that one of the jurors was an alien. The legislature determined to put a stop to this practice. The defendant is not permitted to question the manner of summoning the grand jury. Such a cause, on such a subject, is not one. of the statutory objections allowed to grand juries or to a grand juror in our courts, and none other can avail."

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It does not follow that a meritorious question, arising out of proceedings of the grand jury, or irregularities in its procurement, cannot be reached. They are always within the discretion of the trial judge, who has the power to set aside the proceedings, as he may vacate the verdict of a petit jury, on motion. In Gibbs v. State, 45 N. J. Law, 379 (46 Am. Rep. 782), the adequacy of such remedy receives the following cogent vindication:

"Nor in abstract speculation would an argument of any force arise from these premises that the remedies thus provided are so utterly insufficient and unreasonable that it must be presumed that a further remedy exists. For my part, I can see no force whatever in such a suggestion. In the first place, we are to remember that the right in question, and which, in some measure, the law should

1

assuredly secure to the party, is not one that can be called an essential or fundamental right. It is not one necessary for the security of the person, life, or property. The requisite that an accusation of this nature shall proceed from a grand inquest is the provision which the law makes against frivolous or malicious public criminations. The safeguards to such provisions, as I have said, consist in the right to challenge the grand jury and the right to move the court to set aside the proceedings. Are such safeguards unreasonably deficient? I am at a loss to see how any one can so consider. If a man is tried for his life, and is convicted, and he then discovers that by the malice of the summoning officer the jury has been packed, and the trial has been a scheme to take his life, what remedy does the law give him in such an extremity? Absolutely none, but an application to the discretion of the court to set the proceedings aside; and yet it is argued that this same remedy is inadequate in its application to a similar proceeding on the part of a grand inquest. I must repeat that I cannot concede that a right to put in the plea in question belongs to the defendants ex debito justitiæ."

In U. S. v. Reed, 2 Blatchf. 449:

"These objections, however, to the proceedings in the selection and summoning of grand jurors, over and beyond the right of challenge, are presented to the court for the exercise of its sound discretion. It will, therefore, look into the facts presented, on which a charge is made against the regularity of the proceedings in the selection and summoning of grand jurors in a given case, and will hear the explanations on the other side, and its judgment will be determined accordingly. If it sees that there has been improper conduct in the public officers, which has resulted prejudicially to the party accused, it is bound to set aside all the proceedings. On the contrary, although there may be technical objections to the proceedings in point of strict regularity, yet, unless the court is satisfied that they have resulted, or may result, to the prejudice of the party accused, it will not set them aside, because its interposition in the case will not be required on the ground of justice either to the accused or to the public."

Similar language is used in the case of People v. Lauder, 82 Mich. 138, and would seem to imply that, like

other questions addressed to the discretion of the trial judge, the decision is not subject to review; certainly not, unless in cases of clear abuse. The presumption of the law is that the trial court is competent, and disposed to do justice, and its decision of questions addressed to its discretion should not usually be considered by superior courts. Under the pressure of hard cases, some of the appellate courts of this country have assumed to do so, and, when this is once done, it is afterwards difficult to avoid it, until it becomes a common thing to review discretionary action wherever there is a suspicion of injustice. It is destructive to the dignity and independence of the trial court, and it may be doubted if it is not productive of more injustice than good. It is urged in this case that the trial judge has sought to accomplish the indictment of a large number of innocent persons, through a grand jury who, from the proximity of the residence of its members to the county seat, are alleged to have been prejudiced against them. We can presume neither the one thing nor the other. So long as no error of law is found, we cannot overturn the decisions of courts upon the ground that the judges have erred in judgment or motive. With other prosecutions we have nothing to do upon this record. So far as the indictment is concerned, it appears to have been found by a jury of qualified persons, and the objection to the constitution of the jury is purely technical.

Section 527, 1 How. Stat., provides that

"The county treasurer shall receive for his services such compensation as the board of supervisors shall deem reasonable, to be allowed and ordered by them."

This is an old statute, and under it this court has held that the amount of compensation need not be fixed at a definite and specified sum in dollars and cents, and that it was competent for the board of supervisors to make prospective office charges a portion of the salary allowed, by a resolution reading as follows: "Resolved, that the salary

of the county treasurer for the present year be fixed at $1,500, and that he be allowed his ordinary office charges in addition." People v. Clerk of Board of Sup'rs.of Bay Co., 38 Mich. 307. Counsel for the people seem to concede that this decision would require a reversal of this case, but for the fact that, some two years after it was rendered, the legislature passed an act in relation to the fixing of salaries by the board, which is said to have been "intended to overcome its effect." See 1 How. Stat. § 508. It reads as follows:

"The annual salaries of all salaried county officers which are now, or may be hereafter by law, fixed by the board of supervisors, shall be fixed by said board on or before the thirty-first day of October prior to the commencement of the term of such officers, and the same shall not be increased or diminished during the term for which such officers shall have been elected or appointed."

We are not satisfied that it was intended to have the effect stated, and think that it was intended to prevent changes in salaries following the election of officers, before the beginning of or during their terms. We see no reason for saying that it was intended to abrogate section 527, or to affect it, except as it forbids changes during an official term. It is apparent that the amount of the salary fixed in this instance was indefinite and uncertain in a sense, because liable to be increased or diminished through variations in the amount of the collection fees. But the statute was designed to prevent repeated or untimely action by the board, and not to prohibit a method of fixing the salary which should make the amount contingent upon the work done, and which has already been approved, provided the resolution fixing the salary should state the rule by which the amount should be determined.

Being unable to concur in the construction given to these statutes, we cannot sustain the conviction. It is therefore set aside, and, inasmuch as the authority to receive the money appears from the record of the board of supervisors,

and cannot be successfully controverted, the defendant is discharged.

The other Justices concurred.

STODDARD v. GIASSON.

- TOWNSHIP

TOWNSHIP OFFICERS COMMISSIONER OF HIGHWAYS CLERK-REFUSAL TO COUNTERSIGN ORDERS-CUSTOM--MANDAMUS. 3 How. Stat. § 1415, provides that, on the performance of contracts, the commissioner of highways shall make payment therefor by orders upon the township treasurer, which shall be signed by such commissioner and countersigned by the township clerk. Section 1425 provides that the township clerk shall be the clerk of the commissioner of highways, and shall, under his direction, record his proceedings in a suitable book, and shall keep an accurate account of all orders drawn by the commissioner on the township treasurer. The section further provides that all books and papers relating to the business of the commissioner shall be preserved by the clerk in his office. Held, that mandamus would lie on the relation of the commissioner to compel the clerk to countersign orders drawn upon blanks of a stub book kept in the commissioner's possession, where refusal was based solely on a custom in the particular township of drawing such orders on a stub book kept by the clerk.

Certiorari to Wayne; Carpenter, J. Submitted March 14, 1899. Decided April 25, 1899.

Mandamus by Harry C. Stoddard, commissioner of highways for the township of Ecorse, to compel George F. Giasson, clerk of said township, to countersign certain orders on the township treasurer. From an order granting the writ, respondent brings certiorari. Affirmed.

James H. Pound, for relator.

Allan H. Frazer (Ormond F. Hunt, of counsel), for respondent.