¶1Joseph Locke in his life-time was a coroner in the county of Wayne, and, as such officer, held an inquest on the dead body of a stranger, a non-resident of the State, whose name was Andrew J. Levy, on the thirteenth day of April, 1885, at the house of correction in the city of Detroit.
¶2Mrs. Locke, after the death of her husband, and as the administratrix of his estate, presented an itemized bill for the expenses, services, and usual disbursements in such cases, to Judge Speed, of the Wayne circuit, for allowance in pursuance of chapter 336, How. Stat. The petition for allowance, and accompanying proofs, showed the services were rendered by Locke as coroner, and that the expenses and disbursements claimed for were duly made; that the charge therefor, and for his services, were such as are provided for by law (see § 9593, How. Stat.);
¶3The circuit court refused to order the allowance of the-bill, for the following reasons, stated in his return to the order of this Court to show cause why a mandamus should not issue requiring him to indorse his order of approval, viz.:
1. It is not competent for the Legislature to impose upon the circuit judge the duty of auditing accounts against the State.
2. The particular statutes (How. Stat. §§ 9593-7) make-no provision for either hearing of parties, or trial by testimony of witnesses, nor do they provide, other than by the-information afforded by the certificate of the coroner, any means of ascertaining the correctness of the accounts.
3. The power under such a statute, being merely one to-audit, and not to try and determine, is not a judicial power,, which, under the constitution, can be exercised by the courts..
¶4*412I think the circuit court should have indorsed the order of allowance upon this account, and I am unable to discover any sufficient reason why he should not be required to do so now.
¶5The account was one proper to be paid by the State, if found correct. The proofs accompanying the account as presented, were sufficient, prima facie, to show its correctness.
¶6The petitioner’s claim is against the State. The State cannot be sued for it: Michigan State Bank v. Hastings, Walk. Ch. 9; S. C. 1 Doug. 236; Ambler v. Auditor General, 38 Mich. 750 ; Ayres v. State Auditors, 42 Id. 427; U. S. v. Clarke, 8 Pet. 436 ; Reeside v. Walker, 11 How. 272; and it is only after the order of allowance has been made by the circuit court that the State Treasurer is permitted to pay the relator’s claim: How. Stat. § 9593.
¶7Article 8, § 4, of the constitution provides that—
“ The Secretary of State, State Treasurer, and Commissioner of the State Land Office shall constitute a board of State Auditors to examine and adjust all claims against the State not otherwise provided for by general law.”
¶8At the time this article was adopted the clause of the statute now under consideration was in force, requiring the circuit court to allow the coroner’s claim for services for holding inquests, and disbursements made, the same as it now exists, and had been during our State existence, and has so *413ever since continued: Rev. Stat. 1838, p. 677, § 10 ; Rev. Stat. 1816, p. 705, § 11; 2 Comp. Laws 1857, p. 1598; Comp. Laws 1871, p. 2183, § 11; How. Stat. § 9593.
¶9Both the right and duty of the county or circuit court to make the order of approval asked for in. this case, so far as I have been able to ascertain, do not seem to have been questioned until this application; and I think it is too late now to-urge that it was incompetent for the Legislature to require such service of circuit courts. Goodall v. Henkel, 60 Mich. 382 (head-note 3). Such action of the Legislature, followed by long and continued acquiescence by the people and the courts, unless in open and palpable violation of some clearly expressed provision of the constitution, should be allowed to-control. I think the case comes within the clause, “ otherwise provided by law,” contained in the section of the eighth article of the constitution above referred to.
¶10It is suggested by the Attorney General that it was the design of the framers of the present constitution that the duties of the three departments of the State government should be kept separate as far as possible, and that those appertaining to the other departments should not be required of the judicial. This is unquestionably true. Houseman v. Kent Circuit Judge, 58 Mich. 367. But the act required to be done is preliminary in its character, and in its nature, toa certain extent, is judicial, and, in rny judgment, more properly comes under the duties of that department than under either of the others.
¶11It is unnecessary now to decide what course might be taken in the event of the refusal of the circuit court to give the order of approval on the merits of the claim. Still I think I may safely say that due process of law will in some manner be found available to the relator before she can finally be deprived of her just rights.
¶12The statute contemplates that a ¡prima faeie case will be made by the petitioner, by affidavit or otherwise, of the reasonableness and correctness of the claim presented, and for that purpose the circuit judge may require such further proofs as he may deem necessary; but when such a case is *414made, and it satisfactorily appears to the court that the account presented is correct, the ox’der for allowance should be made.
¶13I think in this case a mandamus should issue requiring the circuit judge to consider the case presented by the relator, and, if-satisfied that the account is correct, he should gi’ant the order of allowance.
¶14 Amended by Act 108, Laws of 1885.
¶15 The prima facie showing referred to was as follows:
¶16The petition of the administratrix, with a certified copy of her letters, as also the following proofs of the correctness of the account of her deceased husband, as coronel-, which she asked the court to indorse, namely:
¶171. Affidavit of hall-master of Detroit house of correction showing his presence whep inquest was held, and that Locke acted as coroner, and rendered the services and incurred the expenses charged for in the account rendered.
¶182. Affidavit of physician present at inquest, who had treated deceased, and who testified to cause of death.
¶193. Affidavit showing admission of deceased to house of correction from Arkansas, convicted (in federal court) of introducing liquor into Indian Territory.
¶204. Inquisition signed by coroner and jury.
¶215. Itemized account of coroner for his fees and for jurors’ fees, amounting'to f20.36, certified by him to be correct.
¶22.{dissenting). I do not think a judge can be compelled, unless he chooses, to perform duties not judicial.