146 Mich. 45 | Mich. | 1906
These are quo warranto proceedings instituted in the circuit court for Livingston county
‘ ‘ Sec. 5. The county drain commissioner for the county of Livingston shall hold office for a term of two years and shall take and file the constitutional oath of offióe with the county clerk of the county of Livingston, together with the bond now required by law for the faithful performance of the duties of his office; the term of his office shall begin on the first day of January following his election: Provided, That when the term of office of the present drain commissioner of the county of Livingston expires on January one, nineteen hundred six, the governor of the State of Michigan shall appoint his successor, who shall hold office for the term of one year or until the duly elected drain commissioner for the county of Livingston, takes the constitutional oath of his office and assumes the duties thereof on the first day of January, nineteen hundred seven. ”
Relator was appointed by the governor October 5, 1905, for the term of one year beginning January 1, 1906. At the October, 1905, session of the board of supervisors of Livingston county, to wit, on October 10, 1905, said board by resolution declared this act of the legislature authorizing this appointment by the governor unconstitutional, and elected respondent who was the then incumbent of the office, drain commissioner of Livingston county “for the ensuing term. ” Both these parties filed their official bonds which were approved by the county clerk, and both took and filed the oath of office. On January 2, 1906, relator made due demand upon respondent to surrender to him the office, and books, papers, and records appertain
1. Because the act contravenes the right of local self-government.
2. That it is in conflict with article 14, §' 9, of the Constitution of the State which prohibits the State from engaging in works of internal improvement.
There are no disputed facts in the case. The only question before this court is whether the court was in error in holding that portion of the act authorizing the appointment hy the governor unconstitutional. We can eliminate the question as to whether this appointment can be held as •one the legislature might authorize on account of exigency, for we are satisfied that if that is the only reason invoked to sustain it, that portion of the statute must be declared unconstitutional. The statement of this court upon this point as given in Moreland v. Millen, 126 Mich. 385, 386, is certainly applicable:
“ It is not apparent to us, from the terms of the law, or from circumstances of which we may take judicial notice, that there was a necessity for departing from the rule which gives to the city the right to select its officers for the conduct of its local affairs. * * * Not only do we discover no evidence of an exigency, but the act itself indicates its absence, as it provides for appointment * * * in case of a vacancy.”
If a drain commissioner may be said to be strictly a local officer this case cannot be distinguished from the case of Moreland v. Millen, supra, and must be controlled by it.
It is urged by the relator that a drain commissioner is not an ordinary local officer; that he may be considered by the courts, and in fact is, an officer acting by virtue of the police powers of the State, and exercising its functions
The case of Wilcox v. Paddock, 65 Mich. 23, relied upon by respondent, is not in point. That case does not hold that land may be condemned and taxes levied for the purposes of a drain for other than purposes of the public health without the consent of the individual. In that case the question now before us was not discussed. The act under consideration was held unconstitutional as contravening the prohibition ¿gainst the State engaging in any work of internal improvement, and that the taxing power of the State was being used in defiance thereof; that the legislature had no power to confer authority upon the probate judge of Gratiot county to appoint a commissioner foreign to the county to determine the necessity of the work, and assess taxes for benefits upon land and to superintend such improvement; and that the title of the act was defective. The question of the police powers of the State is not considered. In the opinion it is expressly stated that under the act—
“ The good of the public health need not be necessarily considered. * * *
“The lands are not assessed for taxation because of benefits to the public health, but the taxes are assessed upon and paid by the lands, easements and property benefited thereby (referring to the construction of the improvement), and by any township, city or village by reason of the benefit to the public health, and as a means of improving any public highway. * * * Her lands are assessed for a work of internal improvement as well as for the benefit of the public health.”
The constitutionality of the general drain laws of the State has been upheld by this court. Matthias v. Cramer,
The court was in error in holding that part of the act providing for the appointment of the drain commissioner unconstitutional, and denying the prayer of the relator that he be declared entitled to his office.
A judgment of ouster should have been entered against respondent. The judgment of the circuit court is reversed, and a judgment declaring relator entitled to the office, and of ouster against respondent entered in this court, with costs of both courts to relator.