148 Mich. 255 | Mich. | 1907
(after stating the facts). The case has been so fully stated in order that the scope of the attack which is made upon the act may be seen, and the points which we do not consider, as well as those which we consider, may be understood. We cannot avoid a consideration of the validity of the act to the point where we conclude that reason is shown for granting Or for denying the relief which is asked for. Beyond that point, we are not required to go.
It will be noticed that the constitutional amendment of 1893, like the one of 1899, while in some respects limiting the powers of the legislature, is not operative without legislative action. Unlike the last, the first amendment directs that county roads shall be under the control of a board of commissioners not exceeding five in number, who shall be elected by the people. The legislation which followed the first amendment was in conformity therewith. The system evolved by the legislature was a uni
An office is created before it is occupied, or executed, and an appointment to a particular office is an appointment to exercise the powers of the office. The name given to these officers, the powers conferred, and the obvious purpose of the law support the conclusion that they are local public officers, to whom is delegated a portion of the sovereign power of the State. The statute empowers them to execute duties heretofore devolved upon highway commissioners. See Campau v. Highway Commissioner of Grosse Pointe, 132 Mich. 365, 369. The property of the county is taxed for county roads, the statute imposes upon counties the duty to maintain such roads, and imposes a liability for injuries received on account of their being out of repair. In the sense that township and city highways are matters of local concern, so county roads are of local concern; and this conclusion cannot be affected by the fact that aid in building roads may be obtained from the State, or the fact that counties have heretofore exercised few powers of a purely local nature. The language of the constitutional provision is:
*267 “The legislature may also prescribe the powers and duties of boards of supervisors in relation to highways, bridges and culverts, and may provide for one or more county road commissioners to be elected by the people, or appointed, with such powers and duties as may be prescribed by law.”
The words “the people” can refer to none other than those of the county. If it was determined by the legislature that these officers should be appointed instead of being elected “by the people,” provisions for such appointment were required to be in conformity with the theory of local self-government. This conclusion may be rested as well upon mere construction of the language employed in the Constitution, as upon the idea that the source of the appointment must conform with the extent of the powers given. The power of appointment to public office belongs primarily to the people. The constitutional provision confers upon the legislature the power to determine whether the office shall be filled by election or by appointment, and, if by appointment, to prescribe the manner of appointment. The legislature did not appoint. It provided by whom appointments, and successive appointments, should be made. Relators were named according to the manner provided. In no sense, therefore, is it true that their appointments were provisional; and no person, officer, or body representative of the county made, or is charged with the duty of making, the appointments. Courts may not supply a method of appointment, since that would involve the exercise of legislative power. For the same reason, we are required to deny the soundness of the argument that because the board of supervisors of Wayne county have recognized the relators as officers, it would be held, in quo warranto proceedings, and upon the authority of People, ex rel. Attorney General, v. Lothrop, 24 Mich. 235, they are entitled to their offices. We conclude that the act, in so far as it provides for the appointment of county road commissioners for Wayne county, cannot be sustained?
“If, when the unconstitutional portion is stricken out, that which remains is compMte in itself, and capable of*269 being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. The difficulty is in determining whether the good and bad parts of the statute are capable of being separated within the meaning of this rule. If a statute attempts to accomplish two or more- objects, and is void as to one, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.” Cooley on Constitutional Limitations (7th Ed.), pp. 247, 248.
There are many reasons why we may not so construe this statute. The method of appointing commissioners for Wayne county was fixed after the constitutional amendment of 1899 was in effect, the powers given to them are the same as those possessed by such commissioners in other counties, the legislative scheme for county control of roads is distinctly invaded if commissioners do not possess and exercise the statute powers, and. last, but not least, of reasons, the electors of Wayne county adopted the system as it was presented. Nor can we admit the soundness of the argument made, except by determining in effect that, without further legislation, the scheme may be carried into effect in Wayne county by merely advisory or executive action on the part of the road commissioners, leaving all necessary legislative action to the board of supervisors. We cannot so determine, because boards of supervisors possess, generally, only such powers as are expressly given to them, the legislature has not given to the supervisors of Wayne county the powers necessary to carry the act into effect in that county, and the Constitution cannot be held to be, in this regard, self-executing
We do not understand that any contract made by relators is involved in this proceeding, or will be affected by our decision. Nor is this a direct proceeding to test the right of relators to office, or to determine the validity of a tax.
We affirm the judgment of the court below, because we are of opinion that relators should be denied the right to disburse the fund which has been created. It is, at least, a serious question whether many of the powers confided by the act to the commissioners, other than the one to tax, are not legislative in character. In asking relief, relators are asserting the legal right to the office and to the money — the right to continue to exercise the powers of the office. Proceedings are pending to try their right to the office. There has been, so far, little action by the public or by public officers which can be said to amount to acquiescence in their claims, and great confusion is likely to result if it is held that warrants drawn by them must be paid. That the courts may, under the circumstances disclosed, exercise their discretion in determining whether the writ of mandamus shall issue, is not to be doubted. Lawrence v. Hanley, 84 Mich. 399; Board of Sup’rs of Cheboygan Co. v. Township of Mentor, 94 Mich. 386. And see Board of Park Com’rs of Detroit v. Common Council of Detroit, 28 Mich. 228.