284 N.W. 711 | Mich. | 1939
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *240
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *241 Plaintiff was appointed to the office of deputy register of the probate court of Wayne county by Hon. Edward Command, judge of probate, March 14, 1935. Judge Command had been chosen by his colleagues as the judge having the power, during 1935, of appointment, nomination, and removal, under the terms of Act No. 226, Pub. Acts 1933 (Comp. Laws Supp. 1935, § 13864, Stat. Ann. § 27.442). He was the senior probate judge in point of continuous service and would have had the sole power of appointments and removals under the act (3 Comp. Laws 1929, § 13864) in effect prior to the enactment of Act No. 226, Pub. Acts 1933, if Act No. 226, Pub. Acts 1933, was unconstitutional. Defendant Joseph A. Murphy was selected to act as presiding probate judge for 1936, and defendant Thomas C. Murphy for 1937. *242
In December, 1936, Judge Joseph A. Murphy asked plaintiff to resign, saying, "There has been a lot of political pressure," which he could not ignore. Plaintiff refused to resign, contending Judge Murphy could not remove him since he had been appointed by Judge Command. December 14, 1936, plaintiff received a formal letter of removal, effective December 31, 1936, from Judge Joseph A. Murphy. There is no showing plaintiff's work was unsatisfactory or other cause existed for his removal.
Plaintiff reported for work January 2, 1937, and found another man had been appointed in his place. Plaintiff thereafter presented himself at the probate office on several occasions and offered to continue his services.
December 27, 1937, plaintiff filed a bill in chancery alleging that Act No. 226, Pub. Acts 1933, was unconstitutional and void, his discharge illegal, and, under 3 Comp. Laws 1929, §§ 13864, 13875, 13876 (Stat. Ann. § 27.453, 27.454), only Judge Command could remove him from office and then only for cause after proper hearing. Plaintiff asked that the board of county auditors and the county treasurer be enjoined from paying the compensation attached to the office to any other person than himself.
Defendants, Judges Joseph A. Murphy and Thomas C. Murphy, of the Wayne county probate court; John C. Cowan, Edward H. Williams, and Ray D. Schneider, members of the board of auditors of Wayne county; and Jacob P. Sumeracki, Wayne county treasurer, answered, defended the constitutionality of the act, asserted the validity of plaintiff's discharge, and interposed the defense of laches by reason of plaintiff's failure to file his bill of complaint until a year after his discharge. *243
On filing the bill of complaint, the circuit judge issued an order directing defendants to show cause why a temporary injunction as prayed should not issue, and during the pendency thereof restrained defendants from in any way, manner, or form paying or approving the compensation attached to the office of deputy probate register to any other person. On the hearing, the circuit judge denied the motion to dismiss, without prejudice, and reserved decision on the order to show cause, without dissolving the restraining order.
On trial, the circuit judge determined that Act No. 226, Pub. Acts 1933, was valid; that plaintiff had been appointed to office for a definite term and, whether removable either by Judge Command or Judge Murphy, he could be removed only for cause; that the removal power was not exercised in a proper manner and that plaintiff was not legally removed; that laches is an affirmative defense and no testimony of laches was offered, except that the bill was not filed until December 27, 1937, and meanwhile another deputy probate register occupied the desk formerly occupied by plaintiff and performed his duties; and that plaintiff was not barred from relief by laches.
Decree was entered adjudging the removal from office and discharge of plaintiff illegal and ordering his reinstatement. Compensation accruing to plaintiff during his illegal discharge was referred to the board of auditors for audit.
Petition for rehearing was filed June 6, 1938, with supporting affidavit setting up that the county of Wayne had expended $3,795 during the period of plaintiff's delay by reason thereof. Rehearing was denied. *244
Defendants appeal, claiming the court erred in holding the removal of plaintiff could be only for cause, and in holding plaintiff was not barred from relief by laches. Plaintiff cross-appeals, claiming the trial court erred in finding Act No. 226, Pub. Acts 1933, constitutional.
3 Comp. Laws 1929, § 13876 (Stat. Ann. § 27.454), provides:
"The probate judge or judges of any county having a probate register may appoint one or more deputy probate registers who shall have such compensation as shall be fixed by the board of supervisors of said county. The term of office of such deputy probate registers and their powers shall be the same as those prescribed by law for probate registers."
3 Comp. Laws 1929, § 13875 (Stat. Ann. § 27.453), provides:
"In every county in this State the judge of probate may appoint a probate register, who shall hold such office during the term for which the judge of probate making the appointment shall have been elected, unless sooner removed by the judge of probate."
3 Comp. Laws 1929, § 13864, as amended by Act No. 226, Pub. Acts 1933 (Comp. Laws Supp. 1935 § 13864, Stat. Ann. § 27.442), provides:
"In counties having one hundred eighty thousand inhabitants there shall be two judges of probate, and in counties having seven hundred fifty thousand inhabitants, or more, there shall be four judges of probate, two of whom shall be elected at each alternate biennial election for terms of four years, and in counties having five hundred thousand inhabitants there shall be three judges of probate, as hereinafter provided. They shall have equal powers, duties and *245 compensation, except that the power of appointment, nomination and removal of the several employees provided by law for such courts, and the offices connected therewith, and the general direction and control of the business of such court, including the division of the work between the judges, shall be vested in counties having less than seven hundred fifty thousand inhabitants in the judge having served for the longest period continuously, and, in counties having seven hundred fifty thousand inhabitants, or more, in the judge who shall be chosen by the several judges in any such county, or, in the case no judge shall receive a majority vote of such judges, then in the judge of said court selected by the governor: Provided,however, That in counties having seven hundred fifty thousand inhabitants, or more, no judge shall be eligible to serve in such capacity for a longer period than one year during his term of office. A selection as herein provided shall be made within fifteen days of the effective date of this act. The judge so selected shall exercise the duties and powers herein provided until January one, nineteen hundred thirty-four. Thereafter a similar selection shall be held by January fifteenth of each year and the judge so selected shall exercise the powers and duties herein granted for a period of one year from the date of his selection. Whenever the United States census shall show that any county has one hundred eighty thousand inhabitants and has but one judge of probate, the additional office first herein provided for shall be deemed to be created and vacant, and whenever the United States census shall show that any county has five hundred thousand inhabitants and has but two judges of probate, the additional office next herein provided for shall be deemed to be created and vacant, and whenever the United States census shall show that any county has seven hundred fifty thousand inhabitants the additional office next herein provided for shall be deemed to be created and vacant, which vacancy or vacancies shall be filled *246 by appointment of the governor and the person so appointed shall hold office until his successor is elected and qualified. At the next general November election a successor to the additional judge herein provided for shall be elected to hold office until the general election following, at which election his successor shall be elected and hold office for the full term of four years from and after the thirty-first day of December following and until his successor is elected and qualified. Nothing contained herein shall be construed to affect the tenure of office of those judges of probate or their successors heretofore elected and qualified: Provided, That any county that has failed to elect an additional probate judge, or judges, under this section, prior to July one, nineteen hundred thirty-two, shall be not entitled to elect any additional judge, or judges, under the provisions of this section."
Act No. 226, Pub. Acts 1933 (amending 3 Comp. Laws 1929, § 13864), provides the so-called "presiding judge" shall have the power of removal. This seems to divest any other probate judge of power to remove from office. 3 Comp. Laws 1929, § 13875, which governs the term of office of probate registers, and their deputies, by reference, must refer to the presiding probate judge when it says "shall hold such office during the term for which the judge of probate making the appointment shall have been elected, unless sooner removed by the judge ofprobate," since the only judge of probate possessing removal power is the presiding judge.
Where there are two modes of construing a statute, that should be followed which fixes the term at the shortest period.
"One of the most approved rules is, that of two possible modes of construing the statute, that one *247 should be followed which fixes the term at the shortest period. This principle has been illustrated in interpreting a statute providing that a stenographer appointed by a judge 'shall hold his office during the term of the judge appointing him.' Although it was possible to assert that the appointee should hold office for the term for which the appointing judge had been elected, it was decided that the act meant that the stenographer should go out of office when the judge making the appointment went out, this being the shorter of the two alternatives." 22 Rawle C. L. p. 550, § 250.
See, also, State, ex rel. Major, v. McKay,
Applying this rule to the statute, we hold the deputy probate register's term is subject to termination by the presiding probate judge.
In Hallgren v. Campbell,
"Our State system favors appointments for fixed periods, and almost entirely rejects the policy of removals at will." *248
The "State system" referred to in the Mead Case was to be found in the statutes then in force. There are no prior decisions of this court to that effect. This statement was made incident to the construction of a statute which gave no expresspower of removal as given in the statute in question. Counsel for relator had attempted to show implied power to remove, in the face of another statute which gave the supervisors power to remove on the specific grounds of neglecting or refusing to report or to give bonds. The court said:
"It would therefore seem that the legislature meant to confer on the supervisors a power to remove on the two specified grounds, but had no intention to give the right on any other ground, or to delegate to the supervisors a discretionary general power to remove. The provision in the supervisors I act, * * * would be rendered entirely gratuitous if a general authority to remove were to be implied or should be considered as a consequence of the power to appoint."
In Hallgren v. Campbell, supra, 261, the court said:
"We have not found any case where an officer who was appointed for a fixed term (and when the power of removal was not expressly declared by law to be discretionary) has been held to be removable except for cause."
It is true that offices created by the Constitution and having a definite term cannot be vacated before the expiration thereof without a trial of some sort; but the legislative office or offices created by the legislature may be filled, vacated or abolished as the legislature may prescribe. *249
See Cooley, Constitutional Limitations (3d Ed.), p. 312; 1 Dillon, Municipal Corporations (3d Ed.), §§ 245, 250.
In Lawrence v. City of Cincinnati, 5 Ohio Dec. Reprint, 228 (3 American Law Record, 597) it was held where a municipal board appointed an officer for one year "unless removed from office by order of the board during said period," it was not an appointment for a fixed term, but one merely at the pleasure of the board and such officer might be removed at any time without cause.
See, also, People, ex rel. Batey, v. Tierney,
31 A.D. 309 (52 N.Y. Supp. 871 ); Ida County Savings Bank v.Seidensticker,128 Iowa, 54 (102 N.W. 821 , 111 Am. St. Rep. 189, 5 Ann. Cas. 945); Sommers v. State,5 S.D. 584 (59 N.W. 962 ); Mechem, Public Offices and Officers, §§ 448, 454, 459, 460; State, ex rel. Attorney General, v. Hawkins,44 Ohio St. 98 (5 N.E. 228 ); People, ex rel. Sims, v. Fire Commissioners ofCity of New York,73 N.Y. 437 ; Field v.Commonwealth,32 Pa. 478 .
"Where a statute unqualifiedly declares that a designated public agency shall have power to remove a particular officer from office, as where it declares that such agency 'may appoint and remove' the officer, it is usually concluded that no procedural condition attaches unless clearly implied in some other provision of the statute. * * * A like result follows where the statute places the removal within the unqualified individual discretion of a particular officer." Note, 99 A.L.R. p. 353, citing decisions from 18 States.
In State, ex rel. Holland, v. Ledwith,
See, also, State, ex rel. Hatton, v. Joughin,
In People, ex rel. Brundage, v. Hansen,
It was said in Sevina v. Hickok,
It is generally held that unrestricted power of removal expressed in a statute gives authority to dismiss without assigning any cause. People, ex rel. Griffin, v. Lathrop,
Where a statute provided for appointment of a commissioner of health for a term of two years "unless sooner removed or retired," and in another section provided all such appointees should "hold the office to which they may be appointed until the end of the mayor's term of office and until their successors are appointed and qualified, unless sooner *251
removed," it was held that an absolute power of removal was given, not restricted to cause. State, ex rel. Gapen, v.Sommers,
See, also, State, ex rel. Sweeney, v. Stevens,
In Trainor v. Wayne County Board of Auditors,
"And, although it is the undoubted policy of our State, and best in accord with our system of government, that officers should hold for fixed terms, and not be subject to removal at the will or caprice of the appointing power, yet there is noconstitutional objection to the conferring of such power ofremoval in offices not elective, and the legislature hasundoubted authority to do so."
Although there is authority that an officer whose tenure is a fixed term cannot be removed without cause, notice, and hearing (Todd v. Dunlap,
In Drolshagen v. County of Wayne,
The statute in question makes the term of office subject to the proviso "unless sooner removed by the judge of probate," thus placing removal within the discretion of the probate judge.
Defendants claim the trial court erred in ruling there was not sufficient showing to warrant a determination that plaintiff was barred from relief by laches. The trial court was right in holding:
"Laches is an affirmative defense, and no testimony bearing on this question of laches was offered aside from the fact that the bill was not filed until December 27, 1937, and that meanwhile another deputy register occupied the desk formerly occupied by plaintiff and performed the duties formerly performed by the plaintiff."
Mere lapse of time, without a showing of prejudice, will not constitute laches. Cudahy Bros. Co. v. West Michigan Dock Market Corp.,
Is Act No. 226, Pub. Acts 1933, constitutional? Is the basis of classification reasonable? It was held in Hayes v. AuditorGeneral,
"The judicial doctrine of classification is that all cities having the same characteristics of a substantial equality of population should have the same corporate powers and be subject to the same restrictions although another class might be formed upon a substantial difference in population. (State, ex rel.Knisely, v. Jones,
In People v. Brazee,
"The contention of the respondent that the act in question violates article 5, § 30, of the State Constitution, in that under the guise of a general act it is really local legislation, is, in our opinion, untenable. It is true that it provides for a license fee of $100 in cities containing over 200,000 population, and but $25 in other cities, and it is likewise true that at the present time there is but one city in the State of Michigan which has a population of more than 200,000. This fact, however, is not necessarily controlling. The act operates upon all citizens alike, except that a larger sum is charged for the license in larger cities than in smaller ones. * * * It may well be that the legislature appreciated the fact that inspection for the purpose of proper regulation in large cities would be much more expensive than such inspection in smaller cities, and that the larger sum was fixed for the purpose of meeting such added expense of administration."
"If the classification is founded on correct principles, it is no objection that a class may contain but one county at the time the act is passed." 1 Lewis' Sutherland, Statutory Construction (2d Ed.), § 217.
See, also, Stone v. Wilson, 19 Ky. L. Rep. 126 (39 S.W. 49);State, ex rel. Anderson, v. Sullivan,
"The effect of all of our decisions, in short, has been that where there is a substantial difference in population, and the classification is made in good faith, reasonably related to the purpose to be effected and to the difference in population which forms the basis thereof, and not merely arbitrary, it is a general law, although at the time it may be applicable to only one political subdivision of the State; but that if the classification bears no reasonable relation to the difference in population, upon which it rests, in view of the purpose to be effected by such legislation, and clearly shows it was merely fixed arbitrarily, guised as a general law, and, in fact, is a local law, it is then in plain violation of the Constitution and cannot be upheld." Reynolds v. Collier,
See, also, West Chicago Park Commissioners v. McMullen,
"Whatever diversity of views may have heretofore arisen, it is now authoritatively settled in this State that a general law is not unconstitutional because based upon classification of school districts according to population. Burton v. Koch,
The Constitution (1908), art. 7, § 14, provides:
"The legislature may provide by law for the election of morethan one judge of probate in counties with more than onehundred thousand inhabitants."
This is authority for legislative classification of probate judges according to population, and plaintiff admits it is a reasonable classification, but contends it is not proper to specify that probate courts having four judges should choose their presiding judges in *256 a manner different from that used by all other probate courts. It is apparent the administrative problems of a court having four judges may be different from those of courts having two or three judges. There is a greater possibility of conflict over seniority in point of service. As some basis for the classification exists, this court has no power to inquire into the wisdom of the legislative action.
In Kates v. Reading,
"A class of cities or counties, based upon population, may be valid, though it embraces but one city or county, if others may come into the class on attaining the specified population." 1 Lewis' Sutherland, Statutory Construction (2d Ed.), § 215.
See, also, City of Indianapolis v. Navin,
The act in question provides a specific method for its application to other counties as they acquire greater population. It would, therefore, seem to come within the rule set up in Kates v. Reading, supra.
See, also, Owen v. City of Sioux City,
It is contended by plaintiff the "open end" provided in the act is closed by operation of two clauses contained therein, one that:
"A selection as herein provided shall be made within fifteen days of the effective date of this act;"
and the other:
"Provided, That any county that has failed to elect an additional probate judge, or judges, under this section, prior to July one, nineteen hundred thirty-two, shall be not entitled to elect any additional judge, or judges, under the provisions of this section."
If the legislature had intended the above clauses to prevent inclusion of counties subsequently acquiring the required population, it would not have provided a method for such inclusion. To adopt plaintiff's construction, it must be held that the legislature inserted provisions for inclusion of additional counties when they acquired the requisite population, knowing such provisions were nullified by the clauses pointed out. An interpretation of a statutory provision which gives effect to all of its provisions is favored.Lovalo v. Michigan Stamping Co.,
"It is the duty of courts, so far as practicable, to reconcile the different provisions of a statute so as to make the whole of it consistent and harmonious; *258
and where this is impossible, to give effect to what was manifestly the intention of the legislature." Attorney General,ex rel. McKay, v. Detroit Erin Plank Road Co. (syllabus),
"Statutes should be so construed, if possible, as to give full effect to every part and render no portion nugatory, every clause and word being presumed to have some force and meaning."Attorney General, ex rel. Zacharias, v. Board of Education ofCity of Detroit (syllabus),
See, also, Rohde v. Wayne Circuit Judge,
The clauses pointed out were to promote speedy action on the part of counties having the required population.
We think Act No. 226, Pub. Acts 1933, is constitutional; that the judge chosen by his colleagues to exercise the power of appointment, nomination, and removal, for the year, is the one to exercise such power; that removals from the office here in question may be made without cause; that plaintiff is not estopped by laches.
Decree reversed, and bill dismissed, but without costs, a public question being involved.
BUSHNELL, SHARPE, CHANDLER, and McALLISTER, JJ., concurred with POTTER, J.
Concurrence Opinion
I join in accepting and applying the views of Mr. Justice BUTZEL in Drolshagen v. County of Wayne,
BUTZEL, C.J., concurred with WIEST, J. NORTH, J., took no part in this decision. *259