Dubois v. Riley Township Board

126 Mich. 587 | Mich. | 1901

Grant, J.

Upon appeal to the township board from the decision of a highway commissioner in establishing a public highway, is the deputy township clerk competent to sit as a member of the hoard in the proceedings upon appeal, under 2 Comp. Laws 1897, § 4042 ? The clerk in this case had become incapacitated from sitting as a member of the board by reason of his having sat in the same matter upon a former appeal. Locke v. Highway Com’r, 107 Mich. 631 (65 N. W. 558).

The township board consists of two justices of the peace, the supervisor, and the township clerk. 1 Comp. Laws 1897, § 2343. In case of the incompetency of either to act, section 2344 provides for filling the vacancy. The township clerk is a constitutional officer. The township board, sitting as a board of review, acts in a quasi judicial capacity. The deputy clerk is a creation of the statute, and not of the Constitution. The deputy may be of any race, sex, color, or age. Wilson v. Genesee Circuit Judge, 87 Mich. 493 (49 N. W. 869, 24 Am. St. Rep. 173). The deputy acts for his principal, and not in any independent capacity. He cannot perform duties which his principal, who is responsible for his acts, is incapacitated to perform. When the statute imposes a duty of this character upon certain officers, it means those officers, and not the deputies which thej- may by statute be authorized to appoint. The court therefore was correct in holding the action of the board void.

The court entered an order for the board to reconvene and consider the appeal. We think this was beyond the authority of the court upon certiorari. The sole question presented by the writ is, Was the action valid? The only order that could be entered was one of affirmation or reversal, quashing the proceedings. Whitbeck v. Common Council of Hudson, 50 Mich. 86 (14 N. W. 708); Ritter v. Daniels, 47 Mich. 617 (11 N. W. 409). The judgment will therefore be modified in this respect,- and judgment entered in this court holding the action of the township board void. No costs will be allowed.

The other Justices concurred.