Ebright v. Buck

326 Mich. 208 | Mich. | 1949

Bushnell, J.

Plaintiff Ernest L. EbrigM asserts that on November 5, 1946, he was elected road commissioner of the county of Roscommon, and is lawfully entitled to occupy that office. He has appealed from a judgment in quo warranto, which determined that the lawful incumbent of that office is defendant Amos Buck.

In 1915, Roscommon county adopted the county road system. For some years county road commissioners had been elected. The 6-year term of one of the commissioners terminated on December 31, 1946. In a primary election held on June 18, 1946, Ebright was nominated as a candidate for such office. Eight days later the county board of supervisors, with 10 of its 11 members present, unanimously adopted the following resolution:

“Whereas, at the present time the board of county road commissioners is elected by popular vote of the electorate within the county, and

“Whereas, the functions of said board are so far removed from the direct attention of the governing-body of the board of supervisors for Roscommon county, and •

“Whereas, this board is of the opinion that more efficient service of.the county road commission can be rendered to the public by the appointment of the members to the county road commission,

“Now, therefore, be it resolved, That after this date, the vacancies occurring in the office of county road commissioners shall be filled by appointment on majority vote of the board of supervisors.”

At a meeting held on October 23, 1946, at which 10 of the 11 members were present, the board rescinded its resolution of June 26, 1946 and adopted the following:

“Whereas, at the present time the board of county road commissioners is elected by popular vote of the electorate within the county, and

“Whereas, the functions of said board are so far removed from the direct attention of the governing-body of the board of supervisors of Roscommon county, and

“Whereas, this board is of the opinion that more efficient service of the county road commission can be rendered to the public by the appointment of the members of the county road commission.

“Now, therefore, be it resolved that after this date, and commencing with the term to start January 1, 1947, the office of the county road commissioner shall be filled by appointment on a majority vote of the board of supervisors as provided by CL 1929, § 3981, amended.”

The next day the board met pursuant to adjournment with 9 of its members present. By a majority vote of those present Buck was appointed to the office of county road commissioner for the term beginning January 1,1947.

At the general election held on November 5, 1946, Ebright received the largest number of votes cast for this office. He was subsequently certified by the board of county canvassers as elected.

The applicable statute (CL 1948, § 224.6 [Stat Ann § 9.106]) was construed in Matthews v. Montgomery, 275 Mich 141, 145, as follows:

“Plainly, the purpose and effect of the statute is to confer upon the board of supervisors the power to change the method of selection of commissioners from time to time as the board shall deem advisable.”

This power was exercised by both the June and October resolutions of the board and in conformity with the statutory requirements. The fact that Ebright was nominated in a primary election previous to the adoption of these resolutions gave him no “contract right” to the office. Sprister v. City of Sturgis, 242 Mich 68, 72. The effect of these resolutions was to abolish elections as a method of filling the office of road commissioner and substitute therefor the statutory alternative of appointment. Thereafter the office could be filled only by appointment by the board of supervisors. Belator Ebright was not appointed and does not claim to have been appointed.

Ebright argues that defendant Buck’s appointment was a nullity because Buck received only a majority vote of those supervisors present rather than the majority vote of the “members elect.” The language of the statute construed in Matthews v. Montgomery, supra, must be read in pari materia with statutes covering the same subject matter and be given the effect intended by the legislature. Once the change in the method of selection of the county road commissioners is accomplished, the filling of those offices, like filling vacancies, is the ordinary business of the board of supervisors and requires only the action of a majority of those present. CL 1948, § 46.3 (Stat Ann § 5.323); CL 1948, § 224.8 (Stat Ann § 9.108); Howland v. Prentice, 143 Mich 347.

Furthermore, relator could only recover judgment in this private quo warranto action by showing his own good title. Vrooman v. Michie, 69 Mich 42, 45. Ebright did not sustain the burden of showing good title to the office he claims.

The judgment is affirmed. A public question being involved, no costs are allowed.

Sharpe, C. J., and Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred.