23 N.W.2d 644 | Mich. | 1946
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *236 Plaintiff has held the office of register of deeds for Oakland county since January 1, 1939, having been re-elected for each succeeding term. In March, 1942, he enlisted in the United States navy. On June 19th, following, he was assigned to active duty, continuing in the service until his final discharge on October 15, 1944. During this period the work of the office was carried on by plaintiff's deputy and employees. Plaintiff claims that he communicated with the deputy from time to time regarding office affairs, that he returned to Pontiac at intervals, and on each occasion gave as much time to the affairs of the office as was possible.
During the time that plaintiff was in active service in the navy he did not draw the salary fixed for the office pursuant to action of the board of *237 supervisors. At his request no checks were issued to him. On his discharge from service he undertook to arrive at a settlement with the board of county auditors for his salary during the period in question. No agreement was reached, however, and plaintiff, under date of December 20, 1944, filed a claim for salary from July 15, 1942, to October 15, 1944, in the aggregate sum of $8,637.50. Defendant board denied the claim, whereupon plaintiff appealed to the circuit court. Plaintiff there recovered judgment for the amount of his claim, together with interest from the date of demand for payment. It is conceded that the amount of the judgment was correct if plaintiff was entitled to recover at all.
Defendant board of auditors, in rejecting plaintiff's claim, relied on certain provisions of Act No. 275, Pub. Acts 1913 (1 Comp. Laws 1929, § 1203 et seq. [Stat. Ann. § 5.551 etseq.]). Section 9 of said act, so far as material here, reads as follows:
"The said board shall have power, and it is hereby expressly authorized and directed:
"First, To audit all claims which are chargeable against the said county, as in section 8 above provided, and to draw warrants therefor, duly signed by its chairman and countersigned by the clerk; but no warrant shall be drawn or issued by said board except for the amount of a just claim against said county, which has been duly allowed by said board.
Section 8, referred to in the provision above quoted, reads in part:
"No claim against any county adopting the provisions of this act, including all claims incurred by the county drain commissioner, shall be paid by the treasurer of said county until it shall have been duly audited and allowed by the board of *238 county auditors, and payment of an audited claim shall be made only upon a warrant duly signed by the chairman of said board, and countersigned by the clerk, excepting salaries fixed by law or the board of supervisors of said county and jury and witness fees, primary school money and such other funds as may come into the hands of the county treasurer, which are created by and disbursed under special statutes relating thereto."
Said Act No. 275 of 1913 is entitled:
"An act to authorize the boards of supervisors of counties to create a board of county auditors, appoint such officers, and prescribe their powers, duties and compensation."
It is the position of the defendant board that, having been created pursuant to the provisions of this act, it is subject to the provisions thereof, including section 9, above quoted, and that it may not properly allow a claim unless such claim is, in the judgment of the board a "just claim." In a communication to plaintiff advising him that his claim had been disallowed, the board said:
"You will notice that the word `just' appears to be the yardstick by which we, as a board, must be guided in auditing a claim for payment."
This statement summarizes the position of the defendants in the trial court, and on appeal to this court. It is not denied that plaintiff's claim is a legal one, but it is insisted that it must meet the further test of being "just" within the meaning of ordinary definitions of that word.
Counsel for defendants contends in his brief that plaintiff had the choice of two remedies, either a mandamus proceeding to compel the payment of salary, based on plaintiff's legal rights, or the presentation *239 of his claim to the board of auditors for action thereon. It is argued that, having chosen the latter method of procedure, plaintiff thereby subjected his claim to the right of defendant board to reject it for the reason given as the basis for such action, namely, that it was not, in the opinion of the board, a just claim.
No question can be raised as to the legality of plaintiff's claim against the defendants. He was the lawful incumbent of the office during the period for which he seeks to recover the salary. There is nothing in the record to indicate that the duties pertaining to said office were not properly performed under the directions of plaintiff's deputy, with such aid and assistance as plaintiff was able to give from time to time. He was during the period in question responsible for the conduct of the office.
In rejecting the claim the defendant board asserted that plaintiff induced the board members to believe that no claim for salary would be made during the time that he was in active service in the navy. The record indicates, however, that plaintiff merely requested that no checks be drawn to him during that period. However, if he had expressly agreed to waive his salary, such waiver would not have been binding. In Lee v.County of Macomb,
"Compensation to a public officer is a matter of statute, not of contract, and is incidental to office. It is not a matter to be fixed by contract, or that *240
can be so fixed, either before or after the term commences.Nelson v. City of Superior,
"The salary of an officer, when once fixed in the manner prescribed by law, can be changed only by a like compliance with the statutory conditions; and by accepting a smaller amount than that to which he is entitled, the officer does not waive his right to recover the full salary. Ruell v. City of Alpena,
"No principle of waiver or estoppel precludes plaintiff from recovering the balance of the full amount of his fixed salary for the term of office. The salary which is fixed by statute cannot be *241 changed by agreement either before or after the term commences."
In determining the proper interpretation of the provision of the statute on which defendants rely, the language of article 8, § 9, of the State Constitution (1908) is significant. Said section provides:
"The boards of supervisors, or in counties having county auditors, such auditors, shall adjust all claims against their respective counties; appeals may be taken from such decisions of the boards of supervisors or auditors to the circuit court in such manner as shall be prescribed by law."
It will be noted that the mandate thus given is not limited to the auditing and adjustment of such claims as the boards referred to may consider just. It is also significant that Act No. 58, Pub. Acts 1909, entitled: "An act relative to the adjustment and payment of claims against counties, and to provide appeals from the disallowance thereof" (1 Comp. Laws 1929, § 1186 et seq. [Stat. Ann. § 5.521 et seq.]), follows, in section 1 thereof, the language of the Constitution. Said section reads:
"It shall be the duty of the board of supervisors of each county, or the board of county auditors in counties having a board of county auditors, to adjust, allow and authorize the payment of all claims against the particular county, and any claims not adjusted and ordered paid by the said board of supervisors or board of county auditors, as the case may be, except as provided in this act, shall not be paid. Any claim or any part or portion thereof which may be adjusted or allowed by the board of supervisors or the board of county auditors shall be paid out of the county treasury in the manner provided by general law." *242
Similarly, Act No. 301, Pub. Acts 1923 (1 Comp. Laws 1929, § 1219 et seq., as amended by Act No. 303, Pub. Acts 1931 [Comp. Laws Supp. 1940, § 1219 et seq., Stat. Ann. § 5.571 etseq.]), in section 3, makes it the duty of the committee, created under said act, to "audit all claims which are chargeable against the county." Similar language is found in Act No. 63, Pub. Acts 1889 (1 Comp. Laws 1929, § 1226 et seq. [Stat. Ann. § 5.601 et seq.]), relating to the powers and duties of the board of auditors for Wayne county. It is settled by prior decisions of this Court construing such provisions that county boards cannot refuse to pay claims fixed by law, and that they may be compelled, in a proper proceeding, to do so. People, ex rel.Bristow, v. Macomb County Supervisors,
We do not think that it was the intention of the legislature in the enactment of Act No. 275, Pub. Acts 1913, to subject boards of county auditors functioning thereunder to any other or different rule than is contemplated by the constitutional provision above quoted and by the other legislative enactments referred to. The provisions of Act No. 275 must be read in the light of the constitutional mandate and in such manner as to accord with the general legislative policy relating to the subject matter. If by the act specifically in question here an attempt was made to prescribe a rule or "yardstick," not contemplated by the Constitution, such attempt must be regarded as ineffective. However, *243 under established principles of statutory construction, the language of the act must be construed, if possible, so as to obviate any conflict. It is apparent that the legislature intended to provide for the allowance of lawful claims against counties subject to the act, and for the payment of such claims in the manner prescribed. The expression "just claims" has no peculiar or fixed meaning. It must, we think, be regarded as including obligations of the county that are lawfully due and payable and to the payment of which the county has no legal defense. The question of liability and the extent thereof must be determined in each case on the basis of the facts and the law.
The recent decision of the supreme court of Iowa in Wisdom v.Board of Supervisors of Polk County,
"The board shall act on such claims within a reasonable time and allow such part thereof as it may deem just."
In answering the argument that the board was authorized to exercise a "sound judicial discretion" in passing upon each claim it was said:
"We are of the opinion that the statute, section 5454, is no grant of arbitrary power to the board. The command to the board is that it `shall act' and `shall allow' such part of the claim as it may `deem just.' The word `just' means reasonable, correct, true, due. (Webster's New International Dictionary.) This fund is primarily created as a fund to *244 which claimants for injuries to domestic animals are to resort. In passing upon claims, the board's inquiry should ordinarily be directed to the following: (1) Was the claimant the owner of the domestic animals killed or injured? (2) Were they injured or killed by wolves or by dogs, not owned by claimant, within 10 days from the date of the filing of the claim (or the date the owner or his agent had knowledge of such injury or killing?) (3) What was the extent of the damage based upon the value of the animals injured or killed?"
A like conclusion was reached in Culley v. Hardenbergh, 1 Denio (N.Y.), 508. There the court had occasion to interpret a contract in which provision was made for "just and reasonable compensation." In construing such provision it was said:
"I am of opinion that the words in the agreement `a just andreasonable compensation for the services rendered' by the solicitors, mean neither more nor less than the fees or compensation allowed by law for the services."
See, also, Peck v. Botsford,
The trial court, in determining that plaintiff was entitled to recover, reached the correct conclusion. The judgment is affirmed, with costs to appellee.
SHARPE, REID, NORTH, and STARR, JJ., concurred with CARR, J.
Concurrence Opinion
Decisions based on a vacancy in office have no bearing in this case. It is admitted that plaintiff was the incumbent register of deeds for the period during which he claims the compensation. He and his bondsmen were responsible *245 for the faithful and impartial discharge of the duties of his office during that period of time. 1 Comp. Laws 1929, § 1373 (Stat. Ann. § 5.981). Also, by statute, plaintiff and the sureties on his official bond were responsible for the faithful performance of his duties by his deputy. 1 Comp. Laws 1929, § 1375 (Stat. Ann. § 5.983). The salary attaches to the office and is payable to the incumbent. For these reasons I agree with Mr. Justice CARR.
SHARPE, REID, NORTH, and STARR, JJ., concurred with BOYLES, J.
Dissenting Opinion
The judgment should be reversed. I do not believe that the claim of plaintiff can in any sense be considered a just or a legal claim chargeable against the county of Oakland.
Section 1211, 1 Comp. Laws 1929 (Stat. Ann. § 5.559), provides in part:
"The said board shall have power, and it is hereby expressly authorized and directed:
"First, To audit all claims which are chargeable against the said county, as in section 8 above provided, and to draw warrants therefor, duly signed by its chairman and countersigned by the clerk; but no warrant shall be drawn or issued by said board except for the amount of a just claim against said county, which has been duly allowed by said board."
The Oakland county board of auditors on February 16, 1945, wrote to Mr. McQuaid a letter from which we quote in part as follows:
"a. Preparatory to entering the service you led us to believe that no claim would be made.
"b. You followed your conversations with us, with a public statement (Pontiac Daily Press, June 22, 1942) designed to give the public the same impression. *246
"c. You returned and filed claim for $8,637.50.
"d. After editorial criticism you stated in the press (February 9, 1945) that `In October, 1942, during my absence, at the time salaries were set for county officers for the subsequent two years, each other office was given a raise in salary except the register of deeds,' when the facts were, as the 1942 Supervisors Journal will show (Book 18, page 42 Miscellaneous Resolution No. 1959), the salary for register of deeds was increased from $3,600 to $3,900 for the year 1943 and 1944.
"e. You did not earn or work for the money you seek.
"There is no righteous, upright, honest, pure, virtuous, proper or reasonable excuse for us to allow your claim."
The record shows that plaintiff requested that while he was in service no checks be issued to him; that the chairman of the board of auditors suggested that a check be drawn to him, and he endorse it back, and that he stated that the navy would not allow anybody to draw checks while they were in the service. He admitted on the stand that he gave the board reason to believe that he would not draw any checks during his absence. These statements were publicized in the press, and while in the service he was re-elected two successive terms after the expiration of the term during which he had enlisted in the navy.
The public did not know that he was contemplating claiming a salary for the period during which he was in the navy. It is very doubtful whether they would have re-elected him from time to time had they known that, although he had given notice that he would not draw any salary, and had insisted that no salary checks be issued to him, nevertheless, upon his discharge he would then demand salary for the entire period during which he was absent *247 and during which he received pay from the United States government.
I agree with the board of auditors in their finding that the claim was not a just one. I am in accord with the letter as quoted. Plaintiff claims that he supervised and reviewed the work of his subordinates in the operation of his office at such time as he was able to secure leaves from service in the navy. He was away on the serious government business of war. He was not a commercial traveler who visited home periodically and spent some time there. The navy and army demands the entire time and attention of their officers and men practically to the exclusion of all other business. Plaintiff filed his petition with the board of auditors for allowance of his alleged claim in accordance with 1 Comp. Laws 1929, § 1211, from which we have heretofore quoted. He thus chose his remedy. The board of auditors had to determine whether the claim was just and they properly held it was not. This is not a mandamus action in which plaintiff might have encountered other difficulties, for mandamus is a matter of grace. Plaintiff has no moral claim. Neither do I believe he has a legal one.
Similar cases have arisen in other States. The issue in many of the cases was not whether the absentee officeholder was entitled to salary during the time he was away in the armed services, but whether by his absence and entrance into the armed forces he vacated his State office. We shall not dwell upon decisions where constitutional or statutory provisions bar officeholders from holding two offices, or a State and Federal office at the same time, but we merely state that in accordance with the following recent decisions plaintiff would not be entitled to his salary, and he could not regain his office except at the next regular election. People, *248 ex rel. Cromer, v. Village of Maywood,
More interesting and pertinent is the case of Perkins v.Manning,
In State, ex rel. Thomas, v. Wysong,
A Montana statute held that the absence of the officeholder temporarily suspended his right to the office and salary.Gullickson v. Mitchell,
In Frazier v. Elmore,
Similarly, Critchlow v. Monson,
"The situation we are considering is analogous to a leave of absence as that term is understood in the business world. The common meaning of the term signifies temporary absence from duty with an intention to return, during which time remuneration is suspended."
The Missouri court, supra, did hold that the office was not vacated and the absence should be construed as similar to a leave of absence, and reaffirmed this *250
principle in State, ex rel. McKittrick, v. Wilson,
In some earlier decisions in Kentucky, it was held that the office was not vacated, but the salary issue was not discussed. However, in City of Monticello v. Tate,
"We are definitely of the opinion that a public officer is not entitled to the emoluments of his office while he is serving in the armed forces. As heretofore pointed out, his occupancy or holding of his civil office is suspended, and we fail to see how it can be contended seriously that he is entitled to remuneration therefrom under such a condition."
In California by a series of decisions it was held that a voluntary enlistee does not vacate his office and his absence is in the nature of a military leave, not restricted by the constitutional provision denying the legislature the power to grant a judicial officer a leave of absence, and in accordance therewith the absentee was not entitled to any pay while he was in the armed services. McCoy v. Board of Supervisors of theCounty of Los Angeles,
We quote from State, ex rel. Clinger, v. Shell,
71 Ohio App. 555 (50 N.E. [2d] 568 ) (appeal dismissed in141 Ohio St. 474 [48 N.E.2d 1009 ]):
"This court recognizes the general proposition that an elected official is entitled to the emoluments *251 of his office including his salary. However, it seems patent that to receive public moneys for duties never performed, while at the same time being remunerated through another source for the same period for activities in an entirely different field, is wholly against the public good. We cannot ignore the fact that civil government must be maintained. The expense is defrayed by the taxpayer. The adoption of a policy whereby that expense, for an elective office, is doubled for the taxpayer, already burdened with the expense of the prosecution of a war, is apt to endanger the orderly processes of government. Such a policy would shake public morale. This court, having the right and duty in this case, where the extraordinary remedy of mandamus is sought, to exercise its sound discretion, must deny the writ on the ground that it unduly burdens taxpayers and endangers the orderly processes of government, and that it would afford remuneration for duties never performed.
"We arrive at the foregoing conclusion whether or not a legal right is possessed by the relator. However, we seriously doubt the existence of a legal right. It will be noted that the legislature, in its enactment relative to vacancy, is entirely silent on the subject of salary. While we have stated that we recognize the general proposition of law that an elected official is entitled to the emoluments of his office and that the salary is a part thereof, yet we cannot lose sight of the equally true abstraction that it is for duties performed and services rendered that remuneration and salary is fixed and paid. The failure to perform a duty or render a service enjoined by law cannot become the grounds for remuneration under the circumstances of this case. We fully recognize and give complete effect to the enactment of the legislature insofar as the unequivocal language specifies. It is devoted to the proposition of vacancy alone and is entirely silent on the subject of salary. The enactment *252 should bear a strict construction and like all other enactments should not be made the subject of judicial legislation. The circumstances of the instant case constitute it an exception and the general rules relative to salary and remuneration are not applicable. To hold otherwise would be to adopt a legal reasoning resulting in a conclusion shocking to any sense of equity and good judgment."
The theory of "leave of absence" which denies any salary during the time the officer is in the armed services does not conflict with any constitutional provision against diminishing the salary of an officer after his election or appointment to office. West Virginia, Montana, New Mexico, Tennessee, Utah, Missouri, Kentucky, California and Ohio, all had constitutional provisions which would bar the diminishing of the salary of the officer involved.
There are but two decisions to the contrary involving officers who had entered the armed services. Carpenter v. Sheppard,
"If the legislature should conclude that an officer in the National Guard cannot perform the duties of *253 the office held by him in this State, while temporarily in the active military service of the United States, it may make provisions for such inability, just as it has made similar provisions in respect to other State offices, where the head of the department is unable for any reason to perform the duties of the office. It may adjust salaries on account of failure to perform the duties assigned to officers."
In Cramer v. Sheppard,
The case of State, ex rel. Kopinski, v. Grzeskowiak,
We shall not attempt to distinguish the above decision. We wish merely to say that we believe the majority view, amply supported by the decisions of other jurisdictions, is to regard service in the armed forces as entitling the officeholder to a military leave of absence during which time the pay is suspended. Nor do we think it "just" in any sense of the word to permit the officeholder to gain public moneys on the flimsy excuse that he was entitled to visit his office while on furlough, and thus did perform the work of the office. As a matter of public policy we hold that the office is not vacated, but that the pay is suspended during the time claimant served in the armed forces of the United States government. *254
The judgment of the lower court should be reversed, and the case remanded for purpose of entering judgment for defendants. A public question being involved, no costs should be allowed.
BUSHNELL, J., concurred with BUTZEL, C.J.