23 Mich. 385 | Mich. | 1871
— These cases have sometimes been heard upon the facts stated in the papers, as upon a hearing in chancery upon bill and answer. But we suppose that when a demurrer is formally made, the party demurring has the affirmative.
This is a petition for a mandamus, but the final purpose of the application is to settle an unhappy controversy which has grown out of movements to change and re-locate the county seat of St. Clair county. It appears that for about fifty years the seat had continued at St. Clair, when, and in October, 1869, the board of supervisors submitted to the electors a proposition for its removal to Smith’s Creek, and which proposition was carried at the spring election of 1870, by a majority of votes; that in October following, the board adopted such measures as were requisite for the change, and provided that it should be made and take effect on the first day of February, 1871, but which time was extended, at a subsequent session, to September 1, 1871. It
This somewhat incongruous action has naturally occasioned different and opposing opinions among the people and county officers respecting the legal effect of the disagreeing operations. On the one side, it is claimed that the proceedings by the board and the vote of the electors have established the seat at Port Huron, while on the other it is urged that several of the steps taken for that purpose, and essential therefor, were in themselves invalid, and that the attempt to effect a change to Port Huron was, in consequence of what was done to transfer the seat to Smith’s Creek, irregular and unwarranted by law.
Of this latter opinion is the respondent. He maintains, in the first place, that the law regulating the subject, required a vote of two-thirds of all the supervisors elected, to validate the measures of the board of the 7th of June,
The act of 1863 was entitled “ An act to amend sections eighteen and nineteen of an act entitled ‘An act to define the powers and duties of the board of supervisors of the several counties, and to confer upon them certain local, administrative and legislative powers,’ approved April eighth, eighteen hundred and fifty-one, said sections being' sections three hundred and fifty-two and three hundred and fifty-three of the compiled laws.”
The title of the original act was thus fully and correctly recited, and the two specified sections as amended were-re-enacted at length. They contain no object not embraced in the title of the original act, and the title of that act is framed in substantial accordance with the clause of the constitution
The next argument, based on positive constitutional requirements, is also untenable. It assumes that an amending act can only alter the legal operation of such provisions as are re-enacted at length, and hence that no amendment or change of a statute by implication has been legally possible since the adoption of our present constitution. The objections to this position are so many and obvious, and rest upon reasons so eminently practical, that we deem it needless to discuss it. My brother Campbell alluded to it in Underwood v. McDuffee, 15 Mich., 361, and my brother. Cooley considered it in The People v. Mahaney, 13 Mich., 481. The views expressed in these cases can be made no clearer by expansion or repetition, and as they appear to rest upon satisfactory grounds, and are pertinent to the question, they may well be considered as forming our answer to the argument now advanced.
Being satisfied that the act of 1863 is not environed by the difficulties supposed, we are next to consider its operation, as parcel of the original act, in respect to the majority required to complete the measures for a change of seat after an election, on the proposition to remove, has been carried.
Upon this question we think there is no room for doubt. The law literally and expressly declares that in case the
The electors having passed upon the question of removal and decided in favor of.it, the statute imperatively requires the board to take the action necessary to carry out the public will as expressed by the popular vote; and there is nothing in the nature of the duty to ascertain and declare the event of the election, or in the part of the statute applicable to that duty, which in the least indicates the necessity or propriety of the concurrence of two-thirds of the members elect; and as the vote of the electors is binding upon the board, and, until impaired by another election, excludes all discretion in the latter upon the question of change or no change, we discover nothing in the nature of the duties enjoined upon the board for the purpose of carrying into effect the decision of the electors, which suggests the necessity of requiring the concurrence of two-thirds of the supervisors.
A further objection to the validity of the proceedings for the removal to Port Huron is that they were instituted while the movement was in progress for the change to Smith’s Creek, and were pushed to a popular vote after the electors had decided in favor of the latter place, but before the change thereto was in fact carried out. The general
We feel the great force of some of these reasons, but upon reflection we think they cannot avail to prevent the supervisors from proposing, in their discretion, to locate the county seat at one place, or the electors from deciding on it while a proposal is pending to locate it, at another. ^ There is no language in the constitution or any statute which implies that the power to remove or change a county seat is temporarily exhausted or suspended by a single exercise, whether completed or commenced only. The only conditions imposed by the constitution are, that the new site shall be designated by two-thirds of the board of supervisors, and the selection so made be sanctioned by a majority of the electors votirig; and the statute gives the course of proceedings “whenever” it is proposed to remove the seat. The law appears to contemplate an uninterrupted continuance of the power, and an ability in the
It was foreseen here that as the new counties should fill up, the centers of population and business would vary, and the means of intercommunication grow and shift, and that the fixed and unalterable arangements adapted to old and settled communities would be unsuitable. Hence, the power to move the county seat was left with the supervisors and electors, to be exercised as often as the former should think needful. We need not remark that the power ought not to be capriciously used. We know that, like all power, it is open to abuse. But it is confided to the electors of the county, who elect the supervisors, and who may therefore be expected to consult the interests of the county. Besides, the electors themselves act directly by their votes. While the power to multiply pending propositions may be unworthily or unwisely exercised, we cannot declare that it does
Entertaining this opinion on the question of power, the evils anticipated from multiplied propositions must be left to those correctives which the virtue and intelligence of the electors may furnish. A little consideration, perhaps, will show that the dangers apprehended cannot be so great as the heats of the present controversy have caused to be conjectured. At all events, we may doubt whether they are likely to be greater than those which may flow from other practices in our system which are considered wise and judicious, — whether the requirement of a popular vote to validate a general banking law with all its varied terms and provisions, whether a vote upon whatever amendments to the constitution may be proposed, or upon a whole constitution when submitted, may not involve all the inconveniences and mishaps predicted at the bar.
But, be this as it may, the people, by the frame of their organic law, have assumed that they may safely exercise these functions, and this assumption we do not presume to question. We think it must remain with the board, under their responsibility to their constituents, to determine whether one proposition may be wisely, justly and prudently left to the electors before a former one has been fully executed, and that it is not a question of power to be decided by the courts.
Whether the county seat was at St. Clair or at Smith’s Creek when the change to Port Huron was made, is a question of no practical consequence, since we think the validity of the proceedings to place it at Port Huron was not affected by any decision for or against the location at Smith’s Creek, or any omission to state from
Mandamus ordered accordingly.