People ex rel. Moore v. Witherell, 14 Mich. 48

People ex rel. Moore v. Witherell

14 Mich. 48 | Mich. | 1865

Lead Opinion

Campbell J.

This is a proceeding on an information in the nature of a Quo Warranto. The relator was, at the recent election held under the charter of the city of Detroit, voted for to fill the vacancy in the office of Recorder of that city, caused by the death of the incumbent, Benjamin F. Hyde. No election was ordered for that purpose by any one. Judge Witherell is acting as Judge of the Recorder’s Court, under section 2, chapter 6 of the charter, which in case of absence, sickness, or vacancy in the office of Recorder, authorizes the Common Council to designate a Circuit Judge to act until the vacancy is filled, or the office resumed by the Recorder temporarily absent. The first section of chapter 2 provides for the several officers to be elected at annual elections, and the 13th section provides that the Recorder shall hold office for six years. We held in Stadler v. the City of Detroit, 13. Mich. 346, that section 1 only applied to the time when the election *51was to be held, when offices were to be filled for full terms, and did not authorize an election oftener than when one term of office was about to expire and aifother to begin. In other words, it would in case of the Recorder refer to the annual election held every sixth year, as in that case it referred to a biennial election for Marshal. I.t refers to original elections, and not those held to fill vacancies.

By section 26 of the same chapter, vacancies in any elective office, except that of Mayor, Recorder or Alderman, are to be filled at the next annual election. In such case no notice or appointment of an election is required to fill the vacancy, but the statute is imperative.—People ex rel. Speed v. Hartwell, 12 Mich. 508.

The charter contains no other provision bearing on the subject, and there is no general law of the State providing that a vacancy can be filled without a special election or notice. We are not called Upon to determine whether any statute has provided for filling vacancies in this particular office, otherwise than by the process resorted to by the Common Council, which designates an existing judicial officer of the State to perform the duties during the vacancy. The relator’s election is a nullity, and the incumbent is entitled to exercise the functions of the office.

Judgment should be for the respondent.

Cooley and Christiancy JJ. concurred.

Dissenting Opinion

Martin Ch. J.

dissenting.

I do not concur with my brethren. I think the present incumbent of the office of .Recorder was, and could only be, appointed 'for the temporary period which would intervene between the occurrence of the vacancy and the next general election. This is in accordance with the whole theory of popular elections, and I do not think the legislature intended to make an exception in this office, and confer upon the common council of Detroit a power which the constitution has with- . held from the Governor in parallel cases.