People v. Maynard

| Mich. | May 25, 1867

Campbell J.

Defendant, being called upon to show by what warrant he exercises the functions of treasurer of Marquette county, pleaded that by the organization of Washington county, the residence of the treasurer of Marquette .was thrown into the new county, thereby creating a vacancy, which defendant was appointed to fill by the supervisors. One of the pleas relied on the “Act to organize the County of 'Washington,” approved February 15, 1867; and the other relied on the^same act, and a further “Act to organize the Township of Negaunee, in the County ~of Washington,” approved February 27, 1867. Both acts were directed to take effect immediately.

The replication to the first plea sets up that the county of Marquette consisted of but three townships, to wit: Marquette, Negaunee, and Chocolay, and that only parts of the former two were embraced in the new county, and that such parts contain 3,500 inhabitants and 700 electors.

The replication to the second plea sets up the same facts as to the division of territory, and contains averments of the number of electors and inhabitants in the part of Negaunee left in Marquette county, and in the part of Marquette township of Washington county.

To these replications defendant demurred. And the principal legal questions refer to the validity of the statutes purporting to create and organize the county of Washington and town of Negaunee, and cut them off from Marquette, without making provision for the proper transaction of business, and the protection of the rights of the inhabitants.

The first statute declares that the territory described in it “is hereby organized into 'a separate county by the name of the county of Washington, with all the powers, privileges and immunities, to which, by law, the other organized counties of this state are entitled.” The second section fixes the county seat. The third provides that at the annual township meeting in April thereafter, county officers should be elected, who should .go into office on the first Monday of May thereafter. The fourth section names several persons as county canvassers. The fifth provides that certain buildings in Negaunee may be used for county purposes, and makes the county a part of certain senatorial and representative districts.

The second statute, undertakes to make the part of Negaunee contained in the new county successor to the entire town of that name, and to keep the^old officers in office until superseded by new ones; and provides for a settlement of property and accounts between the two parts.

An organized county, under our constitution, signifies a county having within itself the necessary means for performing- its functions independently of any other county; with its lawful officers and machinery for carrying out the powers and performing the duties belonging to that class of corporate bodies.

Among the necessary incidents to a county are subdivisions in which electors can lawfully vote, and townships whose supervisors conjointly may exercise the legislative and administrative powers of the corporation. The county officers are all elective, and the supervisors are necessary for taxation and for various other matters of business. Under the constitution, no one can vote except in the township or ward where he resides. — Art. 8, § 1. The same section gives the right of voting to all white male citizens who have resided here a sufficient length of time. And the townships in which elections are held must be organized townships. — Art. 11, §§1,2.

Inasmuch, then, as a county can not become organized without the existence of townshijDS, where elections may be held, and whose supervisors may constitute a county board, we must see whether this is provided for. The provisions requiring this board can not be construed as directory, or as compatible with its indefinite postponement. No county can subsist without it. The whole financial concerns of the county depend upon it.

The first statute does not undertake to create or organize townships. If such were already in active existence, of course no such creation was necessary, as the general laws would then furnish the guide for their action in holding elections. The statute provides for the election of all county officers, and locates the . new county in the proper legislative districts. It was claimed on the argument that no provision was directly made for placing it in a judicial district. But, inasmuch as the whole of the county was in the twelfth district, we think it still remains there. Had it included a part of two judicial districts, we might have found some difficulty in dealing with this objection, but, as it stands, we see no occasion for legislation on this point. The only inquiry must be, whether organized towns were already to be found in the new county. If they were, we see no difficulty in the way of the complete organization through the spring elections.

The pleadings show that there were but three townships in the county before the division. One of them remained untouched within the old county, and two were divided. These would, of course, continue as existing towns, and the territory taken away from them, until newly organized, or attached to some other town, would cease to have any township existence. - This act, then, provided no means for organizing this detached territory, and no general law reaches the case, and, consequently, no elections could be had in it. And without such elections the act would be entirely inoperative .and void.

It was suggested by an amicus curia,, that, as we were bound to know judicially the existence of the various township organizations, we might be of opinion, upon examining the case, that there were townships actually organized within the territory set off. It may be well, therefore, to investigate this subject. At the beginning of the year 1857, the county of Marquette included on the north no higher than the 49th tier of towns. All the land east of range 26 was in the town of Marquette. Range 26 was all in the town of Carp River. All west of range 26 was in the town of Iron. The present alleged county of Washington embraces all of the old town of Iron, a single section in Carp River (containing the public buildings), and some towns north of the 49th tier which were subsequently annexed to the town of Marquette. On the 10th of February, 1857, an act was passed entitled “An act to provide for the organization of the township of Teal Palee, in the county of Marquette, and to define the boundaries thereof.'1'1 This act created the town now known as Negaunee, by including in it parts of the towns of Iron and Carp River. It then abolished those towns, by transferring all their remaining territory to the town of Marquette. It is now suggested that no such purpose could be legitimately connected with the title of the act, which under the constitution must indicate the single object to be provided for. If this question had been raised immediately, we are not prepared to say that it would have been altogether free from difficulty. But, inasmuch as the arrangement there indicated had been acted upon for ten years 'before the recent legislation, and had been recognized as valid by all parties interested, it can not now be disturbed. Even in private associations, the acts of parties interested may often estop them from relying on legal objections, which might have availed them if not waived. But in public affairs, where the people have organized themselves under color of law into the ordinary municipal bodies, and have gone on year after year raising taxes, making improvements, and exercising their usual franchises, their rights are properly regarded as depending quite as much on the acquiescence as, on the regularity of their origin, and no ex post facto inquiry can be permitted to undo their corporate existence. Whatever may be the rights of individuals before such general acquiescence, the corporate standing of the community can be no longer open to question. See Rumsey v. People, 19 N. Y. 41, and Lanning v. Carpenter, 20 N. Y. 447; where the effect of the invalidity of an original county organization is very well considered in its public and private bearings. There have been direct legislative recognitions of the new division on several occasions. Laws, 1858, p. 23; Laws, 1861, p. 556; Laws, 1863, p. 22. The exercise of jurisdiction being notorious and open in all such cases, the state as well as county and town taxes being all levied under it, there is no principle which could justify any court at this late day in going back to inquire into the regularity of the law of 1857.

. The conclusion, then, is inevitable, that the act to organize the county of Washington can not of itself work any such organization, and, unless aided by the subsequent statute, must fall. It was enacted for no purpose but that of organizing the new county.

The second statute provides for the organization of the town of Negaunee in the county of Washington, by adopting an existing township. It provides, therefore, the means of holding one township. election. But it makes no provision whereby the electors of the rest of the county can vote, and it deprives of their suffrages the inhabitants of a portion of Marquette county. And it is claimed by the Attorney General that a county can not be organized under such provisions. '

Leaving out of view the consequences in Marquette county, the result of this legislation would be to give the people of the single township of Negaunee the right to elect the whole body of county officers, and would cut off from the right of voting, not only now but forever— unless the legislature should intervene — a considerable body of electors who have hitherto had the means of exercising that right. And it would have the further effect of leaving this county with only one supervisor.

The constitution requires the county officers to be chosen in each county “by the electors thereof,” and, as has already been seen, each man must vote in his own township. We held in the case of the Attorney General v. Supervisors of St. Clair, 11 Mich. 63, that a law which provided no means for taking votes in cities upon the question of the removal of a county seat was invalid, although all the townships had the opportunity of voting. We think this case comes within the same principle, and that the deliberate exclusion of the electors outside of Negaunee was illegal.

We also think that no county organization can be complete without more than one township. There is no method by which one supervisor can be legislated or construed into a “board.” The powers of the board are of the most important character, and it is designed that every part of the county should be represented by its members. Their duties are such as are never allowed to be exercised by single persons, and this is the first instance in our history where the legislature have acted (if they really did so act) upon the theory that such a delegation of authority to one officer was possible. The board of supervisors is one of our long established institutions, and no one can do.ubt, in reading the constitution, that it was designed to be perpetuated in its existing form, as an aggregation of town officers, and not as a single individual.

The intrinsic defects of the first act are not aided by the second. Neither can stand alone. And we are compelled to the conclusion that no change has- been legally made in the organization of Marquette county. It follows that the old treasurer was not removed from office, and there was no vacancy to be filled. The appointment of the respondent was therefore unauthorized, and judgment of ouster must be entered against Mm; the demurrer not being well taken, and the pleas also being insufficient.

Martin Ch. J. and Christiancy J. concurred. Cooley J.

If this proceeding had been instituted against the officers assuming to act as the county officers of Washington county, and who would have been interested in presenting all the considerations which might tend to defeat it, I should have felt less reluctance in entering upon a full examination of all the points involved. But as it is doing no injustice to any one to say that this is not an adversary proceeding, and the parties who would have been defendants in a more direct attempt to reach the same end, have declined to speak to the ■ present record, I prefer to reserve' an opinion upon some of the very grave questions involved until a case shall arise rendering a decision necessary.

I agree with my brother, Campbell, that.the two acts of the legislature, now in question, do not, of their own force, organize the county of Washington, or provide any machinery by means of which such organization can be effected without further legislation. I put my concurrence upon the ground that there can not be an organized county with a single township only, nor a board of supervisors with only one member. The powers conferred upon that body by the constitution are of very high importance; some of them, legislative in their character, requiring consultation, discussion and deliberation; and such as in no part of our political system are conferred upon single individuals. The implications from the constitution are all strongly against any intention that such large and varied powers should be thus concentrated; and the term “board,” in its derivation as well as in its ordinary use, indicates a deliberative body, composed of more than one person. Without, therefore, considering whether there is any constitutional infirmity in either of the acts in question, which would render it invalid, I think the people are entitled to judgment for the reason stated.