44 Mich. 89 | Mich. | 1880
An information in the nature of a quo warranto was filed on behalf of relator in the circuit court for the county of Gladwin, to try the title of respondent to the office of judge of probate for that county. Respondent was appointed by the governor, in September, 1878, in place of the regular incumbent, Aaron D. Stevens, who had been elected for the term which began in January, 1877, but who, it is agreed, removed from the county in May, 1877. Relator claims to have been elected at the regular general election in November, 1878. No notice was'given of this election as including a vacancy in the office of judge of probate as contemplated by statute; but the sheriff published a newspaper notice on the 10th and 17th of Sejffember containing such an intimation, but in his subsequent publications left it out. No action was had declaring the vacancy or explaining it, except the commission issued by the governor to respondent. At the election there were no votes cast for any one but respondent, and he received one hundred and three votes in one town, eight in a second and two in a third, or one hundred and thirteen votes in all.
The facts were all agreed upon, but the circuit judge on the hearing decided he had no jurisdiction and dismissed the case. He did so on the ground that this court had held that the judge of probate was not a county officer, but was a part of the judiciary system of the State. Such judges are not “State officers” in the sense in which that term is used in the statutes, and are not, therefore, within the exception of § 7101 of the Compiled Laws, which takes those officers out of the jurisdiction of the circuit courts in this class of cases.-
It is a necessary safeguard to popular elections that the people be informed what officers they are to vote for. They may be expected to know what elections are to be made at the regular general elections, and as to those in ordinary eases, it might be dangerous to allow a failure to give notice to avoid the election. This would enable the popular will to be defeated by the misconduct of ministerial officers. But there can be no such knowledge assumed concerning vacancies in office, and without some distinct and public notice of some
The respondent is clearly entitled to the office, and inasmuch as the facts are all agreed upon of record, a judgment must be entered that the plaintiff is entitled to no relief and that the defendant is not guilty of any usurpation, and that he go hence without day and recover against relator his costs of both courts.