Amberg v. Welsh
| Decision Date | 29 June 1949 |
| Docket Number | No. 103.,103. |
| Citation | 325 Mich. 285,38 N.W.2d 304 |
| Parties | AMBERG et al. v. WELSH et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Petition for writ of mandamus.
Petition by Julius H. Amberg and others against George W. Welsh and others for a writ of mandamus ordering the city clerk of Grand Rapids to call a recall election.
Writ granted.
Before the Entire Bench.
Butterfield, Amberg, Law & Buchen, Grand Rapids, Harrington, Waer, Cary & Servaas, Siegel W. Judd, Grand Rapids, Robert S. Tubbs, Grand Rapids, John F. Livingston, Grand Rapids, Alfred W. Hewitt, Grand Rapids, Benjamin E. Cueny, Grand Rapids, Collins E. Brooks, Grand Rapids, for plaintiffs and petitioners.
John M. Dunham, City Attorney, Grand Rapids, for defendant R. Stanton Kilpatrick.
On June 3, 1949, Julius H. Amberg, one of the plaintiffs and petitioners herein, together with many other electors of the city of Grand Rapids, filed in the office of the clerk of that city petitions bearing far in excess of 16,531 signatures of registered and qualified voters of the city of Grand Rapids and calling for an election to recall George W. Welsh from the office of Mayor of the city. The petitions were signed by more than 25 per centum of the number of electors of Grand Rapids who voted for the governor of Michigan at the last preceding election. This was in accordance with section 42 of the charter of the city of Grand Rapids, and also C.L.1948, § 201.102, Stat.Ann. § 6.772. The petitions contained the names, street and house number in Grand Rapids written by the signers and there appears to be no denial of any of their respective handwritings. The petition was in the following form setting out therein the reasons for the recall:
‘We, the undersigned registered and qualified voters of the City of Grand Rapids, County of Kent, and State of Michigan, hereby petition for the calling of an election to
from the Office of Mayor of the City of Grand Rapids, for the following reasons:
‘He illegally and by prior understanding acted in concert with City Commissioners Wagemaker, Richards and Haraburda to violate the City Charter by attempting to induce City Manager Goebel to violate his Charter duty and to appoint as City Assessor a man they knew Goebel did not consider qualified.
‘He and said Commissioners attempted to usurp the Charter duty of the Manager and threatened his discharge unless he appointed as Assessor only the man of their choice.
‘Voted with said Commissioners to dismiss Manager Goebel without preferring charges, without hearing, without properly rescinding his employment contract, upon sole basis that Goebel performed his charter duty and appointed a qualified City Assessor.
‘Refused to consider merit and fitness of City Assessor appointed by City Manager.
‘Violated standing Commission rules by refusing citizens right to be heard at Commission meetings on May 9, 1949.
‘Illegally declared adjourned a Commission meeting May 9, 1949, and illegally ruled Goebel's reappointment void.
‘Repeatedly refused to attend official meetings of County Board of Supervisors, and refused committee appointments on Board, thereby depriving Grand Rapids Citizens of rightful representation on Board.
‘(Twenty-five blank lines here for names of qualified electors with Ward, Precinct, Street and Number, and Date.)
‘The undersigned, being duly sworn, deposes and says that he signed the foregoing petition as circulator thereof; that he is a registered and qualified elector of the City of Grand Rapids, Michigan; that his street address is _____ in the City of Grand Rapids; that the signatures appearing upon the foregoing petition were not obtained through fraud, deceit or misrepresentation; that he has neither caused nor permitted any person to sign the said petition more than once and has no knowledge of any person signing said petition more than once; that all signatures to said petition were affixed in his presence; that the said signatures are the signatures of registered and qualified electors; that the said signatures are genuine signatures of the persons of whom they purport to be; and that the signatures were made in good faith for the purpose set forth in said petition.
‘________
‘Subscribed and sworn to before me, this ___ day of May, 1949.
‘________
‘Notary Public, Kent County, Michigan.
‘My commission expires: ________
On June 8, 1949, R. Stanton Kilpatrick, city clerk of Grand Rapids, joined as defendant herein, upon receiving the petitions for the recall, called a recall election to be held in the city of Grand Rapids on June 28, 1949. Thereupon George W. Welsh, also a defendant, filed a petition in the Superior Court of Grand Rapids asking for a writ of mandamus against Mr. Kilpatrick, the city clerk, ordering him to disregard the petitions filed with him and set aside the order for the special election, and also asking than an order to show cause be issued, with a restraining order prohibiting the holding of the special election. On the same day Hon. Dale Souter, as acting judge of the Superior Court, issued the order to show cause as well as the temporary restraining order asked for. Thereupon plaintiff Amberg and two others as plaintiffs filed a petition in this court for writ of mandamus directing the city clerk of Grand Rapids to call a recall election in accordance with the petitions that were filed with him. Mayor Welsh, Clerk Kilpatrick and Judges Souter and Taylor are named as defendants in the petition. After answer was filed the case was duly heard.
Defendants contend that plaintiff electors have no right as private citizens to institute a suit for mandamus in public matters. This is a matter within the discretion of the court. We hold that the suit was properly brought by interested electors. Baldwin v. Board of Supervisors, 189 Mich. 372, 155 N.W. 367;Thompson v. Secretary of State, 192 Mich. 512, 159 N.W. 65.
Defendants further contend that inasmuch as a suit involving the same subject matter is pending before the Superior Court for the city of Grand Rapids, this court cannot entertain jurisdiction. As was stated in Tawas R. R. v. Iosco Circuit Judge, 44 Mich. 479, 7 N.W. 65, 66:
‘The jurisdiction of this court in mandamus cases is not statutory, but plenary, and supervision is given over all inferior tribunals by the constitution.’
From the allegations in the petition for writ of mandamus, it is necessary that the questions involved be disposed of without any delay, and it is quite apparent that such a delay would ensue if the case were to be tried first in the Superior Court, and if appealed, finally disposed of in this court. Plaintiffs were not named as parties defendant in the Superior Court had have no control over that case. By bringing the action in this court all questions raised can be promptly disposed of. They are of public importance and this court has jurisdiction notwithstanding the fact that there is an action pending in the Superior Court of Grand Rapids.
A similar situation arose in Attorney General, ex rel. Baum v. City of Saginaw, 177 Mich. 432, 143 N.W. 598, and we issued a writ of mandamus notwithstanding the fact that another cause was pending in a lower court. Also see, Township of Ada v. Kent Circuit Judge, 114 Mich. 77, 72 N.W. 35;Goodenough v. Ticknor, 265 Mich. 355, 251 N.W. 593;Romano v. Aten, Auditor General, 325 Mich. 533, 35 N.W.2d 701.
The next question raised is whether the provisions of the charter or those of the State law in regard to recall shall prevail. P.A.1913, No. 325, C.L.1948, § 201.101 et seq., Stat.Ann. § 6.771 et seq., provides for and sets up the procedure for the recall of certain elective officers. Section 2 of Act 325, supra, specifically includes elective municipal officers.
The provisions of P.A.1913, No. 325, in many respects differ from the recall provisions in the Grand Rapids charter. We have repeatedly held that the provisions of a general statute are paramount, notwithstanding that the provisions of a home rule city charter on the same subject may differ. ‘Where a city charter is silent upon a subject or different than the pertinent statutory provisions, the statute controls and must be read into the charter.’ (Syllabus.) City of Hazel Park v. Municipal Finance Corp., 317 Mich. 582, 27 N.W.2d 106, and the many cases cited therein. City of Big Rapids v. Consolidated Gas Co., 324 Mich. 358, 37 N.W.2d 136. We, therefore, need not even discuss the claim of defendants that the petitions filed with the city clerk were invalid because each signer when he signed his name and address, did not write down the number of the ward and precinct in which he resided. The State law does...
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