Attorney Gen. ex rel. McKenzie v. Warner

• Decision Date: 06 October 1941
• Docket Number: No. 75.,75.
• Citation: 300 N.W. 63,299 Mich. 172
• Parties: ATTORNEY GENERAL et rel. McKENZIE v. WARNER.
• Court: Michigan Supreme Court

299 Mich. 172

300 N.W. 63

ATTORNEY GENERAL et rel. McKENZIE

v.WARNER.

No. 75.

Supreme Court of Michigan.

Oct. 6, 1941.

Original quo warranto proceedings by Herbert J. Rushton, Attorney General of the State of Michigan, suing for the People of the State of Michigan, upon the relation of Walter I. McKenzie, against Howard M. Warner to compel defendant to show by what authority he claims to hold the office of Michigan Corporation and Securities Commissioner for a term expiring September 20, 1943.

Information in the nature of quo warranto dismissed by divided court.

Argued before the Entire Bench.

E. Cyril Bevan, of Detroit, Robert D. Heitsch, of Pontiac, John P. Laughna and Joseph Zwerdling, both of Detroit, Edmund C. Shields, of Lansing, and Friedman, Meyers & Keys, of Detroit, for plaintiff.

Louis H. Fead, of Detroit (Miller, Canfield, Paddock & Stone, of Detroit, of counsel), for defendant.

CHANDLER, Justice.

This proceeding in quo warranto was instituted by the Attorney General of the State of Michigan upon the relation of Walter I. McKenzie as a citizen, taxpayer, and duly qualified elector of this state against Howard M. Warner asking the said Defendant to show by what authority he claims to hold the office of Michigan Corporation and Securities Commissioner for a term expiring September 20, 1943.

From the facts as stipulated by counsel for the respective parties it appears that the then Governor, Frank Fitzgerald, appointed Alice R. Alexander to the office of Corporation and Securities Commissioner, for a term ending September 20, 1939, by virtue of Act No. 13, P.A.1935, Stat.Ann. 19.781-19.784, section 1 thereof providing in part as follows:

‘A commission to be known and designated as the Michigan corporation and securities commission is hereby created. Immediately upon the taking effect of this act a corporation and securities commissioner shall be appointed by the governor for the term of four years, subject to confirmation by the senate. * * * Upon the expiration of the said term a successor shall be appointed in like manner for a term of four years and until his successor is appointed and qualified. Vacancies shall be filled in the same manner as is provided for the appointment in the first instance.’

This appointment was not submitted to the Senate for confirmation when it subsequently convened in special session held December, 1936, nor at its regular session in 1937, and though the appointee qualified and entered upon the discharge of the duties of the office until January, 1937, her appointment was never confirmed.

Thereafter, on January 13, 1937, former Governor Murphy appointed Carl A. Olson to said office for a term expiring September 20, 1939, confirmation of the appointment being made by the Senate on January 15, 1937. Mr. Olson qualified and discharged the duties attending the appointment to the expiration of his term.

On or about September 11, 1939, former Governor Luren D. Dickinson appointed defendant herein to the office of Corporation and Securities Commissioner for a term of four years, to commence September 21, 1939, and to expire September 20, 1943. The following day, Governor Dickinson issued to the defendant a commission as such officer, and having duly qualified, Mr. Warner entered upon the discharge of the duties of his office.

The Senate was not in session at the time of this appointment and did not convene until January 1, 1941. However, on December 20, 1940, Governor Dickinson caused a communication to be delivered to the secretary of the Senate covering appointments of 59 individuals to 27 boards and commissions of this state, and as pertinent to this suit, reading as follows:

‘To the Presiding Officer and Members of the Senate:

‘During the recess of the legislature vacancies occurring in the state office to be filled by the governor by and with the advice of the Senate, have been duly filled by me with the following appointments:

‘Michigan Corporation and Securities Commissioner:

‘Howard M. Warner, Farmington, to succeed Carl A. Olson. Appointed Sept. 11, 1939. Term expires September, 20, 1943.

‘This list of appointments is respectfully presented for your consideration and action.

‘Respectfully yours,

‘L. D. Dickinson

‘Governor’

Governor Van Wagoner, successor to Governor Dickinson, took office on January 1, 1941, and having been duly sworn in office, signed a message or communication the same day and transmitted it to the president of the Senate, presenting for its consideration and confirmation certain appointments to state office including that of Michigan Corporation and Securities Commissioner, naming relator herein, Walter I. McKenzie to succeed Howard M. Warner, for a term to expire December 31, 1942, which was later changed to December 31, 1944. The following day the Governor executed a commission of appointment to office to Mr. McKenzie which was countersigned in proper form by the Secretary of State but never delivered to relator prior to the institution of this proceeding.

The message of Governor Dickinson of December 20, 1940 was ‘received and read’ by the Senate on January 2, 1941, and over the objection that the Senate was operating under the order of ‘Messages from the Governor’ the president referred the message to the Committee of Senate Business, pursuant to Senate Rule 28, providing: ‘All nominations to office submitted by the governor, and all other executive business shall be referred to the committee on Senate Business and shall be reported upon by such committee with all convenient speed.’

On January 21, 1941, at the request of the Honorable Joseph A. Baldwin, Chairman of the Senate Committee on Senate Business, to which the messages of former Governor Dickinson and Van Wagoner had been referred, the Attorney-General rendered an opinion holding that the Senate had the right to confirm the appointment of defendant herein as made by the former Governor at a time when the Senate was not in session. Whereupon, on February 5, 1941, the Senate advised and consented to the nomination of Howard M. Warner as submitted by the former Governor in his message of December 20, 1940.

Conceding that upon the expiration of the term of Mr. Olson, the incumbent, Governor Dickinson had the statutory authority to appoint a successor, relator denies that he had the authority to make a recess appointment which would continue beyond the close of the next succeeding legislative session where the Governor has not been re-elected, and therefore qualified to submit the names of his appointees to the next session of the legislature for confirmation.

Such concession immediately raises the question of the jurisdiction of the court to pass upon the merits of the instant proceeding at this time.

It should be noted at the outset that all parties herein have submitted the determination of this suit to the court in good faith, and by this proceeding have raised rpoblems which touch the very foundation of orderly government. It cannot be denied that sound government demands a quiet, peaceable and certain succession to public office. Nor are the parties, by failing to raise any question of prematurity of suit and affirmatively submitting this case upon its merits, alone in their request that this court take jurisdiction. The Chief Executive Officer of the State has, by affidavit, solicited the opinion of the Judiciary to the end that all branches of the government may be properly advised as to their rights and powers with reference to appointments submitted by former governors.

Aside from the necessities of orderly government, there exists ample authority sanctioning the determination of this suit upon its merits notwithstanding the concession made. It is said in 1 C.J., Action, 1152, § 399(2): ‘The premature commencement of an action is not a jurisdictional matter, but is one which may be waived, as by a failure seasonably to interpose an objection upon this ground; and it is ordinarily held that if defendant, without objection, appears and pleads to the merits of the action, he cannot thereafter object that it was prematurely commenced.’ [See also 1 C.J.S., Actions, § 127.]

‘A Plaintiff's right to avail himself of a legal remedy is not impaired merely by inactionor delay in seeking that remedy, provided he does not delay so long as to be affected by the doctrine of laches or the Statute of Limitations. On the other hand, an action cannot be maintained if it is commenced before the accrual of the cause of action which is sought to be enforced. Such an action should be dismissed without prejudice to the plaintiff's right to begin a new action on the accrual of the cause of action, upon proper and timely objection being made the nonexistence of a cause of action when the suit was started is a fatal defect which cannot be cured by the accrual of a cause pending suit.’

So it was said in Lake Shore & Michigan Southern Railway v. People, 46 Mich. 193, 209, 9 N.W. 249, 251: ‘A question was suggested whether, admitting the position taken by the state to be correct, any suit would lie until the auditor general of his own motion or by mandamus had charged the tax sought to be recovered. As I understood counsel for the railroad company, they did not wish to press this objection, if upon such assessment hereafter being made, a recovery could be had. The company desired, and the public interests demand, that the entire matter in dispute should be passed upon the merits. In such cases courts to frequently pass upon the merits, where the objection does not go to the jurisdiction of the court. See Youngblood v. Sexton, 32 Mich. 406, .’

No objection having been made to the prematurity of the proceeding, the court may pass upon the merits of the controversy, particularly where, as here, questions of high public interest are involved.

The principal issue which thus confronts the court is whether the Senate may lawfully consider and confirm the recess appointment of a former governor...