Attorney Gen. ex rel. O'hara v. Montgomery

• Decision Date: 04 June 1936
• Docket Number: No. 143.,143.
• Citation: 267 N.W. 550,275 Mich. 504
• Parties: ATTORNEY GENERAL ex rel. O'HARA v. MONTGOMERY.
• Court: Michigan Supreme Court

275 Mich. 504
267 N.W. 550

ATTORNEY GENERAL ex rel. O'HARA
v.
MONTGOMERY.

No. 143.

Supreme Court of Michigan.

June 4, 1936.

Information in the nature of quo warranto by David H. Crowley, Attorney General, suing for the People, on the relation of Elmer B. O'Hara, against Henry A. Montgomery.

Judgment for defendant.

[267 N.W. 551]

Argued before the Entire Bench, except TOY, J.

George A. Kelly and Walter E. Kelly, both of Detroit, for relator Elmer B. O'Hara.

Oscar C. Hull, of Detroit (John C. Bills and Fred G. Dewey, both of Detroit, of counsel), for defendant.

POTTER, Justice.

December 10, 1935, the Attorney General, on the relation of Elmer B. O'Hara, filed an information in the nature of quo warranto in this court against Henry A. Montgomery to show by what authority he, the said Montgomery, claimed to hold the office of county clerk of Wayne county.

December 24, 1935, the defendant filed an answer showing that though Mr. O'Hara was duly elected to the office of county clerk of Wayne county at the November, 1932, election and re-elected to that office at the November, 1934, election, relator failed to give the official bonds required of him, and that he was convicted November 4, 1935, of a felony, in the circuit court of Macomb county, and for these reasons the circuit judges of the county of Wayne removed the relator from the office of county clerk of Wayne county and declared said office vacant, and defendant was, December 4, 1935, duly and regularly appointed to fill the vacancy in said office for the unexpired term; that he accepted said office and qualified and was thus lawfully holding the office.

The facts involved were stipulated by written stipulation filed in this court February 11, 1936. Subsequently, on March 4, 1936, a stipulation of additional facts was filed showing that February 8, 1936, relator was found guilty of certain infamous crimes by a jury on his trial in the recorder's court for the city of Detroit; on February 14, 1936, relator was sentenced by the court to confinement in the Michigan state prison; and that January 23, 1936, the circuit judge acting in Macomb county set aside the verdict of guilty rendered against relator and granted him a new trial on the ground investigation disclosed evidence of improper conversation between one of the

[267 N.W. 552]

jurors in said case and a third party during the progress of said trial.

Relator was convicted in the circuit court of Macomb county by a verdict of eleven jurors. November 1, 1935, Frank Hacker, one of the members of the jury impaneled and sworn to try the relator in the criminal case in the circuit court for Macomb county, was sick and not able to attend court. A physician's certificate was filed indicating the juror might not be able to return for some days. The trial judge said: ‘It is now agreed, I believe, that the respondent will waive the further presence of this juror and proceed to the remainder of the trial before the remaining eleven jurors. Is that correct?’ to which counsel for respondent answered ‘That is correct, your honor.’ The trial judge then said: ‘A journal entry may be made to that effect, and we will proceed to the trial,’ to which counsel for respondent replied ‘Yes, your honor.’ On November 1, 1935, an order was entered in the journal of the circuit court for Macomb county: ‘* * * due to the serious illness of one of the jurors, to-wit: Frank G. Hacker, whereupon the respondent and his counsel waived the further presence of said juror and consent to proceed to try the cause before the remaining eleven jurors.’

The stipulation of facts filed herein shows:

‘That during the course of said trial, to-wit, on the 1st day of November, 1935, one of the jurors was excused due to illness, and said relator and his counsel waived the further presence of said juror and consented to proceed to try the cause before the remaining eleven jurors, which appears from the journal entry for said date as follows:

“In this cause the parties being again present in court and the jury heretofore impaneled in this cause being again present in court, whereupon the trial of the above entitled cause was adjourned to 1 o'clock in the afternoon and due to the serious illness of one of the jurors, to-wit: Frank G. Hacker, whereupon the respondent and his counsel waived the further presence of said juror and consent to proceed to try the cause before the remaining eleven jurors, thereupon the jurors sat and heard further proofs and allegations of the parties, trial being adjourned to Saturday morning, November 2nd, 1935.'

‘On the 4th day of November, 1935, at a session of said Circuit Court for the County of Macomb held on that day, said jury of eleven found the relator guilty of the crime of bribery of a public officer as charged.’

It is claimed we may not inquire into the legality or regularity of Mr. O'Hara's conviction in this proceeding, that to attack his conviction in the criminal case in Macomb county would constitute a collateral attack and such conviction may not here be drawn in question; that we may no more question the regularity of that conviction because it was by eleven jurors than call it in question for errors by the trial court in the admission or exclusion of testimony, or in the charge of the trial court, or because of the failure of the trial court to direct a verdict. There is a clear distinction between those cases in which a verdict is attacked for irregularity and those in which it is attacked for want of jurisdiction. It is well settled that where a tribunal has jurisdiction and has acted, its action may not be drawn in question collaterally, though it may be subject to direct attack. But where there is a want of jurisdiction, such lack of jurisdiction may be taken advantage of at any time. Here it is contended Mr. O'Hara was not tried before a regularly constituted tribunal; that the court lost jurisdiction to proceed with the trial; that eleven jurors were wholly without power and authority to render any verdict at all because under the Constitution and laws of this state they did not constitute a legal jury.

It is contended by defendant that inasmuch as relator has, since the appointment of defendant as county clerk of Wayne county, been convicted in the recorder's court of Wayne county of other infamous crimes and has been sentenced to Michigan state prison, this case is moot. Decision in this case as to defendant's right to hold the office of county clerk is governed by the conditions prevailing at the time the information against him was filed, and the right to the office and its emoluments is in dispute at least for the time between defendant's appointment and relator's conviction February 8, 1936.

The bond which it is claimed relator failed to give was not an official qualifying bond. His failure to give it as soon as demanded, under the circumstances disclosed by this record, did not create a vacancy in the office of county clerk, Toy ex rel. Elliott v. Voelker, 273 Mich. 205, 262 N.W. 881, though it may have been ground for the circuit court declaring the office vacant;

[267 N.W. 553]

a question we find it unnecessary to pass upon.

A county clerk is a county officer who may be removed from office by the Governor. Comp.Laws 1929, § 3353. In order to remove a county clerk from office, there must be charges made, service of the same upon the occupant, and a hearing had at which the occupant is entitled to be heard. A removal is a deprivation of office by the act of a competent superior officer acting within the scope of his authority. If the office of county clerk was vacant, relator could not be removed therefrom. One may not be removed from an office he is not in. An office is vacant when it is empty-when it is unoccupied-when there is no one who of right may exercise its functions. No proceedings under the removal statute were proper or necessary if the office was vacant. The office became vacant by the conduct, action, or status of the erstwhile occupant. The statute of removal provides the Governor may remove a county clerk from office ‘whenever it shall appear by a certified copy of the judgment of a court of record of this state that such officer, after his election or appointment, shall have been convicted of a felony,’ while the statute relating to vacancies provides the office shall become vacant upon the conviction of the occupant of any infamous crime. Comp.Laws 1929, § 3350.

The reason for the enactment of Act No. 172, Laws of Extra Session of 1851 (Comp.Laws 1929, § 3350), providing that every office shall become vacant upon the conviction of the incumbent of any infamous crime is well stated in State ex rel. Anderson v. Fousek, 91 Mont. 448, 8 P. (2d) 791,84 A.L.R. 303, where it was held the underlying principle is that the security of government depends upon respect for laws and the confidence of the people in public officers. The Legislature has declared, in effect, that that confidence cannot extend to an officer convicted of a felony. State ex rel. Blake v. Levi, 109 W.Va. 277, 153 S.E. 587. Nor can the people generally have proper respect for laws if their officers treat the laws with indifference. The reason for the rule applies equally to one convicted under the federal law and under the state law. Act No. 172, Laws of Extra Session of 1851 (Comp.Laws 1929, § 3350), does not say an officer may be removed from office. It does not provide that somebody must declare a vacancy therein exists. It establishes a legislative rule, a declaration that every office shall become vacant before the expiration of the term of such office upon the conviction of the incumbent of any infamous crime. When the incumbent of the office during the term thereof is convicted of any infamous crime, his office thereby becomes vacant.

An innocent man who is unjustly convicted of a felony is doubly unfortunate, but that he may ultimately succeed in establishing his innocence does not entitle him in the meantime to hold on...