Attorney General v. Common Council of City of Detroit

• Decision Date: 19 March 1897
• Citation: 112 Mich. 145,70 N.W. 450
• Court: Michigan Supreme Court
• Parties: ATTORNEY GENERAL EX REL. MORELAND v. COMMON COUNCIL OF CITY OF DETROIT.

70 N.W. 450

112 Mich. 145

ATTORNEY GENERAL EX REL. MORELAND v. COMMON COUNCIL OF CITY OF DETROIT.

Supreme Court of Michigan

March 19, 1897

Proceeding by the attorney general, on the relation of De Witt H Moreland, against the common council of the city of Detroit for a writ of mandamus to compel respondent to call an election to fill a vacancy in the office of mayor. Writ granted.

Fred A. Baker and John J. Speed, for relator.

Charles Flowers and C. D. Joslyn, for respondent.

HOOKER J.

Hon Hazen S. Pingree was elected mayor of the city of Detroit and while an incumbent of that office was elected to, accepted, and entered upon the execution of the duties of the office of governor. He continues to perform the functions of both, and the petition in this proceeding proceeds upon the theory that, by accepting the latter office, that of mayor has become vacant, and a writ of mandamus is asked commanding the respondent to call an election to fill such vacancy. Two theories are presented under which it is contended that Mr. Pingree cannot hold these two offices at one and the same time: (1) That he is prohibited by section 15 of article 5 of the constitution, which says: "No member of congress, nor any person holding office under the United States or this state, shall execute the office of governor." (2) That the two offices are incompatible under the rules of the common law.

Many cases have arisen upon similar provisions of the various constitutions, and, while the decisions are not altogether uniform, we shall find them in substantial harmony upon two propositions, viz.: First, that an officer of a city, whose duties are simply and purely municipal, and who has no function pertaining to state affairs, does not come within the constitutional description of officers holding office under the state; and, second, where officers in cities are appointed or elected by the community in obedience to laws of the state which impose duties upon them in relation to state affairs, as contradistinguished from affairs of interest to the city merely, such as relate to gas-works, sewers, waterworks, public lighting, etc., they are upon a different footing, and may properly be said to hold officer under the state. We will first consider whether this distinction is a proper one to be made under our constitution, and it must be determined upon adjudicated cases elsewhere, and such lights of a domestic nature as our own decisions and discussions afford.

There are cases which hold that a similar provision is to be applied only to constitutional offices, and it is contended here that, at the most, the provision does not include all offices that are held under state authority; that officers elected by counties, townships, school districts, etc., should be excluded. In the state of Louisiana that seems to be the rule, as has been repeatedly declared, under the following constitutional provision, viz.: "No person shall hold or exercise, at the same time, more than one office of emolument, except that of justice of the peace." The cases sustain the statement, and some of them go the length of holding that the section applies only to constitutional offices. They all rest upon the decision in the case of Dorsey v. Vaughan, 5 La. Ann. 155. In that case the question before the court was whether a person could be, at the same time, sheriff and parish tax collector. The court said that "the office of parish tax collector, if office it be (upon which point we express no opinion), is a municipal office; that of sheriff is a state office. The incompatibility contemplated by the constitution is the holding of two state offices." No authority is cited in support of this construction, nor is any reason given, and, as an authority, this case has no intrinsic value outside of Louisiana, except that which any decision should have by reason of the eminence of the judges who made it. See also, State v. Blanchard, 6 La. Ann. 515, which deals with another constitutional provision; and Voorheis v. Fournet, 15 La. Ann. 597; State v. Montgomery, 25 La. Ann. 140; State v. Newhouse, 29 La. Ann. 824; State v. Somnier, 33 La. Ann. 238. From the foregoing it would appear that the Louisiana authorities sustain the proposition contended for, viz. that only state offices, as contra-distinguished from those pertaining to counties, etc., are within the provision of the Louisiana constitution; and not only that, but they must be offices created by the constitution. Offices of lesser subdivisions seem to be treated as municipal offices, and as the "parish" in Louisiana is defined by Webster to be "a civil division, corresponding to a county in other states," it is obvious that Dorsey v. Vaughan was not in fact treating of a municipal corporation proper, but a quasi corporation, and this may perhaps be explained by the fact that the civil law is the substratum of Louisiana jurisprudence. This use of the term "municipal corporation" does not seem to be adopted in the other cases that we shall discuss, and we mention it to clearly show that the Louisiana cases differ in important particulars from others. We recall no other case that goes so far as to hold that county and township offices, so called, are not "offices held under the state."

Counsel for the respondent are of the opinion that the Louisiana cases are reinforced, and that view is shown to have been entertained by our constitutional convention of 1850, not by reason of its treatment of this particular provision, but in its discussion of a kindred provision appertaining to the eligibility of members of the legislature, viz. section 6 of article 4. The counsel have, we think, misapprehended the purport of the discussion in the constitutional convention. So far from the members of the convention entertaining the opinion that the expression, "officer under the state," means the same thing as state officer, the contrary view appears to have been expressed by every member who is recorded as having addressed the convention upon the subject. Mr. Bush, referring to the provision of the constitution of 1835, which reads: "No person holding any office under the United States, or of this state, officers of the militia, justices of the peace, associate judges of the circuit and county courts, and postmasters excepted, shall be eligible to either house of the legislature" (section 8, art. 4),-said: "Under it the question of the eligibility of certain county officers had been frequently before the legislature, and it was yet uncertain whether they rightfully held their seats or not. It was urged by some that the county and township officers were excluded from holding seats, from the very fact that justices of the peace were excepted. He had never been in the legislature without witnessing some confusion, growing out of the election of a county officer, judge, clerk, or some other." Mr. Bush further stated that it was the duty of the convention to set the matter at rest. Mr. McClelland thought: "The general interpretation of the clause of the constitution was as stated by the member from Ingham (Mr. Bush), that all officers were excluded save those specially excepted. *** In regard to the cases of county officers holding seats, mentioned by gentlemen, he believed the question of their eligibility had been referred to committees, but, if rumor was correct, those committees had withheld their reports, and the officers thus permitted to remain and hold their seats in the legislature. The question was not settled." After an amendment inserting the words, "or any county office," had been proposed, Mr. Goodwin said: "It has been remarked that the corresponding section in the present constitution has occasioned a great deal of discussion in the legislature. It has received a broad construction, and one, I think, not in conformity with its object and intent"; and, after quoting the provision, he proceeded: "One would have supposed that the phraseology would have excluded county officers, yet it is well known that they have been admitted to seats. I remember a case that occurred two years ago. A contested election of a county clerk had been returned to the house of representatives, and he had obtained a certificate of his election. The question came up of his competency to hold the seat; yet he was permitted to retain it. I understood it was decided that the proper construction of the section was that it merely applied to state officers; in common parlance, officers appointed directly by state authority." It will be noted that Mr. Goodwin was of the opinion that, although the clause had, in this instance, been interpreted to mean "officers appointed directly by state authority," yet this was a misconstruction, and the provision should have been construed as excluding county officers as well. He offered an amendment, of which he said: "It will put the matter beyond the probability of any ambiguity or misconstruction." See Convention Debates 1850, pp. 129-131.

It will be seen, therefore, that there was in the convention no apparent disagreement as to the proposition that section 8 of article 4 of the constitution of 1835 excluded others than those who were appointed "directly by state athority," nor is it easy to perceive why there should have been. In the same instrument (article 6, � 6) it was provided that each township might elect four justices of the peace. It was perfectly obvious, therefore, that if the words, "office under the United States or of this state," were given a construction which limited them to "officers appointed directly by state authority," the exception, in the same section, of justices of the peace, was senseless; and as the words are susceptible of a construction which excluded officers immediately holding office...