Baar v. Kirby

• Decision Date: 18 October 1898
• Citation: 118 Mich. 392,76 N.W. 754
• Court: Michigan Supreme Court
• Parties: BAAR v. KIRBY.

76 N.W. 754

118 Mich. 392

BAAR v. KIRBY.

Supreme Court of Michigan

October 18, 1898

Certiorari to circuit court, Ottawa county; Philip Padgham, Judge.

Mandamus by the people, on the relation of Jacob Baar, against Thomas E. Kirby. There was an order quashing the petition, and the relator brings certiorari. Writ of mandamus granted.

Charles O. Smedley, for relator.

Charles E. Soule, for respondent.

LONG J.

Relator is the mayor of the city of Grand Haven. Respondent is the clerk of that city. It appears that at a regular meeting of the common council of that city held on June 2, 1898, a resolution was adopted by a majority vote of that body to transfer the sum of over $7,000 of the contingent funds in the city treasurer's hands, and divide and apportion said moneys to several different funds. The relator, as mayor, on June 3d filed a notice with the clerk that it was his intention to veto the resolution. On Saturday, June 4th, he prepared his veto, went to the office of the city clerk about 25 minutes after 4 o'clock in the afternoon, and found the office locked and the clerk absent. He found the clerk at his residence about 7 o'clock in the evening of that day and left the veto message with him for filing on that day and relator claims that he was given to understand the clerk would so file it. The clerk in fact did not place the filing thereon until the following Monday, which was June 6th. The relator presented a petition to the circuit court for Ottawa county for a mandamus to compel the clerk to file said veto message as of June 4th. In that petition he sets out the facts above set forth, and alleges that "afterwards, at a meeting of said city council held on June 9, 1898, the said veto was ignored and considered by said city council as null and void, because it was not filed within the statutory period (which statutory period was three days, and expired June 5th); and the said council gives it out and says that the said veto is null and void and of no effect, and that said Alderman Kiel's report and resolution are valid, and that said council will consider the same valid, and shall consider said veto invalid." On return to an order to show cause, counsel for respondent without filing an answer, moved that the petition be quashed, on the grounds: (1) That it did not show upon its face that the veto had been lodged in the office of the city clerk within the period prescribed by the charter; (2) that it did not show any resolution subject to the mayor's veto. This motion was granted by the court below. The case comes to this court by writ of certiorari.

The report of the committee which the resolution adopted transferred from the contingent fund $7,084.88, and placed it in several funds, such as electric light fund, fire department fund, general street fund,...