Carleton v. People

• Decision Date: 30 May 1862
• Citation: 10 Mich. 250
• Court: Michigan Supreme Court
• Parties: Israel E. Carleton v. The People

10 Mich. 250

Israel E. Carleton v. The People

Supreme Court of Michigan

May 30, 1862

Heard November 14, 1861

Error to Muskegon Circuit.

Judgment affirmed.

E. C Walker, for plaintiff in error.

C Upson, Attorney-General, for the people.

Martin Ch. J., Campbell, J. Christiancy, J. concurred in this opinion. Manning, J.

OPINION

Martin Ch. J.:

Carleton was elected supervisor of the township of Oceana, at the township election held in April, 1859, and duly qualified as such. His township at that time was in the county of Oceana. By an act of the Legislature, approved February 4, 1859, the county of Muskeg on was organized from territory which at the time was included within the limits of Oceana and Ottawa counties, and within this territory was the township of Oceana. The information charges Carleton with willfully neglecting to produce the assessment roll of his township, for examination and equalization, to the board of supervisors of Muskegon county, at its annual meeting in October of that year. It is found by the special verdict, that at the time of the alleged neglect Carleton was supervisor of the township of Oceana; that he did refuse to present the assessment roll of his township "to a body of men calling themselves and assuming to act as the board of supervisors of the county of Muskegon; that such body of men, being composed of the supervisors of the several townships embraced within the county of Muskegon, claim to act and be a legal board of supervisors under and by virtue of the act approved February 4, 1859, and that in accordance with the provisions of the said act, county officers for said Muskegon county were elected and qualified in April, 1859, and entered upon the discharge of their duties, and still continue to act as such, and that no other or different county officers have at any other time been elected or assumed to act."

Carleton sets up by way of defense, and as ground of error, that he was not bound to present the assessment roll of his township to the body acting as the board of supervisors of Muskegon county, because the act of February 4th was unconstitutional, and there was therefore no such county: 1st. Because, as he alleges, by such act so many townships are taken away from the counties of Ottawa and Oceana, as to leave in neither of them "the number secured by the Constitution;" and, 2d. Because the fourth section of the act provides for the election of officers prior to the day when the act could constitutionally take effect.

The first ground of defense has been held invalid by us in Rice v. Ruddiman [ante], and for reasons in which I fully concur; and it only remains to consider the second.

The fourth section, which provides for the election of county officers, is claimed to be vital to the whole act, so that if unconstitutional it will destroy the act.

The section is as follows: "At the annual township election to be held in April next, the proper county officers for said county shall be elected, whose terms of office shall expire on the first day of January, 1861, and when their successors are elected and qualified; said officers, on or before the first of June next, shall take and subscribe the oath of office prescribed," etc., "and shall have and possess all the powers and discharge all the duties conferred upon, or required of county officers in this State, and shall enter upon the discharge of such duties on the first day of June aforesaid." The Constitution provides that no public act shall take effect or be in force, until the expiration of ninety days from the end of the session at which it was passed, unless the Legislature shall otherwise direct by a two-thirds vote of the members elected to each house. This direction does not appear to have been given in respect to the act in question, and the ninety days expired about the middle of May, more than a month after the election of county officers under section four was held.

The special verdict finds, that an election, in April, 1859, of county officers, was had, and was so had in accordance with the provisions of the act. That such officers were elected was a question of fact, proper for the jury to find; but whether the election was in accordance with the provisions of the act, or not, was a question of law, belonging to the court alone. I have no doubt, however, that such election was in accordance with such provisions; for the language of section four imports an intention, upon the part of the Legislature, that the new county should be fully organized, and go into active political existence upon the first day of June, 1859, as that would be the first of June next after the act took effect; while it would be absolutely erected, and its territory severed from the counties out of which it was carved, at the time the act took effect, viz: at the expiration of ninety days after the close of the session at which it was passed, which was about the 16th of May. But although an election of county officers in April, 1859, under this section, may have been unconstitutional, yet the section was not so vital to the whole act, as to render the whole unconstitutional. The election of county officers was not a pre-requisite to the creation of the county; for, by the very terms of the act, such county became a body corporate and politic long before the officers thus to be elected could enter upon their duties; and such creation was not dependent upon their election and qualification. If the election could not constitutionally have been held until the spring of 1860, yet the territory of the county of Muskegon was completely and effectually severed from Ottawa and Oceana on the day the act took effect. I therefore hold the law organizing the county to be constitutional, so far as the separation of such territory is concerned. Vide Commonwealth v. Fowler, 10 Mass. 290. In the new county were several organized townships, and from the time the act took effect they became organized townships of such county, and their supervisors thenceforward were supervisors of such county. These supervisors were not elected under the act organizing Muskegon county, nor did they derive from that act their powers, nor were their duties imposed by it. Such powers and duties spring from the general law regulating the election, powers and duties of such officers.

As supervisor of the township of Oceana, the plaintiff in error had certain duties imposed upon him, which, for reasons of public policy, he was imperatively bound to discharge: among these were the assessment of the property of his township, and attendance as a member of the board of supervisors of his county at its October session, and the production of his township assessment roll for equalization. We cannot presume that he neglected either of these duties, except that of presenting his roll for equalization.

In October, 1859, the act had taken effect and become a law; and the supervisors of the several townships constituting Muskegon county, were the board of supervisors of such county. The assessment rolls of such townships were in their aggregate the rolls of the county, and not of the counties from which the townships had been detached. The revenues of State, county and towns depended upon the faithful discharge of the duties of the supervisors of the several townships, as township officers, and as members of the county board.

Neither the election of county officers under the fourth section, nor their non-election, affects this question of the duty of the supervisors of the new county, either as township or county officers. In either character, the law imposes upon them the performance of positive duties, the non-performance of which cannot be excused by evidence that some other officer could not perform his, or even that there was no competent officer, having power to perform some other duty. It is urged that there could be no county board, for want of a county clerk--that his existence is vital to that of the board: I think otherwise. The board of supervisors is a constitutional body: Vide Const., art. X--and is not dependent for its lawful existence, or power to perform the duties imposed upon it, upon the existence of a clerk constitutionally elected. The law, it is true, provides that the county clerk shall be the clerk of the board, but if there be no such officer existing as county clerk, from any cause, at the time the board is required to meet and equalize the assessment rolls of the several townships, and discharge its other public functions, I have no doubt that, from necessity and considerations of public policy, the board possesses the power to appoint a clerk, who shall be clerk de facto, and that it can proceed to the discharge of its public duties. It would be perilous in the extreme to hold otherwise. The whole revenue of the State, and very...