Chamski v. Cowan

• Decision Date: 09 March 1939
• Docket Number: No. 76.,76.
• Citation: 288 Mich. 238,284 N.W. 711
• Parties: CHAMSKI v. COWAN et al.
• Court: Michigan Supreme Court

288 Mich. 238

284 N.W. 711

CHAMSKI

v.COWAN et al.

No. 76.

Supreme Court of Michigan.

March 9, 1939.

Suit by Frank J. Chamski against John C. Cowan, Edward H. Williams, Roy D. Schneider, as members of the Board of Auditors of Wayne County, and others to enjoin payment of compensation attached to the office of deputy register of the probate court of Wayne county to any person other than plaintiff. From a decree for plaintiff, the defendants appeal, and plaintiff cross-appeals.

Decree reversed and bill dismissed.

Appeal from Circuit Court, Wayne County, in Chancery; Arthur Webster, judge.

Argued before the Entire Bench.

Duncan C. McCrea, William L. Brunner, and Samuel Brezner, all of Detroit, for appellants.

Sweetman G. Smith, of Detroit, for appellee.

POTTER, Justice.

Plaintiff was appointed to the office of deputy register of the probate court of Wayne county by Hon. Edward Command, judge of probate, March 14, 1935. Judge Command had been chosen by his colleaguesas the judge having the power, during 1935, of appointment, nomination, and removal, under the terms of Act No. 226, Pub.Acts 1933. He was the senior probate judge in point of continuous service and would have had the sole power of appointments and removals under the act (3 Comp.Laws 1929, § 13864) in effect prior to the enactment of Act No. 226, Pub.Acts 1933, if Act No. 226, Pub.Acts 1933, was unconstitutional. Defendant Joseph A. Murphy was selected to act as presiding probate judge for 1936, and defendant Thomas C. Murphy for 1937.

In December, 1936, Judge Joseph A. Murphy asked plaintiff to resign, saying ‘There has been a lot of political pressure’ which he could not ignore. Plaintiff refused to resign, contending Judge Murphy could not remove him, since he had been appointed by Judge Command. December 14, 1936, plaintiff received a formal letter of removal, effective December 31, 1936, from Judge Joseph A. Murphy. There is no showing plaintiff's work was unsatisfactory or other cause existed for his removal.

Plaintiff reported for work January 2, 1937, and found another man had been appointed in his place. Plaintiff thereafter presented himself at the probate office on several occasions and offered to continue his services.

December 27, 1937, plaintiff filed a bill in chancery alleging that Act No. 226, Pub.Acts 1933, was unconstitutional and void, his discharge illegal, and, under 3 Comp.Laws 1929, §§ 13864, 13875, 13876, only Judge Command could remove him from office and then only for cause after proper hearing. Plaintiff asked that the board of county auditors and the county treasurer be enjoined from paying the compensation attached to the office to any other person than himself.

Defendants, Judges Joseph A. Murphy and Thomas C. Murphy, of the Wayne county probate court; John C. Cowan, Edward H. Williams and Ray D. Schneider, members of the board of auditors of Wayne county; and Jacob P. Sumeracki, Wayne county treasurer, answered, defended the constitutionality of the act, asserted the validity of plaintiff's discharge, and interposed the defense of laches by reason of plaintiff's failure to file his bill of complaint until a year after his discharge.

On filing the bill of complaint, the circuit judge issued an order directing defendants to show cause why a temporary injunction as prayed should not issue, and during the pendency thereof restrained defendants from in any way, manner, or form, paying or approving the compensation attached to the office of deputy probate register to any other person. On the hearing, the circuit judge denied the motion to dismiss, without prejudice, and reserved decision on the order to show cause, without dissolving the restraining order.

On trial, the circuit judge determined that Act No. 226, Pub.Acts 1933, was valid; that plaintiff had been appointed to office for a definite term and, whether removable either by Judge Command or Judge Murphy, he could be removed only for cause; that the removal power was not exercised in a proper manner and that plaintiff was not legally removed; that laches is an affirmative defense and no testimony of laches was offered, except that the bill was not filed until December 27, 1937, and meanwhile another deputy probate register occupied the desk formerly occupied by plaintiff and performed his duties; and that plaintiff was not barred from relief by laches.

Decree was entered adjudging the removal from office and discharge of plaintiff illegal and ordering his reinstatement. Compensation accruing to plaintiff during his illegal discharge was referred to the board of auditors for audit.

Petition for rehearing was filed June 6, 1938, with supporting affidavit setting up that the county of Wayne had expended $3,795 during the period of plaintiff's delay by reason thereof. Rehearing was denied.

Defendants appeal claiming the court erred in holding the removal of plaintiff could be only for cause, and in holding plaintiff was not barred from relief by laches. Plaintiff cross-appeals claiming the trial court erred in finding Act No. 226, Pub.Acts 1933, constitutional.

3 Comp.Laws 1929, § 13876, provides: ‘The probate judge or judges of any county having a probate register may appoint one (1) or more deputy probate registers who shall have such compensation as shall be fixed by the board of supervisors of said county. The term of office of such deputy probate registers and their powers shall be the same as those prescribed by law for probate registers.’

3 Comp.Laws 1929, § 13875, provides: ‘In every county in this state the judge of probate may appoint a probate register, who shall hold such office during the term for which the judge of probate making the appointment shall have been elected, unless sooner removed by the judge of probate.’

3 Comp.Laws 1929, § 13864, as amended by Act No. 226, Pub.Acts 1933, provides: ‘In counties having one hundred eighty thousand inhabitants there shall be two judges of probate, and in counties having seven hundred fifty thousand inhabitants, or more, there shall be four judges of probate, two of whom shall be elected at each alternate biennial election for terms of four years, and in counties having five hundred thousand inhabitants there shall be three judges of probate, as hereinafter provided. They shall have equal powers, duties and compensation, except that the power of appointment, nomination and removal of the several employes provided by law for such courts, and the offices connected therewith, and the general direction and control of the business of such court, including the division of the work between the judges, shall be vested in counties having less than seven hundred fifty thousand inhabitants in the judge having served for the longest period continuously, and, in counties having seven hundred fifty thousand inhabitants, or more, in the judge who shall be chosen by the several judges in any such county, or, in the case no judge shall receive a majority vote of such judges, then in the judge of said court selected by the governor: Provided, however, That in counties having seven hundred fifty thousand inhabitants, or more, no judge shall be eligible to serve in such capacity for a longer period than one year during his term of office. A selection as herein provided shall be made within fifteen days of the effective date of this act. The judge so selected shall exercise the duties and powers herein provided until January one, nineteen hundred thirty-four. Thereafter a similar selection shall be held by January fifteenth of each year and the judge so selected shall exercise the powers and duties herein granted for a period of one year from the date of his selection. Whenever the United States census shall show that any county has one hundred eighty thousand inhabitants and has but one judge of probate, the additional office first herein provided for shall be deemed to be created and vacant, and whenever the United States census shall show that any county has five hundred thousand inhabitants and has but two judges of probate, the additional office next herein provided for shall be deemed to be created and vacant, and whenever the United States census shall show that any county has seven hundred fifty thousand inhabitants the additional office next herein provided for shall be deemed to be created and vacant, which vacancy or vacancies shall be filled by appointment of the governor and the person so appointed shall hold office until his successor is elected and qualified. At the next general November election a successor to the additional judge herein provided for shall be elected to hold office until the general election following, at which election his successor shall be elected and hold office for the full term of four years from and after the thirty-first day of December following and until his successor is elected and qualified. Nothing contained herein shall be construed to affect the tenure of office of those judges of probate or their successors heretofore elected and qualified: Provided, That any county that has failed to elect an additional probate judge, or judges, under this section, prior to July one, nineteen hundred thirty-two, shall be not entitled to elect any additional judge, or judges, under the provisions of this section.’

Act No. 226, Pub.Acts 1933 (amending 3 Comp.Laws 1929, § 13864), provides the so-called ‘presiding judge’ shall have the power of removal. This seems to divest any other probate judge of power to remove from office. 3 Comp.Laws 1929, § 13875, which governs the term of office of probate registers, and their deputies, by reference, must refer to the presiding probate judge when it says ‘shall hold such office during the term for which the judge of probate making the appointment shall have been elected, unless sooner removed by the judge of probate,’ since the only judge of probate possessing removal power is the presiding judge.

Where there are two modes of construing a statute...