Dartland ex rel. De Motts v. Public Schools, City of Hancock
| Decision Date | 26 June 1970 |
| Docket Number | No. 3,Docket No. 8140,3 |
| Citation | 181 N.W.2d 41,25 Mich.App. 14 |
| Parties | Walter T. DARTLAND, Special Prosecuting Attorney for Houghton County, ex rel. Myra DE MOTTS, Plaintiffs-Appellants, v. The PUBLIC SCHOOLS, CITY OF HANCOCK, Raymond F. Hosang, William T. Eillola, and City of Hancock, a Michigan municipal corporation, Defendants-Appellees |
| Court | Court of Appeal of Michigan — District of US |
Walter T. Dartland, Dartland, Johnson & Kedzior, Houghton, for plaintiffs-appellants.
Sterling W. Schrock, Hancock, for defendants-appellees.
Before FITZGERALD, P.J., and J. H. GILLIS and O'HARA, * JJ.
Myra De Motts was a candidate for the school board of the Hancock public schools at the June 10, 1968 election. She was defeated by four votes.
On July 9, 1968, Walter T. Dartland, then Houghton County Prosecuting Attorney, filed a Quo warranto action in circuit court on behalf of Myra De Motts. The complaint alleged that material error was committed at the election in that the ballot was improperly worded, candidates' names were not rotated on the ballot, and that relator was not furnished a proof copy of the ballot, all in violation of specific statutes.
On July 26, 1968, defendants moved for accelerated judgment on the grounds of lack of jurisdiction (GCR 1963, 116.1(1)) because the prosecuting attorney was without authority to bring the action. The circuit court granted the motion stating:
'The Court is of the opinion that under the applicable Statute and Rule 715, General Court Rules, the Prosecuting Attorney is not authorized to bring said action and that accordingly this Court is without jurisdiction.'
Pursuant to leave granted plaintiff prosecutes this appeal.
In the order granting delayed appeal this court directed the parties to brief the question of whether the appeal is moot.
We hold the question raised is not moot for two reasons: First, the term for which appellant was a candidate was for four years. The office is still being filled by a candidate chosen at the election which appellant claims was legally infirm. Thus, were the allegations of illegality to be sustained, there would remain some period of time when another selectee could serve for the remainder of the term. Secondly, under our holding in Robson v. Grand Trunk Western Railroad Company (1966), 5 Mich.App. 90, 145 N.W.2d 846, if the question presented is of importance to the jurisdiction of the state, we are empowered to pass upon it judicially even though in a technical sense the question as to the involved parties or subject matter may be moot. See, also, LaFayette Dramatic Productions, Inc. v. Ferentz (1943), 305 Mich. 193, 9 N.W.2d 57; Milford v. People's Hospital Authority (1968), 380 Mich. 49, 155 N.W.2d 835.
The second issue to be resolved is whether the prosecuting attorney was a proper officer to bring the Quo warranto proceedings on the relation of a private citizen. Appellant cites as first authority RJA Section 4545 (M.C.L.A. § 600.4545 (Stat.Ann.1962 Rev. § 27A.4545)). We set it forth:
.' (emphasis supplied)
Appellant's reliance is misplaced. The quoted section is concerned only with elections at which 'there has been submitted any constitutional amendment, question, or proposition * * *.' Such is not the case in the election here under consideration. The section is inapplicable.
Next, appellant urges that § 4545 of the present Judicature Act is not new legislation, but is in effect a re-enactment of §§ 27, 28 and 29 of the 1915 Judicature Act. We are unable to agree. The sections differ in legal substance. We are constrained to agree with the Preliminary Committee Comment in Chapter 45 covering Quo warranto:
'This chapter is an extensive revision of the previous statute on the subject and Transfers a large part of what was in the statute to the court rules.' (Emphasis added.)
Perforce we turn next to the Court Rule GCR 1963, 715, and particularly 715.2. It must be conceded, as noted in the author's comments, 1 that the respective roles of the attorney general and the prosecuting attorneys of the several counties is unclear. The authors further note:
'Until this difficulty is resolved by judicial interpretation, a citizen who wants to initiate quo warranto would be well advised to apply first to the Attorney General.'
In comprehensive briefs the parties urge with vigor their respective positions. We choose to apply the traditional rules of statutory construction to the construction of the court rule. In so doing, we must eschew discussion of whether it is better from a public policy standpoint that a local situation, as is presented here, is better left to the local prosecuting attorney rather than the attorney general. What the drafters of the court rules said, they said. Ours is not to evaluate the policy that dictated their choice of language.
The concerned subsections are herewith set forth:
'(b) persons who usurp, intrude into, or...
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