Dougherty v. Joyce
| Citation | 207 N.W. 863,233 Mich. 619 |
| Decision Date | 20 March 1926 |
| Docket Number | No. 90.,90. |
| Parties | DOUGHERTY, Atty. Gen., v. JOYCE. |
| Court | Supreme Court of Michigan |
OPINION TEXT STARTS HERE
Quo warranto by Andrew B. Dougherty, Attorney General, against William P. Joyce, to determine whether defendant was legally appointed as county road commissioner of Kent county. Judgment of ouster entered.
Argued before BIRD, C. J., and SHARPE, SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ.Andrew B. Dougherty, Atty. Gen. (Cornelius Hoffius, of Grand Rapids, of counsel), for plaintiff.
Homer H. Freeland, of Grand Rapids, for respondent.
On June 26, 1925, there was a vacancy on the county road commission of Kent county. The probate judge, the prosecuting attorney, and the county clerk appointed William P. Joyce to fill the vacancy. On the following day the board of supervisors appointed Edwin Owen. In making the appointment, the county officials above named, acted under authority of Act 199, P. A. 1923. The board of supervisors acted under authority of section 4354, C. L. 1915. Joyce holds and exercises the duties of the office to the exclusion of Owen. This is a quo warranto proceeding to determine whether he was legally appointed.
The question involved is stated by plaintiff in his brief, as follows:
‘Does Act No. 199 of the P. A. of Mich. 1923, relating to the filling of vacancies in elective and appointive offices, containing no repealing clause, supersede that provision of the general highway law of the state (section 4354 of the C. L. of 1915), which provides that, in case a vacancy shall occur in the office of county road commissioner, the board of supervisors may appoint a commissioner to fill the vacancy?’
Act No. 199 is the later act. It does not expressly repeal the former act. The question is, Does it do so by implication?
The theory of the principle of repeals by implication is that the latest expression of the legislative will should control. The question therefore is one of legislative intention. When the intention of the Legislature can be ascertained, it is the duty of the courts to give it force and effect.
But, ‘the presumption is always against the intention to repeal where express terms are not used, and the implication in order to be operative must be necessary.’ R. C. L. vol. 25, § 169, pp. 918, 919.
‘Repeals by implication are not favored, and will not be indulged in if there is any other reasonable construction.’ R. C. L. vol. 25, p. 918.
‘The intent to repeal must very clearly appear, and courts will not hold to a repeal if they can find reasonable ground to hold the contrary.’ Telephone Co. v. Benton Harbor, 80 N. W. 386, 121 Mich. 512,47 L. R. A. 104.
Does it clearly appear that in enacting Act 199, P. A. 1923, the Legislature intended to take away from the board of supervisors the right to fill vacancies on the county road commission and vest it in the probate judge, prosecuting attorney, and county clerk? If such was the intention, defendant, Joyce, was legally appointed. A brief examination of the two legislative enactments, with the circumstances under which they were enacted, will be necessary in determining the question.
Act 199 of 1923, is not limited in its application to county officers. Its title reads:
‘An act to provide for the filling of vacancies in appointive and elective public offices.’
The applicable parts of the act are as follows:
Sec. 5. ‘When a vacancy shall occur in an elective or appointive county office, it shall be filled in the following manner:
‘1. If the vacancy shall be in the office of county clerk or prosecuting attorney it shall be filled by appointment by the judge or judges of that judicial circuit and the person appointed shall hold office for the remainder of the unexpired term.
It will be noted that the portion of the act which gives the probate judge, county clerk, and prosecuting attorney the power of appointment in certain cases, does not expressly specify the office of road commissioner. But, as the road commissioner is a county officer, it may rightly be said that he is included in the general language, ‘any other county office.’ So that, considered independently of the...
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...Speaker v. State Administrative Bd., 441 Mich. 547, 562, 495 N.W.2d 539 (1993), which in turn quoted Attorney General ex rel. Dougherty v. Joyce, 233 Mich. 619, 621, 207 N.W. 863 (1926). The majority has chosen to ignore this admonition.6 M.C.L. § 600.5001(2); M.S.A. § 27A.5001(2) states:A ......
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