Dust v. Oakman

• Decision Date: 21 May 1901
• Citation: 126 Mich. 717,86 N.W. 151
• Court: Michigan Supreme Court
• Parties: DUST v. OAKMAN.

86 N.W. 151

126 Mich. 717

DUST v. OAKMAN.

Supreme Court of Michigan

May 21, 1901

Quo warranto proceedings by the attorney general, on the relation of William T. Dust, against Robert Oakman. Judgment of ouster.

Horace M. Oren, Atty. Gen. (H. M. & D. B Duffield, of counsel), for relator.

Jerome W. Robbins (F. A. Baker, Benton Hanchett, and Charles D Joslyn, of counsel), for respondent.

MONTGOMERY C.J.

This controversy involves the title to the office of member of the board of state tax commissioners. The relator's title is asserted under an appointment by the governor, duly confirmed by the senate on February 13, 1901, for the term ending December 31, 1904. The respondent claims title under an appointment made December 18, 1899, for the same term, which appointment, he alleges, was, on the 3d day of January, 1900 duly confirmed by the senate. The facts are not in dispute. Before referring to the history of the case in detail however, we will consider a preliminary question concerning the title of relator. The plea avers that prior and subsequently to the relator's appointment he was, and that he still is, exercising the functions and receiving the emoluments of the office of city assessor of the city of Detroit, an office the duties of which are incompatible with those of the office here in controversy, and that by retaining said office he has elected not to accept the appointment of the governor. The relator asserts that this question is not properly raised, but we prefer not to deal with the case in any technical spirit, and consider the question as properly before us. The fact that the relator held the office of city assessor did not render him ineligible to appointment. It is true, he might have made assessments which may be subject to review by the state board. So may a circuit judge, while sitting at circuit, render decisions which are subject to review by this court; but no one ever supposed that for this reason a circuit judge should be considered as ineligible for election as a member of this court. The continued exercise of the duties of the office of assessor of Detroit pending the determination of the relator's title stands upon similar ground. The rule is that the acceptance of a second office, incompatible with the one already held, vacates the first. This was held in Attorney General v. Detroit Common Council, 112 Mich. 145, 70 N.W. 450, 37 L. R. A. 211. The result of the holding in that case is that upon acceptance of the office relator is now contending for he will ipso facto vacate the office of city assessor. The title to that office will therefore fail him, but not the title to this. He is not required to sit between two stools. He can have a sitting, but only one.

2. The respondent's commission purports to confer the office upon him until December 31, 1904, and it is contended by reaspondent's counsel that, irrespective of the question relating to the validity of the action of the senate hereinafter referred to, the appointment is valid, for the reason that a vacancy existed in the office, and that under section 3 of article 8 of the constitution the power to appoint to fill a vacancy in any state office is vested in the governor; the only limitation of that power being that, in case the senate is in session, the vacancy shall be filled by and with the advice and consent of the senate, and that, although the statute creating the board of state tax commissioners provides. 'In case a vacancy occurs otherwise than by expiration of the term the governor shall have power to appoint to fill such vacancy at any time, and the person so appointed shall hold office until the next meeting of the legislature after such appointment and no longer' (Pub. Acts 1899, p. 227) the power to fill the vacancy for the full, unexpired term still exists, as it is not within the power of the legislature to withdraw this authority from the governor. A glance at the statutes shows that the legislative construction of this constitutional provision from the time of its adoption has been that it related to such state officers as are named in the same article of the constitution. See Comp. Laws, �� 1168, 1172. The office in question is not a constitutional office.

It was, therefore, competent for the legislature to fix the term. The term fixed by this act in a certain contingency expires at the convening of the legislature.

3. The most important question in the case is whether the appointment of the respondent was regularly and irrevocably confirmed by the senate. On the 3d day of January, 1900, the message of the governor nominating respondent as a member of the board was before the senate in executive session. The committee to whom the nomination had been referred reported recommending that the senate 'advise and consent to the said nomination to office.' The question being on concurring in the recommendation of the committee, the senate concurred in the recommendation by the requisite aye and nay vote. At the same executive session...