Frey v. Michie

• Decision Date: 26 January 1888
• Citation: 36 N.W. 184,68 Mich. 323
• Court: Michigan Supreme Court
• Parties: FREY v. MICHIE ET AL., CO. SUPTS. OF POOR.

36 N.W. 184

68 Mich. 323

FREY v. MICHIE ET AL., CO. SUPTS. OF POOR.

Supreme Court of Michigan

January 26, 1888

Mandamus. Upon an application to be admitted to an office.

The relator, David Frey, applied for a mandamus against Alexander Michie and Henry F. Horner, members of the county superintendents of the poor of Wayne county, to admit him to a seat with them on the board. Relator had been appointed to the office by the board of supervisors, and Patrick Blake had been appointed by the board of county auditors, and admitted to the office. The contention was as to who had the right of appointment.

CAMPBELL, J.

This court, upon the application of relator, gave him an order on respondents to show cause why they do not admit him to sit with them as their colleague on the board of county superintendents of the poor of Wayne county. Notice was ordered to be served on the parties interested, and notice was actually served on the board of county auditors of Wayne county, and upon Patrick Blake, the appointee of the board of auditors to the place claimed by relator. All of these parties answered and showed cause. The question now arises whether a mandamus should issue as prayed. This requires a statement of the real controversy.

The petition does not fully set out the real state of the case. It avers no more, in substance, than the appointment of relator by the board of supervisors of Wayne county at the October meeting in 1887, to a three years' term beginning January 1, 1888; the filing of a bill by the attorney general to prevent such an appointment by the board of auditors, and an injunction granted, which was dissolved December 31, 1887; the appointment of Patrick Blake by the auditors thereafter; and the refusal of respondents to admit relator on January 3, 1888, when he produced his appointment and demanded his seat, on the ground of the nullity of his appointment. It does not show what person he was to succeed as outgoing commissioner, and it does not attempt to explain the real controversy. But as the answers have put us in full possession of the omitted facts, we shall proceed to consider them.

The real controversy is one between the board of county auditors of Wayne county, and the board of supervisors of the same county, concerning their respective claims to exercise the appointing power. Neither of these bodies is made respondent and it is not seriously claimed that either of them could be, to a petition for a mandamus. The application is, therefore, as now explained, one to settle the powers of two important county boards, in a controversy between private persons. This is of itself a very serious consideration in passing upon the jurisdictional dispute. But a fuller reference to the condition of things will enable us to determine very readily how far this proceeding should be sustained. It appears from the returns that, when the petition was filed the office was already full, Mr. Blake having been admitted to his seat. This fact ought not to have been omitted from the petition. It appears, further, that he was chosen as his own successor, and there was no interval between his holding and reappointment. It appears, further, that Blake was appointed by the board of auditors, and that both of the respondents were appointed in the same way, so that if he is not in office they are not. Under this petition it cannot be disputed that all of these persons are officers de facto. But this does not rest on estoppel. It appears that before and ever since the adoption of the constitution of 1850-a period of over 40 years-the county auditors have always made these appointments. If there is anything to make it illegal, it has only been traced to the constitution of 1850. Reference was made, but with no apparent confidence, to an amendatory act passed in 1885, whereby the old section (1756) of Howell's Compilation, which provided for the appointment of county superintendents, was changed by an addition making the city poor commissioners of Detroit ex officio members of the county board, so that it should "consist of the three superintendents appointed by the supervisors and of the members of the board of poor commissioners of the city of Detroit." Laws 1885, p. 76. The only change made was by this amendment, which did not purport to make any change in the board as existing, except by adding to its numbers the outside members. This mention of appointment of the supervisors, at most, could only be a legislative opinion on the practice under the existing law, which it did not attempt to change as to the mode of appointment. It is unnecessary to say more than that a legislative interpretation of old laws has no judicial force. Whether right or wrong must be determined by the statutes themselves. Previous to 1850 the county auditors were vested with the same powers conferred on boards of supervisors under state laws, with some specified exceptions. How. St. � 513. This statutory grant has never been expressly repealed, and, whatever else was out of their power, they certainly appointed the county superintendents of the poor. If there is any change in this regard, it is worked by implication from the constitution or subsequent legislation.

Whether this had been done we do not now propose to decide for several reasons, which will be referred to. A practical construction for more than a third of a century, not disturbed until now by any one, whether conclusive or not, deserves too much respect to throw any doubt on the right of respondents and Mr. Blake to be treated as valid officers de facto at least. And this is conclusive against the present...