Gratopp v. Van Eps

• Decision Date: 13 July 1897
• Court: Michigan Supreme Court
• Parties: GRATOPP v. VAN EPS.

71 N.W. 1080

113 Mich. 590

GRATOPP v. VAN EPS.

Supreme Court of Michigan

July 13, 1897

Proceeding on the relation of Frederick Gratopp for mandamus to compel Arthur E. Van Eps, a justice of the peace, to issue an execution to relator. Granted.

Byron R. Erskine, for relator.

Fred A. Maynard, Atty. Gen., for respondent.

GRANT, J. (after stating the facts).

A justice of the peace is a constitutional officer. The constitution provides that he shall be elected and shall hold his office for four years, and until his successor is elected and qualified. Const. art. 6, � 17; Brooks v. Hydorn, 76 Mich. 275, 42 N.W. 1122. The legislature cannot deprive constitutional officers of the powers and duties conferred upon them by the constitution. Averill v. Perrott, 74 Mich. 296, 41 N.W. 929. It appears to be well settled that, where the term of office of a constitutional officer is fixed by the constitution, the legislature cannot remove him by abolishing the office, unless the power so to do is expressly given by the constitution. People v. Garey, 6 Cow. 642; Garey v. People, 9 Cow. 640; State v. Friedley, 135 Ind. 119, 34 N.E. 872; Foster v. Jones, 79 Va. 642; King v. Hunter, 65 N.C. 603; People v. Bull, 46 N.Y. 57; 19 Am. & Eng. Enc. Law, 562. We are not dealing with a case where the officers of a municipality have been legislated out of office by the repeal of its charter and the destruction of its identity, but with a case where the name, identity, and territorial limits remain the same. In the latter case the charter has simply been reorganized or amended, but no jurisdiction destroyed. In such case constitutional officers whose terms are fixed by that instrument cannot be legislated out of office by such reorganization or amendment. The respondent having been elected for a full term, the act of reincorporation of the city did not operate to legislate him out of office. He should therefore have proceeded to issue the writ of execution. The writ of mandamus will issue accordingly. The other justices concurred.