Kaminski v. Cowan

• Decision Date: 21 December 1938
• Docket Number: No. 101.,101.
• Citation: 282 N.W. 902,287 Mich. 62
• Parties: KAMINSKI v. COWAN et al.
• Court: Michigan Supreme Court

287 Mich. 62

282 N.W. 902

KAMINSKI

v.COWAN et al. ^*

No. 101.

Supreme Court of Michigan.

Dec. 21, 1938.

John Kaminski filed a claim against the County of Wayne with the Board of County Auditors for such county, consisting of John C. Cowan and others, for unpaid salary as Circuit Court Commissioner, and from a judgment for claimant on appeal to the circuit court from the Board's order denying the claim, the members of the Board and the County appeal, and claimant cross-appeals.

Case remanded to the circuit court for modification of the judgment as to the amount of interest thereon, and judgment otherwise affirmed.

Appeal from Circuit Court, Wayne County; Joseph A. Moynihan, judge.

Argued before the Entire Bench.

Herman A. Schmier and Sidney J. Karbel, both of Detroit, for plaintiff.

Duncan C. McCrea, Pros. Atty., and Garfield A. Nichols and Nicholas J. Wagener, Asst. Pros. Attys., all of Detroit, for defendants.

NORTH, Justice.

From January 1, 1933, to and including December 31, 1933, plaintiff, John Kaminski, was a duly elected, qualified and acting circuit court commissioner for Wayne county. For compensation as such public officer by statutory provision (Act No. 724, Local Acts 1907) he was paid by the State $3,000 per annum, and by ordinance passed by the board of supervisors of Wayne county, his annual compensation payable by the county was fixed at $5,500, making a total of $8,500. Notwithstanding the above provisions as to compensation for his official services, plaintiff received and accepted $7,200 as his salary for 1933. This diminution in salary paid to plaintiff was due to the then current general depression, in consequence of which it may fairly be inferred from the record there was a general attempt made by the Wayne county board of auditors to reduce salaries payable to public officers and employees. Plaintiff's term of office expired December 31, 1936. On November 23, 1936, he filed claim with the board of Wayne county auditors for unpaid salary in the amount of $1,300, together with interest thereon from January 1, 1933. The board of auditors failed to pass upon this claim. On September 23, 1937, plaintiff instituted mandamus proceedings in the Wayne county circuit court which resulted in an adjudication that the board of auditors had authority to pass upon plaintiff's claim and the writ of mandamus issued commanding such action. No appeal was taken. On November 3, 1937, the board of auditors did pass upon plaintiff's claim and denied the same. Thereupon plaintiff appealed to the circuit court of Wayne county. The board of auditors and the county of Wayne appeared and answered. For the reasons hereinafter considered, defendants denied plaintiff's right to recover. The circuit judge, who heard the case, rendered a judgment in the sum of $1,300 for plaintiff. Defendants have appealed. Plaintiff has perfected a cross-appeal, asserting that the trial judge was in error in not allowing interest on the amount recovered.

The first contention made by appellants is that the Wayne county board of auditors did not have authority to pass upon plaintiff's claim. This contention cannot be sustained. ‘The boards of supervisors shall have exclusive power to fix the salaries and compensation of all county officials not otherwise provided for by law. The boards of supervisors, or in counties having county auditors, such auditors, shall adjust all claims against their respective counties * * *.’ Constitution of Michigan, Art. 8, § 9. The caption or heading by which the above quoted section is prefaced reads: ‘Salaries; claims against counties; appeals from decisions of board.’ Clearly the framers of the Constitution intended that the matter of adjusting ‘all claims' should include claims for salaries when contested. This is the construction which the legislature seems to have placed upon the constitutional provision. ‘It shall be the duty of the board of supervisors of each county, or the board of county auditors in counties having a board of county auditors, to adjust, allow and authorize the payment of all claims against the particular county, and any claims not adjusted and ordered paid by the said board of supervisors or board of county auditors, as the case may be, except as provided in this act, shall not be paid.’ 1 Comp.Laws 1929, § 1186, Stat.Ann. § 5.521. It would seem too clear for argument that under the above quoted statute plaintiff could not assert his contested claim against the county until it had first been passed upon by the Wayne county board of auditors. The statute provides for appeal to the circuit court from either the allowance or the disallowance of claims by the board of supervisors or the board of auditors. 1 Comp.Laws 1929, §§ 1186, 1187, Stat.Ann. §§ 5.521, 5.522. Atlas v. Wayne County Board of Auditors, 281 Mich. 596, 275 N.W. 507, upon which appellants rely, is not an authority for their contention. Instead the holding of the cited case is only to the effect that plaintiff therein did not have a valid claim for unpaidsalary and therefore his petition for mandamus to compel the allowance of...