Lamoreaux v. Ellis

• Decision Date: 21 December 1891
• Citation: 89 Mich. 146,50 N.W. 812
• Court: Michigan Supreme Court
• Parties: LAMOREAUX v. ELLIS, Attorney General.

50 N.W. 812

89 Mich. 146

LAMOREAUX v. ELLIS, Attorney General.

Supreme Court of Michigan

December 21, 1891

Application for a writ of mandamus by Isaac F. Lamoreaux against the attorney general. Denied.

Stuart & Knappen, for relator. A. A Ellis, Atty. Gen., in pro. per.

MORSE J.

This is an application for the issue of the writ of mandamus against the attorney general, commanding him to sign and file in this court an information in the nature of a quo warranto against John McQueen to determine the right of the said John McQueen to the office of sheriff of the county of Kent. It is alleged and appears as a fact that the prosecuting attorney of that county, as well as the attorney general, has refused, and still refuses, to sign or file such an information which has been duly presented to each of them. Lamoreaux, the relator, was a candidate for sheriff on the Republican ticket at the general election in 1890, and received 10,361 votes. McQueen was the Democratic candidate for the same office at the same time, and received 11,438 votes. He was declared elected, having the highest number of votes, and qualified and entered upon the duties of the office, and has ever since been, and now is, acting as sheriff. Lamoreaux was under-sheriff on the 31st day of December, 1890, by virtue of his appointment to that position by Loomis K. Bishop, who had been sheriff of the county for two terms immediately preceding the beginning of the term to which McQueen was elected. Bishop, by the express language of the constitution, was "incapable of holding the office of sheriff" after the said 31st day of December, 1890. Article 10, � 5. In the absence of any statute to the contrary, Lamoreaux could not hold the office of under-sheriff after Bishop's term expired. His appointment would die with the close of Bishop's holding. The statute provides that whenever a vacancy occurs in the office of sheriff in any county the under-sheriff of said county shall in all things execute the office of sheriff until a sheriff shall be elected and qualified. How. St. � 582. The vacancy, if any in this case, would not, in my opinion, be such a vacancy as is contemplated by this statute. In the statute relating to vacancies and defining them, no provision is made for a case like the present. See How. St. � 649; Lawrence v. Hanley, 84 Mich. 404 405, 47 N.W. 753. This would be a case where the full term is to be supplied because the person elected to fill such term is ineligible. On the 1st day of January 1891, in this case, there could be no under-sheriff to hold over. Bishop's authority to hold the office of sheriff expired at midnight of December 31, 1890, by constitutional limitation, and all his deputies and the under-sheriff went out of office with him. The vacancy could have been filled by a special election, and a coroner might have acted as sheriff in the interim, but Lamoreaux could not have law fully held over. Or the county clerk and prosecuting attorney might have appointed some suitable person to perform the duties of the office for the time being. How. St. � 662. Nor has the relator any rights to the premises resulting from his being a candidate for sheriff and receiving the next highest number of votes for that office. He therefore could not file an information in his own behalf to try McQueen's title to the office.

The first question to be considered is, has he the right, as a citizen, elector, and tax-payer of Kent county, to set the machinery of the law in motion, and to compel the prosecuting attorney or the attorney general, upon a proper and prim a facie showing, to institute proceedings in the nature of a quo warranto to test the rights of McQueen to hold this office? It is submitted by the attorney general that the public only are concerned in this matter, and that he, as the agent and official of the public, cannot be required against his better judgment to file a quo warranto to oust any incumbent from a public office that at the most it is within his discretion, and that he cannot be compelled, unless it appears that he has abused such discretion. In the case of Andres v. Ottawa Circuit Judge, 77 Mich. 85, 43 N.W. 857, it was contended that Andres, who claimed that he was legally elected sheriff of Ottawa county, could not file an information under the statute to test his right to hold that office without the consent of the circuit judge, and that the action of the circuit judge could not be reviewed in this court when he had refused leave to file such information on the ground that it was a matter of public concern, and not of private right; and it was argued that, unless the prosecuting attorney or attorney general saw fit to file such information upon his relation, he was powerless to move in any way to obtain the office, unless the circuit judge was pleased to grant him leave to file an information on his own account. As the case was disposed of upon another ground, nothing was said in the opinion as to this contention, but the fact that the case was heard and disposed of upon the merits would imply that the court did not consider it a good one. If the attorney general and prosecuting attorney can refuse for no good reason to file an information of this kind upon the relation of one who claims that he was legally elected to an office, or of any elector, citizen, and tax-payer who is interested in the due administration of public affairs, then it may happen that, if both of these officers belong to the same political party as the incumbent of the office, they would for that reason refuse to move in the matter, and keep in any county office for the full term a person not legally elected or legally qualified to hold it. The law, of course, presumes that every public officer will do his duty without fear or favor or partisan bias, and this is found to be the general rule; but the current history of our day is full of instances of such intense party feeling that persons are frequently applying to the courts-the last resort-for the protection and enforcement of rights denied to them for partisan and political reasons only. The history of this state is no exception to the history of other states in this Union, and one of the greatest dangers now threatening the maintenance of our free institutions is the frequent overriding of law and justice for partisan advantage and political control. I shall not be one to increase the danger, by holding that the courts are powerless to review the discretion of their officers, and all officers, in this class of cases, unless the organic law plainly forbids our interference. The public are vitally concerned in every election. What particular individual shall hold a particular office is not of so much consequence, but it is vital to the existence of a free government that there shall be a free, legal ballot, and an honest count; and that no one shall be permitted to hold an office not legally elected thereto, or qualified under the constitution to hold it, if any elector and tax-payer shall object. Every honest citizen is interested and concerned in this matter, and has a legal right to be so. The courts ought not to consent to any holding which will put the power arbitrarily and without remedy or redress into the hands of any one, two, or three men to prevent a candidate for office from establishing his election to any office, or any citizen from inquiry in good faith into the rights of any person to hold an office. This would certainly be the result of the position taken by the attorney general. There is no way except by proceedings in quo warranto to try the title to an office or oust an usurper therefrom. In Coon v. Attorney General, 42 Mich. 65, 3 N.W. 258, the question was raised, but not decided, whether this court would, under any circumstances, compel the attorney general to file an information against his better judgment, and it was said that proceedings by information ought generally to be instituted in the circuit court. In this case, however, the fact that the office of sheriff is the one in controversy, and the prosecuting attorney has declined to file an information, affords sufficient grounds for seeking relief through the attorney general, and in this court. It was held in Attorney General v. James, 73 Mich. 234, 41 N.W. 262, that the attorney general could properly file an information to ascertain by what authority James held and exercised the office of superintendent of the poor of Wayne county, on the relation of a citizen and taxpayer of the county who was interested in knowing that the proper officers made disposition of the funds he contributed by taxation to the support of the poor in his county. If the relator in this case is a proper party to act as relator in a quo warranto proceeding to try the title of McQueen to the office of sheriff, as he would be under the ruling in Attorney General v. James, supra, then it follows that he has a right to insist upon the filing of such information if he has made in good faith a proper showing to warrant such filing. It was held in Vrooman v. Michie, 69 Mich. 42, 36 N.W. 749, that a certain showing must be made where a private relator asks leave to file this class of informations. This showing must also be made when a court is called upon to compel a public officer, such as the prosecuting attorney or attorney general, to file such an information. As was said in that case: "Courts can never act unless upon some responsible showing, and, as it is contrary to public policy to allow persons to be needlessly annoyed by vexatious claims, the statute which has long existed in England, while it allows the public representative, who is the attorney general, or some other high official, to proceed ex officio, does not, as construed, permit...