Millard v. Guy, 45
| Decision Date | 06 October 1952 |
| Docket Number | No. 45,45 |
| Parties | MILLARD, Attorney General v. GUY. |
| Court | Michigan Supreme Court |
Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Lansing, for relator, Glenn M. Coulter, Detroit, of counsel.
Dale H. Fillmore, Corp. Counsel, Duane Dunick, Deputy Corp. Counsel, Dearborn, Frank C. McCann and Frederick G. Weideman, Asst. Corp. Counsels, Detroit, for respondent, Robert E. Childs, Detroit, of counsel.
Before the Entire Bench, except NORTH, C. J.
Frank G. Millard, attorney general of the State of Michigan, plaintiff, brings original quo warranto proceedings in this court to determine the right of Ralph B. Guy, defendant, to the occupation of the office of municipal judge in the city of Dearborn, Wayne county. The following facts are conceded. The city of Dearborn has been organized under the home rule act, P.A.1909, No. 279, as amended, C.L.1948 § 117.1 et seq., Stat.Ann. § 5.2071 et seq. since January 9, 1929. A new charter was adopted for the city in 1942. Chapter 10 thereof created the judicial department of the city of Dearborn and provided that there should be two justices of the peace having certain powers and administrative responsibilities in accordance with sections 28 through 33 of the home rule act, C.L.1948, §§ 117.28-117.33, Stat.Ann. §§ 5.2107-5.2113.
In 1945 by charter amendment the judicial department was brought under the municipal court act, P.A.1933, No. 269, C.L.1948, § 730.101 et seq., Stat.Ann. § 27.3831 et seq. In accordance therewith, there were created two municipal judges in place of the previous justices of the peace and thereafter two judges have acted as municipal court judges of the municipal court of Dearborn.
An initiatory petition setting forth the newly proposed amendments to sections 10.2, 10.10 and 10.17 of chapter 10 of the charter, as amended in 1945, was circulated in July, 1951, and after securing the opinion of the attorney general of the State of Michigan that the amendments were proper they were placed on the ballot. The amendment was approved by the electorate. For purposes of clarity we set out such sections in full. As first amended at the 1945 election, they read as follows:
* * *
* * *
The amendments enacted in 1951 amended these sections so as to provide as follows:
'Section 10.2: At the regular municipal election the year 1955 and every six (6) years thereafter, there shall be elected one Municipal Judge and one Associate Municipal Judge whose terms of office shall begin on the fourth day of July following their election, and who shall hold office for six years; provided, however, that the Municipal Judge heretofore elected and now holding office shall be the Municipal Judge and shall hold office for the remainder of the term for which he was elected; and provided moreover that the Municipal Judge heretofore appointed and now holding office shall be the Associate Municipal Judge and shall hold office as such until an Associate Municipal Judge is elected in the spring election held in the city of Dearborn in the year 1953. The Associate Municipal Judge so elected in the said spring election in 1953 shall immediately assume office following his election, and shall hold office until the fourth of July, 1956.
'Section 10.10: Until otherwise charged by a charter amendment, the Municipal Judge shall receive a salary of Six Thousand Five Hundred Dollars ($6,500.00) per annum, and shall be required to devote his entire time during office hours to the duties of his office. The Associate Municipal Judge shall receive One Thousand Dollars ($1,000.00) per annum and such additional compensation as the Council may by Ordinance provide and shall be required to devote not less than fifty (50) full days or one hundred (100) half days per year to the duties of his office. If the work of the Court shall require, upon recommendation of the Municipal Judge, the Council shall provide that the Associate Municipal Judge shall sit any number of additional days, or half days, for which he shall receive such compensation as the Council may by Ordinance or resolution provide. The Associate Municipal Judge shall hear all cases in which the Municipal Judge is disqualified and shall hold court in the absence, disability or on direction of the Municipal Judge.
'The compensation provided for the Municipal Judge and the Associate Municipal Judge shall be in lieu of all fees, costs, and charges to which said judges would otherwise be entitled, except fees for the performance of marriage ceremonies, and for administering oaths in matters not connected with suits or proceedings in said City.
'Section 10.17: Whenever in this chapter the term 'Municipal Judges' is used, it shall include both the Municipal Judge and the Associate Municipal Judge. In all his official acts and in all court proceedings, the Associate Municipal Judge shall be designated as 'Municipal Judge,' the word 'Associate' being herein used to distinguish between the Municipal Judge required to devote full time and the one required to devote partial time to the duties of his office.
'Whenever the words 'Justice of the Peace' and 'Justices of the Peace' may appear in other chapters of this Charter, they shall be construed to mean 'Municipal Judge' or 'Municipal Judges' as the case may be.' Messrs. George A. Belding and George T. Martin were elected for six-year terms as municipal judges of Dearborn, such terms to begin July 4, 1950, and to expire July 4, 1956. On May 15, 1951, with five years left of his term, Judge Belding resigned. On May 18, 1951, defendant Ralph B. Guy was appointed by the city council to fill the vacancy. This appointment was made pursuant to the municipal court act, supra, section 2, being C.L.1948, § 730.102, Stat.Ann. § 27.3832, under which his appointment was to run until July 4, 1953, at which time the next regular spring election's successful candidate took office. The person who won that spring election would then serve until July 4, 1956, at which time the election of a judge and associate judge would be held in the usual manner. The reference in the amendment to the 'Municipal Judge heretofore elected and now holding office' is thus a reference to Judge Martin; and the reference to the 'Municipal Judge heretofore appointed' is a reference to defendant. The effect of the amendment thus would be to constitute defendant the new associate judge, with the duties and salary as set forth in the amendment of 1951.
It is agreed that defendant, upon the advice of the corporation counsel of the city of Dearborn and although the amendment distinctly states it was an 'economy' measure, has refused to surrender his position, title, prerogatives and duties as a municipal judge and has likewise failed to assume the office of associate judge in accordance with the provisions of the amended charter.
Counsel for defendant dispute the motives and the wisdom of the amendment in question. Suffice it for us to say that our determination must go only to its constitutionality; its propriety is a question for the voters of Dearborn.
Defendant contends that he is properly entitled to the office of municipal judge as the questioned charter amendments are either invalid in so far as they purport to take effect before July 1, 1953, or fatally defective because of other alleged defects therein. He contends that the amendment, if construed to take effect immediately, has the effect of reducing the salary and term of a municipal judge contrary to the Michigan Constitution and the home rule cities act; that the amendments represent an illegal delegation of power to the remaining municipal judge; that the associate judges act, P.A.1947, No. 109, C.L.1948, § 730.321 et seq., Stat.Ann. § 27.4071 et seq. under the authority of which the amendment was framed does not permit a reduction in the number of full time municipal judges; that the selection by the voters of a specified individual for an interim position was improper as the only means provided by statute was appointment; and that the method of selection of the associate judge was improper being contrary in several respects to the general election laws.
Defendant contends that the questioned amendment has the effect of changing the salary and term of a public officer contrary to the Constitution of Michigan and to the home rule act, under which Dearborn is organized, if it be held to take effect immediately upon passage of the amendment and before the spring election at which his term would have expired.
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