Moeller v. Bd. of Wayne Cnty. Sup'rs

• Decision Date: 29 April 1937
• Docket Number: No. 128.,128.
• Citation: 272 N.W. 886,279 Mich. 505
• Parties: MOELLER v. BOARD OF WAYNE COUNTY SUP'RS et al.
• Court: Michigan Supreme Court

279 Mich. 505

272 N.W. 886

MOELLER

v.BOARD OF WAYNE COUNTY SUP'RS et al.

No. 128.

Supreme Court of Michigan.

April 29, 1937.

Action by Julius H. Moeller against Board of Wayne County Supervisors and others. From a decree dismissing the bill of complaint, plaintiff appeals.

Reversed and decree entered. Appeal from Circuit Court, Wayne County, in Chancery; Henry G. Nicol, judge.

Argued before the Entire Bench.

George F. Mehling, of Detroit, for appellant.

Duncan C. McCrea, Pros. Atty., and Garfield A. Nichols, and William L. Brunner, Asst. Pros. Attys., all of Detroit, for appellees.

SHARPE, Justice.

This is an action brought by plaintiff as taxpayer of Wayne county to enforce the provisions of Act No. 84, Pub.Acts 1933, which act is one of several amendments to Act No. 156, Pub.Acts 1851. In the bill of complaint it is charged that the 1933 act became effective October 18, 1933; that since said date the supervisors of Wayne county have received and accepted compensation in excess of the amount provided for in said act.

The facts are not in dispute. The defendants claim the above act is unconstitutional because the act is impossible of correct mathematical computation and incapable of being enforced; that the bill was altered or amended during its passage through the Legislature in contravention of Mich.Const.1908, art. 5, § 22, which provides that, ‘No bill shall be altered or amended on its passage through either house so as to change its original purpose’; that in the passage of said act, Mich.Const.1908, art. 5, § 23, providing that, ‘Every bill shall be read three times in each house before the final passage thereof,’ was ignored; and that the inclusion of new matter in the Senate to the house bill, regulating the powers, privileges, and duties of supervisors, offends against Mich.Const.1908, art. 5, § 21, in that said matter was not germane to the title of the act. The trial court dismissed plaintiff's bill of complaint, from which appeal is taken.

The record in this cause shows that until November 30, 1926, the members of the board of supervisors of Wayne county were paid for their services at the rate of $4 per day and from December 1, 1926, until November 30, 1932, such compensation was increased to $7 per day and thereafter at the rate of $5 per day; that prior to October 17, 1933, compensation of members of the board of supervisors was regulated by 1 Comp.Laws 1929, § 1152, which provided for payment of not more than $7 per day to the board of superviros of Wayne county; that Act No. 84, Pub.Acts 1933, purported to regulate the amount of compensation to be paid to members of various boards of supervisors throughout the state and provided as follows:

‘Sec. 30. Every member of such board of supervisors shall be allowed such compenation of not to exceed four dollars per day for his services in attending the meetings of said board, and not to exceed ten cents a mile for each mile necessarily traveled in going to and returning from the place of such meeting, as shall be fixed by the board of supervisors, by resolution, by majority vote of the members elect; said mileage of be paid for the first day of each meeting, only: * * * Provided, That in counties having an assessed valuation in excess of one hundred million dollars, as determined by the state board of equalization, the per diem compensation of members of the board of supervisors, may by resolution of the board, be increased to, but not to exceed four dollars per day, for services in actual attendance at the meetings of said board. * * * No person elected or appointed a member of the board of supervisors of any county shall receive any civil appointment within such county, or from any county authority, during the term for which he is elected or appointed. All such appointments and all votes given for any person so elected or appointed for any such office or appointment shall be void except where authorized by city or village charter. No member of such board of supervisors shall be interested directly or indirectly in any contract or other business transaction with any such county, or any board, office or commission thereof, during the time for which he is elected or appointed, nor for one year thereafter.’

Defendants contend that the above provisions of Act No. 84, Pub.Acts 1933, pertaining to compensation are incapable of correct arithmetical computation. The history of the above act shows that the original act pertaining to boards of supervisors was enacted in 1851 and known as Act No. 156, Pub.Acts 1851; that since the enactment of the initial act, there have been eleven amendments to section 30, four of which treat Wayne county the same as other counties in the state, and three make special provisions for counties having a population of less than 40,000 inhabitants; that in the first five amendments wherein Wayne and Saginaw counties were treated differently from counties in general the rate per day was the same in all counties; and that with the exception of Act No. 40, Pub.Acts 1929, the supervisors of the more populous counties never received greater pay per day than the supervisors of counties in general.

It is apparent that the Legislature in amending the law from time to time had in mind fixing and establishing the maximum amount that members of the board of supervisors could receive for services rendered to the county. Ewing v. Ainger, 96 Mich. 587, 55 N.W. 996;People ex rel. Kennedy v. Gies, 25 Mich. 83.

Act No. 84, Pub.Acts 1933, contains the following proviso:

‘Sec. 30. * * * Provided, That * * * the per diem compensation of members of the board of supervisors, may by resolution of the board, be increased to, but not to exceed four dollars per day, for services in actual attendance at the meetings of said board.’

In United States v. Morrow, 266 U.S. 531, 534, 45 S.Ct. 173, 174, 69 L.Ed. 425, the court said:

‘The general office of a proviso is to except something from the enacting clause, or to qualify and restrain its generality and prevent misinterpretation.’

In Clearwater Tp. v. Kalkaska Sup'rs, 187 Mich. 516, 525, 153 N.W. 824, 827, we said:

‘A proviso to any enacting section is a statute which creates and defines a right or power is to be accepted according to its natural, common, and most obvious meaning, strictly construed and limited to the objects fairly within its terms, as gathered both from the section of which it forms a part and a general purview of the whole context.’

See, also, Greacen v. Buckley & Douglas Lumber Co., 167 Mich. 569, 133 N.W. 538; People v. American Central Insurance Co., 179 Mich. 371, 146 N.W. 235;Luce v. State Highway Commissioner, 181 Mich. 599, 148 N.W. 381.

‘The natural and appropriate office of the proviso being to restrain or qualify some preceding matter, it should be confined to what precedes it unless it clearly appears to have been intended to apply to some other matter. It is to be construed in connection with the section of which it forms a part, and it is substantially an exception. * * * ‘While the position of a proviso in a statute has a great and sometimes a controlling influence upon the extent of its applicability, yet the inference from its position cannot override its plain general intent.’ If irrelevant to the enacting part and meaningless with reference thereto, or repugnant to the body of the act, it has been rejected. It is not an arbitrary rule to be enforced at all events, but is based on the presumption that the meaning of the law-maker is thereby reached.' 2 Lewis' Sutherland, Statutory Construction (2d Ed.) p. 673.

The above proviso in its terms fails of any purpose part from the general provisionscontained in the body of the act. It is meaningless and must be considered a nullity.

It is next contended by defendants that the act was so amended during its passage through the Legislature as to contravene that part of section 22 of article 5 of the Constitution which provides that ‘no bill shall be altered or amended on its passage through either house so as to change its original purpose.’ In determining whether or not a bill has been ‘altered or changed,’ we are not limited by the title or contents of the bill as introduced into either branch of the Legislature, but to the title of the act which is being amended.

In Westgate v. Township of Adrian, 161 Mich. 333, 126 N.W. 422, an original act (Act No. 145, Pub.Acts 1887) was amended by Act No. 71, Pub.Acts 1903. The objection was made that the amendment was unconstitutional, ‘for the reason that the title to the act is not broad enough to cover the matter embraced in the amendment, and is therefore in violation of section 20, art. 4, of the Constitution of 1850.’ The court said:

‘This court has frequently held that, if the amendment might have been incorporated in the act under its original title, this section is not violated. * * * It will be noted that the original title contains the word ‘regulate.’ Under that term, very broad powers may be exercised. It means both government and restriction. * * *

‘Any provisions germane to the subject expressed in the title may properly be included in the act, or added thereto by amendment. It is sufficient if the title fairly expresses the subject, or is sufficiently comprehensive to include the several provisions relating to or connected with that subject. Cooley, Const.Lim.(6th Ed.) 172; People ex rel. Drake v. Mahaney, 13 Mich. 481;People v. Kelly, 99 Mich. 82, 57 N.W. 1090;Soukup v. Van Dyke, 109 Mich. 679, 67 N.W. 911;Fortin v. Electric Co., ...