People ex rel. Johnson v. Coffey

• Citation: 213 N.W. 460,237 Mich. 591
• Decision Date: 01 April 1927
• Docket Number: No. 136.,136.
• Parties: PEOPLE ex rel. JOHNSON v. COFFEY.
• Court: Supreme Court of Michigan

237 Mich. 591

213 N.W. 460

PEOPLE ex rel. JOHNSON

v.COFFEY.

No. 136.

Supreme Court of Michigan.

April 1, 1927.

Original information in the nature of quo warranto by the People of the State of Michigan, on the relation of Thomas E. Johnson, against Wilford L. Coffey. Judgment for defendant.

Argued before the Entire Bench. Walter S. Foster, of Lansing, and George E. Nichols, of Ionia, for relator.

Clare Retan, Atty. Gen., and B. D. Chandler, of Hudson, for respondent.

PER CURIAM.

On April 5, 1919, Thomas E. Johnson was appointed to fill vacancy in the office of superintendent of public instruction. He was elected to that office in the April election of that year, and re-elected at the succeeding April election of 1921, of 1923, and of 1925. The term of office is two years from the 1st day of July following the election. On September 25, 1926, a petition was filed with Hon. Alex J. Groesbeck, Governor, charging Mr. Johnson with misconduct and malfeasance in office and praying his removal. A hearing was had. The Governor made findings sustaining the charges, and on November 6, 1926, by his order removed Mr. Johnson from office. Mr. Wilford L. Coffey, the defendant, was appointed to fill vacancy and took the office. To test the validity of the order for removal, Mr. Johnson, hereinafter called plaintiff, having leave, filed in this court information in the nature of quo warranto.

Section 2, art. 11, state Constitution, provides that the superintendent of public instruction ‘* * * shall have general supervision of public instruction in the state. He shall be a member and secretary of the state board of education. He shall be ex officio a member of all other boards having control of public instruction in any state institution, with the right to speak but not to vote. His duties and compensation shall be prescribed by law.’

Section 5641, Comp. Laws 1915, Ann. Supp. 1922, provides, in part, that the superintendent of public instruction ‘shall devote his entire time to the duties of his office.’ By Act No. 28, Public Acts of 1921, the salary of that officer was increased to and fixed at the sum of $5,000 per annum. We quote title and three sections of Act No. 149, Public Acts of 1919:

‘An act to accept the requirements and benefits of an act of the Sixty-Fourth Congress of the United States, approved February twenty-three, nineteen hundred seventeen, known as the Smith-Hughes Act, or Public Act number three hundred forty-seven, relating to appropriations to be made by the federal government to the several states for the support and control of instruction in agriculture, the trades, industries, and home economics, and for the preparation of teachers of vocational subjects; to designate a state board of control for vocational education; to provide for the proper custody and administration of funds received by the state from such appropriations; and to provide for appropriations by the state and by local school authorities to meet the conditions of said act of Congress.

‘The people of the state of Michigan enact:

‘Section 1. The provisions of an act of Congress enacted by the Sixty-Fourth Congress in the second session thereof known as Public Act number three hundred forty-seven, entitled ‘An act to provide for the promotion of vocational education; to provide for co-operation with the states in the promotion of such education in agriculture and the trades and industries; to provide for co-operation with the states in the preparation of teachers of vocational subjects, and to appropriate money and regulate its expenditure,’ are hereby accepted by the state of Michigan as follows:

‘(a) Appropriations for the salaries of teachers, supervisors and directors of agricultural subjects;

‘(b) Appropriations for the salaries of teachers of trade, home economics, and industrial subjects;

‘(c) Appropriations for the preparation of teachers of agricultural, trade, industrial and home economics subjects.

‘Sec. 2. The benefits of all funds appropriated by the federal government under the provisions of said act are hereby accepted as provided in said act, and provision is herein made under which the state of Michigan will meet such appropriations and provisions.

‘Sec. 3. The superintendent of public instruction, the president of the state board of education, the president of the University of Michigan, and the president of the Michigan Agricultural College are hereby constituted as the state board of control for vocational education as provided in the aforesaid act. The state superintendent of public instruction shall be the executive officer of the state board of control, and he shall, with the approval of said board, provide for the administration of the provisions of this act. Said board is charged with the duty and responsibility of co-operating with the federal board for vocational education in the administration of such act, and is given all power necessary to such co-operation. The state board of control for vocational education is hereby authorized to incur such expenditures for office administration, traveling and other incidental expenses as it may deem necessary to the proper administration of the funds allotted to the state of Michigan under the provisions of said act.’

By section 4 of the act the state treasurer was made custodian of all ‘funds for vocational education as provided in said act and in this act.’ We quote title of Act No. 211, Public Acts of 1921:

‘An act to accept the requirements and benefits of an act of the Sixty-Sixth Congress of the United States, approved June two, nineteen hundred twenty, or public number two hundred thirty-six, entitled ‘An act to provide for the promotion of vocational rehabilitation of persons disabled in industry or otherwise and their return to civil employment,’ and to provide for the proper custody and administration of funds received by the state under the provisions of that act, and to provide for appropriations by the state at least to meet the conditions of said act of Congress.'

The act accepted the provisions of the federal act, and the benefits of all funds appropriated by the federal government thereunder, and provided that its appropriations and provisions be met, and that:

‘The state board of control for vocational education, as established by Act number one hundred forty-nine of the Public Acts of Michigan of nineteen hundred nineteen, is hereby designated as the board of control to carry out the provisions of the said federal act. * * *’

Again, the state treasurer was made custodian of the funds. The fund under the first act is called vocational education fund and under the second act civilian rehabilitation fund. Under these acts the board of control had the right to employ such help as was necessary to carry out the purposes of the legislation. Accordingly, on January 7, 1918, the board engaged Mr. Walter H. French as director of vocational education at a salary of $1,800 per annum. The duties of the director were set forth in a bulletin approved by the federal board of vocational education, among them:

‘(1) He shall co-operate with the executive officer of the board in the preparation of plans for vocational education and in the preparation of suitable bulletins and other literature on the subject for the benefit of supervisors and teachers.’

‘(6) He shall assist the executive officer in the administrative affairs of the board, keeping proper records and making such reports as may be necessary from time to time and perform such other duties as the state board may direct.’

Mr. French resigned. Whereupon the board of control for vocational education, it is claimed, passed the following:

‘On motion of Mr. Friday, the executive officer, Thomas E. Johnson was appointed director for the year beginning July 1, 1922, at a salary of $1,500.’

Plaintiff, it is said, accepted the appointment, and thence, to October 1, 1926, at least received and accepted the said salary of $1,500 per year, and this in addition to the said salary of $5,000 per year paid to him as superintendent of public instruction.

Mr. K. G. Smith was appointed director of vocational rehabilitation under the second act. He resigned. On May 25, 1925, it is claimed, the said board of control adopted the following:

‘Resolved, that Thomas E. Johnson as director be paid $1,200.00 from the rehabilitation funds, beginning January 1, 1925. * * *’

Plaintiff also, it is said, accepted this appointment, and from January 1, 1925, to October 1, 1926 at least, also received and accepted such salary. It is an undisputed fact on the record that plaintiff before acceptance was doubtful of the legality of his taking the salary of $1,500. He ‘raised the question himself’ in conversation with the state supervisor of vocational agricultural education. Plaintiff testified of having consulted Merlin Wiley, then Attorney General, and J. E. Converse, then an Assistant Attorney General, and of having been advised verbally by them that there was no legal objection to his having the salary as director. Plaintiff's testimony in this regard is corroborated by the testimony of other witnesses. But Mr. Wiley and Mr. Converse testified that they did not so advise plaintiff. Plintiff does not claim to have had any other legal advice on the subject. Our Constitution provides, section 7, art. 9:

‘The Governor shall have power and it shall be his duty, except at such time as the Legislature may be in session, to examine into the condition and administration of any public office and the acts of any public officer, elective or appointive; to remove from office for gross neglect of duty or for corrupt conduct in office, or any other misfeasance or malfeasance therein, any elective or appointive state officer, except legislative or judicial, and report the cause of such removal to the Legislature at its next session.’

The history, purpose, and meaning of this provision are discussed in Dullam v. Willson, 53 Mich. 392, 19 N....