People ex rel. LeRoy v. Hurlbut

• Citation: 24 Mich. 44
• Court: Supreme Court of Michigan
• Decision Date: 29 November 1871
• Parties: The People on the relation of Henry H. Le Roy and others v. Chauncey S. Hurlbut: Same v. William Barclay and others: Same v. John Owen and others

24 Mich. 44

The People on the relation of Henry H. Le Roy and others v. Chauncey S. Hurlbut:

Same v. William Barclay and others:

Same v. John Owen and others

Supreme Court of Michigan

November 29, 1871

Heard October 17, 1871; October 18, 1871; October 19, 1871. [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Informations in the nature of quo warranto.

These proceedings are brought to test the right of the members of the boards of water commissioners, and of sewer commissioners, of the city of Detroit, to continue to hold their respective offices after the taking effect of the act establishing a board of public works; and the questions raised relate to the validity of said act.

J. P. Whittemore, Lyman Cochrane, E. W. Meddaugh and Theodore Romeyn, for the respondent.

The act is invalid because it provided for the appointment of the first board of officers by the legislature.

1. The members of this board are officers within the meaning of Art XV, § 14 of the constitution: Underwood v. McDuffee, 15 Mich. 366; U. S. v. Hartwell, 6 Wall. 393.

2. This section confines the power of the legislature to directing whether the officers, other than judicial, shall be elected or appointed, and at what time, and in what manner, and it cannot be fairly construed as giving to the legislature the power of electing or appointing the officers by their own votes. The thing which we seek in the interpretation of a written instrument is the thought which it expresses, which we elucidate and determine in various ways: See Cooley on Const., 57; People v. Blodgett, 13 Mich. 138, 142.

To sustain our views we rely upon:

(a) The natural signification of the words used.

It is confidently submitted that the words used in this section, taken by themselves, imply no more than that the legislature may direct whether the officers shall be elected or appointed, and that they may direct the time and manner of election or appointment. This exhausts the meaning of the term "direct," unless authority to give direction for appointment includes power to make the appointment. To direct, is properly a legislative act: 13 Mich. 136. When this direction is given the power is fully exercised, and is exhausted. To go on and make the appointment or election is a distinct and additional matter.

And this is an act of an executive character (which, as we shall hereafter show, the legislature may not exercise, except where expressly authorized): People v. Blodgett, 13 Mich. 136; Att'y Gen. v. Kennon, 7 Ohio St., 561, 566; Taylor v. Commonwealth, 3 J. J. Marshall, 404.

Farther: Judicial officers of cities must be elected under the constitution. This must be understood to be by the electors residing in the municipality or district: Const., Art. VIII; People v. Blodgett, 13 Mich. 136; Cooley on Const., 600.

Now, demonstrably, the grant of power to the legislature to direct whether the other officers shall be elected or appointed, cannot be interpreted to mean that the legislature may constitute themselves electors, if they direct that the choice shall be by election. On what principle of fair construction can this grant give power to make themselves the appointers, if they direct the latter mode of selection?

(b) An examination of the whole instrument.

The whole is to be examined with a view to arriving at the true intention of each part: Cooley on Const., 57, 58. See Const., Art. Ill, for division of powers of government into legislative, executive and judicial, and inhibiting one department from exercising powers properly belonging to another, except in cases expressly provided for in the constitution. See Const., Art IV, §§ 9, 11, 37; Art. VI, providing for election of judges. See §§ 7, 10, 14, 16; Art. VIII, §§ 3, 5; Art. X., §§ 3, 7, 8; Art. XII, §§ 5, 7, 8; Art. XIII, Education; Sess. L. 1863, p. 453.

We find in these provisions a positive inhibition on the legislature against the exercise of executive powers; and especially in relation to elections, or appointment of officers, other than their own, even to fill vacancies. Looking at these and other specific provisions, and at the general scope and spirit of the constitution, can we believe that it was intended to leave with the legislature the power of appointing by their own votes any or all municipal officers, other than judicial? See Cooley on Const., 189, 190.

(c) The history of this constitutional provision, and the proceedings in the convention, show clearly that it was not the intention of the framers of the constitution to leave with the legislature the power of appointing any municipal officer by their own votes. As to the force of this consideration, see Cooley on Const., p. 66; 13 Mich. 165.

In the proceedings of the convention of 1850, we find the following: See Debates of the Convention, pp. 7-35, for appointment of committee on phraseology and arrangement, and reference of articles to such committee. See Rule 39. Next, as to power of this committee, see Ibid, pp. 797, 798. For reference of subjects to standing committees, see Ibid, p. 18. There were two committees who separately had charge of the subjects "of the organization of the government of cities and villages," and "of banking and other corporations, not municipal." Both these subjects were blended in one article (fifteen) by the committee of arrangement, after having been discussed and adopted separately by the convention: Report of the Article, p. 326. The article was entitled "Of cities and villages," and was reported as follows:

"Section 2. All judicial officers of cities and villages shall be elected at such time and in such manner as the legislature may direct. All other officers of such cities and villages shall be elected by the electors thereof, or appointed by such authorities thereof, as the legislature shall designate for that purpose."

On page 594, we find the debate on the article. The convention refused to amend this section. On page 596, we find that the article was then ordered to be engrossed for a third reading, without amendment.

Thus, then, we see in what sense the convention adopted this article. In the Journal, p. 312, we find the reference of it to the committee on arrangement and phraseology. The report of this last committee is on page 904, of the debates. See, also, pp. 881-887-889. It will be seen that the article as last reported, was simply:

"Section 14. Officers of cities and villages shall be elected at such times and in such manner as the legislature may direct."

Here the "thought meant to be expressed" cannot be mistaken. The committee changed the original article as it had been adopted by the convention, by providing that all officers should be elected, and none appointed. In this view of the case, they dropped the words "by the electors thereof," because, as we have seen, no other electors could vote. In order to preserve the principle of appointment in such cases as the legislature might think required it, amendments were offered by Governor McClelland, as follows:

"On motion of Mr. McClelland, section fourteen was amended by inserting the word 'judicial' at the commencement of the section, and the words 'and all other officers shall be elected on appointed,' after 'elected,' in the first line of the section."

This was the extent of the amendment according to the force and import of the words, and of the report of the committee, in view of their powers as a committee on phraseology and arrangement.

Under these circumstances, and in view of the scope and spirit of the constitution, is it possible to suppose that the convention, by adopting these amendments, intended to so change the article for elections as originally reported and adopted, as to give power to the legislature to appoint municipal officers in their discretion--for life or other term (for such is the extent of the power)--and to deprive the people of any locality on which a charter might be forced, of the power to choose their own officers?

Further: Why provide that judicial officers should be elected by the local votes, and leave executive officers to be arbitrarily designated by the legislature? All reasons of policy are in favor of a reversed course, if there is to be any distinction.

Is it not plain that the convention meant no more than to give the legislature the right to direct the mode and time of choosing officers other than judicial, so as to save the necessity of having an election for every petty ministerial officer, but at the same time to leave the power of selection with the electors or authorities of the municipality?

(d) We contend, further, that the language of the constitution should not be construed so as to leave with the legislature the power to appoint municipal officers, in view of the consequences of such construction.

This is a legitimate rule of construction: Story on the Const., § 400. This rule will always be observed, unless the words used are entirely explicit.

What is involved in the claim of legislative right to make these appointments? Clearly they may select particular municipalities. They may appoint all officers not judicial. They may appoint for life, and also provide for succession in office. They may govern by commissions, and with what probable results is now intelligible by the experience of our chief city.

We insist that the natural meaning of the words used, the general provisions of the constitution in other places, and viewed as a whole--the history of the enactment in question--the consequences of a construction which shall confirm the claim of the legislature, and substitute its power for that of the electors or authorities of the local municipal district--all proclaim the...