People ex rel. Speed v. Hartwell

• Decision Date: 15 July 1864
• Citation: 12 Mich. 508
• Court: Michigan Supreme Court
• Parties: The People on the relation of John J. Speed v. Thomas H. Hartwell

12 Mich. 508

The People on the relation of John J. Speed v. Thomas H. Hartwell

Supreme Court of Michigan

July 15, 1864

Heard April 16, 1864; April 20, 1864 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Information in the nature of a quo warranto.

The information set forth that, in November, 1861, Thomas McEntee was duly elected city attorney of Detroit, and qualified as such, and entered upon the performance of his duties; that he removed from Detroit and thereby vacated the office on the first day of September, 1863, and by a resolution of the common council, duly approved and published in the official paper of the city, the office was declared vacant; that a general election was held in said city on the third day of November, 1863, at which a large number of votes, to wit: 2,800 in number, were cast for the said John J. Speed for the office of "city attorney, to fill vacancy," that being the highest number cast for said office for any person; that a less number of ballots, to wit, fifty or less in number, were cast for the said Thomas H. Hartwell for said office of "city attorney, to fill vacancy," and that a large number of ballots, to wit, 2,800 were cast for said Speed for the office of "city attorney, for the long term," and also a large number of ballots, to wit, 3,000, for said Hartwell, for the office of "city attorney" (but did not designate whether for the vacancy or long term), and a small number of ballots, to wit, fifty, were cast for said Hartwell for the office of "city attorney, for the long term;" that on the canvass of said votes the city canvassers declared, as the result of said election, that said Speed was elected city attorney to fill vacancy, and said Hartwell for the long term; that the city clerk notified said Speed of his said election, and of the amount of his official bond, and that he gave bond accordingly, took the oath of office, and entered upon the discharge of his duties. It then charges that said Hartwell intruded into and usurped said office, and unlawfully holds and exercises the same, to the damage of the said Speed of $ 100.

The subsequent pleadings were as follows:

First plea. And now, on the fifth day of January, 1864, comes the said Thomas H. Hartwell, in his own proper person, and having heard the said information read, for a plea in that behalf with reference to so much, and such part thereof, as charges this defendant with having entered into, used, exercised, claimed and usurped the said office of city attorney, without any legal election, appointment, warrant or authority therefor, this defendant says that heretofore, to wit, on the first day of September, 1863, the said office of city attorney became and was vacant for the balance of the unexpired term thereof, to wit, down to the 12th day of January, 1864, when the next regular term would commence under and by virtue of the city charter of Detroit; that thereupon, on the first day of September, 1863, the common council of Detroit, being then in session, by a resolution, duly passed, entered and approved, according to law, appointed this defendant to hold said office during the remainder of said unexpired term thereof; and thereupon this defendant qualified, according to law, by taking the oath prescribed by law to be taken by the incumbent of said office, according to law, and fully entered into said office, and upon the discharge of its duties; that at the next general election in said city, held on the third day of November, 1863, there was no election to fill said office for said unexpired term, nor was there any notice given of said vacancy, or any election to fill it, nor has there been any election, at any other time, to fill the same; that this defendant has been in no way removed from said office, but, on the contrary, on the 17th day of November, 1863, the said common council, being then in session, adopted or passed a resolution or motion, in due form of law, upon the report and recommendation of the judiciary committee of said council, that this defendant was the legal incumbent of said office, duly authorized to hold the same, and discharge its duties, until the 12th day of January, 1864, when his successor in said office, for the next regular two-years term thereof, will duly qualify, according to section thirteen of chapter two, of the charter of said city; that this defendant claims to hold said office, and does hold it, with all its privileges, by virtue of such appointment, and the authority thereof, as it was lawful and proper for him to do; and this defendant will continue to claim said office until his successor shall qualify, as aforesaid; without this, that he in any way usurped said office, or entered into, used or exercised the same without warrant or authority of law; and this the said defendant is ready to verify.

First replication to first plea. And now, the said people of the state of Michigan, by Albert Williams, attorney-general of said state, who for the said people in this behalf appears, as to so much of the said plea of the said Thomas H. Hartwell, by him first above pleaded, as alleges that there was no election held to fill the vacancy in said office of attorney of said city of Detroit, say, that the said people ought not to be barred from prosecuting or maintaining said information against him, because they say that there was an election to fill said office of attorney of said city of Detroit, for said unexpired term, to wit, at the annual election of said city of Detroit, on the third day of November, 1863; and this the said people pray may be inquired of by the country.

On this replication the defendant joined issue.

Second replication to first plea. And the said people of the state of Michigan, for further replication in this behalf, as to so much of the said plea of the said Thomas H. Hartwell, by him first above pleaded, as alleges that there was no notice given of an election to fill the said office of attorney for said unexpired term, say that the said people ought not to be barred from prosecuting or maintaining said information against him, because they say, although true it is no notice was given of any election to fill said office of attorney for the said unexpired term, yet the said people say that the clerk of said city of Detroit, to wit, on the 8th day of October, 1863, did cause to be published in two daily newspapers published in said city, to wit, The Detroit Free Press, and the Detroit Advertiser and Tribune, a notice, of which the following is a copy:

[Here follows a notice of the general election under the charter, specifying the several offices to be filled for the full term.]

And this the said people are ready to verify. Wherefore they pray judgment, etc.

Demurrer. The defendant demurred to said second replication, and alleged as causes of demurrer: First. That said second replication had not a proper conclusion. Second, The notice therein set forth was not in fact or law a notice to fill said office of city attorney for said unexpired term. Third, Said replication, on its face, admits that there was no notice of an election to fill said office for said unexpired term. Fourth, Said second replication is, in other respects, uncertain, informal and insufficient.

Second plea. And for a further plea in this behalf, with reference to so much and such part of said information as sets forth a pretended right in the relator, John J. Speed, to hold said office, this defendant says that no public notice whatever was given of any vacancy in said office of city attorney; that the electors of said city had no notice of the same; that no notice was given of an election to fill said vacancy, to be held on said November 3d, 1863, or at any other time; that the electors of said city knew of no such election, and did not vote to fill any such vacancy, on said day, or any other day, and no votes or ballots were cast for said office to fill any such vacancy, on said day, or on any other day, and said Speed has received no legal certificate of any such election from any board of canvassers, or any other competent authority; and any steps he may have taken to qualify for said office, or to enter upon its duties, are null and void; without this, that there was a notice of said vacancy and election, or that there was an election to fill it, and that votes were cast to fill it, or that said Speed was elected to fill it, or is in any way in law entitled to said office; and of this the said defendant puts himself upon the country.

Demurrer. The people demurred to this second plea, and alleged the following causes of demurrer: First, That the said Thomas H. Hartwell hath, in and by his said second plea, offered to put in issue matter not properly issuable; and, Secondly, That the said second plea ought to have concluded with a verification, and not to the country; and that the said plea is in various other respects informal and insufficient.

Third plea. And for a further plea in this behalf, with reference to so much and such part of said information as sets forth an election held, and votes cast to fill the office of city attorney, for the term of two years, commencing, according to the city charter, on the second Tuesday of January, that is to say, the 12th day of January, 1864, this defendant says that there was a general election held on the third day of November, 1863, in said city, to fill the office of city attorney of said city, together with the other offices generally thereof, for the term of two years, commencing on the second Tuesday of January, 1864; that due...