Rupert v. Wade

• Decision Date: 05 September 1939
• Docket Number: Motion No. 470.
• Citation: Rupert v. Wade, 290 Mich. 180, 287 N.W. 425 (Mich. 1939)
• Parties: RUPERT v. WADE, County Clerk
• Court: Michigan Supreme Court

290 Mich. 180

287 N.W. 425

RUPERT

v.WADE, County Clerk

Motion No. 470.

Supreme Court of Michigan.

Sept. 5, 1939.

Proceedings by Oradell Rupert against Charles H. Wade, Clerk of Van Buren County, Michigan, for a writ of mandamus to compel the respondent to issue a warrant to pay relator for services rendered as stenographer in office of prosecuting attorney.From a judgment denying the writ, the relator appeals.

Affirmed.

Appeal from Circuit Court, Van Buren County; George B. Hartrick, judge.

Argued before the Entire Bench.

Carl Benton, of Paw Paw (Lewis R. Williams, of Paw Paw, of Counsel), for appellant.

Harry C. Howard, of Kalamazoo, for appellee.

SHARPE, Justice.

Plaintiff filed a petition in the circuit court of Van Buren county for a writ of mandamus to compel the county clerk to issue a warrant to pay plaintiff the sum of $100 out of county funds in payment of services rendered the county of Van Buren for the month of January, 1939.

It appears that on October 20, 1938, the board of supervisors of Van Buren county authorized and made provision for the appointment of a stenographer for the office of the prosecuting attorney; and appropriated the sum of $1,200 as salary therefor for the year 1939.It also appears that on the 8th day of November, 1938, Sheldon Rupert was elected prosecuting attorney of said county and entered upon the duties of his office January 1, 1939; and on January 3, 1939, appointed plaintiff as his stenographer.Plaintiff performed the duties assigned to her for the month of January, 1939, and since that time has been so employed.On the 1st day of February, 1939, plaintiff made a demand upon the county clerk to issue his warrant to pay plaintiff the sum of $100 for services rendered during the month of January, 1939.The county clerk refused to issue the warrant.

Upon the filing of plaintiff's petition an order to show cause was entered and in answer thereto the county clerk filed a motion to vacate the order to show cause for the reason that plaintiff has an adequate remedy at law; and that a mandamus proceeding will not lie against defendant in the matters set forth in plaintiff's petition.

The trial court denied the issuance of the writ and dismissed plaintiff's petition for the reason stated that in view of the appointment of Mrs. Lamme to the position by the board of supervisors, and the prosecuting attorney having appointed plaintiff to the position, and the dispute resulting over the salary, he county clerk was justified in refusing to issue the check and warrant until the controversy was legally adjudicated.Plaintiff appeals.

In this cause the defendant filed no answer to plaintiff's petition, but in defendant's motion to vacate the order to show cause reference is made to the following:

‘Copy of Recorded Minutes of Regular Meeting of the Board of Supervisors of Van Buren County, Michigan, Duly Adjourned from October 1938, to December, 1938.

‘Motion by Supervisor Schnake, supported by Supervisor Hayne that we appoint a County Stenographer and that the County Stenographer do all the work in the Prosecuting Attorney's Office.Motion carried.

‘Motion by Supervisor Crandall, supported by Supervisor Carris that the rules be suspended and that Mrs. Genevieve Lamme be elected as County Stenographer.Motion carried.’

The act under which a stenographer in the office of prosecuting attorney may be appointed reads as follows: ‘In each county of the state of Michigan, the board of supervisors of such counties, at their regular annual meeting, may, by resolution authorize the appointment by the prosecuting attorney of said county of as many assistant prosecuting attorneys and said board of supervisors shall deem necessary, and shall in addition authorize the appointment by said prosecuting attorney, of such...