Rushton v. Knapp

• Decision Date: 02 January 1945
• Docket Number: No. 59.,59.
• Citation: 310 Mich. 385,17 N.W.2d 223
• Parties: RUSHTON, Attorney General, ex rel. WENDROW v. KNAPP.
• Court: Michigan Supreme Court

310 Mich. 385

17 N.W.2d 223

RUSHTON, Attorney General, ex rel. WENDROW

v.KNAPP.

No. 59.

Supreme Court of Michigan.

Jan. 2, 1945.

Quo warranto proceedings by Herbert J. Rushton, Attorney General of the State of Michigan, on the relation of Barnaby A. Wendrow, against James A. Knapp to test defendant's legal qualifications to hold the office of a County School Commissioner.

Writ dismissed.

Before the Entire Bench.

Kelley, Eger & Kelley, of Lansing, for plaintiff.

Gerald J. Cotter, of Mt. Pleasant, for defendant.

WIEST, Justice.

At the request of Barnaby A. Wendrow, herein termed plaintiff, a resident elector and taxpayer of Isabella county, and by leave of this court the attorney general, on condition that he take no further part therein, filed an information in the nature of quo warranto to test the legal qualifications of James A. Knapp to hold the office of school commissioner for the county of Isabella. Mr. Knapp is in the office under nomination by a party convention and vote of the electors of the county in 1943. It is claimed by plaintiff that Mr. Knapp did not have sufficient experience in public school teaching to qualify him to hold the office under the provisions of Act No. 147, 1891, as amended by Act No. 96, Pub.Acts 1941 (Stat.Ann. 1944 Supp. § 15.803). Defendant, by answer, asserted he had the essential statutory qualifications and upon replication thereto by plaintiff we referred the taking of testimony and return thereof to Hon. Ray Hart, circuit judge of Isabella county. At the taking of the testimony defendant claimed the right to have a jury determine the facts. Our order of reference was only to take the testimony and return the same to this court and that has been done.

Comp.Laws 1929, § 15281 (Stat.Ann. § 27.2325), relative to issues in quo warranto proceedings, provides:

‘All issues of fact or of law, that shall be joined between the parties, shall be tried and determined in the supreme court, or in the circuit court of such county as the supreme court may by special rule direct * * *.’

The mentioned statute relative to qualifications of school commissioners provides:

‘Persons eligible to hold the office of commissioner of schools must possess the following qualifications:

‘(a) 45 months' experience as a teacher in the public schools of this state.

‘(b) Must hold a teacher's Michigan life or a provisional or permanent certificate and must be a graduate of some college or university approved as a teacher training institution by the state board of education, with either a bachelor of arts or a bachelor of science degree, and in all counties having a population of more than 30,000 according to the last federal census, must have a master's degree: Provided, That persons holding the office of commissioner of schools at the time this amendment goes into effect shall be eligible to succeed themselves without possessing the aforesaid qualifications.

‘(c) Must file with the county clerk not less than three (3) days prior to the date of the county convention of his or her political party an affidavit or other proofs establishing the facts which show the eligibility of such person for said office. No person shall be entitled to be a candidate for said office unless and until said affidavit or the proofs have been filed.’

Defendant asserts that he filed the mentioned affidavit, supported by other affidavits, showing his qualifications and plaintiff asserts that the showing was untrue.

After defendant was nominated at a party convention plaintiff herein, who is an attorney at law, requested the prosecuting attorney for Isabella county to file a quo warranto proceeding in the circuit court to test defendant's qualifications for the office. The request was refused. Plaintiff therein, as attorney for the parties plaintiff therein, filed a bill in the Isabella circuit court to restrain the election commission from placing defendant's name on the election ballot because of his disqualifications to be a candidate. During the progress of that case the former commissioner of schools was substituted as sole plaintiff and plaintiff herein withdrew as attorney. In the circuit court the bill was dismissed and there is pending in this court an application for leave to appeal.

Defendant's counsel contend that plaintiff, as relator here, considered with his mentioned previous activities, violated the canon of professional ethics with which attorneys should conform and asks this court, on that ground, to dismiss the proceeding. Decision in this case turns upon the questions of fact and law of whether defendant is disqualified to hold the office of school commissioner and the canon of professional ethics is not in any sense involved.

Counsel for defendant set up his qualifications for the office as follows:

‘(a) Teaching experience in the public schools of the state of Michigan for 53 months.

‘(b) He has a teacher's...