Speed v. Common Council of City of Detroit
| Decision Date | 27 October 1893 |
| Citation | 97 Mich. 198,56 N.W. 570 |
| Court | Michigan Supreme Court |
| Parties | SPEED v. COMMON COUNCIL OF CITY OF DETROIT. |
Application for mandamus on the relation of John J. Speed to the common council of the city of Detroit. Writ granted.
John D Conely and Hoyt Post, for relator. John B. Corliss, City Counselor, (Jasper C. Gates, Charles Flowers, and Edwin F Conely, of counsel,) for respondent.
On September 30th last the relator filed his petition in this court for mandamus to compel the respondent to approve a bond which relator had filed with respondent as city counselor. An order to show cause was issued, and respondent's answer is now filed. It appears from the petition that the relator is a resident and elector of the city of Detroit, and that on the 16th of June, 1891, he was appointed city counselor by the common council of said city on the nomination of the mayor. That he took the oath of office, and filed his official bond, which was approved by the common council, and thereupon entered upon the duties of said office. That on the 1st day of June, 1893, the legislature of this state passed an act entitled "An act supplemental to the charter of the city of Detroit, and to provide for a law department in said city," the second section of which provides That this act was approved by the governor on the day of its passage, and took immediate effect. That at this time the relator was in the office of city counselor for the term ending July 1, 1893. That on July 15, 1893, the mayor of the city executed and delivered to the relator an appointment to the office of city counselor, as follows: That relator filed this appointment in the office of the city clerk on the same day it was made, together with his oath of office. That the act under which the appointment was made provides in section 3 that the city counselor shall, before entering upon the duties of his office, execute a bond to the city of Detroit in the sum of $5,000, with such sureties as the common council shall approve, conditioned for the faithful performance of the duties of his office. That on July 18th the relator executed the bond required by the act, with two sureties in the penal sum of $5,000. That upon the bond were indorsed the affidavits of the sureties, in which they severally deposed that they were worth in unincumbered property not exempt from execution under the laws of the state, each the sum of $5,000 after the payment of his just debts, claims, and liabilities. That the bond was indorsed by the city attorney, in which he certified that it was correct in form and execution. That this bond was filed on the day of its execution in the office of the city clerk, and by him transmitted to the common council, who referred the same to the committee on ways and means, and that this committee, on July 25, 1893, reported to the common council in favor of the approval of the bond, which report was laid upon the table. That on July 18, 1893, the mayor communicated to the council that in pursuance of the act of June 1, 1893, he had appointed the relator as city counselor for the term commencing July 1, 1893. That at a meeting of the council held July 25, it received from the mayor the following communication: To the Honorable, the Common Council-Gentlemen: In compliance with the act supplemental to the charter of the city of Detroit, providing for a law department, passed by the legislature in 1893, and approved June 1, 1893, I notified your honorable body last Tuesday of the appointment of John J. Speed as city counselor of the city of Detroit under said act. Since said appointment said Speed has by public utterance placed the matters of the greatest importance to the city, now in litigation, in jeopardy, by, it seems to me, most unwise and uncalled-for interviews in the public press. His attitude as thus fairly conveyed seems hostile to the best interests of the community. While admitting the ultimate success of the present litigation, he questions the policy of the city, the motives of the officials, and advocates the interests of the defendants. In order to protect the people and maintain their rights thus far obtained in the courts, I have this day revoked the appointment of said John J. Speed as city counselor, and hereby give you notice thereof, and request your honorable body not to accept any bonds from said Speed, as required by the act aforesaid for such office, as the same is now vacant. Very respectfully, H. S. Pingree, Mayor." That the report of the committee for the approval of the relator's bond was thereupon laid upon the table; and that on July 29th, at a special session of the council, the mayor, by a communication then made, informed the council that he had appointed John B. Corliss city counselor, and requested confirmation thereof, and on motion this appointment was confirmed by the council.
The answer substantially admits the facts stated in the petition, except that it is denied that the committee on ways and means made any report in relation to the bond of the relator, or that any such report was laid on the table, or indefinitely postponed, or that any other action was taken thereon. It is also denied that any affidavit or certificate indorsed on the bond was submitted to or examined by said committee. The respondent makes return that John B. Corliss has taken his oath of office and filed his bond, as required in the act, and sets forth that on August 4, John B. Corliss demanded from the relator the documents, papers, and cases in his hands belonging to the said city, which the relator refused to deliver, claiming that he was entitled to retain the same. That upon this action being reported to the respondent, respondent passed the following resolution: "Whereas, the common council, on the 29th of July, 1893, on the nomination of the mayor, confirmed the appointment of John B. Corliss to the office of city counselor; and whereas, said John J. Speed has refused to surrender the papers, documents, and legal cases in his possession to the legal officers of the city, claiming by some legal technicality a right to continue to hold said office; Therefore, resolved, that while not conceding the right of John J. Speed to said office, but in order to prevent any further claim thereto, that this common council, by the authority of the powers granted by the charter of the city of Detroit, do hereby, for reasons deemed sufficient and ample, remove said John J. Speed from the office of city counselor that he claims to hold, and hereby discharge him from all rights and duties thereof." It is further averred by the answer that John B. Corliss entered into said office and has done and performed all the duties and functions thereof, and has held, used, and exercised, and still does hold, use, and exercise, the duties of said office of city counselor of said city of Detroit from thence hitherto; and also from thence hitherto the said Corliss has been by the mayor, comptroller, clerk, and common council thereof, by the departments and boards thereof, and by the public generally, treated and recognized as and to be such city counselor. That during all the time last aforesaid all the acts of John B. Corliss as such city counselor have been with the acquiesence of all the last of said officers, aldermen, boards, and with the public generally. The answer further avers that the said Speed has not been in the office of said city counselor, and has not done or performed any of the duties or functions thereof, and has not been recognized, treated, or reputed to be said counselor by any of said officers or by the public; and that the said Speed on August 18, 1893, caused to be filed in this court, by the attorney general of the state, an information in the nature of quo warranto against said Corliss, in which it was alleged, among other things, that the said Corliss, for the space of 15 days then last past had held, used, and exercised, and did then still hold, use, and exercise, the office of said city counselor, and that the relator did sue and prosecute out of this court a writ of summons directed to said Corliss, requiring him on September 8, 1893, to answer said information, which said summons was duly served on said Corliss, and to which said Corliss appeared, and that the said information is still pending in this court.
The contention upon the part of the respondent is (1) that under section 8, c. 7, of the charter of the city of Detroit, all appointments of the mayor are conditional, and not absolute and that this section of the charter was not repealed by the act of 1893. (2) That even if this appointment had been absolute, yet the relator, on July 25th, had not qualified so as to entitle himself to the office; therefore his appointment was inchoate, and was well revoked by the mayor. (3) That, assuming that the relator was regularly appointed and qualified, yet on August 8th he was removed from office by the common council, and that was an end of his rights. ...
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