Thorne v. Squier

• Decision Date: 29 June 1933
• Docket Number: No. 103.,103.
• Citation: 264 Mich. 98,249 N.W. 497
• Parties: THORNE v. SQUIER.
• Court: Michigan Supreme Court

264 Mich. 98

249 N.W. 497

THORNE

v.SQUIER.

No. 103.

Supreme Court of Michigan.

June 29, 1933.

Appeal from Circuit Court, Calhoun County; Blaine W. Hatch, Judge.

Proceeding in the nature of quo warranto by Thomas H. Thorne against Daniel E. Squier. From an order of ouster, defendant appeals.

Affirmed.

Argued before the Entire Bench, except NORTH, J.

WIEST, J., and McDONALD, C. J., dissenting.B. J. Onen and James Cleary, both of Battle Creek, for appellant.

Walter P. North, Willard A. Knight, Howard W. Cavanagh, and Maxwell B. Allen, all of Battle Creek, for appellee.

BUTZEL, Justice.

In 1913, the city of Battle Creek adopted a commission form of government, headed by a mayor and four commissioners. It had theretofore been governed by a mayor and common council. On April 5, 1932, immediately following the spring election and prior to the canvassing of the votes, the retiring commission held a regular meeting, at which Daniel E. Squier was elected city clerk for a two-year term by a unanimous vote, notwithstanding Commissioner Hoyt's protest against the exercise of the power of appointment by a body that was about to go out of office. Commissioner Hoyt also explained that his vote for Mr. Squier was made solely for the purpose of moving for a reconsideration. Immediately following adjournment of the meeting, Mr. Squier accepted the appointment, qualified, and took the oath of office. He has continued to perform the duties of the office ever since.

On April 7, 1932, within forty-eight hours after the meeting and in accordance with the alleged rules of the commission, Commissioner Hoyt filed and served proper notice in writing that he would move for a reconsideration of Squier's appointment at the next regular meeting of the city commission. On the same day, the city commission held a meeting for the purpose of canvassing the votes at the spring election. Some other business was also transacted, including the approval of the minutes of the previous meeting. Commissioner Hoyt did not attend the meeting of April 7, 1932, but was present at the regular meeting on the following Monday. The personnel of the newly elected commission consisted of the former mayor, Commissioner Hoyt, another one of the former commissioners, and two new members. Hoyt's written motion to reconsider the appointment of Squier was carried, and Thomas H. Thorne, who had previously and continuously served for many years as city clerk of Battle Creek, was elected for the term of two years. Thorne, claiming that he is the duly elected city clerk, brought the present proceedings and seeks by quo warranto to test the title to the office of the city clerk and to have himself declared entitled to the office. The trial judge found in favor of Thorne, the plaintiff, and Squier, the defendant, appeals. Further facts will be discussed in connection with the points raised on appeal.The case is companion to that of North v. Wagner (Mich.) 249 N. W. 494, decided this day, in which a similar action was brought to test the title to the office of city attorney, but no issue is made therein as to the validity of the rule of the commission permitting notice of reconsideration to be given within forty-eight hours. In the instant case, this rule is attacked on the ground that there was no competent evidence to show that the rule had been properly adopted. It was shown that since at least 1900, the common council and its successor, the commission, had governed itself by certain rules, including the one relating to reconsideration, which were periodically published in a city manual. The rule with regard to reconsideration appeared in the old city council manuals as rule 44 and is rule 28 in the new manual, providing as follows: ‘A motion to reconsider a vote on any question shall not be in order after one regular meeting of the commission has intervened between the decision and motion for reconsideration, but it shall be in order for any commissioner of the prevailing side to move for a reconsideration thereof during that period, provided that he shall file with the city clerk within forty-eight (48) hours of the time at which the motion to be reconsidered was passed, a notice of his intention to so move to reconsider it, and the same number of votes shall be required to reconsider any action of the commission as was required to pass or adopt the same; and provided, further, that no notice for the reconsideration shall be in order or be allowed on any item in any pay roll for labor or service.’

In the minutes of January 19, 1920, the city clerk reported that the new city manual was ready for approval by the commission. Prior to that time, on October 20, 1919, he had been authorized to compile and have printed 1,500 manuals. At the meeting of January 19, 1920, it was moved and carried that the standing rules in the manual be held over for one week for consideration. The clerk reported that the remainder of the nanual was at his office and could be looked over at any time. On March 8, 1920, it was moved and carried that the manual be adopted as submitted by the clerk, with corrections. The records do not show what corrections, if any, were made. Mr. Thorne, who was clerk at the time, testified that the manuals were not printed until July or August of 1920, and that the corrections were undoubtedly made prior to printing. While there is no testimony as to when or how this specific rule was adopted, it was shown to be one of the rules continuously used since 1900 and included in the printed manuals of the common council and commission. Also persuasive is the fact that the manual was adopted by the commission in 1920 after the standing rules therein contained had been held over for consideration for some time. A printed copy of the manual containing these rules had been kept continuously in the office of the city clerk as a part of the city records.

The old charter of the city, in section 3 of chapter 10, empowered the common council to prescribe rules for the government of its proceedings. Section 5 of chapter 8 of the new charter provides that the commission shall fix the day and hour for regular meetings of the commission and rules and regulations for its government. There is no provision prescribing the manner in which rules should be adopted, but merely a grant of authority to prescribe rules for the government of its proceedings. The minutes of the council show that rule 28 had been invoked on several occasions.

Appellant contends that there is no showing that the rules were properly adopted in accordance with the provisions of the Home Rule Charter of Battle Creek stipulating that ‘by-laws and ordinances must be published for two successive weeks in at least one daily newspaper printed and published in the city, unless otherwise directed,’ etc. Rules of procedure of a legislative body do not fall within in the classification of ordinances and by-laws. Section 14180 of the Compiled Laws of 1929 provides as follows: ‘All laws, by-laws, regulations, resolutions and ordinances of the common council, or of the board of trustees of any incorporated city or village in this state may be read in evidence in all courts of justice, * * * either from a record thereof, kept by the clerk or recorder of such city or village, or from a printed copy thereof, purporting to have been published by authority of the common council or board of trustees, in a newspaper published in such city or village, or from any volume of ordinances, purporting to have been printed by authority of the common council or board of trustees of such city or village; and such record, certified copy or volume shall be prima facie evidence of the existence and validity of such laws, regulations, resolutions and ordinances, without proof of the enactment, publishing, or any other thing concerning the same.’

Similar statutes have been applied in many cases in other jurisdictions, and it has been held the burden of proof is upon those attacking the ordinance to show that it never was validly adopted. Chicago & Alton R. Co. v. Wilson, 225 Ill. 50, 80 N. E. 56,116 Am. St. Rep. 102;City of Caruthersville v. Sickles (Mo. App.) 247 S. W. 471;Santa Rosa City R. Co. v. Central Street Ry. Co., 4 Cal. Unrep. Cas. 950, 38 P. 986. The same reasoning upon which the statute quoted heretofore is based justifies the application of the presumption of due passage to a rule of procedure printed in an authorized city manual. Also see Whitney v. Village of Hudson, 69 Mich. 189, 201, 37 N. W. 184, 189, a case in which the facts were in no way similar, however. The court held as follows: ‘Counsel for defendant insists that strict parliamentary rules should not be applied to these municipal bodies exercising legislative functions; that if they adopt or pursue a method of proceeding understood by themselves, which arrives at substantial results, their action should not be overthrown upon any technical rules or strict construction of parliamentary law. We are of the same opinion.’

It is further claimed that, even if the rule in regard to reconsideration is a valid one and its proper adoption be assumed, the appointment of the city clerk could not be reconsidered at a meeting of the commission subsequent to the next regular meeting; that there was a regular meeting on April 7, 1932; and that the reconsideration was not acted upon until the regular meeting of April 11, 1932. Chapter VIII, section 5, of the city charter provides that the commission shall fix the day and hour for the regular meetings of the commission. Rule 1 of the standing rules provides that the regular meeting of the council shall be held on Monday of each week at 7:30 p. m. Chapter VI, section 8, of the charter requires the commission to meet at 10 a. m. on the...