Wallace v. Tripp

• Citation: 358 Mich. 668,101 N.W.2d 312
• Decision Date: 25 February 1960
• Docket Number: No. 22,22
• Parties: Mildred WALLACE, Plaintiff and Appellant, v. Robert TRIPP et al., Defendants, and Donald G. Wheeler et a., Intervenors, Defendants and Appellees. George M. TELFER et al., Plaintiffs and Appellants, v. Robert TRIPP et al., Defendants, and Donald G. Wheeler et al., Intervenors, Defendants and Appellees. Motion
• Court: Supreme Court of Michigan

Page 312

101 N.W.2d 312

358 Mich. 668

Mildred WALLACE, Plaintiff and Appellant, v. Robert TRIPP et al., Defendants, and Donald G. Wheeler et a., Intervenors, Defendants and Appellees.

George M. TELFER et al., Plaintiffs and Appellants, v. Robert TRIPP et al., Defendants, and Donald G. Wheeler et al., Intervenors, Defendants and Appellees.

Motion No. 22.

Supreme Court of Michigan.

Feb. 25, 1960.

Schaberg & Schaberg, Kalamazoo, for plaintiffs and appellants.

Ford, Kriekard & Brown, Kalamazoo, for intervenors-appellees.

Before the Entire Bench.

EDWARDS, Justice.

The facts in this matter are simple. Petitions for an election to recall 3 members of the school board of the Richland community school district No. 46 (appellants herein) were filed with the required number of signatures. It is conceded that the petitions complied with constitutional and statutory requirements in all respects except as to reasons stated thereon for recall.

Essentially, the reason given on the petitions for recall was that defendants had exercised their authority as a majority of the school board by discharging the school superintendent, and that such discharge was improper and detrimental to the school district.

Appellants thereupon, in 2 actions which were consolidated for trial, sought a writ of mandamus in Kalamazoo circuit court to direct defendants, the president and acting secretary of the school district, to countermand the order for a recall election and to dismiss the petitions. They claimed the petitions did not clearly state reasons which constituted misfeasance, malfeasance or nonfeasance in office.

The circuit judge denied the writ sought and appellants seek relief from his denial in this Court.

The right of recall is a fundamental right reserved to the people of this State by their Constitution:

'Laws shall be passed to preserve the purity of elections and guard against abuses of the elective franchise, and to provide for the recall of all elective officers, except judges of courts of record and courts of like jurisdiction upon petition of 25 per centum of the number of electors who voted at the preceding election for the office of governor in their respective electoral districts.' Mich. Const. (1908), art. 3, § 8.

It is obvious at the start that the constitutional provision does not limit the right of recall to situations wherein facts could be alleged on the petition which constituted 'nonfeasance, misfeasance, or malfeasance.' ¹

Nor may any such limitation be found in the recall statute which was adopted pursuant to the constitutional mandate. See C.L.S.1956, §§ 168.951-168.976 (Stat.Ann.1956 Rev. and 1957 Cum.Supp. §§ 6.1951-6.1976). The statutory language did spell out the form of the petition to be filed, and did require that it 'shall state clearly the reason or reasons for said demand' (i. e., the demand for recall). C.L.S.1956, § 168.952 (Stat.Ann.1956 Rev. § 6.1952).

The recall statute also provides for the statement of reasons for recall to be printed on the ballot in no more than 200 words, and for 'the officer's justification of his conduct in office' to be printed within the same limit. C.L.S.1956, § 168.966 (Stat.Ann.1956 Rev. § 6.1966).

Thus it is clear that the statutory intent was to have the issue over the conduct of the officer informatively presented to both prospective petition signers and recall voters.

No suggestion is made to us that the statutory language itself is inconsistent with the constitutional mandate, and certainly the clear statement of the reasons for recall on the petition and both reasons and justification on the ballot could be regarded as guarding 'against abuses of the elective franchise.'

The requirement of showing facts on the petition for recall constituting 'nonfeasance, misfeasance, or malfeasance' was a requirement added entirely by judicial decision. In 1926, in Newberg v. Donnelly, 235 Mich. 531, at page 534, 209 N.W. 572, page 574, this Court upheld the constitutionality of the statutory language referred to, and read into it additional limitations:

'The reason or reasons assigned must be based on some act, or failure to act which, in the absence of a sufficient justification, would warrant the recall.'

Without even noting that both the Constitution and the statute clearly indicated that the voters had the power to determine what reasons would warrant the recall the Court itself proceeded to hold certain acts described on the petition before it as not 'a sufficient justification.' We cannot find any constitutional warrant for this assumption of a power clearly reserved by the Constitution to the people.

This case was followed in 3 subsequent cases where, however, in each instance the Court found the justification sufficient. People ex rel. Elliot v. O'Hara, 246 Mich. 312, 224 N.W. 384; Amberg v. Welsh, 325 Mich. 285, 38 N.W.2d 304; Eaton v. Baker, 334 Mich. 521, 55 N.W.2d 77.

As far as the opinions in these cases reveal, the Court never subsequently considered the question as to whether it had by inadvertence imposed a judicial restriction upon a basic right constitutionally reserved in full to the people. In this case, the question is squarely before us, however, and we feel bound to decide it.

We have noted that the constitutional and statutory provisions make no reference to restricting recall to situations wherein nonfeasance, misfeasance or malfeasance was charged. The word 'recall' as employed in each has, however, a general meaning.

Webster's unabridged defines it thus:

'The right or procedure by which a public official, commonly a legislative or executive official, may be removed from office, before the end of his term of office, by a vote of the people to be taken on the filing of a petition signed by the required number of qualified voters (commonly 25%).' Webster's New International Dictionary (2d ed.), p. 2075.

Thus, recall is not the equivalent of a new election. A recall election must involve the course of conduct of an official subsequent to his entering upon his elected term of office. And the petitions for such an election must clearly state the reasons from such a course of conduct which give rise to the recall demand.

But we cannot find justification for implying that such reasons must be facts constituting nonfeasance, misfeasance or malfeasance or misconduct. It is significant that words of this import are found in the constitutional provisions relating to impeachment or removal of State officers (see Mich.Const. [1908], art. 9, §§ 1, 7), but not in the recall provision (Mich.Const. [1908], art. 3, § 8).

In the leading case in this country, the principle of recall is stated thus:

'We understand that the principle underlying the recall of public officers means that the people may have an effective and speedy remedy to remove an official who is not giving satisfaction--one who they do not what to continue in office, regardless of whether or not he is discharging his full duty to the best of his ability and as his conscience dictates. If the policies pursued do not meet the approval of a majority of the people, it is the underlying principle of the recall doctrine to permit them to expeditiously recall the official, without form or ceremony, except as provided for in the charter.' Dunham v. Ardery, 43 Okl. 619, 625, 626, 143 P. 331, 333, Ann.Cas.1916A, 1148.

Much of what has been said to justify a limit upon recall clearly not provided or contemplated by the Constitution has revealed fears about an irresponsible electorate which have persisted since the founding of this nation. A much cited Nebraska case pertaining to a Nebraska recall statute provides some answers which are equally applicable to the Michigan constitutional right of recall:

'It has been argued that absured reasons may be stated in the petition, and that an officer may be called upon to defend his position against frivolous attacks. Doubtless the provision requiring 30 per cent. of the electors to sign the petition before the council are compelled to act was designed to avoid such a contingency. The Legislature apparently assumed that nearly one-third of the electorate would not entail upon the taxpayers the cost of an election unless the charges made approved themselves to their understanding and they were seriously dissatisfied with the services of the incumbent of the office.

'The idea of removing public officers at the discretion of the appointing power, as we have seen, is not a novel one. The concept that this may be done at the direct instance and upon the motion of the electors, the ultimate source of power in a republic, only carries back the power of removal one step farther. If it is not obnoxious to the Constitution to allow an elected officer to remove an appointed one, how can it be a violation of that law to allow it to be done by the people themselves. They are no doubt better qualified to determine the capability and efficiency of their administrative agent after giving him an opportunity to perform the duties of the office than they were when they first selected him to fill the position. The officer takes the position for a fixed term with the condition attached that he is subject to removal whenever his services are not desired by the number of his fellow citizens named in the statute. The policy of the recall may be wise or it may be vicious in its results. We express no opinion as to its wisdom with respect to the removal of administrative officers. If the people of the state find after a trial of the experiment that the provisions of the statute lead to capable officials being vexed with petitions for their recall, based upon mere insinuations or upon frivolous grounds, or because they are performing their duty and enforcing the law, as they are bound to do by their oath of office, or lead without good and sufficient reason to frequent, costly and unnecessary elections, they have the power through their legislature to...