Westbrook v. Miller

• Decision Date: 28 January 1885
• Court: Michigan Supreme Court
• Parties: WESTBROOK v. MILLER.

22 N.W. 256

56 Mich. 148

WESTBROOK v. MILLER.

Supreme Court of Michigan

January 28, 1885

Error to Bay.

Avery Brothers, for plaintiff, appellant.

Luther Beckwith, for defendants.

COOLEY C.J.

This is an action of trespass quare clausum. Upon the trial the validity of a tax deed ^[1] was brought in question, and the circuit judge ruled that it was invalid. The only question raised on the record in this court concerns the correctness of this ruling.

The reason for holding the deed invalid was that it was executed by the deputy auditor general in his own name, when, if executed by him at all, it should have been executed in the name of his principal. The statute provides that "the auditor general may appoint a deputy, for whose acts he shall be responsible, and may revoke such appointment at pleasure and such deputy may execute the duties of the office during the sickness or necessary absence of the auditor general." How.St. � 283. It is one of the duties of the auditor general to execute deeds to carry into effect sales of state tax lands. Public Acts 1881, p. 272. A similar statute respecting the powers and duties of the deputy auditor general has been in existence in this state for many years, and we may take judicial notice that it has been construed in the office of the auditor general as authorizing the deputy to act in his own name when the circumstances exist which authorize him to act at all. A great many deeds have been executed in this manner, and other acts done which are open to question on the same ground. The case is, therefore, one upon which it is probable that large interests depend.

If the question were entirely new, and were presented as a question as to the most proper and correct method of executing the duty by the deputy, we should say, unhesitatingly, that the proper method would be for the deputy to perform the act in the name of his principal. But this is a matter of form rather than that of substance, and the rights, neither of the state nor of any individual, are greater or less because of one form being adopted rather than the other. The objection to a deed executed as this is, even if valid, is purely technical, and if sustained it must be upon grounds that in no way affect the merits. A similar objection to the acts of other deputies has been several times made in this state. In Calendar v. Olcott, 1 Mich. 344, a deputy county clerk had issued in his own name a writ of summons. The statute empowered the deputy, in the absence of the clerk from his office or from the court, to perform all the duties of the office; and this was held sufficient authority for him to act in his own name. In Wheeler v Wilkins, 19 Mich. 78, a return by a deputy-sheriff in his own name was held, on the authority of Calendar v. Olcott, to be sufficient. People v. Johr, 22 Mich. 461, raised the question whether the indorsement and recording of a county treasurer's bond by the deputy auditor general was sufficient; and the court disposed of it shortly by saying: "As to the indorsement of S.D. Bingham, deputy auditor general, he being a state officer known to the law, we are bound to take judicial notice that he was such officer, and the indorsement or certificate by him has the same force and validity as if signed by the auditor general himself. This shows an approval and acceptance by the auditor general." Page 464.

These cases would seem to settle the question now raised. They are all decided upon statutes which, under specified circumstances, give to deputies the power to perform the duties pertaining to the office of their principals, and a decision under one statute is authority for a like decision under any other. But if, as a new question, the practice were one of doubtful validity, yet having continued for many years under a construction of the statute by the proper executive department of the government, and affecting, as has been said, matter of form only, it ought not now to be disturbed or called in question. The practical construction of the statute has done no mischief, and it should now be accepted as correct. When, in the performance of executive duties, it becomes necessary for the executive department to construe a statute, great deference is always due to its judgment; and the obligation is increased by the lapse of considerable time before its acts are called in question. This has been several times held by the federal supreme court, and by the subordinate courts of the federal system, and a reference to a few of the cases will be sufficient to show the current of decision. McKeen v. Delancy, 5 Cranch, 22; Surgett v. Lapice, 8 How. 48, 71; Bissell v. Penrose, 8 How. 317; Union Ins. Co v. Hoge, 21 How. 35, 66; U.S. v. Gilmore, 8 Wall. 330; U.S. v. Pugh, 99 U.S. 265, 269; U.S. v. Lytle, 5 McLean, 9; Hahn v. U.S. 14 Ct.Cl. 305; Swift v. U.S. 14 Ct.Cl. 481. It was also held by ...