Sempliner v. Fitzgerald , 300 Mich. 537 ( 1942 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is a quo warranto proceeding to try title to the office of circuit court commissioner in Wayne county.

The facts are not in dispute. The Honorable George B. Murphy was elected circuit court commissioner of Wayne county for the term of six years beginning January 1, 1937. He resigned said office January 2, 1941. The governor of the State of Michigan immediately appointed the respondent, Frank FitzGerald, to fill the vacancy in said office. On January 9, 1941, respondent qualified and entered upon the duties of this office.

On January 11, 1941, the relator, Arthur W. Sempliner, sought to file nominating petitions for the purpose of having his name placed upon the ballot for nominating candidates for said office in the primary election to be held on February 17, 1941. The county clerk of Wayne county refused to accept the petitions and a writ of mandamus was issued out of the circuit court of Wayne county. The county clerk and the board of election commissioners complied with the order of the circuit court and at the primary election held on the above date, relator and one Frank Lau were duly nominated as candidates to fill the alleged vacancy. At such primary election respondent did not seek nomination. At the election held April 7, 1941, relator received the highest number of votes cast of any candidate to fill the alleged vacancy in the office. On April 28, 1941, relator received his certificate of election to said office.

On April 29, 1941, relator made formal demand upon respondent to yield said office, but was refused and respondent continued to function as a circuit court commissioner of Wayne county.

Relator instituted quo warranto proceedings. A hearing was had; and at the conclusion of the hearing, the trial judge rendered an opinion in which he directed the entry of an order requiring respondent to give up his office to relator.

Respondent appeals and contends that his term of office as circuit court commissioner is for the residue of George B. Murphy's unexpired term, viz., that it extends to December 31, 1942, or at least until the November election in 1942.

The provisions made for filling a vacancy in the office of circuit court commissioner are found in 3 Comp. Laws 1929, § 13718 (Stat. Ann. § 27.241), which provides:

"Whenever a vacancy shall occur, for any cause, in the office of circuit court commissioner of any county, the governor may fill such vacancy by the appointment of a person eligible to such office, who shall upon taking oath and executing and filing the bond, as provided in section one hundred of this chapter, be authorized and required to discharge all the duties of circuit court commissioner, and shall be liable to all the provisions of law touching said office, and shall hold the same until his successor shall be duly elected and qualified."

It is urged by relator that the office of circuit court commissioner is a court of record and that under the provisions of 1 Comp. Laws 1929, § 3368, as amended by Act No. 236, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 3368, Stat. Ann. § 6.714), an appointee to a vacancy in a court of record shall hold office only until a successor is elected at the next available general election; that the biennial spring election is a general election insofar as the office of circuit court commissioner is concerned; and that the decision of the trial court in the mandamus proceedings is res judicata of the issue involved in this case.

It is urged by respondent that 3 Comp. Laws 1929, § 13718, is a special statute providing for the appointment of a circuit court commissioner to fill a vacancy, said appointee to hold office "until his successor shall be duly elected and qualified;" that the election of a circuit court commissioner may be held only under the provisions of 1 Comp. Laws 1929, § 2997 (Stat. Ann. § 6.264), which provides that he shall be elected at the general November election; that no other statute authorizes the holding of an election of circuit court commissioners either for a regular term or to fill a vacancy; and that the alleged election held on April 8, 1941, was without authority of law.

We are not in accord with the claim of relator that the appointment to fill a vacancy in such office is controlled by 1 Comp. Laws 1929, § 3368 as amended, supra. That section relates to a judge of a court of record and specifically provides that there shall be a person elected to fill the vacancy "at the next general November election or biennial spring election held at least ninety days after such vacancy shall occur." The above statute relates to courts of record and has no application to the filling of a vacancy in the office of circuit court commissioner.

The manner of filling vacancies in elective or appointive offices in the State of Michigan is prescribed by statute. In the case of county offices, such as sheriff, county clerk, county treasurer, prosecuting attorney, register of deeds, coroner, county surveyor, and county school commissioner, the person selected to fill such vacancy holds such office for the remainder of the unexpired term. In the case of vacancies in State offices, other than the office of senator or representative in the State legislature, senator or representative in congress, or a judge of a court of record, the governor fills such vacancy by appointment for the remainder of the unexpired term. 1 Comp. Laws 1929, § 3365 (Stat. Ann. § 6.711). Vacancy in the office of justice of the supreme court is filled by appointment of the governor and a successor is elected at the next general April or November election. 3 Comp. Laws 1929, § 13530 (Stat. Ann. § 27.24). Vacancy in the office of circuit judge is filled by appointment of the governor. The person appointed holds such office until his successor is elected and qualified. His successor is elected at the next general election or the biennial spring election held at least 90 days after such vacancy occurs. 1 Comp. Laws 1929, § 3368, as amended by Act No. 236, Pub. Acts 1931.

It is to be noted from the above that vacancies in county offices, except in courts of record, are filled by appointment for the unexpired term. The law provides the manner of appointment and that such appointment shall be for the unexpired term, regardless of the length of the term, i.e., whether two or four years. The same applies to State offices. In courts of record, such as the Supreme Court, circuit court, and probate court, the appointment is until a successor can be elected and qualified and the law provides the time at which a successor can be elected and qualified. A similar situation exists in the office of justice of the peace.

The general rule to be deduced from the above is that appointments to fill vacancies in administrative offices are for the unexpired term while vacancies in the offices of courts of record and other judicial offices are filled by appointment until such time as a successor can be elected and qualified. In all cases of election to fill vacancies, the manner of such election is prescribed by statute.

The legislature has spoken and provided that vacancies in the office of circuit court commissioner shall be filled under section 13718, supra. The above statute is silent as to the duration of the term of appointment other than that it shall be "until his successor shall be duly elected and qualified."

The issue is thus narrowed down to the simple question of when may a circuit court commissioner be duly elected?

In People, ex rel. Fuller, v. Palmer, 91 Mich. 283, 288, we said:

"The right to hold an election cannot exist or be exercised without an express grant of the power to do so by the legislature."

The law of Michigan relating to the election of circuit court commissioners is found in 3 Comp. Laws 1929, § 13697 (Stat. Ann. § 27.219). It is there provided that:

"In each county in this State wherein the census of the United States shall show a population of five hundred thousand or more, there shall be, as soon as this act take effect, four such circuit court commissioners. At the general November election to be held in nineteen hundred thirty, there shall be elected four such circuit court commissioners in such counties, who shall enter upon the discharge of their duties on January one, nineteen hundred thirty-one, and shall hold their office for six years from that date; and at the general fall election to be held in nineteen hundred thirty-six, and every six years thereafter, there shall be elected for each of such counties, such four circuit court commissioners who shall enter upon the discharge of their duties on the first day of January succeeding their election, and who shall hold their offices six years."

No other statute authorizes the holding of an election of circuit court commissioners in counties having a population of 500,000 or more either for a regular term or to fill a vacancy. It is our opinion that the only time a circuit court commissioner can be elected is at the general November election. There being no provision in the law for the election of a circuit court commissioner to fill a vacancy, it follows that an appointment is for the unexpired term. If a change in the manner of filling a vacancy in the office of a circuit court commissioner in counties having a population of 500,000 or more is desirable, it should be made by enactment of proper legislation by the legislature.

It is next urged that the decision in the mandamus proceedings ordering the holding of an election was a decision in rem; that it adjudicated respondent's term of office. In Frey v.Michie, 68 Mich. 323, 327, we said: "The only way to try titles to office finally and conclusively is by quo warranto." See, also, Gildemeister v. Lindsay, 212 Mich. 299. In our opinion the mandamus proceeding was a nullity insofar as it affected the title to this office.

The judgment of the trial court is reversed. Appellant is entitled to the office of circuit court commissioner of Wayne county for the term ending December 31, 1942. No costs are allowed as a public question is involved.

BOYLES, NORTH, STARR, and WIEST, JJ., concurred with SHARPE, J.