Blain v. Chippewa Circuit Judge

Carpenter, C. J.

(dissenting). One Clyde W. Hecox was recorder of the city of Sault Ste. Marie for the year ending April 9, 1906. He was again a candidate for said office and relator was his opponent at the municipal election of said city held on the 2d of April, 1906. According to the returns made by the inspectors of election, relator was elected by a majority of five votes. The old council — whose term of office expired April 9th — sitting as a board of canvassers, canvassed the returns and gave a certificate of election to Hecox, who gave a bond and duly qualified. It is not material to inquire whether this action of the old council was legal or illegal, because, in my opinion, as will hereafter appear, relator’s right to the office is conclusively determined by the action of the new council.

At a meeting of the new council — wnose term of office commenced April 9, 1906 — held on the 16th day of April, a resolution was passed declaring relator duly elected to said office of recorder. Relator gave a bond and took the oath of office, and on the next day, viz., April 17, 1906, by the aid of a deputy sheriff, forcibly evicted said Hecox from office and took possession of the same. On the same day Hecox filed an injunction bill in the Chippewa circuit court. On the 23d of April a motion for an injunction was heard, based upon said bill and defendant’s answer thereto, and respondent thereupon ordered an injunction to issue commanding said relator to:

“ Forthwith desist from further taking possession of ihe books, papers and property appertaining and belonging to the office of the recorder of the city of Sault Ste. Marie, * * * from preventing said Clyde W. Hecox, complainant herein, from keeping possession thereof, * * * from excluding said complainant from the rooms of “the office of recorder of the city of Sault Ste. Marie, * * * and from any. interference of said complainant in his full performance of all duties of the office of recorder of the city of Sault Ste. Marie until the right of the said Clyde W. Hecox not to hold said office is judicially declared in a proper proceeding brought to that end.”

Relator then instituted these proceedings in this court, seeking a mandamus to compel respondent to vacate the order granting said injunction.

■ It is contended that respondent’s action is justified by our own decision in tenglein v. Saginaw Circuit Judge, 128 Mich. 440. In that case the lower court had issued an injunction at the instance of a de facto officer in possession of the office restraining a claimant from interering with that possession until he, the claimant, should entitle himself to do so by proper legal proceedings, and that court refused to issue a mandamus compelling the trial court to vacate said injunction. That' decision does not, in my judgment, apply. In that case the injunction prevented an incumbent being forcibly dispossessed from an office. In this case the injunction reinstated an official who had been forcibly dispossessed. As this last statement of fact may not be conceded, I will undertake to show its truth. In his petition for a mandamus, relator avers:

“By virtue of the act of said common council (viz., the resolution declaring his election as recorder) your petitioner did on the 17th day of April, 1906, take possession of the books, papers, and records of said office, and enter upon the duties of the office of city recorder and was duly recognized as such recorder by said common council, comptroller, treasurer, and all other city officials.”

Respondent in his answer does not deny this averment and contents himself with saying:

“The allegations therein are not in accord with the facts presented to respondent in the bill of complaint * * * and the answer and the accompanying exhibits and affidavits. All of which are attached to relator’s petition.”

He then points out certain facts stated in the pleadings which do not accord with the above averment. Those facts are as follows (to save space I have undertaken to state them in my own language) :

1. That Hecox, after being declared elected, duly executed an official bond which was duly approved by the old council.

2. That Hecox was his own successor as recorder; that he entered upon the succeeding term, April 9, 1906, and from that time was in possession of said office, its books, and records; that he was engaged in the performance of the duties thereof without obstruction or objection until April 17, 1906.

3. That on the 17th of April, 1906, relator forcibly broke open the door of the recorder’s office and took possession of such books and papers of the office as were not in the safe, and forcibly ejected complainant (Hecox) from the room in which said office is located, and by force and threats prevented said -Hecox, his deputy and clerk from entering said office, and from further performing the duties thereof.

4. “ That it did not appear by the pleadings, exhibits, and affidavits, * * * all of which are attached to relator’s petition, that said relator, at the time of the exhibition of said bill of complaint, had obtained possession of all the books, papers, records, and property appertaining to said office, but it did appear that neither Blain nor Hecóx were, at the time of the exhibition of the bill of complaint, in full possession of all the property, records, etc., although Blain was contending that he was; but that there had been a legal and physical contention over the office, and that Blain had by force entered the office room and put Hecox out, and had actually obtained possession of such books and papers in the office room as were not in the safe.”

It will be noticed — and this is the point I wish to emphasize — that there is no denial that relator entered upon the duties of the office and was duly recognized as recorder by the common council, the controller, treasurer, and all other city officials, and Sup. Ct. Rule 13 which requires us to take every material averment in the petition not answered as true, compels us to declare that, at the time the proceedings were taken in the lower court, relator was performing the duties of the office, and recognized as recorder by the city officials. We would reach the same conclusion by considering the papers upon which the mor tion was heard in the lower court. The bill avers that relator:

‘ ‘ Forcibly broke open the door of said office, took possession of such of the books and papers of said office as were not in the safe and forcibly ejected complainant from the room in which said office is located, and by force and threats prevents complainant (Hecox), his deputy, and clerk from entering said office and from the further performance of the duties of said office.”

The answer states that defendant (relator) is now in full possession of the said office and fully recognized as said recorder by the common council, the controller, treasurer, and all other city officials * * * “and that he is exercising all the duties of said office.” I conclude, therefore, that, at the time the order complained of was made, relator, though not possessed of all the official records and books, was performing the duties of the office of city recorder.

The learned counsel for respondent contends that Hecox, notwithstanding this forcible eviction, continued to be a de facto officer. If so, he was an officer de' facto dispossessed of his office, asking a court of equity to reinstate him in that office. Upon what ground will equity reinstate him ? Respondent made the order complained of— which evicted relator from office and installed Hecox therein — without determining that relator had no right to remain. (He, respondent, was of the opinion that he could make this order without determining relator’s right to remain in office.) This, in my judgment, was an error. .To dispossess one without inquiring into his right of possession is not, in my judgment, a legitimate exercise of judicial power.

“Judicial proceedings cannot be valid unless they proceed upon an inquiry and render judgment only after trial.” Cooley on Constitutional Limitations (7th Ed.), p. 503.

Nor is there in Stenglein v. Saginaw Circuit Judge, heretofore cited, anything opposed to this reasoning. There we held that the circuit court may, without determining conflicting rights to an office, prevent a claimant thereto from forcibly evicting an actqal incumbent. That case is not an authority for the very different proposition —the proposition involved in this case — that a court may evict one who has obtained an office without determining his right to remain in said office. Though a court may, without determining rights, prevent one from asserting his rights, it cannot, in my judgment, for the reasons I have already stated, dispossess him of rights without making such determination. If this distinction did not exist, we would not have held, as we have (see People v. Simonson, 10 Mich. 335), that, without an opportunity to be heard, one cannot by injunction be dispossessed of property.

But it is said that respondent could not determine that relator had, and that Hecox had not, the fight to the office because a court of law and not a court of equity should determine the title to an office. The principal ground upon which a court of law determines title to an office is that:

“ Proceedings upon information in the nature of a quo warranto * * * is the only remedy in which judgment of ouster can be had against an actual incumbent, and the person rightfully entitled can be put into possession of the office.” High on Extraordinary Legal Remedies (3d Ed.), § 77.

If this principle is violated when a court of equity, in pursuance of a judicial determination, ousts an incumbent from office and installs another therein — and it certainly is — it is more obviously violated if that ouster is made without such determination. ■ We then have two grounds for declaring that the order complained of was erroneous: (a) That it ousted the rightful incumbent from office (this we will endeavor to show hereafter); and (b) that this ouster was effected by a court of equity and not by a court of law. To urge that relator’s only remedy is to resort to quo warranto proceedings — which is a new and independent proceeding — is to altogether' deny the authority of this court to correct the error of the lower court. Surely it has that authority. Can that error be corrected by issuing a writ of mandamus ? If this error is not corrected until the case can be disposed of in this court upon appeal from a final determination, probably more than one-half of relator’s term of office (two years) will have expired. In the meantime he is excluded from an office to which he has an unquestioned right, and the duties of that office are performed and the emoluments received by a defeated candidate. Nor should we forget that it is the right of the people of Sault Ste. Marie to have the office of recorder filled by the person they have elected, and, as hereafter appears, it is conclusively determined that they elected relator. To exclude him from that office is to deprive them of a right. In short, this is a case in which delay will work a mischief which I think may properly be called irreparable. It is therefore a proper case for the issuance of a writ of mandamus. Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270.

The suggestion is made that we ought not, in issuing this writ, to determine relator’s right to the office. To this I cannot assent. Relator is not, in my judgment, entitled to a writ of mandamus unless he had a right to the office from which the order complained of ousted him. As already shown, that order was improperly made because the -ouster should have been made by proceedings in the nature of a quo warranto and not by injunction in a court of equity. This impropriety does not, however, entitle relator to relief. He is not entitled to have that order vacated by writ of mandamus unless it deprived him of some right. The only right of which it deprived him was the right to remain in office. To grant the mandamus applied for we must therefore determine that relator had a right to remain in the office from which he was ousted.

It has been suggested that the rule heretofore referred to, viz., “ that quo warranto proceedings is the only remedy by which judgment of ouster can be had against an actual incumbent” prevents our making that determination. If so, Hecox is, by reason of this rule, permitted to retain rights which he obtained by its violation. To issue the mandamus asked for will not, in my opinion, violate the rule. It will merely compel the vacation of an order which does violate it. It is true that in determining that the order of ouster was improperly made we determine its impropriety. This we must do. It is also true that in reaching that determination we determine the questions necessarily involved. This, too, we must do. One of those questions is this: Had relator a right to the office from which he was evicted ? This, as will hereafter appear, is a pure question of law which we can in this proceeding determine just as accurately as in any subsequent proceeding. This is a question which should be speedily determined, and I think it is our duty to determine it now.

I do not think that the rule heretofore referred to, viz., that an ouster from office should be effected by quo warranto proceedings, excuses us from determining all questions necessarily involved in any case which it is our duty to decide. See School District v. Weise, 77 Minn. 167.

In Lawrence v. Hanley, 84 Mich. 399, the right of an incumbent to remain in office from which an effort was made to evict him was determined in mandamus proceedings.

In Dew v. Judges of Sweet Springs, 3 Hen. & M. (Va.) 1, the right of an incumbent to an office from which he had been wrongfully evicted was determined in a mandamus proceeding, and he was restored to office by the writ of mandamus.

It follows that relator should not have been evicted from office as he was by, the order under consideration if he had the right to remain therein, and that such right should be determined in these proceedings. If relator had the right to the office, and if Hecox had not, the circumstance that the former obtained possession of the same by force is, in my judgment, altogether unimportant. If relator, in taking this forcible possession, violated any of Hecox’s legal rights he did not violate his right to remain possessed of the office, because Hecox did not have that right. If Hecox had no right to the office, his eviction therefrom clearly did not give him such right.

Had relator the right to remain in office ? His claim to that right is based- — -not on the fact that according to the original returns he received a majority of the votes cast— but on the resolution of the new council declaring him elected. This claim is well founded if that council had authority to determine who was elected recorder of Sault Ste. Marie. Had it that authority ? That depends upon the proper construction of the city charter. We quote from chapter 6 of said charter [Act No. 533, Local Acta 1887]:

“Section 1. The legislative authority of the city shall be vested in a council consisting of the mayor, two aider-men elected from each ward, and the city recorder.. * =h *

“Sec. 4. The recorder shall be clerk of the council, but shall have no vote therein. * * *

“ Sec. 5. The council shall be judge of election returns and qualifications of its own members.”

The language of section 5 above quoted is substantially like that of section 5 of article 1 of the Constitution of the United States, which reads:

“ Each house shall be the judge of the elections, returns and qualifications of its own members.”

It is also like that of section 9, art. 4, of our State Constitution, which reads:

“Each house shall * * * judge of the qualifications, elections and returns of its members.”

As this language in the Constitution clearly made each house the final judge of the election of its members, so we have no doubt that section 5, above quoted, made the council of the city of Sault Ste. Marie the final judge of the election of its members. We will spend no time to prove that the council thus made the judge of the election of its members was the new council and not the old. That is settled by Hilton v. Grand Rapids Common Council, 112 Mich. 500.

This brings us to the question: Is the recorder one of “its own members,” of whose election the council is made the judge? This depends upon the legislative intent. The question is whether the recorder is one of the members of the council in the sense in which the legislature used the word “ members,” and not whether he is actually a member of the council. This distinction is important because there is obviously a difference between the voting council consisting of two aldermen from each ward, and the council defined by the legislature consisting of those aldermen, the mayor, and recorder. And there is just as obviously a distinction between members of the former council and members of the latter council. It is claimed that by other provisions in the very chapter of the charter from which the above provisions are quoted the legislature has recognized this distinction. For instance, section 2 of said chapter [as amended by Act No. 460, Local Acts 1899] provides that certain ordinances or resolutions shall not go into effect unless “ passed by a two-thirds vote of all the members of the common council elect, exclusive of the mayor.” And section 11 provides that “the council may provide by ordinance for the appointment of standing committees of its members.” Other illustrations might be added. It is claimed that, in these instances, the legislature used the term “ council” in a restricted sense, intending to describe the voting council, and that it used the term “ members” of the council intending to describe only the members of the voting council. The contention is made that the legislature used the term “ members ” in this restricted sense in the section in which it made the council judge of the election “of its own members.” To this I cannot agree. When the legislature said, in section 1 of chapter 6 of the charter: “ The legislative authority of the city shall be vested in a council consisting of the mayor, two aldermen elected from each ward, and the city recorder,” it clearly indicated that all the officials named were members of the council, for clearly the officials of whom the council consists are its members. In section 1 of chapter 6, heretofore quoted, the legislature names the officials which in its opinion are members of the council. It says in the opinion of the legislature, the mayor, the recorder, and the aldermen are members of the council. This, then, is a legislative definition of “the members” of the council. Though the legislature did in some instances in this very chapter disregard this definition, its intention to disregard it generally cannot be presumed. On the contrary, it must be presumed that the legislature generally regarded its own definition. Indeed, I think it should be presumed that it gave this definition to furnish a key for construing the act. So, when this word is used, it is to be presumed that the legislature used it according to its own definition, unless the contrary appears. As there is nothing to indicate the contrary, it is to be presumed that the term “members,” in section 5, was used according to the legislative definition, and that it described the recorder and mayor as well as the aldermen, and that the council was therefore made the final judge of the election of each of these officers.

It is thought to be an objection to this construction that it permits those who vote in the council, viz., the aider-men, to determine the election of those-who do not vote in the council, viz., the mayor and recorder. I am unable to perceive the force of this objection. There is nothing anomalous in this circumstance. It existed in Weston v. Kent Probate Judge, 69 Mich. 600, where the power of the common council to determine finally the election of a mayor, except “ when the votes of the other members are equally divided,” was upheld. Nor do I think that any fundamental principle is violated by making the council of a municipality the final judge of the election of its own clerk. It follows that the determination by the new council that relator was elected recorder was final, that after that determination he alone was the rightful recorder, that he had a right to remain in the office from which the order in question evicted him, and that a mandamus should issue compelling respondent to vacate said order.

McAlvay and Blair, JJ., concurred with Carpenter, C. J.