Matthews v. Montgomery

Read, J. Plaintiff prays writ of mandamus to compel the county clerk of Wayne county to accept his filing fee and certify his name as a candidate for nomination to the office of county road commissioner of Wayne county, at the next (September) primary election. The question is whether the office is to be filled by election or by appointment of the board of supervisors. The county road system was adopted in Wayne county by a vote of the electors in 1906. To this time the commissioners have been elected. The term’ of one expires December 31, 1936. In October, 1935, the boarfi of supervisors adopted a resolution that hereafter county road commissioners shall be *143 appointed by a majority of the board at its regular April meetings preceding the expiration of commissioners ’ terms. The statute involved is 1 Comp. Laws 1929, § 3981, particularly the clauses: “In any county where the county road system has been or shall hereafter be adopted, a board of county road commissioners consisting of three members shall be elected by the people of such county. In the first instance such commissioners shall be appointed by the board of supervisors or elected at a general or special election called for that purpose, as shall be ordered by the board of supervisors. * * * Provided, That the election of county road commissioners, as herein provided, shall not be mandatory in any county which contains twelve surveyed townships or more, either entire or fractional, as determined by the government survey thereof. In such county or counties the board of supervisors may, by a majority of its members-elect, appoint such county road commissioners. ’ ’ The principal contention of plaintiff is that the full power of the board of supervisors to appoint commissioners must be declared and exercised “in the first instance ’ ’ and that, once commissioners are elected, the board cannot change the method of their selection. Neither the history nor terms of the statute support the contention. As evidenced by the frequent amendments, the county road system developed through experimentation. It was initiated in 1893, by the addition of article 4, § 49, to the Constitution of 1850, and the enactment of Act No. 149, Pub. Acts 1893, both of which required election of the commissioners. Section 49 was amended in 1899 to authorize the legislature to provide for election or appointment of county road commissioners. The later provision *144 was continued in art. 8, § 26, of the present Constitution. Until 1909, no statute provided for general appointment of commissioners, except Act No. 146, Pub. Acts 1905, which set up an invalid provision for appointment in Wayne county. Wayne County Road Com’rs v. Wayne County Board of Auditors, 148 Mich. 255. But, by Act No. 82, Pub. Acts 1907, and while subsequent selection of commissioners was required to be by election, the provision for election or appointment “in the first instance” was adopted substantially in its present form. Act No. 283, Pub. Acts 1909, revised and consolidated the highway laws, continued the general county road plan but with many changes in detail. It added the proviso for appointment of commissioners by the board of supervisors, originally applying it to counties containing* over 30 surveyed townships. The number was reduced to 26 by Act No. 400, Pub. Acts 1913, to 20' by Act No. 181, Pub. Acts 1915, and to the present number of 12 by Act No. 356, Pub. Acts 1917. The fact that the clause providing* for appointment or election of commissioners “in the first instance” appeared in an act which required all subsequent selection to be by election is conclusive that it was meant to apply to a definite situation — the institution of the county road system in a county. The statute contains no language to indicate that this localized effect was changed by the provision added in 1909, conferring general power of appointment upon the board of supervisors. Moreover, the general power was granted to all designated counties, including those already under the system; and the statute contains no limitation as to the time *145 when counties under the system should determine to appoint. Plainly, the purpose and effect of the statute is to confer upon the board of supervisors the power to change the method of selection of commissioners from time to time as the board shall deem advisable. Plaintiff further contends the legislature may not delegate to the board of supervisors the option of appointing road commissioners. But he offers no authority or reason to deny the delegation of such authority to the governing legislative and administrative board of the county. See 43 C. J. p. 603. Plaintiff also claims the statute is a local law, requiring a referendum under the Constitution, 1908, art. 5, § 30. He has not alleged nor shown that any county in the State has less than 12 surveyed townships. Moreover, it is evident that the number of townships in the county affords a basis of classification for legislation pertaining to highways. Section 1130, 1 Comp. Laws 1929, with its provisions for adoption and approval of ordinances, and initiative and referendum thereon, is in distinct conflict with the power granted in section 3981 to boards of supervisors. A resolution declaring the purpose to appoint was sufficient, an ordinance not being necessary. Gale v. Oakland County Board of Supervisors, 260 Mich. 399. Plaintiff has failed to show a clear legal right to the writ and it is denied, with costs. North, C. J., and Wiest, Butzel, Bushnell, Edward M. Shabpe, Potter, and Toy, JJ., concurred.