Drolshagen v. County of Wayne

I am not in accord with the opinion of Mr. Justice BUTZEL. His opinion is based upon the proposition that because the probate judge has the power to remove the register of probate at will, the term is indefinite and the board of supervisors had the right to decrease the salary. The general rule is that if the term is indefinite, the officer's salary may be reduced or enlarged. In Bodell v. Cityof Battle Creek, 270 Mich. 445, we said, "The inhibition against the raising or lowering of salaries applies only to the definite, and not to the indefinite term of an official." The real issue in the present case is to determine whether a register of probate is appointed for a definite term. The authority for such an appointment is found in 3 Comp. Laws 1929, § 13875, which reads as follows: "In every county in this State the judge of pro bate may appoint a probate register, who shall hold *Page 571 such office during the term for which the judge of probate making the appointment shall have been elected, unless sooner removed by the judge of probate; such register so appointed shall take and subscribe the oath of office prescribed by the Constitution, and give bond in the penal sum of $1,000 to be approved by the probate judge, and shall exercise the power of, and be competent to do all acts required of the judge of probate except judicial acts." In support of the statement that if an officer is removable at will, he holds for an indefinite term, Mr. Justice BUTZEL Cites: Somers v. State, 5 S.D. 321 (58 N.W. 804); 5 S.D. 584 (59 N.W. 962); Buechele v. Petty, 265 Ky. 321 (96 S.W. [2d] 1010); Bayley v. Garrison, 190 Cal. 690 (214 Pac. 871). In the Somers Case, supra, the officer was appointed under a statute which provided that the superintendent was authorized "to appoint a deputy." There was no specification as to the term of the appointment. The court in that case said: "Plaintiff had no 'term.' * * * The law fixed no time for the continuance of such appointment." And on the rehearing, the court said: "We still think that the word 'term,' when applied to an office means a definite time for its beginning and ending." In the Buechele Case, supra, the court said: "If one holds office at the pleasure of the appointing power, he has no fixed right either to the office or the compensation attached thereto at the time of his appointment, but may be removed at any time." The report of this case does not show whether any term of office was mentioned, as in the case at bar. In Bayley v.Garrison, supra, it was held that the constitutional inhibition did not apply to the office *Page 572 of a deputy county clerk because he had no term of office. The court there said: "We conclude * * * that the increase of compensation to a deputy who holds office at the pleasure of his principal is not a violation of * * * the Constitution." In Townsend v. Kurtz, 83 Md. 331 (34 A. 1123), the State insurance commissioner, by statute, was to be appointed "for the term of four years * * * and shall hold his office during the term for which he is appointed, or until his successor is appointed, and qualified, unless sooner removed by the governor." The court said: "When the statute has given the appointing power authority to remove the appointee, although originally appointed for a definite term of years, it can be exercised." It was also said: "It is contended on the part of the appellee that the tenure of this office is not for a fixed term, but its duration is uncertain and indefinite, and therefore the incumbent is removable at the will of the appointing power. It is well settled that where there is no limit fixed to the term (of) office, and the appointee holds merely at the will of the appointing power, he may be removed without notice and without charges being preferred or reasons assigned. But it would seem clear that under the very terms of the statute the tenure of this office is not for such an indefinite term as that. The statute says he shall be appointed 'for the term of four years,' and that he 'shall hold his office during the term for which he is appointed, or until his successor is appointed and qualified, unless sooner removed by the governor, treasurer, and comptroller.' We will have occasion to discuss later on the effect of this power of removal, but it cannot properly be said that the appointment is not originally for a definite term, although *Page 573 subject to removal by the action of all of the officers above named. It is true he may not hold the office four years by reason of death, resignation, or his removal, if done in the way authorized by law, but that is the time designated by the statute for which he shall hold it, subject to thosecontingencies. It is therefore distinguished from that class of cases in which the appointing power is authorized to appoint officers without naming some fixed term." From our examination of Michigan authorities, we find that this is a case of first impression, but in Trainor v. Board ofAuditors of Wayne, 89 Mich. 162 (15 L.R.A. 95), we said: "It is the undoubted policy of our State, and best in accord with our system of government, that officers should hold for fixed terms, and not be subject to removal at the will or caprice of the appointing power." In construing the act under which the register of probate was appointed, the same must be construed to give effect to every portion of it, if possible. In Rohde v.Wayne Circuit, Judge, 168 Mich. 683, on rehearing, it was said: "It is a cardinal rule in the construction of statutes that effect is to be given, if possible, to every word, clause, and sentence. It is the duty of the court, so far as practicable, to reconcile the different provisions, so as to make them consistent and harmonious, and to give a sensible and intelligent effect to each." In my opinion the proper construction of the statute is that the register of probate holds his office for a definite term,but may be removed by the judge of probate at any time beforehis term would otherwise expire. If the statute be construed in this way, some operation is given to all of its provisions, namely, the term of office of the register of probate is for a *Page 574 definite term, and if there be no removals, his term would expire at a definite period. If we adopt the opinion of Mr. Justice BUTZEL, it would render full emphasis to the removal clause provided for in the act, but would emasculate that portion of the act providing for the period of appointment. This we may not do. It may also be noted that in providing for the appointment of probation officers by the probate judge the legislature has expressly provided that "all probation officers shall hold office during the pleasure of the court." 3 Comp. Laws 1929, § 12838. It is a fair inference that had the legislature intended that probate registers should "hold office during the pleasure of the court" only, it would have so provided. On the contrary, as above noted, a probate register is appointed to serve during the fixed term for which the appointing judge has been elected, and when so appointed a probate register cannot be removed except for cause. Possibly, as is rather convincingly set forth in my Brother's opinion, it would be better if a probate register was subject to removal at the will of the appointing probate judge; but the wisdom of the statutory provision is a matter solely of legislative concern. Plaintiff has the right to recover the balance of the register's salary. Ruell v. City of Alpena, 108 Mich. 290. See, also, County Com'rs of Anne Arundel County v. Goodman,172 Md. 559 (192 A. 325); Taylor v. City of Philadelphia,126 Pa. Super. 196 (190 A. 663). The judgment of the lower court is affirmed, with costs to plaintiff. POTTER, NORTH, and McALLISTER, JJ., concurred with SHARPE, J. *Page 575