People ex rel. Chadwick v. County Officers

Christiancy J. This bill is filed by the prosecuting attorney of St. Clair county, upon the relation of two citizens of that county, for the purpose of• testing the legality of the pr-oceedings for the removal of the county seat from St. Clair to Port Huron, and asks an injunction to prevent the several defendants from removing their offices to Port Huron. The case comes before us upon appeal, the bill having been demurred to, and certain facts agreed upon by stipulation, which we shall consider as if stated in the bill. The propriety of bringing a bill in this form by the prosecuting attorney, in the name of the people, and upon the relation of individuals, has not been questioned in this case; both parties being desirous of obtaining a decision of the case upon the merits. Assuming, therefore, the right' to bring the bill in this shape, but without intending to preclude the question in other cases, or to have this assumption drawn into precedent, we shall proceed to consider the merits of the case. Waiving the question whether the resolution of the board in reference to the removal of the county seat was passed by the requisite majority of the Board of Supervisors, or [91] whether the statute requires a majority of two-thirds of all the members elected — a point we deem it unnecessary to decide — we are to inquire what was the nature and effect of the resolution, and whether it has been properly-carried into effect. The resolution is not a direct and- absolute determination to remove the county seat, or an absolute designation of the place to which it should be removed. It is expressly made subject to the proviso that “ suitable guarantees” should be given for the erection of the necessary buildings for county purposes, free of cost to the county, and that said guarantees should be given within ninety days from that date. Being thus conditional, it could not operate as an absolute resolution for removal or for the designation of the place, until the condition specified in the proviso should be fulfilled. This proviso was an essential part of the resolution, and can no more be rejected than any other portion of the resolution. For though the board had power to adopt a resolution for such removal and designation, they had also the power to refuse it absolutely, or until the circumstances, and the inducements offered, should, in their opinion, render it expedient. And a guarantee for the erection of the necessary buildings, without cost to the county, was a very proper subject of consideration, in determining upon the expediency or propriety of the removal — a consideration which in its nature, was calculated to influence the minds of the members in voting for or against the resolution. No one can be authorized to say that it did not have that effect, or that the resolution could have passed by the requisite majority, without the proviso. The ^authority to submit the question to the electors rested upon this resolution. Whether it would have been competent to have submitted the question to the vote of the electors in this conditional form, we are not called upon to decide, as there is no pretence that it was [92] thus submitted. So far as appears from tbe record, as well as from tbe statements of the counsel upon the argument, the question of removal actually submitted to the vote of the electors was without any condition whatever. We think it entirely clear that the question submitted to the electors should have been the same as that voted upon by the board. Here the resolution of the board was conditional; the vote of the electors absolute. But it is urged that this resolution had in the meantime become absolute by the adoption of the resolution of the next day, and the action of the committee under it, which, it is claimed, operated as a performance of the condition prior to the vote by the electors. Whether, if it had thus become absolute in the meantime, this would have cured the defect, we express no opinion, because, in our view, the record does not show that the resolution had' become absolute by the performance of the condition. The condition or proviso was somewhat vague and indefinite. It was that “ suitable guarantees ” should be given. Who was to judge whether any guarantees were suitable. This was clearly a question which this resolution left for tbe future decision of the board, unless, perhaps, by a subsequent resolution, passed by a two-thirds majority, they had determined to leave its decision to some other person or persons, which possibly might have been competent. For having the power to pass the resolution for a removal, etc., without any condition, they might, perhaps, have passed it subject to the condition that a guarantee should be given, which should be satisfactory to any person they might choose to name. But in such a case, the second resolution would operate thus far to modify the original resolution. But the resolution adopted by the board on the next day, for the purpose of carrying the proviso of the original resolution into effect, appointed the chairman and four other members a committee “ to examine and, if found satisfactory, to approve [93] the bond required to be given on account of the removal of the county seat” — in other words, to determine whether the guarantees that should be offered were “suitable.” This resolution does not appear to have been passed by a two-thirds majority of the board, and consequently can not have the effect to modify the effect of the original resolution passed, and required to be passed by such two-thirds majority. Hence, this second resolution referring the matter to a committee, must stand, if it can stand at all, as a mere naked delegation of the authority of the board, given by a simple majority. This was' not a committee appointed for the mere purpose of inquiring and reporting to the board for its future action, but for the purpose of definitely and finally exercising upon this question the whole power possessed by the board itself. We think it clear that it was incompetent for the board thus to delegate this power; (Hascall et al. v. Madison University, 8 Barb. 174 Thompson v. Schermerhorn, 2 N. Y. 92), and that no action which the committee could take under the resolution could determine the’ question of the sufficiency of the guarantees under the original resolution. Hence, notwithstanding the approval and acceptance of the bond by them, the original resolution remained still conditional as when it was first passed, and that nothing short of a resolution, passed by a two-thirds majority of the board, coxdd decide the question, or dispense with the condition. There was no subsequent action of the board upon the question. Hence, the resolution for removing the county seat, or designating the place to which it was to be removed, remained conditional at the time the question was submitted to the vote of the electors without any condition. The vote of the electors was, therefore, unauthorized, and of no validity.' The decree of the court below, sustaining the demurrer [94] and dismissing the bill, must be reversed, and the defendants have leave to answer. The record must be remitted to the court below for further proceedings. < The other Justices concurred.