People ex rel. Attorney General v. Village of Highland Park

Grant, J. The information in this case was filed by the Attorney General, and charges that the respondent has, since the 13th day of May, 1891, usurped the fran•chise of being a municipal corporation. To the information the respondent interposed a plea, and to this plea the relator demurred. The facts necessary to an understanding of the questions involved are these: The respondent was incorporated by Act No. 371, Local Acts of 1889. The village council consisted of six trustees, and the other village officers were the president of the council, clerk, treasurer, assessor, constable, and street commissioner. In 1891 the Legislature passed an act known as “House Bill No. 214," amendatory of the charter of the city of Detroit, and [655] ■enlarging its boundaries.1 By this act the greater part ■of respondent’s territory was detached from it and attached to the city of Detroit. The greater portion of the inhabitants of the village were residents of the detached territory. About 200 inhabitants were still left in the portion not detached, 49 of whom were voters. This act was given immediate effect, and was approved by the Governor May 13. The president, three of the six trustees, the clerk, treasurer, assessor, and constable all reside in the detached territory, leaving only three trustees and the street commissioner residents of the undetached territory. On May 28 the village council met, at which meeting were present all the trustees, those residing in the detached portion as well as those residing in the other portion. They adopted a resolution to fill the office’s made vacant by the act detaching the territory, .and ordered a special election for the election of new trustees and other officers. This election was called and held. All the voters in the village registered, and 41 of them voted. The officers so elected qualified, and entered ■upon the discharge of their duties. The undetached territory was, previous to the organization of the village, within the corporate limits of the townships of Hamtramck .and Greenfield. The detaching act provided that it should not affect or interfere with the assessment, levy, and • collection of taxes for the year 1891 on any of the lands • detached from the respondent, or from the other municipalities. It also provided that the board of trustees of the respondent should rearrange the school-districts within its limits. 1. It is first insisted that the detaching act repealed •the respondent’s charter, and that the territory unde [656] fcaclied reverted to the townships from which it was taken-to organize the village. There is nothing in the act to indicate any intention on the part of the Legislature to-repeal its charter. On the contrary, the act expressly contemplates its continuance. If there had been a provision in the body of the act providing for the repeal, it would have been void, because of the failure to express that object in the title. No repeal can be implied because so few inhabitants and so small a territory were left. The Constitution fixes no limit to the number of inhabitants or the extent of territory required for the organization of a village. That is entirely within the discretion of the Legislature. The fact that a majority of the officers are legislated out of office does not operate to repeal the charter. Nor will the occurrence of vacancies in a majority of the governing board of a municipal corporation, thereby destroying the power to call a special election to fill vacancies, operate as a dissolution of the-corporation. The power in such case lies dormant until the next regular election, or until the Legislature shall provide the machinery for calling an election. 1 Dill. Mun. Corp. § 166 (110); 15 Amer. & Eng. Enc. Law, 1198; Philips v. Wickham, 1 Paige, 597. In this last case the rule is concisely stated as follows: “If the corporators have the power in themselves to supply the deficiency in their body, their rights are not extinguished, but only dormant.” The power of the respondent in the present case to fill the vacancies by election cannot be doubted. 2. The statute provides that if any officer shall eeaseto be a resident of the village during his term of office the office shall be thereby vacated. How. Stat. § 2787. It would be doing violence to the natural meaning of language to hold that these offices did not become vacant [657] the moment that their incumbents ceased to be residents of the village. People v. Morrell, 21 Wend. 575. But respondent's counsel urges that these trustees, in their proceedings to call an election, were officers de facto, and he cites the following authorities: Woodside c. Wagg, 71 Me. 207; Case v. State, 69 Ind. 46; Morton v. Lee, 28 Kan. 286; Petersilea v. Stone, 119 Mass. 467; Cary v. State, 76 Ala. 78. But in these cases the acts of the officers were attacked collaterally, and the officers h'ad continued to exercise their functions after the expiration of their terms, without break, or question by the public. They would undoubtedly have been removed upon information filed against them on behalf of the state. The present case, like that of People v. Morrell, supra, is a direct proceeding to determine the right to the offices, and the validity of the action of the village council in assuming to perform the functions of office in ordering an election. An officer de facto was defined by Lord Ellenborough to be— “One who has the reputation of being the officer he assumes to be, and vet is not a good officer in point of law." The very action of the council in the present case was predicated upon the existence of vacancies created by the law, and no declaration or resolution by the council was necessary to establish the fact. The participation, therefore, of these removed trustees in the meeting of May 28 was unwarranted, and without any legal effect. 3. The statute provides that a vacancy in the office of president or of any trustee, occurring more than six months before an annual election, shall be filled by a special election. How. Stat. § 2789. So far as this case is concerned, it is unnecessary to determine whether the three remaining trustees constituted a quorum, as respond [658] ent contends. The people acted upon the validity of the notice. All the electors understood it, and all but eight voted. No one’s rights have been injuriously affected, and no one defrauded of the right to vote. The election in such cases must be held valid. -Judgment must be entered for the respondent. The other Justices'coiicurred. Footnotes [1] Act No. 324, Local Acts of 1891.