Moreland v. Millen

Hooker, J. For many years a board of public works — 383 — has existed under provisions of law in the city of Detroit, with certain prescribed duties. Previous to the legislation giving rise to this litigation, the respondents constituted ■such board, and continue to perform the functions of such office to the present time. At its present (1901) session, "the legislature has passed a law (Act No. 284, Local Acts 1901) providing for the substitution of a single officer, -called “ Superintendent of Public Works,” in the place of 4he board of three; and the relator, claiming to have been lawfully appointed by the governor, applies for a man-•damns to compel a surrender by respondents of the offices, ■i. e., the rooms, occupied by said board, and all books, records, papers, property, and money in their custody by -virtue of their former incumbency as members of said board. This relief being denied by the circuit court for ■the county of Wayne, the case is before us upon certiorari, on application of the relator. The facts are not in dispute, and the case must turn on -the total or partial validity or invalidity of the act of 1901 already mentioned. The act is entitled “An act to establish a department of public works in and for the city of Detroit, and to repeal all acts or parts of acts in conflict -therewith.” It was given immediate effect. Section 1 provides that there shall be in the municipal government of Detroit a department to be known as “The Department •of Public Works of the City of Detroit,” and the responsible head shall be an officer to be known as “ Superintendent of Public Works.” It also provides what shall be •done by the appointee to qualify. Section 2 requires the governor to make a provisional appointment to said office within five days after the time when the act shall take -effect; the appointee to hold said office until the third Tuesday in January, 1902, at which time his successor ■shall be appointed by the mayor for a term of four years, next ensuing. Should a vacancy occur before the third Tuesday in January, 1902, the office is to be filled by appointment by the mayor for the unexpired period of said provisional term, and if ■ after the third Tuesday in — 384 — January, 1908, for the unexpired portion of the full term of four years. Section 4 provides that, when a superintendent of public works shall have been appointed and qualified as provided, it shall be the duty of the present board of public works to surrender the offices occupied by it, and all books, records, papers, property, and money belonging or appertaining to said board, and thereafter the same shall bé vested in the superintendent of public works. Section 5 provides that, “from and after the appointment and qualification of a superintendent of public works under this act, all the powers, duties, and functions heretofore vested in and exercised by the board of public works, excepting as herein altered or modified, shall be vested in, and be exercised and performed by, the superintendent of public works, and he shall take the place of said board in the municipal government of the city of .Detroit.” Section 10 provides that “the board of public works of the city of Detroit, and the offices of the members of said board, are abolished from and after the appointment and qualification of the superintendent of public works provided by this act.” It is noticeable, by reference to sections 5 and 10, that the board is not abolished, nor is its authority devested, until a superintendent has been appointed and has qualified. Manifestly, this should be construed to mean legally appointed and qualified, and an unauthorized appointment would not have the effect to abolish the board; and we must conclude that the legislature designed to perpetuate the board until the superintendent should be in a situation to lawfully assume its functions. The power of the legislature to substitute a single officer for a board of three members appears to be conceded, whatever may be thought of the propriety or wisdom of making such a change in opposition to the wishes of a portion of the inhabitants of Detroit; but it is urged that the legislature has neither the power to fill the office by its own appointment, nor to authorize an appointment, except by the locality itself, or through its local officers; and it is — 385 — insisted further that, if the legislature may make or provide for a provisional appointment by the governor, this is not a provisional appointment. It is not apparent to us from the. terms of the law, or from circumstances of which we may take judicial notice, that there was a necessity for departing from the rule which gives to the city the right to select its officers for the conduct of its local affairs; but is it clear that the validity of the provisional appointment must depend upon our opportunity to know and understand the circumstances which led the legislature to determine that there was an exigency ? It has not taken us or the public into its confidence by incorporating the reasons for its action in the law. We do not know why this act could not as well have authorized appointment by the local authorities; nor do we know why its operation could not have been postponed until January, 1902. We should presume that the legislature did know of reasons which were satisfactory to the members, unless the contrary appears. I think it cannot be said that the legislature may not make or authorize a provisional appointment to a local office. It is, of course, sufficient for the purpose of this case to hold that the appointment provided for in the act under discussion exceeded the powers of the legislature, in which we are agreed. It is doubtful if we should say that an appointment is necessarily not provisional if the period of its duration is definitely fixed (see Luehrman v. Taxing Dist., 70 Tenn. 441), or that a law providing for such an appointment for a short period is not provisional when it distinctly states that it is, and contains clear evidence of an intention to commit the subject of future appointment to the local authorities, or unless it can be said to appear from the act itself, and facts of which we may take judicial notice, that there is no exigency, or that the provisional appointment extends beyond the exigency. If such provisional appointments may be ever lawfully provided for or made, the court should be as careful about overturning such — 386 — legislation as any other. It should be done only when, upon the face of the law, it is apparent that the legislature has violated constitutional rights. Doubts should be resolved in favor of the law. In the Hurlbut Case, 24 Mich. 44 (9 Am. Rep. 103), the court was able to say that the exigencies of the situation did not require a deprivation of the right of local selection for eight yeai’s, especially as the law did not purport to provide for a provisional appointment. But this law expressly treats the appointment provided for as provisional, and provides for turning the entire control over to the locality within a year, at furthest, and sooner if a vacancy shall sooner occur in the office of superintendent. Such a law should not be held invalid for the reason that the exigency is not apparent to us, but only when we can say that it is apparent that there is no exigency, or that it is not intended to provide for the exigency, or as a temporary expedient. In this case this fact does appear. Not only'do we discover no evidence of an exigency, but the act itself indicates its absence, as it provides for appointment by the mayor in case of a vacancy at any time after the appointment by the governor. We take the view that there was no exigency, and therefore that a provisional appointment was not necessary, and- the legislature exceeded its power when it provided for any provisional appointment whatever. Counsel urge that the act is, at all events, not absolutely void, because the city might have acquiesced and accepted it, and, this being so, the appointment would become valid when accepted, and the appointment made under it would be valid until attacked, when there would be a vacancy, which the mayor might at once fill, and therefore that the act may be, in the main, sustained. Incidentally we may add in this connection that it is claimed that the controller, by accepting Mr. Moreland’s bond, accepted or ratified the act and appointment, as was done in the case of Attorney General v. Lothrop, 24 Mich. 235. I think the controller’s act should not be — 387 — taken as a ratification of this proceeding, and that it was not within his power; but there is force in the other suggestion. There would be still more if Mr. Moreland had entered upon the duties of his office and obtained control of his department, thereby becoming a de facto officer. It remains to inquire whether the law may stand, with the exception of that portion authorizing the provisional appointment, or must fall as a whole. The propriety of sustaining a portion of an act, where it can be reasonably done, is elementary, and we need not go further than the opinions in the Case of Hurlbut, supra, for an enunciation of the doctrine. Christiancy, J., page 67; Cooley, J., pages 93,110. In the present case we should assume that the legislature sought to improve the method of administering the public works. It has provided for radical changes. If it be true that these changes could be as well made under a superintendent appointed by the mayor as under the appointee of a governor, and therefore a provisional appointment was unnecessary and should not be ■sustained, it does not, in my opinion, necessarily follow that the appointment of a superintendent by the governor, and not a desire to improve the department, was the main object in view. The respect due a co-ordinate branch of the government forbids such a conclusion, in the absence of clear evidence. Why should the act fall, when an appointment may soon be made by the mayor, under the very terms of the act ? It cannot be said that there would be an interregnum, during which there would be no board and the department could not act; for the law expressly ■postpones the abolition of the board until the superintendent is appointed and qualified. I am satisfied that the law may be sustained, although the appointment to fill the vacancy be deferred until the third Tuesday in January, 1902. But is it necessary that such appointment be so long deferred? It is contended that, the appointment being void, a vacancy exists, which may be filled at once, under the express terms of section 2, which provides — 388 — that “any vacancy occurring in said office, by death, resignation, or otherwise, before the third Tuesday of January, 1902, shall be filled by an appointment by the mayor.” The great weight of authority sustains this claim, holding that a newly-created office, which is not filled by the tribunal which created it, becomes vacant on the instant of its creation. 19 Am. & Eng. Enc. Law, 431, citing State v. Hyde, 121 Ind. 20 (22 N. E. 644); Collins v. State, 8 Ind. 344; Driscoll v. Jones, 1 S. Dak. 8 (44 N. W. 726); People v. Mott, 3 Cal. 502; State v. Boone County Court, 50 Mo. 317 (11 Am. Rep. 415); Rhodes v. Hampton, 101 N. C. 629 (8 S. E. 219); Walsh v. Com., 89 Pa. St. 419 (33 Am. Rep. 771); Rose v. Knox County Com’rs, 50 Me. 243; State v. Irwin, 5 Nev. 111; State v. Askew, 48 Ark. 89 (2 S. W. 349); Gormley v. Taylor, 44 Ga. 76; People v. Osborne, 7 Colo. 605 (4 Pac. 1078); State v. Johns, 3 Or. 537; Smith v. Halfacre, 6 How. (Miss.) 582; People v. Burch, 84 Mich. 415 (47 N. W. 765). A contrary view may appear to have been taken in State v. Messmore, 14 Wis. 163, and our own case of Conely v. Common Council of Detroit, 93 Mich. 446 (53 N. W. 564); but the latter case is not necessarily conclusive of the question. In that controversy the statute provided that a vacancy in a newly-created office, if caused by death or resignation, might be filled by the electors. The first incumbents were appointed by the council, and it was claimed that such appointment was invalid, for the reason that the law provided that the electors should fill the vacancy; but it was held that, there having been no previous incumbent, there was, manifestly, no such vacancy as the electors were authorized to fill. The language used unequivocally states the rule broadly that there can be no vacancy in an office until there has been an incumbent of that office; but, construed in the light of its facts, the case need not be inconsistent with the general rule, for, under the terms of the act, there could be no vacancy which the electors could fill until there had been an incumbent. We are of the — 389 — opinion that it should be so construed, rather than as intended to lay down the broad rule that its language would seem at first blush to import, and therefore that in the present case an appointment may be lawfully made at ■once by the mayor. The writ should be denied. Montgomery, C. J., and Long, J., concurred with Hooker, J.