Attorney General Ex Rel. Cook v. Burhans

7 N.W.2d 370, 304 Mich. 108

• Court: Michigan Supreme Court
• Decided: December 23, 1942
• Docket: Docket No. 35, Calendar No. 42,007.
• Status: Published

Opinions

Wiest, J.

Tbe attorney general, ex rel. Franklin M. Cook, by information in tbe nature of qilo warranto, seeks ouster of defendant from tbe office of 'regent of tbe University of Michigan on tbe, ground that be has no legal right to tbe office and is a mere usurper therein and also asks tbe court to adjudicate that Franklin M. Cook is tbe regent. Defendant by answer asserts right to bold tbe office by valid election thereto. At tbe biennial State election in April, 1941, two regents of tbe University of Michigan were to be elected and defendant was a candidate. At that time he was a member of the State senate and is still such officer. The board of State canvassers found that .defendant received 410,767 votes, Alfred B. Connable, 409,672, Franklin M. Cook, relator herein, 408,438, and some lesser votes for other candidates, and certified the election of defendant and Connable to the secretary of State. Defendant filed his oath of office as regent and has since acted as such.

Defendant is not a regent of the University of Michigan, for every vote cast for him at such election was void under article 5, § 7, of the Michigan Constitution, which reads:

“No person elected a member of the legislature shall receive any civil appointment within this State or to the senate of the United States from the governor, except notaries public, or from the governor and senate, from the legislature, or any other State authority, during the term for which he is elected. All such appointments and all votes given for any person so elected for any such office or appointment shall be void.”

This provision applies to elections and its mandate must be obeyed. Fyfe v. Kent County Clerk, 149 Mich. 349.

Defendant having usurped the office of regent, in defiance of the mandate of the Constitution barring him under any circumstances from holding such office and rendering all votes cast for him void, it was proper for the attorney geheral to bring this proceeding in the nature of quo warranto to oust him from such office. The provision in the Constitution not only rendered defendant ineligible to the office but- to prevent his intrusion therein rendered every vote cast for him void. Defendant re ceived no votes capable of being recognized by law.

Defendant contends that regents- of the university are not State officers but only officers of the corporate body known as the board of regents of the university.

The university is a State institution, with obligation on the legislature to maintain it. the regents are State officers and, as the board* of regents, constitute the body corporate known as the “Regents of the University of Michigan” and have the general supervision of the University and the direction and control of all expenditures from the university funds. Const. 1908, art. 11, § 5. In People, for use of Regents of the University of Michigan, v. Brooks, 224 Mich. 45, we held the board of regents is a department of the State government created by the Constitution to perform State functions.

Defendant is a usurper in the office of regent and a writ of ouster will issue if necessary to remove him therefrom. This ouster creates a vacancy in the office of regent.

The statute, 1 Comp. Laws 1929, § 3350 (Stat. Ann. § 6.693), provides that:

“Every office shall become vacant, on the happening of either of the following events, before the expiration of the term of such office: * * *

“6. The decision of a competent tribunal, declaring void bis election or appointment.”

The Constitution of 1908, art. 16, § 5, provides:

“The legislature may provide by law the cases in which any office shall be deemed vacant and the manner of filling vacancies, where no provision is made in this Constitution.”

The Constitution also provides in art., 11, § 3:

“When a vacancy shall occur in the office of regent it shall be filled by appointment of the governor. 5 ’

The ouster of Mr. Burhans creates a vacancy to be filled by the governor. No costs.

Boyles, North, Bijtzel, Bushnell, and Sharpe, JJ., concurred with Wiest, J.