Auditor General v. Board of Supervisors

51 N.W. 483, 89 Mich. 552, 1891 Mich. LEXIS 644

Opinions

McGrath, J.

This is an application for mandamus to compel the board of supervisors of the county of Menominee to levy the State tax apportioned to that county for the year 1891. The law provides that,—

“On or before the first day of September in each year, the Auditor General shall make and record in his office a statement showing the taxes to be raised for State purposes that year, referring to the law on which each tax is based, and the total amount of such taxes. This State tax he shall apportion among the several counties in proportion to the valuation of the taxable property therein, as determined by the last preceding State board of equalization, and shall, before the October session of the board of supervisors in each year, make out and transmit to the clerk of each county a statement of the amount of such taxes so apportioned to such county.” Act No. 195, Laws of 1889, p. 238, § 22.

Section 24 provides that—

“The board of supervisors, at their annual session in' October in each year, shall ascertain and determine the amount of money to be raised for county purposes, and shall apportion such amount, and also the amount of the State tax and indebtedness of the county to the State, among the several townships in the county, in proportion to the valuation of the taxable property therein, real and personal, as determined by them for that year, which determination and apportionment shall be entered at large on their records.” Id. p. 239.

Section 26-provides that—

“Each supervisor shall proceed to assess the taxes apportioned to his township according and in proportion to the valuations entered by the board of review in the assessment roll of the township of the year: Provided that, if the board of review make no such entry, then on the valuation therein as entered by the supervisor.” Id. p. 240.

At the last session of the Legislature an act was passed entitled “An act to organize the county of Dickinson.” Act No. 89, Laws of 1891. This act was approved May 21, 1891, but was not given immediate effect, and became a law October 2, 1891. Dickinson county was formed from portions of Iron, Marquette, and Menominee counties. Inasmuch as the act had not taken effect on the 1st day of September, 1891, and the act makes no provision for the emergency, the Auditor General apportioned the State taxes to Iron, Marquette, and Menominee counties, without reference to the formation of Dickinson county, and this proceeding is to enforce the apportionment by the board of supervisors of Menominee county of the amount of the State tax so apportioned by the Auditor General to that county.

The answer sets up that the act organizing the county of Dickinson is not a valid enactment, for the reason:

First. That a majority of the supervisors of said detached townships and cities have assembled under color of said act, and organized as a board of supervisors of the so-called “County of Dickinson;” that none of said supervisors attended the meetings of respondent in October, 1891, and none of them now recognize any relation whatever to Menominee county; and that this respondent is and will be unable to give any direction or to exercise any efficient control over the levy, collection, and return of taxes within said townships and cities, or to levy any part of the State tax for the year 1891, apportioned to Menominee county, unless said alleged act shall by this Court be déclared to be null and void and inoperative.

Second. That such alleged Act No. 89 of the Public Acts of 1891 was not passed by the Senate, and did not at any time receive the vote of the majority of the members of the Senate elect, but only received the votes of 16 members thereof; that the bill for said alleged act originated in the House, was there passed, and was transmitted to the Senate; that on the 20th day of May, 1891, as appears from the Senate Journal, said bill came on to be considered in the Senate, and, the question being upon its passage, on a call of the yeas and nays the name of one Challes A. Fridlender, who occupied a seat in the Senate, but was not a member of that body, was called, and his vote was counted and recorded in favor of the passage of said bill; that, excluding the vote of said Fridlender, the Senate Journal exhibits 16 votes in favor of the passage of said bill, and no more.

On the 7th day of January, A. D. 1891, in conformity to the Constitution, the Senate convened in the Senate Chamber at Lansing. Thereupon a list of members of the Senate elect for the years 1891 and 1892, duly certified by the Secretary of State, was read by the secretary of the last Senate. Included in such list was the name of Benjamin C. Morse, as Senator-elect for the 26th senatorial district. It appeared that all of said Senators were then and there present; and each and all of said Senators, including said Benjamin 0. Morse, thereupon took and subscribed the constitutional oath of office, and entered upon the discharge of their duties as Senators. On the same day the Senate was duly organized by the election of officers, and that fact was announced to the House. The Senate, as then constituted, continued until the 24th day of February, 1891.

That on said last-named day, when 17 members of said Senate were absent from the Senate Chamber, and while only 15 Senators, being less than a quorum of the duly-elected Senators, were present, the president of the Senate, with the advice and consent of 14 of these 15 Senators, and in the absence of a majority of the Senators, knowingly, unlawfully, fraudulently, and in violation of the Constitution of the State and the rules of the Senate, caused the secretary to enter upon what purported to be the journal of the Senate, but which was not such in fact, the pretended adoption of a resolution, declaring the seat of said Benjamin C. Morse vacant, and another resolution declaring Charles A. Fridlender to be duly elected Senator for said district; that only the aforesaid 15 Senators were present, and only 14 of them voted for such resolution; that the vote was not taken by yeas and nays, although Senator Taylor demanded the yeas and nays be taken and recorded, and, if the ayes and nays then had been taken and recorded, it would have appeared that there was not a quorum of the Senate present; that said resolutions were never in fact adopted by the Senate; that the president of the Senate and said 14 Senators fraudulently and corruptly conspired and caused what purported- to be the journal of the Senate to be so falsely and fraudulently made and kept as to show that suet pretended resolutions had been adopted. On the following day, to wit, the 25th day of February, 1891, the said Charles A. Fridlender. intruded himself into the seat of said Benjamin C. Morse, the Senator from the 26th senatorial district; whereupon the following protest, signed by the said 17 Senators, including the said George B. Horton and the said Benjamin C. Morse therein named, and by Senator Robert L. Taylor, who was present in said Senate Chamber while .the proceedings complained of were had, was filed and entered at large upon the journal of said Senate:

“The undersigned, acting under section 10, art. 4, of the Constitution, hereby solemnly protest against the entire action of the Senate appearing on the journal as having been transacted after the recess in the session of February 24th inst.

“They protest on the ground that the report presented by Senator Park, and • purporting to be the report of the select committee on the contest of James H. Morrow for the seat of George B. Horton, was not the action or by the authority of the said committee.

“They protest on the ground that the report presented by Senators Crocker and Gilbert on the claim of Charles A. Fridlender' for the seat occupied by Hon. Benjamin C. Morse was not by the action or authority of the select committee appointed to investigate the said claim.

“ They protest on the ground that this summary determination of the right of two Senators to their seats in this body before the facts in the cases have been considered by the committees appointed to investigate them is an outrage and wrong upon the Senators concerned, upon their constituents, and upon the Senate.

“They protest against the seating of Charles A. Fridlender in the place of Benjamin C. Morse, on the ground that at the time the resolutions vacating the seat of Benjamin C. Morse, and declaring Charles A. Fridlender entitled to the said seat, were acted upon, there was not a quorum of the Senate present.”

Attached to said protest is the affidavit of 16 of said Senators, including the said Benjamin C. Morse, who severally swear:

“That the official journal of the Senate of Tuesday, February 24, 1891, records that the following resolutions were adopted by the Senate, viz.:

“ ‘Leave being asked, and unanimous consent being granted, Mr. Crocker offered the following resolution:

“ ‘ Whereas, It appears that great irregularities and frauds have .been committed in the township of Cummins, Oscoda county, and in the township of Harrisville, Alcona county, in votes that were counted for Benjamin C. Morse, by reason of which he was declared elected, without which said votes said Morse was not elected; therefore—

“ ‘Resolved, that the entire vote of said two townships of Cummins and Harrisville be declared null and void.

“ ‘Resolved, further, that the seat of the said Benjamin C. Morse in this Senate, as Senator from the 26th Senatorial district of the State of Michigan, be, and the same is hereby, declared vacant.

“ ‘On motion of Mr. Crocker the resolution was adopted.

“ ‘Leave being asked, and unanimous consent being granted, Mr. Crocker offered the following resolution:

“ ‘Whereas, as the entire vote of the people in the township of Cummins, Oscoda county, and in the township of Harrisville, in Alcona county, was illegally cast by reason of gross frauds and irregularities in said townships, and by reason of which the board of canvassers declared that Benjamin C. Morse was duly elected Senator for the 26th senatorial district of this State, when, as a matter of fact, Charles A. Eridlender should have been declared elected; therefore—

“ ‘Resolved, that the said Charles A. Fridlender be, and he is hereby, declared duly elected Senator for the 26th Senatorial district of Michigan, and entitled to the seat recently made vacant by the removal of Benjamin C. Morse.’

“That the entire number of Senators is 82, of which number 17 members are necessary to constitute a quorum for the transaction of any business whatever; that, at the time when said journal records said resolution to have been adopted,.the above named Senators, 16 in number, each for himself swears that he was not present in the Senate chamber, and did not in anyway participate in making a quorum of said Senate, whereby the transaction of any business could be in order or legally transacted; that, at the time when said resolution purports to have been adopted by said Senate, there was not a quorum of the Senate present, and no business could have been transacted; that no such resolutions, as above set forth, were adopted by the Senate at any time on said 24th day of February, A. D. 1891, when a quorum of the Senate were present; that said resolutions were not adopted by the Senate, and that said journal of said 24th day of February is entirely false and incorrect, in as far as it purports to record that said resolutions were adopted.”

The affidavit of said Robert L. Taylor is also appended to said protest, setting forth that he was present, during the said session' of said Senate, on the 24th day of February, 1891:

“That, at the time when said resolutions purport to have been adopted, the following Senators only were present, viz.: This affiant and Messrs. Beers, Boughner, Crocker, Doran, G-ilbért, Holcomb, McCormick, Miller, Mugford, Park, Porter, Sharp, Smith, Wisner, — 15 in all; that no other Senators were present, and that a quorum of said body consists of 17 members; that a less number than a quorum cannot transact any business; that no quorum was present when said resolutions purport to have been adopted; that at the time when said resolutions were pending before the Senate there was not a quorum of that body present; that this affiant arose in the Senate Chamber, and called the attention of the president to the fact that there was not a quorum present; that any member of the Senate is entitled to demand the yeas and nays on any pending question, as provided by rule No. 41 of the Senate Rules; that before said resolutions were put to vote, and while they .were pending, affiant demanded -that the yeas and nays be taken and recorded upon the journal; that the president of the Senate neglected and refused to comply with said request; that, if the yeas and nays had been recorded as demanded by this affiant, the result would have revealed' the fact that there was not a quorum of the Senate present.

“This defendant further says that said journal of said 24th day of February is incorrect and false, in that it does not show that this affiant raised the question that there was no quorum of the Senate present, and demanded the yeas and nays, when said resolutions were pending as hereinbefore .set forth, but, on the contrary, entirely suppresses said facts.”

Respondent, further .answering, says:

“That it is advised that said Act No. 89, even if enacted in compliance with the forms of law, is unconstitutional and void, for the reason that there is no statute in virtue of which any portion of the State taxes for the year 1891 apportioned to Menominee county can be levied upon the territory detached therefrom since such apportionment, and made a part of Dickinson county, and said act makes no provision therefor; and for the further reason that surveyed township 39 north, of range 28 west, which was thereby detached from the township of Meyer, one of the townships of Menominee county, and attached to the township of Breen, and which is borne upon the assessment roll of the said township of Meyer for the year 1891, and is assessed thereon at the aggregate sum of §50,000 and upwards, will wholly escape taxation for said year. Said act, for the reasons hereinbefore stated, unless the same shall be declared unconstitutional and void, will prevent . this respondent from levying any portion of said State taxes upon the territory so detached.

“And this respondent, further answering, denies that the State taxes so apportioned to the county of Menominee, as aforesaid, are a debt against said' county; and further denies that the relation of debtor and creditor arises between the county and State, except in respect to such and so much of such taxes as shall be collected, and not paid over according to law.

“ And this respondent, admitting that it can find no-warrant or authority for directing the levy of any portion of said State taxes,so apportioned to Menominee county, or less than the whole thereof, avers that to levy the-whole thereof on so much of the territory of said county as is exclusive of the territory sought to be detached' by said alleged act, and included within the so-called county of Dickinson, would violate the constitutional rules of equality, would be productive of great wrong and injustice to the tax-payer, and impose upon him a. burden which he should not be required to bear. And this respondent further avers that it owes no duty to the-State to make such levy upon any less extent of territory than that upon which the apportionment was based.”

The Attorney General asked that an issue be framed upon the question as to the presence of a quorum of the Senate on the 24th day of February, and at the time of the seating of Morrow and Fridlender, but we held that this Court would be controlled by what appeared in the journal.

According to the journal of the 24th, a quorum was present at the opening of the session of the Senate. Ten of the Senators whose names are appended to the protest were absent without leave. Seven of the protesting Senators were present. A large amount of business was transacted. Six of these seven were active in the business of the session, presenting petitions, making motions, giving notice of the introduction of bills, and introducing bills. Senate bills No. 20 and 87 were read the third time, and passed. Upon roll-call, 20 votes were cast for each, six of which were cast by protesting Senators. After a recess was had, Senator Park, chairman of the select committee appointed to act upon the petition and protest of Morrow against the right of Horton to a seat, reported sustaining Morrow’s- claim to a seat, and unseating Horton. A vote by yeas and nays was had upon a motion to lay said report upon the table. Twenty-one Senators voted upon said motion, 14 of whom voted “ No,” and seven of whom voted “Aye.” Seven of the votes were' cast by protesting Senators. Upon a motion to adopt the report the yeas and nays were called for, and 20 votes were- cast, — 14 in favor of the motion and 6 against. Six of the votes were cast by protesting Senators. Upon motion, the resolution submitted in the report was then adopted, but no roll-call was had thereon, the journal record being that on said motion “the resolution was adopted.” Senator Crocker then presented a report seating Fridlender and unseating Morse. The previous question was ordered, on a motion to adopt said report, by a vote of 14 to 6, on a call of the roll. The said report was then adopted by a vote of 14 to 7 on a call of the yeas and nays. Seven of the votes so cast were cast by protesting Senators. On motion, a resolution was adopted unseating Morse, and seating said Fridlender; and a roll-call was not had upon said vote, the record being that “the resolution was adopted.” The journal of the 25th shows that at the opening of the_ session Messrs. Morrow and Fridlender were sworn in; that thereupon the said protest was filed; that. On motion, the said protest was laid upon the table upon a call of the roll, 16 Senators voted in favor of such motion, and 16 against, the president giving the casting vote.

The return here does not negative any part of this record, except that it now sets up that at the time the last vote was had there was not a quorum present. It practically concedes that a session of the Senate was had upon the 24th; that a quorum was present; that a large amount of business was transacted; that the unseating of Horton, and the seating of Morrow, was regular; that the adoption of the report seating Fridlender, and unseating Morse, was regular; and that a quorum of the Senate continued to be present during all this time. The vote had upon the resolutions in the Fridlender case appears to have followed immediately after the roll-call upon the adoption of the report, as no other business intervened. There was no recess taken, and no Senator asked to be excused. Senate Eule 11 expressly provides that “ no member shall absent himself from the Senate without leave first obtained.” Must it not be presumed in such case that the quorum continued to be present, and must not that presumption be conclusive? Suppose that, at that point in the proceedings of the Senate, a few members sought to break up a quorum by retiring from the Senate Chamber. The validity or invalidity of the action taken would depend upon conflicting testimony, as to whether a sufficient number to break the quorum had actually reached the cloak or committee rooms before the vote was taken. The presumption as to the correctness of the journal in this case is supplemented by the further presumption as to the continuance of a quorum once ascertained and recorded, and that within a few moments, it may be a few seconds, of the time when the vote was had which is now attacked.

The Constitution provides that “the yeas and nays of the members of either house, on any question, shall be entered on the journal at the request of one-fifth of the members elected.” It further provides that, in case a bill or concurrent resolution is passed over the Governor’s veto, the vote shall be had by yeas and nays, and the names of the members voting shall be entered on the journal. Again, it provides that “no bill or joint resolution shall become a law without the concurrence of a majority of all the members elected to each house,” and that, “on the final passage of all bills, the vote shall be by yeas and nays, and entered on the journal.” It provides that “all votes on nominations to the Senate shall be taken by yeas and nays, and published with the journal of its proceedings.” There are no other constitutional provisions respecting the call of the roll of either house, or the recording of the vote. Other matters may be determined by viva voce vote, and by a majority of a quorum, and the vote had need not be entered upon the journal, unless requested by one-fifth of the members elected.

But conceding that, between these two votes had, a sufficient number had gotten out of the Senate Chamber to break a quorum, the fact still remains that on the next day the protest was laid upon the table by the Senate. Morrow and Fridlender were admitted to seats, which they continued to occupy for four months, and until the close of the session, exercising and discharging, without opposition, all the functions of Senators. But nine of the 200 public acts which were passed at that session, and probably a like proportion of the local acts, had been approved at the date upon which the action complained of was had. If the votes of these two Senators cannot be counted for the act in question, and the same is invalid for that reason, then the majprity of the acts cf the Legislature of 1891 (all which depend upon the votes of these Senators) must fall with it. The act in question was passed three months after the admission of these two members. It is conceded that at the time of its passage an authoritative Legislature existed, and that a constitutional quorum was present. The Legislature during the period that intervened between the 24th day of February and the passage of this act had taken no action in the direction of the unseating of these men, but instead had met and voted and treated with them as authorized and qualified Senators. The Legislature, as a body, had an undoubted right to do all that the alleged minority had undertaken to do.

The Constitution expressly gives to each branch of the Legislature the right to judge of the qualifications, elections, and returns of its members, and this Court has determined that to be an exclusive right. People v. Mahaney, 13 Mich. 481. In that case, Justice Cooley, speaking for the Court, says:

“Although the courts must take judicial notice of legislative action, so far as it affects the validity of statutes, they' have no such power as respects the facts attending the election of the several members; and it remains to be seen whether we can notice those facts, even after they have teen spread upon the legislative journals, and make them the basis of judgments, the retrospective effect of which would be to unseat members of a body long since adjourned, and to annul its action by declaring the votes of such members illegal and invalid. * *

While the Constitution has conferred the general judicial power of the State upon the courts and officers specified, there are certain powers of a judicial nature which, by the same instrument, are expressly conferred upon other bodies or officers; and among them is the power to judge of the qualifications, elections, and returns of members of the Legislature. The terms employed clearly show that each house, in deciding, acts in a judicial capacity, and there is no clause in the Constitution which empowers this or’any other court to review their action. The ‘general superintending control ’ which the Supreme Court possesses, under section 3 of article 6 of the Constitution, ‘over all inferior courts/ does not extend to the judicial action of the legislative houses in the cases where it has been deemed necessary to confer judicial powers upon them with a view to enable them to perfect their organization and perform their legislative duties. The houses are not ‘inferior courts/ in the sense of the Constitution, but, as legislative organizations, are vested with certain powers of final decision, for reasons which are clearly imperative. * * * The evils of allowing the courts a supervisory power over the decisions of the houses upon the admission of members’ are so great and so obvious that it is not surprising that the framers of the Constitution refrained from conferring the power. The supervision could not ordinarily be exercised during the session of the legislative body; and to correct the decisions afterwards, by annulling the laws passed, would only be to substitute a great public evil for that which might have been a wrong to an individual member, and to the district which elected him, but which could seldom affect the State at large. It can make no difference that in this case, according to the pleas, the question passed upon by the House was purely a question of law. The question of the legal election of a member is usually a question compounded of law and fact, and the House must necessarily pass upon both. If we have the power to review the decision in one case, we have in all. If we can correct their erroneous construction of a law, we have the same power to correct any erroneous decision upon returns, qualifications, or majorities. It is sufficient for us to say that the Constitution has not conferred upon us this juifisdietion; and, whether the decision made is right or wrong, we shall leave it where it has been left by the fundamental law of the State.”

The rule is well established by our own decisions that where legislative bodies are made the judges of the election and qualifications of their own members, and are vested with the power to determine 'contested elections, their action is final, and not subject to review by this Court. People v. Goodwin, 22 Mich. 496; People v. Fitz Gerald, 41 Id. 2; Alter v. Simpson, 46 Id. 138; Doran v. DeLong, 48 Id. 552; People v. Harshaw, 60 Id. 200; Weston v. Probate Judge, 69 Id. 600; Naumann v. Board of Canvassers, 73 Id. 252.

In People v. Goodwin the Court intimated very strongly that the Legislature could not be compelled to enter upon an inquiry, even as to the election of a circuit judge.

In People v. FitzGerald relator claimed that he had been ousted without an opportunity to be heard, and the Court say:

“No doubt fairness requires that the rights of parties in such cases shall not be disposed of without giving them a chance to be heard; but- although the course taken, if the papers are true, was very censurable, we cannot review it.”

The following rules are laid down by McCrary on Elections:

“Jurisdiction to determine the right of a person exercising the office of governor may be vested in the legislature, and, when so vested exclusively, courts have no jurisdiction in the premises.” McCrary, § 334.

“Courts will not undertake to decide upon the right of a party to hold a seat in the legislature where, by the •constitution, each house is made the judge of the election •and qualifications of its own members.” Id. § 350.

“When the statute of a state provides a mode for contesting an election, that mode must be followed.” Id. § 401.

“Courts will go no further than to inquire as to the legal status and authority of the body as a whole.” Id. § 595.

The Constitution (section 6, art. 4) expressly provides that—

“No person holding any office under the United States or this State, or any county office, except notaries public, officers of the militia, and officers elected by townships, shall be eligible to or have a seat in either house of the Legislature, and all votes given for any such person shall be void.”

Yet in the collection of legislative decisions compiled ¿by that most officient officer, Daniel L. Crossman, for so ;many years cletk of the House, I find that in 1855—

“The Senate refused to unseat a member who was ^holding a county office at the time of his election, the term of which expired on the same day on which his term as Senator began. Graves v. Hussey, S. J. 1855, p. 154. The Senate also refused to question, on the same ground, the right of -other Senators to their seats. Id. p. 69. See, also, the minority report, p. 76.

“The right of a representative to hold his seat was challenged on the same ground; of another, on the ground of his being at the - time of his election a contractor with the State for the improvement of the Muskegon river, under an act passed at a previous session, at which time also he was a member; of a third, on the ground that he was receiving an annual salary of $750 as recorder or assistant recorder of Detroit, and paid irom the State treasury. No further notice was taken of the •challenges than to refer them to the committee on elections. H. J. 1859, p. 420.

“The House, in 1870, after exhaustive majority and minority reports, indefinitely postponed the further con•sideration of the eligibility of two members who held the positions of assistant assessor and assistant marshal under ■the United States. H. J. 1870, pp. 84, 89, 92.

“The House having once passed upon a contested election case, refused to revoke and set aside its determination, although the Supreme Court had meanwhile declared unconstitutional the statute upon which the determination of the House had been based. H. J. 1865, p. 1056. The same position was taken in the Senate (S. J. p. 594), and that body also refused to adopt a resolution declaring it ‘the sense of the Senate that no Senator, the right to whose seat is involved in the resolutions reported from the committee on privileges and elections, is entitled to vote upon the question of the adoption of either until the question of the right of each to his seat shall have been decided by the Senate/'” Id. 595.

The compiler has reference to the case of People v. Blodgett, 13 Mich. 127. The compiler adds:

“This is a constitutional question that has often been discussed in both houses. Why a man with a post-office or county office should be ineligible is a question that has never yet been answered to the satisfaction of either house; and from the action had in several cases, as well as from the lack of action every session, that prohibition in the Constitution may be regarded obsolete. The Constitution itself overrides the prohibition by saying: ‘Each house shall judge of the qualifications, elections, and returns of its members/”

“ By the Constitution, each house is the only judge of its own membership. There is no court of appeal from its decisions.” Manual 1891, pp. 134, 135.

I cannot agree with the proposition that the constitutional provision may be regarded as obsolete; neither do I approve of the decisions reported. They are instances of “might,” rather than “right.” The difficulty lies in the absence of a remedy for these evils. The determination of every contested election case involves questions of fact, of which the Constitution makes the Legislature the sole judge. The exercise by the Legislature of this right to judge of the qualifications, etc., of its members, does not depend upon a contest. The Legislature may itself invoke the power, and proceed in the absence of any contestant’s claim to a seat.

Sixteen of the protesting Senators continued to act with the Legislature and with these two members. They had an unquestioned right to set the machinery in motion, and the Legislature had an undoubted right to act in the premises. The question is ñot whether a movement on the part of the 16 would have been successful, or whether the sole remedy given is adequate, but whether the Legislature, having the power, acted. That body had not only the power, but the sole and exclusive power, not only to act, but to refrain, and the failure to act is as conclusive upon all the world as affirmative action would have been. The case does not differ from any other case where a member has been illegally elected or illegally admitted, and the Legislature has failed to take action, nor from any case where a certificate has been fraudulently or improperly issued, and the Legislature has refused to act.

It is urged that quo warranto will not lie to call in question the authority to exercise the functions of a Senator; hence the present is to be treated as a direct attack, for the reason that no other form of attack can be made. But quo warranto does not lie simply because the public has not committed its interests in this respect to any particular public officer, but to the Legislature. The remedy existed, but in another form. The machinery was not to be set in motion by the Attorney General, in the courts, but by the Legislature, in that body. The authority of the Attorney General to proceed in the courts did not exist, but. the power of the Legislature, not only to take the initiative, but to determine that matter, was undoubted. Suppose that, in a case where quo warranto did lie, none had issued, would it be contended that the acts of the officer against whom it might have issued were invalid? In the present case, Morrow and Fridlender did not continue to hold by “acquiescence” alone, in the ordinary acceptation of that term, but by the permission and consent of the body which was clothed with the exclusive authority to determine their right to exercise the functions of the office. Acquiescence, under such circumstances, has all the force and quality of ratification or confirmation. See Attorney General v. Lothrop, 24 Mich. 235.

There is another well-settled rule of law upon which the validity of the act in question may be safely rested, viz., that—

“The validity of an act done by one in a public office or station is not, as a rule, to be tried by the title of the person to that office.”

It is well settled that the lawful acts of an officer cle facto, so far as the rights of third persons are concerned, are, if ’done within the scope and by the apparent authority of the office, as valid and binding as if he were the officer legally elected and qualified for the office, and in full possession of it, and such acts cannot be collaterally attacked. Mechem, Pub. Off. 328; Petersilea v. Stone, 119 Mass. 465; Sheehan’s Case, 122 Id. 445; In re Kendall, 85 N. Y. 302; Brown v. O’Connell, 36 Conn. 432; State v. Carroll, 38 Id. 449; Soudant v. Wadhams, 46 Id. 218; Railway Co. v. Langlade Co., 56 Wis. 614 (14 N. W. Rep. 844); Cole v. Black River Falls, 57 Id. 110 (14 N. W. Rep. 906); Yorty v. Paine, 62 Id. 154 (22 N. W. Rep. 137); Hooper v. Goodwin, 48 Me. 80; Woodside v. Wagg, 71 Id. 207; O’Ferrall v. Colby, 2 Minn. 180 (Gil. 148); Case v. State, 69 Ind. 46; Gunn v. Tackett, 67 Ga. 726;“ State v. Dierberger, 90 Mo. 369 (2 S. W. Rep. 286); Threadgill v. Railway Co., 73 N. C. 178; McCraw v. Williams, 33 Grat. 510; Hamlin v. Kassafer, 15 Or. 456 (15 Pac. Rep. 778); Farrier v. State (N. J. Err. & App.), 7 Atl. Rep. 881; Ex parte Strang, 21 Ohio St. 610; Carleton v. People, 10 Mich. 250; Board of Auditors v. Benoit, 20 Id. 176; Jhons v. People, 25 Id. 500; Stockle v. Silsbee, 41 Id. 615; Carlisle v. City of Saginaw, 84 Id. 134.

In the case of Board of Auditors v. Benoit, 20 Mich. 176, 181, Chief Justice Campbell says:

“Nothing but actual incumbency can make a person a legal officer', however much he may be entitled to obtain the office. And, certainly, when a person stands of record as ousted, and demanding the ouster of another, who he alleges to be wrongfully in office, as a means of getting his own rights, it could not be claimed that the acts of the relator would be, in any sense, official acts. The only valid 'proceedings in the name of office must be those of the actual incumbent; and his acts are valid to all purposes, except, possibly, his own protection from liability as a wrong-doer.”

Mr. Justice Cooley in the same case, at page 187, says:

“The public, who have an interest in the continuous discharge of official duty, and whose necessities cannot wait the slow process of a litigation to try the title, have a right to treat as valid the official acts of the incumbent, with whom alone, under the circumstances, they can transact business. This rule is an obvious and necessary one for the protection of organized society; for, as was said in Weeks v. Ellis, 2 Barb. 325, the affairs of society cannot be carried on unless confidence were reposed in the official acts of persons de facto in office. And private individuals, in controversies between themselves, are not permitted to question the acts of an officer de facto, for the further reason that to do so would be to raise and determine the title to his office in a controversy to which he was not a party and in which he could not be heard. And this, says Parsons, C. J., ‘ would be judging a man unheard, contrary to natural equity, and the policy of the law. From considerations like these has arisen, the distinction between the holding of an office de facto and de jure.’ Fowler v. Bebee, 9 Mass. 234. In Bucknam v. Ruggles, 15 Mass. 182, the rule and the reason for it are stated thus: ‘It is an established principle of law that the acts of an officer, having color of title, in the exercise of the ordinary functions of his office, are valid in respect to the rights of third persons who may be interested in such acts. The adoption of such a rule is necessary to prevent a failure of justice, and the great public mischief which might otherwise be justly apprehended. Besides, the officer’s title ought not to be determined in a collateral way,”’ — citing a number of cases.

It may be said, however, that a mere usurper cannot be said to be an officer de facto; yet one who at first was but -a mere usurper may, by acquiescence, become an officer de facto.

“Although the officer de facto may not be required to be in by color of election or appointment, yet he must, to distinguish him from a mere intruder or usurper be in by some color of right; and, in harmony with the rule last quoted, it has been said ‘ that the color of right which constitutes one an officer de facto may consist in an election or appointment, or in holding over after the expiration of one’s term, or acquiescence by the public in the acts of such officer for such a length of time as to raise the presumption of colorable right by election or appointment.’” Mechem, Pub. Off. § 319.

In Hamlin v. Kassafer, 15 Or. 456, the court say:

“It may be said, then, that the color of right which constitutes one an officer de facto may consist in an election or appointment, or in holding over after the expiration of one’s term, or acquiescence by the public in the acts of such officer for such a length of time as to raise the presumption of colorable right by election or appointment. Prom considerations of public policy, the law recognizes the official acts of such officers as lawful to a certain extent. It will not allow them to be questioned collaterally, and they are valid as to the public, and as to third persons who have an interest in the thing done. Within the scope of his authority, the acts of an officer de jure are valid for all purposes. Not so with an officer de facto; his acts are only recognized in the law to be valid and effectual so far as they affect the public and third persons. As to these, his acts are as valid as if he were an officer de jure. The reason of the rule is apparent. It would be as unjust as unreasonable to require every individual doing business with such officer to investigate and determine, at his peril, the title of such officer.

“ ‘ Third persons, from the nature of the case, cannot always investigate the right of one assuming to hold an important office, even so far as to say that he has color of title to it by virtue of some appointment or election. If they see him publicly exercising its authority, if they ascertain that this is generally acquiesced in, they are entitled to treat him as such officer, and, if they employ him as such, should not be subjected to the danger of having his acts collaterally called into question.’ Besides, it is against the policy of the law to allow a suit between private individuals to determine the title to an office. Such judgment could only bind the parties, and would be of no effect as against the public,” — citing a number of cases.

In State v. Carroll, 38 Conn. 449, an “officer de facto” is defined as—

“One whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so' far as they involve the interests of the public and third persons, where the duties of the office were exercised—

“First. Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be.

“Second. Under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like.

“Third. Under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public.

“Fourth. Under color of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such.”

In Ex parte Strang, 21 Ohio St. 610, the court say:

“The true doctrine seems to be that it is sufficient if the officer holds the office under some power having color of authority to appoint; and that a statute, though it should be found repugnant to the constitution, will give such color.”

Railway Co. v. Langlade Co., 56 Wis. 614, held that although the officers were elective and not appointive, and the appointments made by the governor were invalid, yet the offices were properly created and existed de jurej and the persons appointed thereto, having entered upon the duties of such offices, were officers de facto, and their official action could not be attacked collaterally.

Cole v. Black River Falls, 57 Wis. 110, held that, if the public offices exist de jure, all persons who are in the exercise of the duties of such offices by color of law, even though such law be afterwards declared to be unconstitutional and void, are officers de facto, and their acts are valid.

In Woodside v. Wagg, 71 Me. 207, the law provided that the office of judge should be vacated by the incumbent taking a seat as a member of the legislature, and his authority as judge de jure would cease; but the court held that if he continued peaceably to act under his commission, and to exercise the functions of a judge, with the usual insigna of his office, he would be an officer de facto, and, with reference to the public and third persons, his acts, including judgments rendered by him in cases within the jurisdiction of the court, would be valid.

In Com. v. McCombs, 56 Penn. St. 436, the court say:

“When he who is exercising the duty of an officer is acting under the apparent authority of an act of the assembly, his title to the office is not to be assailed collaterally. An act of the assembly, even if it be [after-wards declared] unconstitutional, is sufficient to give color of title, and an officer acting under it is an officer de facto.”

This was not an illegitimate convocation of usurpers, but a regular session of the Senate, at which a large amount of business had been transacted. A vote had been taken which revealed the presence of a constitutional quorum. Immediately thereafter a viva voce vote was taken, which is now attacked. If this vote may be questioned, then any vote had without a call of the roll of any legislative body is subject to attack.

Fridlender and Morrow could not be regarded as usurpers after a constitutional Legislature had assembled and acquiesced in the exercise by them of the functions of the office of Senator. The validity of their acts does not hinge upon any color of right upon which they were admitted, nor upon the manner or legality of their admission, but depends upon the presumption of right created by the acquiescence of the Legislature, and existing when the act was passed. The Legislature, having the sole and exclusive power to declare that they were not de jure officers, did not so declare, but, on the contrary, received them, and treated and acted with them, as members de jure of that body; and it is not in the power of the courts to say that their acts are not at least entitled to rank with those of officers de facto.

Nor did the filing of this protest change the character or effect of the previous day's proceeding or of that day's journal. As early as 1849 the house decided that—

' “A paper which is not confined to a discussion of the action objected to, but contains reflections on the House, is not a ‘protest,' within the meaning of the Constitution."' Chamberlain's Appeal, H. J. 1849, p. 411.

Commenting on this decision, the compiler says:

“Webster says a ‘protest’ is a solemn declaration of opinion. Undoubtedly the framers of the Constitution, when they so freely granted eveiy member the right of protest of record, intended just that, and nothing more." Manual 1891, p. 140.

The constitutional provision is that—

“Any member of either house may dissent from and protest against any act, proceeding, or resolution which he may deem injurious to any person or the public, and have the reason of his dissent entered on the journal.”

This is a personal privilege merely. It has no force as legislative action, and cannot be resorted to to nullify a legislative act. It has no force as a statement of fact contradicting the journal. It certainly was not intended that the protest of a member should have greater weight against legislative action than his vote' would have. The Senate, on the morning of' the 25th, had the power to correct and to expunge such portions of the journals as they deemed improperly included. The minority could not, by simply filing a protest, nullify the approval of the journal. The protest was laid upon the table and printed in the journal. It is there, not by virtue of any action of the Legislature, but by reason of the constitutional provision extending to members that privilege. It has no more force than a report, or preamble and resolution, offered and laid upon the table, although signed by two-thirds of the members of the Senate, and printed in the journal. The facts set forth in the report or in the preamble do not affect legislative action, nor ’ can they be used to contradict the journal. The vote had, laying the report or resolution upon the table, would be the test of the legislative finding, and not the statement of facts set forth in the report or resolution. The question of the power ot‘ this Court to notice facts, even after they have been spread upon the legislative journals, and make them the basis of judgments, was fully discussed by Justice Cooley in People v. Mahaney, already referred to.

The act must therefore be held valid.

The only other question raised is that relating to the apportionment of the taxes by the Auditor General. The board of supervisors of Menominee county, as it now exists, cannot be compelled to levy upon that county the State taxes upon the basis of the aggregate valuation fixed upon that county prior to the organization of Dickinson county; but that equalized valuation is capable of severance so as to enable the Auditor General to apportion, and the several boards of supervisors of all the counties affected by the formation of the new county to properly distribute, the State tax, according to the valuation of the several townships, or even parts of townships, affected, and thus do justice to all concerned. The Auditor General should have anticipated the existence of Dickinson county, and made his apportionment accordingly, and time is not so material as to prevent him from doing that even now, and. this course is suggested to the relator.

The mandamus will therefore be denied.