Board of Road Com'rs v. Board of Auditors

111 N.W. 901, 148 Mich. 255, 1907 Mich. LEXIS 518

• Court: Michigan Supreme Court
• Decided: April 30, 1907
• Docket: Calendar No. 22,122
• Status: Published

Opinion

Ostrander, J.

(after stating the facts). The case has been so fully stated in order that the scope of the attack which is made upon the act may be seen, and the points which we do not consider, as well as those which we consider, may be understood. We cannot avoid a consideration of the validity of the act to the point where we conclude that reason is shown for granting Or for denying the relief which is asked for. Beyond that point, we are not required to go.

It will be noticed that the constitutional amendment of 1893, like the one of 1899, while in some respects limiting the powers of the legislature, is not operative without legislative action. Unlike the last, the first amendment directs that county roads shall be under the control of a board of commissioners not exceeding five in number, who shall be elected by the people. The legislation which followed the first amendment was in conformity therewith. The system evolved by the legislature was a uniform one, with certain unimportant exceptions applicable to Wayne county only. With the adoption of the constitutional amendment of 1899, the act underwent considerable changes; the most of them, of importance, affecting Wayne county only. The legislature did not provide for ‘ ‘ one or more county road commissioners, to be elected by the people, or appointed,” but provided that in all counties excepting Wayne they should be elected by the people, and later, and in 1905, that in Marquette county they should be appointed by the board of supervisors. The powers confided by the legislature to county commissioners, in a system which required such officers to be, in all counties, elected by the people, were not modified after the adoption of the last amendment to the Constitution, and are substantially the same in counties where the commissioners are elected, and in Wayne county where they are appointed. Among the powers confided to them is the extraordinary one of taxation.

An office is created before it is occupied, or executed, and an appointment to a particular office is an appointment to exercise the powers of the office. The name given to these officers, the powers conferred, and the obvious purpose of the law support the conclusion that they are local public officers, to whom is delegated a portion of the sovereign power of the State. The statute empowers them to execute duties heretofore devolved upon highway commissioners. See Campau v. Highway Commissioner of Grosse Pointe, 132 Mich. 365, 369. The property of the county is taxed for county roads, the statute imposes upon counties the duty to maintain such roads, and imposes a liability for injuries received on account of their being out of repair. In the sense that township and city highways are matters of local concern, so county roads are of local concern; and this conclusion cannot be affected by the fact that aid in building roads may be obtained from the State, or the fact that counties have heretofore exercised few powers of a purely local nature. The language of the constitutional provision is:

“The legislature may also prescribe the powers and duties of boards of supervisors in relation to highways, bridges and culverts, and may provide for one or more county road commissioners to be elected by the people, or appointed, with such powers and duties as may be prescribed by law.”

The words “the people” can refer to none other than those of the county. If it was determined by the legislature that these officers should be appointed instead of being elected “by the people,” provisions for such appointment were required to be in conformity with the theory of local self-government. This conclusion may be rested as well upon mere construction of the language employed in the Constitution, as upon the idea that the source of the appointment must conform with the extent of the powers given. The power of appointment to public office belongs primarily to the people. The constitutional provision confers upon the legislature the power to determine whether the office shall be filled by election or by appointment, and, if by appointment, to prescribe the manner of appointment. The legislature did not appoint. It provided by whom appointments, and successive appointments, should be made. Relators were named according to the manner provided. In no sense, therefore, is it true that their appointments were provisional; and no person, officer, or body representative of the county made, or is charged with the duty of making, the appointments. Courts may not supply a method of appointment, since that would involve the exercise of legislative power. For the same reason, we are required to deny the soundness of the argument that because the board of supervisors of Wayne county have recognized the relators as officers, it would be held, in quo warranto proceedings, and upon the authority of People, ex rel. Attorney General, v. Lothrop, 24 Mich. 235, they are entitled to their offices. We conclude that the act, in so far as it provides for the appointment of county road commissioners for Wayne county, cannot be sustained?

The tax which makes the fund upon which the relators’ warrant is drawn was not laid by the board of supervisors, and was laid by the board of county road commissioners. We agree with the court below that the only rational conclusion to be drawn from the record upon this point is that the supervisors understood they had no power in the premises, and, in fact, exercised none. The power of the board of supervisors to lay a tax’ for such a purpose is found in section 9 of article 10 of the Constitution, and the limitation there found is not removed by the provisions of section 49 of article 4 without legislative action. The legislature has acted. The action taken does not give to the supervisors of Wayne county the power to levy a tax for county roads. Rather, as will be seen by reading section 20 of the act, the supervisors are denied any authority in the matter. It is clear, then, that the powers of supervisors to raise money for roads have not been expressly increased by the legislature, and that they are no greater than they would be if there was no legislation upon the subject, unless we are able to say that, because counties, including Wayne county, have been authorized to take charge of and control highways within their limits, this necessarily carries with it the power to raise money to an amount not exceeding the limitation expressed in section 49,.art. 4. It is a part of the argument advanced that, although the legislature has not expressly modified the powers of county road commissioners since the amendment of 1899, that amendment itself operates as a modification of such powers, and has the - effect to divest these officers of legislative, and to leave them clothed with executive, powers; that we should construe the act as if the road commissioners in Wayne county had been given no legislative powers. Undoubtedly, courts do, and should, if it is possible, sustain a statute by eliminating objectionable provisions, leaving those which are not objectionable to stand. The rule is:

“If, when the unconstitutional portion is stricken out, that which remains is compMte in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. The difficulty is in determining whether the good and bad parts of the statute are capable of being separated within the meaning of this rule. If a statute attempts to accomplish two or more- objects, and is void as to one, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.” Cooley on Constitutional Limitations (7th Ed.), pp. 247, 248.

There are many reasons why we may not so construe this statute. The method of appointing commissioners for Wayne county was fixed after the constitutional amendment of 1899 was in effect, the powers given to them are the same as those possessed by such commissioners in other counties, the legislative scheme for county control of roads is distinctly invaded if commissioners do not possess and exercise the statute powers, and. last, but not least, of reasons, the electors of Wayne county adopted the system as it was presented. Nor can we admit the soundness of the argument made, except by determining in effect that, without further legislation, the scheme may be carried into effect in Wayne county by merely advisory or executive action on the part of the road commissioners, leaving all necessary legislative action to the board of supervisors. We cannot so determine, because boards of supervisors possess, generally, only such powers as are expressly given to them, the legislature has not given to the supervisors of Wayne county the powers necessary to carry the act into effect in that county, and the Constitution cannot be held to be, in this regard, self-executing in Wayne county, and not self-executing in all other counties. The tax must stand or fall as one laid by the commissioners. Whether their acts, under color of office, in so far as they involve public and private interests, may be sustained, is a subject upon which we express no opinion. In doing this, we necessarily decline to consider the contention that the entire act is void. We have reached the conclusion that relators are not officers de jure. We infer that further legislation is to be sought.

We do not understand that any contract made by relators is involved in this proceeding, or will be affected by our decision. Nor is this a direct proceeding to test the right of relators to office, or to determine the validity of a tax.

We affirm the judgment of the court below, because we are of opinion that relators should be denied the right to disburse the fund which has been created. It is, at least, a serious question whether many of the powers confided by the act to the commissioners, other than the one to tax, are not legislative in character. In asking relief, relators are asserting the legal right to the office and to the money — the right to continue to exercise the powers of the office. Proceedings are pending to try their right to the office. There has been, so far, little action by the public or by public officers which can be said to amount to acquiescence in their claims, and great confusion is likely to result if it is held that warrants drawn by them must be paid. That the courts may, under the circumstances disclosed, exercise their discretion in determining whether the writ of mandamus shall issue, is not to be doubted. Lawrence v. Hanley, 84 Mich. 399; Board of Sup’rs of Cheboygan Co. v. Township of Mentor, 94 Mich. 386. And see Board of Park Com’rs of Detroit v. Common Council of Detroit, 28 Mich. 228.

McAlvay, C. J., and Grant, Hooker, and Moore, JJ., concurred.