Mosier v. Wayne County Board of Auditors

294 N.W. 85, 295 Mich. 27, 1940 Mich. LEXIS 605

• Court: Michigan Supreme Court
• Decided: October 7, 1940
• Docket: Docket No. 54, Calendar No. 41,043.
• Status: Published

Opinions

Bushnell, C. J.

Plaintiff filed a taxpayer’s bill of complaint to restrain the board of auditors of Wayne county from paying out additional money, which had been appropriated by the board of supervisors on October 25,1939, for the purpose of carrying forth the preliminary survey “for the reapportionment of the State of Michigan.” On April 14, 1939, the board unanimously adopted a resolution appropriating from the public funds of the county of Wayne the sum of $3,000 for the purpose of employing “a competent person well versed on the subject of reapportionment” to make a survey among the industrial and agricultural counties of the State and to form in said counties local committees, which would later form a State-wide committee to propose and submit to the electors of the State of Michigan at an election in the year 1940 a constitutional amendment that would remove alleged discrimination and “would assure to all counties of the State, an equal voice in State government for all of the people of Michigan.”

The trial judge held that the board had authority to make the appropriation of October 25, 1939, and that it was made for a public purpose. The court dismissed plaintiff’s bill of complaint.

The Constitution of 1908 provides that:

“Each organized county shall be a body corporate, with such powers and immunities as shall be established by law.” (Art. 8, § 1).'

“A board of supervisors, consisting of one from each organized township, shall be established in each county, with such powers as shall be prescribed by law.” (Art. 8, §7).

A county is a municipal corporation and possesses only those powers which have been conferred upon it by the Constitution and the statutes. Attorney General v. Marr, 55 Mich. 445; McCurdy v. County of Shiawassee, 154 Mich. 550; Bloss v. Jackson County Supervisors, 170 Mich. 607 (Ann. Cas. 1914A, 1191); and Bond v. Cowan, 272 Mich. 296.

Defendants contend that the statutory authorization for the appropriation which is questioned here is 1 Comp. Laws 1929, §1101 (Stat. Ann. § 5.283), which reads:

“Each organized county shall be a body politic and corporate, for the following purposes, that is to say: To sue and be sued; to purchase and hold real and personal estate for the use of the county; to borrow money for the purpose of erecting and repairing county buildings, and for the building of bridges; to make all necessary contracts, and to do all other necessary acts in relation to the property and concerns of the county.”

And 1 Comp. Laws 1929, § 1130 (Stat. Ann. § 5.331), which reads:

“The said several boards of supervisors shall have power and they are hereby authorized at any meeting thereof lawfully held: * * *

“Sixteenth, To represent their respective counties and to have the care and management of the property and business of the county in all cases where no other provision shall be made.”

Is it the business of the county to see that legislative reapportionment is effected? Section 4, art. 5, Const. 1908, provides:

“At the session in nineteen hundred thirteen, and each tenth year thereafter, the legislature shall by law rearrange the senatorial districts and apportion anew the representatives among -the counties and districts according to the number of inhabitants, using as the basis for such apportionment the last preceding United States census of this State. Each apportionment so made, and the division of any county into representative districts by its board of supervisors, made thereunder, shall not be altered until the tenth year thereafter.”

The brief of amici curiae cites and discusses authorities from other jurisdictions which hold that a county may expend money for the purpose of influencing legislation. Many of them deal with the question of whether or not lobbying contracts are valid from the point of view of public policy.

An examination of these authorities indicates that, in most instances, the county was held to be authorized to spend money to influence certain legislation which had a direct connection with the business of the county. See, for instance, State, ex rel. Hunt, v. Okanogan County, 153 Wash. 399 (280 Pac. 31, 67 A. L. R. 668), where a contract was upheld under the terms of which the county employed a person to gather and present facts and arguments to Congress in support of an equitable claim of the county to reimbursement by the United States for moneys expended by the county for benefits enjoyed by Indian allottees who were exempt from taxation.

Legislative power in this State is reposed in a senate of 32 members (Const. 1908, art. 5, § 2), and a house of representatives, consisting of not less than 64 nor more than 100 members (Const. 1908, art. 5, § 3). The senators and representatives are responsible to the people. It is the duty of the Legislature to obey the mandate of reapportionment as expressed in section 4 of article 5 of the Constitution, and its members are accountable to the electorate if they fail to discharge this duty. Neither the Constitution nor legislative enactment gives authority to a county to expend public funds for the purpose of procuring reapportionment.

The matter of representation in the legislature does not have enough relation to the property and business of the county to require a holding that the action of the board of supervisors in the instant case was within its constitutional and statutory power. If appellees are right in their contention, then by the same token any or all of the other counties of the State might with equal propriety appropriate any sum of money considered proper from the public funds of the county to finance a counteractivity. And further, such expenditure of county funds might be contrary to the desire and even subject to the disapproval of a large portion of the county taxpayers who were firmly of the conviction that refusal to reapportion representation in Michigan in accord with constitutional mandate is decidedly detrimental to our general governmental welfare. And we think it can safely be said that it was never contemplated under the Constitution and statutes of this State that our boards of supervisors should function as propaganda bureaus.

The trial court erred in dismissing plaintiff’s bill of complaint and its decree is vacated and the cause remanded for further proceedings not inconsistent with this opinion. Notwithstanding the fact that the question involved is a public one, under our discretionary powers as to taxation of costs, the taxpayer appellant and amici curiae shall have costs of both courts. It is so ordered.

Sharpe, Chandler, North, and Butzel, JJ., concurred with Btjshnell, C. J.