Opinion
Docket No. 104.
Submitted January 6, 1928.
Decided February 23, 1928.
Error to St. Joseph; Johnson (Clayton C.), J. Submitted January 6, 1928. (Docket No. 104.) Decided February 23, 1928.
Quo warranto proceedings by Frank J. Sprister against the city of Sturgis and others, interveners, to determine the validity of amendments to the charter of defendant city. From an order granting a motion to dismiss, plaintiff brings error. Remanded with instructions.
Hugh G. Maddox and Palmer Weage, for appellant.
Jay J. Stanton and Roy H. Hagerman, City Attorney, for appellee City of Sturgis.
Harry C. Howard and J. Paul Wait, for interveners.
Mandamus by William W. Potter, attorney general, on the relation of C.W. Kirsch and others, to compel Wilson Roose and others, city commissioners of the city of Sturgis, to call and hold a special election. Submitted January 6, 1928. (Calendar No. 33,529.) Writ dismissed February 23, 1928.
Harry C. Howard and J. Paul Wait, for plaintiff.
Roy H. Hagerman, City Attorney, and Cowell Frankhauser, for defendants.
The first action is quo warranto to test the validity of amendments of the charter of the city of Sturgis. On motion the proceeding, after full hearing and taking the testimony, was dismissed and plaintiff brings error.
The city has a charter adopted under the home-rule act, 1 Comp. Laws 1915, § 3304 et seq., as amended. It has a city commission of five members elected at large, one elected each year for a term of five years. The main feature or purpose of the amendments adopted by the people at an election was to abolish such body and to provide for a commission of nine members, one to be elected at large for the term of one year and two from each of four precincts to serve for a term of two years. The validity of the amendments is challenged as conflicting with a provision of section 3308, 1 Comp. Laws 1915, as amended by Act No. 119, Pub. Acts 1923, § 5, subd. ( d), which is that no city shall have power:
"To change the salary or emoluments of any public official after his election or appointment or during his term of office; nor shall the term of any public official be shortened or extended beyond the period for which he was elected or appointed, unless he resign or be removed for cause where such office is held for a fixed term."
This proceeding is pursuant to sections 13551-13553, 3 Comp. Laws 1915:
"SECTION 28. A petition may be filed in the circuit court of any county of this State whenever it shall be made to appear that material fraud or error has been committed at any election in such county at which there shall have been submitted any constitutional amendment, question, or proposition to the electors of the State or any county, township or municipality thereof.
"SEC. 29. Such petition shall be filed within thirty days after such election by the attorney general or the prosecuting attorney of the proper county on his own relation, or on the relation of any citizen of said county without leave of the court, or by any citizen of the county by special leave of the court or a judge thereof. Such petition shall be filed against the municipality wherein such fraud or error is alleged to have been committed.
"SEC. 30. After the filing of such petition the procedure shall conform as near as may be to that provided by law for informations in the nature of quo warranto."
The ground of the motion upon which the proceeding was dismissed is that the claimed invalidity of the amendments is not "material fraud or error" at the election within the statute just above quoted. This case on its face is not a contest between rival claimants for office. The question before us is the validity of the amendments. Practically as presented it is a contest between the present commissioners, represented by the regular city attorney who appears as such, and citizens, sponsors of the amendments, who were permitted to intervene and who are represented by counsel. The city is also represented by special counsel contending against the position of plaintiff and his counsel, who, with the city attorney, urge the claimed invalidity.
We think it our duty to pass on the question before us. In Youells v. Morrish, 218 Mich. 194, it was said of the statute last above quoted:
"The legislature by adopting these three sections, evidently intended a change in the practice; otherwise nothing was accomplished. A reading of these new sections clearly evidences, we think, this legislative intent: That where it is claimed there was fraud or there was error, invalidity, in an election at which any constitutional amendment, question or proposition has been voted upon, the proceedings to test the election must be against the municipality affected by the proceedings and must be brought within 30 days after the election. The purpose of the change is clearly apparent; the municipality to be affected by the proceedings should have an opportunity to be heard, and public policy requires that there should be a speedy determination of the validity of the election before engagements are entered into by such municipality."
The word "invalidity" was there used advisedly, and as within the contemplation of the statute. We think it proper in this proceeding to inquire of the claimed invalidity of the amendments. The purpose of the amendments is not to shorten the term or terms of the commissioners of the city. The purpose is much broader. It is to provide a new and different legislative body in the city government, and, of course, to abolish the present body as of the day when the members of the new body shall have been elected and qualified.
The electors of the city have statutory power to amend the charter, to abolish lawfully the legislative body and to provide another and different body, to do what was here done. The power as here lawfully exercised would be rendered nearly nugatory if the taking effect of the amendments were postponed to the day when the term of office of the commissioner now elected for the longest term shall have expired. The practical difficulties of authorizing and providing a legislative body to function until that day will suggest themselves. It was not intended that the above provision quoted from the home-rule act should have such effect.
In this State one does not have a contract right to an office. The office is taken subject to the contingency that it may be abolished lawfully. The present commission of the city has been abolished as stated. The authorities are fully reviewed in notes in 4 A.L.R. 205, and 37 A.L.R. 815. See Long v. Mayor, etc., of New York, 81 N.Y. 425. We agree with the trial judge that plaintiff ought not to prevail, but we think judgment on the merits should have been entered against him. The cause is remanded that the judgment may be modified accordingly. No costs.
Electors of the city, favoring reform of the charter as above stated, and meeting opposition by the present commissioners, filed petitions for the recall of such commissioners. Election to determine recall was refused. Mandamus was instituted on the relation of the attorney general to compel the calling and holding of such election. In view of our holding in the main case, we think the action in mandamus of no practical importance and it is dismissed, without costs.
NORTH, FELLOWS, WIEST, McDONALD, and SHARPE, JJ., concurred.
The late Chief Justice FLANNIGAN did not sit.
The late Justice BIRD took no part in this decision.