Telegram-herald., 1891-01-24

pxEncapie governs sAe eaes q hax- Al
ternsy 0enerai ". WsineE, ~ MICA,
Sc.
But Whale il vas eomnstenf for The
Legislature 10 hFiore ever TIE time IN
tefssnlng between Tie adoption of The
ses and he next general election ~
providing tor appointment By the tor
egaor, the Acs IN - taI - Is undertakes
70 a. The term IT zach apksolptee and
20 declare thai saea term shall nol az
plrs untll Dec. 81. lssS. - unoonststu-
uoaal and void.
The terra Of such appointec under
the constitution could not extend he
you'd tne next general election or until
hls successor was elected aud qualified.
Asbefore said the manifest Intention
Of thai instrument 10 that the circuit
Judges shali he elective and only IA
case Ut = vacancy occurring. az the
creation Of "a adItionsl circuit Judge
IN the inteIim between the general cleo
tons can circuit judge ~ appointed
by the Governor, aud At the next gen.
efal election after such appointment
his successor can he ana should Be cleo
ed. liz case no election MAS held. he
would. however, continue IN once un-
al such time as his successor Was duly
elected and qualified. Ii 10 not neces-
sary 70 here determine whether or not
the spring election OF 1880 VAS gener-
nj election; but . general election WAS
held November 4. 1880 and any spring
election, AT which Justice OF the Su-
Qrejne Court and Regents OF the Uni-
vefsity Are elected - necessarily also =
general election and 10 now 90 regarded.
Westinghausen W People, "A Mich. 700.
Article q, Section 20, Vt the Constitu-
ton, together with section OF the
same article, construed with section II.
article 8, in relation to the fiihng Of
vacancies, make il manifest that u 10
contemplated that the additional judge
shall also be elected, aud the only
authority for appointment that can he
upheld is that of Professionally Milling
the vacancy caused by the creation OF
the Office until the next general cleo
ton shall occur.
In People va. lord. 8 Michigan 227,
the Constitution Is referred 20. and II ls
clearly enough there held that an act
of the Legislature providing that when
. vacancy in Q county Office shall have
been filled by appointment of the Gov
ernor, the appointee shall hold for the
unexpired portion of the regular term,
could not constitItionally apply 70 the
Office Of Judge of probate. as il would
be in express violation of section II,
article 8, which Is the same section re-
lating 70 the filling of vacancies in the
Office of supreme and circuit Judge.
Yet under this act the respondents
term of offico il extended from June /,
1889, TO December 81, 1898, passing two
al hA ~
least two general spring elections, q
period OF over four and one-haif years.
If this act can be held valid to this ex-
tent, then an additional circuit might
be created by the Legislature in the
January after the regular spring cleo
ton of circuit judges. and the Governor
authorized TO fiil the Office by appoint
ment for five years, eleven months, or
more, thus deprivinx the people OF the
right TO elect circuit judge in effect
for the full term of six years, IN disre-
gard Of the plain intent and mandate
Of the constitution.
But this excess in the fixing of the
term of the Governors appolntee, IN
act No. 81, OF the Public Acts Of 1889.
does not avoid the whole act or the ap-
pointment of the respondent. This
part of the act can be treated as .
nullity without destroying 90 much of
the act as creates the Office and pro-
vides for the appointment OF an incum-
bent to fill vacancy.
The respondent was therefore legally
appointed circuit judge, and Is author
lied to hold his Office until his successor
is legally elected and qualified.
The information in this case WA filed
September 10, 1890, and at the time
issue was joined the respondent was
without doubt legally exercising and
holding the Office Of circuit judge Of
the Kent circuit.
The writ must therefore be dismissed.
On the fourth day OF October, 1890
Allen c. Adsit, applied to this court for
q writ of mandamus to compel the
Secretary of State to send to the sheriff
of Kent county written notice sta ting
that vacancy existed in the Office OF
additional circuit Judge of Kent county
and that such vacancy would be sup.
piled at the next general election on
the 4th day of November, 1890. Oct. z
1890, We issued an order to the Score
tary of State to show cause why the
writ Is prayed for should not be granted
returnable Oct. IA, 1890.
Upon the last named day the secre.
tary's answer was presented 10y the At
torney General denying that any
vacancy existed, on two grounds:
First-That the law creating the OF.
fee Act No. 90 p. A., 1891 provided
that the term Of the Governors ap'
pointee shall not end until December
81, 1898, or his successor be elected
until the April election OK the same
year; and,
Sccond-That the act was never con.
stitutionally passed authorizing such
circuit judge to be appointed, setting
up the quo warranto proceedings and
the same reasons alleged by relator in
the case at bar why ench act was void.
Upon the hearing Of this application
| for maadsmus at first blush IT seemed
to us that there were grave doubt,
whether any such Office as additional
circuit Judge of the Kent circuit
existed and il being then too late, for
the requisite statutory notice TO be giycr
and not wishing 10 decide 20 important
question upon a motion for man
damus when proceedings 10 determine
the same matter was pending before VI
by quo warranto, We held that w
would not determine the motion then
but hold If until the hearing In
| this case. Since that time Il n
claimed an election has been held foI
ouch Office and that November 4, 1890
| Alien c Adsit, was duly elected a. sue
ces.or 10 the respondent and an appl.
cation made by him has been presented
TO this court preying for the issue o
| the writ of naandamus 70 compel tb.
| board Of State Canvassers 10 canvas
the votes polled At such elections aps
return 10 said Board ard 90 decisr.