Drolshagen v. County of Wayne , 283 Mich. 569 ( 1938 )

Plaintiff, administratrix of the estate of Joseph F. Drolshagen, deceased, prevailed in a suit brought against the county of Wayne on a claim for an alleged deficiency in the payment of the salary of decedent for the period from December 1, 1932, to May 1, 1934. Mr. Drolshagen was a competent register of probate of Wayne county. He was appointed to that office on May 16, 1929, by Judge Henry S. Hulbert, reappointed on January 2, 1931, and held the office until May 1, 1934, when it became vacant on account of his death. At the time of his reappointment the salary had been fixed by the board of supervisors at $9,000 per annum. At the session of the board of supervisors in October, 1932, the budget adopted for the fiscal year from December 1, 1932, to November 30, 1933, reduced the salary of the probate register from $9,000 to $7,600 per annum which amount was paid to Mr. Drolshagen until his death.

Plaintiff claims that under the State Constitution of 1908, art. 16, § 3, decedent's salary as a public officer could not be decreased during his term after appointment. Gillespie v.Board of County Auditors of Oakland County, 267 Mich. 483. However, if an officer is removable at will, the constitutional provision prohibiting reduction of his salary does not apply.Somers v. State, 5 S.D. 321 (58 N.W. 804), 5 S.D. 584 (59 N.W. 962); Harrold v. Barnum, 8 Cal.App. 21 (96 Pac. 104); Board of Commissioners of Muskogee County v. Hart,29 Okla. 693 (119 P. 132, 37 L.R.A. [N. S.] 388); State, exrel. Matlack, v. Oklahoma City, 38 Okla. 349 (134 P. 58);Bayley v. Garrison, 190 Cal. 690 (214 P. 871); State, exrel. Gilbert, v. Board of Commissioners of Sierra County,29 N.M. 209 (222 P. 654, 31 A.L.R. 1310); Stone v. State, exrel. Strain, 18 Ala. App. 228 (89 So. 824); Commonwealth v.Ewald Iron Co., 153 Ky. 116 (154 S.W. 931); Jefferson County v. Cole,204 Ky. 27 (263 S.W. 1114); State, ex rel. Kane, v. Johnson,123 Mo. 43 (27 S.W. 399); Buechele v. Petty, 265 Ky. 321 (96 S.W. [2d] 1010); Stewart v. Kidd, 262) Ky. 90 (89 S.W. [2d] 861). If an officer, removable at will, refuses to acquiesce in a reduction of salary, he may be summarily removed and another officer appointed to take his place. Under such circumstances, the constitutional prohibition cannot apply, for its purpose is to preserve the independence of a public officer. We said in Bodell v. City of Battle Creek, 270 Mich. 445 :

"One of the reasons for the rule that an official's salary cannot be reduced during his definite term is to prevent the use of an indirect method to discharge an official during such term by the subterfuge of reducing his salary. This reason does not apply where, as in the instant case, plaintiff, from and after January 1, 1932, was subject to removal at any moment through the appointment of his successor."

Where it is shown that a public officer may be removed at the pleasure of the officer who appointed him and who must have complete control over his actions and conduct, there is no reason for prohibiting an alteration in his compensation. Since control may be exercised over his actions directly by removal, it cannot be complained that the indirect exercise of such power, by reduction in salary, is improper. If the officer is unwilling to accept a reduction, he may resign. If he is not willing to do either, he may be discharged for that reason alone. The question therefore arises as to whether the probate register is removable at will or only for cause.

Section 13875, 3 Comp. Laws 1929, provides that the judge of probate may appoint a probate register who shall hold office for the same term for which the judge of probate is elected, "unless sooner removed by the judge of probate." It also provides for a salary of $3,000 in counties of 200,000 or more, with power in the board of supervisors, by a majority vote of the members elect, to name an additional salary. The statute does not expressly state whether the power of removal is at will or only for cause.

Plaintiff contends that upon the re-election of Judge Hulbert of the probate court and the reappointment of decedent as register of probate, the latter's term of office was definitely fixed as co-extensive with that of the probate judge, and for that reason his salary could not be decreased. However, as hereinbefore stated, the true test by which the applicability of the constitutional limitation is determined, is whether or not the officer is removable at will. The mere fact that the officer is appointed to hold office for a specified period does not preclude a construction of the statute to the effect that he is removable at will and subject to having his salary altered. In Commonwealth v. Ewald Iron Co., supra. a statute, providing that an appointee was to hold office for the term of the appointing officer, "unless sooner removed," was construed to allow removal at will and to permit an alteration in compensation. It has been repeatedly held that one holding office for a specified period, unless sooner removed, may be removed at will. Townsend v. Kurtz, 83 Md. 331 (34 A. 1123);State, ex rel. Little, v. Mitchell, 50 Kan. 289 (33 P. 104, 20 L.R.A. 306); State, ex rel. Matlack, v. OklahomaCity, supra; State, ex rel. Holland, v. Ledwith, 14 Fla. 220;People, ex rel. Brundage, v. Hansen, 234 Ill. App. 483; State,ex rel. Sweeney, v. Stevens, 46 N.J. Law, 344.

It cannot be said that a construction of the statute to allow removal at will nullifies the provision that the probate register is to hold office for the term of the probate judge. That clause is still effective to fix a maximum period during which the register may hold office without reappointment. In the case of State, ex rel. Rumbold, v. Gordon, 238 Mo. 168 (142 S.W. 315, Ann. Cas. 1913A, 312), it was held that the legislature had power to alter the salary of the adjutant general, since the governor could remove that officer at will. The court said:

"This view of it does not make the words 'hold office during the term of the governor' perish by construction. Those words are still left as a legislative direction that in any and all events the military secretary of the governor shall step down and out with the governor himself. The governor is the commander in chief of the national guard by virtue of his office, and when he lays down his sword, his military secretary must lay down his official pen. The construction given but makes the whole law alive by giving some sensible office to all its words."

Removals at will are not favored and unless such power is expressly granted, it is presumed that an officer may be removed only for cause. Hallgren v. Campbell, 82 Mich. 255 (9 L.R.A. 408, 21 Am. St. Rep. 557). However, it was said inTrainor v. Board of Auditors of Wayne, 89 Mich. 162 (15 L.R.A. 95):

"And, although it is the undoubted policy of our State, and best in accord with our system of government, that officers should hold for fixed terms, and not be subject to removal at the will or caprice of the appointing power, yet there is no constitutional objection to the conferring of such power of removal in offices not elective, and the legislature has undoubted authority to do so."

Even though the power to remove at will was not expressly granted by the statute construed in the latter case, this court nevertheless held that such power existed in the removing body. The question was clearly one of reasonable interpretation of the statutes involved andHallgren v. Campbell, supra, was distinguished on that ground. The court said:

"In Hallgren v. Campbell, the power to remove certain officers at the pleasure of the council was expressly given in the same section of the charter, that mentioned the street commissioner as an officer. He was not included among those that might be so removed. But this last case recognizes, as do others in this State, the authority of the legislature to authorize the removal of appointed officers."

Even though the statute in the instant case does not expressly provide that the probate register is removable at will, a consideration of the nature of his duties leads to the conclusion that such was intended by the legislature.

When the nature of an office requires close cooperation between the person holding it and the person in whom the removal power lies, efficient administration may demand that the former be removable at the will of the latter. InTownsend v. Kurtz, supra, the court, in holding that an officer appointed for a specified period was removable at will, made the following statement which, although dictum, is peculiarly applicable to the instant case:

"The State reporter is appointed by the court of appeals, who 'shall hold his office for the term of four years unless sooner removed by said judges.' Although that question has never arisen, there would seem to be little doubt that this court could remove the reporter before the expiration of the four years without preferring charges. The nature of his duties requires him to come in close and frequent contact with the members of the court and it is important for the proper discharge of his duties that he and the judges work harmoniously together."

Although the probate register has no judicial powers, he is the right hand of the probate judge in the performance of his administrative duties. The judge must rely heavily upon the register and even though the latter may otherwise be competent, if he cannot work in harmony with the judge, he should be removable at will. On account of this very close relationship, the statute provides both for appointment and removal by the probate judge and we are of the opinion that the latter power is at will. Since expedience demands that the judge have complete control over the register, the register must be removable at the pleasure of the judge. Smith v. Bryan, 100 Va. 199 (40 S.E. 652).

In 1932, the country was rapidly approaching the worst period of the depression of which we have frequently taken judicial notice. It was a time when funds for the maintenance of government were difficult to obtain. Tax delinquency was very great, and it was necessary to economize in every proper manner. The reduction of Mr. Drolshagen's salary from $9,000 to $7,600 apparently met with his approval, for there is no showing of any objection or unwillingness on his part to accept a reduction. This claim was not presented until after his death. It seems quite obvious that had any complaint been made during the lifetime of decedent, the judge of probate could have exercised his power of removal under the statute. As the probate judge had the power to remove decedent at will, the board of supervisors had the right to decrease his salary.

The judgment of the lower court should be reversed without a new trial, but without costs to either party, since a public question is involved.

WIEST, C.J., and BUSHNELL and CHANDLER, JJ., concurred with BUTZEL, J.