Weza v. Auditor General , 297 Mich. 686 ( 1941 )

The case cited by Mr. Justice McALLISTER (Lodge v. WayneCounty Clerk, 155 Mich. 426) is not authority for the proposition that the offices of county school commissioner and member of the State legislature are not incompatible. That case merely holds that a member of the legislature was not thereby disqualified from becoming a candidate for a county office (in that case, Wayne county auditor). However, that case does not hold that a member of the legislature who is nominated and elected to a county office can thereafter hold both offices. On the contrary, it is there held that:

"The effect of the election to a county office, if it is held to be incompatible with the office of representative, would be to vacate ipso facto the office of representative. See AttorneyGeneral, ex rel. Dust, v. Oakman, 126 Mich. 717 (86 Am. St. Rep. 574); Attorney General, ex rel. Moreland, v. DetroitCommon Council, 112 Mich. 145 (37 L.R.A. 211)."

I agree that one of the chief indicia of incompatibility is whether the functions of two offices are inconsistent. I cannot agree that the office of county school commissioner is not subject to the supervisory power of the legislature. It is not a constitutional office and is within the general regulatory power of the legislature "as its wisdom shall dictate" (People, ex rel. Attorney General, v. Howlett, 94 Mich. 165). The legislature has provided for the election of a county school commissioner in each county, fixed the tenure of office (2 Comp. Laws 1929, § 7704 [Stat. Ann. § 15.802]), determined who shall be eligible to hold the office (2 Comp. Laws 1929, § 7705, as amended by Act No. 222, Pub. Acts 1931 [Comp. Laws Supp. 1940, § 7705, Stat. Ann. § 15.803]; Tedrow v.McNary, 270 Mich. 332), prescribed the powers and duties, including filing certain reports with the State and depriving the commissioner of the right to compensation until all such required reports have been filed (2 Comp. Laws 1929, §§ 7706, 7707 [Stat. Ann. §§ 15.804, 15.805]). The legislature may abolish the office or transfer the powers and duties to another office (Act No. 117, Pub. Acts 1935 [Comp. Laws Supp. 1940, § 7322-10, Stat. Ann. § 15.170]). The county school commissioner in some instances directs the expenditure of moneys appropriated by the legislature. It seems to me that no one should occupy the office of county school commissioner and at the same time sit in the legislature with power to increase or decrease his salary, tenure of office, enlarge or diminish his own powers and duties; in fact have general control as a member of the legislature over his official functions as county school commissioner. This should not be. Our present Constitution (1908), art. 5, § 6, provides:

"No person holding any office under the United States or this State or any county office, except notaries public, officers of the militia and officers elected by townships, shall be eligible to or have a seat in either house of the legislature; and all votes given for any such person shall be void."

Member of the State legislature and county school commissioner are incompatible offices; by acceptance of the second office, plaintiff ipso facto vacated the first; he is not entitled to compensation as a member of the State legislature. The writ is denied, but without costs, a public question being involved.