Kent County Register of Deeds v. KENT CTY. PENSION BD.

342 Mich. 548 (1955)

70 N.W.2d 765

KENT COUNTY REGISTER OF DEEDS v. KENT COUNTY PENSION BOARD.

Docket No. 73, Calendar No. 46,370.

Supreme Court of Michigan.

Decided June 6, 1955.

*550 Uhl, Bryant, Slawson & Wheeler, for plaintiffs.

Stuart Hoffius, Prosecuting Attorney, and Joseph A. Renihan, Deputy Prosecuting Attorney, for defendants.

BUTZEL, J.

Jay M. Dosker and Edward DeRuiter, respectively, register of deeds and deputy register of deeds for Kent county, Michigan, as plaintiffs, filed a petition for a declaration of rights against Leonard Andrus, et al., as members of the Kent county pension board, to determine whether the latter has a right to retire DeRuiter from his position as deputy register of deeds. DeRuiter was appointed in accordance with sections 91 and 92 of RS 1846, ch 14 (CL 1948, §§ 53.91, 53.92 [Stat Ann §§ 5.983, 5.984]), which state:

"The register of deeds shall appoint a deputy, to hold his office during the pleasure of the register; such appointment and the revocation thereof to be in writing, and filed in the office of the county clerk; and before such deputy shall enter upon the duties of his office, he shall take the oath prescribed by the twelfth article of the Constitution,[*] and for the faithful performance of his duties by such deputy the register and his sureties shall be responsible.

"In case of a vacancy in the office of the register of deeds, or his absence or inability to perform the duties of his office, such deputy shall perform the duties of register during the continuance of such vacancy or disability." (Emphasis supplied.)

Defendant members of Kent county pension board insist upon their right to retire him in accordance *551 with their pension and retirement plan. DeRuiter, over 65 years of age when appointed, is not a member of the plan.

The statute, CL 1948, § 46.12a (Stat Ann 1947 Cum Supp § 5.333[1]), pursuant to which the plan was adopted, was amended by PA 1949, No 201, to provide that:

"In any county pension or retirement plan adopted under the provisions of this section, the board of supervisors may require that all county employees, except elected or appointed officials, be retired from county service upon attaining an age designated in said plan which shall not be less than 65 years of age."

Pursuant to this provision the Kent county board of supervisors enacted the following as part of their plan:

"Any eligible employee, except an elected or appointed official, who is not a member of this retirement plan will retire from county service on the first day of the month after reaching normal retirement age. Said retirement shall be without the benefits provided in this plan and said employee shall not become a pensioner."

It will be noted that elected or appointed officials are distinctly excepted. The sole issue in this case is whether or not the deputy register of deeds is a public official. The 3 judges of the Kent county circuit court, sitting en banc, held that he was and decreed that he could not be retired by defendants.

The indicia of public office are set forth in People v. Freedland, 308 Mich 449, 457, 458, where we adopted and stated the following:

"After an exhaustive examination of the authorities, we hold that 5 elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created *552 by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, or not be only temporary or occasional. * * *

"In People, ex rel. Throop, v. Landon, 40 Mich 673, 682, Mr. Justice COOLEY said:

"The officer is distinguished from the employee in the greater importance, dignity and independence of his position; in being required to take an official oath, and perhaps to give an official bond.'"

See, also, 53 ALR 595; 93 ALR 333; 140 ALR 1076.

We find that the office of deputy register of deeds was thus created by the legislature; that in certain contingencies he is to act as register of deeds, which office is without question beneficial to the public; that the duties and powers exercised are derived directly from legislative direction and not from the orders of the register; that it is a subordinate office created by the legislature; that while the tenure of the particular incumbent is at the pleasure of the register, the office cannot be abolished except by legislative action; and that he is required to take the constitutional oath. The deputy register of deeds is in the position of acting at times designated as the alter ego of the register of deeds. In addition, we have held that deputy officers may execute documents in their own names with the same official force and *553 effect as if done in the name of the principal. See Westbrook v. Miller, 56 Mich 148; People v. Johr, 22 Mich 461. We hold that the position of deputy register of deeds meets the established criteria for a public office.

In other jurisdictions under similar authorizing statutes deputies have been held to be public officials. Fuchs v. Weibert, 233 Ill App 536 (deputy county recorder); Wells v. State, ex rel. Peden, 175 Ind 380 (94 NE 321, Ann Cas 1913C, 86) (deputy county auditor); Southern Surety Co. v. Kinney, 74 Ind App 205 (127 NE 575) (deputy county treasurer); Donges v. Beall (Texas Civ App), 41 SW2d 531 (deputy county clerk); Oklahoma City v. Century Indemnity Co., 178 Okla 212 (62 P2d 94) (deputy city clerk); see 43 Am Jur, Public Officers, § 462, p 220.

Appellants cite CL 1948, § 45.41 (Stat Ann § 5.1131), which provides:

"In all counties of this State having a population of more than 50,000 where it is provided by law that the county treasurer, county clerk and register of deeds shall receive salaries in lieu of fees, each of said officers may appoint a deputy or deputies who may perform all the official acts which the officer making the appointment might legally do, and who shall be paid therefor from the general fund of the county, such salaries as the board of supervisors of the county shall determine."

From this statute appellants argue that:

"This statute places the deputies appointed by the county treasurer, the county clerk and the register of deeds on a similar basis. * * * Defendants believe that the legislature would have all these `appointees' subject to retirement, for to hold otherwise would place the legislature in the untenable position of authorizing a retirement plan for a group of employees of the county, most of whom would not be subject to retirement."

*554 We cannot agree. Appellants offer no facts in support of their contention. It should be noted that the statute is one of limited application and of its own terms applies to less than 1/4 of Michigan's 83 counties. The statute is permissive whereas the one under which plaintiff was appointed is mandatory. There are also other specific provisions for the appointment of deputies by the other 2 officers named, the county clerk and the county treasurer. CL 1948, § 48.37 (Stat Ann § 5.683); CL 1948, § 50.63 (Stat Ann § 5.833). Apparently the purpose of this later statute was to provide for the appointment of additional deputies in areas where circumstances demanded it. We do not pass upon whether those appointed under such statute may be considered public officials. We are here dealing with a single deputy appointed under the mandatory statute.

It will be noted that the enabling statute states that any plan adopted thereunder may require that all county employees, except elected or appointed officials, may be retired. Assuming this to mean that a county employee who is not a member of the plan adopted may still be retired, the Kent county plan was amended to provide that an eligible employee, except an elected or appointed official, who is not a member of the plan, can be retired. It is stipulated that DeRuiter is not eligible for the plan. Appellants argue that the provisions of the enabling statute allow them to retire DeRuiter, even though the provisions of their particular plan do not. However, even assuming that appellants are correct in their contention, and we do not here decide it, we are again faced with the issue of whether or not DeRuiter is an appointed official.

Unless and until there is a different expression by the legislature we believe that DeRuiter, deputy register of deeds for Kent county, is an appointed *555 officer and that the lower court in so holding was correct.

Affirmed without costs, a public question being involved.

CARR, C.J., and SMITH, SHARPE, BOYLES, REID, DETHMERS, and KELLY, JJ., concurred.

[*] This reference is to Const 1835, art 12, § 1. The comparable provision in the present Constitution is Const 1908, art 16, § 2. REPORTER.