Rupert v. Van Buren County

This is an appeal from the allowance of a claim made by plaintiff, Oradell Rupert, against the county of Van Buren. The facts are not in dispute. At the October, 1938, session of the board of supervisors of Van Buren county, an appropriation of $1,200 was made for a stenographer in the office of the prosecuting attorney; and at a *Page 242 meeting of the board of supervisors of December 13, 1938, the following resolutions were adopted:

"Motion by Supervisor Schnake, supported by Supervisor Hayne, that we appoint a county stenographer and that the county stenographer do all the work in the prosecuting attorney's office.

"Motion carried.

"Motion by Supervisor Crandall, supported by Supervisor Caris, that the rules be suspended and that Mrs. Genevieve Lamme be elected as county stenographer.

"Motion carried."

On January 3, 1939, the prosecuting attorney of Van Buren county appointed his wife (plaintiff herein) as stenographer in the prosecuting attorney's office. From the time of the appointment, except for a period of illness, plaintiff performed the services usually performed in that office.

In September, 1939, plaintiff filed a claim in the amount of $800 for services rendered for the county of Van Buren in the office of the prosecuting attorney from January 1, 1939, to September 1, 1939. The claim was denied by the board of supervisors. An appeal was taken to the circuit court. The trial court held in favor of plaintiff and judgment was entered in favor of plaintiff in the sum of $813.

Defendant appeals and contends that the board of supervisors did not authorize the appointment of plaintiff as stenographer in the prosecuting attorney's office; and that it is against public policy for the prosecuting attorney to appoint his wife stenographer in his office.

The record shows that on October 20, 1938, the board of supervisors appropriated the sum of $1,200 for the salary of the prosecuting attorney's stenographer for the year 1939; that this appropriation *Page 243 was never revoked or rescinded; and that such funds so appropriated are still on hand.

The principal question involves construction of 1 Comp. Laws 1929, § 1297 (Stat. Ann. § 5.791), which provides:

"In each county of the State of Michigan, the board of supervisors of such counties, at their regular annual meeting, may, by resolution authorize the appointment by the prosecuting attorney of said county of as many assistant prosecuting attorneys as said board of supervisors shall deem necessary, and shall in addition authorize the appointment by said prosecuting attorney, of such investigating officers, clerks, stenographers and other clerical employees as said board of supervisors shall deem necessary."

It is our opinion that the appropriation made by the board of supervisors for a stenographer determined the necessity for a stenographer in the prosecuting attorney's office and fixed the compensation of such stenographer. Section 1297, 1 Comp. Laws 1929, does not authorize the board of supervisors to select the particular person who shall serve as stenographer. Such a determination must of necessity be made by the prosecuting attorney. Nor can the appointment of a so-called county stenographer by the board of supervisors annul or modify in any way the power of appointment lodged in the prosecuting attorney.

It is also urged that it is against public policy for a prosecuting attorney to appoint his wife as stenographer in his official office. One of the reasons urged is that the appointing power may receive some portion of the salary paid to the appointee. In passing upon this question we have in mind that 3 Comp. Laws 1929, § 13061 (Stat. Ann. § 26.171), provides: *Page 244

"Each and every married woman in the State of Michigan shall be absolutely entitled to have, hold, own, retain and enjoy any and all earnings acquired by any such married woman as the result of her personal efforts; and to sell or otherwise dispose of any and all such earnings, and to make contracts in relation thereto to the same extent that any such married woman could have or do if unmarried."

Under this section a married woman is entitled to her earnings; and in our opinion the prosecuting attorney's appointment of his wife stenographer in his office violates no theory of public policy.

The judgment of the trial court is affirmed, with costs to plaintiff.

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