I do not agree with the holding as a matter of law that the board of supervisors had authorized the prosecuting attorney to appoint a stenographer. I think that under the record submitted to us it was a question of fact for the jury.
The prosecuting attorney of Van Buren county on taking office in January, 1939, appointed plaintiff (his wife) as his stenographer. After rendering services for a time she brought this suit against the county. The sole defense is that the board of supervisors did not authorize the prosecutor to make the appointment. The case was tried before a jury and at the conclusion of the proofs the trial court directed a verdict for plaintiff. The testimony and all proper inferences therefrom must be considered in the light most favorable to the defendant.
The circumstances were as follows: The board of supervisors, at the October, 1938, session, by motion *Page 245 adopted the report of its finance committee. This was the usual budget appropriation for the ensuing year. It provided that the various sums named therein "be and are hereby appropriated for (from) the proper funds of the county, for the purpose as indicated and specified therein." The report contained approximately 170 separate items, 13 of these items were under the heading of "Prosecuting Attorney," one of which was "Stenographer, salary $1,200." Plaintiff claims that the board of supervisors by this action authorized the prosecuting attorney to appoint a stenographer. The trial court in directing a verdict held that as a matter of law this action of the board gave the prosecutor the necessary authorization.
The statute, 1 Comp. Laws 1929, § 1297 (Stat. Ann. § 5.791), providing for appointment of a stenographer for the prosecuting attorney is as follows:
"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."
The record shows that for about 20 years the board of supervisors of Van Buren county has been appointing a "county stenographer" under the provisions of Act No. 160, Pub. Acts 1915 (3 Comp. Laws 1915, § 15680), as amended by Act No. 329, Pub. Acts 1917. This act provides that the magistrate holding an examination in a criminal case not *Page 246 cognizable by the magistrate might appoint a stenographer, at the request of the prosecuting attorney and with the consent of the respondent or his attorney, to take down the testimony. As amended by the criminal code (Act No. 175, Pub. Acts 1927 [3 Comp. Laws 1929, § 17203 (Stat. Ann. § 28.929)]), this act provides that evidence given by witnesses in such examinations, unless otherwise provided by law, "shall be taken down in shorthand by a county stenographer where one has been appointed under the provision of any local act of the legislature or bythe board of supervisors of the county wherein such examinationis held, or the magistrate for cause shown may appoint some other suitable stenographer at the request of the prosecuting attorney of said county with the consent of the respondent or his attorney to act as official stenographer pro tem."
For many years the "county stenographer" thus appointed for Van Buren county has been doing the work of a stenographer for the prosecuting attorney in addition to taking testimony on examinations in criminal cases and performing other services for the county. After the board of supervisors had adopted the county budget in October as hereinbefore stated, some controversy arose between the prosecuting attorney-elect and members of the board of supervisors in regard to the prosecutor appointing a stenographer. At an adjourned meeting of the board of supervisors on December 13th it took the following action:
"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 *Page 247 that Mrs. Genevieve Lamme be elected as county stenographer.
"Motion carried."
We are not called upon to determine whether the attempted appointment of Mrs. Lamme was legal. However, it is evident from the above action on December 13th, before plaintiff was appointed, that the board of supervisors intended to follow the practice of previous years. The prosecuting attorney and his wife (the plaintiff) had ample notice and knowledge of these circumstances before the prosecutor attempted to make this appointment. There was nothing new in the mere circumstance that the budget appropriation contained an item for "Stenographer, salary $1,200."
The subject matter of this suit was before us inRupert v. Van Buren County Clerk, 290 Mich. 180, wherein this plaintiff sought mandamus to compel the county clerk to issue a warrant to her for compensation. This court denied the writ and in so doing said:
"In view of the fact that the board of supervisors failed to authorize the appointment of a stenographer for the office of the prosecuting attorney, the county clerk was required to construe section 1297 to determine whether the prosecuting attorney had the right to appoint a stenographer. Such action would involve judgment. It was not a mere ministerial duty."
While it might appear that we thus decided the question at bar, we did not have in the mandamus case many of the circumstances shown by the present record. These circumstances raise an issue of fact as to whether the board of supervisors did authorize the prosecuting attorney to appoint a stenographer at county expense. While the facts are not *Page 248 largely in dispute, the inferences to be drawn from these circumstances raise a question for the jury.
Judgment should be reversed and the cause remanded for new trial, with costs to abide the outcome.