The judgment should be reversed. I do not believe that the claim of plaintiff can in any sense be considered a just or a legal claim chargeable against the county of Oakland.
Section 1211, 1 Comp. Laws 1929 (Stat. Ann. § 5.559), provides in part:
"The said board shall have power, and it is hereby expressly authorized and directed:
"First, To audit all claims which are chargeable against the said county, as in section 8 above provided, and to draw warrants therefor, duly signed by its chairman and countersigned by the clerk; but no warrant shall be drawn or issued by said board except for the amount of a just claim against said county, which has been duly allowed by said board."
The Oakland county board of auditors on February 16, 1945, wrote to Mr. McQuaid a letter from which we quote in part as follows:
"a. Preparatory to entering the service you led us to believe that no claim would be made.
"b. You followed your conversations with us, with a public statement (Pontiac Daily Press, June 22, 1942) designed to give the public the same impression. *Page 246
"c. You returned and filed claim for $8,637.50.
"d. After editorial criticism you stated in the press (February 9, 1945) that `In October, 1942, during my absence, at the time salaries were set for county officers for the subsequent two years, each other office was given a raise in salary except the register of deeds,' when the facts were, as the 1942 Supervisors Journal will show (Book 18, page 42 Miscellaneous Resolution No. 1959), the salary for register of deeds was increased from $3,600 to $3,900 for the year 1943 and 1944.
"e. You did not earn or work for the money you seek.
"There is no righteous, upright, honest, pure, virtuous, proper or reasonable excuse for us to allow your claim."
The record shows that plaintiff requested that while he was in service no checks be issued to him; that the chairman of the board of auditors suggested that a check be drawn to him, and he endorse it back, and that he stated that the navy would not allow anybody to draw checks while they were in the service. He admitted on the stand that he gave the board reason to believe that he would not draw any checks during his absence. These statements were publicized in the press, and while in the service he was re-elected two successive terms after the expiration of the term during which he had enlisted in the navy.
The public did not know that he was contemplating claiming a salary for the period during which he was in the navy. It is very doubtful whether they would have re-elected him from time to time had they known that, although he had given notice that he would not draw any salary, and had insisted that no salary checks be issued to him, nevertheless, upon his discharge he would then demand salary for the entire period during which he was absent *Page 247 and during which he received pay from the United States government.
I agree with the board of auditors in their finding that the claim was not a just one. I am in accord with the letter as quoted. Plaintiff claims that he supervised and reviewed the work of his subordinates in the operation of his office at such time as he was able to secure leaves from service in the navy. He was away on the serious government business of war. He was not a commercial traveler who visited home periodically and spent some time there. The navy and army demands the entire time and attention of their officers and men practically to the exclusion of all other business. Plaintiff filed his petition with the board of auditors for allowance of his alleged claim in accordance with 1 Comp. Laws 1929, § 1211, from which we have heretofore quoted. He thus chose his remedy. The board of auditors had to determine whether the claim was just and they properly held it was not. This is not a mandamus action in which plaintiff might have encountered other difficulties, for mandamus is a matter of grace. Plaintiff has no moral claim. Neither do I believe he has a legal one.
Similar cases have arisen in other States. The issue in many of the cases was not whether the absentee officeholder was entitled to salary during the time he was away in the armed services, but whether by his absence and entrance into the armed forces he vacated his State office. We shall not dwell upon decisions where constitutional or statutory provisions bar officeholders from holding two offices, or a State and Federal office at the same time, but we merely state that in accordance with the following recent decisions plaintiff would not be entitled to his salary, and he could not regain his office except at the next regular election. People, *Page 248 ex rel. Cromer, v. Village of Maywood, 381 Ill. 337 (45 N.E. [2d] 617); State, ex rel. Cooper, v. Roth, 140 Ohio St. 377 (44 N.E. [2d] 456); Wimberly v. Deacon, 195 Okla. 561 (144 Pac. [2d] 447); Commonwealth, ex rel. Crow, v. Smith, 343 Pa. 446 (23 Atl. [2d] 440); Commonwealth, ex rel. Adams, v.Holleran, 350 Pa. 461 (39 Atl. [2d] 612).
More interesting and pertinent is the case of Perkins v.Manning, 59 Ariz. 60 (122 Pac. [2d] 857), wherein it was declared as a matter of public policy, without reliance upon any constitutional or statutory restrictions, that the office was vacated by the officeholder's entry into the armed services. In that particular case the officeholder attempted to remain in office by a cloak of several continual 90 days' leaves of absence. He returned on military leave before the respective 90 days' periods had expired, consulted with the heads of the several departments under his jurisdiction, and from time to time gave them additional instructions by correspondence. He also performed a certain amount of the work of his office by correspondence and signed many official documents sent to him in camp. The court tore aside this subterfuge and stated "that public policy requires that anyone accepting and retaining a public office should not place himself, by the accepting of another office, in such a position that it is physically impossible for him properly to perform the duties of both offices, and if the nature of the two offices is such that this impossibility does appear, the offices are incompatible and the acceptance of the second office, ipso facto, vacates the first." We do not choose to go as far in the instant case.
In State, ex rel. Thomas, v. Wysong, 125 W. Va. 369 (24 S.E. [2d] 463), the court in holding that the office was not vacated especially noted the fact that the claimant officeholder stated that he would *Page 249 not accept any compensation as long as he remained in the military service of the United States.
A Montana statute held that the absence of the officeholder temporarily suspended his right to the office and salary.Gullickson v. Mitchell, 113 Mont. 359 (126 Pac. [2d] 1106). To like effect see State, ex rel. Sanchez, v. Stapleton,48 N.M. 463 (152 Pac. [2d] 877).
In Frazier v. Elmore, 180 Tenn. 232 (173 S.W. [2d] 563), the Tennessee Constitution provided that no State officer could hold two offices, despite which the legislature passed a statute declaring that the office should not be deemed vacant during the absence of an officeholder while away on military duty, but the salary of the office should be paid to the temporary appointee. The court held that the absentee could not challenge the constitutionality of the statute which was enacted for his benefit and could not therefore attack the "just and equitable" salary provision.
Similarly, Critchlow v. Monson, 102 Utah, 378 (131 Pac. [2d] 794), held that the office was not vacated when the officeholder secured a leave of absence but commented upon the fact that the officeholder made no attempt to draw his salary or any of the emoluments of the office, and quoted with approval the following from State, ex rel. McGaughey, v. Grayston,349 Mo. 700 (163 S.W. [2d] 335):
"The situation we are considering is analogous to a leave of absence as that term is understood in the business world. The common meaning of the term signifies temporary absence from duty with an intention to return, during which time remuneration is suspended."
The Missouri court, supra, did hold that the office was not vacated and the absence should be construed as similar to a leave of absence, and reaffirmed this *Page 250 principle in State, ex rel. McKittrick, v. Wilson,350 Mo. 486 (166 S.W. [2d] 499, 143 A.L.R. 1465).
In some earlier decisions in Kentucky, it was held that the office was not vacated, but the salary issue was not discussed. However, in City of Monticello v. Tate, 296 Ky. 569 (178 S.W. [2d] 27), the officeholder not only claimed that he was entitled to the office but sued for the salary for the period in which he was absent. The court held that while the office was not vacated during his absence, neither was he entitled to the salary, and stated:
"We are definitely of the opinion that a public officer is not entitled to the emoluments of his office while he is serving in the armed forces. As heretofore pointed out, his occupancy or holding of his civil office is suspended, and we fail to see how it can be contended seriously that he is entitled to remuneration therefrom under such a condition."
In California by a series of decisions it was held that a voluntary enlistee does not vacate his office and his absence is in the nature of a military leave, not restricted by the constitutional provision denying the legislature the power to grant a judicial officer a leave of absence, and in accordance therewith the absentee was not entitled to any pay while he was in the armed services. McCoy v. Board of Supervisors of theCounty of Los Angeles, 18 Cal.2d 193 (114 Pac. [2d] 569);People, ex rel. Happell, v. Sischo, 23 Cal.2d 478 (144 Pac. [2d] 785, 150 A.L.R. 1431); Weinberger v. Riley, 23 Cal.2d 499 (144 Pac. [2d] 796).
We quote from State, ex rel. Clinger, v. Shell, 71 Ohio App. 555 (50 N.E. [2d] 568) (appeal dismissed in 141 Ohio St. 474 [48 N.E.2d 1009]):
"This court recognizes the general proposition that an elected official is entitled to the emoluments *Page 251 of his office including his salary. However, it seems patent that to receive public moneys for duties never performed, while at the same time being remunerated through another source for the same period for activities in an entirely different field, is wholly against the public good. We cannot ignore the fact that civil government must be maintained. The expense is defrayed by the taxpayer. The adoption of a policy whereby that expense, for an elective office, is doubled for the taxpayer, already burdened with the expense of the prosecution of a war, is apt to endanger the orderly processes of government. Such a policy would shake public morale. This court, having the right and duty in this case, where the extraordinary remedy of mandamus is sought, to exercise its sound discretion, must deny the writ on the ground that it unduly burdens taxpayers and endangers the orderly processes of government, and that it would afford remuneration for duties never performed.
"We arrive at the foregoing conclusion whether or not a legal right is possessed by the relator. However, we seriously doubt the existence of a legal right. It will be noted that the legislature, in its enactment relative to vacancy, is entirely silent on the subject of salary. While we have stated that we recognize the general proposition of law that an elected official is entitled to the emoluments of his office and that the salary is a part thereof, yet we cannot lose sight of the equally true abstraction that it is for duties performed and services rendered that remuneration and salary is fixed and paid. The failure to perform a duty or render a service enjoined by law cannot become the grounds for remuneration under the circumstances of this case. We fully recognize and give complete effect to the enactment of the legislature insofar as the unequivocal language specifies. It is devoted to the proposition of vacancy alone and is entirely silent on the subject of salary. The enactment *Page 252 should bear a strict construction and like all other enactments should not be made the subject of judicial legislation. The circumstances of the instant case constitute it an exception and the general rules relative to salary and remuneration are not applicable. To hold otherwise would be to adopt a legal reasoning resulting in a conclusion shocking to any sense of equity and good judgment."
The theory of "leave of absence" which denies any salary during the time the officer is in the armed services does not conflict with any constitutional provision against diminishing the salary of an officer after his election or appointment to office. West Virginia, Montana, New Mexico, Tennessee, Utah, Missouri, Kentucky, California and Ohio, all had constitutional provisions which would bar the diminishing of the salary of the officer involved.
There are but two decisions to the contrary involving officers who had entered the armed services. Carpenter v. Sheppard,135 Tex. 413 (145 S.W. [2d] 562), writ of certiorari denied in312 U.S. 697 (61 Sup. Ct. 734, 85 L.Ed. 1132), held that because of a 1932 amendment to the Texas Constitution, the office was not vacated. The claimant was appointed to the Texas unemployment commission while a major in the National Guard and was called to active duty and detailed to duty with the military department of the State of Texas at Austin, the capital. He, however, was able to perform all of his duties as a member of the Texas unemployment commission and was held entitled to his full salary for the month of September. (He was called to active duty September 19, 1940, and his term as commissioner expired November 21, 1940.) The court stated:
"If the legislature should conclude that an officer in the National Guard cannot perform the duties of *Page 253 the office held by him in this State, while temporarily in the active military service of the United States, it may make provisions for such inability, just as it has made similar provisions in respect to other State offices, where the head of the department is unable for any reason to perform the duties of the office. It may adjust salaries on account of failure to perform the duties assigned to officers."
In Cramer v. Sheppard, 140 Tex. 271 (167 S.W. [2d] 147), the court found that the office was not vacated but deliberately pointed out that the officer did "specifically waive" compensation while serving in the armed forces.
The case of State, ex rel. Kopinski, v. Grzeskowiak,223 Ind. 189 (59 N.E. [2d] 110), upholds plaintiff's claim, but this is a minority view, and the facts show that the officeholder, who received a medical discharge, spent but the first four months of his term of office as justice of the peace in the army. This included furlough time at home, during which time he was sworn in and appointed a justice pro tem. for 60 days.
We shall not attempt to distinguish the above decision. We wish merely to say that we believe the majority view, amply supported by the decisions of other jurisdictions, is to regard service in the armed forces as entitling the officeholder to a military leave of absence during which time the pay is suspended. Nor do we think it "just" in any sense of the word to permit the officeholder to gain public moneys on the flimsy excuse that he was entitled to visit his office while on furlough, and thus did perform the work of the office. As a matter of public policy we hold that the office is not vacated, but that the pay is suspended during the time claimant served in the armed forces of the United States government. *Page 254
The judgment of the lower court should be reversed, and the case remanded for purpose of entering judgment for defendants. A public question being involved, no costs should be allowed.
BUSHNELL, J., concurred with BUTZEL, C.J.