Advisory Opinion on Constitutionality of 1978 Pa 426

• Decision Date: 22 December 1978
• Docket Number: No. 62119,No. 13,13,62119
• Citation: 272 N.W.2d 495,403 Mich. 631
• Parties: ADVISORY OPINION ON CONSTITUTIONALITY OF 1978 PA 426 (Enrolled House Bill 4407). Calendar
• Court: Michigan Supreme Court

Page 495

272 N.W.2d 495

403 Mich. 631

ADVISORY OPINION ON CONSTITUTIONALITY OF 1978 PA 426

(Enrolled House Bill 4407).

Calendar No. 13.

No. 62119.

Supreme Court of Michigan.

Dec. 22, 1978.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Eugene Krasicky, First Asst. Atty. Gen., Charles D. Hackney, George L. McCargar, Asst. Attys. Gen., Frederick S. Anderson, Attorney for Michigan State Senate.

James Dunn, Tom Downs, John D. Pirich, Downs, Pirich & Downs, P.C., Lansing, for amici Capitol Area Rail Council et al., in support of validity of 1978 PA 426.

Frederick S. Anderson, Lansing, for amicus curiae Senator William Faust, Senate Majority Leader.

MOODY, Justice.

The Court has been asked by the Governor for an advisory opinion on the constitutionality of 1978 P.A. 426, enrolled HB 4407. Although two questions were incorporated in the Court's order granting the request, for purposes of simplicity and clarity, we combine the two questions into one. The single question before the Court is whether the Lieutenant Governor's affirmative vote under the provisions of Const.1963, art. 5, § 25, may be counted for the final passage of HB 4407 when the Senate, with all members voting, divided equally, in view of the apparently contradictory language of Const.1963, art. 4, § 26, providing that "(n)o bill shall become a law without the concurrence of a majority of the members elected to and serving in each house". We answer this question in the affirmative. The Lieutenant Governor may cast a tie-breaking vote during the final consideration of a bill when the Senate is equally divided, pursuant to Const.1963, art. 5, § 25. ¹

I

On September 30, 1978, Governor William Milliken signed into law enrolled House Bill 4407 (1978 P.A. 426), which increases gasoline and diesel fuel taxes on January 1, 1979. One of a series of transportation bills, the bill was passed by the Michigan House of Representatives on September 14, 1978, by a vote of 57 to 50. Michigan House J (No. 101, 1978) 2984. When the bill was considered for final passage by the Senate on September 26, 1978, 19 senators voted in favor of the bill and 19 senators voted against it. After the roll call vote of the individual elected senators resulted in a tie, pursuant to the provisions of Const.1963, art. 5, § 25, Lieutenant Governor James Damman cast a tie-breaking affirmative vote and the bill was declared to have passed. Michigan Senate J (No. 105, 1978) 2127.

Immediately, opponents of the bill began to challenge the constitutionality of the action taken by the Lieutenant Governor. This challenge is based upon a perceived conflict between Const.1963, art. 5, § 25 and Const.1963, art. 4, § 26. It is maintained that art. 4, § 26 prohibits non-elected members of the state legislature from voting on the final passage of a bill and, therefore, the Lieutenant Governor, as a member of the executive branch, acted outside the scope of his constitutional powers by casting the tie-breaking vote on the bill in question.

In view of this controversy, the Governor has requested that this Court issue an advisory opinion relative to the action taken by the Lieutenant Governor. On October 11, 1978, the Court agreed to provide the advisory opinion.

II

The question before the Court is whether the Lieutenant Governor, as President of the Senate, may constitutionally cast a tie-breaking vote during the final consideration of a bill when all members elected to and serving therein have voted and the Senate is equally divided. Resolution of the question necessitates construction of two constitutional provisions which appear to conflict with each other.

Const.1963, art. 5, § 25 provides, in relevant part:

"The lieutenant governor shall be president of the senate, but shall have no vote, unless they be equally divided."

The third sentence of Const.1963, art. 4, § 26, appears to conflict with Const.1963, art. 5, § 25, by stating:

"No bill shall become a law without the concurrence of a majority of the members elected to and serving in each house."

In an effort to harmonize these provisions, four basic rules of constitutional construction will be applied.

A

The primary rule of construction is the rule of "common understanding". Traverse City School Dist. v. Attorney General, 384 Mich. 390, 185 N.W.2d 9 (1971). In ascertaining the meaning of words in a constitution, a court should give effect to the plain meaning of such words as understood by the people who adopted it. Bond v. Ann Arbor School Dist.,383 Mich. 693, 178 N.W.2d 484 (1970); Michigan Farm Bureau v. Secretary of State, 379 Mich. 387, 151 N.W.2d 797 (1967).

Construed for its plain meaning, Const.1963, art. 5, § 25, clearly provides that the Lieutenant Governor may vote if the Senate is "equally divided". As stated by the Court over one hundred years ago, "The cardinal rule of construction, concerning language, is to apply to it that meaning which it would naturally convey to the popular mind." People v. Dean, 14 Mich. 406, 417 (1866). Certainly, the Michigan electorate in ratifying the 1963 Constitution, ascribed to the word "vote" the plain meaning of casting an effective vote.

Opponents of 1978 P.A. 426 argue that the language of art. 4, § 26 limits the tie-breaking power of the Lieutenant Governor to votes involving procedural matters and legislation at stages preceding final passage. We decline to adopt this construction, since to do so would effectively strip art. 5, § 25 of its significance and its plain meaning. It would be incongruous to give the Lieutenant Governor a tie-breaking vote in preliminary stages and at the same time to deny that vote at the final consideration of the same legislation. No more of an apparent and frustrating deadlock could exist than that which would occur on the final passage of a bill. If the drafters of the constitution had intended such result, they most assuredly could have modified the language of art. 5, § 25 to limit the Lieutenant Governor's tie-breaking power to those situations.

B

When there is conflict between general and specific provisions in a constitution, the specific provision must control. This second rule of construction is grounded on the premise that a specific provision must prevail with respect to its subject matter, since it is regarded as a limitation on the general provision's grant of authority. The general provision is therefore left controlling in all cases where the specific provision does not apply. McDonald v. Schnipke, 380 Mich. 14, 20, 155 N.W.2d 169 (1968); Hart v. Wayne County, 396 Mich. 259, 273, 240 N.W.2d 697 (1976).

In the instant case, art. 4, § 26 is the general provision and art. 5, § 25 is the specific provision. Thus, the language of art. 4, § 26 that "(n)o bill shall become a law without the concurrence of a majority of the members elected to and serving in each house" applies to every bill considered for final passage by the House of Representatives and to every bill considered for final passage by the Senate, except those rare situations ² where the Senate vote is "equally divided". In those instances, the specific language of art. 5, § 25 controls and thus renders inapplicable the general language of art. 4, § 26.

C

The third rule of construction was set forth by the Court in Kearney v. Board of State Auditors, 189 Mich. 666, 673, 155 N.W. 510, 512 (1915):

"In construing constitutional provisions where the meaning may be questioned, the court should have regard to the circumstances leading to their adoption and the purpose sought to be accomplished."

To ascertain the circumstances surrounding the adoption of a constitutional provision and the purpose sought to be accomplished by the provision, the "Address to the People" and the convention debates may be consulted. Regents of the University of Michigan v. Michigan, 395 Mich. 52, 235 N.W.2d 1 (1975); Burdick v. Secretary of State, 373 Mich. 578, 130 N.W.2d 380 (1964).

The two provisions relevant to the instant case were never debated together at the convention. However, the Convention Comment to art. 5, § 25, which was a part of the "Address to the People", illustrates the delegates' intent to significantly alter the 1908 Constitution ³ by providing the Lieutenant Governor with a tie-breaking vote:

"This is a revision of Sec. 19, Article VI, of the present (1908) constitution. A significant change is the provision that the lieutenant governor, in his capacity as president of the senate, may vote in case of equal division." (Emphasis added.) 2 Official Record, Constitutional Convention 1961, Address to the People, p 3382.

Furthermore, the delegates' comments indicate that in recommending to the electorate that a tie-breaking vote be given to the Lieutenant Governor, the framers had taken into consideration the size of the Senate and the constitutional mandate of an even number of senators. ⁴

Convention Delegate Hutchinson, after reflecting on his own experience in the State Senate, commented:

"I don't think that it would be good policy to let the lieutenant governor be a senator at large to make law that which has not been able to win a majority of the senators elect, except in that extreme situation where they are equally divided. And there would be no need of giving the lieutenant governor any power at all to break a tie vote if we had a constitutionally odd numbered senate so there would always be a number of senators not evenly divisible by 2 making up the body. Since our history is that we have even numbered senates, it is only sensible to let the lieutenant governor break a tie." 2 Official Record, Constitutional Convention 1961, Committee Proposal 71 (Const.1963, art. 5, § 25), p 1825.

The chairperson of the committee which proposed reinserting the Lieutenant Governor's right to vote stated the following rationale:

"(T)he committee envisioned that this would be a relatively rare situation which would arise, and that it is generally an unfortunate...