Attorney Gen. Et Rel. Cook v. O'Neill

• Decision Date: 29 June 1937
• Docket Number: Motion No. 364.
• Parties: ATTORNEY GENERAL et rel. COOK et al. v. O'NEILL.
• Court: Michigan Supreme Court

280 Mich. 649

274 N.W. 445

ATTORNEY GENERAL et rel. COOK et al.

v.O'NEILL.

Motion No. 364.

Supreme Court of Michigan.

June 29, 1937.

Original quo warranto proceedings by David H. Crowley, Attorney General, on his own relation and on the relation of Arthur O. Cook and others, against James E. O'Neill.

Proceedings dismissed.

Argued before the Entire Bench.

David H. Crowley, Atty. Gen. (Arthur O. Cook, Robert H. Cook, Robert J. Curry, George Grant, Robert T. Holland, Raymond R. Kendrick, William C. O'Keefe, Stanley R. Ostler, Emmanuel B. Reese, Frank A. Rockwith, and Jerome Weadock, all of Saginaw, of counsel), for plaintiff.

Frank A. Picard, Robert S. Beach, and David L. Perrot, all of Saginaw, for defendant.

SHARPE, Justice.

The controlling facts involved in this application are not in dispute. Judge C. W. Browne, of the Tenth judicial circuit, died December 27, 1935, and on January 2, 1936, Alfred P. Pierson was appointed by the Governor to fill the vacancy. He qualified and has performed the duties of circuit judge. At the general election held November 3, 1936, Judge Pierson and the defendant, James E. O'Neill, were candidates for the office. It resulted in Mr. O'Neill receiving the highest vote. The state board of canvassers certified to the election of Mr. O'Neill, and he has since been acting as circuit judge, although Mr. Pierson claims that he (Pierson) has not surrendered up nor abandoned the office.

Mr. O'Neill was admitted to the Bar of the State of Michigan August 7, 1928, on motion in the circuit court for the county of Saginaw, but did not file with the clerk of the Supreme Court of this state his affidavit showing his name, residence, citizenship, and the court by which he was admitted to practice in this state as required by 3 Comp.Laws 1929, § 13578, until March 10, 1932.

It is plaintiff's claim that under the statutes of this state James E. O'Neill is not qualified for circuit judge because of 3 Comp.Laws 1929, § 13578, which provides: ‘In case of admission to practice otherwise than on motion made in the supreme court, no person shall be entitled to practice as an attorney and counselor in the courts of this state until he files with the clerk of the supreme court his affidavit showing his name, residence, citizenship and the court by which he was admitted to practice in this state, together with a certified copy of the order upon which the admission was made.’ And Act No. 107, Pub.Acts 1935 (amending Pub.Acts 1915, No. 314, c. 2, § 40), which provides: ‘No person shall be eligible for election or appointment to the office of circuit judge in this state, unless he be a regularly licensed attorney and counselor, duly admitted to practice in all the courts in this state, for at least a period of eight years prior to such election.’

The defendant contends that Act No. 107, Pub.Acts 1935, is unconstitutional for the reason that the Legislature has no right, power, or authority to legislate upon the qualifications of a judge of any of the courts of our state; and that if the Legislature has power to enact legislation affecting the qualifications of circuit judges, then Act No. 107, Pub.Acts 1935, is unconstitutional because it is discriminatory, unreasonable, and capricious, as to be in violation of the ‘due process' and ‘equal protection of the law’ clauses of our State and Federal Constitutions.

In our examination of the Constitution of Michigan adopted in 1908, we find that it provides as follows:

‘All political power is inherent in the people. Government is instituted for their equal benefit, security and protection.’ Article 2, § 1.

‘The powers of government are divided into three departments: The legislative, executive and judicial.’ Article 4, § 1.

‘No person belonging to one department shall exercise the powers properly belonging to another, except in the cases expressly provided in this constitution.’ Article 4, § 2.

‘The judicial power shall be vested in one supreme court, circuit courts, probate courts, justices of the peace and such other courts of civil and criminal jurisdiction, inferior to the supreme court, as the legislature may establish by general law, by a two-thirds vote of the members elected to each house.’ Article 7, § 1.

‘The legislature may provide by law for the election of more than one circuit judge in any judicial circuit. * * * Each circuit judge shall hold court in the county or counties within the circuit in which he is elected, and in other circuits as may be provided by law. The legislature may by law arrange the various circuits into judicial districts, and provide for the manner of holding courts therein. Circuits and districts may be created, altered or discontinued by law, but no such alteration or discontinuance shall have the effect to remove a judge from office.’ Article 7, § 8.

The theory of our government, both federal and state, is one of separation of powers. Washington in his Farewell Address said: ‘It is important that the habits of thinking in a free country should inspire caution in those intrusted with its administration to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. * * * The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern, some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them.’

In Public Schools of City of Battle Creek v. Kennedy, 245 Mich. 585, 223 N.W. 359, 360, we said: ‘Under our Constitution, ‘all political power is inherent in the people’ (Constitution, article 2, § 1).' And in Common Counsel of Detroit v. Engel, 202 Mich. 536, 168 N.W. 462, 464, we said: ‘Without the Constitution which the people in their sovereign power have ordained and established as a form of government for the state, delineating in it certain first principles of our fundamental laws, there would be no Legislature or other state governmental departments as they now exist.’

In 6 R.C.L. p. 157, § 157, it is stated: ‘The judiciary is an independent department of the state government, deriving none of its judicial power from either of the other departments. * * * in a general way, the courts possess the entire body of judicial power. The other departments cannot properly assume to exercise any part of this power; it cannot be taken away by a legislative action, nor is the legislature permitted to interfere with the courts in the performance of their duties, * * *’

In Barker v. People, 3 Cow.(N.Y.) 686, 15 Am.Dec. 322, it is said: ‘Eligibility to public trusts, is claimed as a constitutional right, which can not be abridged or impaired. The constitution establishes and defines the right of suffrage; and gives to the electors, and to various authorities, the power to confer public trusts. * * * Excepting particular exclusions thus established, the electorsand the appointing authorities are, by the constitution, wholly free to confer public stations upon any person, according to their pleasure. The constitution giving the right of election and the right of appointment; these rights consisting essentially, in the freedom of choice; and the constitution also declaring, that certain persons are not eligible to office; it follows from these powers and provisions, that all other persons are eligible. Eligibility to office, is not declared as a right or principle, by any express terms of the constitution; but it results, as a just deduction, from the express powers and provisions of the system. The basis of the principle, is the absolute liberty of the electors and the appointing authorities, to choose and to appoint, any person, who is not made ineligible by the constitution. Eligibility to office, therefore, belongs, not exclusively or especially to electors, enjoying the right of suffrage. It belongs equally, to all persons whomsoever, not excluded by the constitution. I therefore conceive it to be entirely clear, that the legislature can not establish arbitrary exclusions from office, or any general regulation requiring qualifications, which the constitution has not required. If, for example, it should be enacted by law, that all physicians, or all persons of a particular religious sect, should be ineligible to public trusts; or that all persons not possessing a certain amount of property, should be excluded; or that a member of the assembly must be a freeholder; any such regulation, would be an infringement of the constitution; and it would be so, because, should it prevail, it would be in effect, an alteration of the constitution itself.’

The plaintiff contends that while the Michigan Constitution prescribes no qualifications for a circuit judge, yet there are no restrictions upon the power of the Legislature to prescribe such qualifications, and cites Kelley v. Edwards, 38 Mich. 210, as authority for the proposition that the Legislature has authority to determine who shall occupy the office of judge of probate. We have examined this case. It pertains to an act of the Legislature which provides that when the office of a judge of probate is vacant, the circuit court commissioner shall perform such duties. A close examination of this case will determine that while an act of the Legislature was involved, yet the act did not prescribe qualifications for a judge of probate. We have also examined In re Bonam, 255 Mich. 59, 237 N.W. 45, and find that this case is not in point. Counsel for plaintiff have cited many cases from other jurisdictions, but in our opinion they are not controlling of the question involved here.

In People v. May, 3 Mich. 598, 610, we find this statement: ‘We concede, to the fullest extent, that it is not in the power of the judiciary, or even the Legislature, to...