Attorney Gen. ex rel. Barbour v. Lindsay

• Decision Date: 23 January 1914
• Parties: ATTORNEY GENERAL ex rel. BARBOUR et al. v. LINDSAY et al.
• Court: Michigan Supreme Court

178 Mich. 524

145 N.W. 98

ATTORNEY GENERAL ex rel. BARBOUR et al.

v.LINDSAY et al.

Supreme Court of Michigan.

Jan. 23, 1914.

Appeal from Circuit Court, Wayne County, in Chancery; Philip T. Van Zile, George S. Hosmer, Henry A. Mandell, George P. Codd, and P. J. M. Hally, Judges.

Proceeding by the Attorney General, on the relation of George H. Barbour and others, against Richard Lindsay and others, the Mayor and Board of Election Commissioners of the City of Detroit. Decree for defendants, and plaintiffs appeal. Affirmed.

Argued before McALVAY, C. J., and BROOKE, STONE, OSTRANDER, BIRD, MOORE, and STEERE, JJ. A. C. Angell and H. E. Spalding, both of Detroit, for appellants.

Richard I. Lawson and Allan H. Frazer, both of Detroit, for appellees.

McALVAY, C. J.

Upon relation of certain residents and taxpayers of the city of Detroit, the Attorney General filed this information, to test the validity of what is known as the municipal ownership amendment to the charter of the city of Detroit, and also the constitutionality of the statute under which such charter amendment was submitted by reason of its having been given immediate effect. The statute referred to is called the ‘Verdier Act,’ passed by the Legislature and approved March 11, 1913 (Pub. Acts 1913, No. 5), as an amendment to Act No. 279, P. A. of 1909, and was given immediate effect.

The defendants are the board of election commissioners and the mayor of the city of Detroit. The information was filed before any proceedings were taken for the submission of the proposed amendment to the electors, and prayed that respondents be enjoined from preparing ballots and taking any proceedings for such submission, and, in case the amendment was submitted and carried, that the mayor should be enjoined from appointing the board of street railway commissioners contemplated by the amendment and from doing anything else pursuant to the terms of the amendment or exercising the powers which it conferred. This information was filed March 31, 1913, before the proposed election, and after argument of the case a temporary injunction was denied and the information dismissed without prejudice. The amendment was accordingly submitted and carried by a large majority. The case was heard before five judges of the Wayne circuit court, who later filed opinions, all concurring in the dismissal of the information.

The amendment of the charter of the city of Detroit, the validity of which is questioned in these proceedings, is of considerable length, consisting of 22 sections, and for the purposes of this opinion does not require to be quoted. Its purpose is sufficiently stated in its title, which reads as follows: ‘A bill to amend the charter of the city of Detroit so as to provide for the municipal ownership, maintenance and operation of street railways beneath, upon and above the surface of the streets of the city of Detroit and within a distance of ten miles from any portion of its limits, and to issue bonds to defray the cost thereof, in accordance with Act No. 279 of the Public Acts of 1909, as amended.’

The amendment to the act above referred to, relied upon by respondents as authorizing the amendment to the clarter of the city of Detroit, is Act No. 5 of the Public Acts of 1913, which was ordered by the Legislature to take immediate effect, and was approved March 11, 1913. The validity of this amending act is challenged by the relator as contravening the provisions of section 21 of article 5 of the Constitution of this state, adopted in 1908, which provides as follows: ‘No act shall take effect or be in force until the expiration of ninety days from the end of the session at which the same is passed, except that the Legislature may give immediate effect to acts making appropriations and acts immediately necessary for the preservation of the public peace, health or safety by a two-thirds vote of the members elected to each house.’

Other questions are presented and discussed, but this is the most important question in the case, as it goes to the validity of both the amendment to the charter and the statute which authorized it. The contention of respondents upon this question, as stated in their brief, is as follows: ‘We maintain that the power to give an act immediate effect under said section of the Constitution is to be exercised by the Legislature, and the Legislature alone; that the Legislature is the sole judge of whether or not a law is immediately necessary for the preservation of the public peace, health, or safety; and that the courts have no power to interfere with such legislative discretion after it has once been exercised, right or wrong.’ In other words, that this question is exclusively one for the Legislature to determine. This, in effect, was the view taken by the trial court in disposing of the case. We must enter upon the consideration of the construction of this provision of the Constitution with the fundamental rule of construction constantly in mind that this construction contended for by respondents or any other construction cannot be accepted unless it can be found to be fairly within the meaning of the language of the provision itself. Cooley's Const. Lim. (7th Ed.) 89, 91.

The exact question in this state is one of first impression. The constitutional provision under consideration was embodied in the present Constitution of 1908 by adding to it a section which is a combination of sections 20 and 25, art. 4, contained in the Constitution of 1850. Section 20 of that Constitution read: ‘* * * No public act shall take effect or be in force until the expiration of ninety days from the end of the session at which the same is passed, unless the Legislature shall otherwise direct, by a two-thirds vote of the members elected to each house.’ The change made in this portion of section 21, art. 5, of the Constitution of 1908, under consideration, strikes out the clause ‘unless the Legislature shall otherwise direct by a two-thirds vote of the members elected to each house,’ and substituted the following: ‘Except that the Legislature may give immediate effect to acts making appropriations and acts immediately necessary for the preservation of the public peace, health or safety by a two-thirds vote of the members elected to each house.’

While the question is a new one in this jurisdiction and of great importance, it does not appear that the respondents, either in their brief or oral arguments, challenge the jurisdiction of this court to consider and decide it, nor do they in any way question the long line of authorities, both federal and state, which have established in this country the principle that the federal and state Constitutions, in their respective jurisdictions, are the fundamental law of the land, and that the courts within their several jurisdictions are empowered to finally determine, as a matter of law, the constitutionality of any legislative action. Under the former Constitution, any act passed by the Legislature might be given immediate effect if it received a two-thirds vote of the members elected to each house. By the added provision in section 21, no acts may be given immediate effect by the Legislature, except ‘acts making appropriations and acts immediately necessary for the preservation of the public peace, health or safety.’ The change made, therefore, in this respect was restrictive upon the powers formerly granted the Legislature.

So far in the consideration of this case we do not find any disagreement between the parties who have presented the matter for the consideration of this court. While not disputing the proposition that this provision was in its nature restrictive upon the Legislature, the contention of the respondents is that this clause reposed in the Legislature alone the power to determine whether an act passed by it was within the restriction fixed by the Constitution; that its determination, in the exercise of its legislative discretion, as to what acts shall take immediate effect is final and not subject to judicial review.

Before citing and discussing any authorities it will be well to consider the reason for placing in the new Constitution this restriction upon the powers of the Legislature.

This court will take judicial notice of the history and course of legislation in this state. Under the Constitution of 1850 it was possible and was the practice at any time during a session of the Legislature, and particularly in its last days, to pass and give immediate effect by a two-thirds vote any acts within its pleasure, thereby not giving sufficient notice to the public and those persons immediately interested and affected by the passage of such legislation which was necessarily enacted without proper discussion and consideration. That the intent of this constitutional provision was to prevent such action is clearly indicated by the wording of the restriction itself. The necessity for this restriction upon the former power of the Legislature to give all laws immediate effect by a two-thirds vote is therefore obvious. This constitutional provisions relates only to the passage of certain acts by the Legislature and as to when they take effect. When passed, all legislative acts are beyond its power and control and, except where the exercise of a delegated power is specifically made final, are all subject to construction by the courts, and it is for the courts to determine whether legislative discretion is final. Courts, both federal and state, have been vested by the several Constitutions with this authority of which they cannot be divested by the Legislature. In our opinion this proposition is supported by the overwhelming weight of the authorities. Judge Cooley, after discussing certain specific cases where the action of a Legislature or other body or person is necessarily final, has said: ‘But setting aside now those cases to which we have referred, where from the nature of things, and perhaps from explicit...