Carman v. Hare (State Report Title: Carman v. Secretary of State), No. 20

• Court: Supreme Court of Michigan
• Writing for the Court: PER CURIAM; T. M. KAVANAGH; T. G. KAVANAGH; ADAMS
• Citation: 185 N.W.2d 1,384 Mich. 443
• Parties: Kenneth W. CARMAN, David S. Evans, Jr., Terry Herndon, Harriett M. Phillips, Mary Ellen Riordan, Horace Sheffield, Jay Wabeke, for themselves and others similarly situated, Plaintiffs-Appellees, v. James M. HARE, Secretary of State, Bernard Apol, Director of Elections, Board of State Canvassers, Nathan Conyers, James Schoener, Zoe Shaffer Burkholz and Esther Waite, as members of the Board of State Canvassers, Defendants-Appellants. * January Term 1971.
• Docket Number: No. 20
• Decision Date: 31 March 1971

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185 N.W.2d 1 384 Mich. 443 Kenneth W. CARMAN, David S. Evans, Jr., Terry Herndon,
Harriett M. Phillips, Mary Ellen Riordan, Horace
Sheffield, Jay Wabeke, for themselves
and others similarly situated,
Plaintiffs-Appellees,
v.
James M. HARE, Secretary of State, Bernard Apol, Director of
Elections, Board of State Canvassers, Nathan Conyers, James
Schoener, Zoe Shaffer Burkholz and Esther Waite, as members
of the Board of State Canvassers, Defendants-Appellants.
^* No. 20 January Term 1971. Supreme Court of Michigan. March 31, 1971.

[384 Mich. 446]

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Levin, Levin, Garvett & Dill, Detroit, for plaintiffs-appellees.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Russell A. Searl, Asst. Atty. Gen., Lansing, for defendants-appellants.

Before the Entire Bench.

[384 Mich. 447] PER CURIAM.

July 15, 1970 plaintiffs sought mandamus in the Court of Appeals to force submission to the electors of an allegedly initiated 'Amendment to the Constitution' which, later, came to be known publicly as 'Proposal C.' The writ was ultimately granted. For details, see the opinion of Division 2, released September 2 (26 Mich.App. 403, 182 N.W.2d 563). Upon strength of that opinion and our order denying leave entered 12 days later (384 Mich. 751), the amendment proposed--and now in question--was submitted to the electors November 3 and approved by a strong majority.

The ensuing opinion should presay a cautionary note. It is that initiatory section 2 of article 12 of the Constitution of 1963 follows generally, yet differs in important respects from the corresponding sections of the Constitution of 1908 as those sections stood when certain of our past decisions were considered and released. Compare said section 2 with sections 2 and 3 of article 17 of the former Constitution; looking at the latter both in their original aspects and as amended in 1941. We shall consider this earmark upon present reference to the City of Jackson Case (1947), 316 Mich. 694, 26 N.W.2d 569.

The acceptance and visibly critical question we are called upon to decide is posed by the Attorney General:

'II. Is a petition proposing an amendment to an existing section of the Constitution sufficient when that section as presently in effect (sic) is not inserted under the heading 'Provisions of Existing Constitution Altered or Abrogated by Such Proposal if Adopted'?'

Division 2 responded in the affirmative. The attorney general contends for a negative answer. We agree with him. The final question, then, is what now to do; the proposed amendment having been [384 Mich. 448] approved and apparently adopted. That question will come to discussion and determination in the division designated 'Second,' below.

First: Section 2 of Article 12 of the Constitution requires that an initiatory

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amendment shall be published ('in full as provided by law') with 'existing provisions of the Constitution which would be altered or abrogated thereby.' The same section also requires that the initiatory petition shall be 'in the form, and shall be signed and circulated' as prescribed by law.

The constitutionally beckoned legislation appears in section 482 of the Michigan election law of 1954, as minor-amended in 1965 (M.C.L.A. 168.482). Section 482 provides, pertinently:

'* * * If the proposal would alter or abrogate any existing provision of the constitution, the petition should so state and the provisions to be altered or abrogated shall be inserted, preceded by the words:

"Provisions of existing constitution altered or abrogated by such proposal if adopted."

The now unmalleable fact of political action is that this initiatory petition did not set forth any provision or provisions of the existing Constitution which would be 'altered or abrogated by such proposal if adopted.' ¹ Although Expressly initiating the proposal as an amendment of section 2 of article 8, the petition did not under the required heading set forth 'existing' section 2 of article 8. Such omission is [384 Mich. 449] the crux of the attorney general's stated question II, above.

Had there been time for decisive judicial action during that critical 8 days of September which ensued upon receipt of briefs for and against the attorney general's emergent application for leave to review Division 2's September 2 decision, the stated omission doubtless would have arrested the initiation and enjoined submission of the mentioned proposal. There was no such time, however, hence our present effort to review and decide that which, hopefully, will result in better timing of appeals to the judicial process for determination of questions of state-wide importance that are justiciable and determinable in time for election day. In a word, a word we direct particularly to issues arising from initiated or legislatively proposed constitutional amendments, this petition for mandamus might better have been July-filed In this Court, GCR 1963, 714.1(1) notwithstanding. See the independently supreme authority provided by section 4 of the judicial article.

There is no unstilted way to avoid conclusion that the amendment initiated by these plaintiffs will, if given constitutional effect, both alter and amend section 2 of article 8 of the Constitution of 1963. ² The initiatory petitions were therefore insufficient--technically at least--for want of specific compliance with the constitutional complement, § 482.

Second: The electors have firmly approved this initiated amendment of section 2 of article 8. That they [384 Mich. 450] have done in the face of omitted specific performance of a constitutionaly authorized legislative mandate that initiators Shall set forth in their petitions, for the informative benefit of petition-signers, the very constitutional provisions or provisions such initiators desire to alter or amend. What is the result? We

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think the answer appears in the first sentence of the final paragraph of section 2 of article 12 (quoted below), viewing it as we should according to the established rules of constitutional construction and the Secretary of State's salutary corrective action which preceded the November 3 election.

Let us first compare what Was, in the initiative portion of the former Constitution, with what now Is. Section 2 of article 17 of the 1908 Constitution read:

'Any constitutional amendment initiated by the people As herein provided, shall take effect and become a part of the constitution if the same shall be approved by a majority of the electors voting thereon And not otherwise.'

The 1941 amendment of that same section 2 read:

'Any constitutional amendment initiated by the people As herein provided, shall take effect and become a part of the constitution if the same shall be approved by the number of qualified electors required in section 1(1) hereof for the approval of amendments proposed by the legislature, And not otherwise.'

Present section 2 of article 12 proceeds:

'If the proposed amendment is approved as a majority of the electors voting on the question, it shall become part of the constitution, and shall abrogate or amend existing provisions of the constitution [384 Mich. 451] at the end of 45 days after the date of the election at which it was approved.' ³

Reading these successive provisions with due care, one after the other, it is clear from the words employed and understood in 1961--62 that some less rigid initiatory procedure was written, for 'the common understanding.' Formerly an amendment had to be initiated 'as herein provided.' Formerly, if thus initiated, it would become a part of the Constitution shall it be approved by the designated majority, but 'not otherwise.' In 1963, however, the express requisite of initiation 'as herein provided' was eliminated. So was the 'not otherwise' stricture.

The due and applicable rule of construction is Not any one of the many by which we determine legislative intent. It is instead a duty to ascertain 'the common understanding'; a duty to ascertain 'that meaning which it (the provision in question) would naturally convey to the popular mind'; a duty to apply that interpretation 'which reasonable minds, the great mass of the people themselves, would give it.'

In one of the opinions of Lockwood v. Commissioner of Revenue (1959), 357 Mich. 517, 567--570, 98 N.W.2d 753, 764--766, some of these dovetailing rules of constitutional construction were quoted from the writings of great men of our legal past. Here are some of them. The first was written by Mr. Justice Story, the next [384 Mich. 452] by Mr. Justice Campbell, and the last by Mr. Justice Cooley. ⁴ (The Cooley quotation is taken from May v. Topping (1909), 65 W.Va. 656, 660, 64 S.E. 848):

'Constitutions are not designed for metaphysical or logical...