Carton v. Sec'y of State

• Decision Date: 09 March 1908
• Citation: 151 Mich. 337,115 N.W. 429
• Parties: CARTON, President of Constitutional Convention, v. SECRETARY OF STATE.
• Court: Michigan Supreme Court

151 Mich. 337

115 N.W. 429

CARTON, President of Constitutional Convention,

v.SECRETARY OF STATE.

Supreme Court of Michigan.

March 9, 1908.

Mandamus by John J. Carton, president of the constitutional convention, against the Secretary of State, to compel respondent to take the necessary steps to submit to the electors at the next November election the Constitution framed by the constitutional convention. Granted.

Argued before GRANT, C. J., and BLAIR, MONTGOMERY, OSTRANDER, HOOKER, MOORE, CARPENTER, and McALVAY, JJ.

Hooker, McAlvay, and Montgomery, JJ., dissenting in part. Henry M. Campbell, Victor M. Gore, Frank S. Pratt, Andrew L. Moore, and Roger I. Wykes, for relator.

John E. Bird, Atty. Gen. (Henry E. Chase and Thomas Ambrose Lawler, of counsel), for respondent.

GRANT, C. J.

The people of Michigan, in preparing and adopting their first Constitution, provided means for a ‘revision or change of the entire Constitution,’ by authorizing the Legislature to recommend to the electors to vote for or against a convention, and, if the electors voted for it, by authorizing the Legislature to provide by law for calling such convention, to consist of not a less number than both branches of the Legislature. Section 2, art. 13, Const. 1835. Pursuant to this provision a convention was called to assemble in 1850. The entire Constitution was revised, submitted as a whole to the people, and adopted. The people again provided for future revisions and changes of the entire Constitution, by requiring the question of a general revision to be submitted to the electors qualified to vote for members of the Legislature at the general election of 1866, and every sixteenth year thereafter, and at other times should the Legislature so decide, and if the electors voted for such revision they required the Legislature at its next session ‘to provide by law for the election of such delegates to such convention.’ Pursuant to this provision the electors of 1905 voted for a convention, and in 1907 the Legislature, in obedience to the above mandate of the fundamental law, passed an act for the election of delegates to such convention. In that act they provided that the convention should meet October 22, 1907; that they should receive $10 per day as compensation, to cease January 31, 1908; and required the proposed Constitution to be submitted to a vote of the people at the April election of 1908. The convention did not complete its work until February 21st. Believing that there would not be sufficient time to publish the instrument and place it in the hands of the electors for their consideration and for an intelligent examination thereof before the April election, the convention provided that the instrument should be submitted at the general election in November, 1908, and required the respondent, Secretary of State, to issue the proper notices for such election. The respondent, doubting the power of the convention to fix a date other than that provided by the Legislature, declined to comply with the order of the convention, and this suit is instituted to obtain a speedy determination of the important question. The question is, which body has the power and is charged with the duty to prescribe the time and manner for submission to the electors?

I will discuss the question upon the assumption that the Constitution contains no express provision upon the subject. The act of the territorial Legislature, in calling the first convention, made no provision whatever for submitting their proposed Constitution to the people for ratification. 3 Ter. Laws, p. 1356. Plenary power was therefore inherent in that convention to provide for the time and manner of submission. It exercised that power. Section 9 of the Schedule, Const. 1835. The act of 1850 for the election of delegates to the convention provided that ‘said revision shall be submitted by the convention to the people for their adoption or rejection at such time and in such manner as the convention may prescribe.’ Act No. 78, p. 66, § 6, Sess. Laws 1850. The act for the election of delegates to the convention of 1867 contained the same provision. Act No. 41, p. 68, Sess. Laws 1867. The act calling the present constitutional convention is the first attempt on the part of the Legislature to fix the time and manner of submission. It is, in my judgment, of supreme significance that the people made complete provision in their first and second Constitutions for revising or changing their Constitution as a whole.

Single amendments might be submitted to a vote of the people by the Legislature (article 20, § 1); but no power to provide for a general revision was ever conferred upon the Legislature. On the contrary, it is prohibited. It was the evident and wise desire of the people to keep a general revision within their own exclusive power. They decided to exercise that power, not through their Legislature, but through a convention of their own citizens chosen by themselves expressly for that purpose. Questions had arisen in other states whose Constitutions contained no provision for a revision or change of the fundamental law, and the difficulties arising in consequence thereof may have been the reason why the framers of our Constitutions determined to place that power beyond question, and reserve it absolutely to the people. The Constitution of 1850 remains the fundamental law of the state until it is changed in the manner provided by that instrument or by revolution. The provisions for amending and revising it are as binding upon the several departments of government as any other provision. After the convention is called into being, it is limited in its powers by the existing Constitution, which it is bound to observe. The sole power conferred upon the Legislature in regard to changes in the Constitution is confined to three things: (1) To submit to the people single amendments. Section 1, art. 20. (2) To submit to the electors the question whether they desire a general revision of the Constitution. Section 2, art. 20. And, (3) if the electors so desire, ‘to provide by law for the election of delegates to the convention.’ Same section. By necessary implication the Legislature is prohibited from any control over the method of revising the Constitution. The convention is an independent and sovereign body whose sole power and duty are to prepare and submit to the people a revision of the Constitution, or a new Constitution to take the place of the old one. It is elected by the people, answerable to the people, and its work must be submitted to the people through their electors for approval or disapproval.

The people through their Constitution provided two agencies for such revision: One, the Legislature, with an express and limited power; and the other the constitutional convention, with power unlimited except by the provisions of the present Constitution. By article 4 ‘the legislative power is vested in a Senate and House of Representatives.’ Nowhere in article 4, entitled ‘Legislative Department,’ is any reference made expressly or impliedly to amendments or revisions of the Constitution. Only by section 2, art. 20, has the Legislature any power to act upon a revision of the Constitution. The power there conferred is ministerial rather than legislative. But the name is immaterial. It does not require the approval of the Governor to make it valid. It is made the sole agency by which the people may determine (1) whether they desire a revision, and (2) if they decide that they do, to provide for the election of delegates. While it is true that the maxim ‘Expressio unius est exclusio alterius' is more frequently applied to the construction of contracts and statutes (Williams v. Mayor, 2 Mich. 563), it is equally true that the maxim may and should be applied to constitutional provisions in a proper case. The Supreme Court of Rhode Island applied this maxim in construing the Constitution of that state in regard to amending the Constitution, and said: ‘The ordinary rule is that, where power is given to do a thing in a particular way, there the affirmative words, marking out the particular way, prohibit all other ways by implication, so that the particular way is the only way in which the power can be legally executed.’ In re the Constitutional Convention, 14 R. I. 649, 651. It was contended in that case that the maxim was inapplicable in the interpretation of a state Constitution. I think it is especially applicable here. The power to provide for an election is the sole power conferred. It has been customary for the Legislature to provide the time for the convening of the convention, but, should this not be done, the members elect possess the inherent power to assemble and perform the duties imposed upon them. The Legislature undoubtedly has the power, under section 5 of article 14 of the Constitution (‘No money shall be paid out of the treasury except in pursuance of appropriations made by law’), to provide for the compensation of its members and the expenses of the convention. The present Constitution has thus provided a disinterested body to fix the compensation of members and the expenses of the convention, for members of the Legislature are not eligible to membership. Fyfe v. Kent County Clerk, 149 Mich. 349, 112 N. W. 725. The Constitution clearly leaves this convention free from, and untrammeled by, any other department of government. The Legislature cannot fix the time the convention may continue in session. The Legislature evidently recognized this limitation of their power in providing that the members should not receive compensation beyond a certain date. The date of submission is of importance. It is essential that the people should have sufficient time for an intelligent examination of the proposed Constitution in order that they may vote intelligently thereon. This is an important factor in constitution making. Manifestly the time of submission has nothing whatever to do...