Dearborn Tp. v. Dail

• Decision Date: 06 October 1952
• Docket Number: No. 36,36
• Citation: 334 Mich. 673,55 N.W.2d 201
• Parties: DEARBORN TP. v. DAIL.
• Court: Michigan Supreme Court

Page 201

55 N.W.2d 201

334 Mich. 673

DEARBORN TP. v. DAIL.

No. 36.

Supreme Court of Michigan.

Oct. 6, 1952.

Jesse W. Bollinger, Dearborn, for appellant.

Marx & Fewlass, Detroit, for cross-appellant.

John J. Nellis, Detroit, for Nankin Tp.

Russel J. Comer, Lincoln Park, for Taylor Tp.

Fred B. Hill, Detroit, for Sumpter Tp.

Fred B. Hill, Detroit, Elton R. Nellis, Detroit, of counsel, for Brownstown Tp.

Gerald K. O'Brien, Pros. Atty., for Wayne County, Hobart Taylor, Jr., Philip A. McHugh, Aloysius J. Suchy, Asst. Pros. Attys., Detroit, amici curiae.

Before the Entire Bench, except NORTH, C. J.

BUTZEL, Justice.

Revised Statutes of 1846, ch. 16, § 70, provided that the supervisor, two justices of the peace and the township clerk of each organized Michigan township should constitute its township board, three of its four members constituting a quorum. P.A.1935, No. 19, and P.A.1937, No. 81, amended section 70 of chapter 16 of the Revised Statutes of 1846, so as to provide that in townships of under 5,000 population there was to be a five-member board, consisting of the supervisor, the two justices of the peace whose terms of office 'will soonest expire,' the township treasurer and the township clerk, three of whom should constitute a quorum; and that in townships having a population of 5,000 or over according to the last Federal census there was to be a sevenman board, consisting of the supervisor, the township treasurer, the township clerk and four justices of the peace, any four of whom should constitute a quorum. The provisions for a seven-man board were conditioned, however, upon the electors of the township adopting the provisions of section 70, supra, by a majority vote at any annual town meeting. Section 70, supra, as amended is set forth in C.L.1948, § 41.70, Stat.Ann. § 5.62. There were further amendments to clarify the population provisions of the act but they are not material here. P.A.1945, No. 23; P.A.1949, No. 9. For brevity, we refer to the amended act as section 70, supra. For over 100 years justices of the peace have been members of the township board. Statutes relating to the powers and duties of township board in regard to procuring standards of weights and measures, prohibiting sales of liquor to certain persons, granting licenses to tavern keepers, licensing public exhibitions, et cetera, are listed in the index of the Revised Stautes of 1846. The township board since 1846 has been expressly given certain legislative and administrative powers.

Prior to 1947 Dearborn township, plaintiff herein, had been organized with a five-man board but at an annual meeting of the electors held on April 7, 1947, the township was brought under the provisions of the amendment applicable to township having 5,000 population or over, the Federal census of 1940 having indicated a population far in excess of 5,000. The township operated under a seven-man board until the annual meeting of the electors on April 28 1951, at which time the electors purported to rescind their action taken in 1947 and to re-establish a five-man board. The reason given at the time was that the seven-man board gave the majority control to the four justices of the peace. Defendant township clerk thereafter recognized only the votes of the two justices of the peace 'whose term would soonest expire.' Plaintiff, claiming that the resolution restoring the five-man board was ineffective for various reasons, brought a bill for declaratory judgment, asking that defendant be required to record all four votes of the justices. On motion for entry of a judgment on pleadings the trial court held for defendant, on the ground that the Constitution forbade the legislature from giving legislative power to judicial officers, namely, justices of the peace, and thus neither two nor four justices of the peace could be members of a township board. Other questions were raised but we believe the overall question is the constitutionality of section 70, supra, in constituting justices of the peace members of the township board, a legislative body.

More specifically stated, defendant contends that section 70, supra, providing that justices of the peace be members of either a five-man or a seven-man board, violates Article IV, §§ 1 and 2, of the Michigan Constitution, which divides the State government into three departments: the legislative, the executive and the judicial, and forbids any person belonging to one department from exercising powers properly belonging to any other except in cases expressly provided for in the Constitution. The judicial power, by Article VII of the Constitution, is vested in justices of the peace as well as the higher courts. If defendant is correct in his contention that section 70, supra, is unconstitutional in so far as it makes justices of the peace members of township boards, we need not discuss other questions raised.

In coming to our conclusions, we are mindful of the restrictions upon the power of this court to declare a challenged statute in conflict with our Constitution. It is too well settled to require citation that a statute must be treated with the deference due to a deliberate action of a coordinate branch of our State government. If the legislature enacted a statute which does not violate the provisions of the Constitution, this court may not inquire into the wisdom of the legislation or substitute its judgment for that of the legislature. The conflict between the statute and constitutional provisions must be clear and inevitable before we strike down a statute as unconstitutional.

Plaintiff, in attempting to uphold the constitutionality of section 70, supra, relies on section 1 under the Schedule appended to the Constitution of 1908, which provides as follows:

'The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are altered or repealed.' (Italics ours.)

He also cites a similar provision appended to the Constitution of 1850, and contends that by reason of such provisions the constitutionality of section 70, supra, in effect at the time of the constitutional revisions, was affirmed. An examination of the quoted language of section 1, however, shows that a statute which was in deed 'repugnant' to the provisions of the Constitution would not be embraced in this section. We find that the re-enactment of such statute has no determinative effect her other than as further proof of the long period in which it has been in effect without challenge. Section 5 of the Schedule appended to the Constitution refers to 'officers' and not to 'offices' and is not relevant here.

Our reluctance to overturn an action of the legislature increases when we are confronted by an enactment of such ancient vintage. For over one hundred years justices of the peace have sat upon township boards within the State of Michigan without any question being raised as to their eligibility. If we were confronted with a matter of construction of a statute containing some claimed ambiguity or with a mere technical objection, long acquiescence in a certain interpretation of such statute might be binding on us. But neither contemporaneous construction nor long acquiescence can prevail over the plain language of the Constitution when the constitutional question is presented to us for the first time. Repetition of error does not correct it nor can acquiescence for a very long time legalize a clear usurpation of power. The fact that justices of the peace have acted as de facto members of township boards over the years does not made them members de jure.

Additional constitutional provisions which may be pertinent in considering the instant problem are as follows:

Articel VIII of the Michigan Constitution of 1908, entitled 'Townships, Local Legislation,' States:

'Sec. 17. The legislature may by general law confer upon organized townships such powers of a local, legislative and administrative character, not inconsistent with the provisions of this constitution, as it may deem proper.'

The Constitution makes no provision for any other agency to be vested with the powers mentioned in section 17, supra, but they are vested by various statutes in the township board.

It is apparent that section 70, supra, attempts to vest justices of the peace, officers possessing judicial power by virtue of Article VII, § 1, with legislative and administrative power given to the township governing bodies thereof under Article VIII, § 17. On its face, therefore, section 70, supra, to the extent that it constitutes justices of the peace members of the township board is a violation of Article IV, § 2, which provides that no person belonging to one department shall exercise the powers properly belonging to another.

In many decisions this court has upheld and jealously guarded the right to keep distinctly separate one department from another. The doctrine of strict separation was early set forth by Mr. Justice Cooley in People ex rel. Sutherland v. Governor, 29 Mich. 320. In holding that the apportionment of powers to one of the three coordinate branches is a prohibition of its exercise by either o the other departments, he said:

'Our government is one whose powers have been carefully apportioned between three distinct departments, which emanate alike from the people, have their powers alike limited and defined by the Constitution, are of equal dignity, and within their respective spheres of action equally independent. One makes the laws, another applies the laws in contested cases, while the third must see that the laws are executed. This division is accepted as a necessity in all free governments, and the very apportionment of power to one department is understood to be a prohibition of its exercise by either of the others. The executive is forbidden to exercise judicial power by the same implication which forbids the courts to take upon themselves his...