Garman v. Hare

• Decision Date: 02 September 1970
• Docket Number: Docket No. 9893,No. 2,2
• Parties: Kenneth W. GARMAN et al., Plaintiffs, v. James M. HARE, Secretary of State, et al., Defendants
• Court: Court of Appeal of Michigan — District of US

Page 563

182 N.W.2d 563

26 Mich.App. 403

Kenneth W. GARMAN et al., Plaintiffs, v. James M. HARE, Secretary of State, et al., Defendants.

Docket No. 9893.

Court of Appeals of Michigan, Division No. 2.

Sept. 2, 1970.

Released for Publication Jan. 19, 1971.

Erwin B. Ellmann, Levin, Levin, Garvett & Dill, Detroit, for plaintiffs

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

Before HOLBROOK, P.J., and FITZGERALD and T. M. BURNS, JJ.

HOLBROOK, Presiding Judge, and FITZGERALD, Judge.

This original proceeding is an emergency matter ready for determination under GCR 1963, 816.2(2)(g). We have considered all of the pleadings, briefs, and oral arguments of the parties.

Plaintiffs seek a writ of mandamus directing the Board of State Canvassers to process for placement on the November general election ballot a proposed amendment to the state constitution. Plaintiffs timely filed initiative petitions bearing the signatures of in excess of 320,000 registered electors. Relying upon an opinion of the Attorney General* the Board refused to process the petitions on the ground they were not in the form required by statute. After the filing of plaintiffs' complaint, this Court entered its order, dated August 12, 1970, which reads in pertinent part as follows:

'This Court, on its own motion, ORDERS that the defendant, Secretary of State, shall immediately accept the petitions offered by the plaintiffs as if they were valid and sufficient as to form, and the Secretary of State and the State Board of Canvassers shall forthwith proceed to canvass and process such petitions as required by applicable sections of the constitution and statutes of this state with sufficient dispatch so as to complete the same no later than September 4, 1970, or until further order of this Court or order of the Supreme Court.

'This Court takes the above action upon its own motion so as not to cause prejudice to either party in terms of timing in view of the forthcoming election. However, the true validity and sufficiency of the petitions is a question specifically saved for determination by this Court at a later date.'

The petitions filed bore the following heading:

'INITIATIVE PETITION

AMENDMENT TO THE CONSTITUTION

Proposed Amendment

Article 8, Section 2. No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school or at any location or institution where instruction is offered in whole or in part to such nonpublic school students. The legislature may provide for the transportation of students to and from any school.'

The statute relied upon by the Board (M.C.L.A. § 168.482 (Stat.Ann.1970 Cum.Supp. § 6.1482)) reads in pertinent part as follows:

'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."

Noting that the constitution presently contains an Article 8, Section 2, the opinion of the Attorney General states that: '* * * it is impossible to ascertain from the petition alone whether it is intended that the new language as set forth in the petition will replace or only supplement the existing language.' The opinion also states:

'Inasmuch as Art 8, § 2, will not read the same if the proposed amendment is adopted, it follows in my opinion that Art 8, § 2, as presently existing will either be altered or abrogated thereby. I am, therefore, constrained to hold that in such respect the petition as submitted does not comply with that particular requirement.'

We do not agree with the proposition that every proposed amendment to the constitution would, Ipso facto, alter or abrogate an existing provision. The statute reads 'If the proposal would alter or abrogate any existing provision of the constitution * * *.' (Emphasis supplied.) This implies that not all proposed amendments must be regarded as altering or abrogating an existing provision. Furthermore, the statute is clear that only if the proposal would have such an effect on an existing provision must such existing provision be set forth in the petition.

The petitions here in issue do not set forth any existing provisions of the constitution as being altered or abrogated by the proposed amendment. Consequently, it must be presumed that no alteration or abrogation of existing provisions was intended. This is confirmed by plaintiffs' brief in support of their complaint for mandamus where they argue:

'The petitions contain the complete text of what is proposed to be added to the Constitution. The Article and Section in which the language is to appear are identified. No existing provision was sought to be deleted, or set at naught. Since nothing was to be replaced, no mention was required.'

Supporting the position of the plaintiffs are such cases as School District of City of Pontiac v. City of Pontiac (1933), 262 Mich. 338, 247 N.W. 474, 787; DeMaggio v. Attorney General, ex rel. (1942), 300 Mich. 251, 1 N.W.2d 530; City of Jackson v. Commissioner of Revenue (1947), 316 Mich. 694, 26 N.W.2d 569; and Graham v. Miller (1957), 348 Mich. 684, 84 N.W.2d 46, holding in substance that a proposed amendment dealing with a particular subject, complete in itself, which does not specifically amend or replace any existing provision, does not constitute an alteration or abrogation within the context of the issue presented in this case. Nor is it of significance that the drafters of the petition determined that the proposed amendment should be added to an existing section rather than be made a separate section. In either event the present provisions of Article 8, Section 2, would remain intact and operative. That the present provisions of Article 8, Section 2, may need to be construed in...