Green v. Hart

• Decision Date: 07 December 1972
• Docket Number: No. 3,No. 14140,14140,3
• Parties: Timothy M. GREEN, Plaintiff-Appellant, v. William R. HART, Court Administrator, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 306

205 N.W.2d 306

44 Mich.App. 259

Timothy M. GREEN, Plaintiff-Appellant, v. William R. HART, Court Administrator, Defendant-Appellee.

No. 14140.

Court of Appeals of Michigan, Division No. 3.

Dec. 7, 1972.

Leave to Appeal Denied Jan. 23, 1973.

Released for Publication March 20, 1973.

Everett R. Trebilcock, Fraser, Trebilcock, Davis & Foster, Lansing, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Stewart H. Freeman, Asst. Sol. Gen., for defendant-appellee.

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

PER CURIAM.

The plaintiff, Timothy M. Green, has been the elected and sitting probate judge of Clinton County since 1957. At all times while holding this post, he has carried on an extensive general law practice and has had causes before the various probate, district, circuit, and appellate courts of this State.

On May 18, 1971, plaintiff brought suit in Clinton County Circuit Court to test the constitutionality of § 3 of 1969 P.A. 271 (M.C.L.A. § 701.3; M.S.A. § 27.3178(3)).

The statute in question grows out of the Legislature's reorganization of the probate courts pursuant to Const.1963, Art. 6, § 15. ¹ Section 2a of the act revising the probate courts ² established 20 probate court districts by pairing up in twos and threes 42 of the 45 counties ³ which lie north of a line consisting of the northern boundaries of Muskegon, Kent, Montcalm, Isabella, Midland, and Bay counties. These new probate districts were to be created when approved by the majority of the electors in each of the counties affected. To date, only the counties of the seventh and seventeenth probate districts have approved the redistricting plan. ⁴

The statute under assault, which is part of the act reorganizing the probate courts, provides: ⁵

'Commencing January 1, 1971, the judges previously elected or appointed, or to be thereafter elected or appointed, except judges of a county comprising part of a proposed probate court district in which the electors of 1 or more counties thereof did not approve the same, Shall not engage in the practice of law other than as a judge and shall receive an annual salary of $20,000.00, 3/4 to be paid by the state and 1/4 by the county or counties comprising the district.' (Emphasis supplied.)

Save the four counties which have approved the redistricting plan, this statute in effect permits the general practice of law by those probate judges in counties located north of the so-called Bay-Muskegon line, but prohibits the general practice of law by their brethren in those counties situated south of this line. Thus under the statute, the plaintiff, as probate judge of Clinton County, is foreclosed from practicing law other than as a probate judge. ⁶

A nonjury trial was held on the constitutionality of the statute. Thereafter, the Clinton County Circuit Court by a judgment and order dated April 12, 1972, enjoined the plaintiff from the further practice of law and gave him 30 days in which to either wind up his private practice, resign as probate judge, or seek appellate review. This Court on May 12, 1972, granted plaintiff's motion for a stay of the proceedings pending a disposition of the instant appeal.

The plaintiff has launched a multipronged attack against the statute here in question. Initially plaintiff contends that 'the unamended title to the probate code is inadequate to express the purpose of prohibiting (the) practice of law by certain probate judges' and that 'the prohibition itself constitutes a second object of the statute not germane to its purposes as declared in its title', and thereby violates Const.1963, Art. 4, § 24. This argument is without merit.

Article 4, § 24, of the Constitution of 1963 provides in pertinent part:

'No law shall embrace more than one object, which shall be expressed in its title.'

The Supreme Court quoting from MacLean v. State Board of Control for Vocational Education, 294 Mich. 45, 48--49, 292 N.W. 662 (1940), in the case of Maki v. East Tawas, 385 Mich. 151, 157--158, 188 N.W.2d 593 (1971), stated that this section of the constitution was drafted (1) to prevent the Legislature from passing laws not fully understood; (2) to fairly notify the Legislature of a proposed statute's design; (3) to aid the Legislature and the public in understanding that only subjects germane to the title would be included in the legislation; and (4) to curtail 'log-rolling' by preventing the bringing into a bill diverse subjects not expressed in its title.

In Ryerson v Utley, 16 Mich. 269, 277 (1868), quoted with approval in Bankhead v. Mayor of River Rouge, 387 Mich. 610, 614, 198 N.W.2d 414 (1972), it was said:

'The constitution provides (article 4, § 20) that no law shall embrace more than one object, which shall be expressed in its title. We have heretofore had occasion to consider this section, and have said of it that it ought to be construed reasonably, and not in so narrow and technical a sense as unnecessarily to embarrass legislation * * *.'

The concept of reasonableness is the hallmark of the cases which have interpreted and applied Const.1963, Art. 4, § 24 and its forerunners. The authorities are replete with such words and phrases as 'germane', 'reasonably harmonious', 'fairly indicate', and 'construed reasonably'. See, for example, Bankhead v. Mayor of River Rouge, 35 Mich.App. 7, 192 N.W.2d 289 (1971), aff'd 387 Mich. 610, 198 N.W.2d 414 (1972); Continental Motors Corp. v. Muskegon Twp, 376 Mich. 170, 135 N.W.2d 908 (1965); Leininger v. Secretary of State, 316 Mich. 644, 26 N.W.2d 348 (1947); Vernor v. Secretary of State, 179 Mich. 157, 146 N.W. 338 (1914); McKellar v. Detroit, 57 Mich. 158, 23 N.W. 621 (1885); Ryerson v. Utley, Supra. In short, it is enough if the title of an act fairly indicates to a reasonable and inquiring mind the general scope, intent, and purpose of the law. Baker v. State Land Office Board, 294 Mich. 587, 293 N.W. 763 (1940).

The title of the probate code, 1939 P.A. 288, wherein the contested statute is found, states that it is:

'AN ACT to revise and consolidate the statutes relating to the organization and jurisdiction of the probate courts of this state; the powers and duties of such courts, and the judges and other officers thereof * * *.'

Viewed in the light of the authorities and principles arrayed above, it is readily apparent that the statute proscribing the general practice of law by certain probate judges is reasonably within the title of the act which speaks of organization, powers, and duties of probate judges.

We hold, therefore, that § 3 of 1969 P.A. 271 (M.C.L.A. § 701.3; M.S.A. § 27.3178(3)) is not repugnant to Art. 4, § 24 of the Constitution of 1963.

Second, it is plaintiff's position that inasmuch as the statute at issue prohibited him as probate judge of Clinton County from practicing law while at the same time permitting probate judges in other counties of northern Michigan to practice law, it is discriminatory and a violation of the due-process and equal-protection clauses of the Michigan and United States Constitutions. ⁷ Plaintiff's argument is not persuasive.

A line very similar to the Bay-Muskegon line contained in § 2a of 1969 P.A. 271 was upheld in Baker v. State Land Office, Supra. In Baker the area north of the line contained, in addition to the counties involved in the instant case, the counties of Midland and Isabella. The line in Baker divided the state for the purpose of selling tax-delinquent land. The petitioner contended that such discrimination was unconstitutional because it added conditions to the rights of landowners in northern counties which were not placed upon landowners in southern counties. The Michigan Supreme Court upheld the constitutionality of the division noting that the Legislature had exercised careful discretion in separating the more populous southern counties, where private interests would generally maintain lands by regularly paying property taxes from the lands in the northern counties, a large portion of which had already reverted to the state for nonpayment of property taxes. The Court concluded that the statutory discrimination under these circumstances was justified and reasonable.

The most recent case concerning legislation distinguishing between various areas of the state is Bankhead v. Mayor of River Rouge, Supra. In this case the constitutionality of § 49 of the Municipal Housing Facilities Act was at issue. ⁸ Section 49 created boards of tenant affairs for cities with housing commissions and housing projects. The title of the act provided that it would apply to any city of one million population or over, I.e., Detroit. Plaintiffs, tenants of a housing project in the City of River Rouge, sought a writ of mandamus to compel the defendant mayor to establish a board of tenant affairs according to § 49. On appeal, plaintiffs argued that § 49 was unconstitutional because it denied them equal protection of the law. The Michigan Supreme Court upheld the constitutionality of § 49 and adopted this Court's opinion, wherein we said:

'Legislative classification by population will be upheld where there is a reasonable relationship between the restriction and population. Hayes v. Auditor General (1915), 184 Mich. 39, 150 N.W. 331; Kates v. Reading (1931), 254 Mich. 158, 235 N.W. 881; Chamski v. Wayne County Board of Auditors (1939), 288 Mich. 238, 284 N.W. 711; Sullivan v. Graham (1953), 336 Mich. 65, 57 N.W.2d 447. * * * Equal protection of the laws does not prevent a reasonable classification by legislative enactment and the ultimate decision as to the wisdom of such laws rests with the legislature. Tribbett v. Village of Marcellus (1940), 294 Mich. 607, 614, 293 N.W. 872.

'We are uanble to say that restriction of the act as expressed in the title of the legislation is arbitrary. The legislature could reasonably determine that tenants of public housing projects in large cities face considerably different...