Leininger v. Alger

• Decision Date: 03 March 1947
• Docket Number: Motion No. 437.
• Citation: 26 N.W.2d 348,316 Mich. 644
• Parties: LEININGER et al. v. ALGER et al.
• Court: Michigan Supreme Court

316 Mich. 644

26 N.W.2d 348

LEININGER et al.

v.ALGER et al. ^*

Motion No. 437.

Supreme Court of Michigan.

March 3, 1947.

Proceeding by William H. Leininger and others against Fred M. Alger, Jr., Secretary of State, and others for writs of mandamus and prohibition to prevent the Secretary of State from certifying to the county clerks and defendants from submitting to the people at the next general election a fair employment practices law proposed by an initiative petition.

Writ of mandamus granted.

BUTZEL and BUSHNELL, JJ., dissenting.

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

Kelley, Sessions & Kelley, of Lansing, and Beaumont, Smith and Harris, of Detroit, for plaintiffs.

Eugene F. Black, Atty. Gen., and Edmund E. Shepherd, Sol. Gen., of Lansing, for defendant.

DETHMERS, Justice.

Plaintiffs have applied for writ of mandamus and prohibition to prevent the Secretary of State from certifying to the clerk of each county, and the defendants from submitting to the people for approval or rejection at the next ensuing general election, a fair employment practices law proposed by an initiative petition filed, in sections, with the defendants and by them transmitted to the legislature which has taken no action thereon within the prescribed time. Plaintiffs' application is planted on the theory that the initiative petition is fatally defective because it contains no title of the proposed measure.

The power to enact laws by the initiative is reserved to the people by the Michigan constitution of 1908, article 5, § 1, as amended in 1941, which prescribes the method of its exercise. Compliance therewith is mandatory. Thompson v. Secretary of State, 192 Mich. 512, 159 N.W. 65. Said Section 1, as amended, reads in part:

‘* * * no law shall be enacted by the initiative that could not under this constitution be enacted by the legislature. Initiative petitions shall set forth in full the proposed measure * * *. The law proposed by such petition shall be either enacted or rejected by the legislature without change or amendment * * *.

‘Any initiative or referendum petition may be presented in sections, each section containing a full and correct copy of the title and text of the proposed measure.’

After specifying how an initiative petition shall be signed, Section 1, as amended, then provides: ‘If the same has been so signed, the secretary of state or other persons hereafter authorized by law to receive and canvass same, determines that the petition is legal and in proper form and has been signed by the required number of qualified and registered electors, such petition shall be transmitted to the legislature * * *’.

The initiative petition here under consideration fails to comply with the requirements of said Section 1 in that it does not contain a copy of the title of the proposed measure.

The Michigan constitution of 1908, article 5, § 21, provides in part as follows: ‘No law shall embrace more than one object, which shall be expressed in its title.’

This makes the title an essential part of every law. That this title requirement applies to laws enacted by the initiative, as well as to those enacted by the legislature, there can be no doubt, particularly in view of the provision of Section 1, that no law shall be enacted by the initiative that could not, under the constitution, be enacted by the legislature. As this court said in Fillmore v. Van Horn, 129 Mich. 52, 56, 88 N.W. 69, 70: ‘The title to an act is required by the constitution. It is as much a part of the act as the body thereof.’ Section 1 requires that the petition shall set forth in full the proposed measure. This cannot be done without a title.

It follows that the petition did not meet the constitutional requirements prerequisite to its transmittal to the legislature. Nor could the legislature, had it been so disposed, have cured the defect in view of the inhibition of Section 1 against legislative change or amendment.

After directing attention to Sections 1 and 2 of the proposed law, which immediately follow the enacting clause and which contain a statement of principle and definition of scope, respectively, defendants' brief suggests but declines to express an opinion as to whether these might be deemed to serve as a title. Since long before the adoption of the constitution of 1908, it has been the legislative practice in Michigan to cause the title of an act to precede and the body of the act to follow the enacting clause. Never has it been the practice to incorporate the title in the body of the act. The meaning of the word ‘title’ as here employed in the constitution must be deemed to be consonant with the common usage and well known legislative practices in that respect at the time of the constitution's adoption. City of Detroit v. Chapin, 108 Mich. 136, 142, 66 N.W. 587,37 L.R.A. 391;School District of City of Pontiac v. City of Pontiac, 262 Mich. 338, 348, 247 N.W. 474, 787; 11 Am.Juris., § 63, pp. 676, 677, 678. The purpose of the constitutional requirement that the object of a law shall be expressed in its title is to protect legislators from passing a law not fully understood, to fairly notify them of its design, and to inform them and interested persons that only provisions germane to the object therein expressed will be enacted. Thomas v. Collins, 58 Mich. 64, 24 N.W. 553;Blades v. Board of Water Commissioners of Detroit, 122 Mich. 366, 81 N.W. 271;MacLean v. State Board of Control for Vocational Education, 294 Mich. 45, 292 N.W. 662. This purpose of the constitutional requirement that the object of a law shall be expressed in its title is not accomplished by the mere fact that the object of the law may be discovered by a reading of the body of the act.

The brief of amici curiae points out that, if the proposal be placed on the ballot, the defendants are required by statute (Act No. 246, Pubb.Acts 1941, Comp. Laws 1942 Supp. § 3285-4, Stat.Ann.Cum. Supp. § 6.685(4)) to prepare and place on the ballot in connection therewith a statement of the purpose of such proposal in not more than 100 words. It is suggested that upon adoption of the measure by the people such statement of purpose, so prepared by defendants, might well stand as the title of the law. The suggestion overlooks the requirements of article 5, § 1, that each section of the petition, when filed, shall contain a copy of the title of the proposed measure, and that the petition shall set forth the proposed measure in full. These requirements are mandatory. Full compliance is a prerequisite to transmittal of the measure to the legislature and submission thereof to the people.

It is objected that plaintiffs, described in their application as citizens, residents, taxpayers and legally qualified electors of the state, have shown no such interest as entitles them to the relief sought. In this case the Attorney General has assumed a position contrary to that of plaintiffs and is himself a defendant. Under such circumstances, we have heretofore held electors to be proper parties plaintiff. Scott v. Secretary of State, 202 Mich. 629, 168 N.W. 709;Thompson v. Secretary of State, 192 Mich. 512, 159 N.W. 65. The interest of plaintiffs is sufficient to warrant their bringing these proceedings for the determination of an important public question.

Defendants' chief reliance is placed on the case of Hamilton v. Secretary of State, 212 Mich. 31, 179 N.W. 553, 554, as authority for the proposition that this court will not pass upon the constitutionality of a proposed law about to be submitted to the people under article 5, § 1 of the constitution. In support of this proposition, defendants' brief quotes from this case as follows: ‘If the respondent in this case may decide whether the proposed amendment is constitutional, and thus refuse to submit it, may he not in any case in which it is his judgment that the proposed amendment is unconstitutional decline to submit it? If he may exercise this power, is not he going much farther than his duties as a ministerial officer authorize him to go? If the proposed amendment should receive a majority of the legal votes cast, there will then be time enough to inquire whether any provision of the federal Constitution has been violated. Until that time comes we must decline to express any opinion as to the unconstitutionality of the proposed amendment.’

The brief of amici curiae quotes from the same case the following: ‘This court has no express or implied power by judicial veto to nullify in futuro a prospective law foreshadowed by a properly introduced bill before the Legislature, nor, by analogy, a proposed amendment of the Constitution properly presented by petition for the electors to pass upon. In our opinion, it is neither the duty nor the right of this court in this proceeding to pass upon the constitutionality of this amendment which has not been, is not now, and never may become a part of our Constitution.’

In the case at bar, however, we are not concerned with the question of whether the substance of the proposed law is violative of the federal or state constitutions. Here the question is whether the petition, in form, meets the constitutional requirements so as to qualify it for transmittal to the legislature and submission to the people. With reference to such question, this court also said in the Hamilton case, supra:

‘The duty of the secretary of state is plainly prescribed. He ‘shall submit all proposed amendments * * * initiated by the people for adoption of rejection in compliance herewith.’ Upon the filing of the petition, the duty devolves on him to ascertain whether it complies with the constitutional requirements. He must canvass the same and determine whether it has been signed by the requisite number of qualified voters, and also whether it is in the form prescribed and is properly verified. * * *

‘Should he determine that the requirements for submission as contained in this section have not been complied with, he may...