De Maggio v. Attorney Gen.

• Decision Date: 05 January 1942
• Docket Number: No. 40.,40.
• Citation: 1 N.W.2d 530,300 Mich. 251
• Parties: DE MAGGIO v. ATTORNEY GENERAL et al.
• Court: Michigan Supreme Court

300 Mich. 251

1 N.W.2d 530

DE MAGGIO

v.ATTORNEY GENERAL et al.

No. 40.

Supreme Court of Michigan.

Jan. 5, 1942.

Petition by Andrew DeMaggio against Herbert J. Rushton, Attorney General, and others for a declaration of rights under civil service amendment to state Constitution and to ascertain whether plaintiff's state employment was protected by its provisions. From a decree of dismissal of the petition, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Wayne County, in Chancery; Arthur Webster, judge.

Argued before the Entire Bench.

Andrew DeMaggio, of Detroit, for appellant.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., James F. Shepherd, Chief Asst. Atty. Gen., and Robert H. Dunn and Daniel J. O'Hara, Asst. Attys. Gen., for appellees.

SHARPE, Justice.

Plaintiff, a member of the State Bar of Michigan, filed a petition for a declaration of rights pursuant to the provisions of Act No. 36, Pub.Acts 1929, 3 Comp.Laws 1929, §§ 13903-13909, the purpose being to secure a declaration of rights under the civil serviceamendment to the State Constitution, Mich.Const. 1908, art. 6, § 22, see Pub.Acts 1941, p. 786, and to ascertain whether plaintiff's State employment was protected by its provisions.

The facts are not in dispute. Prior to January 1, 1941, plaintiff was employed as an assistant attorney general under attorney general Thomas Read. At the election held November 5, 1940, the electors of the State of Michigan approved the Constitutional amendment, supra; and at the same election, elected Herbert J. Rushton attorney general for the term beginning January 1, 1941. On December 29, 1940, plaintiff was informed that beginning January 1, 1941, his service as an assistant attorney general would cease and after said notice another assistant attorney general was assigned to the position formerly occupied by plaintiff. The cause came on for hearing on petition and affidavits filed by plaintiff and motion to dismiss. On July 1, 1941, the trial court dismissed plaintiff's petition.

Plaintiff appeals and contends that the above amendment became effective December 6, 1940; that his term of office did not expire with that of attorney general Read, namely, on December 31, 1940; that the letter of attorney general Rushton to plaintiff did not terminate his employment with the State of Michigan; that plaintiff was blanketed in as a State employee from the effective date of the civil service amendment until replaced by persons passing competitive examinations whom the commission certified as qualified; that the above amendment abrogated the power of the attorney general to dismiss plaintiff; and that the office or employment of assistants attorney general is within the protection of the civil service amendment.

The civil service amendment provides: ‘This amendment shall take effect on the first day of January following the approval thereof.’ It is urged by appellant that the above language is a unllity as it conflicts with article 17, § 2, of the Michigan Constitution which provides in part: ‘Every amendment shall take effect thirty days after the election at which it is approved’; and that by reason of article 17, § 2, supra, the civil service amendment became effective 30 days after November 5, 1940, or on December 6, 1940.

It is urged by the attorney general that the 30-day clause of the State Constitution does not prevent the electors from deferring, beyond that interlude, the operation of an amendment to the Constitution.

The trial court made the following observation upon this question: ‘* * * the civil service amendment neither altered nor abrogated the clause in question. The clause still stands applicable to all amendments where an effective date is not mentioned. If it were proposed to make the effective date of future amendments 60 days instead of 30, or if it were intended to strike out the clause entirely, then section 3 regarding publication would apply.’

In State v. Campbell, 94 Ohio St. 403, 115 N.E. 29, 31, it appeared that the gereral assembly had proposed and the electors had approved a constitutional amendment granting to women the right to appointment as members of certain boards, but in its resolution submitting the amendment to the voters, it had deferred the effective date for some time after the election. This intent was not expressed in the amendment itself, and for that reason was deemed ineffectual to postpone its operation. The court said:

‘The Constitution is positive in its terms and provides that the amendment shall become a part of the Constitution when a majority of the electors voting on the same shall adopt it. The time when an amendment is to become effective can be submitted to the electors, as in the case of the amendments of 1912, wherein it was expressly provided when they should go into effect. * * * There is nothing in the Constitution of this state postponing the operation of an amendment, and it cannot be postponed unless the proposition to postpone is submitted to the electors and is adopted by a majority of those voting thereon.’

In Broadwater v. Kendig, 80 Mont. 515, 522, 261 P. 264, 267, it is said: ‘A statute to take effect in futuro is a law in praesenti. An act has a potential existence upon its passage despite the fact that its effective day is postponed. ‘That a statute or constitutional provision may have a potential existence, but which will not go into actual operation until a future time, is familiar law.’'

It seems clear that the purpose of the 30-day clause, Mich.Const. 1908, art. 17, § 2, is to enable the public to become acquainted with the provisions of an amendment after it has been approved. There is nothing in the Constitution which prohibits the postponement of the effective date of the operation of the amendment. Article 5 of the Constitution of the United States provides that amendments shall become ‘valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States,’ yet the 18th amendment to the Federal Constitution prohibited the manufacture or sale of intoxicating liquors ‘after one year from the ratification of this article.’ In our opinion the electors in voting upon the civil service amendment intended that its effective date should be January 1, 1941, and there being nothing in our Constitution prohibiting such postponement, we hold that the will of the electors, so expressed, must govern.

It is to be noted that the Michigan Constitution article 17, § 3, requires all proposed amendments to be published in full ‘with any existing provisions of the constitution which would be altered or abrogated thereby.’ In the case at bar there were no provisions of the Constitution published when the civil service amendment was voted upon. The civil service amendment does not alter or abrogate any specific provision of the Constitution and hence there was none to be published.

In School District of City of Pontiac v. City of Pontiac, 262 Mich. 338, 344, 247 N.W. 474, 476, 787, we said: ‘In determining what constitutes compliance with the constitutional requirement as to publication, a matter of prime importance is the purpose that prompted the people of the state of Michigan to include such a provision in the Constitution. All will agree that this was a means adopted by which it was believed the elector would be definitely advised as to the purpose of the proposed amendment and what provision of the constitutional law it modified or supplanted. Being so advised the elector could intelligently determine whether his vote would be for adoption or rejection. But the ordinary elector, not being a constitutional lawyer, would be confused rather than helped by a publication of all the other constitutional provisions which were or might be directly or only remotely, and possibly only contingently, affected by the proposed amendment. We think the requirement in substance is this: That in case a proposed constitutional provision amends or replaces (‘alters or abrogates') a specific provision of the Constitution, that such provision should be published along with the proposed amendment; that other provisions which are still operative, though possibly they may need thereafter to be construed in conjunction with the amending provision, need not necessarily be published.’

Appellant next urges that his...