McClellan v. Stein

• Decision Date: 10 December 1924
• Docket Number: No. 382.,382.
• Citation: 229 Mich. 203,201 N.W. 209
• Parties: McCLELLAN v. STEIN, JUDGE.
• Court: Michigan Supreme Court

229 Mich. 203

201 N.W. 209

McCLELLAN

v.STEIN, JUDGE.

No. 382.

Supreme Court of Michigan.

Dec. 10, 1924.

Mandamus proceeding by Frank H. McClellan against Hon. Christopher E. Stein, Judge of the Recorder's Court of Detroit. Writ denied.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Paul W. Voorhies, Pros. Atty., and Edwin S. Bartlett, Asst. Pros. Atty., both of Detroit, for petitioner.

Ormond F. Hunt, of Detroit, for respondent.

STEERE, J.

This is a mandamus proceeding brought against Christopher E. Stein, a judge of the recorder's court of the city of Detroit, on petition of Frank H. McClellan, an officer of the metropolitan police department of that city to test the constitutionality of Act No. 99, Pub. Acts of 1923, entitled ‘An act for the suppression of gaming.’

On Monday, October 6, 1924, McClellan laid before the prosecuting attorney of Wayne county the facts which he claimed to have discovered on the previous Saturday evening, October 4, showing that certain individuals had been guilty of violating the provisions of the act in question. A recommendation for a warrant was given him by the prosecutor, together with a form of complaint and warrant charging violation of the act, which he presented to defendant for the purpose of making a complaint and having a warrant issue based on the violation of said act. Defendant refused to entertain the complaint and issue a warrant, assigning as a reason therefor that the act in question was unconstitutional. Acting under direction of the prosecuting attorney, who appeared as his counsel, McClellan then made application to this court for an order to show cause why a writ of mandamus should not issue requiring the said complaint to be entertained. An order to show cause was issued and return made by defendant admitting the proceedings as alleged, and stating his only reason for refusal to entertain said complaint was the unconstitutionality of Act 99, Public Acts 1923.

Most of the provisions of this act have been upon our statute books for more than half a century, and few of the numerous grounds of unconstitutionality alleged in the return and stated in defendant's brief present meritorious questions. The ground calling for most serious consideration at this time is the claim pressed in the brief of defendant's counsel, that the entire Act 99 is invalid because never passed by the House of Representatives in compliance with the constitutional requirement that it should be read three times in each House before its final passage. To sustain that proposition defendant's counsel points to and relies on the records of the House of Representatives as they stood, and had been printed and published, at the close of the regular session of 1923.

Introductory to that issue it may be noted that our legislative department is a creature of the Constitution, with its duties, powers, and limitations well defined. Article 5 of that fundamental law is devoted to the subject. Providing that the legislative power of the state is vested in a Senate and House of Representatives, with many mandates and restrictions not material here, article 5 plainly provides in mandatory terms as follows:

Section 15 states that:

‘Each house, except as otherwise provided in this Constitution, shall choose its own officers and determine the rules of its proceedings.’

Section 16 requires that:

‘Each house shall keep a journal of its proceedings and publish the same.’

Section 22 provides that:

‘No bill shall be altered or amended on its passage through either house so as to change its original purpose.’

Section 23 requires that:

‘Every bill shall be read three times in each house before the final passage thereof. No bill shall become a law without the concurrence of a majority of all the members elected to each house. On the final passage of all bills, the vote shall be by yeas and nays and entered on the journal.’

Under the powers conferred upon it by the Constitution, the Legislature, in prescribing the duties of the secretary of the Senate and clerk of the House of Representatives during the interim of sessions of the Legislature, provided (Comp. Laws 1915, § 17):

‘The secretary of the Senate and the clerk of the House of Representatives, at the close of each regular or special session of the Legislature, shall compile and prepare for publication, make indexes to, and superintend the publication of the journals and documents of the Senate and House of Representatives, respectively.’

On convening, the House of Representatives of the regular legislative session of 1923 chose its own officers, determined upon and adopted the rules of its proceedings. These rules, over 70 in number, follow for the most part the customary forms adopted by such bodies. Amongst other things they provide for keeping, making up and completing the House Journal, in conformity to its rules, ‘making such corrections therein from day to day as may be necessary’ and for daily publication thereof.

House rule No. 59 provides in part:

‘Every bill shall receive three several readings previous to its passage. The first and second readings may be by its title only, but the third reading shall be in full unless otherwise ordered by the House, and on a day subsequent to that on which it receives its second reading or passed the committee of the whole house. No bill shall be passed until it has been printed and in the possession of the House for at least five days.’

While the method of first and second reading by title has been criticized as not in strict conformance with the constitutional provision upon the subject, in view of the customary legislative rule and practice of supplying each member with a printed copy at least five days before passage of any bill, this court has declined to hold invalid laws so passed where the journal showed the third reading was in full. The question was disposed of in Hart v. McElroy, 72 Mich. 446, 40 N. W. 750, in part as follows:

‘The legislative practice of reading the same twice by title, and only once at length, has been maintained too long in this state to be now overthrown by the courts. * * * The Constitution, in terms, does not direct that the reading shall be at length, and, while such reading might be the better practice, we cannot hold that it is imperatively required that it should be so read more than once. This act, as it passed, was read once in each house at length, as appears from the journals.’

Unfortunately the journal of the House in the instant case, as made up, completed from day to day and daily printed and published until the close of the regular session of the Legislature, fails to show that Act 99 was read in full before the House on its final passage, or at any other time.

Beginning with Green v. Graves, 1 Doug. 351, it has long been held in this state that the court may, and when forced upon its notice by proper proceedings should, look behind the enrollment of a statute to determine whether the records of its enactment show that in its passage the mandatory requirements of the Constitution have been observed. ‘We have heretofore uniformly held, in this state, that the courts would take cognizance of the journals of the Legislature...