McDonald v. Schnipke, 15

• Court: Supreme Court of Michigan
• Writing for the Court: Before The Entire Bench, Except DETHMERS, C.J., and ADAMS; KAVANAGH; KELLY, BLACK, O'HARA and BRENNAN, JJ., concurred with KAVANAGH; SOURIS
• Citation: 380 Mich. 14,155 N.W.2d 169
• Parties: Major General Ronald D. McDONALD, Plaintiff-Appellant, v. Major General Clarence C. SCHNIPKE, Defendant-Appellee.
• Docket Number: No. 15,15
• Decision Date: 08 January 1968

Page 169

155 N.W.2d 169 380 Mich. 14 Major General Ronald D. McDONALD, Plaintiff-Appellant,
v.
Major General Clarence C. SCHNIPKE, Defendant-Appellee. No. 15. Supreme Court of Michigan. Jan. 8, 1968.

[380 Mich. 17]

Page 170

Miller, Canfield, Paddock & Stone, Detroit, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Curtis G. Beck, Asst. Atty. Gen., Lansing, for defendant-appellee.

Before The Entire Bench, Except DETHMERS, C.J., and ADAMS, J.

KAVANAGH, Justice.

On October 8, 1964, Major General Ronald D. McDonald, then the appointed and duly qualified Adjutant General of the State of Michigan, was summarily removed from office by the Governor. Subsequently, the Governor reinstated General McDonald as Adjutant General, but immediately suspended him from acting in that capacity.

On February 15, 1965, the Governor commenced hearings against General McDonald based on charges of malfeasance and misfeasance in office. These hearings were held under the authority of the Constitution

Page 171

of 1963, Art. 5, § 10. Upon completion of the hearings the Governor on May 20, 1965, issued what was called a 'Final Decision' purporting to remove General McDonald as Adjutant General and declaring the office vacant. Thereafter, on July 22, 1965, Major General Clarence C. Schnipke was appointed Adjutant General.

General McDonald commenced original quo warranto action in the Court of Appeals. On July 26, 1966, the Court of Appeals denied the relief sought. (4 Mich.App. 68, 143 N.W.2d 614). Appellant MdDonald is here on leave granted November 14, 1966.

Appellant claims that the exclusive method of removing the Adjutant General as a staff officer of the Michigan National Guard is provided for in C.L.1948, § 32.12 (Stat.Ann.1961 Rev. § 4.604), which states that staff officers 'shall hold their positions until they shall have reached the age of 64 years, unless retired prior to that time by reason of resignation,[380 Mich. 18] disability, or for cause to be determined by a court-martial legally convened for that purpose * * *.'

Appellant also claims that the action of the Governor in purportedly removing him from his position as Adjutant General is void and of no effect because the controlling statutory provision calling for a court-martial was not followed.

Three sections of the Constitution of 1963 are involved in the principal questions on appeal:

Art. 3, § 4. 'The militia shall be organized, equipped and Disciplined as provided by law.' (Emphasis supplied.)

Art. 5, § 10. 'The governor shall have power and it shall be his duty to inquire into the condition and administration of any public office and the acts of any public officer, elective or appointive. He may remove or suspend from office for gross neglect of duty or for corrupt conduct in office, or for any other misfeasance or malfeasance therein, any elective or appointive state officer, except legislative or judicial, and shall report the reasons for such removal or suspension to the legislature.'

Art. 5, § 12. 'The governor shall be commander-in-chief of the armed forces and may call them out to execute the laws, suppress insurrection and repel invasion.'

Appellant contends that the power given to the Legislature by Art. 3, § 4, has been fully exercised in the Military Eastblishment Act (C.L.1948 and C.L.S.1961, §§ 32.1--32.85 (Stat.Ann.1961 Rev. §§ 4.591--4.675)). He also contends that by section 12 of that act he was assured of tenure as Adjutant General and was guaranteed that he would not be stripped of tenure unless by reason of 'resignation, disability, or For cause to be determined by a court-martial.' (Emphasis supplied.)

[380 Mich. 19] The Attorney General, on behalf of appellee, Major General Schnipke, contends that the Constitution of 1963, Art. 5, § 10, provides that the Governor shall have power to remove all State officers except legislative or judicial.

The Attorney General further contends that the Adjutant General of the National Guard is a State officer and is not excluded from the operation of Art. 5, § 10, as are legislative or judicial officers and, therefore, is included within that provision and subject to removal by the Governor.

We first direct our attention to the contention of the Attorney General that the appellant is a State officer and therefore is subject to removal by the Governor. Assuming, but not deciding, that appellant is a State officer, there exists a conflict between Art. 5, § 10, which provides for removal by the Governor of State officers except legislative and judicial officers, and Art. 3, § 4, which provides for Discipline of the militia by law.

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It is unnecessary for us to decide whether appellant is a State officer within the purview of Art. 5, § 10, which is a general provision of the Constitution, as Art. 3, § 4 is a specific provision relating only to the militia itself. The rule to be followed when there is a conflict between general and specific provisions in the Constitution is as follows:

'In such a case, if there is a conflict between a general and a special provision in a constitution, the special provision must prevail in respect of its subject matter, since it will be regarded as a limitation on the general grant, but the general provision will be left to control in cases where the special provision does not apply.' 16 Am.Jur.2d Constitutional Law. § 69, p. 247, and cases there cited.

[380 Mich. 20] See, also, 16 C.J.S. Constitutional Law § 25, p. 98, and cases there cited.

Therefore, it is immaterial whether plaintiff is or is not a State officer, as if any conflict exists between the general and specific provisions, Art. 3, § 4--being a specific provision--must control.

The Attorney General urges that by virtue of Art. 5, § 12, which states that the Governor is the commander-in-chief of the militia, the Governnor has inherent power to remove military officers. Reading the provisions as a whole, however, we find that (1) the Governor is the commander-in-chief and (2) by virtue of that fact he may call the armed forces out to (a) execute the laws, (b) suppress insurrection, and (c) repel invasion. We do not read in this section any power of the commander-in-chief to remove or to otherwise discipline officers of the militia.

Pursuant to the Constitution of 1908, Art. 15, § 2 (the forerunner to the Constitution of 1963, Art. 3, § 4), the Legislature enacted the Michigan Code of Military Justice--P.A.1957, No. 297 ¹--entitled:

'An Act to provide a uniform code of military justice for the Michigan national guard, not in the service of the United States, and for the Michigan state troops, when the same shall be in existence, and to repeal acts and parts of acts.'

This act repealed and replaced P.A.1913, No. 311, entitled:

'An Act to provide for the Disciplining of the national guard of the State of Michigan, by defining military offenses, fixing their punishment, and establishing courts for the correction of said offenses, and providing methods of enforcing their sentences.' (Emphasis supplied.)

[380 Mich. 21] P.A.1957, No. 297, § 2, being C.L.S.1961, § 32.302 (Stat.Ann.1961 Rev. § 4.686(2)), reads as follows:

'The following persons are subject to the provisions of this act:

'All...