People ex rel. Drake v. Mahaney

Decision Date28 October 1865
Citation13 Mich. 481
CourtMichigan Supreme Court
PartiesThe People on relation of Theodore A. Drake v. Daniel Mahaney

October 12, 1865; October 13, 1865, Heard [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

The facts are stated in the opinion.

T. W. Lockwood, for the relator:

1. Section 9 of article iv of the state constitution provides that "each house shall choose its own officers determine the rules of its proceedings, and judge of the qualifications, elections and returns of its members." The pleas show, upon their face, that the house of representatives did so judge of the qualifications and election of the members referred to.

This action was judicial, and cannot be called in question: 1 Kent Com., 235.

2. To authorize a court to declare a statute unconstitutional, it should be able to point out the part of the constitution violated, and the infraction should be clear and free from reasonable doubt: Tyler v. People, 8 Mich. 320; Trustees of Dart. Coll. v. Woodward, 4 Wheat. 518; Fletcher v. Peck, 6 Cranch 87.

The legislature of Michigan possessed entire legislative power within the state subject only to the limitations of the constitution.

The constitution of the United States is a grant of power. That of the state is a limitation of power: Pratt v. Allen, 13 Com. 119.

It cannot be successfully denied that the city of Detroit is a public corporation, and that, as such, its charter is subject to legislative control: 2 Kent 275; Mayor of Baltimore v. The State, 15 Md. Rep., 376; Regents of University of Maryland v. Williams, 9 Gill. & Johnson, 365; State of Maryland v. Baltimore & Ohio Railroad, 3 How. 535; People v. Morris, 13 Wend. 325; Terrett v. Taylor, 9 Cranch. 42.

The power to govern belongs to the people of the state, and they will not be presumed to have parted with it except for the common good.

The police power is a sovereign state power, which may be delegated and resumed at pleasure: 15 Md. Rep., 390; Stewart v. M. & F. Ins. Co., 11 La. 53.

Similar statutes of broader scope have been declared valid by the appellate courts of last resort in New York and in Maryland: People ex rel. Wood v. Draper, 15 N. Y. Rep., 522; 15 Md. 390.

The police act of 1865 shows upon its face that it was duly ordered to take immediate effect, and it will be presumed to have been so ordered by a constitutional vote, and so the journal will show.

3. It is claimed on the part of the respondent that section 36 of the act "to establish a police government for the city of Detroit," approved February 28, 1865, is in conflict with section 25, of article iv, of the state constitution, which is in these words: "No law shall be revised, altered or amended by reference to its title only, but the act revised, or section or sections of the act altered or amended, shall be re-enacted and published at length;" for the reason that section 2 of chapter 2 of the revised city charter names a marshal among the city officers who shall be appointed by the common council: Laws of Mich., 1861, p. 181. And section 36 of the police act of 1865 abolishes the office of marshal.

We think this objection is at best merely colorable. The police act does not refer to the act revising the charter by its title, or undertake to amend it. But it is an independent act, as its title indicates, "to establish a police government for the city of Detroit." The city marshal was a police officer, and it was important that the functions of his office and that of the new police should not clash, and that as the new police could as well perform the marshal's duties for their regular pay, it was desirable to the taxpayers that the city should be saved the salary of the marshal and his assistant.

Hence section 36 directly abolishes the office of city marshal, and devolves its duties on the superintendent of police.

It is a sound and well settled rule of construction of constitutions as well as statutes, that the reason and object of the provision or enactment must be looked at in ascertaining its meaning. No authority is needed for this.

Before this constitution was adopted, the universal practice in the legislature was to amend statutes in important particulars, by referring to the title of the act and section to be amended by its number, and then declare certain words struck out in the middle, or end of the section, and certain others inserted, giving the reader no clue, without turning to the statutes, to the object intended, and this was not only an inconvenience in practice, but used as a fraud in legislation, many members of the legislature being often deceived as to the object of the act they were voting for.

Now, section 36 of this act is liable to no such objection. It simply abolishes the office of marshal. It is not in the form of an amendment to any former act, and does not refer to any. It deceives no one, and creates no misunderstanding. Those who voted for it saw, in plain terms, what they were doing: Davis v. The State, 7 Md. 151-159.

4. This clause of the constitution has received a legislative construction for a series of years, and which has long been acquiesced in: Laws of 1857, p. 209; 1855, p. 31; 1857, 200; 1855, p. 3; 1859, p. 483.

Levi Bishop, for defendant:

1. The police act of 1865 was not ordered to take immediate effect by a two-thirds vote of the members elect to the house of representatives, as required by section 20 of article iv of the constitution; and consequently the police board was organized, according to the information filed in the case, long before the act, under which they derive their power, took effect as law.

The question arises upon the soldiers' vote cast, out of the state, in 1864, and the composition of the house of representatives as produced by it; nine members of the house not having been elected except by that vote, who were nevertheless admitted to seats and to active membership, against the members really elected by the home vote so called.

The act No. 21, approved February 5, 1864, by which soldiers were authorized to vote out of the state, has been declared by this court to be unconstitutional, null and void: People v. Blodgett, 13 Mich.

As a consequence, the two hundred votes cast out of the state, for each of the nine admitted members, were illegal and void, and these men were therefore not elected to the house by virtue of any law, or any legal authority. They were not members of the house; they had no right to seats therein, and the act by which they were admitted was an act which had no authority of law, and which was in itself null, and of no effect.

Consequently this police act was not ordered to take immediate effect by sixty-seven votes, being the constitutional two-thirds of the house, but by only fifty-eight votes out of one hundred of which the house was composed.

If this act, therefore, took effect at all as law, it was not till June 20, 1865, that being ninety days after the close of the session at which it was passed, which was after this board of commissioners qualified and organized, or attempted to organize, under the act.

All this seems very clear, unless the clause of section 9, article iv, authorizing each house of the legislature to "judge of the qualifications, elections and returns of its members," vests in the house the power to determine absolutely and finally, all questions in regard to its own membership.

It is submitted that this clause of the constitution vests in each house the right and duty simply to determine: first, whether the returns or certificates of election are in form and substance, in conformity with law; second, whether a man who presents himself for membership has the requisite qualifications, according to sections 5 and 6, article iv; third, whether, at a proper election, he has received a majority of legal votes cast by legal voters, under the law.

In this they do not act judicially upon statute or constitutional law, for the judicial power of section 1, article vi, is vested in the courts or judicial tribunals.

And the whole judicial power is thus vested in the courts by this clause of the constitution: Chandler v. Nash, 5 Mich. 409.

The members of the house are to act in subordination to the law, and not adjudge, as a court of last resort, what that law is. When it is ascertained what the law is, they must obey it.

2. This court has authority to adjudicate upon acts of the legislative body, and to pronounce them of no effect. The whole includes every part. The legislative body includes every integral part of such body. Each house is an integral part of that body. Therefore the power to adjudicate upon the acts of the whole body includes the power to adjudicate upon the separate acts of each integral part: 1 Kent's Com., 504; Supervisors v. Henan, 2 Minn. 330; Wartman v. Philadelphia, 33 Pa. St., 202.

And this court should exercise the power in any case and in any form in which the question may be presented. Otherwise there will be no way of enforcing the law of the land, and compelling its observance on the subject. This is the only remedy of the people in those instances of violation of law.

It is well settled that, in order to determine the question whether an act has been passed with all the forms required by the constitution, the court will go behind the act, and look into the engrossed bills, the journals and the votes of the legislative body: State v. McBride, 4 Miss. 303; DeBow v. People, 1 Denio 9; Bank of Buffalo v Spencer, 2 Denio 97; Purdy v. People, 4 Hill 384; Spangler v. Jacoby, 14 Ill. 297; People v. Supervisors, 4 Selden 317; Cahoon v. Dodd, 14 Ind. 347; Burr v. Ross, 19 Ark. 250; Graves v. Green, 1...

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