People ex rel. Kent County Sup'rs v. Loomis

• Decision Date: 02 February 1904
• Citation: 98 N.W. 262,135 Mich. 556
• Parties: PEOPLE ex rel. BOARD OF SUP'RS OF KENT COUNTY v. LOOMIS et al.
• Court: Michigan Supreme Court

98 N.W. 262

135 Mich. 556

PEOPLE ex rel. BOARD OF SUP'RS OF KENT COUNTY v. LOOMIS et al.

Supreme Court of Michigan

February 2, 1904

Case Made from Circuit Court, Kent County; Alfred Wolcott, Judge.

Action by the people, on the relation of the board of supervisors of Kent county, against Robert B. Loomis and others. Judgment for respondents. Case made, and judgment reversed.

Rodgers & Rodgers, for appellant.

Ward &amp Brown, for respondents.

HOOKER C.J.

At its 1903 session the Legislature passed a law providing for the appointment by the Governor of three persons, to constitute a provisional board of county auditors for the county of Kent their successors to be elected at the general election in the year 1904. On June 15, 1903, such appointments were made, and the respondents have since assumed to hold such office. This proceeding is in the nature of a quo warranto, instituted by one De Graaf, by authority of the board of supervisors of the county, under leave granted by the circuit court, to inquire into respondents' right to hold such offices; it being claimed by the relator that the law is in conflict with section 10 of article 10 of the Constitution. At the same (i. e. the 1903) session the Legislature adopted a joint resolution submitting to the electors of the state an amendment to section 10 of article 10 of the Constitution, reading as follows: 'The board of supervisors, or, in the counties of Saginaw, Jackson Washtenaw, Kent and Wayne, the board of county auditors, shall have the exclusive power to fix the compensation for all services rendered for, and to adjust all claims against, their respective counties, and the sum so fixed and defined shall be subject to no appeal.' This was submitted to the electors at the April, 1903, election, and adopted, after which said act (being Act No. 521, p. 757, of the Local Acts of 1903) was passed and approved. The constitutionality of both the amendment and the act is attacked, and it is upon this question that the case must turn. The circuit court sustained the validity of both amendment and law, and the respondents' authority and title to the office, and the relator has brought the proceeding before us.

Did the action of the Legislature authorize the submission of the proposed amendment? Section 10 of article 10 of the Constitution, as it theretofore existed, provided for a board of county auditors in the county of Wayne, and that county only. Counsel for relator assert that the resolution was offered on February 12th in the House of Representatives, and that it provided for a board of county auditors for the county of Saginaw. On February 20th, the committee on towns and counties reported the resolution, with amendments to include Jackson and Washtenaw counties. The resolution was then agreed to by two-thirds of the members elected to the House of Representatives, and the resolution, as amended and passed, was then entered in full on the House journal, with the yeas and nays taken thereon. Kent county was not included. It was then transmitted to the Senate, and referred to the committee on constitutional amendments, which committee on February 26th reported it by its title, 'with certain amendments, recommending that the amendments be concurred in, and that when so amended the joint resolution pass.' The resolution was then agreed to, and entered at length in the Senate journal, with Kent county included. It is noticeable that the only substantial change made from the resolution as entered in the House journal was the inclusion of Kent county.

Counsel contend that the Senate journal does not show what amendment was made by the Senate. The House journal contains an entry, dated February 26th, to the effect that the joint resolution was returned to the House by the secretary of the Senate, informing the House that the Senate had amended the same, so as to include the county of Kent, and that the same had passed the Senate by a two-thirds vote; and it also shows, under date of March 4th, that the Senate amendment was concurred in by the House by a two-thirds vote, the title as amended by the Senate, to include Kent county, agreed to, and the resolution referred to the clerk of the House for printing and presentation to the Governor. It was at no time entered in full in the House journal as finally passed.

It is contended that the Senate journal fails to show what amendment was made in the Senate, and that the House journal cannot be relied upon to show the Senate's action; also that the House journal fails to show what resolution finally passed the House, and that it was not entered upon the journal of the House, as required by Const. � 1, art. 20: 'If the same shall be agreed to by two-thirds of the members elected to each house, such amendment shall be entered upon the journals respectively.'

The following is a verbatim copy of the proceedings of the House:

'The following message from the Senate was received and read:

"Senate Chamber, February 26, 1903.

"To the Speaker of the House of Representatives--Sir: I am instructed by the Senate to return to the House the following joint resolution:

"House joint resolution No. 275, entitled:

"'A joint resolution proposing an amendment to the Constitution of this State, by so amending Section 10 of Article X as to provide for a Board of County Auditors in the counties of Saginaw, Jackson and Washtenaw;'- "And to inform the House that the Senate has amended the joint resolution as follows:

"(1) By inserting in line 2, Section 10 of Article X, after the word 'Washtenaw' the word 'Kent.'

"(2) By striking out of line 21, Section 10 of Article X, the words 'and Washtenaw' and inserting in lieu thereof the words 'Washtenaw and Kent.'

"(3) By striking out of line 23, Section 10, of Article X, the words 'and Washtenaw' and inserting in lieu thereof the words 'Washtenaw and Kent,' and by amending the title to read as follows:

"'A joint resolution proposing an amendment to the Constitution of this State by so amending Section 10 of Article X, as to provide for a Board of County Auditors in the counties of Saginaw, Jackson, Washtenaw and Kent;'

"And now to inform the House that in the passage of the joint resolution the Senate has concurred, and has also concurred in ordering the joint resolution to take immediate effect, by a two-thirds vote of all Senators-elect.

"Very respectfully,

"Elbert V. Chilson

"Secretary of the Senate.'

'The question being on concurring in the amendments made to the joint resolution by the Senate,

'Mr. Anderson moved that the joint resolution be laid on the table.

'The motion prevailed.

'On the 4th day of March, A. D. 1903, the following proceedings took place in the House of Representatives as follows, to wit:

'Mr. Sanderson moved to take from the table House joint resolution No. 275, entitled 'A joint resolution proposing an amendment to the constitution of this state by so amending Section 10 of Article X as to provide for a Board of County Auditors in the counties of Saginaw, Jackson and Washtenaw.'

'The motion prevailed.

'The question being on concurring in the amendments made to the joint resolution by the Senate, the amendments were concurred in, two-thirds of all the members-elect voting therefor by yeas and nays as follows: [Here follows the vote by yeas and nays.]

'The question being on agreeing to the title of the joint resolution, as amended by the Senate, the title was agreed to.

'The joint resolution was referred to the clerk for printing and presentation to the Governor.'

It is contended upon behalf of the respondents that the entry of the foregoing in the House journal, taken in connection with the resolution as it first passed the House, was a substantial compliance with article 20, � 1, requiring an entry of the amendment upon the journals 'if the same shall have been agreed to by two-thirds of the members of each house.' It must be admitted that the Senate journal shows the resolution passed by that body, and we think the entry is a full compliance with the Constitution. It needs no aid from the House journal to show its final conclusion. Upon the other hand, the House journal shows the resolution as it first passed the house, and it shows at a later date the message from the Senate, which is entered at length, including the amendments stated to have been made by the Senate, which the House thereupon concurred in, the yeas and nays being entered. It is apparent that it is ascertainable from the House journal that the House, by its action first and last, passed the identical resolution which passed the Senate, and appears on the Senate journal. Is such a piecemeal entry of the resolution a compliance with the provision of section 1, art. 20, of the Constitution, that 'If the same [i. e., proposed amendment] shall be agreed to by two-thirds of the members of each house, such amendment or amendments shall be entered on the journals respectively, with the yeas and nays taken thereon, and the same shall be submitted to the electors,' etc.?

There is a want of harmony in the authorities as to what is a compliance with this provision. The question has several times arisen where the journals failed to show the resolution in full, but referred to and identified it by number and title. Some cases hold to the rule that the constitutional provision clearly means that the resolution shall be set out in full upon the journals as it finally passed the respective houses; others, that it is sufficient if the terms of the resolution are ascertainable from the journals by reference. Of the latter class, the following are in point: Prohibitory Amendment Cases, 24 Kan. 700; People v. Strother, 67 Cal. 624, 8 P. 383; Oakland Pav. Co. v. Tompkins, 72 Cal. 5, 12 P. 801 1 Am....