Ransford v. Graham
| Citation | 131 N.W.2d 201,374 Mich. 104 |
| Decision Date | 19 November 1964 |
| Docket Number | No. 117,117 |
| Parties | Maurice C. RANSFORD, Plaintiff, v. Henderson GRAHAM, Defendant. |
| Court | Supreme Court of Michigan |
Douglas L. Williams, Caro, for plaintiff.
Thomas R. McAllister, Bad Axe, for defendant.
Before KAVANAGH, C. J., and DETHMERS, KELLY, BLACK, SOURIS, SMITH and O'HARA, JJ.
Invoking the original jurisdiction of this Court, plaintiff filed a complaint praying for a determination that on January 1, 1964, the effective date of the Michigan Constitution of 1963, defendant did not possess the qualifications essential thereunder to entitle him to serve the remainder of the term as probate judge of Tuscola county to which he had been elected in 1960, and a determination that the office became vacant as of January 1, 1964. Plaintiff's brief filed in this cause states the question involved to be:
'On January 1, 1964, the effective date of the Michigan Constitution of 1963 was the defendant 'serving' within the meaning of that term as it is used in said Constitution, Schedule and Temporary Provisions, Section 7?'
Pertinent facts in this case are to be found in the per curiam opinion of this Court in In re Graham, 366 Mich. 268, 114 N.W.2d 333. It will be noted therefrom that this Court's action up to that juncture, April 4, 1962, concluded with an order for transmittal of records of the case to the legislature with a recommendation to it of defendant's removal from office, but with retention by this Court, pending legislative action, within 30 days, on such recommendation, of jurisdiction to enjoin defendant from exercising the powers and duties of the office. Thereafter the house of representatives of the legislature rejected this Court's recommendation. Thereupon, this Court, on May 17, 1962, issued an injunction as above mentioned and on or about May 21, 1962, it was served on defendant.
On January 1, 1964, Michigan's new Constitution of 1963 became effective. It contained the following provision:
* * *' Article VI, § 19.
Section 7 of the Schedule and Temporary Provisions of the Constitution of 1963 provided:
'Any judge of probate serving on the effective date of this constitution may serve the remainder of the term and be eligible to succeed himself for election regardless of other provisions in this constitution requiring him to be licensed to practice law in this state.'
to no time has been licensed to practice law in this State.
It must be noted that the exemption, contained in section 7 of the Schedule, from the requirement that a judge of probate must be a person who is licensed to practice law in this State, is not therein specifically stated to apply to an incumbent probate judge, to one who is a probate judge or holds the office of probate judge nor to anyone during the term for which he was elected probate judge (the latter having been proposed in Proposal No. 1596 at the constitutional convention), but it is expressly stated to apply only to '[a]ny judge of probate serving on the effective date of this constitution * * *'. 'Serving' means discharging a function or duty, rendering a service.
Was defendant serving as judge of probate on January 1, 1964? Since May 21, 1962, by order of this Court, defendant had been under an inhibition from exercising the powers and duties of the office of judge of probate. He complied with the order, refrained from exercising or discharging said powers and duties, and rendered no service as probate judge. From that time on he was not serving as judge of probate within the meaning of section 7 of the Schedule and Temporary Provisions of the Michigan Constitution of 1963. In consequence not being licensed to practice law in this State, he did not have the qualifications required by Article VI, § 19, nor those of the exemption therefrom provided in section 7 of said Schedule, to serve as judge of probate from and after January 1, 1964. The office thereupon became vacant.
Defendant contends that the May 17, 1962, injunctive order of this Court was and is unconstitutional. Violative of what provisions of the Michigan Constitution of 1908 then in effect? Defendant says that the order amounted to an attempted removal of him from office by this Court, that the Constitution of 1908 contained no authority therefor, and that Article VI,...
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