Richardson v. Hare, 13

• Decision Date: 26 September 1968
• Docket Number: No. 13,13
• Citation: 160 N.W.2d 883,381 Mich. 304
• Parties: Robert L. RICHARDSON, Jr., Plaintiff and Appellee, v. James M. HARE, Secretary of State, Esther Waite, Zoe Shaffer Burkholz, James F. Schoener and Nathan G. Conyers, Members of the Board of State Canvassers, Defendants and Appellants, Glenn E. Jordan, Gladys June Ormsby and Raymond L. Dankers, Members of the Board of Election Commissioners of Saginaw County, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 883

160 N.W.2d 883

381 Mich. 304

Robert L. RICHARDSON, Jr., Plaintiff and Appellee, v. James M. HARE, Secretary of State, Esther Waite, Zoe Shaffer Burkholz, James F. Schoener and Nathan G. Conyers Members of the Board of State Canvassers, Defendants and Appellants Glenn E. Jordan, Gladys June Ormsby and Raymond L. Dankers Members of the Board of Election Commissioners of Saginaw County, Defendants and Appellees.

No. 13.

Supreme Court of Michigan.

Sept. 26, 1968.

Robert L. Richardson, Jr., in pro. per.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Russell A. Searl, Asst. Atty. Gen., Lansing, for defendants and appellants.

Before the Entire Bench.

PER CURIAM.

This is an appeal, on leave granted, by defendants, Secretary of State and Board of State Canvassers, from a Court of Appeals order, in proceedings originating in that Court, for issuance of a writ of mandamus against them and others charged with enforcement of the election laws, directing them to certify forthwith plaintiff, Robert L. Richardson, as a duly qualified candidate for the office of circuit judge in the 10th judicial circuit, in the primary election to be held on August 6, 1968.

The question is whether plaintiff is barred from such candidacy by Michigan Constitution of 1963, Article IV, § 9, which reads:

'No person elected to the legislature shall receive any civil appointment within this state from the governor, except notaries public, from the legislature, or from any other state authority, during the term for which he is elected.'

Similar provisions of the Michigan Constitutions of 1850 and 1908 are as follows:

Constitution of 1850, Article IV, § 18:

'No person elected a member of the legislature shall receive any civil appointment within this state, or to the senate of the United States, from the governor, the governor and senate, from the legislature, or any other state authority, during the term for which he is elected. All such appointments and all votes given for any person so elected for any such office or appointment shall be void. * * *' Constitution of 1908, Article V, § 7:

'No person elected a member of the legislature shall receive any civil appointment within this state or to the senate of the United States from the governor, except notaries public, or from the governor and senate, from the legislature, or any other state authority, during the term for which he is elected. All such appointments and all votes given for any person so elected for any such office or appointment shall be void.'

In 1968 the legislature enacted Act No. 152, which provides, inter alia:

'The term 'election' is not synonymous with the term 'civil appointment' as such term appears in section 9 of article 4 of the state constitution.'

The undisputed facts are that plaintiff was elected at the general November election of 1966 to the office of State senator for a four-year term commencing on January 1, 1967, and ending on January 1, 1971. He qualified for that office, was seated and is serving as a member of the senate for that term. Under P.A.1968, No. 127, an additional circuit judge is to be elected in the 10th judicial circuit at the 1968 general November election, to take office January 1, 1969. Plaintiff timely filed with the Secretary of State nominating petitions for himself as a candidate for such judgeship together with an affidavit of his qualifications. The board of canvassers determined that the petitions and affidavit were in order but declined to certify plaintiff as a candidate for the August 6, 1968, primary election on the ground that he was barred therefrom by Michigan Constitution of 1963, Article IV, § 9, above quoted. Plaintiff then filed complaint in the Court of Appeals seeking an order of superintending control in the nature of mandamus and secured the order of that court for writ of mandamust from which this appeal is taken by defendants.

On June 25, 1968, Governor George Romney filed with this Court a request, under Michigan Constitution of 1963, Article III, § 8, for an advisory opinion as to the constitutionality of said Act No. 152, P.A.1968. While that request was under consideration the application for leave to take this appeal was filed, calling not only for determination of the question of constitutionality of the act, but, also, the meaning of the prohibition contained in Michigan Constitution 1963, Article IV, § 9. Accordingly, the governor's request was not granted, it appearing that the entire related problem could better be resolved by decision of this case.

Michigan Constitution of 1963, Article III, § 2, divides the powers of the State's government into three branches. It forbids exercise of the powers of one branch by another. Michigan Constitution 1963, Article VI, § 1, vests the judicial power of the State exclusively in one court of justice. Interpretation of the State Constitution is the exclusive function of the judicial branch. Construction of the Constitution is the province of the courts and this Court's construction of a State constitutional provision is binding on all departments of government, including the legislature. See 16 Am.Jur.2d, Constitutional Law, § 58, p. 230. As said in Bank of Hamilton v. Dudley's Lessee, 2 Pet. 492, 27 U.S. 492, 7 L.Ed. 496:

'The judicial department of every government is the rightful expositor of its laws; and emphatically of its supreme law.'

In this connection plaintiff cites Smith v. Auditor General, 165 Mich. 140, 130 N.W. 557, which held that in construing statutory provisions the practical construction which the legislature has during a long period of time adopted with reference to their meaning is entitled to weight; and Thayer v. Michigan Department of Agriculture, 323 Mich. 403, 35 N.W.2d 360, which reiterated the oft stated presumption of constitutionality of an act of the legislature; and Sullivan v. Michigan State Board of Dentistry, 268 Mich. 427, 256 N.W. 471, which held that where a statute may be construed in either of two ways, one of which is consistent with constitutionality while the other is not, the former will be presumed to be the legislative intent. These lend no support for the proposition that it is competent for the legislature to take a term or language in the Constitution, interpret it and make that legislative interpretation the law. Equally inapt is plaintiff's citation of People ex rel. Twitchell v. Blodgett, 13 Mich. 127, for the claimed proposition that an act of the legislature not prohibited by express words of the Constitution or by necessary implication cannot be declared unconstitutional by the Court; and also Bowerman v. Sheehan, 242 Mich. 95, 219 N.W. 69, 61 A.L.R. 859, to the effect that under a State Constitution the legislature has all powers not thereby denied to it. The point is that what the legislature attempted to accomplish by the Act 152 interpretation of the Constitution is expressly prohibited by the Article III, § 2, separation of powers and the Article VI, § 1, vesting of judicial powers exclusively in the court.

Act No. 152, here considered, endeavors to place an interpretation having the effect of law upon the words 'civil appointment' as used in the Michigan Constitution of 1963, Article IV, § 9. As above noted, the act is, in that respect, beyond the power of the legislature to enact and is, hence, unconstitutional. It follows that if, as construed by this Court, the constitutional language of Article IV, § 9, prohibits plaintiff's candidacy for circuit judge, the provisions of said Act No. 152 avail him nothing to escape that constitutional barrier.

This leads us now to interpretation of the language of Michigan Constitution of 1963, Article IV, § 9, without benefit of legislative construction.

In Fyfe v. Kent County Clerk, 149 Mich. 349, 112 N.W. 725, this Court held that election by the electors of plaintiff to the office of delegate to a constitutional convention would be a 'civil appointment' from a 'State authority' within the meaning of these terms as used in the above quoted Article IV, § 18, Michigan Constitution of 1850, that, therefore, plaintiff, being a member of the legislature, was ineligible to be a delegate because that section prohibited him from seeking the office and, accordingly, a writ of mandamus to compel the defendant county clerk to place plaintiff's name on the ballot for primary election as such delegate candidate would not lie. This Court, in passing, said that the terms 'appointment' and 'election' are synonymous terms.

In Attorney General ex rel. Cook v. Burhans, 304 Mich. 108, 7 N.W.2d 370, this Court cited and relied on its holding in Fyfe, and held that the words 'civil appointment' from a 'State authority' applied to election by the people of a candidate for the office of regent of the University of Michigan. In its opinion in that case this Court said that the then controlling language in Michigan Constitution of 1908, Article V, § 7, similar to that quoted from the Constitution of 1850, barred plaintiff, a State senator, from holding the office of regent and rendered him ineligible for that office.

'Where a constitution provision has received a settled judicial construction, and is afterward incorporated into a new or revised constitution, or amendment, it will be presumed to have been retained with a knowledge of the previous construction, and courts will feel bound to adhere to it.' 16 C.J.S. Constitutional Law § 35, pp. 114--115.

It is our opinion that the prohibition in Article IV, § 9, Michigan Constitution of 1963, against a person elected to the legislature receiving 'any civil appointment * * * from any other state authority, during the term for which he is elected' comes within the meaning of the decisions in Fyfe and Burhans. In the governing provisions of all three Constitutions, 1963, 1908 and 1850, the language expressly providing that 'no person elected to the legislature' (1963) or 'no person elected a member...