Todd v. Hull, 117.

• Citation: 288 Mich. 521,285 N.W. 46
• Decision Date: 12 April 1939
• Docket Number: No. 117.,117.
• Parties: TODD et al. v. HULL et al.
• Court: Michigan Supreme Court

288 Mich. 521

285 N.W. 46

TODD et al.

v.HULL et al.

No. 117.

Supreme Court of Michigan.

April 12, 1939.

Suit by Paul H. Todd and Joseph M. Donnelly, individually, and as members of the Michigan Public Utilities Commission, against Ivan Hull and others, to have a certain statute declared unconstitutional, and for injunctive and other relief. From a judgment dismissing the bill of complaint, plaintiffs appeal.

Affirmed by a divided court.

Appeal from Circuit Court, Ingham County; Leland W. Carr, judge.

Argued before the Entire Bench.

Joseph Zwerdling, of Ann Arbor, for appellants.

Thomas Read, Atty. Gen., and Edmund E. Shepherd and Kenneth G. Prettie, Assts. Atty. Gen., for appellees.

POTTER, Justice.

Paul H. Todd and Joseph M. Donnelly, individually and as two out of five members of the Michigan public utilities commission, filed a bill of complaint against defendants asking the court to declare the immediate effect provision of Act No. 3, Pub.Acts 1939, unconstitutional and void; to restrain defendants from entering upon or performing the duties imposed upon them as appointees under Act No. 3, Pub.Acts 1939; for a temporary injunction restraining defendants, pending suit, from entering upon the duties of the office of public service commissioners and, in any event, restraining defendants from entering upon their duties as appointees under Act No. 3, Pub.Acts 1939, until defendants' right to so act is established in proper legal proceedings; and for other relief.

Defendants answered setting up that Act No. 3, Pub.Acts 1939, abolished the Michigan public utilities commission and created the Michigan public service commission; that they were duly and legally appointed members of the public service commission under and in pursuance of its terms; that they had attempted to legally perform the duties of their office and that plaintiffs were unlawfully holding the office of public service commissioners without right. Defendants also made a motion to dismiss plaintiffs' bill of complaint for the reason that all the allegations contained in the amended bill which impugned the motives of good faith of the legislature were impertinent and irrelevant and should be stricken from the amended bill; that the court might not inquire into such motives or good faith; that there was no equity on the face of the amended bill; that no questions of fact were involved; that it appeared from the face of the bill and from the face of the act in question that the statute made appropriations and, therefore, under the Constitution (1908) art. 5, § 21, the legislature was authorized to give immediate effect to such act; that it appeared the act in question was for the preservation of the public peace, health and safety; that it did not clearly and manifestly appear, beyond all doubt, from such facts as were properly pleaded in the amended bill or in the title and provisions of the act that its enactment was not immediately necessary for the preservation of the public health, peace and safety, nor did it clearly and manifestly appear therefrom that the legislature abused its prerogative in giving the statute immediate effect; that the amended bill of complaint was an attempt by injunction to try title to public office, which may be tried only in quo warranto proceedings instituted in the Supreme Court of the State, on the information of the attorney general, pursuant to 3 Comp.Laws 1929, § 15296.

The case was brought on for hearing in the trial court, duly argued, and the trial court filed an opinion and entered a decree in pursuance thereof dismissing plaintiffs' bill of complaint.

From this decree, plaintiffs appeal contending Act No. 3, Pub.Acts 1939, is not an act making an appropriation within the meaning or contemplation of the Constitution (1908), art. 5, § 21; that Act No. 3, Pub.Acts 1939, is not immediately necessary for the preservation of the public peace, health or safety within the contemplation of the Constitution; and that the legislature exceeded its constitutional authority in giving immediate effect to such act.

1. The title to a public office cannot be tried or determined in a court of chancery. Detroit v. Board of Public Works, 23 Mich. 546;Stenglein v. Saginaw Circuit Judge, 128 Mich. 440, 87 N.W. 449. In the latter case, the court said the actual incumbents of an office could be protected, pending a contest as to the title thereto, from interference with their possession and the exercise of their functions; that the granting of an injunction in such cases did not determine the question of title but went merely to the protection of the present incumbents against the interference of claimants out of possession whose title was not yet established. Brady v. Sweetland, 13 Kan. 41; 2 High, Inj.(3d Ed.), § 1315. The right of plaintiffs to an injunction until a determination of the question of title to the office, under the facts in that case, was established. The determination of the question of jurisdiction disposes of this case.

2. The power of the legislature to enact the legislation in question is not controverted. It is claimed the legislature exceeded its authority in giving the act immediate effect and the immediate effect clause of the statute is unconstitutional and void.

In passing on the constitutionality of statutes, nothing but a clear violation of the Constitution will authorize the courts to overrule the legislative will. Where there is a reasonable doubt as to the constitutionality of an act, it must be resolved in favor of the act. Albert v. Gibson, 141 Mich. 698, 105 N.W. 19. When a litigant comes into court to ask the court to declare a particular statute null and void, as being beyond the power of the legislature to pass, he must show precisely and conclusively that it is beyond such power. People v. Warden of City Prison, 154 App.Div. 413, 139 N.Y.S. 277. A statute will be presumed to be constitutional by the courts unless the contrary clearly appears. Scott v. Smart's Executors, 1 Mich. 295;Thompson v. Auditor General, 261 Mich. 624, 247 N.W. 360. In case of doubt, every possible presumption not clearly inconsistent with the language and subject-matter of the act is to be made in favor of its constitutionality. Sears v. Cottrell, 5 Mich. 251. All reasonable presumptions or intendments must be indulged in favor of the validity of the act, and it is only when its invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution that a court will refuse to sustain its validity. Attorney General v. Lindsay, 178 Mich. 524, 145 N.W. 98. The statute is presumed to be constitutional and will not be declared unconstitutional unless clearly so beyond a reasonable doubt. Bowerman v. Sheehan, 242 Mich. 95, 219 N.W. 69, 61 A.L.R. 859.

The Constitution provides:

‘No act passed by the legislature shall go into effect until ninety days after the final adjournment of the session of the legislature which passed such act, except such acts making appropriations and such acts immediately necessary for the preservation of the public peace, health or safety, as have been given immediate effect by action of the legislature.’ Const.(1908), art. 5, § 1.

‘No act shall take effect or be in force until the expiration of ninety days from the end of the session at which the same is passed, except that the legislature may give immediate effect to acts making appropriations and acts immediately necessary for the preservation of the public peace, health or safety by a two-thirds vote of the members elected to each house.’ Const. (1908), art. 5, § 21.

There are many rules in relation to the construction of statutes similar to that involved.

In a majority of jurisdictions, the question whether a statute may be given immediate effect, under analogous constitutional provisions, rests upon the theory that the existence of such necessity is a question of fact and the authority to determine such fact must rest somewhere; that the Constitution does not confer it upon any tribunal and it must, therefore, necessarily reside with that department of the government which is called upon to exericse the power. It is a question of which the legislature alone must be the judge and when it decides the fact to exist its action is final. Hutchens v. Jackson, 37 N.M. 325,23 P.2d 335. This was substantially the basis of the reasoning of Justices Ostrander and Bird in Attorney General v. Lindsay, 178 Mich. 524, 145 N.W. 98, 106, where Justice Ostrander said: ‘Whether an act of the Legislature is one immediately necessary for the preservation of the public peace, health, or safety is a question to be finally determined by the Legislature. Three-fifths of the members of each house having given the opinion that the act in question is one immediately necessary for the preservation of the public peace, health, or safety, no court may review or set aside such determination.’

Another view, namely, that the question should be determined by the act itself, independent of any presumptions of its constitutionality, is well represented by the opinion in State ex rel. Goodman, v. Stewart, 57 Mont. 144,187 P. 641.

No particular value results from a consideration of cases from other courts because no line of authorities represents precisely the holding of this court. The general subject is discussed in 59 C.J. p. 1143; 25 R.C.L., § 50; State ex rel. Davies v. White, 36 Nev. 334, 136 P. 110, 50 L.R.A.,N.S., pages 195, 212; Hockett v. State Liquor Board, 91 Ohio St. 176, 110 N.E. 485, L.R.A.1917B, pages 15, 26;Payne v. Graham, 118 Me. 251, 107 A. 709,7 A.L.R. page 519.

The rule adopted by this court is not the rule stated by Justice Ostrander in Attorney General v. Lindsay, 178 Mich. 524, 145 N.W. 98, 101, nor is it the rule announced by Chief Justice McAlvay in that case who held: ‘In Michigan only two classes of legislation may be given immediate effect by a two-thirds vote of all members...