text:
    PEOPLE v. McGRAW.
    1. Municipal Corporations — Violation of Ordinances — Criminal Law — Motor Vehicle Law — Traffic Ordinance — Cities.
    In a prosecution for violating an ordinance of the city of Detroit affecting motor vehicles, a complaint charging (in the first count) that respondent failed to drive his automobile in a careful manner with due regard for the safety and convenience of pedestrians and other vehicles and (in the second count) that he wilfully failed to keep the front and rear lights lighted, as required by certain sections named of the compiled ordinances, was sufficient, on demurrer, and the ordinance was not beyond the authority of the council, or invalid for the reason that it was prohibited by section 9 of Act No. 318, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 2495).
    2. Automobiles — Highways and Streets — Municipal Corporations — Detroit Ordinance.
    In a prosecution for violation of an ordinance of the city of Detroit regulating traffic in its streets, such provisions of the ordinance as in any way contravene the general statute affecting motor vehicles, Act No. 318, Pub. Acts 1909, must be held invalid and void.
    3. Same — Ordinances—Constitutional Law — Detroit Charter.
    In so far as section 9 of Act No. 318, Pub. Acts 1909; 2 How. Stat. (2d Ed.) § 2495, attempts to take away from cities all control of their highways and streets and from exercising reasonable control over streets of the municipality, the provisions of the statute are to that extent unconstitutional and void, being in conflict with the fundamental rule as to local legislation. Art. VII, § 28, Constitution.
    Certiorari to recorder’s court of Detroit; Connelly, J.
    Submitted November 23, 1914.
    (Docket No. 74.)
    Decided January 29, 1915.
    Donaíd McGraw was complained against for violating an ordinance of the city of Detroit. Respondent’s demurrer to the complaint was overruled.
    Affirmed.

      Richard I. Lawson, for the people.

      Percy W. Grose, for respondent.
   Kuhn, J.

The defendant is charged with the violation of certain ordinances with relation to traffic on the streets in the city of Detroit.’ Two complaints were made against him, and alleged the following:

“(1) On the 29th day of December, 1913, within the corporate limits of said city (the city of Detroit), on the east side of Woodward avenue between Can-field and Forest avenues, one Donald McGraw did then and there unlawfully and wilfully, while driving an automobile upon said street, fail to drive the same in a careful manner with due regard for the safety and convenience of pedestrians and other vehicles, to the evil example of all others in a like case offending, and contrary to the ordinances of said city, in such case made and provided. Section 2, chapter 55, page 102, of the Compiled Ordinances of the City of Detroit, for the year 1912.

“ (2) On the 29th day of December, 1913, within the corporate limits of said city (the city of Detroit), on Woodward avenue near Canfield, one Donald McGraw did then and there unlawfully and wilfully, while operating an automobile upon said street, during the time when the city lights on said street are lighted, fail to keep his front and rear lights lighted, to the evil example of all others in a like case offending, and contrary to the ordinances of such city in such case made and provided. Section 10, chapter 55, page 103, of the Compiled Ordinances of the City of Detroit, for the year 1912.”

The respondent, upon being served with a summons, appeared and demurred to each of the complaints. The learned recorder overruled the demurrers, and the case is here by certiorari. The various grounds for demurrer raised, as suggested by .respondent’s counsel, this question for determination:

“Has the city of Detroit, a municipal corporation, the power to enact the ordinance alleged to have been violated, in view of the provisions of section 9 of Act 318 of the Public Acts of 1909?”

Section 9 of Act No. 318 (2 How. Stat. [2d Ed.] § 2495), which is entitled “An act providing for the registration, identification and regulation of motor vehicles operated upon the public highways of this State, and of the operators of such vehicles,” reads as follows:

“Sec. 9. Local Ordinances Prohibited. — Except as herein otherwise provided, local authorities shall have no power to pass, enforce or maintain any ordinance, rule, or regulation requiring from any owner or chauffeur to whom this act is applicable, any license or permit for the use of the public highways, or excluding any such owner or chauffeur from the free use of such public highways, or in any other way respecting motor vehicles or their speed upon or use of the public highways. No ordinance, rule or regulation contrary to the provisions of this act now in force or hereafter enacted shall have any effect: Provided, however, that the powers given to local authorities to regulate vehicles offered to the public for hire, and processions, assemblages or parades in the streets or public places, and all ordinances, rules and regulations which may have been or which may be enacted in pursuance of such powers shall remain in full force and effect: Provided further, that local authorities may set aside for a given time a specified public highway for speed contests or races, to be conducted _ under proper restrictions for the safety of the public, and that said authorities may exclude motor vehicles from any cemetery or grounds used for the burial of the dead.”

It is contended by counsel for the city, and was so held by the recorder, that that part of section 9 which forbids cities from exercising control of their highways with reference to motor vehicles is unconstitutional and void, as being in contravention of section 28 of article 8 of the present Constitution of the State, which reads as follows:

“Section 28. No person, partnership, association or corporation operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any city, village or township for wires, poles, pipes, tracks or conduits, without the consent of the duly constituted authorities of such city, village or township; nor to transact a local business therein without first obtaining a franchise therefor from such city, village or township. The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.”

Counsel for respondent meets this contention by saying that the reservation to cities, villages, and townships of a reasonable control of their streets, alleys, and public places should be held to refer only to the subject-matter of the section, to wit, public utility corporations, and also that the construction contended for by the city places this section in conflict with section 21 of the same article, which reads as follows:

“Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter, and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this State.”

In the study of section 28, it is interesting to notice what the committee on submission and address to the people said with reference thereto, in submitting the proposed revision to the people (page 1433, vol. 2, Proceedings and Debates of the Constitutional Convention) :

“This is a new section, and its purpose is to prevent the use of streets, alleys, highways, and public places without the consent of the local authorities first had and obtained. The word ‘reasonable’ was inserted to place a limitation upon the authority cities, villages and townships may exercise over the streets, alleys, highways, and public places within their corporate limits. And it was pointed out in the debates that without the word ‘reasonable,’ or a similar qualification, the section would practically deprive the State itself of authority over its highways and public places.”

From this, and also from reading the debates with reference to the insertion of the word “reasonable,” it is clear that it was not the intention of the framers of the Constitution to deprive' absolutely the State itself of control over its highways and bridges in the cities, villages, and townships. The claim that the reservation should be limited to the control of public utility corporations, to our minds, overlooks entirely the express language of the last sentence of said section 28. By giving the language of the whole section its ordinary and natural meaning, public utilities were placed under control of the local authorities, and the local authorities may control within reason the' use of their streets for any purposes whatsoever not inconsistent with the State law.

Taking the sections together, they should be so construed as to give the power to municipalities to pass such ordinances and regulations with reference to their highways and bridges as are not inconsistent with the general State law. In other words, the municipality retains reasonable control of its highways, which is such control as cannot be said to be unreasonable and inconsistent with regulations which have been established, or may be established, by the State itself with reference thereto. This construction allows a municipality to recognize local and peculiar conditions and to pass ordinances regulating traffic on its streets, which do not contravene the State laws. The congested condition of traffic on many of the streets of the city of Detroit is a matter of common knowledge, and these conditions make it absolutely necessary, for the protection of pedestrians and the drivers of vehicles, to enact rules and regulations peculiarly adapted to the conditions there found, and to enact ordinances to diminish the danger, and the words “reasonable control” in section 28 give the power to meet just such conditions.

It follows, therefore, that the provisions of the ordinance which contravene the State law must be held to be invalid and void. But as section 9, Act No. 318, Pub. Acts 1909, clearly attempts to take away from the cities all control of their highways with reference to the use thereof by motor vehicles, such parts of said section which forbid the cities from exercising reasonable control of their highways as herein defined must be held to be unconstitutional and void. It is not claimed that the sections of the ordinance under which these complaints are made are in contravention of the general law of the State, except said section 9, and the order of the recorder in overruling the demurrer must therefore be affirmed.

Brooke, C. J., and McAlvay, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

       The sections referred, to are as follows:
      See. 2. Vehicles shall be driven in a careful manner and with due regard for the safety and convenience of pedestrians and of other vehicles. When one vehicle overtakes another, it shall pass to the left side of the overtaken vehicle and not pull over to the right until clear thereof.
      Sec. 10. Lights on automobiles being operated or standing upon said streets, must be kept burning in front and rear during the time the city lights on the streets are lighted, and each of such automobiles shall carry the Michigan State license exposed in front and rear.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    HIRSCHKORN v. FIEGE DESK CO.
    1. Master and Servant — Workmen’s Compensation — Partial Loss oe Eye.
    On certiorari to an award of the Industrial Accident Board allowing thirty-five weeks’ compensation for the partial loss of claimant’s eye, the award could not he sustained under section 9, Act No. 10, Extra Session 1912; 2 How. Stat. (2d Ed.) § 3956, relating to total incapacity, nor under section 10 of the statute, unless its provisions for partial incapacity cover such injury, said section pro- , viding that the employer shall pay weekly compensation for partial incapacity to work.
    2. Same — Partial Incapacity.
    No support for an award for the partial loss of an eye can he found in the schedule of injuries found in said section 10; the provisions of the statute relate only to the loss of an eye and an award on the theory of future incapacity must he restricted to claimant’s earning capacity in the employment in which he was injured at the time of the accident. Accordingly, a claimant who concedes that he could do his work as well after his injury as before and is receiving equal wages, could not obtain compensation under the workman’s compensation law although it was found by the accident board that the usefulness of the injured eye was impaired to an extent of one-third of its vision.
    Certiorari to the Industrial Accident Board.
    Submitted November 24, 1914.
    (Docket No. 37.)
    Decided January 29, 1915.
    George Hirschkorn presented his claim to the Industrial Accident Board against the Fiege Desk Company for injuries sustained in its employ. From an order awarding compensation contestants, Fiege Desk Company and Michigan Workmen’s Compensation Mutual Insurance Company, bring certiorari.
    Reversed and award vacated.

      Person, Shields & Silsbee, for claimant.

      Beaumont, Smith & Harris, for contestants.
   Bird, J.

While the claimant was employed by the Fiege Desk Company at Saginaw, operating a certain machine, a piece of emery flew into his left eye and injured it. The emery was removed, but the eye became inflamed and iritis set in. He was totally incapacitated for work for nine weeks, and full compensation therefor was paid to him by respondents. When claimant returned to work, the inflammation and iritis had subsided, and his recovery was complete, save for the fact that the injury left a scar in the center of the cornea, covering the pupil, which causes a blur and prevents him from seeing an object clearly. This condition reduced the vision of his eye nearly one-half, and is permanent, but it is not thought the vision will be further reduced as a result of the injury. Since claimant returned to his work, he has been doing the same work as before the injury, and is receiving the same wages. On this state of facts, the board made a further allowance, and in so doing, said in part:

“That, the usefulness of the left eye of applicant having been destroyed by said injury to the extent of more than one-third, and somewhat less than one-half, the applicant was entitled to an award of 35 weeks’ compensation in addition to the amount theretofore paid, that being the fair and reasonable percentage of the 100 weeks compensation, which the law provides for the full loss of the eye.”

This award is questioned by respondents, and it is argued that there is no authority in the law by which such an award can be justified. If the award is to stand, some authority in the law must be found to support it. It is obvious that it cannot be sustained under Act No. 10, part II, § 9, Pub. Acts 1912 (Extra Session), because claimant is not wholly incapacitated. It must then be sustained, if at all, under section 10, providing for partial incapacity. Section 10 provides that:

“While the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee, a weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter,” etc.

There is then added to the section a schedule of specific injuries fixing the number of weeks for which compensation shall be paid. The partial loss of an eye does not appear in the schedule. It deals with nothing less than the loss of one eye. It is therefore clear that no support can be found for the award in the schedule. Under the general power conferred by section 10 upon the board, an award might be made for such an injury on the theory of a future incapacity in other employment, were they not restricted in determining the loss “to his earning capacity in the employment in which he was working at the time of the accident.” Section 11.

Inasmuch as claimant concedes that he can now do his work as well as before the injury, and that he is receiving the same wages therefor, we are unable to see that the board had any authority under the general power granted by section 10 to award claimant any relief. The award made by the board was a very equitable one, and is one which we would prefer to sustain, if we could do so without attempting to amend the law by judicial construction. It appears to be, however, an exigency which the law has not provided for. We think the relief in such cases lies with the legislature, rather than with the courts.

The award must be reversed and set aside.

Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


author: Per Curiam.

text:
    MICHIGAN RAILROAD COMMISSION v. DETROIT & MACKINAC RAILWAY CO.
    1. Carriers — Rates — Michigan Railroad Commission — Schedules.
    Under section 10 (a) of Act No. 300, Pub. Acts 1909 (3 How. Stat. [2d Ed.] § 6534), providing that schedules of railroad rates shall be plainly printed in large type and copies for the use of the public be kept on file in the depot, station, or office of the carrier, where a railway company was ordered by the court, enforcing the finding of the railroad commission, by mandamus, to put in force certain specified rates upon its lines, it was the duty of the respondent corporation to comply with the provisions of the statute; it did not substantially comply with the order of the court and the statute by causing typewritten copies of the schedule of rates to be sent to the offices of the company and to the railroad commission.
    2. Same — Acquisition of Branch Lines — Order of Railroad Commission.
    The respondent railway company also failed to comply with the order of the commission in excepting from the operation of rates specified by the commission two branch lines which the company acquired after the institution of proceedings before the commission and during their pendency, one branch line being acquired within a few weeks after the first order of the commission was entered and before the determination of chancery proceedings to test the validity of the decree; the other branch being obtained by the respondent shortly after the entry of the order of the decree in chancery affirming the validity of the order and prior to the final determination of the commission putting it into effect.
    3. Same — Contempts—Traffic—Regulation of Rates.
    In contempt proceedings brought to require a respondent railway company to comply with the writ of mandamus of the Supreme Court, requiring the enforcement of a schedule of rates as determined by the Michigan railroad commission, the question of the unreasonableness of the order and any criticism or modification which it is claimed should be made should be addressed to the railroad commission in supplemental proceedings and is not available in defense of the contempt proceedings.
    4. Same — Rebate—Michigan Railroad Commission.
    Where the effect of the order of the commission was to require the railway company to charge 50 cents less per thousand upon logs to be reshipped over defendant’s lines in the form of manufactured lumber, respondent did not properly comply with the order by providing for a rebate in case the reshipment actually occurred.
    5. Contempts — Order of Railroad Commission — Enforcement — Purging Contempt.
    Where the respondent railway company failed to comply with, an order of the Supreme Court in mandamus proceedings requiring the corporation to adopt certain rates established by the railroad commission and respondent attempted to justify its omission to comply literally with the direction of the court by setting up advice of counsel and a construction of the order which was not in strict accordance with its phraseology, though possibly color-able, the court may require the respondents to purge themselves of contempt without punishing them or assessing a fine. .
    Proceedings in contempt by the Michigan Railroad Commission and others against the Detroit & Mackinac Railway Company and another for neglect to comply with a peremptory writ of mandamus.
    Submitted June 16, 1914.
    (Calendar No. 26,229.)
    Decided February 4, 1915.

      Grant Fellows, Attorney General, and Gillett & Clark, for relators.

      James MeNamara and Fred A. Baker, for respondents.
   Per Curiam.

This is a proceeding in contempt by means of which relators seek to have respondents punished for their alleged failure to comply with the terms of an order contained in a peremptory writ of mandamus issued out of this court on the 7th of August, 1914. 182 Mich. 234 (148 N. W. 385). That order commanded respondents:

“That forthwith on service upon you of this peremptory writ of mandamus, you do put into full force, and effect the three several orders of the Michigan Railroad Commission.”

The validity of said orders was questioned by the respondents from and after the date of their promulgation by the railroad commission on October 19 and 22,1909, and November 3,1909. During the five years following, respondents, proceeding under the statute creating the railroad commission, endeavored to show the unreasonable character of the orders and prevent them from being given effect. Instead of complying with the mandate of this court literally, on August 15, 1914, the respondents promulgated the following order in alleged compliance therewith:

“Detroit & Mackinac Railway Company.

“Bay City, Mich., August 15th, 1914.

“On and after August 17th, the following rates will apply on logs to Alpena, Mich., from points on the D. & M. Ry. Co. except from Hillman and Rogers City Branches:

“10 miles or less, $1.50 per 1,000 feet.

“Over 10 miles and not exceeding 20 miles, $1.85 per 1,000 feet.

“Over 20 miles and not exceeding 80 miles, $2.17 per 1,000 feet.

“Over 30 miles and not exceeding 50 miles, $2.50 per 1,000 feet.

“Over 50 miles and not exceeding 80 miles, $2.83 per 1,000 feet.

“Minimum 3,000 feet per car.

“A refund of 50 cents per 1,000 feet to be made if manufactured product is reshipped via D. & M. Ry.

“Above takes the place of existing rates.

“J. K. Hudson, Geni. Freight Agent.”

This was a typewritten communication to the railroad commission, and typewritten copies thereof were placed on file in the various offices of the respondent railway company. It was not in compliance with section 10a, of Act No. 300, Pub. Acts 1909 (3 How. Stat. [2d Ed.] § 6534), which provides:

“Such schedules shall be printed plainly in large type, and copies for the use of the public shall be kept on file for public inspection in every depot, station or office of such carrier where passengers or freight respectively are received for transportation or where tickets are sold, in such form that they will be accessible to the public and can conveniently be inspected.”

The relators urge that respondents have violated both the spirit and the letter of the orders of the commission and the mandate of this court, in the following particulars:

“(q) In neglecting and refusing to print, file, and keep open to the public in offices of said company, and with the commission, schedules or tariffs containing the charges for transportation fixed by the three orders of the said commission.

“(b) In neglecting and refusing to put the schedules or tariffs containing the charges for transportation fixed by the said three orders of the said commission into effect upon the Hillman branch, and upon the Rogers City branch, so called, of said railroad company.

“(c) In charging as a minimum per car load on logs shipped from the stations of Onaway and Case on the main line of said railroad, which stations are within 50 miles of Alpena, $7.50 per car, instead of the specific minimum fixed by the order of said commission of $6 per car.”

On behalf of respondents, it is contended that the order of August 15, 1914, supra, is a practical compliance with the order of this court. Touching the second charge, that it excepted the Hillman and Rogers City branches from the operation of said tariff, it is urged that those branches were not in existence in October, 1909, when said orders were made by the commission, and that therefore they were justified in so excepting those branches. An examination of the orders in question, which will be found set out in full in the opinion of this court in Detroit & Mackinac Railway Company v. Railroad Commission, 171 Mich. 335 (137 N. W. 329), shows that the rate is upon a mileage basis. It further appears that, though the branches in question were not in operation at the time the orders were made, the Hillman branch went into operation in December of 1909, and the Rogers City branch in June, 1911. Subsequent to the earlier date, the proceedings to test the validity of the orders reached that point provided for in section 26c of the act, which provides that after the chancery proceedings, under certain contingencies, the matter shall be again submitted to the commission, when, “if the origr inal order shall not be rescinded or changed by the commission, judgment shall be rendered upon such original order.” This action was taken by the commission after the Hillman branch was in operation. We think it could hardly be contended that a rate based upon mileage should not be held operative over trackage added to the respondent’s enterprise pending the contest over the validity of the order fixing such rate, or over trackage added after the entry of the decree in the lower court. It therefore follows that, in excepting the Hillman and Rogers City branches from the operation of the rate, the respondents were in error.

Touching the third cause of complaint assigned by the relators, it is urged on behalf of respondents that the tariff published by the company and above set forth is a practical compliance with the mandate of the court. The commission tariff, after providing for rates 50 cents per thousand less than those stated in the respondent’s tariff of August 15, 1914, provides:

“Above rates to apply when the manufactured product is reshipped ■ via defendant company’s _ line, and when not so to be reshipped, that company is authorized to collect in addition to each rate, 50 cents per 1,000 feet, but if later reshipment is made over defendant company’s line they are to refund to each shipper the 50 cents per 1,000 feet collected; and, it is further ordered that the books of both defendant company and complainants (and all other shippers of logs affected by this order) shall show plainly the total of inbound shipments and the reshipment of the manufactured product.”

Respondents contended that they should be permitted to charge the extra 50 cents a thousand and rebate only upon a showing that the logs shipped in bad been shipped out over their line in the shape of manufactured product. The claim is made that the order as it stands is unreasonable, and in any event extremely difficult in operation. This, we think, is a criticism which should be addressed to the railroad commission in a proper proceeding on the part of respondents. The orders exactly as framed by the commission were the orders which this court directed by its peremptory writ to be put into immediate effect. In affirming the judgment of the court below, giving effect to those orders, this court distinctly stated that the decree should be without prejudice to the right of the respondent company to move the commission for a modification of its rules as experience in the facts coming to its knowledge might appear to warrant. In this proceeding we are not concerned with the validity of, or the workability of, the orders in question; those matters have already been determined.

In their return to the order to show cause, respondents show:

“(1) That they did not put the rates fixed by the railroad commission by the orders of October 22 and November 3, 1909, in force on the Hillman and Rogers City branches, because of an honest and apparently well-founded belief that said orders did not apply to said branches, and that they were at least entitled to take the judgment of the court thereon; but, if the court is of the opinion that said orders do apply to said branches, they are ready and willing to put them in force thereon.

“(2) That they construed said orders to mean that the railroad company had the right to collect the full rates permitted by said orders, subject to the obligation to refund 50 cents per thousand when it was shown to it that the products of the logs had been shipped out on the railroad, and, in case of any dispute, to leave the matter to the determination of the courts, the same as other matters of controversy are, and where on any disputed questions of fact the parties have a right to a jury trial. These respondents respectfully submit that their construction of said orders is correct; but, if the court is of a contrary opinion, they will gracefully comply with the orders and directions of the court in the premises.”

Upon the argument counsel for respondents distinctly disclaimed any intention to avoid or evade compliance with the order of this court.

The contentions of respondents are untenable. It follows therefore that we must find them guilty of contempt. That guilt, however, is technical only, for we are satisfied that the failure of respondents to comply fully with the order of this court was not wanton, but that they acted in good faith upon thfe advice of reputable and competent counsel, and under a construction of the order, which, while not warranted, was colorable. Under these circumstances, a fine or other punishment need not be imposed without giving opportunity to respondents to otherwise purge themselves of contempt.

We think the ends of justice will be accomplished if, within five days from the service of notice of the filing of this opinion, they comply literally with the mandate of this court making the rates fixed by the orders of the railroad commission operative over all the mileage of the road, including that of the Hillman and Rogers City branches. Upon filing proof of such action by respondents, an order will be entered purging them of contempt.

Bird and Kuhn, JJ., did not sit.


author: Ostrander, J. Brooke, C. J.

text:
    BURTON v. KOCH. INGERSOLL v. LINDSAY. BURTON v. LINDSAY. HOLT v. LINDSAY. OSBORN v. LINDSAY.
    1. Schools and School Districts — Constitution — Constitutional Law — Special and Local Acts.
    Prior to the adoption of the new Constitution, the legislature of the State had authority to create school districts by special enactment which became controlling in the district so created.
    2. Same — Uniform Legislation — Statutes.
    It was the intention of the legislature, in enacting Act No. 146, Pub Acts 1913, to establish uniform qualifications for voters in all school districts of the State, and by the language of such amendment to the general law it was clearly provided that no prior special legislation should remain in effect to qualify the general rule laid down by that act relative to the qualifications of such voters; modifying section 17 of Act No. 144, Pub. Acts 1881, as amended in 1909, Act No. 83; the Act of 1913 changed the limitation as to school districts affected, also qualifying the effect of section 10, chap. 13, of the general law which excepted from the provisions thereof such school districts as were affected by previous special legislation.
    3. Constitutional Law — Title—Amendment.
    Act No. 146, Pub. Acts 1913, amending and re-enacting section 17, chap. 21, Act No. 164, Pub. Acts 1881, is valid and sufficient though its effect is to also amend section 10, chap. 13 (2 Comp. Laws, § 4774, 4 How. Stat. [2d Ed.] §10013), of the same act, and notwithstanding that the amendatory statute did not attempt to re-enact at length the provisions of the section indirectly amended, such action not being required by Art. 5, § 21, of the Constitution; and the effect of the statute of 1913 was to amend constitutionally the provisions of said section 10 excepting school districts which had been created or were governed by special acts from the operation of the law. The amending act sufficiently complied with the requirements of the Constitution by re-enacting section 17, chap. 2, of Act No. 164.
    4. Same — Constitutionality of Act — Classification — Population.
    Act No. 251, Pub. Acts 1913, is a general law based upon the classification of school districts according to population and providing that in districts coextensive with a city having 250,000 inhabitants or more, the board of education shall consist of seven, members elected by the voters of the entire district qualified to vote for school inspectors.
    5. Same — Referendum—Local Acts.
    Provision for referendum was unnecessary to the validity of Act No. 251, supra, because it was not of a local character.
    6. Same — Electors—Elections.
    The legislature is authorized to designate electors of the school district and their qualifications need not be the same as in the ease of constitutional electors.
    7. Same.
    The effect of the law is not nullified by limiting the voters to persons who are qualified to vote upon school matters.
    8. Same.
    If the court cannot clearly see that in the exercise of legislative power the restrictions imposed by the Constitution have been exceeded, the statute must be sustained as valid.
    9. Same — Amendments—Electors.
    The provisions of section 4 of Act No. 146, referring to the majority of electors having the qualifications to vote at elections for school inspectors and another portion referring to a majority of the qualified voters of the city should be reconciled and construed to mean persons qualified to vote for school inspectors; the latter reference having a general meaning in harmony with the purpose of the act and the preceding phrase.
    Brooke, C. J., and McAlvay, J., dissenting.
    Certiorari to Wayne; Van Zile, J.
    Submitted October 16, 1914.
    (Calendar Nos. 26,456, 26,457, 26,458, 26,459, and 26,460.)
    Decided February 10, 1915.
    Mandamus by Clarence M. Burton against Max C. Koch, treasurer of the city of Detroit, and others, to require the respondents to provide necessary ballots to submit to the electors of the city of Detroit the question whether Act No. 251, Pub. Acts 1913, creating a school board of seven members for certain municipalities should be adopted: same by Laura F. Osborn, Frederick H. Holt, Clara W. Ingersoll, and by said Burton against Richard Lindsay, and other city' officials, constituting the members of the board of registration in said city of Detroit, to enforce other requirements of Act No. 251, Pub. Acts 1913. The five cases were consolidated and heard as one before the circuit court which entered an order granting the writ. Respondents bring certiorari.
    Affirmed.

      Richard I. Lawson and Edmund Atkinson, for appellants.

      Keena, Lightner, Oxtoby & Oxtoby, for appellees.
   Ostrander, J.

Act No. 164, Pub. Acts 1881, contains, as its title indicates, many different provisions relating to public instruction and primary schools. It is a consolidation of the laws relating to these important subjects. Many of its provisions had been in force since 1846. It is divided into 13 chapters, each subdivided into several sections. Each of its provisions applies, in terms, to all school districts in the State.

It goes without saying that, notwithstanding the generality of its provisions, the legislature had authority to erect school districts by special enactment, and that in such districts the provisions of such special enactment would be controlling. But upon this point the legislature left no room for doubt. The con-eluding section of the last chapter (section 11) recites the acts and parts of acts repealed, and the next preceding section (10) reads:

“All provisions of this act shall apply and be in force in every school district, township, city and village in this State, except such as may be inconsistent with the direct provisions of some special enactment of the legislature.”

This last-mentioned qualifying section has the significance, also, of a declaration that, when said Act No. 164 was passed, there were in existence school districts created and governed by special legislative enactments.

The general subject of chapter 2 of Act No. 164 is “formation, alteration, meetings, and powers of districts,” and section 17 thereof, not as enacted, but as amended in 1909 (Act No. 83), reads as follows:

“In all school elections every citizen of the United States of the age of twenty-one years, male or female, who owns property which is assessed for school taxes in the district, or who is the parent or legal guardian of any child of school age included in the school census of said district, and who has resided in said district three months next preceding such election, shall be a qualified voter. On the question of voting school taxes, every citizen of the United States of the age of twenty-one years, male or female, who owns property which is assessed for school taxes in the district, and who has resided in the district, as above stated, shall be a qualified voter: Provided, that the purchaser of land upon a land contract, who actually pays the taxes upon such land and resides thereon, may vote upon all questions; and where a husband and wife own property jointly and same is assessed for school taxes in the school district, each may, if otherwise qualified, vote upon all questions including the question of raising money.”

The situation being that because of various local acts — special enactments — the provisions of section 17 of chapter 2 were not controlling in all school districts, and that in some districts persons were voters who would be excluded in others, the legislature, by Act No. 146 of the Public Acts of 1913, undertook to establish 'uniform qualifications for voters in all school districts of the State. No one can reasonably be in any doubt about this. How should the legislative purpose be effected? There were, perhaps, several ways. One way is suggested in the opinion of Mr. Justice Brooke. But clearly that is not the only way of indicating the legislative purpose. Indeed, it is not the best way, since it is evident that the legislature intended there should be no doubt about the application of the amended law to every school district in the State. Intending to establish uniform qualifications for voters, the legislature by Act No. 146 of the Public Acts of 1913, instead of amending said section 10 of chapter 13 by way of a proviso or otherwise, amended section 17 of chapter 2 so as to indicate precisely the purpose to be accomplished. It removed, by the amendment, the qualifying effect of said section 10 with respect to the qualifications of voters as plainly as though it had amended some other section or had added a new section. Where before, upon reading the two sections together, we found the universal application of said section 17 limited and qualified by said section 10, we now find it unqualified. It made it plain, by the words of the amendment, that no special legislation should be interposed to qualify the general legislation it was enacting. And no other method of expressing the legislative purpose could make that purpose more certain than it is made.

My Brother Brooke says, and in view of the reasoning he indulges he is obliged to say, that section 17 has not been amended, and he bases his contention upon the fact that the words added to the section by the legislature add nothing to the previous sweeping language of the section. In terms it has always applied to all school districts. It does no more now. This seems to me to be a curious begging of the point at issue. Certainly words have been added to the section, and this was an amendment of it, whatever the effect of it may be. Certainly its apparent sweeping application has always before been limited by said section 10. Certainly it was, before amendment, read with said section 10 to discover its meaning and effect. Just as certainly, when now read with that section, it has a different meaning and effect from what it had before.

We ought not to confuse the efféet of the amend.ment with the constitutional duty of the legislature to indicate an amendment in a particular way. In effect, every special'enactment containing provisions unlike those now found in said section 17 is amended or repealed. It is not a new thing to have many existing legislative enactments thus affected by new legislation. The section amended was re-enacted and republished at length as the Constitution provides. The Constitution has been precisely obeyed and the effect of the amendment is, and was intended to be (and no one can misunderstand the meaning of the act as amended), to provide uniform qualifications for voters in all school districts of the State.

I come now to consider Act No. 251, Public Acts of 1913. It is inartificialiy drawn, a„nd contains, apparently, inconsistent provisions. An analysis leaves little or no doubt concerning the legislative purpose, or the real meaning of the law. It is a general law, based upon a classification of the school districts of the State according to population. People v. Brazee, 183 Mich. 259 (149 N. W. 1053); Hayes v. Auditor General, ante, 39 (150 N. W. 331). The expressed purpose is that, in districts coextensive with a city having a population of 250,000 or more the board of education shall consist of seven members elected at large by the electors of the whole district qualified to vote for school inspectors. It provides for a referendum to determine whether it shall or shall not be effective in a particular district. This was unnecessary, because the act is not local in character. The referendum is to the electors of the school district. Who they are is ascertained from section 17 of Act No. 146, Pub. Acts 1913, hereinbefore considered. The electors of a school district may be designated by the legislature, and their qualifications need not be identical with those of constitutional electors. Belles v. Burr, 76 Mich. 1 (43 N. W. 24); Pingree v. Board of Education, 99 Mich. 404 (58 N. W. 333). See, also, Attorney General v. Lowrey, 131 Mich. 639 (92 N. W. 289); Perrizo v. Kesler, 93 Mich. 280 (53 N. W. 391); Menton v. Cook, 147 Mich. 540 (111 N. W. 94); Attorney General v. Board of Education, 154 Mich. 584 (118 N. W. 606); Board of Education v. Smith, 183 Mich. 428 (149 N. W. 978), upon the point that the legislature under the Constitution has substantially complete control over school districts. As the legislature might have omitted the referendum, it does not nullify the law that it is limited to persons who are qualified to' vote upon school matters — persons who will elect the school officers under the law. It is true that section 4 of the act refers in one place to a majority of electors having qualifications to vote at elections for school inspectors and in another place to a majority of the qualified electors of the city, meaning, evidently, in both provisions, the same electorate. Considering that the persons qualified to vote according to the act are those possessing the qualifications to vote for school inspectors, the later reference in the same section to qualified electors of the city “voting thereon” may be given a meaning in harmony with the first provision and the general purpose of the act.

The court has nothing to do with the wisdom of this legislation. The legislative power, with certain constitutional limitations, is vested elsewhere. If the court cannot clearly see that, in the exercise of the power, constitutional restrictions have been exceeded, the law must be sustained.

For the reasons expressed, I am of opinion that the act is valid.

Kuhn, Stone, Bird, Moore, and Steers, JJ., concurred with Ostrander, J.

Brooke, C. J.

(dissenting). In each of the foregoing matters .the petitioner sought and obtained in the circuit court a writ of mandamus compelling the respondents in each case to perform an alleged duty affecting the election to be held in the city of Detroit on the 3d of November, 1914. Though brought by different persons and calling for the performance of different acts by the various respondents, the rights asserted by the various petitioners are based upon two legislative enactments, the constitutionality of which is questioned by the respondents in the several proceedings. By order of the court the five cases were consolidated and argued as one in this court and will be treated together.

The act first brought in question is No. 146 of the Public Acts of 1913. It follows:

“An act to amend section seventeen of chapter two of act number one hundred sixty-four of the Public Acts of eighteen hundred eighty-one, entitled ‘An act to revise and consolidate the laws relating to public instruction and primary schools, and to repeal all acts or parts of acts contravening the provisions of this act,’ being compiler’s section four thousand six hundred sixty-two of the Compiled Laws of eighteen hundred ninety-seven, as last amended by act number eighty-three of the Public Acts of nineteen hundred nine.

“The people of the State of Michigan enact:

“Section 1. Section seventeen of chapter two of act number one hundred sixty-four of the Public Acts of eighteen hundred eighty-one, entitled ‘An act to revise and consolidate the laws relating to public instruction and primary schools, and to repeal all acts or parts of acts contravening the provisions of this act/ being compiler’s section four thousand six hundred sixty-two of the Compiled Laws of eighteen hundred ninety-seven, as last amended by Act Number eighty-three of the Public Acts of nineteen hundred nine, is hereby amended to read as follows:

“Chapter II.

“Sec. 17. In all school elections including school elections held in districts organized and governed in whole or in part by a local act or acts, any provision in such local act or acts to the contrary notwithstanding, every citizen of the United States of the age of twenty-one years, male or female, who owns property which is assessed for school taxes in the district, or who is the parent or legal guardian of any child of school age included in the school census of said district, and who has resided in said district three months next preceding such election shall be a qualified voter. On the question of voting school taxes, every citizen of the United States of the age of twenty-one years, male or female, who owns property which is assessed for school taxes in the district, as above stated, shall be a qualified voter: Provided, that the purchaser of land upon a land contract, who actually pays the taxes upon such land and resides thereon, may vote upon all questions; and where a husband and 'wife own property jointly and same is assessed for school taxes in the school district, ea,ch may, if otherwise qualified, vote upon all questions including the question of raising money.

“This act is ordered’ to take immediate effect.

“Approved May 2, 1913.”

We have indicated, by the use of italics, the amendatory language introduced into the section. This section constitutes a part of the general laws of the State relating to primary schools, and specifies in detail the qualifications of electors in school matters. Before this amendment, by its terms, it applied to every school district in the State of Michigan. Its operation, however, was limited by 2 Comp. Laws, § 4774 (§ 10) 4 How. Stat. [2d Ed.] § 10014):

“All provisions of this act shall apply and be in force in every school district, township, city and village in this State, except such as may be inconsistent with the direct provisions of some special enactment of the legislature.”

The city of Detroit is and has been since 1869 operating its school system under a special enactment of the legislature which was amended in 1873, again in 1881, again in 1883, and again in 1891. It contains many direct provisions inconsistent with the provisions of the general school act, of which section 17, above quoted, is a part; and it was to preserve the rights of the city of Detroit and other cities of the State operating under special acts that section 10, above quoted, was enacted. By the amendment of 1891 (Local Acts 1891, No. 350) to the free school act of the city of Detroit (Laws 1869, No. 233), the qualifications of electors were defined as follows:

“Sec. 25. The qualifications of electors in the school district comprising the city of Detroit, shall be the same as those prescribed by the laws of this State and the United States for voters at large at general city elections: Provided, that women of or above the age of twenty-one years shall be qualified to vote in said school district upon any such measures or questions, including the question of free text books submitted as aforesaid, subject to the same qualifications and regulations as those applicable to and governing the votes of male citizens upon such measures or questions as aforesaid.”

Other provisions of the charter of the city of Detroit, which is a special enactment of the legislature, relative to school elections and the qualifications and registration of voters, are inconsistent with the terms of the act governing the schools generally throughout the State. See paragraphs 8, 23, 46, 89, and 595 of the Charter Compilation of 1904.

The question involved is whether it was competent for the legislature, by the insertion of the italicized words in section 17, to impose upon the city of Detroit, in school elections, the same electoral qualifications as obtained throughout the State in school districts not operating under special legislation. Heretofore in the city of Detroit all constitutional electors have been permitted to participate. In addition thereto, all women of or above the age of 21 years have enjoyed the same privilege, if they were otherwise qualified. Section 17 restricts the exercise of the franchise in school matters in some respects, and it enlarges it in others. By its terms, those citizens, only, of the age of 21 years, male or female, who own property which is assessed for school taxes in the district, or who are parents or guardians of children of school age, are permitted to vote. This would exclude all men and women over 21 years of age who neither own property subject to taxation for school purposes, nor stand in loco parentis to children of school age. In the matter of residence, section 17 extends the franchise to persons who would not be entitled to vote under the special act governing the qualifications of electors in the city of Detroit. It is therefore apparent that the change, which it is claimed, on behalf of petitioners, has been effected by the amendment to section 17, is one of very great importance.

As we understand the position of petitioners, it is their claim that, by the interpolation of the words italicized in section 17, section 10 is not repealed, but is so amended as to permit the provisions of section 17 to become operative in districts operating under special acts. Article 5, § 21, of the Constitution of 1909, provides:

“No law shall be revised, altered or amended by reference to its title only; but the act revised and the section or sections of the act altered or amended shall be re-enacted and published at length.”

Under the claim of counsel that, by virtue of the amendment to section 17, an amendment by implication was wrought in section 10, it might well be held that to approve said claim would be to ignore the constitutional provisions above quoted. We find it unnecessary, however, to base a determination upon this point. A careful examination of the whole of section 17 shows that, in fact, it was not amended. The opening words of the section, “in all school elections,” includes, in the broadest possible terms, elections held in districts governed by local acts, as well as those operating under general laws. The interpolation of the italicized words adds nothing to the sweeping language which precedes that. The obvious purpose of the legislature in inserting the words in question was to restrict the operation of section 10, quoted supra. What they apparently desired to do was to amend section 10 so as to make it read as follows:

“All the provisions of this act shall apply and be in force in every school district, township, city, and village in this State, except such as may be inconsistent with the direct provisions of some special enactment of the legislature. Section 17 of this act, however, shall apply and be in force in every school district.”

The purpose of the legislature was not to change or amend any of the provisions of section 17, but it was to make those provisions applicable to those districts operating under special enactments of the legislature.

We are forced to the conclusion that it was not competent for the legislature, under a title which purported to amend section 17 only, to amend section 10, which was not mentioned either in the title or body of the act. The act must therefore fail. The relief granted petitioners, so far as it is predicated upon the provisions of Act 146, should have been denied.

We next come to a consideration of Act No. 251, Pub. Acts 1913. The title follows:

“An act to provide for a board of education for cities having a population of two hundred fifty thousand or over and comprising a single school district; to fix their terms of office, and the manner of the nomination and election of the members thereof.”

Section 1 provides for a board of education of 7 members, elected at large, to take the place of 18 members at present elected one from each ward of the city.

Section 4 is as follows:

“The provisions of this act shall not take effect in such city which comprises a single school district until approved by a majority of the electors having qualifications to vote at elections for school inspectors, voting thereon, in such city, at the next general election held after the government census shows such city has two hundred fifty thousand inhabitants or more. * * * If a majority of the qualified electors of the city, voting thereon shall vote in favor of the adoption of this act then the provisions hereof shall be in full force and effect in such city and not otherwise.”

Article 5, § 30, of the Constitution, provides:

“The legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act shall take effect until approved by a majority of the electors voting thereon in the district to be affected.”

The question as to whether it is competent for the legislature to pass a general act relating to educational matters in the city of Detroit, alone, is not before us. It is sufficient to say that the legislature attempted to do no such thing. It is apparent that, while the language employed in the title indicated legislation general in its scope, the legislature recognized its special or local character by attempting to provide for a referendum, as required by article 5, § '30, supra. The question presented is whether the referendum provided in the act is such a referendum as is contemplated by the Constitution.

Article 3, § 1, of the Constitution, defines electors as male inhabitants who are citizens of the United States; males residing in this State June 24, 1835; male inhabitants residing in this State January 1, 1850; male inhabitants of foreign birth residing in this State May 8, 1892, and who prior to that date declared their intention of becoming citizens of this State; male civilized native-born Indians.

Section 4 of Act 251 prescribed that those only may vote upon the referendum who have the qualifications to vote at elections for school inspectors. We have seen that those qualifications, whether they be governed by section 17 of the general school law, or by section 25 of the local act governing the city of Detroit, are in many respects different from the qualifications as defined in the Constitution. In the first instance many constitutionally qualified electors would be excluded from participating in the election, and in the second instance many would be permitted to exercise the franchise who are not so qualified.

In the case of Rutledge v. Board of Supervisors, 160 Mich. 27 (124 N. W. 945), it was held that “a qualified elector,” within the meaning of this statute, is one “who meets the requirements of section 1, art. 3, of the Constitution of Michigan.”

It is said in Cooley’s Const. Lim. (6th Ed.) p. 573, that:

“Whenever the Constitution has- prescribed the qualifications of electors, they cannot be changed or added to by the legislature or otherwise than by an amendment to the Constitution.”

See, also, Coffin v. Election Commissioners, 97 Mich. 188 (56 N. W. 567, 21 L. R. A. 662); Belles v. Burr, 76 Mich. 1 (43 N. W. 24); State v. Tuttle, 53 Wis. 45 (9 N. W. 791).

But we are not concerned with the power of the legislature to define the qualifications of electors for school purposes. The question is whether the constitutional convention, when it used the term “electors” in article 5, § 30, referred to electors as defined in another section of that instrument itself, or referred to electors of a particular class, whose qualifications have been defined by legislation. We think it clear that it was the intention of the framers of the Constitution to provide, in case a local or special act were passed by the legislature, that it should be submitted, for approval, to the electors (constitutional electors) of the district to be affected. The term “district,” used in the section, has no reference to a school district (a term not used in the Constitution) but means simply territory.

In the earlier portion of section 4 it is provided that the act shall not take effect—

“until approved by a majority of the electors having qualifications to vote at elections for school inspectors, voting thereon.”

The concluding paragraph of section 4 is that:

“If a majority of the qualified electors of the city, voting thereon shall vote in favor of the adoption of this act then the provisions hereof shall be in full force and effect in such city and not otherwise.”

These two inconsistent provisions occur in the same section. By the last-quoted language it is apparent that the act cannot go into effect until approved by a majority of the qualified electors of the city. Standing alone, this language would undoubtedly mean that the act must be approved by a majority of the constitutionally qualified electors of the city; but we see by reference to the earlier portion of the section that many such electors are excluded from exercising their right to vote upon the question.

We are of the opinion that it is not possible to render the act valid, even if otherwise unobjectionable, by striking out the words “having qualifications to vote at elections for school inspectors,” occurring in the earlier part of the section.

It was said in Burdick v. Lumber Co., 167 Mich. 673 (133 N. W. 822), that:

“Courts should not allow themselves to resort to freedom of interpretation or forced construction in order to save a law which is ambiguous or defective, where it can easily be remodeled by legislation.”

The next session of the legislature will occur within three months from the present time, when, if the matter is deemed of importance, it undoubtedly will receive attention.

We are of the opinion that Act 251, in question, is and was intended by the legislature to be a local or special act, within the meaning of the Constitution, and such an act as requires the approval of the majority of the electors voting thereon within the district to be affected. The referendum provided by the act in section 4 is not the referendum contemplated by the Constitution, and the act must therefore fail. No costs will be awarded.

McAlvay, J., concurred with Brooke, C. J.


text:
    BAILEY v. BOARD OF SUPERVISORS OF WAYNE COUNTY.
    1. Municipal Corporations — Townships — Separation Into Two Portions — Petition.
    In dividing one township into two, a petition is required to be signed by twelve freeholders of the township which is affected, but it is not essential that the petition to form such new township should be signed by twelve freeholders from each of the divisions or from the part remaining after separation of a new division. Act No. 3, Pub. Acts 1913.
    2. Same — Taxation—Board oe Supervisors.
    The proceedings for erecting a new township are not necessarily void because the board of supervisors neglected to provide for a collection of taxes in the newly organized township. Act No. 290, Pub. Acts 1909 (3 How. Stat. [2d Ed.] § 6293), sufficiently provides for the situation so created.
    3. Same — Change oe Boundaries — Special Acts.
    Prior to 1911 boards of supervisors had power to change the boundaries of townships only which had been fixed by the board, and under Act No. 96, Pub. Acts 1911 (1 How. Stat. [2d Ed.] § 970), a wider jurisdiction was conferred upon the board. The statute provides that they shall have power to change the boundaries of any township whether- the same may have been fixed by special act of the legislature or by action of the board.
    4. Same.
    By a fair construction of this language and of Acts Nos. 3 and 4, Pub. Acts 1913, the authority includes townships, the boundaries of which had been fixed by the territorial legislature as well as those which the State legislature had determined.
    Error to Wayne;- Murphy, J.
    Submitted January 28, 1915.
    (Docket No. 136.)
    Decided February 4, 1915.
    Certiorari by John Bailey, one of the supervisors of Wayne county, against the board of supervisors of said county, to review proceedings taken by said board to organize a new township out of the township of Monguagon. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      George W. Coomer, for appellant.

      Allan H. Frazer, Prosecuting Attorney (Taylor, Delbridge & Behr, of counsel), for respondent.
   Bird, J.

The township of Monguagon, Wayne county, is divided into nearly two equal parts by the west channel of the Detroit river. A petition signed by the requisite number of freeholders residing in the township was filed with the board of supervisors to organize into a new township that portion lying east of the channel, which is commonly called Grosse Isle. Favorable action thereon resulted against the objections of the petitioner, and he thereupon obtained a writ of certiorari from the circuit court to test the validity of the proceedings. The proceedings were sustained by the circuit court, and this court is now called upon to review them.

The first question raised is that the petition contained the names of none of the freeholders of the township who resided west of the channel. The question, therefore, which this objection presents is whether, in the division of one township into two, it is necessary that the petition shall be signed by 12 freeholders of the territory seceded from, as well as 12 freeholders of the seceding territory.

The statute which controls such cases provides that such petition shall be upon the application “of at least 12 freeholders of each of the townships to be affected by the division.” Act No. 3, Pub. Acts 1913. Of course, it is clear that, if the territory proposed to be organized into a new township were carved out of two or more townships, the petition would have to be signed by 12 freeholders from each township, and, by analogy, it is argued that, where the territory of the proposed township is taken wholly from the territory of one township, 12 freeholders from the part left, as well as the part taken, are necessary to confer jurisdiction. See Scrafford v. Supervisors, 41 Mich. 647 (2 N. W. 904). While it might have been in the interest of fairness for the legislature to have so provided, we are satisfied from the language used they did not so provide, and, if we should so construe the act, we would be obliged to read something into the statute which is not there.

It is further contended that the proceedings are void, because no provision was made by the board of supervisors for the collection of taxes in the new township. We think this objection is fully answered by Act No. 290, Pub. Acts 1909 (3 How. Stat. [2d Ed.] § 6293), which provides for just such an exigency.

The final point argued is that the proceedings are void because the board of supervisors has power only to change the boundaries of a township which has been organized by a special act of the legislature or by action of the board of supervisors. It is argued that the boundaries of Monguagon were fixed by neither; that they were fixed by the territorial council in 1827, and therefore they cannot be disturbed under this act. Prior to 1911 boards of supervisors had power to change the boundaries only of townships which had been fixed by them. Harrison v. Supervisors, 117 Mich. 215 (75 N. W. 456). Act No. 96, Pub. Acts 1911, was evidently passed to change the law in this respect, and to give the board a wider jurisdiction. It was therein provided that boards of supervisors should have power to change the boundaries of any township, “whether the boundaries of such township may have been fixed theretofore by a special act of the legislature or by action of the board of supervisors.” See Acts 3 and 4, Pub. Acts 1913. We think this language, fairly construed, includes townships whose boundaries were fixed by the territorial legislature, as well as those fixed by the State legislature.

The order of the circuit court quashing the writ of certiorari is affirmed.

Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


text:
    CIVIL SERVICE COMMISSION OF THE CITY OF DETROIT v. ENGEL.
    1. Municipal Corporations — Board op Health — Detroit Charter —Civil Service — Health Department — State.
    The health board of the city of Detroit is a State agency which is not affected by the provisions of the civil service act or amendment to the charter adopted in the city of Detroit, since such department exercises governmental functions different from those of a department lite the fire department of a city.
    2. Same — Statutes—Cities.
    Under the provisions of the new Constitution, sections 21 and 22 providing that the electors shall have authority to frame and amend their charters and pass all laws and ordinances relating to municipal concerns and that any city or village may acquire, own, and maintain parts, boulevards, cemeteries, hospitals, almshouses, and all works which involve the public health or safety, no change has been made in the relation of such department to the State, which has not by legislative action made any new or different provision in relation to the health department or repealed the act which created it.

      3. Same — Public Officers — Civil Service — Detroit Charter.
    An appointee of tbe board of health of the city of Detroit could not be required to pass a civil service examination as a preliminary to accepting an appointment as an employee of the board and an injunction will not issue to restrain the city comptroller from paying his salary as fixed by the board.
    Appeal from Wayne; Murphy, J.
    Submitted January 15, 1915.
    (Docket No. 110.)
    Decided February 11, 1915.
    Bill by the civil service commission of the city of Detroit against George Engel, city comptroller, to enjoin defendant from paying the salary of one Robert ■E. Lee. From a decree for the defendant, complainant appeals.
    Affirmed.

      Robert T. Speed, for complainant.

      Richard I. Lawson, for defendant.
   Bird, J.

The health board of the city of Detroit employed one Robert E. Lee, after the civil service law of Detroit went into operation, without his having passed the civil service examination. It is the contention of the complainant commission that the employees of the health board are subject to the provisions of the act, and in consequence thereof that the employment of Lee was irregular. For the purpose of enjoining the controller from paying Lee his wages, they filed this bill. The position of the controller is that the employees of the health board are not subject to the provisions of the act; that the health board is a State agency, whose members are appointed by the governor; and that the health department is not a creature of the city charter, but exists by force of a special act of the legislature, which provides that the health officer may appoint and dismiss all employees of the health department.

If the question whether the health board of Detroit is a State agency is to decide the question, we must hold that it is a State agency, and therefore not affected by the provisions of the civil service act. The question whether the health board of the city of Detroit was a State agency was directly decided in Davock v. Moore, 105 Mich. 120 (63 N. W. 424, 28 L. R. A. 783), and afterwards approved in Davidson v. Hine, 151 Mich. 294 (115 N. W. 246, 15 L. R. A. (N. S.) 575, 123 Am. St. Rep. 267, 14 Am. & Eng. Ann. Cas. 352). In the latter case the distinction between a purely municipal agency, like the fire department, and a governmental one, like the health department, was clearly pointed out by Mr. Justice Carpenter.

But it is contended by complainant that, notwithstanding these holdings, subsequent changes in the Constitution have made the health department solely a municipal agency. The provisions relied upon to effect this change, are the following:

“Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter, * * * and through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this State.” Article 8, § 21.

“Any city or village may acquire, own, establish and maintain, either within or without its corporate limits, parks, boulevards, cemeteries, hospitals, almshouses and all works which involve the public health or safety.” Article 8, § 22.

It is argued that these two sections, construed together, have clearly transferred the health department of the city of Detroit from the domain of governmental agency to one of purely municipal concern. We are unable to agree with this conclusion. The words “all works which involve the public health,” found in section 22, obviously have reference to physical properties which may be convenient or necessary in caring for the public health.

Section 21 clearly enlarges the rights of cities and villages to control and manage their own local affairs, but this must be done as the section provides, “subject to the Constitution and general laws of the State." The State has not manifested any intention of surrendering its control over such matters by repealing the act which created the department, and in so far as the record shows no attempt has been made upon the part of the city to exercise that authority by passing any other or different provision in relation thereto.

For these reasons, we must hold that the constitutional provisions referred to have wrought no change in the relation of the health board to the city of Detroit.

The right conclusion having been reached in the trial court, its action will be affirmed, without costs to either party.

Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


author: Stone, J.

text:
    ATTORNEY GENERAL, ex rel. DANHOF, v. RENIHAN.
    1. Courts — Constitutional Law — Superior Court oe Grand Rapids — Judges—Grand Rapids Charter.
    Act No. 49, Pub. Acts 1875, chapter 32, Compiled Laws, provides that the superior court of Grand Rapids shall be a court of record and have a seal and that in the case of the absence of the judge, or illness, or other disqualification, the judge of the circuit court shall act as the judge of the superior court and that it shall be the duty of the common council of the city to hold an election to fill any vacancy in the office of the judge of the superior court. It is further provided by said chapter that the judge shall be paid from the treasury of the State the same salary as circuit judges. The court is given original and concurrent jurisdiction with the circuit court and it is provided that the practice and proceedings shall be the same as prescribed for the circuit courts and that the rules shall be the same as the circuit court rules of practice. Section 10, chapter 2, of the charter of the city of Grand Rapids, as amended, enacts that an office is to be deemed vacant upon the death or resignation of the incumbent and that in any of the general elective offices of the city vacancies shall be filled by election held under the direction of the common council and appointive offices vacated shall be filled by the mayor. Section 1092, 1 Comp. Laws, makes all courts that have seals, courts of record. Held, that the power to fill the vacancy in the office of the judge of the superior court of Grand Rapids is vested in the governor under sections 1, 17, and 20 of the Constitution, adopted in 1908, which effected a change in the then existing rule.
    2. Constitutional Law — Courts—Courts of Record.
    The provisions of article 7 of the Constitution, providing that the circuit and probate courts of each county shall be courts of record, do not exclude or prohibit other courts from being courts of record and it has been so held by the opinions of the Supreme Court. In naming certain courts which should constitute courts of record it was not intended to exclude others from the same class which might be established by the legislature, since under section 1 of said article the judicial power is vested in certain courts named and such other courts of civil and criminal jurisdiction inferior to the Supreme Court as the legislature may establish by general law.
    Quo warranto by Grant Fellows, attorney general of the State of Michigan, on the relation of Peter J. Danhof, against Joseph Renihan, to test the title of respondent to the office of judge of the superior court of Grand Rapids.
    Submitted February 23, 1915.
    (Calendar No. 26,638.)
    Writ granted March 5, 1915.
    Rehearing denied April 28, 1915.

      Grant Fellows, Attorney General (Myron H. Walker, of counsel), for relator.

      R. M. Ferguson and Charles A. Watt {Roger I. Wykes, of counsel), for respondent.
   Stone, J.

This is a proceeding by information in the nature of a quo warranto to test the right of the respondent to hold the office of judge of the superior court of Grand Rapids, to fill a vacancy caused by the death of Hon. William J. Stuart, the late incumbent, on January 20, 1915. The facts are not in dispute. Acting on the advice and opinion of the city attorney, the common council of Grand Rapids, at a regular session thereof, held on February 1, 1915, elected the respondent to fill the vacancy. On the following day respondent took and filed the constitutional oath of office, and also filed an acceptance of the same, with the city clerk, and proceeded to hold said office and perform the duties of a judge of said court. The relator was appointed on the 5th day of February, 1915, by the governor of the State, and took and filed the constitutional oath of office with the said city clerk as prescribed by the act creating the. superior court of Grand Rapids. Act No. 49, Pub. Acts 1875, being chapter 32, 1 Comp. Laws. Relator, immediately thereafter on the same day, made demand on the respondent to surrender, deliver, and turn over the office of judge to him, which was refused, whereupon the information was filed in this court.

Section 1 of the above act creating, said court reads as follows:

“That there shall be a municipal court in and for the city of Grand Rapids, which shall be called, ‘the superior court of Grand Rapids/ which shall be a court of record and have a seal to be provided by said city, and whose first term shall commence on the first Tuesday of June, in the year of our Lord one thousand eight hundred and seventy-five.”

Section 5 of the act provides as follows:

' “If in case of absence from the city of the judge of said superior court, illness or any legal disqualification, or if a vacancy occur in his office, the judge of the circuit of which Kent county shall form a part shall act as the judge of said superior court, and as such judge shall have and exercise all the powers and duties of the judge of said court until he shall resume his office or such vacancy be filled. It shall be the duty of the common council of said city to cause an election to be held in said city to fill any vacancy in the office of the judge of said superior court, the same as is provided by the charter of said city in case of vacancies in the office of mayor thereof.”

Section 6 provides that the judge of said court shall receive from the treasury of the State the same annual salary as may be payable to circuit judges.

The jurisdiction of the court is defined by section 13, as amended. It has original and concurrent jurisdiction with the circuit court for the county of Kent, and within its territorial limits the jurisdiction conferred is as extensive and broad as that of the circuit court.

By section 15 it is provided that the practice and proceedings in said court shall be the same as . those prescribed by law for circuit courts, except as otherwise limited by the act, and the rules prescribed by the Supreme Court for the guidance and practice of circuit courts shall be the rules of said superior court so far as the same may be applicable; but the said court has the same power of making rules for said court as is given to circuit courts, or the judges thereof.

The fifth paragraph of the information states:

“That the city of Grand Rapids is a duly organized municipal corporation, doing business under and in pursuance of its charter, viz., Act No. 593 of Local Acts of 1905, and the acts amendatory thereof.

“That in and by the repealing clause of Act No. 593 last aforesaid, the act creating the said superior court aforesaid and the amendments thereof were not affected or repealed thereby.”

The above paragraph is admitted by respondent’s plea.

The sixth paragraph of the information is as follows:

“That section 10, title II, of said charter, relating to election and appointment of officers provides as follows, viz.:

“Sec. 10. (As amended in 1907 [Local Acts 1907, No. 749]). An office shall be deemed vacant upon the death or resignation of the incumbent or upon such incumbent ceasing to possess the qualifications of an elector of the ward or city, or upon impeachment or removal from office, or upon the failure of an officer elected to qualify. The office of mayor, city attorney, city treasurer, comptroller, clerk, and marshal shall be deemed vacant whenever the incumbent thereof shall be impeached or removed, as in this charter provided, or shall be absent from the city for a period of thirty days without leave of the common council, or shall not perform the duties of his office for a like period without such leave. The office of alderman shall be deemed vacant whenever the incumbent thereof shall cease to be a resident of the ward from which he was elected, or fails to attend four successive regular meetings of the common council, unless excused by the common council or by the consent of the mayor first obtained, or shall be removed from office; but a change of the boundaries of any ward shall not be deemed a change of residence of any alderman so as to create or cause any vacancy in such office. A vacancy in any office, caused by the failure' of any person elected to qualify therefor, as prescribed in this charter, or made consequent upon the judgment of any court or upon any failure to elect or qualify in any of the cases specified in this charter, must be filled in the following manner, unless otherwise specially provided in this act.

“(a) In the office of alderman, by an election of the common council, to continue until the appointee’s successor shall be elected and qualified.

“(b) In any of the general elective offices of the city, by an election by the common council until the successor of such officer whose office has become vacant, shall have been elected at the next general municipal election and qualified.

“(c) In all appointive offices by the appointment of the mayor for the unexpired term of office which has become vacant, subject to confirmation by the council in those cases where confirmation is required of the original appointment.”

The foregoing quotations are admitted by the respondent, in his plea, to be correct.

Respondent in his plea cites also sections 35 and 36, known as the nonpartisan provisions of the city charter approved by the electors at the spring election of 1913. They are respectively as follows:

“Sec. 35. The following officers of the city shall be elected, hold office, possess the qualifications and have the powers and perform the duties as provided in this title and in the general or special laws of this State, viz.: One mayor, one city attorney, one comptroller, one city clerk, one city treasurer, one judge and one clerk of the superior court of Grand Rapids, one judge and one clerk of the police court,_ two justices of the peace and five library commissioners; also two aldermen and one constable from each ward, and such other elective officers of the city, if any, whose offices are now or may hereafter be created by law.”

“Sec. 36. All words, clauses and phrases of the present charter and all special acts, supplementary to the existing charter of this city relative^ to the election and nomination of officials named in this title, are hereby repealed in so far as they in any manner contravene the provisions of this title: Provided, that title 14 of Act No. 593 of the Local Acts of 1905, being the title covering the board of education, and the acts, amendatory thereto, are hereby continued in full force and effect. All other special acts supplementary to the existing charter of the city are hereby repealed so far as inconsistent with the provisions of this title and SO' far consistent therewith are hereby continued in force, until the same are superseded by lawful authority exercised under this charter or otherwise.”

It is the claim of the respondent, as we understand the record, that under the provisions of the charter above quoted, the common council had the power to fill the vacancy by election, and that by reason of said election he is rightfully entitled to hold the office of judge of said court until the next general municipal election. On the other hand, it is the claim of the relator that the power to fill said vacancy is solely and exclusively vested in the governor of this State, by virtue of the following sections of article 7 of the Constitution, viz.:

“Section 1. The judicial power shall be vested in one Supreme Court, circuit courts, probate courts, justices of the peace and such other courts of civil and criminal jurisdiction, inferior to the Supreme Court, as the legislature may establish by general law, by a two-thirds vote of the members elected to each house. sfs H*

“Sec. 17. The Supreme Court and the circuit and probate courts of each county shall be courts of record, and shall each have a common seal. * * *

“Sec. 20. When a vacancy occurs in the office of judge of any court of record, it shall be filled by appointment of the governor, and the person appointed shall hold the office until a successor is elected and qualified. When elected, such successor shall hold, the office the residue of the unexpired term.-”

If relator is correct in his position, it follows that no power or authority to fill said vacancy is conferred on or granted to the common council under its charter, or, if any, it is in conflict with the Constitution, and therefore void. The language of section 20 is very plain, and ought to be easily understood. It could not be made plainer that the governor shall fill a vacancy occurring in the office of judge of any court of record. Any court of record means "every court of record. The language is unlimited in its scope.

Counsel for respondent, while conceding that the superior court of Grand Rapids is a court of record, contend that it is not a court of record within the contemplation of section 20, above quoted. They say:

“At the outset we admit that the superior court of Grand Rapids is a court of record, but we deny that it is a court of record within contemplation of this provision of the Constitution, or that it was intended by this provision to confer upon the executive authority to make appointments to fill vacancies in the office of the judge of such court.”

But, as we have said, the provisions of section 20 aPPly, in language, to any and to all courts of record in the State. Counsel further contend that the term “court of record,” as used in section 20, is limited and controlled by the provisions, of section 17, above quoted. Because the Constitution states that certain enumerated courts shall be courts of record, does it exclude or prohibit other courts from being courts of record? Was it the intention of the people adopting the Constitution in the usé of the language of section 17 to declare that the superior court of Grand Rapids and the recorder’s court of Detroit were to lose their character of courts of record, or was the language prohibitive or restrictive? We do not think so. It is not necessary to stop and define a court of record, for respondent admits that the superior court of Grand Rapids is such a court. Its jurisdiction has been defined by this court as that of a court of record. Heath v. Judge, 37 Mich. 372.

In Covell v. Treasurer of Kent County, 36 Mich. 332, it was held that it was a constitutional court, i. e., a court which the legislature had power under the Constitution to establish.

We have already referred to the fact that the act creating the court declared that it should be a court of record having a seal. The judge is a State officer. Douvielle v. Supervisors, 40 Mich. 585. Since 1846 we have had a statute declaring that “the several courts of this State having a seal are courts of record.” Section 1092, 1 Comp. Laws (5 How. Stat. [2d Ed.] § 12583).

This court held in Nichols v. Judge of Superior Court, 130 Mich. 187 (89 N. W. 691), in speaking of the act establishing the superior court, that:

“Under this law the superior court is subject only to the control of the Supreme Court. It is governed by the same rules of practice as the circuit courts. Appeals are taken from it to the Supreme Court. In short, it is subject to the mandate of this court in precisely the same manner and to the same degree that the circuit courts are.”

See, also, Wyandotte Rolling Mills Co. v. Robinson, 34 Mich. 428, as to the jurisdiction of the old superior court of Detroit.

It is inconceivable that the framers of the present Constitution, or the people adopting it, were ignorant of, or unfamiliar with, the law defining the courts of record then in the State, or the act establishing the superior court of Grand Rapids. In naming certain courts in section 17 that should be courts of record did they intend to exclude other courts from that class which had been, or might be, created by the legislature, when by section 1 it had been declared that the judicial power should be vested in certain named courts, “and such other courts of civil and criminal jurisdiction, inferior to the Supreme Court, as the legislature might establish by general law?” To ask this question is to answer it in the negative.

The construction which we place on section 17 is that it is declaratory, declaring that the Supreme Court, the circuit and the probate courts shall be courts of record, but that it is not prohibitive, restrictive, or exclusive, and does not preclude other courts from being courts of record within the meaning of the provisions of section 20. The Constitution may declare that certain courts shall be courts of record. The legislature (acting within the limits of section 1 of said article) may declare that other courts created by it shall be courts of record. But all are courts of record, “and when a vacancy occurs in the office of judge of any court of record,” the governor may fill the same temporarily by appointment. This construction gives full force and effect to all the provisions of the Constitution under consideration, and saves the incongruity that must exist if we adopt the view of the respondent that the term “any court of record” is not broad enough to include all courts of record.

The real question is, What was the intent of the people in adopting the Constitution? We quote from Cooley’s Constitutional Limitations (7th Ed.), page 101:

“For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, ,the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.”

We think it must be held that the present Constitution made a substantial change in the provisions of the Constitution of 1850 relating to vacancies in the courts. Section 14, art. 6, of that instrument provided that:

“When a vacancy occurs in the office of judge of the Supreme, circuit or probate court, it shall be filled by appointment of the governor.”

That provision designated particular courts, but in the present Constitution the language used refers to and designates a class of courts, to wit, “any court of record.” Language could not be plainer. It has been said that Constitutions, are made for the government and guidance of the “plain, common people,” and they should not be subjected to such technical construction as to-do away with their plain provisions. When counsel concede, as they do, that the superior court of Grand Rapids is a court of record, we think it should be held that that court is included in the provisions of section 20, above quoted, and that since the adoption of the present Constitution neither the legislature nor the people could longer prescribe the method of filling the vacancy. When adopted, the Constitution became the paramount law of the State, and any vacancy thereafter occurring “in the office of judge of any court of record” must be filled by the appointment of the governor. This is the plain, clear meaning of the provision, and it should not be frittered away, or be ignored or abrogated by the courts. If we are correct in this conclusion, but little more need be said. Any legislation or action of the people, local or otherwise, must be “subject to the Constitution.” See sections 20 and 21, art. 8, of' the Constitution.

The terse language of Chief Justice Marshall in Marbury v. Madison, 1 Cranch, 137-178, is appropriate here:

“If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the court must determine -which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

The Constitution, section 1 of the schedule, declares that:

“The common law and the statute laws now in force, not repugnant to this Constitution, shall remain in force until they expire by their own limitations, or are altered or repealed.”

Here again we are brought back to the provisions of the Constitution, which are controlling.

We do not think it necessary to pass judgment upon any part of the “Address to the People” submitting the Constitution, nor on the claimed incongruous or inconsistent provisions of the Constitution. They do not relate to the subject we are here considering, i. e., where the appointing power rests “when a vacancy occurs in the office of judge of any court of record.” In our opinion that power, under the Constitution, is vested in the governor.

It follows that a judgment of ouster against the respondent should be entered. It is so ordered.

Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.