author: Danhof, C.J. R. B. Burns, J.,

text:
    PEOPLE v MOHEAD
    Docket Nos. 78-4381, 43559.
    Submitted February 5, 1980, at Grand Rapids. —
    Decided July 18, 1980.
    Leave to appeal applied for.
    Norman Mohead was charged with breaking and entering. On the first day of trial a supplemental information was filed, charging him as a third felony offender. He was convicted of breaking and entering, Calhoun Circuit Court, Creighton R. Coleman, J., and subsequently pled guilty to an amended supplemental information charging him as a second offender. An enhanced sentence was imposed. Defendant appealed. Subsequent to filing his claim of appeal, the Supreme Court decided People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), on which defendant based his attack on the enhanced sentence. Held:

    The supplemental recidivist information was promptly filed prior to conviction, providing fair notice to defendant and involving no prosecutorial impropriety. There is no end to be served by affording any retrospective effect to the "simultaneous filing” rule announced in Fountain.

    Affirmed.
    R. B. Burns, J., dissented. He would hold that under People v Fountain, defendant’s habitual offender conviction must be vacated and his sentence for breaking and entering reinstated since the habitual offender charge was not filed simultaneously with the information which charged the last felony. He would vacate the habitual offender conviction.
    ■ Opinion of the Court
    1. Criminal Law — Habitual Offenders Act — Enhanced Sentences — Prosecuting Attorneys — Post-Conviction Filing — Statutes.
    It is not permissible to impose an enhanced sentence under the habitual offenders act where the prosecutor has reliable information pertaining to a person’s prior felony record before trial but does not charge the person as an habitual offender until after conviction on the current felony charge (MCL 769.10, et seq.; MSA 28.1082, et seq.).

      References for Points in Headnotes
    [1, 2, 4] 39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 17 et seq.

       20 Am Jur 2d, Courts § 85. 73 Am Jur 2d, Statutes § 347 et seq.

      2. Criminal Law — Habitual Offenders Act — Enhanced Sentences — Pre-Conviction Filing — Statutes.
    The imposing of an enhanced sentence under the habitual offenders act is permissible where the supplemental recidivist information is filed on the first day of trial and prior to defendant’s conviction of the charged offense (MCL 769.10, et seq.; MSA 28.1082, et seq.).

    3. Courts — Application of New Law — Purpose — Reliance — Effect.
    The three key factors to be taken into account by a court in determining whether a law should be applied retroactively or prospectively are (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect on the administration of justice.
    Dissent by R. B. Burns, J.
    4. Criminal Law — Habitual Offenders — Charge — Simultaneous Filing — Fair Notice — Appearance of Impropriety.

      An habitual offender charge may only be Sled with the information which charged the last felony to provide fair notice to the accused and avoid an appearance of prosecutorial impropriety.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James Norlander, Prosecuting Attorney, and Conrad J. Sindt, Assistant Prosecuting Attorney, for the people.

      Janet M. Tooley, Assistant State Appellate Defender, for defendant on appeal.
    Before: Danhof, C.J., and R. B. Burns and Mackenzie, JJ.
   Danhof, C.J.

In an information filed in Calhoun County on April 17, 1978, the defendant was charged with breaking and entering, MCL 750.110; MSA 28.305. On the first day of trial, July 20, 1978, the prosecutor filed a supplemental information charging the defendant as a third offender, MCL 769.11; MSA 28.1083, alleging prior felonies in Calhoun and neighboring Kalamazoo Counties. This information was submitted without objection from the defendant. Five days later, the defendant was convicted of the charged offense, and, after a partial trial on the recidivist charge, he pled guilty to an amended supplemental information charging him as a second offender, MCL 769.10; MSA 28.1082. An enhanced sentence of 8 to 15 years imprisonment was imposed.

Of the issues raised in this appeal, one merits discussion. Subsequent to the defendant’s claim of appeal, the Supreme Court issued its opinion in People v Fountain, 407 Mich 96; 282 NW2d 168 (1979). At oral argument, that case was the basis of an attack on the enhanced sentence. By leave, the parties have filed supplemental briefs.

In Fountain, defendant Fountain was tried and convicted of carrying a concealed weapon, for which he was sentenced to three to five years imprisonment. After he filed a claim of appeal from that conviction, his prosecutor charged him as a fourth offender. Tried on that supplemental information, Fountain’s sentence was enhanced to 15 to 30 years. Defendant Jones was tried and convicted of unarmed robbery and, before sentencing, pled guilty to a supplemental third offender information that was filed nearly a month after the conviction. Two separate sentences were imposed.

The Supreme Court vacated the sentence enhancement in each case in an opinion so brief that it can be quoted in its entirety, omitting only the facts of the cases set forth above:

"Per Curiam. Is it permissible to enhance sentence under the habitual offenders act if the prosecutor has reliable information pertaining to a person’s prior felony record before trial but does not charge the person as an habitual offender until after conviction is entered on the current felony charge?
"A prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the person as an habitual offender. People v Hatt, 384 Mich 302; 181 NW2d 912 (1970); People v Stratton, 13 Mich App 350; 164 NW2d 555 (1968). The prosecutor is not foreclosed from proceeding against a person as an habitual offender after conviction on the current offense provided he is unaware of a prior felony record until after the conviction. MCL 769.13; MSA 28.1085. The only recognized exception to this rule is when the delay is due to the need to verify out-of-state felony convictions based on the 'rap sheet’. People v Hendrick, 398 Mich 410; 247 NW2d 840 (1976).
"Here the prosecutors must be presumed to have known of the defendants’ prior felony records because their respective offices prosecuted the prior felonies. The habitual offender charges should have been filed with the information which charged the last felony to provide fair notice to the accused and avoid án appearance of prosecutorial impropriety.
"In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the decisions of the Court of Appeals, vacate the habitual offender sentences, and order that Fountain’s 3- to 5-year sentence for carrying a concealed weapon be reinstated, and Jones’ 10- to 15-year sentence for unarmed robbery remain intact.
"Reversed.” (Footnotes omitted.) 407 Mich 96, 97-99.

The Chief Justice, joined by Justice Ryan, wrote separately:

"I concur in the results reached. Although the result in Jones may not be statutorily or constitutionally required, especially in the absence of any allegation or showing of prejudice from the delay, it is based on this Court’s supervisory powers over the practices and procedures used in the courts of this state. In order to avoid even the appearance of impropriety, the prosecutor should file the habitual offender information with the information charging the principal offense when he or she has prior knowledge of defendant’s previous conviction(s) Such information should be drawn up and presented so as to insure that it will not place the defendant’s past criminal record before the jury prior to the jury’s finding of guilt or innocence on the principal charge. See People v Burd, 1 Mich App 178; 134 NW2d 843 (1965).” (Footnotes omitted.) 407 Mich 96, 99-100.

The defendant claims that the prosecutor must be held to have had knowledge of his prior felony convictions before the first day of trial and argues that Fountain requires us to vacate the enhancement of the sentence. The prosecutor responds that to do so would upset a past proceeding that was in compliance with the law in effect at the time of sentencing, affording an unwarranted "retroactive” effect to Fountain’s rule.

Our analysis of Fountain suggests that that opinion sets forth two overlapping but distinct rules, each requiring a separate examination of its meaning and application.

The dimensions of the first Fountain rule are measured by the Court’s statement of the question presented by the facts of the Fountain and Jones convictions:

"Is it permissible to enhance sentence under the habitual offenders act if the prosecutor has reliable information pertaining to a person’s prior felony record before trial but does not charge the person as an habitual offender until after conviction is entered on the current felony charge?” (Footnote omitted.) 407 Mich 96, 97.

That question was answered in the negative. It is on this rule that the defendant’s appeal is based.

This case is quite clearly outside the facts, the stated question, and the holding in Fountain, for the supplemental recidivist information was filed five days before conviction.

Because the defendant’s claim is based on the Court’s statement that "a prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the person as an habitual offender”, we must also decide whether a supplemental recidivist information that is filed before conviction may nevertheless not be sufficiently prompt under Fountain’s first rule. To this end, we turn to the decisions upon which the promptness principle is apparently based: People v Hatt, 384 Mich 302; 181 NW2d 912 (1970), and People v Stratton, 13 Mich App 350; 164 NW2d 555 (1968).

Hatt is of little assistance in this regard. While noting that earlier cases had approved the use of a single information to charge both a felony and recidivism, the Hatt Court reversed that felony conviction because the two charges were tried in a "unitary trial” in which the defendant’s prior felony convictions were necessarily disclosed to the jury trying the latest offense. Hatt approved the resolution of that problem posited by Stratton.

Stratton set out a procedure by which a defendant’s prior felony convictions can be kept from the jury trying a later offense until conviction on that charge is had. It had been the defendant’s contention in that case that only a completely different jury could try the recidivist charge. In an initial opinion, the Court apparently held that the statute provided only for the filing of a supplemental information after conviction of the later offense. On rehearing, it was held that prosecutors were not precluded from filing recidivist charges before conviction:

"Implicit in the language just quoted — 'need not have been indicted and convicted as a previous offender’ and 'may be proceeded against as provided in the following section’ —is the concept that the procedure set forth in the 'following section,’ section 13, need not be followed and that an accused person may be punished pursuant to sections 10, 11 and 12 when 'indicted and convicted’ without regard to section 13.
"Thus, as we now read sections 10, 11, 12 and 13, they contemplate 2 separate situations and procedures to be followed when the prosecutor desires to make possible the meting out of an increased penalty pursuant to the habitual criminal sections of the code of criminal procedure. The procedure set forth in section 13 is to be followed whenever it appears to the prosecutor 'after conviction’ of the current charge that the felon has a prior felony record. However, where it appears to the prosecutor before conviction of the current charge that the accused person is a prior felon, the accused person is to be informed against as a prior offender prior to conviction on the current charge; the procedure set forth in section 13 need not be followed.” (Footnotes omitted.) 13 Mich App 350, 356.

Our inspection of Stratton reveals no assignment of legal significance to any stage of prosecution other than the time of conviction. Turning as a last resort to People v Hendrick, 398 Mich 410, 420-421; 247 NW2d 840 (1976), which the Fountain Court cites as the "only recognized exception” to the rule that recidivist charges must be filed before conviction, we find only this ambiguous resolution of a claim that a postconviction filing came too late:

"The Court said [in People v Marshall, 41 Mich App 66; 199 NW2d 521 (1972)] 'the prosecutor had discretion to file a supplemental information under the Habitual Criminal Act after conviction and is not limited to filing such supplemental information prior to conviction of the current charge, where he has knowledge of the previous conviction’. However, defendant’s conviction was reversed because
'once the prosecutor was aware that defendant would not be sentenced to a mandatory life imprisonment, he should have acted promptly to file his supplemental information. Any delay was solely for his convenience. Therefore, where no good reason exists for the delay in filing a supplemental information charging the defendant as a subsequent offender, and the delay on the part of the prosecutor substantially prejudices defendant’s rights, the filing of that supplemental information clearly denies defendant his right to due process of law.’
"In this case the prosecutor had an FBI rap sheet indicating convictions in Washington and North Dakota. We agree it 'would be foolish to rely solely upon a rap sheet for information’. The prosecutor acted properly in this case. The Court of Appeals is affirmed.”

These cases, the foundations of Fountain's first rule, give us no indication that a prosecutor who files a recidivist information before conviction of a later felony charge has not proceeded "promptly”. We are thus unable to vacate the defendant’s sentence enhancement on the authority of Fountain's first rule. This disposition makes it unnecessary to determine whether this rule should be afforded "retroactive” effect._

The preceding discussion exhausts the defendant’s arguments in this appeal. However, Fountain sets forth another rule which, if applicable to this case, would appear to require that we vacate the enhancement of the defendant’s sentence. The Court wrote:

"Here the prosecutors must be presumed to have known of the defendants’ prior felony records because their respective offices prosecuted the prior felonies. The habitual offender charges should have been filed with the information which charged the last felony to provide fair notice to the accused and avoid an appearance of prosecutorial impropriety.” 407 Mich 96, 99.

This rule is distinguished from the first Fountain rule in several important respects. Although it overlaps the first rule, it has a potentially far greater impact on prosecutorial practices. It establishes a rigid schedule for filing informations that is not found in earlier cases. It is set forth without citation to case law, and is not necessary to the decision of the case, given the first Fountain rule.

The prosecutor does not suggest that he filed the supplemental habitual offender information "with” the information charging the defendant with breaking and entering. Rather, the prosecutor argues that Fountain’s ruling should not be applied "retroactively” to a case that was pending in this Court when Fountain was released.

Discussing the problems of retrospective and prospective application of newly announced principles of law, the Supreme Court of the United States wrote in Linkletter v Walker, 381 US 618, 629; 85 S Ct 1731; 14 L Ed 2d 601 (1965):

"Once the premise is accepted that we are neither required to apply, nor prohibited from applying, a decision retrospectively, we must then weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. We believe that this approach is particularly correct with reference to the Fourth Amendment’s prohibitions as to unreasonable searches and seizures. Rather than 'disparaging’ the Amendment we but apply the wisdom of Justice Holmes that '[t]he life of the law has not been logic: it has been experience.’ Holmes, The Common Law 5 (Howe ed 1963).”

Our Supreme Court adopted the Linkletter restatement of these interrelated principles in People v Hampton, 384 Mich 669, 674; 187 NW2d 404 (1971):

"[T]his Court is under no constitutional compulsion to apply the Cole rule, either prospectively or retrospectively.
"The United States Supreme Court has discussed various factors to be used in determining whether a law should be applied retroactively or prospectively. There are three key factors which the court has taken into account: (1) the purpose of the new rule; (2) the general reliance on the old rule; and (3) the effect on the administration of justice. See, e.g., Linkletter v Walker (1965), 381 US 618 (85 S Ct 1731, 14 L Ed 2d 601); Tehan v United States ex rel Shott (1966), 382 US 406 (86 S Ct 459, 15 L Ed 2d 453).”

Fountain set forth the "simultaneous filing” rule "to provide fair notice to the accused and avoid an appearance of prosecutorial impropriety”. By its terms, the rule is absolute, applying to every recidivist prosecution regardless of actual prejudice to the defendant or real lapse of prosecutorial integrity. By implication, it states that pretrial notice of a prosecutor’s intent to seek sentence enhancement is a right of some weight.

Although our courts do not lack the ability and authority to address particular instances of unfair surprise or prosecutorial misconduct (see People v Marshall, 41 Mich App 66; 199 NW2d 521 [1972]), in the inflexibility of its application this Fountain rule seeks to foreclose completely the chance that defendants might suffer harm from such events. It thus shows the main identifying characteristic of a "prophylactic” rule, guarding in every prosecution rights that are actually violated in but a few. It represents a determination that its extra measure of protection to defendants justifies the price to be paid in prosecutorial effort and discipline and frustration of the legislative scheme to impose enhanced sentences on habitual criminals.

The rules that have governed filing of recidivist charges comprise a patchwork of varying concepts and concerns, as the review of that history in Hendrick, supra, illustrates. It was once believed that a court was without jurisdiction to impose an enhanced sentence unless early filing of recidivist charges produced a "unified” trial. In re Brazel, 293 Mich 632; 292 NW 664 (1940), apparently abandoned jurisdictional worries in favor of giving more discretion to prosecutors.

The next problem to receive attention was the presentation of "unified” recidivist informations to juries empaneled to hear evidence in prosecutions for later felonies. See People v Burd, 1 Mich App 178; 134 NW2d 843 (1965). In People v Cairns, 4 Mich App 633; 145 NW2d 345 (1966), this Court suggested that to avoid this prejudicial event, prosecutors should withhold supplemental recidivist informations until after conviction of a subsequent offense. In Stratton, supra, it was held that a prosecutor could file his supplemental information before conviction if he kept it from untimely exposure to the jury. The ambiguous resolution of Hendrick either announced no firm rule of prosecutorial timing or held that there was generally an obligation to file recidivist charges before conviction of a later offense. Justice Levin’s lone dissent is apparently our courts’ only expression of concern for lengthy pretrial notice of prosecutorial intent to press habitual offender charges.

While Hendrick provides some support for the view that recidivist charges may not be filed after conviction of a later offense, we have found no case reversing habitual offender sentence enhancement for that reason alone. That a supplemental information charging a defendant as an habitual offender must be filed with the information charging the latest offense appears for the first time in Fountain.

This history shows that until Fountain’s release, the prosecutors of this state had good cause to believe that their notice obligation to the recidivist was discharged by filing a supplemental information any time before conviction. We do not doubt that scores of prosecutors were surprised to find their practices disapproved by the Fountain opinion.

The third Hampton-Linkletter factor is "the effect on the administration of justice” that would be produced by a suggested application of the new rule. This "formula” statement is expanded in Linkletter, where the Court considered whether "retroactive operation [of the new rule] will further or retard its operation”. 381 US 618, 629. In this case, it is suggested that the "simultaneous filing” rule should be applied to a case that was on appeal when Fountain was released. We are not asked to consider whether absolute "Blackstonian” retroactivity is in order.

The "simultaneous filing” rule is violated, if at all, when the information charging a later offense is filed. If the rule’s schedule is not observed, its power to insure against unfair surprise and the appearance of prosecutorial impropriety is immediately reduced. The automatic invalidation of a subsequent enhanced sentence is not itself a restoration of that protection but does serve to completely vindicate the right denied a defendant who has suffered the injuries the rule was designed to prevent.

In the vast majority of cases, however, neither prosecutorial impropriety nor lack of fair notice will be shown merely by noncompliance with Fountain’s rule; the common practice of plea bargaining can easily produce an entirely proper and harmless reason for delay. In such cases, automatic invalidation cures no real injury but merely pleases defendants and chastises prosecutors. In cases arising after Fountain’s release, the undeserved benefit to defendants is incidental to the completely legitimate end of enforcing the state’s rules of prosecutorial practice. The "discipline” thus meted out to prosecutors who ignore the law furthers the operation of the rule by producing compliance in later cases.

However, should Fountain’s rule be applied to cases in which original informations were filed before that rule was announced, an entirely different balance of values would be produced. As in all cases in which no actual harm has resulted, the benefit to this class of defendants would be undeserved. But in these cases, the goal of enforcing prosecutorial adherence to Fountain’s rule cannot be furthered by "penalizing” the prosecutors, for there has been no abandonment of any known prosecutorial duty. Application of the rule to cases antedating its genesis can please defendants, frustrate the statutory scheme, and demoralize prosecuting authorities, but can do nothing more.

The consequences of affording even limited retrospective application to Fountain’s second rule would be significant. If the rule were applied to all cases not final on the day of Fountain’s release, it would invalidate every successful but noncomplying recidivist prosecution that was on appeal, awaiting the filing of a claim of appeal, awaiting sentencing, or otherwise in the circuit courts of this state on August 28, 1979. In not one of these cases could the prosecutor who filed the information charging a subsequent felony have known that a supplemental habitual offender information should have been filed "with” it. In none of these cases could any of the purposes of the simultaneous filing rule be furthered by vacating the enhanced sentence. We conclude that there is no end to be served by affording any retrospective effect to this prophylactic rule and that the costs of doing so would be great. The largest class of cases to which the rule can apply without fruitless injury to the sound administration of justice includes only those prosecutions in which the information charging the current or later felony was filed after August 28, 1979. The case at bar falls outside that class.

Affirmed.

Mackenzie, J. concurred.

R. B. Burns, J.,

(dissenting). After having reviewed the record, I find no prejudicial error as to defendant’s breaking and entering conviction and agree with the majority opinion that this conviction should be affirmed. I would, however, hold that under People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), defendant’s habitual offender conviction must be vacated.

In Fountain the Supreme Court held that when a prosecutor has knowledge of a defendant’s felony record an habitual offender charge may only be filed "with the information which charged the last felony to provide fair notice to the accused and avoid an appearance of prosecutorial impropriety”. 407 Mich 96, 99.

Generally, in determining the application of a Supreme Court ruling it is necessary to focus on whether the court has set forth a new rule of law or has merely restated or clarified existing law. The following factors would be analyzed to determine the application of a new rule of law: "(1) The purpose of the new rule, (2) general reliance on the old rule and (3) the effect on the administration of justice”. People v Kamin, 405 Mich 482, 494; 275 NW2d 777 (1979).

When a new rule of law is set forth by the Supreme Court, there are a variety of ways the rule may be given effect. Placek v Sterling Heights, 405 Mich 638, 662; 275 NW2d 511 (1979). A new rule of law may be made applicable, for example, to future cases and all pending cases or to future cases and the case at bar. In People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975), the Court limited the application of the new rule of law therein to the case at bar and all cases tried after an arbitrarily selected date. A ruling which merely restates or clarifies existing law, on the other hand, must be applied to the broadest category of cases, as nothing new is required which was not already mandated.

After balancing the relevant considerations, I do not believe that it is necessary to decide whether Fountain announced a new rule of law because I find that consideration of the traditional factors used to limit the application of a new rule produces the same result as would flow from a determination that Fountain merely clarifies or restates existing law. See People v Kamin, supra, 494.

Accordingly, I would apply the requirements of Fountain to future cases and to all cases which were pending at the date of the Fountain decision. And, when considering the present case in light of the Supreme Court’s ruling in Fountain, I would vacate defendant’s habitual offender sentence and reinstate defendant’s sentence for breaking and entering.

       Justice Levin dissented from the opinion in Hendrick, laying great weight on the notion that defendants who know before trial that recidivist charges are to be pursued will prepare more completely for trial than defendants who are not so informed. This view attracted no other adherence.

       The Supreme Court has applied Fountain to summarily reverse two cases in which supplemental recidivist informations were filed after conviction and which were in the appellate process when Fountain was released.
      In People v Morris, 407 Mich 885 (1979), the sentence enhancement was vacated, and the defendant’s initial sentence was reinstated with citation to Fountain.

      In People v Devine, 407 Mich 904; 284 NW2d 342 (1979), on similar facts, the same relief was granted, the Court commenting, "In resolving this case we intimate no opinion on the retroactivity of [Fountain].”

      In People v Ronald Brown, 407 Mich 913 (1979), this Court’s summary affirmance of the conviction was reversed, and the case remanded "* * * for briefing and argument of the issues of (1) whether the timing of the prosecutor’s filing of the supplemental information was violative of the rule announced in [Fountain], and (2) if so, whether Fountain should be given retroactive effect.”
      The disposition and comments in Devine indicate a view that the first Fountain rule is not sufficiently novel to raise retroactivity questions when applied to a case that wás on appeal when Fountain was released.


source: Caselaw Access Project

author: Beasley, P.J.

license: Public Domain

text:
    DANIELS v BUREAU OF STATE LOTTERY
    Docket No. 43639.
    Submitted January 16, 1980, at Lansing.
    Decided July 18, 1980.
    Amos Daniels, Jr., brought suit for a declaratory judgment against the State of Michigan, the Bureau of State Lottery and the Commissioner of State Lottery to permit him to operate a second bingo hall to lease to organizations qualified to conduct bingo games. The Ingham Circuit Court, Ray C. Hotchkiss, J., held for plaintiff. Defendants appeal, alleging that the trial court erred in (1) finding that the Bureau of State Lottery exceeded its authority in promulgating an administrative rule limiting the frequency of bingo games conducted at a single premises, and (2) ordering the Bureau to grant plaintiff a hearing concerning his request to operate a second bingo hall. Held:

    1. The legislative provisions of the bingo act taken together with the statutory authority vested in the Commissioner of State Lottery to promulgate rules to implement the act consistent with the legislative objectives indicate a legislative intent to authorize the commissioner to limit the frequency of games at a particular location, and the commissioner did not exceed his authority in adopting an administrative rule to that end.
    2. The rule is within the matter covered by the statute, complies with the essential intent of the statute, and is neither arbitrary nor capricious.
    3. The trial court did not err in ordering defendant Bureau to grant plaintiff a hearing concerning his request to operate a second bingo hall.
    Reversed.
    1. Administrative Law — Administrative Agencies — Rulemaking Powers — Courts — Construction of Rules — Test.
    Courts employ a three-fold test to determine the validity of administrative rules: (1) whether the rule is within the matter covered by the enabling statute, (2) if so, whether it complies with the underlying legislative intent, and (3) if it meets the first two requirements, it is neither arbitrary nor capricious.

      References for Points in Headnotes

       2 Am Jur 2d, Administrative Law § 307.

       38 Am Jur 2d, Gambling § 17.

      2. Charities — Bingo — Conduct of Games — Qualified Organizations — Locations — Commissioner’s Approval — Lotteries.
    Qualified organizations may conduct bingo games at locations which they either own or lease, subject to approval of the Commissioner of State Lottery.
    3. Charities — Bingo Act — Legislative Intent — Legislative Control — Locations — Statutes.
    The provisions of the bingo act indicate the intention of the Legislature to exercise extensive, far-reaching control over charitable bingo, including locations where bingo will be played (MCL 432.101-432.120; MSA 18.969[101]-18.969[120]).
    4. Charities — Bingo Act — Legislative Intent — Legislative Control — Location of Games — Lessors — Commissioner of State Lottery — Statutes.
    The Legislature, in specifying control over locations where bingo will be played in provisions of the bingo act, intended to permit the Commissioner of State Lottery to exercise control over landlords who lease their halls to qualified organizations for charitable bingo (MCL 432.101-432.120; MSA 18.969[101]-18.969[120]).
    5. Charities — Bingo Act — Commissioner of State Lottery — Control — Number of Games — Location — Statutes.
    The bingo act contemplates control by the Commissioner of State Lottery over the number of sets of bingo games by individual licensees that may be conducted at a particular location (MCL 432.101-432.120; MSA 18.969[101]-18.969[120]).
    6. Administrative Law — Legislative Intent — Bingo Act — Statutory Authority — Commissioner of State Lottery — Rules — Statutes.
    The provisions of the bingo act taken together with the statutory authority vested in the Commissioner of State Lottery to promulgate rules to implement the act consistent with the legislative objectives, indicate a legislative intent to authorize the Commissioner to limit the frequency of games at a particular location, and the Commissioner does not exceed his authority in adopting administrative rules to that end (MCL 432.113; MSA 18.969[113], 1976 AACS R 432.117[7]).

      Abood & Abood, P.C. (by William E. Rheaume), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Robert J. Taube and E. Boomie Mikrut, Assistants Attorney General, for defendant.
    Before: Beasley, P.J., and D. E. Holbrook, Jr., and R. E. Robinson, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment,

   Beasley, P.J.

In response to plaintiffs suit for a declaratory judgment, the Ingham County Circuit Court held for plaintiff and found that a rule promulgated by the Bingo Division of the Bureau of State Lottery (hereinafter referred to as Bureau) limiting a particular location or premises to not more than five bingo games a week exceeded the rule-making authority extended to the Bureau under the statute and directed the Bureau to "grant approval to qualified bingo licensees to hold , bingo games at the plaintiffs hall if the hall was in compliance with other validly promulgated rules and regulations”. Defendant appeals as of right.

Since, initially, the issues raised by defendant involve statutory interpretation, we refer in detail to the statute.

In 1972, the Legislature, among other things, passed two bills, one establishing a state lottery and the other providing for the licensing of nonprofit organizations to conduct charitable bingo.

A Bureau of State Lottery was created and a commissioner appointed to administer the state lottery and charitable bingo under the two statutes. The statutory plan for charitable bingo limited licenses to qualified organizations which were defined as bona fide religious, educational, service, senior citizens, fraternal, or veterans organizations operating without proñt to its members and in existence continuously for five years or exempt from taxation under specified statutes.

Among other things, the applicant was required to indicate the location at which bingo would be conducted and the day of the week on which bingo would be conducted. Upon compliance with the statutory requirements, the commissioner issues a license.

The statute specifically provides "[a] licensee may hold only 1 license and that license is valid for only 1 location.” (Emphasis added.) The statute also provides that the bingo license must be conspicuously displayed at the location where bingo is conducted, and the license must provide as follows:

"Each bingo license shall contain the name and address of the licensee, the location at which the licensee is permitted to conduct bingo, the day of the week on which the licensee is permitted to conduct bingo and the expiration date of the license.”

The statute provides for special licenses, which type of license is not sought by plaintifF.

Another section of the statute provides that the entire net proceeds of the bingo games shall be devoted exclusively to the lawful purposes of the licensee. The statute specifically provides:

"* * * An item of expense shall not be incurred or paid in connection with the holding, operating, or conducting of bingo * * * except the following bona fide expenses in reasonable amounts:
"(a) The purchase or rental of equipment necessary for conducting bingo * * * and payment of services reasonably necessary for the repair of equipment.
"(b) Cash prizes or the purchase of prizes of merchandise
"(c) Rental of the location at which bingo * * * is conducted.
"(d) Janitorial services. * * *
"(f) Other reasonable expenses incurred by the licensee, not inconsistent with this act, as permitted by rule of the commissioner.” (Emphasis added.)

Further provision is made that "[a] person other than a bona fide member of the licensee may not participate in the management of bingo * * This section also provides other limitations upon persons who may participate in the operation of bingo and upon any commission, salary, pay, profit or wage for participating in the management of bingo, all being expressly limited to that permitted by rule of the commissioner.

Section 13 provides as follows:

"(1) The commissioner shall promulgate rules to implement this act * * *.
"(3) Rules or temporary rules adopted and promulgated by the commissioner shall insure the integrity and honest operation of bingo games * * * and shall be consistent with the legislative objective that bingo * * * shall be conducted in a friendly, social, and noncommercial manner. ” (Emphasis added.)

Section 14 provides for inspection and audit of the books of licensees as follows:

"* * * (3) the location at which the bingo * * * is being conducted or at which an applicant or licensee intends to conduct the bingo * * * shall be open to inspection at all times by a duly authorized employee of the bureau or by the state police or a peace officer of a political subdivision of the state.”

Section 19 provides:

"Any other law providing a penalty or disability upon a person who conducts or participates in bingo games * * *, who sells or possesses equipment used in conducting bingo * * *, who permits bingo * * * to be conducted on his premises, or who does other acts in connection with bingo * * * shall not apply to such conduct when done pursuant to this act or rules promulgated under this act.” (Emphasis added.)

We refer in detail to these provisions of the bingo act in order that they may be understood in their proper historical perspective. Until 1972, the Michigan Constitution prohibited the Legislature from authorizing a lottery. On May 16, 1972, at a special election, the electorate ratified an amendment to the constitution providing:

"Sec. 41. The legislature may authorize lotteries and permit the sale of lottery tickets in the manner provided by law.” Const 1963, art 4, § 41._

Then, the Legislature passed the bingo act, some provisions of which we have set forth above. Prior to passage of the bingo act in 1972, controversy surrounded the legality, or illegality, of charitable bingo. Enforcement rested upon the whim of officials in a particular community. E.g., see the 1949 case of Society of Good Neighbors v Mayor of Detroit. The 1972 bingo act undertook to dispel the confusion and to legalize charitable bingo, but only under the extensive strictures of the statute.

Thus, the Bureau promulgated rules to implement the statute, not only with respect to statutory licensees (qualified organizations) but also with respect to the hall landlords of the licensees.

The rule in question here provides:

"432.117(7). A single premise shall not be used for more than 5 regular bingo occasions each week. A single premise includes all components or buildings comprising 1 architectural entity or serving a unified functional purpose.”

In this case, plaintiff, Amos Daniels, Jr., leased 10,000 square feet of space in the Daniels Plaza in Muskegon for use as a bingo hall at which five charitable or nonprofit "qualified organizations” under the bingo act conduct bingo games. In January, 1976, plaintiff requested permission of the Bingo Division of the Bureau of State Lottery to rent a proposed second bingo hall in Daniels Plaza to other licensed qualified organizations for the purpose of conducting bingo games. In October, 1976, the Bingo Division denied plaintiffs request for the reason that to grant it would violate the rule that prohibits more than five regular bingo dates each week on a single premises.

On appeal, defendant argues that the trial court erred in finding that the Bureau exceeded its authority in promulgating the above quoted rule.

Chesapeake & OR Co v Public Service Comm stated the applicable test:

"Where an agency is empowered to make rules, courts employ a three-fold test to determine the validity of the rules it promulgates: (1) whether the rule is within the matter covered by the enabling statute; (2) if so, whether it complies with the underlying legislative intent; and (3) if it meets the first two requirements, when [sic] it is neither arbitrary nor capricious. Because the conflict here is over the construction of the enabling statute itself, the question of legislative intent must be intertwined with the question of whether the enabling statute covers the rule.”

Section 12 of the act provides:

"(2) The commissioner by rule shall regulate the holding, operation, or conducting of bingo * * *.
"(3) The commissioner shall promulgate rules requiring the licensing of all persons selling, leasing, or distributing equipment used in conducting bingo * * *. Qualified organizations licensed to conduct bingo * * * shall obtain equipment only from licensed suppliers.” (Emphasis added.)

Qualified organizations may conduct bingo games, either at their own organization, e.g., an approved American Legion Post may conduct bingo at a building owned by the post, or at a location leased by the post. In either event, the location is subject to approval by the commissioner.

The application for license and the license issued must contain the address of the location where the bingo will be played. A licensee (qualified organization) may hold only one license, which license is valid for only one location. The rent must be in a reasonable amount, and the location shall be open to inspection by the specified governmental officials. These provisions indicate the intention of the Legislature to exercise extensive, far-reaching control over charitable bingo, including locations where bingo will be played.

While these provisions appear to refer to licensees, we would believe in specifying control over locations where bingo will be played, the Legislature intended to permit the commissioner to exercise control over landlords who lease their halls to qualified organizations for charitable bingo.

We interpret the statute to contemplate control by the commissioner over the number of sets of bingo games by individual licensees that may be conducted at a particular location. The statutory requirement that bingo be conducted in a friendly, social, and noncommercial manner is best understood within the context of these limitations.

We also note that the rule under attack was adopted in accordance with the procedure established under the Administrative Procedures Act of 1969. Under § 24, notice of intention to adopt the rule was apparently given the Legislature’s joint committee on administrative rules. The fact that the legislative joint committee made no objection to the Bureau and did not claim that the proposed rule was contrary to legislative intention is one more straw in the wind supporting the interpretation we here place on the bingo act.

We hold that the Legislature, in limiting a qualified organization to one license at one location for bingo, in requiring the address of the location and the day of the week to be specified on the posted license, in requiring rent to be reasonable and in permitting specified government officials to inspect the premises where the bingo will be conducted, when taken together with the statutory authority vested in the commissioner to promulgate rules to implement the statute consistent with the legislative objectives, intended to authorize the commissioner to limit the number of bingo games per week that may be conducted at a particular leased location. Thus, we do not believe the commissioner exceeded his authority in adopting Rule 432.117(7).

It is argued that Rule 432.117(7) is a kind of zoning rule designed to restrict concentration of games in a particular locality but that the statute does not support such a rule. We disagree. Restricting concentration in one location of times when qualified organizations may conduct bingo seems consistent with limiting a licensee to one location and one set of bingo games per week. Also, it seems consistent with the legislative intention to permit only charitable bingo in a friendly, social, and noncommercial manner.

Applying the tests of Chesapeake & OR Co, supra, we hold: (1) the rule is within the matter covered by the statute, (2) the rule complies with the essential intent of the statute, and (3) the rule is neither arbitrary nor capricious.

Consequently, we dissolve the injunction issued by the trial court to restrain enforcement of Rule 432.117(7).

On appeal, defendant-appellant has also requested that we hold that it was not required to grant plaintiff a hearing concerning its request for permission to rent the allegedly new bingo hall. On the record before us, we decline to find error in the interlocutory order of the trial court directing the Bureau to conduct a hearing.

The other issue raised by defendant-appellant regarding acquisition of bingo equipment by plaintiff is without merit and is not properly before us.

Reversed.

       MCL 432.101-432.120; MSA 18.969(101)-18.969(120).

        Id.

       MCL 432.103; MSA 18.969(103).

       MCL 432.104; MSA 18.969(104).

       MCL 432.105(3); MSA 18.969(105X3).

       MCL 432.106(1); MSA 18.969(106X1).

       MCL 432.107; MSA 18.969(107).

       MCL 432.109; MSA 18.969(109).

       MCL 432.110; MSA 18.969(110).

       MCL 432.113; MSA 18.969(113).

       MCL 432.114(3); MSA 18.969(114X3).

       MCL 432.119; MSA 18.969(119).

       324 Mich 22; 36 NW2d 308 (1949).

       1976 AACS R 432.117(7).

        Id.

       Id.

       59 Mich App 88, 98-99; 228 NW2d 843 (1975). See also, Thomas Brothers, Inc v Secretary of State, 90 Mich App 179; 282 NW2d 273 (1979).

       MCL 432.112(2), (3); MSA 18.969(112X2), (3).

       MCL 24.201-24.264; MSA 3.560(101)-3.560(164).

       MCL 24.224; MSA 3.560(124).


author: Cynar, J. Danhof, C.J.

text:
    OAKLAND COUNTY COMMISSIONER v OAKLAND COUNTY EXECUTIVE
    Docket No. 44521.
    Submitted December 5, 1979, at Lansing.
    Decided July 18, 1980.
    Henry W. Hoot, an Oakland County Commissioner, the Oakland County Prosecuting Attorney, the Oakland Board of County Road Commissioners and the Oakland County Drain Commissioner brought an action against the Oakland County Executive and the Oakland County Treasurer for mandamus and declaratory and injunctive relief in the Oakland Circuit Court. The Prosecuting Attorney, the Treasurer and the Board of County Road Commissioners were dismissed as parties. The controversy involved the Executive’s veto of certain County Commission resolutions, one to withdraw the county from participation in SEMTA, a regional transportation authority, another to combine the functions and duties of the County Drain Commissioner with those of the Commissioner of Public Works, and a third to appropriate funds for project engineer manager positions in the Public Works Department. The plaintiffs alleged that the statute through which the Executive held office was unconstitutional (1) as purporting to create a form of government not authorized by the constitution, (2) as failing to provide for the election of a charter commission and the submission of a proposed charter to a popular vote, and (3) as divesting the Board of Commissioners of constitutionally delegated legislative and administrative powers to the County Executive. Plaintiffs also alleged that the County Executive lacked the authority to veto the resolutions. The court, Robert L. Templin, J., granted summary judgment for defendants. Plaintiffs appeal. Held:

      References for Points in Headnotes

       56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 98 et seq.

       16 Am Jur 2d, Constitutional Law § 212.
    [3, 5, 6] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 189 et seq.

       56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 28.

       56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 357 et seq.

      1. The statute providing for an optional unified form of county government is authorized by the constitution and is not infirm for the reasons alleged by plaintiffs.

      2. The County Executive had the authority to exercise the vetoes in question.
    Affirmed.
    Danhof, C.J., concurred, pointing out that the factual situation differed from The Raven, Inc v City of Southñeld, 69 Mich App 691; 245 NW2d 370 (1976), rev’d 399 Mich 853 (1977).
    1. Constitutional Law — County Government — Organized Counties.
    The constitutional provisions for the government of organized counties are not self-executing; the rights bestowed and duties imposed may not be enforced without the aid of legislative enactment (Const 1963, art 7, §§ 1, 2, 7, 8).
    2. Constitutional Law — Statutes.
    Acts of the Legislature are presumptively constitutional.
    3. Counties — Boards of Commissioners — Constitutional Law.
    The constitution compels the formation and delimits the powers and duties of a board of commissioners in all organized counties without regard to their form of organization.
    4. Counties — Unchartered Counties — Statutes — Optional Unified County Government.
    The statute providing for an optional unified form of county government for unchartered counties is authorized by the constitution and is not infirm either for failing to provide for the election of a charter commission and submission of a proposed charter to the electorate or for transferring legislative and administrative power from the board of commissioners to the county executive (MCL 45.551 et seq.; MSA 5.302[51] et seq.).

    5. Counties — County Executive — Board of Commissioners.
    The distribution of power between the county executive and the board of commissioners in an optional unified form of county government is within the province of the Legislature and not constitutionally derived.
    6. Counties — Boards of Commissioners — Constitutional Law.
    The constitutional power of the Legislature to confer legislative power upon the county boards of commissioners implies authority to suspend, revoke or circumscribe that power (Const 1963, art 7, § 8).
    7. Public Officers — Veto Power — Legislative Function.
    The purpose of a veto power, a legislative function, is to guard against the passing of bad laws through haste, inadvertence or design.
    8. Counties — Optional Unified County Government — County Executive — Veto Power.
    The veto power of a county executive under an optional unified form of county government extends to any action of the board of commissioners, including a resolution to withdraw from a regional transportation authority and to merge the functions of the public works commissioner and the drain commissioner.

      Denison, Porter & Bartush, for plaintiffs.

      Hardig, Goetz, Heath & Plunkett, for defendant Oakland County Executive.
    Before: Danhof, C.J., and Beasley and Cynar, JJ.
   Cynar, J.

This action was commenced on August 28, 1978, against Daniel T. Murphy in his capacity as Oakland County Executive by the filing of plaintiffs’ five-count complaint for mandamus and declaratory and injunctive relief in the Oakland County Circuit Court. The case was assigned to Judge Robert L. Templin. Count III of the complaint, involving plaintiff L. Brooks Patterson, Oakland County Prosecuting Attorney, and C. Hugh Dohany, Oakland County Treasurer, as defendant, was dismissed on January 9, 1979. Neither plaintiff Patterson nor defendant Dohany are parties to this appeal. Count V, involving the Board of County Road Commissioners, was dismissed upon motion therefor on February 1, 1979.

On February 20, 1979, the trial judge ruled, in an oral opinion from the bench, that 1973 PA 139 was constitutional and that vetoes exercised by appellee Murphy were within his power as county executive. By an order dated March 19, 1979, the trial court denied plaintiffs’ motion for summary judgment and granted the defendant county executive’s motion for summary judgment on Counts I, II, and IV.

On June 27, 1979, this Court granted an unopposed motion of the Board of County Commissioners to be dropped as a party appellant. This appeal is taken by appellants Henry W. Hoot, an elected County Commissioner of Oakland County, and George W. Kuhn, the elected Drain Commissioner of Oakland County.

The opinion of the trial court and this appeal concern the legal issues raised by: Count I of the complaint (constitutionality of 1973 PA 139); Count II (validity of appellee’s veto of the Oakland County Board of Commissioners’ resolution withdrawing Oakland County from the Southeastern Michigan Transportation Authority (SEMTA); and Count IV (the authority to veto actions of the Board of Commissioners with respect to the office of the Oakland County Drain Commissioner).

On appeal, no transcript of the proceedings held in the trial court has been made available as required by GCR 1963, 812.2(a); however, on June 8, 1979, the trial court issued an order to omit as part of the record the transcription and filing of the oral arguments of counsel made below.

Oakland County was incorporated in 1850 under article 10, § 1 of the Michigan Constitution of 1850. On August 6, 1974, the electors of Oakland County voted to adopt an optional unified form of county government as provided for by 1973 PA 139, MCL 45.551 et seq.; MSA 5.302(51) et seq. Oakland County has never adopted a charter and has not proceeded to operate with an elected charter commission.

The facts underlying the three vetoes which constitute the substance of this appeal are as follows. On March 4, 1976, the Board of Commissioners resolved to combine the powers, duties and functions of the drain commissioner with those of the public works commissioner. Defendant county executive vetoed the resolution on March 12, 1976, stating his reasons for the veto by letter. A motion to override the veto failed by a vote of 15 to 11 on April 13, 1976. In 1977, the Board of Commissioners passed a resolution amending the proposed 1978 county budget by approving certain salary rates and employment classification changes. By letter dated December 28, 1977, defendant county executive vetoed a line item providing for the position of project engineer manager. A February 2, 1978, vote of the Board of Commissioners on a motion to override the veto failed by a vote of 10 to 12. On April 6, 1978, the Board of Commissioners, by vote of 18 to 8, elected to withdraw from SEMTA:

"NOW, THEREFORE, BE IT RESOLVED, that the Oakland County Board of Commissioners withdraw the County of Oakland from SEMTA, and establish a separate transportation authority as provided under Public Act 266 and direct State Treasurer Allison Green to forward those monies collected from Oakland County to Oakland County.”

This resolution was vetoed by defendant county executive on April 13, 1978; on April 20, 1978, the Board of Commissioners failed to override the veto by a vote of 7 to 18. The Board of Commissioners propounded another resolution to terminate Oakland County’s participation in SEMTA on September 1, 1978.

The plaintiffs’ action is for mandamus, declaratory and injunctive relief. Count I of plaintiffs’ complaint alleged that 1973 PA 139, the act through which defendant Oakland County Executive occupies his office, is void and unconstitutional: (1) as purporting to create a form of county government not authorized by article 7, §§ 2, 7, and 8 of the Michigan Constitution of 1963; (2) as failing to provide for the election of a charter commission and the submission of a proposed county charter to popular vote as constitutionally and statutorily mandated; and (3) as divesting the Board of Commissioners of constitutionally delegated legislative and administrative powers by transferring sweeping authority to the county executive. In Count II, plaintiffs contended that the County Executive lacked either the authority or the power to veto the vote of the Board of Commissioners to withdraw from SEMTA. Count IV concerns the validity of appellee’s veto of the resolution combining drain and public work functions defined by three acts under appellant Kuhn as public works commissioner, and the validity of appellee’s veto of a line item in the 1978 county budget authorizing four "Project Engineer Manager” positions for appellant Kuhn’s department.

I. Constitutionality of 1973 PA 139

Const 1963, art 7, § 1 provides that: "Each organized county shall be a body corporate with powers and immunities provided by law.”

In relevant part, art 7, § 2 states that: "The law may permit the organization of county government in form different from that set forth in this constitution * * V’

Art 7, § 7, mandates the establishment of a board of county commissioners (board of supervisors) in all organized counties, while art 7, § 8, delineates the general nature of the powers and duties which devolve upon such board, but not their scope.

The language excerpted from §§ 1, 2, 7, and 8 of art 7 of the Constitution of 1963 make it clear that those sections were not intended to operate ex proprio vigore. Detroit v Oakland Circuit Judge, 237 Mich 446, 449-450; 212 NW 207 (1927), Saginaw County v State Tax Comm, 54 Mich App 160, 165; 220 NW2d 706 (1974), aff'd 397 Mich 550; 244 NW2d 909 (1976). As these provisions are not self-executing, the rights which they bestow and the duties which they impose may not be enforced without the aid of legislative enactment. Detroit, supra, 450.

A final constitutional provision of relevance is art 7, § 34, which reads:

"The provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed in their favor. Powers granted to counties and townships by this constitution and by law shall include those fairly implied and not prohibited by this constitution.”

In order to implement art 7, § 2, the Legislature passed 1966 PA 293, MCL 45.501 et seq.; MSA 5.302(1) et seq., which details the framework for establishing charter counties. Section 14 of the act, MCL 45.514; MSA 5.302(14), provides in subsection (a) for an elected salaried county executive, and in subsection (b) for the election of a legislative body to be known as the county commissioners.

In 1973, the Legislature passed 1973 PA 139, the constitutionality of which is now called into question by plaintiffs. The act, denominated "optional unified form of county government”, declares in its preamble that its purposes are:

"* * * to provide forms of county government; to provide for county managers and county executives and to prescribe their powers and duties; to abolish certain departments, boards, commissions, and authorities; to provide for transfer of certain powers and functions; to prescribe powers of a board of county commissioners and elected officials; to provide organization of administrative functions; to transfer property; to retain ordinances and laws not inconsistent with this act; and to provide methods for abolition of a unified form of county government.”

Under MCL 45.551; MSA 5.302(51), an unchartered county, such as Oakland County, may adopt an optional unified form of county government. Under such form of government, a county is required to include either an appointed county manager or an elected county executive. MCL 45.552; MSA 5.302(52). Oakland County chose the latter course.

As noted above, Oakland County adopted this form of government pursuant to the strictures found in MCL 45.553; MSA 5.302(53), through initial adoption thereof by the board of commissioners and subsequent approval by the voters.

With this background, we now address each of plaintiffs’ attacks on the constitutionality of 1973 PA 139. First, we are unable to accept plaintiffs’ contention that Const 1963, art 7, §§ 2, 7, and 8 do not authorize the "optional unified form of county of government”, the adoption of which in Oakland County was originally recommended by the board of commissioners.

We must read the above constitutional provisions, which all relate to the same subject matter, as a whole, in context and with an eye to harmonizing them so as to give effect to all. Saginaw County, supra, 54 Mich App 160, 165, Jones v Ypsilanti, 26 Mich App 574; 182 NW2d 795 (1970). So too, we take note of the fact that acts of the Legislature are clothed with a presumption of constitutionality. American Amusement Co, Inc v Dep’t of Treasury, 91 Mich App 573, 576; 283 NW2d 803 (1979).

Examining the above constitutional provisions with these objects in mind, as well as employing the convention comments quoted hereinbefore to aid our construction of the cited sections, we are led to the unavoidable conclusion that art 7, §§ 2, 7, and 8 indeed provide for the specific unchartered form of county government envisaged by 1973 PA 139. Art 7, § 2, allows for the establishment of county government in forms other than chartered, while art 7, § 7, compels the formation of a board of commissioners in all organized counties without regard to the form of that organization. Art 7, § 8, generally circumscribes the powers and duties of such boards, again without regard to the form of county government under which such boards operate.

Reading these provisions together, while being mindful of the convention comments to art 7, § 2, we find no proviso in the Constitution which would either proscribe the establishment of an unchartered form of county government or preclude the Legislature from creating a number of sub-categories within the unchartered form. Article 7, § 34 supports the proposition that counties were to be given great latitude with respect to the form of government they utilize, which in turn cuts in favor of allowing the Legislature to place maximal options at the counties’ disposal. Finally, art 7, § 1 gives to the Legislature sweeping authority to determine the powers of counties. We therefore conclude that the optional unified form of county government is clearly authorized by the Constitution of 1963; specifically, art 7, §§ 2, 7, and 8.

Since the Constitution allows for the establishment of an optional unified form of county government, we reject summarily plaintiffs’ argument that 1973 PA 139 is unconstitutional for failing to provide for the election of a charter commission and submission of a proposed county charter to the electorate for a popular vote. Article 7, § 2 plainly leaves room for unchartered forms of county government, of which the optional unified form is one. If an unchartered form of county government is constitutional, ipso facto there is no constitutional mandate calling for charter commissions or adoption of a county charter in all counties.

Finally, we do not perceive 1973 PA 139 to be constitutionally infirm because it divests the board of commissioners of constitutionally delegated legislative and administrative powers, by transferring board authority to the county executive. As stated above, art 7, § 8, is not a self-executing provision. Thus, it requires legislative enactment to enforce any rights and duties enumerated therein. Moreover, art 7, § 8 merely recites the nature of the powers and duties entrusted to the board of commissioners, not the scope thereof, leaving the extent of the same to be determined by legislative enactment. Cf., Crain v Gibson, 73 Mich App 192, 200; 250 NW2d 792 (1977), lv den 400 Mich 828 (1977). The distribution of power as between the county executive and the board of commissioners is thus initially a matter within the province of the Legislature and not constitutionally derived.

Both 1966 PA 293 and 1973 PA 139 provide for the office of county executive, the former allowing the scope of his power to be set by the county charter, the latter delimiting the extent of his authority within the act’s provisions. Lastly, nowhere in the Constitution of 1963 is it expressly stated that the board is the sole repository of county power. As the board of commissioners possesses no inherent constitutional power to act either legislatively or administratively but receives such power through legislative enactment, 1973 PA 139 represents but a legislative determination of the powers it deems wise to repose in the board under an optional unified form of county government, just as 1966 PA 293 represents a legislative decision to delegate the function of allocating power in a charter county to the charter commission in the first instance, subject to final approval by the affected voters. So too, the authority of the Legislature to confer upon the board of commissioners local legislative powers pursuant to art 7, §8 implies the authority of the Legislature to suspend, revoke or circumscribe the power. Wayne County Prosecuting Attorney v Wayne County Board of Comm’rs, 44 Mich App 144, 151; 205 NW2d 27 (1972), lv den 389 Mich 768 (1973).

There being no constitutional interdiction against the legislative pronouncements found in 1973 PA 139, we find it to be constitutional in its entirety.

II. Exercise of the Veto Power by the County Executive

MCL 45.561; MSA 5.302(61), provides:_

"Sec. 11. (1) The county executive may veto any ordinance or resolution adopted by the board, including all or any items of an ordinance appropriating funds. The veto shall be certified by the county executive to the board of county commissioners within 10 days from date of adoption of the ordinance or resolution and the board may override the veto by a 2/3 vote of all members elected and serving.
"(2) Under the unified form of county government containing alternate B an ordinance or resolution shall become effective on approval of the county executive, on expiration of 10 days without approval or veto, or on the overriding of a veto in the manner above described.”

The veto power is a legislative function, although it is not affirmative and creative, but is strictly negative and destructive. Stadle v Battle Creek Twp, 346 Mich 64, 69; 77 NW2d 329 (1956), Wood v State Administrative Board, 255 Mich 220, 224; 238 NW 16 (1931). "The purpose of the veto power is to guard against the passing of bad laws through haste, inadvertence, or design.” 62 CJS, Municipal Corporations, § 423, p 810.

Plaintiffs argue that the resolutions to withdraw from SEMTA and to merge the offices of public works and drain commissioners were made pursuant to specific statutory authority granted it by the Legislature. Arguing that 1973 PA 139 represents general legislation, plaintiffs contend that the special legislation under which the resolutions were passed takes precedence over the veto power granted the county executive in the act as exceptions to the general statute which must be given effect to carry out legislative intent. Plaintiffs conclude that where, as here, a general intention is expressed and also a particular intention which is incompatible with the general one, the particular intention shall be considered as an exception to the general one. Plaintiffs cite Mayor of Port Huron v City Treasurer of Port Huron, 328 Mich 99, 111-112; 43 NW2d 77 (1950), as authority for their position.

While plaintiffs correctly state the general rule of law, we are unable to agree that the rule applies here. We do not find the conflict in legislation alleged by plaintiffs to be present. To the contrary, we find 1973 PA 139 to be completely harmonious with the Metropolitan Transportation Authorities Act of 1967, MCL 124.401 et seq.; MSA 5.3475 et seq., as well as with the Drain Code of 1956, MCL 280.1 et seq.; MSA 11.1001 et seq.

The ability of the board of commissioners to vote in favor of a SEMTA withdrawal, or a public works/drain commissioner merger, does not conflict with the ultimate veto power of the county executive, nor with the board of commissioners’ subsequent ability to override such vetoes. One represents legislative action; the other executive fiat. The subject matter covered by each does not directly overlap. Surely, the words "subject to veto” need not have been included by the Legislature as a part of the SEMTA withdrawal and merger enactments.

We reject out of hand plaintiffs’ claim that the SEMTA withdrawal resolution was not subject to veto because it had regional implications whereas the veto power of the executive is restricted to purely county affairs. It is well-settled that the board’s power to pass laws, regulations, ordinances or resolutions is likewise restricted to purely county affairs. MCL 46.11(m); MSA 5.331(m), Arlan’s Dep’t Stores, Inc v Attorney General, 374 Mich 70, 76-77; 130 NW2d 892 (1964). While the withdrawal from SEMTA may have had an indirect inter-county effect, the resolution itself could only bind Oakland County and would not operate beyond its boundaries. Thus, it would be a matter of "purely county affairs” and subject to veto. We do not consider the attorney general opinions alluding to the contrary, cited by plaintiffs, to be authoritative on this question. Garcia v City of Warren Civil Service Comm, 78 Mich App 603, 608; 261 NW2d 19 (1977).

Plaintiffs’ contention that the veto power was intended to be exercisable only as to matters dealing with the optional unified form of county government is without merit. MCL 45.561; MSA 5.302(61), plainly and unambiguously refers to any action of the board of commissioners as a proper subject for exercise of the veto power. No judicial construction to the contrary is possible. Dillon v Secretary of State, 61 Mich App 588, 591; 233 NW2d 96 (1975), lv den 397 Mich 812 (1976), inter alia. The same may be said with respect to the veto of the budget line item in the 1978 county budget authorizing four project engineer manager positions. MCL 45.561(1); MSA 5.302(61)(1), in our opinion, expressly allows vetoes of such budget line items subject, of course, to the veto being overridden.

Finally, we address plaintiffs’ contention that the veto of the merger resolution was invalid, as it divested the drain commissioner of vested powers in direct contravention of the commands found , in 1973 PA 139, specifically MCL 45.554; MSA 5.302(54). We find this argument lacking in substance.

The drain commissioner’s powers remained the same as they were prior to the veto. In addition, any proposed additional powers would not vest in the public works commissioner until the resolution was approved by the county executive or 10 days expired without approval or veto or until the veto was overridden. MCL 45.561(2); MSA 5.302(61X2). Until such time as the resolution became operative, no new powers would be acquired; therefore, none were subject to divestiture by veto.

Lastly, resolution No. 7468, also referred to as "The Public Works Merger Resolution”, did not propose to grant power to the drain commissioner but bestowed the powers intended to be granted upon one county department headed by public works commissioners. The exercise of veto power by the county executive in conjunction with this resolution did not diminish or divest the power vested in the office of the county drain commissioner.

III. Conclusion

Based upon all of the foregoing we conclude that the disposition in the court below was proper. We therefore affirm the decision of the circuit court.

Affirmed. No costs, a public question being involved.

Beasley, J., concurred.

Danhof, C.J.

(concurring). I concur in the opinion of my colleagues. I write separately to describe what I perceive to be the differences between the case at bar and The Raven, Inc v City of Southfueld, 69 Mich App 696; 245 NW2d 370 (1976), rev’d 399 Mich 853 (1977), upon which the plaintiffs have heavily relied.

The Raven presented the question of whether the mayor of a home rule city, being invested with a veto power pursuant to the city charter, could exercise that veto as to the city council’s approval of an application for a liquor license under the provisions of MCL 436.17; MSA 18.988, which provides merely that such application was to be "approved by the local legislative body”. The Supreme Court approved the reasoning of the dissenter in this Court, who maintained that the "plain meaning” of the statute committed the contested approval power to the local legislative body alone. 69 Mich App 696, 704.

In The Raven, the mayoral veto power was the product of the municipality’s charter; the Home Rule Cities Act, in providing for the office of mayor, does not explicitly propose that the mayor exercise a veto power. See MCL 117.3; MSA 5.2073. In the case at bar the contested veto power, although surely granted, by the local electorate as in The Raven, is also the subject of the Legislature’s explicit consideration. See MCL 45.561; MSA 5.302(61). Thus, that power cannot be as easily discounted as was the veto power at issue in The Raven.

It is not as clear in this case, as it was in The Raven, that the statute providing for the county’s withdrawal from SEMTA, MCL 124.405(1); MSA 5.3475(105X1), and the provisions authorizing merger of the offices of the Commissioner of Public Works and the Drain Commissioner, MCL 280.21(3); MSA 11.1021(3), were intended by the Legislature to be a simple grant of exclusive authority. Unlike the Liquor Control Act at issue in The Raven, these statutes require a two-thirds majority vote to perform the actions they authorize. Both actions are of an unusual nature. The extraordinary majority required for these actions reflects a policy limiting the county commission’s power to act, rather than expanding it. Such a policy says nothing of the Legislature’s intent with respect to the executive veto provided for in the statute under which the Oakland County government is organized.

It may be further observed that, under the provisions of MCL 45.561; MSA 5.302(61), the same two-thirds majority required to withdraw from SEMTA or reorganize the office of the Commissioner of Public Works may override the veto of the executive. Thus, the addition of the executive veto to these actions is a virtual nullity, and the commission’s powers in these matter are, as a practical matter, untouched by the veto. To bar the executive’s veto power in this case would disturb the "Option B” governmental scheme proposed by the Legislature with no corresponding preservation of any other legislatively-established values or governmental schemes.

       The constitutional convention of 1961 official comment to this section, which may properly be employed by courts as an aid in construing a constitutional provision open to question, Regents of the University of Michigan v State of Michigan, 395 Mich 52, 60; 235 NW2d 1 (1975), notes:
      "Convention Comment: This is a new section enabling counties, by vote of the people, to adjust their governmental structure to meet modern problems effectively.
      "The question of electing a charter commission to frame a charter may be put on the ballot by vote of the board of supervisors; or upon petition of five per cent of the electors the question must be put on the ballot. If the proposal is approved by the people, a charter commission is then elected.
      "The charter commission is limited by legislative action in the structural changes it may propose. But the legislature is authorized to permit county government 'in form different from that set forth in this constitution.’ To become effective, the charter framed by the commission must be approved by a vote of the people.
      "A county charter may authorize the county to adopt resolutions and ordinances 'relating to its concerns,’ subject to law. This means that the charter county need not have specific permission from the legislature to perform local functions and that such activities may be limited only by legislative enactment.
      "The charter county would be required to comply with property tax rates and debt limits established by general law. Such a county, however, is given new powers to levy taxes 'other than property taxes,’ subject also to limitations in this constitution or by law.
      "This home rule section makes it possible for those counties with specific problems to deal with them effectively, but does so without disturbing unnecessarily the government of other counties in the state.” (Emphasis added.)

       Const 1963, art 7, § 7, reads as follows:
      "Sec. 7. A board of supervisors shall be established in each organized county consisting of one member from each organized township and such representation from cities as provided by law.”
      Const 1963, art 7, § 8, states:
      "Sec. 8. Boards of supervisors shall have legislative, administrative and such other powers and duties as provided by law.”

       MCL 45.551 et seq.; MSA 5.302(51) et seq.

         In MCL 45.514(b); MSA 5.302(14)(b), the Legislature, with respect to charter counties, provided for delineating the scope of the board’s powers within the county charter itself. The scope of the board’s powers in optional unified counties is laid out in MCL 45.556; MSA 5.302(56). See also note 6, infra.

       See MCL 45.514(a); MSA 5.302(14)(a).

       See MCL 45.558, 45.560, 45.561; MSA 5.302(58), 5.302(60), 5.302(61). The setting out of the powers of the county executive, as well as those of the board of commissioners, within 1973 PA 139 is necessitated, as is obvious, by the fact that an unchartered county form of government possesses no document equivalent to a charter which demarcates the powers reserved to executive and board respectively.

       The resolution to withdraw from SEMTA was passed pursuant to MCL 124.405(1); MSA 5.3475(105X1). The resolution authorizing the merger of the two offices was adopted under the aegis of MCL 280.21(3); MSA 11.1021(3). These statutes are both parts of more comprehensive acts. We accept plaintiffs’ contention regarding the specific nature of this legislation as well as the specific intent of the Legislature relative thereto.

       The provision in effect at the time the veto was exercised was MCL 46.11; MSA 5.331. However, the differences between the former provision and the present one are not germane with respect to our inquiries.

       The statute reads in relevant part:
      "Sec. 4. (1) On the date the optional unified form of county government becomes effective all appointed boards, commissions, and authorities except the apportionment commission, airport zoning board of appeals, board of county canvassers, boards of determination for drainage districts, civil service commission, county drainage board, county department of veterans’ affairs administrative committee or soldiers’ relief commission, concealed weapons licensing board, election commission, jury commission, library commission, parks and recreation commission, social services board, tax allocation board, any board established to oversee retirement programs, any plat board, any mental health board, any hospital board, any intercounty drainage board, and any building authority established by the county individually or in conjunction with another unit of government and the boards of county road commissioners; and all elective county offices' except those of county commissioner, prosecuting attorney, clerk, register of deeds, treasurer, sheriff, elected county auditors, and drain commissioner are abolished and the tenure of persons holding the office or appointment are terminated. Termination shall take effect whether or not it coincides with the end of a term of office or appointment. All county departments in conflict with the departmental organization established by this act are abolished. As used in this act, the term department or county department shall not be construed to include boards of county road commissioners.
      "(2) Powers vested in an abolished office, board, commission, authority, or department, on the date the optional unified form of county government becomes effective, become general county government powers, and functions performed by the office, board, commission, authority, or department shall be carried on as provided in this act.
      "(3) A board or commission which is excepted from this act pursuant to subsection (1) shall exercise the powers and duties as provided by law.
      "(4) The power vested in the office of county prosecuting attorney, county sheriff, county register of deeds, county clerk, county treasurer, county drain commissioner, or the board of county road commissioners and elected county auditor shall not be minimized or divested by this act.”

       The resolution declared:
      "Moved by Hoot that the County of Oakland resolve to combine the powers, duties and functions set forth in Act No. 185 of the Public Acts of 1957, as amended, Act No. 342 of the Public Acts of 1939, as amended, and this act into one (1) county department headed by the public works commissioners pursuant to the provisions of Act 40 of the Public Acts of 1956, as amended by Act 170 of 1974, as amended.”


author: J. H. Gillis, P.J.

text:
    WATERFORD SCHOOL DISTRICT v STATE BOARD OF EDUCATION
    Docket No. 51344.
    Submitted July 9, 1980, at Detroit.
    Decided July 18, 1980.
    Leave to appeal denied, 409 Mich 934.
    The State Board of Education and the State Treasurer reduced the amount of state aid for education to the Waterford School District for the fiscal year 1979-1980, pursuant to a 1979 statutory school aid formula. The Waterford School District and its individual school board members, each in their capacity as school board members and as taxpayers, brought an action for a declaratory judgment, an injunction and mandamus against the State Board of Education and the State Treasurer, alleging that the defendants were prohibited by the so-called Headlee Amendment to the Michigan Constitution from reducing the ratio of state aid to schools from that proportion in existence in the fiscal year 1978-79. The Oakland Circuit Court, Steven N. Andrews, J., granted accelerated judgment in favor of the defendants, holding that the Court of Appeals had exclusive jurisdiction of both a taxpayer’s suit and an action for mandamus against a state officer. Plaintiffs appeal. Held:

    1. A taxpayer has standing to bring an action based upon the Headlee Amendment. Jurisdiction over such a matter is concurrent in both the Court of Appeals and the circuit court.'
    2. Circuit courts also have jurisdiction to entertain a mandamus action against state officers, despite the court rule to the contrary.
    3. The school district and the individual board members have standing to bring an action for recovery of state funds which allegedly were wrongfully denied.
    Reversed and remanded.
    References for Points in Headnotes

       16 Am Jur 2d (Rev), Constitutional Law § 85.

       59 Am Jur 2d, Parties § 26.

       74 Am Jur 2d, Taxpayers’ Actions § 7.

       20 Am Jur 2d, Courts §§ 28, 106, 128.

       52 Am Jur 2d, Mandamus § 26.

       68 Am Jur 2d, Schools § 16.

      1. Constitutional Law — Construction — Considerations in Interpretation.
    The primary rule for the construction of constitutional provisions is that of "common understanding”, giving an interpretation which would be arrived at by reasonable minds; the circumstances surrounding the adoption of a constitutional provision and the purpose sought to be accomplished may be considered, and it is to be presumed that the drafters of a provision were aware of existing laws and court decisions and drafted the provision accordingly.
    2. Words and Phrases — Standing.
    "Standing” denotes the existence of a party’s interest in the outcome of litigation; an interest that will assure sincere and vigorous advocacy.
    3. Taxation — Expenditure of State Funds — Taxpayer’s Suit — Constitutional Law — Statutes.
    A taxpayer may bring an action to prevent the illegal expenditure of state funds or to test the constitutionality of a related statute (Const 1963, art 9, §32, MCL 600.2041[3]; MSA 27A.2041[3]).
    4. Courts — Jurisdiction — Taxation — Constitutional Law — Statutes.
    Circuit courts have concurrent jurisdiction with the Court of Appeals over actions brought to enforce the provisions of the so-called "Headlee” tax limitation amendment of the constitution (Const 1963, art 9, § 32, MCL 600.605; MSA 27A.605).
    5. Courts — Circuit Courts — Jurisdiction — Constitutional Law — Statutes.
    Circuit courts are presumed to have jurisdiction over a matter absent a specific exclusion provided by law (Const 1963, art 6, § 13, MCL 600.601; MSA 27A.601).
    6. Mandamus — State Officers — Courts — Jurisdiction — Statutes — Court Rules.
    The jurisdictional provisions of the Revised Judicature Act control over the conflicting provisions of a court rule regarding actions for mandamus against state officers; the circuit courts and the Court of Appeals have concurrent jurisdiction over such action (MCL 600.4401[1]; MSA 27A.4401[1], GCR 1963, 714.1[1]).

      7. Schools — School Boards — Standing — Constitutional Law — State Funds.
    A local school district and its individual school board members have standing to attack a statute as being violative of the state constitution where the issue is whether the school district is being deprived of state funds in violation of the constitution.

      Bruce T. Leitman and William G. Wolfram, for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gerald F. Young, James E. Riley, and Andrew D. Quinn, Assistants Attorney General, for defendants.
    Before: J. H. Gillis, P.J., and N. J. Kaufman and R. M. Maher, JJ.
   J. H. Gillis, P.J.

Plaintiffs appeal from a decision of the Oakland County Circuit Court granting accelerated judgment to defendants.

This litigation is the result of a reduction in state funding to the Waterford School District. Defendants, pursuant to the school aid formula found in 1979 PA 94, §21(1); MCL 388.1621(1); MSA 15.1919(921)(1), reduced the state aid for education to the school district from the $663.60 per pupil provided in fiscal 1978-79 to $613.01 per pupil for fiscal 1979-80. Plaintiffs allege that this violated both the Headlee Amendment to the Michigan Constitution, Const 1963, art 9, §§ 25-34, and MCL 21.242; MSA 5.3194(612). The named plaintiffs are the Waterford School District and seven individuals, each in their capacity as members of the Waterford School Board and as individual taxpayers.

In granting the accelerated judgment, the lower court ruled that the Court of Appeals had exclusive jurisdiction to hear cases involving alleged violations of the Headlee Amendment as well as exclusive jurisdiction to issue mandamus against a state officer.

The lower court’s belief that it lacked jurisdiction to hear cases arising under the Headlee Amendment was based on its interpretation of Const 1963, art 9, § 32. Section 32 reads:

"Any taxpayer of the state shall have standing to bring suit in the Michigan State Court of Appeals to enforce the provisions of Sections 25 through 31, inclusive, of this Article and, if the suit is sustained, shall receive from the applicable unit of government his costs incurred in maintaining such suit.”_

The primary rule for the construction of constitutional provisions is that of "common understanding”. The interpretation that should be given is that which reasonable minds, the great mass of people, would arrive at. A second rule is that to clarify meaning, the circumstances surrounding the adoption of a constitutional provision and the purpose sought to be accomplished may be considered. Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). Moreover, the framers of a provision must be presumed to have been aware of existing laws and court decisions and to have drafted accordingly. Saginaw City Council v Saginaw Policemen & Firemen Retirement System Trustees, 321 Mich 641, 647; 32 NW2d 899 (1948).

The plain language of § 32 indicates an intent to provide standing to taxpayers to enforce the substantive provisions of the amendment. Standing is the legal term used to denote the existence of a party’s interest in the outcome of a litigation; an interest that will assure sincere and vigorous advocacy. Michigan License Beverage Ass’n v Behnan Hall, Inc, 82 Mich App 319, 324; 266 NW2d 808 (1978). Traditionally, a private citizen has no standing to vindicate a public wrong or enforce a public right where he is not hurt in any manner differently than the citizenry at large. See, e.g, Inglis v Public School Employees Retirement Board, 374 Mich 10; 131 NW2d 54 (1964). Therefore, a taxpayer has no standing to challenge the expenditure of public funds where the threatened injury to him is no different than that to taxpayers generally. Massachusetts v Mellon, 262 US 447; 43 S Ct 597; 67 L Ed 1078 (1923), Hertel v Racing Comm’r, 68 Mich App 191; 242 NW2d 526 (1976).

In Michigan, the common-law bar on taxpayer suits has been relaxed by statute. The Revised Judicature Act permits litigation to prevent the illegal expenditure of state funds or to test the constitutionality of a related statute "in the names of at least 5 residents of this state who own property assessed for direct taxation by the county wherein they reside”. MCL 600.2041(3); MSA 27A.2041(3). The taxpayers must demonstrate that they will sustain substantial injury or suffer loss or damage as taxpayers, through increased taxation and the consequences thereof. Menendez v Detroit, 337 Mich 476, 482; 60 NW2d 319 (1953), Jones v Racing Comm’r, 56 Mich App 65, 68; 223 NW2d 367 (1974). A taxpayer lacks standing unless these requirements are met.

It is apparent that § 32 was intended to further ease the limitations on taxpayer suits. The Head-lee Amendment grew out of the spirit of "tax revolt” and was designed to place specific limitations on state and local revenues. The ultimate purpose was to place public spending under direct popular control. Drafters’ Notes — Tax Limitation Amendment, pp 2-4 (Taxpayers United Research Institute, February 15, 1979). One aspect of popular control involves litigation to force compliance with the constitutional provisions. Section 32 facilitates control by permitting a single taxpayer to bring suit in this Court. In the present case, standing is provided both by § 32 and MCL 600.2041; MSA 27A.2041.

The amendment has only minimal impact on subject-matter jurisdiction. While a single taxpayer is provided standing to bring suit in the Court of Appeals to enforce the provisions of Const 1963, art 9, §§ 25-31, there is no indication that this Court is to have exclusive jurisdiction over all litigation that involves the amendment. Absent a specific grant of exclusivity, we must conclude that where standing is otherwise present, the circuit courts have concurrent jurisdiction over suits based on the Headlee Amendment.

The circuit courts are courts of general jurisdiction, provided with original jurisdiction over all matters not prohibited by law. Const 1963, art 6, § 13. The Revised Judicature Act provides, at MCL 600.605; MSA 27A.605:

"Circuit courts have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state.”

See Lester v Sheriff of Oakland County, 84 Mich App 689, 694-695; 270 NW2d 493 (1978). Since there is no grant of exclusivity, the general provisions of the Constitution and Revised Judicature Act must govern, and subject-matter jurisdiction be found to lie in the circuit courts.

We also conclude that the circuit courts have concurrent jurisdiction to entertain mandamus actions against state officers. Prior to January 1, 1977, the effective date of 1976 PA 317, § 4401 of the Revised Judicature Act limited mandamus jurisdiction over state officers to the Court of Appeals. However, this section has since been amended to provide:

"An action for mandamus against a state officer shall be commenced in the court of appeals, or in the circuit court in the county in which venue is proper or in Ingham county, at the option of the party commencing the action.” MCL 600.4401(1); MSA 27A.440KD.

The amendment not only removed the prior grant of exclusivity, but affirmatively provided the circuit courts with jurisdiction over these actions. Saginaw Valley Trotting Ass’n, Inc v Michigan Racing Comm’r, 84 Mich App 564, 568; 269 NW2d 676 (1978), Schweitzer v Board of Forensic Polygraph Examiners, 77 Mich App 749, 753, fn 5; 259 NW2d 362 (1977). Nonetheless, the trial court reasoned that mandamus jurisdiction is still limited by GCR 1963, 714.1(1). Despite the revision of MCL 600.4401(1); MSA 27A.4401(1), the Supreme Court has not altered the corresponding court rule. The trial judge interpreted this as an indication that the Supreme Court intends to control mandamus jurisdiction and to prevent circuit courts from entertaining such actions with regard to state officers. See 4 Honigman & Hawkins, Michigan Court Rules Annotated (1979 Pocket Part), p 21.

This interpretation ignores the broad jurisdictional grant of Const 1963, art 6, § 13:

"The circuit court shall have original jurisdiction in all matters not prohibited by law.”

There is a presumption of jurisdiction absent specific exclusions provided by law. See MCL 600.601; MSA 27A.601, Practice Commentary, 32 MCLA 250, Lester v Sheriff of Oakland County, supra. Such prohibitions provided by law are the product of the Legislature. To the extent GCR 1963, 714.1(1) is in direct conflict with the jurisdictional provisions of the Revised Judicature Act, MCL 600.101 et seq.; MSA 27A.101 et seq., we conclude that the latter are controlling. The particular section was amended subsequent to the promulgation of the court rules, so we presume that the Legislature was fully aware of the language of GCR 1963, 714.1(1) and consciously sought to alter its impact. Therefore, the mandate of MCL 600.4401; MSA 27A.4401, must take precedence over GCR 1963, 714.1(1). The lower court erred in ruling that mandamus jurisdiction was lacking.

Defendants now argue that even if subject matter jurisdiction existed, accelerated judgment was proper as to the school district and the individual plaintiffs as school board members. Defendants contend that these plaintiffs, as agents of the state, lack standing to attack a state statute as being violative of the state constitution. We disagree. Defendants rely on Lansing School Dist v State Board of Education, 367 Mich 591; 116 NW2d 866 (1962). There, the plaintiff school district alleged that it was denied equal protection when it was forced to absorb a neighboring school district without voter approval. The Supreme Court’s holding that the plaintiff, as an agency of the state, was in no position to attack its parent is consistent with those cases precluding Federal constitutional interference with a state’s internal political organization. See, eg., Trustees of Dartmouth College v Woodward, 17 US (4 Wheat) 518; 4 L Ed 629 (1819), Hunter v Pittsburgh, 207 US 161; 28 S Ct 40; 52 L Ed 151 (1907), City of Trenton v New Jersey, 262 US 182; 43 S Ct 534; 67 L Ed 937 (1923). However, the present litigation concerns itself with the enforcement of the fiscal mandates of the state constitution, a decidedly different issue. Additionally, the plaintiff in Lansing School Dist, supra, was not a real party in interest. The Court specifically noted that the issue of voter approval of school district consolidation was a question between the voters themselves and the state government. 367 Mich 591, 600. Hence, the school district had no real stake in the determination of that issue.

As noted above, standing refers to the existence of a party’s interest in the outcome of a litigation, a prerequisite imposed to assure vigorous advocacy. Michigan License Beverage Ass’n v Behnan Hall, Inc, supra. We perceive sufficient party interest in this case to assure such advocacy.

This suit was instigated because of the belief that the Waterford School District is being directly deprived of state funds in violation of the Headlee Amendment. To the extent that those funds are necessary to the district to fulfill its responsibilities, the district has an interest in the outcome of this litigation. Likewise, the school board members are under a statutory duty to "[d]o anything * * * which is necessary for the proper establishment, maintenance, management, and carrying on of the public schools of the district”. MCL 380.246(f); MSA 15.4246(f). This includes a responsibility to seek payment of the additional state funds that the district has allegedly been denied. The interests and responsibilities of the plaintiff school district and the board members place them in direct conflict with the State Board of Education and State Treasurer. This conflict assures that the respective positions of the parties will be presented in a truly adversary context.

Reversed and remanded.

       The Headlee Amendment was proposed by an initiative petition and ratified on November 7, 1978, with an effective date of December 22, 1978. It reads in part:
      "Property taxes and other local taxes and state taxation and spending may not be increased above the limitations specified herein without direct voter approval. The state is prohibited from requiring any new or expanded activities by local governments without full state financing, from reducing the proportion of state spending in the form of aid to local governments, or from shifting the tax burden to local government. A provision for emergency conditions is established and the repayment of voter approved bonded indebtedness is guaranteed. Implementation of this section is specified in Sections 26 through 34, inclusive, of this Article.
      "The state is hereby prohibited from reducing the state financed proportion or the necessary costs of any existing activity or service required of units of Local Government by state law. A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs. The provision of this section shall not apply to costs incurred pursuant to Article VI, Section 18.” Const 1963, art 9, §§ 25, 29.

       1979 PA 101, § 12; MCL 21.242; MSA 5.3194(612), effective date August 3,1979, reads:
      "A state law shall not be enacted, which causes a reduction in the state financed proportion of the necessary costs of an existing activity or service required of local units of government by existing law, unless the existing law requiring an activity or service is repealed.”

       Subsequent to the institution of this suit, the Legislature provided an affirmative basis for jurisdiction within the circuit courts. 1980 PA 110; MCL 600.308a; MSA 27A.308(1).

         "All actions for mandamus against a state officer shall be brought in the Court of Appeals.”