*1 1971] 443 oe State CARMAN v. SECRETARY OF STATE Amendment—Initiatory 1. Constitutional Law — Petition —Stat- utes. Miehigan requires initiatory Constitution that an amend- provided ment shall published by be in full as with law exist- ing provisions of the altered or be abrogated thereby initiatory petition and that the shall inbe signed by form and prescribed shall be and circulated as law requirements and the same regarding are made statute petition 1963, an amendment to (Const the Constitution 12, 2; 168.482). art MCLA § § Amendment—Initiatory 2. Constitutional Law — Petitions —Suf- ficiency —Statutes. Initiatory petitions proposing an existing provi- amendment an Miehigan sion Constitution, although expressly initiating the proposal as ato section of the Constitu- tion but which required did not under heading a statute set existing forth the section of the Constitution and which would, given effect, both alter amend that section of the Constitution were therefore insufficient— technically very at the specific compliance least—for want of with (MCLA 168.482). statute §
References for Points in Headnotes 2d, Am Jur 16 34, Constitutional Law I] 35. §§ 2, 7, 2d, seq. 16 Jur Am Constitutional 8] Law et26§ 2d, Am 16 Jur Constitutional Law 3] 76. 2d, 2d, 4' 16 Am Jur Law 75. Constitutional § §§ § 5' Am Jur 26-44, Constitutional Law 58. 2d, Am Jur Constitutional Law 35. 9,12] 10] II] 2d, 26, 16 Am Jur Constitutional Law §§ 36. 2d, 16 Am Jur Constitutional 27. §§ Law 2d, Appeal 5 Am Jur Error 3. Constitutional Law —Construction. Michigan Constitution must be 2 Article Section applied viewed not in order construed so *2 devastating result, though sentence of the as the first absurdly concluding part in “and shall paragraph read last thereof abrogate provisions of the Constitu- existing or amend [such] days date of the election at the after the tion at end of 1963, 2). (Const 12, approved” art which was § Understanding. 4. Constitutional Law —Construction—Common provision is to a constitutional duty in construction the mean- understanding, that to ascertain the common ascertain convey naturally to question in provision ing the interpretation which rea- mind, apply that and to popular the themselves, would great people minds, mass the sonable the give it. op Construction—Approval Amendment. Law — 5. Constitutional Michigan con- the 1963 2 of Article Section con- actually and submitted initiated that an strued to mean by majority of elec- approved a amendment, if stitutional part of the Con- voting question, shall become on the tors having approved stitution; hence, been initiated amendment an 2, majority is that Article by of voters the result such § 19, of December 8, of has been amended as the Constitution 2; by (Const art approved the voters § 1970 as 8, 2). art § op Amendment—Secretary State. Law — 6. Constitutional initiatory requirement that an purpose of the The constitutional existing provisions of the published be amendment shall thereby abrogated is to Constitution which would be altered that, provide particularly as as law can before assure near fully an day, informed of the effect election all voters are on existing proposal upon an constitutional will have initiated approval and provision proposal should that receive electoral purpose Secretary of State satisfied that existing published when he saw to it that his notice listed § (Const of Article 8 as liable to alteration or amendment 8, 2; 12, 2). art art § op Construction—Amendment—Approval 7. Constitutional Law — Amendment. by people Provisions of a have consented constitution which the place power adopting upon to restrictions their own construed, amendments the Constitution should not so Secretary oe State approval by by people, a too strict after adherence to requirements will some so of the unimportant they defeated would be accident over which inquire purpose had no control courts should into the fair meaning regard of such restrictions should sub- requirements. than letter of stance rather such Amendment—Initiatory Ap- 8. Constitutional Law — Petitions — proval op Secretary op Amendment — State —Statutes. After an affirmative vote the electors on a constitutional paragraph amendment to add a new to section 2 of Article Michigan certified, of the 1963 Constitution was the statu- tory requirement initiatory petitions should in- state and provisions sert of the Constitution to be altered or abrogated directory only, requirement became and that was fulfilled constitutional satisfaction manner which performed duty of State his publication due proposal provisions and the abrogated be altered or (MCLA 168.482). *3 Dissenting Opinion T. J., M. C. Kavanagh, and T. G-. J. Kavanagh, 9. Constitutional Law —Elections—Election Cubes Error. people right change
The have the to constitution, their but proper, legal way must do in a and the rationale a new of errors”, doctrine called “election cures satisfy fails logic law, either rejected. should be
Dissenting Opinion
Adams, J. Abrogate Proposal 10. Constitutional Law —Alter — C. “Proposal G” 8, Michigan addition to art Con- of stitution abrogate and it does not alter or original of provision (Const 1963, section 8, §2). art of Appeal op Appeal. 11. and Error —Denial Leave to Michigan Supreme Court, having application once denied for appeal, leave to litigated should not reopen a case which was by appropriate parties judgment brought to a as this final an end to the issues (GCR raised in the case 852.2[4] — — — Election Petitions Amendment Law Constitutional 12. Error. Cures “Proposal 0” error in submission .been Sad there of petitions, the “election-cures- people, a absent defect fatal applicable vote and a be doctrine would error” of adoption question the amend- decisive on of of ment. Appeals, Hol- Appeal Division 2, of Court Fitzgerald T. M. Burns, JJ., J.,P. brook, granting against of writ mandamus and Board State Elections, Director State, (No. January 5, 1971. Submitted Canvassers. 53,025.) January Decided Docket No. Term March judgment App 403 vacated.
26 Mich Appeals Original Kenneth action Court Terry Herndon, Evans, Jr., Carman, David S. W. Mary Phillips, Horace Riordan, Ellen M. Harriett against Jay the Secre- Wabeke, others Sheffield, tary and Board Elections, Director of State, process for a of mandamus Canvassers, writ State general placement election on the November proposed State Consti- ballot Judg- appeal. granted. Defendants tution. Writ judgment Appeals new vacated and Court ment of entered. *4 (by Ellman, B. Dill Erwin Levin, &
Levin, Oarvett Sagendorph), Hoekengan, K. Wallace and Daniel J. plaintiffs. for Kelley, Attorney A. Robert General, J.
Frank Derengoski, 8earl, Russell A.. General, Solicitor Attorney defendants. for General, Assistant oe State July plaintiffs sought 15,1970 man- Per Curiam. Appeals in the damus Court to force submission allegedly electors initiated “Amendment to the Constitution” which, came later, to be known publicly “Proposal as ultimately C.” The writ was granted. opinion For see details, of Division 2, (26 September App 403). Upon released Mich opinion strength denying of that and our order leave days (384. 751), entered later the amend- proposed question ment now in submit- —and —was approved by ted to the electors November 3 and a majority. strong ensuing opinion presay
The cautionary should a initiatory § It note. is that 2 of Article 12 of the generally, yet Constitution of 1963 follows differs important respects corresponding in from the sec- tions Constitution of 1908 as those sections past when stood certain of our decisions were con- Compare §§ sidered and released. said and 3 Article 17 of the former Constitution; look- ing original aspects in latter both their as amended 1941. shall "We consider this ear- upon present City mark case reference to the Jackson (1947), 316 Mich acceptable visibly question The critical we upon posed Attorney are to decide called is General: petition proposing Is a “II. an amendment to an
existing section of the Constitution sufficient when presently [sic] not in- section effect heading Existing serted under the ‘Provisions Abrogated by Altered Pro- Such posal Adopted’ ?” responded Division in the The affirmative. At- torney negative General contends answer. We agree question, with him. final is what then, proposed having now do; been *5 443 448 op Opinion Court the question adopted. apparently That approved and in the determination discussion and come to will designated below. “Second,” division 12 2 Article of the Constitution First: Section pub- initiatory requires shall be that law”) “existing (“in provided by as full of lished provisions al- which would be the Constitution thereby.” abrogated The also same section or tered petition requires initiatory “in be shall pre- signed as and circulated” shall be form, and by law. scribed legislation appears constitutionally beckoned Michigan § election law as
in 482 of the [Stat (MCLA § Ann 168.482 in 1965 minor-amended provides, Supp 6.1482]). § Section 1970 Cum pertinently: * * *
“ proposal abro- would alter or If the gate any existing provision petition constitution, provisions to be and the so state should preceded by abrogated inserted, or shall be altered words: “ existing or altered ‘Provisions of constitution ” adopted.’ abrogated proposal if such political action is
The now unmalleable fact petition any initiatory this did set forth not provision provisions existing abrogated pro- such which would “altered posal Although expressly initiating adopted.”1 proposal § 2 of an amendment of Article thé required heading petition set did not under the “existing” § of omission is 2 Article Such forth now stitution. was ing “Second,” post at 449. On the face of in the set forth in its “full become the second first Por paragraph the full each initiative paragraph' text,” text of amended .section according of Article 12. Such full sheet of Article “Proposed Amendment” requirement see of the' text will division appear Con oe State op Opinion the Court Attorney question General’s stated crus of above. II, *6 time for
Had there been judicial decisive action 8 that critical of during days September which en- of for upon sued receipt briefs against Attorney emergent General’s for leave application 2 review Division 2’s decision, September stated omission doubtless would have arrested the initiation and enjoined submission of the mentioned no There such proposal. time, however, was hence our effort to review and present decide that which, will in result better of hopefully, timing appeals to process questions determination judicial of statewide that importance justiciable are in determinable time for election In day. a word, word we direct issues particularly arising initiated legislatively proposed constitutional amendments, petition this for mandamus might bet- ter have been July-filed Court, this GCR 714.1(1) See notwithstanding. the independently supreme provided 4 authority of the judicial § article.
There is no unstilted to avoid conclusion way that the amendment initiated these plaintiffs will, given constitutional effect, both alter and amend 2 of Article 8 of § 1963.2 The petitions initiatory were therefore insufficient— technically least —for want specific compliance with the constitutional complement, §
Second: The electors have firmly approved this 2 initiated amendment of § Article 8. That they tutional the Court cures-error doctrine. pursued in Graham Miller respect paragraph 2 In the Pontiac constitutional words also mean “amended or expression which initiated [3] of Article 12. members of the Court voted to “altered or School employment Note that “amend” District (1957), abrogated,” of alternative words for the consti case 348 Mich (1933), appears replaced.” is, [262] apply now the Justices Mich the election- a ease with 338, 344, This was the final said op Opinion the Court perform- specific omitted face of in the done
have legislative constitutionally man- authorized of a ance petitions, their forth in shall set initiators date petition-signers, benefit for the informative very provisions provision such ini- constitutional is the result? or amend. What alter desire to tiators appears first sentence in the answer think We (quoted paragraph Article of 2 of final of the according below), viewing should as we construction rules of established salutary action corrective of State’s preceded 3 election. November compare was, in the initiative what first Let us what now Constitution, portion former 1908 Constitution of Article is. Section *7 read: by the
“Any initiated amendment constitutional provided, people and be- shall take effect herein as if part the same shall constitution a of the come voting majority there- by approved electors a added.) (Emphasis not otherwise.” on § read: of that same 1941 amendment The by the “Any initiated amendment provided, and be- shall take effect herein part if shall be of constitution the same come a qualified by approved re- the number of electors approval quired amend- 1 hereof for the of in section legislature, proposed by and not other- ments added.) (Emphasis wise.” proceeds: § 2 Article 12 Present of by proposed approved a amendment “If voting question, majority on it the electors of part constitution, and shall abro- shall become gate of existing provisions or amend the constitution of oe State the date of the election after days at the end added.) which it was approved.”3 (Emphasis these Reading provisions successive with dne one after the it care, is clear from other, the words understood 1961-1962 employed that some initiatory less rigid procedure written, was “the common understanding.” Formerly had to be initiated “as herein provided.” Formerly, it a initiated, thus would become of the con- part it be approved stitution should designated majority, but “not otherwise.” In 1963, however, requisite “as express initiation herein pro- vided” was eliminated. So the “not was otherwise” stricture.
The due applicable rule of construction is not one we any which determine many by legis- lative It is a intent. instead to ascertain “the duty common a understanding”; ascertain “that duty meaning provision [the would question] mind”; naturally convey popular duty interpretation “which reasonable apply minds, mass great people themselves, give it.”
*8 In one of the opinions Lockwood v. Commis- sioner Revenue (1959), 357 Mich 567-570, some of these rules of constitutional dovetailing quoted construction were from the writings great our are legal past. men of Here some of them. first written Mr. Story, was Justice the next tating result, constitution at the end of 45 “and strued as For demonstrations which it was sioner tutional Pontiac [3] That shall of provisions, (1933), present Revenue though abrogate approved.” [262] it read:” eoneluding portion [2] (1947), see of not be viewed and Mich or amend School District this method of 338, days Mich [351] [such] after and of of applied this sentence City existing judicial the date City 723. of of with Jackson v. Commis reading Pontiac provisions absurdly “must be con- election v. of City of consti devas- of Mich and Mr. the last Mr. Justice Jus by Campbell, (The quotation taken Cooley tice is from Cooley.4 [64 May Topping 65 Va [1909], v. W SE 848]): “ designed metaphysical for ‘Constitutions are not expression, logical niceties for
or for of subtleties, propriety, meaning, elaborate critical for shades philosophical exercise for the acuteness or judicial prac- They are of a research. instruments the common nature, tical founded on business of adapted designed human common life, wants, to understandings. common use, common The fitted for people people adopt make the with the them, them, people supposed be them, must to read help presumed of common and cannot be sense, any any meaning admit dinary gloss.’ in them recondite extraor- (1 Story, [5th ed], 451, 345.)” p “ concerning rule ‘The cardinal of construction, meaning language, would cases not apply tois which it naturally convey popular mind, to the in all propriety where of such construction is negatived by some rule law. In all settled which instruments are for confirmation submitted people all themselves, their derive popular validity vote, such a construction is they peculiarly necessary; defrauded would for otherwise be right govern- frame their own according (People ment to their own will. Dean ” 418).’ [1866], 14 406, 417, “ people ‘A Constitution made for the people. interpretation given should great it is that minds, which reasonable mass give themselves, “For it. as the Constitution does not derive its from the con- force It plainly Meaning is the In each instance backbone having originated Language,” the first section test of Am Jur Cooley’s “common 2d, (§ 75), appearing Constitutional Constitutional Limitations. understanding” Law, under “c. appears pp *9 of State people from framed, vention which hut the at who the intent to be it, ratified arrived is that people, supposed they and it is not to be that have any meaning or looked dark abstruse in the employed, they accepted words but rather have in the them sense most obvious the common un- derstanding, and ratified the instrument in the belief designed conveyed.” that that was the sense to be ” (Cooley’s 81).’ Const Lim Now understanding, let us ascertain what common meaning naturally conveyed popular what interpretation great mind, what mass of the reasonably themselves draw quoted simple English paragraph of the final of 2 of Article 12. not, Is it was it not when the approved adopted, Constitution of 1963was actually if an initiated and submitted amendment “approved by majority should be a of the electors question” (as voting here), on the indeed then that part amendment “shall” become a of the Constitu- tion?
Our answer is “Yes.” Hence, this initiated having approved by majority been a electors, the result is that of Article has been amended so as of that, last, December 19 has read as follows: legislature sup- “Sec. shall maintain and
port system public elementary of free and second- ary Every schools as defined law. school district provide pupils shall discrimination for the education of its without religion, color creed, race, or origin. national public property appro- “No monies or shall be priated paid public any or or credit utilized, legislature agency any political or other subdivision or directly indirectly of the state or aid or any private, maintain denominational or other non- public, pre-elementary, secondary elementary, or Mich Opinion on Court exemption payment, credit, benefit, tax No school. subsidy, grant tuition deductions, voucher, or loan provided, public property shall be monies *10 directly indirectly, support the attendance of or employment any person any of at or the student location, any nonpublic any or or school such in whole instruction offered where institution in islature nonpublic leg- part school students. The to such transportation may provide the of stu- any from school.” dents thought A of constitutional substance rather than form should be inserted here. It is that the con- purpose abrogate” stitutional of the “alter re- quirement publication, of forth as set it is in the paragraph second of of Article is to assure provide particu- as near as law can that, before and larly day, fully on election all voters are informed proposal upon of the an initiated will have effect existing provision (or provisions) proposal approval. should that receive electoral Secretary of State satisfied that constitutional purpose published when he saw to it that his notice existing § 2 of listed Article as liable to alteration or amendment.
Comparing purpose the above with the salient requirement (§ 482), statute we find that petition-signer, latter was intended to inform the sign, should he of that same Both methods effect. necessary dissemination information to the public yet are desirable, wholesome and the one controlling in counts substance over the more other is that technical which the elector himself— petition-signer separate not —receives Secretary action Here the button- State. petition-signers apprised pursuant holed were not petition effect-, to 482 such at least sheets they, along greater far themselves. But throngs day, directly on of electors election were oe State they read —of that same would but
notified—if
effect.
City
v. Commis-
Jackson
reader of
The careful
(1947),
316 Mich
716-718
Revenue
sioner of
applied
to its decision
the Court
note that
will
upon
urged
briefs of
several
which was
namely,
participating,
many
“elec-
counsel
page 716 the Court
On
doctrine.
tion-cures-error”
by saying:
opened
discussion
its
deciding
is a
case where there
here
are not
“We
petitions, as
of which
a result
in the
fatal defect
the
proposition
submission
should be withheld
Scott
were the situations in
Such
Cases,
the voters.
Leininger
supra [202 Mich
629, and
and
Mich
644].
where we find
Here we have a situation
asked to
defects, but are
such fatal
there were no
nullify
ment.”
adopting
an amend-
voters
the act of the
*11
quote at considerable
went on to
Then the Court
Attorney
length
Miller, v.
General, ex rel.
from
387).
(106
(1934),
ALR
Miller
This last is a repeat for To of Article our Constitution. emphasis: approved proposed by
“If the amendment is majority voting question, of the on electors the part shall abrogate constitution, become and shall existing provisions amend consti # # # tution Supported by quoted, now said 2 Article 12 adopt principles we these from State Winnett (1907), (110 78 Neb 379, 387, 1113, 1116; NW 149), [NS] 10 LRA that, where it was said if a too given require- strict adherence were to some :ments people “the ofwill of the state would be defeated
by unimportant they accident which over had no provisions control. mandatory If other of the constitution are literally, provi- and are to be taken those by place sions restrictions have consented upon power adopting their own amendments to the constitution not should be so approval [after people]. construed should We inquire purpose meaning into fair regard such restrictions, and should the substance requirements.” rather than the letter of such ruling partic- Our summarized is that after this ular affirmative vote of the was electors certified, quoted requirement directory only, of 482 became requirement and that the was fulfilled to constitu- tional satisfaction manner which the Secre- tary performed duty. of State his For demonstra- performance, appendix tive evidence of such see portrays hereto. It of State’s com- pliance with the constitutional mandate of due *12 publication popularly of that which was understood becoming, approved, paragraph if as a new “added” existing § 2 of Article 8. Note the “Provision proposal be Added to adopted.” 2 Article Section if the is 8, printing heading and then the above the “existing” “Existing § 2 of Pro- Article 8, is, Secretary oe State vision to which will he added the new adopted.” language, judgment Division is vacated. A new
judgment determining § will enter on review, of article of the Constitution has read and reads pp now set forth ante 454. No costs. 453, Black, T. E. and Williams, Brennan, Swainson JJ., concurred.
APPENDIX Proposal Propositions” “C” was one of “State three under which, direction of State, were submitted to the November All electors together by three were submitted officialnotice under heading: this
“NOTICE propositions “state Election, “General November 1970.” “published provided Headed thus and in full as conspicuous posting places law” “in in the room (PA where such election held.” No § [MCLA 168.480; Ann Stat Rev Proposal appeared informatively “C” 6.1480]), before the as follows: “PROPOSAL C “proposed
“(Amendment to article 8, section 2 oe the state
CONSTITUTION BY PROPOSED INITIATIVE PETITION) proposal appear “This will on follows: the ballot as *13 Mich C
“PROPOSAL prohibit “proposed to AND STUDENTS SCHOOLS AID TO NON-PUBLIC PUBLIC language to the constitution “This amendment adds to: any public “(a) funds to aid non- Prohibit use secondary
public elementary school; or except “(b) public funds, Prohibit use of any transportation, support attendance of to any person employment of at non- or the students public any or or institution schools at other location part or in to where instruction is offered whole non-public students; school payment, ex- “(c) any benefit, tax credit, Prohibit subsidy, voucher, tuition emption deductions, or directly property, public grant monies or or loan purposes. indirectly, above for the or adopted? be this amendment “Should “Yes n “No n 2 the if Article Section to to Added “Provision adopted.
proposal is prop- public monies or 2. No “Article Section any paid public appropriated erty or or shall be poli- any legislature or other credit utilized, directly agency or of the state or tical subdivision private, any indirectly tional tary, benefit, denomina- to aid or maintain pre-elementary, nonpublic, elemen- or other payment, secondary tax credit, No or school. exemption voucher, deductions, tuition or property public grant subsidy, or or monies loan indirectly, support directly provided, shall be employment any or the student the attendance any nonpublic any person any at school or such where is offered instruction location institution part nonpublic school such students. in whole or transportation legislature may provide for the The of students any school. oe State Dissenting Opinion by Adams, J. “Exiting Provision of Constitution to which will he language, adopted. added the new legislature sup- “Sec. 2. The shall maintain and port system public elementary of free and second- *14 ary shall Every as defined schools law. school district provide pupils for the education its without religion, discrimination as to creed, race, color origin.” national T. M. (dissenting). J.C. dissent. We Kavanagh, majority today A of our Court has held that the Attorney ruling General was correct in petition proposing the amendment was not sufficient place to majority the amendment on the ballot and that the Appeals’ panel
of the Court of in erred ruling petition Despite that the was sufficient. this majority proceeds conclusion a of this Court to create out of whole cloth a new doctrine called “Elec- tion Cures Errors.” right change
The have their Consti- proper, way. legal tution, but must it in do The majority logic satisfy rationale of the fails either reject or law, and it. we We vote void the election. T. G. Kavanagh, J., concurred T. with M. Kava- nagh, C. J. (dissenting). disagree per J. I with the Adams, opinion agree opinion
curiam this case. I with Judge Appeals of the Court of in which Holbrook joined by Judge he was Fitzgerald.
Proposal
“C” is an
addition to art
of the
Michigan
of 1963.
It
not
does
alter
abrogate
original provision
of that section.
Having
application
appeal,
once denied
for leave to
reopened
this Court should not have
the Carman
case.
parties to the issues raised brought an end to review. This General Rules of in that case. The Court provide: denied after
“If appeal leave to application decision Appeals, the Court decision shall the final adjudi- Court become Appeals accordance its be enforced in cation and shall 1963, 852.2(4)(d). terms.” GCR I had there error in agree that been the submis- a fatal sion of C” to the absent people, “Proposal “election-cures-error” petitions, defect and a vote of the applicable doctrine would question people would be decisive on of the amendment. adoption I affirm the Court judgment *15 Appeals.