246 N.W. 220 | Mich. | 1933
These two mandamus cases were consolidated and heard together and will be so disposed of. Both are brought to compel action by the board of election commissioners of the city of Detroit. The first by Lillian Doyle who was denied, by defendants, the right to file her petitions for nomination for judge of the court of common pleas of Detroit for a term commencing immediately after the election and ending July 3, 1935, on the ground that Act No. 332, Pub. Acts 1931, is unconstitutional so far as it attempts to extend the term of office of the judges of the court of common pleas for a period of two years. The second is brought by Lawrence E. Brown, a citizen, resident and taxpayer of *548 Detroit, to compel defendants to refrain from calling and holding a primary or election in the spring of 1933 to elect judges of the court of common pleas of Detroit, for a term of six years from and after July 4, 1933, because defendants have accepted the nominating fee from one Ray Richards in order to have his name placed on the primary ballot for the spring of 1933 for the office of common pleas judge, for a term of six years commencing July 4, 1933, upon the theory that Act No. 332, Pub. Acts 1931, is unconstitutional.
The constitutionality of Act No. 332, Pub. Acts 1931, is attacked on the ground it is a local act passed by the legislature in violation of article 5, § 30, of the Constitution; is in violation of article 16, § 3, of the Constitution; and the extension of the term of office of the judges of the court of common pleas already elected is a legislative interference with the constitutional right of local self-government, an unlawful exercise of the appointing power by the legislature, in violation of the fundamental principles of home rule.
Act No. 260, Pub. Acts 1929 (3 Comp. Laws 1929, § 16369 etseq.), provided for the creation of the courts of common pleas in cities of a requisite population, and for the election of one judge for each 125,000 population. Act No. 260, Pub. Acts 1929, made no provision for a limitation on the number of judges of the court of common pleas, while Act No. 332, Pub. Acts of 1931, limits the number to nine. Act No. 260, Pub. Acts 1929, prescribes three years' legal practice anywhere as a qualification for the office of the judge of the court of common pleas. Act No. 332, Pub. Acts 1931, requires four years' legal practice in Michigan. By Act No. 260, Pub. Acts 1929, a judge of the court of common pleas could engage in practice elsewhere. By Act No. 332, Pub. Acts 1931, *549 he is prohibited from engaging in legal practice. By Act No. 332, Pub. Acts 1931, the rule-making power of the court of common pleas was extended. The regular term of office of all judges of the court of common pleas was extended from four years to six years; the judges of the court of common pleas having been elected under Act No. 260, Pub. Acts 1929, for terms of four years, which by Act No. 332, Pub. Acts 1931, is extended to six years.
Only one question of importance is involved; that is the constitutionality of Act No. 332, Pub. Acts 1931. There are no presumptions against its constitutionality. The policy of the law is determined within constitutional limits by the legislature, which is presumed to have acted within the scope of the powers delegated to it by the Constitution. The legislature of the State possesses all of the power possessed by the parliament of England, save as such power is modified, limited, and restrained by the Constitutions of the United States and of the State.
Act No. 332, Pub. Acts 1931, is to be construed in relation to the condition created by Act No. 260, Pub. Acts 1929, and the objects and purposes of the act itself, as defined therein.
Section 30 of article 5 of the Constitution provides:
"The legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act, excepting acts repealing local or special acts in effect January one, nineteen hundred nine and receiving a two-thirds vote of the legislature shall take effect until approved by a majority of the electors voting thereon in the district to be affected." *550
Act No. 260, Pub. Acts 1929, was held not to be a local act but a general law, in Kates v. Reading,
It is claimed Act No. 332, Pub. Acts 1931, is an unconstitutional infringement upon the right of municipal home rule. Article 8, § 21, of the Constitution provides:
"Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter and to amend an existing charter of the city or village heretofore granted or passed by the legislature for the government of the city or village and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this State."
Act No. 332, Pub. Acts 1931, being a general law, the home rule charter of the city of Detroit is subject thereto and not infringed thereby. The judges of the court of common pleas elected under Act No. 260, Pub. Acts 1929, took office July 4th and "hold office for a term of four years thereafter and until their successors are elected and have qualified."
It is contended their term of office may not be legally extended by Act No. 332, Pub. Acts 1931. A similar question was decided adversely to defendants' claim in the circuit court of Wayne county by Judges Brooke, Frazer, Donovan, and Hosmer, which decision was affirmed by this court in Common Council ofDetroit v. Schmid, and Rouff v. Common Council of Detroit,
"We do not think that the question of local self-government is involved in these cases at all. The present city officers were elected by the people, under the law that then existed, and with full knowledge of the law, to hold their offices for the full term for which they were elected. What was that term, under the law? It was just this: That they should hold their offices for the full time specified in the law for each officer, respectively, and until their successors were elected and qualified. Under the law they hold their offices, not by legislative appointment, but by the votes of the people constitutionally recorded, and from no other authority.
"That the legislature has the right to change the time of holding elections was not questioned on the argument, nor can it be successfully questioned. By the change a contingency has arisen whereby either new officers have to be elected, or the offices remain vacant, or the present officers hold over during the interim. It is not necessary to discuss the first two of these propositions, for the answer to the third eliminates them from the discussion. The present officers do hold over, because the law says so, and the people elected them knowing that in such a contingency they would hold over."
A majority of this court fully agreed with them. We are not disposed to overrule its holding.
The claim that Act No. 332, Pub. Acts 1931, violates article 16, § 3, of the Constitution, which provides:
"Neither the legislature nor any municipal authority shall grant or authorize extra compensation *552 to any public officer, agent, employe or contractor after the service has been rendered or the contract entered into. Salaries of public officers, except circuit judges, shall not be increased, nor shall the salary of any public officer be decreased, after election or appointment,"
is without merit. The salary of the judges of the court of common pleas is attached to the office. Whoever is legally entitled to hold the office is legally entitled to the salary affixed thereto. 46 C. J. pp. 968, 971, 1016. We hold Act No. 332, Pub. Acts 1931, constitutional.
The writ may issue in the Brown Case and is denied in theDoyle Case, without costs in either.
McDONALD, C.J., and CLARK, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred.
