McDONALD v. SCHNIPKE
Calendar No. 15, Docket No. 51,572
Supreme Court of Michigan
January 8, 1968
380 Mich. 14 | 155 N.W.2d 169
T. M. KAVANAGH, J.
Appeal from Court of Appeals, Division 2, McGregor, P. J., and Burns and Quinn, JJ., denying quo warranto action. Submitted October 6, 1967.
Plaintiff should have costs of both appellate courts.
DETHMERS, C. J. and KELLY, T. M. KAVANAGH, SOURIS, O‘HARA, ADAMS, and BRENNAN, JJ., concurred.
McDONALD v. SCHNIPKE.
OPINION OF THE COURT.
- CONSTITUTIONAL LAW-SPECIAL AND GENERAL PROVISIONS-APPLICATION.
A special provision of the Constitution will prevail over a general provision in respect to the subject matter of the special provision, and the general provision will be left to control in cases where the special provision does not apply.
- SAME-SPECIAL AND GENERAL PROVISIONS-DISCIPLINE OF MILITIA.
Disciplinary action with respect to an adjutаnt general of the militia is controlled by the special provision of the Constitution relating to the discipline of the militia, if a conflict exists
between such provision and a general provision of the Constitution empowering the governor to remove or suspend State officers; hence, it is unnecessary to determine whether the adjutant general is a State officer within the purview of the general provision ( Const 1963, art 3, § 4 ;art 5, § 10 ). - MILITIA-REMOVAL-GOVERNOR-DISCIPLINE OF OFFICERS.
The constitutional power of the governor as the commander-in-chief of the militia includes the power to call out the armed forces to execute the laws, suppress insurrection, and repel invasion, but does not include the power to remove or discipline officers of the militia (
Const 1963, art 5, §§ 10 ,12 ). - SAME-OFFICERS-REMOVAL-GOVERNOR.
The governor‘s general constitutional power to remove elective or appointive State officers, except legislative or judicial officers, for grоss neglect of duty or for corrupt conduct in office, or for any other misfeasance or malfeasance therein, does not include the power to remove the adjutant general, the specific provision for the militia being controlling (
Const 1963, art 3, § 4 ;art 5, § 10 ;CL 1948, § 32.12 ). - APPEAL AND ERROR-QUESTIONS REVIEWABLE-ADJUTANT GENERAL-STAFF OFFICERS-MILITIA.
Whether the adjutant general is a staff officer within the purview of statute directing that “staff officers * * * shall hold their positions until they shall have reached the age of 64 years unless retired prior to thаt time by reason of resignation, disability, or for cause to be determined by a court-martial legally convened for that purpose” is not determined in view of provision of the code of military justice subjecting all persons belonging to the organized militia to the code (
CL 1948, § 32.12 ;CLS 1961, § 32.302 ). - CONSTITUTIONAL LAW-ORGANIZATION OF EXECUTIVE BRANCH-IMPLEMENTATION BY STATUTE OR EXECUTIVE ORDER.
Provisions of the new State Constitution requiring that the executive branch of the State government be organized into not more than 20 departments required implementation by the legislаture or by executive order after 2 years (
Const 1963, art 5, §§ 2 ,3 ;sched § 12 ). - SAME-ORGANIZATION OF EXECUTIVE BRANCH-REMOVAL OF ADJUTANT GENERAL.
Implementation by law of constitutional provisions providing for formation of 20 principal departments of the State and
for appointment by the governor of the heads of principal departments whenever a single executive is head of such a department, with these persons serving at the governor‘s pleasure, held, not to apply to proceedings where governor removed one adjutant general and appointed another prior to effective date of the implementing statute, because, until that time, there could be no head of a principal department to serve “at the pleasure of the governor” ( Const 1963, art 5, §§ 2 ,3 ;PA 1965, No 380 ).
DISSENTING OPINION.
SOURIS, J.
- OFFICERS-REMOVAL BY GOVERNOR-ADJUTANT GENERAL.
Governor‘s removal of the adjutant general from office after the effective date of the constitutional provision that a single executive who is head of a princiрal department shall serve at the governor‘s pleasure, but before the effective date of the executive organization act which established 20 principal departments held, proper, the military establishment being a principal department of the State before the executive organization act, and no constitutional or other reason appearing for deferring the operative effect of the constitutional provision until after the organization into 20 departments (
Const 1963, art 5, § 3 ;PA 1965, No 380 ).
Appeal from Court of Appeals, Division 2, McGregor, P. J., and Burns and Quinn, JJ., denying quo warranto action. Submitted October 6, 1967. (Calendar No. 15, Docket No. 51,572.) Decided January 8, 1968.
4 Mich App 68, reversed.
Original action for writ of quo warranto by Major General Ronald D. McDonald against Major General Clarence C. Schnipke, adjutant general of Michigan, to test the right of defendant to the office of adjutant general. Cоurt of Appeals denied writ. Plaintiff appeals. Reversed.
REFERENCES FOR POINTS IN HEADNOTES
[1] 16 Am Jur 2d, Constitutional Law § 69.
[2-8] 36 Am Jur, Military §§ 14, 61; 43 Am Jur, Public Officers §§ 187, 189.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Curtis G. Beck, Assistant Attorney General, for defendant.
T. M. KAVANAGH, J. On October 8, 1964, Major General Ronald D. McDonald, then the appointed and duly qualified adjutant general of the State of Michigan, was summarily removed from office by the governor. Subsequently, the governor reinstated General McDonald as adjutant general, but immediately suspended him from acting in that capacity.
On February 15, 1965, the governor commenced hearings against Genеral McDonald based on charges of malfeasance and misfeasance in office. These hearings were held under the authority of the
General McDonald commenced original quo warranto action in the Court of Appeals. On July 26, 1966, the Court of Appeals denied the relief sought (4 Mich App 68). Appellant McDonald is here on leave granted November 14, 1966 (378 Mich 739).
Appellant claims that the exclusive method of removing the adjutant general as a staff officer of the Michigan national guard is provided for in
Appellant also claims that the action of the governor in purportedly removing him from his position as adjutant general is void and of no effect because the controlling statutory provision calling for a court-martial was not followеd.
Three sections of the
Appellant contends that the power given to the legislature by
The attornеy general further contends that the adjutant general of the national guard is a State officer and is not excluded from the operation of
We first direct our attention to the contention of the attorney general that the appellant is a State officer and therefore is subject to removal by the governor. Assuming, but not deciding, that appellant is a State officer, there exists a conflict between
It is unnecessary for us to decide whether appellant is a State officer within the purview of
“In such a case, if there is a conflict between a general and a special provision in a constitution, the special provision must prevail in respect of its subject matter, since it will be regarded as a limitation on the general grant, but the general provision will be left to control in cases where the special provision does not apply.” 16 Am Jur 2d, Constitutional Law, § 69, p 247, and cases there cited.
Therefore, it is immaterial whether plaintiff is or is not a State officer, as if any conflict exists between the general and specific provisions,
The attorney general urges that by virtue of
Pursuant to the
“An act to provide a uniform code of military justice for the Michigan national guard, not in the service of the United States, and for the Michigan State troops, when the same shall be in existence, and to repeal acts and parts of acts.”
This act repealed and replaced
“An act to provide for the disciplining of the national guard of the State of Michigan, by defining military offenses, fixing their punishment, and establishing courts for the correction of said offenses, and providing methods of enforcing their sentences.” (Emphasis supplied.)
“The following persons are subject to the provisions of this act:
“All persons belоnging to the organized militia and all other persons lawfully called, ordered, drafted or inducted into, or ordered to duty in or with the organized militia, from the dates they are required by the terms of the call, order or other directive to obey the same.” (Emphasis supplied.)
Section 16 of the act provides for general, special, and summary courts-martial. In section 14, trial by court-martial is limited to military offenses. In the same section the military offenses аre enumerated and at least the following are applicable to the allegations of which appellant is accused:
“Loss, damage, destruction or wrongful disposition of military property; * * * frauds against the government connected with military duty or operations; conduct unbecoming an officer and gentleman; and other general acts or omissions to the prejudice of good order and military discipline.”
The respectivе parties also disagree as to whether or not the appellant is a “staff officer” within the purview of
“Staff officers * * * shall hold their positions until they shall have reached the age of 64 years, unless retired prior to that time by reason of resignation, disability, or for cause to be determined by a court-martial legally convened for that purpose.”
It is not necessary to decide this question in view of section 2 of
Two questions arise: Whether the provisions of the
Reference to the constitutional debates3 discloses that committee proposal 71, section b, as originally introduced by both the majority and minority members of the committee on the executive branch, consisted of 6 separate paragraphs, 4 of which were the forerunners of
“The allocation of departments by law pursuant to this section shall be completed within 2 years after the effective date of this constitution. If such allocation shall not have been completеd within such period, the governor, within 1 year thereafter, by
executive order, shall make such allocation.” (Emphasis supplied.)
This paragraph was adopted as
“This is a new section providing that the initial allocation of departments specified in the executive branch article shall be completed within 2 years. If not accomplished within that period, the governor is given authority to make the allocation within 1 year thereafter.”
In the preface to the address to the people, the summary of the major provisions of the executive branch contains the following (p 3359):
“The role of the governor as the key responsible person in the executive branch is strengthened * * *
“4. By requiring the regrouping of the State‘s 126 executive agencies into not more than 20 departments. After the initial reorganization by the legislature, the governor is given the power to recommend further reorganization of executive agencies in the interest of efficiency and economy and to enforce his recommendations, subject to veto by each house of the legislature.” (Emphasis supplied.)
In the majority report on committee proposal 71 we find the following (p 1768):
“Under the proposal, a 2-year period would be provided for statutory allocation of departments. If not done during that time, the governor would have 1 year in which to make the allocation by executive order.” (Emphasis supplied.)
“This is not a thing that can be done overnight. It can‘t be done by waving a wand. And for that reason the proposal does provide that the legislature shall have a 2-year period in which to accomplish this. If it is nоt accomplished at the end of that time, the governor has authority to do the job himself. The purpose and the expectation is that the legislature will set up whatever is necessary in the way of a study commission, will use whatever experience has been accumulated from prior study commissions and will engage in a 2-year project during which it will come up with a structure of government that will be sensible and will be as economical as possible, and will provide the kind of government we ought to have here in Michigan.”
On the same day Delegate Alvin M. Bentley, chairman of the executive subcommittee, also directed attention to the issue here. At page 1837 of the constitutional debates he made these statements:
“We have specifically avoided making some of the errors that were committed by other State constitutional conventions, and one was attempting to spell out within the constitution any specific titlеs for these 20 principal departments. We are leaving that matter entirely in the hands of the legislature and the governor, recognizing as we do that over the years, titles and functions of these various departments may change. * * *
“We are giving the legislature the first 2 years following the adoption of the constitution to create by law the proposed reorganization of this hydra-headed monster into not more than 20 principal departmеnts. Following the initial 2-year period, as Chairman Martin has said, Mr. Chairman, the governor would, if he so sees fit, have the privilege of, by executive order within the third year, further reorganization where he deemed it necessary or where he deemed initial action on the part of the legislature to have been lacking.”
On the same day Delegate Bentley summarized the implementing provisions, stating (p 1842):
“Mr. Chairman, members of the committee, we now come to the provision of the proposal of the executive branch committee dealing with the question of reorganization after the third year following the adoption of the constitution. As it was explained in the previous 2 paragraphs, we have provided for the initial period of 2 years for the legislature to reorganize. We have provided for the governor to act by executive order for the third year.” (Emphasis supplied.)
Therefore, from thе convention comments, the address to the people, the majority committee report, committee proposal 71, section b, and the statements of the various delegates, we find it was necessary to have implementation of
As to the second issue—whether section 3 applies to appellant—we note the wording of the pertinent part of that section:
“The head of each principal department shall be a single executive unless otherwise provided in this constitution or by law. * * * When a single executive is the head of a principal department
* * * he shall be appointed by the governor by and with the advice and consent of the senate and he shall serve at the pleasure of the governor.” (Emphasis supplied.)
The section speaks only of “the head of each principal department.”
“Q. Is it your position that between the effective date of the Constitution of 1963 and the effective date of the 1965 act, Public Act 380, that it would be inappropriate to argue, to contend, or to find, that the head of the military department was the adjutant general, who, by virtue of article 5, § 3, served at the pleasure of the governor and therefore is removable at the pleasure of the governor?
“A. (By solicitor general): I would answer yes, sir. But I have this, in all candor to the Court, qualification in my mind. I think that legislative action was necessary to implement the provisions of article 5, § 3.” (Emphasis supplied.)
We conclude, then, that the provisions of
It is also urged that
We hold that the removal proceedings by the governor were contrary to law in that they were held pursuant to
The order of the Court of Appeals denying the writ of quo wаrranto is reversed. The writ shall issue. Appellant shall have costs.
KELLY, BLACK, O‘HARA, and BRENNAN, JJ., concurred with T. M. KAVANAGH, J.
SOURIS, J. (dissenting).
“When a single executive is the head of a principal department, unless elected or appointed as otherwise provided in this constitution, he shall be appointed by the governor by and with the advice and consent of the senate and he shall serve at the pleasure of the governor.” (Emphasis added.)
This section is not expressly made dependent upon accomplishment of reorganization of the executive branch of government into 20 principal departments as required by preceding section 2 of the same article, nor do I believe we should infer
It is our responsibility to determine whether, during the interim between the effective date of the new Constitution and the effective date of the executive organization act,
I conclude, therefore, that Governor Romney‘s removal of Major General McDonald from his office as adjutant general of the State was a valid exercise of power granted him by