24 Mich. 44 | Mich. | 1871
Lead Opinion
We now proceed to dispose of the cases of quo warranto against the members of the board of water commissioners, and those of the board of sewer commissioners, of the city
The respondents, members of the old boards, insist, first, that the act creating this “board of public works” was passed without the notice required by the constitution and the statute enacted to carry its provisions into effect; and, second, that even if the notice was sufficient, the provisions of the act are repugnant to, and in violation of, the constitution of the state in several important particulars.
We will first dispose of the question of notice. The only notice actually given was this: Mr. McGonegal, a member of the house, on the loth day of February, 1871, gave notice in writing, in the usual way, that on some future day he would ask leave to introduce “a bill to provide for a board of public works in the city of Detroit;” and on the 17th the bill, on leave granted, was introduced by this title (see Journal, pp. fiOS, fill). This was in accordance with a rule of the house requiring one day’s notice of the introduction, or of motion for leave to introduce, a bill, except when introduced on report of a committee.
The constitution (§ 16, Art. XV.) declares that “previous notice of any application for an alteration of the charter of any corporation shall be given in such manner as may be prescribed by law.”
It is quite manifest, from the nature of this provision and of the subject matter to which it relates, that its main purpose was to prevent applications being made to the legislature for amendments of corporation charters, by the corporation itself or interested parties, in such manner as to avoid public
' It was with this view of the constitutional provision that the act of April 7, 1851 {Comp. L., §§ 2168 to 2170) was passed, requiring thirty days’ notice, by publication, of an application for the amendment of a corporation charter, when such application is made on behalf of the corporation or by one or more individuals, except in certain specified cases, but expressly providing (§ 8, of the act) that this act shall not “prevent the legislature, without such notice, from amending any charter of a municipal corporation in any particular which they may deem necessary for the public interest;” and that in such case “'one day’s previous notice in either house, by a member thereof, shall be sufficient.”
The effect of this act and of the constitutional provision under which it was framed, would be to justify the legislature in disregarding, and probably — while the act remains in force — to impose upon them the duty to disregard the application as such, until the proper notice should have been given as provided by the act. It does not, however, operate to restrict the right of the legislature itself to make such amendment as they may think the public interest may require; nor does it restrict the right of any member of either house of introducing a bill for that purpose on giv
It is urged that if this be the true construction of the constitution and the act, both may be readily evaded; as it would always be practicable for the corporation to procure some member of the house or senate to give the one day’s notice, and to introduce the bill on his. own responsibility as a member. This may or may not be true; but if true, it is a difficulty inherent in the nature of the subject itself, and for which the courts cannot provide a remedy. A proper respect for a co-ordinate branch of the government requires us to presume that each member of the legislature acts upon his individual convictions of public duty, and that he will not' become the willing instrument of designing parties, to enable them to evade the statute or the constitution.
The next objection is that the act is void under § SO, Art. IV., of the constitution, which provides: “ No law shall
This act, it is true, transfers to this board of public works all the powers, duties, and responsibilities of the old “board of water commissioners," the “board of sewer commissioners,” and of the “ commissioners of grades and plans," and rests them with the books, papers, and property formerly held by them. It gives the board the charge and control of the erection and construction of engine-houses, city hall, and all other public buildings (except schoolhouses), public sewers, drains, water-works, hydrants, pipes, and reservoirs in the city, requiring the former boards to transfer to this board, the books, papers, maps, records, moneys, assets, and property belonging to said boards respectively; gives this board the charge and control of the streets, public parks and grounds.
All the other powers conferred upon the board, and all the other provisions of the act, so far as material to inquire upon the point we are now considering, whether constitutional or not in other respects, are at least calculated to enable the board to carry the above powers into effect, and appropriate to that end. It vests in the board, as a corporation, and for the public purposes of the city, all the property previously vested in the several boards named, nearly all of which consisted in the water-works and the land and appurtenances connected therewith. It authorizes the board, for the purpose of obtaining any property which may be required for the purpose of the act, to take proceedings to condemn the same by the right of eminent domain, and vests the title of such property, when condemned, or obtained by agreement, in the board for the public purposes mentioned in the act. It authorizes the board to contract for the performance of the various works
All these provisions are in their nature fairly adapted to accomplish the end or object indicated by the title, “to establish a board of public works in and for the city of Detroit,” and must be held to come fairly within the object stated in the title, unless we are to hold that, under this constitutional provision, an “ act to establish ” such a board must be confined to the mere creation of a board, without duties or powers (which would be nonsense), and that, not only a separate act would be required to prescribe such duties and powers, but a separate act for each duty and power conferred, and another for abolishing each of the old boards; for it must be remembered that “ no act is to embrace more than one object, which shall be expressed in its title.” But it is quite clear and well settled that nothing more than the general object need be stated in the title, and that every provision, which is fairly calculated to qarry that object into effect, must be held to come within it. This was so well and clearly shown by my brother Cooley in People v. Mahaney, 13 Mich., 495, 496, and the facts of that case are so entirely applicable to this case upon this point as to render it wholly unnecessary further to discuss it.
There are two provisions, however, in this act upon which a doubt might perhaps be entertained whether they come within the above reasoning, or within the title to the
But it is quite unnecessary to determine whether those provisibns come fairly within the title, since these are in no way essential to the exercise of any of the powers and duties vested in the board by the act, and all the other provisions of the act would remain in full force and efficiency without them; and if not within the title, the only result would be that these particular provisions would be held void, without impairing the rest of the act. And it is time enough to raise the question, upon these particular provisions, when a criminal prosecution shall be attempted under the nineteenth and twentieth sections, or when the board shall undertake to exercise the powers given by the twenty-first section, out of the city. See People v. Mahaney, 13, Mich., 499, citing Smith v. Village of Adrian, 1 Mich., 495 ; Ames v. Port Huron Log-Driving and Booming Co., 6 Mich., 266, and Parsons v. Russell, 11 Mich., 113.
We cannot, therefore, treat this act as void in the present proceeding, on the ground that it embraces more than one object, or that the object is not expressed in the title.
The next objection is that the act is void because the officers or members of the board are appointed by the legislature, and in the act itself.
There can be no reason to doubt that the members of this board are “officers” within the meaning of this section, though not officers required or designated by name in the constitution itself.
The constitution does not seem to have made any clear distinction between the “ election ” and the “ appointment ” of officers; and in § 18, Art. IV., the terms seem to be used as synonymous — and what is usually and more properly termed the “ election” of a senator, is there designated as an “appointment;” but in § 14, Art. XV, above quoted, a distinction seems to have been recognized, though not defined. And though, when the legislature in joint convention proceed directly to vote for officers under the provisions of the constitution, or of any law for that purpose, this mode of selecting the officer might properly be called an election; .yet when, as in this case, the selection consists not in voting directly for the persons who are to fill the offices, but in filling the blanks in a bill, in the course of its passage through the respective houses, with the names of the persons who are declared to be such officers, it must, I think, bo conceded that this is more in the nature of an appointment than-of an election. The votéis taken in the same manner as in filling any other blank, in the bill. It should, therefore, I think, be treated-as an appointment, and not as an election. There is nothing in the constitution expressly authorizing the legislature to make such an appointment of these officers (nor to elect them, if it be held to be an election). And the first and most 'general objection to the act is, that this mode of
This view of the nature of legislative power, as urged by the counsel for the respondents, struck me at first with considerable force; but reflection and further examination have satified me that, though true as to the great mass of legislative power — that which is most broadly distinguished from both judicial and executive — yet it does not include the whole field of what is generally recognized as legislative power, not only in England, but in most of the states of the union. Besides the power to make general rules for the government of officers and persons, and regulating the rights of classes of persons, or of the whole community, there is a large class of powers recognized as legislative, occupying an intermediate space between those general rules and regu
Thus, in our own state, no one has ever doubted the validity of laws so frequently passed, to change the name of any person (at his own request), though the act affects only the individual; and the same may be said of many other private acts, and acts affecting only an individual or a particular case, which the legislature, under our own constitution, still have the power to pass, notwithstanding the prohibition against authorizing thé sale or conveyance of real estate, against vacating certain roads or streets, or granting divorces. But for such prohibition the legislature would, doubtless, in many cases, possess the power (as a part of the grant of legislative power), to pass special laws authorizing the sale of real estate by guardians, trustees or persons standing in fiduciary relations to others who are incapable of acting; and so of statutes validating proceedings in particular cases. See numerous cases of this kind collected, and the principle fairly stated, in my brother Cooley’s work on Const. Lim., 96 to 107. But they cannot decide contested or conflicting rights or claims between individuals; nor, as I think, decide upon and apportion by their own act the respective amounts which individuals shall contribute toward a tax or public burden.
There are numerous cases, also, in which the legislature, as the representative of the public rights and interests, may, and very frequently does, pass acts in favor of a particular individual, — such as the right to establish a ferry; to build a dam across a navigable stream; requiring the issuing of a new warrant for locating lands, in place of another which has been lost; requiring the commissioner of the land office to sell certain school lands to a particular person .for a certain specified price; to restore to a particular person, by
So the legislature may directly exercise the power of vacating or discontinuing a state road or any part of it. — People v. Supervisors of Ingham Co., 20 Mich., 95. They may appoint agents by name to take charge of, or protect or manage, any of the public proper!}', or any particular dejxartment of the public interests, not by the constitution confided to any other specified officer or agency. Thus, they may, and frequently do, appoint certain commissioners by name to locate a county seat, to lay out state roads, to expend non-resident highway taxes in certain townships upon a certain road, and to improve and construct roads. Great numbers of such ads have been passed, and I think there has been no regular session under the present constitution without more- or less of them. And since it has become the policy of the state to appropriate swamp lands to the purpose of constructing roads, the acts' have been very numerous appointing commissioners by name for the purpose of constructing, or contracting for the construction of, such roads; and, though there has been little uniformity in the acts, it would bo very' difficult to maintain any distinction between these commissioners and other public officers, or to make them mere agents instead of officers. Many of the state-road acts, and those appropriating nonresident highway taxes to certain roads, and appointing commissioners for their construction, and many of the swamp-land-i’oad acts, require the commissioners to take the official oath and to give bonds; and they are expressly styled “offieex-s;” and in some cases the acts prescribe
As to this mode of appointment being the exercise of a power essentially executive in its nature, it is sufficient to say that executive power cannot always be defined by any fixed standard, in the abstract. What would come within the -executive power in our form of government, would fall within the legislative in another, and vice versa. The question here is, whether, under our constitution, it is executive or legislative; and as the constitution has not confided the appointment of these or the like officers to the executive authorities, and has left it to the legislative discretion whether to create such offices, and how they shall be filled, it cannot be truly said that such an appointment is any more in the nature of the exercise of an executive than of a legislative power.
The next objection to the validity of the act is, that the power of the legislature (under § 14, Art. JF.), is confined to directing whether officers other than judicial, in cities and villages, shall be elected or appointed, and at what time and in what manner the election or appointment shall be
This argument is not based upon the ground that the provisions of this section were intended to confine the power of making the appointment to the common council of the city or to any other local authority for which only it was intended the legislature should provide; but it goes upon the assumption that, even admitting the power of the legislature to provide for an appointment otherwise than by the local authorities of the city, still the legislature could not itself make the appointment in the manner they have undertaken by this act to make it; their power being limited to directing the time and manner in which it should be made.
Though this argument may seem plausible, I do not think the conclusion is so clear or free from doubt as to authorize us to declare the act void on this ground. If the legislature had the power to provide the time and manner of the appointment, and were not confined to providing for the appointment by the local authorities, then they had the- power to provide that it should be made by the governor with or without the consent of the senate, or by the legislature in joint convention, or finally, by the legislature in the very form and manner which was adopted. And if they had the power to direct that it should be made in this way, it would be very difficult to give any substantial reason why they could not proceed to make the appointment as they did, without first passing an act providing that it should be so made. Such an act would be but a legislative determination that the appointments should be so made; and the actual making of it in this way shows the like legislative determination. A similar exercise of power by the legislature has been upheld by the supreme court of New York. — People v. Bennett, 54 Barb., 480.
The inference that the appointments referred to in this provision were intended to be such only as the legislature might authorize the local authorities to make, may not be so palpable, at first view, as there is no provision how appointments in general shall be made; and all that are authorized to be made of a local character are not required to be made by the local authorities of the district or locality for which the appointment is to be made.
But when we recur to the history of the country, and consider the nature of our institutions, and of the government provided for by this constitution, the vital importance which in all the states has so long been attached to local municipal governments by the people of such localities, and their rights of self-government, as well as the general sentiment of hostility to everything in the nature of control by a distant central power in the mere administration of such local affairs, and ask ourselves the question, whether it was probably the intention of the convention in framing, or the people in adopting, the constitution, to vest in the legislature the appointment of all local officers, or to authorize them to vest it elsewhere than in some of the authorities of such municipalities, and to be exercised without the consent, and even in defiance of the wishes of the proper officers who would be accountable' rather to the central power than to the people over whose interests they are' to preside, — thus depriving the people of such localities of the most essential benefits of self-government enjoyed by other ■political divisions of the state — when- we take all these
The convention must be supposed to have recognized ■to some extent existing things, and to have had reference to cities and villages with substantially such organizations, «or upon such principles of self-government as had generally become customary. And in this view, when they provide that officers in cities and villages should be elected or appointed, we must understand that they referred to ■appointments of such nature (though not necessarily of the same officers) as had been sometimes, at least, made by the -common councils of cities, or by village authorities, as had been quite generally the case with marshals, collectors, city ■attorneys, treasurers, etc., and such others as the legislature might see fit to vest in such council or some other local boards, and resting upon similar principles.
While, therefore, I have no doubt of the power of the legislature to abolish or discontinue any of the separate boards previously existing in the city, and to consolidate -all their powers and duties in this new board, which I think was the main purpose of this act, and to add all the new duties that have been imposed upon them, I concur in the opinions of the Chief Justice and my brother Cooley,
But I do not on this account consider the act void, nor these appointments as wholly without effect. Previous to-the present constitution, which forbids the creation of corporations other than municipal except by general law, it was quite usual to incorporate by name certain persons and their successors; and municipal corporations may still be-created by special acts. These officers and their successors, are incorporated by this act. And their appointment may,. I think, be treated as provisional, or initiatory only, for the purpose of a primary organization of the board, and to put it in full operation. Though the appointment for the-full, or a definite portion of the full, term cannot be sustained, it is void only as to that portion of the time to occur after the organization is complete and the board are put in full possession of their offices, power, and franchises-The act does not seek to retain the appointing power in the legislature, but vests all future appointments in the common council; and in effect evinces the intention so to vest it whenever the authority of the legislative appointments made by the act should cease to be effectual. If' they misjudged as to the period for which the appointment would be thus effectual, and undertook to continue it further, it does not. render it void for the period during which they had the right to make it effectual; in other-words, .till the board should be fully organized and in fall possession of its functions. It is void only for the period beyond this; and from the time the board shall be duly
The next objection urged to the constitutional validity of the act, is that it vests in this board of public works, legislative powers: First, in the power given to make by-laws, rules, and regulations; and second, in other particulars which will be noticed as we proceed; and it is urged that this is in violation of § 88, Art. IV., of the constitution, which, it is claimed, only authorizes such legislative powers to be granted to the corporation of the city itself. The section is in these words: “ The legislature may confer upon organized townships, incorporated cities and villages, and upon the board of supervisors of the several counties, such powers of a local, legislative, ■ and administrative character, as they may deem proper.” And it is insisted that these powers can only be conferred upon the city corporation, to be exercised by the common council, and that no part of them can be conferred upon this or any other board of the city.
But the common council of the city is not the city, nor the legal entity known as the corporation of the city. It is, itself, but a public board for municipal governmental purposes, with just such powers (not forbidden by the constitution) as the legislature have thought, or may hereafter think, proper to confer. Yet no one doubts that the legislature might confer upon it all the powers mentioned in the section of the constitution above cited, and the counsel for the respondents seems to claim that it is proper to confer such powers, in cities, only upon the common council. But as there is nothing in the constitution requiring cities to be governed by a common council, or that any board by that name, or with the same powers, should exist; and the proper organization of such municipal government is left to the discretion of
As to- the power of making by-laws, and rules and regulations (which are the same' thing), expressly given by the act in reference to the various public works committed to the charge of the board, I see no objection whatever. This board is a corporation, and the power to make by-laws is implied in every act of incorporation (unless the charter otherwise provides), as an incident of its existence. It is a means of carrying out the powers conferred and for the accomplishment of the purposes of the act, and whether implied, or the general power to make them be expressly given without express limitations, the power must be thus limited in all cases by implication; and the general grant of the power to make by-laws, or to make them upon certain subjects, is always subject to the further implied limitation that they, shall not be repugnant to the charter, nor
The power given in the fourth section “ to make by-laws and rules, and to do all legal acts which may be necessary and proper to carry into effect the intent and objects .of this act,” and the same power repeated in the twenty-sixth section is clearly such power only as would have been implied, if not expressly given. That in the fifth section, to make printed rules and orders regulating the use of the streets, parks, and public grounds, is also, I think, of the same character, and would have resulted from the charge and control of the same, given to the board by the same section. No charge or control of these public works could be rendered effectual to any purpose without some power of making and enforcing rules or regulations' for that purpose. No supervision or control of any business, whether by an individual, by officers or by a corporation, can be made effectual without some order or system; in other words, without the observance of some rules and regulations, and such is the nature of the by-laws, which, by these sections, the board is authorized to make. The power to make such by-laws is rather in the nature of what the constitution denominates “administrative,” than legislative powers; and all the several acts creating the several boards whose powers are transferred to this board of public works, give the like powers to make by-laws, rules, and regulations, and so of the acts creating the board of police commissioners, and the fire commissioners; yet no fault seems to have been found with this potver granted by those acts.
The fact that this corporation or these officers may make, or. rather attempt to make, certain rules or by-laws which may exceed their power, and which would therefore be void, is no sufficient reason, in a proceeding like the
Doubtless the legislature may expressly, or by necessary implication, confer upon municipal corporations, under § 88, Art. IV., the power to pass by-laws more in the nature'of legislative provisions, and involving to some extent, what would be properly legislative power, but for local and municipal purposes, — by-laws, the power to pass which would not be implied from the power of supervision and control over a particular subject or public work, and which might, be in contravention of the laws of the state elsewhere in force. — Cooley’s Const. Lim., 198, 199. Such may be the nature of the power given to the board by the eleventh section in reference to the collection of water-rates.
But, as this .s a power which it is not denied might have been conferred upon the common council, and the other powers to which objection is made, as contained in sections nine and thirty-five, are such as might have been conferred upon the common council, I do not deem it necessary to notice them further; since in my view, as already explained, it was competent for the legislature to confer upon this board all the powers of a “ local, legislative or administrative character,” touching the matters placed under their administration and control, which it would have been competent to vest in the common council.
As to the power of extending water-pipes, sewers, etc., beyond the city limits, given by the twenty-first section, I see no constitutional objection to it; but it is wholly unnecessary to discuss this point, since, if entirely invalid, it in no respect impairs the general operation and effect Of the act. And here I may remark generally, that in this -
It is hardly necessary to notice here the objection to the validity of this act on the ground that it divests the old boards, and in some instances, perhaps, the city corporation or the common council, of the title to property, and transfers it to, and vests it in, this board.
All those previous boards, and the city corporation itself, held whatever property they did hold in the right, and for the public benefit, of the city, as a public trust for municipal purposes; and in it was clearly competent for the legislature to transfer it to another public board, to be held in the same manner for the same public uso and benefit.
It was also urged upon the argument that this act vests in this board an almost unlimited power of taxation, which they may exercise without consent of the common council or the people. But, upon a careful examination of the act, in connection with the charter, I think it gives, properly speaking, no power of taxation; at least, none which is not subject to the approval or disapproval of both the common council and the people.
This disposes of every objection urged against the con
It is only to the particular feature requiring the members to be selected from the “two political parties represented in the common council,” that the objection is made. It appears by the record, that these parties were what is known as the republican party and the democratic. party. But this' court cannot take judicial notice of the elements or opinions which must necessarily enter into the composition to constitute a member of either nor recognize the distinctive difference in the resultant compound by which the identity of each or -the membership of either, is to be determined. There is no fixed legal standard of what shall constitute the one or the other; and this statute has not attempted to fix one. Had it done so, it might be found to. need more frequent amendment than even the Compiled Laws. The court may, however, recognize the general laws, of human nature upon which parties are founded, and among these, that in all popular governments the people naturally range themselves into parties, and very generally into two great parties, in open and vigorous contest for the control of the government. But change, continual change,
No fixed definition can therefore be given to a party from the distinctive principles it supports or opposes. Parties are not always what their names indicate. The definition must, in its nature, be merely nominal, if to continue for any definite time. One might as well undertake to identify the flickering rays of an aurora of last year, with those appearing to-night, as to give a real definition of a party from its elements or favorite measures to-day, which shall be correct a few years hence. This act, therefore— the first ever brought to my knowledge which has attempted to recognize parties as permanent — if it intended that their identity should be determined by any thing more than the mere name of the organization to which an individual might profess to belong, has attempted a mere impossibility. It is probable -the act refers to the “ parties represented in the common council” at the time of its passage; otherwise it might be rendered nugatory upon the election of a council all of one party; and it seems to ignore the possibility of members of a third party being elected to the council, or that all the council might be of such party, or perhaps of no political party. Whether these provisions, in their nature, admit of complete enforcement or can be considered any thing more than directory, may admit of .doubt, and it is not, I think, necessary to be decided here.
But parties, though necessary in' national, and perhaps in state affairs, like every thing human, have some incidental evils; and these evils culminate in large cities. The only issues upon which the great parties are formed being national, or pertaining possibly in some measure to state
But the objection is now urged to the validity of this provision, that it creates a “test, or qualification” for office forbidden by the constitution, by excluding from these offices all who do not belong to one of those political parties.
It is insisted, first, that the provision violates § 7, Art. XVIIL, of the constitution, which, after prescribing the
The reasons given for the second objection, if well founded, tend very strongly to weaken, if not entirely to remove, the first. The provision, it is urged, cannot be carried into effect without an inquisition into the character and contents of a citizen’s ballot — this being the only test of the membership of the party — and, as it has been decided by this court, in People v. Cicotte, that the voter cannot be compelled to disclose the contents of his ballot, or how he voted, there is no possible way of enforcing the provision. If this is true, then the supposed new test or qualification cannot be enforced, and § 7, Art. XVIII., will not be likely to be violated by a qualification not admitting of enforcement. But, to return to the first point, if this provision is a test or qualification which is prohibited by the constitution, so is that which requires the members of tbis board to be freeholders; and if this act is to be dclared void upon this ground, several other acts of the legislature must share the sapie fate, and among them, the act creating the board of water commissioners (the old board whose powers are by this act transferred to the new board, and who are respondents in this case), and that, creating the metropolitan police for the city. The same qualification is contained in the act creating the board of water commissioners (§ #),; in the “ act to establish a police government for the city of Detroit” (§ 8)-, and in the “act to incorporate the village of Mt. Clemens,” April 4, 1851 . (Sess. L. 1851, p. 101, § 19), it is provided that “no person shall be eligible to any office in this corporation unless he shall have resided in said corporation one year next pre
But I do not think the question of the constitutionality of either of these alleged qualifications calls for a decision in the present cases, for the following reasons:
1. Because, if the provision requiring either of these qualifications is void, it binds no one, and the common council may proceed, at the proper time, to elect, if they see fit, a member of the board, who does not belong to either of the parties referred to, or who is not a freeholder in the city; and when such an election shall be made and contested, it will be time enough to decide the question; until then no constitutional right is in controversy. They may never be inclined to elect one who is not of one of the parties named, or not a freeholder; and it can certainly be no objection to the election of a member that he may happen ¿o come within both the supposed qualiScations.
But 2. The right of the relators to hold these offices does not depend upon an election by the council. They were appointed by the legislature; and if the legislature had a right to appoint any persons to these offices, even provisionally, — as I have endeavored to show we must hold they had, — they had the right to select them for such reasons or such qualifications as they pleased; they had the right to .appoint these men, though belonging in equal numbers to 'the two political parties, and all freeholders. Neither of these supposed qualifications renders them any the less Jit or .!competent. The question, therefore, of the constitutionality
For the reasons I have given I think judgment of ouster •should be rendered against the respondents in these cases, and that the relators have established their right to, and are entitled to hold, their offices as members of the board of public works, as claimed and alleged in the informations, and that the relators should recover their costs.
This controversy turns chiefly upon the validity of the act creating a board of public works in the city of Detroit. The questions presented arise upon the source of the appointment, and upon the extent of the powers of the board, as well as upon some independent objections.
It was suggested on the argument that the first of these inquiries was barred by our decision in the case of The People v. Mahaney, 13 Mich. R., 492, where the validity of the police act was sustained. That decision held that police commissioners might be lawfully appointed by state authority. No question was there discussed concerning the power of the legislature to make the first appointments, instead of .the governor, and that point, therefore remains open. The decision can only dispose of this case upon the assumption that the police commissioners are essentially city officers in the same sense that the board of works are city officers. That, then, is a question presented at the outset of the inquiry in the present litigation, in connection with the
The clause in the constitution which is supposed to have immediate reference to the power of the legislature over municipal officers, is § If of Art, XV. That section, which occurs in the article entitled of “ Corporations,” provides that “judicial officers of cities and villages shall be elected, and all other officers shall be elected or appointed, at such lime and in such manner, as the legislature may direct.” Trom the article in which it is found, this section can only apply to officers of the municipality, whether city or village. If there is any restriction on the power of the legislature over officers not municipal it must be found elsewhere. And, there being no express provision on the subject, any such limitation must be found in some manifest implication.
The only one which has been thought of, is that which rests in a supposed distinction between the legislative and executive powers concerning appointments to public trusts. These powers have been kept separate with some jealousy, and for very good reasons. The courts are bound to prevent encroachments by one upon the other, when they are evident. But the line is not so clearly drawn as to be free from doubt, and so far as practical construction goes under the old constitution, it must have weight in construing the present one. The language of both instruments concerning the distinction of powers is substantially identical. While, under the old constitution appointments to office were generally by the executive, there are many instances of state boards and agencies named, in the first instance, by the legislature, where the governor had no voice in the first selection beyond his part in approving the statute making the appointments. The practice is not in harmony with the general theory of the constitution, and if the governor should object to the persons named, I am not prepared to
The only confusion existing on this subject has arisen from the custom prevalent under all free governments of localizing all matters of public management, as far as possible, and of making use of local corporate agencies whenever it can be done profitably, not only in local government, where it is required by clear constitutional provisions, but also for purposes of state. Illustrations of this might easily be multiplied. The whole system of state taxation, under our laws, is made to depend on the action of town and ■county officers, who make the assessments and collect most of the taxes. And the whole machinery of civil and criminal justice has been so generally confided to local agencies that it is not strange if it has sometimes been considered as of local concern. But there is a clear distinction in principle between what concerns the state and that which • does not concern more than one locality; and where the constitution has made no rule for their management, affairs belonging to state policy must be subject to immediate ..state control, if the legislature shall deem it necessary.
In the celebrated case of the quo warranto against the city of London, the information charged, as separate franchises, the existence of the municipal organization, - the
The preservation of the peace has always been regarded, both in England and in America, as one of the most important prerogatives of the state. It is not the peace of the city or county, but the peace of the king or state that is violated by crimes and disorders. The prosecution is on behalf of the state. The trial is before tribunals created and regulated by the state. The remission of punishment is by the governor of the state. Our constitution confides the judicial power to no courts but those organized under the direct sanction and regulation of state law. No portion of this power can be delegated to cities. Courts may be established to act in municipalities, and their judges may be elected by the citizens, but their powers must all be defined by state legislation, which authorizes and establishes them-. The numbers and qualifications of jurors are under state control. The whole judicial power is governed by Article VI., of the constitution, and it cannot be lodged anywhere except as authorized by that article. All process runs in the name of the people of the state of
The general purposes of the police act were such as appertain directly to the suppression of crime and the administration of justice. There is, therefore, no con-
stitutional reason for holding it to be other than a regulation of matters pertaining to the general policy of the state, and subject to state management. Whether there may or may not be some provisions in the act not confined to the main purpose, and whether any of those provisions are liable to objection on that ground, or not, we have never been required to consider, and have never decided. The present controversy, therefore, is not affected by the ruling on the police act.
There is no dispute concerning the character of the public works act. Its purposes are directly and evidently local and municipal. And the main point to be decided is, whether the legislature of the state can, without the concurrence of the city of Detroit, select the local officers of the city.
No question, arises concerning the power of giving corporate existence to those agencies lawfully created within the city that might have been administered by individuals. Any function of administration may be performed by an incorporated board or commission, or by an officer made a corporation sole, if it is thought best. All cities of any .size must have a large amount of administrative business that requires effective agencies having some discretion, and where any business can be properly deputed to such agencies their incorporation has been very usual and its legality is conceded by every one.
Neither can it be held that the designation by name of
We must assume, then, in regard to all the city boards heretofore created for municipal purposes, that where the first corporators have been named in the acts, and the
In the litigation now before us there is no acquiescence by the city in the choice of the board of works, or in any part of the legislative action on the subject. We are, therefore, compelled to consider the plain question, whether the state authorities have a right to assume unlimited control of all municipal appointments. Judicial offices the constitution has distinctly provided for as elective; and they are local in their action rather than in their nature. But as to other offices the power is plenary, or it does not exist at all. It may as well include every'office as any less than all. It may put all the power into the hands of one person, as well as divide it among several, and it may continue.it for life as well as for a less period. Life tenure is not rare in municipal offices. The aldermen, of London, and probably of many other cities, hold for life. It may create incorporated cities and villages in such numbers as to put the great mass of local administration in the hands of state agents. This is not very likely to happen, but it is just as likely as many other things which it has been thought proper to guard against by constitutional enactment. It is, beyond dispute, directly opposed to the principal design of all our constitutions, and if it has not been guarded' against there has been a very great oversight, and
We must never forget, in studying its-terms, that most of them had a settled meaning before its adoption. Instead of being the source of our laws and liberties, it is, in the main, no more than a recognition and re-enactment of an accepted system.' The rights preserved are ancient rights, and the municipal bodies recognized in it, and required to be perpetuated, were already existing, with known elements and functions. They were not towns or counties or cities or villages, in the abstract — or municipalities which had lost all their old liberties by central usurpation — but American and Michigan municipalities of common-law origin, and having no less than common-law franchises. So far as any indication can be found, in the • constitution of 1850, that they were to be changed in any substantial way, the .change indicated is in the direction of increased freedom of local action, and a decrease in the power of the state to interfere with local management. Having enjoined it upon the legislature to “ provide for the incorporation and organization of cities and villages” (Art. XIV., § 18), a clause was inserted for the express purpose of removing doubts on a controverted question authorizing the legislature to confer upon townships, cities, and incorporated villages, and on boards of supervisors, such powers of a local legislative and administrative character as they may deem proper. — Art. IV., § 88. And there are many other clauses which assume that such powers will be given. It is also to be noted that cities are mentioned in connection with local corporations, which are put upon a popular basis entirely beyond legislative interference, so far as local independence of action is concerned •, so that if the people of cities have not similar immunities, we have in the same commonwealth two classes
Incorporated cities and boroughs have always, both in England and in America, been self-governing communities within such scope of jurisdiction as their charters vest in the corporate body.' According to the doctrine of the common law, a corporation aggregate for municipal purposes is nothing more nor less than “investing the people of the place with the local government thereof.” — Salic. 19-3. In the absence of any provision in the charter creating a representative common council, the whole body of freemen make the common council, and act for the corporation at their meetings. — Comyn Dig. “Franchises,” (F.) 25. It is agreed by historians that originally all boroughs acted in popular assembly, and that the select common council was an innovation, which may have been of convenience or by encroachment. In modern times cities have generally acted in ordinary matters by such a select body. But townships still act by vote at town meetings, and for many purposes connected with taxation the people of cities usually have the same privilege. But whether acting directly or by their representatives, the corporation is, in law, the community, and its acts are their acts, and its officers their officers. The doctrine is elementary that all corporation officers must derive office from the corporation. — Kyd, ch. 3, § 8. This has been from time immemorial settled law. By articles fifteen and .sixteen of the great charter, it was stipulated that the liberties and free customs of London and all other cities, boroughs, towns, and ports should be preserved. Those liberties were all connected with and dependent upon the right to choose their own officers and regulate their own local concerns. The sole motive of the infamous proceedings of Charles II. to procure the forfeiture of these corporate charters, was to enable him to interfere in the selection
Our constitution cannot be understood or carried out at all, except on the theory of local self-government; and the intention to preserve it is quite apparent. In every case where provision is made by the ■ constitution itself for local officers, they are selected by local action. All counties, towns, and school districts are made to depend upon it. All elections are required to be in local divisions where electors reside. Cities are represented in the board of supervisors, and it is quite possible for their members to outnumber the rest. It certainly cannot be that the state can control those bodies by sending its own agents there, and it cannot be possible that it was contemplated that any members of that board should be selected by a different mode of election or appointment from the rest. Cities may become counties, and surely there can be no county without popular institutions. Cities have been judicially declared to come within the denomination of “townships” so far as to be entitled to library money; and unless they are made to include school districts, they need not be compelled to have free schools. No one would venture to assume that the constitution was designed to leave them in such a position.
This is no mere political theory, but appears in the constitution as the foundation of all our polity. There is no middle ground. A city has no constitutional safeguards for its people, or it has the right to have all its officers appointed at home. Unless this power is exclusive, the state may manage all city affairs by its own functionaries. The only reasonable meaning of the constitutional clause in question is, that when the legislature has designated the time and manner of appointment or election, the local authority shall fill the offices as so ordained.
Assuming (what I think is not admissible) that the legislature could make provisional appointments to set an •act in operation, this is not such action. The board appointed have no other or different powers than any of their immediate or remote successors would have. The law contains nothing requiring or authorizing any mere preliminary action. The officers are to hold by classified terms, just as the judges of the supreme court and board of regents did, for two, four, six, and eight years, and no successors can be chosen by the city short of the expiration of those periods without directly violating the terms of the law. It is not admissible construction to insert a meaning which is inconsistent with, and positively contradicts, the plain terms of the statute. And if any such general power , of provisional appointment exists, it would have been as lawful to appoint temporary judges, as commissioners. It therefore follows necessarily, that the statute can have no validity, because there is no lawful way of putting it in operation.
I think also, that the provision concerning the partisan character of the board, although doubtless well meant, does
Such a rule is not by any means nugatory. It is quite as easy to show a man’s political as his religious affiliations. These are constantly inquired into in determining rights of voting in churches. If such provisions in regard to matters of religious attachment were of no efficacy, it would have been a very foolish thing to make the bitter and just complaints which have been uniformly made against the persecution and disfranchisement of non-conformists. There are very few intelligent citizens who have not well known and decided political notions and affinities, or whose position cannot be learned and proven very easily.
Our constitution, after prescribing certain official oaths, requiring the support of the union and state constitutions, and official fidelity, declares that “no other oath, declaration, or test shall be required as a qualification for any office of public trust.” — Art. XVIII., § 1. This clause must have been intended for some useful purpose. It excludes everything which falls within the mischief indicated by the
In Cummings v. Missouri, 4 Wal., 277, the oaths there under consideration, were spoken of by the court as test oaths, and reference was there made to such oaths in other countries, embracing civil as well as religious matters. Our naturalization laws require evidence of attachment to the constitution and government of the United States. This is as much a test as the oaths of allegiance and supremacy; and if honestly applied, is supposed to be of some efficacy. The phraseology of the provision in our own constitution, fiixing the form of the oath to be taken, treats it as a test oath, and forbids, not “any test” but any “other” test. The word, in legal and general acceptation, is confined to opinions and bias, and to such conduct as naturally indicates the political or religious prepossessions of persons. It never was applied to property or any other qualifications not bearing on supposed mental conditions.
That the mischiefs may not be serious is not an admissible argument. It is certainly possible for other parties to exist than the two assumed to include all the present members of the common council. It is quite possible for either of those parties to represent no larger constituency than
To what extent this statute attempts to give to the board, in addition to administrative powers in the nature of agencies, such legislative authority as, under the constitution, can only be given to the people of the city itself or the immediate representatives of the people, is not a very essential inquiry in this controversy, inasmuch as it does not affect the existence of the offices themselves. Very many of the powers of the board are merely transferred from existing boards, and any excess of authority would call for a decision by itself, when, as a practical question concerning a legally existing body, it would meet with a safer solution than if anticipated as one not now urgent.
I think the law is void, and that the respondent is not guilty of usurpation.
I find no valid objection to the title of the act in question, or to the notice given of its introduction or to the powers conferred. In respect to those matters, I agree in what has been said by my brother Ohristiancy. Nor do I think the appointment of the first members of the board of public works is necessarily void as an exercise of executive authority. There is no such thing as drawing between legislative and executive power such a clear line of distinction as separates legislative from judicial; and the legislature, in prescribing new rules, have necessarily a largo
These, however, are matters of secondary importance; there lies over and beyond these a question of the highest interest and concern, which cannot be answered without a careful scrutiny of the structure of our government, and an examination of the principles which underlie free institutions in America. "We have before us a legislative act creating for the city of Detroit a new board, which is to exercise a considerable share of the authority usually possessed by officers locally chosen; to have1 general charge of the city buildings, property and local conveniences, to make contracts for public works on behalf of the city, and to do many things of a legislative character which generally the common council of cities alone is authorized to do. The legislature has created this board, and it has appointed its members; and both the one and the other have been done under a claim of right which, unless I wholly misunderstand it, would justify that body in taking to itself the entire and exclusive government of the city, and the appointment of all its officers, excepting only the judicial, for which, by the constitution, other provision is expressly made. And the question, broadly and nakedly
Now, it must be conceded that the judicial decisions and law writers generally assert that the state creates the municipal bodies, endows them with such of the functions of corporate life and entrusts them with such share in the local government, as to the legislative judgment shall seem best; that it controls and regulates their action while they exist, subjects them to such changes as public policy may dictate, and abolishes them at discretion; in short that the corporate entities are mere agencies which the state employs for the convenience of government, clothing them for the time being .with a portion of its sovereignty, but recalling the whole or any part thereof whenever the necessity or usefulness of the delegation is no longer apparent. This I understand to be the accepted theory of state constitutional law as regards the municipal governments. We seldom have occasion to inquire whether this amplitude of legislative authority is or is not too strongly expressed, for the reason that its exercise is generally confined within such bounds as custom has pointed out, so that no question is made concerning it. But such maxims of government are very seldom true in any thiDg more than a general sense; they never are and never can be literally accepted in practice.
Our constitution assumes the existence of counties and townships, and evidently contemplates that the state shall continue to be subdivided as it has hitherto been; but it
The doctrine that within any general grant of legislative power by the constitution there can be found authority thus to take from the people the management of their local concerns, and the choice, directly or indirectly, of their local officers, if practically asserted, would be somewhat startling to our people, and would be likely to lead hereafter to a more careful scrutiny of the charters of government framed by them, lest sometime, by an inadvertant use of words, they might be found to have conferred upon some agency of their own, the legal authority to take away their liberties altogether. If we look into the several state constitutions to see what verbal restrictions have heretofore been placed upon legislative authority in this regard, we shall find them very few and simple. We have taken great pains to surround the life, liberty, and property of the individual with guaranties, but we have not, as a general thing, guarded local government with similar protections. We must assume either an intention that the legislative control should be constant and absolute, or, on the other hand, tha^
The circumstances from which these implications arise are: First, that the constitution has been adopted in view of a system of local government, well understood and tolerably uniform in character, existing from the very earliest settlement of the country, never for a moment suspended or displaced, and the continued existence of which is assumed; and, second, that the liberties of the people have generally been supposed to spring from, and be dependent upon, that system.
DeTocqueville speaks of our system of local government as the American system, and contrasts it forcibly with the French idea of centralization, under the influence ,of which constitutional freedom has hitherto proved impossible. —Democracy in America, chapter 6. Lieber makes the same comparison, and shows that a centralized government, though by representatives freely chosen, must be despotic, as any other form of centralization necessarily is. “ Self-govern
But in Connecticut the several settlements originated their own governments, and though these were doubtless very imperfect and informal, they were sufficient for the time being, and the central government was later in point of time. — Trumbull’s Hist, of Conn., Vol. 1, pp. 182, 468; Balfrey’s. Neiv England, Vol. 1, p. J+54- What the colony did was only to confer charters, under which the town authority would be administered within agreed limits, and possibly, with more regularity than before. In Rhode Island, it is also true, that township organization was first in order of time. — Arnold’s Hist., of R. I., ch. 7. This author justly remarks, that when the charter of Rhode Island was suspended to bring her under the dominion of Andros, “ the American system of town governments, which necessity had compelled Rhode Island to initiate fifty years before, became the means of preserving the liberty of the individual citizen when that of the state, or colony, was crushed.” — Vol. 1, p. 487. So in Vermont, the people not only, for a time, conducted all their public affairs in towns and plantations, through committees, officers and leaders, nominally appointed and submitted to by general consent and approbation, but they carried on their controversy with New York for some years, without any other organization.—
I have confined this examination to the states which have influenced our own polity most; but the same principle was recognized and acted on elsewhere. The local governments, however, were less complete in the states further south, and this, with some of their leading statesmen, was a source of regret. Mr. Jefferson, writing to Governor Tyler in 1810, speaks of the two great measures which he has at heart, one of which is the division of counties into hundreds. “These little republics,” he says, “would be the main strength of the great one. We owe to them the vigor given to our revolution, in its commencement, in the eastern states. * '* * * Could I once see this, I should consider it as the dawn of the salvation of the republic.” — Jefferson’s Worhs, Vol. 5, p. 525. Mr. Jefferson understood thoroughly the truth, so quaintly expressed by Bacon, when he said of a burden imposed as compared to one freely assumed, that “ it may be all one to the purse, but it worlceth diversely upon the courage.”
Such are.the historical facts regarding local government in America. Our traditions, practice and expectations have all been in one direction. And when we go beyond the general view to inquire -into the details of authority, we find that it has included the power to choose in some form
For those classes of officers whose duties are general,— such as the judges, the officers of militia, the superintendents of police, of quarantine, and of ports, by whatever name called, — provision has, to a greater or less extent, been made by state appointment. But these are more properly state than local officers; they perform duties for the state in localities, as collectors of internal revenue do for the general government; and a local authority for their appointment does not make them local officers when the nature of their duties is essentially general. . In the case before us, the officers in question involve the custody, care, management, and control of the pavements, sewers, water-works and public buildings of the city, and the duties are purely local. The state at large may have an indirect interest in an
In view of these historical facts, and of these general principles, the question recurs whether our state constitution can be so construed as to confer upon the legislature the power to appoint for the municipalities, the officers who are to manage the property, interests, and rights in which their own people alone are concerned. If it can be, it involves these consequences: As there is no provision requiring the legislative interference to be upon any general system, it can and may be partial and purely arbitrary. As there is nothing requiring the persons appointed to be citizens of the locality, they, can and may be sent in from
Mr. Justice Story has well shown that constitutional
What I say here is with the utmost respect and deference to the legislative department; even though the
But I think that, so far as is important to a decision of the case before us, there is an express recognition of the right of local authority by the constitution. That instrument provides (Art. XV., § 1J¡) that “judicial officers -of cities and villages shall be elected; and all other officers shall be elected or .appointed, at such time and in such manner as the legislature may direct.” It is-conceded that all elections must, under this section, be by the electors of the municipality. But it is to be observed that there is no express declaration to that effect to be found in the constitution; arid it may well be asked what there is to localize the elections any more than the appointments. The answer must be, that in examining the whole instrument a general intent is found pervading it, which clearly indicates that these elections are to be by the local voters, and not by the legislature,-or by the people of a larger territory than that immediately concerned. I think also that when the constitution is examined in the light of previous and contemporaneous history, the like general intent requires, in language equally clear and imperative, that the choice of the
The previous history I have sufficiently referred to; and it is a part of the public liistoi'y of the times that the convention which framed the constitution of 1850 had in view as prominent objects, to confide more power to the people, to make officers generally elective, and to take patronage from the executive. We see this in the provisions for the elections of judges, state officers, regents of the university and prosecuting attorneys; in the requirement that banking laws shall be referred to the people for adoption; in the exclusive control given to the supervisors in the settlement of claims against counties, and in the express provision that “'the legislature may confer upon organized townships, incorporated cities and villages, and upon the boards of supervisors of the several counties, such powers of a local, legislative and administrative character as they may deem proper.” All these were in the direction of popularizing authority. Even the officers who were to perform the duties of master in chancery were required to be elected. When, therefore, we seek to gather the meaning of the constitution from “the four corners of the instrument,” it is impossible to conclude that the appointments here prescribed, in immediate connection with elections by the local voters, and by a convention intent on localizing and popularizing authority, were meant to be made at the discretion of the central authority, in accordance with an usage not prevalent since the days of the Stuarts, and which even then was regarded, both in England and America, as antagonistic to liberty and subversive of corporate rights.
So far, then, as the act in question undertakes to fill the new offices with permanent appointees, it cannot be sustained, either on general principles, or on the words of the constitution. It may, nevertheless, not be wholly void.
The difficulty here is, that the appointments made by the legislature are for full terms, and do not assume to be provisional. In this particular they resemble the appointments made by Charles II., under the new charters which he granted to corporate towns, after forcing the surrender of the old, and which were only of the first incumbents.— Lingard Hist. of England, Vol. 12, p. 342; Hallam Const.
I think the position of this case is precisely the same that it would have been if the act were as I have supposed. It follows that, in my view, the appointees for the time being are entitled to office, and the defendant and his associates are displaced.
I have said nothing about the choice of these men by bill, because, as a provisional appointment, I think it might be thus made. If they were to be regarded as permanent officers, there would be serious difficulties in the way, which I do not care to enter upon without necessity.
Dissenting Opinion
I agree with the chief justice that the act before us is unconstitutional, but I base my objections wholly on the point discussed by him, touching the official terms, the tenure and mode of choice of the first members of the board. The act declares that the term shall be eight years; that the four persons designated by name shall hold for two, four, six and eight years respectively, and that they shall not be removable except upon preferred charges, which shall be sustained by vote of two-thirds of all the members elect of the common council. This is a fundamental part of the whole scheme, without which there is no reason to suppose the act would have passed; and the ■ plain meaning of it is, that a majority of the board shall, for a term of years, consist of legislative appointees, holding independent of the electors and municipal authorities of Detroit.
In view of these express and clear manifestations of the sense of the legislature, I cannot come to any other conclusion than that it was designed that the persons named in the act should, hold for fixed and regular terms, and in the
We are all of opinion that the legislature is forbidden to make permanent appointments of local officers like those in question. But if the difficulty now encountered can be obviated by considering this appointment as merely provisional, no reason is perceived why the legislature may not perpetuate the practice by continuing to appoint through successive amendments of the statute. In that event, though each appointment should be called provisional, still the effect would be the same as if the legislature were avowedly exercising a conceded power to make permanent appointments.
Agreeing as I do with the chief justice on this branch of the case, and also with the opinions of my brothers Christiancy and Cooley respecting the incompetency of the legislature to make permanent appointments in cases like the present, it is quite unnecessary for me to go over the ground they have examined.
