*1 34r5 PEOPLE, ex rel. WEXFORD COUNTY ATTORNEY, v. PROSECUTING KEARNEY. Law —Political Power. 1. Constitutional power people. political All inherent is. Power.

2. Same —Judicial judiciary independent department govern- is an of the State judicial power ment and derives none of its from either departments. other Legislature—Officers—Qualifications. 3. Same — quali- legislature While can neither increase nor diminish eligibility prescribed for fications which the Constitution has Constitution, may legislature office created judgment will authorize or establish such its public policy best with or the interests accord subserve which, by.offices legislature authorize those affected authority or in the Con- express establish either virtue of itself, authority. general legislative stitution virtue Municipal Legislature. Courts — 4. Courts — only .Municipal but Courts are not the Constitution created permitted, authorized and from and derive all their legislature (Const 7, 1). art § Attorneys. Judges Municipal Courts — 5. — t the'legislature provide that power of within the It was h e an.¡ court, the Constitution office which judge of a create, be an attor specifically authorized [1] [2] [4] [5] [6] ^[7] ^[3] 14 Am 30 37 Am Am 11 Am 44 Am 11 Am Am Jur, Jur, Jur; Judges Jur, Jur, Jur, Quo Warranto Jur, Municipal Corporations References Constitutional Law Constitutional Courts § Constitutional § 17. TO. for Points Law Law §§ § et § 191 et 201. seq. 12. § Headnotes seq. 83. ney (Const 1908, practice 1; licensed law art Local 429). Acts 6. Cities. Qualifications—Statutes—Home-Rule Same — gave The home-rule act cities the to determine the time *2 nominating electing judges and manner municipal to the give right qualifica- courts but did not them the to establish contrary tions by legislature to those (Const established 1908, 7, 1948, 1895, 1; 117.28; art CL Loeal 429; Acts No § § 1913, 20, 1, 1933). Cadillac Charter eh as amended Municipal Judges Attorneys. Quo 7. Warranto — —Licensed Quo proceedings properly by warranto pros- were instituted ecuting attorney county in whieh eourt was right incumbent, located to test the of defendant not an at- torney practice law, preside judge licensed to as after his for beginning 1954, notwithstanding election term home- city rule adopted years had a charter amendment over requirement theretofore which omitted be an at- he torney establishing and local act theretofore the court containing (Const requirement still effective was 1908, §1; 117.28, 638.1, 638.26-638.29; art CL §§ 20, 1, Local 429; Acts No Cadillac Charter ch 1933). amended in JJ., dissenting. Black, Smith

Appeal from Wexford; (Howard J. Campbell L.), Submitted 3, 1956. January 6,No. (Docket Calen- dar No. 46,626.) Decided 1956. May 14, Rehearing denied June 28, 1956.

Quo by warranto People of State of Michi- ex gan, rel. Wexford County Prosecuting Attorney, against B. G. to test latter’s Kearney right office Recorder’s Court for the of Cadillac. City for Judgment Plaintiff Re- defendant. appeals. versed and remanded.

Thomas M. Kavanagh, General, Edmund Attorney Shepherd, E. Solicitor and William Pe- General, B. terson, Prosecuting for Attorney, County, Wexford plaintiff.

Charles Menmuir and H. D. Hubbel, Stuart for de fendant. judge of the re- elected was Defendant J. Kelly, 4-year for the

corder’s January commencing An information 1,1954. term, challenging- quo filed, warranto nature of in the he was the officebecause to hold defendant’s attorney qualified and licensed authorized not a required Michigan, as practice law State No 429. Local Acts appeal question presented in this main entering- finding and trial court erred whether judgment that: legislature Local Acts not, could “The qualifications lawfully office of to the attach

429, judge for no such court when recorder’s required judicial the State Consti- were office attempt would be to do so 1850 and that tution of an upon encroachment judiciary.” functions -pro- *3 art 6, 1, Constitution The State vided : power judicial Supreme in is vested one “The probate in and in courts, circuit courts Court, Municipal

justices peace. courts civil and of the jurisdiction may legis- be estabished the criminal in cities.” lature

Appellee states: governed the this case is case of believe “We Attorney O’Neill, Cook, ex rel. v. 280 Mich General, * * * 649. pattern, we that believe, Case set the “The O’Neill department government, judicial or the of its be cannot dictated to branches courts judicial department legislature; a that is the government department separate under the doc- * * * powers. separation Therefore, trine of inescapable Case controls that the O’Neill it seems legisla- pronouncement that at bar the case v. up qualification ture cannot set that must one lawyer judicial (unless a to hold until office pro- constitutional framework so is amended to vide).” worthy regard In this it is of note at April spring biennial election of an amend- adopted providing ment to the Constitution was that: Supreme judges “Justices of of all Court appointed circuit in this courts State elected or after July 1, shall at the time of such election or appointment years age be under 70 and licensed to

practice law in this State.” Appellant upon Attorney General, comments ex Cook, rel. O’Neill, v. 280 Mich as follows: governed by Attorney “Is the instant case Gen eral, Cook, O’Neill, ex rel. Mich 649? The trial court so failed it but is submitted that the trial held, to observe between constitu distinction legislative tional officesand offices. The O’NeillCase obviously distinguishable is in that it involved a only precedent constitutional office. It to con probate Supreme, viz., stitutional courts; circuit, justice courts. case does not involve This a legislative constitutional court but court, rather legislature pursuant explicit an created stitutional mandate as con set forth.”

above controlling supra, Case, facts in the O’Neill dispute. were not On November 3, James E. O’Neill judicial elected circuit' of the tenth was admitted Mr. O’Neill to the bar circuit. August motion in the 7, 1928, on circuit county Saginaw, court for but did not file *4 Supreme of the with clerk Court his affidavit showing citizenship, residence, name, his practice he which was admitted to this Michigan § required March until 1929, 13578, CL

State, as * 1932. 10, opinion, commented on this Court

In the O’Neill (pp 654): provisions, 653, and stated constitutional theory government, Federal and both “The our * * * powers. separation of one of State, is political power is in- “all our Constitution ‘Under ”’ people.” in the herent 654) point quoted (p from 6 the Court this On pp § Law, 157, 158, RCL, Constitutional follows: “ independent department judiciary an ‘The is deriving judicial government, none of its

the State * * * departments. power from either of the other way, possess body the entire In a courts departments judicial power. The other cannot power; part properly it cannot be to exercise of this assume away by legislative nor action, taken permitted interfere with the is the ” performance in the of their duties.’ courts supra, O’Neill the Court also said Case, In the 658): (pp People, Hughes, May,

“In ex rel. 3 Mich 598, we find this statement: “ concede, extent, to the fullest ‘We it is not power judiciary, legislature, in the or even arbitrary exclusions from office, to establish nex not established an- thereto, when Constitution has such exclusions nor annexed such qualifications.’ quoted above statement “While dicta at yet writing, represents it time our views * * * question involved in the on the instant case. conclusion is inevitable that under “The the divi- ju- Constitution the sion of Ann 1955 Cum practice ^[*] This of law section, Supp following with amendment of 27.72).—Reporter. admission, PA now CL 601.52 relative to (Stat *5 is diciary independent department an the' State and the no government nex power has an- for circuit in judges not found Constitution.” Case,

In the in the opinion O’Neill su- concurring written pra, by Justice from following Potter, Mechem, Public Offices and (1st ed), 65,§ Officers forth; p 22, was set

“ ‘It entirely for the fram- competent in people, their shall be the ing governments, to declare what qualifications which shall entitle one hold and office, a public exercise and in many of Constitu- been done this has with more or less certainty tions and exclusive in their and which are precision. Constitutional provisions, nature, course, are, .supreme, it is not within the power legislatures ” evade or alter them.’ supersede, from a quoted (p 664) Justice also case Potter which we in considering believe is important Scott, 145 present case, Sheehan v. Cal namely, P 350), wherein it said: (79 was “It is not by contended the appellant that the Con- stitution any contains express inhibition upon legislature against prescribing qualifications for officers whose appointment or it may election author- he ize, but contends designation the Con- stitution the qualifications of certain officers named therein cases those of an elector. an creates implication that in all other

no other qualification shall be required than

It be admitted that the leg- islature can neither increase nor diminsh the qualifi- cations which the prescribed Constitution has eligibility offices created that instru- ment; but for all offices which the legislature may authorize or establish, either virtue of express therefor authority itself, Constitution virtue of its it general legislative authority, may pre- scribe such qualifications as in its judgment will best public policy or the interests subserve

accord with of those affected thereby.” opinion concurring Another case set forth determining the intent which must be considered People, ex of the O’Neilldecision this Court, *6 Hoyne, (103 NE McCormick, Ill 421 rel. 1053, v. 413, 338),

Ann from which Justice 1915A, Cas quoted (p 666) follows: Potter “ by ‘There is a distinction between officescreated by the an power term and mode of pleasure those created statute. Where constitution and by wholly the created statute it is within officeis length legislature creating The it. may appointment at be altered ” may altogether.’ the office be abolished supra, “the Case, decided that

The O’Neill power qualifications legislature for to annex has no judges That in circuit not found the Constitution.” problem pre- not deal with the did decision, however, sented in this namely: appeal, legislative lawyer that one must be a to establish to hold the

judicial judge of the recorder’s office, for the of Cadillac. judicial pow- interesting regard in An comment legislature grant er limit the to the and the constitutional probate the courts duties of justice courts, and the but not the circuit courts, Judge Superior found in Nichols v. Court Rapids, Grand Mich follows: 187, 193,194, provided judi “The of 1835 that ‘the Constitution power Supreme Court, cial and in such other time shall be vested in one from courts as time establish.’ art 1. The Const organized by people were with the courts dissatisfied legislature, adoption of the new and, Con change by providing important made an stitution, : that v. “ power judicial Supreme ‘The is vested one probate courts, courts, in circuit and in Court, peace. Municipal justices of civil and courts leg- jurisdiction may criminal islature be established art 1. Const 1850, cities.’ given power to create courts, “Thus the unlimited away by new was taken the Constitution of legislature was limited Constitution, and the ‘municipal criminal the creation of courts civil and important jurisdiction.’ change The reason this organization stated in Streeter in the v. of the courts is Paton, 7 Mich 341. jurisdiction, “By 13 and 18 of sections article justices’ probate powers, may courts and duties of legislature. prescribed limited and power the circuit or the is found as to courts Supreme Court.” (1908) mandatory language

By the Constitution requires of circuit courts.* See the establishment Reading, Mich 158. The Kates only created but Constitution, not courts are *7 permitted, and said courts derive and authorized all their † legislature. Dunham from the See Tilma, 191 Mich 688. Appellant to attention “that this calls this Court’s long history legislatively created of- has a State qualifications including judgeships, in which fices, by legislature the without have established been question.” statement is sustained when we This following (CL PA 1879, acts: No 76 consider seq. seq.] ), [Stat § § et Ann 27.3711 et 1948, 729.1 police city Rapids; creating a court for the of Grand (CL §730.1 1954, No 299 1948 and CLS 1911, PA seq. Supp [Stat et Ann and Ann 1955 Stat Cum justices seq.] ), regarding peace § et of the 27.3751 population; (CL PA 80,000 No 353 1913, in cities seq. § seq.]), § [Stat et Ann et 1948, 729.101 27.3741 * 7, 7, 1, seg.—Reporter. (1908), (1908), 8 et art art Const Const §§ § 1.—Reporter. † (May 345

688. police regarding from to 125,000 200,- courts cities (CL population; PA and 1933, 000 1954, No 269 1948 CLS seq., by § 1955, 730.101et as amended PA No 75 Supp § [Stat-Ann et Ann 1955 Cum 27.3831 Stat municipal seq.]), originally from to courts in cities as population; 100,000 160,000 1929, PA No 260 seq., (CL .§ amended 728.1 et as 1954, CLS by [Stat Ann 105, Ann and Stat PA Nos seq.]), Supp §27.3651 common et as Cum having pleas population of over in cities courts 250,000. controlling in this decision

We reiterate principles of case of law set forth California supra, that: Scott, Sheehan v. legislature “It can that the nei- admitted qualifications which

ther increase the constitution has nor diminish prescribed eligibility to instrument; but for all created offices legislature may officeswhich the authorize or estab- authority express therefor lish, either virtue of of its itself, in the constitution virtue may. qualifica- prescribe legislative authority, it public- judgment with tions will best accord as in policy those affected subserve the interests of .or thereby.” finding that the trial court erred in The constitutionally Local Acts No could not qualification legally discussed. above attach e appellee contend that Th court and trial (PA [CL 117.1 home-rule act seq.) seq. ] (Stat gave et Rev 5.2071 et Ann 1949 city amend of the the electors in, question the charter and delete judge. office * Cadillac, charter home-rule *8 adopted 9, followed 1913, the electors .December Reporter. amendment, ^[*] See CL PA 1948, 1954, No.75, §117.28 (Stat does not bear Ann 1949 upon the Rev §5.2107). question here.— The 1956j Kearney^ v. legislative pro charter of 1895 and contained a (chap §1) requiring the

vision recorder’s court judge city. practicing attorney admitted, to be an of the April

This section was amended 3, 1933, on requirement deleting a 3-to-1vote of electors, prac that the be an recorder’s admitted, attorney, ticing providing and that: “Such court ‘the shall be entitled recorder’s court general of of and Cadillac,’ shall have such powers*- powers jurisdiction and such in civil and and matters, criminal Michigan are of laws of State upon justices peace conferred of the of townships.” adopted April amendment was not years, attorney challenged for over and both layman have served in the office recorder’s court .judge since 1933. Saginaw, Gallup City In 170 Mich 195, v. said: this Court departing Constitution, “The of the framers things providing

from the is order for what old popularly known as ‘home rule’ or ‘freeholder’s autonomy municipali granting thereby charters,’ not deem it to make the constitutional did wise ties, required provision subject self-executing, on the but passed, outlining preliminary, general law to be defining witbin followed, the course to be certain sphere delineating action in limits, system comprehensive The new' is. one of terms. powers, subject only grant rights instead of restrictions, enumerated certain former method rights only granting enumerated definitely specified. assume must We and the with, passed it that intent and construe act accordingly.” Rap- City Court, Eaton in Bostedor held This provisions home- that the ids, Mich *9 690 345 provi- abrogated act not charter

rule could sions. against right

The electors’ of amend- restrictions regard municipal ing in to courts and the charter legislative creating the the insistence that laws mu- nicipal effect, should remain force and courts act, 28 which set forth in section of the home-rule provides: may organized, all which “In cities now hereafter provisions or their under the amend of this revise charters provisions present law, all of the of act, special, any general applying such

whether pow- city ers, of the qualifications, relating office, to the term of compensation justices jurisdiction, and of duties peace the conduct therein, and constables and proceedings, prosecutions such of all and before suits justices peace appeals therefrom, and all and proceedings creating and the laws thereof in and courts city, in full force remain shall except as the time manner of effect, judges, justices nomination and elections (CL §117.28 [Stat Ann 1949 court officers.” §5.2107].) Rev provision referred to of section was The above Attorney Bolton, v. 206Mich 403, 411, General wherein this stated: Court purpose language of the Con- “In view of regard employed this sec- stitution, the words we meaning law as that cities tion determine nominating the time and manner justices peace.” electing give of the home-rule to the act did Section right time determine the and manner of cities give judges, electing nominating and but it did not' qualifications con- to the cities the to establish legisla- tra to the established ture. requir- provision No 429,- Local Acts

ing recorder’s attorney qualified not the elector- was deleted he a April 3,1933. to the charter on amendment ate’s prosecuting’ brought by proceeding This county attorney circuit court of of Wexford county, PA ch under Wexford *10 pro- ), (CL § 27.2315] § [Stat Ann which 1948, 638.1 : vides quo “Any of a warranto information nature Spreme

may in time filed in either term Court, be the by attorney general, against in- vacation, the or upon upon the relation his own or dividuals, relation, any private party, applying to of and without such following cases; in of the either leave, usurp, any person into, shall intrude “1. When public unlawfully any civil office, or exercise or or hold any military, State; or within this or franchise any corporation by authority any office created this State.” of judicature chapter of 38 of and

Sections proceedings permitting in the circuit court, act, such provide: quo information the nature 26. An “See. may filed in circuit courts warranto be the several Supreme State, Court, well as in the

of this all appli- provisions chapter of the this shall be proceedings courts, circuit to such such cable upon judges of the conferred the several all hereby chapter Supreme by are conferred Court this respec- judges upon several circuit courts tively: That no information shall Provided, against any by such circuit court and allowed be filed any any Supreme judge Court State officer.” or ) 27.2340]. [Stat § (CL Ann 1948, 638.26 chapter be 27. Informations under this the “Sec. attorney proper prosecuting coun- filed ty, any citizen or that on his own relation, any county, of or, court, without leave of the citizen county by special leave the court or a 27.2341].) ..§ [Stat thereof.” CL 638.27 Ann agree with We do not the trial court that this brought only proceedings against action could days of Cadillac within 30 after the charter adopted amendment in 1933. The court’s conten regard tion in this would if have been correct * ** proceedings involved “material fraud error county,” pro committed at in such election (Stat 1948, §§638.28, vided CL 638.29 Ann 27.2342,-27.2343). §§

Reversed and remanded with instructions to enter judgment opinion. in accordance with this J., C. Dethmers, Sharpe, Boyles, and,Carr, JJ., with concurred J. Kelly, (dissenting). J. first I think de Black, question compelled by cisive is whether we are law (CL §117.28[Stat ). § 5.2107] Ann 1949 Rev *11 overrule the twice-recorded will, of the electorate of laymen attorneys that Cadillac, well as be'and eligible city remain under the charter to the office judge municipal of of court of I find Cadillac. compulsion. no such !

By legislative (Local Cadillac’s charter Acts 429) provided: it hereby “There shall be and is established a record- city, er’s Monday said and on the first of April, be years every 1896, and 6 thereafter, shall there judge a elected of the recorder’s court in said city, practicing attorney who shall an be admitted city.” said of having The so-called act home-rule been enacted in (PA seq. [CL § (Stat 1909 No 279 et 117.1 seq.) ), ] Ann Rev et 5.2071 and art 8,- 21 been having Const amended in 1912 (1908) to read as follows:

“Under such general laws, electors of each city and shall village power authority have and and amend its and frame, adopt charter, to amend an charter of the or heretofore existing city village or for the granted passed legislature govern- regu- ment of the lai’ly' or city village and, through and ordi- constituted all laws authority, pass concerns, subject to its relating municipal nances State.”, of this the Constitution laws general December the electors of Cadillac proceeded “home-rule” charter. adopt comprehensive 1913 to a substantial incorporated The 1913 charter without the mentioned of change above-quoted portion by authority charter. Thus and con- legislative adopted “home rule” initially stitutional Cadillac her recorder’s court requirement an attorney. 3-to-l Cadillac, by 3, 1933, the electors

April 1 of chapter to amend section vote, proceeded read as follows: 1913 charter so that same re- be, hereby is, “There shall .established at the Cadillac, first court of the city corder’s every charter and held under this election a recorder be elected thereafter, there shall 4 years elec- qualified be a resident who shall in said city, ” tor said considered above, quoted 1912 amendment amended, act gave home-rule with the charter, her then to amend the clearly-worded was “granted as we have seen charter which for the government passed laws to the Constitution city,” “subject whether question This leaves bare this State.” *12 Mr. which Justice 32), (PA 1927, the statute Kelly in 1933 nullify operated relies upon, to. Michigan Reports.

charter-amending reg- vote of Cadillac’s electors as istered at the time. The statute then read and still (CL §117.28 [Stat reads 5.- Ann 1949 Rev 2107]), far so as concerns this ease: creating municipal pro- “All laws courts and the ceedings city, thereof shall remain in full force effect.”

By people 1933 charter amendment the repeal destroy Cadillac did not or the law which municipal proceedings their created there- contrary, they expressly in. To the retained it. They eligi- did, due, was their home-rule ordain laymen bility attorneys as well as for the office judge (municipal) .their recorder’s court. So effectively long as the law retained creat- ing years it its court—and- for 23 seems to have suc- cessfully attorneys pre- done so with and without siding judge people thereof —its were not then and guilty infringement are not now of a law purpose simply of this State of which was that preservation functioning jus- of continued tice and courts identified therein. preserve creating proceed- To law a court and its ings thing. preserve limiting eligibil- is one To law ity judge of candidates for thereof is another. The say, today say, not statute did does not laws stipulating judges of courts, mu- nicipal shall remain in otherwise, effect. All that preserved creating inviolate is law the court and proceedings. qualification

The 1895 act distinct from the now being fully pro- considered created the court and its ceedings. require, The act of creation did not completely it would have been effective without, provision attorney. that the be an The dis- agreement my experiencing we are is, in view, due position, provision. the act of 1895, of such *13 Keabney. 695 provision incorporated If been the had in a section separate 1 of title of from section the act, or if separate a it been included in had title of the act, it had ordained later if been local it act, altogether unlikely quo proceed- this that warranto ing been would have instituted. general designed interpreting solely

areWe a law continuity creating municipal toward of laws courts proceedings. and their All else so far-as this case suppose left is concerned is to local will. Let us provided act of 1895 that recorder be of a cer- age, tain and now outmoded minimal or that his salary annual electors who be certain amount deemed,

usually dig money payment for high day. thereof, too or too low for this modern Suppose again provision that act dictated place quartering of in a and under con- longer ditions that are no available in Cadillac. Would such lawbe of creation court? These questions light answer themselves of the men- tioned That statute limits statute. its re- upon preservation striction local control to of con- integrity pro- tinued of the court and its life ceedings. put Since the has no more duty that than in words, it is our under the rule presume legislative eccclusioto intent of exclusion, part purview from of the statute, law or necessary not law to the creation of courts proceedings thereof. Kelly points opinion, in his that Mr. out, Justice April «Michigan people amended their provide justices Supreme Constitution to ap- judges of all circuit courts elected or Court years age prospectively pointed less be than practice they be “licensed law and that this (and I is the will add salu- State.” Such recorded only tary) Michigan applied will of as her people Supreme will and circuit courts. just Cadillac, as to their own court, is likewise plainly of record. did not wish in Cadillac 1933— registered overwhelming majority or continue vote, to or to re-enact the 1895 restriction against elective-appointive eligibility layman of a municipal judge. to essentially their With that decision, affecting only, one of home rule we have no to interfere. *14 attorney

If in the of future no licensed Cadillac things will for run recorder —and such have been considering salary*— known to occur munificence of go must Cadillac without her chartered court unless legislature city until the

and relents and relieves the legislation white-pine days? My from apparently of Brothers

answer affirmative. majority right, passing If it is decision be day question strange not of the did reach that the county until more even the circuit court Wexford elapsed following allegedly 2 than decades had illegal many good charter amendment of 1933. A judgments, jail good many and fines and sentences, judicially pronounced have been in this entered past years during the 23 a suc- recorder’s court laymen. disqualified The re- rule cession now protect judg- officership specting such de facto but that from collateral attack ments sentences Kearney personally far Mr. is no shield so is He administered the officeof concerned. has record- continuously right since er’s 1948— according questions well to this record—and no recently. by today’s majority Yet, until asked rul- shall be me that we annum. prospective recently to freeze the viting ^[*] The recorder’s for fathers lay candidates should, act resoundingly voiced, as well as local act of 1895 “as the council shall of 1895 into included. The will of the salary at. for professional is fixed same recorder Cadillac’s provided time, prescribe.” that candidates prospect may forthrightly judicial present that people having salary-fixing for recorder. the recorder’s charter at process, If advise our not be too in- majority it seems to authority $600 been so salary city’s per is v. pro ing, position. place unpredictable him time an we nunc salary May he for he retain, instance, years? past has earned received this freely just It is admitted that the considerations expressed must be cast aside if clear force of properly interpreted law oth- we have no alternative Kearney municipal er than that of ouster Mr. judge special point of Cadillac. I nevertheless to them as may

reason due care to avoid what other- judicial wise be cavalier reversal of the elective and forcefully decisions that are shown in this record. palæs this Withal, Court better had tric effort to the home- strain, from.section (CL §117.28 [Stat rule act Rev Ann 1949 §5.2107]), an that inference has permanently clamped require on Cadillac this attorney ment of administration an lim jurisdiction ited of her court. The in recorder’s tervening rule of applies construction here— that liberality spirit” in “the home-rule of 1908— (Conroy seems to atbe variance with such effort City 221). Creek, Battle 314 Mich 210, I would affirm, without costs. *15 J., concurred with J. Black, Smith, part The late Justice Reid took no in the decision of this ease.