Todd v. Hull

Alger Judge. Santamore v. Circuit sign exceptions and a bill even after the ordered time has if expired, bnt there has been no extension of the time beyond 20-day period power settle a bill of does not exist.” exceptions Judge, Walsh v. Kent Circuit

See, also, 225 Mich. 51.

The petition is reasons. foregoing denied Butzel, J., Wiest, Bushnell, Sharpe, C. and Potter, North, and concurred. McAllister, JJ.,

TODD HULL. Statutes —Immediate Effect Provision —Constitutional Law— Equally Divided Court. providing

Decree provision immediate effect of statute creating public service abolishing public commission and util- ities commission was equally constitutional is affirmed (Act divided court No. 1939). Acts Pub. Appeal from Ingham; Carr (Leland W.), J. Sub- mitted March 1939. No. 117, Calendar (Docket No. 12, 1939. 40,467.) April Decided

Bill by Paul H. Todd M. Joseph Donnelly, members of and as Public individually Michigan Reports. against Ivan Hull others Commission, Utilities null void the immediate effect have declared injunction provision for for an and statute, of a appeal. other relief. Bill dismissed. Plaintiffs equally divided court. Affirmed Zwerdling, plaintiffs. Joseph Attorney and E. Read, General, Edmund Thomas Shepherd At- Prettie, Kenneth G. Assistants and torney for defendants. General, Joseph H. and M. Don- Paul Todd J. Potter, individually nelly, of five as two out members and public Michigan filed a commission, utilities bill asking complaint against the court to defendants provision No. of Act effect declare Supp. (Stat. Ann. 1939 Cum. Pub. Acts 1939 3, seq.) 22.13[1] void; to re- § et unconstitutional entering perform- upon or from strain defendants imposed upon appointees ing them as the duties temporary 1939; Pub. Acts 3, under Act No. injunction restraining pending suit, defendants, public entering of the officeof from the duties any restraining and, event, service commissioners ap- entering upon their duties as defendants from pointees until de- under Act No. Pub. Acts proper right established in fendants’ to so act is legal proceedings; for other relief. setting up that Act No. answered,

Defendants Michigan public util- Pub. Acts abolished the public ities commission and created duly legally they commission; service that were appointed members of the service commission they pursuance terms; that had under and its attempted legally perform the duties their Todd v. Hull. plaintiffs unlawfully holding officeand that were right. officeof service commissioners without plaintiffs’ Defendants also made a motion to dismiss complaint allega bill of for the reason all that impugned tions contained in the amended bill which good the motives of faith of the were impertinent and irrelevant and should be stricken might bill; from the amended that the court not in quire good into such faith; motives that there equity was no on face of the bill; amended questions appeared no of fact were that it involved; from the face of the bill and the face of the appropriations that the statute made (1908), and, therefore, under Constitution art. give §5, 21, the was authorized to im appeared act; mediate effect to such that it the act question preservation public in of the safety; clearly health and that it did not manifestly appear, beyond all facts doubt, such properly pleaded as were in or in amended bill provisions the title and of the act that its enactment immediately necessary preservation was not public peace of the clearly health, nor did manifestly appear therefrom that prerogative giving abused its in the stat ute immediate that the effect; amended bill of com plaint attempt by injunction try was an to title may only quo office,which be tried in war proceedings Supreme ranto instituted in the Court attorney gen on the State, information of the pursuant Comp. (Stat. eral, § 3 Laws 15296 1929, 27.2340). § Ann. brought hearing

The case was on for trial duly argued, opin- court, trial an and the court filed pursuance ion and entered a decree thereof dis- missing plaintiffs’ complaint. of bill 288 plaintiffs appeal, contending

From this decree, making Act No. Pub. Acts is not an 1939, appropriation meaning contemplation within the (1908), § of the Constitution art. 5, 21; that Act No. immediately necessary Pub. Acts public peace, safety health or contemplation

within of the' Constitution; and that exceeded its constitutional au- thority giving effect such act.

1. The title to a officecannot be tried or chancery. City determined in a court of Detroit Stenglein v. Board Works, Public 23 Mich. 546; Saginaw Judge, Circuit 440. Mich. In the latter case, the court said actual incumbents protected, pending an officecould be contest pos the title thereto, from their interference with session and the exercise of functions; their that the granting injunction of an in such cases did not de question merely termine of title but went to the protection present against incumbents possession interference of claimants out of whose yet Brady title was not established. v. Sweetland, High, Injunctions (3d p. Kan. Ed.), 41; right § plaintiffs injunction 1315. The to an until a determination of the of title to the office, under facts in case, was established. The jurisdiction determination dis poses of this case. power legislature legis-

2. The of the to enact the lation in is not controverted. It is claimed legislature authority giving exceeded its act immediate effect and the immediate effect clause of the statute is unconstitutional and void. passing constitutionality

In on the of statutes, nothing but a clear violation of the Constitution will authorize the courts to overrule the will. Todd v. Hull. is a "Wherethere reasonable doubt as to the constitu tionality of act, it be must resolved favor of the act. Albert v. Gibson, Mich. 698. WThena litigant comes into court to ask court to declare particular being beyond statute null and void, as power legislature pass, the precisely he must show conclusively beyond it is such power. Darling, People, City rel. ex v. Warden of App. (139 Supp. 277). Prison, 154 Div. N. Y. presumed A will statute be constitutional contrary clearly appears. the courts unless the Scott Thompson v. Executors, Smart’s 1 Mich. v. 295; Auditor In General, Mich. 624. of doubt, case every possible presumption clearly inconsistent subject language with matter of the act is constitutionality. to be made in favor of its Sears presump Cottrell, v. 5 Mich. 251. All reasonable indulged tions intendments must be in favor of validity only act, and it is in when its validity appears clearly so as to leave no room for provision reasonable doubt that it violates some the Constitution that a court will refuse to sustain validity. Attorney its rel. General, Barbour, ex Lindsay, presumed 178 Mich. 524. The statute is to be constitutional and will not be declared uncon clearly beyond stitutional unless doubt. so a reasonable (61 Bowerman Sheehan, 242 Mich. 95 A. 859). L. R. provides

The Constitution : passed by go “No act into shall ninety days adjournment effect until after the final passed session of which such except making appropriations act, such acts immediately necessary preserva- such acts public peace, tion of the been health or have legis- immediate effect action (1908), §1. lature.” Const. art. 5, “No act shall take effect or be in force until the expiration ninety days from the end of the session passed, except legis- at which the same is that the may give making ap- lature immediate effect to acts propriations immediately necessary and acts preservation public peace, safety health or by a two-thirds vote the members elected to each (1908), §21. house.” Const. art. 5, many There are rules relation to the construc- tion statutes similar to that involved. majority jurisdictions, question

In a may given whether statute be immediate effect, analogous provisions, under upon constitutional rests theory necessity that the existence such question authority is a of fact and the to determine such fact must rest somewhere; that the Constitu upon any tion does not confer it tribunal and it necessarily depart must, therefore, reside with that government ment of the which is called to ex power. ercise legis It is a of which the judge, lature alone must be the and when it decides the fact to exist, its action is final. Hutchens v. (23 355). Jackson, [2d] 37 N. M. 325 Pac. This was substantially reasoning the basis of the of Justices Attorney and Bird General, ex rel. Ostrander Lindsay, supra, Barbour, v. where 546, Justice said: Ostrander “"Whether an act of the is one imme _ diately necessary for safety finally health, is a to be legislature. determined Three-fifths *

mediate effect house of sufficient ney General, effect. Three fifths of the members of ^[*] Act No. number. Const. ex rel. legislature, Pub. than two thirds of the members-eleet of each more Acts Barbour, the number the act under art. Lindsay, necessary § each house would 21.—Reporter. consideration passed give in Attor im in Todd Hull. opinion having given the each house members necessary immediately one in is the act public or health, preservation of the the may deter- safety, aside such or set review no court mination.” namely, should that the view,

Another any independent by itself, the be determined presumptions repre- constitutionality, is well its by opinion v. Goodman, rel. State, ex sented 641). (187 144 Pac. Mont. Stewart, particular a consideration value results No of au no line because from other courts of cases holding represents precisely of this thorities subject general in 59 C. J. discussed is The court. S.), (N. p. § L. R. A. 50; 50 p. L. R. C. 1143; 25 L. R. 519. 26; 7 A. B, 15, A. 1917 R. 212; L. adopted rule not the this court is The rule by Attorney General, stated Justice Ostrander by supra, Lindsay, rule nor it is the Barbour, rel. ex in that case MoAlvay Chief Justice announced by held: who may legislation only Michigan classes two “In of all vote given a two-thirds immediate effect

be authority to de- is and no elected, members emergency.” clare Attorney Barbour, rel. General, ex court, The not supra, could Lindsay, held limita- impunity disregard constitutional with clearly give to acts immediate effect and tions necessary immediately safety.

public peace, health power, reasonable within has inherent The State regulate proper and control limits, power operating The its borders. utilities within may legislature, exerted resides with directly by authority ad- either power ministrative bodies with to that endowed may regulations by ap- end. enforce The its State right propriate penalties. regu- State police power. late utilities is founded p. police power C. J. and cases cited. The power government inherent in a to enact laws, promote limits, within constitutional the order, general morals, health, so- welfare of ciety. applied powers As States of American the term is union, also used to denote governmental powers those inherent which, under system by the Federal established the Constitution of the United are reserved to States, the several p. States. C. J. 904. police power Supreme is thus defined the

Court of the United States: power very “This is, and must be from its nature, incapable Upon any very exact definition or limitation. depends security the of social order, the life and health citizen, comfort of an thickly populated community, existence in a en- joyment private and social life, and the beneficial property. says use of ‘It extends,’ another eminent judge, protection ‘to the of the lives, limbs, health, quiet persons, protection comfort, and of all and the * * * property persons of all within the State; and property subjected and are to all kinds of restraints general in order burdens to secure the comfort, prosperity perfect health, of the State. Of the right to do this no ever upon acknowledged general was, principles, or, ever persons made, can be so far as natural are con- ” Slaughter-House cerned.’ (83 Cases, 16 U. Wall. S.) 36. Todd v. Hull. (46 S.) In the License 5 How. Cases, U. 504, 583, supreme court of the United States, Mr. Taney, Chief Justice said: police powers They are the “What of a State? nothing powers govern- are more or less than the every sovereignty inherent in

ment to the extent of passes quar- its dominions. And whether a State a punish law, antine or a law to or offences, to estab- justice, requiring lish courts of or certain instru- regulate ments recorded, or commerce every within its limits, own case it exercises powers; say, power same ereignty, that is to of sov- govern power things men with- in the limits of its dominion.” system, power lodged

Under our thé with government. belongs branch It department to exert what are known police powers pri- of the State and to determine marily appropriate what measures are or needful protection public morals, the public safety. health, If, therefore, statute purporting promote pub- to have been enacted to public lic health, morals, objects, has no real or relation substantial to those palpable rights by a or invasion of is secured duty fundamental it is law, of the to courts so adjudge, thereby give effect to the Constitution. Mugler Sup. (8 273). Kansas, U. S. Ct. many changes

The act in makes existing provides: It law. (of public

“No member service commission law) created shall serve as an officer or com- any political party organization” mittee member of provision pre- of while in office. This the law was to utilization, public vent the the office of service sandbagging pub- purpose of commissioner for the purposes. campaign lic utilities for public commission no member of the service That any any employed other shall “hold officeor be department or institution” commission, board, Michigan public utilities Members of the State. appointed holding office, commission been had, while during part they of their to a other officeswhich held term.

“No or em- commission member shall be retained ployed by any utility public public or sub- service jurisdiction ject and control commission to the acting during commissioner, as such the time ishe pre- to thereafter.” This was months six using public office their service commissioners vent advantage presently private within .either expired. their office after term months six member who is commission, member of “No a. practice Michigan, shall of the bar State attorney profession or act as counsellor his during any mem- time he is a of this court State apply even This seems said commission.” ber of utility public in- matters are not in cases where designed compel the members and was volved, job. give their entire time to the the commission is service commission If a member pro- partnership partnership, such member of a a utility practice. engaging from hibited goes staggered out so that one The commission is year, al- that the commission will of office each so ways experience on men have at least four with commission. squabbles over who

To obviate on the commission provides shall be the statute thereof, chairman designate governor shall the chairman. salary reduced commissioners is year.

$7,000 $6,000 Hull. Todd v. Michigan public serv “Any of or decree order subject in the to review be shall ice commission reviewing by orders provided law for manner now Michigan or railroad commission of the decrees and Michigan public This utilities commission.” making evidently purpose of orders relating Michigan public commission service highways public reviewable on motor vehicles Lafayette chancery, rule to obviate Storage Public Utilities v.Co. & Transfer Com’n, 488. Mich. his public is devote commissioner service Bach office. the duties time to by moneys All service commis- collected monthly paid to the treasurer State are be sion receipt therefor. taken general appropriates from the $10,000 The act setting up purpose the commission fund purposes designated by statute. and other notwithstanding provides it stand The act shall invalidity any particular and it is section; immediate effect. ordered to take an but that the act makes There is no making appropriation appropriation. An act a act used Constitution which assigns particular apart purpose to a sets use money may treasury out of a sum of what be specific purposes objects,- the State —-an authorizing expenditure act funds for public purpose. pp. C. J. 1458-1460; 6 C. J. S. pp. 123-125. maldng appropriations may

Acts imme- provisions diate effect in accordance with the above-quoted. Constitution It is contended plaintiffs making appropriation that the subterfuge. was a mere But this Michigan 288

532 may which we of motives involves impugn. inquire or into not legislature, opinion Suppose, of Michigan public not func commission did utilities thought it ne should; it that as the tion regulations proper for glected rules to make gas proper appliances use the installation of inspection for the transmission of installed facilities adequate gas gas, fixtures, of the installation of compli proper pressure, maintaining facilities for permitted gas or com service, with rules of ance panies of dis and maintain a schedule establish criminatory regulations and or establish rules, rates or of service were unwarranted conditions which opinion legis discriminatory; or that, permitted to the motor vehicles devoted lature, transportation persons property at to run

of speed operate in or an overloaded rates of excessive safety adequate facilities for without condition, transported, persons property that motor or of unsanitary operate permitted iii busses were adequate stops personal com condition, without pas endangering the health fort and thus governing sengers proper transmis rules ; that electricity installation of electrical and the sion equipment whereby imposed enforced, or

were County endangered, in Lenawee Gas lives were City Adrian, v. 209 Mich. & Electric Co. 52 (10 Rapids Light 1328); Gas A. L. R. Pettersch v. Grand Nephew 44); v. N. C. A. Co., Mich. 277 C. 245 (28 Co., Power 283 Mich. Russell v. Con Consumers 12; from the Co., Power 287 Mich. sumers 154; energy, through negligent fail electrical use safety en act, ure of the dangered, commission Railway 190 Mich. Co., as Kruis v. 105; Telephone Co., Mueller v. Citizens Mich. 173; 230 533 v. Hull. Todd (Ann. Bay City, City 164 Mich. Johnson v. Michigan 866); Edison Eastern v. Cas. 1912 Sumner B, 84); (12 Brabon v. N. C. A. Mich. 169 C. o., C Light Eaton v. 697; Mich. Co., & Power Gladwin 549; Lamb Con Co., 256 Mich. Power Consumers through that, 228; 286 Mich. Co., sumers Power telephone companies, regulation improper in Telephone Hovey juries resulted, as discriminatory rates Co., Mich. or that telephone between made without reason service were legislature If the or localities. communities things any which of these, these, satisfied of health and relate to the right, Constitution, the under have a clear would and to create commission utilities abolish give desire, and it should so a commission if new providing immediate effect. for the same law expressed his views writer heretofore has inquiring into the motives of enacting may in have which actuated Young City Mich. Arbor, Ann 267 statutes. v. of Fitzgerald, Mich. v. 270 659. 241; C. F. Co. Smith original nothing in what was said There was new or absurdity a in in cases cited. is manifest There jury, allowing any to de- either court or tribunal, constitutionality testimony of termine a (32 People L. R. A. Smith, v. 108 Mich. law. nothing Rep. 715). Courts have 62 Am. St. legislators nor reasons do they with motives may polar passing a star law. The have interpretation guide language is the them always is, Constitution itself and the sole destroy abridge right? Todd Does the law v. Boards Election 104 Mich. 474 Commissioners, (29 330). L. R. A. People,

In ex rel. Ellis, Calder, 153 Mich. 724 (126 Rep. 550), good legisla- Am. St. faith of the repealing ture in a statute was before the It court. was said: “In this connection we notice the contention

respondents repealing legisla- in that that law the good say ture must faith. It is sufficient to conclusively presume that the courts must that good did act faith. Under rule authority above-stated the courts no have to investi- gate question.” People In (Ann. Gibbs, 186 Mich. 127 Cas. 830), it 1917B, was said: “Courts are concerned with motives which legislative body enacting actuate members a law, but in the results of their action. Bad motives might inspire appeared a law which on its face and proved valid a bad beneficial, while and invalid might passed good law tent and be, in- is, sometimes with

the best motives.” Sonzinsky (57 In States, v. United 300 U. S. Sup. 554), it Ct. was said: “Inquiry may into the hidden motives which move Congress power constitutionally to a exercise con beyond competency is ferred it the of courts. (75 S.) v. Veazie Bank 8 Fenno, Wall. U. Mc 533; Cray Sup. (24 States, v. United 195 27, U. 56-59 S. 561); Ann. 769, 1 Ct. Cas. United Dor emus, States v. Sup. (39 214); Magnano 94 93, 249 U. S. 86, Ct. See (54 Sup. Hamilton, Co. v. 292 45 44, U. S. Ct. 40, 599); 455 cf. Arizona v. 283 California, U. S. City Sup. 522); (51 Co., Ct. Smith v. Kansas Title 243); (41 Sup. Freed, 210 Weber Ct. U. S. (36 Sup. Ann. Ct. Cas. 325, 329, U. S. S.), (U. 317); 1916 130.” 6 Cranch C, Peck, Fletcher v. authority pass legislature act to the question plaintiffs’ in The basis is attacked. Hull, Todd legislature its con- exceeded that the is contention authority giving immediate the statute in stitutional effect. is or not is constitutional a statute “Whether question power; always question a is, a particular legislature in re- in case, the the

whether subject-matter manner spect the act, to the accomplished, object is to be its which kept enacting the constitu- has within it, mode and observed the constitutional condi- tional limits tions. any In in which this is answered case liberty to are not at affirmative, courts They proper power. inquire into the exercise of must assume that properly discretion been has required, exercised. If evidence supposed legislature must be when was that it was before passed; any special finding act was and if required passage par- warrant passage ticular itself it Wouldseem that the act, of the act might equivalent finding. held to such And although urged it has sometimes been at the bar ought inquire that of the the courts into the motives corruption where fraud and were alleged, allegation and annul their action if the were argument established, ceded has no case been ac- judiciary, they have never al- inquiry upon. lowed the to be entered The reasons preclude the same here as are quiry those which in- governor into motives of the in the ex- exclusively. of a ercise discretion vested in him He responsible for his acts in such a case, not to people.” Cooley, courts, but to the Constitu- (6th Ed.), pp. Limitations tional 220-222. plaintiffs

The claim that are entitled to a refer- effectually disposed language endum is the Constitution itself if because had right give effect, negatived then it idea of a referendum. There good policy permitting

is reason and sound for not making appropriations, a referendum acts police power, public acts for under the reason the peace, safety directly Ap- health and involved. propriations judgment are necessary appropriate govern-, functioning may per- ment, which functions be carried out and only by formed individuals. exists Government largely public peace, maintenance safety health and no inhabitants, one will government contend either that the should cease to perform proper its functions that safety endangered health or should be while people up par- make their minds whether a ticular act of the should be im- mediate effect or not. majority opinion Attorney ex General, rel. Lindsay, supra,

Barbour, v. 540, said: opinion every “I am of that intendment should propriety legislative be tion. taken favor of the ac- In cases of doubt, the courts should never interfere to thwart will, but, where the action constitutes a clear violation of the limi- imposed, unhesitatingly tation it should held be invalid.” particular questioned,

Of the there it was said: certainty “I do not think it can be said with immediately necessary the act in was not public peace, health, only and the courts should interfere where ’’ that conclusion is inevitable. Simpson In Paddock, 195 Mich. the statute there under consideration was held invalid because special legislation, general it was rather than a law- legitimate enacted in the ex- interest under a 537 v. Todd Hull. police power general for the ercise welfare throughout people palpable the State, and a attempt regulate the internal affairs of cities amounting to unwarranted interference with their rights self-government emphasized of local in the Constitution. People

In it Urcavitch, v. Mich. was held declaring inoperative that before a for the rea- law given son was immediate effect: clearly appear “It shoitld that the has * * * prerogative respect. its in abused this The prompted pas- necessities situation which sage of the amendment were doubtless then before legislature, showing and we do not feel holding on this record would in that the warrant us justify giv- situation affairs at that time did not ing it immediate effect.” People

In Stambosva, 210 Mich. 436, a similar question was before court, it was said: “Concededly emergency or immediate neces- sity legislative in question, was the first instance a clearly, legitimate we think, under the intend- presumption or. ment, inferences to be made and from the drawn situation in disclosed favor of the propriety of such action the court cannot legislation question hold that in a constitutes ’’ clear violation the limitation invoked. People Bodjack, In Mich. giving to the effect

again before the and it court, was said: spend subject,

“We shall no time but opin- shall hold that, for the reasons stated those question, there is no ions, merit and we hold adversely to the contention of the in that defendant regard already for the to.” referred reasons " validity of involved last three eases legislature.

liqnor immediate effect law Though, opinion and this clearly very there involved were the statutes court, necessary immediately super- they were health, repeal. by prohibition, followed

seded which was pro- Newberry an act Starr, In 247 Mich. v. viding dis- of certain school the consolidation beyond upon ground it was tricts was attacked give power immediate it quoted approvingly majority opinion The effect. Lindsay, Attorney Barbour, rel. v. ex General, supra, People supra, Urcavitch, v. and mentioned supra. People It said Stambosva, v. was and important relat- most duties school districts have important ing preservation of health and less to the respecting peace safety, that: duties and and agencies important hav “The act relates to State peace, public ing health, to do with safety. and legis- of the must resolved in favor “Doubts every be taken in its intendment must and lation, ’’ favor. Wyandotte Reichert, v. In Industrial Bank of prohibiting that a statute it was held Mich. banks in this State was of more industrial creation safety there- to the and, which related one legis- given effect fore, could be immediate public safety had to do not lature. It was held that only safety protection persons, but with the property, also of their and it was held that a well- system banking very do with ordered had much to safety property an act therefore, and was, given which could be effect immediate within Todd Hull. by Attorney General, ex Bar rel. rule established People supra; supra; Lindsay, v. Stambosva, bour, v. . supra Newberry Starr, (74 253 Mich. 216 A. L. R. Lahr, In Naudzius v. abolishing right 179), A. an act 30 N. C. C. ordinary passenger negli guest of gence of a action validity at the court. Its was was before ground ef it was tacked held Constitution, and was fect violation It said of the action of valid.

giving immediate effect: attempt province

“It court to is not the accurately adjudicate the immediate ascertain particular, necessity if act, terms of .but subject has a real and substantial of the law all doubt health, relation legislative judgment in favor resolved will be ” necessary.’ ‘immediately that it is theory upon act was held valid was which this discourage collusion and fraud to that it tended litigation, obviously pertinent therefore, was, and say, beyond doubt, “we cannot and immediately necessary to that end.” it not that was Trust Co., In Detroit Co. Stormfeltz-Loveley 1263), validity (88 A. L. R. of Act 257 Mich. 655 the Supp. (Comp. No. Pub. Acts 1931 Laws 111, 1935, seq., seq.), § § 14380-1 Ann. 27.1161 et was et Stat. of the upheld unconstitutional, attacked as but the action giving legislature upon it immediate effect was public safety by theory giv the it affected the property, citing ing protection Industrial Bank Wyandotte supra, Reichert, and Naudzius v. supra. Lahr, Michigan, In 168, Krench 277 Mich. v. State of validity the of Act No. Pub. Acts was Michigan Repobts. 288 given ground immediate was the attacked legislature. there said: It was effect 280) (Act No. should the act of “"Whether leg- given for a show- effect or was immediate have been and, in absence islative determination ing power, deter- of an abuse of must stand.” mination validity Estate, 279

In Re Slush’s Mich. (Stat. 27.2842), § Ann. No. Pub. Acts of Act extending statutory period payment for debts legacies, was attacked because and it was The court immediate effect. reviewed author- and said: ities, legislation

“From the involved in nature of the opinion at it is bar, that, the case conclusive legislature, greatly the real estate market of depressed; consisting largely that of real estates closed, more time estate should have which in such otherwise creditors and others interested question as would suffer. There can be no estates the object necessity validity legislation, of such its protection has a substantial relation to rights. property say unable to ex- are “"We giving limitations in its constitutional ceeded effect.” act city charter of the of De-

If act to amend the municipal ownership, provide as to troit so railways operation street within maintenance city limits, of its and to and within miles regulations providing therefor; an issue bonds brewed, fermented, of vinous, malt, sale intoxicating spirituous, liquors me- medicinal, pur- and sacramental chanical, chemical, scientific, consolidating poses districts, and cre- ; an act school prohibit ating district; school an act to a new any incorporation banks; an more industrial act Hull, Todd rights negligence; abolishing for of action certain equitable providing for administration mortgage consummation of trusts when the mortgage capable object purposes is not of the and public accomplishment; to create a domain an act provide appointment for the of the commission, appropriation therefor, to make an commissioners, part supervise of the take over duties and office, of the State land and other commissioner paying purposes; to extend the time for and an act legacies by persons estates of deceased debts and year, held this im- as was “acts were, court, one mediately necessary pub- safety,” properly given im- health, lic holding and the effect, mediate decisions so are to properly under the act consideration was stand, then, legislature. given immediate effect Legislative has indicative of the action been con- placed upon provision the constitutional struction under consideration. To illustrate, gave in 1935 immediate effect to 172 occupying pages acts, local of the session laws, legislature gave and the 1937 immediate effect to covering pages and local acts, session laws. presented questions

As this case in- us, may fact; volved are of and not of law, there have give been sufficient reason for the may inquire effect; act immediate we into the legis- motives which actuated the members may impugn lature, nor we motives a coordi- government; nate branch the immediate effect clause of the statute involved is valid; and the de- cree of the trial court is affirmed, but without costs, public question being involved. J.,C. JJ., con-

Btjtzel, Wiest and North, J. curred with Potter, Michigan Reports. 288 not the I in accord with am views J. Bushnell, by

expressed Mr. Justice Potter. appointed members herein were Plaintiffs by governor Michigan public utilities commission authority 1919, No. Pub. Acts 419, of Act under seq. Comp. § 11006 et 1929, Laws amended, expiring (Stat. seq.), §22.1 on for terms et Ann. appointments had Each of these June 1939. 13, by other members been confirmed the Senate. Two appointed been for like commission, who had resignations their terms, have submitted governor, yet accepted been when which had February complaint plaintiffs’ filed was on bill of remaining mem- of office 1939. The term 16, expire on same will also ber of the commission appointment had not been confirmed his date, but changing present with commission, the membership, Senate. operation in has been continuous years. 1939, No. Acts 3, Act Pub. which about Michigan utilities commission abolishes commission, service creates the February adopted was imme- 9, 1939, on vote the members diate effect two-thirds signed by governor house, elected to each February on 15th. day governor appointed defend- the same

On of the new commission. ants members provision giving It is that the claimed 1939, Act No. Pub. Acts unconstitu- 3, effect to is in violation of article tional and void because quoted part §§1 Constitution my opinion. 21 must brother’s Section be considered my 1 of in connection with section article which part. quotes quote first brother But he fails to controlling paragraph 1. sentence of section That sentence reads: Todd Hull. power people “The second reserved is the ’’

referendum. agree . I with Mr. Justice Potter, that it is not for legis- us look into motives which actuated the lature, but courts should not be oblivious to quotation obvious. The ancient “The that, voice is Jacob’s voice but the hands are the hands of applicable Esau,” seems to the facts. The observa- tion of Mr. Justice Graves in the of State, case ex (233 rel. 641), Pollock, Becker, 289 Mo. 660 S. W. pertinent: change way “Of system these bills, which in a justices county, of in courts Jackson and cut down the number of such courts, and of the number urged they really go constables it is thereof, to peace, the immediate health and safety great of State Missouri. Courts are supposed history to be blinded bats. Of current judicial knowledge. courts take courts must know, What all judicially history know. The current purpose shows the real of laws, these and we need history. every not state that It is known to member legislature, every judicial of officer of the State, every lawyer kept who has citizen, read and history, abreast with the current made and now be- ing say purpose made. To that the of bills these protect great, impending in Missouri some emer- gency relative her health or is not only themselves, face bills but in go of her face what citizens know. need We no further.” presented

In that rather unusual case issue important was deemed so that each of the seven expressed of that members court last resort his separate opinion. The view a in that case was whether or not the should issue court Michigan Reports. secretary requiring the

writ mandamus State accept petitions, and file certain referendum legislature having given immediate effect the act question. The writ issued. only of 1850 Constitution this contains state- legislative power “The ment, is vested a senate § representatives.” house of Article T. language This was carried over into the Consti- becoming § tution of 1908, article of that Con- provided stitution. The Constitution of 1850 also § in article 20: “No act shall take effect or be in force expiration ninety days

until the from the end passed, 'the at session which the same is unless the shall otherwise direct, a two-thirds vote the members elected to each house.” Hopkin, Price See v. 318. Mich. language contained in the Constitution of quite

1908 is It different. is: “No act shall take effect or be in force until the expiration ninety days and from the end of the passed, except session at which the same is that the give may immediate effect to acts mak- ing appropriations immediately necessary and acts public of the health or safety by a two-thirds vote of the members elected ’’ § to each house. Article 21. Under the 1850 acts Constitution, could be by merely immediate effect a two-thirds vote. Un- present der the Constitution the additional restric- “immediately tion necessary,” that the act must be et cetera, was added before a two-thirds vote could give being it immediate effect. Not satisfied with people adopted this limitation, an amend- Hull. Todd wherein § Constitution, of the to article ment imposed they an addi- the limitation reaffirmed reserving by its observance reason tional power of referendum. themselves presupposes “preservation” real or a The word danger; emergency existing and the use present necessary” “immediately indicate words necessity means at hand to impelling no other with danger. obviate the power. people of unlimited are the “The source power, grant lim- but a not a is The Constitution people agents exercise its itation government.” legislative compose branch of

who 179. Attorney Preston, 56 Mich. General provision for the referendum The constitutional power This reserved details. in its meticulous people nullified. not be should “police power” agree Mr. Justice with Potter’s I that the to find not sufficient but it is comments, power. that the exercise of enacted statute was “immediately must The act more. must be There necessary,” cetera. et right legis- to the

There is no question. That is con- the statute lature to enact only question is: ceded. The give power this have Did the effect? Many to be a hold the states to the doctrine is committed but this court one, .authority to re- constitutional “exercise its it will * * * necessarily questions involved which view all leg- involving question the action of the include giving effect to act under islature Attorney General, ex rel. Barbour, consideration.” Lindsay, Mich. 524, 534. Michigan Reports. prepared Lindsay are to overrule Unless we entirely by Case and let burden be borne critically legislature, we must examine the act in question. Any part might other attitude on our lead subterfuge to blind and nulli- assent clause of the fication of referendum Constitution. suggested It that this court has almost uni- formly upheld legislation, immediate effect but an examination of the cases indicates that each in- passed upon of “im- stance court necessity.” mediate vigor- It is said that Mr. in his Justice Fellows, Newberry Starr,

ous dissent 247 Mich. 404, suggested necessary only that it was that court possibility any must find there was no connection preservation public peace, between the et cetera, and the act in it could be set before emphasized aside. But Mr. Justice Fellows controlling question necessity of immediate when he said that he was “unable to conclude from the anything may judicially from record, this court anything reasonably imagina- know, fertile may bring my immediately tion that it is mind, necessary public peace Royal public safety, or the health or the that single year Oak have a school district a before that city necessity.” discovered its presumption must be reasonable doubt validity legislation resolved in favor of does preclude judicial inquiry into the substantial necessity basis for the immediate of the act. What reasonable substantial basis for immediate ef- fect can be found it in face the act? Is language in section which reads: Michigan public “The hav- commission, utilities ing carry leg- properly failed refused to out the Hull. Todd v. with, respect public safety, to and mandates islative properly having enforce the and refused failed conferring jurisdic- provisions several acts respect of the various use tion it with proper highways manner, in a safe and the State of immediately upon hereby the tak- abolished, and is Michigan public ing utilities this act said effect of and the tenure exist, cease shall commission employment and other the members thereof office of each thereby employee shall be of said commission terminated.” charges present language members

This public office, in misfeasance with the commission subjected highways thereby to a have been charges improper. If these use that is unsafe legislature it must be asserted, has are true, should of the commission that the members conceded provides methods removed. But the Constitution be in is not such removal. When for authority under the of article session the Governor, § into the matter and remove can examine 9, 7, “gross neglect of the commission members corrupt any duty in or other office, conduct malfeasance therein.” misfeasance or When language in of Mr. is to use the session, attorney general, Opinions Potter, when Justice Attorney p. leg- 1926-1928, General, may examine into the islature “alone condition any public and the acts of office, administration any public appointive, and remove officer,elective or by impeachment.” them office procedure §§1, 2, controlled article of the Constitution. points opinion Though out Mr. Justice Potter’s changes are none of them act, numerous the new anyone’s changes. substantial doubt exists in What mind that must resolved constitu- favor

tionality of the immediate effect clause of the act? opinion try any His does not find, find, that one changes or all of these meet, or even tend to meet, any pur- for need immediate action. The intent and pose of the new act are the same as old. The new precisely powers commission exercises the same the old. Michigan public “The service commission in in shall respects

all officeof the considered to be be the successor Michigan public utilities commission respect powers to all of the duties now vested imposed upon public utility said commission.” § Act Pub. 3, 5, No. Acts 1939. any does circumstances,

Undér need arise application of the reasonable doubt rule? Not- withstanding any declaration to the con- trary, cannot be said that act new furnishes any possibility greater preservation safety health or The than old. effect of substantially the two acts is the same and there can necessity.” be no “immediate anything Nowhere the act is there indicate necessity” that an exists, “immediate save the al- leged necessity removal the old commissioners necessity only if such who, exist, is found to can be constitutionally removed other methods.

Perhaps language whereby of section there “appropriated general fund further organization sum of $10,000 creation, operation” of the new service commission from the date of effective the act to June judicial was intended to avert a sufficient shield to be inquiry necessity into the immediate of the act. Un my reasoning opinion, der the brother’s does appropriation any satisfy amount the constitu Todd v. Hull. requirement any tional so that act whatever can attempt be immediate effect1? If this be an circumvent constitutional limitations, it is of importance no because the severance clause (section 9). entirety, act This is in its an not, act making appropriation. validity challenged, of the act is not but it provisions

cannot become effective under the days adjourn- Constitution until 90 after the final present legislature. ment of the session of the Arti- §§5, cle 21.

The decree of the trial court should be reversed, declaring one should entered here the clause giving immediate effect to the be unconstitu- tional and void. and McAllister, JJ., concurred

Sharpe, Chandler J. with Bushnell, opinion J. in the concur of Mr. Jus- I

Chandler, holding tice the immediate effect clause Bushnell, of Act 3, 1939, No. Pub. Acts unconstitutional. framing §

In 21 of article the Constitution 5, adoption by people, and in its it is clear people adopt- that both the framers thereof and the ing ing put stop practice giv- it intended to a to the by

immediate effect to acts a mere two-thirds permitted vote, which was under the Constitution of authority legislature and to restrict ‘‘ giving in effect immediate to statutes to acts mak- ing appropriations immediately necessary and acts preservation public peace, health or safety.” provision We find that when this was be- fore the last constitutional convention for considera- following explanation purpose tion, the of its by made a matter of Holmes, record Mr. a member speaking of that for his convention, who, commit- said: tee, changed “This has been from section somewhat original many preventing with so a view going through being

measures given pro- effect. The committee has only vided this section that in cases of absolute any emergency shall bill be immediate effect only by and then vote of each house.” two-thirds p. (1908), 195. Constitutional Convention Debates, Attorney Barbour, The case of ex rel. General, Lindsay, quoted 178 Mich. is cited and quite extensively opinion in the Justice Potter. apparently pronouncement by This was this first adop- court on the here involved after tion of the Constitution of all of the opinions written time, since that where a similar question has been involved, this court has relied quoted approval with from that case until opinion in the instant one, written Justice Potter, which seems more in accord with the dis- senting opinion Lindsay of Justice Ostrander Case. Justice with concurrence Ostrander, Justice said in his dissent: Bird, “Whether an-act of the imme one diately necessary of safety finally health, or is a to be legislature. determined Three-fifths * of the having given opinion members of house each question immediately necessary that the in is one preservation public peace, health, or may no court review set aside such de upon termination. This conclusion is based language employed in the Constitution as well as immediately the fact that whether an act is ^[*] See footnote, ante, 526.—Reporter. 551 Todd Hull. v. necessary for the safety involving, proposition in each ais health, presented, question of it is which in case policy.” Lindsay opinion holds Case prevailing

The has question as to whether constitu- its the bounds or without acted within judicial In powers determination. is one tional to exercise their are bound courts case, the such a among primary is the which functions, constitutional legislative action in duty whether determine question not constitutional. is or is Newberry Starr, v. 247 Mich. cases (74 A. L. R. Lahr, Mich. Naudzius 179), as well as others decided N. A. 30 C. C. majority jurisdiction, are in accord with in this Attorney opinion General, rel. in ex Bar written supra. Lindsay, bour, v. many appreciate that the courts fact

We dissenting jurisdictions are in accord with the other opinion to, above referred of Justice Ostrander replete opinion is with cita- of Justice Potter jurisdictions, quotations from these not- tions withstanding fact that this court has established legis- the rule that the to whether has within or without the bounds of lature acted powers judicial its constitutional one deter- giving are no mination. We consideration to the jurisdic- of this determination in other prefer by We tions. stand the rule laid down Justice the case of Motor Bankers Cor- Wiest poration Corporation, I. T. C. Mich. following language: he this which bound court have but “We examined need not cases review jurisdictions from other for we have established our reference to rule with instruments in the nature own mortgage.” of a chattel foregoing

Applying the to the instant case, we say, but need have examined not review cases “We jurisdictions other for we have from established rule with reference our own to as to legislature whether has acted within or without powers, of bounds its constitutional and have judicial, legislative, held it is that one not deter- appears by mination.” Where the act itself that preservation public health, peace safety or has some real substantial rela- question, duty the act in tion to it is the of the court to that find the immediate effect clause attached to is constitutional, said act but where it is not made appear itself act that the immediate effect necessary is clause safety, duty health or then it is the judicially.

court to determine so ‘‘ giv- The mere fact that the labels premium ing gasoline of a with the sale a ‘de- ’ practice, trade structive does make it such nor practice subject prohibition. render While presumption there a that power is valid, nevertheless, the courts have the prohibi- determine a matter of fact, whether, relationship tion bears a health, reasonable general People morals and welfare.” Victor, 506. Mich. assigned by The reasons Justice as to Potter legislature might giv- had in what the have mind ing purpose pre- act immediate effect for serving public peace, safety health to us seem highly speculative. to The real reason legislature giving the statute immediate effect is clearly apparent reading part sec- quoted by language tion Justice Bushnbll. This Todd v. Hull. beyond peradventure the real the reason for shows namely, to clause, remove instanter immediate effect public present from utilities commissioners their legal provided positions. re- A method is for the for misfeasance, moval of such officers malfeasance and this court should office, or misconduct illegal accomplish an method to this not countenance giving object. judicial To hold otherwise would be public of- sanction the removal officials by government in branch of the fice provisions wholly disregards a manner which § § 21 and 9, article article 7 of the Constitution, provides § 1 as well as article which for thereof, upon proper petition referendum of the electors. legislature past, they That the has in the and that ignore provi- will future, constitutional operation fail sion and to restrict of the im- emergency legislation effect mediate clause to is legislature shown record of the 1937 which passed gave 354 statutes and effect any 224 of them. think We do not other any proportion will show material difference in the given perusal of laws immediate effect. A of these given acts which were immediate effect because the necessary preserva- deemed them peace safety tion of health, shows the ab- surdity leaving question solely legisla- this a judicial tive and not determination. commenting upon Building

In Home & Loan (54 Sup. Blaisdell, Ass’n v. 290 U. S. 398 Ct. 1481), Virginian A. L. R. Fead Justice Joint Stock Land Bank Hudson, Charleston v. 266 Mich. said: “Contrary lay opinion, to much de- Blaisdell purport

cision does not and to to set aside Constitution because, legislation all validate sorts is emergency contrary, On label. meticulously

decision itself is circumscribed and tbe pronouncement final and effective restricted more argument permit. than some would seem to propositions outstanding “The elucidated case are that both the statute and administration its court must reasonable in order that there be Constitution; no conflict with the both the that emergency existence and continuance are judicial permitted questions; and and that the relief emergency; appropriate to the must be afforded mortgagee purchaser compensation possession * withholding valid re- is an essential to * * lief. applying court moratorium statute the “In authority, right greater construction has no beyond con- the relief to extend administration, enact- has the than limits stitutional the law.” ment seriously con- how can be conceive

We cannot provision appropriation contained tended that appropriation the same makes statute meaning § 21 of the Con- article 5, within stitution. the sum the statute 7 of allocates

Section opera- organization and “creation, $10,000 from the ef- commission service tion of said The allo- 1939.” act to June of this fective date specific purpose, to be is for a made cation thus specified period during com- time, a certain used mencing upon becomes effective the statute the date provision terminating be- 1939. The June only operative the act becomes and not until comes causing a means of used as effective, cannot be event to occur. with concurred JJ., McAllister, Sharpe, J. 'Chandler, reasons additional I concur J. Btjshnell, given by Mr. Justice Chandler.

Case Details

Case Name: Todd v. Hull

Court Name: Michigan Supreme Court

Date Published: Apr 12, 1939

Citation: 285 N.W. 46

Docket Number: Docket No. 117, Calendar No. 40,467.

Court Abbreviation: Mich.