*1 1970] Gole Club v. Sec. of State
WOLVERINE GOLF CLUB SECRETARY OF STATE v.
Decision of Court 1. Constitutional Law —Mandamus—Initiative—Petition. A granted of ordering writ mandamus is Secretary of State accept present canvass and immediate submission to the session of petition (1) of an initiative on the ground requiring that the statute that an initiative be filed not less than ten before of a the start session is an right unconstitutional restriction of the of initia- tive, per J., C. Lesinski, ground on the (2) repealed by implication by statute was adoption of the Con- per stitution of Levin, O’Hara, J., dissenting on the J.; ground that the statute is in force and constitutional.
Opinion by Lesinski, C. J. Self-Executing Legislation 2. Constitutional Law — Provision — —Limitation. legislature may impose obligations not act to additional self-executing provision constitutional so as to curtail or place right guaranteed undue burdens on provision. Self-Executing 3. Constitutional Law — Provision —Intention— Comments. Whether a self-executing largely constitutional is legislation determined necessary whether prerequisite is a operation provision, ultimately question and is framers, the intention the determination may properly include consideration the comments constitutional convention. References for Points in Headnotes 2d, 42 Am Jur Initiative T] and Referendum 50.§ 2d, 42 Am Jur Initiative and 2-4] Referendum §§ 2d, 42 Am Jur Initiative and Referendum 57.§ 6-8,10-12] 2d, 42 Am Jur Initiative and Referendum seq. et §31 Self-Executing 4. Constitutional Law — Provision —Initiative. provision reserving initiative to people self-executing (Const 1963, 8, 9). *2 Initiative—Legislation—Intention. 5. Constitutional Law — power The the constitution intended limit to the framers of of legislature implementing provision the the initiative the of legislation necessary constitutiоn to which is to im- effective plementation any unnecessary statute which is both the process administration the initiative and re- effective of right strictive the initiative is unreasonable and thus un- of (Const 1963, 8, 9). art Initiative—Piling op Ten-Day 6. Constitutional Law — Petition — Limit —Statutes. requiring The petitions legislation statute that to initiate Secretary days with the not State less than ten filed of before beginning legislature the a session the is unconstitutional of of unnecessary because it constitutes an and thus unreasonable right restraint on the constitutional initiative that it of delays ranging can cause 34 months between the from time popular (Const and the time vote art of of §9; 168.478). MCLA § Opinion by Levin, J. Initiative—Piling op
7. Constitutional
Law —
Petitions —Time
por Piling —Intention.
The constitutional
convention chose to leave to the
long
the decision as to how
a
election an in-
before
filed,
itiative
imposed
must be
and it
on the
duty
implement
right
initiative',
the
the
did not intend
of
question
by
through operation
to be decided
a
default
of
antedating
statute
merely
Constitution
1963 which
of
repeated
provision
verbatim a
the Constitution
re-
of
of
jected by
(Const
the Constitutional
Convention
of
8, §9).
art
por Piling
8. Constitutional
Law —Initiative—Time
—Statutes
—Bepeal by Implication.
requiring
petitions
statute
initiative
to be
no later than
filed
days
legislative
ten
merely
start
session
re-
before
of
stated a
the Constitution
1908 and
of
of
therefore
embody
could not and did not
legislature;
a decision
of
repealed by
implication by
the Constitution
of
Sec.
Club v.
of State
Golf
repugnant
to the clear intention
because it
Con-
should
stitutional Convention
decide the
time-of-filing question (Const 1963,
2, §9;
3, §7;
168.472).
MCLA §
Reenactment—Legislative
Statutes —
Committee —Inaction.
by
repealed
implication
adoption
A statute section
inferentially
Constitution
1963 could not be and was
special
committee to advert
re-enacted
the failure of
changes
recommended
that section at
time
committee
companion sections
the statute to make them
conform
(MCLA 168.472).
to the new constitution
Dissenting Opinion
O’Hara,
Initiative—Statutes—Filing
Peti-
Law —
10. Constitutional
Constitutionality.
tion —
statutory
with
be filed
Secretary
be-
not less than ten
before
impinge upon
ginning
does not
session
people’s constitutionally-reserved
initiative because
expedite
*3
ten-day filing period
attempt
a
to
legislative
initiatory
guaranteeing
process by
action as
early
given
(Const 1963,
2, §9;
possible
any
as
session
168.472).
MCLA §
op
Initiative—Statutes—Filing
Peti
11. Constitutional
Law —
tion —Reasonableness.
petitions
statutory requirement
with
that
initiative
filed
days
Secretary
be-
not less than ten
before
of
reasonably
ginning
related
session is
of
necessary
action
Sec-
time both
administrative
for
retary
in order
deliberation
State and
of
for
proposals to
initiative
avoid utter chaos in the submission of
proeess (MCLA 168.472).
subsequent
elective
Statutes—Appeal
and Error.
Constitutional
12.
Law —
reviewing
re-
resolve each doubt
court is to
function of
garding
constitutionality
its
a statute
favor of
of
suggestion
every
critically
validity, not to view the statute
for
were a
unconstitutionality
consequently,
there
its
even if
statutory requirement
suggestion
unconstitutionality in the
Secretary
initiаtive
must be
with
filed
legis-
beginning
State not less than ten
before
suggestion
session,
lative
be resolved
should
favor of
(MCLA 168.472).
constitutionality
its
Lesinski, C. J.
Appeals.
Original
in the Court
Sub
action
(Docket
at Detroit.
15, 1970,
Division June
mitted
appeal
9,018.)
Leave to
25, 1970.
Decided June
No.
granted
August
Complaint the Wolverine Golf for mandamus against Joseph Hare, James M. and G. Comeau Club compel acceptance Secretary an initia- State, and for immediate submis- for canvass tive legislature. granted. Writ sion to the Craig Fieger, plaintiffs. & for Kelley, Attorney A. General, Robert Frank J. Derengoski, D. Hack- General, and Charles Solicitor Attorneys ney Freeman, H. Assistant Stewart defendant. General, J.,
Before: C. O’Hara,* Levin and Lesinski, JJ. Golf Club Plaintiffs Wolverine C. J. Lesinski, Joseph instant suit an have filed the Comeau seeking
original a writ of action before this Court Secretary ordering of State mandamus defendant petition accept an immedi for canvass and legisla present ate submission to the ture. session of disputed. giving The facts rise to this suit are Congress United States enacted §§ 260-267, Act, USCA, the Uniform Time *4 required “Daylight Saving in time zones Time” all Sunday Sunday April until the last from the last by assignment 1968. [1] [*] Const Former 1963, Supreme pursuant 2, 9.§ Court to Const Justice, 1963, sitting art on the 6, § 23, Court of as amended Appeals (tole Club oe v. Seo. State C. J. Lesinski, Pursuant to a in October. of the Uniform legislature exempted Michigan Act, Time this Michigan keeping from the thus on act, state what formerly § standard time. MCLA et was 435.211, seq.). seq. (Stat Supp § 1970 Cum et Ann 18.872[1] seq., supra, § The effect of MCLA et was 435.211, suspended petitions. referendum Michigan Secretary Farm Bureau v. State (1967), day- Michigan, therefore, 379 Miсh 387. light went
saving during summer of time most of the when the However, and all the summer of 1968. presented during the referendum was to the voters general MCLA held election November 1968, margin seq., supra, approved et 435.211, § votes cast. of 490 votes out of the 2,805,614 (Stat Ann Rev MCLA §168.472 6.1472), legislation provides: shall be initiate “Petitions to Secretary less than filed with the of State legisla- beginning of a session of before the present con- of the ture.” The session January vened on 1970. plaintiffs in- February for 12, 1970, counsel
On Secretary quired whether letter of State of the accepted petitions notwithstand- would be Secretary statutory ing deadline.2 acceptance prohibited replied that the statute petitions session for submission elee- electorate in the or the quirements legedly bear correct. signatures complaint We take Secretary On attorney he had actual oral The motion was to add the upon petitions judicial of Const argument of State on approximately plaintiffs notice allegation knowledge granted. June this cause for stated 206,000 signatures prima that that fact plaintiffs moved to they have a sufficient 9. facie open Further, court allegation compliance plaintiffs’ and were filed with and on at oral with amend their the record number argument factually the re- al- *5 Lesinski, C. J. plaintiffs Subsequently, commenced the in- tion. seeking a writ of mandamus.3 stant suit clearly remedy proper if is the As mandamus City plaintiffs De- relief, are entitled to Solo v. (1935), (1942), Mich 672; Toan v. McGinn of troit 271 Mich we to merits the case. The turn the plaintiffs raised is whether statu- sole issue the tory pеtitions be filed not that initiative days the of a than before start less ten is restriction session an unconstitutional of initiative. question requires an under-
Resolution this standing process, set- its historical background Michigan, ting of the statu- in and the 10-day tory to a therefore, turn We, deadline. points. brief review of these Essentially, types of initiative in there two are operates independent Michigan. A direct method proposal backed wherein automatically signatures sufficient number placed method is made available on the ballot. This only proposed and is amendments incorporated 2. Under con- in Const amounting signatures to at initiative, stitutional for all candidates vote cast least the total 10% general re- are for in last election Governor quired proposal place ballot. addi- on the Secretary with the must be filed tion, general prior elec- State at least tion. Michigan type
The second of initiative available requires pro- that the is the indirect method which ap- posal legislature for first be submitted to rejection proposal. proval, an alternative or for decision While application Supreme the Court of complaint was denied Court an Appeals. By on March application pending 31, 1970. for order leave to Court, petitioners appeal prior Supreme Court, filed Golf Club v. Sec. of State Opinion op Lesinski, C. J. After of 40 expiration legislative session days, the proposal placed must be ballot of the next election unless the enacts change. into law proposal without The indirect ini- tiative method available statutory pro- *6 and in posals incorporated Const 9. 2, § Statutory signature initiative requires petitions to for amounting only to consti- opposed 8% 10% tutional initiative. is obvious that respect a statutory initiative drive is petition less slightly than difficult a constitutional initiative drive. Nevertheless, has demonstrated history initiative less statutory process has been much at- gov- tractive to the electorate of direct as method A techniques ernment. of direct study government in Michigan from 1913 the con- to revealed that stitutional the elec- initiative was utilized process torate on the statu- separate occasions, whereas tory process initiative was invoked once. On qualified that occasion in 1948 a statutory proposal would render a 1901 statute prohibit- of no ing sale colored effect. margarine enacted the should have proposal which question avoided the to necessity of submitting measure However, electorate. opponents were able referendum. legislation for qualify until Thus, the statute did not become operative in passed by the 1950.4 people sharp in statutory process, dormant initiative ini- constitutional frequently contrast invoked prior discussion tiative was a process, subject the 1961 Constitutional Convention.
tional Convention Preparatory ernmental erendum McHargue, Studies, Michigan, University Commission Direct Government No Studies, prepared 6) (1940). (1961); Pollock, in Michigan Michigan, Constitutional Convention The Initiative Press Michigan Constitu- (Michigan and Ref- Gov- Lesinski, C. J. statutоry “Why initiative been has the indirect delay in- that the would seem It so seldom? used legis- delay (and process unless occurs in the herent forthcoming if acquiescence and even then lative signatures gather for a opponents referendum sufficient can against petition) the chance of militates of such promotion Then, too, a measure. successful requires only a the direct petition signatures higher percentage slightly attracting advantage more interest has the popular rea- receiving vote. Whatever a direct least one of the has been indirect initiative sons, the legislation.” Michigan’s of direct devices used of Michigan, Mich- McHargue, Direct Government prepared igan Studies, Convention Constitutional Preparatory Com- Convention for the Constitutional p (1961), 17,No mission say, effect limited therefore, that the “One not been due has and referendum of the initiative any themselves, institutions inherent defects restrictions on their to the limitations but rather legislature.” imposed principally by Pollock, use *7 Michigan, in Univer- The sity Michigan and Eeferendum Initiative (Michigan Governmental of Press 6) (1940). p 68 No Studies, provid had constitutional California initiative. ing well direct as indirect initiative for government for direct notorious state, Even in that activity, used had been indirect initiative 1966.5 from 1912to four occasions 5 fact, Discussing it was noted: used but four times has been indirect initiative “The statewide 4 entirely by of article a revision be eliminated 1912 and would since ballot. West’s appear on the November which will of the Constitution (1966); 416-417, California Legislative 424-425 Service Californiа Cali- Commission, Proposed Revision of the Constitution Revision as Con- 52, (1966) eited 141-142 fornia Constitution [hereinafter revi- of the For further discussion Revision stitution Commission]. explanation failure of possible A for the 29 sion see note infra. requirement for advantage signature the lower persons to take delay stands between extreme which indirect initiatives be the gathering of the completion signature and final submission 719 Club v. Seo. of State Golf Lesinski, C. J. provided for a method of
The Ohio Constitution Michigan which like initiative in- statutory for direct constitutional provided It also direct. similar with experienced inactivity initiative statutory initiative process.6 regard The initiative the methods of process among gained favor considerable government direct reform the progressive the electorate among during Con- 1900’s. At the Constitutional era the early the people vention of the first effort to 1907, provide direct ini- Michigan with a form of of the State 17, 1908, § came to fruition in Const tiative votes, three al- convention merely It passed were limited to provisions its though be initiative and the who of electors number at least signed 20% special governor should call Unless the to the voters. a measure passes before an approximately 23 months election, minimum of delay because This results placed on a ballot. indirect initiative proposed procedure calls submission the indirect measure to the 4, 1 (Cal Const art before it convenes § general legislative sessions 2[a]); 4]); legislature convenes for [¶ 4, January measure, every year (Cal odd numbered Const presented days, be at the if enacted must within gen- (Cal 4]), but that ensuing eral election does not election Const art [¶ num- come until November of the next even year 4, §3). proposed (Cal Const art Under the revision bered sessions would hold annual of article in- 29-30), and, if indirect (Constitution Revision Commission retained, might become a more viable tool. The were itiative delay period few to as little as 10 months and a could reduced days. for California Constitution Revision Staff Memorandum Comment, Commission, January 12, p Scope 11.” California, 54 Cal L Rev N19 at Initiative and Referendum 1720 (1966). legislation interesting “The record of direct Ohio discloses the employed freely been fact the device has more at the constitu statutory level. tional tutional amendments were than the Between consti proposed by the initiative. Nine were During period proposed of 29 ratified. the same amendments by ures general assembly approved. were Seventeen meas *8 proposed by these, have been the initiative. Of three were by general assembly. so enacted the Three not enacted were carried by supplemental petition; adopted.” to the voters one Fordham was Leach, Ohio, The Initiative and Referendum in 11 Ohio State (1950). J Law 24 Lesinski, C. J. Secretary in the last election of State had voted for virtually impossible. accessibility it As made its original draft of the Consti- under the existed provision was never used.7 the constitutional tution, Rep- January 1913 Senator Woodworth and Kappler almost identical bills introduced resentative proposing the Constitution an аmendment to constitutional ini- establish more accessible would statutory newly-created initiative.8 and a tiative support received almost unanimous These bills year April legislature and in of the same the signa- approved the amendments. electorate requirement of the constitutional initiative ture statutory process initia- reduced to 10%. pro- incorporated process 1 and into art tive pertinent part: vided in pro- petitions in full shall set forth
“Initiative posed and shall be filed with measure, Secretary days before the commence- not less than ten of State * * * legislature. Up- any ment session of Secretary receipt petition, any initiative if shall canvass the same to ascertain such of State requisite petition signed number of has been signed, qualified and if the same has been so electors, petition Secretary such of State shall transmit and or- as soon as it convenes petition ganizes. proposed by such The law shall rejected by or without either enacted change days forty amendment within from legislature.” time such is received expressly It re- should be noted that Constitution quired statutory be filed with Secretary before of State not less than ten legislature. any the commencement of session of McHargue, PA Concurrent Resolution Nos supra, p et seq. 3-4, pp 780-86. *9 1970] 721 Gole Club v. Sec. oe State op Opinion Lesinski, C. J. statutory initiative of the Constitu hy proposal passed tion was amended which both approval houses of the in 19419and won spring proce in the electorate election. The changеd only dure was to the extent that the Secre tary granted authority of State was constitutional appearing petitions against check the names registered year names of voters. that same imple PA enacted which 1941, 246, No brought changes mented the about the constitu tional amendment. implementing passed
In addition to the statutes many requirements 1941, of the for initiative and highly referendum set forth in detailed constitu statutory provision10 tional were form reiterated (CL seq.-, § in PA 246 200.1 1941, No et Stat 1948, 11 Supp seq.) Among § 6.685[1] Ann 1941Cum et provisions 1941, PA constitutional so codified was (CL § § No 2 Ann 1941 Cum 246, 1948, 200.2; Stat Supp 6.685[2]) provided: § legislation shall filed with
“Petitions to initiate be Secretary days 10 before of State not less than legislature.” beginning aof session of the 9 10 1941, PA 2, pp Nos 1 781-85. Joint Resolution 1908, 5, Const § 11 1941, following require- PA 246 constitutional No restated the :ments 17, 246, requirement No 1 2 1908, enacted the Const that § § petitions be four months before the initiative filed proposal go voters; election at which the was to 246, statutory- 2 5, requirement No the art 1 enacted § § petitions days 10 filed before be the commencement of legislative session; 246, 5, requirement No 3 the art 1 enacted referendum § § adjournment legis- 90 be filed within of the of the lature; 246, 17, No the art 2 enacted that a declaration § § sufficiency petition prior of the of the least two filed at months ; to the election provision regarding No the art enacts the form of § § provides further details not set forth the Con- stitution. C. J. Lesinski, repealed PA No PA No 246 Michigan commonly Election Law. known as the major effort on the the result of The 1954 act was reorganize, part consolidаte and above-quoted statute laws. The add to the election (Stat unchanged reappeared MCLA 168.472 origin 6.1472). Due to the historical Ann 1956Rev 10-day filing of the stat- and context deadline *10 appears it it codified, in which it first ute was important provision of first enacted as a notice was details. background against Constitu- It is this delegates formulated and the tional Convention § Michigan adopted 9. 1963, 2, electorate Const pertinent part provides: § * * * signed , “To invoke the initiative registered by less than electors, not number * * * eight percent the total for initiative governor at the last for cast for all candidates votes preceding general governor which a election at required. elected shall be “Any proposed by petition law shall initiative rejected legislature by without or either enacted days change from or amendment within 40 session legislature. by petition the time such is received by any proposed If shall be en- law such shall be subject legislature referen- acted it provided. dum, as hereinafter leg- proposed “If law enacted so is not days, author- islature within the 40 the state officer proposed law to the ized people law shall submit such approval rejection next or at the election. # # # legislature implement provisions of
"The shall this section.”
Among from the the several details eliminated 10-day filing Neverthe- Constitution deadline. 1970] Cole Club v. Sec. oe State Opinion op Lesinski, C. J.
*11 less this former constitutional remains in enshrined the statute now under attack. 10-day filing clearly necessary deadline was and reasonable in when first becаme law. This was due to the combined effect of three factors (1) in then existence. Under Constitution, originally adopted, legislature only met dur- ing years.12 (2) During pe- the odd-numbered legislature quite riod the sessions of the were short, generally convening January adjourning May.or (3) statutory provi- June.13 initiative gave legislature sion Const art 5, days” accept reject proposals, “40 days” unlike the “40 session in Const Clearly provisions under the of the 1908 Constitu- prior tion and realities if no deadline had early presentation been set to insure the of initiative proposals after time was allowed necessary signatures, for the certification of the might get full 40 ad- before journment. given And, since the numbered spring dates: first Wednesday amended other shall 13Michigan Manual, 1969-1970, p 98, [12] “The concurrent January 4, [1901] January 2, Bate January 2, January 6, 1909 January 4, January 1, January 4, January 7, 1903 Const Wednesday adjourn place election of practice legislature by legislative proposal years 1908, or time unless as Meeting resolution, without January art [1913] [1911] [1907] [1905] [1899] was not in April 2, 5, January, shall having regular 13§ day, at twelve o’clock noon.” 1951. changed meet at provided: every nineteen hundred at provided in 1951 and ratified at such seeond until Const the seat sessions time as May Bate May 2, June June June June June June year sets forth the 15, 1913 29, 17, 24, 18, 6, of this only during thereafter, [1911] 1908, [1909] nine, [1901] Adjournment shall be [1907] [1899] [1905] [1903] government Constitution; and on the first the biennial 5, determined and at no following the odd 13 was on the Lesinski, C. J. days” days” pe- only “40 “40 than session rather legislature run to while would continue riod meeting. had even if been Moreover, not legislative period of consideration to allow made would next, session to it continue from one to years dividing postponement nearly amean 1-1/2 periods. the 10- Thus, two shorter the 40 day into necessary to insure was reasonable deadline opportunity legislature an to would have that the proposal. consider longer exist, how-
All three of these no factors year.14 every now meets ever. The longer, often are much sessions of the running legis- January And from December. only days” than “40 rather now session lature has proposal. days” Thus, in which consider the “40 presented well after a session can legis- time commences and still allow sufficient legislature adjourns, If the lative consideration. days” will continue the remainder the “session periods during be- And now the the next session.15 generally weeks, a matter of are tween sessions not continue to well taken.” question to was petition they’re completely in recess? Record, the if presented talking as a substantive matter. answer tion, “Mr. Brake: In direct “Vice “Mr. Pollock: Mr. “Mr. Brake: legislature, Const During amended to I have a your question, although Constitutional about shouldn’t be 40 is filed President the last tlie debates the response particular person? (Emphasis supplied.) run Tes, question. it Mr. *12 shortly read “within says during Sutchinson: Dr. day President, Convention to this President, this Pollock, please. before before adjournment. action Therefore, * * * must be following column problem ladies and adjournment on initiative 1961, p Mr. session seems days. done within was not before exchange Brake, page 3, 3085) days” to me gentlemen Suppose language petitions presented to : are took I’m to insure that line adjоurns, your time you directing place (2 days. this our point period prepared where committee I conven- wonder Official article while if a it very does is Golf Club v. Sec. of State Lesinski, C. J. years, reducing
rather than possibility old thus 1-1/2 during pre- that the deliberations held longer will vious session be no remembered. Although original factual basis requirement longer although no exists and rea- statutory son for enactment of the (i.e., provision detail) form notice of constitutional longer present, no is this nevertheless, Court is recognize expression bound the statute as an intent the clear command of Const provides: 1963, art 73, which “The law common the statute laws now repugnant force, not constitution, shall re- they expire by main in force until their own limita- changed, repealed.” tions, or are amended or only inquiry Our must be whether is the statute re- pugnant to the Constitution. legislature may
It is
law
settled
act
impose
obligations
self-executing
County
additional
on a
provision.
constitutional
Clair
Soutar v. St.
(1952),
Election Commission
executing, supplies rule, if it means a sufficient right given enjoyed protected, *13 Lesinski, O. duty imposed he enforced, or the it self-executing merely principles, when it indicates by laying without down rules means which those principles may given he the force of law.” Cooley, (7th Ed) p Limitations Constitutional quoted Thompson Secretary (1916), v. State 192 Mich wherein the 512, 520, Court declared art 5, referendum) (initiative § Michigan Con- self-executing. stitution 1908to he ques- self-executing Whether art 9 is been has by delegate Nord, tioned Dr. to the Constitutional argument Convention of 1961-1962. His centered on in 9 that in the event the proposal, duty place failed to enact the proposal on the ballot “state officer was vested by authorized law”. (Initiative referendum) “Section 9. : There principal changes are two in this section. One permits legislature by
them vote three-fourths repeal adopted by people by to direct initiative or an referendum. amend act change The other is the elimination of a considerable mass of so-called ‘legislative-type relating detail’ to the initiative and procedures. referendum While the ‘Address to the People’ asserts that this section continues to be self- questionable executing, highly it is whether or not examples following this is true. The the will illustrate problems (1) paragraph, raised: In the fourth the ‘state officer authorized law’ is relied on to any legislation proposed by submit to the electors initiative hut not enacted within forty days, and also to submit to the electors for any legisla- adopted by ratification modification placed responsibil- ture. The 1908 Constitution this ity Secretary except on the otherwise State, provided by placed present, stаtute. At a statute responsibility Board of composed on a board of the State Attorney General, Canvassers and but requires this now statute revision. event Golf Club v. Sec. of Opinion op Lesinski, C. J. disappear, statute should ever an interest- ing question process as to how the initiative could Michigan be effectuated.” Nord, Constitution Wayne (1964). L Rev objection self-executing pro- This to the otherwise vision was raised Dr. Nord on the floor of the Convention. Constitutional At that time the follow- ing argument presented response: suppose very “Mr. I Chairman, that as a technical *14 maybe point, kind of a situation Dr. Nord has a ex- cept conceivable to me to believe that very practical I don’t think it is a one. It’s in- any empower would refuse to or direct an official to thing. already handle this As a fact, matter of we general have statutes on the books. The election law already is there.” OfficialRecord, Constitutional p Delegate Convention 2393,remarks of Hutch- inson. judiciary
It is not inconceivable that the State person would in such event able to order the charged responsibilities with the ministerial under place proposal election law to specifically responsibility ballot if this was not dele- gated statute. necessary that issue.
However, it is not to resolve question provision is whether a constitutional “ultimately self-executing is one of intention.” Township American v. Benona Youth Foundation of (1967), App 8 Mich convention com- 528. The may properly when at- ment, which be considered tempting the framers to discover the intent of Rights (Beech Company Civil Grove Investment v. v. [1968], 405; Commission tary 380 Mich Burdick Secre- 578), expressly states [1964], State 373 Mich of self-executing. provisions § 9 that the of art are in the contained detail “Matters leg- present to the are left section the Constitution Opinion op Lesinski, C. J. language clear, however, that makes islature. self-executing and the can- section this by refusing popular to act.” will thwart not supplied.) (Emphasis to the reserved of initiative that the To hold self-executing Michigan people the State expressed the framers. ignore intent of is to light compelling in is more conclusion This perceptive opinion v. Hamilton of Justice Bird (1924), Secretary 130: 227 Mich found its “The initiative birth the fact that promises political parties repeatedly made platforms electorate both and and out their to favor legislation pass certain for which there was a popular demand. As soon as election was over their forgotten, promises were and no effort was made to promises were made often redeem them. These and then so forgotten the electorate at last through desperation own sheer took matters into its procedure hands and constructed a constitutional changes in which it could effect the Constitution legislation bring about desired without the aid of the legislature. gave was in mood electorate It that the under con- birth the constitutional persuaded I sideration. view of this am that it *15 legis- was not the intention of the electorate that the any way with the constitu- lature should meddle procedure tiоnal to amend the Constitution. fittingly following It said in cases that: was “ provision designed ‘A to remove existing an mischief should never be construed legisla- dependent operation efficacy its and on ” tive will.’ “self-executing” more than We view the term to be description operative an after-the-fact effect provision. is a intended the constitutional It term provision necessary character- to cloak the with the express provisions from to free render its istics v. Sec. Club of State Gole Lesinski, C. J. And encroachment. this so irrespec- legislative contained provision there- implementing tive in. original language expressed in Committee 118b
Proposal sought to make clear that general was not a implementing grant blank check of legislative power.
“The legislature by law shall provide fur ther methods for the exercise necessary of these powers not in with provisions this conflict section’16 (Emphasis supplied.) Following passage of Committee 118b Proposal the last changed sentence was the committee style and to the form which drafting ultimately enacted. The style however, clearly change, intended to be change.17 a substantive contained in art stautory process initiative 9§ limits consideration of the expressly proposal period days. initiated to a of 40 session Yet due to the statute in which requires the question, initiative be filed less than no session, prior commencement Const provides gen- 5 which Tuesday eral after elections shall be held on the first the first each even- Monday in November during effectivеly operates numbered the statute year, from prevent appear- statutory proposal time less than period on the ballot within ing legislature. 10 months submitted to the after the statute By restricting legislature, access to stitutional Convention mittee, reading has reviewed all return of these stantive ‘‘Mr. Hoxie: 2 After Official change in of this proposal following Record, proposal, Mr. proposals of them. The committee 118b returned from the Constitutional Convention President, statement was made at 2 Official 1961, p proposal and I would like to state that from 2927: and we recommend that I style move that we finds no drafting, style 1961, p dispense change, no the committee drafting it be Record, with the since the passed.” com Con sub- *16 J.C. Lesinski, statutory effectively access limited to initia- has process. is in conflict And this restriction with tive 40-day express contained in the limitation Con- proposal Any delay for the further stitution. legislature operates restrict to convenience beyond permissible right of bounds. initiative leg- self-executing, provision “In cases where a way providing may desirable, still be islation specific remedy convenient and facilitat- a more rights executing ing carrying into effect or every step safeguard- making secured, definite, legisla- prevent ing abuses. Such the same as to so harmony spirit of with the however, must be tion, the Constitution object and its to further the ex- right and make it more avail- ercise of constitutional able, served, ex ret. rights re- must curtail the and such laws specified.” State, exceed the limitations (1908), Hooker 22 Okla Caldwell, v. (98 p 964). Plaintiff cases exist which deal *17 of State Club v. Sec. Golf op Opinion Lesinski, C. J. challenged anas unconstitutional was The statute right infringement since it limited the initiative (between period petition to six months drive election). preceding the month and fourth tenth noting upheld statute that the the statute court The certainty greater the voters who that allowed signed petition residents were, fact, petitions filed. Six were date the state on the period of time viewed as a reasonable months was signatures. requisite garner the contrary more recent reached in the result was A (248 (1952), Colo 232 Yenter v. Baker case of expressly 311). re- of initiative was P2d people which was the constitution served to the self-executing. its Included within be deemed to petitions requirement provisions all that was the (The prior election. four months filed at least direct.) By process re- it was statute eight quired months at least all be filed that prior down the The court struck to the election. requirement eight statutory filing con- months, impose legislature may cluding addi- not filing requirements. tional reaching although foregoing different cases, supra, Kiehl, In results, are not inconsistent. enlarge upon challenged mini- did not statute filing in the included which was mum requirement Rather, a different constitution. statute that the concluded formulated. The court unreasonably with the constitution did conflict require- period, maximum limit the drive necessary imposed for assur- being ment considered signatures. validity ing supra, en- now-defunct statute Yenter, In already present larged filing limitation on the existing increasing difficulty constitution, requirement. ten-day present case the In the Lesinski, C. J. requirement imposes a time limitation for the con- legislature in addition to the 40- venience of the session-day expressed period in the constitution. express respect the statute conflicts with the language the constitution. position that the defendant’s ten- is, however,
It legisla- day exercise of the deadline is a reasonable general duty § 9 under Const ture’s implement section of the constitution. Plain- argue limit is an unrea- tiffs, that the time however, sonable restraint on initiative.
Unquestionably ten-day deadline does act as a *18 restraint on the of initiative. As demonstrated petitions requiring in that the statute results above, fully Secretary of ten months be filed with the State prior note defend- to the election. We that explanation whatsoever as ant offers this Court no why period of time is needed. to such conceding during some ten months
Even that the give time is to the the constitu- needed reject days accept pro- the tional session to posal, period required by minimum there is no need for this extended 12, art 1963,
the statute. Const provides by peti- § 2 for constitutional amendment requires people. tion and vote of the petitions signed by That compared voters with 10% although § art 2, Yet, the of 8%.18 requires peti- greater, percentage § 2 12, the art prior days” filed or four months tions to be “120 to the election. provides
Significantly § art 2 further 12, sufficiency validity initiative of constitutional prior petitions “at least 60 be certified period provided 120-day art election.” Thus, ernor for governor Both was elected.” Const percentages at the last are of “the tоtal vote cast preceding general election at 9; 12, § for all candidates 2. which gov- Club Golf v. Sec. of State Lesinski, C. J. contemplates for two certification months petitions sufficiency two more months presentation preparation of the ballots and
for the voters. periods
Adding “40 these same session days” consideration of the allowed period statutory proposal in a initiative would result substantially 10 months. less than argues if limit is unrea- the time Defendant signing prohibiting the of ficti- sonable, then statutes forged would also be tious or names to however, There an is, violative of the constitution. important protect distinction statutes between attempts bypass people from fraudulent legislature through which create and those unnecessary lawful use of to restrict obstacles may un- Moreover, initiative. ground peti- doubtedly place rules on the certain tioning enor- for initiative order to facilitate peti- verifying signatures on the mous task (1965), 1 tions. Markowitz v. State Canvassers clearly noted This distinction was (121 (1942), P2d v. Snell 168 Or 934): “Any legislation fair, to ensure which tends impartial accomplishment
intelligent purpose intended said to aid or facilitate *19 safeguard against deception Any Constitution. and referen- fraud in the exercise of the powers to the electorate dum tends to assure by 4. 1 of article benefits conferred legislation, reasonable, must be however, “Such right any placing ‘curtailing undue bur- or supra upon Benson, dens Stevens v. its exercise.’ ‘hamper 578], p [50 render Or 91 Nor 269, people.’ State, power ineffective the reserved to (177 Ayres, Amsberry 273 104 Neb [1920], ex rel. v. Elsas, v. 822); ex rel. State, NW 179, 180, 178 NW Mich 711 Lesinski, C. [1928], 318 Mo Compensation Missouri Workmen’s 1004, 796).” SW2d (2 Bаker, supra. v.
See, also, Yenter 1908, 5, con- above, indicated Const As for statutory ini- detailed highly tained when dropped of these details were Many tiative. 2, § Const provision, the successor adopted. of these the elimination argues
Defendant an effort to of part from the constitution points of specialized discretion matters to legislative leave In this defendant regard significance. and technical Conven- Record, Constitutional cites the Official com- the chairman of the 2392,19 tion where 1961, p stated: powers mittee on legislative pro- are the from constitutional status “Removed can- petitions, of filing on content and time visions type sizes, names on petitions, vassing of the Also re- prescribe penalties. legislature acts the date of effectiveness moved is in article which is covered section the “All matters are left of these language However, in the last sentence. it clear that the section
last sentence also makes pop- and the cannot thwart self-executing ular will to act.”20 by refusing Agree- argument.
We with defendant’s agree For while ment, however, does not resolve the issue. duty places implementation Constitution an incident to the on the it does so as legislature, lowing tion Commentfor art the Constitution are left it cannot thwart the “Matters of clear, however, ascertaining The substance of this statement was reiterated See resort to the constitutional convention debates Burdick the intent of the that this popular v. Secretary 9:§ will detail contained in the section refusing legislature. self-executing provisions to act.” (1964), of the Constitution. and the present language makes for the in the Conven- section purpose al-
1970] Golf Club v. Seo. of State Opinion op Lesinski, C. J. right people. granting Although of a to ad- implementation ministrative if needed the ini- process smoothly, tiative is to function the adminis- unnecessary trative statutes not create burdens right. which tend to restrict the constitutional spirit rights of the Constitution is not met if the grants impaired guise unnecessarily are under the implementation. original
Moreover, noted above the committee proposal gave legislature power only 118b provide “necessary methods for the exercise of powers pro- [initiative] these not in conflict with the (Emphasis supplied.) visions of this section”. part was, thus, There the clear intent on the power convention21to limit the “necessary” implemen- which to the effective right. tation of the initiative power while Thus, to estab- has any filing, lish will the time of act since deadline legisla- right, as a restraint on a constitutional may only ture which create those restrictions are necessary. Any unnecessary statute is both for the effective initiative administration of the process is un- restrictive of reasonable thus unconstitutional. reported Const 9 was 2,
When out Convention, committee at the Constitutional it stated accept pro- reject that the was posed (2 days.” Eecord, law “within 40 Con- Official 2390-2392.) pp stitutional As noted Convention phrase changed “40 above, to read session was days.” Convention, thus, Constitutional ten-day deadline from Consti- rеmoved language changed by the committee As noted above this style drafting present form found Const change Record, but no 2 Official Con- substantive intended. 1961, p stitutional Convention Lesinski, C. J. *21 the record the but, tution as evidence Consti- (see 15), Convention debate footnote con- tutional much later in the the templated filing petitions session. legislative petitions may initiative be agrees
Defendant that the time, argues filing filed but after stat- any at in submission of the issue to deadline results utory Thus, session. in the in- following the in case filed 1970 would be petitions stant 1971 of the legislature. submitted the session argument centers in defendant’s The weakness cause in the delays the it would use unnecessary requires any 9 law initiative. Const rejected initiative which was the proposed the for people approval be submitted “to Under at the next election.” rejection reg- elections are however, Const 2, 5,§ on first after first Tuesday scheduled “the ularly year.” in each even numbered Monday November petitions under defendant’s Thus, argument legislature in 1971 would be filed in go for vote in finally presented public after nearly of 1972, years November 2-1/2 filing. think we do not why
There are two basic reasons Constitution. delays such are consistent with only First, the Constitution gives law.22 session to consider the proposed we legislature, limit of such restrictive light a minimum of do from delays ranging not believe between months to a maximum of months time vote popular and the time had been if extended delays intended. And such the pe- doubt convention, we approved by OAG (1911), 165 Mich For definition of “session 1963-1964, No 140; 4329, p Davock Moore v. days” see Smith v. (November 3, (1895), 105 Mich 1964). Attorney General 120; 1970] Golf Club v. Seo. Opinion op Lesinski, C. J.
riod allowed for consideration would have so been limited. pro-
Second, we believe that when the convention long opening vided filed after the approval session, it indicated an of the “last minute” exercise of initiative. Such exercise thus should necessary be limited to the extent to allow for process. the efficientadministration of the initiative difficulty delays One other remains with the in- position. herent defendant’s While the instant daylight saving suit involves of initia- time, may greater tive be invoked for other issues of far importance If and moment. extended and unneces- delays sary permitted, are issues become moot *22 public permitted before the to act. We do believe that such was the intent of the Constitutional Convention. might argued,
It be that since however, the ten- day filing deadline existed as a constitutional stand- century, ard for half a that the same standard in statutory form cannot now be declared so unreason- Despite as able to be unconstitutional. its surface logic, argument however, rea- falls short for two sons, both historical. statutory provision
First, the initiative in Const originated § 5', 1, in proposed constitutional amendment 1913. It was not the of a result constitutional convention or of constitutional initiative.23 Thus when the electorate approved ten-day deadline as constitutional April amendment in the it was election they part larger provision. If one small a much rejected ten-day would been deadline, there have statutory all. it Thus, no initiativе at an ducing impossible Coincidentally signature 20% an was the same accessible 10%. for proposal which resulted initiative from re- Levin, J. say ten-day that the rule be a fiction to has would overriding expression of will as an stood people.24 ten-day above, when the
Second, as demonstrated clearly necessary and first law it was limit became existing. then As circumstances reasonable due to the rule have circumstances which necessitated changed, it cannot said that reasonableness of all necessarily rule remains. (Stat hold 168.472 Ann 1956 We that MOLA unnecessary 6.1472), there- and, an Rev constitutes on the constitutional restraint fore, unreasonable people right is, The to initiative. statute thus, unconstitutional. holding that a limit we do not intimate time so
necessary the effective adminis- and reasonable for process tration of after petition, might be in- has the initiative considered long challenge as it will withstand so valid. Such unnecessary restraint on the does not constitute an right of initiative. granted.
The a writ mandamus result). (concurring Levin, people (the initiative) propose and to a law (the reject referendum) established a law *tothe 1908 Constitution.2 amendment length provisions spelled con amendment out at cerning in details, the form of and other *23 cluding filing petitions. deadlines for The referendum section 1963 Constitution 9) (art § 1913 2, is a condensation of the amendment3 24 Moreover, interesting the ten- time it is note first day popularly limit was a con- submitted to elected constitutional vention, it was taken out of the Constitution. 1 1913, p seq. PA 793 et 2 1908, 5, Const 1. § (see 1) The seсtion the 1913 added amendment footnote seq. people modified in et 1941, p vote of the PA 1941. See Club v. Sec. Golf Levin, Opinion by spelling the task of
and leaves details, out filing petition pro including the time for posing a law. Constitution, as so amended proposing
provided a law that a days less than ten before the filed not was re- convenes. That enacted in 19414 in a section of a statute iterated § in 1954 472 of the election and was reenacted adoption of the 1963 Constitution law.5 Since the expressed con- has not its intention petition proposing cerning a law. the time presented questions whether this case are 10-days-be- legislative restatement of the the 1954 requirement was 1908constitutional fore-the-session implication repealed by when the 1963 Constitution ten-day provi- adopted; if whether and, not, sion is constitutional. policy, weighty of fundamental we
For reasons questions if case can be decid- avoid constitutional grounds.6 no need to ed on less momentous I see my opin- question because reach the constitutional merely parroted legislation, ion the 1954 provision, did not survive the 1908 constitutional adoption of the 1963 Constitution.
I. provides: 472of the election law Section legislation be filed with initiate shall “Petitions to secretary before than 10 state not less legislature.” beginning of a session (initiative § paraphrased This Const referendum): 4 5 PA MOLA 16 Am Jur 168.472 No 2d, Constitutional (Stat 2.§ Ann 1956 Rev Law, 113, p § 6.1472). *24 711 740 Opinion Levin, J. * ** shall be filed with “Initiative ** * secretary days 10 of not less than the state any legis- commencement session before the lature.” ten-days-before-thе-session provision must be placed 1908 in to be understood. Under the context legislature (1) biennially in the met Constitution began years when until 1952 meet odd-numbered annually,7 April general (2) an elec- there was years in addition to the Novem- tion odd-numbered years.8 in even-numbered ber election operative ten-days-before-the- effect require petition pro- session that a posing Secretary be a law filed with the State not days closing than of December or the later either the January, precise days depending on the first few Canvassing legislature date the would convene.9 petition completed was to the time between was filed and date on which the con- petition Secretary vened. If the was in order the required transmit the State was days after when it convened. Within 40 receipt petition, i.e., later the end of than February, reject was either to enact rejected, proposed If law. law was then April, spring within election six at the weeks, people. proposed upon by law would be voted intervene be- Thus, less than months would 3-1/3 days and the tween date before the 10 session date of the election.10
commencement of Constitution: No p 594 for the be filed 9 See [7] 1. Time See Const See Const The timetable footnote with pt 1, amendment ch 1908, filing petitions 1908, secretary any for §§ art session of the proposing 5, of that section. 7, §2; 13, state “not with 5; a law established secretary legislature.” originally adopted, and PA 11, less than 10 §§ 2, No state. Petitions 3 and under §§ 6; PA 3, before PA 1925, 1951, shall 5. Club of State v. Sec. Golf by Levin, ten-days-hefore-the-session that thе
It is apparent short time- step relatively *25 that the legislature the facts shaped around table years in odd-numbered and regularly met then such years. April was an election that there kilter when in thrown out of This timetable was an- began to meet regularly 1952 the legislature general “next election” ensuing the nually. Since November, the time is years in even-numbered with an petition date for a filing the last between elec- legislature general and the year even-numbered the 1908 under Thus, would be months. tion 10-1/3 different time came to be two Constitution, there legislatures, year odd-numbered as to spans: 3-1/3 legislatures, months; year and as to even-numbered months. 10-1/3 1963 Constitution the made the changes by Among on.11 electi biennial
was the elimination of the spring election, a longer spring he Now that there would no a require petition proposing continue to why session law he filed ten before the days span, time Why should the begins? 10-1/3-month Canvassing petitions. any pe- “Upon receipt 2. secretary persons hereafter person or tition the of state or such other petition if such by authorized has been electors.” law shall canvass the same to ascertain registered qualified signed by requisite and the number of secretary petition transmit the Time when the state shall 3. legislature. proper “petition legal the and form and to If the is registered signed by required qualified has the number of been electors, petition legislature such shall be transmitted to the as soon organizes.” as it convenes and proposed by legislature. Time consideration law “The 4. for by petition rejected by proposed law the shall either enacted or such be legislature, change amendment, 40 from without or within by legislature.” petition is the the time such received people. any petitioned Time vote “If for 5. law so for rejected, legislature upon or if within no action taken days, secretary person persons of state or other or said such proposed hereafter authorized people law shall submit such law to the approval rejection ensuing general for at the next election.” accompanying See Const com- convention reprinted MOLA, p Ann ment as annotation in 1 and 1 Stats Rev, p App 711 by Levin, to even-numbered established adventitiously election during of the spring because years, in oád-numbered meeting biennial background now factual be continued that the years, meeting now reversed: completely now elections annually, biennially, not annually? held biennially, being elimina- questions may prompted These have 1963 Constitution during drafting tion as a language of the ten-days-before-the-session leave and the decision to filing petition of a time limit the establishment :12 decision a law proposing expressed em- Constitution The conclusion here prescribe time for powers the plaintiffs’ necessarily rejects aspect con- proposing a one law 10-day namely, filing requirement, challenge stitutional *26 legislature directive contention that either within the Constitutional the 1963 by petition reject proposed an initiative enact or the law days petition is 40 from the received session time legislature (Const 1963, 2, 9) precludes legislature art § еstablishing any from other time limitation. petitions provided initiative shall Constitution both that days legislature legis- convenes and that the be filed before the days petition shall within from the time the lature act thereon legislature. apparent is received It is therefore that a filing petitions necessarily for deadline is not inconsistent with a legislature on of time can on limitation the amount deliberate (The petition. days” an initiative “40 time limitation changed “40 session amendment on the floor the 1963 Constitution days.” Record, p 3085].) [2 text, (see accompanying infra) report Also of con- proposed 2, (initiative stitutional convention committee which art 9§ referendum) 10-days-before-the- and recommended elimination requirement, stating legislative detail, session ing that matters of includ- filing petitions, the time for should be left to days requirement; at the same time recommended this indicates that the draftsmen of art of the 40 retention 2, may 9 saw that there § concerning legislation filing petitions need the time for even though the of Constitution retained the limitation on the amount proposed by time the law in- could deliberate on a an petition. itiative Merely pos- because a of member the convention visualized the sibility petition being day of legislative filed last of on the (2 Record, p 3085), entirely possible session elimination of with the 10-days-before-the-session as a con- stitutional implied repeal 472, and the of does not
1970] Club Golf of Seo. v. Opinion by Levin,
“The committee of opinion there is much within the section existing [Const art § 1] of a purely legislative character and, sev therefore, # # * еral exclusions and changes are suggested. Removed from constitutional status are the provi sions on content and time petitions, canvas sing the names on petitions, type sizes and right of the legislature prescribe penalties.”13 (Em phasis supplied.) detail
“Matters contained in the present section the constitution are left legislature.”14
The last sentence of the initiative and referendum section the 1963 Constitution imperatively pro- vides :
“The shall implement provisions this section.” Const 2, § Const 7 provides: “The common law and the statute laws now in force, not repugnant to this constitution, shall re- main in force until their own limita- they expire by tions, or are amended changed, repealed.” or (Em- phasis supplied.) preclude legislation imposing future reasonable time limits as con- templated by the constitutional convention. logistics presenting voting on a proposed may require law well the establishment of time limits in during addition to the legis- limit the amount of time which the proposed lature consider a law. Before consideration begin can must first be canvassed to determine its suffi- ciency insufficiency. After the 40 elapsed session have before the people, issue can be voting submitted to the ballots and strips printed. machine must be requires All this time and it would *27 entirely consistent with 40 day requirement the session and legislature’s duty the the prerogative and “implement” 2, art 9 for § legislature to establish periods canvassing reasonable time for the printing and the voting ballots and other materials. 13Report of the chairman of legislative powers сommittee on of the 1961 convention, constitutional submitting pro- committee posal 118, which, amended, eventually as 2, became 9 § Constitution, 1963 Record, p 2 2392. 14 comment; reprinted Convention 2, 9, as annotation to art 8 1 MCLA 1 Mich Ann Stats 435. 711
744 by Levin, constitutional convention that the I think clear two with the alternative when confronted which, spans months— months and time 10-1/3 —3-1/3 legislature, decision to chose to leave legislature duty imposed of im- which people’s plementing initiative and referendum question important rights, intend that did not by default. he decided would merely restated a 1908 con- Section years adopted which was stitutional convention confided the 1961 constitutional before deciding the time-of- task of legisla- question, embody filing-a-petition a does (Const “repugnant” 472 is tive choice. Section 7)§ intention the constitutional the clear question time-of-filing would be convention that accordingly, legislatively. was, decided impliedly Section repealed by 1963Constitution.
II. declare acts of the slow to as we should be Just equally we should be unconstitutional, finding and deci- choice to avoid careful upon intrude is none. Both where there sion preregotive. It said that has been par- a authority enact “if solely particular from is derived statute ticular repeal provision amendment, operates repeal a or amendment such
of the statute.”15 legislatures authority Whatever clearly 10-day provision de- had to enact the solely lim- Constitution; time rived from the longer filing petitions moment either one itation for Am Jur, Statutes, p *28 745 v. Sec. of State Club Golf Opiniоn by Levin, J. 10-day provision or shorter than could not have constitutitionally adopted in been 1941 or §472 (§2 In truth it is a misnomer to describe act) legislation. legislature might the 1941 as or science; enact a law if nature this were it done, a would remain law of nature or science, and if light proved in to be incorrect of more advanced knowledge it would not becomemore durable because legislature. Similarly, legisla- enacted if light people’s to ture wishes bask in the vote requirement, may and a reiterate constitutional do merely reiterating but the a so enactment is restate- independent ment of the not an Constitution, law.16 If the constitutional so restated is re- legislative pealed, my opinion, then, restate- ordinarily impliedly ment should be deemed re- pealed.17 Any permanent other rule would elevate to legis- represent law an enactment which not a did lative choice and decision and when enacted significance any independent did not have or effect lawas when enacted. To find a intent purpose ignore in such law the salient one must expressed policy fact that the determined there people, legislature,18 would, not the should be legislative, review and legislation provisions in the something ative one tion relied vive the stance.” On the To ascribe [16] kind A “It PA n record of different 14) effectiveness concern repealed voting. but constitutional to become effective else § legal 2 of the 1941 act to No requirements, action. 472 as (Rothenberg follow business question same initiating instrument would 1941 and 1954 1961 constitutional pertinent principle concerning canvassing would be chapter new petitions. v. Follman courts are have been when, nature. Constitution until existing that documents which ascribe an informative XXII of the presented if to legislatures as and if the 1908 Constitution look Sections held in convention that legislation [1969], those through election reality there was evidence [19] 1-3, changed by petitions, preamble purpose legislatures which would Mich form to sub which restate appear law, to act are the conven App represent to enact adopted judicial affirm to both sur be
Opinion by Levin, expect people’s be inconsistent with the well, legislative decisions shall be made when the legislatively. legislature is act free to has where decision are loath to interfere We *29 legislature by people in their made or the been poli- spheres competence in with the accordance legislative processes. It ironic, would be tical to decision, in the name of deference to right people’s deny because of this vestige of a former constitutional nondecisional present deliberately from the Con- deleted judicial add to so to stitution. To do would be legislative inertia. forcefully Judge pointed has out Chief Lesinski unnecessarily clogs people § 472
how propose petition. But in to law initiative when when this first and in 1954 enacted, section was legislature authority it had no to reenacted, was span and reduce the time could not have considered arguments his on the merits. with the adoption of the new it could have done Constitution, legis- It so. seems to me that is sounder let arguments lature consider the of his merits say make the the choice was made choice than to actually legislatures and 1954 —when they had no hold non- choice—and then to that this choice unconstitutional because irrational.
III. inferentially § I am also satisfied that 472 was special legislature reenacted when the met session adoption new 1963. After the of the December, hipar- people 1963,19 Constitution vote of an invade the extraordinary repeal. PA 1963, p prerogative omniscience of the and, as well, sitting presumptuous at the time purpose Club Golf v. Seo. of State Opinion by Levin, J. tisan committee created to legislature, consider and recommend “to the in bill proposed or otherwise, form actions best prompt, orderly implementa- suited and sound recently adopted tion of the state constitution.”20 This committee recommended a number many laws, adopted during
of which were the second extra session of the 1963 which met in Decem- Among (2d Sess), ber, 1963. these was PA 1963 Ex §§471 9,No conformed of the Mich- igan provisions election law 1963 Constitutional (art 2) § concerning and art the initiation petitions. of amendments and referendum It be, has been contended, members bipartisan committee reviewed and de- 10-days-before-the-session provision cided that the was sound and should be continued. But such a committee decision, unless communicated to and en- *30 legislature, legisla- acted is not a law. The delegate legislаtive powers ture cannot its to a bi- partisan legislative A committee.21 law cannot be except provided enacted in the manner in the Con- stitution. legislative body may
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*31 months [1963] ciency contained conform §§ [24] [29] 476, House Under Const Const Const “Of (2d (Emphasis supplied.) [1963] before [477] course, Ex insufficiency 1963, Journal the 1908 Constitution, [MOLA Sess) the election. repeats art initiating (2d 4, 4, No Constitution Constitution.” §§ § this Ex Constitution, 26. 24. 33. 9, 168.476, 168.477; petitions Sess apparently language. a constitutional PA 12, 1963), (art 5, 1941, § 2, changes no but Staff memorandum December designed longer No to be decided at no § Stat 1; 246, changes amendment. bound to Ann 1956 Eev §§ 17, make time 6, are to the details § [7] p 19. 2), required to (PA 1954, least April 22, But PA the [60] changes § § suffi- two 6- 749 Club v. oe Gole Sec. Opinion by Levin, provisions
The wisdom the constitutional pre in the manner which may scribing legislature its is powers exercise illustrated the facts of this 472, case. when did not enacted, represent Section it a legislative choice; merely repeated constitu Now claimed requirement. tional it is that because bipartisan committee have decided 472 that § legislature a sound that represents choice, itself made a choice.30 required chapter in changes XXII of the law to conform it election Constitution, not make of that kind made the 1963 does conforming 476, in changes 477. §§ 30 argument legislature that 1963 relied on 472 as a § begs question' impliedly repealed viable statute when the whether it was repealed, 1963 If so -Constitution became effective. it was nothing rely there was on. Merely printed in book, because 472 all laws invalid because not it statute does not § up estoppel; properly set because an enacted or they printed books, are unconstitutional are and sometimes by significant segments on populace are relied valid invalidity judicially
years before their declared. way Moreover, knowing legislature there no whether thought that 472 would survive effectiveness of the the the 1963 Con- § expression absent an from stitution itself. pure It would be fiction to that conclude was aware rely appropriate of There decided to 472 as an solution. § § particle is not a of evidence that the 1963 focused question. Indeed, points way; on the staff of the the evidence the other bipartisan appears committee to have conceived its func- regard chapter (in tion XXII of the election law 472§ appears) discharged brought to be when it to the attention of the bipartisan conforming proposed changes (see committee footnote 27). bipartisan even if members of And the staff committee thought that or the 472 would continue to be appear effective it does not § bipartisan their view was communicated either to the committee legislature. judicial opinions some has been said that silence promulgation regulation after an administrative or court bearing on decision is evidence or the correctness the administrative judicial (50 Jur, construction of a Statutes, 326, statute. Am 319; pp 318, CJS, Statutes, 359, pp 769, 770.) The inference Sheppard Michigan has opinions. been criticized trenсhant v. (1957), National Bank 577, 599; Employment 348 Mich Park Se v. curity (1959), 103, 139; Commission Girouard v. United (1946), 69, 61, (66 States 826, 1084); 328 US S Ct 90 L Ed Turley (1957), United States v. n (77 352 US S Ct L Wong Yang 2d Sung Ed 1300); 56 ALR2d v. McGrath (1950), (70 339 US L 616); S Ct 94 Ed Porter v. Roach (D Or, 1946), Supp 69 F is no analyze There need to stop and issue. is no There evidence that staff committee or the *32 by Levin, J. legislature, unlikely highly that aware I it think responsibility, aware of its it a choice and has initiating clog people’s would continue time-for-filing by which, while a laws legislature only met in odd- it sense when the made spring years a election in there was and numbered light manifestly requires remolding years, such complete context— of the factual reversal annually meeting legislature now biennially. being now held elections unnecessarily proposing an restric- If a bill such public and after scru- limit is introduced tive time tiny signed by legislature adopted signature, governor his law without or becomes constitutionality. enough its soon to consider will be Summarizing, convention 1961 constitutional legislative of a decision the establishment left to petition filing proposing a Sec- a law. time limit for never law, 472 of election enacted tion merely represented legislative a decision but echoed already language repealed by It was in the 1908 Constitution.
implication when the 1963 Constitution adopted repugnant to the decision it is because the time-of- of the constitutional convention legislative question filing determina- would left to be tion. bipartisan legislature delegated a
The 1963 recommending changes in the committee task of required by corn- but the Constitution, laws continuing legis- publicized 472 as a reliance on committee ever suggested Furthеrmore, that a it has never been lation. can enact a law silence or inaction. is, indeed, replete should, We law with fictions. The common chary indulging regarding however, creating be fictions new repealed legislative a process to do so would when transform and divine out of into a decision op- particularized choice, especially a when the inaction effect at inhibit voters’ erative the case hand would There, perhaps importantly elsewhere, franchise. more than we should assumptions. avoid doctrinaire Club v. Seo. oe State Wolverine Gole Dissenting Opinion by O’Hara, present proposal not mittee did limiting proposing the time question law. That has neither been nor considered legislature. decided has acted. *33 provi- statutory therefore,
There no viable is, limiting petition proposing sion the a time law. a
I concur in the issuance of a writ of mandamus. (dissenting). respectful I am in dis- O’Hara, J. colleagues. agreement my with perceive impingement upon I no the constitutional by the statute involved. Rather, legislative attempt expedite me seems to to be a initiatory process by guaranteeing legislative the early possible given any action as as session. emphasized by specific This fact is the executive Special recommendation to the Second Session Seventy-Second Legislature, the the ac- by bipartisan tion Joint Interim and Committee, constitutionally-mandated recommendations of attorney general. quote I what I consider rele- vant from the and Senate House Journal of thе First (Journal and Second Extra Sessions of 1963 pp 19-20) containing House, Second Extra Session, special message of the Governor: * “* * Accepting responsibilities his under Attorney new constitution the General has recom Legislature mended areas To where must act. Legislature, the distinct credit of the a Joint Interim composed Republicans Committee Democrats from both houses has been hard at work since June [1963] developing specific legislation necessary to requirements necessary meet immediate before * *# January your 1,1964 . I submit for Thus, following consideration and action the O’Hara, Opinion by Dissenting * ** subjects: Referendum.” Procedures for Initiative supra) (House Journal, foregoing that the from the I can conclude legis- [of] responded legislature a “summons not to phrase Hamilton used in the aid,” lative imperative but to herein, later case, discussed imple- shall edict that “the constitutional continuing by provisions section,” of this ment the correctly upon a to be concluded what was reliance saving clause maintained valid statute remaining and ef- force in full III, Article fect.
My precisely this. The total thesis is upon mandate act is under initia- tory legislation from the within 40 session time legislature. This is is received against race fixed time. I do not understand how any starting run That race can be without time. starting time was fixed in the *34 petition be filed with the Secre- that the constitutionally- tary of State ten before the legislative convening of each fixed for the time session.
Admittedly cannot thwart initiatory process for unreasonable time demands Seсretary of with the State. argument questioning bench on oral Persistent response a rea- a for counsel that elicited consensus necessary adminis- sonable time to allow for both the legisla- Secretary of trative action State permissible necessary to tive deliberation is subsequent process. elective avoid utter chaos concept in law a Thus, “reasonableness”, the test regard the I basis law as old as the common itself. reasonably ac- related to to a time test partic- complishment what be done. With of must Club oe Wolverine Golf v. Sec. O’Hara, Dissenting Opinion by judge nlar reference those factors which the chief necessary legis- points absolutely oat were when the years lature met the odd-numbered and there say spring was a I I am election, moved to sure am the Joint Interim and con- Committee, sequently legislature, the whole was likewise aware legislative judgment of the situation. It was still the 10-day provision should be retained. It judgment is that for which I cannot substitute judicial judgment. increasing
I note with concern that courts view concept of “reasonableness” in this context as a judicial legisla- subjective judgment, than rather unsympathetic tive I am determination. to the view. representative government are,We form, co-equal three and co-ordinate branches. The normal statutory legislative method enactment is process. Initiatory safety action is a device as is They people the referendum. reserve unrespon- of an direct action over the head legislature. unrespon- sive But abides; this caveat judicially siveness not be assumed. Rather converse is to be assumed. The instant issue was subject legislative initiatory action, both space years. action within the of two be said Can it deprived repre- the electorate has been of either sentative action, direct action question? presumption strong constitutionality
There is a
Doyle
of a
enactment.
Election
See
v.
City
(1933),
Commission
Detroit
We
Secretary
(1923),
principally,
v.
Hamilton
again
(1924)
appearing
at
227 Mich
Yenter, is even less in In that case clearly impinged upon the constitu- by enlarging upon constitutionally-fixed tion time. greatest possibly mischief could arise in legisla- initiatory once-rejected
this case that this being placed again tion will ballot miss on the (1970). eligible clearly fall presentation It is however for re-
at the in 1972. election If this well recall indeed be a it were mischief, sage Frank- observation the late Mr. Justice *36 Gole Club v. Seo. oe State Dissenting Opinion by O’Hara, J. judicial remedy every furter that there is not a democracy. michief presumptively they
Plaintiffs knew the law when signature began namely, their drive; that a statute required Secretary valid its face with the present legislative ten before the session they began. That chose to wait until mid-June of year an election offer and thus miss one election does not move me to hold the statute unconstitutional.
Mandamus should not issue. notes two present with similar case. situation (1914), State, Kiehl, ex rel. v. Howell Wash (138 expressly 286), P state constitution which self-executing fol- declared itself contained the lowing provision: legislation self-executing “This section is but operation.” especially be enacted to facilitate its expressly section referred to reserved people provided petitions of initiative prior filed at four to the election. were least months (This process.) was a Pursuant direct initiative “facili- laws enacted constitution, process. operation In- tating” the requir- among cluded statutes was a those ing ten than earlier all to be filed not months before the election.