*1 333 Detroit v YOUNG DETROITCITY CLERK Judgment of Law. 1. Action—Question — parties in a A is not conclusive between the determination ques- subsequent on a where a action different cause action judgment actually litigated and essential to the tion of law except personal judgment, a valid and final determined subject causes of action arose out of the same where both transaction; if or and in event it is not conclusive matter injustice would result. Judgment Mandamus—Elections—Mayor. 2. —Res Judicata — judicata apply action Doctrine of res should not to a mandamus compel placing Septem- his name on the a state senator to primary of Detroit ballot a candidate ber Michigan Supreme prevented where a decision of running Mayor new of Detroit in 1969 because a him from in order to take account of inter- determination is warranted change applicable legal vening in the or otherwise context inequitable avoid administration of laws. Appointment Legislature—Civil 3. Constitutional —Offi- Law — cers. provisions Legisla- that no elected to the Constitutional appointment during the term for ture shall receive civil (1) purposes: prevent two basic which he was elected have gain appoint- trading logrolling in vote (2) creating posts prevent legislators new ment and/or [1] [2] [3,11,13-16] [5] [4] [8] [6] [7, 9,10,12] 46 Am Jur 49 Am 47 Am 52 Am Jur Mandamus 487. 16 Am Jur Am Jur, Jur Jur, States, Territories, 63 Am Jur 2d, Judgments 404. 2d, 2d, Judges 2d, Schools 2.§ Am References Constitutional Law Jur, States, 2d, § for Points in Public Officersand § § Territories, and §§ Dependencies 133. 26-29. Headnotes Employees 68.§ Dependencies § 52.§ (Const running 4, 18; for them art 9). 7; § Const *2 Delegate 4. Officers —Constitutional —State Matters. delegate
A state constitutional is an officewhich deals with state matters.
5. Officers —Local Offices —Constitutional Law —Statutes. thing office; completely
There is no such as a local all offices are ultimately derived from the state constitution and all laws are passed by Legislature, cases, signed by the state and most the Governor of the state. Judges Judges —Circuit —State Officials. judges
Circuit are state officials.
7. Officers —State Offices —Local Offices. depends
The distinction of state and local offices on not whether duties, or an official has one more state but whether the office primarily on is local the basis of the overall duties. 8. Schools and School Districts —Public Schools —State Schools Agencies. —State public throughout
All schools state are state schools and agencies of the state. 9. Courts —State Offices —Constitutional Law. Michigan provides in
A section of an article of the Constitution part judicial power exclusively of the state is vested "[t]he * * * ”; thus, justice all courts within the state in one court of part justice clearly of the one court of and state offices are 1). (Const 1963, 6, § Offices —State Functions— 10. Officers —State Offices —Local Appeal Error. performing any Michigan Supreme Holding Court that of an office a state rather than a local one state functions makes decisions. has been overruled later MayOr—City Appeal 11. Officers — Treasurer —State Offices — and Error. Mayor Supreme Michigan that the offices Court decisions Detroit, Park, Highland Mayor and Treasurer of Detroit provision that no constitutional offices under the were state Detroit appoint- elected to the shall civil receive during incorrectly ment the term for which he is elected were (Const 9). decided and should be overruled Mayor—City 12. Officers — the Peace— Charter —Conservator Constitutional Offi- Law —Statutes—State Official —Local cer. Mayor primarily
The officeof of Detroit is local in character office, almost all the duties of that set out in the Charter city, municipal concerns; mayor deal with the fact that peace required perform the conservator of the and must acts laws, by the constitution and state make him a state does not rather, him, official; this is an incident to a local officeheld imposition upon performance a local officer of the of state (Detroit 7). Charter, duties Title ch Mayor 13. Officers — of Detroit —Local Offices —State Offices— Constitutional Law —Elections. office;
Office of of Detroit is a local office and not a state *3 provision prohibiting person constitutional a elected to the receiving any appointment during from civil plaintiff, term for which he is elected does not bar a state senator, being primary a from candidate the 1973 Detroit 9). (Const 1963, 4, election art Concurring Opinion Kavanagh, T. M. C.J. Mayor—State 14. Officers — Officer —State Functions —Conser- of the Peace —State Senator —Elections. vator being Mayor A from a candidate for state senator is not barred during of office func- of Detroit his term because the peace given mayor of the to the of a tion of conservator ago organized police city century there were no almost a when organizations keep peace; departments for a or other appear rarely years is this number of now it would large mayor city, particularly authority by the of a a ever used mayors performed city have functions since become and other extinct; thus, past expressed in decisions of the Michi- the rule Highland Mayor gan Supreme officesof Park Court that the making perform Mayor functions the office of Detroit and state long too its local one has survived a state rather than a underlying reasons. 389 Mich
Concurring Opinion
Williams, <J. Construction—Legislature—Civil Ap- 15. Constitutional Law — pointment-Elections. require process Historical legal factors a interpretation of a Michigan section of an article of the pro- Constitution which person vides that legislature "fn]o elected to the shall receive any appointment civil within governor, this state from the except public, legislature, notaries any or from other authority, during the term for which he is elected” that seems at understanding variance with plain modem language section; as, historically, "appointment” of that means n "appointment” "election” as well historically "any” any opposed (Const means appointment state as to local 4, §9). Construction—Legislator—Elections— 16. Constitutional Law — Mayor Appointment. —Officers—Local Officer —Civil Applying interpretation Michigan a literal constitutional provision legislature that "[n]o elected to the shall appointment receive civil gover- within this state from the nor, except public, legislature, notaries from the or from authority, during other state the term for which he is elected” the\Michigan Supreme say legislator Court would have to a can Mayor seme election to the office of of Detroit because the prohibits only appointments applying legal, constitution a historical, interpretation, on compelled that Court is pased say legislator can seek election to the office of appointment Detroit not because an election is not an but "any appointment because "any civil within the state” means except civil within state” a local one and (Const 9). obviously mayor is a local officer Appeal Wise, J., from Wayne, John M. and from Appeals Court of prior to decision. April Submitted (No. April Term Docket No. *4 54,620.) 10, 1973. May Decided
Complaint by Young Coleman A. and others against Clerk for the City City of Detroit for mandamus to compel accept ap- defendant plication filing Young place and fees of and his name on the the office of primary Mayor ballot for Young City Clerk op Opinion the Court of Detroit. City Accelerated for judgment appealed Ap- Plaintiffs
defendant. to the Court of applied and leave peals Supreme Court for to decision appeal prior Appeals. the Court of granted. Leave Reversed and remanded for issu- ance writ. Brown, Cooper,
Basil W Daniel S. A. William Cilluffo, Hall, Roger Craig, E. Elliot S. Maurice Kelman, George Newman, G. plaintiffs. for Glusac, Counsel,
Michael M. Corporation John E. Cross and Maureen P. Assistants Reilly, Counsel, Corporation for defendant. 19, 1972, J. On December
Swainson, Coleman Young attempted to file nominating petitions and filing fee as a candidate Mayor for of Detroit primary September election to be held on defendant, filing 1973. The rejected by Edwards, George ground on the Young, senator, Coleman as an incumbent running barred from of Detroit 4, 9, provides: which legislature "No elected to the shall receive gover- civil within this state from nor, except legislature, public, notaries from the during authority, other state the term for which he is elected.”
Following rejection, on the same day, Sena- tor support- and a number of Detroit voters ing candidacy brought Wayne his suit County Circuit Court requesting an order mandamus place him September on the 1973 primary ballot as a hearing A was held in mayor. candidate January circuit court on 1973. At conclusion arguments, the trial court issued *5 338 [May- Opinion of the Court opinion dismissing complaint. A formal granting order judgment accelerated in favor of defendant entered on January 1973. filed a
Plaintiffs claim appeal in Court of Appeals and concurrently filed an emergency ap- plication Supreme in the Court for bypass. This Court granted bypass on leave March 1973.
Several issues are on appeal. raised The first issue is whether the decision in Leadbetter, Young 52,523 2, 1969), No (July plaintiff preventing from running in mayor judicata is res as applied to In this case. Young case, our Court affirmed a summarily circuit court decision preventing plaintiff on the appearing ballot mayor candidate based on Const questions Where involved, law are the courts have been reluctant apply the rule of res judicata. general The rule is Judgments, found in §70, Restatement pp 318- 319: question judgment "Where a of law essential to the is
actually litigated and determined a valid and final personal judgment, the determination is not conclusive parties subsequent between action a differ- on action, except ent cause of where both action causes of transaction; arose out subject same matter or in any if injustice event not conclusive would result.” section,
*6 A proposed draft of this revision Re- Judgments, 2d, statement Tentative Draft No. following exceptions states use of doctrine of res 68.1: judicata litigated "Although actually an issue is and deter- mined determi- judgment, a valid and final relitigation judgment, nation is essential to the subsequent parties in a action is not issue between the following in the precluded circumstances: "(b) [*] [*] The issue [*] is one of law and * * * [*] [*] [*]
"(ii) A determination is in order to new warranted intervening change applicable of an take account legal tration in the inequitable context or otherwise to avoid adminis- * * * of the laws: The of this section purpose explained by is as follows: Commentary, "A rule of law declared an action between two time, binding
parties should be on them for all especially has been arising proceeding to claims after the first concluded, litigants when other are free to preclusion urge might might deprive rejected. that the rule should be Such changes unduly delay needed in the law and litigant right of a the court was recognize litigants in same prepared to for other position.” Supreme
The United States Court has shown a questions apply judicata pure reluctance res to In Commissioner of Internal Revenue v law. Sunnen, 591, 599; 715; L 68 S Ct 92 Ed 898 US (1948), thé Court stated: judicial of a taxpayer may "A secure a determination matter, may recur with-
particular tax a matter which But years for some thereafter. out substantial variation a change ples significant subsequent facts or a modification of the controlling legal princi- development in the or or erro- may obsolete make that determination neous, purposes. If a determina- such at least for future succeeding year as to the perpetuated each tion is then original litigation, he is ac- taxpayer involved in the given from that different corded a tax treatment other result, As a there are class. taxpayers of the same laws, of the revenue inequalities in the administration [May- discriminatory distinctions in liability, tax and a fertile litigious basis confusion. Compare United States v. Co., Stone & Downer 274 U.S. 235-236 S Ct [47 616; (1927)]. 71 L however, Ed consequences, Such are neither justified nor principle necessitated estoppel. principle collateral That designed prevent repetitious lawsuits over matters which have once been decided and which have static, substantially remained factually legally. It is not meant to create vested rights in decisions that have become obsolete erro- time, neous thereby causing with inequities among taxpayers.”
This is a case where the doctrine of res judicata
apply
should not
because of the reasons
stated in
68.1(b), (ii), supra. Plaintiff has raised a constitu-
tional
challenge
if it
§9
prevents
him from becoming
a candidate
Mayor of the
Detroit. Since the time of the
*7
Young
case,
first
there has
great
been a
deal of
" * * *
change
applicable
in the
legal
context
* * * ,”1
addition,
In
judicata
rule of
res
" * * *
applied
should not be
plaintiff
in order
inequitable
to avoid
laws;
administration
* * *
Young
.” The first
case is not a case that
has been reaffirmed
on numerous
occasions. The
case was decided
opinion
without a written
during
the last Detroit mayoral
primary
election.
It
clear
any
legislator
other
could raise
these
issues
and would not be precluded
from
Thus,
doing so.
is inequitable
prevent
plaintiff
doing
from
so. We therefore hold that
1
cases have been decided
both the Federal and state
Numerous
expanding
right
right
courts
and
vote
to run for office since
See,
Blumstein,
example,
330;
995;
1969.
Dunn
405
v
US
92 S Ct
Cornman,
(1972);
419;
1752;
doctrine of res plaintiffs does not bar of action in this cause case.
Thus, reach the we basic issue in this case which 1963, 4, is whether Const art plaintiff 9 prohibits § from being a candidate for the office of of Detroit?
I. predecessor 1963, 4, The to Const art first §9 appears Michigan Constitution. Const 4, art 18 provided: § person legislature "No elected a member of the shall appointment state, any receive the senate of the United governor civil within this toor States, governor, from the senate, legislature, and from any or other authority, during state All such person shall be void. No the term for which he is elected. appointments given and all votes any any
so elected for appointment such office or legislature member of the shall be interested, directly or indirectly, any contract with thereof, any county the state or by any authorized law passed during elected, time for which ishe nor for year one thereafter.” 7 was the successor to Const provision provided: That "No legislature elected á member of the shall receive senate of the United notaries the civil within this state or to the governor, except States from the public, senate, governor or from the legislature, authority, during other state term for appointments which he is elected. All such *8 given all office or any person votes any so elected for such appointment shall be void. No member of the legislature any authorized directly shall be interested or indirectly in any thereof, county contract with the state or any passed during by the time for law which elected, year he is nor for thereafter.” one 389 Mich Opinion op the Court This in turn derived from NY Const 1, 10 which provided: legislature, "No member of shall receive civil appointment governor from the and senate from the legislature, during the term for he shall which have
been elected.”2
provision
passed
This
was
without a rollcall vote
by
the convention on November
1821. See Re-
port of the
Proceedings
Debates and
of the Con-
vention of the State of New
York —1821
L. H.
Clarke, p 339; Journal of the Convention of the
State of New York —1821 published by Cantine
Leake,
p 460. This section
was
debated
because there
importance.
was
on its
unanimity
The purpose of the
provision
New York
was stated
in Stewart
by the Court
City of
York,
New
(1897).
App
548;
Div
The first case to discuss Lennon, 4, 18 Ellis 86 Mich was (1891). Lennon elected Respondent had been term Bay City two-year an alderman West for a April commencing resigned 1890. He on April appointed police 1891 and was chief of he The Court held that must vacate office city. provided in provision of a charter which because 472): (86 Mich part " appointed any elected alderman shall be or '[N]o during for which he city office term other alderman, ***.’” elected as 473): (p say
The Court went on to provides "The that— Constitution " Legislature member 'No elected a State, appointment receive within or shall to the Governor and civil States, Governor, of the United from the Senate Senate, Legislature, from the or during the for which he authority, other State term elected.’ prevent purpose statutes is to officers "The of these using positions in the creation of their official themselves, for the of them- offices for selves resignation, or right place. law concedes While away take all policy it is inducements its
to the vacation of office.” op Opinion the Court Thus, as the Stewart supra, and the Ellis case, out, case point this and similar constitutional provisions3 have two basic purposes: prevent
1. To vote trading logrolling in the gain an appointment and/or prevent legislators To from creating new *10 posts and then running for them. dealing
The next case with problem and the first one directly to apply 4, Const 18 is Fyfe v Kent County Clerk, (1907). Fyfe awas state senator applied who for writ of mandamus after the county clerk place refused to his name on the ballot as delegate to the Consti- tutional Convention of 1907. The Legislature had passed a law providing for the calling of a consti- tutional convention. The Legislature set the rate Plaintiff, at pay per day. senator, $10 as a state was of course a Legislature member when passed. this law was The Court that plaintiff held was barred 18 from serving delegate as a to the constitutional convention. The Court held "appointment” the term syn- was 350): onymous stating (p to "election” delegates "It is conceded that to the constitutional convention are State officers. It is held in deci- several 'appointment’ sions that synonymous the terms and 'election’ are said, speaking through terms. court This Hurlbut, People Justice v. Mich. 44 Christiancy, [1871]: " 'The Constitution to have does seem made clear "ap- distinction between the "election” and the pointment” officers; section art. terms usually as synonymous, seem be used and what properly termed the more election ” designated appointment.’ senator is there as an provisions preventing general legis For a review of constitutional offices, accepting lators ALR from other see 118 cases cited therein. Detroit Opinion op the Court meaning on explain then went
The Court
350-351):
(pp
provision
of this
delegates
conven-
to the constitutional
"The duties
no
exclusively
They have
to affairs of State.
tion relate
perform
function. The
than a State
other function
therefore,
receive
question,
is: Does such an officer
only
State au-
or election from
other
his
just
If the
previously
the three
mentioned?
thority than
members
of the Constitution meant to exclude
framers
offices,
legislature
eligibility
to other State
of the
no
that of
officers
language
comprehensive
could be more
than
authority.’
'any other State
These are State
appoint-
authority. They receive a civil
elected
ment from
State
authority.”
State
Thus,
three
Fyfe
ineligible
on
is clear
First,
grounds.
the functions
involved
separate
local
opposed
to state as
exclusively
related
delegate
a state constitutional
Obviously
matters.
Second,
deals with state matters.
is an office which
plaintiff
was a member of the
*11
, the
position.
precisely
the
This is
which created
Legis-
the
Finally,
of evil condemned
Ellis.
type
delegates
compensation
lature itself fixed the
for
convention. This is an inde-
to the constitutional
right
the
to run for
pendent
denying Fyfe
basis for
compen-
the
Legislature
office.4
sets
When
office,
compensation
or increases
sation for an
office,
legislator’s
type
term of
the same
during a
creates
problems
arise as when
trading might
whereby
occur
the office itself. Vote
legisla-
an office for which a
compensation
in return for his
to run was increased
tor desired
recognized that
The Court
vote on another matter.
include a
to
increased
I, 6,
Const,
§
receive
The United States Constitution
art
clause Ala
during
specific
4, 45;
§
2;
their term of office.
ND
clause which
Const,
Const, 39;
if the
art
§
states that
4,
compensation
and Wash
§
59; Del
See,
legislators
many state constitutions
Const,
Const,
example,
for that officehas been
art
art
are not
2,
US
2,
§
13.
§
Const,
14;
eligible
Miss
art
State, they and that are to the extent they to which act a State authority. "But is that true of the voters Wayne county when choosing among their county number a officer whose duties adjusting consist of against claims county? 8), (section present Under Constitution art. supervisors the board of given power exclusive fix the compensation salaries and county of all officials provided by otherwise supervisors law. The board of having —in auditors, counties county such auditors— adjust shall against all claims respective counties. Appeals are authorized from the decision of the board supervisors or auditors to the circuit court in such prescribed manner shall be It law. is to be noticed, therefore, auditors, county under this provision Constitution, are limited in their duties to the implies, functions which their title that of an board, auditing and that their duties auditing consist of against respective claims their powers counties. The fixed the new Constitution are less broad than existed under the old Constitution. It is to be noted that *12 the office was not created while the relator was a legislature, member of the and the duties of the office character, purely referring are local in entirely their ” added.) county. (Emphasis affairs of the Supreme recognized if thus a distinction The primarily of office are in character. the duties local thing com- there is no such as a It is clear ultimately pletely All de- local office. offices are are the State Constitution all laws rived from passed Legislature, cases, state in most signed by Moreover, the Governor of the state. county auditor certain duties even local had at were state under the laws time which Lindsay, stated in duties or as later Murtha v (1915): Mich " * * * upon imposition officer of a local
performance
duties.”
of State
controlling
CL,
law
Under 1897
which was the
Lodge decision, the Board
at the time of the
Wayne County did
several state
Auditors of
have
county
§
auditors had
Under
duties.
" * * *
provide
place where such
a suitable
designated
judges
judge
to hold
or
are
circuit
*
* *
judges
officials,
court,
.” Circuit
are state
Secretary
State,
381 Mich
Richardson v
(1968).
appor-
of auditors
Under
board
county
taxes. Under
tioned the state and
before
required
entering
office the auditors were
" * * *
county
office of the
treasurer a
file
* * *
(Emphasis
people
state,
.”
to the
bond
added.)
Thus,
of state and
the distinction
is clear that
depended
an official
on not whether
local offices
duties,
but whether
one or more state
had
primarily
on the basis of
local
office is
following criteria were thus
The
overall duties.
early
cases:
these
established
ap-
applied
as well as
to elections
1. The ban
supra.
pointments.
Lennon,
Ellis v
office, then,
If
created
*13
3. If Legislature the increases the compensation office, of an an incumbent legislator is likewise barred from succeeding during his term to the office even if it is local in character. Fyfe v Kent Clerk, County supra; Lodge v Wayne County Clerk, supra.
4. If the office is elective and the did not create the during office a member’s term in office, and did not increase the compensation dur- ing the office, member’s term in then the issue becomes whether the office is primarily local or in character. Fyfe Clerk, v Kent County supra; Lodge Wayne Clerk, County supra. If it is primarily character, local in then the ban does not If apply. office, it is primarily a state then the ban does apply. Our Court in a series of decisions following Lodge adhered to these distinctions.
III. In Murtha v Lindsay, (1915), plaintiff, held that legislator, incumbent could not by reason of Const 7 be a candidate for Judge the office of of the Recorder’s Court of City of Detroit. The Court stated (pp 81-82): mischief,
"The Constitution
preventing
is aimed at
not at remedying
present
its
juris-
effects. Whether the
diction of the
single
recorder’s court was conferred in a
legislation
acts,
act of
or in successive
it is
now court
possessing a
jurisdiction,
including jurisdiction
certain
try
persons
all
of crimes
accused
committed within
city
jurisdiction
of Detroit.
may
This is
which
op
Opinion
the Court
with,
conferred,
people of
by
nor be interfered
be
into
It
exercised
inducted
locality.
recorder, not
a local office
office of
as an incident
him,
imposition upon
officer of
nor as an
a local
held
* * *
performance of State
The recorder’s
duties.
is,
exercising jurisdiction
try persons
court
when
State,
crimes,
general
under
laws
accused
court;
judges exercising
powers of a
its
a State
*14
Jackson,
People
If a
judge.
v.
Attorney
Burhans,
General ex rel Cook v
(1942)
Mich 108
quo
was a
proceeding
warranto
right
determine defendant’s
regent
to serve as a
University
Michigan. Defendant was a mem-
ber of the state
who had been elected
regent
University
Michigan during his
term of office. The Court held that regent
is a state
office and that defendant
ineligible
to serve.
111):
The Court
(p
held
State, institution,
university
obligation
"The
is a
with
*15
legislature
regents
on the
officers
to maintain it. The
are State
and,
regents,
body
as the board of
constitute the
'Regents
corporate
University
as the
of the
known
of
general
supervision
Michigan’ and
the
of the
have
expendi-
University and the direction and control of all
11,
1908, art.
university
tures from the
funds. Const.
Regents
People,
University
5. In
of
of the
of
for use
§
Brooks,
[1923],
the
Michigan,
board of perform to State by the Constitution ment created functions.” by
This was the final case to be decided our 5, 1908, Court Const art 7.5 under § 5 subsequent opinions recognized Attorney in the The General offices under the 1908 Constitu distinction between state and local tion. 1957, 2988, 13, See, OAG, pp (May example, No 247-248 for 1957): prohibited recapitulate: a state office is not "To The holder of 351 State, Mich 381 of Secretary
In Richardson
(1968),
held
Court
that an incumbent
the
304
ineligible
newly
created
run for a
was
senator
The Court held unconstitutional
judgeship.
circuit
152
1968 PA
judicial power
usurpation
aas
not
the
is
that
term "election”
provided
which
in
used
"civil
as
appointment”
with
synonymous
that
1963,
4, 9. The
further held
art
Const
§
previ
4,
interpreted
to be
the same as
9 was
art
§
provisions in the
and 1908 Constitutions
ous
of
constitu
meaning
previous
the
that
into the
brought
forward
provisions was
tional
recog
implicitly
The Court thus
1963 Constitution.
applied
local distinction
nized that
the state versus
*6
constitution.*
under the new
becoming
being
a local
thereby
a
elected to
candidate for and
from
office.”
interpretation
great
support
that
a
deal
for the Court’s
There is
5,
1908,
4,
basically
§
the
121-122
art
7.
9 is
same
Const
§
Const
1963).
(June 17,
1963-1964,
4169, pp
An article
No
See OAG
Convention,
Nord,
delegate
by
a
to the Constitutional
Melvin
who
(1964)
Wayne
Michigan
L Rev
The
Constitution of
change
supports
basically
9 did
that art
not
view
5, 7:
(Ineligibility
legislators
appointments):
for certain
"Section
(1)
principal changes
section are:
the elimination
The
this
legislator
being appointed
disqualification
Senator;
from
a United States
of a
(2)
appoint-
language, 'All
such
the elimination
given
any person
for
office
so elected
such
ments and all votes
change
be
The latter
was not considered
shall
void.’
thus,
change;
by
be
substantive
Constitutional Convention
provision
prohibits
judicial construction that
also
the former
election,
purely
legislators running
local
not
but
for state office
office,
if
'words’ of the Constitutional
should be continued
(in
speak
People’)
allowed to
are
Convention
louder than their actions
the 'Address
'votes,’
relating
(deleting
the sentence
tending
'appointment’
only language
that
to indicate
in the section
'election’).
position
precisely the
which has been
This
includes
taken
accordingly
Attorney-General,
has
rendered
who
may
legally
opinion
legislators
run
election to
(since
officers,
judicial
judges
in view the
'state’
fact
all
are
office
justice’
single
with
'court
the new constitution creates
added.)
divisions.)” (Emphasis
several
Proposed
People
State
New
See
Address to
also
—What
prepared
pamphlet
with
accordance
Means to You—a
Constitution
*16
1,1962),
(August
p
However,
in a
of
trilogy
decisions issued before
general
the 1968
election and 1969
pri
Detroit
election,
mary
the Court held that
the offices of
Park,
Highland
of
McCoy v
of
Board
Elec
tion
Highland Park,
52,217
Commissioners of
No
(Oct. 22, 1968); Mayor
Detroit,
Young v Leadbet
ter,
52,523
2,
No
(July
1969); and Treasurer
Detroit,
City
O’Brien v
Detroit Election Commis
(1970)
sion,
IV. In O’Brien v of Detroit Election Commis- sion, supra, referred Attorney Gen- p People, supra, See also Address 55: justice’, incorporating concept “1. It creates a 'court of that the divisions, single devoting state has a court each with several its judicial (Emphasis attention to added.) certain level of administration.” 1963-1964, 4169, supra, p OAG No *17 City 353 the Council of rel Moreland Common
eral ex (1897). In Detroit, 145, of 112 Mich 166-168 City the Mayor that the of case the Court declared the was a state officer within of Detroit City 5, 15,8 he was meaning because of Const peace the and had other of a conservator 9 the existing look at then law.8 A close duties under re Attorney General case demonstrates that in on the facts peculiar was reached based sult Mayor Pingree, while an incumbent volved. Hazen Detroit, elected of had run for and been City to Michigan. State of He refused Governor of the a Supreme and the Court issued resign mayor Coun compelling the Common writ of mandamus special vacancy a election to fill cil to call on its decision office. The Court based mayor’s theories; first, of that the office separate two and, second, two office; a state mayor is incompatible. ground The second were offices holding to Mr. dual office proper deny one discussing The Court cited several cases Pingree. Goff, State v including 15 RI incompatibility (1887): 507; A9 226 is the and incompatibility character "The test as where one subordinate offices:
relation the revisory other, degree its subject in some are the functions of the two offices power; or where inherently inconsistent and In repugnant. such cases cannot uniformly same has been held offices.” hold both mayor of Governor and is clear that offices
It §653, 1 How under incompatible, because were (1882), power remove had Stat the Governor 8 holding congress, any person under the office member of nor "No state, governor.” States, the office or this shall execute United of Detroit were enumerated The duties 1). (Act Chapter Acts No Local the Charter of Opinion op the Court mayor certain violations of the Hence, law. the Court could have reached a decision without determining the issue of whether the mayor is a state officer. The all to indicate that seems office holders were state officers because they were " * *.* created by state law and are part all the one great scheme of State government.” However, Mich 154. the later Lodge and Weza cases do accept this analysis recognize *18 distinction between state and local Any offices. in intimation Attorney that General performing any state functions makes an office a state rather than a local one was superseded Lodge and Weza. case,
In the McCoy supra, the Court accepted the rule of the Attorney General case without analyzing it in light the of later decisions. The McCoy was pressure case decided under the of an impending election. The time filing between the of application the appeal leave to and the decision of the only Court was days; five 17 October to 22, October 1969. The cases were likewise other decided under pressure impending of elec- tions.10
After thorough issue, a consideration we Leadbetter, McCoy, Young hold that v and O’Brien cases incorrectly were decided and should be Mayor overruled. The duties of the of the City of Detroit in the are set out Charter of the City 11 1918, IV, Title ch 7.* It is clear Detroit — Leadbetter, Young supra, application appeal In v leave 2,1969. 24,1969 July on was filed on June and a decision rendered In Commission, supra, application City O’Brien v Detroit Election August appeal 1969 and an order issued on for leave August was filed 19,1969. passed pursuant 1909 PA See also Const The Charter etseq.; etseq. A 5.2071 22 and MCLA 117.1 MS IV, 3,‘§7 City Title ch of the of the Charter Detroit reads as follows: City reading of
from a these duties the office is local in primarily character. all of the Almost municipal deal with duties concerns. The fact that mayor peace is the conservator and of the required perform must acts Constitution by the laws, and state does make him state official. Rather, Lindsay, Murtha in the language Mich such are: duties " * * * him, an incident to a local held office * * * imposition upon perform- local officer of ance of State duties.”
We hold that the office of of Detroit a local office and not a office. mayor city "The shall be the chief executive officer peace, powers of its conservator and his be as duties shall follows: "(a) keep place city He shall an officein some convenient council; provided by be the common "(b) pertaining municipal government See all laws to the city, faithfully and all ordinances of the common council are observed report thereof; and executed and to the council violation "(c) appointments Make to office and make therefrom removals prescribed Charter; in this "(d) city faithfully comply that all See officers of with and *19 discharge duties; their official “(e) Give the council time to from time such information and necessary expedient; such recommend measures as he shall deem or "(f) affidavits; Administer oaths and take "(g) upon ordinances, proceedings adopted by Pass all resolutions or council; withholding approving approval same, either from the part and in his discreation veto in whole or in action of the subject power pass council to the the common of council the same provided; over his as veto herein "(h) annually budget appropriations to the Submit council a of succeeding year; fiscal "(i) may Issue and revoke in all licenses under cases where licenses be granted city, except hereunder and the ordinances provided, approve issuing herein otherwise and bonds filed on the of licenses; such "(j) through purchasing department city purchases Make office; supplies of all materials and in his used and "(k) required by Perform all acts the Constitution and laws of the specifically state and this Charter not.” herein whether enumerated or Mich 333 Opinion by Kavanagh, T. M. C. J. plaintiff 4, § does not bar being primary a candidate in the 1973 Detroit election. judgment of the
The circuit court is reversed the cause is remanded for the and issuance of the requested. public question being costs, No writ as a involved.
T. T. G. Brennan, Kavanagh, Williams, E. JJ., M. Levin, Coleman, S. concurred with SwAINSON, J. judgment in the
T. M. C. J. concur Kavanagh, I joined opinion since I of the Court. However trilogy majority of deci- of the Court the sions in which the Court held that the offices of Mayor Highland McCoy Park, v Board of Elec- of Highland Park, No 52,217 tion Commissioners (Oct. Mayor Detroit, v Leadbet- 22, 1968); (July ter, and Treasurer No 52,523 2, 1969); Detroit, Commis- Election O’Brien Detroit sion, Au- decision rendered 383 Mich (1970), gust state offices under Const were 19, 1969, explanation 4, 9, is in order. reasoning upon
In cases we based our those city performs mayor of a fact certain including, not exclu- but for the state functions sively limited, that he is a "conservator to the fact "performing any peace” state and therefore of the functions” makes a a rather than the office study this func- indicates that Further local one. city mayor given of a almost tion organized police ago century no were there when keep organizations departments or other appear years peace. now would For a number authority rarely used ever is this large city. particularly city, mayor Other of a *20 Opinionby Williams, J. mayors performed functions have since become extinct.
Thus,
expressed
rule
past
our
decisions
long
has
too
survived
underlying
its
reasons.
Frank awareness of these
prompts
factors
candid
made by
admission as
Mr. Justice Jackson of the
in McGrath v Kris-
Supreme
United States
tensen,
162, 178;
224;
340 US
71 S Ct
what similar by embarrassment saying, 'The matter appear does not to me appears as it now to have LTR(NS) appeared to me then.’ Styrap, Andrews v 704, 706 And Mr. Story, accounting Justice [1872]. his contradiction of opinion, quite his own former prop- erly put error, however, 'My the matter: own can ground being furnish no for its adopted by this Court. ’ * * * Gooding, United States 12 Wheat. [25 US] (1827)]. L Perhaps Ed Dr. really [6 Johnson went to the heart of the explained matter when he a sir, blunder in his dictionary 'Ignorance, ignorance.’ — escape But an self-depreciating less was taken Lord who, said, Westbury, it is rebuffed a barrister’s reliance upon an opinion Lordship: earlier of T only his can say that I am my intelligence amazed that a man of should guilty giving have opinion.’ been such an If there are ways gracefully other and good-naturedly surrender- ing former a position, views to better considered I invoke them all.” explanation
With this I opinion concur the Court as authored Justice Swainson.
Williams, (concurring). J. opinion This is as respectful suggestion much a to the next Constitu- legal tional holding. Convention as The reason this is that require historical factors process interpretation legal seems at with variance modern §9 under- *21 Mich 333 Opinion by Williams, J. plain standing language section. As the of that interpretative happens, in this case result but the common out the same whether turns people really required one the is is want result Only impossible say. a Conven- to Constitutional get clearly can out of mess we are in. tion us 4, § 9 art reads: legislature elected to shall receive "No gover- appointment within from any civil this state nor, public, legislature, except or notaries from the any during the authority, other state term he is which elected.” reading any 4, §9
If outside of we were precedential context, would un- we historical doubtedly "appointment” just that, is, read as appointing authority opposed designation by as an interpret people. "election” We would to "any appointment civil within this state” as geographical state, office within the confines local as well offices. thus include as state historically, my However, as Brother Swainson points "appointment” clearly out, means "elec- "appointment”. Likewise histori- tion” as well as (before cally which must be the 1963 constitution it) "any” adopt means assumed appointment. opposed to local interpretation Applying 4, § 9 to of art literal a say a have instant this Court would case Mayor legislator office of to the can seek election prohibits only Detroit, the constitution because legal, appointments. Applying a based on histori- compelled say interpretation, cal, legislator this Court is office of to the seek election can ap- an election of Detroit not because pointment appointment "any civil because but "any civil means within state” Opinion by Williams, J. except Obviously within state” a local one. is a local officer. A mayor literal common sense interpretation and a interpretation historical reach same almost conclusion on §9 diametrically opposite rationale. I
For these reasons concur Brother my with there is no legal other choice. Whether Swainson, this is the will of really people say. is hard people’s expressed contempo- If the will is by the 4, 9, understanding plain rary words of art *22 no difficulty. this Court has If the will is people’s legal expressed by interpretations history, there is also no But if difficulty. people approving the 1963 constitution on part relied plain language part and in history,1 on only speculate people really Court can on what had in mind. Recent suggest they referenda what in mind today may something have be different a correct plain language either or historical Howevér, interpretation. perforce this Court It by history bound the law. is for these I suggest reasons the next Constitutional might language Convention well consider fresh comprehensive spe- this section reenforcéd Feyond cific committee to make clear commentary per people’s actually adventure whatever will is. opinion, page footnote See Justice Swainson’s.