*1 381 304. RICHARDSON SECRETARY OE STATE. Opinion op the Court. During Legislators—Civil Appointment Law — 1. Constitutional Term. ap- person shall receive civil No elected to governor, except notaries pointment within this State from the authority legislature, from or from other State public, during (Const for term which he §9). op

2. Same —Construction Constitution. province is the of the courts Construction the Constitution Supreme of a State constitutional and the Court’s construction binding departments government, includ- provision is all ing legislature. op Legislature—Construction Separation op Powers — 3. Same — Constitution. Attempt by legislature by “civil to construe statute the words beyond power appointment” as Constitution was used expressly prohibited interpretation is since sueh powers provisions separation constitutional exclusively (Const judicial powers court vesting 152, amending 1; PA art 6 PA § 116, 2). in New Provision Construction —Retention Same —Judicial Constitution. in a or revised Consti- A retained new presumed have been retained will be tution or amendment given knowledge previously it of construction courts. [2, 8, ^[4] [1, 5-8,10] 9] Ato 16 Am Jur Jut 42 Am References 2d, Constitutional Jur, 2d, Constitutional Publie Officers 63. por Points Law Law in Headnotes §§ oe State. 'v. During Legislators'—Civil Appointment Term. 5. Same — legis- elected to the receiving any State au- lature thority applies term for which he is elected legislature seeking election as circuit member *2 commencing before the end of his term as member of terma prohibitions in earlier Constitutions legislature where identical 1963, (Const 4, 9; given construction art same have been § 511). 1961, 236, 127, amending 1968, PA No No PA § Changes During Legislators—Civil Appointment Term — 6. Same — Provisions —Effect. Constitutional against prohibition Constitution of both Deletion from State being States appointed to the United members of rendering “appointments and void all and senate any appoint- for office or given for so elected votes legis- framers to allow intention of ment” did not indicate during legislators judgeships as where terms lators to seek of requirement surplusage because Constitution former congress provides that each house of the States the United judge qualifications own members of its be the shall light wording surplusage was deleted as and latter by legislator acceptance appointment prohibition of of civil 4, 9; 3, 1963, PA (US Const, 1, 2, 5; Mich art Const art § §§ 1961, 236, 511). 1968, 127, amending PA No No § During Legislators—Civil Appointment Term —Offer Same — 7. Legislature Resign from —Effect. to resign legislator should he be elected by a to his seat An offer eligibility and counteract judge operate to will not create holding against such elective prohibition his during for he was elected to the the term office 9). (Const art Dissenting Opinion. J.

O’Hara, During Legislators—Civil Appointment Law — 8. Constitutional ' Change Provision. in Constitutional Term — given appointments and all votes phrase, “all Deletion of void”, he any person shall so elected such office for receiving legislators provision disqualifying State from during provision was appointments terms when that their civil Constitution, term brought continued use into 196S of' office”, indicate appointment” “elective instead “civil hy provision ivas the sought prevented he the evil to former Mich 304. legislature by shopping im the as result powers governor’s many State former prohibition that such an absolute was not intended offices to seeking by legislators apply elective under 7; (Const 1908, art art the 1963 Constitution Const §9). Interpretation Constitution- —Statute. Same — Legislative attempt appointment” to construe words “civil as sep- was unconstitutional as violation used vesting judicial power powers aration m the court (Const 1963, 9; 152, amending PA PA 116, §2). During Legislators—Civil Appointment Term. Same — receiving legislator legislator apply his term does not to a position judge, seeks as circuit but in who elective order resign legis- as his serve he must seat if (Const 1963, 9). lature

Appeal by emergency granted leave from Court *3 Appeals, P. and H. Lesinsld, J., Division J. Gil- granting Levin, JJ., lis and mitted Docket No. writ of mandamus. Sub- July (Calendar on No. 13, briefs Opin- 52,122.) July 29, Decided September 26,1968. ions filed Appeals by Original mandamus action Court against Hare, L. Richardson James Sec- Robert retary M. Waite, Esther Zoe Burk- State, Shaffer Conyers, Schoener, P. and Nathan G. holz, James Board of State Canvassers and members of the Ormsby, Gladys Raymond E. Jordan, Glenn June of the Board of Election L. members Com- Dankers, compel county, Saginaw certification missioners of candidacy judge for the office circuit of his judicial Peremptory granting circuit. order 10th Secretary and Board of Defendants of State writ. granted. appeal by emergency leave State Canvassers writ denied. See Mich 762. Reversed of State. propria persona. Richardson, Robert L. Kelley, Attorney

Frank General, J. Robert A. Derengoski, Solicitor General and Russell A. Searl, Attorney Assistant for the General, defendants. appeal, granted,

Per Curiam. This anis on leave Secretary of defendants, State and Board of State Appeals pro- from a Court of Canvassers, order, in ceedings originating in that Court, for issuance of a charged writ of mandamus them and others directing with enforcement of the election laws, them certify plaintiff, forthwith L. Robert Richardson, duly qualified aas candidate for of circuit primary in the 10th circuit, August election to 6,1968. be held question The is whether barred candidacy by Michigan Constitution of 1963, §4, 9, which reads: person “No to the shall receive any civil within this state from the governor, public, except legisla- notaries from the authority, during or from ture, other state term for which he is elected.” provisions Michigan

Similar Constitutions of 1850and 1908are as follows:

Constitution of 18: “No elected member of the shall receive within state, gov- States, to the senate the United from the legislature, ernor, senate, from the *4 any authority, during other state the term for appointments which he is elected. All such and all given any person any votes for so elected for such appointment officeor shall be void.” 381

«308 § 7: 1908, 5, Constitution person a member elected “No any state within this receive shall gov- from the of the United States to the senate or ernor, and authority, public, except or from notaries legislature, or other state senate, elected. the term for which he is given appointments All and all such elected for such officeor so be void.” shall

In No 1968the enacted Act 152,1 provides, inter alia: synonymous term ‘election’ with the “The appointment’ appears ‘civil

term as term '9of article 4 the state section constitution.” -undisputed plaintiff The are that facts was elected general at the November election of 1966to the office commencing four-year of State senator for a on term January January ending oh 1, 1967, 1, 1971. qualified serving office, He for that seated and aas member of the senate for that term. Under 1968, an circuit 127, PA No additional 2 the 10th at the 1968 circuit January general 1, November to take office election, secretary timely with 1969. Plaintiff State filed .the nominating petitions for himself a candidate as together judgeship an affidavit of his for such qualifications. determined The board of canvassers petitions affidavit were in order but that the certify as a candidate declined.to ground primary August on the election 6, 1968, 1963, barred therefrom he was quoted. § com- Plaintiff then filed above 600.511, 168.2, PA PA Stat Stat Ann 1956 Bev Ann 1962 Bev amended amended § 27A.511).—Beporter. 6.1002).—Beporter. PA PA No 236. No § (CUS (CLS *5 309 S-gckiíI'ary ok StAtR. Eichakdson v. Opinion of Appeals seeking plaint of the the Court an in order superintending in control the nature of of mandamus order of that the Court writ of and secured appeal by this is from which taken mandamus de- fendants. George Eomney 1968, filed

On Governor 25, June request, of under Constitution with this Court opinion advisory § for an as to the 1963, 3, art 8, constitutionality 1968, of PA No 152. that re- While application quest was under consideration the appeal calling only filed, take this leave to question constitutionality of the of for determination meaning of also, the the act, but, of the § Accordingly, 1963, 4, 9. art contained Const request granted, appearing governor’s was not it problem could better re- entire related of this case. decision solved ' Michigan of di- Constitution government powers into State’s vides three branches. powers It exercise of forbids another. Const one branch exclusively power judicial of the State 1,'vests the Interpretation justice. court of one judicial function of is the exclusive is the of the Constitution branch. Construction province and this Court’s construction of the courts binding all a-State including government, legisla- departments § Law, 2d, 16 Am Jur ture. See p Dudley’s Hamilton v. in Bank As said (7 (2 Pet) (1829), 524 L Ed Lessee 496): US every government department “The emphatically expositor rightful its laws; supreme of its law.” .. v. Auditor In connection cites Smith (1911), held that Mich General Mich tiie Coukt. statutory provisions construing practical con long struction which has period adopted of time with reference to their mean Thayer ing weight; Department entitled Agriculture (1949), 323 which reiterated presumption constitutionality the oft-stated of an *6 legislature; Michigan act of the and Sullivan v. Dentistry (1934), Board Mich 427, which held of may that where statute be construed in either of ways, two one of which is consistent constitu tionality while the other is not, the former will be presumed legislative to be the intent. These lend support proposition competent no for the it that legislature for the to take a or term interpret legisla the tive tiff’s it Constitution, and make that interpretation Equally inapt plain law. the People Blodgett (1865), v. citation 13 Mich proposition 127, for the claimed that an act the legislature prohibited by express not words of the by necessary implication cannot be by declared unconstitutional Court; the and also (1928), (61 Bowerman v. Sheehan 242 Mich 95 ALR 859) to the effect that under a State Constitution the powers thereby has all denied to it. point legislature attempted The is that what the to accomplish by interpretation Act expressly prohibited by Constitution is the art powers, separation § 3, 2, the art vesting powers exclusively in place Act here considered, endeavors to interpretation having upon an the effect of law appointment” words “civil as used in Const art noted, 9. As above act in that is, respect, beyond power to enact and is, hence, It that if, unconstitutional. follows as guage Court, prohibits plaintiff’s candidacy construed the constitutional lan- of article 4, 9, judge, provisions

for circuit of said Act No 152 oe State. v. the Coukt. escape nothing to him avail bar- rier. interpretation leads us now to of the lan-

This guage §4, without benefit of Const legislative construction. County (1907),

In Kent Clerk 349, this held that election electors of Court delegate to a constitutional appointment” convention would be a “civil from a authority” meaning within the of these terms “State as used quoted the above Const plaintiff, being 18, that, therefore, a member ineligible delegate legislature, to be be- prohibited seeking that section him from cause office accordingly, compel a writ mandamus and, plaintiff’s county place name the defendant clerk delegate primary election as such on the ballot passing, Court, not lie. candidate would This “appointment” the terms and “election” said that are synonymous terms. Attorney General,

In ex rel. v. Burhans Cook, *7 (1942), and 108, Court cited relied 304 Mich Fyfe, holding “civil that the words its in and held applied appointment” authority” from a “State people for the office of a candidate election Michigan. University its regent In of of opinion then said that the in case this Court that controlling language 5, 7, similar 1908, in Const quoted 1850, of barred the Constitution that from holding of plaintiff, from a senator, State ineligible that office. regent him and rendered a received has a “Where in- afterward construction, and settled or constitution, corporated revised into a or new re- presumed to have been amendment, it will be knowledge previous construction, a with tained CJS, it.” 16 to adhere to will feel bound and courts Constitutional pp 114, Law, op. tee Court. opinion that the in Constitu- It is our person elected to tion receiving “any civil * ** authority, during other state from comes within the mean- which he is elected” term for Fyfe ing In in and Burhans. of the decisions governing provisions Constitutions, 1963, of all three expressly providing 1908 and that “no legislature” (1963) person to the elected legislature” a member of the “no (1908 1850) receive and “shall * * * * * * from other within this State authority” we held these identical, and what Burhans, to mean in and in we hold words mean in this case of Richardson. The them also to Fyfe planted terpretation decision considered, Burhans Cases here

squarely upon the rule of constitutional in- laid down in

which this Court Council Saginaw Saginaw City v. Policemen and System Trustees, 321 Mich 641, Retirement Firemen (repeated Authority, Bacon in v. Kent-Ottawa 647 354 Mich 171): City Chapin, (37 “In v. 108 Mich Detroit quoted 391), approval People, LRA we Hughes, May, ex rel. 3 Mich 610, the follow- ing; “ ‘ “ presumed ‘The framers a Constitution are * * * knowledge existing laws, have ” ’ knowledge.’ to act reference to City City “And in District School Pontiac v. Pontiac, 338,348, 262Mich we said: of“ drafting ‘In the amendment, as well as its adoption, ditions people existing were mindful of con- sought to so frame the amendment as existing to be accord with such conditions.’- pp “In Am11 Jur, Law, 63, appears following: *8 “ provision and presumed ‘A constitutional must be adopted light been have framed and oe State. n understanding prior existing and and law ” to them.’ reference application in an note that effort to avoid here

"We it is Burhans, decisions stressed change that a made in behalf of has been language from the Constitution predecessor provisions in of its the Constitutions pointed changes out are de- and 1908.' The appointment legis- of a letion of the States senate and the further lator the United provided language that “all deletion of appointments given any per- for and all votes such son appointment

so for such elected void”. chair- connection, Hoxie, In this Mr. shall be legislative powers of thé man of the committee on quoted having was as convention, offering for this his committee to section said, following: convention, recommends that the committee “The. legislator appointment of a preventing the civil prohibition against change. The with one retained is deleted. Senate to thé United States vacancy opinion that if a cottimittee It is the legislator, why who no reason ’there is occnrs, may qualified, fill it. not be chosen appoint- that makes ’“The deletion sentence legislators void recommended. for ment votes surplusage part since the first .The appoint- provides be no there shall such section .the Convention Official ments.” 2 Constitutional p Record, opinion, Mr. to have are of the as Hoxie seems "We that after convention, at the constitutional been expressly prohibited § legislator receiving from a within authority, the mat- State pro- conclusively disposed further ter given officeshall him vision *9 tSept. the Coukt. unnecessary utterly sur- needless be void provides part plusage of the first section since appointments. no such shall be that there suggests, com- that Mr. IToxie’s however, Plaintiff against concerning of the deletion ment legislator appointment States to the United of- a coupled declar- with deletion senate, a committee ing void, to be revealed certain legislators allowing of- to seek other concern to a mere desire during and not terms their fices appears, up so an obsolete clean former re- says plaintiff, on the been based to have appointed quirement senators that United States urged, legislatures. the com- it is Thus, legislators no harm that it saw mittee disclosed by the appointed senate being States to the United vacancies accordingly, and, occur when permitting legisla- a harm in have seen not must position at senator of United States tor to seek people. this, to how- The answer of the the hands prohibition against is that the ever, surplusage and of no senate was States United Constitution, States effect, because the United qualifications exclusively §§ of the forth sets pro- congress. 1, 5, article Further, members congress shall be that each vides house qualifications sit, of its own members any impediment imposed the State and, thus, meaningless. See or decision is Constitution, statute, Mich 120. State Board Canvassers, McLeod v. interpreted, suggested It has been that as herein be viewed as could legislator being prohibiting to his a re-elected reasoning legislative The defect in such seat. against run- that the ning inhibition is not running during for election term, but commences election to an office term of which oe State. Opinion op the Coubt. during legislator’s may term as such. He during receive the term legislator or take the new office legislator. which he was a A commencing runs for re-election a term expiration of at the his current term. In the instant judgeship case, seeks the term of which commences the term for which he was elected senator.

Plaintiff informed the board of State canvassers resign to that it was his intention as senator if judge. apparently, This is offered, dis- any suggestion that count would seek to incompatible positions, hold two and with the evidently, thought, such that situation all is that the constitutional could been have in- prevent. prohibi- tended tion The answer that is against receiving any merely period

elective officeextends not to the while language senator, but, he serves as “during itself, Constitution the term for which he (1891), elected.” In Ellis v. Lennon is 86 Mich 468, resignation, it was held that in circumstances, operate eligibility will not to create and counteract prohibition. Appeals Order the Court of reversed mandamus denied. Plaintiff’s name shall not be sub- August primary mitted at the electors judicial in election the 10th circuit as a candidate judge. for circuit J., T. C. M. Kavanagh, Dethmers, Kelly, and T. E. JJ., concurred.

Adams, Brennan, J., concurred in result. Black, (dissenting). respectful am dis- I O’Hara, J. agreement opinion my with the Per Curiam colleagues. logic if the While its is unassailable premise upon granted, which that it based 304. 381 majority my

premise The untenable. view is doctrine stare under the itself bound considers County (1907), Kent 149. v. Clerk decisis Attorney General, Cook, ex rel. 349; Mich Burhans to result from the (1942), Mich 108. This I understand general

application of the rule I Law, CJS, set forth quarrel general It is with that rule. sound. no have inapposite totally here. Note the it is But to me provision wording: has a constitutional “Where judicial construction, and is after a settled received incorporated constitution, into a or revised new ward * * * presumed to have been retained.” it will be exactly respectfully suggest what did that that is I not happen convention which at the constitutional Michigan I am of 1963. drafted my put can find to understand how Associates hard prior had received “afterward in-’ construction was a settled *** n corporated in a new constitution” admittedly language omitted in the Constitution of foregoing my that the. Brothers contend If Fyfe, part ratio decidendi no only reply not see how Burhans, can *11 I I.do disregarded have then constituted could the Court as if the I not to assert that Court But do hesitate it. supra, disregard Burhans, then are it, did Capsulized, my ought overruled. law and be bad appoint simply position that I cannot read “civil “elective office.” It seems to me that ment” to mean present framers of the Constitution meant to if the question, in in “elective office” the include they would have said so. The reference to the majority included in the Convention, the debate opinion, what seems to me to be rather reveal omits * ing language: ^[*] ^[2] Convention Official Reeord, p 317 1968] Bichardson State. oe O’Hara, J. Dissenting Opinion member no it—that balance to the “As any particular office appointed to be shall n —that have, would the one that would legisla- governor and the legislature, or ture.” supplied.) (Emphasis people I were which think the The evil shop- patently seeking avoid since governor, legislature by ping used in all sure that “votes” as am not at and I not mean “votes” neces- did the Constitution gubernatorial appoint- sary of a for confirmation Certainly ordinary idiom in connec- ment. used cast”, not “votes officeis “votes tion with elective given.” amending agree PA PA I do (CLS Ann 168.2, Stat constitutionally 6.1002), infirm reason of Bev synonymous sentence, “The term 'election’ is ap- appointment’ as such term term 'civil with the pears 9 of art 4 of the State Constitu- in section eminently correct reasons for the tion”, obvious majority opinion. stated pro- appellee Bichardson is I not think that do running of circuit for the elective office scribed from holding Manifestly proscribed judge. he is necessity he elected, he would both offices. Were legislative of his office the divest himself have to qualify an officein the he could branch before government. branch of Appeals. I affirm the Court of would