Advisory Opinion on Constitutionality of 1978 PA 426

403 Mich. 631
CourtMichigan Supreme Court
DecidedDecember 22, 1978
DocketDocket No. 62119
StatusPublished
Cited by19 cases

This text of 403 Mich. 631 (Advisory Opinion on Constitutionality of 1978 PA 426) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Advisory Opinion on Constitutionality of 1978 PA 426, 403 Mich. 631 (Mich. 1978).

Opinions

Blair Moody, Jr., J.

The Court has been asked by the Governor for an advisory opinion on the constitutionality of 1978 PA 426, enrolled House Bill 4407. Although two questions were incorporated in the Court’s order granting the request, for purposes of simplicity and clarity, we combine the two questions into one. The single question before the Court is whether the Lieutenant Governor’s affirmative vote under the provisions of Const 1963, art 5, § 25, may be counted for the final passage of House Bill 4407 when the Senate, with all members voting, divided equally, in view of the apparently contradictory language of Const 1963, art 4, § 26, providing that "[n]o bill shall become a law without the concurrence of a majority of the members elected to and serving in each house”. We answer this question in the affirmative. The Lieutenant Governor may cast a tie-breaking vote during the final consideration of a bill when the Senate is equally divided, pursuant to Const 1963, art 5, § 25.1

[637]*637I

On September 30, 1978, Governor William Mil-liken signed into law enrolled House Bill 4407 (1978 PA 426), which increases gasoline and diesel fuel taxes on January 1, 1979. One of a series of transportation bills, the bill was passed by the Michigan House of Representatives on September 14, 1978, by a vote of 57 to 50. Michigan House J (No. 101, 1978) 2984. When the bill was considered for final passage by the Senate on September 26, 1978, 19 senators voted in favor of the bill and 19 senators voted against it. After the roll call vote of the individual elected senators resulted in a tie, pursuant to the provisions of Const 1963, art 5, § 25, Lieutenant Governor James Damman cast a tie-breaking affirmative vote and the bill was declared to have passed. Michigan Senate J (No. 105, 1978) 2127.

Immediately, opponents of the bill began to challenge the constitutionality of the action taken by the Lieutenant Governor. This challenge is based upon a perceived conflict between Const 1963, art 5, § 25 and Const 1963, art 4, § 26. It is maintained that art 4, § 26 prohibits non-elected members of the state Legislature from voting on the final passage of a bill and, therefore, the Lieutenant Governor, as a member of the executive branch, acted outside the scope of his constitutional powers by casting the tie-breaking vote on the bill in question.

In view of this controversy, the Governor has requested that this Court issue an advisory opinion relative to the action taken by the Lieutenant Governor. On October 11, 1978, the Court agreed to provide the advisory opinion.

II

The question before the Court is whether the [638]*638Lieutenant Governor, as President of the Senate, may constitutionally cast a tie-breaking vote during the final consideration of a bill when all members elected to and serving therein have voted and the Senate is equally divided. Resolution of the question necessitates construction of two constitutional provisions which appear to conflict with each other.

Const 1963, art 5, § 25 provides, in relevant part:

"The lieutenant governor shall be president of the senate, but shall have no vote, unless they be equally divided.”
The third sentence of Const 1963, art 4, § 26, appears to conflict with Const 1963, art 5, § 25, by stating:
"No bill shall become a law without the concurrence of a majority of the members elected to and serving in each house.”

In an effort to harmonize these provisions, four basic rules of constitutional construction will be applied.

A

The primary rule of construction is the rule of "common understanding”. Traverse City School Dist v Attorney General, 384 Mich 390; 185 NW2d 9 (1971). In ascertaining the meaning of words in a constitution, a court should give effect to the plain meaning of such words as understood by the people who adopted it. Bond v Ann Arbor School Dist, 383 Mich 693; 178 NW2d 484 (1970); Michigan Farm Bureau v Secretary of State, 379 Mich 387; 151 NW2d 797 (1967).

[639]*639Construed for its plain meaning, Const 1963, art 5, § 25, clearly provides that the Lieutenant Governor may vote if the Senate is "equally divided”. As stated by the Court over one hundred years ago, "The cardinal rule of construction, concerning language, is to apply to it that meaning which it would naturally convey to the popular mind”. People v Dean, 14 Mich 406, 417 (1866). Certainly, the Michigan electorate in ratifying the 1963 Constitution, ascribed to the word "vote” the plain meaning of casting an effective vote.

Opponents of 1978 PA 426 argue that the language of art 4, § 26 limits the tie-breaking power of the Lieutenant Governor to votes involving procedural matters and legislation at stages preceding final passage. We decline to adopt this construction, since to do so would effectively strip art 5, § 25 of its significance and its plain meaning. It would be incongruous to give the Lieutenant Governor a tie-breaking vote in preliminary stages and at the same time to deny that vote at the final consideration of the same legislation. No more of an apparent and frustrating deadlock could exist than that which would occur on the final passage of a bill. If the drafters of the Constitution had intended such result, they most assuredly could have modified the language of art 5, § 25 to limit the Lieutenant Governor’s tie-breaking power to those situations.

B

When there is conflict between general and specific provisions in a constitution, the specific provision must control. This second rule of construction is grounded on the premise that a specific provision must prevail with respect to its subject matter, since it is regarded as a limitation [640]*640on the general provision’s grant of authority. The general provision is therefore left controlling in all cases where the specific provision does not apply. McDonald v Schnipke, 380 Mich 14, 20; 155 NW2d 169 (1968); Hart v Wayne County, 396 Mich 259, 273; 240 NW2d 697 (1976).

In the instant case, art 4, § 26 is the general provision and art 5, § 25 is the specific provision. Thus, the language of art 4, §26 that "[n]o bill shall become a law without" the concurrence of a majority of the members elected to and serving in each house” applies to every bill considered for final passage by the House of Representatives and to every bill considered for final passage by the Senate, except those rare situations2 where the Senate vote is "equally divided”. In those instances, the specific language of art 5, § 25 controls and thus renders inapplicable the general language of art 4, § 26.

C

The third rule of construction was set forth by the Court in Kearney v Board of State Auditors, 189 Mich 666, 673; 155 NW 510 (1915):

"In construing constitutional provisions where the meaning may be questioned, the court should have regard to the circumstances leading to their adoption and the purpose sought to be accomplished.”

To ascertain the circumstances surrounding the adoption of a constitutional provision and the [641]*641purpose sought to be accomplished by the provision, the "Address to the People” and the convention debates may be consulted.

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403 Mich. 631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/advisory-opinion-on-constitutionality-of-1978-pa-426-mich-1978.