Carman v. Secretary of State

185 N.W.2d 1, 384 Mich. 443, 1971 Mich. LEXIS 232
CourtMichigan Supreme Court
DecidedMarch 31, 1971
Docket20 January Term 1971, Docket No. 53,025
StatusPublished
Cited by34 cases

This text of 185 N.W.2d 1 (Carman v. Secretary of State) 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
Carman v. Secretary of State, 185 N.W.2d 1, 384 Mich. 443, 1971 Mich. LEXIS 232 (Mich. 1971).

Opinions

[447]*447Per Curiam.

July 15,1970 plaintiffs sought mandamus in the Court of Appeals to force submission to the electors of an allegedly initiated “Amendment to the Constitution” which, later, came to be known publicly as “Proposal C.” The writ was ultimately granted. For details, see the opinion of Division 2, released September 2 (26 Mich App 403). Upon strength of that opinion and our order denying leave entered 12 days later (384. Mich 751), the amendment proposed — and now in question — was submitted to the electors November 3 and approved by a strong majority.

The ensuing opinion should presay a cautionary note. It is that initiatory § 2 of Article 12 of the Constitution of 1963 follows generally, yet differs in important respects from the corresponding sections of the Constitution of 1908 as those sections stood when certain of our past decisions were considered and released. Compare said § 2 with §§ 2 and 3 of Article 17 of the former Constitution; looking at the latter both in their original aspects and as amended in 1941. "We shall consider this earmark upon present reference to the City of Jackson case (1947), 316 Mich 694.

The acceptable and visibly critical question we are called upon to decide is posed by the Attorney General:

“II. Is a petition proposing an amendment to an existing section of the Constitution sufficient when that section as presently in effect [sic] is not inserted under the heading ‘Provisions of Existing Constitution Altered or Abrogated by Such Proposal if Adopted’ ?”

Division 2 responded in the affirmative. The Attorney General contends for a negative answer. We agree with him. The final question, then, is what now to do; the proposed amendment having been [448]*448approved and apparently adopted. That question will come to discussion and determination in the division designated “Second,” below.

First: Section 2 of Article 12 of the Constitution requires that an initiatory amendment shall be published (“in full as provided by law”) with “existing provisions of the Constitution which would be altered or abrogated thereby.” The same section also requires that the initiatory petition shall be “in the form, and shall be signed and circulated” as prescribed by law.

The constitutionally beckoned legislation appears in § 482 of the Michigan election law of 1954, as minor-amended in 1965 (MCLA § 168.482 [Stat Ann 1970 Cum Supp § 6.1482]). Section 482 provides, pertinently:

“ * * * If the proposal would alter or abrogate any existing provision of the constitution, the petition should so state and the provisions to be altered or abrogated shall be inserted, preceded by the words:

“ ‘Provisions of existing constitution altered or abrogated by such proposal if adopted.’ ”

The now unmalleable fact of political action is that this initiatory petition did not set forth any provision or provisions of the existing Constitution which would be “altered or abrogated by such proposal if adopted.”1 Although expressly initiating thé proposal as an amendment of § 2 of Article 8, the petition did not under the required heading set forth “existing” § 2 of Article 8. Such omission is [449]*449the crus of the Attorney General’s stated question II, above.

Had there been time for decisive judicial action during that critical 8 days of September which ensued upon receipt of briefs for and against the Attorney General’s emergent application for leave to review Division 2’s September 2 decision, the stated omission doubtless would have arrested the initiation and enjoined submission of the mentioned proposal. There was no such time, however, hence our present effort to review and decide that which, hopefully, will result in better timing of appeals to the judicial process for determination of questions of statewide importance that are justiciable and determinable in time for election day. In a word, a word we direct particularly to issues arising from initiated or legislatively proposed constitutional amendments, this petition for mandamus might better have been July-filed in this Court, GCR 1963, 714.1(1) notwithstanding. See the independently supreme authority provided by § 4 of the judicial article.

There is no unstilted way to avoid conclusion that the amendment initiated by these plaintiffs will, if given constitutional effect, both alter and amend § 2 of Article 8 of the Constitution of 1963.2 The initiatory petitions were therefore insufficient— technically at least — for want of specific compliance with the constitutional complement, § 482.

Second: The electors have firmly approved this initiated amendment of § 2 of Article 8. That they [450]*450have done in the face of omitted specific performance of a constitutionally authorized legislative mandate that initiators shall set forth in their petitions, for the informative benefit of petition-signers, the very constitutional provision or provisions such initiators desire to alter or amend. What is the result? We think the answer appears in the first sentence of the final paragraph of § 2 of Article 12 (quoted below), viewing it as we should according to the established rules of constitutional construction and the Secretary of State’s salutary corrective action which preceded the November 3 election.

Let us first compare what was, in the initiative portion of the former Constitution, with what now is. Section 2 of Article 17 of the 1908 Constitution read:

“Any constitutional amendment initiated by the people as herein provided, shall take effect and become a part of the constitution if the same shall be approved by a majority of the electors voting thereon and not otherwise.” (Emphasis added.)

The 1941 amendment of that same § 2 read:

“Any constitutional amendment initiated by the people as herein provided, shall take effect and become a part of the constitution if the same shall be approved by the number of qualified electors required in section 1 hereof for the approval of amendments proposed by the legislature, and not otherwise.” (Emphasis added.)

Present § 2 of Article 12 proceeds:

“If the proposed amendment is approved by a majority of the electors voting on the question, it shall become part of the constitution, and shall abrogate or amend existing provisions of the constitution [451]*451at the end of 45 days after the date of the election at which it was approved.”3 (Emphasis added.)

Reading these successive provisions with dne care, one after the other, it is clear from the words employed and understood in 1961-1962 that some less rigid initiatory procedure was written, for “the common understanding.” Formerly an amendment had to be initiated “as herein provided.” Formerly, if thus initiated, it would become a part of the constitution should it be approved by the designated majority, but “not otherwise.” In 1963, however, the express requisite of initiation “as herein provided” was eliminated. So was the “not otherwise” stricture.

The due and applicable rule of construction is not any one of the many by which we determine legislative intent.

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Bluebook (online)
185 N.W.2d 1, 384 Mich. 443, 1971 Mich. LEXIS 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carman-v-secretary-of-state-mich-1971.