City of Gaylord v. Gaylord City Clerk

144 N.W.2d 460, 378 Mich. 273, 1966 Mich. LEXIS 78

• Court: Michigan Supreme Court
• Decided: August 24, 1966
• Docket: Calendar 1, Docket 51,239
• Status: Published

Opinions

Adams, J.

On May 8,1963, the legislature enacted PA 1963; No 62 (CL 1948,'§ 125.1251 et seq. [Stat Ann 1965 Cum Supp § 5.3533(21)' et seq.]), described as the “industrial development revenue bond act of 1963.” It permits Michigan municipalities to issue tax-exempt municipal bonds to finance acquisition of industrial buildings.

The city council of Gaylord approved such a bond issue. It contracted with United States Plywood Corporation for it to purchase land and construct an industrial plant. Gaylord is to finance purchase of these facilities by selling “city of Gaylord, Michigan, industrial building revenue bonds.” The facilities are then to be sold to the city with a lease back to the corporation for 25 years at a rental sufficient to pay principal and interest on the bonds. At the end of 25 years, the corporation has the option of purchasing the facilities for $1. The bonds are to recite:

“This bond and the interest thereon are payable solely from the revenues derived from the facilities * # * and does not [in any way] * * * obligate * * * the city to levy * * * any form of taxation whatever for the payment of such principal and interest.”

Because section 103 of the internal revenue code of 1954 (26 USCA, § 103 [a] [1]) grants a tax exemption to the income from municipal bonds, the net result of this transaction is that the city of Gaylord lends its tax-free status to the corporation so that the interest on what would otherwise be a private bond issue becomes tax-free.

The plywood plant has been built, but defendant city clerk refused to complete the transaction. The city brought mandamus to compel performance. The case was certified directly to this Court, by virtue of GCR 1963, 797, at the request of Governor George Romney. The questions are stated in this opinion as certified to us by the circuit judge.¹

I.

Is Act 62 of 1963 unconstitutional because its title is deficient under the terms of article 4, § 24, of the Michigan Constitution (1963) ?

Defendant contends that Act No 62 violates article 4, § 24, of the Michigan Constitution of 1963, which provides:

“No law shall embrace more than one object, which shall be expressed in its title.”

Justice Thomas M. Cooley has stated the principle to be followed in applying this section:

“It ought to be construed reasonably, and not in so narrow and technical a sense as unnecessarily to embarrass legislation.” Ryerson v. Utley, 16 Mich 269, 277, citing People, ex rel. Drake, v. Mahaney, 13 Mich 481, 494.

The object of Act No 62 is to enable municipalities to attract industry by acquiring and financing industrial facilities through revenue bonds. The title reads:

“An act relating to industrial development; to authorize municipalities to acquire industrial buildings and sites; to provide for the financing of such buildings by the issuance of revenue bonds; to provide the terms and conditions of such bonds; and to prescribe the powers and duties of the municipal finance commission.”

The title informs the reader of the object of the act. “The title to an act is good if it fairly indicates the general subject matter covered by the act.” City of Bay City v. State Board of Tax Administration, 292 Mich 241, 249.

II.

Are the improvements for which bonds are to be issued works of internal improvement for private purposes prohibited by article 3, § 6, of the Michigan Constitution (1963)?

Article 3, § 6, of the Michigan Constitution (1963) provides:

“The State shall not be a party to, nor be financially interested in, any work of internal improvement, nor engage in carrying on any such work, except for public internal improvements provided by law.”

The reasons for section 6 have been fully documented.² Briefly, in 1835 the people of Michigan sought a prosperity they thought could be brought about by improved lines of communication. They directed the legislature to engage in “Internal improvement * * * in relation to roads, canals and navig’able waters.” Constitution of 1835, art 12, § 3. Shortly afterward, the nation underwent a financial crisis. Oppressive taxation to service the State debt resulted from many bond issues that had been floated to finance “internal improvements.” Article 14, § 9, of the Constitution of 1850 provided;

“The State³ shall not be a party to, nor interested in, any work or internal improvement.”

This prohibition, with modifications in language, was carried into the 1908 and 1963 Constitutions. Const 1908, art 10, § 14; Const 1963, art 3, § 6. It has been repeatedly held, however, that it does not include self-liquidating bonds because they do not obligate the general taxing power. Gilbert v. City of Traverse City, 267 Mich 257, 260, 261; Attorney General, ex rel. Eaves, v. State Bridge Commission, 277 Mich 373, 383; Oakland County Drain Com’r v. City of Royal Oak, 306 Mich 124, 142; City of Dearborn v. Michigan Turnpike Authority, 344 Mich 37, 74, 75.

The law of these cases was brought to the attention of the delegates to the 1961 convention by a member of the committee that drafted section 6. He stated:

“Neither the State nor any local unit of government is prohibited by section 14 of article 10 [1908 Constitution] from engaging in self-liquidating projects. These projects, of course, are defined, generally speaking, as projects which must be paid for out of the revenue which the project itself produces, such as is established by revenue bond that I am sure practically all of the delegates in this convention are familiar with. This section, of course, does not prohibit engaging in that type of activity.” 2 Official Record, Constitutional Convention of 1961, p 2311.

A sponsor of a minority amendment which later was substantially adopted by the convention as section 6 stated:

“Now, let us look upon its operation [article 10, § 14 (1908 Const)] as a prohibition against government ventures in, hopefully, self-supporting and self-liquidating projects. One, it is no longer very effective in this direction.” 2 Official Record, supra, p 2317.

Whether the exception as to revenue bonds was approved or disapproved, it was a recognized fact. The delegates froze that exception into section 6 by their retention of substantially the same language which, in prior Constitutions, had been construed to allow it. See Const 1850, art 14, § 9; Const 1908, art 10, § 14.

Defendant insists that we look at the plain language of the Constitution. It prohibits not only direct financial involvement by the State but also prohibits the State from being a “party” to works, of internal improvement. The State, through the city of Gaylord, is a “party” but the prohibition against the State being a “party” was present when this Court found an exception as to self-liquidating bonds. Const 1850, art 14, § 9; Const 1908, art 10, § 14. Since that exception was known to the delegates, in the absence of some specific limitation by them of the same, it must be considered still valid;

This project might also escape classification as an internal improvement as not being an artery of commerce. See OAG 1963-1964, pp 75-78. Whether the meaning of “internal improvement” should be so limited need not be decided in light of our holding as to self-liquidating bonds.

III.

' Will the issuance of bonds under Act 62 of 1963 constitute the granting of the credit of the city of Gaylord, an agency of the State, for unauthorized purposes as prohibited by article 9, § 18, and article 7, § 26, of the Michigan Constitution (1963) ?

Article 9, § 18, of the 1963 Constitution provides:

“The credit of the State shall not be granted to, nor in aid of any person, association or corporation, public or private, except as authorised in this Constitution.” (Emphasis supplied.)

Article 7, §'26 (Const 1963), provides:

“Except as otherwise provided in this Constitution, no city or village shall have the power to loan its credit for any private purpose or, except as provided by law, for any public purpose.” . (Emphasis supplied.)

An exception permitted by section 18⁴ is contained in section 26. "We confine our inquiry to section 26. Defendant admits that this Court has, on several occasions, held that self-liquidating projects do not involve a granting’ of credit. Attorney General, ex rel. Eaves, v. State Bridge Commission, supra; Oakland County Drain Com’r v. City of Royal Oak, supra. She seeks to delimit this line of cases, however, by pointing out that each involved a clear, undisputed public purpose. Under section 26, if the bond issue is not a loan of credit, the question of public purpose is not reached.

■ Defendant cites the banking laws of Connecticut, Massachusetts, and New York⁵ to the effect that any default by a municipality for a fixed period of years preceding a bond issue shall bar banks and financial institutions in those States from buying the general obligation bonds of that municipality. Defendant also contends that if the municipality is negligent in issuing the bonds it maybe held in breach of an implied covenant of good faith (see Armstrong, “Municipal Inducements” — The New Mexico Commercial and Industrial Project Revenue Bond Act, 18 Cal L Rev 58, 62, n 19 [1960]) and that misrepresentation, implied covenant of warranty, and breach of trust are additional theories by which the general taxing power of the municipality might be reached.⁶ (See Fordham, Revenue Bond Sanctions, 42 Col L Rev 395, 409-419 [1942] The “Public Purpose” of Municipal Financing for Industrial Development, 70 Yale L Rev 789, 793 [1961].)

The dangers presented by these various contentions exist as to all municipal revenue bonds, not' just industrial revenue bonds.⁷ However persuasive defendant’s arguments might be upon first impression, if we were to characterize industrial revenue, bonds as a loan of credit, such a holding would have to extend to all types of revenue bonds. The delegates to the 1961 Constitutional Convention brought the lending of credit provision into the 1963 Consti-. tution against a line of decisions which flatly stated that revenue bonds are not within the prohibition: of lending of credit. See Attorney General, ex rel. Eaves, v. State Bridge Commission, supra; Oakland County Drain Com’r v. City of Royal Oak, supra; City of Dearborn v. Michigan Turnpike Authority, supra, p 59. These decisions have created for the constitutional language a meaning that excludes revenue bonds from the definition of a loan of credit.

IV.

Does the financing proposed leave open the possibility that tax moneys of the city may be diverted for nonpnblic purposes as prohibited by article 7, § 21, of the Michigan Constitution (1963) ?

We would state the above question as follows: Does Act No 62 and the program of the city of Gaylord thereunder exhibit a public purpose? It is the crucial question in this case and one of first impression. Unlike the questions thus far discussed, it is not possible to point to a specific provision of the 1963 Constitution that might be construed to permit the city of Gaylord to act if a public purpose is present or to prohibit it from acting absent such purpose.

Nevertheless, the theme of public purpose runs through the Constitution. As we have seen, article 3, § 6, specifically excepts from its prohibitions “public internal improvements provided by law”, and article 7, § 26, prohibits the lending of the credit of any city or village “except as provided by law, for any public purpose.”

Article 7, § 21, reads:

“The legislature shall provide by general laws for the incorporation of cities and villages. Such laws shall limit their rate of ad valorem property taxation for municipal purposes, and restrict the powers of cities and villages to borrow money and contract debts. Each city and village is granted power to levy other taxes for public purposes, subject to limitations and prohibitions provided by this Constitution or by law.”

Article 4, §51 (Const 1963), provides:

“The public bealtb and general welfare of tbe people of the State are hereby declared to be matters of primary public concern. The legislature shall pass suitable laws for the protection and promotion of the public health.”

This new section, together with the traditional public policy of this State, must be held to limit the powers of the legislature and of government generally to such legislative acts and such governmental powers as exhibit a public purpose.⁸

Defendant contends that the location of a manufacturing plant in the Gaylord area is not a public purpose because the plant is primarily to make a profit for its stockholders; that any benefit the area receives is merely incidental; that such a plant will create additional public needs for schools, streets, sewers, and water facilities which will increase the tax burden; and that, if the plant shuts down, the public welfare load would be substantially increased.

Plaintiff contends that there is a definite public interest in providing and maintaining steady employment ; that under the stipulated facts, as a direct result of the location of the plywood plant in the Gaylord area, there is now only one vacant building on Main street out of 14 vacant not long ago; that it is extremely difficult to rent store space; that a housing shortage exists; commercial and residential growth has resulted; the corporation will employ up to 200 persons in the plant and an additional 100 or 150 persons in outside activity.

It is further stipulated that, based upon the United States Chamber of Commerce estimate prepared for the small business administration, the expected impact of the manufacturing plant on the economy of the city of Gaylord is reflected in the following chart:

“Chaut

“What Each 100 Jobs Means to a Community.

“What 100 New Factory Workers Bring to a Town:

“359 More People

“91 More School Children

“$710,000 More Personal Income Per Tear

“100 More Households

“$229,000 More Bank Deposits

“3 More Retail Establishments

“97 More Passenger Cars Registered

“65 More Employed in Nonmanufacturing

“$331,000 More Retail Sales Per Tear.”

Whether the rosy picture of the future depicted by plaintiff may prove to be a chimera or reality, this Court can neither judge nor prognosticate. There is nothing in the contract between United States Plywood and the city of Gaylord to guarantee either result. Plywood is not obligated to provide any given number of jobs for any period of time. It does not undertake to run the plant a single day. If, because of technological advances or for any other reason, it should elect to close the plant, there is nothing in its contract to prevent it from doing so. Nevertheless it is Plywood’s money alone that was laid on the line to construct this plant and it would seem to be a reasonable assumption that operation of it will follow.

As we have noted, insofar as Plywood is concerned, it achieves by this transaction a tax-exempt status for interest on bonds issued in the name of the city which Plyv/ood alone is in effect obligated to redeem. Gaylord was assured only that a manufacturing plant would be built in a township adjacent to the city and that the rental for the plant would pay off the bonds.

In casting up the credits and the debits, from present view, the probabilities would seem to favor the credits — that is to say, employment and other benefits to the community and the area as opposed to additional costs for schools, public utilities, and the hazard of unemployment. Such an assessment is buttressed by the fact that the transaction is subject to the scrutiny and approval of the Michigan municipal finance commission.

Numerous cases from other jurisdictions deal with the problem of public purpose. The weight of authority⁹ upholds municipal industrial aid financing as having a public purpose. For example, in the Oklahoma case of Harrison v. Claybrook (1962), 372 P2d 602, 605, it is stated:

“That the particular function, or purpose, involved is a ‘public’ one cannot be seriously doubted. We think the court in Faulconer v. City of Danville, 313 Ky 468 (232 SW2d 80, 83), was particularly articulate on this subject when it said therein:

“ ‘The consensus of modern legislative and judicial thinking is to broaden the scope of activities which may be classed as involving a public purpose. * * * It reaches perhaps its broadest extent under the view that the economic welfare is one of the main concerns of the city, State, and the Federal governments.’ ”

Such cases, however, are of limited assistance. The question must be assessed in the light of our constitutional provisions and the history of our State. .

Michigan cases have steadily broadened the concept of public purpose. In Miller v. Michigan State Apple Commission, 296 Mich 248, a State tax on apples, which was used to promote sale of Michigan apples, was upheld because stimulation of the State’s apple industry would be beneficially reflected throughout the State. In Hays v. City of Kalamazoo, 316 Mich 443 (169 ALR 1218), the expenditure of general funds of a city for membership in the Michigan Municipal League, a private nonprofit corporation established to advise and lobby for cities and villages in the State, was upheld as being for a public purpose. In Sommers v. City of Flint, supra, a transfer of city property to the Federal government, without consideration, for use as an armory was upheld, based upon mutuality of obligation between the United States and the city in the field of national defense.

In determining what constitutes public purpose the following statement contained in Allydonn Realty Corporation v. Holyoke Housing Authority, 304 Mass 288, 292 (23 NE2d 665), is much quoted:

“Some of the factors which the cases suggest as proper to he considered are these: Whether the benefit is available on equal terms to the entire public in the locality affected; whether the service or commodity supplied is one needed by all or by a "large number of the public; whether the enterprise hears directly and immediately, or only remotely and circumstantially, upon the public welfare; whether the need to be met in its nature requires united effort under unified control, or can be served as well by separate individual competition; whether private enterprise has in the past failed or succeeded in supplying the Avant or in eradicating the evil; whether, insofar as benefits accrue to individuals, the whole of society has an interest in having those individuals benefited; whether a proposed extension of governmental activity is in line with the historical development of the Commonwealth and with the general purpose of its founders; whether it will be necessary to use public ways or to invoke the power of eminent domain; whether a special emergency exists, such as may be brought about by war or public calamity. It is hardly necessary to say that the foregoing considerations are in no sense to be regarded as exclusive of others, and that great weight or little or no weight may be attached to some of them according to the presence or absence of others, or of still other conditions not herein-before enumerated.”

In Hays v. City of Kalamazoo, supra, pp 453, 454, this Court quoted with approval from 37 Am Jur, Municipal Corporations, § 120, p 734:

“ ‘A public use changes with changing conditions of society, new appliances in the sciences, and other changes brought about by an increase in population and by new modes of transportation and communication. The courts as a rule have attempted no judicial definition of a public as distinguished from a private purpose, but have left each case to be determined by its own peculiar circumstances. Generally, a public purpose has for its objective the promotion of the public health, safety, morals, general welfare, security, prosperity, and contentment of all the inhabitants or residents within the municipal corporation, the sovereign powers of which are used to promote such public purpose. The phrase “municipal purpose,” used in the broader sense, is generally accepted as meaning public or governmental purpose as distinguished from private. The modern trend of decision is to expand and liberally construe the term “public use” in considering State and municipal activities sought to be brought within its meaning. The test of public use is not based upon the function or capacity in which or by which the use is furnished. The right of the public to receive and enjoy the benefit of the use determines whether the use is public or private.’ ”

It can scarcely be questioned that the benefits resulting from a plywood plant that are conjured by plaintiff would be general to the public in the Gay-lord area, thereby meeting the test of public use set forth in Hays v. City of Kalamazoo, supra. The legislature, in enacting Act No 62, has concluded that the public health and welfare will be served. The act is constitutional as exhibiting a public purpose. In coming to this conclusion, we have taken particular note of the mandate of article 7, § 34, a new provision of the 1963 Constitution which states, in part, as follows:

“The provisions of this Constitution and law concerning counties, townships, cities, and villages shall be liberally construed in their favor.”

Y.

Does Act No 62 of 1963 surrender or avoid the taxing power of the township of Bagley in which the plant will be located, contrary to the provisions of article 9, § 2, of the Michigan Constitution (1963), in that it does away with the lien for taxes against the industrial plant and site ?

Act No 62 provides that the lessee will be subject, to ad valorem property taxation, but that a lien will not attach to the property by virtue of that tax. Defendant contends that this violates article 9, § 2, of the Constitution of 1963, which provides:

“The power of taxation shall never be surrendered, suspended or contracted away.”

A lien is not an essential element of the power of taxation. See Hellerstein, State and Local Taxation, pp 15-20 (1952). Unless a taxing statute expressly so provides, taxes do not constitute a lien on property. Tousey v. Post, 91 Mich 631, 634; 84 CJS, Taxation, § 585, p 1180.

Section 11 of Act No 62 parallels PA 1953, No 189, as amended (CLS 1961, §§ 211.181, 211.182 [Stat Ann 1960 Rev § 7.7(6) and Stat Ann 1965 Cum Supp §7.7(5)]). The purpose in both instances is to insure that persons leasing normally tax-exempt property for profit-making purposes do not secure an unfair advantage by avoiding taxation. See United States v. City of Detroit, 345 Mich 601, 610; Township of Muskegon v. Continental Motors Corporation, 346 Mich 218, 223; and Rockwell Spring & Axle Company v. Romulus Township, 365 Mich 632, 637.

VI.

Is Act No 62 of 1963 unconstitutional in that it does not contain a restriction on the power of the city of Gaylord granted therein to borrow money and contract debts, contrary to the provisions of article 7, § 21, of the Michigan Constitution (1963) ¶

Article 7, § 21, of the 1963 Constitution provides:

“The legislature shall provide by general laws for the incorporation of cities and villages. Such laws shall * * * restrict the powers of cities and villages to borrow money and contract debts.”

Defendant contends that since Act No 62 does not contain a restriction on the power of the city to; borrow it is invalid. The self-liquidating aspect of these bonds excepts them from the constitutional language. In re Brewster Street Housing Site, 291 Mich 313, 341, 342. For an extended discussion of this exception, see Young v. City of Ann Arbor, 267 Mich 241, 248-254. Because of the reasons expressed in Young, Act No 62 does not violate the debt restrictions of article 7, § 21,

VII.

Is Act No 62 of 1963 deficient as ambiguous and incomplete because:

A. It does not provide that the bonds must be sold at public sale?

B. It permits a referendum on the question of the issuance of the bonds but provides no means for giving notice of the right of referendum?

A.

Defendant’s contentions here go to the provision in the municipal finance act for the public sale of mortgage revenue bonds issued by a municipality. CLS 1961, § 133.2 (Stat Ann 1958 Eev § 5.3188[7]). Act No 62 is silent with regard to the manner in which bonds are to be sold. However, section 9(2) of Act No 62 states that when issuing bonds a municipality may authorize additional bonds for contemplated future improvements and place them in escrow to be “negotiated” later.

The legislature may place restrictions on the manner in which bonds are' to be sold. See 43 Am Jur, Public Securities and Obligations, § 126, p 373,- and 15 McQuillin, Municipal Corporations (3d ed), § 43.65, p 589. The normal purpose of a public sale is to assure the best price, but here the city is unconcerned with price. Price is of concern only to the corporation.

Section 13 of Act No 62 specifically states that the municipal finance commission shall determine “whether the bonds conform to the provisions of this act.” (Emphasis supplied.) While bonds under Act No 62 may not be issued without the approval of the. municipal finance commission, they are not made subject to the provisions of the municipal finance act, only the provisions of Act No 62. That act does not require public sale. The legislature was free to make such a requirement or not. The act is not deficient in this regard.

B.

Section 12 of Act No 62 provides for a right of referendum but makes no provision as to how notice should be given to the electors of that right. The legislature is not required to provide any right of referendum. Consequently, the act is not invalid for failure to particularize the method of notice. The city exercised its discretion in giving notice to the electorate. The council’s action was published in the local newspaper. No petition for referendum was filed. No abuse of discretion is shown.

The referendum provision contained in the home-rule act (CLS 1961, § 117.5 [g] [Stat Ann 1965 Cum Supp § 5.2084(g)]) is substantially different from that found in Act No 62. Only the referendum provision in Act No 62 is applicable to this proceeding.

VIII.

Is the proposed bond issue in conflict with Act No 62 of 1963 or with applicable provisions of the city charter because:

A. The financing does not meet the requirements of the act in that:

(1) No provision is made for a depreciation account ?

(2) Operation and maintenance expenses are to be met by the lessee rather than the city, with the result that excess funds for that purpose are to be returned to the lessee rather than credited to a depreciation account?

(3) The financing calls for the naming of a trustee although the industrial plant and site are not to be mortgaged?

B. The financing does not comply with provi-' sions of the Gaylord city charter in that:

■ (1) There will be no provision for competitive construction bids as required by section 16.6 of the city charter?

(2) The financing may contemplate the city’s engaging in a business enterprise requiring an investment of money in excess of 10 cents per capita but without the approving vote of the electors of the city thereon, as required by section 15.2 of the city charter and section 5(e) of the city home-rule act?

(3) The financing may not comply with the terms of sections 10.7 and 10.9 of the city charter relative to the means of collection and payment of city funds ?

(4) The financing may cause the city to exceed its debt limit as specified in section 12.7 of the city-charter?

(1) Section 3(c) of Act No 62 requires that the agreement “provide * * * an adequate depreciation account.” CL 1948, § 125.1253 (Stat Ann 1965 Cum Supp § 5.3533[23]). (Emphasis supplied.) Plaintiff admits no depreciation account has been created. The rentals are programmed to amortize the cost of the plant and site over 25 years. The corporation can then purchase the facility for $1. Since the rentals will amortize the cost of the plant, and the cost basis will be zero at the end of the lease, this provides a built-in “depreciation account” which is adequate.

(2) The fact that operation and maintenance expenses are to be met by ,the lessee rather than the city out of a segregated fund does not bring the proposed bond issue in conflict with Act No 62. Section 3(c) of Act No 62 does not require the establishment of a separate operation and maintenance fund. It states:

■ “The agreement shall provide that the rents to be charged for the use of the industrial building shall be fixed and revised from time to time so as to produce income and revenues sufficient to provide for * * * the operation and maintenance of the industrial building.”

Since the lessee will pay for operation and maintenance, the required provision has been met. Since the rentals do not include this cost, no money need ;be segregated in an operating and maintenance fund. Section 8(1) of Act No 62 does not require that sums accumulated in an operating and maintenance fund be transferred into the depreciation account, but provides that they “may” be transferred. These features of the proposed financing do not conflict with Act No 62.

(3) The proposed bond issue is not in conflict with Act No 62 although the issue calls for the naming of a trustee and does not provide for a mortgage on the facility. Section 5 of Act No 62 recognizes the alternative of either a mortgage or a trustee for the bondholders. CL 1948, § 125.1255 (Stat Ann 1965 Cum Supp § 5.3533 [25] [1] [e], [2], [3]). Further, that section is permissive and provides only that the resolution authorizing the bond issue “may [require] a mortgage or deed of trust” to secure principal and interest. The city council was not required to have the bond issue secured by a mortgage nor was it prohibited from providing for a trustee for the bondholders.

(1) The failure of the proposed financing agreement to make provision for competitive bids does not violate section 16.6 of the charter of the city of Gaylord. The plywood plant is now in existence. Section 16.6 is silent as to the acquisition of an existing structure. It provides:

“Before making any purchase or contract for supplies, materials, equipment, or contractual services, opportunity shall he given for competition.” (Emphasis supplied.)

Section 3(a) of Act No 62 allows a municipality to acquire an industrial facility by “gift or purchase.” Act No 62 controls. City of Hazel Park v. Municipal Finance Commission, 317 Mich 582.

(2) Section 15.2 of the charter of the city of Gay-lord requires that the city have a 3/5 approval of the electors before it engages in any business enterprise requiring an investment of money in excess of 10 cents per capita. An identical requirement is found in CLS 1961, § 117.5(e) (Stat Ann 1965 Cum Supp § 5.2084[e]). The city’s function in this case is merely to furnish its name to a bond issue. Such function does not constitute engaging in a business enterprise.

(3) Section 10.7 of the city charter of Gaylord provides:

“All * * * other moneys regardless of source, accruing’ to the city shall be collected by the city clerk who shall in all cases give receipts therefor.”

This provision is contradictory to section 5(1) (a) of Act No 62, which provides:

“Any resolution authorizing the issuance of bonds under this act may contain covenants as to * * * the use and disposition of the rentals from the industrial building.”

Bead as a whole, Act No 62 was intended to provide á particular means for the collection and payment of funds involved in industrial financing. See, especially, section 3(e), which provides:

■ “Any municipality may * * * sell and convey the industrial building, including without limitation the sale and conveyance thereof subject to a mortgage.”

Section 10.7 was designed for the normal fiscal activities of the city. To the extent that it is in conflict with the purposes of Act No 62, it is not applicable here.

Section 10.9 of the charter provides a precise method by which claims and demands against the city are to be met. This bond issue is self-liquidating. No “claims and demands” will arise from the proposed scheme of financing. Section 10.9 does not, therefore, invalidate the bond issue.

(4) Section 12.7 of the city charter of the city of Gaylord provides:

“The city may not incur indebtedness by the issue of bonds or otherwise, in any sum which * * * shall exceed 10 per centum of the assessed valuation of the real and personal property within the city.”

This bond issue is in excess of the 10 percent limitation. The rationale which supports the exception noted in article 7, § 21, of the 1963 Michigan Constitution is applicable here. See infra. The indebtedness contemplated by section 12.7 is general obligation indebtedness and not self-liquidating indebt.edness required by Act No 62.

Conclusion.

: Since the questions certified to this Court by the circuit court for the county of Otsego have been answered in favor of plaintiff, a writ of mandamus will issue to compel defendant to perform her duties.

No costs, a public question being involved.

Addendum.

This addendum is written in reply to the opinion of Justice Souris in this case. On July 19,1966, this Court convened for the purpose of hearing the response of counsel to the following communication from the clerk of the Court:

“Confirming my telephone conversation earlier today, please be advised that the Supreme Court has instructed me to request that you appear before the Court on Tuesday, July 19, at 11:30 a.m., prepared to discuss whether the following question ought to be certified and briefed.

“The question referred to is as follows: Should this proceeding be remanded to the trial court for supplementary certification of the questions designed to test the constitutional validity of PA 1963, No 62, against the limitations on legislative power contained in the 1908 Constitution, then still in effect?”

At the conclusion of the session, all counsel were asked whether, in their opinion, it was necessary that further questions be certified or further briefs be submitted. Counsel stated that further briefing was unnecessary and that the case could stand on the questions submitted.

This might be sufficient reason to decline to pass upon the questions raised by Justice Souris. There is, however, a more fundamental reason. The Michigan Constitution of 1963, art 3, § 7, under the heading “General Government”, provides:

“The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.”

The above provision has been shifted in the 1963 Constitution from its former position in the schedules of previous Constitutions.¹⁰ Under Schedule and Temporary Provisions, it is further provided:

“Sec. 1. The attorney general shall recommend to the legislature as soon as practicable such changes as may be necessary to adapt existing laws to this constitution.”

No Michigan eases have considered the import of article 3, § 7, or of the similar provisions of other Michigan Constitutions. In Dewar v. People, 40 Mich 401 (29 Am Rep 545), the city charter enacted in 1873 empowered the common council to license and regulate saloons, restaurants, and billiard rooms. At the time the charter was granted by the legislature, the State Constitution provided that ,the legislature should not pass any act authorizing-.the grant of a license for the sale of intoxicating liquors. The constitutional provision was repealed and the city then passed an ordinance that in effect .provided for licensing liquor establishments. In -holding that the ordinance could not be sustained, the Court said:

“The legislature of 1873 had no power, under the Constitution as it then was, to authorize such licenses, and it is not presumable that any unconstitutional power was intended to be exercised in granting the charter. But if the charter at that time did not confer or attempt to confer the authority, neither does it do so now. The meaning of the charter is the same to-day that it was when adopted, and it cannot be affected and enlarged by any subsequent change in the Constitution. The intent to be sought for in the charter is the intent of the body which passed it, namely, the legislature of 1873; and that was clearly not an intent to authorize the licensing of sales of intoxicating drinks.”

Dewar did not involve construction of the provision in the 1850 Michigan Constitution with regard to laws “in force” remaining in force. All Dewar decided was that the removal of a constitutional prohibition on the legislature did not have retroactive effect on previous legislative action so as to enlarge the legislative grant of authority beyond what the legislature had the power to do when it acted.

In Village of Mt. Pleasant v. Vansice, 43 Mich 361 (38 Am Rep 193), the defendant was fined for violation of a village ordinance forbidding the sale of liquor and providing that violations of the ordinance were misdemeanors. The Court said: (p 363)

“In the first place the general act referred to nowhere assumes to delegate the power to a village council to ordain misdemeanors.”

The Court found (citing Dewar) that, since the legislature was forbidden to make laws authorizing the grant of a license at the time the incorporating act was passed, the legislature could not give that power to the village. The elimination from the Constitution of the prohibition did not change the meaning of the law from what it was at the time of enactment.

In Dullam v. Willson, 53 Mich 392 (51 Am Rep 128), it was held that a statute, purporting to give the governor power to remove public officers for misconduct, void for repugnancy to the Constitution which had vested no judicial power in the governor, was not validated by an amendment to the Constitution giving him the power of removal. Justice Champlin wrote: (p 398)

“The information alleges that the removal was made in pursuance of the statute; and from the fact that the executive order removing the respondent follows the language of the statute instead of the Constitution, and fills the vacancy until the next session of the legislature, instead of the unexpired term, I am convinced that the action was had under the statute. But if the power exists under the Constitution, it is immaterial that a misrecital is made as to its source, and would not invalidate the exercise of the power. I am satisfied that the statute furnishes no valid basis for the power of removal, because repugnant to the Constitution of 1835, which vested no judicial power in the governor. The statute, being void, was not validated by the amendment of 1862, and the question depends solely upon the constitutional amendment of 1862.” (Emphasis supplied.)

Nothing was said in the amendment of 1862 with regard to its effect on prior laws nor did it purport in any way to validate a prior law.

Seneca Mining Company v. Secretary of State, 82 Mich 573 (9 LRA 770), involved passage by the legislature of PA 1889, No 129, authorizing the renewal of a corporate charter. An amendment to the Michigan Constitution passed at the 1889 April election eliminated a former limitation on the authority of the legislature to authorize such renewals. The Court said: (p 575)

“Without the authority conferred upon the legislature by this amendment to the Constitution, the legislature would have no authority to authorize the

extension of corporate existence of corporations such as this, as was held in Attorney General v. Perkins, 73 Mich 303. The important question which is therefore presented is, when did the amendment adopted by the electors in April, 1889, take effect as a part of the Constitution?”

The Court held the amendment took effect prior to the legislative enactment and, therefore, the renewal was authorized. Once again, the case does not involve the construction of the laws “in force” language of the Constitution but, rather, the construction of amendments to the Constitution.

In People v. Frencavage, 233 Mich 369, defendant had first been convicted in 1921 and sentenced to the Michigan reformatory. While out on parole, he was arrested on another offense and sentenced to Marquette prison. This conviction was vacated because of an invalid information. He was then brought back to Kent county under an 1861 law that had been declared unconstitutional. He was recommitted to the Michigan reformatory for his unexpired term under the first conviction. The Court said: (pp 371, 372)

“The portions of this legislation dealing with procedure were held to be unconstitutional in People v. Moore, 62 Mich 496. If these provisions were beyond the power of the legislature to enact at the time they were enacted, it is obvious that a change in the Constitution (PA 1903, p 452) did not make them valid without re-enactment.”

An amendment to the 1850 Constitution in 1903 did not provide for validation of the 1861 act, but merely authorized procedures for retaking and returning convicts on parole. Since the 1861 act had been declared unconstitutional prior to adoption of the 1908 Constitution and was not validated by the 1903 amendment to the 1850 Constitution, it was not “in force” when the 1908 Constitution was adopted.

Toole v. State Board of Dentistry, 300 Mich 180, involved an attack upon a law that had been submitted to a referendum vote. A constitutional provision required that the law be printed on the ballot. It was not so printed in machine precincts. The Constitution was later amended to allow a statute subject to referendum to be posted in the polling place rather than printed. The Court said: (p 184)

“This, of course, did not have retroactive effect, and the ballot prepared for use on the voting machines did not comply with the then command of the Constitution.”

The Constitution required a certain procedure which was not followed. The amendment to the Constitution, adopted after the referendum, did not attempt to validate the procedure used at that election but, rather, authorized a new procedure. The election was tested by the procedure in effect when it was held.

It will be seen that, while the above cases deal with the effect of an amendment to the Constitution upon legislation, no case considered the effect of the laws “in force” provisions of any Michigan Constitution. Unfortunately, the constitutional debates are not helpful in construing the meaning of the laws “in force” provisions. However, if the language does not result in validating laws in effect at the time a new Constitution is adopted (save for those repugnant to it), each of Michigan’s earlier Constitutions continues to have life and an effect upon the laws of this State even though the manifest intention of the authors of each Constitution was to replace the old with the new. The result would be that any law enacted under a previous Constitution would first have to be tested for constitutionality under that Constitution, then under ensuing Constitutions, and finally under the 1963 Constitution. Under such a rule, a law might have to be reviewed for constitutionality under all four Michigan Constitutions before its validity is finally established.¹²

As somewhat indicative of the intention of the framers of the 1963 Constitution, it may be noted that the words “provided by law” or words to similar effect are used throughout the document and with much greater frequency than in earlier Constitutions. By way of example, the following parallel provisions are of interest:

1908

art 2, § 13.

“The right of trial by jury shall remain, but shall be deemed to be waived in all eivil eases unless demanded by one of the parties in such manner as shall be prescribed by law.”

art 5, § 39.

“All laws enaeted at any session of the legislature shall be published in book form within 60 days after the final adjournment of the session, and shall be distributed in such manner as shall be provided by law. The speedy publication of sueh judicial deeisions as may be deemed expedient shall also be provided for by law. All laws and judicial decisions shall be free for publication by any person.”

1908

art 8, § 1.

“Each organized eounty shall be a body corporate, with such powers and immunities as shall be established by law. All suits and proceedings by or against a eounty shall be in the name thereof.”

art 8, § 8.

“The legislature may by general law confer upon the boards of supervisors of the several counties such powers of a local, legislative and administrative character, not inconsistent with the provisions of this constitution, as it may deem proper.”

art 9, § 8.

“Any officer elected by a eounty, eity, village, township or school district may be removed from office in such manner and for such cause as shall be prescribed by law.”

1963

art 1, § 14.

“The right of trial by jury shall remain, but shall be waived in all eivil eases unless demanded by one of the parties in the manner prescribed by law. In all eivil eases tried by 12 jurors a verdiet shall be received when 10 jurors agree.”

art 4, § 35.

“All laws enaeted at any session of the legislature shall be published in book form within 60 days after final adjournment of the session, and shall be distributed in the manner provided by law. The prompt publication of judicial decisions shall be provided by law. All laws and judicial decisions shall be free for publication by any person.”

1963

art 7, § 1.

“Each organized eounty shall be a body corporate with powers and immunities provided by law.”

art 7, § 8.

“Boards of supervisors shall have legislative, administrative and such other powers and duties as provided by law.”

art 7, § 33.

“Any elected officer of a political subdivision may be removed from office in the manner and for the causes provided by law.”

Tbe change from the future tense in the 1908 Constitution to the present tense in the 1963 Constitution is of some significance.

The following eases from other States are helpful in determining the correct construction of the “in force” provision.

In Henry v. State (1871), 26 Ark 523, the State Constitution [1868] provided in article 15, § 16:

“All laws in this State not in conflict with this' Constitution shall remain in full force until otherwise provided by the general assembly, or until they expire by their own limitation.”

Defendants were indicted for keeping a grocery without a license. It was claimed that the former law regulating groceries was repealed by the new Constitution. The court rejected this proposition and said:

“The laws continued in force by the Constitution itself, are as valid as though re-enacted by the general assembly!’ (Emphasis supplied.)

Golden v. People, ex rel. Baker, 101 Colo 381 (74 P2d 715), involved a 1932 amendment to the Constitution which provided: “No such laws shall ever authorize the establishment or maintenance of any saloon.” A 1935 act defined a so-called statutory “saloon”, which went into existence all over the State. In 1936 an old age pension amendment was passed allocating to the pension fund 85% of taxes from intoxicating liquor “of whatever kind.” The district attorney sought an injunction to prevent a town from issuing licenses on the theory that the 1935 act was unconstitutional. The court said, at p 384:

“Following the enactment by the general assembly of said chapter 142, licenses therein provided for, similar to those here in question, were issued and ‘saloons,’ if such they be, established thereunder have since been operating generally throughout the State. Thus the revenue raising provisions of said chapter 142 were incorporated into, and are now a part of, the Constitution, with the result that said article 22 has been modified as to its prohibition against the establishment and maintenance of any saloon, and those places here in question which had provided, and were providing, such revenue were legalized.

“To hold otherwise * * * seems clearly contrary to the purpose and intent of said amendment No. 4 and its specific language. The fact, if it be a fact, that the licensing provisions of said chapter 142, here involved, were, prior to the passage of the old age pension amendment, unconstitutional, is now immaterial. It had not been so declared and all presumptions were in its favor.” (Emphasis supplied. )

State, ex rel. Marr, v. Luther, 56 Minn 156 (57 NW 464), involved railroad acts which were held to have been validated by an amendment to the Constitution. The court said: (pp 164, 165)

■ “In brief, the legislature assumed that when making a grant of lands to aid the building of a railway, or in executing the trust where lands had been granted to the State by congress for the same purpose (and which, while thus held by the State, either as proprietor or in trust, were, of course, not subject to taxation), it had the power, in the furtherance of the object for which the grant was made, to exempt such lands from ordinary taxation, and to provide for commuted taxation of both the railroad and the granted lands.

“There is not in the history of the State a single grant of lands to aid the building of a railway, where this system of commuted taxation has not been adopted. * * *

“In this situation of things, the people adopted a constitutional amendment, Const, art 4, § 32a, ordaining that ‘any law providing for the repeal or amendment of any law or laws heretofore or hereafter enacted which provides that any railroad company now existing in this State, or operating its road therein, or which may be hereafter organized shall in lieu of all other taxes * * * pay into the treasury of this State a certain percentage therein mentioned of the gross earnings of such railroad companies now existing or hereafter organized shall, before the same shall take effect and be in force, be submitted to a vote of the people of the State, and be adopted and ratified by a majority of the electors voting at the election at which the same shall be submitted to them.’

“This language must have been selected and this amendment adopted with reference to the existing legislation and the general legislative policy to which we have referred; and, read and construed in that light, it amounts to a clear recognition of the validity of existing laws providing for this commuted system of taxation of railroad property and lands, and of legislative power to enact such laws for the future. If it did not refer to this, there was nothing to which it could refer. It is, by necessary implication, a validation of past legislation of that land, and a grant of power to enact it in the future(Emphasis supplied.)

People, ex rel. McClelland, v. Roberts (1896), 148 NY 360 (42 NE 1082), involved the Constitution of 1876 which gave the superintendent of public works power to make certain appointments. The Constitution of 1894 put all government workers under civil service. The court held that the new Constitution enlarged the former civil service statute so that it covered all public employees and took away the power of the superintendent to make appointments. The court said, at pp 369, 370:

“Moreover, it is evident from the language of the new provision of the Constitution and from the debates in the convention which followed its introduction into that body, that it was framed and adopted with reference to existing laws, which were intended to give to it immediate practical operation. So that in adopting the new Constitution, the people, in their original capacity, decreed that, thereafter, all the departments of the government should be brought within the operation of existing laws on the subject of appointments. The mandate to the legislature to enact laws to provide for the enforcement of the section does not in any degree conflict with this view. That was a prudent and proper, though, perhaps, an' unnecessary precaution. But it affords no ground for the inference that the people intended to ignore the aid and utility of existing laws to give immediate practical effect to the principle, or that they were content to wait for the reform until the legislature should make new regulations on the subject. It was the intention to put all the new provisions of the Constitution into operation through the instrumentality of such laws as were then in force, so far as practicable, and if, in practice, they were found to be in any respect insufficient for that purpose, they were to be replaced or supplemented by new ones. This view does not depend entirely upon construction, since the instrument itself contains an express provision on that subject. The people declared in section 16 of article 1 that ‘Such acts of the legislature of this State as are now in force shall be and continue the law of this State, subject to such alterations as the legislature shall make concerning the same; but all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this Constitution, are hereby abrogated.’

“If the act of 1883 or any of its amendments needed new life and vigor, in order to bring this case within their operation, it has thus been given to them by an authority from which even the legislature itself has derived all of its powers(Emphasis supplied.)

In the above case, it will be noted that the court not only held the law to be in force but also that the new Constitution had enlarged the former scope of the law.

See, also, Speegle v. Joy (1882), 60 Cal 278, holding that, under a constitutional “in force” provision, an act in force was kept in existence and that an act to go into effect at a future date was defeated. See, also, People v. Whiting (1883), 64 Cal 67 (28 P 445), where a portion of a statute in effect was held valid and a portion to have effect in the future was severed.

Of all the numerous State Constitutions containing provisions similar to Michigan’s article 3, § 7,¹³ as a matter of draftsmanship the provisions in the 1945 Georgia Constitution are of particular interest :

“Paragraph III. Third in authority. — Third: In subordination to the foregoing: All laws now of force in this State, not inconsistent with this Constitution shall remain of force until the same are modified or repealed by the general assembly.

“Paragraph IY. Local and private acts. — Local and private acts passed for the benefit of counties, cities, towns, corporations and private persons, not inconsistent with the Supreme Law, nor with this Constitution and which have not expired nor been repealed, shall have the force of statute law, subject to judicial decision as to their validity when passed, and to any limitations imposed by their own terms.” (Emphasis supplied.) 1 Georgia Code Ann, pp 666, 669.

The difference in the language of these two sections seems particularly pertinent since the last clearly spells out the rule for which Justice Souris contends. Following one after the other, it must be inferred that the first does not.

The correct test of the constitutionality of a statute is not all previous Michigan Constitutions in effect from the time of a law’s enactment plus the existing Constitution, but simply the validity of the law under the present Constitution. This is the test that originally was set up in the Constitution of 1835, art 1, § 21, where it was provided:

“All acts of the legislature contrary to this or any other article of this Constitution shall be void.”

This provision was not repeated in later Michigan Constitutions. It is quite understandable why it was not because later Michigan Constitutions by their “in force” provisions carried over the statutory law that had been developing through the years under previous Constitutions and validated it save for repugnancy to the new Constitution.¹⁴ It is noteworthy that all Michigan Constitutions retain in the laws in force provisions the exact words “not repugnant to this Constitution.” Other phraseology has changed. This clause has remained throughout.

To adopt the contrary rule would produce results the people could not possibly have intended. In the present case, if we were to test PA 1963, No 62, under the 1908 Constitution and determine it to he unconstitutional, having already determined it to be constitutional under the 1963 Constitution, the legislature would he obliged again to pass the law. While the examination of the constitutionality of a law under two or more Michigan Constitutions might exercise the brain cells of the members of this Court, it would be an exercise the futility of which seems manifest. Enactment of legislation is a time-consuming and expensive process. If a law is valid under the 1963 Constitution, we cannot believe either the framers of the Constitution or the people intended that it be stricken from the statute hooks because of invalidity under some former Constitution which they have voted out of existence.

We construe the language of the 1963 Michigan Constitution, art 3, § 7, to have validated all laws that were in force and effect on January 1, 1964. The constitutionality of said laws shall he tested by the 1963 Constitution save as to existing public and private rights as provided for by section 2 of the schedule and temporary provisions of that Constitution.

O’Hara, J., concurred with Adams, J.

1 The questions were not so presented or briefed by either party, a practice of which we disapprove. Wherever this unusual procedure is invoked, the parties should address themselves to the questions as certified.

2 See Attorney General, ex rel. Barbour, v. Pingree, 120 Mich 550, 554 et seq. (46 LRA 407) ; Campbell, Outlines of the Political History of Michigan, p 480 et seq. (1876); Cooley, Michigan, a History of Governments, p 279 et seq. (1905) ; Sagendorph, Stevens Thomson Mason, Misunderstood Patriot, p 317 et seq. (1947).

3 This language ineludes both the State and loeal units of government. Attorney General, ex rel. Barbour, v. Pingree, supra, p 561. Also, see 2 Proceedings of the 1907-1908 Constitutional Convention, pp 1066, 1067; 2 Official Record, Constitutional Convention of 1961, P 2310.

4 Section 18 places a flat prohibition upon the lending of credit “except as authorized in this Constitution.” The predecessor of section 18, article 10, § 12, of the Constitution of 1908, did not contain this exception. Because of this, decisions involving' municipalities under the 1908 Constitution relied upon both article 10, § 12, and article 8, § 25, which was directly applicable to loeal units of government. Skutt v. City of Grand Rapids, 275 Mich 258, 266; Sommers v. City of Flint, 355 Mich 655, 661. Under the 1963 Constitution, this is no longer required.

5 CGSA, §§ 36-96(2); Ann L Mass., eh 168, §43; 4 McKinney’s Cons. L., Banking Law, § 235.

6 The proposed lease between Gaylord and United States Plywood places the sole burden of tort liability, insurance, and repair on the lessee corporation. A trustee will attend to the mechanics of collection of rent, segregation of funds, and payment of the bonds.’ However, in the proposed trust indenture the city will covenant to perform all duties placed upon it and agree to collect sufficient revenues and rental income to meet the requirements of the indenture. Numerous other duties are placed upon the city, sueh as enforcing compliance with the terms of the lease and reletting the facilities in the event of default by United States Plywood. Safeguards are provided by section 13 of PA 1963, No 62, which require the municipality to obtain permission from the municipal finance commission for the bond issue. The commission may request information from the municipality and section 13 lays down specific criteria to guide the commission in giving its approval. See CL 1948, § 125.1263 (Stat Ann 1965 Cum Supp § 5.3533[S3]).

7 Similarly, these dangers are encountered by revenue bonds issued by the State but nevertheless the bonds have been regularly held not to be pledges of the State’s credit. See the recent case of Schureman v. State Highway Commissioner, 377 Mich 609, 611; Pinsky, State Constitutional Limitations on Public Industrial Financing: An Historical and Economic Approach, 111 Penn L Rev 265, 316

8 The absolute character of this requirement does not diminish its flexibility. As Justice Cooley said, “All governmental powers exist for 'public purposes, but they are not necessarily to be exereised under the same conditions of public interest. The sovereign police power which the State possesses is to be exercised only for the general public welfare, but it reaches to every person, to every kind of business, to every species of property within the commonwealth. The conduct of every individual and the use of all property and of all rights is regulated by it, to any extent found necessary for the preservation of the publie order, and also for the protection of the private rights of one individual against encroachments by others. The sovereign power of taxation is employed in a great many eases where the power of eminent domain might be made more immediately efficient and available, if constitutional principles would suffer it to be resorted to; but each of these powers has its own peculiar and appropriate sphere, and the objeet which is public for the demands of one is not necessarily of a character to permit the exercise of another.” People, ex rel. Detroit & H. R. Co., v. Township Board of Salem, 20 Mich 452, 478 (4 Am Rep 400). The requirement of publie purpose has been most rigid when publie money or property is involved. Attorney General v. Board of Supervisors of Bay County, 34 Mich 46, 47; Baker v. City of Grand Rapids, 142 Mich 687, 690; Younglas v. City of Flint, 345 Mich 576, 578; Cf. Sommers v. City of Flint, supra. The requirement has been less rigid when there was no chance the general taxing power could be reached. Gilbert v. City of Traverse City, 267 Mich 257, 261.

9 Opinion of the Justices, No. 120, 254 Ala 506 (49 So 2d 175) ; Newberry v. City of Andalusia, 257 Ala 49 (57 So 2d 629) ; DeArmond v. Alaska State Development Corporation (Alaska), 376 P2d 717; Andres v. First Arkansas Development Finance Corp., 230 Ark 594 (324 SW2d 97) ; Hackler v. Baker, 233 Ark 690 (346 SW2d 677); Roan v. Connecticut Industrial Building Commission, 150 Conn 333 (189 A2d 399) ; In re Opinion of the Justices, 54 Del 366 (177 A2d 205); State, ex rel. Ferguson, v. City of Pittsburg, 188 Kan 612 (364 P2d 71) ; Industrial Development Authority v. Eastern Kentucky Regional Planning Commission (Ky, 1960), 332 SW2d 274; Miller v. Police Jury of Washington Parish, 226 La 8 (74 So 2d 394) ; City of Frostburg v. Jenkins, 215 Md 9 (136 A2d 852); Albritton v. City of Winona, 181 Miss 75 (178 So 799, 115 ALR 1436); Opinion of the Justices, 103 NH 258 (169 A2d 634) ; Opinion of the Justices, 103 NH 325 (171 A2d 429); Roe v. Kervick, 42 NJ 191 (199 A2d 834); Village of Deming v. Hosdreg Company, 62 NM 18 (303 P2d 920); Gripentrog v. City of Wahpeton (ND 1964), 126 NW2d 230; Harrison v. Claybrook (Okla, 1962), 372 P2d 602; Opinion to the Governor, 79 RI 305 (88 A2d 167); cf. Opinion to the Governor, 88 RI 202 (145 A2d 87); Darnell v. County of Montgomery, 202 Tenn 560 (308 SW2d 373); McConnell v. City of Lebanon, 203 Tenn 498 (314 SW2d 12) ; Almond v. Day, 197 Va 782 (91 SE2d 660); State, ex rel. County Court of Marion County, v. Demus, 148 W Va 398 (135 SE2d 352).

The minority view is represented by the following: Beazley v. DeKalb County, 210 Ga 41 (77 SE2d 740) ; Hogue v. Port of Seattle, 54 Wash 2d 799 (341 P2d 171); Nash v. Town of Tarboro, 227 NC 283 (42 SE2d 209) ; Opinion of the Justices, 152 Me 440 (131 A2d 904) ; Opinion of the Justices to the Senate, 332 Mass 769 (126 NE2d 795); State, ex rel. Beck, v. City of York, 164 Neb 223 (82 NW2d 269); State, ex rel. Saxbe, v. Brand, 176 Ohio St 44 (197 NE2d 328); Village of Moyie Springs, Idaho, v. Aurora Manufacturing Company, 82 Idaho 337 (353 P2d 767); Village of Suring v. Suring State Bank, 189 Wis 400 (207 NW 944) ; State v. Town of North Miami (Fla 1952), 59 So 2d 779; State v. Suwannee County Development Authority (Fla 1960), 122 So 2d 190; State v. Clay County Development Authority (Fla), 140 So 2d 576; but see State v. Inter-American Center Authority (Fla 1955), 84 So 2d 9; and State v. Inter-American Center Authority (Fla 1962), 143 So 2d 1.

10 Constitution of 1835. Schedule.

“2. All laws now in force in the territory of Michigan, which are not repugnant to this constitution, shall remain in force until they expire by their own limitations, or be altered or repealed by the legislature.”

The following also appears in article 1 of the Constitution of 1835.

“Sec. 21. All acts of the legislature contrary to this or any other article of this Constitution shall be void.”

Constitution of 1850. Schedule.

“Sec. 1. The common law and the statute laws now in force, not repugnant to this constitution, shall remain in foree until they expire by their own limitations or are altered or repealed by the legislature.”

Constitution of 1908. Schedule.

“Sec. 1. The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are altered or repealed.”

12 There were approximately 2,000 public acts in force when the 1963 Constitution went into effeet. Many of those statutes contain numerous “portions.” Under PA 1945, No 119 (CL 1948, § 8.5 [Stat Ann 1961 Rev §2.216]), or under the severability provisions contained in many acts prior to the enactment of that aet, the Court would be obliged to determine which portions of an aet were invalid and whieh were not and whether the valid portions could be given effeet after the invalid portions had been severed. The magnitude of this task can be judged from the fact that in 1948 there were 21,000 sections to the compiled laws. The number has, of course, since increased.

13 See Index Digest of State Constitutions, pp 595, 596.

14 The procedure of adopting a great body of law along with the adoption of a Constitution is a common one. For example: The 1835 Michigan Constitution carried into Michigan law the laws in force in the Territory of Michigan. Const 1835, schedule, § 2. The Kentucky Constitution carried into effect in Kentucky laws in force in Virginia as of June 1, 1792. Constitution of Kentucky, paragraph 233. The New Hampshire Constitution carried into State law the laws of the colony usually practiced in courts of law- Constitutipu of the State of New Hampshire, part 2, art 90,