Hamilton v. Secretary of State

179 N.W. 553, 212 Mich. 31, 1920 Mich. LEXIS 480

• Court: Michigan Supreme Court
• Decided: October 1, 1920
• Docket: Calendar No. 29,334
• Status: Published

Opinions

Moore, C. J.

This is a proceeding instituted by plaintiff to compel defendant to submit to the electors at the general November election a proposed amendment to the Constitution of this State. Pursuant to the provisions of the State Constitution initiatory petitions, signed by plaintiff and others, were filed in the office of defendant proposing an amendment to the Constitution of this State, which amendment reads as follows:

“Section 16. All residents of the State of Michigan, between the ages of five years and sixteen years, shall attend the public school in their respective districts until they have graduated from the eighth grade:. Provided, That in districts where the grades do not reach the eighth, then all persons herein described in such district shall complete the course taught therein.

“Sec. 17. The legislature shall enact all necessary legislation to render section sixteen effective.”

The defendant being advised by the attorney general that the proposed amendment was in conflict with the Constitution of the United States, and should not be submitted to the electors at the general November election, notified plaintiff that he would not submit the same, whereupon plaintiff made application to this court for a writ of mandamus to compel defendant to place the proposed amendment upon the ballot at the November election.

It is contended on the part of the defendant that the proposed amendment is invalid for the following reasons :

“(1) It is in conflict with the 14th Amendment to the Constitution of the United States, in that it abridges the privileges and immunities of citizens of the United States.

“(21) It violates, the 14th Amendment to the Constitution of the United States, in that it deprives persons of their liberty and property without due process of law.

“(3)i It violates section 4 of article 5 of the Constitution of the United States, which guarantees to every State in the Union a republican form of government.

“ (4) In addition to the foregoing, another proposition is herein involved, viz., the duty of the secretary of State to submit the proposed amendment to the electors, although the same is in conflict with the Constitution of the United States.”

Each of the above propositions is argued at length and with great ability. We are of the opinion that it is not our duty at this time to determine these questions.

It is conceded that a petition with the proper number of signatures was in February, 1920, filed with the defendant to make it his duty to submit the proposed constitutional amendment to the people at the November election, if the proposed amendment is not in conflict with the Federal Constitution. No one knows to any certainty whether if the amendment is submitted to the legal electors it will receive a sufficient number of votes to carry it./ If it does not receive such a number of votes no one is harmed.

If the defendant in this case may decide whether the proposed amendment is constitutional and thus refuse to submit it, May he not in any case in which it is his judgment that the proposed amendment is unconstitutional, decline to submit it? If he may exercise this power, Is not he going much farther than his duties as a ministerial officer authorize him to go? If the proposed amendment should receive a majority of the legal votes cast, there will then be time enough to inquire whether any provision of the Federal Constitution has been violated. ■ Until that time comes we must decline to express any opinion as to the unconstitutionality of the proposed amendment.

It is claimed on the part of the defendant that the question is foreclosed by Scott v. Secretary of State, 202 Mich. 629; Hamilton, v. Secretary of State, 204 Mich. 439; Hamilton v. Secretary of State, 206 Mich. 371; and Decher v. Secretary of State, 209 Mich. 565.

Without discussing those cases in detail, we think a reading of the opinions therein will show them to be easily distinguished from the instant case and that they are not inconsistent with this opinion.

We think it the duty of the defendant to submit the proposed amendment, and it is so ordered. Other opinions may be filed later.

Steere, Stone, Bird, and Sharpe, JJ., concurred with Moore, C. J.