People ex rel. Drake v. Mahaney

13 Mich. 481, 1865 Mich. LEXIS 46

• Court: Michigan Supreme Court
• Decided: October 28, 1865
• Status: Published

Opinion

Coolest J.

By section 36' of “An Act to establish a Police Government for the City of Detroit,” approved February 28th, 1865, (Laws of 1865, p. 99,) it is provided that “ the offices of City Marshal and Assistant Marshal of the city of Detroit are hereby abolished, and the duties of said offices shall hereafter be performed by the Superintendent of Police, or by the captains and sergeants of police, under his direction, in accordance with the provisions of this act.” Butj this section was not to become operative until the Superintendent of Police, or Captain of Police, authorized by said act to be appointed, had been sworn into office, nor until certain notices should be given, as provided by section 38 of the same act.

The Commissioners of Police named in the act, having organized and appointed a Superintendent, and he having-been sworn into office, the President of the Board of Police caused the notices provided for by section 38 to be given] on the sixteenth day] of May last, including a notice to the respondent, who then held the office of Marshal of the city of Detroit under an appointment made by the Common Council, January 18th, 1864, for the term of two years. The respondent disregarded this notice, and treating the act in question as invalid, has assumed to be still in office as City Marshal, and to be rightfully performing the duties of that office to the present time.

To an information in the nature of a quo warranto, charging him with unlawfully assuming to discharge the duties of Marshal, the respondent has interposed several pleas which raise the questions: First, whether the act in question is constitutional, and, second, if so, whether it was ever legally ordered to take immediate effect, so that it came into operation prior to the time when the Board of Police organized and gave the notices which have been referred to.

The constitution (Art. IV., Sec. 20,) provides that “no public act shall take effect or be in force until the expiration of ninety days from the end of the session at which the same is passed, unless the Legislature shall otherwise direct by a two-thirds vote of the members elected to each house.” The session at which this a'ct was passed terminated on the twenty-third day of March, and laws not ordered to take immediate effect would, - therefore, not come into operation until the twenty-first day of June. The legislative records show that this act was ordered to take immediate effect; but the pleas set forth certain facts which, it is claimed, show that in the House of Representatives the two-thirds vote of sixty -seven members included several who had not been elected by a majority of legal votes, but who, it is also claimed by the pleas, Avere notwithstanding- retained in their seats by an adjudication of the House in their favor. And it is insisted that this Court is not bound by the action thus taken, but may go behind the law as approved to ascertain whether, in fact, the constitutional vote necessary to give it effect before the expiration of the ninety days, was cast by members legally chosen.

As the Court are bound judicially to take notice of what the law is, we have no doubt it is our right as well as our duty to take notice not only of the printed statute books, but also of the journals of the two houses, to enable us to determine whether all the constitutional requisites to the validity of a statute have been complied with. The printed statute is not even prima facie valid when other records, of which the Court must equally take notice, show that some constitutional formality is wanting. No plea is necessary to bring to the notice of the Court facts which the Judges must judicially know, and in respect to which no proof could be given. — 1 Chit. Pl., 215; Coburn v. Dodd, 14 Ind., 348; Board of Supervisors v. Heenan, 2 Minn., 336; People v. Purdy, 2 Hill, 33; De Bow v. People, 1 Denio 11; Commercial Bank of Buffalo v. Sparrow, 2 Denio 101; People v. River Raisin and Lake Erie Railroad Co., 12 Mich., 397.

But although the Courts must take judicial notice oí legislative action, so far as it affects the validity of statutes, they have no such power as respects the facts attending the election of the several members, and it remains to be seen whether we can notice those facts even after they have been spread upon the legislative journals, and make them the basis of judgments, the retrospective effect of which would be to unseat members of a body long since adjourned, and to annul its action by declaring the votes of such members illegal and invalid.

It is insisted by respondent’s counsel that, although section' nine of article four of the constitution authorizes each house to “judge of the qualifications, elections and returns of its members,” yet it does not do more than to empower them to determine, First, whether the returns or certificates of election are in form and substance in conformity with the law; Second, whether a man who presents himself for membership possesses the requisite qualifications; and, Third, whether, at a proper election, he has received a majority of legal votes cast under the law. And in passing iipon these questions, it is said they do not act in a judicial capacity to determine what the law is, since the judicial power by section one of article six .is vested in certain Courts and officers; but they sit under the law to apply it, as judicially expounded, to the facts before them.

It is a sufficient answer to this argument, that while the constitution has conferred the general judicial power of the State iipon the Courts and officers specified, there are certain powers of a judicial nature which, by the same instrument, are expressly conferred upon other bodies or officers: and among them is the power to judge of the qualifications, elections and returns of members of the Legislature. The terms employed clearly shoiv that each house, in deciding, acts in a judicial capacity, and there is no clause in the constitution which empowers this, or any other Court, to review their action. The “general superintending control” which the Supreme Court possesses under section three of article six of the constitution, “over all inferior courts,” does not extend to the judicial action of the legislative houses in the cases where it has been deemed necessary to confer judicial powers upon them with a Ariew to enable them to perfect their organization and perform their legislative duties. The houses are not “inferior Courts,” in the sense of the constitution, but, as legislative organizations, are Arested -with certain powers of final decision, for reasons Arhich are clearly imperative.

It may happen, as suggested in the argument, that with each house, not only deciding- for itself questions of fact, but also construing for itself the law, we may sometimes witness th'e extraordinary spectacle of the two bodies construing and enforcing the law differently, while a third construction is enforced by the Courts upon the public at large. But with this possibility in view, the evils of allowing the Courts a supervisory power over the decisions of the houses upon the admission of members, are so great and so obvious that it is not surprising that the framers of the constitution refrained from conferring the power. The supervision could not ordinarily be exercised during the session of the legislative body, and to correct the decisions afterwards by amending- the laws passed, would only be to substitute a great public evil for that which might have been a wrong to an individual member and to the district which elected him, but which could seldom affect the State at large.

It can make no difference that in this case, according to the pleas, the question passed upon by the house was purely a questionr of law. The question of the legal election of a member is usually a question compounded of law and fact, and the house must necessarily pass upon both. If we have the power to review the decision in one t case, we • have in all. If we can correct their erroneous construction of a law, we have the same power to correct any erroneous decision upon returns, qualifications or majorities. It is sufficient for us to say that the constitution has not conferred upon us this jurisdiction, and whether the decision made is right or wrong, we shall leave it where it has been left by the fundamental law of the State.

But it is insisted that the whole law is unconstitutional -and void, because in violation of section twenty of article four of the constitution, which provides that “no law shall embrace more than one object, which shall be expressed in its title.” The history and purpose of this constitutional provision are too well understood to require n y elucidation at our hands. The practice of bringing together into one bill subjects diverse in their 'nature, and having no necessary connection, with a view to combine in their favor the advocates of all, and thus secure jbe passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the State. It was scarcely more so, however, than another practice, also intended to be remedied by this provision, by which,. through dextrous management, clauses were inserted in bills of which the titles gave no intimation, and their passage secured through legislative bodies whose members were not generally aware of their intention and effect. There was no. design by this clause to embarrass legislation by making laws unnecessarily restrictive in their scope and operation, and thus multiplying their number;but the framers of the constitution meant to put an end to legislation of the vicious character referred to, which was little less than • a fraud upon the public, and to require that in every case the proposed measure-should stand upon its own merits, and that the Legislature should be fairly satisfied of its design when required to pass upon it. — See Board of Supervisors v. Heenan, 2 Minn., 336.

But this purpose is fully accomplished when the law 'has but one general object, which is fairly indicated by its title. To require that every end and means necessary to the accomplishment of this general object should be-provided for by a separate act relating to that alone,, would not only be senseless, but would actually render-legislation impossible. The police government of a city coxdd not be organized without a distinct act for each specific duty to be devolved upon it, and these could not be passed until a multitude of other statutes had taken the same duties from other officers before performing them. And these several statutes, fragmentary as they must necessarily be, would often fail of the intended effect, from the inherent difficulty of expressing the legislative will when restricted to such narrow bounds.

The general purpose of this act is “ to establish a police government for the city of Detroit.” It would be difficult to express it better or more concisely than it is expressed by the title. To accomplish this general object, officers are airthorized to be appointed, who shall take upon themselves certain duties before performed by other officers, as well as certain new duties now created, and who are authorized to appoint and govern a force. The act, with great particularity, prescribes how this police government shall be rendered effectual; but this particularity cannot possibly bo objectionable so long as it introduces nothing foreign and. incongruous, but is confined to the means supposed to be important to the end indicated.

The Courts of some other States have been called upon, from time to time, to pass upon questions similar to this under their own constitutions, and their decisions are not entirety harmonious. None of them, however, have laid down a rule, tested by which, the main provisions of this act could be held unconstitutional, and we have, therefore, no occasion to enter upon a critical examination of them in this opinion.'

It is next objected that the law is invalid because in conflict with section twenty-five of article four of the constitution, Avhich provides that “no law shall be revised, altered or amended by reference to its title only; but the act revised, and the section or sections of the act altered or amended, shall be re-enacted and published at length.”

The act before us does not assume in terms, to revise, alter or amend any prior act, or section of an act, but, by various transfers of duties it has an amendatory effect by implication, and by its last section it repeals all inconsistent acts. We are unable to see how this conflicts with the provision referred to. If, whenever, a new statute is passed, it is necessary that all prior statutes, modified by it by implication should be re-enacted and published at length as modified, then a large portion of the whole code of laws of the State would require to be re-published at every session, and parts of it several times over, until, from mere immensity of material, it would be impossible to tell what the law -was. If, because an act establishing a police government modifies the powers and duties of sheriffs, constables, water and sewer commissioners, marshals, mayors and justices, and imposes new duties upon the executive and the citizen, it has thereby become necessary to re-enact and re-publish the various laws relating to them all as now modified, we shall find, before the act is completed, that it not only embraces a large portion of the general laws of the State, but also that it has become obnoxious to the other provisions referred to, because embracing a large number of objects, only one of which can be .covered by its title.

This constitutional provision must receive a reasonable construction, with a view to give it effect. The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to but not re-published, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form' for that express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation. But an act complete in itself is not within the mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain 'intent.

A third objection is made to the validity of this act tinder section thirteen of article fifteen of the constitution, which is as follows: “The Legislature shall provide for the incorporation and organization of cities and villages, and shall restrict their power of taxation, borrowing-money, contracting debts, and loaning their credit.” Sections twenty-two and thirty-two of the act make it the duty of the Board of Police to prepare and submit to the City Controller, on or before the first day of May in each year, an estimate, in detail, of the cost and expense of maintaining the police department, and the Common Council is required to raise the same by general tax. These sections, it is claimed, are in conflict with the provision referred to, since no limit is fixed by them to the estimates that may be made.

Whether this provision of the constitution can be regarded as mandatory, in a sense that would make all charters of municipal corporations and acts relating thereto which are wanting in this limitation invalid, we do not feel called upon to decide in in this case, since it is clear that a limitation upon taxation is fixed by the act before us. The constitution has not prescribed the character of the restriction which shall be imposed, and from the nature of the case it was impossible to do more than to make it the duty of the Legislature to set some bounds to a power so liable to abuse. A provision which, like the one complained of, limits the power of taxation to the actual expenses as estimated by the governing board, after first limiting the power of the board to incur expense within narrow limits, is as much a restriction as if it confined the power to a certain per centage upon taxable property, or to a sum proportioned to the number of inhabitants in the city. Whether the restriction fixed upon would as 'effectually guard the citizen against abuse as any other which might have been established, was a question for the legislative department of the government, and does not concern us on this inquiry.

It is also urged that sections twenty-two and thirty-two, of the act conflict with section fourteen of article fourteen of the constitution, which requires that “ every law which imposes, continues oi; revives a tax, shall distinctly state the tax and the object to> which it is to. be applied, and. it shall not be sufficient to refer to any other law to fix such tax or object.” It is sufficient for us to say that these sections, if to be regarded as imposing a tax within the meaning of this provision, do state the tax and the object to which it is to be applied, with precision. It was impossible that the amount should be fixed in advance; and there is nothing in the language employed in this section of the constitution which would warrant us in holding that every law providing for a tax is invalid, unless it limits in amount the sum to be levied.

It is further objected that the act is unconstitutional because it confers upon the Police Board certain judicial powers. This objection raises a question which is not before us upon thiá record, and -which,. therefore, we do not intend to decide.' The only question which the record presents is, whether, by the organization of the Board under the act, and the giving of the notices provided for by- section thirty - eight, the office of the respondent was terminated. Whether any specific power which the act undertakes to confer upon the Board -is constitutional or not, can only be tested when the Board assume to exercise it, and the other portions of the act could not be defeated by its invalidity, unless the nature of such unconstitutional power was such as to render it of vital importance to the whole. — See Smith v. Village of Adrian, 1 Mich., 495; Ames v Port Huron Log Driving and Booming Co., 6 Mich., 266; and Parsons v. Russell, 11 Mich., 113.

Besides the specific objections made to the act as opposed to the provisions of the constitution, the counsel for respondent attacks it on ' “ general principles,” and, especially, because violating fundamental principles of our system, that governments exist by the consent o,f the governed, and that taxation and representation go together. The taxation under the act, it is said., is really in the hands of a Police Board, a body in the choice of which the people of Detroit have no voice. This argument is one which might be pressed upon the legislative department with great force, if it were true in point of fact. But' as the people of Detroit are really represented throughout, the difficulty suggested can hardly be regarded •as fundamental. They were represented in the Legislature which passed the act, and had the same proportionate voice there with the other municipalities in the State, all of which receive from that body their powers of local government, and such only as its wisdom shall prescribe within the constitutional limit. They were represented in that body when the present Police Board were appointed by it, and the Governor, who is hereafter to fill vacancies, will be chosen by the State at large, including their city. There is nothing in the maxim that taxation and representation go together, which requires that the body paying the tax shall alone be consulted in its assessment, and if there were, we should find it violated at every turn in our system. The State Legislature. not only has a control in this respect over inferior municipalities, which it exercises by general laws, but it sometimes finds it necessary to interpose its power in special cases to prevent unjust or burdensome taxation, as well as to compel the performance of a clear duty. The constitution itself, by one of the clauses referred to, requires the Legislature to exercise its control over the taxation of municipal corporations, by restricting it to what that body may regard as proper bounds. And municipal bodies are frequently compelled most unwillingly to levy taxes for the payment of claims, by the judgments or mandates of Courts, in which their representation is quite as remote as that of the people of Detroit in this Police Board.

It cannot, therefore, be said that the maxims referred to have been entirely disregarded by the Legislature in the passage of this act. But as counsel does not claim that, in so far as they have been departed from, the-constitution has been violated, we cannot, with propriety,, be asked to declare the act void on any such general objection. An unbroken series of decisions in this State has settled the rule of law, that before we can declare an act of the Legislature invalid, its provisions must be found to conflict with the constitution. — Scott v. Smart's Executors, 1 Mich., 295; People v. Gallagher, 4 Mich., 244; Sears v. Cottrell, 5 Mich., 251; Tyler v. People, 8 Mich., 320; People v. Blodgett, 13 Mich.

We have only one other objection to notice, and that .does not go to the validity of the act, but only to its effect upon the office of City Marshal. On the twenty-first of March, 1865, twenty-one days after the passage of the one in question, another act was passed and ordered to take immediate effect, amending the sections in the charter of Detroit in regard to opening, altering and closing streets. — Paws of 1865, p. 680. The only change made by this law was a reduction of the number of jurors, to be summoned by the Marshal, in the proceedings for opening streets and so forth, from twenty-four to twelve; but as the law was passed and took effect after the police law, it is claimed that it necessarily had the effect to modify the other to the extent of continriing the office of Marshal. When the second act was passed,' the Police Board had not been organized, and the Marshal was not only an existing officer, but it was wholly uncertain when Ms office would be terminated. No intention appears in this. act to change the police law, or to do anything beyond reducing the number of jurors to be summoned, and, but for the provision in the constitution requiring an amended section to be re-published as amended, the change might have been accomplished by a simple substitution of the word twelve for twenty-fowr. The effect of the amendment is no different now from what it would have been if made in that form. The duty to summon the jurors remained as before, and so continued until by the subsequent organization of the Police Board, and by the taking of the «other preliminary steps, the office of City Marshal ceased to exist, and this duty, with others, was transferred to an officer under the police law.

For the reasons given, we are satified that the act in controversy is constitutional; that it was constitutionally ordered to take immediate effect, and that the respondent ceased to be City Marshal on the 16th day of May last. Judgment must be entered accordingly.

The other Justices concurred.