Wolverine Golf Club v. Secretary of State

180 N.W.2d 820, 24 Mich. App. 711

• Court: Michigan Court of Appeals
• Decided: August 17, 1970
• Docket: Docket 9,018
• Status: Published

Opinions

Lesinski, C. J.

Plaintiffs Wolverine Golf Club and Joseph Comeau have filed the instant suit as an original action before this Court seeking a writ of mandamus ordering defendant Secretary of State to accept an initiative petition¹ for canvass and immediate submission to the present session of the legislature.

The facts giving rise to this suit are not disputed. In 1966 the Congress of the United States enacted the Uniform Time Act, 15 USCA, §§ 260-267, which required “Daylight Saving Time” in all time zones from the last Sunday in April until the last Sunday in October. Pursuant to a provision of the Uniform Time Act, the Michigan legislature exempted this state from the act, thus keeping Michigan on what was formerly standard time. MCLA § 435.211, et seq. (Stat Ann 1970 Cum Supp § 18.872[1] et seq.).

The effect of MCLA § 435.211, et seq., supra, was suspended by the filing of referendum petitions. Michigan Farm Bureau v. Secretary of State (1967), 379 Mich 387. Michigan, therefore, went on daylight saving time during most of the summer of 1967 and all of the summer of 1968. However, when the referendum was presented to the voters during the general election held November 5, 1968, MCLA § 435.211, et seq., supra, was approved by a margin of 490 votes out of the 2,805,614 votes cast.

MCLA §168.472 (Stat Ann 1956 Rev § 6.1472), provides: “Petitions to initiate legislation shall be filed with the Secretary of State not less than 10 days before the beginning of a session of the legislature.” The present session of the legislature convened on January 14, 1970.

On February 12, 1970, counsel for plaintiffs inquired of the Secretary of State by letter whether initiative petitions would be accepted notwithstanding the statutory deadline.² The Secretary of State replied that the statute prohibited acceptance of the petitions for submission to the 1970 session of the legislature or the electorate in the 1970 general eleetion. Subsequently, plaintiffs commenced the instant suit seeking a writ of mandamus.³

As mandamus is clearly the proper remedy if plaintiffs are entitled to relief, Solo v. City of Detroit (1942), 303 Mich 672; Toan v. McGinn (1935), 271 Mich 28, we turn to the merits of the case. The sole issue raised by plaintiffs is whether the statutory requirement that initiative petitions be filed not less than ten days before the start of a legislative session is an unconstitutional restriction of the right of initiative.

Resolution of this question requires an understanding of the initiative process, its historical setting in Michigan, and the background of the statutory 10-day filing deadline. We, therefore, turn to a brief review of these points.

Essentially, there are two types of initiative in Michigan. A direct method operates independent of the legislature wherein a proposal backed by a sufficient number of signatures is automatically placed on the ballot. This method is made available only to proposed constitutional amendments and is incorporated in Const 1963, art 12, § 2. Under constitutional initiative, signatures amounting to at least 10% of the total vote cast for all candidates for Governor in the last general election are required to place the proposal on the ballot. In addition, the petitions must be filed with the Secretary of State at least 120 days prior to the general election.

The second type of initiative available in Michigan is the indirect method which requires that the proposal first be submitted to the legislature for approval, rejection or for an alternative proposal. After the expiration of 40 legislative session days, the proposal must be placed on the ballot of the next general election unless the legislature enacts the proposal into law without change. The indirect initiative method is available only for statutory proposals and is incorporated in Const 1963, art 2, § 9. Statutory initiative requires signature petitions amounting to only 8% as opposed to 10% for constitutional initiative. In this respect it is obvious that a statutory initiative petition drive is slightly less difficult than a constitutional initiative petition drive.

Nevertheless, history has demonstrated that the statutory initiative process has been much less attractive to the electorate as a method of direct government. A study of direct government techniques in Michigan from 1913 to 1961 revealed that the constitutional initiative process was utilized by the electorate on 35 separate occasions, whereas the statutory initiative process was invoked only once. On that occasion in 1948 petitions qualified a statutory proposal which would render a 1901 statute prohibiting the sale of colored margarine of no effect. The legislature enacted the proposal which should have avoided the necessity of submitting the question to the electorate. However, opponents of the measure were able to qualify the legislation for referendum. Thus, the statute did not become operative until passed by the people in 1950.⁴

The dormant statutory initiative process, in sharp contrast to the frequently invoked constitutional initiative process, was a subject of discussion prior to the 1961 Constitutional Convention.

“Why has the indirect statutory initiative been used so seldom? It would seem that the delay inherent in the process (and delay occurs unless legislative acquiescence is forthcoming and even then if opponents can gather sufficient signatures for a referendum petition) militates against the chance of successful promotion of such a measure. Then, too, the direct constitutional initiative requires only a slightly higher percentage of petition signatures and has the advantage of attracting more interest and receiving a direct popular vote. Whatever the reasons, the indirect initiative has been one of the least used of Michigan’s devices of direct legislation.” McHargue, Direct Government in Michigan, Michigan Constitutional Convention Studies, prepared for the Constitutional Convention Preparatory Commission (1961), No 17, p 30.

“One may say, therefore, that the limited effect of the initiative and referendum has not been due to any inherent defects in the institutions themselves, but rather to the limitations and restrictions on their use imposed principally by the legislature.” Pollock, The Initiative and Eeferendum in Michigan, University of Michigan Press (Michigan Governmental Studies, No 6) p 68 (1940).

California had a constitutional provision providing for indirect initiative as well as direct initiative. Even in that state, notorious for direct government activity, indirect initiative had been used only on four occasions from 1912 to 1966.⁵

The Ohio Constitution provided for a method of statutory initiative which like Michigan was indirect. It also provided for direct constitutional initiative and experienced similar inactivity with regard to the statutory initiative process.⁶

The initiative process was among the methods of direct government which gained considerable favor among the electorate during the progressive reform era of the early 1900’s. At the Constitutional Convention of 1907, the first effort to provide the people of the State of Michigan with a form of direct initiative came to fruition in Const 1908, art 17, § 2. It passed the convention by merely three votes, although its provisions were limited to constitutional initiative and the requirement that petitions be signed by at least 20% of the number of electors who had voted for Secretary of State in the last election made its accessibility virtually impossible. As it existed under the original draft of the 1908 Constitution, the constitutional provision was never used.⁷

In January of 1913 Senator Woodworth and Representative Kappler introduced almost identical bills proposing an amendment to the Constitution which would establish a more accessible constitutional initiative and a newly-created statutory initiative.⁸ These bills received almost unanimous support by the legislature and in April of the same year the electorate approved the amendments. The signature requirement of the constitutional initiative process was reduced to 10%. The statutory initiative process was incorporated into art 5, § 1 and provided in pertinent part:

“Initiative petitions shall set forth in full the proposed measure, and shall be filed with the Secretary of State not less than ten days before the commencement of any session of the legislature. * * * Upon receipt of any initiative petition, the Secretary of State shall canvass the same to ascertain if such petition has been signed by the requisite number of qualified electors, and if the same has been so signed, the Secretary of State shall transmit such petition to the legislature as soon as it convenes and organizes. The law proposed by such petition shall be either enacted or rejected by the legislature without change or amendment within forty days from the time such petition is received by the legislature.”

It should be noted that Constitution expressly required that statutory initiative petitions be filed with the Secretary of State not less than ten days before the commencement of any session of the legislature.

The statutory initiative provision of the Constitution was amended hy a proposal which passed both houses of the legislature in 1941⁹ and won approval by the electorate in the spring election. The procedure was changed only to the extent that the Secretary of State was granted constitutional authority to check the names appearing on petitions against the names of registered voters. In that same year the legislature enacted PA 1941, No 246, which implemented the changes brought about by the constitutional amendment.

In addition to the implementing statutes passed in 1941, many of the requirements for initiative and referendum set forth in the highly detailed constitutional provision¹⁰ were reiterated in statutory form in PA 1941, No 246 (CL 1948, § 200.1 et seq.-, Stat Ann 1941 Cum Supp § 6.685[1] et seq.)¹¹ Among the constitutional provisions so codified was PA 1941, No 246, § 2 (CL 1948, § 200.2; Stat Ann 1941 Cum Supp § 6.685[2]) which provided:

“Petitions to initiate legislation shall be filed with the Secretary of State not less than 10 days before the beginning of a session of the legislature.”

PA 1941, No 246 was repealed by PA 1954, No 116, commonly known as the Michigan Election Law. The 1954 act was the result of a major effort on the part of the legislature to reorganize, consolidate and add to the election laws. The above-quoted statute reappeared unchanged as MCLA § 168.472 (Stat Ann 1956 Rev § 6.1472). Due to the historical origin of the 10-day filing deadline and context of the statute in which it was first codified, it appears that it was first enacted as a notice provision of important constitutional details.

It is against this background that the Constitutional Convention delegates formulated and the Michigan electorate adopted Const 1963, art 2, § 9. In pertinent part § 9 provides:

“To invoke the initiative * * * , petitions signed by a number of registered electors, not less than eight percent for initiative * * * of the total votes cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.

“Any law proposed by initiative petition shall be either enacted or rejected by the legislature without change or amendment within 40 session days from the time such petition is received by the legislature. If any law proposed by such petition shall be enacted by the legislature it shall be subject to referendum, as hereinafter provided.

“If the law so proposed is not enacted by the legislature within the 40 days, the state officer authorized by law shall submit such proposed law to the people for approval or rejection at the next general election.

# # #

"The legislature shall implement the provisions of this section.”

Among the several details eliminated from the Constitution is the 10-day filing deadline. Nevertheless this former constitutional requirement remains enshrined in the statute now under attack.

The 10-day filing deadline was clearly necessary and reasonable in 1913, when it first became law. This was due to the combined effect of three factors then in existence. (1) Under the 1908 Constitution, as originally adopted, the legislature met only during the odd-numbered years.¹² (2) During this period the sessions of the legislature were quite short, generally convening in January and adjourning in May.or June.¹³ (3) The statutory initiative provision in Const 1908, art 5, § 1 gave the legislature only “40 days” to accept or reject initiative proposals, unlike the “40 session days” in Const 1963, art 2, § 9. Clearly under the provisions of the 1908 Constitution and realities prior to 1951, if no deadline had been set to insure the early presentation of initiative proposals to the legislature after time was allowed for the necessary certification of the signatures, the legislature might not get a full 40 days before adjournment. And, since the legislature was given only “40 days” rather than “40 session days” the period would continue to run while the legislature was not meeting. Moreover, even if provision had been made to allow the period of legislative consideration to continue from one session to the next, it would mean a postponement of nearly 1-1/2 years dividing the 40 days into two shorter periods. Thus, the 10-day deadline was reasonable and necessary to insure that the legislature would have an opportunity to consider the proposal.

All three of these factors no longer exist, however. The legislature now meets every year.¹⁴ The sessions of the legislature are much longer, often running from January to December. And the legislature now has “40 session days” rather than only “40 days” in which to consider the proposal. Thus, the petitions can be presented well after a session commences and still allow sufficient time for legislative consideration. If the legislature adjourns, the remainder of the “session days” will continue during the next session.¹⁵ And now the periods between sessions are generally only a matter of weeks, rather than the old 1-1/2 years, thus reducing the possibility that the deliberations held during the previous session will be no longer remembered.

Although the original factual basis for the filing requirement no longer exists and although the reason for enactment of the requirement in statutory form (i.e., notice provision of constitutional detail) is no longer present, nevertheless, this Court is bound to recognize the statute as an expression of legislative intent by the clear command of Const 1963, art 3, § 7 which 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.”

Our only inquiry must be whether the statute is repugnant to the Constitution.

It is settled law that the legislature may not act to impose additional obligations on a self-executing constitutional provision. Soutar v. St. Clair County Election Commission (1952), 334 Mich 258; Hamilton v. Secretary of State (1924), 227 Mich 111, 125:

“ ‘The only limitation, unless otherwise expressly indicated, on legislation supplementary to self-executing constitutional provisions is that the right guaranteed shall not be curtailed or any undue burdens placed thereon.’ ”

Whether a constitutional provision is self-executing is largely determined by whether legislation is a necessary prerequisite to the operation of the provision. See 42 Am Jur 2d, Initiative and Referendum, § 3.

“A constitutional provision may be said to be self-executing, if it supplies a sufficient rule, by means of which the right given may be enjoyed and protected, or the duty imposed may he enforced, and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may he given the force of law.”

Cooley, Constitutional Limitations (7th Ed) p 121, quoted in Thompson v. Secretary of State (1916), 192 Mich 512, 520, wherein the Court declared art 5, § 1 (initiative and referendum) of the Michigan Constitution of 1908 to he self-executing.

Whether art 2, § 9 is self-executing has been questioned by Dr. Nord, a delegate to the Constitutional Convention of 1961-1962. His argument centered on the provision in § 9 that in the event the legislature failed to enact the proposal, the duty to place the proposal on the ballot was vested in the “state officer authorized by law”.

“Section 9. (Initiative and referendum) : There are two principal changes in this section. One of them permits the legislature by a three-fourths vote to amend or repeal an act adopted by the people by direct initiative or referendum. The other change is the elimination of a considerable mass of so-called ‘legislative-type detail’ relating to the initiative and referendum procedures. While the ‘Address to the People’ asserts that this section continues to be self-executing, it is highly questionable whether or not this is true. The following examples will illustrate the problems raised: (1) In the fourth paragraph, the ‘state officer authorized by law’ is relied on to submit to the electors any legislation proposed by initiative hut not enacted by the legislature within forty days, and also to submit to the electors for ratification any modification adopted by the legislature. The 1908 Constitution placed this responsibility on the Secretary of State, except as otherwise provided by statute. At present, a statute placed the responsibility on a board composed of the State Board of Canvassers and the Attorney General, but this statute now requires revision. In the event that this statute should ever disappear, it is an interesting question as to how the initiative process could be effectuated.” Nord, The Michigan Constitution of 1963, 10 Wayne L Rev 309, 320 (1964).

This objection to the otherwise self-executing provision was raised by Dr. Nord on the floor of the Constitutional Convention. At that time the following argument was presented in response:

“Mr. Chairman, I suppose that as a very technical kind of a situation maybe Dr. Nord has a point, except I don’t think it is a very practical one. It’s inconceivable to me to believe that any legislature would refuse to empower or direct an official to handle this thing. As a matter of fact, we already have statutes on the books. The general election law is already there.” 2 Official Record, Constitutional Convention 1961, p 2393, remarks of Delegate Hutchinson.

It is not inconceivable that the State judiciary would in such event be able to order the person charged with the ministerial responsibilities under the general election law to place the proposal on the ballot if this responsibility was not specifically delegated by statute.

However, it is not necessary to resolve that issue. The question whether a constitutional provision is self-executing is “ultimately one of intention.” American Youth Foundation v. Township of Benona (1967), 8 Mich App 521, 528. The convention comment, which may properly be considered when attempting to discover the intent of the framers (Beech Grove Investment Company v. Civil Rights Commission [1968], 380 Mich 405; Burdick v. Secretary of State [1964], 373 Mich 578), expressly states that the provisions of art 2, § 9 are self-executing.

“Matters of legislative detail contained in the present section of the Constitution are left to the legislature. The language makes it clear, however, that this section is self-executing and the legislature cannot thwart the popular will by refusing to act.” (Emphasis supplied.)

To hold that the right of initiative reserved to the people of the State of Michigan is not self-executing is to ignore the expressed intent of the framers. This conclusion is more compelling in light of the perceptive opinion of Justice Bird in Hamilton v. Secretary of State (1924), 227 Mich 111, 130:

“The initiative found its birth in the fact that political parties repeatedly made promises to the electorate both in and out of their platforms to favor and pass certain legislation for which there was a popular demand. As soon as election was over their promises were forgotten, and no effort was made to redeem them. These promises were made so often and then forgotten that the electorate at last through sheer desperation took matters into its own hands and constructed a constitutional procedure by which it could effect changes in the Constitution and bring about desired legislation without the aid of the legislature. It was in this mood that the electorate gave birth to the constitutional provision under consideration. In view of this I am persuaded that it was not the intention of the electorate that the legislature should meddle in any way with the constitutional procedure to amend the State Constitution. It was fittingly said in the following cases that:

“ ‘A constitutional provision designed to remove an existing mischief should never be construed as dependent for its efficacy and operation on legislative will.’ ”

We view the term “self-executing” to be more than an after-the-fact description of the operative effect of the constitutional provision. It is a term intended to cloak the provision with the necessary characteristics to render its express provisions free from legislative encroachment. And this is so irrespective of the implementing provision contained therein.

The original language expressed in Committee Proposal 118b sought to make clear that the general implementing provision was not a blank check grant of legislative power.

“The legislature by general law shall provide further necessary methods for the exercise of these powers not in conflict with the provisions of this section’16 (Emphasis supplied.)

Following passage of Committee Proposal 118b the last sentence was changed by the committee on style and drafting to the form which was ultimately enacted. The style change, however, was clearly not intended to be a substantive change.¹⁷

The stautory initiative process contained in art 2, § 9 expressly limits legislative consideration of the initiated proposal to a period of 40 session days. Yet due to the statute in question, which requires the initiative petitions to be filed no less than 10 days prior to commencement of the legislative session, and Const 1963, art 2, § 5 which provides that general elections shall be held on the first Tuesday after the first Monday in November during each even-numbered year, the statute effectively operates to prevent a statutory initiative proposal from appearing on the ballot within a period of time less than 10 months after it is submitted to the legislature. By restricting access to the legislature, the statute has effectively limited access to the statutory initiative process. And this restriction is in conflict with the express 40-day limitation contained in the Constitution. Any further delay of the proposal for the convenience of the legislature operates to restrict the right of initiative beyond permissible bounds.

“In cases where a provision is self-executing, legislation may still be desirable, by way of providing a more specific and convenient remedy and facilitating the carrying into effect or executing of the rights secured, making every step definite, and safeguarding the same so as to prevent abuses. Such legislation, however, must be in harmony with the spirit of the Constitution and its object to further the exercise of constitutional right and make it more available, and such laws must not curtail the rights reserved, or exceed the limitations specified.” State, ex ret. Caldwell, v. Hooker (1908), 22 Okla 712, 718 (98 p 964).

Plaintiff notes that only two cases exist which deal with a situation similar to the present case. In State, ex rel. Kiehl, v. Howell (1914), 77 Wash 651 (138 P 286), the state constitution which expressly declared itself to be self-executing contained the following provision:

“This section is self-executing but legislation may be enacted especially to facilitate its operation.”

The section referred to expressly reserved to the people the right of initiative provided that petitions were filed at least four months prior to the election. (This was a direct initiative process.) Pursuant to the constitution, the legislature enacted laws “facilitating” the operation of the initiative process. Included among those statutes was a provision requiring all petitions to be filed not earlier than ten months before the election.

The statute was challenged as an unconstitutional infringement of the initiative right since it limited the petition drive period to six months (between the tenth and fourth month preceding the election). The court upheld the statute noting that the statute allowed for greater certainty that the voters who signed the petition were, in fact, residents of the state on the date the petitions were filed. Six months was viewed as a reasonable period of time to garner the requisite signatures.

A contrary result was reached in the more recent case of Yenter v. Baker (1952), 126 Colo 232 (248 P2d 311). The right of initiative was expressly reserved to the people by the constitution which was deemed to be self-executing. Included within its provisions was the requirement that all petitions be filed at least four months prior to the election. (The initiative process was direct.) By statute it was required that all petitions be filed at least eight months prior to the election. The court struck down the statutory filing requirement of eight months, concluding that the legislature may not impose additional filing requirements.

The foregoing cases, although reaching different results, are not inconsistent. In Kiehl, supra, the challenged statute did not enlarge upon the minimum filing requirement which was included in the constitution. Rather, a different requirement was formulated. The court concluded that the statute did not conflict with the constitution or unreasonably limit the petition drive period, a maximum requirement imposed being considered necessary for assuring the validity of the signatures.

In Yenter, supra, the now-defunct statute enlarged on the filing limitation already present in the constitution, increasing the difficulty of the existing requirement. In the present case the ten-day filing requirement imposes a time limitation for the convenience of the legislature in addition to the 40-session-day period expressed in the constitution. In this respect the statute conflicts with the express language of the constitution.

It is, however, defendant’s position that the ten-day deadline is a reasonable exercise of the legislature’s general duty under Const 1963, art 2, § 9 to implement that section of the constitution. Plaintiffs, however, argue that the time limit is an unreasonable restraint on initiative.

Unquestionably the ten-day deadline does act as a restraint on the right of initiative. As demonstrated above, the statute results in requiring that petitions be filed with the Secretary of State fully ten months prior to the general election. We note that defendant offers this Court no explanation whatsoever as to why such a period of time is needed.

Even conceding that during the ten months some time is needed to give the legislature the constitutional 40 session days to accept or reject the proposal, there is no need for this extended minimum period required by the statute. Const 1963, art 12, § 2 provides for constitutional amendment by petition and vote of the people. That provision requires petitions signed by 10% of the voters compared with the art 2, § 9 requirement of 8%.¹⁸ Yet, although the percentage is greater, art 12, § 2 requires petitions to be filed only “120 days” or four months prior to the election.

Significantly art 12, § 2 further provides that the sufficiency and validity of constitutional initiative petitions be certified “at least 60 days prior to the election.” Thus, the 120-day period provided in art 12, § 2 contemplates two months for certification of the sufficiency of the petitions and two more months for preparation of the ballots and presentation to the voters.

Adding these same periods to the “40 session days” allowed for legislative consideration of the statutory initiative proposal would result in a period of substantially less than 10 months.

Defendant argues that if the time limit is unreasonable, then statutes prohibiting the signing of fictitious or forged names to petitions would also be violative of the constitution. There is, however, an important distinction between statutes which protect the people from fraudulent attempts to bypass the legislature through initiative and those which create unnecessary obstacles to restrict the lawful use of initiative. Moreover, the legislature may undoubtedly place certain ground rules on the petitioning for initiative in order to facilitate the enormous task of verifying the signatures on the petitions. Markowitz v. State Canvassers (1965), 1 Mich App 12. This distinction was clearly noted in State v. Snell (1942), 168 Or 153, 160 (121 P2d 930, 934):

“Any legislation which tends to ensure a fair, intelligent and impartial accomplishment may be said to aid or facilitate the purpose intended by the Constitution. Any safeguard against deception and fraud in the exercise of the initiative and referendum powers tends to assure to the electorate the benefits conferred by § 1 of article 4.

“Such legislation, however, must be reasonable, not ‘curtailing the right or placing any undue burdens upon its exercise.’ Stevens v. Benson, supra [50 Or 269, 91 p 578], Nor may it ‘hamper or render ineffective the power reserved to the people.’ State, ex rel. Ayres, v. Amsberry [1920], 104 Neb 273 (177 NW 179, 180, 178 NW 822); State, ex rel. Elsas, v. Missouri Workmen’s Compensation [1928], 318 Mo 1004, (2 SW2d 796).”

See, also, Yenter v. Baker, supra.

As indicated above, Const 1908, art 5, § 1 contained a highly detailed provision for statutory initiative. Many of these details were dropped when the successor provision, Const 1963, art 2, § 9, was adopted.

Defendant argues that the elimination of these points from the constitution was part of an effort to leave to legislative discretion matters of specialized and technical significance. In this regard defendant cites the 2 Official Record, Constitutional Convention 1961, p 2392,¹⁹ where the chairman of the committee on legislative powers stated:

“Removed from constitutional status are the provisions on content and time of filing petitions, canvassing of names on petitions, type sizes, and right of the legislature to prescribe penalties. Also removed is the date of effectiveness of legislative acts which is covered in article 5, section 21.

“All of these matters are left to the legislature in the last sentence. However, the language of the last sentence also makes it clear that the section is self-executing and the legislature cannot thwart popular will by refusing to act.”²⁰

We agree with defendant’s argument. Agreement, however, does not resolve the issue. For while the Constitution places the duty of implementation on the legislature, it does so as an incident to the granting of a right to the people. Although administrative implementation is needed if the initiative process is to function smoothly, the administrative statutes may not create unnecessary burdens which tend to restrict the constitutional right. The spirit of the Constitution is not met if the rights it grants are unnecessarily impaired under the guise of implementation.

Moreover, as noted above the original committee proposal 118b gave the legislature only the power to provide “necessary methods for the exercise of these powers [initiative] not in conflict with the provisions of this section”. (Emphasis supplied.) There was, thus, the clear intent on the part of the convention²¹ to limit the power of the legislature to that which is “necessary” to the effective implementation of the initiative right.

Thus, while the legislature has the power to establish the time of filing, since any deadline will act as a restraint on a constitutional right, the legislature may only create those restrictions which are necessary. Any statute which is both unnecessary for the effective administration of the initiative process and restrictive of the initiative right is unreasonable and thus unconstitutional.

When Const 1963, art 2, § 9 was reported out of committee at the Constitutional Convention, it stated that the legislature was to accept or reject the proposed law “within 40 days.” (2 Official Eecord, Constitutional Convention 1961, pp 2390-2392.) As noted above, this phrase was changed to read “40 session days.” The Constitutional Convention, thus, not only removed the ten-day deadline from the Constitution but, as evidence by the record of the Constitutional Convention debate (see footnote 15), contemplated the filing of petitions much later in the legislative session.

Defendant agrees that initiative petitions may be filed at any time, but argues that filing after the statutory deadline results in submission of the issue to the following legislative session. Thus, in the instant case initiative petitions filed in 1970 would be submitted to the 1971 session of the legislature.

The weakness in defendant’s argument centers in the unnecessary delays it would cause in the use of initiative. Const 1963, art 2, § 9 requires any law proposed by initiative which was rejected by the legislature be submitted “to the people for approval or rejection at the next general election.” Under Const 1963, art 2, § 5, however, the elections are regularly scheduled on “the first Tuesday after the first Monday in November in each even numbered year.” Thus, under the defendant’s argument the petitions would be filed in 1970, go to the legislature in 1971 and finally be presented to the public for vote in November of 1972, nearly 2-1/2 years after the filing.

There are two basic reasons why we do not think such delays are consistent with the Constitution. First, the Constitution gives the legislature only 40 session days to consider the proposed law.²² In light of such a restrictive limit on the legislature, we do not believe delays ranging from a minimum of 10 months to a maximum of 34 months between the time of filing and the time of the popular vote was intended. And if such extended delays had been approved by the convention, we doubt that the period allowed for legislative consideration would have been so limited.

Second, we believe that when the convention provided for petitions filed long after the opening of the session, it indicated an approval of the “last minute” exercise of initiative. Such exercise thus should be limited only to the extent necessary to allow for the efficient administration of the initiative process.

One other difficulty remains with the delays inherent in defendant’s position. While the instant suit involves daylight saving time, the right of initiative may be invoked for other issues of far greater importance and moment. If extended and unnecessary delays are permitted, issues may become moot before the public is permitted to act. We do not believe that such was the intent of the Constitutional Convention.

It might be argued, however, that since the ten-day filing deadline existed as a constitutional standard for half a century, that the same standard in statutory form cannot now be declared so unreasonable as to be unconstitutional. Despite its surface logic, however, the argument falls short for two reasons, both historical.

First, the statutory initiative provision in Const 1908, art 5', § 1, originated in the legislature as a proposed constitutional amendment in 1913. It was not the result of a constitutional convention or of constitutional initiative.²³ Thus when the electorate approved the ten-day deadline as a constitutional amendment in the April election of 1913, it was only one small part of a much larger provision. If they rejected the ten-day deadline, there would have been no statutory initiative provision at all. Thus, it would be a fiction to say that the ten-day rule has stood as an expression of the overriding will of the people.²⁴

Second, as demonstrated above, when the ten-day limit first became law it was clearly necessary and reasonable due to circumstances then existing. As the circumstances which necessitated the rule have all changed, it cannot be said that reasonableness of the rule necessarily remains.

We hold that MOLA § 168.472 (Stat Ann 1956 Rev § 6.1472), constitutes an unnecessary and, therefore, unreasonable restraint on the constitutional right of the people to initiative. The statute is, thus, unconstitutional.

In so holding we do not intimate that a time limit necessary and reasonable for the effective administration of the initiative process after the legislature has considered the initiative petition, might be invalid. Such will withstand challenge so long as it does not constitute an unnecessary restraint on the right of initiative.

The petition for a writ of mandamus is granted.

1 Const 1963, art 2, § 9.

2 On oral argument of this cause plaintiffs moved to amend their complaint to add the allegation that they have a sufficient number of signatures upon petitions for prima facie compliance with the requirements of Const 1963, art 2, § 9. Further, at oral argument the attorney for plaintiffs stated in open court and on the record that he had actual knowledge that this allegation was factually correct. The motion was granted.

We take judicial notice of the fact that plaintiffs’ petitions allegedly bear approximately 206,000 signatures and were filed with the Secretary of State on June 17, 1970.

3 While the complaint was pending in this Court, petitioners filed in the Supreme Court an application for leave to appeal prior to decision by the Court of Appeals. By order of the Supreme Court, the application was denied on March 31, 1970.

4 McHargue, Direct Government in Michigan, Michigan Constitutional Convention Studies, prepared for Constitutional Convention Preparatory Commission (1961); Pollock, The Initiative and Referendum in Michigan, University of Michigan Press (Michigan Governmental Studies, No 6) (1940).

5 Discussing this fact, it was noted:

“The statewide indirect initiative has been used but four times since 1912 and would be eliminated entirely by a revision of article 4 of the Constitution which will appear on the November ballot. West’s California Legislative Service 416-417, 424-425 (1966); California Constitution Revision Commission, Proposed Revision of the California Constitution 52, 141-142 (1966) [hereinafter eited as Constitution Revision Commission]. For further discussion of the revision see note 29 infra. A possible explanation for the failure of persons to take advantage of the lower signature requirement for indirect initiatives may be the extreme delay which stands between the completion of signature gathering and final submission of the measure to the voters. Unless the governor should call a special election, a minimum of approximately 23 months passes before an indirect initiative is placed on a ballot. This delay results because the indirect initiative procedure calls for submission of the proposed measure to the legislature before it convenes (Cal Const art 4, § 1 [¶ 4]); the legislature convenes for general legislative sessions in January of every odd numbered year (Cal Const art 4, § 2[a]); the measure, if not enacted within 40 days, must be presented at the ensuing general election (Cal Const art 4, § 1 [¶ 4]), but that general election does not come until November of the next even numbered year (Cal Const art 4, §3). Under the proposed revision of article 4, the legislature would hold annual legislative sessions (Constitution Revision Commission 29-30), and, if the indirect initiative were retained, it might become a more viable tool. The period of delay could be reduced to as little as 10 months and a few days. Staff Memorandum for California Constitution Revision Commission, January 12, 1965, p 11.” Comment, The Scope of the Initiative and Referendum in California, 54 Cal L Rev 1717, N19 at 1720 (1966).

6 “The record of direct legislation in Ohio discloses the interesting fact that the device has been employed more freely at the constitutional than the statutory level. Between 1912 and 1950, 29 constitutional amendments were proposed by the initiative. Nine were ratified. During the same period 15 of 29 amendments proposed by the general assembly were approved. Seventeen legislative measures have been proposed by the initiative. Of these, three were enacted by the general assembly. Three not so enacted were carried to the voters by supplemental petition; one was adopted.” Fordham and Leach, The Initiative and Referendum in Ohio, 11 Ohio State Law J 495, 497 (1950).

7 McHargue, supra, p 21 et seq.

8 PA 1913, Concurrent Resolution Nos 3-4, pp 780-86.

9 PA 1941, Joint Resolution Nos 1 and 2, pp 781-85.

10 Const 1908, art 5, § 1.

11 PA 1941, No 246 restated the following constitutional requirements :

No 246, § 1 enacted the Const 1908, art 17, § 2 requirement that constitutional initiative petitions be filed four months before the election at which the proposal was to go to the voters;

No 246, § 2 enacted the art 5, § 1 requirement that statutory-initiative petitions be filed 10 days before the commencement of the legislative session;

No 246, § 3 enacted the art 5, § 1 requirement that referendum petitions be filed within 90 days of the adjournment of the legislature;

No 246, § 7 enacted the art 17, § 2 requirement that a declaration of the sufficiency of the petition be filed at least two months prior to the election ;

No 246, § 12 enacts the art 5, § 1 provision regarding the form of the petition and provides further details not set forth in the Constitution.

12 Const 1908, art 5, § 13 provided:

“The legislature shall meet at the seat of government on the first Wednesday in January, nineteen hundred nine, and on the first Wednesday in January in every seeond year thereafter, and at no other place or time unless as provided in this Constitution; and shall adjourn without day, at such time as shall be determined by concurrent resolution, at twelve o’clock noon.”

The practice of having regular sessions only during the odd numbered years was not changed until Const 1908, art 5, § 13 was amended by legislative proposal in 1951 and ratified at the biennial spring election of April 2, 1951.

13 Michigan Manual, 1969-1970, p 98, sets forth the following dates:

Bate of Meeting Bate of Adjournment

January 4, 1899 June 24, 1899

January 2, 1901 June 6, 1901

January 7, 1903 June 18, 1903

January 4, 1905 June 17, 1905

January 2, 1907 June 29, 1907

January 6, 1909 June 2, 1909

January 4, 1911 May 2, 1911

January 1, 1913 May 15, 1913

14 Const 1963, art 4, § 13.

15 During tlie debates the following exchange took place (2 Official Record, Constitutional Convention 1961, p 3085) :

“Mr. Brake: Mr. President, ladies and gentlemen of the convention, I have a question. In column 2, page 3, line 38, where it is talking about legislative action on initiative petitions presented to the legislature, it says this must be done within 40 days. I wonder if that shouldn’t be 40 legislative days. Suppose this petition is presented the last day before the legislature adjourns, or while they’re completely in recess?

“Vice President Sutchinson: Mr. Brake, are you directing a question to a particular person?

“Mr. Brake: Tes, Dr. Pollock, please.

“Mr. Pollock: Mr. President, this was not before our committee as a substantive matter. * * * Therefore, I’m not prepared to answer your question, although it seems to me your point is very well taken.” (Emphasis supplied.)

In direct response to this problem the language of the article was amended to read “within 40 session days” to insure that if a petition is filed shortly before adjournment the time period does not continue to run during adjournment.

16 2 Official Record, Constitutional Convention 1961, p 2418.

17 After proposal 118b returned from the style and drafting committee, the following statement was made at 2 Official Record, Constitutional Convention 1961, p 2927:

‘‘Mr. Hoxie: Mr. President, I move that we dispense with the reading of this proposal, and I would like to state that since the return of these proposals from style and drafting, the committee has reviewed all of them. The committee finds no change, no substantive change in this proposal and we recommend that it be passed.”

18 Both percentages are of “the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected.” Const 1963, art 2, § 9; art 12, § 2.

19 See Burdick v. Secretary of State (1964), 373 Mich 578, allowing resort to the constitutional convention debates for the purpose of ascertaining the intent of the provisions of the Constitution.

20 The substance of this statement was reiterated in the Convention Comment for art 2, § 9:

“Matters of legislative detail contained in the present section of the Constitution are left to the legislature. The language makes it clear, however, that this section is self-executing and the legislature cannot thwart the popular will by refusing to act.”

21 As noted above this language was changed by the committee on style and drafting to the present form found in Const 1963, art 2, § 9, but no substantive change was intended. 2 Official Record, Constitutional Convention 1961, p 2927.

22 For definition of “session days” see Smith v. Attorney General (1911), 165 Mich 140; Davock v. Moore (1895), 105 Mich 120; and OAG 1963-1964, No 4329, p 494 (November 3, 1964).

23 Coincidentally it was the same proposal which resulted in reducing the signature requirement for constitutional initiative from an impossible 20% to an accessible 10%.

24 Moreover, it is interesting to note that the first time the ten-day limit was submitted to a popularly elected constitutional convention, it was taken out of the Constitution.