Common Council v. Schmid , 128 Mich. 379 ( 1901 )

Long, J.

For the purpose of testing the constitutional validity of an act of the legislature of 1901, approved May 21, 1901 (Act No. 437, Local Acts 1901), establishing biennial instead of annual city elections, the common council of the city of Detroit instructed the city clerk to take the necessary steps for the registration of voters for an election to be held on the first Tuesday after the first Monday of November, 1901, and also instructed the commissioner of public works to cause polling booths to be erected for the purpose of such registration and election. The city clerk and commissioner both refused to follow the instructions of the common council, basing their refusal upon the validity of said act of May 21, 1901. Mandamus proceedings were thereupon instituted against the city clerk and commissioner in the circuit court for Wayne county, and an order to show cause was issued to said officers. Upon a hearing before four of the Wayne circuit judges, sitting in banc, the mandamus was refused; Judge Hosmer dissenting on the ground that the act was in violation of section 28, art. 4, of the Constitution of this State. The proceedings are before this court upon certiorari to review the action of the circuit judges.

Previous to the passage of the act of May 21, 1901, annual city elections were held in Detroit in November and April of each year. Section 1, chap. 2, of the act of 1901, provides that no election shall be held in November, 1901, and abolishes annual city elections. It provides for a biennial city election on the first Tuesday after the first Monday in November, 1902, and every second year thereafter, in connection with the general State election. It provides also fora biennial spring election, on the first Monday of April, 1903, and every second year thereafter, in connection with the State judicial election. These were the only material changes in this section. Section 2, chap. 2, was amended so as to conform to the change from annual to biennial elections. Section 13, chap. 2, was changed to cure a claimed existing defect in the boards of registration, and has no bearing upon the change from annual to biennial elections. Section 1, chap. 4, was also amended so as to conform to the change to biennial elections. Section 25, chap. 4, was amended so as to define a vacancy in office under the charter.

The constitutionality of the act of 1901 is attacked upon two grounds:

1. That it was not introduced in either branch of the legislature within the first 50 days of the session.

2. That, in effect, it operates as an appointment by the legislature of the local city officers.

It appears that a bill was introduced in the house within the first 50 days of the session, to wit, on February 12, 1901, entitled í

“A bill to amend section 2 of chapter 4 of an act entitled ‘An act to provide a charter for the city of Detroit, and to repeal all acts and parts of acts in conflict therewith,’ approved June 7, 1883.”

The bill thus introduced was amended after the first 50 days, the substituted bill being entitled:

“A bill to amend sections 1, 2, and 13 of chapter 2, and sections 1 and 25 of chapter 4, of an act entitled ‘An act to provide a‘charter for the city of Detroit, and to repeal all acts and parts of acts in conflict therewith,’ approved June 7, 1883.”

It appears that the bill as finally passed did not amend section 2 of chapter 4 of the charter, but amended sections 1, 2, and 13 of chapter 2, and sections 1 and 25 of chapter 4, of the act entitled “An act to provide a charter for the city of Detroit,” etc. It is the contention of relator that inasmuch as section 2, chap. 4, which was proposed to be amended by the bill as introduced, has reference to an entirely different subject than the bill as finally passed as amended after the first 50 days, the act passed is void as contravening section 28, art. 4, of the Constitution, which provides that “no new bill shall be introduced into either house of the legislature after the first 50 days óf a session shall have expired;” and it is further contended that the act is also void under the provisions of section 20, art. 4, of the Constitution, which provides that “no law shall embrace more than one object, which shall be expressed in its title.” The-argument upon this latter question is that, because the title as introduced is an index to the subject-matter of the bill, the substitute, introduced after the first 50 days, is void, as it is broader than the title as introduced, and is not germane to the general purpose as expressed in the title.

This latter objection has, we think, no force whatever. The exact question was passed upon in Attorney General v. Rice, 64 Mich. 387, 388 (31 N. W. 204). It was there said:

“The attorney general contends that the Constitution ( article 4, § 20) was violated in its spirit, because the title of the bill as introduced did not express the object of the act as passed. We cannot extend the provisions of the Constitution beyond its express terms in this respect. If the object of the act as passed is fully expressed in its title, the form or status of such title at its introduction, or during any of the stages of legislation before it becomes a law, is immaterial. To hold otherwise would, in many cases, prevent any alteration or amendment of a bill after its introduction, as, in legislative practice, it frequently becomes necessary to amend the title as introduced in order to conform to changes in the bill. The title to a bill is usually adopted after it has passed the house, and is not an essential part of the bill, although it is of a law,”— citing Larrison v. Railroad Co., 77 Ill. 17.

This question again arose in the case of Hart v. McElroy, 72 Mich. 452 (40 N. W. 752), and the doctrine laid down in the Rice Case was reiterated, and it was said:

“ In the present case, therefore, the act is not unconstitutional because the title of the bill as introduced differed from the title of the substitute, or the act as passed.”

An inspection of the title and the act as passed shows that there is no constitutional objection to the sufficiency of the object as stated in the title. The amendments to the act are germane to the general object- stated in the original title.

The fact that the amendments were made to the bill does not render the act void under section 28 of article 4 of the Constitution. It is not a new bill, within the meaning of that section. It is well-known history in this State that most of the acts passed by the legislature are passed after the first 50 days of the session, and many, if not most, of them amended after the first 50 days. That subject has had consideration by this court in many cases. As early as 1878, in the case of People v. Judge of Superior Court of Grand Rapids, 39 Mich. 195, the question was presented. The act there under consideration purported by its title to revise and amend several sections of an old statute, and to add several new sections. The particular provision in question was contained in a section numbered 7, which corresponded in number with an old section, which was not mentioned in the title. The act was upheld. The title to that act is as follows:

“An act to revise and amend sections 6, 11, 13, 19, and 21 of an act entitled ‘An act to provide for a municipal court in the city of Grand Rapids, to be called “The Superior Court of Grand Rapids,”’ being Act No. 49 of the Session Laws of 1875, approved March 24, 1875, and to add six new sections to the act, to stand as sections 24, 25, 26, 27, 28, and 29.” Act No. 147, Pub. Acts 1877.

It will be noted that section 7 was not referred to in the title. The sections added by amendment, to wit, 24, 25, 26, 27, 28, and 29, refer to the stenographer of the court, —a subject in no way germane to that embodied in section 7. The only notice, therefore, of a purpose to introduce an amendment which would affect the provisions of section 7 as they stood in the original act, was the notice of a title to amend other named sections of the act, and the law could only have been upheld upon the view that the notice of. an amendment to a section of an act admits of the introduction of any amendment within the original title of the act.

In Pack v. Barton, 47 Mich. 520 (11 N. W. 367), the objection to the act was, as here, that it was not introduced until after the expiration of 50 days of the session, although the Constitution provides that ‘ ‘ no new bill shall be introduced * * * after the first 50 days of a session shall have expired.” The facts of the case were shown to be .that, within the 50 days, a bill was introduced for the organization of the township of Montmorency, and, after the 50 days had expired, the bill was amended to provide for the organization of the county of Montmorency. It was the contention that this was the introduction of a new bill. This court upheld the legislation. The following cases also uphold the general doctrine that, where the amendments are germane to the general object stated in the title to the original bill, such amendments are valid: Board of Sup’rs of Chippewa Co. v. Auditor General, 65 Mich. 408 (32 N. W. 651); Attorney General v. Amos, 60 Mich. 372 (27 N. W. 571); Attorney General v. Rice, 64 Mich. 385 (31 N. W. 203); Hart v. McElroy, 72 Mich. 446 (40 N. W. 750); People v. Howard, 73 Mich. 10 (40 N. W. 789); Holden v. Osceola Co. Sup'rs, 77 Mich. 202 (43 N. W. 969); Caldwell v. Ward, 83 Mich. 13 (46 N. W. 1024); Toll v. Jerome, 101 Mich. 468 (59 N. W. 816); Davock v. Moore, 105 Mich. 133 (63 N. W. 424, 28 L. R. A. 783); City of Detroit v. Wayne Circuit Judge, 112 Mich. 317 (70 N. W. 894); Fort Street Union Depot Co. v. Commissioner of Railroads, 118 Mich. 340 (76 N. W. 631); Springer v. City of Detroit, 118 Mich. 69 (76 N. W. 122); Renackowsky v. Board of Water Com'rs of Detroit, 122 Mich. 613 (81 N. W. 581).

In Holden v. Osceola Co. Sup'rs, supra, it was said:

“Most of the great changes in our city organizations have come in under laws which did no more than to indicate by their titles a purpose to incorporate, or reincorpórate, or revise the corporate charter of the municipality dealt with. Anything which is meant to form a permanent element in municipal arrangements is pertinent to the incorporation.”

In People v. Howard, supra, it was said:

“Acts entitled acts to amend a named act are not obnoxious to the Constitution, if the amendment fairly comes within the scope of the title of the original act.”

In Fort Street Union Depot Co. v. Commissioner of Railroads, supra, it was said:

“The important question is, What is requisite to the title of the amendatory act ? Must it call attention to the fact that the scope of section 3 [Act No. 198, art. 3, Laws 1873] is to be enlarged, and mention the corporations to be included, either by name or generically, or must every one take notice that section 3 is liable to be amended in any particular, and to any extent, within the terms of the original title? * * * Many .authorities support the rule that the title of the amendatory act is sufficient, and will support any legislation that would have been per mis-

sible under the original title when the law amended was enacted, if the amendatory act refers by chapter or sec-, tion to the act amended, giving its title, although the practice has been criticised. Thus, in the case of People v. Judge of Superior Court of Grand Rapids, 39 Mich. 197, such an amendment was sustained, notwithstanding the title incorrectly stated the number of the section sought to be amended. In People v. Gadway, 61 Mich. 290 (28 N. W. 102, 1 Am. St. Rep. 580), Mr. Justice Champlin says:

“ ‘In applying the constitutional test to this law, it must he regarded as if section 15 [Act No. 178, Pub. Acts 1883] was embraced in the original when passed; and, if it is embraced in the title of the act of 1881, it is valid; otherwise, not.’

“ It is fair to say that it is not clear that the exact question before us was discussed in that. case,' as apparently both court and counsel took it for granted that the case must turn upon the title to the original act.

“Thecase of Holden v. Osceola Co. Sup'rs, 77 Mich. 202 (43 N. W. 969), is also in point, Mr. Justice Campbell saying ; ‘ It is undoubtedly competent to introduce by amendment anything which might have been introduced in the original act.’ The title to the act in that case, as in this, referred to a section, and not to the act. • It was as follows: ‘ An act to amend section 3 of Act No. 331,’etc., ‘entitled,’etc. Act No. 342, Local Acts 1889.

“ The question was before this court again in People v. Howard, 73 Mich. 10 (40 N. W. 789). This was a criminal case, and the title was ‘ An act to amend chapter 154 of the Revised Statutes of 1846, being chapter 180 of the Complied Laws, entitled “Of Offenses against the Lives and Property of Individuals.” ’ Act No. 116, Laws 1867. The object of this amendment was to create a new offense, and a felony at that; yet the law was held valid.”

In the case of Renackowsky v. Board of Water Com’rs of Detroit, 122 Mich. 613 (81 N. W. 581), the case of City of Detroit v. Wayne Circuit Judge was approved. The Sackrider Case, 79 Mich. 59 (44 N. W. 165), and Plank-Road Case, 97 Mich. 589 (56 N. W. 943), which seem to be relied upon by counsel for relator, were distinguished from the other cases by Mr. Justice Montgomery in Toll v. Jerome, 101 Mich. 471 (59 N. W. 816).

It seems, therefore, that the law is fully settled in this State that whatever might have been incorporated into-the original act under the title of such original act may be added by way of amendment under the Smost general.title. The substituted bill and title in the present case indicate the same general purpose as the original title. The notice to be imputed from the original title is of a change in the city charter of Detroit. It was certainly not to be a reenactment of section 3, chap. 4, but a change, the extent of which could be disclosed only by an inspection of the original bill; and presumptively such inspection would have disclosed the change actually and finally made. Nor would the original title itself have indicated the nature of the change. A proposed amendment to section 3, chap. 4, would convey no knowledge of the amendment without an inspection of the body of the bill. The only information conveyed by such title would be that the charter itself was to be in some manner amended. The notice, therefore, was of a change in the charter. The titles of both the original and substituted bills indicate such a change. Both titles, therefore, disclose the same general purpose.

In Attorney General v. Amos, 60 Mich. 373, 379 (37 N. W. 571), the original bill amended sections 3 and 4 of chapter 1 of an act entitled “ An act to provide a charter for the city of Detroit,” and the substituted bill was entitled “A bill to amend sections 3, 4, and 5 of chapter 1 and to add five new sections to Act No. 336 of the Session Laws of 1883, entitled ‘An act to provide a charter for the city of Detroit.’ ” It was said by the court that “the bill had for its object the amendment of the charter of the city of Detroit.”

A bill to vacate one judicial circuit, and to reorganize another, was held in Toll v. Jerome, 101 Mich. 468 (59 N. W. 816), to be of the same general purpose as a bill to require the judge of the former circuit to hold court in the latter.

In Attorney General v. Rice, supra, it was said:

“The journal of the senate positively states that a bill was introduced to organize the township of Au Train. If such a bill was introduced, it would be presumed that the bill substituted, to organize the township of Ironwood, had in view the same general purpose as the first bill, — to give to the inhabitants of the territory described a distinct municipal government.”

And in Hart v. McElroy, 72 Mich. 446 (40 N. W. 750), it was said:

“We have no right to presume that the body of the substitute was not germáne to the body of the [original] bill.”

We must therefore hold that the act is not defective, as claimed.

The claim of counsel for relator that the act operates as an appointment of local city officers by the legislature cannot be sustained. Apparently it was not claimed in the court below, and it is not claimed here, that the legislature had no power to change the time of holding elections in the city of Detroit; but' the contention is that the effect of the act is to continue in office the present city officers beyond the terms for which they were elected, and this operates as an indirect appointment by the legislature. The Constitution directs, by section 13, art. 15, that “the legislature shall provide for the incorporation and organization of cities and villages.” Under this provision the legislature directs what the nature of the organization shall be; what officers shall be elected or appointed; their terms of office; their powers, duties, and compensation; when vacancies shall exist, and how they shall be filled. This' power to so prescribe is within the scope of the power to organize the municipality. Then follows a provision in section 14 of the same article of the Constitution that “judicial officers of cities and villages shall be elected, and all other officers shall be elected or appointed, at such time and in such manner as the legislature may direct.” It is argued by Judge Speed, counsel for respondents, that:

“It must be conceded that the authority to organize- and the authority to prescribe the time and manner of election and appointment of officers of a city is a continuing power, which may be exercised and re-exercised at. the pleasure of the legislature; that, having provided for annual city elections, the legislature may abolish the annual city election and substitute biennial elections, and may fix the time and prescribe the manner of conducting such biennial election; and that such change must necessarily involve or require some legislation, or bring into-operation some existing provisions, as to the officers whose terms may be affected by the change.

“It is, however, claimed, [by relator] that there is in this language granting an express power to fix the time of holding such elections an implication which forbids the fixing of such a time for holding the election that the officers then in office would hold over, for the reason that, such holding over violates a further implication that officers of cities or villages shall be elected or appointed by local authority, and a holding over by authority-of the legislature is in effect an appointment by the legislature; that is to say, the express power to prescribe the time and manner of election is limited or controlled by the implication that the legislature shall not fix a time which would have the effect to leave any one in office for any time beyond that for which he was elected. * * *

“A ‘concession to the claim of relator would require the legislature, if it fixed a time, as in the present instance, for holding the election after the expiration of the terms of existing officers, to provide for the holding of an ad interim election of officers for the time intervening between the expiration of present terms and the new election ; and the Constitution, notwithstanding its very plain 'language, must be read as if it contained this requirement.”

There is great force in these suggestions, and they lead to an inquiry as to the term for which the present city officers were elected. Section 5, chap. 4, of the charter of the city of Detroit, provides:

“All officers, whether elected or appointed, shall hold their offices respectively until their successors shall be duly elected or appointed and qualified, and shall enter upon the discharge of their duties.”

The act under consideration nowhere refers to the existing officers, and makes no express extension of their terms of office. If such officers are continued in office, it is not by virtue of this act, but by virtue of the above provision of the charter of Detroit. This was the unanimous decision of the court below. It was said by that court:

“We do not think that the question of local self-government is involved in these cases at all. The present city officers were elected by the people, under the law that then existed, and with full knowledge of the law, to hold their offices for the full term for which they were elected. What was that term, under the law? It was just this: That they should hold their offices for the full time specified in the law for each officer, respectively, and until their successors were elected and qualified. Under the law they hold their offices, not by legislative appointment, but by the votes of the people constitutionally recorded, and from no other authority.

“ That the legislature has the right to change the time of holding elections was not questioned on the argument, nor can it be successfully questioned. By the change a contingency has arisen whereby either new officers have to be elected, or the offices remain vacant, or the present officers hold over during the interim. It is not necessary to discuss the first two of these propositions, for the answer to the third eliminates them from the discussion. The present officers do hold over, because the law says so, and the people elected them knowing that in such a contingency they would hold over.” Common Council of Detroit v. Schmid, 8 Det. Leg. N. 583.

We fully agree with the court below in this statement, and with the contention made by Judge Speed in his brief. This seems to be the established and unquestioned rule wherever the question has arisen. In State v. Menaugh, 151 Ind. 260, 271-273 (51 N. E. 117, 357, 43 L. R. A. 408, 418), a similar question is discussed. It appears that the Indiana constitution expressly prohibits the legislature from creating any office for a longer term than four years, but under the constitution an officer holds until his successor is elected and qualified. The constitution also provides that the officers in question “shall be elected or appointed in such a manner as may be prescribed by law.’’ Article 6, § 3. The legislature changed the time of the election, the effect of which was to continue the incumbent officers in office for a period of two years beyond the constitutional limit, and this legislation was attacked on that ground. The court said:

“An examination of the act will readily disclose that it does not profess to create the office of township trustee, nor to extend the term thereof beyond the constitutional limit. It proceeds upon the theory that the office has been previously created, and it merely declares as the legislative will that the time of holding an election for township trustees, etc., shall be changed from the general election on the first Tuesday after the first Monday in November, 1898, to the general election on the first Tuesday after the first Monday in November, 1900, and on such day ‘of every fourth year thereafter.’ * * * The statute in question makes no reference to present incumbents. It neither pretends nor attempts to abridge or enlarge their tenure. * * * Consequently, if incumbent trustees are permitted to hold beyond four years, it cannot, in legal contemplation, be attributed to the provisions of the act in controversy, but will be due to the force and effect of the provision of the constitution last mentioned.”

Again the court said:

“In consideration of this constitutional provision, the electors of this State, when, by their ballots, they designate a person to fill a public office the tenure of which is prescribed either by the constitution or some statute, must be presumed to understand and know that the contingent holding of the officer until his successor is elected and qualified is as much a part of the term for which he is elected as is that which is expressly prescribed and fixed.”

In State v. Ranson, 73 Mo. 78, the hold-over provision was apparently a statutory, and not a constitutional, one. The Missouri constitution provided that the term of an officer should not be “extended for a longer period than that for which such officer was elected or appointed.” The legislature changed the time of holding the election so that no election could be held until two years after the end of the term of the officer in question. It was held that the time intervening between the end of the term of an officer and the election of his successor “is as much a part of his term of office as the four years that preceded it.”

In Jordan v. Bailey, 37 Minn. 174 (33 N. W. 778), it was held that the legislature may make reasonable changes, by amendments to existing laws, in respect to the time of holding elections for the offices then under consideration (to wit, municipal judges), and in such case incumbents previously elected for an existing term, and until their successors are elected and qualified, may hold over during the interval; that such act would not be unconstitutional, unless the change left the incumbent in office for such unreasonable time as to raise the presumption of a design to deprive the office of its elective character. The following cases lay down the same doctrine: State v. McCracken, 51 Ohio St. 123 (36 N. E. 941); State v. McGovney, 92 Mo. 428 (3 S. W. 867); Christy v. Sacramento Co. Sup’rs, 39 Cal. 3.

It is said by counsel for relator, however, that, if the legislature can place the election one year beyond the term for which such officers were elected, it can extend it ten or any number of years. That question was referred to in Jordan v. Bailey, supra, by the Minnesota court, and the court said:

. “The constitution is satisfied if provision is made by law for the election of such officers at stated periods, unless these periods are fixed at times so far remote from each other as to raise the presumption of a design substantially to deprive these offices of their elective character.”

In that case the election was put off for moré than one year, and it was said by the court:

“The legislature are not at liberty to abuse their authority in such cases, and we cannot presume that it has done so in this case. * * * We are not authorized in holding this to be an unreasonable change, and we are not warranted in imputing to the legislature any unworthy purpose in making it; nor is the incidental result that the respondents hold over in the interval, by virtue of the terms of the previously existing statute, in itself sufficient to show an intention to deprive the office of its elective character.”

In the present case the period fixed for holding the election continues the incumbents in office under the terms of the charter, one year. This is not unreasonable, especially as it saves the city of Detroit the expense of an election in November, 1901, and the spring of 1902, and places the election at times when the general State elections are to be held.

Counsel for relator, however, cites several cases which he claims hold the doctrine for which he contends. We think the cases cited by him may be readily distinguished. In the case of People v. Bull, 46 N. Y. 57 (7 Am. Rep. 302), the statute under consideration (Laws N. Y. 1866, chap. 217) was entitled “An act to extend the term of the office of the justice and clerk of the district court,” etc. j and Mr. Justice Folger, in deciding the case, says:

“He [respondent] placed his title to it after the expiration of the six-year term explicitly upon the legislative continuance of him in it by the act of 1866. Such is his answer in the case, and no other right or title is set up. And upon this he must stand.”

In People v. McKinney, 52 N. Y. 374, the claim was made that respondent was entitled to the continuance of his office of collector of taxes by virtue of “An act for the extension of the term of office of collector of taxes in the several towns of Kings county.” Chapter 364, Laws N. Y. 1870.

In State v. Krez, 88 Wis. 135 (59 N. W. 593), it also appears that the legislature, by express provision, sought to extend the term of office of city attorney, and the court held that this could not be done. None of these cases is in conflict with the rule laid down by the circuit judges in the present case.

We think the act valid, and that the mandamus was properly denied. The order will be affirmed.

In the Buoff Casé a vacancy exists by the resignation of the alderman in the Fifteenth ward of Detroit. It follows from what we have said that that vacancy cannot be filled by general election until November, 1902. The court below ordered a special election to be “held to fill such vacancy on the 8th of the present month. That order must be affirmed. That time having now elapsed, the council will undoubtedly call the special election at some future date.

Montgomery, C. J., and Hooker, J., concurred with Long, J.