Advisory Opinion re Constitutionality of PA 1966, No 261 , 380 Mich. 736 ( 1967 )

UPON RECONSIDERATION.

Per Curiam.

Responding to request of the governor, submitted to this Court pursuant to the provisions of Const 1963, art 3, § 8, five of the Justices advised April 10, 1967, that PA 1966, No 261,¹ violated Const 1963, art 7, § 7. The specific words employed were that “The constitutional provision [Const 1963, art 7, § 7] is valid and, therefore PA 1966, No 261 is not.” Advisory Opinion re Constitutionality of PA 1966, No 261 (1967), 379 Mich 55, 65.

When that opinion was delivered to the governor, it was thought that the group of cases known as Moody v. Flowers; and Board of Supervisors of Suffolk County v. Bianchi; Sailors v. Board of Education of the County of Kent; and Busch v. Davis, then due for submission before the Supreme Court, might he dispositive of the question posed by the governor. It turned out not to he so. See the report of such cases, released May 22, 1967, 387 US 97 (87 S Ct 1544, 18 L ed 2d 643); 387 US 105 (87 S Ct 1549, 18 L ed 2d 650); 387 US 112 (87 S Ct 1554, 18 L ed 2d 656). Some 19 days later, however, certiorari to review the now controlling Avery Case was granted. 388 US 905 (87 S Ct 2106, 18 L ed 2d 1345).

The Supreme Court has now decided Avery v. Midland County, Texas (1968), 390 US 474 (88 S Ct 1114, 20 L ed 2d 45). Five of the eight participating Justices summarized, as follows, that which now requires recall and reversal of of the aforesaid advisory opinion (pp 485, 486):

“Our decision today is only that the Constitution imposes one ground rule for the development of arrangements of local government: a requirement that units with, general governmental powers over an entire geographic area not be apportioned among single-member districts of substantially unequal population.”

Avery as of April 1, 1968, has become supreme law, made so by the Sixth Article. It binds this Court and all other State courts to promptly responsive obedience. Applying it to sections 7 and 18 of article 7 of our Constitution,³ we may conclude only that Avery has rendered section 7 unconstitutional, particularly on account of section 18’s requirement that each township supervisor “shall be elected,” one supervisor for each township, regardless of those disparities of the population of townships within each of our counties which judicial notice cannot blink. The advisory opinion, delivered to the governor as above, is therefore recalled and superseded by that which follows.

The Avery Case considered, it is our opinion that said PA 1966, No 261 is valid, section 7 of article 7 notwithstanding. For Avery has just lifted section 7 out of our Constitution, leaving the rest of article 7 intact with the legislature left free to implement it in the same manner as if no section 7 had ever appeared therein.

Nothing beyond the foregoing is advised or opined. Other questions arising under said Act No 261, whether of validity thereof tested by some new constitutional onslaught, or of interpretation and application of its provisions, or of the necessitous timing of acts required thereby, or of the continuity of existing county government and tenure of presently elected supervisors; all these are left open to future action and determination according to the regular practices of the judicial process.

The clerk will promptly deliver certified copies of these revised opinions to the governor and will fur■nish copies to the attorney general.

Dethmers, C. J., and Black, T. M. Kavanagh, Souris, O’Hara, and Adams, JJ., concurred.

1 The aet is entitled:

“An aet to provide for the apportionment of county hoards of supervisors; to prescribe the size; to prescribe the manner of election of the members of the county board of supervisors; and to repeal certain acts and parts of acts,”

3 “Sec. 7. A board of supervisors shall be established in. each organized county consisting of one member from each organized township and such representation from cities as provided by law.”

“Sec. 18. In eaeh organized township there shall be elected for terms of not less than two nor more than four years as prescribed by law a supervisor, a clerk, a treasurer, and not to exceed four trustees, whose legislative and administrative powers a,nd duties shall be provided by law.”