Attorney General Ex Rel. Cook v. Burhans ( 1942 )

I concur in the result reached by Mr. Justice WIEST; but to avoid a possible misconstruction of our holding, I think the following should be specifically noted. Defendant while holding the office of State senator sought the nomination and election as a regent of the University of Michigan for a term which began a year before the expiration of defendant's office as senator. Both offices are State offices and are incompatible. Under the constitutional provisions (art. 5, § 7, art. 11, § 3) and the statute (1 Comp. Laws 1929, § 3350 [Stat. Ann. § 6.693]) cited in my Brother's opinion defendant was ineligible to election as regent for a term which began prior to the expiration of defendant's term as senator and our decision herein creates a vacancy in the office of regent. See Fyfe v. Kent CountyClerk, 149 Mich. 349, and Murtha v. Lindsay, 187 Mich. 79.

Under the cited constitutional provision (article 5, § 7) it cannot be said that since the two offices are incompatible, when defendant assumed the office of regent he vacated the office of senator. To so hold would be to circumvent the express provisions of the Constitution, and in effect to nullify its clear mandate.

I am not in accord with the opinion written by Mr. Chief Justice CHANDLER wherein he holds that by our judgment in this case Mr. Cook should be installed in the office of regent of the university. To so hold would be in plain violation of the specific provision of article 11, § 3, of the Constitution and also of article 6, § 10, of the Constitution. Section 3, art. 11, contains the following explicit provision: "When a vacancy shall occur in the office of regent it shall be filled by appointment of the governor;" and section 10, art. 6, reads: "Whenever a vacancy shall occur in any of the State offices, the governor shall fill the same by appointment, by and with the advice and consent of the senate, if in session." The office of regent of the University of Michigan is a State office; and our decision herein creates a vacancy in that office. Regardless of any statutory provision which may be considered as in conflict with the two above-quoted constitutional provisions, I am unable to understand how it can be held that the statute controls instead of the constitutional provisions.

Notwithstanding the foregoing would seem to be conclusive of the question under consideration, it may be pertinent to point out that the decisions upon which Mr. Chief Justice CHANDLER relies have no application to the instant case. First, it should be noted that the statutory provisions quoted in my Brother's opinion (3 Comp. Laws 1929, §§ 15274-15276 [Stat. Ann. §§ 27.2318-27.2320]) have been a part of the statutory law of this State since the enactment of the statutes of 1846. See Rev. Stat. 1846, chap. 136, §§ 3, 4, and 5. These provisions are still effective (in the absence of some other conflicting statutory or constitutional provision) provided the vacancy to be filled is not a State office. But they are not operative as to vacancies in State offices because subsequent to the enactment of the statute each of the above-quoted constitutional provisions was embodied in the Constitution of 1850^* and carried over into the Constitution of 1908. No provision will be found in the Constitution of 1835 which is comparable to either of the constitutional provisions hereinbefore quoted.

As noted above none of the cases cited in the opinion of Mr. Chief Justice CHANDLER tends to sustain his position because none of them involves the filling of a vacancy in a State office. The following are the cases upon which my Brother relies:People, ex rel. Falkenbury, v. Miles, 2 Mich. 348, in which the office involved was that of county clerk; People, ex rel.Wagenseil, v. Stephenson, 98 Mich. 218, involved, as appears from the original records in this court, the office of city clerk of Port Huron; and Emmons v. Board of Supervisors, not reported but cited in the Stephenson Case, involved the office of township supervisor, as also appears from the original records in this court. It would seem to go without saying that the decision in each of these cases in no way conflicts with the constitutional provision that: "Whenever a vacancy shall occur in any of the State offices the governor shall fill the same." And it is equally plain, in view of the quoted provisions of the Constitution, that this court in this proceeding is without power to fill the vacancy in the office of regent created by our decision herein.

Chief Justice CHANDLER says: "We should not apply a portion of one statute, which has remained on the books for almost 100 years, and then utterly disregard its remaining provisions and apply those of another statute, even though of equal age and respect." I am in full accord with this statement, except where, as in my Brother's opinion, an attempt is made to apply a statutory provision in a manner which is plainly violative of constitutional provisions.

The conclusion reached by Mr. Justice WIEST should be the decision of this court herein; and if necessary a writ of ouster should issue. No costs allowed.

BOYLES and BUTZEL, JJ., concurred with NORTH, J.

^* Article 13, § 6, art. 8, § 3. — REPORTER.