Hamilton v. Secretary of State

We have before us again an application for mandamus to compel the secretary of State to submit to the electorate the so-called "parochial school" amendment to the State Constitution initiated under the provisions of section 2 of article 17 of the Constitution. See Hamilton v. Secretary ofState, 204 Mich. 439; Hamilton v. Secretary of State, 206 Mich. 371; Hamilton v. Secretary of State,212 Mich. 31; Hamilton v. Secretary of State, 221 Mich. 541. When the question was before us in Hamilton v. Secretary ofState, 212 Mich. 31, I gave my reason for voting against the issuance of the writ. I then entertained no doubt, and I now entertain no doubt, that the proposed amendment conflicts with the Fourteenth Amendment to the Federal Constitution. I fully appreciate that it is generally expected that members of this court will acquiesce in the results announced by a temporary majority of this tribunal. This must be so in the every-day work of this court. But occasions will arise when convictions are so fixed on constitutional questions, on fundamentals, that one ought not to yield to this doctrine of comity. The instant case presents in my judgment such an occasion. I am strengthened in the view that I should not yield on this fundamental question by the fact that the Supreme Court of the United States, the final interpreter of the Federal Constitution, has since the writing of that opinion sustained the views therein expressed.

In the recent case of Meyer v. State of Nebraska,262 U.S. 390 (43 Sup. Ct. 625), the court had before it a statute of the State of Nebraska which prohibited the teaching of any foreign language in a parochial school to students who had not passed the eighth grade. Plaintiff in error, a teacher in a Lutheran parochial school, had taught the German language to a student who had not passed that grade. He was convicted, and the conviction was affirmed and the statute held valid in Meyer v.State, 107 Neb. 657 (187 N.W. 100). He reviewed the decision of the State court in the Supreme Court of the United States and then insisted that his right to teach foreign language in a private school was a liberty secured to him under theFourteenth Amendment to the Federal Constitution. The statute was held invalid and the decision of the State court reversed. Mr. Justice McReynolds, who wrote for the court, said:

"Plaintiff in error taught this language in school as part of his occupation. His right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the Amendment. * * * Evidently the legislature has attempted materially to interfere with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own."

At the same time that court disposed of similar statutes of the States of Iowa and Ohio (Bartels v. State of Iowa, Bohning v. State of Ohio, Pohl v. State of Ohio, 262 U.S. 404 [43 Sup. Ct. 628]). That the right to teach in private schools is a liberty secured by this amendment and that that was the sole question before the court is emphasized by the opinion of Mr. Justice Holmes in his dissent. He said:

"The only question is whether the means adopted deprive teachers of the liberty secured to them by the 14th Amendment."

This interpretation of the Federal Constitution is binding on this court and confirms me in the opinion above referred to. That Meyer v. State of Nebraska, supra, is also the view of the court, three judges sitting, in the recent case of the Societyof the Sisters of the Holy Names of Jesus and Mary v. Pierce, 296 Fed. 928 (decided March 31, 1924), is shown by a typewritten copy of the opinion before us, in which case the validity of a similar provision enacted in the State of Oregon was before the court.

I desire to call attention to three cases dealing with the right of defendant to raise the constitutional question in proceeding for mandamus. The recent case of State, ex rel.Davies, v. White, 36 Nev. 334 (136 P. 110,50 L.R.A. [N. S.] 195), was an application to compel the submission of an initiated ordinance to the electorate. Defendants based their refusal on the ground that the ordinance would be invalid if enacted. Disposing of the objection that such defense could not be made, it was said by the court:

"The proposition that a writ of mandate will not issue to compel respondents to submit to the electors of the city a proposed ordinance that would be void, even if approved by a majority of the electors, is too clear for discussion or the citation of authorities."

In State, ex rel. Wiles, v. Williams, 232 Mo. 56 (133 S.W. 1,34 L.R.A. [N. S.] 1060), it was held that the constitutionality of a statute might be raised by an officer in mandamus proceedings where such officer was acting on the advice of the attorney general, and in State, ex rel.University of Utah, v. Candland, 36 Utah, 406 (104 P. 285,24 L.R.A. [N. S.] 1260, 140 Am. St. Rep. 834), that court while recognizing that a subordinate ministerial officer could not interpose such defense in a mandamus proceeding, a superior officer directly responsible to the people for the conduct of his office, in that case the members of the board of land commissioners, could do so. Without going further into this particular question, I think the writ should be denied for the reasons stated in my former opinion.

But there are other questions presented which should be decided. This necessitates a further statement. On August 29, 1923, plaintiff deposited with defendant a petition in form theretofore approved containing 56,282 signatures which were canvassed and those bearing 54,362 signatures were found to conform to the constitutional requirement. The number of signatures necessary to authorize the submission of the amendment was 58,367. On September 7th and October 31st other petitions aggregating upwards of 10,000 signatures in the same form were filed. In the meantime Act No. 204, Pub. Acts 1923, had taken effect. Plaintiff is a member of and acting for a committee coming within the purview of that act. Neither he nor the committee complied with its provisions and the petitions tendered did not comply with section 3 thereof. Acting upon the advice of the attorney general defendant declined to canvass these petitions tendered after the act took effect.

It is here insisted by plaintiff's counsel that Act No. 204, Pub. Acts 1923, is void in its entirety because section 2 of article 17 of the Constitution (the provision for the initiative) is self-executing and that any legislation on the subject is a nullity. It is further insisted that the act is invalid because in conflict with section 21 of article 5 of the Constitution in that section 3 thereof is not within the title, and that the act or at least this section is void. These questions will be considered in the order stated.

We have no difficulty in agreeing with plaintiff's counsel that the provision of the Constitution providing for its amendment through the initiative is self-executing. Legislation is not imperatively necessary to give it effect. It can not be said that it is a direction to the legislature. The tendency of modern decision is towards holding constitutional provisions self-executing. The rule and the reason for the rule is well stated by the supreme court of California inWinchester v. Howard, 136 Cal. 432 (64 P. 692, 69 P. 77,89 Am. St. Rep. 153). It was there said:

"As to the question whether the provision is self-executing, it is well to note, at the outset, that the presumption is not precisely as it would have been had such a matter been presented for consideration fifty years ago. When the Federal Constitution and first State constitutions were formed, the idea of a constitution was, that it merely outlined a government, provided for certain departments and some officers and defined their functions, secured some absolute and inalienable rights to the citizens, but left all matters of administration and policy to the departments which it created. The law-making power was vested wholly in the legislature. Save as to the assurances of individual rights against the government, the direct operation of the constitution was upon the government only. And such assurances were themselves in part but limitations upon governmental powers.

"Latterly, however, all this has been changed. Through distrust of the legislatures and the natural love of power, the people have inserted in their constitutions many provisions of a statutory character. These are in fact but laws, made directly by the people instead of by the legislature, and they are to be construed and enforced, in all respects, as though they were statutes. * * *

"Under former conditions it was natural that the court should presume that a constitutional provision was addressed to some officer or department of the government, or that it limited the power of the legislature, or empowered, and perhaps directed, certain legislation, to carry into effect a constitutional policy.

"Now the presumption is the reverse. Recently adopted State constitutions contain extensive codes of laws, intended to operate directly upon the people as statutes do. To say that these are not self-executing may be to refuse to execute the sovereign will of the people. The different policy requires a different ruling. I should say the rule now is, that such constitutional provisions must be held to be self-executing when they can be given reasonable effect without the aid of legislation, unless it clearly appears that such was not intended."

While legislation may not be necessary to effectuate the constitutional provision and none may be validly enacted that is in conflict with it, it does not follow that legislation supplemental to and in aid of the constitutional provision may not be enacted. This, I think, is settled by the text-writers and adjudicated cases. In 12 C. J. p. 729 it is said:

"Constitutional provisions are self-executing when there is a manifest intention that they should go into immediate effect, and no ancillary legislation is necessary to the enjoyment of a right given, or the enforcement of a duty imposed. That a right granted by a constitutional provision may be better or further protected by supplementary legislation does not of itself prevent the provision in question from being self-executing; nor does the self-executing character of the constitutional provision necessarily preclude legislation for the better protection of the right secured."

In 6 R.C.L. p. 58 it is said:

"Minor details, however, may be left for the legislature without impairing the self-executing nature of constitutional provisions. Thus it has been held that clauses defining the constituencies by which members of the general assembly shall be elected, and establishing the qualifications requisite for the right of suffrage, may be self-executing and self-sustaining, although there is left for legislative action the apportionment of members among the counties in a fixed ratio, and the making of regulations for holding elections, the canvassing of the votes, and the certification of the result. Similarly a constitutional provision is self-executing which provides that particular officials should be paid by salary instead of by fees, although the determination of the amount of the salary is left to the legislature."

The rule is thus stated in Cooley's Constitutional Limitations (7th Ed.), p. 121:

"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 be enforced."

But the author in considering self-executing provisions of constitutions securing homestead exemptions on page 122 has this to say:

"Perhaps even in such cases, legislation may be desirable, by way of providing convenient remedies for the protection of the right secured, or of regulating the claim of the right so that its exact limits may be known and understood; but all such legislation must be subordinate to the constitutional provision, and in furtherance of its purpose, and must not in any particular attempt to narrow or embarrass it."

This is in consonance with the early holding of this court in the case of Beecher v. Baldy, 7 Mich. 488, where this court, speaking through Mr. Justice CHRISTIANCY, said:

"We fully admit that the constitutional provision is an express prohibition against a forced sale on execution, of the homestead which it describes; and, as such prohibition, that it needs no legislation to give it effect. And if the tract out of which a homestead is claimed consist of a greater quantity, or be of greater value than allowed by the Constitution, yet if it be one which includes a constitutional homestead, and from which the right of selection is given, though further legislation might be necessary in order to enable the debtor to make a valid selection, it would be the duty of the court to protect the right, till such necessary legislation should be had; to see that the prohibition of the Constitution was not violated, and that no sale should be made under execution which would take away this constitutional right of selection. The neglect of the legislature, in such case, to perform its duty, would not authorize the courts to neglect theirs."

In the case of Willis v. Mabon, 48 Minn. 140 (50 N.W. 1110,16 L.R.A. 281, 31 Am. St. Rep. 626), the court had before it a constitutional provision creating stockholders' liability. The provision did not expressly provide a remedy and it was insisted that it was not self-executing. The court held that the provision was self-executing and that it was not necessary that it should provide a remedy. After so holding, it was said:

"Hence in the present case it was not necessary that the constitution should have expressly given a remedy by which a creditor of the corporation might enforce the liability of a stockholder. If it in fact created such a liability of the latter in favor of the former, there would not be the least trouble in framing a proper complaint in an action to enforce it. Of course, the remedy is always within the control of the legislature, and may be changed as they see fit, provided only it remains adequate. It is entirely competent for them to provide a new and statutory remedy, and make it exclusive, if they see fit."

The supreme court of Washington considered the right of the legislature to enact laws in aid of a self-executing constitutional provision in the case of Reeves v. Anderson,13 Wn. 17 (42 P. 625), and it was there said:

"Nor do we think the contention that the constitutional provision is self-executing, and that legislative interference is unauthorized can be upheld. Certainly we should hesitate before declaring a solemn act of the legislature invalid upon any such ground. The act, as we have seen, is in harmony with the spirit of the constitution, and its object is to further the exercise of a constitutional right and make such right available. * * *

"In our opinion it was competent for the legislature to supplement the constitutional provision by pointing out the manner in which the right conferred by the constitution might be exercised, and by prescribing rules for the guidance of the city council in relation thereto."

In State, ex rel. Caldwell, v. County Judge, 22 Okla. 712 (98 P. 964), the supreme court of that State said:

"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 execution 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."

And in Nowakowski v. State, 6 Okla. Crim. Rep. 123 (116 P. 351), it was said:

"It is not every self-executing provision of a constitution which exhausts legislative power upon the subject with which it deals. There are many, such where legislation in aid of or in addition to the provision is both permissible and desirable. Certainly the legislature can enact nothing in derogation of the constitutional provision; but unless such provision, in addition to being self-executing, is also a limitation upon the power of the legislature, it may enact laws in aid of and in addition to the provision and extending its terms."

In State, ex rel. Shepard, v. Superior Court, 60 Wn. 370 (111 P. 233), it was said:

"The right to vote is a constitutional right, given by the people to certain citizens and withheld from others. But the manner in which the franchise shall be exercised is purely statutory. It is not within the power of the legislature to destroy the franchise, but it may control and regulate the ballot, so long as the right is not destroyed or made so inconvenient that it is impossible to exercise it. It follows, then, that that which does not destroy or unnecessarily impair the right must be held to be within the constitutional power of the legislature."

In Stevens v. Benson, 50 Or. 269 (91 P. 577), that court had before it the question of whether the initiative and referendum provisions of the constitution of that State were self-executing and if so whether the legislature could pass supplementary legislation. It was held that the provisions were self-executing and that the legislation was valid. It was there said:

"But, when a provision of the constitution is self-executing, legislation may be desirable for the better protection of the right secured and to provide a more specific and convenient remedy for carrying out such provision, and it is plain that the statute in question was intended for that purpose, and reduces to a system and simplifies the proceeding; makes every step definite, as well as placing safeguards around it to protect it from abuse, without curtailing the right or placing any undue burdens upon its exercise."

See, also, Gherna v. State, 16 Ariz. 344 (146 P. 494, Ann. Cas. 1916D, 94); State v. Romero, 17 N.M. 81 (124 P. 649, Ann. Cas. 1914C, 1114).

In Thompson v. Secretary of State, 192 Mich. 512, where the referendum provisions of the Constitution were under consideration, this court pointed out the want of power in the secretary of State to prevent the filing of fraudulent petitions. We there held that the provisions of the Constitution were self-executing and it was there said:

"The section of the Constitution under consideration is not a mere statement of principles. On the contrary, it points out in detail the various steps to be taken in referring an act of the legislature to the electors, and undoubtedly intends that the conduct of the election and the canvass and return of votes shall be in accordance with the general laws of the State. And the legislature in its session of 1915 made certain amendments to the general election laws, with the evident purpose of adapting them more fully to the requirements of the referendum. Perhaps further action by the legislature may be advisable in aid of the constitutional provision."

Act No. 204, Pub. Acts 1923, contains some of the provisions found in corrupt practice acts which have quite uniformly been upheld as proper aids to the honest exercise of the elective franchise, a right secured by the Constitution. By section 3 verity of the petitions is required and the act in its entirety is the adoption of a public policy aiding and safeguarding the honest exercise of the rights secured by the Constitution and preventing fraudulent imposition on the secretary of State and the public generally. It was not beyond the power of the legislature to enact it.

This leaves for consideration the question of whether the act is in conflict with section 21 of article 5 of the Constitution. The title of the act is as follows:

"An act to require committees, clubs and other organizations formed for the purpose of initiating legislation or any constitutional amendment by petition, to file certain reports and to regulate the conduct of such committees, clubs or organizations."

The assault upon the act on this ground is aimed particularly at section 3, which it is insisted is beyond the scope of the title. If we construe this section to be applicable to all petitions, whether filed by committee, club or private individuals doubtless the section would fail under the authorities cited by plaintiff's counsel in their brief. But the balance of the act would still be workable and would be valid. If, on the other hand, we construe this section as limited by the title and only applicable to such petitions as are filed by committees, clubs and other organizations formed for the purpose of initiating legislation or constitutional amendments by petition, the section would be valid. The rule is too well understood to need citation of authorities that where two constructions of a statute are equally permissible, one of which would render the act valid, and the other of which would render it invalid, that construction should be adopted which would give it validity. Following this rule as we should we hold that section 3 is limited by the title and as so limited it is valid as against the objection here urged.

I think the writ should be denied.

WIEST, J., concurred with FELLOWS, J.