Attorney General ex rel. Dingeman v. Lacy

Brooke, J.

(after stating the fact). Considering the history of legislation under the Constitution of 1850, it is apparent that there had grown up a pernicious practice on the part of the legislature in passing local acts. The practice was bad in two very important particulars. In the first place, much of the legislation thus enacted constituted a direct and unwarranted interference in purely local affairs and an invasion of the principles of local self-government. In the second place, such legislation affecting as it did certain limited localities in the State, the senators and representatives from unaffected districts were usually complaisant, and agreed to its enactment without the exercise of that intelligence and judgment which all legislation is entitled to receive from all the members of the legislature. This course led to many abuses (principally in amendments to city charters), some of which found their way into the courts, and were there redressed so far as the Constitution then in force would permit.

With these evils in mind, the Constitution of 1909 was formulated and adopted by the people. From a reading of the provisions above quoted and others of a similar character, it is, we think, entirely clear that it was the settled purpose of the framers of the new instrument and of the people who adopted it to forever insure to the people the right to control their affairs purely local, and to secure for all general legislation grave attention and the application of the collective wisdom of the legislators.

Assuming that we are correct in this premise, it is pertinent to inquire whether the object has been achieved. Based upon a classification by population, we find that the legislature of 1909 passed two acts purely local in application. In 1911 five such acts were passed, and in 1913 there were thirteen. Some of these may be justified under the new Constitution; but, regarding them as a whole, it is evident that, if classification by population is broadly sustained, local legislation may now be as freely enacted as before the adoption of the new Constitution, thus evading and avoiding the salutary check which that instrument sought to impose.

We take it to be conceded by counsel for respondent that the court of domestic relations is a new or “other” court within the meaning of article 7, § 1, of the Constitution, and that to be valid it must be established by “general law.”

We note, but disagree with the contention of one of respondent’s counsel (Mr. Gates), that there is nothing in section 1, art. 7, which, either expressly or by implication, prohibits the legislature from establishing “other courts of civil and criminal jurisdiction inferior to the Supreme Court by a local law.” The section in question authorizes the establishment of such courts by general law. If the contention is sound, the use of the word “general” was wholly superfluous. The language' is unambiguous, and by necessary implication prevents the establishment of such courts by local laws.

It is, however, contended that the act in question is valid as a general law. The act is limited in its operation by its title to “each county of this State which has a population of upwards of two hundred fifty thousand.” It is conceded that Wayne county is the only county having the requisite population. It is said that, if the normal increase in Kent county continues, that county will come under the operation of the act between 20 and 30 years hence. It is certain .that the law can never become operative in a vast majority of the counties of the'State. Personally, I am of the opinion that under the new Constitution all general legislation based upon classification of population, except such as is therein specifically authorized, is forbidden. Some of my associates, however, do not agree with me in this view. For the purposes of this case, therefore, I will assume that some general legislation based upon such classification may be valid. Under this assumption, is the act in question a valid general law?

Dillon, in his work on Municipal Corporations, vol. 1, § 151, says:

“But classification by population cannot be made arbitrarily and without reason. There must be some reason, in the nature of things, for the distinctions adopted. The size of the municipality as evidenced by its population must have a reasonable relation to the subject-matter of the legislation, and must furnish some fairly apparent reason for legislation differing from that applicable to other municipalities having a substantial difference in population.”

The cases where such classification has been sustained are collected in note 5 to the section. There are many cases where classification by population has been held invalid, among them the following: People v. Election Commissioners, 221 Ill. 9 (77 N. E. 321, 5 Am. & Eng. Ann. Cas. 562) ; State v. City of Des Moines, 96 Iowa, 521 (65 N, W. 818, 31 L. R. A. 186, 59 Am. St. Rep. 381); State v. Downs, 60 Kan. 788 (57 Pac. 962) ; St. Louis v. Dorr, 145 Mo. 466 (41 S. W. 1094, 46 S. W. 976, 42 L. R. A. 686, 68 Am. St. Rep. 575); Wanser v. Hoos, 60 N. J. Law, 482 (38 Atl. 449, 64 Am. St. Rep. 600) ; Bauer v. Williams, 118 Cal. 401 (50 Pac. 691).

In the Henneberger Case, 155 N. Y. 420 (50 N. E. 61, 42 L. R. A. 132), the court said:

“Although this act is drawn in general terms, if its provisions are such in number and character as unduly, with reference to the constitutional purpose, to restrict its operation, and, to all intents, to confine it to a particular locality, then, I think it comes as much under condemnation as though it designated the locality by name. While an act might be general, if it affected all towns of a class and that class was based on population, or some other condition, which might be recognized as possibly common to a class, or which might permit of classification, if it contain such added limitations as to restrict its operation to what must always be, in the nature of the case, a very limited number of specified localities, if not, in fact, one, then it is local within the constitutional sense.”

Later, in the case of People v. Dunn, 157 N. Y. 528 (52 N. E. 572, 43 L. R. A. 247), the same court sustained the statute authorizing a special jury in certain cases in each county of the State having a population of 500,000 or more. After distinguishing the case from the Henneberger Case, supra, the court said:

“There is nothing in this act to limit its general application in all cases where the population of the county has attained a certain size, and such a condition might reasonably be considered as possible generally.”

A consideration of all the eases cited, as well as many others, convinces us that a classification by population can never be sustained where it is, as in the case at bar, a manifest subterfuge. The act under consideration might with equal propriety have been limited in its operation by its title to the county of Wayne. Its “general” character is not established by the use of other words which mean the same thing. The clássification attempted cannot find excuse in necessity. Under the Constitution, additional circuit judges may be created as necessity requires. If changing social conditions require a broadening of their powers, that may be readily supplied through suitable legislation.

The domestic relations of the inhabitants of the counties of Wayne, Jackson, or Ogemaw are essentially the same. The same problems touching these relations are presented in every community, though with a frequency varying with the population. There is no reason, founded in logic, why the residents of Wayne county should be subjected to regulations in their domestic relations which are not applicable to residents in all other parts of the State.

The act is clearly unconstitutional, because it in terms (section 10) deprives the probate court of jurisdiction in certain cases of juvenile delinquents and dependents, which jurisdiction is expressly conferred upon the probate courts by section 13, art. 7, of the Constitution.

The act (section 4) is plainly in conflict with the last-named section, in that it deprives the circuit court of the county of Wayne, or at least the other judges thereof, of appellate jurisdiction in certain enumerated cases. This the legislature may not do. People, ex rel. Allen, v. Kent Circuit Judge, 37 Mich. 474; People, ex rel. Heath, v. Kent Circuit Judge, '37 Mich. 372. Circuit courts are constitutional courts, and the jurisdiction conferred by the Constitution cannot be diminished by legislative enactment. Nichols v. Judge of Superior Court, 130 Mich. 187 (89 N. W. 691), and cases cited.

The court of domestic relations is created by legislative enactment. A judge of that court cannot lawfully be clothed with a jurisdiction conferred by the Constitution upon a constitutional officer. State v. Hastings, 10 Wis. 525; Ex parte Corliss, 16 N. D. 470 (114 N. W. 962). See, also, People, ex rel. Allen, v. Kent Circuit Judge, supra; Allor v. Wayne County Auditors, 43 Mich. 76 (4 N. W. 492).

Inasmuch as respondent, under the authority of a legislative enactment, assumed to exercise a portion of the jurisdiction of the circuit court, which is a constitutional court, we are of opinion that such of his judicial acts as are within the jurisdiction of the circuit court should be considered as those of a de facto judge, not open to question upon jurisdictional grounds.

For the reasons assigned, we feel constrained to overrule respondent’s demurrer, and direct a judgment of ouster.

McAlvay, C. J., and Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. Ostrander, J., concurred in the result.