Scott v. Secretary of State

OSTRANDER, C. J.

(after stating the facts). Under the circumstances disclosed here, including, of course, the fact that the attorney general advised the filing of the petitions, plaintiffs show such an interest as entitles them to institute this proceeding. Ayres v. Board of State Auditors, 42 Mich. 422; Thompson v. Secretary of State, 192 Mich. 512, 522.

Of the right of qualified voters of the State to propose amendments to the Constitution by petition it may be said, generally, that it can be interfered with neither by the legislature, the courts, nor the officers charged with any duty in the premises. But the right is to be exercised in a certain way and according to certain conditions, the limitations upon its exercise, like the reservation of the right itself, being found in the Constitution. The secretary of State is charged with certain duties in this behalf.

“Upon receipt of such petition by the secretary of State he shall canvass the same to ascertain if such petition has been signed by the requisite number of qualified electors, and if the same has been so signed, the proposed amendment shall be submitted to the electors at the next regular election at which any State officer is to be elected.”

Such petition. A petition including the full text of the amendment so proposed, signed by not less than ten per cent, of the legal voters of the State. The ascertainment of these facts which are to appear before he is charged with the performance of further duties involves the exercise of no 'discretion, the performance of none but a ministerial duty. The performance of a purely ministerial duty may involve something more than doing a prescribed thing in a prescribed way. Knowledge of the correlation of facts, the exercise of reason, the application of established principles and rules may be required before performance of a duty is indicated, before the fact upon the existence of which the duty arises can be said to be established. One must appreciate the meaning and effect of what appears upon the face of a petition before he can determine whether, upon its face, it imports one thing or another. As he might be compelled by mandamus to receive a proper petition, so by mandamus he may be compelled to refuse to receive an improper petition, since it is his duty to reject, at least to refuse to take further action concerning, petitions not conforming to the constitutional mandate. The jurisdiction of the court in the premises cannot be doubted, exercised within the limits herein indicated. Rich v. Board of State Canvassers, 100 Mich. 453; Livingstone v. Wayne Election Commissioners, 174 Mich. 485; Thompson v. Secretary of State, 192 Mich. 512, 521, 522.

Does the petition here in question contain the full text of the proposed amendment? This is the single question to be answered, and is a question of fact. The proposed amendment to the Constitution which is in question here is a single thing. A single subject-matter is involved. Upon the face of the petition an amendment to the Constitution is proposed, a change of the Constitution as it now exists. It is proposed to add section 12 to article 16, to stand as a section of the Constitution. The law to which that section refers, once in force, has now no sanction. The text of the law can be found. It is proposed that it “shall be in force and effect,” proposed therefore to enact a law, to give life, legal sanction, to a set of words and phrases, referred to but not set out. And it is proposed further that the matter referred to shall be modified in meaning by language found in sections 13, 14, 15, and 16 of the proposed amendment, each of which is to stand as an amendment of the Constitution. Upon the face of the proposition, it is clear enough that it is designed to make the matter found in the act referred to a part of the Constitution and that the full text of the proposed amendment is not contained in the petition.

An argument supporting this conclusion may be differently stated. Excepting the laws of 1917, passed to make effectual the provision of section 11 of article 16 of the Constitution, there is no law affecting the subject-matter of the proposed amendment. What is the apparent scope of the proposed amendment? Plainly, to permit, what is now forbidden, the manufacture and sale of certain liquors and to regulate such manufacture and sale. Where is the text, where are the words and phrases, constituting the regulatory rules? It is plain that they are not in the proposed amendment.

The idea that the secretary of State may reject one or more of the proposed sections is, of course, based upon the further idea that he has discretion in the premises and all concerned unite in denying that he has any such power.

The argument that section 12 of the proposed amendment is merely declaratory of a rule of law, that since section 11 of article 16 of the Constitution repealed, or made inoperative, the liquor laws, the proposed amendment of that section will ipso facto revive them is essentially unsound. It is not true that in this State the repeal of a repealing statute revives the statute repealed. 1 Comp. Laws 1915, § 65. And, moreover, as a declaration, section 12 leaves repealed a large body of law upon the general subject.

I conclude that it was the duty of the secretary of State to reject the petition, and is now his duty to refuse to proceed further to perform any duty imposed on him by article 17, section 2, of the Constitution in this behalf.

The writ will issue, but no costs are awarded.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.