Hackett v. Ferndale City Clerk

1 Mich. App. 6 (1965) 133 N.W.2d 221

HACKETT
v.
FERNDALE CITY CLERK.

Docket No. 495.

Michigan Court of Appeals.

Decided February 13, 1965. Opinion filed March 15, 1965.

Robert E. Childs, for plaintiff.

Robert J. Turner, for defendant city clerk.

Jack W. Hutson, Carl W. Forsythe and William R. Beasley, for defendant Nash.

Henry A. Schiffer, in propria persona.

Dennison & Devine and Montague R. Hunt, in propria persona, for defendant Hunt.

PER CURIAM:

Although this case was decided at a special session of the Court, held at Flint, Michigan, February 13, 1965, by oral pronouncement and formal order, GCR 1963, 821.1 requires that a written opinion be filed. Only the extreme urgency of the situation with which the Court was faced justifies decision prior to written opinion, and the fact that this case was so decided sets no precedent in this regard.^[1] The same urgency is the only justification for hearing oral arguments on an incomplete record and before compliance with court rules. The fact that it was done in this case sets no precedent. Except for the co-operation of all counsel in stipulating essential facts, decision would not have been possible.

Plaintiff and defendants Henry J. Schiffer, Earl Nash, and Montague R. Hunt appear as candidates for nomination for municipal judge on the primary ballot to be submitted to the electors of the city of Ferndale, Oakland county, Michigan, on February 15, 1965. Plaintiff filed proceedings in Oakland county circuit court contesting the right of these defendants to be on the ballot for the following reasons:

1. The nominating petitions of defendants Schiffer and Hunt do not contain the word "nonpartisan" and the warning to signers thereof not to sign more petitions than there are candidates to be elected as required by PA 1954, No 116, § 544a, as added by PA 1960, No 23 (CLS 1961, § 168.544a [Stat Ann 1963 Cum Supp § 6.1544(1)]).

2. Defendant Hunt had not filed the affidavit required by PA 1954, No 116, § 544b, as added by PA 1963 (2d Ex Sess), No 57 (CL 1948, § 168.544b [Stat Ann 1965 Cum Supp § 6.1544(2)]).

3. Defendant Nash was over 70 years of age and was disqualified by Const 1963, art 6, § 19.

Following a hearing February 8, 1965, and on the same day, Judge Stanton G. Dondero decided all questions against plaintiff. The plaintiff filed claim of appeal February 9, 1965, together with an application for ex parte emergency relief in the form of an injunction restraining defendant City Clerk Lawrence Kress from submitting the names of defendants Schiffer, Nash, and Hunt to the electors at the election of February 15, 1965. The emergency application was considered by this Court at a conference February 11, 1965, and, without hearing defendants, orders were entered granting the emergency relief sought as to defendants Nash and Hunt and requiring defendant Schiffer to show cause on February 26, 1965, why the relief prayed for against him should not be granted. The Court was in error in acting without affording defendants an opportunity to be heard. The special session of February 13, 1965, was an attempt to correct this error.

At the hearing February 13, 1965, counsel for plaintiff stipulated that the affidavit filed by defendant Hunt on February 12, 1965, placed him in substantial compliance with Act No 57, supra, and removed this disqualification. Further discussion of this point is unnecessary.

At the same hearing, all counsel agreed that Ferndale is a home-rule city; that its charter prescribes the form of nominating petitions for city office; and that the nominating petitions filed by defendants Schiffer and Hunt complied with the charter provisions. In view of CLS 1961, § 168.321 (Stat Ann 1956 Rev § 6.1321), and PA 1909, No 279, § 3, as amended (CLS 1961, § 117.3 [Stat Ann 1963 Cum Supp § 5.2073]) (mandatory charter provisions of home-rule cities regarding nomination and election), it is the opinion of this Court that Act No 23, supra, does not apply to the petitions here involved and that they are adequate and proper to qualify defendants Schiffer and Hunt for the ballot.

Const 1963, art 6, § 19, reads as follows:

"19. The Supreme Court, the Court of Appeals, the circuit court, the probate court and other courts designated as such by the legislature shall be courts of record and each shall have a common seal. Justices and judges of courts of record must be persons who are licensed to practice law in this State. No person shall be elected or appointed to a judicial office after reaching the age of 70 years."

Defendant Nash admits he is over 70 but contends the age limitation of section 19 does not apply to him because the judicial office he seeks is not in a court of record. The identical argument was advanced in Ball v. Trenton City Clerk, 1 Mich App 1, heard by Division 1 of this Court at the January, 1965, session. It was rejected there as we reject it here. The language is clear and unambiguous and except for the fact that the rest of section 19 deals with courts of record and justices and judges thereof, it would not need construction. That the framers of the Constitution intended the age limitation to apply to all judicial positions is clear from the very language of section 19. When dealing with courts of record, the terms justices and judges are used. When specifying the age limitation, the term judicial office is used. Even more persuasive are the terms elected or appointed. If the limitation applied only to courts of record, appointed is surplusage. There are no appointments to courts of record, Const 1963, art 6, § 23. The age qualification applies to all judicial positions and defendant Nash is not qualified for the office he seeks.

The record before us indicates that Judge Dondero was advised of the decision of the First Division in Ball, supra, during argument. Apparently he did not feel bound by that decision. While it is not necessary to decision here, it is the opinion of this Court that a decision of any division of this Court is controlling statewide until a contrary decision is reached by another division on the identical question or until such decision is reversed by the Supreme Court.

Defendant Nash's contention that Const 1963, art 6, § 19 is not self-executing and requires legislative action to become effective, if it has any merit, is disposed of by Act No 57, supra.

The judgment of the trial court is reversed with respect to defendant Nash; otherwise it is affirmed. A public question is involved and no costs are allowed.

QUINN, P.J., and T.G. KAVANAGH and McGREGOR, JJ., concurred.

NOTES

[1] See Keyes v. Secretary of State, 360 Mich 610.