Naudzius v. Lahr

I concur with my Brother, Justice FEAD, in holding that the act in question is constitutional and should be sustained, but I cannot concur in his conclusion that it was competent for the legislature to give it immediate effect.

In section 21, art. 5, of the Michigan Constitution, it is provided:

"No act shall take effect or be in force until the expiration of ninety days from the end of the session at which the same is passed, except that the legislature may give immediate effect to acts making appropriations and acts immediately necessary for the preservation of the public peace, health or safety, by a two-thirds vote of the members elected to each house."

When this provision was considered by the constitutional convention of 1907 and 1908, the following explanation of its purpose was made by Mr. Holmes, speaking for his committee:

"Mr. Holmes: * * * This section has been somewhat changed from the original, with a view of preventing so many measures going through the legislature and being given immediate effect. The committee has provided in this section that only in cases of absolute emergency shall any bill be given immediate effect, and then only by a two-thirds vote of each house." 1 Constitutional Debates, pp. 194, 195.

By adopting this provision, the people intended to stop the practice of giving immediate effect to acts by merely a two-thirds vote which was permitted under the earlier Constitution; and to restrict the authority of the legislature solely to acts "making appropriations and acts immediately necessary for the preservation of the public peace, health or safety."

It is the duty of this court to see to it that this plain mandate of the people is obeyed by the legislature.Attorney General v. Lindsay, 178 Mich. 524.

It will be noted from the language used in the constitutional provision that, to justify the giving of immediate effect to an act, it is not sufficient that it be necessary to preserve the public peace, health, or safety, but it must be "immediately necessary," and, as explained by those who framed it, "immediately necessary" was intended to mean the existence of an "absolute emergency."

There must have been an impending, immediate danger to the public peace, health, or safety which the legislature intended to avert by giving immediate effect to this statute. I do not understand my Brother to claim that giving it immediate effect was necessary to preserve the public peace or health, but he does claim that an absolute emergency existed as to public safety which made it necessary for the legislature to take immediate action; that, if the statute had been allowed to take the usual course and become effective 90 days from the close of the legislative session, something would have happened to injure the public safety. The act was passed in 1929 and up to that time we had managed to get along very well as the law then was without serious injury to the public safety. Some may have thought that the law was unfair to the owners and operators of automobiles in holding them liable to guest passengers, but no one seems to have had the remotest idea that it was destructive of the public safety until the legislature so declared. In his effort to sustain the legislature, my Brother indulges in various fanciful speculations as to what may have been in the legislative mind, but fails to point out any constitutional reason for its action. It may be true that they saw an Indian behind every tree ready to tomahawk the public, but that would not be sufficient reason for giving this act immediate effect, because it bears no relation to the public safety. Its purpose was not to avert a threatened danger to the public. Its purpose, as shown by the act itself, was to relieve automobile owners and operators from liability for ordinary negligence while transporting guest passengers. If the purpose had been to increase their liability, and thereby afford greater protection to the people, it might be said that the act bears some relation to public safety. But in view of its plain purpose and intended effect, it is ridiculous to contend that it does. It has no more to do with public safety than has the rule in Shelley's case. But going beyond the constitutional requirements, my Brother considers the act as a safety measure from the standpoint of public morals. In concluding his argument, he says:

"An act which tends to discourage collusion and fraud in litigation is obviously pertinent to public safety and we cannot say, beyond doubt, that it was not immediately necessary to that end."

His reference to collusion and fraud, upon which his conclusion rests, seems to be based upon the following statement, which shows a misunderstanding of the facts:

"Since the rule of liability was announced in Roy v. Kirn,208 Mich. 571, there has been considerable litigation between guests and hosts. * * * It is conceivable that such actions are not always unattended by collusion, perjury, and consequent fraud upon the court."

In the first place, the statement that "there has been considerable litigation between guests and hosts" since the case of Roy v. Kirn, supra, is not borne out by the records of this court. Roy v. Kirn was decided 12 years ago, and from that time to the present my Brother is able to cite but four cases involving litigation by guest passengers. Four cases in 12 years, even though attended by collusion, fraud, and perjury, are hardly sufficient to create an "absolute emergency" involving the public safety. Further, what right has this court to assume that actions by guest passengers are attended by collusion, fraud, and perjury. There is no justification for any such assumption appearing in or outside of the record. But there is no need to speculate on public morals. In determining the right of the legislature to give immediate effect to this act, we need not go beyond a consideration of the act itself, which is expressive of the legislative intent and purpose. Its purpose was not to avert a danger immediately threatening public safety. There existed no constitutional reason for giving it immediate effect.

Retaining, as I do, the most profound respect for the judgment of my learned associate, I am compelled, nevertheless, in this case to dissent, sincere in the belief that, if his opinion on the constitutionality of the immediate effect clause of the statute were adopted, it would establish a harmful precedent in that it would eliminate for all useful purposes the constitutional restriction placed on the legislature's authority to give immediate effect to its acts and would permit it to ride at will over the plain mandate of the people as expressed in their Constitution.

The act itself is valid, and as it is now in effect by reason of the expiration of 90 days from the close of the legislative session, the immediate effect provision is only important for its bearing on the rights of the plaintiff in the instant case. The circuit judge was wrong in holding the act invalid. He was right in holding that the legislature was without authority to give it immediate effect. As he reached the right result in denying the motion to quash, the judgment should be affirmed, and the case remanded for trial.