I concur in the result reached by Mr. Justice SHARPE and Mr. Justice POTTER; but I am not in accord with the reasoning by which that result has been obtained. The opinion of the former unduly restricts the powers of the legislative branch of our State government; and the opinion of Mr. Justice POTTER appears to me to be based upon the erroneous assumption that the qualifications requisite to serve as a circuit judge are expressed in our Constitution. I know of no such constitutional provisions in this State. *Page 671
"Where, however, the Constitution does not prescribe the qualifications (for public office), it is the province and the right of the legislature to declare upon what terms and subject to what conditions the right shall be conferred." Mechem — Public Offices and Officers (1st Ed.), § 66.
I think James E. O'Neill was qualified for the following reasons: He was admitted to the practice of law in this State August 7, 1928, and continued thereafter in the practice of law for more than eight years preceding his election. He did not file the statutory affidavit (3 Comp. Laws 1929, § 13578), With the clerk of the Supreme Court until March 10, 1932; but nonetheless he was licensed by the circuit court of Saginaw county as an attorney and counsellor and acted as such for more than eight years preceding his election as circuit judge on November 3, 1936. In so doing he was an officer of the court and might be denominated an attorney de facto. This should be held to be substantial compliance with the statute (Act No. 107, Pub. Acts 1935) which renders one ineligible to the office of circuit judge except he has been regularly licensed as an attorney and counsellor in this State for at least eight years prior to his election. The obvious purpose of this statute is the requirement of at least eight years' experience in the profession as an element of eligibility. The respondent has this qualification. In such a situation the statutory requirement of filing with the clerk of the Supreme Court should be held merely directory; and not an indispensable requisite to eligibility to the office of circuit judge. To hold otherwise is to make the statutory provision arbitrary and unreasonable because it would then make eligibility to an important public office turn upon the *Page 672 perfunctory formality of having filed or not having filed a paper in a public office, which filing in no way affects the elected officer's qualifications to discharge the duties of the office. Regardless of its construction for other purposes, as to the right involved in the instant case the provisions of 3 Comp. Laws 1929, § 13578 should be held to be directory only.
Notwithstanding it may not be said to be controlling, as being somewhat persuasive that the above construction of the statute is in accord with the legislative intent, the recent amendment to 3 Comp. Laws 1929, § 13578 may be noted. By this amendment (Act No. 43, Pub. Acts 1937; given immediate effect) it is now provided:
"Any person who has heretofore been or may hereafter be admitted to practice law in this State on motion duly made in any circuit court of the State and whose name appears on said official register, shall be considered to have been admitted to practice in all the courts of this State as of the date of such admission in the circuit court."
While it is not essential to decision herein, it may also be noted there are adjudications sustaining the proposition that courts will not deprive one of an office after his previous lack of qualification has been removed by legislative enactment, although passed subsequent to the commencement of proceedings to test his right to hold the office. AttorneyGeneral, ex rel. Jackson, v. James, 74 Mich. 733; Huff v. Cook,44 Iowa, 639; Widincamp v. Wood, 167 Ga. 57 (144 S.E. 900). In the last case the court said:
"At the time of the trial, the law having been changed, the person whose right to the office was the subject of inquiry was eligible to election, and was *Page 673 eligible to hold the office, and being so, the law will not turn him out of office merely because he, was ineligible when he was elected and received his commission." (Citing numerous cases.)
See, also, Cooley's Constitutional Limitations (8th Ed.), p. 787.
These proceedings should be dismissed, but without costs.
WIEST and BUTZEL, JJ., concurred with NORTH, J.