I concur in the opinion of Mr. Justice BUSHNELL, holding the immediate effect clause of Act No. 3, Pub. Acts 1939, unconstitutional.
In framing article 5, § 21 of the Constitution of 1908, and in its adoption by the people, it is clear that both the framers thereof and the people adopting it intended to put a stop to the practice of giving immediate effect to acts by a mere two-thirds vote, which was permitted under the Constitution of 1850, and to restrict the authority of the legislature in giving immediate effect to statutes to "acts making appropriations and acts immediately necessary for the preservation of the public peace, health or safety." We find that when this provision was before the last constitutional convention for consideration, the following explanation of its purpose was made a matter of record by Mr. Holmes, a member *Page 550 of that convention, who, in speaking for his committee, said:
"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 absoluteemergency shall any bill be given immediate effect and then only by a two-thirds vote of each house." 1 Debates, Constitutional Convention (1908), p. 195.
The case of Attorney General, ex rel. Barbour, v. Lindsay,178 Mich. 524, is cited and quoted from quite extensively in the opinion of Justice POTTER. This was apparently the first pronouncement by this court on the question here involved after the adoption of the Constitution of 1908, and in all of the opinions written since that time, where a similar question has been involved, this court has relied upon and quoted with approval from that case until the opinion in the instant one, written by Justice POTTER, which seems more in accord with the dissenting opinion of Justice OSTRANDER in the Lindsay Case. Justice OSTRANDER, with the concurrence of Justice BIRD, said in his dissent:
"Whether an act of the legislature is one immediately necessary for the preservation of the public peace, health, or safety is a question to be finally determined by the legislature. Three-fifths* of the members of each house having given the opinion that the act in question is one immediately necessary for the preservation of the public peace, health, or safety, no court may review or set aside such determination. This conclusion is based upon the language employed in the Constitution as well as upon the fact that whether an act is immediately *Page 551 necessary for the preservation of the public peace, health, or safety is a proposition involving, in each case in which it is presented, a question of public policy."
The prevailing opinion in the Lindsay Case holds that the question as to whether the legislature has acted within or without the bounds of its constitutional powers is one forjudicial determination. In such a case, the courts are bound to exercise their constitutional functions, primary among which is the duty to determine whether the legislative action in question is or is not constitutional.
The cases of Newberry v. Starr, 247 Mich. 404 and Naudzius v.Lahr, 253 Mich. 216 (74 A.L.R. 1189, 30 N.C.C.A. 179), as well as others decided in this jurisdiction, are in accord with the majority opinion written in Attorney General, ex rel.Barbour, v. Lindsay, supra.
We appreciate the fact that the courts in many other jurisdictions are in accord with the dissenting opinion of Justice OSTRANDER above referred to, and the opinion of Justice POTTER is replete with citations and quotations from these jurisdictions, notwithstanding the fact that this court has established the rule that the question as to whether the legislature has acted within or without the bounds of its constitutional powers is one for judicial determination. We are giving no consideration to the determination of this question in other jurisdictions. We prefer to stand by the rule laid down by Justice WIEST in the case of Motor Bankers Corporation v. C. I. T. Corporation, 258 Mich. 301, in which he bound this court by the following language:
"We have examined but need not review cases from other jurisdictions for we have established our *Page 552 own rule with reference to instruments in the nature of a chattel mortgage."
Applying the foregoing to the instant case, we say, "We have examined but need not review cases from other jurisdictions for we have established our own rule with reference to the question as to whether the legislature has acted within or without the bounds of its constitutional powers, and have held that it is one for judicial, not legislative, determination." Where it appears by the act itself that the question of the preservation of the public health, peace or safety has some real or substantial relation to the act in question, it is the duty of the court to find that the immediate effect clause attached to said act is constitutional, but where it is not made to appear by the act itself that the immediate effect clause is necessary for the preservation of public peace, health or safety, then it is the duty of the court so to determine judicially.
"The mere fact that the legislature labels the giving of a premium with the sale of gasoline a 'destructive trade practice,' does not make it such nor render the practice subject to prohibition. While there is a presumption that an act of the legislature is valid, nevertheless, the courts have the power to determine whether, as a matter of fact, the prohibition bears a reasonable relationship to the public health, safety, morals and general welfare." People v. Victor,287 Mich. 506.
The reasons assigned by Justice POTTER as to what the legislature might have had in mind in giving the act immediate effect for the purpose of preserving public peace, health or safety seem to us to be highly speculative. The real reason for the legislature giving the statute immediate effect is clearly apparent from a reading of that part of section 4 quoted by Justice BUSHNELL. This language *Page 553 shows beyond peradventure the real reason for the immediate effect clause, namely, to remove instanter the present public utilities commissioners from their positions. A legal method is provided for the removal of such officers for misfeasance, malfeasance or misconduct in public office, and this court should not countenance an illegal method to accomplish this object. To hold otherwise would be giving judicial sanction to the removal of officials from public office by the legislative branch of the government in a manner which wholly disregards the provisions of article 5, § 21 and article 9, § 7 of the Constitution, as well as article 5, § 1 thereof, which provides for referendum upon proper petition of the electors.
That the legislature has in the past, and that they will in the future, ignore the constitutional provision and fail to restrict the operation of the immediate effect clause to emergency legislation is shown by the record of the 1937 legislature which passed 354 statutes and gave immediate effect to 224 of them. We do not think any other legislature will show any material difference in the proportion of laws given immediate effect. A perusal of these acts which were given immediate effect because the legislature deemed them necessary for the preservation of public health, peace or safety shows the absurdity of leaving this a question solely for legislative and not judicial determination.
In commenting upon Home Building Loan Ass'n v. Blaisdell,290 U.S. 398 (54 Sup. Ct. 231, 88 A.L.R. 1481), Justice FEAD in Virginian Joint Stock Land Bank of Charleston v. Hudson,266 Mich. 644, said:
"Contrary to much lay opinion, the Blaisdell decision does not purport to set aside the Constitution and to validate all sorts of legislation because it is given an emergency label. On the contrary, the *Page 554 decision itself is meticulously circumscribed and the final and effective pronouncement is more restricted than some of the argument would seem to permit.
"The outstanding propositions elucidated in the case are that both the statute and its administration by the court must be reasonable in order that there be no conflict with the Constitution; that both the existence and continuance of the emergency are judicial questions; that the relief permitted and afforded must be appropriate to the emergency; and that compensation to the mortgagee or purchaser for withholding possession is an essential to valid relief. * * *
"In applying the moratorium statute the court has no greater right or authority, by construction or administration, to extend the relief beyond constitutional limits than has the legislature by enactment of the law."
We cannot conceive how it can be seriously contended that the appropriation provision contained in the statute makes the same an appropriation act within the meaning of article 5, § 21 of the Constitution.
Section 7 of the statute allocates the sum of $10,000 for the "creation, organization and operation of said public service commission from the effective date of this act to June 30, 1939." The allocation thus made is for a specific purpose, to be used during a certain specified period of time, commencing upon the date the statute becomes effective and terminating June 30, 1939. The provision becomes operative only and not until the act becomes effective, and cannot be used as a means of causing that event to occur.
SHARPE, and McALLISTER, JJ., concurred with CHANDLER, J.
* See footnote, ante, 526. — REPORTER.