Hamilton v. Secretary of State

Sharpe, J.*

I concur in the opinion of the Chief Justice, holding that the constitutionality of the proposed amendment is not before us for decision. While the conclusion reached by him is tersely stated, the time permitted • in its preparation prevented any lengthy discussion of the question presented. Its importance prompts me to express at greater length my views on the subject.

The provision as to amendments to the Constitution (Art. 17) by the initiative and referendum reads as follows:

“Sec. 2. Amendments may also be proposed to this Constitution by petition of the qualified voters of this State. Every such petition shall include the full text of the amendment so proposed, and be signed by not less than ten per cent, of the legal voters of the State. Initiative petitions proposing an amendment to this Constitution shall be filed with the secretary of State at least four months before the election at which-such proposed amendment is to be voted upon. 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 *36next regular election at which any State officer is to be elected. Any constitutional amendment initiated by the people as herein provided shall take effect and become a part of the Constitution if the same shall be approved by a majority of the electors voting thereon and not otherwise. Every amendment shall take effect thirty days after the election at which it is approved. The total number, of votes cast for governor at the regular election last preceding the filing of any petition proposing an amendment to the Constitution, shall be the basis upon which the number of legal voters necessary to sign such a petition shall be computed. The secretary of State shall submit all proposed amendments to the Constitution initiated by the people for adoption or refection in compliance herewith. The petition shall consist of sheets in such form and having printed or written at the top thereof "such heading as shall be designated or prescribed by the secretary of State. Such petition shall be signed by qualified voters in person only with the residence address of such persons and the date of signing the same. To each of such petitions, which may consist of one or more sheets, shall be attached the affidavit of the elector circulating the same, stating that each signature thereto is the genuine signature of the person signing the same, and that to the best knowledge and belief of the affiant each person signing the petition was at the time of signing a qualified elector. Such petition so verified shall be prima facie evidence that the signatures thereon are genuine, and that the persons signing the same are qualified electors. The text of all amendments to be submitted shall be published aa constitutional amendments are now required to be published.”

The only ground suggested for denying the writ is the unconstitutionality of the proposed amendments ’To that end this court is asked to determine an issue ■upon an abstract legal question not based upon or arising out of any existing law or fact — in effect to halt proposed legislation pending its adoption and to exercise its exceptional power of judicial veto against an amendment of our Constitution which has not been *37adopted and never may be. In Richardson v. McChesney, 218 U. S. 487 (31 Sup. Ct. 43), it is said:

“The duty of the court is limited to the decision of actual pending controversies and it should not pronounce judgment upon abstract questions, however such opinion might influence future action in like circumstances.”

Many other utterances to the same effect by courts of last resort, both State and Federal, will be found marshaled in the prevailing opinion in Anmay v. Railway Co., 211 Mich. 592, handed down September 30, 1920, in which this court held that the legislature had no power or authority under our Constitution to require courts to hear controversies and render advisory judgments or decrees declaratory of the rights of parties, unless the court in such a proceeding may enforce such judgment or decree by mandatory process or execution.

The rule stated in the McChesney Case is particularly applicable to the proposition here presented. The power of judicial veto is based upon no constitutional provision directly conferring it, but arises only from the impelling logic of our system of government providing for a distinctively judicial department as one of its three co-ordinate branches, created for the exclusive exercise of judicial functions. The authorized powers and duties of its courts are to hear and determine legal controversies as presented, and in that connection to construe, interpret and administer the law. When in the exercise of its judicial functions and required to decide a controversy in conformity with existing law, the court, as sometimes occurs, may find itself confronted with the necessity of choosing between two applicable but conflicting laws, one a constitutional provision adopted by the people, in whom rests the sovereign power, and the other an enactment of the legislative body which owes its existence to the *38Constitution, one must be set aside. Such a situation necessitates, and authorizes, the court to reject the secondary law emanating from the legislature if in conflict with limitations imposed by the Constitution adopted by the people. No such condition or necessity confronts the court in this proceeding. To exercise the power of judicial veto against the constitutionality of an amendment before its adoption or a law before its enactment finds no justification in necessity, ánd is an unwarranted assumption by the courts of the power reserved to the people in the Constitution or conferred by it on the legislature.

The duty of the secretary of State is plainly prescribed. He “shall submit all proposed amendments * * * initiated by the people for adoption or rejection in compliance herewith.” Upon the filing of the petition, the duty devolves on him to ascertain whether it' complies with the constitutional requirements. He must canvass the same and determine whether it has been signed by the requisite number of qualified voters and also whether it is in the form prescribed and is properly verified. There is no provision that he shall determine whether the amendment contravenes any provision of the Federal Constitution, nor is he required or directed to submit such question to the attorney general for decision. The duty imposed is purely a ministerial one and his performance of it is made mandatory by the express language of the provision which is italicized.

Should he determine that the requirements for submission as contained in this section have not been complied with, he may refuse to submit it. If it is claimed that he is in error in the determination thus reached, his action may be reviewed in this court.

The cases relied on by counsel for the defendant: Scott v. Secretary of State, 202 Mich. 629; Hamilton v. Secretary of State, 204 Mich. 439; and Hamilton v. *39Secretary of State, 206 Mich. 371, illustrate the questions which can be thus raised. In the Scott Case, the question presented was whether the proposed amendment was sufficient in form, it being the claim of the defendant that the full text of the proposed amendment was not contained in the petition. This court held that such infirmity existed, that it did not comply with the constitutional requirement that “Every such petition shall include the full text of the amendment so proposed.” The question of the validity of the proposed amendment was not discussed or passed upon by the court. The ministerial duty of the secretary of State in relation to such petitions and the limits of the court’s jurisdiction in the premises are stated in. a carefully considered opinion by Chief Justice Ostrander as follows:

“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.”

He then quotes that part of section 2 which prescribes the duty of the secretary of State when the petition is received by him, and adds:

"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 *40rules 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.”

In the first Hamilton Case the secretary of State had refused to submit the proposed amendment for the reason that his canvass determined that a sufficient number of names of qualified voters was not signed to the petition. The real question presented was whether the names of the signers who were women should be counted. This depended upon when the suffrage amendment became effective, on November 5, 1918, or thirty days thereafter. While the determination of this question was a matter of law, its decision in no way affected the validity of the legislation proposed but was necessary to ascertain a fact, to-wit, whether the necessary number of names of qualified voters was signed to the petition.

In the second Hamilton Case it appeared that after the decision in the first case additional petitions were filed with the secretary of State. These he refused to consider, and in this he was sustained by this court, it holding that the petition could not afterwards be supplemented, that it had “performed its office and as a petition, in view of the law, is dead.”

*41In none of these cases do we find even a suggestion that in the performance of the ministerial duty imposed on him by the Constitution the defendant may decide a constitutional question. In determining whether the petition is sufficient in form and in ascertaining whether the names of a sufficient number of voters are signed thereto, he may be required to interpret the language of the constitutional provision, but it is a novel proposition in the science of jurisprudence to say that he may pass upon the constitutionality of the amendment proposed.

The views herein expressed find support in the following cases: State, ex rel. Bullard, v. Osborn, 10 Ariz. 247 (143 Pac. 117); Pfeifer v. Graves, 88 Ohio St. 473 (104 N. E. 529); State, ex rel. Griffiths, v. Superior Court, 92 Wash. 44 (159 Pac. 101, 162 Pac. 360); Capito v. Topping, 65 W. Va. 587 (64 S. E. 845, 22 L. R. A. [N. S.] 1089); Treadgill v. Cross, 26 Okla. 403 (109 Pac. 558, 138 Am. St. Rep. 964). In the last of these it is said:

“The people of the State in the exercise of their legislative power to amend the Constitution have not yet expressed their opinion of the proposed amendment. They will do that at the election to be held thereon. If in the exercise of their legislative discretion they conclude that the proposed amendment violates any valid compact with the Federal government or any provision of the Federal Constitution, they will no doubt in the observance of the duties of good citizenship, for that reason alone, reject the measure. If, on the other hand, they determine it to be a valid measure and adopt it, then, and not until then, will the judicial and executive departments have the power and duty devolving upon them to determine its validity and enforce its provisions.”

Counsel further claim that the jurisdictional question herein involved is controlled by the case of Decher v. Secretary of State, 209 Mich. 565. It is perhaps a sufficient answer to say that the jurisdiction of the *42court to hear and determine was not questioned, considered or passed upon in that case. But, assuming it to have been the duty of the court to raise it, we are of the opinion that it is in no way controlling. In that case this court held that the right of review reserved by the referendum in our Constitution did not apply to the action of the legislature in ratifying the 18th Amendment to the Federal Constitution, first, because such action on the part of the legislature fully satisfied the requirement of the Constitution and was final, and, second, because the adoption of the resolution of ratification was not ah “act” of the legislature within the scope of the referendum provision of our State Constitution. The validity of proposed legislation was in no way involved.

It is urged on behalf of the defendant that the granting of the writ of mandamus is discretionary and that in the exercise of its discretion this court, if of the opinion that the proposed legislation is unconstitutional, should not require its submission to the electors. It might well be said in answer that the jurisdiction of the court should be determined before considering the question presented. But this court has said in no uncertain- terms that it has no discretion when called upon to compel a public officer to perform a duty imposed on him by law.

“A mandamus in a case where the duty of a public officer is absolute and specific * * * is no more matter of discretion than any other remedy.” Auditor General v. County Treasurer, 73 Mich. 28, 32.

This court has no express or implied power by judicial veto to nullify in futuro a prospective law foreshadowed by a properly introduced bill before the legislature, nor, by analogy, a proposed amendment of the Constitution properly presented by petition for the electors to pass upon. In our opinion it is neither,, the duty nor the right of this court in this proceeding *43to pass upon the constitutionality of this amendment which has not been, is not now, and never may become a part of our Constitution.

Moore, C. J., and Steere, Stone, and Bird, JJ., concurred with Sharpe, J.

Filed October 15, 1920.