(dissenting). I am in respectful disagreement with the Per Curiam opinion of my colleagues. While its logic is unassailable if the premise upon which it is based is granted, that
*316premise in my view is untenable. The majority considers itself bound under the doctrine of stare decisis by Fyfe v. Kent County Clerk (1907), 149. Mich 349; and Attorney General, ex rel. Cook, v. Burhans (1942), 304 Mich 108. This I understand to result from the application of the general rule set forth in 16 CJS, Constitutional Law, § 35. I have no quarrel with that general rule. It is sound. But to me it is totally inapposite here. Note the wording: “Where a constitutional provision has received a settled judicial construction, and is afterward incorporated into a new or revised constitution, * * * it will be presumed to have been retained.” I respectfully suggest that that is exactly what did not happen at the constitutional convention which drafted the Michigan Constitution of 1963. I am hard put to understand how my Associates can find the prior constitutional provision which had received a settled judicial construction was “afterward in-’ corporated in a new *■ * * constitution” with language admittedly omitted in the Constitution of 1963. If my Brothers contend that the. foregoing language was no part of the ratio decidendi of Fyfe, and Burhans, I can only reply that I.do not see how the Court as then constituted could have disregarded it. But I do not hesitate to assert that if the Court did disregard it, then Fyfe and Burhans, supra, are bad law and ought to be overruled. Capsulized, my position is that I simply cannot read “civil appointment” to mean “elective office.” It seems to me that if the framers of the present Constitution meant to include “elective office” in the provision in question, they would have said so. The reference to the debate in the Convention, included in the majority opinion, omits what seems to me to be rather revealing language:*
*317“As to the balance of it — that no member of the legislature shall be appointed to any particular office ■ — that would be one that the governor would have, or the legislature, or the governor and the legislature.” (Emphasis supplied.)
The evil which I think the people of the State were patently seeking to avoid since 1835 was the shopping for votes in the legislature by the governor, and I am not at all sure that “votes” as used in the Constitution of 1908 did not mean “votes” necessary for confirmation of a gubernatorial appointment. Certainly the ordinary idiom used in connection with elective office is “votes cast”, not “votes given.”
I do agree that PA 1968, No 152, amending PA 1954, No 116, § 2 (CLS 1961, § 168.2, Stat Ann 1956 Bev § 6.1002), is constitutionally infirm by reason of the sentence, “The term 'election’ is not synonymous with the term 'civil appointment’ as such term appears in section 9 of art 4 of the State Constitution”, for the obvious and eminently correct reasons stated in the majority opinion.
I do not think that appellee Bichardson is proscribed from running for the elective office of circuit judge. Manifestly he is proscribed from holding both offices. Were he elected, he would of necessity have to divest himself of his office in the legislative branch before he could qualify for an office in the judicial branch of the government.
I would affirm the Court of Appeals.
2 Constitutional Convention 1961, Official Reeord, p 2415.