Payne v. Muskegon

Riley, J.

(concurring in part and dissenting in part). Although I agree that defendant’s dismissal of plaintiff was valid and join part m of the lead opinion, because I find that the substantial evidence standard of Const 1963, art 6, § 28 is applicable in the instant case, I write separately.

i

At issue in the instant case is the applicable standard of review for a writ of superintending control directed at a municipal civil service commission. The lead opinion does not examine whether art 6, § 28 of the 1963 Constitution applies because it finds that "[rjeview in the nature of certiorari meets the requirements for review of certain administrative agency decisions set forth in the Constitution of 1963 . . . .” Ante at 691. The lead opinion reasons that the common-law standard of certiorari incorporated the substantial *699evidence standard, and that reference to the constitution is unnecessary to apply that standard in the instant case. Unfortunately, the lead opinion misconstrues either the scope of the common-law writ of certiorari to incorporate a substantial evidence standard or the scope of review under the substantial evidence standard to be, in essence, the any competent evidence standard. In either case, the opinion is misguided.

"When a reviewing court issues an order of superintending control, the reviewing court is invoking an extraordinary power.” In re People v Burton, 429 Mich 133, 144; 413 NW2d 413 (1987). The writ of superintending control "supercedes the writs of certiorari, mandamus and prohibition, providing one simplified procedure for reviewing or supervising the actions of lower courts and tribunals.” Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 679; 194 NW2d 693 (1972).

This Court has long held that in cases involving a writ of certiorari the reviewing court may only consider questions of law, and may not weigh conflicting evidence "unless there was a total want of testimony to sustain” a finding necessary to the success of an action. Gaines v Betts, 2 Doug 98, 100 (Mich, 1845). Justice Campbell, with Justice Christiancy concurring, elaborated regarding the deferential nature of the writ:

It was held by this Court in Berry v.Lowe, 10 Mich 9 [1862], that the Circuit Court could not reverse the judgment of [a lower tribunal on a writ of certiorari] on the evidence, unless no proof could be found in the case which, if believed, would maintain it. If there is a conflict of testimony, and still evidence has been put in which covers the whole case, so far that, if believed, it would warrant a verdict, the court above must respect the finding, whether it is, or not, such as *700would have been made by the appellate court if it had power to weigh the evidence. [Welch v Bagg, 12 Mich 41, 45 (1863).]

In other words, "[i]f the alleged error is a total want of evidence to prove some fact necessary to sustain the judgment, the Court will look into the testimony to see whether there was such evidence or not. If there was, it will not weigh it, or inquire into its sufficiency, but affirm the judgment.” Berry, supra at 15. Even a major opinion cited by the lead opinion states that "the appellate court does so [examine the evidence] not to determine whether the probabilities preponderate one way or the other . . . .” Jackson v People, 9 Mich 111, 120 (1860). Often referred to as the "any competent evidence” standard or the "scintilla” rule, "[t]he writ of certiorari is for review of errors of law and our inquiry is limited to determining 'if the inferior tribunal, upon the record made, had jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law.’ ” Genesee Prosecutor, supra at 681, quoting In re Fredericks, 285 Mich 262, 267; 280 NW2d 464 (1938). See also Burton, supra at 144. This understanding of the writ is well established and has been unquestioned for almost a century and a half of jurisprudence.1

*702The lead opinion contends that such review meets the requirements of the art 6, § 28 substantial evidence standard. Yet, this Court, relying on the intentions of the framers and ratifiers of the provision, has defined "substantial evidence” as requiring more than the review required by the writ of certiorari:

The cross-fire of debate at the Constitutional Convention imports meaning to the "substantial evidence” standard in Michigan jurisprudence. What the drafters of the Constitution intended was a thorough judicial review of administrative decision, a review which considers the whole record — that is, both sides of the record — not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency. Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative ex*703pertise and not invade the province of exclusive administrative fact-finding by displacing an agency’s choice between two reasonably differing views. Cognizant of these concerns, the courts must walk the tightrope of duty which requires judges to provide the prescribed meaningful review. [MERC v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974).][2]

While not an examination de novo, the substantial evidence standard involves more stringent review than the scintilla rule or any evidence standard of the writ of certiorari.

Nevertheless, as the lead opinion and dissent note, this Court has on occasion referred to the standard to be applied during a writ of certiorari as a "substantial evidence” standard. See, e.g., Detroit Public Welfare Comm v Detroit Civil Service Comm, 289 Mich 101, 108; 286 NW 173 (1939); Schubert v Dearborn Civil Service Bd, 311 Mich 553, 561; 19 NW2d 96 (1945); O'Dell v Flint Civil Service Comm, 328 Mich 631, 636-637; 44 NW2d 157 (1950). These cases, however, in practice utilize the scintilla rule. In Detroit Welfare Comm, supra at 106-107, for example, the Court noted that "[c]ertiorari is an appropriate remedy to get rid of a void judgment, one which there is no evidence to sustain.”3 Similarly, Schubert explained that " '[o]n certiorari this court may not review questions of fact. It is not at liberty to determine disputed facts, nor to review the weight of the evidence.’ ” Id. at 561, quoting Carroll v Grand *704Rapids City Comm, 266 Mich 123, 125; 253 NW 240 (1934) (citations omitted).4

The lead opinion and dissent rely upon such cases to argue that the "substantial evidence” standard has been historically utilized by the writ of certiorari, but the standard, at best, was simply mislabeled "substantial.” Regardless of its labeling, the substantial evidence test formulated by art 6, §28 is not satisfied by the review entailed under the traditional writ of certiorari. Indeed, on the eve of the ratification of the constitution, this Court disclaimed any weighing of the evidence in cases involving certiorari. Bedwell v Employment Security Comm, 367 Mich 415, 421-422; 116 NW2d 920 (1962), quoting Peadon v Employment Security Comm, 355 Mich 613, 631; 96 NW2d 281 (1959).5 The substantial evidence standard envisioned by the framers and ratifiers of art 6, § 28 is more stringent than a mere cursory review for a scintilla of evidence. After all, the substantial evidence test of art 6, § 28 mandates meaningful evaluation *705of the "qualitative and quantitative” aspects of the evidence relied upon by the lower tribunal, whereas the writ of certiorari prohibits any such evaluation. To equate the two standards of review is improper because it either significantly strengthens the scrutiny under certiorari or significantly weakens the scrutiny of art 6, § 28. Hence, the ratifiers and framers of the constitution did not envision that the substantial evidence standard of art 6, § 28 would be satisfied by the review undertaken in a writ of certiorari.

The lead opinion, however, also notes that this Court found in State Bar Grievance Administrator v Estes, 390 Mich 585, 592; 212 NW2d 903 (1973), that "[r]eview in the nature of certiorari meets” the constitutional standard of art 6, § 28. That Court, however, not unlike the lead opinion, simply failed to examine the nature of the writ of certiorari as compared to the standard of review necessitated by art 6, § 28. See, id. at 601-602 (Levin, J., concurring) (noting the difference between review under art 6, § 28 and under the writ of certiorari).

As the author of the lead opinion has previously explained, limiting the review on certiorari to "errors of law and . : . whether 'the inferior tribunal, upon the record, made, had jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law,’ ” is essential because

[a]n appeal and a writ of superintending control are, functionally and conceptually, different. An appeal is primarily a device for correcting legal error which occurs in the course of litigation. A writ of superintending control, on the other hand, is "designed to correct errors so gross as to be almost foreign to the judicial system.” Note, Supervisory and advisory mandamus under the all writs act, 86 Harv L R 595, 626 (1973). The former *706primarily protects the interests of the particular litigants as the final stage of the process through which justice is achieved. The latter serves the interests of the judicial system as a whole as a device for protecting the system’s integrity and furthering its efficiency. Id., 626-627.3
[Burton, supra at 146, 149-150 (Boyle, J., concurring). Citation omitted.]

Thus, "it is appropriate to prevent expansion of the use of superintending control as a substitute for appeal.” Id. at 147-148. Yet, the lead opinion does just that by elevating the scrutiny under the writ to the standard of art 6, § 28.

ii

A proper construction of the Michigan Constitution reveals that art 6, § 28 is applicable in the instant case. Art 6, § 28 mandates in pertinent part:

All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.

The purpose of constitutional construction is to *707determine the intent of the ratifiers at the time of its adoption. Lockwood v Comm’r of Revenue, 357 Mich 517, 555; 98 NW2d 753 (1959). While the best source of this intent is the plain meaning of the document,6 often "we must take into consideration the times and circumstances under which the *708State Constitution was formed — the general spirit of the times and the prevailing sentiments among the people.” People v Harding, 53 Mich 481, 485; 19 NW 155 (1884). See also Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). Thus, an examination of the framers’ comments during the constitutional convention is appropriate if the intentions of the ratifiers are ambiguous and the comments reveal the object of a particular provision. Regents of the Univ of Michigan v Michigan, 395 Mich 52, 60; 235 NW2d 1 (1975). Such interpretation is necessary because "[ejvery constitution has a history of its own which is likely to be more or less peculiar; and unless interpreted in the light of this history, is liable to be made to express purposes which were never within the minds of the people in agreeing to it. This the court must keep in mind when called upon to interpret it; for their duty is to enforce the law which the people have made, and not some other law which the words of the constitution may possibly be made to express.” Harding, supra at 485.

A

Defendant does not dispute that it is an administrative agency "existing under the constitution or by law” that exercises at least quasi-judicial powers that affect private rights. See, e.g., Martin v Wayne Co Civil Service Comm, 16 Mich App 536, 539; 168 NW2d 419 (1969); Justewicz v Hamtramck Civil Service Comm, 65 Mich App 555, 559-560; 237 NW2d 555 (1975); Choike v Detroit, 94 Mich App 703, 707-708; 290 NW2d 58 (1980) (applying art 6, § 28 to actions for superintending *709control involving local civil service commissions); and Eckstein v Kuhn, 160 Mich App 240, 243; 408 NW2d 131 (1987); O’Connor v Oakland Co Sheriff’s Dep’t, 169 Mich App 790, 794; 426 NW2d 816 (1988) (finding the Oakland County Personnel Appeal Board "a local administrative agency, which 'exists under the Constitution’ ”).7 In any event, the clear language of the provision, combined with the intentions of the Constitutional Convention, supports the application of the provision to defendant.8

*710B

Defendant, however, suggests that because the sole mode of review of the agency in question is by the extraordinary writ of superintending control, art 6, § 28 is inapplicable because the Muskegon Civil Service Commission’s decision was not subject to direct review by the courts "as provided by law.” In fact, in Evans v United States Rubber Co, 379 Mich 457, 461; 152 NW2d 641 (1967), a unanimous Court held that art 6, § 28 did not mandate a right of appeal to the Court of Appeals in workers’ compensation cases. Finding that no legislation *711authorized such an appeal, the Court refused to recognize an appeal as a matter of right. Id.9 Simüarly, the Court of Appeals in Eckstein, supra at 245, refused to apply art 6, §28 because "no statute or court rule authorizes any form of appeal to circuit court from the decisions of municipal administrative agencies such as the” Oakland County Personnel Appeal Board.10

Yet, the constitution mandates only that direct review be provided by law and the substantial evidence standard apply to such review. The Legislature has provided review through the superintending writ,11 which standard of review then becomes constitutionally modified by art 6, § 28. See, e.g., Martin, supra at 539; Justewicz, supra at 559-560; Choike, supra at 707-708. Defendant’s argument that there is no review of agency matters provided by law is simply denied by the superintending writ statute.

Furthermore, even if the Legislature failed to provide any form of review, the circuit court would be forced to craft such a reviewing mechanism. The constitutional language is unambiguous: "All final decisions ... of any . . . agency . . . shall be subject to direct review . . . .” Art 6, § 28 (emphasis added). Similarly, the Address to the People clearly states that art 6, § 28 "provides that decisions, findings, rulings and orders of administrative officers or agencies which affect private *712rights be subject to judicial review.” 2 Official Record, Constitutional Convention 1961, p 3389. The intention of the ratifiers and framers was clearly expressed by the mandatory language of the provision. As of the adoption of the constitution, all administrative agencies exercising quasi-judicial power became subject to judicial review. In short, the provision "guarantees judicial review of administrative decisions . . . .” McAvoy v H B Sherman Co, 401 Mich 419, 441; 258 NW2d 414 (1977).

Furthermore, the historical circumstances surrounding the adoption of the provision support the application of the substantial evidence standard. At the time of the framing and adoption of the 1963 Constitution, Michigan’s citizens confronted a monolithic, unwieldy, and confusing state bureaucracy affecting nearly every aspect of their lives.12 Unimagined by the Founding Fathers and the drafters of prior Michigan Constitutions, the rise of the modern bureaucratic state vested often insular and unaccountable administrative agencies with substantial control over the day-to-day lives of Michigan’s citizenry.13 At the time of the 1961 Constitutional Convention, there existed at least "125 to 150 boards, bureaus and commissions, with *713great, great powers over private rights and private property.” 1 Official Record, Constitutional Convention 1961, p 1444 (comments of Leibrand). Indeed, the expansion and pervasive influence of this sprawling bureaucracy was so acute in Michigan that members of the 1961 Constitutional Convention referred to the state apparatus as a "labyrinth of horrors or chamber of horrors” resulting in " 'administrative disintegration.’ ” 2 Official Record, supra, p 1837 (comments of Bentley) (citation omitted). In response, the people bridled the bureaucracy, in part, through the ratification of art 6, § 28.14

The novel provision enacted revolutionary changes in the operations of state government.15

Delegate Krolikowski, chairman of the committee from which the provision was originally drafted, explained the specific origin of the provision at the time of its introduction to the convention:

Since the adoption of our present constitution in 1908, the field of administrative law has been expanded to a point where today it occupies a position of prominent importance in the jurisprudence of our state. The committee proposal strikes at an area that is presently covered in the main by statutory law and case law. In the opinion of the *714committee a constitutional provision is necessary in order to assure a judicial review of administrative agencies and appended thereto a minimal scope of review. [1 Official Record, supra, p 1443.][16]

Other delegates noted that administrative "abuse” occurred and that "it has thereby become necessary to protect the people in their right of appeal and their right to be heard in another branch of the government, namely, the judicial branch, on matters affecting their person, their property or their business.” Id., p 1444 (comments of Iverson).17 The purpose of the provision, therefore, was to "grant the citizens of this state a right of review of a determination by an administrative body,” id., p 1467, and to "negate the possibility of conclusive findings of fact on the part of an admin*715istrative agency.” Id., p 1442 (comments of Kroli-kowski). In other words, the ratifiers and framers intended to implement "as a constitutional guarantee, certain minimum rights [of review from administrative agencies] for the citizens of this state.” 2 Official Record, supra, p 3135 (comments of King).18

A delegate has noted "the extreme breadth of applicability of this provision . . . .” Nord, The Michigan Constitution of 1963, 10 Wayne L R 309, 344 (1964). Indeed, delegates, while debating the provision discussed, inter alia, the workers’ compensation system,19 taxing authority,20 ratemaking authorities,21 state civil service commission,22 public service commission,23 employment security commission,24 and the department of revenue.25 Delegates also discussed many licensing boards, including those dealing with alcohol,26 insurance,27 real estate,28 truckers,29 drivers,30 and plumbers.31 The clear "aim[ ]” of the provision was "to impose upon all administrative agencies a uniform scope of review . . . .” 1 Official Record, supra, p 1441 (comments of Krolikowski)._

*716Delegate Everett explained "this amendment . . . [grants] a minimum guarantee of the rights of the individuals in these matters. We hope that the legislature will go beyond this and require more. We are only saying that, as a minimum, they must do this.” 2 Official Record, supra, p 3135 (emphasis added). Perhaps most telling, delegate Mahinske remarked that "whether or not the legislature provides for [the substantial evidence standard] in the establishment of one of these bodies, we have [the standard].” 1 Official Record, supra, p 1464.32

Contrary to defendant’s assertion, ensuring judicial review of the actions of administrative agencies that affect the rights of Michigan citizens was the very intent of the convention. The constitution, therefore, mandates review, but permits the Legislature to implement the details of the appellate process. "The phrase 'as provided by law’ clearly vests the Legislature with the authority to exert substantial control over the mechanics of how administrative decisions are to be appealed.” McAvoy, supra at 443. Obviously the constitutional convention did not wish to delve into the details of appellate procedure, e.g., venue, the statute of limitations, or the number of days by which an appeal must be filed, but it clearly intended to ensure that some appellate procedure exist. Indeed, the comments of the convention and the Address to the People reveal that the purpose of the provision was to ensure that the substantial evidence standard of review applied to administrative agencies because the Legislature had failed to do so in some instances. The failure of the Legisla*717ture to follow the mandate of the constitution compels the judicial branch to permit judicial review, not abandon it. To now deprive the citizenry of significant judicial review because the Legislature again failed to act in light of the provision makes the constitutional mandate all but a mockery. Afterall, "' "[a] constitutional provision designed to remove an existing mischief should never be construed as dependent for its efficacy and operation on legislative will.” ’ ” Ferency v Secretary of State, 409 Mich 569, 592; 297 NW2d 544 (1980) (citation omitted). The failure of the Legislature to implement the program is simply unconstitutional inaction.33

This is a Court of law, not of whim or preference: our duty is to adhere to the dictates of the constitution regardless of our personal preferences or our disagreement with the policies contained therein.34 In the instant case, the intention of the ratifiers and framers was to guarantee a minimal standard of judicial review for all administrative agencies affecting the rights of Michigan citizens— and we must enforce that intention.35 Defendant’s *718attempt to engraft upon the language and intentions of art 6, §28 meaning almost certainly unintended by the framers and ratifiers of the fundamental charter must be rebuked. Such interpretation, as Justice Cooley acknowledged, is in clear contradiction of the dictates of constitutional construction:

"Constitutions do not change with the varying tides of public opinion and desire; the will of the people therein recorded is the same inflexible law until changed by their own deliberative action; and it cannot be permissible to the courts that in order to aid evasions and circumventions, they shall subject these instruments, which in the main only undertake to lay down broad general principles, to a literal and technical construction, as if they were great public enemies standing in the way of progress, and the duty of every good citizen was to get around their provisions whenever practicable, and give them a damaging thrust whenever convenient. They must construe them as the people did in their adoption, if the means of arriving at that construction are within their power.” [Lockwood, supra at 555, quoting People ex rel Bay City v State Treasurer, 23 Mich 499, 506 (1871).]
Griffin, J., concurred with Riley, J.

See also Higley v Lant, 3 Mich 612, 614 (1855) (noting that one of the defendant’s allegations of error "can only be determined in this case by reviewing, weighing and balancing the conflicting testimony of all the witnesses introduced and examined by the respective parties on the trial of the cause in the county court. And this cannot be done ... by the circuit court on certiorari”); Cicotte v Morse, 8 Mich 424, 428 (1860) (noting that on a writ of certiorari “[i]f there is any evidence tending to prove a fact, and the court below regards it as proved, we cannot say it should have required more”); Welch v Bagg, supra at 44 (opinion of Manning, J.) (noting that on a writ a certiorari "[a]ll [the reviewing court] can do is to inquire whether there was a total want of evidence before [the lower tribunal] to prove some fact that should have been proved to sustain the action”); Overpack v Ruggles, 27 Mich 65, 66 (1873) (finding that on certiorari the circuit court’s reduction of judgment occurred because it *701"weigh[ed] the testimony, and credit[ed] that which the [lower tribunal] did not credit. This the court had no authority to do”); Garvin v Gorman, 63 Mich 221, 222; 29 NW 525 (1886) ("[s]o far as the set-off is concerned, there was testimony on both sides, and the [lower tribunal] acted upon it. His conclusion could not be disputed on certiorari’’); Detroit Citizens’ Street R Co v Common Council of Detroit, 125 Mich 673, 704; 85 NW 96 (1901) ("This case, being here by certiorari, is not to be tried de novo; nor can the finding be set aside unless it clearly appears to be unsupported by the evidence”); Collier v St Charles Twp Bd, 147 Mich 688, 692; 111 NW 340 (1907) ("The office of the writ of certiorari is to try questions of law. The facts are not reviewable”); McGurrin v Grand Rapids Twp Bd, 186 Mich 475, 478; 153 NW 17 (1915) ("the office of the common-law writ of certiorari . . . bring[s] up for review the proceedings of the lower court or the proceedings of an official board, to determine whether such court or board acted within its jurisdiction, or to review the manner in which the jurisdiction was exercised, but not to review questions of fact”); People v Swanson, 217 Mich 103, 106; 185 NW 844 (1921) ("The inquiry by review on certiorari is directed to ascertaining whether errors of law shown by the return are of such nature as to invalidate the proceedings. Questions of fact will not be considered. . . . The court will only review the evidence to ascertain and determine whether a total absence of testimony upon a material fact leaves the findings or verdict destitute of evidential support”); Carroll v Grand Rapids City Comm, 266 Mich 123, 126; 253 NW 240 (1934) ('"On certiorari questions of law only are reviewable’ ” [citation omitted]); In re Gilliland, 284 Mich 604, 612; 280 NW 63 (1938) ("On certiorari we do not pass on the weight of the evidence or the credibility of witnesses. There being some evidence to support the finding of the trial judge, we cannot disturb it on certiorari”); Great Lakes Greyhound v UAW-CIO, 341 Mich 290, 304; 67 NW2d 105 (1954), quoting In re Gilliland, supra at 612; Leenknegt v McCormick Industries, 349 Mich 430, 432; 84 NW2d 881 (1957), quoting Jackson, supra at 120; Trojan v Taylor Twp, 352 Mich 636, 640-641; 91 NW2d 9 (1958), quoting Leenknegt, supra at 432, quoting Jackson, supra at 120; Scallen v State Health Comm’r, 376 Mich 64, 71-72; 135 NW2d 426 (1965) (Souris, J., dissenting) (" 'The office of a certiorari is not however to review questions of fact, but questions of law. And in examining into the evidence the appellate court does so not to determine whether the probabilities preponderate one way or the other but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the appellate tribunal’ ”); id. at 80 (opinion of O’Hara, J.) ("The narrow limits of review by certiorari are pointed out by Mr. Justice Souris. I accept them”); id. at 81 (opinion of Black, J.) ("describing the scope of review upon certiorari” as one in which " 'this Court does not review the findings of fact of the board, except to determine whether there is any evidence to support the award’ ”); Lepofsky v Lincoln Park, 48 Mich App 347, 356; 210 NW2d 517 (1973) ("characterizing this action as one in certiorari, the trial judge’s review must of necessity be limited to questions of law; in examining the evidence the trial court does so only to justify the *702finding in the inferior tribunal below as a legitimate inference from the facts proven”); Wayne Co Prosecutor v Recorder’s Court Judge, 101 Mich App 772, 775; 300 NW2d 516 (1980) ("In reviewing the decision of the magistrate, a superintending court does not substitute its judgment or discretion for that of the magistrate. It examines the record to determine whether there was an abuse of discretion amounting to a failure to perform a clear legal duty”); Wayne Co Prosecutor v Recorder’s Court Judge, 151 Mich App 550, 553-554; 391 NW2d 407 (1986) ("Historically, the scope of review pursuant to a writ of certiorari is limited to determining whether the inferior tribunal, upon the record made, had jurisdiction, whether the inferior tribunal exceeded that jurisdiction, and whether the inferior tribunal proceeded according to law”). Cf. People v Flint Municipal Judge, 383 Mich 429, 432; 175 NW2d 750 (1970) ("The superintending court does not substitute its judgment or discretion for that of the magistrate; neither does it act directly in the premises. Rather it examines the record made before the magistrate to determine whether there was such an abuse of discretion as would amount to a failure to perform a clear legal duty” regarding mandamus). But see Herring v Hock, 1 Mich 501 (1850) (finding that a judgment not manifestly supported by the evidence may be reversed on certiorari). Herring, however, was criticized and rejected by this Court as an anomaly over a century ago. Berry, supra at 11-12.

See also Midland Twp v State Boundary Comm, 401 Mich 641, 672-673; 259 NW2d 326 (1977).

The Court emphasized that "' "[t]he office of a certiorari is not however to review questions of facts, but questions of law. And in examining into the evidence the appellate court does so not to determine whether the probabilities preponderate one way or the other but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts . . . ” Id. at 107 (citations omitted).

Neither do Erlandson v Genesee Co Employees’ Retirement Comm, 337 Mich 195, 202; 59 NW2d 389 (1953) nor In re Fredericks, supra, apply a different standard of review. Erlandson, supra at 202 (" 'The office of a certiorari is not however to review questions of fact .... And in examining into the evidence the appellate court does so not to determine whether the probabilities . . . but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved.’ ” [Citation omitted.]); In re Fredericks, supra at 267 ("review intended by the legislature as an appeal in the nature of certiorari. The scope of review upon such an appeal is limited to determining if the inferior tribunal, upon the record made, had jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law”).

[I]t is neither for us nor the circuit court to determine issues of fact. ... It was error for the circuit court to make its own appraisal of the testimony and to pick and choose from the testimony and inferences therefrom in order to reach a holding that the decision of the appeal board was against the great weight of the evidence. . . .

"Our function is exhausted once it is found, as we have found, that the evidentiary record permitted the appeal board to draw such a conclusion.”

See also Genesee Prosecutor [supra at 680,] quoting People v Flint Municipal Judge, 383 Mich 429, 432; 175 NW2d 750 (1970) ("The process is not, properly speaking, an appeal. It is rather a whole new lawsuit, with different parties and different purposes”).

As Justice Cooley explained, "[t]he object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it.” 1 Cooley, Constitutional Limitations (8th ed), p 124 (emphasis in original). See also Committee for Constitutional Reform v Secretary of State, 425 Mich 336, 342; 389 NW2d 430 (1986); Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). Justice Cooley elaborated:

For as the constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed. [Cooley, supra at 143.]

Hence, the language of the constitution provision should be interpreted by its "natural and ordinary meaning.” Id. at 130. Thus, "[n]arrow and technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves, for themselves, and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government.” Id. at 131-132.

Nevertheless,

it must not be forgotten, in construing our constitutions, that in many particulars they are but the legitimate successors of the great charters of English liberty, whose provisions declaratory of the rights of the subject have acquired a well-understood meaning, which the people must be supposed to have had in view in adopting them. We cannot understand these provisions unless we understand their history, and when we find them expressed in technical words, and words of art, we must suppose these words to be employed in their technical sense. [Id. at 132.]

Hence, phrases such as "due process,” "ex post facto law,” and "free exercise of religion” convey a long historical tradition of content and meaning. In the instant case, however, the phrase "existing under the constitution or by law” is not a "successor[ ] of the great charters of English liberty,” nor does it appear to have a "well-understood meaning.” Hence, this Court must examine the phrase by utilizing its natural and ordinary meaning, with reference to its purpose and the *708historical circumstances surrounding its adoption if that meaning is ambiguous.

Similarly, courts have applied the provision in actions for superintending control when appealing decisions of local zoning boards, which are authorized but not created by state statute. See, e.g., Quigley v Dexter Twp, 390 Mich 707, 708; 213 NW2d 166 (1973) (noting that zoning boards of appeals are established "under” MCL 125.585; MSA 5.2935, although the creation of such boards is discretionary). Lorland Civic Ass’n v DiMatteo, 10 Mich App 129, 136; 157 NW2d 1 (1968); Keating Int’l Corp v Orion Twp, 51 Mich App 122, 125-126; 214 NW2d 551 (1974), aff’d 395 Mich 539; 236 NW2d 409 (1975).

Delegate Ford, for instance, while arguing against the provision, specifically noted that it would apply to local civil service boards:

[Tjhere is no way to correct this section and avoid the inevitable effect of placing in the path of all administrative boards, bodies and agencies — whether they be at the local government level or the state level — a roadblock that will make it practically impossible to utilize the field of administrative law in this state to its best advantage. [2 Official Record, Constitutional Convention 1961, p 2713.]

See also 1 Official Record, Constitutional Convention 1961, p 1441 (comment of Ford) (noting that the provision would apply to an "appeal from the suspension of a policeman under the civil service statute or charter provision”); id., p 1448 ("[the provision] says that evidence has to fairly support the finding of fact made by the administrative body or agency — for example, a civil service commission”); id., p 1464 (noting that provision would apply to license applications "from every municipality in this state and every county in the state”).

Delegate Martin also expressed his understanding that the provision would apply to "various municipalities.” 2 Official Record, supra, p 2718. Similarly, Delegate Nord, opposing the measure, concluded that with the provision "it seems clear to me that we open the door for every single case, every determination by any administrative board, to be subjected to a review.” 1 Official Record, supra, p 1468.

*710Moreover, a central concern of the convention was to ensure that administrative agencies did not deprive persons of their livelihood without some form of significant judicial review. Delegate Everett expressed this sentiment poignantly:

Certainly, it seems to me it would be shocking indeed to tell a man that his neighbor, who can appeal to a court if he is fined $10 in a traffic matter, may not appeal to the court if his very job is taken away from him by some administrative agency. This would be a fundamental error in not protecting one of the most important rights that all of us have. [1 Official Record, supra, p 1451 (comments of Everett).]

See also 1 Official Record, supra, p 1450 (comments of Leibrand) ("Delegate Ford speaks of the revocation of licenses and privileges and how we shouldn’t interfere with them, how it is not necessary for court protection. Let’s put that on a more personal basis. That plumber’s license is his livelihood, the way he feeds himself and his family. That insurance man’s license is his livelihood. And I feel that no man should be deprived of his livelihood without the opportunity for judicial review.” Id.); 2 Official Record, supra, p 2716 (comments of Everett) ("when it comes to liquor licenses and things like this, . . . [tjhere is also the livelihood of the individual involved. It seems to me that he is just as much entitled to review in court of this very drastic decision which may cost him his livelihood, not only his license temporarily, but possibly permanently”); id. (comments of G. E. Brown) ("if we can provide judicial review for $100 cases and other cases of this nature, it certainly isn’t going too far to permit the judicial review of the very means by which a man makes his livelihood”).

Thus, the provision was intended to encompass the widest possible breadth of administrative agencies, and especially grant to those whose livelihoods were affected by the agencies significant judicial review.

In Viculin v Dep’t of Civil Service, 386 Mich 375; 192 NW2d 449 (1971), however, the Court hedged away from its holding in Evans by finding that the provision "does not guarantee a review in the nature of certiorari of 'right’ but an appeal of such a nature may require 'leave’ or be automatic as provided by law.” Id. at 392.

See also Robertson v Detroit, 131 Mich App 594, 597; 345 NW2d 695 (1983) (holding that because the Legislature had not enacted legislation regulating the "actual operation of general municipal civil service commissions” art 6, § 28 was inapplicable); O’Connor, supra at 794-795.

MCL 600.615; MSA 27A.615.

The ubiquitous nature of administrative agencies is unquestionable: administrative agencies grant or deny licenses to practice professions, operate businesses, drive automobiles, construct buildings, utilize natural resources, and determine the use of land. Bienenfeld, Michigan Administrative Law (2d ed), ch 1, pp 1-2. Agencies also "settle labor disputes, set the amount of taxes to be paid, grant paroles to inmates of penal institutions, fix rates for public utilities, determine welfare benefits, employment security benefits, worker’s disability benefits and the rights of public employees, and resolve election disputes and disputes arising from discrimination based on race, color, national origin, sex, age, and physical disability.” Id.

The rapid rise of administrative agencies has been justified by legislators "to cope with massive social, economic, political, and environmental problems that accompanied advances in technology, changes in social structure, .increases in population, and greater concentrations of population.” Bienenfeld, n 12 supra, ch 3, p 1.

For another striking example of the substantial reformation of the state constitution in response to the bewildering bureaucracy, see House Speaker v Governor, 443 Mich 560, 562; 506 NW2d 190 (1993) (recounting the reorganization of the executive branch by the 1961 convention to grant the Governor "some real control over the executive branch”).

See, e.g., 1 Official Record, supra, p 1473 (comments of Faxon) (noting that the provision was "opening up an area that had been hitherto untouched in constitutional language in other states and in our own state in our history”); id., p 1478 (comments of Martin) ("I am impressed, first of all, by the tremendous scope of the proposal that is being made. There is no question at all but that this is one of the most far ranging proposals for change which we are making in this entire constitution”).

Others explained similarly:

[I]n 1908 administrative agencies were virtually unknown in the state of Michigan. They were very rarely used in the federal government. Since that time we have had a tremendous growth in the use of administrative agencies and they perform a valuable function but they have cut themselves so far afield from what we know as the judicial determination of rights that they now are virtually a separate form of government all by themselves.
This amendment does not bring them back totally into the field of the proper determination of rights as we traditionally look at it. It only says this: whoever hears this case . . . cannot issue a binding order unless that order is supported by competent evidence. [2 Official Record, supra, p 3135 (comments of Everett).]

See also id., p 1444 (comments of Iverson) ("this proposal, in the judgment of the committee, is a safeguard, if you please, against bureaucratic action by an administrative agency which might, so to speak, get the bit in its teeth and run away with it”); id., p 1466 (comments of Shackleton) ("I have heard no lawyers suggest that laws not be reviewed by the courts. When bureaus or bureaucrats can issue rules and regulations which essentially have the effect of laws, they too should be reviewed”); 2 Official Record, supra, p 2714 (comment of T. S. Brown) ("this is what we’re trying to do, protect the individual against the arbitrary actions of the state”).

See also 1 Official Record, supra, p 1451 (comments of Boothby) ("All we are saying here is that when an individual acts in the capacity of a prosecutor, a jury and a judge — and it doesn’t matter whether he is affecting a privilege, a right or a license — we are going to give that person his day in court”).

See, e.g., 1 Official Record, supra, p 1441 (comments of Norris).

Id.

Id.

Id., pp 1441-1442 (comments of Ford).

Id., p 1444 (comments of Leibrand).

Id

Id., p 1446 (comments of Leibrand).

Id., p 1444.

Id., p 1450 (comments of Ford).

Id.

Id., p 1444 (comments of Leibrand).

Id., p 1450 (comments of Danhof).

Id., p 1450 (comments of Ford).

See also id., p 1447 (comments of Leibrand) ("[the provision] simply sets a minimum standard, a minimum below which the legislature may not go” [emphasis added]); 2 Official Record, supra, p 3134 (comments of Krolikowski) ("the first sentence . . . assures that there shall be a direct judicial review of all decisions, findings, rulings and orders of administrative agencies”) (emphasis added).

In fact, defendant’s position would permit a Legislature to repeal the statutory right of appeal from even a state agency, e.g., the state teacher tenure commission, MCL 38.121; MSA 15.2021, which was the exact problem the provision addressed.

The question is not whether the constitution ought to have permitted the exercise of this power; but whether, by a fair construction of the language of the instrument, as framed by the convention, and understood and adopted by the people, the power in question has been prohibited. Our province is not to make or modify the constitution, according to our views of justice or expediency, but to ascertain, as far as we are able, the true intent and purpose of the constitution which the people have deemed it just and expedient to adopt. [People ex rel Twitchell v Blodgett, 13 Mich 127, 149-150 (1865) (Christiancy, J.); id. at 141 (Campbell, J.); id. at 168 (Cooley, J.).]

Contrary to the fears of the lead opinion, this holding would not require that the Legislature pass laws and the Governor sign them in the instant case. The constitutional requirement that the substantial *718evidence standard apply may be enforced by this Court without such recourse — -judicial review has been mandated by. the constitution and the courts must grant it.