(dissenting). The first and I think decisive question is whether we are compelled by law (CL 1948, §117.28 [Stat Ann 1949 Rev § 5.2107] ). to overrule the twice-recorded will, of the electorate of Cadillac, that laymen as well as attorneys be'and remain eligible under the city charter to the office of judge of the municipal court of Cadillac. I find no such compulsion. !
By Cadillac’s legislative charter (Local Acts 1895, No 429) it was provided:
“There shall be and hereby is established a recorder’s court in said city, and on the first Monday of April, 1896, and every 6 years thereafter, there shall be elected a judge of the recorder’s court in said city, who shall be an admitted practicing attorney of said city.”
The so-called home-rule act having been enacted in 1909 (PA 1909, No 279 [CL 1948, § 117.1 et seq. (Stat Ann 1949 Rev § 5.2071 et seq.) ] ), and art 8,- § 21 *693Const (1908) having been amended in 1912 to read as follows:
“Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter, and to amend an existing charter of the city or village heretofore granted or passed by the legislature for the government of the city or village and, through its regulai’ly' constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this State.”,
the electors of Cadillac proceeded December 9, 1913 to adopt a comprehensive “home-rule” charter. The 1913 charter incorporated without substantial change the above-quoted portion of the mentioned legislative charter. Thus and by authority of constitutional “home rule” Cadillac initially adopted the 1895 requirement that her recorder’s court judge be an attorney.
April 3, 1933, the electors of Cadillac, by 3-to-l vote, proceeded to amend section 1 of chapter 20 of the 1913 charter so that same read as follows:
“There shall be, and hereby is, .established a recorder’s court of the city of Cadillac, and at the first municipal election held under this charter and every 4 years thereafter, there shall be elected a recorder in said city, who shall be a resident qualified elector of said city ”
The 1912 amendment quoted above, considered with the home-rule act as amended, gave to Cadillac the clearly-worded right to amend her then charter, which charter as we have seen was “granted or passed by the legislature for the government of the city,” “subject to the Constitution and general laws of this State.” This leaves bare the question whether the statute (PA 1927, No 32), which Mr. Justice Kelly relies upon, operated in 1933 to. nullify the *694charter-amending vote of Cadillac’s electors as registered at the time. The statute then read and still reads (CL 1948, §117.28 [Stat Ann 1949 Rev § 5.-2107]), so far as concerns this ease:
“All laws creating municipal courts and the proceedings thereof in any such city, shall remain in full force and effect.”
By the 1933 charter amendment the people of Cadillac did not repeal or destroy the law which created their municipal court and proceedings therein. To the contrary, they expressly retained it. They did, as was their home-rule due, ordain eligibility of laymen as well as attorneys for the office of judge of .their recorder’s (municipal) court. So long as Cadillac effectively retained the law creating its court — and- for 23 years it seems to have successfully done so with and without attorneys presiding as judge thereof — its people were not then and are not now guilty of infringement of a general law of this State the purpose of which was simply that of preservation of continued functioning of the justice and municipal courts identified therein.
To preserve law creating a court and its proceedings is one thing. To preserve law limiting eligibility of candidates for judge thereof is another. The statute did not say, and does not today say, that laws stipulating qualifications of judges of courts, municipal or otherwise, shall remain in effect. All that is preserved inviolate is law creating the court and its proceedings.
The 1895 act distinct from the qualification now being considered fully created the court and its proceedings. The act of creation did not require, and it would have been completely effective without, the provision that the judge be an attorney. The disagreement we are experiencing is, in my view, due to the position, in the act of 1895, of such provision. *695If the provision had been incorporated in a section separate from section 1 of title 6 of the act, or if it had been included in a separate title of the act, or if it had been ordained by later local act, it is altogether unlikely that this quo warranto proceeding would have been instituted.
We are interpreting a general law designed solely toward continuity of laws creating municipal courts and their proceedings. All else so far-as this case is concerned is left to local will. Let us suppose the act of 1895 provided that the recorder be of a certain and now outmoded minimal age, or that his annual salary be a certain amount deemed, by the electors who usually dig the money for payment thereof, too high or too low for this modern day. Suppose again that the act dictated provision for quartering of the court in a place and under conditions that are no longer available in Cadillac. Would such be law of creation of the court? These questions answer themselves in light of the mentioned general statute. That statute limits its restriction upon local control to preservation of continued life and integrity of the court and its proceedings. Since the legislature has put no more than that in words, it is our duty under the rule eccclusio to presume legislative intent of exclusion, from purview of the statute, of any law or part of law not necessary to the creation of municipal courts and proceedings thereof.
Mr. Justice Kelly points out, in his opinion, that the people of «Michigan April 4, 1955, amended their Constitution to provide that justices of the Supreme Court and judges of all circuit courts elected or appointed prospectively be less than 70 years of age and that they be “licensed to practice law in this State.” Such is the recorded (and I will add salutary) will of Michigan as applied only to her Supreme and circuit courts. The will of the people *696of Cadillac, as to their own court, is likewise just as plainly of record. Cadillac did not wish in 1933— or in 1954, as registered by overwhelming majority vote, to continue or to re-enact the 1895 restriction against elective-appointive eligibility of a layman to be their municipal judge. With that decision, essentially one of home rule affecting Cadillac only, we have no right to interfere.
If in the future no licensed attorney of Cadillac will run for recorder — and such things have been known to occur considering munificence of salary*— must Cadillac go without her chartered court unless and until the legislature relents and relieves the city from legislation of white-pine days? My Brothers apparently answer in the affirmative.
If the majority decision be right, it is passing strange that the question of the day did not reach even the Wexford county circuit court until more than 2 decades had elapsed following the allegedly illegal charter amendment of 1933. A good many judgments, and a good many fines and jail sentences, have been entered and pronounced judicially in this recorder’s court during the past 23 years by a succession of now disqualified laymen. The rule respecting de facto officership may protect such judgments and sentences from collateral attack but that is no shield so far as Mr. Kearney is personally concerned. He has administered the office of recorder’s judge of Cadillac continuously since 1948 — right well according to this record — and no questions asked until recently. Yet, by today’s majority rul*697ing, we place him nunc pro time in an unpredictable position. May he retain, for instance, the salary he has earned and received this past 7 years?
It is freely admitted that the considerations just expressed must be cast aside if by clear force of properly interpreted law we have no alternative other than that of ouster of Mr. Kearney as municipal judge of Cadillac. I nevertheless point to them as special reason for due care to avoid what may otherwise be cavalier reversal of the elective and judicial decisions that are forcefully shown in this record.
Withal, this Court had better be right in its palæstric effort to strain, from.section 28 of the home-rule act (CL 1948, §117.28 [Stat Ann 1949 Rev §5.2107]), an inference that the legislature has permanently clamped on Cadillac this 1895 requirement of administration by an attorney of the limited jurisdiction of her recorder’s court. The intervening rule of construction that applies here— that of liberality in “the home-rule spirit” of 1908— seems to be at variance with such effort (Conroy v. City of Battle Creek, 314 Mich 210, 221).
I would affirm, without costs.
Smith, J., concurred with Black, J. The late Justice Reid took no part in the decision of this ease.The recorder’s salary is fixed by the present charter at $600 per annum. The local act of 1895 provided that the recorder’s salary shall be such “as the council shall prescribe.” If our majority is to freeze the act of 1895 into Cadillac’s judicial process, it seems to me that we should, at. the same time, forthrightly advise the city’s prospective candidates for recorder that the salary-fixing authority of city fathers is included. The will of the people having been so recently and resoundingly voiced, the prospect may not be too inviting for lay as well as professional candidates for recorder.