RANSFORD
v.
GRAHAM.
Calendar No. 117, Docket No. 50,796.
Supreme Court of Michigan.
Submitted November 6, 1964. Opinion filed November 19, 1964.Douglas L. Williams, for plaintiff.
Thomas R. McAllister, for defendant.
Opinion filed November 19, 1964, holding office vacated.
PER CURIAM:
Invoking the original jurisdiction of this Court, plaintiff filed a complaint praying for a *106 determination that on January 1, 1964, the effective date of the Michigan Constitution of 1963, defendant did not possess the qualifications essential thereunder to entitle him to serve the remainder of the term as probate judge of Tuscola county to which he had been elected in 1960, and a determination that the office became vacant as of January 1, 1964. Plaintiff's brief filed in this cause states the question involved to be:
"On January 1, 1964, the effective date of the Michigan Constitution of 1963, was the defendant `serving' within the meaning of that term as it is used in said Constitution, schedule and temporary provisions, § 7 ?"
Pertinent facts in this case are to be found in the per curiam opinion of this Court in In re Graham, 366 Mich. 268. It will be noted therefrom that this Court's action up to that juncture, April 4, 1962, concluded with an order for transmittal of records of the case to the legislature with a recommendation to it of defendant's removal from office, but with retention by this Court, pending legislative action, within 30 days, on such recommendation, of jurisdiction to enjoin defendant from exercising the powers and duties of the office. Thereafter the house of representatives of the legislature rejected this Court's recommendation. Thereupon, this Court, on May 17, 1962, issued an injunction as above mentioned and on or about May 21, 1962, it was served on defendant.
On January 1, 1964, Michigan's new Constitution of 1963 became effective. It contained the following provision:
"The Supreme Court, the court of appeals, the circuit court, the probate court and other courts designated as such by the legislature shall be courts of record and each shall have a common seal. Justices *107 and judges of courts of record must be persons who are licensed to practice law in this state." Art 6, § 19.
Section 7 of the schedule and temporary provisions of the Constitution of 1963 provided:
"Any judge of probate serving on the effective date of this Constitution may serve the remainder of the term and be eligible to succeed himself for election regardless of other provisions in this Constitution requiring him to be licensed to practice law in this State."
Defendant is not and at no time has been licensed to practice law in this State.
It must be noted that the exemption, contained in section 7 of the schedule, from the requirement that a judge of probate must be a person who is licensed to practice law in this State, is not therein specifically stated to apply to an incumbent probate judge, to one who is a probate judge or holds the office of probate judge nor to anyone during the term for which he was elected probate judge (the latter having been proposed in proposal No. 1596 at the constitutional convention[*]), but it is expressly stated to apply only to "any judge of probate serving on the effective date of this Constitution." "Serving" means discharging a function or duty, rendering a service.
Was defendant serving as judge of probate on January 1, 1964? Since May 21, 1962, by order of this Court, defendant had been under an inhibition from exercising the powers and duties of the office of judge of probate. He complied with the order, refrained from exercising or discharging said powers and duties, and rendered no service as probate judge. From that time on he was not serving as *108 judge of probate within the meaning of section 7 of the schedule and temporary provisions of the Michigan Constitution of 1963. In consequence, not being licensed to practice law in this State, he did not have the qualifications required by article 6, § 19, nor those of the exemption therefrom provided in section 7 of said schedule, to serve as judge of probate from and after January 1, 1964. The office thereupon became vacant.
Defendant contends that the May 17, 1962, injunctive order of this Court was and is unconstitutional. Violative of what provisions of the Michigan Constitution of 1908 then in effect? Defendant says that the order amounted to an attempted removal of him from office by this Court, that the Constitution of 1908 contained no authority therefor, and that article 6, § 25, Michigan Constitution of 1963, confers such removal power (as in article 9, § 6, Constitution of 1908) only on the governor on concurrent resolution of two-thirds of the members elected and serving in each house of the legislature. This Court's order did not remove from office the defendant who continued to draw his official pay. The order did, however, enjoin defendant from exercising the powers and duties of the office. This it was competent for this Court to do in the exercise of its powers of "general superintending control over all inferior courts", conferred by Michigan Constitution of 1908, art 7, § 4, for the purpose of protecting the purity of judicial processes and maintaining public confidence in the administration of justice. For powers of this Court in this connection, see In re Huff, 352 Mich. 402, and In re Graham, supra.
Defendant says the order was violative of the Fourteenth Amendment due process clause of the Constitution of the United States. He does not spell out the respect in which it is such a violation. We perceive none.
*109 Defendant urges that after the house of representatives declined to vote for defendant's removal, he was, in effect, acquitted of the charges of which he had been found guilty by this Court as expressed in its previous opinion. From this premise defendant reasons that this Court's subsequent injunctive order amounted to having placed him in jeopardy twice for the same offense, contrary to Michigan Constitution of 1908, art 2, § 14. Neither the proceedings in this Court nor those in the legislature were criminal. In People v. Kenyon, 93 Mich. 19, it was held that a judgment in a civil suit for assault and battery, in favor of the defendant in a criminal prosecution, for the same trespass, is not a bar to such prosecution. Similarly, here, the failure of the legislature to vote a removal against defendant was no bar to the exercise of the injunctive powers as done by this Court, based on a finding of facts made by this Court prior to the legislature's consideration thereof.
Defendant has not been removed from office by the order of this Court. He has been restrained from serving as such. Defendant has been removed from the office automatically by operation of the noted provisions of the 1963 Constitution.
It is held that as of the effective date of the 1963 Constitution, on January 1, 1964, defendant was not serving as probate judge, that under that Constitution he did not have the qualifications for the office and that it thereupon became vacant.
KAVANAGH, C.J., and DETHMERS, KELLY, BLACK, SOURIS, SMITH, and O'HARA JJ., concurred.
ADAMS, J., took no part in the decision of this case.
NOTES
[*] Mich Const Convention, 2 Delegate Proposals. REPORTER.