I am unable to agree that by any possibility the preservation of the public peace, or the public health, or the public safety necessitated the making of a single school district of Royal Oak. At least the citizens of Royal Oak did not entertain any such view, as they waited over a year after the act was passed and over nine months after it was repealed, during which time a full school year had passed, before they even deemed it convenient for their community and took steps looking to its acceptance. My brother points out the power of school districts with reference to health and safety, but he does not point out, nor does any one else connected with the case point out, that the five school districts which in whole or in part are located in Royal Oak did not possess all the power on such subjects as would a school district organized under Act No. 169, Pub. Acts 1927. Manifestly, if the new order of things is the same under the new act as was the old order of things under the old act, then the new act furnishes no possible further preservation of the public peace or the public health or the public safety than did the old one, and a legislative declaration to the contrary has no possible force.
When the convention elected to frame a new Constitution met, there were two legislative evils which had grown up over a considerable period of time, *Page 413 which were really crying evils, and which the convention was called upon to meet. They were: (1) local legislation, and (2) hasty and illy considered legislation, both with little or no notice to the people affected. Under the old Constitution, I have seen the fundamental law of a municipal corporation entirely changed between the rising and the setting of the sun without over a dozen of the citizens of the municipality having any knowledge of the change. The convention met the question of local legislation by the provisions found in section 30, article 5, and the hasty legislation by the provisions of section 22 of the same article, and the provision of section 21 here under consideration. The legislature has quite studiously followed the provision requiring that bills be printed five days before being acted upon, but by adopting systems of classification and seeing danger of widespread epidemics and possible invasions by friendly States, neither of which is a possibility, the provisions sought to curb the two legislative evils are today of little effect. Practically as many really local bills are passed and given immediate effect as were before the present Constitution. Few of them reach the courts. But in my judgment, the courts are not entirely blameless. By energetic search the courts have been able to discover a "reasonable doubt" of the invalidity of the act somewhere, and, therefore, go along with the legislative practice. The convention provided that the legislature might give immediate effect to bills making appropriations, a very necessary provision, and also provided for emergencies that might arise when the public peace or the public health or the public safety were endangered, enabling the legislature by a two-thirds vote to avoid a catastrophe. But I can not conceive that a layman who voted for the instrument *Page 414 (and most of the people who voted for this Constitution were laymen), when he voted for it with these provisions, expected that there would be a public epidemic or the invasion of a foreign foe, or disastrous riots unless Royal Oak was made a single school district. I am unable to conclude from the record, from anything this court may judicially know, from anything a reasonably fertile imagination may bring to my mind, that it is immediately necessary for the preservation of the public peace or the public health or the public safety, that Royal Oak have a single school district a year before that city discovered its necessity.
The trial judge reached the conclusion that Act No. 169 was repealed by implication by Act No. 319. Neither party seems to seriously controvert this holding. Nor do I think they can. Act No. 319 (the school code) was a consolidation and revision of the school laws of the State and covered the entire field. I agree with the holding of the trial judge, and will not take time or space to discuss a question there is no dispute about.
There is, however, a question which I think merits serious consideration. It is contingent on a majority of the court joining in the opinion of Mr. Justice CLARK, a contingency several years of experience has taught me may happen. What I shall now say will be upon the theory that the act was validly given immediate effect. The school code provides in section 1, chapter 2, part 1, as follows:
"Districts heretofore organized shall remain and have the same boundaries as at the time of the passage of this act, subject to change hereafter in the discretion of the township board."
Section 1 of chapter 6 of the same part uses the words "organized" and "operating" while section *Page 415 1, chapter 1, part 2, after providing that schools need not reorganize, refers to schools "now organized as a district."
If the bill was validly given immediate effect, it was in force as an act of the legislature from the day it was signed by the governor, May 14, 1927, until the school code took effect September 5th, when it was repealed. During this time there was nothing done under it. For a solid school year the other districts, which, if the act was in force, were either entirely wiped out or materially changed, continued to levy and collect taxes, hire school teachers, and function as they had done before. The new district was but a paper district; it had no officers; possessed no school property; had no teachers. It was doubtless "established" as a school district on paper, but in my judgment, it was not "organized" as a school district so as to perpetuate it as a district within the meaning of the school code. I do not think it was organized until officers were elected to discharge the corporate functions, and this did not take place until over nine months after the act had been repealed. The cases are not numerous which deal with this specific question. Numerous cases will be found where acceptance of the act by the people affected is required and where the courts have held that the proceedings must strictly follow the act. Likewise, cases will be found where consent is not required, and the courts hold that the legislature may create the public corporation for public purposes without consent of the governed. Both classes of cases are beside the mark. A few cases are found which deal with the question of when a municipal or quasi municipal corporation is organized. Defendants' counsel rely on a line of Minnesota cases which uses language tending to sustain *Page 416 their contention, but that court early pointed out the distinction between established counties and organized counties. In State v. Parker, 25 Minn. 215, it was said:
"This court, in State v. McFadden, 23 Minn. 40, defines the distinction between organized and established counties, by stating, in effect, that the establishing of a county is the setting apart of certain territory to be in the future organized as a political community, or quasi corporation for political purposes; and the organizing of a county is the vesting in the people of such territory such corporate rights and powers."
In Haynes v. County of Washington, 19 Ill. 66, it was said:
"Grants of corporate powers, for purposes of local municipal government, such as belong to towns and cities, are a delegation of a portion of the general sovereignty of the State, designed to enable the inhabitants of particular localities to establish and maintain police regulations, and to advance their common prosperity. A charter, or act of incorporation, is but evidence of the powers delegated, and which powers remain dormant, or in abeyance, until, in the mode pointed out in the charter, the inhabitants, for whose benefit those powers are granted, bring them into life and exercise, by an organization of the local government."
In State, ex rel. Jackson Township, v. Arnold, 38 Ind. 41, it was said:
"The town cannot be a corporation, in a proper sense, until its officers and its board of trustees shall have been elected, and a president of the board designated." *Page 417
And in Chesapeake Ohio R. Co. v. Pack, 6 W. Va. 397, it was said:
"After the passage of the act for its incorporation, the voters might or might not, at the first, or any subsequent time named for the purpose, elect officers, and inaugurate the corporation as an actual entity. The law declared that the people within the limits of its operation, should have privileges and immunities that were not in their character proper to be conferred upon a mere potential corporation, but were appropriate only to an existing acting body politic, in condition to perform the functions indicated by the law of its creation. The act of incorporation containing the provision that when the officers have been elected and qualified, without any express declaration, that the people or voters shall be a body politic, I can see no sufficient reason why the town should be deemed incorporated, before the performance of the condition pre-requisite to its vital existence and practical action. But I think, when the voters have once elected the officers that constitute the council, and these have qualified and commenced the performance of their duties, the voters themselves constitute a body politic, of which the council is the representative."
It was not until June 12, 1928, over nine months after the repeal of Act No. 169, that the election was held and the officers of the district elected. This was also over nine months after the school code took effect. I do not think this school district was "organized" when the school code took effect.
In my opinion, the judgment should be reversed and the case remanded, with instructions to enter a judgment of ouster.
NORTH, C.J., and SHARPE, J., concurred with FELLOWS, J. *Page 418