Opinion
Docket No. 429.
Decided January 26, 1965. Leave to appeal denied by Supreme Court February 13, 1965. Opinion filed March 15, 1965.
Appeal from Wayne; Rashid (Joseph G.), J. Submitted Division 1 January 21, 1965, at Detroit. (Docket No. 429.) Decided January 26, 1965. Leave to appeal denied by Supreme Court February 13, 1965. Opinion filed March 15, 1965.
Petition for mandamus by Don Ball to compel Francis S. Thomas, city clerk, and the Election Commission of City of Trenton to accept his nominating petitions for office of municipal judge in Trenton, and to restrain the holding of an election on February 15, 1965, for such office. Writ denied. Plaintiff appeals. Affirmed.
Raubolt, MacDonald Dodge, for plaintiff.
Guiney Guiney, for defendants.
Plaintiff, resident of the city of Trenton, sought in the Wayne county circuit court to compel the city clerk in the city of Trenton, defendant Francis S. Thomas, and defendant members of the election commission, to accept his nominating petitions for the office of municipal judge in the city of Trenton or, in the alternative, to mandamus defendants restraining them from holding any election for the office of municipal judge on the 15th day of February, 1965, allegedly in compliance with Const 1963, art 2, § 5. This action arose when the defendant city clerk refused to accept plaintiff's nominating petitions on December 28, 1964, based on plaintiff's admission that he was then 71 years of age. The city clerk determined at that time that Const 1963, art 6, § 19 denied this judicial office to petitioner who was actually seeking re-election to the office because, as set forth in his affidavit, he would have attained the age of 70 prior to election. Mandamus was denied.
Plaintiff alleges that Const 1963, art 6, § 19 is applicable only to courts of record.
"Sec. 19. 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 and judges of courts of record must be persons who are licensed to practice law in this State. No person shall be elected or appointed to a judicial office after reaching the age of 70 years."
Plaintiff contends that the age limitation set forth in article 6, § 19 does not apply to the judicial office he seeks as it is not in a court of record. This Court cannot accept this argument for we find the language clear and unambiguous that the age qualification fixed by the framers of our 1963 Constitution was intended to include all judicial positions. A study of section 19 makes obvious the intent of the drafters of these constitutional provisions wherein they refer specifically to courts of record when placing restrictions upon or setting forth particular qualifications for an office and then stipulate judicial office when determining the matter of age limitation.
We go on to consider whether a municipal judge of the city of Trenton occupies a "State office" for purposes of nomination and election within the purview of Const 1963, art 2, § 5. If the office is not a "State office," then the time of the election is a matter of local concern and, this Court has been advised, the city charter for the city of Trenton provides in section 3.7 for a spring election. It is not disputed that article 2, § 5 relates only to elections for national, State, county, and township offices. It is further stipulated that the municipal court for the city of Trenton was established on November 20, 1961, under PA 1956, No 5 (CLS 1961, § 730.501 et seq., Stat Ann 1962 Rev § 27.3937[1] et seq.), and the justice court provided for in the city charter adopted on July 16, 1957, thus abolished.
Section 8 of the above act (CLS 1961, § 730.508, Stat Ann 1962 Rev § 27.3937[8]), provides in part:
"The qualifications, terms of office, time and manner of election, compensation, jurisdiction, powers and duties of the judges of the municipal court of any city affected by the provisions of this act, and the practice and procedure in such municipal courts, shall be governed by the provisions of existing laws relating to the justices of the peace in such cities, and to the practice and procedure in the courts of such justices of the peace." (Emphasis supplied.)
A review of Act No 5, supra, and the "home-rule act," PA 1909, No 279, § 28 (CLS 1961, § 117.28, Stat Ann 1963 Cum Supp § 5.2107), which provides authority for a city, by charter amendments, to abolish the justice court system and consolidate powers and duties into a single court makes obvious the fact that the time and manner of election of justices or judges of municipal courts have been prescribed in the charters of the respective cities of this State.
The municipal court of the city of Trenton is a statutory court which was in existence at the time the Michigan Constitution of 1963 became effective and thus retains its powers and jurisdiction except as provided by law until it is abolished. Const 1963, art 6, § 26, paragraph (2) states:
"Statutory courts in existence at the time this Constitution becomes effective shall retain their powers and jurisdiction, except as provided by law, until they are abolished by law."
The argument that because municipal courts are an integral part of the State judicial system, they must be State offices has been repudiated in this State. Justice OSTRANDER summarized the argument in Attorney General v. Bolton (1919), 206 Mich. 403, 412, saying:
"Assuming that justices of the peace are an integral part of the judicial system of this State, they are nevertheless local officers and their selection is matter purely of local concern. No one excepting those directly charged with their nomination and election have any possible interest in the subject of when or how their selection shall be brought about."
This Court can find nothing in the language of the present Constitution, legislative enactments, or rulings of our Courts to change our holding that in respect to nomination and election, the office of municipal judge is a local office and not a State office within Const 1963, art 2, § 5.
Judgment affirmed. No costs, a public question being involved.
LESINSKI, C.J., and J.H. GILLIS and WATTS, JJ., concurred.