Opinion
Calendar No. 12, Docket No. 52,058.
Decided July 20, 1968.
Complaint by James F. Schell and others against Arthur J. Salley, Waterford Township Clerk, for a writ of mandamus to compel defendant to accept plaintiffs' nominating petitions and enforce conduct of a primary and general election for township supervisor, clerk, and treasurer. Writ granted. Defendant appeals. Reversed.
Richard L. Murphy and Gerald E. McNally, for plaintiffs.
Booth, Patterson, Hays Karlstrom, for defendant. Amicus Curiae: Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Russell A. Searl, Assistant Attorney General.
The present supervisor, clerk, and treasurer of Oakland county's Waterford township were elected in November of 1966 for the statutory term fixed by section 362 of PA 1954, No 116, then most recently amended by immediately effective PA 1966, No 44. By PA 1967, No 215, section 362 was amended again to provide deferment of the date of commencement of the term of such officers from April 10 to November 20 next following their election, and to provide — controversially here:
See CLS 1961, § 168.362, as amended (Stat Ann 1965 Cum Supp § 6.1362, as amended). — REPORTER.
"Only township officers who were elected by the people in a general election for 2 years in 1966 shall serve until November 20, 1970."
The quoted provision embraced, of course, the mentioned supervisor, clerk, and treasurer of Waterford township.
April 26, 1968, plaintiffs Schell, Daly, and Olsen submitted to the township clerk petitions nominating them respectively for primary election to the offices of Waterford township supervisor, clerk, and treasurer at the regular primary election to be held August 6, 1968 (PA 1954, No 116, § 534, as amended by PA 1963 [2d Ex Sess], No 57 [MCLA § 168.534, Stat Ann 1968 Cum Supp § 6.1534]). The clerk refused to accept or act upon such petitions, alleging that, by the 1967 amendment of section 362, no primary or general election to the 3 offices would or could be held in 1968.
The issue was brought promptly into the Oakland circuit by "action in the nature of mandamus" to compel acceptance of plaintiffs' said nominating petitions and enforce conduct of the primary and general elections called for thereby. Issue having been joined, heard, and submitted, the circuit judge ruled that the quoted provision of the 1967 amendment was and is invalid for these reasons (judgment entered May 6, 1968):
"It is adjudged and determined that the legislature of the State of Michigan lacked constitutional power to extend the terms of the township officers elected in November 1966 following their election beyond the date on which the terms for which they were elected expire.
"It is further adjudged and determined that those provisions of PA 1967, No 215, which purport to extend the terms of office of the supervisor, clerk, and treasurer of said township who were elected in 1966 beyond April 10, 1969 are unconstitutional and void."
The defendant clerk was ordered to proceed accordingly. Upon emergency application to this Court for leave to appeal, filed May 27 and supported by the attorney general amicus, our order entered granting review. The order directed that all additional briefs and appendices be filed not later than June 25, 1968, "whereupon the appealed cause will be deemed submitted for meritorious decision."
Appellees' presentation of the reviewed question is rhetoric a bit overdone. The question really is whether the 1967 amendment of section 362 unconstitutionally extended the term of the 3 incumbent township officers after they had been elected for the regular 2-year term. We hold it did not and point particularly to the currently preserved provision that "Each township officer shall hold office until his successor is elected and qualified." See said section 362 in PA 1965, No 4; in PA 1966, No 44, and in PA 1967, No 215; also Const 1963, sched § 3.
The question, stated by appellees:
"Can the Michigan legislature by the passage of PA 215, 1967, effectively destroy the elective nature of the constitutional offices of Waterford township supervisor, clerk, and treasurer by granting to the incumbents an additional 18 months to their 2-year elected term?"
The attorney general stands for application to the restated question of the rule and reasoning which this Court wrote for Common Council of Detroit v. Schmid (1901), 128 Mich. 379, 389-394. So does today's majority of the Court. The attorney general proceeds:
"There is no question but that the general rule forbids extending the term of office of an elective officer following his election. However this Court has recognized and upheld by its decisions exceptions to this general rule and has cited with approval decisions by the courts of other States upholding statutory provisions adopted for the primary purpose of changing the date of election, date of commencement, or the length of the term, of elective officials.
"A number of those decisions from other jurisdictions are cited in the opinion of this Court in Common Council of Detroit v. Schmid (1901), 128 Mich. 379, where this Court upheld the validity of a statute providing for biennial city elections commencing in 1902 in lieu of annual elections and specifying that no election be held in 1901.
"Of similar import was the decision in Doyle v. Election Commission of City of Detroit (1933), 261 Mich. 546 upholding the constitutionality of PA 1931, No 332, by which the terms of judges of the common pleas court of the city of Detroit were extended from 4 to 6 years, and providing that judges previously elected for 4-year terms would not have to run for re-election for an additional 2 years."
As in Schmid these incumbent township officers were not elected just for a time-exact term. They were elected for a 2-year term plus such time as might lawfully elapse prior to the election and qualification of their successors. Aside from this, considering the broad authority which has always been vested with the legislative branch (broader than ever now) to enact and administer election laws, including the time and manner thereof, it does not matter that the amendment of 1967 was adopted after the election of these incumbent officers, just so long as the effected extension of their 2-year terms is not shown as having been enacted "for such unreasonable time as to raise the presumption of a design to deprive the office of its elective character." ( Schmid, 393.) Here there is no hint, nor could there be, of any such design.
Const 1963, art 2, § 4. The constitutional convention's "Address," set forth below new section 4, opens with this introductory sentence:
"This is a revision of section 8, article 3, of the present Constitution and vests in the legislature full authority over election administration, subject to other provisions of this Constitution and to the United States Constitution and laws."
The well-considered opinion of Schmid is commended for consideration when any enactment postponing the time of an election is questioned for constitutional validity. That opinion calls for reversal of the circuit court's judgment and entry by that court of a new judgment dismissing the instant complaint. It is so ordered. No costs.
DETHMERS, C.J. and BLACK, T.M. KAVANAGH, O'HARA, and T.E. BRENNAN, JJ., concurred.
The Constitution of 1963 took effect on January 1, 1964. Prior thereto, the township offices of supervisor, clerk, and treasurer were filled for a term of two years at an election on the first Monday of April in each odd-numbered year. Const 1908, art 8, § 18; CLS 1961, §§ 168.358, 168.362 (Stat Ann 1956 Rev §§ 6.1358, 6.1362). The designated township offices were last so filled at the April elections in 1963.
The Constitution of 1963 continued the township offices of supervisor, clerk, and treasurer but specified the terms shall be not less than two years nor more than four years as prescribed by law. Const 1963, art 7, § 18. The 1963 Constitution, however, changed the time for holding township and other elections to the first Tuesday after the first Monday in November in each even-numbered year, thereby eliminating the biennial spring election. Art 2, § 5.
The problem of how to make the transition from spring to fall elections was first dealt with by the attorney general on October 17, 1963, when he issued opinion No 4201 to the chairman of the elections subcommittee on constitutional implementation, house of representatives, advising that the first election of county officers under the Constitution of 1963 was to be held at the general election in November of 1964. OAG 1963-1964, page 206. On April 22, 1964, he reached a similar conclusion as to the time to hold the first election of constitutional township officers. OAG 1963-1964, page 378, opinion No 4316. In that opinion the attorney general also advised that the legislature was empowered to amend the Michigan election law to provide that the constitutional township officers elected at the general November election in 1964 shall begin their terms of office on a date certain in April of 1965, but that they must be elected for terms of either two or four years (p 381). The attorney general stated that the legislature could conform the time of taking office by township officials to that of other local governmental officers by providing that township officers elected in November 1964 should hold office until November 30, 1968, or December 31, 1968.
In 1965, the November 1964 elections having passed, the legislature passed PA 1965, No 4, amending section 362 of the election law to provide that all township officers except justices of the peace shall take office at 12 noon on April 10 next following their election, the provision to apply in 1965 only. The term of office was left at two years.
PA 1954, No 116, § 362 (See CLS 1956, § 168.362 [Stat Ann 1955 Cum Supp § 6.1362]). — REPORTER.
In 1966, by PA 1966, No 44, effective June 2, 1966, the legislature amended section 362 of the election law to provide without restriction that all township officers shall take office at 12 noon on April 10 next following their election. In 1967, by PA 1967, No 215, the legislature again amended section 362 of the election law to provide that all township officers shall take office at 12 noon on November 20 next following their election and that "only township officers who were elected by the people in a general election for 2 years in 1966 shall serve until November 20, 1970."
The solution to the problem of overriding terms of incumbent township officers who had been elected in April of 1963, of transition from spring to fall elections and of having township officials take office shortly after their election in the fall has been handled piecemeal by the legislature over a period of four years. I agree that the schedule of the 1963 Constitution contemplates a transitional period of officeholding where requisite to effectuate changes brought about by new provisions of that Constitution. I think the legislature has reached the time limit of the transitional period for implementing legislation under the Constitution of 1963. I vote to uphold the legislation here challenged but I do not accept this decision as a binding precedent for future legislative action.
The legislature attempted to deal with it in the Second Extra Session of 1963. See the Attorney General's opinion No 4316, supra, pp 379-380.
I concur in reversal and the entry of a new judgment dismissing the complaint but limit my decision to the facts of this case.
KELLY, J., took no part in the decision of this case.