Burton v. Koch

Ostrander, J. Act No. 164, Pub. Acts 1881, contains, as its title indicates, many different provisions relating to public instruction and primary schools. It is a consolidation of the laws relating to these important subjects. Many of its provisions had been in force since 1846. It is divided into 13 chapters, each subdivided into several sections. Each of its provisions applies, in terms, to all school districts in the State. It goes without saying that, notwithstanding the generality of its provisions, the legislature had authority to erect school districts by special enactment, and that in such districts the provisions of such special enactment would be controlling. But upon this point the legislature left no room for doubt. The con253 eluding section of the last chapter (section 11) recites the acts and parts of acts repealed, and the next preceding section (10) reads: “All provisions of this act shall apply and be in force in every school district, township, city and village in this State, except such as may be inconsistent with the direct provisions of some special enactment of the legislature.” This last-mentioned qualifying section has the significance, also, of a declaration that, when said Act No. 164 was passed, there were in existence school districts created and governed by special legislative enactments. The general subject of chapter 2 of Act No. 164 is “formation, alteration, meetings, and powers of districts,” and section 17 thereof, not as enacted, but as amended in 1909 (Act No. 83), reads as follows: “In all school elections every citizen of the United States of the age of twenty-one years, male or female, who owns property which is assessed for school taxes in the district, or who is the parent or legal guardian of any child of school age included in the school census of said district, and who has resided in said district three months next preceding such election, shall be a qualified voter. On the question of voting school taxes, every citizen of the United States of the age of twenty-one years, male or female, who owns property which is assessed for school taxes in the district, and who has resided in the district, as above stated, shall be a qualified voter: Provided, that the purchaser of land upon a land contract, who actually pays the taxes upon such land and resides thereon, may vote upon all questions; and where a husband and wife own property jointly and same is assessed for school taxes in the school district, each may, if otherwise qualified, vote upon all questions including the question of raising money.” The situation being that because of various local acts — special enactments — the provisions of section 17 of chapter 2 were not controlling in all school dis [254] tricts, and that in some districts persons were voters who would be excluded in others, the legislature, by Act No. 146 of the Public Acts of 1913, undertook to establish 'uniform qualifications for voters in all school districts of the State. No one can reasonably be in any doubt about this. How should the legislative purpose be effected? There were, perhaps, several ways. One way is suggested in the opinion of Mr. Justice Brooke. But clearly that is not the only way of indicating the legislative purpose. Indeed, it is not the best way, since it is evident that the legislature intended there should be no doubt about the application of the amended law to every school district in the State. Intending to establish uniform qualifications for voters, the legislature by Act No. 146 of the Public Acts of 1913, instead of amending said section 10 of chapter 13 by way of a proviso or otherwise, amended section 17 of chapter 2 so as to indicate precisely the purpose to be accomplished. It removed, by the amendment, the qualifying effect of said section 10 with respect to the qualifications of voters as plainly as though it had amended some other section or had added a new section. Where before, upon reading the two sections together, we found the universal application of said section 17 limited and qualified by said section 10, we now find it unqualified. It made it plain, by the words of the amendment, that no special legislation should be interposed to qualify the general legislation it was enacting. And no other method of expressing the legislative purpose could make that purpose more certain than it is made. My Brother Brooke says, and in view of the reasoning he indulges he is obliged to say, that section 17 has not been amended, and he bases his contention upon the fact that the words added to the section by the legislature add nothing to the previous sweeping language of the section. In terms it has always ap [255] plied to all school districts. It does no more now. This seems to me to be a curious begging of the point at issue. Certainly words have been added to the section, and this was an amendment of it, whatever the effect of it may be. Certainly its apparent sweeping application has always before been limited by said section 10. Certainly it was, before amendment, read with said section 10 to discover its meaning and effect. Just as certainly, when now read with that section, it has a different meaning and effect from what it had before. We ought not to confuse the efféet of the amend.ment with the constitutional duty of the legislature to indicate an amendment in a particular way. In effect, every special'enactment containing provisions unlike those now found in said section 17 is amended or repealed. It is not a new thing to have many existing legislative enactments thus affected by new legislation. The section amended was re-enacted and republished at length as the Constitution provides. The Constitution has been precisely obeyed and the effect of the amendment is, and was intended to be (and no one can misunderstand the meaning of the act as amended), to provide uniform qualifications for voters in all school districts of the State. I come now to consider Act No. 251, Public Acts of 1913. It is inartificialiy drawn, a„nd contains, apparently, inconsistent provisions. An analysis leaves little or no doubt concerning the legislative purpose, or the real meaning of the law. It is a general law, based upon a classification of the school districts of the State according to population. People v. Brazee, 183 Mich. 259 (149 N. W. 1053); Hayes v. Auditor General, ante, 39 (150 N. W. 331). The expressed purpose is that, in districts coextensive with a city having a population of 250,000 or more the board of education shall consist of seven members elected [256] at large by the electors of the whole district qualified to vote for school inspectors. It provides for a referendum to determine whether it shall or shall not be effective in a particular district. This was unnecessary, because the act is not local in character. The referendum is to the electors of the school district. Who they are is ascertained from section 17 of Act No. 146, Pub. Acts 1913, hereinbefore considered. The electors of a school district may be designated by the legislature, and their qualifications need not be identical with those of constitutional electors. Belles v. Burr, 76 Mich. 1 (43 N. W. 24); Pingree v. Board of Education, 99 Mich. 404 (58 N. W. 333). See, also, Attorney General v. Lowrey, 131 Mich. 639 (92 N. W. 289); Perrizo v. Kesler, 93 Mich. 280 (53 N. W. 391); Menton v. Cook, 147 Mich. 540 (111 N. W. 94); Attorney General v. Board of Education, 154 Mich. 584 (118 N. W. 606); Board of Education v. Smith, 183 Mich. 428 (149 N. W. 978), upon the point that the legislature under the Constitution has substantially complete control over school districts. As the legislature might have omitted the referendum, it does not nullify the law that it is limited to persons who are qualified to' vote upon school matters — persons who will elect the school officers under the law. It is true that section 4 of the act refers in one place to a majority of electors having qualifications to vote at elections for school inspectors and in another place to a majority of the qualified electors of the city, meaning, evidently, in both provisions, the same electorate. Considering that the persons qualified to vote according to the act are those possessing the qualifications to vote for school inspectors, the later reference in the same section to qualified electors of the city “voting thereon” may be given a meaning in harmony with the first provision and the general purpose of the act. [257] The court has nothing to do with the wisdom of this legislation. The legislative power, with certain constitutional limitations, is vested elsewhere. If the court cannot clearly see that, in the exercise of the power, constitutional restrictions have been exceeded, the law must be sustained. For the reasons expressed, I am of opinion that the act is valid. Kuhn, Stone, Bird, Moore, and Steers, JJ., concurred with Ostrander, J.