elected. All such appointments and all votes given for any person so elected for any such office or appointment shall be void." It is manifest that there is something of a confusion in the use of the terms 'appointment,' 'votes' and 'elected' in this provision. The first sentence makes reference to civil 'appointment' only, while the second sentence goes further and says that all such 'appointments' and all 'votes' given for any person so 'elected' for any such office or appointment shall be void. Courts of various states have held that the terms 'election' and 'appointment' were synonymous under certain circumstances. People v. Langdom, 8 Cal., 1. State v. Compsom, 34 Oregon, 25, 54 Pacific, 349, 351. They have also held that the word 'appointment' might mean the designation of the result of a popular election. McPherson v. Blacker, 146 U. S., 1, 36 L. Ed., p. 69. Also that the word 'appointment' was sufficiently broad to include both election and designation by an executive authority. Pierce v. Guggenheimer, 60 N. Y. Supp. 703, 705. Also that the words 'election' and 'appointment' have a clearly distinctive meaning. State v. Williams, 60 Kan., 837, 58 Pacific, 476, 477. A careful reading of the above cases will show that the construction placed upon the words 'elect' and 'appoint' has been dependent upon the connection in which the words were used and not upon any inherent distinction between the two terms. We are furnished some light as to the meaning of these words as used in section 18 of article 4 of the constitution by decisions in the Supreme Court of this State. In the case of People v. Hurlburt, 24 Mich. 44 at p. 58, the court, speaking through Mr. Justice Christiancy, says: "The constitution does not seem to have made any clear distinction between the 'election' and 'appointment' of officers; and in section 18, article 4, the terms seem to be used as synonymous and what is usually or more properly termed the election' of a senator is there designated as an appointment.'" In the case of Ellis v. Lennon, 86 Mich. 468, 473, the purpose of this constitutional provision and similar provisions is said to be: "To prevent officers from using their official positions in the creation of offices for themselves, or for the appointment of themselves to place." In the case of Attorney General v. Common Council, 112 Mich., 145. In speaking of article 5 of section 16 of the constitution which provides that: "No person elected Governor or Lieutenant Governor shall be eligible to any office or appointment from the Legislature or either House thereof during the term for which he was elected. All votes for either of them for any such office shall be void." Mr. Justice Hooker says at page 154: "In the absence of authorities we should hesitate before saying that the constitutional convention contemplated that the Governor might be a sheriff or county clerk or supervisor or highway commissioner." These decisions are important as indicating the trend of the courts of this state as to the question under discussion and similar questions. Attempting to gather the intent of the framers of the constitution from the constitution itself we find that section 6 of article 4 provides: "That no person holding any office under the United States (or this state) or any county office except notaries public, officers of the militia and officers elected by townships shall be eligible to or have a seat in either House of the Legislature and all votes given for any such person shall be void." The words 'or this state' are here inserted in brackets for the reasons stated in Attorney General v. Detroit Common Council, 112 Mich., 145, 151. If we treat section 18 as referring to appointments only we have this anomalous situation, that a sheriff, county clerk or other officer included in the inhibition of section 6 of article 4 is ineligible to the Legislature, but the same person having been elected a member of the Legislature would, nevertheless, be eligible to any of the elective offices mentioned in section 6 of article 4. If, however, the word 'appointment' as used in the constitutional provision is given the comprehensive meaning suggested in People v. Hurlburt and other cases above cited, members of the Legislature are prohibited from holding both elective and appointive offices and holders of elective and appointive offices are prohibited from becoming members of the Legislature, thus making the inhibition uniform and reasonable in its application. This view of the construction of this provision is still further reenforced when we consider the object to be accomplished by the clause of the constitution under discussion. It is said of constitutional provisions of this nature that: "Their purpose is to preserve a pure public policy." Sec note to Atty. Gen. ex rel. Dust v. Oakman, Subdivision II a, 86 Am. Mechem Public Officers, sec. 76. And this intent can best be determined by reference to the constitution of 1835, Cooley's Constitutional Limitations, 7 Ed., p. 101. The constitution of 1835 provided as follows: "No member of the Legislature shall receive any civil appointment from the Governor and Senate or from the Legislature during the term for which he is elected." The constitution of 1850 changes this provision in the following particulars. It makes a member of the Legislature ineligible to the prohibited offices during his term. In addition it prohibits appointment by any other state authority. The clause all such appointments and all votes given for any person so elected for any such office or appointment shall be void' is added. It is apparent, therefore, that the con stitution of 1850 has entirely remodeled the provision contained in the constitution of 1835 and that the sentence in section 18 of article 4 was inserted for the purpose of remedying some mischief that had arisen under the constitution of 1835: It would seem to be apparent that the mischief sought to be remedied was that of members of the Legislature being chosen to another office during the term for which they were elected. This view is still further confirmed by an analysis of the powers of the Legislature under the constitution. The Legislature has the same right to increase the emoluments, abolish, extend the term, prescribe or limit the duties, increase or diminish the compensation subject to minor constitutional restrictions in the case of elective offices, that they have in the case of appointive offices, and the same considerations of public policy would seem to govern. The case under discussion furnishes an illustration of the extent of this power of the Legislature. The Legislature has already fixed the compensation, prescribed the method of election, the number of delegates, the limits of election districts and the time of service of the delegates to the convention. If called in extraordinary session for the purpose it is within their power to reconsider, amend and even repeal the law providing for this constitutional convention. In addition to this, under the provisions of article 12 of the constitution they have the sole right to impeach members of the constitutional convention. Further, it is possible that they may be called as members of the Legislature into extraordinary session of the Legislature while the constitutional convention is in session. These facts, however, might be said to be only grounds of incompatibility and as such would only result in the vacation of office of member of the Legislature by the acceptance of the office of delegate to the convention, but read in connection with the constitutional provision under discussion and the similar provisions of the constitution, and considering the constitutional duties imposed upon the Legislature, they seem to me to be important in arriving at the intention of the makers of the constitution as to the eligibility of members of the Legislature to a seat in the convention. In view of the language contained in section 18 of article 4 of the constitution and that of relative provisions, the trend of the decisions in our Supreme Court and the considerations that seem to me to have been in the minds of the makers of the constitution at the time of its adoption, I am of the opinion that a member of the Legislature is in eligible to a seat in the constitutional convention. Very respectfully yours, JNO. E. BIRD, CONSTITUTIONAL CONVENTION. Member of the legislature not eligible for appointment as sergeant at arms of the constitutional convention. Hon. N. W. Burdick, Mancelona, Michigan. July 17, 1907.. Dear Sir-I am in receipt of yours of the sixteenth instant, requesting the opinion of this Department as to whether, as a member of the Legislature, you would be eligible to an appointment as Sergeant at Arms of the Constitutional Convention. Section 18 of Article IV of the Constitution prohibits any member of the Legislature receiving a civil appointment from any State authority during the term for which he is elected. I am of the opinion that the Constitutional Convention is a State authority, within the meaning of this constitutional provision. Section 6 of Senate Enrolled Act No. 191, providing for the Constitutional Convention, provides for choosing secretaries, Sergeant at Arms, etc., by the Convention. I am clearly of the opinion that an appointment by the Convention, of a Sergeant at Arms, is a civil appointment, within the meaning of the constitutional inhibition, and, as a member of the Legislature, you would therefore be ineligible. Very respectfully yours, JNO. E. BIRD, CONSTITUTIONAL CONVENTION. Judge of probate and delegate to convention incompatible offices; the first is of the "legislative" and the judge of probate of the “judicial” branch of the government. Hon. Duncan A. Wayne, Gordonville, Michigan. July 17, 1907. My dear Sir-In compliance with your request for an opinion from this Department as to whether a Judge of Probate is qualified to hold a seat in the Constitutional Convention to be held in accordance with Senate Enrolled Act No. 191 of the Legislature of 1907, I beg leave to submit the following. It has been held that the office of delegate to the constitutional convention is a 'state office.' Fyfe v. Mosher, No. 310, decided July 15th, 1907. Being a State officer the office of delegate to the constitutional convention must necessarily fall within one of the three divisions of the state government, viz., legislative, executive or judicial. Constitution, Article 3, sec. 1. It seems clear that the office is a legislative office for the reason that the constitutional convention frames a constitution and in the form framed the document is submitted to the people for their approval or rejection in toto. In other words, the constitutional convention performs precisely the same functions as are performed by the State Leg islature in framing a constitutional amendment or a general banking law for submission to the people. On the other hand a Judge of Probate is a member of the judicial departmnt. Constitution, Article 6, sec. 13, Douvielle v. Manistee Supervisors, 40 Mich. 585, 588. Section 2 of Article 3 of the constitution of this state provides: "No person belonging to one department shall exercise the powers properly belonging to another, except in the cases expressly provided in this constitution." In referring to a similar provision in the constitution of the state of California the Supreme Court of that State used language which is especially applicable to the question herein involved. The court said: "Not only does the constitution forbid the exercising of functions. of one department by any other department, but it has gone further, and to secure the complete integrity of each has, by the 3rd article, expressly forbid persons charged with the powers of one from exercising duties belonging to any other department, from which it follows no duties except of a judicial character, can be conferred on the court of sessions, inasmuch as the officers composing these courts are persons charged by the constitution expressly with the performance of judicial duties." Burgoyne v. Board of Supervisors, 5 Cal., 9. In the case of People v. Sanderson, 30 Cal., p. 160, an information in quo warranto was filed to test an appointment of a justice of the Supreme Court to the office of trustee to the State Library and the Supreme Court said referring to the constitutional provision, substantially identical with section 2, Article 3 of our constitution: "This provision of the constitution, so far as it relates to the judicial department of the state, is in our judgment, eminently wise. One of the objects seems to have been to confine judges to the performance of judicial duties; another to secure them from entangling alliances with matters which they may be called upon to set in judgment; and another still to save them from the temptation to use their vantage ground of position and influence to gain for themselves positions and places from which judicial propriety should of itself induce them to refrain." It is manifest under these decisions that the offices of Judge of Probate and delegate to the constitutional convention are incompatible. This being true, an acceptance of the office as delegate to the constitutional convention would vacate the office of Judge of Probate. Atty. Gen. v. Detroit Common Council, 112 Mich. 145, A Judge of Probate who was elected to and accepted the office of delegate to the constitutional convention would not be entitled to draw his salary nor to receive any of the emoluments and prequisities of a Judge of Probate. Very respectively yours, JNO. E. BIRD, Attorney General. |