City of Gaylord v. Gaylord City Clerk

Souris, J.

(dissenting). We are asked in this proceeding 1 to determine the constitutionality of the industrial development revenue bond act of 1963, PA 1963, No 62. 2 In addition, we are asked to pass upon the validity, under Act No 62 and other pertinent statutory provisions, of certain agreements proposed to be entered into between the city of Gaylord and the United States Plywood Corporation, a function usually performed, at least before execution of such agreements, by private attorneys engaged and paid for such professional service.

At stake in this proceeding is Michigan’s effort to match other States’ financial inducements to private industrial enterprises to locate new plants within their borders. The post-World War II dispersal of manufacturing establishments from the highly industrialized States, like Michigan, to those States which previously were predominantly agricultural, is unpleasantly familiar recent history in this State. So, too, are the techniques by which other States have sought to accelerate artificially that process of industrial decentralization. By Act No 62 our legislature apparently decided that Michi *326 gan should add to its arsenal of weapons for use in this competition among the States for industrial plants. The new weapon authorized by Act No 62 is the tax-exempt status, under section 103(a) (1) of the internal revenue code, 3 of interest on the obligations of a State and its political subdivisions.

What Act No 62 does, in its practical effect, is to authorize municipalities to grant favored private enterprises the benefit of this tax exemption for the purpose of financing their industrial development at costs less than the private financial market would charge. It works this way: If United States Plywood were considering erecting a plant at Gay-lord, to be financed by traditional borrowing methods at prevailing interest rates, the private lenders would charge Plywood interest at a rate sufficiently high to reflect the fact that they, the lenders, would have to pay Federal income taxes on the interest received from Plywood on its borrowed indebtedness. If the private lenders were not obliged to pay Federal income tax on the interest earned from such loans, it is reasonable to conclude that they would charge a rate of interest lower than is charged when such tax is payable thereon and, consequently, the borrower’s financing costs would be lower correspondingly. Act No 62 provides the means by which a municipality, like Gaylord, can reduce the borrowing costs of a favored industrial concern, like Plywood, by borrowing the money itself at lower interest rates than could Plywood, since receipt of interest income on Gaylord’s obligations is tax free, and, in turn, by “loaning” that money to Plywood *327 at the same low rate of interest Gaylord itself must pay.

While the act does not expressly authorize a municipality to “loan” money to a private enterprise, the practical effect of what is authorized to be done is exactly that. Instead of simply loaning Plywood an amount in cash equal to Gaylord’s borrowing, and at the same interest rate, for Plywood’s use in constructing a plant near Gaylord, the act requires that Gaylord use the proceeds of its borrowing to acquire a plant site for lease or sale, or some combination of both, to Plywood at a rental or purchase price adequate, but no greater than necessary, to permit Gaylord to retire its indebtedness as principal and interest thereon become due. In this fashion the act avoids the appearance, at least, of State government’s direct entry into the field of private industrial financing, traditionally regarded in this country to be beyond the permissible scope of State governmental powers.

The question then becomes, did the legislature have the constitutional power to authorize municipalities to enter into such transactions? The Court’s decision, from which I dissent, is that it did. While my dissent is based upon technical deficiencies in this proceeding which, as I shall elaborate hereafter, preclude this Court from authoritative determination of the constitutionality of Act No 62, I regret that the majority’s opinion does not consider the nature of the power granted municipalities beyond the superficial form in which it is cast by the act. The fact is that none of the parties, not even defendant, who denies the validity of the act, has included in the briefs filed in this Court any analysis of the act as an integrated whole. Instead, we are expected to pronounce a far-reaching constitutional judgment of an act the *328 éssential nature of which is ignored by the parties while its sections are described as if completely independent one from the other, much as a blind man would describe an elephant upon his first encounter with one by describing what he feels of its trunk, its legs and its tail. Not infrequently appellate courts’ judgment errors are attributable to just such inadequacies of counsel’s arguments and briefs.

I.

A.

I dissent from the Court’s decision of the constitutional issue simply because in my view the issue has not been presented in its proper constitutional context by either of the original parties in this case nor by the attorney general, who intervened after the case was at issue, technically, in the trial court. My objection to determination of the constitutionality of Act No 62 is that all of the parties, and the Court’s majority, consider that issue exclusively in the light of the limitations upon legislative and municipal power contained in our Constitution of 1963, the provisions of which did not become effective until eight months following the legislative adoption and gubernatorial approval of Act No 62, which was ordered by the legislature to be given immediate effect on May 8, 1963. It is my opinion that the constitutional validity of Act No 62 must, as a matter of uniform and manifestly correct judicial practice, at least initially be judged by the limitations contained in our Constitution of 1908, the constitutional charter in effect when the legislature undertook to adopt Act No 62.

There is no room to quibble over this principle of law, our Court having stated and applied it, without deviation, until now. It is so fundamental *329 and elementary a principle that rarely need it be expounded at length. In Dewar v. People (1879), 40 Mich 401 (29 Am Rep 545), Mr. Justice Cooley writing for the Court, the Court set aside a conviction for keeping a saloon without a license, contrary to a city ordinance. The legislature had granted the city a charter with a provision authorizing it to license saloons, restaurants and billiard rooms or to prohibit any of them. When the charter was granted our Constitution of 1850 (art 4, § 47), forbade the legislature from authorizing the grant of licenses for the sale of intoxicating liquors, but that section was repealed by the people three years later. Following such repeal, the city enacted the ordinance which Dewar was charged to have violated, the sole authority for the ordinance being the city’s charter provision mentioned above. Justice Cooley concluded that, since the Constitution had forbade the legislature to authorize the grant of licenses for the sale of intoxicants when it had granted the city’s charter, the charter’s grant of authority to issue licenses could not be construed then, nor at the time of decision after repeal of the prohibitory constitutional provision, to permit licensing of sale of intoxicants. While it would have sufficed for purpose of decision to base his conclusion upon the finding that the legislature did not intend when it granted the charter to authorize the grant of licenses for the sale of intoxicants, Justice Cooley also noted that the charter granted by the legislature was the same as it was when adopted “and it cannot be affected and enlarged by any subsequent change of the constitution.” 40 Mich 401, 403 .

In Village of Mount Pleasant v. Vansice (1880), 43 Mich 361 (38 Am Rep 193), a legislative act authorized villages to license “saloons, taverns and *330 eating-hoüs&s.” As in Dewar, supra, this statute was enacted while the 1850 Constitution contained the provision forbidding the legislature to authorize the grant of licenses for the sale of intoxicants. After repeal of that provision, the village adopted an ordinance, ostensibly by authority of the statute mentioned, requiring a license for the sale of intoxicants. Mr. Justice Graves, writing for the same distinguished Court which decided Dewar, supra, and which consisted of Justices Cooley, Campbell, Marston and Graves, had the following to say in application of the principle our majority refuses to apply today (pp 363, 364):

“If the legislature had the purpose to confer the power [to license sale of intoxicants], and designed that the terms used should have the meaning now claimed for them, the design was in conflict with the Constitution as it then existed, and the sense and scope of the provision were so far null and void. They never were of any force, and were as-though they had not been expressed or involved in the language, and the words were left to carry a sense in harmony with the Constitution. The meaning claimed not having been enacted in the passage of the law, because the Constitution forbade it, it has not become a law merely through a change of the Constitution and the lapse of time. Dewar v. People, 40 Mich 401 ; Ludlow v. Hardy, 38 Mich 690 .”

In 1846, a statute of this State purported to authorize the governor to remove certain State officers, for official misconduct or habitual or wilful neglect of duty, during recesses of the legislature. Acting pursuant to that statute, the governor removed a trustee of a State institution and, as also authorized by the statute, appointed a successor to serve during the legislature’s recess. Upon the trustee’s refusal to vacate his office, a quo warranto *331 suit was instituted in the Supreme Court in behalf of the successor appointee. This Court, in Dullam v. Willson (1884), 53 Mich 392 (51 Am Rep 128), entered judgment for the respondent trustee on the ground that the statute pursuant to which the governor purported to act was invalid because it violated the Constitution of 1835, in effect when the statute was enacted, notwithstanding that our Constitution of 1850, as amended in 1862, expressly authorized the governor to exercise the power of removal such as the legislature had purported to grant him in the statute of 1846. In rendering its decision, this Court said, at p 398:

“The statute furnishes no valid basis for the power of removal, because repugnant to the Constitution of 1835, which vested no judicial power in the governor. The statute, being void, was not validated by the amendment of 1862, and the question [the validity of the governor’s summary removal of respondent] depends solely upon the constitutional amendment of 1862.”

In Seneca Mining Company v. Secretary of State (1890), 82 Mich 573 (9 LRA 770), the Court considered and rejected the argument that a constitutional amendment adopted by the people in April of 1889 did not take effect immediately, but only at the commencement of the year 1890. The issue was important because in June of 1889, after the constitutional amendment had been approved by the people and pursuant to the power granted therein, the legislature enacted a statute authorizing certain mining companies, like plaintiff, to extend their corporate lives beyond 30 years. Upon plaintiff’s attempt to extend its existence, and the secretary of state’s refusal to file the required amended articles of association, plaintiff sought our writ of mandamus. The Court held that the constitu *332 tional amendment became effective, that is, it attained the force and effect of law, in April of 1889 when adopted by the people and, therefore, that the legislature possessed the constitutional power to act as it did in June of that year. In rejecting the argument advanced by the secretary of state, the Court stated the fundamental proposition of law our majority rejects today in the following language:

“For, if the law-making power is prohibited from enacting a law, and in disregard of such prohibition it goes through the forms of enacting a law, such enactment is of no more force or validity than a piece of blank paper, and is utterly void, and power subsequently conferred upon the legislature by an amendment of the Constitution does not have a retroactive effect, and give validity to such void law.” 82 Mich 573, 576, 577 . (Emphasis added.)

In People v. Frencavage (1925), 233 Mich 369 , defendant challenged the validity of an 1861 legislative enactment relating to the revocation of conditional pardons. Plis theory was that the legislature did not have authority to enact such law prior to a 1902 amendment of the Constitution of 1850. The Court agreed by stating the obvious:

“If these provisions were beyond the power of the legislature to enact at the time they were enacted, it is obvious that a change in the Constitution (PA 1903, p 452) did not make them valid without reenactment.” 233 Mich 369, 371, 372 .

What these cases mean to me is that the legislature’s acts must be judged in the light of the powers possessed by the legislature at the time it undertakes to act. With due regard for the fact that the legislative power of a State, unlike the legislative power of congress, does not depend upon ex *333 press constitutional grant but, rather, is as broad and comprehensive as necessary to accomplish the legitimate purposes of government except as the people may have imposed restraints upon such power by constitutional limitations (Sears v. Cottrell [1858], 5 Mich 251, 257-259 , and Young v. City of Ann Arbor [1934], 267 Mich 241, 243 ), the Constitution in force and effect at the time the legislature acts must be examined to determine whether the people in fact have forbidden the legislature so to act. If they have, the legislative act is a nullity, a void, a failure of creation; it is stillborn, dead at birth; it lacks the force of law; it is impotent as a source of rights or of obligations; it signifies an act of futility as devoid of effect as if never attempted; it is no more effective as a law than is a piece of blank paper.

This is not a principle of law unique to Michigan. All courts in other jurisdictions which squarely have considered the issue recognize the validity of the principle. See the cases cited and discussed in the annotation, “Remand or suspension of constitutional limitations as affecting statute previously enacted’’, 171 ALR 1070 .

Like most other legal principles, this one has its limitations, but none is applicable here. When a legislature purports' to enact a statute the subject matter of which is beyond the legislative power of the State as limited by the State’s people in their Constitution, the principle is applicable and the statute is void ab initio. Thus it is that in this case the limitations upon legislative power contained in the 1908 Constitution should be examined to determine whether what the legislature attempted in Act No 62 to authorize municipalities to do was beyond the legislature’s power. If it were beyond the powers of the legislature under the 1908 Constitution, *334 our judicial duty would end with our declaration of the act’s invalidity. Only if it were not beyond such powers, would Act No 62 then have to be tested for its current validity against the limitations contained in the 1963 Constitution.

However, there are circumstances when courts sometimes give legal effect to legislative acts which violate constitutional provisions. For example, in Toole v. State Board of Dentistry (1942), 300 Mich 180 , this Court ruled that a referendum election upon a statute regulating the practice of dentistry effectively approved the statute notwithstanding failure to comply with a then applicable constitutional requirement that on referendum the full text of the statute be printed on the ballot. While the paper ballots used at the referendum election complied with the constitutional requirement, the full text of the statute was not printed on voting machine ballots. The Court’s decision rested heavily upon the overwhelming approval given the statute by the electorate, and upon the fact that even without the favorable votes cast on the voting machines, the statute would have been approved by a very substantial margin. Also articulated as a reason for the Court’s decision was the traditional reluctance of courts to disfranchise voters for the mistakes of election officials. In my view of the Toole Case, it must have been significant to the Court that the legislative act challenged was, in practical effect, an enactment by the people themselves. It is not likely, in my opinion, that the Court would have countenanced the legislature’s failure to comply with a like procedural requirement of the Constitution. Judicial willingness to give legal effect to official actions taken in violation of a constitutional provision, as distinguished from legislative enactments beyond the scope of the legislature’s power, arise *335 most frequently, as in the Toole Case, when elections are involved. For another example, see Adsit v. Secretary of State (1891) 84 Mich 420 (11 LRA 534).

There is another circumstance in which the void ab initio principle is not fully applicable. When a legislative enactment is unconstitutional as applied to certain parties or certain facts, but otherwise within the powers of the legislative body to enact, then the enactment generally is held to be void only when so applied and otherwise is given legal effect. See Dequindre Development Co. v. Charter Township of Warren (1960), 359 Mich 634 , and Schaefer v. City of East Detroit (1960), 360 Mich 536 . We need not pause long on this limitation upon the principle, for in this case of Gaylord, our inquiry should be whether the subject matter of Act No 62 was entirely beyond the constitutional capacity of the legislature and not whether the act as sought to be utilized in Gaylord contravenes constitutional limitations.

Finally, there is another exception to the principle, which exception is invoked, belatedly and inaptly, here. The exception is that the people themselves, by express constitutional enactment or by necessary implication therefrom, can validate a prior legislative enactment which exceeded the legislature’s constitutional power. For a thoughtful discussion of this exception, see Field, The Effect of an Unconstitutional Statute (1935), pp 288-294. Its application depends upon the people’s intent as expressed in the subsequent constitutional enactment. I have found no cases in which the courts have refused to apply the exception when the people’s intent to validate a prior unconstitutional statute is stated clearly. The difficulty arises when the people’s intent is not stated clearly.

*336 It is now claimed that article 3, § 7 of the 1963 Constitution 4 signifies the people’s intent to validate all prior unconstitutional statutes the provisions of which are not repugnant to the new Constitution and that, therefore, even if it he assumed that Act No 62 violated the 1908 Constitution, it now has the effect of law if it does not contravene the 1963 Constitution. This claim I will examine with some care later in this opinion. Suffice to note now that, while I recognize the exception to the general principle, in my opinion article 3, § 7 has nothing whatever to do with that exception.

Only in the event that the legislature had the constitutional power to do what it attempted in Act No 62, and that must be determined from the Constitution of 1908, will it become appropriate for us to consider, in that event, the continuing constitutional validity of Act No 62 under the Constitution of 1963. If we were to determine, on the other hand, that Act No 62 was beyond the power of the legislature to enact, as those powers were then limited by the Constitution of 1908, and thus invalid, the Constitution of 1963 cannot be construed to breathe life into an act theretofore dead. What the parties hereto would have us do, and our majority unwisely complies, is to skip the initial and crucial step of testing the constitutional validity of Act No 62 by the only constitutional instrument applicable at the moment of the act’s purported creation — the Constitution of 1908. By this error of judgment to which our majority has been led, the legislature, our municipal governments, industrial concerns and bond buyers may be induced to rely upon our current majority’s declaration of validity of Act No 62 only to discover, months or *337 years hence when another suit challenges the act’s validity when enacted, that their reliance was misplaced because our majority then might conclude that, indeed, our Constitution of 1908 forebade what the legislature sought to do in Act No 62.

After submission of this proceeding for our decision, when we discovered that none of the questions certified to us by the circuit judge and briefed by the parties 5 concerned the applicability of our Constitution of 1908 to the validity of Act No 62, a majority of my Brethren rejected my motion to remand the cause to the trial court for supplementation of the certified questions and the parties’ briefs thereon to include questions concerning the validity of Act No 62 in light of the limitations upon legislative power contained in article 8, §§20 and 22 through 25, inclusive, and article 10, §§ 9, 12 through 14, inclusive, and 20 of the Constitution of 1908. Instead, the Court summoned counsel for the parties to appear before the Court on July 19 last to consider whether the cause should be remanded for such purpose.

At the hearing on July 19, counsel for the city argued that article 3, § 7 of the 1963 Constitution 6 had the effect of validating Act No 62 even if it were assumed arguendo that the act was violative of the *338 1908 Constitution, his theory being, apparently, that not having been declared unconstitutional prior to the effective date of the 1963 Constitution, Act No 62 was a statute then “in force” and, therefore, it need now be tested against only the 1963 Constitution’s limitations. He conceded he had no authority, from Michigan or any other jurisdiction with comparable constitutional provisions, to support his argument. The argument is not persuasive logically, for it assumes that a legislative act beyond the legislature’s constitutional authority has sufficient vitality to be “in force” until judicially declared invalid. This simply is not true for an unconstitutional statute is invalid ab initio, a nullity from its inception, precisely because the legislature had no power to enact it. This Court put it trenchantly in Adsit v. Secretary of State (1891), 84 Mich 420, at 429 , “An unconstitutional law is no law.”

Article 3, § 7 is not unique to Michigan’s Constitution of 1963. As noted in footnote 6, supra, comparable provisions have appeared in all three of our predecessor Constitutions and, as well, are found in the Constitutions of other States. Such a provision was involved in the decision of the Arkansas supreme court in Henry v. State (1871) 26 Ark 523 . In that case defendants appealed a conviction for keeping a grocery without procuring a license and paying a tax therefor required by statute. One of their claims on appeal was that the power to license and tax a grocery-keeper did not exist when the statute was enacted; that such power was first granted the legislature by a new Constitution adopted subsequent to the statute; and, therefore, because the legislature failed to reenact the statute after adoption of the new Constitution, that the statute was void because beyond the legislative power at the time of its enactment. The Ar *339 kansas supreme court made short shrift of the claim, noting that the legislature did, indeed, have the power to license grocers and to exact payment therefor, even before adoption of the new Constitution, since that power was not prohibited to the legislature by the prior Constitution. Since the statute was within the legislature’s power and was, therefore, valid, the provision of the new Arkansas Constitution, similar to our article 3, § 7, would be applicable. That provided that all laws in force before the adoption of the Constitution and not in conflict with its terms, were to continue in force.

Such application of the constitutional language is eminently correct. It gives to the language no greater meaning than the average person, not encumbered by the labyrinthian complexities of the lawyer’s thought processes, would give it. The language, as it surely was intended by the people whose votes adopted it, accomplished only the purpose of providing continuity of the laws in force under the old Constitution upon the adoption of a new Constitution so long as not in conflict with the latter. It is, after all, the judiciary’s function in interpreting constitutional language to find the intent of the people who adopted it by their votes. See, for example, Bacon v. Kent-Ottawa Metropolitan Water Authority (1958), 354 Mich 159, 170, 171 , and Lockwood v. Commissioner of Revenue (1959), 357 Mich 517, 554, 555 .

Yet, today, it is baldly asserted that article 3, § 7 means much more than the Arkansas court said that State’s counterpart provision meant, that it means that even statutes clearly void under the old Constitution are somehow given life if they could be enacted validly under the new Constitution — and without the need for any further legislative action whatever! And this bald assertion is made to this Court, not in the form of a written brief, but only *340 in oral argument, without so much as a passing-reference to what the people may have intended in adopting article 3, § 7 and without so much as a single citation of authority of any kind in support.

■ Who can argue, seriously, that the people intended by article 3, § 7 to validate any and all void statutes not repugnant to the 1963 Constitution? There is not so much as a suggestion in the record of the constitutional convention that the convention delegates, even, so intended. The argument may appeal to desperate litigants and to Supreme Court Justices intrigued by the practical advantages of limiting their judicial tasks on assertion of invalidity of time-matured statutes to scrutiny only of the latest Constitution, but it has no such appeal for me. Absent some evidence that the people intended such a strained meaning to be placed upon the simple words of common usage with which they spoke in their Constitution, it is not open to this Court to distort by expansion what those words are commonly understood to mean.

Mr. Justice Adams suggests in his opinion that it “is of some significance” to our construction of article 3, § 7, that the language used in article 1, § 14, article 4, § 35, article 7, §§ 1, 8 and 33 of the 1963 Constitution is cast in the present tense whereas the future tense was used in the counterpart provisions of the 1908 Constitution. I must confess that I do not comprehend the pertinence of this suggestion. Nor do I believe it is of any greater significance than that the style and drafting committee of the constitutional convention succeeded at .least in part .in performing its assigned and expressly limited 7 task of editing the language of delegates’ proposals without altering their substantive meaning. This is evident upon tracing the *341 •cited provisions in the record of proceedings of the constitutional convention, from their reference as proposals to the style and drafting committee to 'that committee’s submission of its redrafts to the convention. See, as to article 1, § 14, 2 Constitutional Convention Record (1961), pp 2925 and 3048; •as to article 4, § 5, 1 Constitutional Convention Record (1961), p 707 and 2 Constitutional Convention Record (1961), p 2965; as to article 7, § 1, 1 Constitutional Convention Record (1961), p 985 and 2 Constitutional Convention Record (1961), p 2505; ■as to article 7, § 8, 1 Constitutional Convention Record (1961), p 986 and 2 Constitutional Convention •Record (1961), p 2505; and as to’article 7, §33, 1 Constitutional Convention Record (1961), p 838 and 2 Constitutional Convention Record (1961), p 2971.

What I have written should not suggest that the people cannot do what it now is claimed they did in article 3, § 7. If the people desire to do so, other much more explicit language must be used so that their intent to validate statutes theretofore void because beyond the legislature’s power be stated clearly. By new constitutional provision or amendment, the people can do directly what a legislature may have attempted to do beyond its own constitutional power, as in Hammond v. Clark (1911), 136 Ga 313 ( 71 SE 479 , 38 LRA NS 77) and they can validate specifically identified statutes which otherwise would be void, as in the cases collected in part III of the annotation, referred to above, at 171 ALR 1070 , 1072-1074. But neither of those techniques was attempted by the people to attain validity of Act No 62.

• Justice Adams relies upon State, ex rel. Marr, v. Luther (1894), 56 Minn 156 ( 57 NW 464 ); Golden v. People, ex rel. Baker, (1937), 101 Colo 381 ( 74 P2d 715 ); and People, ex rel. McClelland, v. Roberts *342 (1896), 148 NY 360 ( 42 NE 1082 ), in aid of his construction of article 3, § 7. None of those cases involved a constitutional provision even remotely similar to our article 3, § 7. Instead, the cases of Marr and Golden , like Hammond v. Clark, supra, involved situations in which the Minnesota and Colorado courts found that the people intended, by constitutional amendments, to validate particular statutes theretofore enacted; and the case of McClelland involved simply a finding by the New York court that the people intended by specific language contained in a new Constitution to include all civil divisions within the State’s civil service which theretofore had been established by statute but the coverage of which had been limited by provisions of the old Constitution.

The two California cases cited by Justice Adams, Speegle v. Joy (1882), 60 Cal 278, and People, ex. rel. Orr, v. Whiting (1883), 64 Cal 67 ( 28 P 445 ), do involve a provision of that state’s constitution, effective January 1, 1880, similar to our article 3, § 7. However, they lend no support to Justice Adams’ contentions. In both cases the California court held that such a constitutional provision did not give force and effect to statutes which were enacted prior to the new Constitution but which were not, by their terms, to become effective until “the first Monday of March, 1880”. Those statutes, or parts thereof,' not “in force” on the effective date of the new California Constitution, the court held, “never have and never will take effect”. See Orr, supra, p 68 . The claim presently asserted for our article 3, § 7, that it validates a statute beyond the legislature’s power theretofor to enact, was not considered in Speegle nor in Orr. However, those cases do support my reading of article 3, § 7, to the extent that the California court held that California’s counter *343 part provision was a “saving” provision which carried over under the new Constitution only those previously enacted statutes which were validly in effect on the effective date of the new Constitution.

The assistant attorney general who appeared at the hearing on July 19th asserted, as did also the city’s counsel, that the pertinent provisions of our 1908 Constitution were so similar to those in our 1963 Constitution that the arguments advanced in favor of the constitutionality of Act No 62 under the 1963 Constitution would he equally applicable under the 1908 Constitution. I will examine this assertion in due course later in this opinion.

Defendant’s counsel, in addition, acknowledged the pertinence of an inquiry under the 1908 Constitution, but urged that we confine ourselves to a declaration of the act’s invalidity under the 1963 Constitution. He candidly advised the Court that he would prefer such a limited determination of invalidity as a tactical matter because, if we were to declare the act invalid under the 1908 Constitution, it might yet be reenacted as an exercise of permissible legislative power under the 1963 Constitution, whereas if declared invalid under the 1963 Constitution, there would be no possibility of subsequent legislative reenactment absent a constitutional amendment. ' It will suffice to note that this Court cannot succumb to the tactical stratagems of litigants which artificially restrict the Court’s performance of its duty when constitutional issues of public importance are involved.

• Notwithstanding disclosure at the July 19th hearing that at least some members of the Court were deeply troubled by the failure of the trial court to certify questions raising the applicability of the 1908 Constitution and by the failure of all counsel to brief such clearly applicable questions, each equip *344 sel present declined invitation to file supplementary briefs and elected to stand on the briefs already filed. Thus, without the benefit of a trial court decision, or even a trial, in this case of “public moment”; without the benefit of an appellate decision by our Court of Appeals; and without the usually beneficial assistance of counsel’s briefs on constitutional issues of threshold importance, a majority of our Court proceeds nonetheless to render its advisory decision.

That prompt decision in this matter is important I do not doubt, but it is even more important that our decision, whenever made, be right. It cannot be a right decision when it leaves unanswered the threshold question upon which all other questions involved depend. Yet, that is precisely what the Court’s majority proposes now to do.

Conceivably, any member of the Court who believes, as I do, that the 1908 Constitution’s limitations first must be considered before decision herein, could proceed to such consideration and decision in dissent even without benefit of counsel’s assistance. However, I am dissuaded from taking such course in this proceeding because the statute here involved is, beyond question, of major public significance. What is decided here will affect not only the Gaylord-United States Plywood project but others as well, some of which already have been undertaken and others of which are awaiting our present decision. In each of these projects, many interests are involved, both public and private; yet, it is strange that none of the municipalities or industrial concerns so vitally interested in the outcome pf this litigation has sought to assist the Court in reaching its decision by participation herein as intervening parties or as amicus curiae. All factors considered? the validity of Act No 62, in my judg *345 ment, should be determined only after the issues have been narrowed by our traditional process of adjudication in an adversary trial court proceeding and then subjected to appellate review on a factual record and with the assistance of complete appellate argument by skilled counsel.

It was this view I expressed first in my dissent to our order of April 12, 1965, granting the governor’s request for certification of this case to the Supreme Court prior to trial and decision by the circuit court. That order and its three accompanying dissents have not been published heretofore. Because I believe it important to the bench and bar that the judicial record of this unique proceeding be available readily for future use, the Court’s order and the dissents thereto are printed in the margin in their entirety. 8

*346 Notwithstanding my disagreement with, the Court’s grant of certification herein, I would have proceeded to judgment, even in dissent, had the is *347 sues been framed and argued adequately for a •worthy judgment of the statute’s validity. They have not been to this date, and a majority of the Court has precluded the possibility of rectifying the fatal flaws in this record by its refusal to remand the cause to the circuit court for, at the very least, supplementary certification and briefing of the 1908 Constitution’s applicability. To proceed to judgment in these circumstances is as futile as trying to fry an egg without first cracking and emptying its shell.

B.

While some of the pertinent provisions of the 1908 Constitution have been carried over in the 1963 Constitution, others have not. Thus, even some of my Brethren who find no constitutional infirmity in Act No 62, the 1963 Constitution alone considered, might possibly conclude, upon consideration of such other provisions of the 1908 Constitution, that the act was invalid from its inception. It might help to compare the 1908 Constitution’s provisions which I consider possibly relevant' to our inquiry with the counterpart provisions, when there are such, of the 1963 Constitution:

1908

art 8, § 20.

“The legislature shall provide by a general law for the incorpo *348 ration of cities, and by a general law for the incorporation of villages ; such general laws shall limit their rate of taxation for municipal purposes, and restrict their powers of borrowing money and contracting debts.”

1908

art 8, § 22.

“Any city or village may acquire, own, establish and maintain, either within or without its Corporate limits, parks, boulevards, cemeteries, hospitals, almshouses and all works which involve the public health or safety.”

art 8, § 23.

“Subject to the provisions of this constitution, any city or village may acquire, own and operate, either within or without its corporate limits, public utilities for supplying water, light, heat, power and transportation to the municipality and the' inhabitants thereof; and may also sell and deliver heat, power and light without its corporate limits to an amount not to exceed 25 per cent of that furnished by it within the corporate limits, and may also sell and deliver water outside of its corporate limits in such amount as may be determined by the legislative body of the city or village; and may operate transportation lines without the municipality within such limits as *349 may be prescribed by law: Provided, That the right to own or operate transportation facilities shall not extend to any eity or village of less than 25,000 inhabitants.”

1908

art 8, § 24.

“When a eity or village is authorized to acquire or operate any publie utility, it may issue mortgage bonds therefor beyond the general limit of bonded indebtedness prescribed by law: Provided, That such mortgage bonds issued beyond the general limit of bonded indebtedness prescribed by law shall not impose any liability upon such city or village, but shall be secured only upon the property and revenues of such public utility, including a franchise stating the terms upon whieh, in ease of foreclosure, the purchaser may operate the same, whieh franchise shall in no ease extend for a longer period than 20 years from the date of the sale of such utility and franchise on foreclosure.”

art 8, § 25.

“No city or village shall have ppwer to abridge the right of elective franchise, to loan its credit', nor to assess, levy or collect any tax or assessment for other than a publie purpose. Nor shall any eity or village acquire any publie utility or grant any public utility franchise which is not subject to revocation at the will of the eity or village, unless such proposition shall have first received the affirmative vote of three-fifths of the electors of such city or village voting thereon at a regular or special municipal election; and upon such proposition women-taxpayers having the qualifications of male electors shall be entitled to vote.”

*350

1908

art 10, § 9.

“The power of taxation shall never be surrendered or suspended by any grant or contract to which the state or any municipal corporation shall be a party.”

art 10, § 12.

“The credit of the State shall not be granted to, nor in aid of any person, association or corporation, public or private.”

art 10, § 13.

“The State shall not subscribe to, nor be interested in the stock of any company, association or corporation.”

art 10, § 14.

“The State shall not be a party to, nor be interested in, any work of internal improvement, nor en *351 gage in carrying on any sueh work, except:

1908

“1. In the development, improvement and control of or aiding in the development, improvement and control of public roads, harbors of refuge, water-ways, airways, airports, landing fields and aeronautical facilities;

“2. In the development, improvement and control of or aiding in the development, improvement and control of rivers, streams, lakes and water levels, for purposes of drainage, public health, control of flood waters and soil erosion;

“3. In reforestation, protection and improvement of lands in the State of Michigan;

“4. In the expenditure of grants to the State of land or other property.”

art 10, § 20.

“It shall be competent for the State to acquire, purchase, take, hold and operate any railroad, or railroad property, belonging to any railroad or railway company in this State heretofore organized under a special charter still in force and effeet and constituting a contract between the State and said company, wherein the right to purchase or acquire has been reserved to the State, whenever in the judgment of the legislature such acquisition or purchasing is neeessary to protect and conserve the rights and interests of the State under sueh charter or contract. Any and all debts or obligations of sueh company constituting a lien upon sueh railroad, or railroad property, may be assumed by the State; and sueh road or property may be leased, sold or disposed of in sueh manner as may be provided by law.”

*347

1963

art 7, § 21.

“The legislature shall provide by general laws for the ineorpora *348 tion of cities and villages. Such laws shall limit their rate of ad valorem property taxation for municipal purposes, and restrict the powers of eities and villages to borrow money and contract debts. Each city and village is granted power to levy other taxes for public purposes, subject to limitations and prohibitions provided by this constitution or by law.”

196S

art 4, § 51.

“The public health and general welfare of the people of the State are hereby declared to be matters of primary public concern. The legislature shall pass suitable laws for the protection and promotion of the public health.”

art 7, § 23.

“Any city or village may acquire, own, establish and maintain, within or without its corporate limits, parks, boulevards, cemeteries, hospitals and all works which involve the public health or safety.”

art 7, § 24.

“Subject to this constitution, any city or village may acquire, own or operate, within or without its corporate limits, public service facilities for supplying water, light, heat, power, sewage disposal and transportation to the municipality and the inhabitants thereof.

“Any city or village may sell and deliver heat, power or light' without its corporate limits in an amount not exceeding 25 per eent of that furnished by it within the corporate limits, except as greater amounts may be permitted by law; may sell and deliver water and provide sewage disposal services outside of its corporate limits in such amount as *349 may be determined by the legislative body of the eity or village; and may operate transportation lines outside the municipality within such limits as may be prescribed by law.”

1963

art 7, § 25.

“No city or village shall acquire any public utility furnishing light, heat or power, or grant any publie utility franchise whieh is not subject to revocation at the will of the eity or village, unless the proposition shall first have been approved by three-fifths of the electors voting thereon. No eity or village may sell any publie utility unless the proposition shall first have been approved by a majority of the electors voting thereon, or a greater number if the charter shall so provide.”

*350

1963

art 9, § 2.

“The power of taxation shall never be surrendered, suspended or contracted away.”

art 9, § 18.

“The credit of the State shall not be granted to, nor in aid of any person, association or corporation, public or private, except as authorized in this constitution.

“This section shall not be construed to prohibit the investment of publie funds until needed for current requirements or the investment of funds accumulated to provide retirement or pension benefits for publie officials and employees, as provided by law.”

art 7, § 26.

“Except as otherwise provided in this constitution, no city or village shall have the power to loan its credit for any private purpose or, except as provided by law, for any publie purpose.”

art 9, § 19.

“The State shall not subscribe to, nor be interested in the stock of any company, association or corporation, except that funds accumulated to provide retirement or pension benefits for publie officials and employees may be invested as provided by law; and endowment funds created for charitable or educational purposes may be invested as provided by law governing the investment of funds held in trust by trustees.”

art 3, § 6.

“The State shall not be a party to, nor be financially interested in, any work of internal improve *351 ment, nor engage in carrying on any such work, except for publie internal improvements provided by law.”

1963

*352 It has been claimed, by the city’s counsel and the assistant attorney general at our July hearing, that, so much of the language of the pertinent provisions of both Constitutions is identical or similar that a decision of the statute’s validity under the 1963 Constitution virtually assures that the same conclusion would be reached under the 1908 Constitution. Of course, no such result automatically follows without our express pronouncement of such a decision; nor can we make such pronouncement in propriety without careful consideration of the differences in the pertinent provisions of the two Constitutions.

For example, is it not of some significance that whereas article 3, § 6 of the 1963 Constitution forbids the State from becoming “financially” interested in any work of internal improvement, article 10, § 14 of the 1908 Constitution forbade any interest in such improvements and not just financial interests therein?

And is it not of some significance that the 1963 Constitution limits the power of the State to grant its credit “except as authorized in this constitution” (art 9, § 18) and the power of a city or village to loan its credit “except as provided by law, for any public purpose” (art 7, § 26), whereas when Act No 62 was adopted the 1908 Constitution absolutely forbade the grant of the State’s 9 credit “in aid of any person, association or corporation, public or private” (art 10, § 12) ?

What about the express grant to cities and villages in article 8, § 24 of the 1908 Constitution (omitted in the 1963 Constitution) to issue “mort *353 gage bonds” for the acquisition or operation of public utilities in amounts beyond the general limit of bonded indebtedness prescribed by law but, in which event, the city’s or village’s liability would be secured “only upon the property and revenues of such public utility” ? Is this 1908 grant any different from the power to issue revenue bonds, authorized by Act No 62 but for other than public utility purposes? If the power to issue “mortgage bonds” or revenue bonds was limited, as it was by the 1908 Constitution, for the acquisition or operation of public utilities, may it not be argued that issuance of such bonds for other purposes logically was impliedly forbidden? Expressio unius est ex-clusio alterius.

Other examples of possibly significant differences between the two Constitutions can be readily discerned upon examination of the provisions from each set forth above. The examples mentioned should suffice to establish my contention that our majority’s declaration of constitutionality under the 1963 Constitution does not address itself to the more difficult problems posed by the 1908 Constitution.

One reason the 1908 Constitution poses more difficult judicial problems than does the 1963 Constitution may be examined with profit. Our majority concludes that the 1963 Constitution’s limited prohibition against the State’s becoming interested (“financially”) in works of internal improvements (art 3, § 6) does not apply to an interest financed by self-liquidating revenue bonds. This conclusion is based upon what is called by our majority “a recognized fact” by the delegates to the Constitutional Convention which produced our 1963 Constitution that such bond issues were not regarded by our Court to violate /the internal improvements *354 provisión of article 10, § 14 of our 1908 Constitution, citing Gilbert v. City of Traverse City (1934), 267 Mich 257 ; Attorney General, ex rel. Eaves, v. State Bridge Commission (1936), 277 Mich 373 ; Oakland County Drain Com’r v. City of Royal Oak (1943), 306 Mich 124 ; and City of Dearborn v. Michigan Turnpike Authority (1955), 344 Mich 37 .

If we assume the delegates were aware of the cited decisions of this Court and that they believed our Court had held what the majority now says is the holding of those cases, then there is some merit in accepting the Court’s construction of article 3, § 6 of the 1963 Constitution to exclude from its prohibitory reach projects financed by revenue bonds. However, as I will attempt later to demonstrate, I do not believe those cases can be read so broadly. Furthermore, if we were to apply the more restrictive limitation of article 10, § 14 of the 1908 Constitution, the pertinence of those decisions would be far different from their pertinence to our construction of the 1963 Constitution.

In the first place the delegates to the convention which drafted the 1908 Constitution were not influenced by the cited cases, each of which was decided long after that convention had completed its work. Thus, those cases could not be used to help determine what the delegates and the people then intended in adopting article 10, § 14 of the 1908 Constitution as our majority uses them to determine what was intended by article 3, § 6 of the 1963 Constitution.

In the second place, if we assume the cited cases mean what our majority today says they mean, we would not be precluded by stare decisis, or any doctrine or other principle of law, from overruling those post-1908 decisions insofar as our construction of the 1908 Constitution is involved. While I grant *355 we would be bound to accord the 1963 Constitution a meaning consistent with our own prior decisional rulings pertinent to the constitutional language to be construed, and even when convinced that such prior decisions were erroneous, the assumption being that the delegates and people in adopting such constitutional language relied upon those decisions, no such consideration would limit our power or our duty, as I see it, to reconsider the law declared in those decisions were we construing the 1908 Constitution. ;

That brings me now to the decisions themselves and the accuracy of our majority’s claims for them. Our majority says that in those cases we held that' self-liquidating bonds, revenue bonds, are not within the reach of the 1908 Constitution’s prohibition against the State’s becoming interested in works of' internal improvement. Gilbert v. City of Traverse City (1934), 267 Mich 257 , does not so hold. The case involved issuance of self-liquidating bonds by Traverse City to finance a municipal harbor and park development on Grand Traverse Bay. It was claimed that such a project violated article 10, § 14 of the 1908 Constitution because it was a work of internal improvement not among those then expressly authorized by the section. Contrary to our present majority’s implication, the Court did not hold that such a project was not a work of internal improvement prohibited by the Constitution, nor did it hold, nor even infer, that works of internal improvement financed by self-liquidating bonds were beyond the reach of section 14’s prohibition. Instead, and without further discussion, it held article 10, § 14 not applicable to the proposed project because “The project in question seems to be authorized by article 8, § 22, conferring upon cities the power to construct .and maintain parks .and other *356 works which, involve the public' health' and" safety.” 267 Mich 257, 261 .

Two years later, the Court decided Attorney General, ex rel. Eaves, v. State Bridge Commission (1936), 277 Mich 373 . In that case the validity of PA 1935, No 147, was challenged. It was that act which authorized construction and operation of the Blue Water bridge between Port Huron and Sarnia and its partial financing by issuance of revenue bonds. Among the many claims made against the constitutionality of the act was the claim that it violated the prohibition against works of internal improvement contained in article 10, § 14 of the 1908 Constitution. Whereas in Gilbert, supra, as noted above, the Court planted its decision that the Traverse City project, financed also by revenue bonds, was not prohibited by article 10, § 14 because expressly authorized by article 8, § 22, in Eaves, the Court cryptically decided that Act No 147 did not contravene article 10, § 14 because “We held in Gilbert v. City of Traverse City, supra, that a self-liquidating project was not prohibited by the foregoing section of the Constitution.” 277 Mich 373, 383 . That this was not the rule of law of Gilbert is crystal clear, although it cannot be faulted as a description of the result in that particular case. Yet, in Eaves that cryptic description of result in Gilbert was misstated as the law of the case and summarily applied to Eaves. The Eaves decision on this point is troublesome for another reason. As in Gilbert , where the Court held that article 10, § 14 does not prohibit that which another provision of the Constitution expressly authorizes, so in Eaves the Court could have decided that case, consistent with Gilbert , by holding that article 10, § 14 did not prohibit the construction of the bridge, as an internal improvement, since article 8, § 26 of the 1908 Constitution, *357 previously quoted by the Court in Eaves, expressly authorized construction of bridges.

The Court’s error in Eaves was compounded in Oakland County Drain Com’r v. City of Royal Oak (1943), 306 Mich 124 , a case in which, among other, things, it was claimed that a self-liquidating sewage disposal system was an internal improvement within the ban of article 10, § 14. After deciding, upon' ample authority, that drains necessary for public health were not internal improvements of the kind prohibited by article 10-, § 14, the Court gratuitously-added, as obiter dictum, at p 142:

“Furthermore, the establishment and operation of the proposed sewage disposal system is hereinafter determined to be a self-liquidating project, and we have repeatedly held that such a project is not a work of internal improvement and, therefore, not prohibited by the constitutional provision above quoted. See Attorney General, ex rel. Eaves, v. State Bridge Comm., 277 Mich 373 ; Gilbert v. City of Traverse City, 267 Mich 257 .”

Finally, in City of Dearborn v. Michigan Turnpike Authority (1955), 344 Mich 37, at pp 74, 75 , the Court summarily rejected a claim that the turnpike act, PA 1953, No 176, was in conflict with article 10, § 14 of the 1908 Constitution because it au-thorized a public corporation to engage in works of internal improvement by simple reference to the above quoted dictum from Oakland County Drain Com’r v. City of Royal Oak, supra.

Those are the cases relied upon by today’s majority, without analysis, to support a crucial portion of its decision under the 1963 Constitution. However immunized from judicial reconsideration those cases might be in construing the 1963 Constitution, and I do not concede this point yet, absent a much clearer showing of reliance thereon by the delegates *358 who drafted the Constitution than is made in the majority’s opinion, they are not immune from our reconsideration if and when we consider the initial .validity of Act No 62 against the provisions of the .1908 Constitution which I believe were misconstrued ■by the Court in the cited cases.

Enough has been said, I believe, even without .consideration of other pertinent provisions of the 1908 Constitution, to indicate the magnitude of the error the Court commits today. It is twofold. First, the case manifestly is not ready for decision, the 1908 Constitution, clearly pertinent, having been ignored, inexplicably, by all parties and the Court’s majority. Second, some of the cases relied upon by the Court’s majority, when carefully analyzed, do not support the legal propositions for which they are cited.

II.

There is yet another reason I cannot join in the Court’s action today. While it may be argued plausibly that this Court should decide, in these truncated proceedings, the constitutionality of Act No 62, its possible significance to the economic life of our entire State considered, I can conceive of no valid reason for consideration and advisory decision now of the technical compliance of the proposed agreements between Gaylord and United States Plywood Corporation with the requirements of the act and the city’s charter. These questions, also presented in vacuo, are perhaps significant to the parties to the proposed agreements, but hardly merit designation as questions “of such public moment as to require early determination” (GCR 1963, 797), before trial and decision by a circuit judge. These are questions which bond counsel normally is expected to pass upon in connection with every *359 bond issue and wbicb courts ought not to be called upon to answer in advance as is here sought to be done. If answered in this case, on what basis shall we decline to give such advisory opinions in the future whenever a bond issue is proposed by any public body? See Mr. Justice Black’s opinion in Connor v. Herrick (1957), 349 Mich 201 , particularly his quotation, at 210, of Mr. Justice Brewer’s opinion in Tregea v. Modesto Irrigation District (1896), 164 US 179, 185-187 ( 17 S Ct 52 , 41 L ed 395).

Conclusion.

I recognize the importance of our majority’s decision to this State’s position in the competition among the States for industrial development. However, PA 1963, No 62 represents a very substantial departure from our traditional concepts of the constitutionally appropriate scope of involvement of State and local governments in the affairs of private business. Valid judgment entitled to public reliance requires more from the Court than our majority submits today. The case is before us prematurely; the briefs of counsel and our majority’s opinion do not address themselves to the constitutional issues of threshold importance; that opinion perpetuates past decisional error without comment; and, finally, our majority unwisely undertakes, in these truncated proceedings, to validate in advance a proposed bond issue by writing an opinion it should be bond counsel’s obligation first to write. For the foregoing reasons I dissent from the Court’s decision and, instead, ■would remand this cause for a complete testimonial hearing in the trial court. j

Black, J.

(for entry of order indicated below). Out of the titanic welter thus far written with respect to the questions certified to us, one unanimous *360 verdict is sure to spring from the critical hen of such lawyers and judges as are due to pore over these multifarious opinions. It is that this Court long since should have called for proceedings resulting in a further and better statement pursuant to GrCR 1963, 797 (2). (See Appendix for this Rule.)

My vote accords with that verdict. It is cast in favor of an order directing necessary amendment of pleadings and for certification of additional questions aimed at test of PA 1963, No 62 by the Constitution of Michigan as same stood May 8, 1963. 1 The necessitous nature thereof appears pointedly in the opinion of Justice Souris, initial discoverer after submission here that the Court was confronted by an insufficient certification of questions.

I agree with Justice Souris that the validity of said Act No 62, 2 the act having been made declaredly effective on the above date, is due properly for primary test by such constitutional provisions as were in effect at the time. True, a secondary question could arise and well might be certified after the defendant’s answer has been amended. To state it: In event Act No 62 survives any newly certified assay under the former Constitution, was that act nullified in whole or in part by some or any provision of the Constitution of 1963?

With all deserving deference I dissent from the sum of that which appears due — at present writing —for the unrestrictive indorsement of some if not an outright majority of the Brethren. Here it is, repeated for double exposure:

*361 “We construe the language of the 1963 Constitution art 3, § 7, to have validated all laws that were in force and effect on January 1, 1964.”

Was Act No 62 “in force and effect on January 1, 1964”? Isn’t it of due order that that question come to judicial answer prior to inquiry whether Act No 62 is “repugnant to this Constitution” (the current Constitution)?

Now I have always understood, and hear no lawyer or jurist contend otherwise, that an unconstitutional statute though in form and name a law is from the beginning no law at all; that the unconstitutionality thereof dates from the time of enactment rather than the time of decision so branding it, and that it at no time became effective for any purpose, legal or otherwise. Hence, according to my book of constitutional law at least, if Act No 62 was unconstitutional when enacted and ordered effective in May of 1963, 3 it can hardly be said — seriously at least — that said section 7 “validated” it seven months later.

To test the point assume that any statute enacted when the Constitution of 1908 was in effect (said Act No 62 included of course) had been questioned for validity under that Constitution with final judicial decision of unconstitutionality made prior to January 1, 1964. Assuming further that the tested statute is presently found “not repugnant to this Constitution,” would said section 7 “validate” what prior to January 1,1964, was invalid? My answer is that said section 7 operated January 1,1964, and operates presently only upon the common law and “the statute laws now in force, not repugnant to this Constitution,” and that it plainly has no legal or people-intended application to a statute unless that stat *362 ute was in force when the new Constitution became operative.

Since the delay caused by this discovered omission of pleading and resultant error of certification is due partly to' our own failure to scan these certified questions thoroughly when and shortly after they arrived last November, I would offer the following possibly helpful alternative suggestion, to which is appended a statement of conviction respecting Justice Adams’ treatment of the now mooted merits.

The governor, having moved exigently pursuant to said GCR 1963, 797, could recommend that the legislature repeal said Act No 62 with immediately effective re-enactment thereof according to its tenor. Should that be done I could and would indorse unconditionally the reasons for answers and the answers Justice Adams has given to these certified questions. Which is to say that, had the statute now scrutinized come to enactment after January 1, 1964, my signature would support the reasoning and answers Justice Adams has written prior to the “Addendum” portion of his opinion.

Such a result would leave for future litigation any question of validity of said Act No 62 that might arise in any instance where — if at all — the act has already been utilized. It would at the same time relieve an intensely expectant situation of which we are all cognizant; a situation to which Justice Souris has made appropriate reference in his opinion. Unless it is unavoidable we should not make the fathers of quite a few of our cities hold their municipal breath much longer. In the phrasing of Mark Twain (Letter from the Recording Angel), we credit such men “up a thousand-fold” in our own great record, “on account of the strain,” and now if at all feasible should effectively release that strain in some way, innovational or otherwise.

*363 To avoid all possible misunderstanding my vote is cast in accordance with the second paragraph of this opinion.

APPENDIX.

GCR 1963, 797, 373 Mich cxi , cxii.

Rule 797. Certified Questions.

(1) Whenever the judge or judges of any court, or the officers of any tribunal, from which an appeal of right or otherwise may be taken to the Court of Appeals or to the Supreme Court, has pending-before him or them any controlling- question or questions of public law involved in a pending case or controversy, and such question or questions are of such public moment as to require early determination according to executive message of the governor addressed to the Supreme Court, the Supreme Court in its discretion may authorize such judge or officers to certify such question or questions to the Supreme Court with a statement of the facts relevant thereto sufficient to make clear the application of such question or questions, and further proceedings relative to such case or controversy shall thereupon be stayed to such extent as the judge or officers shall by order direct, pending receipt of an answer from the Supreme Court.

(2) If any question is not properly stated, or if sufficient facts are not given to show the application thereof, the Supreme Court may require a further and better statement of the question and of the facts.

(3) The answers given by the Supreme Court to certified questions shall be given in the ordinary form of opinions, to be published with other opinions of the Supreme Court.

(4) After the answer of the Supreme Court has been transmitted to the court or tribunal from which *364 the question was certified, the case or controversy shall be proceeded with or disposed of in accordance therewith.

This proceeding is unique in the history of the Supreme Court. It is the first instance in which the Court has been ashed for its advisory opinion pending trial of questions of public law as permitted by GCR 1963, 797.

. CL 1948, § 125.1251 et seq. (Stat Ann 1965 Cum Supp § 5.3533 [21] et seq.).

Ҥ 103.

(a) General rule. — Gross income does not include interest on—

(1) the obligations of a State, a Territory, or a possession of the United States, or any political subdivision of any of the foregoing, or of the District of Columbia.” Internal Bevenue Code of 1954 (26 USCA, § 103[a]ll]).

“See. 7. The common law and the statute laws now in force, not repugnant to this constitution, shall remain in foree until they expire by their own limitations, or are changed, amended or repealed.”

Note, however, that prior to adoption of Act No 62, in response to a request from the Honorable Joseph J. Kowalski, the speaker of the house of representatives, the attorney general issued a formal opinion on April 10, 1963, in which he considered and upheld the constitutionality of the then pending legislation against the limitations contained then in article 10, §§12 and 14 of the Constitution of 1908 and, in addition, proceeded to give his opinion that the counterpart provisions of the adopted but not yet effective 1963 Constitution, article 9, § 18, and article 3, § 6, also would not be violated. See OAG 1963-1964, No 4146, pp 75-79.

See footnote 4, p 336, supra. Eor similar provisions in our preceding constitutions, see Const 1908, sched, § 1; Const 1850, sched, § lj and Const 1835, sched, § 2. The records of the proceedings of the constitutional conventions which adopted each of Michigan’s four constitutions disclose that the delegates did not consider in debate the meaning now urged for the cited provisions.

See 1 Constitutional Convention Record (1961), p 121,

“On order of tlie Court, the request of- the governor under GCR 1963, 797, to eertify the above case is Granted, subject to remand to the circuit eourt of Otsego county in the event it appears upon certification to this Court that the eause is not properly at issue as to all parties litigant, or that further proceedings in the circuit eourt are requisite for a complete reeord (Chief Justice Kavanagh and Justices Black and Souris dissenting).

“Kavanagh, C. J., dissenting. I disagree with the order granting certification in the above matter for the reason the pending circuit court case is not in shape for certification to this Court; the attorney general has filed no pleadings on behalf of the people of this State; the taxpayers of Gaylord are not adversarily represented; and we should not be expected to hear and decide eases in a vacuum. I would deny the request of the governor until, and only until, the case -is in shape for certification to this Court.

“Black, J., dissenting. This pending Otsego county suit is not yet in shape for certification under GCR 1963, 797. The attorney general has filed no pleading and no proceedings have been taken to insure that the people of Michigan as well as the taxpayers of Gaylord are adversarily represented, as a class, under Court Rule 208. See Connor v. Herrick, 349 Mich 201 , 204 et seq.

“I suggest — yes gratuitously — that the attorney general should provide a team from his staff to brief and argue the constitutional positions the defendant city clerk has taken plus any others such team may wish to submit. That was done when the first constitutional convention case was briefed and decided (People v. State Board of Canvassers, 323 Mich 523 ) ; also when the sales-tax use-tax case was briefed and argued (Lockwood v. Commissioner of Revenue, 357 Mich 517 ). It is a good way to assurQ that “friendly” lawsuits *346 like tliis do not beeome cozy unto a sellout of those who receive no true day in court.

“The impeding factor here is due to failure of the Constitutional Convention of 1961-1962 to insert, in the new Constitution, a Massachusetts type grant of constitutional authority for issuance of advisory opinions when requested by the chief executive or by the legislature. * Inclusion of such form of grant was, by at least one member of our Court, urged with considerable earnestness before the convention’s committee upon the judicial branch.

“The Convention chose instead to insert the more restrictive provision which appears now as section 8 of article 3 of the Michigan Constitution of 1963. † That provision was not put to use in this instance. It eould not have been, the legislature having given immediate effect to the act of 1963 (No 62) which, in this Gaylord Case, is up for judicial scrutiny.

“It is possible, the foregoing considered, that the circuit court record may yet be placed in shape for certification under GCR 1963, 797. Upon that thought I would deny certification without prejudice to future representations the governor may choose to forward pursuant to that rule.

“Souris, J., dissenting. I would deny the request made by the governor in his executive message to this Court dated March 15, 1965. Certification of controlling questions of public law involved in a pending ease or controversy for decision by this Court prior to decision in the trial court, pursuant to GCR 1963, 797, is a matter for discretionary action by this Court pursuant to the express provisions of the Rule. In my judgment such discretionary action should be exercised, if ever, only in circumstances of extreme emergency in which, for example, the most vital functions of government are threatened or the public peace and safety are in jeopardy. I am not persuaded that City of Gaylord v. Gaylord City Clerk presents any such circumstance warranting our abandonment of our traditional judicial procedures by granting the certification requested.

“It is not normally the business of this Court to render advisory opinions in a context divorced from the adversary trial court pro *347 eeedings traditional to the common law. Sueh function properly remains the duty of the attorney general when the State’s interest is involved. Except in the rare cireumstanees mentioned above and when, upon solemn occasions, we may be requested, as provided in article 3, § 8 of the Constitution of 1963, by either house of the legislature or by the governor for our opinion upon the constitutionality of legislation enacted but not yet ¡effective, I would decline respectfully all requests sueh as made herein to truncate the traditional judicial process experience throughout the centuries has proved best suited to the accomplishment of justice.”

Dor at least a century the Massachusetts Constitution has provided as quoted below. True, the decisions in that State disclose that the provision is and has been employed with care, as well as sparingly. The point is that the provision is there, for use when needed. The provision:

“Each branch of the legislature, as well as the governor and council shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions.” (Massachusetts Constitution, art 2, chap 3).

Opinions on constitutionality by Supreme Court.

“See. 8. Either house of the Legislature or the Governor may request the opinion of the Supreme Court on important questions of law upon solemn occasions as to the constitutionality of legislation after it has been enacted into law but before its effective date,”

Although reference was made only to the State’s eredit, the ban was held applicable, as well, to the political subdivisions of the State. See Oakland County Drain Com’r v. City of Royal Oak (1943), 306 Mich 124, 139, 140 ; and Sommers v. City of Flint (1959), 355 Mich 655, 663 .

This is not to suggest that a trial is requisite to solution of the issues posed by the pleadings and our said opinions. The controlling constitutional questions by their nature are readily certifiable and determinable without the taking of proof. They arise exclusively upon the compared faces of a statute and such constitutional provisions as are found applicable; not upon circumstances which require proof.

Nonfederal validity, I would cautiously add.

A question we eannot deeide in the absence of additional certification or appeal following appropriate amendment of the defendant clerk’s answer.