Advisory Opinion (Being 1975 Pa 227), In re

• Decision Date: 29 March 1976
• Docket Number: No. 57850,57850
• Citation: 240 N.W.2d 193,396 Mich. 123
• Parties: In re Request for ADVISORY OPINION: In re enrolled House Bill 5250 (BEING 1975 PA 227).
• Court: Michigan Supreme Court

Page 193

240 N.W.2d 193

396 Mich. 123

In re Request for ADVISORY OPINION: In re enrolled House

Bill 5250 (BEING 1975 PA 227).

No. 57850.

Supreme Court of Michigan.

March 29, 1976.

Charles D. Hackney, Asst. Atty. Gen., in support of constitutionality.

John D. Pirich, Asst. Atty. Gen., argued in opposition to constitutionality.

Kenneth J. Guido, Jr., Washington, D.C., for Common Cause, amicus curiae.

Thomas J. Beale, Southfield, for State Bar Michigan, amicus curiae.

Daniel F. Curran, Detroit, for Michigan Consolidated Gas Co., amicus curiae.

James E. Tracy, Detroit, for Consumer Power Co., amicus curiae.

Ronald Reosti, Detroit, for Socialist Workers Party, amicus curiae.

Frederic I. Keywell, Birmingham, for Michigan Press Ass'n, amicus curiae.

Stanley Siegel, Detroit, and Tom Downs, Lansing, for Michigan Ass'n of Counties, Michigan Ass'n of Townships and others, amicus curiae.

PER CURIAM.

On August 27, 1975, governor William G. Milliken signed Enrolled House Bill 5250. ¹ This legislation was designed 'to regulate political activity'. The Act created the political ethics commission as an autonomous entity within the department of state and provided for its composition, powers and duties (§§ 31--50); provided requirements for the establishment of candidate committees (after defining 'candidate' to include an elected officeholder) and provided for the filing of statements or organization and reporting of contributions and expenditures (§§ 51--98); set maximum limits on expenditures by candidates for certain offices (§§ 83--84); established a state campaign fund with a diversion of certain taxpayer-designated portions of income tax revenues to the fund for distribution to qualifying gubernatorial candidates (§§ 101--105); proscribed conflicts of interest (§§ 121--127); required designated individuals to file financial disclosures for themselves and members of their immediate families (§§ 131--137); required the registration and reporting of lobbying activities (§§ 141--150); and provided for the repeal of five existing laws (§ 191).

We have granted a December 9, 1975, request of the House of Representatives to review ten specific questions of law concerning the constitutionality of the Act. 395 Mich. 910 (1975).

As major portions of the Act were to have gone into effect on March 31, 1976 (the effective date of some provisions of the Act was to have been delayed until July 1, 1976), and the Act was likely to have had a profound effect on the upcoming elections, we believed it imperative to review the Act before its effective date. This case was submitted to our Court on March 5, 1976, after full briefing and oral argument by the Attorney General and eight amici. After careful consideration of these arguments, it is our opinion that Public Act 227 of 1975 was unconstitutionally enacted in violation of art. 4, § 24 of the Constitution of 1963. We issue this opinion in order to inform the citizens of the Act's unconstitutionality prior to its early effective date. We intend, later, to issue a second opinion dealing with the nine remaining issues.

In House Resolution 248, the House of Representatives phrased its first question of law as:

'Does Act 227 of the Public Acts of 1975, being § 169.1--169.200 of the Michigan Compiled Laws embrace more than one object in violation of § 24 of art. 4 of the State Constitution of 1963 which reads (in pertinent part) as follows:

"Section 24. No law shall embrace more than one object, which shall be expressed in its title."

This constitutional section embodies two separate concepts:

1. That the law shall not embrace more than one object and

2. That the object which the law embraced shall be expressed in its title.

We do not direct attention here to the second concept but only to the first, whether or not more than one object is embraced in this law.

Justice Sharpe in Kent County ex rel. Board of Supervisors v. Reed, 243 Mich. 120, 122, 219 N.W. 656, 657 (1928), notes that:

'* * * it is to the body of the law that we must look to determine whether it embraces more than one object.'

In that case, Justice Sharpe pointed out that the first section of the questioned Act imposed upon the Boards of Supervisors in all counties where county officials are paid salaries fixed by such boards, the duty to fix such salaries. Section 2 of that act expressly repealed a local act of 1891 effecting the county of Kent alone. The Court said:

'Can it be said that this repeal is so connected with the object as disclosed by the provision in section 1 that it may be held to be germane to it? We think not.

The provisions in these two sections might have been enacted in separate laws without either of them in any way referring to or affecting the other. The repeal of the local act was unnecessary to give legal effect to section 1. The two objects sought to be attained by the enactment have no necessary connection with each other, and, when grouped together in one act, clearly offend the constitutional provision.' Reed, supra, 122--123, 219 N.W. 657.

Both of the objects of the law were covered in the title. The Court concluded by saying:

'It is clear that two distinct and unrelated objects are embraced in the one act, and that it offends against the constitutional provision.' Reed, supra, 124, 219 N.W. 658.

In the briefs filed with this Court which discussed this issue, much attention was devoted to Fritz v. Gorton, 83 Wash.2d 275, 517 P.2d 911 (1974). However, in Fritz, the statute challenged was adopted by the initiative process by the voters of the State of Washington in the 1972 general election. Of the nine members of Washington's Supreme Court, two dissented from the holding of constitutionality and three believed that the constitutional provision there in question:

'No bill shall embrace more than one subject and that shall be expressed in the title * * *',

did not apply to initiative but held that if it did apply, they would uphold constitutionality with the remaining four justices. Then the Washington Court held that a 'rational unity' test should be applied between the general subject and the incidental subdivisions. The 'rational unity' test has never been adopted in Michigan.

In the brief filed by Common Cause, a numerical count of items in the title represented 28 as having been listed claiming that they were 'germane to the purpose of reforming the Michigan political process * * *'. The title of the Act does not mention reforming the political process. That brief referred to Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich. 441, 208 N.W.2d 469 (1973), in which the Court held that the subject matter constituted a code, a unified law. Justice Levin in a concurrence mentioned the justification for its constitutionality 'Especially in the case of a codification.' In codes as enacted in Michigan, the Legislature tends to use in the title the words to 'revise, consolidate and classify the laws' with respect to a particular object. Those words are typically found in code titles but not found here.

In the brief of the Attorney General urging a finding of unconstitutionality, a claim is made that this Act is exactly the type of legislation at which the framers of the Constitution directed their prohibition. We agree.

In addition to the multitude of varying activities sought to be regulated by this Act, the Act specifically repealed five individual and distinct acts. They concerned the licensing and regulation of legislative agents; the corrupt practice section of the general election law; two specific conflict of interest statutes; and an ethics act.

Severability is not available in instances challenging constitutionality on this ground. A prohibition against the passage of an act relating to different objects expressed in the title makes the whole act void.

'It is impossible to tell which object was intended by the legislature, and in such case both fall under the same condemnation.' Skinner v. Wilhelm, 63 Mich. 568, 572, 30 N.W. 311, 313 (1886).

An early reference to the concept behind the constitutional prohibition is found in colorful language in People v. Collins, 3 Mich. 343, 384 (1854), a case in which the Court was evently divided on the constitutionality of an act prohibiting the manufacture of intoxicating beverages and the traffic therein. The decision discussed other challenges, but in his opinion and indicative of judicial awareness of the problem, Justice Pratt said:

'This express and positive provision was incorporated into the constitution with the avowed intention on the part of the framers, of arresting, as far as possible, corruption and log rolling in legislation--you help me and I will help you--I will support your bill and help you pass it, if you will permit me to insert a section on a certain matter, etc.; a system of legislation that has often been carried so far as to become disgraceful to representatives and deeply injurious to the public.' People v. Collins, supra.

Justice Cooley in People ex rel. Drake v. Mahaney, 13 Mich. 481 (1865), says with respect to the same provision of the Constitution of 1850:

'The history and purpose of this constitutional provision are too well understood to require any elucidation at our hands. The practice of bringing together into one bill subjects diverse in their nature, and having no necessary connection, with a view to combine in their favor the advocates of all, and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the state.' Mahaney, supra, 494--495.

The act which Justice Cooley had under review was one whose general purpose was 'to establish a police government for the city of Detroit'. He said:

'The act, with great particularity, prescribes how this police government shall be rendered effectual; but this particularity can not possibly be objectionable So long as it...