Briggs v. Campbell, Wyant & Cannon Foundry Co.

• Decision Date: 06 June 1967
• Docket Number: No. 23,23
• Citation: 379 Mich. 160,150 N.W.2d 752
• Parties: Buffen BRIGGS, Charles Habetler, Albert Harris, and Melvin Wright, Plaintiffs-Appellees, v. CAMPBELL, WYANT & CANNON FOUNDRY CO., Division of Textron American, Inc. andLiberty Mutual Insurance Company, Defendants-Appellants, and Campbell, Wyant & Cannon Foundry Co. and Michigan Mutual Liability Company, Defendants-Appellees. Robert W. HARRINGTON, Plaintiff and Appellee, v. GALE MANUFACTURING COMPANY, Defendant and Appellant, and Brooks Foundry Company and Michigan State Accident Fund, Defendants andAppellees.
• Court: Michigan Supreme Court

Page 752

150 N.W.2d 752

379 Mich. 160

Buffen BRIGGS, Charles Habetler, Albert Harris, and Melvin

Wright, Plaintiffs-Appellees, v. CAMPBELL, WYANT & CANNON FOUNDRY CO., Division of Textron

American, Inc. andLiberty Mutual Insurance

Company, Defendants-Appellants,

and

Campbell, Wyant & Cannon Foundry Co. and Michigan Mutual

Liability Company, Defendants-Appellees.

Robert W. HARRINGTON, Plaintiff and Appellee, v. GALE MANUFACTURING COMPANY, Defendant and Appellant, and Brooks Foundry Company and Michigan State Accident Fund,

Defendants andAppellees.

No. 23.

Supreme Court of Michigan.

June 6, 1967.

Lacey & Jones, by E. R. Whinham, Jr., Detroit, for appellant, Gale mfg. co.

Cholette, Perkins & Buchanan, Grand Rapids (Edward D. Wells, Grand Rapids, of counsel), for defendants and appellants.

Stanley Dodge and Peter Munroe, Lansing, for defendants-appellees.

Charles H. King, Detroit, for Campbell, Wyant & Cannon Foundry Co., and Michigan Mutual Liability Co.

Before the Entire Bench.

BLACK, Justice.

Trellsite F. & S. Co. v. Enterprise Foundry, 365 Mich. 209, 112 N.W.2d 476, flatly held that the provision in section 9 of chapter 7 of the workmen's compensation act (C.L.1948, § 417.9) which relates to the apportionment of an award was unconstitutional. Pointing to the distinction between substantive due process and procedural due process, we went on to say (pp. 214, 215, 112 N.W.2d p. 478):

'Naturally, a statutory provision affecting private substantive rights in the interests of the general welfare might be reasonable and hence valid in its application to certain circumstances and the reverse as applied to others. The test of reasonableness has not, however, been applied to the right of procedural due process. It is absolute. Statutory enactments authorizing proceedings for taking life, liberty, or property without providing for procedural due process therein cannot stand under constitutional exactments. As applied to the instant case, the apportionment provision of the statute, in failing to provide for notice of hearing on compensation to prior employers, is unconstitutional, leaving no legal basis for a right of apportionment or contribution, regardless of whether notice is or is not served on former employers in a given case.'

When the legislature considered and enacted amendatory P.A.1962, No. 189, that body presumptively held Trellsite's majority opinion in one hand and, in the other, the decision upon which the seated panel of the Court of Appeals (2 Mich.App. 204, 139 N.W.2d 336) relied principally for holding that Act 189 was not effective retroactively. That decision is In Re Davis' Estate, 330 Mich. 647, 48 N.W.2d 151. ¹ Therein the Court quoted and applied, from Detroit Trust Co. v. City of Detroit, 269 Mich. 81, 256 N.W. 811 this firm rule:

'We think it is settled as a general rule in this state, as well as in other jurisdictions, that all statutes are prospective in their operation excepting in such cases as the contrary clearly appears from the context of the statute itself.

"Indeed, the rule to be derived from the comparison of a vast number of judicial utterances upon this subject, seems to be, that, even in the absence of constitutional obstacles to retroaction, a construction giving to a statute a prospective operation is always to be preferred, unless a purpose to give it a retrospective force is expressed by clear and positive command, or to be inferred by necessary, unequivocal and unavoidable implication from the words of the statute taken by themselves and in connection with the subject-matter, and the occasion of the enactment, admitting of no reasonable doubt, but precluding all question as to such intention.' Endlich, Interpretation of Statutes, § 271.'

Act 189 was conceived and born of Trellsite. The legislature sought to enact a statute providing that which, in the constitutional sense, its membership had never provided before. By legal presumption all of the senators and representatives knew at the time that an unconstitutional statutory provision though in form and name a law is from the beginning no law at all; that the invalidity thereof dates from the time of enactment rather than the time of decision branding the provision as unconstitutional, and that such a provision is at no time effective for any purpose. The panel below so held. Now with that knowledge at hand, what did the senators and representatives do by way of prospective or retroactive hint to the judicial branch?

Nothing in the 'context of the statute' (referring to Act 189) 'clearly' or otherwise suggests an intention to render it retro-effective. Neither does the wording thereof manifest or imply unavoidably a purpose other than that which is presumptive, that is, prospective operation and effect. I think we should apply the Davis and Detroit Trust Cases rather than ignore them, thereby upholding a settled rule of statutory construction and thereby reining up short our past tendencies to manufacture more and more now-for-then law by undue and unjudicious process.

To summarize: I agree specifically with the panel below that Trellsite's prevailing opinion 'destroyed C.L.1948, § 417.9 ab initio' and that Act 189 provides no hint of legislative intent that it should apply retroactively as claimed. On that ground my vote to affirm is cast.

KELLY, KAVANAGH, and ADAMS, JJ., concurred with BLACK, J.

SOURIS, Justice.

In Leonard v. Lans Corporation, Mich., 150 N.W.2d 746, supra, the undersigned in dissent wrote to hold amendment of section 9, Part VII, of the workmen's compensation law by P.A.1962, No. 189, effective March 28, 1963, ¹ is applicable to an occupational disease disability claim arising prior thereto. In Leonard, all proceedings before the workmen's compensation department, including the filing of claimant's application for hearing and adjustment of claim and his last employer's motion for apportionment of liability between it and prior employers, were taken after March 28, 1963, the amendatory act's effective date, and pursuant to its provisions, although claimant's disability occurred prior to that date. In the five cases considered herein, ² however, proceedings before the department had been commenced and the referee's hearing on liability concluded before ...