Michigan Harness Horsemen's Ass'n v. Racing Com'r

• Decision Date: 06 May 1983
• Docket Number: Docket No. 60422
• Citation: 123 Mich.App. 388,333 N.W.2d 292
• Parties: MICHIGAN HARNESS HORSEMEN'S ASSOCIATION, a Michigan non-profit corporation, Plaintiff-Appellee, v. RACING COMMISSIONER, Frederick S. Van Tiem, Defendant-Appellee, and Detroit Racing Association, Inc., a Michigan corporation, Hazel Park Racing Association, Inc., a Michigan corporation, and Wolverine Harness Raceway, Inc., a Michigan corporation, Defendants-Appellants. 123 Mich.App. 388, 333 N.W.2d 292
• Court: Court of Appeal of Michigan — District of US

Page 292

333 N.W.2d 292

MICHIGAN HARNESS HORSEMEN'S ASSOCIATION, a Michigan

non-profit corporation, Plaintiff-Appellee, v. RACING COMMISSIONER, Frederick S. Van Tiem,

Defendant-Appellee,

and

Detroit Racing Association, Inc., a Michigan corporation,

Hazel Park Racing Association, Inc., a Michigan corporation,

and Wolverine Harness Raceway, Inc., a Michigan corporation,

Defendants-Appellants.

Docket No. 60422.

123 Mich.App. 388, 333 N.W.2d 292

Court of Appeals of Michigan.

Submitted Oct. 6, 1982.

Decided Feb. 23, 1983.

Released for Publication May 6, 1983.

[123 MICHAPP 389] Elconin, Czeryba & Dulany by Richard C. Elconin, Monroe, for plaintiff-appellee.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Charles D. Hackney and Theodore S. Klimaszewski, Asst. Attys. Gen., for Michigan Racing Com'r.

Tolleson, Mead, Welchli & Dahn by Hudson Mead, Detroit, Joseph A. Garcia, Miller, Canfield, [123 MICHAPP 390] Paddock & Stone by John D. Pirich, Lansing, for defendants-appellants.

Before BEASLEY, P.J., and KELLY and WHITE ^*, JJ.

KELLY, Judge.

Plaintiff initiated this action in the Ingham County Circuit Court for declaratory and injunctive relief in regard to the Racing Law of 1980, M.C.L. Secs. 431.61-431.88; M.S.A. Secs. 18.966(31)-18.966(58). A declaratory judgment was rendered, favoring the position advocated by plaintiff and defendant Racing Commissioner. The remaining defendants appeal as of right.

Effective December 18, 1980, the Racing Law of 1959 was repealed by the Racing Law of 1980. Under the 1959 law, the Michigan Racing Commissioner acted with virtually unlimited power in allocating racing dates to the various racing tracks in the state. The new law, however, directs that the Racing Commissioner is to (1) grant or deny each application for a particular form of race meeting license and (2) "allocate or deny racing dates for which application has been made". M.C.L. Sec. 431.69; M.S.A. Sec. 18.966(39).

Plaintiff claims that the above-quoted provision is ambiguous. According to plaintiff, the language can be interpreted as allowing the Racing Commissioner to (1) only grant or deny an application for race dates in its entirety, (2) grant or deny an application in total or decrease the dates requested, or (3) allocate dates as he deems proper, regardless of what dates were requested. Although arguing the statute is ambiguous, plaintiff claims that the Legislature clearly intended the third result. The trial court agreed with plaintiff, ruling [123 MICHAPP 391] that the statutory language allowing the Commissioner to allocate or deny only racing dates "for which application has been made" was inadvertently included in the statute due to an oversight. "Nobody really noticed it", reasoned the court, "and it went through". Finally, the court ruled that if the Legislature did intend to restrict the Commissioner's authority to allocate dates, "such would constitute an improper delegation of legislative authority to a private entity contrary to the Michigan Constitution".

I

Michigan courts have sometimes castigated the state Legislature, a coequal branch of government, for producing hasty legislation and crude, ambiguous legislative acts. See, e.g., Wales v. Lyon, 2 Mich. 276, 282 (1851). In interpreting legislation, however, the courts must be careful not to usurp legislative power. See Const.1963, art. 3, Sec. 2 (no person exercising powers of one branch of government shall exercise powers properly belonging to another branch). Under modern jurisprudence, therefore, if the wording of a statute is unambiguous, there is no room for courts to attempt to "construe" it. Detroit v. Redford Twp., 253 Mich. 453, 455, 235 N.W. 217 (1931); Pittsfield Twp. v. Saline, 103 Mich.App. 99, 104, 302 N.W.2d 608 (1981). Where a statute is clear and complete on its face, the courts are not to assume a mistake has been made or that the Legislature inadvertently used one word or phrase instead of another. Detroit, supra, 253 Mich. p. 456, 235 N.W. 217. Rather, every word and phrase of the statute should be given meaning and not treated as mere surplusage or rendered nugatory. Stowers v. Wolodzko, 386 Mich. 119, 133, 191 N.W.2d 355 (1971).

[123 MICHAPP 392] The statutory language involved in the instant case empowers the Racing Commissioner to "allocate or deny racing dates for which application has been made". M.C.L. Sec. 431.69; M.S.A. Sec. 18.966(39). These words cannot be treated as mere surplusage. Rather, contrary to prior practice, these words limit the Racing Commissioner's power to allocate racing dates to granting or denying only those dates for which application has been made. The Commissioner may not compel a licensee to conduct races on dates for which application has not been made.

The Commissioner's power is embodied in a two-step process. He may grant or deny a race meeting license and, if the license is granted, then allocate the racing dates applied for. This two-step process implies a measure of discretion in the Commissioner to award racing dates. Otherwise, the Commissioner's power presumably would have been limited to merely granting or denying race meeting licenses. Thus, under the Racing Law of 1980, the Commissioner may grant or deny any portion of racing dates which the licensee has applied for. That this limited discretion was intended by the Legislature is clear from the words of the statute. The term "allocate" implies an apportionment, distribution, or division. The Commissioner may, therefore, "apportion" to a licensee whatever part or parcel of the dates the licensee has applied for that the Commissioner deems appropriate.

II

The trial court's declaratory judgment order expressly directed the Racing...