PEOPLE
v.
O'BRIEN.
Docket No. 52012.
Michigan Court of Appeals.
Decided April 16, 1981.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Lawrence J. Bunting, Assistant Prosecuting Attorney, for the people.
Donald A. Brown, for defendant.
*46 Before: BEASLEY, P.J., and R.B. BURNS and C.J. HOEHN,[*] JJ.
PER CURIAM.
Defendant was arrested in connection with his participation in the purchase of cocaine by an undercover police officer and was charged with delivery of a controlled substance. MCL 333.7401(1), (2)(a)(iv); MSA 14.15(7401)(1), (2)(a)(iv), and MCL 333.7214(a)(iv); MSA 14.15(7214)(a)(iv). Defendant filed a motion to quash the information, alleging that the statutory provisions under which he was charged violated the title-object clause of the Michigan Constitution. Const 1963, art 4, § 24. This motion, together with similar motions presented in six unrelated cases, was heard by a special panel of four Oakland County Circuit Court judges. The panel held that Article 7 of the Public Health Code, MCL 333.7101-333.7545; MSA 14.15(7101)-14.15(7545), was unconstitutional, and it granted defendants' motions. From an appeal by the prosecution, we reverse and remand for trial. People v Trupiano, 97 Mich. App. 416; 296 NW2d 49 (1980).
C.J. HOEHN, J. (dissenting).
I must respectfully dissent from the majority opinion.
The factual statement of the majority opinion is accepted.
The Legislature included criminal sanctions for the possession of controlled substances under the following title:
"An ACT to protect and promote the public health; to codify, revise, consolidate, classify, and add to the laws relating to public health; to provide for the prevention and control of diseases and disabilities; to provide for the classification, administration, regulation, financing, *47 and maintenance of personal, environmental, and other health services and activities; to create or continue, and prescribe the powers and duties of, departments, boards, commissions, councils, committees, task forces, and other agencies; to prescribe the powers and duties of governmental entities and officials; to regulate occupations, facilities, and agencies affecting the public health; to promote the efficient and economical delivery of health care services, to provide the appropriate utilization of health care facilities and services, and to provide for the closure of hospitals or consolidation of hospitals or services; to provide for the collection and use of data and information; to provide for the transfer of property; to provide certain immunity from liability; to provide for penalties and remedies; and to repeal certain acts and parts of acts." 1978 PA 368; MCL 333.7401; MSA 14.15(7401).
The trial court found that the inclusion of controlled substances and the imposition of criminal sanctions in an act relating to public health violated the title-object clause of the constitution.
"No law shall embrace more than one object, which shall be expressed in its title." Const 1963, art 4, § 24.
The purpose of the title-object clause is to assure fair notice to legislators and to the public of a statute's contents.
"The term `object' * * * was not meant to have unlimited breadth, for an exceedingly broad `object' could likely include several concepts that are wholly foreign and incongruous." Advisory Opinion on Constitutionality of 1975 PA 227, 396 Mich. 123, 132; 240 NW2d 193 (1976).
The use of a generic term such as public health would permit the inclusion of any concept that the author wished to include from maraschino cherries *48 to safe exits from buildings and the exhaust from automobiles.
The health code has 75 chapters dealing with crippled children, nursing homes, hospitals, homes for the aged, licensing of doctors and chiropractors, etc. The inclusion of substance control and the imposition of sanctions with the other several chapters of the health code is incongruous.
Reference to the title of the health code fails to reveal any mention of substance abuse. Neither does the title mention criminal penalties.
The Public Health Code violates the title-object clause of the constitution in that:
1) the law embraces more than one object;
2) the object is not expressed in its title.
People v Trupiano, 97 Mich. App. 416; 296 NW2d 49 (1980), lv den 409 Mich. 895 (1980), is wrongly decided.
Having found Article 7, Controlled Substances, to be unconstitutional, the question arises as to the extent to which MCL 333.25101; MSA 14.15(25101), which specifically repeals the former act, 1971 PA 196, is operative. This Court can do no better than to adopt the opinion of the learned trial judge who determined the unconstitutionality of the act. The following is a verbatim quote from that opinion:
"The general rule is set forth in [Anno: Unconstitutionality of later statute as affecting provision purporting specifically to repeal earlier statute, 102 A.L.R. 802, 803.]:
"`Ordinarily, where one statute specifically repeals another and attempts, unconstitutionally, to provide a substitute, the provision of repeal will fall with the act of which it is a part. The question in every case is whether the legislature intended that the repeal should *49 take effect in any event; that is, whether the repeal provision is severable.'
"Sutherland on Statutory Construction (4th ed) concurs with this principle in § 23.24:
"`Likewise, an unconstitutional statute which purports to repeal a prior statute by specific provision is ineffective to do so where, under standard rules governing separability a hiatus in the law would result from the impossibility of substituting the invalid affirmative provisions for the legislation that was to be repealed.'
"Upon careful consideration, this Court concludes that the Legislature would not have repealed 1971 PA 196 as amended, without providing for a suitable replacement. The repealer is essentially and inseparably connected in substance with Article VII and cannot be severed from it. Further, it is clear that the Legislature did not intend the state to be without any law proscribing abuse of controlled substances. It follows then, that the repealer is ineffective and must fall along with Article VII and the provisions of 1971 PA 196 as amended will continue in force and effect. The result is in accord with that reached in M & S Building v Dearborn, 344 Mich. 17 [73 NW2d 283] (1955), John Spry Lumber Co v Sault Savings Bank, 77 Mich. 199 [43 N.W. 778] (1889), People v DeBlaay, 137 Mich. 402 [100 N.W. 598] (1904), OAG 1093 (1949-50). Cf., Campau v City of Detroit, 14 Mich. 276 (1866). [Implied repeal.]
"To reach any other result would leave the state without any controlled substance law, a situation certainly not intended by the Legislature.
CONCLUSION
"To the public, the law should be common sense. Too often it is not. By no stretch of the imagination does the title in question fairly index the Act. Nor does it fairly apprise the Legislature or the public that the body of the Act regulates controlled substances and imposes severe criminal sanctions.
"`This Court is mindful of the worthy purpose and high motivation of the Legislature and the proponents of the subject Act. It is also mindful of the basic *50 dictates of the Constitution of this state. Our test cannot be one of policy but one of constitutionality. On that test, the Act must fall.' Advisory Opinion 1975 PA 227, 396 Mich. 123, [1]33 [240 NW2d 193 (1976)]."
The opinion of the trial court should be affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.