Newsome v. Board of State Canvassers

69 Mich. App. 725 (1976) 245 N.W.2d 374

NEWSOME
v.
BOARD OF STATE CANVASSERS.
NEWSOME
v.
RILEY.

Docket No. 28962.

Michigan Court of Appeals.

Decided July 14, 1976.

Downs & Edwards (by Tom Downs, James M. Edwards and John D. Pirich), for plaintiffs.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Charles D. Hackney, Assistant Attorney General, for defendants.

Peter Steketee, for intervening defendants.

Before: QUINN, P.J., and T.M. BURNS and D.E. HOLBROOK, JR., JJ.

Leave to appeal denied, 397 Mich. 833.

QUINN, J.

By this original action for mandamus, plaintiffs seek to prevent defendant Board of State Canvassers from certifying initiatory petitions. Intervening defendants participated in the circulation of the petitions which proposed legislation requiring the use of returnable and banning the use of nonreturnable beverage containers.

Plaintiffs' complaint contains three counts, the first of which alleges that the petitions are statutorily deficient for noncompliance with MCLA 168.482; MSA 6.1482. The statute relied on reads in pertinent part:

"The size of all petitions mentioned in this section shall be 8-1/2 inches by 13 inches. If the measure to be submitted proposes * * * initiation of legislation * * *, the heading of each part of the petition shall be prepared * * * and printed in capital letters in 14-point bold face type:

* * *

INITIATION OF LEGISLATION

* * *

The full text of the amendment so proposed shall follow, printed in 8-point type." (Emphasis added.)

The statutory deficiency asserted by the complaint is that the petitions do not have the heading "Initiation of Legislation" above the body of the proposed language. This assertion is true, but on the side of the petition used for signatures "initiation of legislation" appears three times as well as the statement "The full text of the proposed Act appears on the reverse side of this petition", in dark print. (See Appendix.)

Plaintiffs have demonstrated technical statutory noncompliance under MCLA 168.482; MSA 6.1482 but what is the effect of later statute, MCLA 168.544d; MSA 6.1544(4)? It reads:

"* * * petitions for * * * initiation of legislation * * * may be circulated countywide. Petitions so circulated shall be on a form prescribed by the secretary of state, which form shall be substantially as provided in sections 482 and 544c. The secretary of state may provide for a petition form larger than 8 1/2 inches by 13 inches and shall provide for identification of the city or township in which the person signing the petition is registered. The certificate of the circulator may be on the reverse side of the petition."

In answering this rhetorical question, we note three things. First, Const 1908, art 5, § 1 spelled out in detail the requirements for an initiatory petition. Second, MCLA 168.482; MSA 6.1482 was passed under that constitution and it has not been amended. That statute represents the attempt of the Legislature to comply with the detailed requirements of the 1908 constitutional provision. Third, Const 1963, art 2, § 9 reserves the power of initiative to the people, but it does not specify the details of the petition. Instead, it leaves to the Legislature the obligation of implementing the section.

We infer from the foregoing a recognition on the part of the drafters and adopters of the Constitution of 1963 that, to be useful and readily available, the initiative power should not be hamstrung by technical petition requirements which have no bearing on the informatory purpose of the petition. By the passage of MCLA 168.544d; MSA 6.1544(4) the Legislature implemented this recognition, and we hold that MCLA 168.544d; MSA 6.1544(4) is applicable to the petitions before us.

The form of the petition was submitted to and approved by the Secretary of State prior to circulation. The petition informs the signers thereof that it is a petition to initiate legislation which is set forth on the petition. This is substantial compliance and we find the form of the petitions valid. Constitutional and statutory initiative and referendum provisions should be liberally construed to effectuate their purposes, to facilitate rather than hamper the exercise by the people of these reserved rights, Kuhn v Department of Treasury, 384 Mich. 378; 183 NW2d 796 (1971).^[1]

Based on the provisions of Const 1963, art 12, § 2, plaintiffs contend that the petitions were not filed timely. The filing was June 4, 1976, and the next general election falls on November 2, 1976. By adding the 120-day requirement of Const 1963, art 12, § 2 to the 40 days found in Const 1963, art 2, § 9, plaintiffs argue that the petitions must be filed 120 days prior to election. If the argument is sound, the last filing date was May 26, 1976. The argument is not sound because Const 1963, art 12, § 2 applies only to petitions for constitutional amendment. In this case, we are only concerned with the 40 days found in Const 1963, art 2, § 9 and the two-months limitation found in MCLA 168.477; MSA 6.1477. Both limitations can be met after the June 4, 1976, filing. The petitions were timely filed.^[2]

It is plaintiffs' position that the petitions failed constitutionally because if they contain a title, it embraces more than one object. On the authority of Beechnau v Secretary of State, 42 Mich. App. 328; 201 NW2d 699 (1972), we decline to pass on this question prior to submission of the proposed legislation of the people. We note parenthetically that the plaintiffs' reliance upon Leininger v Secretary of State, 316 Mich. 644; 26 NW2d 348 (1947), is misplaced. The holding there rested upon a specific provision of the Constitution of 1908. The Constitution of 1963 retains no such provision. Furthermore, the petition in Leininger contained no title whatsoever. The petition before us is in fact headed by a clear statement of the object of the proposed measure. Moreover, the Supreme Court has specifically disapproved of Leininger, supra, see Kuhn, supra.

Plaintiffs also assert that the alleged title is defective because it is not descriptive of the proposal. This argument is based on the fact that the alleged title provides for the use of returnable containers and in the body of the proposal is a provision banning the use of nonreturnable containers. Plaintiffs refute their own argument when they assert in their brief, "[p]resent law permits the use of returnable bottles and merchants and consumers have a full choice of using returnable or nonreturnable bottles". Legislation requiring the use of returnable containers necessarily precludes the use of nonreturnables when both are presently permitted.

The fact that we have accepted this case for argument and decision is sufficient response to plaintiffs' final argument that mandamus is an appropriate remedy in this case.

Finally, intervening defendants' attack on the standing of plaintiffs is disposed of by MCLA 168.479; MSA 6.1479.

Writ denied but without costs because of the public question.

T.M. BURNS, J., concurred.

D.E. HOLBROOK, Jr., J. (dissenting).

I.

I dissent. In the first place plaintiffs do not contend that the petitions fail constitutionally because the title, if any there be, embraces more than one object but because the object of the proposed legislation is not contained in the purported title. Beechnau v Secretary of State, 42 Mich. App. 328; 201 NW2d 699 (1972), was therefore improperly cited as being authority in the instant case. In any event, I am of the opinion that Beechnau was erroneously decided.

While it is true that in Leininger v Secretary of State, 316 Mich. 644; 26 NW2d 348 (1947), the proposed initiative petitions did not contain a title and hence were invalid, I am of the opinion that the result in Leininger would have been the same had the initiative petitions therein contained a title which did not express the object of the proposed law.

Nor am I of the opinion that the Supreme Court's denial of leave to appeal in Beechnau, 388 Mich. 771 (1972), is authority for the proposition that this Court's opinion in Beechnau was correct. Three justices gave no reason as to why leave was denied. Chief Justice T.M. KAVANAGH and Justice WILLIAMS both dissented being of the opinion that the issue therein was reviewable. Justice BRENNAN concurred on the basis that the Court of Appeals' opinion was correct and should not be disturbed stating:

"The Courts, in due course, will consider the legal and constitutional issues, if and when the proposal becomes law, and if and when it is challenged by proper parties in a proper proceeding."

This in effect was the basis of this Court's decision in Beechnau. Justice BLACK also concurred, but only because in his opinion the quoted title of the initiated measure was comprehensive and fully compliant with the requirement of Const 1963, art 4, § 24; that requirement being that the "one object" of each legislative measure "shall be expressed in its title". Hence at least three justices of the Supreme Court considered the issue of constitutional sufficiency of title under the 1963 constitution to be reviewable. Since the other three justices expressed no reason as to why leave was denied it is just as consistent reasoning to conclude that at least one of the three justices denied leave for the reasons expressed by Justice BLACK as it is that all denied leave for the reasons expressed by Justice BRENNAN or for some other reason.

In my opinion the views expressed by Chief Justice T.M. KAVANAGH and Justices WILLIAMS and BLACK are of the most validity.

In Leininger v Secretary of State, supra, the Supreme Court at page 648 stated:

"The Michigan Constitution of 1908, article 5, § 21, provides in part as follows:

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

"This makes the title an essential part of every law. That this title requirement applies to laws enacted by the initiative, as well as to those enacted by the legislature, there can be no doubt, particularly in view of the provision of section 1, that no law shall be enacted by the initiative that could not, under the Constitution, be enacted by the legislature.

* * *

"It follows that the petition did not meet the constitutional requirements prerequisite to its transmittal to the legislature. Nor could the legislature, had it been so disposed, have cured the defect in view of the inhibition of section 1 against legislative change or amendment."

While it is true that the constitutionality of a proposed law is not determined by this Court before enactment, nonetheless, we do determine, in cases properly presented here before submission of the proposed law to the people, whether the constitutional requirements for such submission have been met, and mandamus will issue to prevent such submission when compliance therewith is lacking. Leininger v Secretary of State, supra.

The question thus becomes whether constitutional requirements for submission of initiative petitions are required under the 1963 constitution. In my opinion such requirements do exist.

While the Michigan Constitution of 1963 does not contain specific provisions relative to the initiative as did the 1908 constitution, nevertheless, implicit within the language of article 4, § 24, and article 2, § 9, of the 1963 Michigan Constitution there exist constitutional requirements for submission relating to the initiative.

The Michigan Constitution of 1963, article 4, § 24, contains identical language to that contained in the Michigan Constitution of 1908, article 5, § 21, and the Michigan Constitution of 1963, article 2, § 9, while not identical in language is substantively no different than the above referred to language contained in the Michigan Constitution of 1908, article 5, § 1, to the effect that no law shall be enacted by the initiative which could not under the constitution be enacted by the Legislature and that the Legislature must enact or reject the initiative petition without change or amendment.^[1]

The language previously quoted from page 648 of Leininger leads me to believe that the result reached by the Court in Leininger would have been no different even in the absence of the specific provision contained in the 1908 constitution to the effect that any initiative petitions contain a copy of the title of the proposed measure. On this premise and because of the similarity of the language contained in the 1908 and 1963 constitutions referred to above, I conclude that while the Michigan Constitution of 1963 does not contain a specific provision relative to the initiative, nevertheless, implicit within the language of article 4, § 24, and article 2, § 9, of the 1963 Michigan Constitution, constitutional requirements do exist for submission of initiative petitions. Nor do I agree with the majority that Kuhn v Department of Treasury, 384 Mich. 378; 183 NW2d 796 (1971), specifically disapproves of Leininger. In fact language utilized by Justice WILLIAMS in State Highway Commission v Vanderkloot, 392 Mich. 159, 185; 220 NW2d 416 (1974), indicates Leininger to still be good law.

Since article 4, § 24, provides in part that "no law shall embrace more than one object, which shall be expressed in its title", not only must there be a title but expressed therein must be the object of the proposed legislation. Plaintiffs' contention that the purported title is defective in that the object of the proposed legislation is not expressed therein is therefore reviewable by this Court.

II.

The alleged title of the proposal contained at the top of the petitions in question reads as follows:

"A petition to initiate legislation to provide for the use of returnable containers for soft drinks, soda water, carbonated natural or mineral water or other non-alcoholic carbonated drink; beer, ale or other malt drink of whatever alcoholic content." (Emphasis supplied.)

I disagree with the majority opinion when it states: "The petition before us is in fact headed by a clear statement of the object of the proposed measure." While the statement may well be clear it by no stretch of the imagination can be considered as a clear statement of the object of the proposed measure for it is readily apparent from reading the body of the proposed legislation that the fundamental purpose thereof is to prohibit the sale or distribution of the beverages enumerated in the alleged title and to provide criminal penalties for violation of the proposed act.

In stating the constitutional test for the constitutional language that "no law shall embrace more than one object, which shall be expressed in its title", the Supreme Court in Vernor v Secretary of State, 179 Mich. 157, 160; 146 N.W. 338 (1914), stated:

"We think it is that a title must embrace the object of the act, and the body of the act must not be inconsistent with the title. The pertinent questions should be: Does the title of the act fairly indicate the purpose of the legislation? Is the title a fair index of the act? Does the title of the act fairly inform the legislators and the public of its purposes, as a whole?"

With respect to the petitions in the instant case it is my opinion that the object of the act is not expressed in the title, the body of the act is inconsistent with the title, the title of the act does not fairly indicate the purpose of the legislation, is not a fair index of the act and does not fairly inform the legislators and the public of its purposes, as a whole. The language of Vernor v Secretary of State, supra, was utilized by Justice BLACK in his concurring opinion denying leave to appeal in Beechnau v Secretary of State, supra. Hence, Justice BLACK, at the very least, felt that the constitutional test expressed in Vernor applied to initiative petitions under the 1963 Michigan Constitution. I agree.

Further in interpreting article 4, § 24, of the Constitution of 1963 the Supreme Court in the case of Maki v East Tawas, 385 Mich. 151, 157-158; 188 NW2d 593 (1971), stated that this section of the constitution was drafted (1) to prevent the Legislature from passing laws not fully understood; (2) to fairly notify the Legislature of a proposed statute's design; (3) to aid the Legislature and the public in understanding that only subjects germane to the title would be included in the legislation; and (4) to curtail `logrolling' by preventing the bringing into a bill diverse subjects not expressed in its title. By the same token it can be said that article 4, § 24, of the Constitution of 1963 was drafted to prevent the citizenry from signing petitions not fully understood; to fairly notify the signatories of petitions of the proposed statute's design; and to aid the signatories in understanding that only subjects germane to the title would be included in the proposed legislation. The alleged title contained on the petitions in question falls short of these objects.

The concept of reasonableness is the hallmark of the cases which have interpreted and applied article 4, § 24 of the Michigan Constitution of 1963 and its forerunners and the test to be applied is whether the title fairly indicates to a reasonable and inquiring mind the general scope, intent, and purpose of the law. Green v Court Administrator, 44 Mich. App. 259, 263, 264; 205 NW2d 306 (1972).

In my opinion the above quoted title would not indicate to a reasonable and inquiring mind the general scope, intent, and purpose of the proposed law for the obvious purpose thereof is as previously stated: to prohibit the sale or distribution of the beverages enumerated in the alleged title in nonreturnable containers and to provide criminal penalties for violation of the proposed act.

I agree with the statement of the majority that "legislation requiring the use of returnable containers necessarily precludes the use of nonreturnables when both are presently permitted". However, the title of the proposed legislation clearly does not require the use of returnable containers. It only provides for the use of returnable containers. There is a vast difference. Had the proposed title read, "a petition to initiate legislation to require the use of returnable containers", or had it read, "a petition to initiate legislation to provide for the use of returnable containers only", or had it even read, "a petition to initiate legislation to provide exclusively for the use of returnable containers", or had it contained words of similar import, then I would be of the opinion that the purported title would fairly indicate to a reasonable and inquiring mind the general scope, intent, and purpose of the proposed law.

In dissenting I wish to make it unequivocally clear that I express no opinion as to the feasibility, desirability or constitutionality of the body of the proposed law. I fully recognize and respect the efforts of the countless citizens of this state who have expended countless hours of time in circulating petitions to bring to the attention of the Legislature and perhaps ultimately the electorate an issue which they feel is of sufficient magnitude to warrant immediate action. They are to be commended. As a judge, however, I cannot be swayed out of emotion or simply because the proposed law as expressed in the body of the petition may be necessary, desirable, or needed.^[2] I write as I do because in my opinion the title contained in the initiative petitions in question is ambiguous, misleading and incapable of being understood by a reasonable and inquiring mind as expressing the general scope, intent, and purpose of the proposed law.

Mandamus should issue as prayed.

NOTES

[1] Even if the instant petition failed to comply substantially with the statute, it is doubtful that such would render the petition fatally defective. The Legislature may not act to impose additional obligations on a self-executing constitutional provision so as to curtail or place undue burdens on a right guaranteed by the provision. Wolverine Golf Club v Secretary of State, 384 Mich. 461; 185 NW2d 392 (1971).

[2] The language in Wolverine Golf Club v Secretary of State, 24 Mich. App. 711, 728-729; 180 NW2d 820 (1970), relied on by plaintiffs, is a discussion of amendments to the constitution pursuant to Const 1963, art 12, § 2. It is not applicable to initiative petitions.

[1] The Michigan Constitution of 1963, article 2, § 9, provides in pertinent part as follows:

"The power of initiative extends only to laws which the legislature may enact under this constitution."

The Michigan Constitution of 1908, article 5, § 1, provided in pertinent part as follows:

"* * * no law shall be enacted by the initiative that could not under this constitution be enacted by the legislature."

* * *

"The law proposed by such petition shall be either enacted or rejected by the legislature without change or amendment within 40 days from the time such petition is received by the legislature."

[2] Nor do I mean to imply that the majority has been so swayed. There simply exists an honest disagreement as to the state of the law and our respective interpretation of the language contained in the title of the initiative petitions.