Barczak v. Rockwell International Corp.

M. F. Cavanagh, J.

(dissenting). I dissent. I would hold that the acquisition of jurisdiction over a defendant by the Michigan Civil Rights Commission tolls the statute of limitations as to a civil action for damages based on the same facts. MCLA 600.5856(2); MSA 27A.5856(2). The purposes and policies served by the statute of limitations , would not be frustrated by the adoption of the tolling rule. See Johnson v Railway Express Agency, Inc, 421 US 454,473; 95 S Ct 1716, 1726; 44 L Ed 2d 295,309 (1975) (Marshall, J., concurring in part and dissenting in part). Also see Cronin v Minster Press, 56 Mich App 471, 480-481; 224 NW2d 336 (1974), where this Court ruled that an action commenced in a foreign jurisdiction came within the savings clause of MCLA 600.5856(2); MSA 27A.5856(2). The notification principle stressed in Cronin applies equally here. The statute of limitations was not designed to include cases such as the present one.

Although no Michigan case has applied MCLA 600.5856(2); MSA 27A.5856(2) to the jurisdiction acquired in a proceeding before an administrative tribunal or constitutional body like the CRC (Const 1963, art 5, § 29), neither has any case ruled against such an application. The question has never come up before. All the previous cases have involved court proceedings; none have involved a proceeding before a constitutionally created administrative tribunal.

In Johnson v Railway Express Agency, Inc, su*767pra, the Supreme Court looked to state law. If Tennessee had an exception or savings clause similar to Michigan’s, it was not pointed out to the Court. The Court expressly relied on the state’s wisdom in creating the limitation, and the exceptions thereto. In Michigan we have an exception which is available and applicable.

The plaintiff who resorts to the administrative procedures of the CRC and the possibility of conciliation before litigation should not be required to file at the same time a civil action for damages based on the same facts. Such a double filing is unreasonable. The court will either not proceed until the CRC has had opportunity to act or will proceed in frustration of the possibility of conciliation. No policy considerations warrant such a waste of judicial time and derogation of the conciliation process. See Johnson v Railway Express Agency, Inc, supra, 421 US at 474; 95 S Ct at 1727; 44 L Ed 2d at 3l0 (Marshall, J., concurring in part, dissenting in part).

My position on the tolling issue necessitates consideration of a constitutional issue. I do not think that MCLA 423.303a; MSA 17.458(3a), prior to its amendment in 1972, was unconstitutional under the title-object clause, Const 1963, art 4, § 24. The 1965 amendment to the body of the act was clearly within the title and the object of the act. To the extent that Hudak v Ex-Cell-O Corp, 58 Mich App 135; 227 NW2d 251 (1975), holds otherwise, I think it mistaken. The title of an act need not serve as an index of all that the act contains. People v Milton, 393 Mich 234; 224 NW2d 266 (1974), Hertel v Racing Commissioner, 68 Mich App 191; 242 NW2d 526 (1976). The title-object clause was not intended to strike down this type of amendment.