People v. De Silva , 32 Mich. App. 707 ( 1971 )

32 Mich. App. 707 (1971) 189 N.W.2d 362

PEOPLE
v.
DE SILVA

Docket No. 9829.

Michigan Court of Appeals.

Decided April 23, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Patricia J. Boyle, Assistant Prosecuting Attorney, for the people.

Green, Green & Adams, for defendant.

Before: J.H. GILLIS, P.J., and FITZGERALD and T.M. BURNS, JJ.

J.H. GILLIS, P.J.

Defendant, a gasoline service station operator, was convicted in Highland Park Municipal Court of violating the Weights and Measures Act of 1964, specifically of having in his possession for use an incorrect device for measuring retail sales of motor fuel, contrary to MCLA § 290.608 (Stat Ann 1971 Cum Supp § 12.1081[8]) and MCLA § 290.631(a) (Stat Ann 1967 Rev § 12.1081 [31] [a]). From this conviction defendant appealed to Wayne County Circuit Court, and filed a motion to dismiss. Defendant contended that he was convicted under a statute which was unconstitutionally vague in its determination of "incorrect" measuring devices and improperly delegated legislative power to the Michigan Department of Agriculture and the executive branch of the Federal government.

On March 26, 1970, the trial court granted defendant's motion to dismiss. The people's application for leave to appeal was granted on August 24, 1970.

It has traditionally been held that a legislative body, after declaring a policy and fixing a primary standard, may confer upon an administrative agency the power to make and effectuate rules and regulations to promote the purpose and spirit of the enacted legislation. United States v. Grimaud (1910), 220 U.S. 506 (31 S. Ct. 480, 55 L. Ed. 563); United States v. Shreveport Grain & Elevator Co. (1932), 287 U.S. 77 (53 S. Ct. 42, 77 L. Ed. 175); Smith v. Wayne County Sheriff (1936), 278 Mich. 91, 95; Anno., 79 L. Ed. 474; 1 Davis, Administrative Law Treatise, § 2.07 (1958). The state Legislature created the Department of Agriculture^[1] and authorized its director, by the very nature of his office, also to be the state Director of Weights and Measures.^[2]

MCLA § 290.608 (Stat Ann 1971 Cum Supp § 12.1081[8]) in pertinent part empowers that director to issue, from time to time, rules and regulations necessary to enforcement of the weights and measures act and that:

"These regulations shall include specifications, tolerances and regulations for weights and measures of the character of those specified in section 10, designed to eliminate from use, without prejudice to apparatus that conforms as closely as practical to the official standards, those that (1) are not accurate, (2) are of such construction that they are not reasonably permanent in their adjustment or will not repeat their indications correctly, and (3) facilitate the perpetration of fraud. The specifications, tolerances and regulations for commercial weighing and measuring devices, together with amendments thereto, as recommended by the national bureau of standards and published in national bureau of standards handbook 44 and supplements thereto, or in any publication revising or superseding handbook 44, shall be the specifications, tolerances and regulations for commercial weighing and measuring devices of this state, except as specifically modified, amended or rejected by a regulation issued by the director. For the purposes of this act, apparatus shall be deemed to be `correct' when it conforms to all applicable requirements promulgated as specified in this section; other apparatus shall be deemed to be `incorrect'." (Emphasis supplied.)

The state Legislature has directed that the specifications, tolerances, and regulations for commercial weighing and measuring devices enacted by the director should conform to the specifications published in the National Bureau of Standards Handbook 44 and supplements thereto. However,

"[t]he ultimate and controlling policy decision — as to whether there shall be uniformity of Federal-state regulation in the field — rests always with the Legislature and it does not in any vicious sense abdicate its legislative judgment or authority". State v. Hotel Bar Foods, Inc. (1955), 18 NJ 115, 125 (112 A2d 726, 732). See, also, L. Jaffe, An Essay on Delegation of Legislative Power, 47 Colum L Rev, 561, 564 (1947).

The exigencies of modern government have increasingly dictated the use of general legislative policies which are further interpreted by detailed administrative rules and regulations. This is especially true in specialized areas which are primarily the subject of Federal regulation. Note, 33 Mich L Rev 597, 600-604 (1935). Our Legislature, as others, has wisely guided its administrative agencies towards the adoption of conforming state-Federal regulations. People v. Sell (1945), 310 Mich. 305. See also State v. Hotel Bar Foods, Inc., supra; Yelle v. Bishop (1959), 55 Wash. 2d 286 (347 P2d 1081); Horner's Market, Inc. v. Tri-County Metropolitan Transportation District of Oregon (1970), 2 Or App 398 (467 P2d 671); Thorpe v. Mahin (1969), 43 Ill 2d 36 (250 NE2d 633).

Defendant argues that the authority to determine "incorrect measuring devices" was re-delegated by the National Bureau of Standards to the National Conference on Weights and Measures, a private agency. That is not our view of the meaning and adoption of handbook 44 and the regulations therein. The specifications, regulations, and tolerances for measuring devices used in the retail sale of motor fuel became part of the National Bureau of Standards' regulations, not automatically because of the fact of adoption by the National Conference on Weights and Measures, but as a result of the approval of the national bureau.^[3] The bureau must be assumed to have exercised its judgment as to the propriety of giving such approval, just as it did with respect to the other portions of the regulation. Seale v. McKennon (1959), 215 Or 562 (336 P2d 340).

Secondly, defendant contends that the statute in issue requires the adoption of "handbook 44 and supplements thereto, or * * * any publication revising or superseding handbook 44" as the state standard, and that such a mandate is an illegal delegation of legislative power to set weights and measures standards in futuro.

The people rightly contend^[4] that the trial court, in ruling MCLA § 290.608 (Stat Ann 1971 Cum Supp § 12.1081[8]) unconstitutional, overlooked a settled rule of statutory construction:

"In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature, that is to say:

"If any portion of an act or the application thereof to any person or circumstances shall be found to be invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can be given effect without the invalid portion or application, provided such remaining portions are not determined by the court to be inoperable, and to this end acts are declared to be severable". MCLA § 8.5 (Stat Ann 1969 Rev § 2.216).

The Federal standard for improper measuring devices used in the retail sale of motor fuel was delineated in the National Bureau of Standards Handbook 44. This handbook was incorporated by reference and became the enforceable standard in Michigan. It has consistently been held that statutes which incorporate existing Federal statutes, rules, and regulations by reference are valid and constitutional. Generally: City of Pleasant Ridge v. Governor (1969), 382 Mich. 225; specifically, the Federal standard for weights and measures: McGeorge v. Walker (1887), 65 Mich. 5, 8; Parker, Webb & Co. v. Austin (1909), 156 Mich. 573, 578. In accord: Brock v. Superior Court of Los Angeles County (1937), 9 Cal 2d 291 (71 P2d 209); State v. S & W Waldman, Inc. (1960), 61 NJ Super 403 (160 A2d 677); Seale v. McKennon, supra; New York State Food Merchants' Association v. Grant (1970), 63 Misc. 2d 550 (312 NYS2d 600).

However, it has likewise been the majority holding, and the rule in Michigan, that adoption by reference of future legislation and rules are unconstitutional. Lievense v. Unemployment Compensation Commission (1952), 335 Mich. 339; Brock v. Superior Court, supra; State v. Urquhart (1957), 50 Wash. 2d 131 (310 P2d 261); Anno., 133 A.L.R. 401; Mermin, "`Cooperative Federalism' Again: State and Municipal Legislation Penalizing Violation of Existing and Future Federal Requirements: II", 57 Yale L J 201 (1947); 1 Sutherland Statutory Construction (3d ed), § 310.

In any event, we need not pursue the issue further since we are satisfied that even if the provision "* * * handbook 44 and supplements thereto, or in any publication revising or superseding handbook 44 * * *" were deemed unconstitutional,^[5] the remainder of the statute would properly stand as severable. MCLA § 8.5 (Stat Ann 1969 Rev § 2.216); City of Detroit v. Sanchez (1969), 18 Mich. App. 399; Dawson v. Hamilton (Ky, 1958), 314 S.W.2d 532. In the instant matter, the state did not prosecute defendant under the excised phrase. It may be assumed that had the state proceeded under this phrase alone, the prosecution would have failed. State v. Hotel Bar Foods, supra, p 734; Dawson v. Hamilton, supra, p 536. However, the prosecution in this instance was properly brought for violation of weights and measures standards as outlined in handbook 44, a standard then in existence when incorporated into and made part of MCLA § 290.608 (Stat Ann 1971 Cum Supp § 12.1081[8]).

The trial court's order of dismissal is reversed and the case is remanded for proceedings not inconsistent herewith.

All concurred.

NOTES

[1] MCLA § 285.1 (Stat Ann 1967 Rev § 12.1).

[2] MCLA § 290.606 (Stat Ann 1967 Rev § 12.1081[6]).

[3] Congress is empowered to establish and adopt standards of weights and measures, US Const, art 1, § 8(5). The Bureau of Standards, under the Secretary of Commerce, is charged with the obligation of implementing national standards and enforcing the same, 15 USC §§ 271-278e (1946); the director of the bureau is empowered to publish and promulgate rules and regulations pursuant thereto, Bureau of Standards, 15 USC §§ 271-278e (1964); 15 CFR §§ 200.100-200.107 (1967).

[4] The defense contends that the people raise the issue of severability for the first time on appeal, and therefore, this Court should not consider it. Under normal circumstances, that would be the determination. However, to prevent manifest injustice and litigious arguments, we shall consider the issue. Hunt v. Deming (1965), 375 Mich. 581.

[5] We do not decide the question of whether or not this phrase is an unconstitutional delegation of legislative power. Defendant was charged with violating the standards outlined in the National Bureau of Standards Handbook 44, and it is only that standard with which we are concerned. At some future date, however, we may be required to address ourselves to this phrase, and then, may well declare it unconstitutional. The Legislature may not abdicate its legislative authority to determine state weights and measures standards to a private or congressional agency without maintaining its ultimate authority to set the primary standard.