People v. Stimer , 248 Mich. 272 ( 1929 )

The defendant was charged with being, in 1927, in possession and control of livestock in Jackson county which was reasonably suspected of being affected with a contagious, infectious, or communicable disease, and with having refused to allow the deputy State veterinary to examine such livestock, contrary to the provisions of Act No. 181, Pub. Acts 1919, as amended; and with having prevented, hindered, and refused to allow an authorized veterinarian to conduct tests for bovine tuberculosis upon such cattle, contrary to the provisions of Act No. 181, Pub. Acts 1919, as amended. Defendant waived trial by jury, and, by his counsel, at the conclusion of the proofs, filed a written motion to dismiss the cause and discharge defendant; which motion was denied. The motion to dismiss was based, among other things, upon the reason that:

"Act No. 13, Pub. Acts 1921, which gives the commissioner of agriculture the supposed power to enforce the provisions of Act No. 181, Pub. Acts 1919, is null and void and the commissioner has no power in this case because said Act No. 13 is void for the following reasons:

"(a) The law embraces more than one object.

"(b) That the objects of said law were not fully expressed in its title.

"(c) That the sections of large numbers of the laws that were 'revised, altered and amended,' by said Act No. 13 were not re-enacted or published at length.

"All of which are in violation of article 5, section 21, of the State Constitution of Michigan,"

The facts, so far as the question herein discussed is concerned, are not in dispute. They are sufficient to warrant a conviction of defendant if Act No. 181, Pub. Acts 1919, and Act No. 13, Pub. Acts 1921, are valid.

It was jurisdictional to charge the violation by defendant of Act No. 181, Pub. Acts 1919, as amended, because, by Act No. 13, Pub. Acts 1921, the State department of agriculture is to exercise the powers and perform the duties formerly vested by law in the department of animal industry and the State veterinary board. The act provides that:

"The departments, boards, commissions and officers whose powers and duties are hereby transferred to the State department of agriculture shall be abolished."

Section 21 of article 5 of the Constitution provides:

"No law shall embrace more than one object, which shall be expressed in its title. No law shall be revised, altered or amended by reference to its title only, but the act revised and the section or sections of the act altered or amended shall be re-enacted and published at length."

The constitutional provision relied upon does not prohibit the passage of complete and independent legislative enactments.

"An act which on its face is a complete and perfect act of legislation and does not purport to amend prior legislation is not interdicted by such a provision, although it amends by implication other legislation on the same subject." 36 Cyc. p. 1064.

Is Act No. 13, Pub. Acts 1921, involved in this case, a new, complete, and perfect independent piece of legislation? If it defines the powers and duties of the commissioner of agriculture without resort to or dependence on any other statute — if it is complete in itself, independent of other legislation — then it is valid; but, if it is insufficient to sustain defendant's conviction, if it does not define the offense with which he is charged, or fix its punishment, if to ascertain the necessary elements of the offense and the punishment prescribed for it resort must be had to other legislative acts, then it is not a complete and independent act, because it depends upon other legislation to define the offense and fix the punishment.

Act No. 181, Pub. Acts 1919, created a department of animal industry abolished by Act No. 13, Pub. Acts 1921. It provided for the appointment of a State commissioner of animal industry, which office was abolished by Act No. 13, Pub. Acts 1921. It provided for the appointment by the governor of two advisory commissioners of animal industry, which offices were abolished by Act No. 13, Pub. Acts 1921. It provided the governor should appoint a State veterinarian on the recommendation of the State commissioner of animal industry. This provision was nullified by Act No. 13, Pub. Acts 1921. It fixed the salary of the State commissioner of animal industry. The statutory salary was abolished by Act No. 13, Pub. Acts 1921. It provided the State commissioner of animal industry should fix the salary of the State veterinarian. This was changed by Act No. 13, Pub. Acts 1921. The commissioner of animal industry was given general charge and oversight of the protection of the health of domestic animals. This duty was by Act No. 13, Pub. Acts 1921, vested in the department of agriculture. It was made the duty of the commissioner of animal industry to make rules and regulations for separating, handling, treating, feeding, and caring for diseased animals, for segregation and isolation. All these duties and the rules made thereunder were done away with by Act No. 13, Pub. Acts 1921. They are now to be discharged and made by the commissioner of agriculture and the agents and employees of the department of agriculture. The commissioner of animal industry might destroy animals to prevent the spread of infectious diseases. This duty is now to be performed by the commissioner of agriculture or his agents or employees. The State commissioner of animal industry was to appraise animals to be killed for the purposes above named, and issue his certificates for the same which were to be paid by the auditor general. This duty, by Act No. 13, Pub. Acts 1921, is now to be discharged by some one else. A person who refused to permit the State commissioner of animal industry to examine his stock might be guilty of a misdemeanor. This statute, as revised, altered, and amended, means that it is an offense to refuse to permit an examination of livestock by the commissioner of agriculture or any of his designated employees. These and a multitude of other changes in Act No. 181, Pub. Acts 1919, by Act No. 13, Pub. Acts 1921, show that a person like the defendant, in order to ascertain his rights and duties, could not do so either from Act No. 13, Pub. Acts 1921, or Act No. 181, Pub. Acts 1919, standing alone. He could not ascertain from Act No. 181, Pub. Acts 1919, anything about the power and authority of the commissioner of agriculture, an officer not named therein, or of his agents or employees. To ascertain the rights and correlative duties of either the State officers or employees attempting to enforce the provisions of Act No. 181, Pub. Acts 1919, or of himself, the defendant would have to be familiar both with Act No. 181, Pub. Acts 1919, and Act No. 13, Pub. Acts 1921. He would have to compare the provisions of the prior law left in force with the later law revising, altering, and amending it. Defendant is charged under the first enacted statute as amended. The people are attempting to act under the first enacted statute as amended. The defendant, to know his rights and duties, must examine the old law and the now law together, and disentangle a clear view of his rights and duties from the confusion and obscurity of conflicting statutes. When, as in this case, the law governing defendant's rights and duties must be created out of the old and the new statutes together, the amendatory statute, incomplete in itself, dependent for its completeness upon the prior enacted statute, falls within the language of the constitutional provision above quoted, and the reasons which led the people to adopt, as a part of the fundamental law, the clear and comprehensive method of amending statutes above quoted.

An amendment to a statute is a change or alteration in its language. 36 Cyc. p. 1053. A change in the existing provisions of an act. Sheridan v. Salem, 14 Ore. 328 (12 P. 925). A broad definition of the word "amendment" would include any alteration or change. State v. Le Blond, 108 Ohio St. 41 (140 N.E. 491). Additional provisions not affecting existing ones are not within the constitutional prohibition. Sheridan v.Salem, supra. A law cannot be said to be either revised or amended when it is abrogated altogether. Falconer v. Robinson,46 Ala. 340.

"In legislative parlance 'amendment' is an alteration or change of something proposed in a bill or established as law. (Bouvier's Law Dictionary.) A statute which adds a provision to a section of an existing statute is an amendment. (Henderson v. City of Galveston, 102 Tex. 163 [114 S.W. 108]). Generally speaking, an amendment repeals or changes some provision of a pre-existing law or adds something thereto. (Board of Public Instructions v. Board of Commissioners,58 Fla. 391 [50 So. 574]). The word 'amendment' is clearly susceptible to a construction which would make it cover several propositions, all tending to effect and carry out one general object or purpose, and all connected with one subject." State v. Cooney, 70 Mont. 355 (225 P. 1007, 1009).

"A law is revised or amended, not when it is repealed, but when it is, in whole or in part, permitted to remain, and something is added to or taken from it, or it is in some way changed or altered to make it more complete and perfect, or to fit it the better to accomplish the object or purpose for which it was made, or some other object or purpose."Falconer v. Robinson, 46 Ala. 340.

Act No. 181, Pub. Acts 1919, is not revised, altered, or amended by reference to its title. No reference whatever is made as such to Act No. 181, Pub. Acts 1919, by its number, title, or otherwise in Act No. 13, Pub. Acts 1921. The revision, alteration, or amendment of Act No. 181, Pub. Acts 1919, was made by abolishing the department of animal industry and the State commissioner of animal industry, and creating a new department and transferring the powers and duties of the department of animal industry and State commissioner of animal industry to the new department so created. By evading specific mention of Act No. 181, Pub. Acts 1919, by title or otherwise, may the constitutional mandate be rendered inoperative?

Under section 21, art. 5, Constitution, the following principles governing the amendment of statutes seem to be established by the authorities:

First: A plurality of objects is prohibited; second: The title of an act must fairly express the subject of legislation;third: Matters can only be included in an amendatory act which are germane to the original act; fourth: An act not complete in itself but which is clearly amendatory in its character and scope must set forth the section or sections as amended and repeal the original section or sections of the amended act.State v. Tibbets, 52 Neb. 228 (71 N.W. 990, 66 Am. St. Rep. 492). Cooley, Const. Lim. (8th Ed.) pp. 313-319.

The second clause of the constitutional provision above quoted is both prohibitory and mandatory. It forbids the amendment by mere reference to the title of an act and enjoins the insertion of the section or sections amended in the amendatory act at length.

"The clause of the Constitution invoked in this case is both prohibitory and mandatory. It forbids amendment by mere reference to title, and enjoins the insertion of the section or sections amended at length. * * * That the act, when compared with other legislation, plainly discloses the legislative intent, does not obviate this objection. Legislation cannot be effected by means and in modes prohibited by the fundamental law." Board of Fire Commrs. v. Trenton,53 N.J. Law, 566 (22 A. 731, 732).

"This constitutional provision must receive a reasonable construction, with a view to give it effect. The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to but not republished, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the Constitution wisely prohibited such legislation."People v. Mahaney, 13 Mich. 481; Cooley's Constitutional Limitations (8th Ed.), p. 314.

"The object of the constitutional amendment was to show the lawmaker the true meaning of the proposed enactment without the necessity of resorting to the old law. * * * No member of the legislature, called upon to cast his vote on the passage of the act, would be informed by an inspection what particular rights or privileges were designed to be conferred; nor would the public, by inspection, be informed of the nature of the legislation about to be adopted." Haring v. State,51 N.J. Law, 386 (17 A. 1079, 1081).

"The object of this constitutional provision is to prevent obscurity, confusion and uncertainty in the laws; likewise to defeat attempted impositions in the enactment of laws. It forbids, among other things, amending a statute simply and solely by striking out or inserting certain words, phrases or clauses; a proceeding formerly common, through which laws became complicated and their real meaning often difficult of ascertainment even by the legal profession. It also in a measure frustrates the passage of vicious legislation through amendments, the scope or effect of which is not apparent from the acts themselves, by means whereof they are made. It deals with such amendments of existing legislation as change the application, force or effect of an act, or a portion thereof."Edwards v. Railroad Co., 13 Colo. 59 (21 P. 1011, 1013).

"The object and intent of the constitutional provision was to prevent statute laws relating to one subject from being made applicable to laws passed upon another subject, through ignorance and misapprehension on the part of the legislature, and to require that all acts should contain within themselves such information as should be necessary to enable it to act upon them intelligently and discreetly." People v. Squire,107 N.Y. 593 (14 N.E. 820, 822, 1 Am. St. Rep. 893).

A provision, "which, if heeded, would greatly tend, by the prevention of ambiguities and uncertainties in legislative enactments to discourage litigious strife, and one which, if obeyed, in the instance under discussion, might have entirely prevented or at least have given a much narrower basis for the present litigation." French v. Woodward, 58 Mo. 66.

"The constitutional provision relates to those cases where the act is strictly amendatory or revisory in its character. Its prohibition is directed against the practice of amending or revising laws by additions, or other alterations, which, without the presence of the original are usually unintelligible.Tuscaloosa Bridge Co. v. Olmstead, 41 Ala. 9; Rice v. Westcott,108 Ala. 353 (18 So. 844).

It has so often been settled by the adjudications of this court that an amendment of a statute or section cannot be made without setting out the amended statute or section at full length, that the question should be considered thoroughly or finally settled. Armstrong v. Berreman, 13 Ind. 422; AttorneyGeneral v. Loomis, 141 Mich. 547; People v. Shuler, 136 Mich. 161; Mok v. Detroit Bldg. Svgs. Ass'n, 30 Mich. 511; People v. Pritchard, 21 Mich. 236; 36 Cyc. p. 1060.

Here there is no attempt to enact a new and independent statute upon the same subject-matter as Act No. 181, Pub. Acts 1919, but an attempt is made by Act No. 13, Pub. Acts 1921, to alter and amend Act No. 181, Pub. Acts 1919, so as to abolish the department and enforcing officers named in it; to transfer, without mention of Act No. 181, Pub. Acts 1919, all of the powers and duties of the department created thereby and the enforcing officers named therein to the State department of agriculture without setting forth the law in the statute as it would appear after being so revised, altered, and amended. If this can be done, as was attempted, there is no limit to the extent to which a statute may be revised, altered, and amended without setting forth the amended statute at full length.

In Martin v. Gilliam County, 89 Ore. 394 (173 P. 938), it is said:

"Here there is no attempt to enact a new and independent statute upon the same subject as the act of 1913,supra, but an attempt to insert into it, and by reference to it, certain provisions enlarging its scope without setting forth the statute as it would appear after being so revised. If it can be done in this instance there is no limit to the extent to which statutes can be revised or amended without setting forth the amended statute at full length, and the constitutional provision above quoted would, therefore, be rendered nugatory."

The precise question is whether, by the passage of Act No. 13, Pub. Acts 1921, Act No. 181, Pub. Acts 1919, and many other statutes, none of which are specifically mentioned either by number, title, or otherwise, in Act No. 13, Pub. Acts 1921, may be altered, revised or amended. This question is not new.

"Even though an act professes to be an independent act and does not purport to amend any prior act, still if, in fact, it makes changes in an existing act by adding new provisions and mingling the new with the old on the same subject so as to make the old and the new a connected piece of legislation covering the same subject, the later act must be considered an amendment of the former and as within the constitutional prohibition."Galpin v. City of Chicago, 269 Ill. 27 (109 N.E. 713, 716, L.R.A. 1917 B, 176).

"Where, as in this case, the new act is not complete, but refers to a prior statute, which is changed, but not repealed, by the new act, so that the full declaration of the legislative will on the subject can only be ascertained by reading both statutes, the very obscurity and the tendency to confusion will be found which constitute the vice prohibited by this section of the constitution." Copland v. Pirie, 26 Wn. 481 (67 P. 227, 228, 90 Am. St. Rep. 769); In re Buelow (D.C.), 98 Fed. 86.

"If the new act is a complete and entire act of legislation on the subject with which it deals, it will not be subject to constitutional objection; but if it merely attempts to amend the law by mingling new provisions with the old, or by adding new provisions so as to create out of the old and new together the law on that subject, it must be regarded as amendatory to the old, and the law must be inserted at length in the new act." In re Lovett (D.C.), 2 Fed. (2d) 307,308.

"Even though an act professes to be an independent act and does not purport to amend any prior act, still if, in fact, it makes changes in an existing act by adding new provisions and mingling the new with the old on the same subject so as to make of the old and the new a connected piece of legislation covering the same subject, the latter act must be considered an amendment of the former and as within the constitutional prohibition." 25 R. C. L. pp. 874, 875.

"The character of an act, whether amendatory or complete in itself, is to be determined not by its title, alone, nor by the question whether it professes to be an amendment of existing laws, but by comparison of its provisions with prior laws left in force, and if it is complete on the subject with which it deals it will not be subject to the constitutional objection, but if it attempts to amend the old law by intermingling new and different provisions with the old ones or by adding new provisions, the law on that subject must be regarded as amendatory of the old law and the law amended must be inserted at length in the new act." Nelson v. Hoffman, 314 Ill. 616 (145 N.E. 688, 690); People v. Knopf, 183 Ill. 410 (56 N.E. 155).

"Where an act incomplete in itself contains new provisions commingled old ones, so that it is necessary to read two acts together in order to determine what the law is, such act is an amendatory one and invalid under this provision of the constitution, whether it purports to amend or revive another statute or not." State of Illinois v. Milauskas, 318 Ill. 198 (149 N.E. 294, 297); People v. Crossley, 261 Ill. 78 (103 N.E. 537).

Act No. 13, Pub. Acts 1921, plainly violates the provisions of section 21, art. 5, of the Constitution.

(a) There is nothing in the title of Act No. 13, Pub. Acts 1921, which in any way indicates its object was to provide for the creation of a board of managers of State fairs to consist of 20 members to be appointed by the governor and confirmed by the senate.

(b) Act No. 13, Pub. Acts 1921, amends not only Act No. 181, Pub. Acts 1919, as we have seen, but a great number of other acts. Any one, upon consulting Act No. 13, Pub. Acts 1921, which does not refer to the acts amended by title or number, must search through the previous enactments of the legislature in order to ascertain the powers and duties of the State department of agriculture created by Act No. 13, Pub. Acts 1921.

(c) Act No. 13, Pub. Acts 1921, clearly amends Act No. 181, Pub. Acts 1919, by abolishing the enforcing officers provided in Act No. 181, Pub. Acts 1919, and their subordinates, and transferring their powers and duties to new enforcing officers created by Act No. 13, Pub. Acts 1921, or provided to be created by the commissioner of agriculture.

(d) It is entirely immaterial whether Act No. 13, Pub. Acts 1921, purports to amend Act No. 181, Pub. Acts 1919, or not. It in fact does alter and amend it, and therefore it must comply with the constitutional provision of republication.

"It is a full compliance with the terms as well as the purpose of that provision, if the section as amended is set forth at length, with such reference to the old law as will show for what the new law is substituted." People v. Pritchard, 21 Mich. 236; People v.Shuler, 136 Mich. 161.

Act No. 13, Pub. Acts 1921, does not set forth the law or the sections of the law as amended, and under all of the authorities this is necessary to comply with the constitutional provision under consideration. People v. Pritchard, supra;People v. Shuler, supra; 36 Cyc. pp. 1060-1062; Cooley's Const. Limitations (8th Ed.), p. 315.

(e) Defendant, to ascertain the rights and duties of the agents and employees of the department of agriculture and of himself, must extricate such knowledge from the repugnant provisions of conflicting statutes, new and old, and from their overlapping, inconsistent, and obscure provisions, obtain that clear knowledge of his rights and duties which the people by the Constitution sought to make available by his reading the last statute upon the subject.

The people contend that if defendant's contention s well taken, the legislature has been proceeding upon a theory which, if overturned, will seriously affect the governmental activities of the State, and all attention to other acts providing for the abolition of administrative departments, officers, boards, and commissions and the transfer of their powers and duties to other boards or departments without specifically naming them or referring to prior legislative acts. So far as this question is entitled to consideration:

The legislature must comply with the constitutional provision so long as it remains in force.

If the people of the State are not desirous of having the legislature comply with the constitutional provision above quoted, then such provision may be abolished by an amendment to the Constitution; but the legislature has no power and authority, while the provision of the Constitution remains in force, to set it aside by an act of legislation. The members of the legislature are but agents of the people. They derive all their power and authority from the people. The Constitution was adopted by the people in the exercise of their sovereignty. It is the fundamental law. It may not be repealed by the legislature.

This court ought not lightly to declare statutes unconstitutional. The general presumption of the regularity of official conduct carries with it the presumption that the members of the legislature, in the passage of Act No. 13, Pub. Acts 1921, acted in accordance with the provisions of the Constitution, but this court, as a co-ordinate department of the government, bound by oath to support the Constitution, is bound to give effect to the will of the people as expressed in the Constitution.

A statute passed in violation of the constitutional provision above quoted is void. 36 Cyc. p. 1065; Mok v. Detroit Bldg. Svgs. Ass'n, 30 Mich. 511.

Act No. 13, Pub. Acts 1921, was passed in direct violation of the constitutional provision above referred to, and, being unconstitutional, neither the department of agriculture nor its agents or employees have any power or authority to enforce the provisions of Act No. 181, Pub. Acts 1919. Defendant's conviction should be reversed and he discharged.

WIEST and McDONALD, JJ., concurred in the result. The late Justice FELLOWS took no part in this decision.