Briggs v. Campbell, Wyant & Cannon Foundry Co.

150 N.W.2d 752, 379 Mich. 160, 1967 Mich. LEXIS 70

• Court: Michigan Supreme Court
• Decided: June 6, 1967
• Docket: Calendar 23, Docket 51,412-51,416
• Status: Published

Opinions

Black, J.

Trellsite Foundry & Stamping Company v. Enterprise Foundry, 365 Mich 209, flatly held that the provision in section 9 of part 7 of the workmen’s compensation act (CL 1948, § 417.9 [Stat Ann 1960 Rev § 17.228]) which relates to the apportionment of an award was unconstitutional. Pointing to the distinction between substantive due process and procedural due process, we went on to say (pp 214, ,215); '

“Naturally, a statutory provision affecting private substantive rights in the interests of the general welfare might be reasonable and hence valid in its application to certain circumstances and the reverse as applied to others. The test of reasonableness has ,npt, however, been applied to the right of procedural )due process.- It is absolute. Statutory enactments "authorizing proceedings for taking life, liberty, or property without providing for procedural due process therein cannot stand under constitutional exactments. As applied to the instant case, the apportion'ment provision of the statute, in failing to provide •for notice of hearing on compensation to prior employers, is unconstitutional, leaving no legal basis for a right of apportionment or contribution, regardless of whether notice is or is not served on former employers in a given case.”

•.....When the legislature considered and enacted ámendatory PA 1962, No 189, that body presumptively held Trellsite’s majority opinion in one hand and, in the other, the decision upon which the seated panel of the Court of Appeals (2 Mich App 204) relied principally for holding that Act 189 was not effective retroactively. That decision is In re Davis’ Estate, 330 Mich 647.

* Therein the Court quoted and applied, from Detroit Trust Co. v. City of Detroit, 269 Mich 81, 84, this firm rule;

“We think it is settled as a general rule in this State, as well as in other jurisdictions, that all statutes are prospective in their operation excepting in such cases ¿s the contrary clearly appears from the context of the statute itself.

“ ‘Indeed, the rule to he derived from the comparison of a vast number of judicial utterances ■ upon this subject, seems to be, that, even in the absence of constitutional obstacles to retroaction, a construction giving to a statute a prospective. operation is-; always to be preferred, unless a purpose to give it a retrospective force is expressed by clear and positive command, or to be inferred by necessary, un-' equivocal and unavoidable implication from the words of the statute taken by themselves and in' connection with the subject matter, and the occasion of the enactment, admitting of no reasonable doubt, but precluding all question as to such intention.’' Endlich, Interpretation of Statutes, § 271.”

Act 189 was conceived and born of Trellsite. The legislature sought to enact a statute providing that which, in the constitutional sense, its membership had never provided before. By legal presumption all of the senators and representatives knew at the time that an unconstitutional statutory provision though in form and name a law is from the beginning no law at all; that the invalidity thereof dates from the time of enactment rather than the time of decision branding the provision as unconstitutional, and that such a provision is at no time. ef7 fective for any purpose. The panel below so held. Now with that knowledge at hand, what did :the senators and representatives do by way of prospective or retroactive hint to the judicial branch?

Nothing in the “context of the statute” (referring to Act 189) “clearly” or otherwise suggests an intention to render it retro-effective. Neither does the wording thereof manifest or imply unavoidably' a purpose other than that which is presumptive, that is, prospective operation and effect. I think-we should apply the Davis and Detroit Trust Cases rather than ignore them, thereby upholding a settled rule of statutory construction and thereby' reining up short our past tendencies to manufacture more and more now-for-then law by undue and unjudicious process.

To summarize; I agree specifically with the panel below that Trellsite’s prevailing opinion “destroyed CL 1948, § 417.9 ab initio” and that Act 189 provides no hint of legislative intent that it should apply retroactively as claimed. On that ground my vote to affirm is cast.

Kelly, T. M. Kavanagh, and Adams, JJ., concurred with Black, J.

In Welsh v. Ohanesian, 378 Mich 24, four Justices, the undersigned -being one,'followed and applied the rule of Davis.