*1 v Board of State Newsome v NEWSOME BOARD OF STATE CANVASSERS
(NEWSOME RILEY) Opinion of the Court 1. Constitutional Law —Initiative Referendum —Initiation Legislation Petitions—Secretary — State —Substantial Compliance Informatory Purpose. — legislation Petitions for the initiation of which were submitted to approved by prior of State to circulation and substantially complied statutory with constitutional and provisions initiative were valid even where technical noncom- pliance passed stringent with a to meet the was shown statute petition requirements longer technical of the no effective Con- power hamstrung stitution of the initiative should not be petition requirements bearing technical which have no (Const 1963, 2, 9, informatory purpose of a art § 168.482, 6.1482, 168.544d; 6.1544[4]). MCLA MSA Legislature—Self-Executing 2. Constitutional Law — Provisions —Additional Burden. Legislature may impose obligations not act to additional on a self-executing provision place constitutional so as to curtail or right guaranteed by provision. undue burdens on a 3. Constitutional Law —Initiative and Referendum —Initiation Legislation —Amendments—Limitation of Actions —Statu- tory Limitations. requirement
The constitutional for amendment be days filed at least before the election at which the amend- upon applies only ment will be voted to constitutional amend- ments; proposed by subject laws initiative arе (Const 1963, statutory shorter constitutional and limitations art 6.1477). 12, 2, 2, 9, 168.477; Const art § MCLA MSA § 4. Constitutional Law —Initiative and Referendum —Initiation Legislation —Petitions—Returnable Containers —Title-Ob- ject Necessary Clause — Preclusion. legislation A for initiation of which described [1, [2] 3-7] 16 Am Jur 42 Am Jur 2d, References Constitutional Law 2d, Initiative and Referendum 21 for Points §§ in Headnotes 95. § et seq. providing for the use of returnable containers failing proposal was not defective for describe the body which for a ban on the use of called nonreturnable containers; already permits present where law the use of *2 bottles, legislation providing returnable for the use of returna- necessarily prеclude bles of would the use nonreturnables. E. D. J. Proposed 5. Constitutional and Law —Initiative Referendum — Legislation Appellate Enactment—Requirements — Review — for Submission —Mandamus. constitutionality proposed by petition of a law an initiative is Appeals prior enactment, not determined the Court to of its determine, properly presented, but the Court in cases requirements petition whether the for submission of the people met, prevent have been and will mandamus issue to compliance lacking. such submission when Title-Object 6. Constitutional Law —Initiative and Referendum — Clause —Petitions Test —Reasonable Minds —Intent of Pe- tition. providing The section of the Constitution of 1963 that no law object shall embrace more than one which shall be stated in its (1) prevent citizenry signing was drafted to from (2) understood, fully fairly notify initiative not to signatories proposed of an initiative of a statute’s (3) design, signatories understanding only and to aid.the subjects germane proposed to the title would be included in the legislation; applied fairly the test to is whether the title inquiring general indicates to a scope, reasonable and mind the intent, (Const purpose 4, proposed and of law art §24). 7. Constitutional Law —Initiative and Referendum —Petitions— Title-Object Providing Clause —Returnable Bottles — for Prohibiting Use — Use. legislation The title in a to initiate states provide for the use of returnable adequately containers not does indicate to a reasonable and inquiring general scope, purpose mind the intent and proposed legislation purpose prohibit where its actual is to beverages sale or distribution of in nonreturnable containers provide penalties and to criminal for violation act. State Newsome Board of Opinion the Court Appeals. Original the Court of Submit- action in (Docket 28962.) Lansing. July 1, 1976, No. ted at July appeal denied, 1976. Leave Decided Mich 833.
Complaint by and others simi- Otis Newsome Riley larly against Wallace others as situated of State Canvassers for members of the Board initiatory prevent the certification mandamus to Washington petitions. L. Thomas Intervention Writ denied. others as defendants. (by Downs, Tom James M. Downs & Edwards Pirich), plaintiffs. Edwards D. for and John Attorney Kelley, General, A. Robert Frank Derengoski, General, D. and Charles Solicitor Attorney Hackney, General, for defend- Assistant ants. *3 intervening Steketee, defendants.
Peter for J., T. M. D. E. Before: P. Burns and Quinn, Jr., JJ. original By mandamus, this action for Quinn, plaintiffs prevent seek to defendant Board of State petitions. certifying initiatory In- Canvassers from participated tervening defendants in the circula- proposed legislation petitions tion of the bаnning requiring the use of returnable and beverage nonreturnable containers. use of complaint counts, the Plaintiffs’ contains three alleges petitions are statuto- first of which that the noncompliance rily MCLA for with deficient reads 168.482; MSA 6.1482. The statute relied on part: pertinent in petitions of all mentioned in this section "The size by 8-1/2 inches 13 inches. If the measure to be
shall be Opinion op the Court * * * * * * legislation , proposes submitted initiation of heading petition part pre- of each shall be * * * pared printed capital 14-point in letters in type: bold face Legislation
Initiation The full text of the amendment so shall added.) follow, printеd (Emphasis 8-point type.” in statutory deficiency complaint The asserted heading is that do not have the Legislation” "Initiation of above the proposed language. true, This assertion is but on petition signatures the side of the used for "initia- legislation” appears tion three times as well as the statement "The full text of the Act appears petition”, on the reverse side of this (See print. Appendix.) dark statutory
Plaintiffs have demonstrated technical noncompliance 168.482; under MCLA MSA 6.1482 but what statute, the effect of later MCLA 6.1544(4)? 168.544d; MSA It reads: " * * * * * * for initiation of * * * may be countywide. circulated Petitions so circu- lated shall prescribed be on а form secretary state, which form substantially shall be provided sections 482 and 544c. secretary may of state provide for a larger form than 8 1/2 inches provide inches and shall for city identification of the township or person which the signing registered. The certificate of the circulator be on the reverse petition.” side of the *4 answering question,
In this rhetorical we note things. spelled First, three Const 5, § art requirements initiatory out in detail the for an Board of Newsome v State Canv Opinion of the Court petition. 168.482; Second, MSA MCLA 6.1482 was passed under that constitution and has not been represents attempt amended. That the statute of Legislature comрly the with the detailed re- quirements provision. of the 1908 constitutional power Third, 2, § Const the art reserves people, specify initiative to the but it does not the petition. Instead, details of the Legislature it leaves to the obligation implementing the section. foregoing recognition
We infer from the on the part adopters of the drafters and of the Constitu- readily that, tion of 1963 to be useful and availa- power hamstrung ble, the initiative should not be petition requirements technical which have no bearing informatory purpose petition. 6.1544(4) By passage 168.544d; of MCLA MSA Legislature implemented recognition, this 6.1544(4) we hold 168.544d; that MCLA MSA applicablе us. before petition
The form of the
was
submitted
approved by
Secretary
prior
of State
to circula
petition
signers
tion. The
informs thereof that
it is a
to initiate
set
petition.
compli
forth on the
This is substantial
ance and we find
form
valid.
statutory
Constitutional and
dum
initiative and referen
provisions
liberally
should be
construed to
purposes,
their
effectuate
to facilitate rather than
hamper
people
the exercise
of these re
rights,
Department
Treasury,
served
Kuhn v
378; 183
NW2d 796 (1971).1
comply substantially
Even if the instant
failed to
with the
statute,
petition fatally
it is doubtful
that such would render
Legislature may
impose
obliga
defective. The
not act to
additional
self-executing
provision
tions on a
constitutional
curtail
so as to
or
place
right guaranteed by
provision.
undue burdens on a
Wolve
rine Golf Club
730 725 Mich 69 op Opinion the Court provisions 1963, 12, art Based of Const on the plaintiffs petitions 2,§ were that not contend filing timely. 4, 1976, and filed The was June general 2, 1976. next By adding election falls on November requirement 120-day 1963, of Const days 12, § 1963, 2 art to the 40 found Const art plaintiffs argue petitions 2, 9,§ that must be prior argument days 120 filed sound, argument If the is to election. filing May 26, 1976. the last date was The 1963, 12, is not because Const art sound applies only petitions § 2 for constitutional only case, amendment. In this we are concerned days 1963, 2, with § the 40 found in Const art and the two-months limitation found in MCLA 168.477; MSA 6.1477. Both can limitations be met filing. 4, 1976, after the June The were timely filed.2 plaintiffs’ position
It is
that
failed
constitutionally
they
title,
because if
contain a
object.
authority
embraces more than one
On the
Secretary
App
State,
of Beechnau v
of
Mich
(1972),
pass
328;
specifically disapproved
Leininger,
supra,
supra.
Kuhn,
see
language
in Wolverine Golf Club v
711, 728-729;
(1970),
plaintiffs,
Plaintiffs also assert title descriptive pro- defective posal. it is not because argument This is based on the fact that the alleged provides for the use of returnablе proposal containers is a provision banning the use nonreturnable con- argument tainers. Plaintiffs refute their own *6 when they permits "[p]resent brief, assert in their law the use of bottles and returnable merchants and using consumers have a full choice of returnable Legislation requiring or nonreturnable bottles”. necessarily pre- the use of returnable containers cludes the use of nonreturnables when both are presently permitted. accepted
The fact that we have this case for argument response and decision is sufficient to plaintiffs’ argument final that mandamus is an appropriate remedy in this case.
Finally, intervеning defendants’ attack on the standing plaintiffs disposed by of is MCLA 168.479; MSA 6.1479.
Writ denied but without costs because of the public question. Burns, J.,
T. M. concurred. Opinion of the Court A
APPENDIX ceded original sold contalneratoa dealer within this Michigan, places engages wmch established in addition deposits property or premises conlaincr, and brand sold or offered for sale deposit give nonreturnable container payment which, premises person is located consumption cents is all other which no met in all other requirements of the first sentence of subdivision association, distributor m this state of that within this state operator container, plastic materials, which, removal оf the container mineral other malt dnnk of whatever alcoholic content beverage lamer certified msection 3sh»ll also least nonreturnable beverage required further which a refund of at least 10cents in deposit (i) (k) Sec 2 (h) ()> Sec 1. As used in 12) (3) ff) (l) (g) "Operator” fc) (b> (e) (d) in) consumers. “Within this state" means within the extenor Scents, to consumers "Manufacturer" Regional “Dealer" means a "Commission" means the "Returnable container” means a "Distributor” "Beverage” A dealer ‘Sale or "Beverage beverages to beverages "Nonreturnable the customer wnoretill* "Person" means of at least 10cents has been refunded m cash provided container, payable customer of tndt m such sales m accordance water, the United States of <1} (o of a oí the dealer or of his lessor respects on which he sells or offers for sale a depoeit containers, shall a and includes the convenient a or other deater. A dealer shall area, and the deposit, vending beverage centers for paid upon who by provide or consumption respect*. ui section 2 A m or a container" means an it, in returnable containers a means a soft aor a dealer or distributor in this or for which no cash refund or a refund of less than 10 at other nonаlcoholic caibonated beverage and the owner or lessee of the means a regularly beverage *7 a nonreturnable be THE PEOPLE a provided requirements (tus legal as further required by the time of deposit in. means a and, vending means container" means a machine deemed a returnable container if the with person container If container on his to. dealer, but not as substitutes the removal of the container from act from the sale or redemption entity. an not, upon terntory subsection containers for sale to America. person of less than 10 cents has area" means whereby sells person bevеrage who sells or offers in a in section 3 shall not be deemed a drink, machine individual, state, premises, within this person provided containing and whether or not beverage removing thedealer composed paid, sale, thedepoeit beverages beverage cash who him within these soda and includes a whether or nol the beverage of returnable containers container or a where the sale is or is airtight who (2), contains 1 container certified as preceding means in section A may is sells liquor or within water, containers of state, sell, may consumption area, required a payable by every partnership, bottles, can, of a combination of these beverage beverage beverage pay is beverage beverage container, for for, be returned state of that OF THE beverages metal, container at least equally property upon be consumed without control commission (c) carbonated natural or or premises for sale to consumers distributors, dealers, limits of consumption drink; limits owned means for refund of sentence are met in gallon 2. manufacturer who of this section are to be the container was deposit. offer for glau, paper, been beverage container container in а returnable Scents, any kind, size, In a containers, its beverage yards made, person or otherwise upon paid beer, ole, including or less of a corporation, depoeit by, the state of beverage owner, within the the sale or paid, beverage beverage dealer or provided upon which it sate, which a and the STATE OF MICHIGAN and for and the off his within from upon or is is at con* the an or or as or a Compiled notice to the referred container withdraw certification. Withdrawal of certification shall be effective date be fined not less than S10000 nor more than prosecution Every day consumers a metal bevеrage beverage the container and the name of this permanently painting, not of sufficient volume lo tainer in the beverage when the contentsare shall shall thepurposes the refund value of the range detached accept nor a thisstateshall or returnable container provided in subsection In the value of the container and the name of this manufacturers certify provided in subsections returnable tamers of uniform may, nable container of refuse to Sec S Act No 142of the Public Acts of Sec 4 Sec. 6. This act (6) Sec. fa) (6) (2) (3) particular (b) (a) (5) (b) (4) (6) (7) Every (5) (4) other method the commission within 60 beverage beveragе refuse specified by The commission The commission shall not by not be ltisreusableasa A A Unless A dealer who does not lithe commission finds If A A dealer shall not A distributor More than 1 manufacturer will in the but 3, (1) person of at least 3 ordinary the beverage beverage by deater within this state shall not rule establish beverage Adeater.distnbutor.ormanufacturerwhovioiatesthisactshall to in subsection or other container under this container shall be when sold under a Laws of is If, pay beverage reason of its container to required beverage person To an set forth m subsection not manufacturer m each size classification. The commission upon ordinary container pay who filed container under inscribed clearly to for application promote opened. course of business. shall take effect two required container shall not be certified securely containers container shall be certified ii the permanent to the dealer its full refund value in reuse as design, any kind, size, who liquid container for reuse shall not refuse to commission, beverage to which does not state thereon the refund value of the container sold or offered for sale appropriate consumed in the dealer's sale or indicate review, person a violation occurs is a shapeor design, beverage course of business any kind, size, pay specific (7). refuse is no container, filed the (3) thereon, the use m this state of (21. to, ounces. affixed to the at promote repealed and to facilitate the return of for certification a refund for a origmal require any deemed certified (hat refuse to longer beverage method, its full refund value in certify after written notice and by section, ddys to container, this brand name state container time review original (7). accept its use more ENACT: embossing but not less than 30 size whether satisfy (I), and brand sold a yean section, after аpplication qualified more than l deposit classifications in it is reusable or accept each of which shall include a size the commission determines that as a container, purposes accept accepting beverage from sell, application by brand sold any only by after it by the state. ordinary under beverage by engraving, separate or reason of words or being certification of a more and to the a requirements offer for from a for application part from a dealer an under this section: by stamp, reusable person 31,000.00 for certification of A than 1 manufacturer a set forth in becomes taw. beverage a the (his container, certification, section 44S191 of the a than 1 manufacturer dealer or distributor returnable contaloer by of which becomes aas manufacturer of by course for offense days container and by consumption commission person empty section is heating cash, accordance with sale, an that cash, a dealer within certification of beverage beverage manufacturer and costs of containers empty after written or container of of this section. dealer, of business embossing, distributor, subsection (1) the or contaloer. an except except Bled, by beverage afforded symbols give it shall denied a label refund empty empty retur- shall con* area con* pay nor to as as to is a a v Board of State Newsome Opinion op the Court *8 725 69 Jr., J. E. Dissent D. Holbrook, (dissenting). D. E.
I.
place plaintiffs
I dissent. In the first
do not
constitutionally
contend that
fail
any
be,
title,
because the
if
there
embraces more
object
object
than one
but because the
of the
proposed legislation
pur-
is not contained
ported
Secretary
State,
title. Beechnau v
(1972),
App 328;
Mich
fore
While it is true that in (1947), NW2d petitions did not initiative contain a title opinion invalid, and hence I were am of the that Leininger the result in would have been the same had the initiative therein contained a express object pro- title which did not posed law. opinion Supreme
Nor am I of the appeal Beechnau, Court’s denial of leave to (1972), authority proposition Mich 771 for the opinion that this Court’s in Beechnau was correct. justices gave why Three no reason as leave was denied. Chief Justice T. M. Kavanagh and Justice being opinion both dissented Williams thе issue therein was reviewable. Justice Brennan Appeals’ concurred on the basis that the Court of opinion was correct and should not be disturbed stating: Courts, course, "The in due legal will consider issues, and constitutional if proposal and when the law,
becomes and if and challenged by proper when it is parties proper in a proceeding.” *9 Board Newsome of State v D. E. Dissent by Holbrook, J. Jr., This in effect basis of this Court’s decision was the concurred, in Beechnau. Justice Black also but only opinion quoted because in the his the comprehensive fully initiated measure was compliant requirement 1963, with Const art being requirement 4, § 24; that that the "one object” legislative of each measure "shall be ex- pressed justices in its title”. Hence at least three Supreme considered the Court issue of sufficiency constitutional of title under the 1963 constitution to be reviewable. Since the other justices expressed why three no as to reason leave just reasoning was denied it as consistent to justices conclude that at one of the least three expressed by denied leave for the reasons Justice Black as it is that all denied leave for the reasons expressed by or for Justice Brennan some other reason. my opinion expressed by
In the views Chief Kavanagh T. Justice M. and Justices Williams validity. and Black are of the most Leininger supra, In Supreme page Court at stated: 5, 21, "The Constitution of article § provides part as follows: " law 'No shall one object, embrace more than expressed shall be in its title.’ an part every "This makes the title essential law. requirement That applies this title to by laws enacted initiative, legisla- as to by well those enacted ture, doubt, particularly there can he no view provision of section by no law shall be enacted not, Constitution, the initiative that could under the legislature. enacted "It follows did not meet the constitu- requirements рrerequisite tional to its transmittal D. E. legislature. legislature, the disposed, had been so Nor could have view of the inhibition cured the defect change against legislative of section 1 or amendment.” constitutionality While it is true that of a law is not determined this Court enactment, nonetheless, determine, before we do properly presented in of the here cases before submission people, law to whether requirements for such constitutional submission pre- met, have been will mandamus issue *10 compliance vent such submission when therewith lacking. Leininger Secretary supra. question The thus whether becomes constitu- requirements tional for submission of initiative required are under the 1963 constitution. my opinion requirements In such do exist. Michigan
While the Constitution does specific provisions not contain relative ini- constitution, nevertheless, tiative as did the 1908 implicit language 4, § 24, within the of article and Michigan 9, 2, § article of the 1963 Constitution requirements there exist constitutional for submis- relating sion to the initiative. Michigan 1963, 4, Constitution of article language
§ 24, contains identical to that contained Michigan 1908, 5, Constitution of article Michigan § 21, 1963, Constitution of arti- language 2, § 9, cle while not identical is sub- stantively no different than the above referred to language Michigan contained in the Constitution 1908, 5, 1, § articlе to the effect no law; by shall be enacted the initiative which could not Legisla- under the constitution be enacted Legislature reject ture that the must enact or of State Canv Board Newsome v D. E. the initiative change without or amend- ment.1
The language previously quoted from page 648 of Leininger me to leads believe that the result reached by the Court in Leininger would have been no different even in the absence of the spe- cific provision contained in the 1908 constitution to the effect any initiative contain a copy of the title of the proposed measure. On this premise and similarity because of the lan- guage contained in the 1908 and 1963 constitu- above, tions referred to I conclude that while the Michigan Constitution of 1963 does not contain a specific provision initiative, relative to the never- theless, implicit within the language 4, of article 24, 2, 9, and article of the 1963 § § Constitution, constitutional requirements do exist for submission of petitions. initiative Nor do I agree with the majority that Kuhn v Department of Treasury, 378; 384 Mich (1971), NW2d 796 specifically disapproves of Leininger. In fact lan- guage utilized Justice Williams High- State way Vanderkloot, Commission v 159, (1974), NW2d indicates Leininger still good law.
Since article provides part that "no § *11 law shall embrace more than one object, which expressed title”, shall be in its not only must there Michigan 1963, 2, 9, The provides Constitution of article § in pertinent part as follows: power only "The of initiative legislature extends to laws which the may enact under this constitution.” 1908, 5, The Constitution provided article § pertinent part as follows: " * * * by no law shall be enacted the initiative that could not by legislature.” under this constitution be enacted proposed by petition "The law such shall be either enacted or rejected by days legislature change without or amendment within 40 petition by legislature.” from the time such is received Mich by D. E. expressed object be a title but therein must be the proposed legislation. of the Plaintiffs’ contention purported that object title defective in that proposed legislation expressed of the is not therein is therefore reviewable this Court. II. alleged proposal contained at the
top question of the reads as follows: "A provide to initiate for the drinks, water, use returnable containers for soft soda carbonated natural or mineral water or other non-alco- beer, drink; holic carbonated ale or other malt drink of whatever (Emphasis supplied.) alcoholic content.” disagree majority opinion
I with the when it states: "The before us is in fact headed object proposed а clear statement of the of the measure.” While the statement well be clear imagination it no stretch of the can be consid- object ered as a clear statement of the of readily apparent measure for from reading proposed legislation purpose prohibit the fundamental thereof is to beverages sale or distribution of the enumerated alleged provide penal- title and to criminal ties for violation of the act. stating
In
the constitutional
test for the consti
language
tutional
"no law shall embrace
object,
expressed
more than one
which shall be
Supreme
title”,
its
Court in Ver nоr v Secre
tary
With in the instant case my opinion object it is of the act is not expressed title, of the act is incon- title, sistent with the the title of the act does not fairly purpose legislation, indicate the is not fаirly a fair index of the act and does not inform legislators public purposes, and the of its aas language Secretary whole. The of Vernor v supra, State, was utilized Justice Black in his concurring opinion denying appeal leave to supra. Hence, Beechnau v Jus- very least, tice at the felt that the constitu- Black, expressed applied tional test in Vernor to initia- tive under the 1963 Constitu- agree. I tion. interpreting 4, § 24,
Further
article
Supreme
Constitution of 1963 the
Court
in Tawas,
case of Maki v
East
157-158;
Mich
(1971),
statute’s and subjects germane understanding only to the that proposed legislation. title included would be alleged The question title contained objects. of these falls short concept hallmark is the of reasonableness interpreted applied the cases and arti- which havе 4, § Constitution of 1963 cle 24 of the applied its the test to be and forerunners and fairly indicates to a reasonable whether the title inquiring general scope, intent, and and mind purpose Administrator, of the law. Green v Court (1972). App 259, 263, 264; 205 NW2d quoted my opinion
In title would not above inquiring indicate to a general and mind the reasonable purpose proposed scope, intent, and of the purpose previ- law for the obvious ously thereof is as prohibit the or stated: to sale distribution of beverages alleged enumerated in the title in provide nonreturnable containers and to criminal proposed penalties act. for violation of agree majority I with the statement of the "legislation requiring use returnable con- precludes necessarily tainers the use of nonreturn- presently permitted”. ables when both are How- proposed legislation clearly ever, the title of the require does not the use of returnable containers. provides only It for the use of returnable contain- proposed ers. There is a vast difference. Had the petition legislation read, "a to title initiate to require containers”, the use of returnable or had it legislation provide read, "a to initiate to only”, for the use of returnable containers or had read, to it even "a initiate to provide exclusively for the use of returnable con- tainers”, import, had it or contained words of similar opinion I
then would be of the Board of State Newsome by D. E. purported fairly to indicate would reasona- general scope, inquiring intent, ble and mind the purpose law. dissenting unequivocally In I wish to make express opinion feasibility, clear that I desirability no constitutionality
or fully recognize respect law. I efforts of this the countless citizens of state who expended have ing petitions time in hours of countless circulat- bring Legis- to the attention of the perhaps ultimately lature and the electorate an magnitude they issue which feel is of sufficient They warrant immediate action. are to be com- judge, swayed however, mended. As a I cannot be *14 simply out emotion or because the law expressed as of the necessary, desirable, or I needed.2 write as I do my opinion because in the title contained in the question ambiguous, initiative leading mis- incapable being understood inquiring expressing reasonable and mind as general scope, purpose intent, and law. prayed.
Mandamus should issue as imply majority Nor swayed. do I mean to has been so simply disagreement There exists an honest state of the law respective interpretation language our contained in the petitions. title of the initiative