The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5435 January 30, 1979 CONSTITUTION OF MICHIGAN: Art 3, Sec. 2 (separation of powers) CONSTITUTION OF MICHIGAN: Art 4, Sec. 22 (legislation by bill) DEPARTMENT OF AGRICULTURE: PBB testing ANIMAL DISEASES: Testing of dairy cattle for PBB contamination The doctrine of separation of powers contained in Const 1963, art 3, Sec. 2 prohibits the Legislature from enacting an extensive testing program to determine PBB contamination while retaining the power to exempt certain dairy cattle from testing by adoption of a concurrent resolution. The Honorable Francis R. Spaniola State Representative State Capitol Lansing, Michigan 48909 You have requested my opinion on the following three questions: '(1) May Act 77 lawfully be altered by a concurrent resolution of the Legislature? '(2) Was House Concurrent Resolution 790 a legally proper method of altering Act 77? '(3) Was it necessary for House Concurrent Resolution 790 to have passed both houses by a majority of the members serving in the Legislature in order for it to exempt dairy animals from the testing provisions of Act 77?' 1977 PA 77, as amended; MCLA 288.421 et seq; MSA 12.695(21) et seq, prohibits the sale of PBB contaminated milk and meat and provides for an extensive testing program of these foods. By its terms 1977 PA 77, supra, requires such testing until September 30, 1982 which is the expiration date of the Act, 1977 PA 77, supra, Sec. 15, or until dairy cattle are exempted from further testing pursuant to 1977 PA 77, supra, Sec. 10(1), which provides: 'Upon a finding by the director that 1/2 of 1% or less of a category of dairy cattle in this state which have been tested under this act shows levels of polybrominated biphenyl at more than 20 parts per billion, the director shall request the legislature by concurrent resolution to exempt from further testing under this act those dairy cattle which comprise that category. A category shall be by age, county, geographic location, or any other grouping. In addition, the legislature by concurrent resolution may exempt any dairy cattle from the provisions of this act.' Thus, the statute provides that the only method by which dairy cattle may be exempt from the testing provisions prior to September 30, 1982 is through the passage of a concurrent resolution by the Legislature. In 1978 the Legislature passed two concurrent resolutions of exemption, House Concurrent Resolution 436 and House Concurrent Resolution 790. House Concurrent Resolution 436 provided, inter alia, for the exemption of dairy cattle in the Upper Peninsula from the testing requirements of the Act. It passed the House on March 1, 1978 on a roll call vote of 95 to 3 and in the Senate on April 6, 1978 without a roll call vote. In order to answer your first question it must first be determined whether the Legislature may retain authority to determine which dairy cattle in Michigan are to be exempted from the requirements of Act 77, supra through the adoption of a concurrent resolution. In Const 1963, art 3, Sec. 2 the people provided: 'The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.' OAG, 1977-1978, No 5268, p ___ (February 16, 1978) held that the creation of a panel whose purpose it was to review and approve actions of the Department of Education with regard to taxonomy to be in violation of Const 1963, art 3, Sec. 2. That opinion noted the decision of the Supreme Court in Township of Dearborn v Dearborn Township Clerk, 334 Mich 673; 55 NW2d 207 (1952). In that case the Court held that justices of the peace could not serve as members of township boards even though such an arrangement had been in existence for over a hundred years. In its holding, the Court stated: 'In many decisions this Court has upheld and jealously guarded the right to keep distinctly separate one department from another. The doctrine of strick separation was early set forth by Mr. Justice Cooley in People, ex rel. Sutherland, v Governor, 29 Mich 320 (18 Am Rep 89). In holding that the apportionment of powers to one of the 3 coordinate branches is a prohibition of its exercise by either of the other departments, he said: 'Our government is one whose powers have been carefully apportioned between 3 distinct departments, which emanate alike from the people, have their powers alike limited and defined by the Constitution, are of equal dignity, and within their respective spheres of action equally independent. One makes the laws, another applies the laws in contested cases, while the third must see that the laws are executed. This division is accepted as a necessity in all free governments, and the very apportionment of power to one department is understood to be a prohibition of its exercise by either of the others. The executive is forbidden to exercise judicial power by the same implication which forbids the courts to take upon themselves his duties.' 'In other decisions we have reaffirmed that doctrine and applied it to a variety of situations. We have struck down attempts by the legislature to give nonjudicial power to courts (Houseman v Kent Circuit Judge, 58 Mich 364; Nichols v. Judge of Superior Court of Grand Rapids, 130 Mich 187; Anway v Grand Rapids Railway Co., 211 Mich 592 [12 ALR 26]). We forbade any attempt by the legislature to restrict judicial powers or qualifications (People v McMurchy, 249 Mich 147; Attorney General, ex rel. Cook, v O'Neill, 280 Mich 649). In C. F. Smith Co. v Fitzgerald, 270 Mich 659, we reaffirmed the doctrine that the courts cannot legislate under the guise of the examination of the validity of a law. In Wood v. State Administrative Board, 255 Mich 220; and Civil Service Commission v. Auditor General, 302 Mich 673, we emphasized that the legislative and the executive could not encroach upon each other's powers. For other statements of the general rule see Cooke v. Holland Furnace Co., 200 Mich 192 (LRA 1918E, 552), and Local 321, State, County & Municipal Workers of America v. City of Dearborn, 311 Mich 674.' 334 Mich at 682-683; 55 NW2d at 205 The Court further noted the rule that if there is any ambiguity, the doubt should be resolved in favor of the traditional separation of governmental powers. 334 Mich at 689; 55 NW2d at 208. OAG, 1975-1976, No 4873, p 77 (May 2, 1975) held that: 'The legislature may impose funding controls through appropriation legislation but it cannot assume administrative controls with respect to highway commission programs that provide for an exercise of executive powers of government by the legislature which would be in violation of Const 1963, article 3, Section 2.' It will further be noted that in OAG 1945-1946, 03131, p 226 (February 12, 1945) it was held that the operation of a statute may not be suspended by legislative resolution. In 1977 PA 77, supra, it is clear that the Legislature has retained the power to exempt dairy cattle without setting forth any standards. It should be noted that the Legislature, if it wishes, may either enact legislation exempting certain categories of cattle from testing or delegate authority to the Department of Agriculture to exempt certain dairy cattle pursuant to precise statutory standards. The right of the Legislature to delegate such authority to an agency in the executive branch is fully recognized by the courts in numerous decisions. See Argo Oil Corporation v Attwood, 274 Mich 47; 264 NW 285 (1936); Smith v Wayne County Sheriff, 278 Mich 91; 279 NW 227 (1937); City of Traverse City v Railroad Commission, 202 Mich 575; 168 NW 481 (1918); Ranke v Corporation and Securities Commission, 317 Mich 304; 26 NW2d 898 (1947); and Department of Natural Resources v Seaman, 396 Mich 299; 240 NW2d 206 (1976). However, in this instance the Legislature has sought to assume administrative duties by overseeing the actions of the Department of Agriculture in the enforcement of 1977 PA 77, which is in violation of Const 1963, art 3, Sec. 2. Moreover, the Legislature has reserved to itself the power to legislate without the passage of a bill into law. Const 1963, art 4, Sec. 22 provides: 'All legislation shall be by bill and may originate in either house.' See Boyer-Campbell Co v Fry, 271 Mich 282; 260 NW 165 (1935) holding that legislative resolutions are not law. Therefore, it is my opinion that 1977 PA 77, Sec. 10(1), supra, constitutes a violation of both Const 1963, art 3, Sec. 2 and art 4, Sec. 22 for the reason that it purports to authorize members of the Legislature to exercise power limited to the executive branch of government and allows enactment of legislation without passage of a bill into law. Accordingly, House Concurrent Resolutions 436 and 790 are null and void in that the authority under which such resolutions were passed is unconstitutional. Frank J. Kelley Attorney General