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. 6622

March 29, 1990

CONSTITUTIONAL LAW:

Const 1963, art 4, Sec. 24--title-object clause

Const 1963, art 4, Sec. 24--title and total content of the bill clause

In enacting 1989 PA 143, amending Secs. 7333, 7401, and 7403 of the Public Health Code, the Legislature did not violate either the first or the second sentence of Const 1963, art 4, Sec. 24.

Honorable Perry Bullard

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion on the question of whether 1989 PA 143 was enacted in violation of Const 1963, art 4, Sec. 24, sentence 1 or 2.

Article 7 of the Public Health Code, MCL 333.7101 et seq; MSA 14.15(7101) et seq, regulates controlled substances. 1989 PA 143 was enacted to amend Secs. 7333, 7401 and 7403 of the Public Health Code, 1978 PA 368, MCL 333.7333, 333.7401 and 333.7403; MSA 14.15(7333), 14.15(7401), and 14.15(7403). These sections are contained in Article 7, Part 73, dealing with manufacture, distribution and dispensing of controlled substances, and in Article 7, Part 74 dealing with offenses and penalties.

Section 7333(3) of the Public Health Code was amended by 1989 PA 143, in pertinent part, to provide that an official prescription form normally required for dispensing a schedule 2 controlled substance shall not be required for:

"(a) A controlled substance included in schedule 2 that is ordered for and administered to a patient in a hospital licensed by the department of public health or the department of mental health.

"(b) A controlled substance included in schedule 2 that is ordered for and administered to a patient on the premises of a licensed health facility or agency other than a hospital or in the private practice office of a licensed physician, dentist, or podiatrist.

"(c) A controlled substance included in schedule 2 that is administered to an animal by a licensed veterinarian in a veterinarian's office, animal clinic, animal hospital, zoo, or on the premises of the animal's domicile, and a commercially prepared, premixed solution of sodium pentobarbital administered to an animal for the purpose of euthanasia."

Thus, the amendment to Sec. 7333 eliminated the requirement of an official prescription form for a schedule 2 controlled substance ordered for and administered to a patient in a licensed hospital, a licensed health facility agency, or the private practice office of a licensed physician, dentist or podiatrist. The requirement of an official prescription form was also eliminated for a schedule 2 controlled substance administered by licensed veterinarians to animals in certain places and for certain purposes.

Section 7401 of Part 74 of the Public Health Code was amended by 1989 PA 143, in pertinent part, to provide:

"(1) Except as authorized by this article, a person shall not manufacture, deliver, or posses with intent to manufacture or deliver, a controlled substance, a prescription form, an official prescription form, or a counterfeit prescription form. A practitioner licensed by the administrator under this article shall not dispense, prescribe, or administer a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes or outside the scope of practice of the practitioner, licensee, or applicant.

"(2) A person who violates this section as to:

"(a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv) and:

(i) Which is in an amount of 650 grams or more of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for life.

(ii) Which is in an amount of 225 grams or more, but less than 650 grams, of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for not less than 20 years nor more than 30 years.

(iii) Which is in an amount of 50 grams or more, but less than 225 grams, of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for not less than 10 years nor more than 20 years.

(iv) Which is in an amount less than 50 grams, of any mixture containing that substance is guilty of a felony and shall be imprisoned for not less than 1 year nor more than 20 years, and may be fined not more than $25,000.00, or placed on probation for life."

Finally, section 7403 of Part 74 of the Public Health Code was amended by 1989 PA 143 to provide, in pertinent part:

"(1) A person shall not knowingly or intentionally possess a controlled substance or an official prescription form unless the controlled substance, official prescription form, or prescription form was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this article.

"(2) A person who violates this section as to:

"(a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv), and:

(i) Which is in an amount of 650 grams or more of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for life.

(ii) Which is in an amount of 225 grams or more, but less than 650 grams, of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for not less than 20 years nor more than 30 years.

(iii) Which is in an amount of 50 grams or more, but less than 225 grams, of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for not less than 10 years nor more than 20 years.

(iv) Which is in an amount of 25 grams or more, but less than 50 grams of any mixture containing that controlled substance is guilty of a felony, and shall be imprisoned for not less than 1 year and not more than 4 years, and may be fined not more than $25,000.00 or placed on probation for life.

(v) Which is in an amount less than 25 grams of any mixture containing that controlled substance is guilty of a felony, punishable by imprisonment for not more than 4 years or a fine of not more than $25,000.00, or both."

The amendments to Secs. 7401 and 7403 of the Public Health Code increased the minimum penalties for certain offenses involving controlled substances, including possession of a prescription form or an official prescription form for a controlled substance based upon the weight of the controlled substance.

Each of the sections amended by 1989 PA 143 are provisions that had been contained in the Controlled Substances Article of the Public Health Code since its enactment in 1968.

Const 1963, art 4, Sec. 24, provides:

"No law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title."

The analysis of the validity of the enactment of 1989 PA 143 under Const 1963, art 4, Sec. 24, must begin with a study of the legislative history of the Act. Anderson v. Oakland County Clerk, 419 Mich 313; 353 NW2d 448 (1984).

1989 PA 143 was originally introduced on April 24, 1989 as 1989 HB 4698. As introduced, its title stated that it was: "A bill to amend section 7333 of Act No 368 of the Public Acts of 1978, entitled as amended 'Public Health Code,' as amended by Act No 240 of the Public Acts of 1988, being section 333.7333 of the Michigan Compiled Laws." 1989 Journal of the House 817 (No 36, April 24, 1989).

On second reading, HB 4698 was amended by the House to insert amendments to Secs. 7401, 7403, and 7521 of the Public Health Code. 1989 Journal of the House 997-1000 (No 43, May 4, 1989). The title to 1989 HB 4698 was amended by the House to show that the Legislature was amending "sections 7333, 7401, 7403 and 7521" of the Public Health Code. HB 4698, as so amended, was passed by the House on May 8, 1989 by vote of 87 yeas, 1 nay. 1989 Journal of the House 1029 (No 44, May 8, 1989).

Although the Senate on second reading adopted a substitute (S-2) to HB 4698, 1989 Journal of the Senate 1129 (No 45, May 24, 1989), it subsequently enacted HB 4698 as passed by the House. However, the Senate amended the bill to strike out all of Sec. 7521 and to insert a new enacting Sec. 2, making the amendments to Secs. 7401 and 7403 effective upon expiration of 90 days after the enactment of the amendatory act. 1989 Journal of the Senate 1383 (No 51, June 8, 1989). The Senate passed HB 4698 as so amended on June 8, 1989 by vote of 35 yeas, 0 nays. 1989 Journal of the Senate 1385-1386 (No 51, June 8, 1989). The Senate amended the title to HB 4698 to read:

"A bill to amend sections 7333, 7401, and 7403 of Act No. 368 of the Public Acts of 1978, entitled as amended 'An act to protect and promote the public health; to codify, revise, consolidate, classify, and add to the laws relating to public health; to provide for the prevention and control of diseases and disabilities; to provide for the classification, administration, regulation, financing, and maintenance of personal, environmental, and other health services and activities; to create or continue, and prescribe the powers and duties of, departments, boards, commissions, councils, committees, task forces, and other agencies, to prescribe the powers and duties of governmental entities and officials; to regulate occupations, facilities, and agencies affecting the public health; to regulate health maintenance organizations and certain third party administrators and insurers; to promote the efficient and economical delivery of health care services, to provide for the appropriate utilization of health care facilities and services, and to provide for the closure of hospitals or consolidation of hospitals or services; to provide for the collection and use of data and information; to provide for the transfer of property; to provide certain immunity from liability; to regulate and prohibit the sale and offering for sale of drug paraphernalia under certain circumstances; to provide for penalties and remedies; to repeal certain acts and parts of acts; to repeal certain parts of this act; and to repeal certain parts of this act on specific dates,' section 7333 as amended by Act No. 240 of the Public Acts of 1988 and sections 7401 and 7403 as amended by Act No. 60 of the Public Acts of 1988, being sections 333.7333, 333.7401, and 333.7403 of the Michigan Compiled Laws." Id. at 1386.

The House concurred in the Senate amendments to 1989 HB 4698 on June 14, 1989 by vote of 83 yeas, 8 nays. 1989 Journal of the House 1678 (No 63, June 14, 1989). The House also concurred in the amendment of the Senate to the title to HB 4698. Id at 1679. The Governor approved the bill on June 29, 1989. The Act was given immediate effect.

Thus, as originally introduced, 1989 HB 4698 purported to amend only Sec. 7333 of the Public Health Code. However, as passed by the House, it also amended Secs. 7401 and 7403 of the Public Health Code. In addition, the title of the bill was amended to reflect the amendment of these sections of the Public Health Code. The amendments to these three sections of the Public Health Code and to the title of 1989 HB 4698 were passed by the Senate and HB 4698 was approved by the Governor.

The title-object clause embodied in the first sentence of Const 1963, art 4, Sec. 24, contains two concepts: the law shall not embrace more than one object, and the object embraced shall be stated in the title of the law. Advisory Opinion on Constitutionality of 1975 PA 227, (Question 1), 396 Mich 123, 128; 240 NW2d 193 (1976); City of Livonia v Dep't of Social Services, 423 Mich 466, 496; 378 NW2d 402 (1985).

The controlled substances provisions of the Public Health Code have been held constitutional as against title-object challenges under Const 1963, art 4, Sec. 24. People v Trupiano, 97 Mich App 416; 296 NW2d 49, lv den 409 Mich 895 (1980). The protection and promotion of the public health expressed in the title to the Public Health Code "necessarily includes proscriptions and penalties on the use of controlled substances." Id, at 420. Relying upon Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 463; 208 NW2d 469 (1973), which concluded that the scope of a code must be broad enough to encompass whatever is necessary to the enactment of a unified law, the Court of Appeals in Trupiano concluded that the body of the Public Health Code, specifically including Sec. 7401, does not violate the title-object clause of Const 1963, art 4, Sec. 24. Id, at 420. See, also, People v. Lemble, 103 Mich App 220, 222; 303 NW2d 191, lv den 412 Mich 888 (1981), and People v Kidd, 121 Mich App 92, 95; 328 NW2d 394 (1982), lv den 417 Mich 1069 (1983), rejecting similar title-object challenges to section 7403 of the Public Health Code.

Research discloses no appellate decision considering a title-object challenge to Sec. 7333 of the Public Health Code. Nevertheless, the protection and promotion of the public health stated in the title to the Public Health Code manifestly embraces regulation of prescriptions and official prescriptions forms for controlled substances. Thus, such provisions are plainly within the title and object of the Public Health Code.

As amended by 1989 PA 143, Secs. 7333, 7401 and 7403 of the controlled substances article of the Public Health Code could have been enacted as part of the Public Health Code under its original title without violating Const 1963, art 4, Sec. 24, first sentence. See Westgate v. Twp of Adrian, 161 Mich 333, 335; 126 NW 422 (1910).

If the object of a bill is fully expressed in the title of the bill as passed, the status of the title during any stage of the legislative journey has been held to be immaterial under Const 1908, art 5, Sec. 21, a predecessor provision to Const 1963, art 4, Sec. 20. People v McElroy, 72 Mich 446, 452; 40 NW 750 (1888). As passed by both the House and Senate, the title to 1989 HB 4698 gave notice to the public and to the members of the Legislature that Secs. 7333, 7401 and 7403 of the Public Health Code were being amended. OAG, 1985-1986, No 6310, p 126, 130 (July 29, 1985).

It is my opinion, therefore, that 1989 PA 143 was not enacted in violation of the first sentence of Const 1963, art 4, Sec. 24.

Turning to the second portion of your question, the second sentence of Const 1963, art 4, Sec. 24 was analyzed by the court in Anderson v Oakland County Clerk, supra. That case involved a challenge to the enactment of a bill to reapportion the Legislature. The bill in question had been adopted as a substitute for an earlier bill that had been introduced to make changes to the Michigan Election Law, MCL 168.1 et seq; MSA 6.1001 et seq, affecting the duties of local election clerks and to deal with a local election concerning a city income tax. The bill as substituted did not reflect the purposes of the act purportedly amended, nor those of the original bill for which it was substituted. Indeed, as the Court observed, the only similarities between the original bill and the substitute bill that was the finally passed were the bill number and the clause which read "The People of the State of Michigan enact." Id, at 330. Because, from a reading of the total content of the bill and the title, the content introduced an " 'entirely new and different subject matter'," the Court found a clear violation of Const 1963, art 4, Sec. 24. Anderson, 419 Mich at 331, quoting from United States Gypsum Co v Dep't of Revenue, 363 Mich 548, 554; 110 NW2d 698 (1961).)

However, when a bill to amend an existing act is considered by the Legislature, it is not bound by the title or the content of the bill as introduced, but by the title of the act being amended. Moeller v Wayne County Bd of Supervisors, 279 Mich 505, 512; 272 NW 886 (1937).

The title to 1989 HB 4698, as passed by the House and Senate, states that it is an act to amend the Public Health Code "to protect and promote the public health." As introduced, it amended Sec. 7333 to protect and promote the public health by dealing with official prescription forms for controlled substances in situations where licensed practitioners order and administer the substance in licensed hospitals, in licensed health facilities, in their private offices, or, in the case of animals, in certain other places. As amended, the bill also amended Secs. 7401 and 7403 to protect the public health by increasing penalties for violation of the controlled substance provisions in the Public Health Code. The latter amendments did not introduce new and different subject matter, for they were clearly within the title to the Public Health Code as originally enacted and within the title of 1989 HB 4698 as passed by both houses of the Legislature.

It is my opinion, therefore, that the enactment of 1989 PA 143 did not violate the second sentence of Const 1963, art 4, Sec. 24.

Frank J. Kelley

Attorney General