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Opinion No. 5478

April 4, 1979


'Tie-barred' provisions


Art 4, Sec. 24 (title-object clause)


Art 4, Sec. 33 (governor's veto)

There is no constitutional impediment to placing a provision in a legislative bill which states that the bill will not become effective unless and until another specified bill is also enacted into law where there is a direct and relative interdependence between the two bills.

While a court may sustain the 'tie-barring' of one bill to another interdependent bill as constitutional under Const 1963, art 4, Sec. 24 (which requires a law to have one object expressed in its title) better practice would suggest that a reference be made in the title to the tie-barred provision.

The Honorable William Bryant, Jr.

Republican Floor Leader

State Capitol Building

Lansing, Michigan 48909

You have asked for my opinion of the constitutionality of the legislative device of 'tie-barring' which refers to the practice of placing a provision in a bill which states that it will not become effective unless and until another specified bill is also enacted into law. Thus, a statute which contains a 'tie-barred' provision does not become operative until the happening of a contingency, the enactment of another statute.

Although the courts of our state have reviewed legislation which contains tie-bar provisions, the courts have not directly addressed the constitutionality of this practice. See, for example, Board of County Road Commissioners v Board of State Canvassers, 50 Mich App 89; 213 NW2d 298 (1973), aff'd 391 Mich 666, 218 NW2d 144 (1973), Michigan Good Roads Federation v Board of State Canvassers, 333 Mich 352; 53 NW2d 481 (1952).

In your request you inquire whether 'tie-barring' is constitutional in light of Const 1963, art 4, Sec. 24 which 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 purpose of the above constitutional provision was explained by the Supreme Court in The People ex rel Drake v Mahaney, 13 Mich 481 (1865), as follows:

'. . . The practice of bringing together into one bill subjects diverse in their nature, and having no necessary connection, with a view to combine in their favor the advocates of all, and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the state. It was scarcely more so, however, than another practice, also intended to be remedied by this provision, by which, through dexterous management, clauses were inserted in bills of which the titles gave no intimation, and their passage secured through legislative bodies whose members were not generally aware of their intention and effect. There was no design by this clause to embarrass legislation by making laws unnecessarily restrictive in their scope and operation, and thus multiplying their number, but the framers of the constitution meant to put an end to legislation of the vicious character referred to, which was little less than a fraud upon the public, and to require that in every case the proposed measure should stand upon its own merits, and that the legislature should be fairly notified of its design when required to pass upon it. See Board of Supervisors v Henan, 2 Minn., 336. [13 Mich at 494-495]

See also Commerce-Guardian Trust and Savings Bank v State of Michigan, 228 Mich 316; 200 NW 267 (1924); Rohan v Detroit Racing Association, 314 Mich 326; 22 NW2d 433 (1946).

The majority of states have constitutional provisions which are practically identical to Const 1963, art 4, Sec. 24. The primary purpose of these provisions is to prevent log rolling--the practice of combining several proposals each of which might not succeed on its own merit in a single bill, see Ruud, 'no law shall embrace more than one subject,' 42 Minn L Rev 389 (1958); Manson, Title-Body Clause Provisions of our State Constitutions, 12 Mich SBJ 236 (1933); Attorney General v Hollister, 59 Mich 590; 26 NW 777 (1886); Rohan v Detroit Racing Assn, supra. The requirement that the object of the bill be clearly shown in its title is designed to benefit members of the legislature as well as the public by clearly informing all persons of the purpose of the legislation, Leininger v Alger, 316 Mich 644; 26 NW2d 348 (1947).

Thus, the practice of 'tie-barring' may be a violation of Const 1963, art 4, Sec. 24, only if it results in the enactment of a statue which does not sufficiently express its purpose in its title or if the legislation contains more than one purpose.

In general, law making bodies have the authority to specify in an act that a statute will take effect or become operative only upon the happening of a delineated contingency, 2 Sutherland Statutory Construction (4th Ed), Sec. 33.04, p 7; Peck v City of New Orleans, 199 La 76; 5 So 2d 508 (1941); Gillesby v Board of Commissioners of Canyon County, 17 Idaho 586; 107 p 71 (1910). In Marr v Fisher, 182 Ore 383, 388; 187 P2d 966, 968 (1948), the Oregon Supreme Court discussed the legal affect of an enactment which becomes operative only upon the happening of a contingency:

'While the legislature cannot delegate its power to make a law, it is well settled that it may make a law to become operative on the happening of a certain contingency or future event. 11 Am. Jur. 926, Sec. 216; 50 Am. Jur. 516, Sec. 497. The rule is thus clearly stated in 16 C.J.S., Constitutional Law, Sec. 141: 'It is a general rule that where an act is clothed with all the forms of law and is complete in and of itself, it is fairly within the scope of the legislative power to prescribe that it shall become operative only on the happening of some specified contingency, contingencies, or succession of contingencies. Such a statute lies dormant until called into active force by the existence of the conditions on which it is intended to operate."

Tie-barred statutes are statutes which do not become operative until the happening of a contingency, the passage of another statute. As a result, such statutes are a form of contingent legislation, and it is within the power of the legislature to enact contingent legislation.

Although the question which you raise has never been dealt with by our Supreme Court, the Florida Supreme Court has dealt with this question on two occasions. In Gaulden v Kirk, 47 So 2d 567 (Fla 1950), the court was called upon to determine whether three statutes which were tie-barred to each other were constitutional under the Fla Const, art 3, Sec. 16, which is equivalent to art 4, Sec. 24 of our constitution. The court upheld the tie-barred statutes and stated:

'The universal rule is that, 'In the absence of constitutional or statutory provisions to the contrary, statutes may become effective on the happening of certain conditions or contingencies specified in the act, or implied therefrom.' 59 C. J. 1156, section 688; Town of San Mateo City v. State ex rel. Landis, 117 Fla. 546, 158 So. 112; Brown v City of Tampa, 149 Fla. 482, 6 So. 2d 287.

'The contingency may be the enactment or approaval of another enactment. Shehane v. Wimbish, 34 Ga. App. 608, 131 S.E. 104, text 105; Marr v. Fisher, 182 Or. 383, 187 P.2d 966, Text 968 and 969; People V. Sterling Refining Co., 86 Cal. App. 558, 261 P. 1080, text 1083; Gillum v Johnson, 7 Cal. 2d 744, 62 P.2d 1037, 63 P.2d 810, 108 A.L.R. 595, text 602; Johnson v. State of Washington, 187 Wash. 605, 60 P.2d 681, 106 A.L.R. 237. [Emphasis added]

'The contention that the Florida Revenue Act of 1949 is unconstitutional because 'integrated as it is with these two separate laws [it] embraces more than one subject without proper title' and therefore contravenes Section 16, Article III of the Florida Constitution, is without merit. Chapter 26319, Acts of Special Session of 1949, is a law which embraces but one subject and matters properly connected therewith. The fact that it is an act which was passed as part and parcel of a comprehensive tax program devised by the legislature in the exercise of its lawmaking power, makes it none the less a single law within the purview of Section 16, Article III of our Constitution. Indeed, the legislature could not perform its duties or measure up to its responsibilities if we were to give the narrow construction to Section 16, Article III of the Florida Constitution which is suggested by counsel for appellant. No single law could possibly be invented which would meet constitutional requirements and at the same time contain all of the essential features of a comprehensive legislative program on any subject which affects the general welfare so vitally as does taxation. The legislature pursued the only available course since its program necessarily involved a consideration of the tax structure not only of the State but also of its multiple political subdivisions and quasi-independent governmental units within its borders in the interest of the welfare of its citizens as a whole. A legislative program of such magnitude may necessarily involve several subjects before the ultimate end effect can be accomplished. It was essential, therefore, in enacting its program that the legislature provide a separate law for each subject with which it dealt. It had no alternative and it cannot be said that it violated Section 16, Article III of the Florida Constitution for actually it complied meticulously with the requirements of that constitutional provision.' [47 So 2d at 575]

See also State v Reado, 295 So 2d 440 (La 1974).

The only qualification which has been imposed upon the practice of 'tie-barring' is that there be a reasonable relationship between the statutes which have been tie-barred to each other:

'Appropriations may constitutionally be made contingent upon matters or events reasonably related to the subject of the appropriation, but may not be made to depend upon entirely unrelated events. For example, an appropriation to a university might be contingent upong the registration of a minimum number of students who could benefit from the appropriation or contingent upon the state revenues reaching a certain level. There is no constitutional impediment to an appropriation being made contingent upon another bill, reasonably related to the appropriation and where there is a direct and relative interdependence between them, becoming law.' [In Re Advisory Opinion To The Governor, 239 So 2d 1, 9 (Fla 1970); Emphasis added]

There is some question as to whether the existence of a tie-bar provision in a statute must be specifically mentioned in the title. In Peck v City of New Orleans, supra, the Louisiana Supreme Court held that a statute whose operation was made contingent upon ratification and adoption of a proposed constitutional amendment did not violate the title-purpose clause of the Louisiana Constitution because the title of the statute specifically contained a proviso stating that the statute would not take effect and become operative until ratification and adoption.

However, People v Sterling Refining Co, 261 P 1080, 1084 (Cal App 1927), held that the effective date of an act need not be expressed in the title:

'It is also well settled that this constitutional provision (section 24 of article 4), requiring the subject of the act to be expressed in the title, must be liberally construed, and that all is required to be contained therein in order to meet the constitutional requirements is a reasonably intelligent reference to the subject to which the legislation is to be addressed. . . .

'The law is also well established that it is not necessary that the title of an act should embrace an abstract of its contents. It has always been the custom to state the subject of the bill in general terms with the fewest words, and the framers of the Constitution doubtless intended the Legislature to conform to that custom. Numerous provisions having a general object fairly indicated by the title may be united. When the general purpose is declared, the details provided for the accomplishment of that purpose will be regarded as necessary incidents. . . .

'. . . When a law goes into effect is no part of the act itself, and it is never the custom of the Legislature to place in the title the date when the act goes into effect. Hundreds of legislative enactments may be examined without the discovery of a single one in which the operative date is expressly mentioned in the title.'

Thus by analogy, it is my opinion that while a court may sustain the 'tie-barring' of one bill to another interdependent bill as constitutional under Const 1963, art 4, Sec. 24, better practice would suggest that a reference be made in the title to the tie-barred provision.

You also ask whether the practice of 'tie-barring' violates Const 1963, art 4, Sec. 33, which gives the Governor the right to veto individual bills or to sign such bills into law. The power to veto is a limited legislative function conferred upon the Governor by the constitution:

'The veto power is a legislative function, although it is not affirmative and creative, but is strictly negative and destructive. It cannot be exercised by the executive except through constitutional grant. . . .' [Wood v State Administrative Board, 255 Mich 220, 224; 238 NW 16 (1931)]

The Governor's veto power is limited to approval or disapproval and may not be extended to modify a bill which has been passed by the legislature, Wood v State Administrative Board, supra, at 255 Mich 225.

This precise issue was brought to the Florida Supreme Court in In Re Advisory Opinion to the Governor, supra. The court upheld the tie-barred legislation even though the Governor informed the court that his ability to approve or disapprove the legislation was circumscribed.

Thus, it is my opinion that the practice of 'tie-barring' statutes which are reasonably related to each other does not unconstitutionally infringe upon the power conferred on the Governor by Const 1963, art 4, Sec. 33.

Frank J. Kelley

Attorney General