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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. 5802

October 20, 1980

LEGISLATURE:

Enactment of legislation in anticipation of constitutional amendment

STATUTES:

Effective date dependent upon approval of a proposed constitutional amendment

The Legislature may enact legislation to implement the provisions of a proposed constitutional amendment prior to its adoption by the people.

Honorable Harry A. DeMaso

State Senator

The Capitol

Lansing, Michigan 48909

You have requested my opinion on the following question:

May the Legislature enact legislation to implement the provisions of a constitutional amendment prior to its adoption by the people?

The law is well settled that the Legislature is the repository of all legislative power subject only to restrictions imposed by the State and Federal Constitution. Const 1965, art 4, Sec. 1; Oakland County Taxpayers' League v Board of Supervisors of Oakland County, 355 Mich 305; 94 NW2d 875 (1959).

Legislation enacted does not take effect until the expiration of ninety (90) days from the date of the final adjournment of the session at which it was passed, but the Legislature may give immediate effect to legislation by two-thirds vote of the members elected to and serving in each House as set forth in Const 1963, art 4, Sec. 27.

In OAG, 1979-1980, No 5478, p 128 (April 4, 1979), the opinion concluded:

'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.'

That contingency may be the adoption of a constitutional amendment by the people at a general election sometime after the enactment of the legislation passed in anticipation of that constitutional amendment.

This conclusion finds support in the decisions of appellate courts. The United States Supreme Court has upheld legislation enacted in anticipation of a proposed constitutional amendment. Druggan v Anderson, 269 US 36; 46 S Ct 14; 70 L Ed 151 (1926). In Busch v Turner, 26 Cal 2d 817; 161 P2d 456, 459 (1945), one of the more frequently cited cases on this question, the Supreme Court of California explained the reasoning underlying its approval of legislation passed in anticipation of the approval of proposed constitutional amendment in that state:

'There appears to be no constitutional objection to such an interpretation. Although the taking effect of the act as to incumbents would thus depend upon the happening of a contingency, namely, passage of a constitutional amendment, it has been held in many states that a statute which is expressly made contingent upon the adoption of a constitutional amendment is valid even where, as here, the Legislature would have had no power to so act in absence of the amendment . . .'

In City of Gaylord v Gaylord City Clerk, 378 Mich 273, 323; 144 NW2d 460 (1966), in his concurring opinion, Justice T. M. Kavanagh cited this proposition as the general rule, stating:

'. . . A legislature has power to enact a statute not authorized by the present Constitution where the statute is passed in anticipation of a constitutional amendment authorizing it or provides that it shall take effect upon the adoption of such a constitutional amendment. See 16 Am Jur 2d, Constitutional Law Sec. 180; 171 ALR 1075 and cases cited therein.'

See also Tarrebonne Parish School Board v St. Mary Parish School Board, 242 La 667; 138 So 2d 104 (1962), In re Thaxton, 78 NM 668; 437 P2d 129 (1968), People ex rel Ogilvie v Louis, 49 Ill 2d 476; 274 NE2d 87 (1971), In re Opinion of the Justices, 227 Ala 291; 149 So 776 (1933), Alabam's Freight Co v Hunt, 29 Ariz 419; 242 P 658 (1926), State v Hecker, 109 Or 520; 221 P 808 (1923). Research discloses cases to the contrary only in Maine: In re Opinion of the Justices, 132 Me 519; 174 A 845 (1934), and In re Opinion of the Justices, 137 Me 350; 19 A2d 53 (1941).

It is therefore, my opinion that the Legislature is not precluded from enacting legislation to implement the provisions of a proposed constitutional amendment prior to its adoption by the people where the legislation expressly provides that it shall be effective only if the proposed constitutional amendment is approved by the electors.

Frank J. Kelley

Attorney General

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