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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. 5883 April 10, 1981 LEGISLATURE: Enactment of bill incorporating provisions of another bill by reference STATUTES: Adoption by reference of enacted statute or act While the Legislature may not incorporate by reference the language of a presently pending appropriation bill into a public act, it may incorporate by reference entire sections of a previously adopted appropriation act or a new act containing general limitations upon appropriations. Honorable Gary M. Owen State Representative The Capitol Lansing, Michigan You advise me that the Legislature is proposing to incorporate by reference in appropriation acts certain language regulating the expenditure of appropriations. The language to be incorporated by reference would be included in the body of an appropriation bill, such as the appropriation for the Department of Agriculture (House Bill 4131), and that language from the bill as enacted into law will be incorporated by reference in all other appropriation bills for fiscal year 1981-82 in the following manner: 'Sec. ___. The appropriations made and the expenditures authorized under this act and the departments, agencies, commissions, boards, offices, and programs for which an appropriation is made under this act are subject to part 2 of the Act No. ___ (House Bill No. 4131 of the 81st Legislature) of the Public Acts of 1981.' (1) Thus, your question is whether language of an appropriations bill which has not been enacted into law may be incorporated by reference in a separate bill. (2) The principle of statutory incorporation by reference (also called 'reference statutes') prevails in Michigan. City of Pleasant Ridge v Governor, 382 Mich 225, 246; 169 NW2d 625, 630 (1969), where the Court reviewed the Michigan and federal cases upholding the doctrine of incorporation of the terms of a statute by reference and quoted, with approval, the following language: "The adoption of an earlier statute by reference makes it as much a part of the later act as though it had been incorporated at full length. [Citations omitted.]' Engel v Davenport (1926), 271 US 33, 38 (46 S Ct 410, 70 L Ed 813)". 'Statutes which refer to other statutes and make them applicable to the subject of the legislation are called 'reference statutes.' Their object is to incorporate into the act of which they are a part the provisions of other statutes by reference and adoption. Reference statutes are of frequent use to avoid encumbering the statute books by unnecessary repetition, and they have frequently been recognized as an approved method of legislation, in the absence of constitutional restrictions. When in one statute a reference is made to an existing law, in prescribing the rule or manner in which a particular thing shall be done, or for the purpose of ascertaining powers with which persons named in the referring statute shall be clothed, the effect generally is not to revive or continue in force the statute referred to for the purposes for which it was originally enacted, but merely for the purpose of carrying into execution the statute in which the reference is made." 382 Mich 225, 246-247; 169 NW2d 625, 631. Where an act is referred to or incorporated by reference in another act, the reference act will be treated as incorporated in toto and without any changes unless the sections intended to be altered or amended are re-enacted and published at length pursuant to Const 1963, art 4, Sec. 25. Alan v Wayne County, 388 Mich 210, 276-277; 200 NW2d 628, 660-661 (1972). In Clay v Penoyer Creek Improvement Co, 34 Mich 204, 208-209 (1876), the Court considered a statute providing for the appointment of commissioners by reference to another act, and stated: 'While we do not question the right or power of the legislature to thus refer to the provisions of another statute, and render them applicable and binding as though incorporated and re-enacted in the act under consideration, yet such a method of incorporating certain sections of previous statutes in subsequent acts, must be confined to cases where the sections so referred to are germane to the later act; where it will not be necessary that the parties should either omit from or add important words or provisions to the sections referred to in order to render them applicable.' 388 Mich 210, 273-274; 200 NW2d 628, 659. Accordingly, an entire act, or certain provisions of an act, which are incorporated by reference, in toto and without any changes, in a subsequent act, is consistent with Const 1963, art 4, Sec. 25, supra, so long as the act or sections so referred to are germane to the later act. (3) Alan v Wayne County, supra; Clay v Penoyer Creek Improvement Co, supra. However, where an act or provisions of an act which is incorporated by reference in a subsequent statute is altered or amended, then the sections intended to be altered or amended must be re-enacted and published at length pursuant to Const 1963, art 4, Sec. 25. Alan v Wayne County, supra. OAG, 1975-1976, No 4896, p 132, 138-141 (September 9, 1975). An appropriations bill remains only a bill until it is enacted into law by a majority vote of the members elected to and serving in each House, Const 1963, art 4, Sec. 26, and action or inaction of the Governor, pursuant to Const 1963, art 4, Sec. 33. Appropriations enacted by the Legislature are found in public acts of the Legislature. It has been held that the term 'statute' is equivalent to the term 'act.' United States v Smith, 27 Fed Cas 1167, 1170 (1820); Young v Gerosa, 202 NYS2d 470 (S Ct, App Div 1960). Applying the above authorities to your question, it follows that the Legislature may incorporate by reference in an appropriations bill certain language regulating appropriations appearing in a duly-enacted appropriations act. However, language in a bill not duly enacted into law is neither a statute nor an act. Therefore, its provisions may not be incorporated by reference. Where a bill has been enacted into law as a statute or appropriations act, the provisions thereof are fixed and definite and may be incorporated by reference subject to the following qualifications. An entire act, or sections of an act, may be incorporated by reference in a subsequent act, where the entire act, or entire sections or section of an act are incorporated without amendment or alteration. Const 1963, art 4, Sec. 25, supra. However, where an entire act or entire portions of an act are incorporated by reference in a later statute or act, which are amended or altered by a subsequent statute or act, such later provisions must be reenacted and published pursuant to Const 1963, art 4, Sec. 25, supra. In addition, any language incorporated by reference must be germane to the object of the act in which it is incorporated. Const 1963, art 4, Sec. 24. See fn 3, supra. While the imposition of conditions by the Legislature in appropriation acts has not been viewed by the courts as adding a second object to an appropriations act, such conditions have been held invalid where they impose impermissible conditions or constitute legislative invasion of separation of powers. Lewis v State, 352 Mich 422, 429-430; 90 NW2d 856 (1958); OAG, No 4896, supra pp 149-156; OAG, 1975-1976, No 4873, p 77 (May 2, 1975). It is my opinion, therefore, that the language of an appropriations bill that has not been enacted into law may not be incorporated by reference. However, the Legislature may either consider the enactment of a new statute or act containing general limitations upon appropriations and thereafter incorporate by reference that statute or act or entire sections thereof in the enactment of appropriation bills, or adopt by reference entire sections of an appropriation act or statute passed in a previous year. Frank J. Kelley Attorney General (1)
(2)
It is noted that under Const 1963, art 4, Sec. 31, as implemented in 1887 PA 116, Sec. 1, as last amended by 1977 PA 61; MCLA 21.91; MSA 3.561, each fiscal year of the state commences October 1 and continues through September 30. Thus, each duly-enacted appropriations act usually take effect on October 1. Thus, all general appropriation acts for the same fiscal year generally take effect simultaneously.(3)
Under Const 1963, art 4, Sec. 24, the so-called Title-Object Clause, 'Whether a provision is germane depends on its relationship to the object of the act.' Midland Township v State Boundary Commission, 401 Mich 641, 654; 259 NW2d 326, 333 (1977), app dism, 435 US 1004; 98 S Ct 1873; 56 L Ed 2d 386 (1978). In State ex rel. Delgado v Sargent, 18 NM 131; 134 P 218 (1913) the Court held unconstitutional general legislation of a permanent character which was contained within an appropriations act. The Court inferred that the language in question pertaining to the appropriation might be held germane and allowable had the restrictive language been limited to the fiscal year for which the appropriation was made by the act. Further, 81A CJS, States, Sec. 238, p 826 declares:'[I]t has been held that general appropriation bills are not limited to bare appropriations for the objects enumerated; any matter germane thereto and directly connected therewith may validly be included, such as provisions for the means and methods of raising, the expenditure of, and accounting for, the funds appropriated.' [Footnotes omitted.]
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