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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. 6048

March 18, 1982

CIVIL SERVICE COMMISSION:

Authorization for increases in rates of compensation for state employees

CONSTITUTIONAL LAW:

Const 1963, art 11, Sec. 5--time for Legislature to reject or reduce increases in rates of compensation for state employees

LEGISLATURE:

Time to reject or reduce increases in rates of compensation

The Legislature has 60 calendar days, each day consisting of the total space of time between two successive midnights, to reject or reduce increases in compensation for employees in the state classified civil service system after the date of transmittal of the state budget by the Governor.

The day upon which the state budget was transmitted is excluded from the 60 calendar day period and the last day for the Legislature to act on the inceases for fiscal 1982-1983 is at the end of March 26, 1982.

Mr. Stanley Kravit

Director

Office of the State Employer

Lewis Cass Building

Lansing, Michigan

You have requested my opinion on the following question:

When does the time limitation for the Legislature to act to reject or reduce increases in rates of compensation proposed by the Civil Service Commission, pursuant to Const 1963, art 11, Sec. 5, expire, where the budget was transmitted to the Legislature on January 25, 1982?

Const 1963, art 11, Sec. 5, paragraph 7, states, in part:

'Increases in rates of compensation authorized by the commission may be effective only at the start of a fiscal year and shall require prior notice to the governor, who shall transmit such increases to the legislature as part of his budget. The legislature may, by a majority vote of the members elected to and serving in each house, waive the notice and permit increases in rates of compensation to be effective at a time other than the start of a fiscal year. Within 60 calendar days following such transmission, the legislature may, by a two-thirds vote of the members elected to and serving in each house, reject or reduce increases in rates of compensation authorized by the commission.' (Emphasis added.)

The last sentence of Const 1963, art 11, Sec. 5, paragraph 7, quoted above is new language.

1919 PA 93, Sec. 6; MCLA 21.6; MSA 3.286, imposes a duty upon the Governor to transmit to each branch of the Legislature the state budget within ten days after the Legislature convenes in regular session. Transmittal of the budget on January 25, 1982 was in substantial compliance with this statutory mandate.

The primary rule of construction is the rule of 'common understanding' as contemplated by the people in ratifying Const 1963. Traverse City School District v Attorney General, 384 Mich 390; 185 NW2d 9 (1971).

Webster's Third New International Dictionary defines 'calendar day' to mean the time from midnight to midnight.

Courts of other states have defined the term 'calendar day' and 'day' to mean the space of time between two consecutive or successive midnights. Booker v Chief Engineer of Fire Department of Wolburn, 324 Mass 264; 85 NE2d 766 (1949); Kuznitsky v Murphy, 381 Ill 182; 44 NE2d 893 (1942); State, ex rel Baxter v Brown, 22 Minn 482 (1876); Moag v State, 218 Ind 135; 31 NE2d 629 (1941); Pannell v Glidewell, 146 Miss 565; 111 S 571 (1927); Kane v Commonwealth, 89 Penn 522 (1879); Shaw v Dodge, 5 NH 462 (1831).

The commonly understood meaning of the term 'following' is 'subsequent to: after in time.' Webster's Third New International Dictionary.

It is appropriate to ascertain the circumstances attendant to the adoption of the new language in issue in Const 1963, art 11, Sec. 5 and the purpose sought to be accomplished thereby by consulting the 'Address to the People.' Regents of the University of Michigan v Michigan, 395 Mich 52; 235 NW2d 1 (1975).

Relative to Const 1963, art 11, Sec. 5, paragraph 7, the Address to the People states:

'Power is also given to the legislature, within 60 days after transmission of notice of compensation increases, to reject or reduce the rates recommended--but their action must be by two-thirds vote of the members elected to and serving in each house.' (Emphasis added.)

2 Official Record, Constitutional Convention 1961, p 3405

Thus, it was the common understanding of the people in ratifying Const 1963, art 11, Sec. 5, paragraph 7, that the Legislature would have a period of 60 days, each running from midnight to midnight, to reject or reduce increases in compensation for employees in the state classified civil service as ordered by the Civil Service Commission and included in the state budget transmitted by the Governor subsequent to the day of transmittal of the budget. This was also the understanding of the framers of Const 1963.

The decision of the Michigan Supreme Court in Gorham v Wing, 10 Mich 486, 496 (1862), is also instructive. In construing a statute providing for time for redemption of the sale of land on execution, exclusive of the day of sale, the Court held:

'When time is to be computed from the time of an act done, we think the more reasonable rule is that the day on which the act is done is to be excluded from the computation. . . .'

(Citations omitted.)

OAG, 1965-1966, No 4531, p 393 (December 27, 1966) considered the meaning of the constitutional power of the Senate to disapprove appointments by the Governor pursuant to Const 1963, art 5, Sec. 6, which provides:

'Appointment by and with the advice and consent of the senate when used in this constitution or laws in effect or hereafter enacted means appointment subject to disapproval by a majority vote of the members elected to and serving in the senate if such action is taken within 60 session days after the date of such appointment.'

(Emphasis added.)

The analysis of Const 1963, art 5, Sec. 6 employed in OAG, 1965-1966, No 4531 and the authorities therein relied upon are helpful to the analysis of the law relating to your question. The opinion stated:

'Article V, Section 6 requires the term 'appointment by and with the advice and consent of the senate,' when used in the Constitution or in law, to mean appointment subject to disapproval by a majority vote of the members elected to and serving in the senate if such action is taken within 60 session days after the date of such appointment. The key phrase in Article V, Section 6 is the phrase 'after the date of such appointment.' In the Address to the People the framers have explained to the people that the senate must act to disapprove within 60 session days after the appointment is submitted to it.

A state constitutional provision that provided for appointment to a vacancy in public office until a successor was elected at the first annual election that occurs more than 'thirty days after the vacancy shall have happened' was construed by the Minnesota Supreme Court in State of Minnesota, ex rel Luther L. Baxter v. Luther M. Brown, 22 Minn 482 (1876) to exclude the day on which the vacancy occurred.

'It has also been held that when a time is to be computed after a certain date, such date is excluded in the computation. Holt v. Richardson, 67 SE 798 (Ga 1910); Vorwerk v. Nolte, 24 P 840 (Cal 1890).

'Therefore, it is the opinion of the Attorney General that appointment by and with the advice and consent of the senate under Article V, Section 6 requires that the senate must take action within 60 session days after the date that an appointment is submitted to the senate for confirmation. The date that the senate receives a notice of appointment is excluded in counting the 60 session days.'

OAG, 1965-1966, No 4531, p 393, 399 (December 27, 1966)

In computing the number of days, under Const 1963, art 11, Sec. 5, paragraph 7, that the Legislature has to reduce or reject increases in rates of compensation for employees in the classified state civil service, the date of transmission of the state budget is to be excluded from the total number of 60 calendar days.

It is my opinion, therefore, that where the Governor transmits the state budget to the Legislature on January 25, 1982, the Legislature has until the end of March 26, 1982 in which to reject or reduce the increases in rates of compensation authorized by the Civil Service Commission for the fiscal year 1982-1983.

Frank J. Kelley

Attorney General


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