# Newsome v. Board of State Canvassers > Michigan Court of Appeals · July 14, 1976 · 69 Mich. App. 725 URL: https://www.frixlaw.com/law-library/cases/9704590 ## Case - **Full name:** Newsome v. Board of State Canvassers; (Newsome v. Riley) - **Court:** Michigan Court of Appeals - **Decided:** July 14, 1976 - **Citations:** 69 Mich. App. 725; 245 N.W.2d 374; 1976 Mich. App. LEXIS 811 - **Precedential status:** Published - **Opinion:** Dissent by Holbrook - **Judges:** Quinn, Burns, Holbrook - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9704590 ## Opinion text *734 D. E. Holbrook, Jr., J. (dissenting). I. I dissent. In the first place plaintiffs do not contend that the petitions fail constitutionally because the title, if any there be, embraces more than one object but because the object of the proposed legislation is not contained in the purported title. Beechnau v Secretary of State, 42 Mich App 328 ; 201 NW2d 699 (1972), was therefore improperly cited as being authority in the instant case. In any event, I am of the opinion that Beechnau was erroneously decided. While it is true that in Leininger v Secretary of State, 316 Mich 644 ; 26 NW2d 348 (1947), the proposed initiative petitions did not contain a title and hence were invalid, I am of the opinion that the result in Leininger would have been the same had the initiative petitions therein contained a title which did not express the object of the proposed law. Nor am I of the opinion that the Supreme Court’s denial of leave to appeal in Beechnau, 388 Mich 771 (1972), is authority for the proposition that this Court’s opinion in Beechnau was correct. Three justices gave no reason as to why leave was denied. Chief Justice T. M. Kavanagh and Justice Williams both dissented being of the opinion that the issue therein was reviewable. Justice Brennan concurred on the basis that the Court of Appeals’ opinion was correct and should not be disturbed stating: "The Courts, in due course, will consider the legal and constitutional issues, if and when the proposal becomes law, and if and when it is challenged by proper parties in a proper proceeding.” *735 This in effect was the basis of this Court’s decision in Beechnau. Justice Black also concurred, but only because in his opinion the quoted title of the initiated measure was comprehensive and fully compliant with the requirement of Const 1963, art 4, § 24; that requirement being that the "one object” of each legislative measure "shall be expressed in its title”. Hence at least three justices of the Supreme Court considered the issue of constitutional sufficiency of title under the 1963 constitution to be reviewable. Since the other three justices expressed no reason as to why leave was denied it is just as consistent reasoning to conclude that at least one of the three justices denied leave for the reasons expressed by Justice Black as it is that all denied leave for the reasons expressed by Justice Brennan or for some other reason. In my opinion the views expressed by Chief Justice T. M. Kavanagh and Justices Williams and Black are of the most validity. In Leininger v Secretary of State, supra, the Supreme Court at page 648 stated: "The Michigan Constitution of 1908, article 5, § 21, provides in part as follows: " 'No law shall embrace more than one object, which shall be expressed in its title.’ "This makes the title an essential part of every law. That this title requirement applies to laws enacted by the initiative, as well as to those enacted by the legislature, there can he no doubt, particularly in view of the provision of section 1, that no law shall be enacted by the initiative that could not, under the Constitution, be enacted by the legislature. "It follows that the petition did not meet the constitutional requirements prerequisite to its transmittal to *736 the legislature. Nor could the legislature, had it been so disposed, have cured the defect in view of the inhibition of section 1 against legislative change or amendment.” While it is true that the constitutionality of a proposed law is not determined by this Court before enactment, nonetheless, we do determine, in cases properly presented here before submission of the proposed law to the people, whether the constitutional requirements for such submission have been met, and mandamus will issue to prevent such submission when compliance therewith is lacking. Leininger v Secretary of State, supra. The question thus becomes whether constitutional requirements for submission of initiative petitions are required under the 1963 constitution. In my opinion such requirements do exist. While the Michigan Constitution of 1963 does not contain specific provisions relative to the initiative as did the 1908 constitution, nevertheless, implicit within the language of article 4, § 24, and article 2, § 9, of the 1963 Michigan Constitution there exist constitutional requirements for submission relating to the initiative. The Michigan Constitution of 1963, article 4, § 24, contains identical language to that contained in the Michigan Constitution of 1908, article 5, § 21, and the Michigan Constitution of 1963, article 2, § 9, while not identical in language is substantively no different than the above referred to language contained in the Michigan Constitution of 1908, article 5, § 1, to the effect that no law; shall be enacted by the initiative which could not under the constitution be enacted by the Legislature and that the Legislature must enact or reject *737 the initiative petition without change or amendment. 1 The language previously quoted from page 648 of Leininger leads me to believe that the result reached by the Court in Leininger would have been no different even in the absence of the specific provision contained in the 1908 constitution to the effect that any initiative petitions contain a copy of the title of the proposed measure. On this premise and because of the similarity of the language contained in the 1908 and 1963 constitutions referred to above, I conclude that while the Michigan Constitution of 1963 does not contain a specific provision relative to the initiative, nevertheless, implicit within the language of article 4, § 24, and article 2, § 9, of the 1963 Michigan Constitution, constitutional requirements do exist for submission of initiative petitions. Nor do I agree with the majority that Kuhn v Department of Treasury, 384 Mich 378 ; 183 NW2d 796 (1971), specifically disapproves of Leininger . In fact language utilized by Justice Williams in State Highway Commission v Vanderkloot, 392 Mich 159, 185 ; 220 NW2d 416 (1974), indicates Leininger to still be good law. Since article 4, § 24, provides in part that "no law shall embrace more than one object, which shall be expressed in its title”, not only must there *738 be a title but expressed therein must be the object of the proposed legislation. Plaintiffs’ contention that the purported title is defective in that the object of the proposed legislation is not expressed therein is therefore reviewable by this Court. II. The alleged title of the proposal contained at the top of the petitions in question reads as follows: "A petition to initiate legislation to provide for the use of returnable containers for soft drinks, soda water, carbonated natural or mineral water or other non-alcoholic carbonated drink; beer, ale or other malt drink of whatever alcoholic content.” (Emphasis supplied.) I disagree with the majority opinion when it states: "The petition before us is in fact headed by a clear statement of the object of the proposed measure.” While the statement may well be clear it by no stretch of the imagination can be considered as a clear statement of the object of the proposed measure for it is readily apparent from reading the body of the proposed legislation that the fundamental purpose thereof is to prohibit the sale or distribution of the beverages enumerated in the alleged title and to provide criminal penalties for violation of the proposed act. In stating the constitutional test for the constitutional language that "no law shall embrace more than one object, which shall be expressed in its title”, the Supreme Court in Vernor v Secretary of State, 179 Mich 157, 160 ; 146 NW 338 (1914), stated: "We think it is that a title must embrace the object of the act, and the body of the act must not be incon *739 sistent with the title. The pertinent questions should be: Does the title of the act fairly indicate the purpose of the legislation? Is the title a fair index of the act? Does the title of the act fairly inform the legislators and the public of its purposes, as a whole?” With respect to the petitions in the instant case it is my opinion that the object of the act is not expressed in the title, the body of the act is inconsistent with the title, the title of the act does not fairly indicate the purpose of the legislation, is not a fair index of the act and does not fairly inform the legislators and the public of its purposes, as a whole. The language of Vernor v Secretary of State, supra, was utilized by Justice Black in his concurring opinion denying leave to appeal in Beechnau v Secretary of State, supra. Hence, Justice Black, at the very least, felt that the constitutional test expressed in Vernor applied to initiative petitions under the 1963 Michigan Constitution. I agree. Further in interpreting article 4, § 24, of the Constitution of 1963 the Supreme Court in the case of Maki v East Tawas, 385 Mich 151, 157-158 ; 188 NW2d 593 (1971), stated that this section of the constitution was drafted (1) to prevent the Legislature from passing laws not fully understood; (2) to fairly notify the Legislature of a proposed statute’s design; (3) to aid the Legislature and the public in understanding that only subjects germane to the title would be included in the legislation; and (4) to curtail 'logrolling’ by preventing the bringing into a bill diverse subjects not expressed in its title. By the same token it can be said that article 4, § 24, of the Constitution of 1963 was drafted to prevent the citizenry from signing petitions not fully understood; to fairly notify the signatories of petitions of the proposed *740 statute’s design; and to aid the signatories in understanding that only subjects germane to the title would be included in the proposed legislation. The alleged title contained on the petitions in question falls short of these objects. The concept of reasonableness is the hallmark of the cases which have interpreted and applied article 4, § 24 of the Michigan Constitution of 1963 and its forerunners and the test to be applied is whether the title fairly indicates to a reasonable and inquiring mind the general scope, intent, and purpose of the law. Green v Court Administrator, 44 Mich App 259, 263, 264 ; 205 NW2d 306 (1972). In my opinion the above quoted title would not indicate to a reasonable and inquiring mind the general scope, intent, and purpose of the proposed law for the obvious purpose thereof is as previously stated: to prohibit the sale or distribution of the beverages enumerated in the alleged title in nonreturnable containers and to provide criminal penalties for violation of the proposed act. I agree with the statement of the majority that "legislation requiring the use of returnable containers necessarily precludes the use of nonreturnables when both are presently permitted”. However, the title of the proposed legislation clearly does not require the use of returnable containers. It only provides for the use of returnable containers. There is a vast difference. Had the proposed title read, "a petition to initiate legislation to require the use of returnable containers”, or had it read, "a petition to initiate legislation to provide for the use of returnable containers only”, or had it even read, "a petition to initiate legislation to provide exclusively for the use of returnable containers”, or had it contained words of similar import, then I would be of the opinion that the *741 purported title would fairly indicate to a reasonable and inquiring mind the general scope, intent, and purpose of the proposed law. In dissenting I wish to make it unequivocally clear that I express no opinion as to the feasibility, desirability or constitutionality of the body of the proposed law. I fully recognize and respect the efforts of the countless citizens of this state who have expended countless hours of time in circulating petitions to bring to the attention of the Legislature and perhaps ultimately the electorate an issue which they feel is of sufficient magnitude to warrant immediate action. They are to be commended. As a judge, however, I cannot be swayed out of emotion or simply because the proposed law as expressed in the body of the petition may be necessary, desirable, or needed. 2 I write as I do because in my opinion the title contained in the initiative petitions in question is ambiguous, misleading and incapable of being understood by a reasonable and inquiring mind as expressing the general scope, intent, and purpose of the proposed law. Mandamus should issue as prayed. The Michigan Constitution of 1963, article 2, § 9, provides in pertinent part as follows: "The power of initiative extends only to laws which the legislature may enact under this constitution.” The Michigan Constitution of 1908, article 5, § 1, provided in pertinent part as follows: " * * * no law shall be enacted by the initiative that could not under this constitution be enacted by the legislature.” "The law proposed by such petition shall be either enacted or rejected by the legislature without change or amendment within 40 days from the time such petition is received by the legislature.” Nor do I mean to imply that the majority has been so swayed. There simply exists an honest disagreement as to the state of the law and our respective interpretation of the language contained in the title of the initiative petitions. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9704590. Public record. Not legal advice.