concurring opinion of T. M. Kavanagh, C. J.
How later courts described this case
- concurring opinion of T. M. Kavanagh, C. J.
- Michigan industrial aid financing program involving the issuance of bonds to finance the construction of private industrial plants had a public purpose
Written by the judges who cited it.
The opinion
T. M. Kavanagh, C. J.
(concurring). We concur in and support the reasoning and answers Justice Adams had written prior to the addendum portion of his opinion and we concur in the result reached.
We do not agree with the reasoning in his addendum, although we do agree it is not necessary for us to test PA 1963, No 62, under the 1908 Constitution.
The Michigan Constitution of 1963 was adopted April 1, 1963. The speaker of the house of representatives requested the opinion of the attorney general as to the constitutionality of the proposed Act No 62 under both the 1908 Constitution and the Constitution approved and adopted April 1, 1963.
On April 10, 1963, the attorney general of the State of Michigan gave his opinion approving the constitutionality of the act. On May 8, 1963, the legislature adopted Act No 62, effective immediately, which we are asked to construe.
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 § 180; 171 ALE 1075 and cases cited *324 therein, Druggan v. Anderson, 269 US 36 ( 46 S Ct 14 , 70 L ed 151).
In Druggan v. Anderson, supra, the court was considering the Eighteenth Amendment to the United States Constitution, which was ratified and became effective January 16, 1919, but provided that prohibition therein declared should not become operative until after one year. The national prohibition act was passed after the ratification of the amendment, but before the expiration of the year, and provided that it was not to go into effect until after the amendment did. The court in upholding the act and holding that it went into effect January 16, 1920, made the incidental observation that “indeed it would be going far to say that while the fate of the amendment was uncertain Congress could not have passed a law in aid of it, conditioned upon the ratification taking place.”
In Alabam’s Freight Co. v. Hunt, 29 Ariz 419 ( 242 P 658 ), the contention was made that since, at the time of the passage of the act, the legislature had no power under the Constitution to require an election of remedies in advance of injury, it could not then enact a valid law containing such a provision, which should become effective upon a future amendment of the Constitution permitting it. The court in upholding the act said: “We are of the opinion that the legislature may pass an act to take effect only upon the adoption of a constitutional amendment authorizing it, and that its constitutionality is to be tested by the Constitution as it is at the time the law takes effect, and not as when it was passed.”
The facts in the case before us, where the legislature by its request for the opinion of the attorney general after the 1963 Constitution was adopted by the people and before the enactment of the pro *325 posed law, indicate the legislature was passing PA 1963, No 62, in anticipation of the effective date of the Constitution of 1963.
We conclude, therefore, that the act is not to be tested under the 1908 Constitution but under the 1963 Constitution.
Dethmers, Kelly, and Smith, JJ., concurred with Kavanagh, C. J.