CONSTITUTIONALITY, 1972 PA 294

M.S. COLEMAN, J.

FACTS:

On October 31, 1972 the Michigan Legislature enacted PA 294 "to Amend the Title of Act No. 218 of the Public Acts of 1956" and to add Chapter 31 to the Insurance Code of 1956. Two phrases were deleted from the title and two important ones were added, shown as follows:

"AN ACT to revise, consolidate and classify the laws of the state of Michigan relating to the insurance and surety business; to regulate the incorporation or formation of domestic insurance and surety companies and associations and the admission of foreign and alien companies and associations; to provide their rights, powers and immunities and to prescribe the conditions on which companies and associations organized, existing, or authorized under this act may exercise their powers; to provide the rights, powers and immunities and to prescribe the conditions on which other persons, firms, corporations and associations engaged in an insurance or surety business may exercise their powers; to provide for the imposition of a privilege fee on domestic insurance companies and associations, and the state accident fund; to provide for the imposition of a tax on the business of foreign and alien companies and associations; to provide for the imposition of a tax on the business of surplus line agents; TO MODIFY TORT LIABILITY ARISING OUT OF CERTAIN ACCIDENTS: TO REQUIRE SECURITY FOR LOSSES ARISING OUT OF CERTAIN ACCIDENTS; to provide for the departmental supervision and regulation of the insurance and surety business within this state; and to provide penalties for the violation of this act, and to repeal certain acts."

The provisions of the new Chapter 31 which are at issue are set forth in § 3135(1), which reads in part:

"A person remains subject to tort liability for noneconomic loss caused by his ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function or permanent serious disfigurement."

The new provisions become effective on October 1, 1973.

By an Executive Message dated November 22, 1972 Governor William G. Milliken, acting pursuant to art 3, § 8, of the Const of 1963, requested of this Court an advisory opinion with respect to the constitutionality of 1972 PA 294, submitting four questions.

By Senate Resolution 336 of November 28, 1972, the Senate also requested an advisory opinion with respect to this act, submitting three questions.

Pursuant to an order of the Court, a preliminary hearing was held on January 16, 1973.

By order of February 2, 1973, this Court granted the requests of the Governor and the Senate with respect to a total of three questions and requested the Attorney General to file briefs on the affirmative and negative sides of each question and invited briefs amicus curiae. Oral arguments were heard on March 9, 1973.

The Michigan constitutional provision as to advisory opinions is as follows:
"Either house of the legislature or the governor may request the opinion of the supreme court on important questions of law upon solemn occasions as to the constitutionality of legislation after it has been enacted into law but before the effective date." Const 1963, art 3, § 8.
It is important to emphasize the fact that an advisory opinion does not constitute a decision of the Court and is not precedentially binding in the same sense as a decision of the Court after a hearing on the merits. The Court said in the Advisory Opinion re Constitutionality of PA 1970, No 100, 384 Mich. 82 (1970), that legislation is "clothed with the presumption of constitutionality" and must be sustained if within constitutional limits. The Court indicated that it is "incumbent upon our Court to give effect to the plain and clear intent of the Legislature irrespective of possible view of any Justice or Justices that such intent is unwise or impolitic."
There have been no opinions rendered in this state as to the impact and import of an advisory opinion. Justice BLACK'S concurring opinion in Advisory Opinion re Constitutionality of PA 1966, No 261, 379 Mich. 55 (1967) did address the question. He felt the process to be "nonprecedential and nonadjudicatory". He said at p 67:
"As some respected legal minds seem to forget, this is not a judicial proceeding at all. In no sense, even though an opinion signed by five or more Justices should come to present release, would such an opinion be or become a judicial determination, or a precedent of any kind, or a judgment binding on or enforceable against anyone, the Court and its membership significantly included. Mr. Justice FELLOWS, writing for the Court in Anway v Grand Rapids Railway Co., 211 Mich. 592, 603, 604, set all this straight in his typically direct way:
"`We are mindful of the fact that in seven of the States of the Union (Colorado, Florida, Maine, Massachusetts, New Hampshire, Rhode Island and South Dakota) by the constitutions of those States the legislative or executive departments may request opinions of the Supreme Court on important questions; but we are likewise mindful that such opinions are regarded as expressing the views of the justices and not a judicial determination of the question by the court; and such opinions are not regarded as binding upon the legislature, the executive, or the court itself; indeed, the court does not act as a court in rendering such opinions but as the constitutional advisers of the other departments of the government. Opinion of the Justices, 126 Mass. 557, 566; State v Cleveland, 58 Me. 564, 573; Green v Commonwealth, 12 Allen (94 Mass) 155, 164 [1866].'" (Emphasis by the Court.)
The Supreme Court of Rhode Island has recently summarized the legal principles involved in the office of an advisory opinion:
"[I]n giving advisory opinions, the judges of the Supreme Court do not render a decision of the court, but only express their opinions as individual judges, Opinion to the Governor, 96 R 358, 191 A.2d 611 (1963); that for this reason such opinions have no binding force * * *; that questions of fact cannot be entertained * * *."
Because art 3, § 8 is so new and infrequently used, there is little to draw upon for definite guides. It is safe to say, however, that the constitutional provision authorizing advisory opinions was not intended to encroach upon the right of the people to an adjudicative determination of their particularized claims of unconstitutionality. This opinion constitutes the opinion of the several justices signatory based upon the bare words of the act and unadorned by any facts or combination of facts. It is no more.

The three questions before the Court are:

1. Does the act embrace more than one object in violation of the following Michigan constitutional limitation: "No law shall embrace more than one object, which shall be expressed in its title." Const 1963, art 4, § 24.

2. Does the "modification or amendment by reference of any other Michigan statutory provisions with respect to the substantive law of torts by reason of section 3135" violate the following Michigan constitutional limitation: "No law shall be revised, altered or amended by reference to its title only. The section or sections of the Act altered or amended shall be reenacted and published at length." Const 1963, art 4, § 25.

3. Are the phrases "serious impairment of body function" and "permanent serious disfigurement" as used in § 3135 of the Act "sufficient for legal interpretation?"

ISSUES:

1.

The first question posed by the Court raises the issue of whether the legislation is unconstitutional as violating art 4, § 24, which reads:

"No law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title."

The provision has been in every Constitution since 1850.

It is the opinion of the Court that the act does not embrace more than one object and that only one is expressed in the title.

Emphasis is given to the fact that the subject matter constitutes a code and that inherently the scope of a code must be broad enough to encompass the various facets necessary to the drafting of a unified law. If we fail to permit such a design codes may not be enacted in Michigan so long as the "one-object" limitation is present in the constitution.

The title to that which is known as "The Insurance Code of 1956" (MCLA 500.100 et seq.; MSA 24.1100 et seq.), prior to 1972 included a number of descriptive phrases and provisions all of which related to the insurance and surety business. It was a broad and comprehensive title and was intended, as a reading of it reveals, to cover a comprehensive insurance surety code sectioned from 100 through 8302. It consists of virtually one entire volume of Michigan Compiled Laws Annotated and of Michigan Statutes Annotated.

The title of the Code refers to the consolidation and classification of the insurance-surety business of Michigan, to the regulation of the incorporation of formation of insurance-surety companies, to the admission of foreign companies to do business in Michigan, to the conditions under which the insurance business may operate, to the rights, powers and immunities of businesses operating in the insurance-surety field, to the imposition of a privilege fee on domestic companies and to a tax on foreign companies, to the supervision and regulation of insurance-surety companies within the state and to penalties for violation of the act.

This Code intended to and did and does regulate generally and broadly the insurance-surety business of Michigan. The 1972 Legislature determined to regulate further this business in Michigan by modifying to some extent the tort liability arising out of certain accidents and to require security for losses arising out of such accidents.

In the instant case the amendatory language in the title discloses that the object of the Insurance Code is now to include a modification of accidental tort liability which is intrinsic to the "no-fault insurance concept" or "automobile injury reparation reform" concept. The Legislature might have chosen a different statute to which to append an amendment or a new and separate statute might have been enacted — but either choice would have brought on the same criticisms which have been raised here. Almost certainly, it would then have been argued that it was the Insurance Code which should have been amended.

In any event, all possible presumptions should be afforded to find constitutionality. The amended title should be construed reasonably, not narrowly and with unnecessary technicality.

The addition of the phrases "to modify tort liability arising out of certain accidents; to require security for losses arising out of certain accidents" relates directly to the insurance-surety business. This entails reimbursement of and security for losses, particularly in relationship to motor vehicle accidents. Much of the said business relates to losses from accidental torts. It is and was reasonable and logical for the Legislature to classify the matter herein referred to as related to the Insurance Code. Such action cannot be said to have been prompted by deceit or some ulterior motive. The so-called "logrolling" argument may be valid in some instances, but does not apply in this case. The Code was in being and had been since 1956. The amendment in question cannot be said to have allowed the passage of a law not fully understood (although the subject matter may be complex and difficult for a layman to understand), or that the amendment brought into the Code subjects having no connection with the Insurance Code. The Legislature and the public were well aware of the intention and context of this legislation. One is safe in assuming that probably no piece of legislation since statehood has received more attention or been more noted than the present change in the automobile injury reparation provisions.

An act may include all matters germane to its object. It may include all those provisions which directly relate to, carry out and implement the principal object. As a review of the cases will show, the purpose of this constitutional limitation is to insure that both the legislators and the public have proper notice of legislative content and to prevent deceit and subterfuge.

The provision was recently discussed in Maki v East Tawas, 385 Mich. 151 (1971). The majority reaffirmed at p 157 the following principle as quoted in MacLean v State Board of Control for Vocational Education, 294 Mich. 45 (1940):

"`The constitutional provision was designed mainly to prevent the legislature from passing laws not fully understood, Thomas v Collins, 58 Mich. 64; it was intended that the legislature, in passing an act, should be fairly notified of its design, Attorney General, ex rel. Longyear, v Weiner, 59 Mich. 580; and that legislatures and parties interested might understand from the title that only provisions germane to the object therein expressed would be enacted, Blades v Board of Water Commissioners of Detroit, 122 Mich. 366; and to avoid bringing into one bill subjects diverse in their nature and having no necessary connection, but with a view to combining in their favor the advocates of all — or what is commonly spoken of as logrolling in legislation. State Mutual Rodded Fire Ins. Co. v Foster, 267 Mich. 118.'"

The particular section at issue in Maki was declared unconstitutional. The title spoke of immunity from governmental acts of negligence while the act itself spoke of immunity from all tort liability incurred while engaged in a governmental function. Thus, the section exceeded the scope of the title and was severed from the remainder of the act.

The plaintiffs in Kuhn v Department of Treasury, 384 Mich. 378 (1971) sought a judgment declaring the state income tax act unconstitutional. In affirming summary judgment for the defendant, the Court said at 387-388:

"Plaintiffs' next contention is that the Act violates Michigan Constitution of 1963, art 4, § 24, because in addition to imposing a tax it appropriates three million dollars to the revenue division of the Department of Treasury to cover initial expenses of administration and enforcement. This Court has long and consistently said that art 4, § 24, and similar `one object' provisions in earlier constitutions, are to be construed reasonably `and not in so narrow and technical a sense as unnecessarily to embarrass legislation.' Ryerson v Utley (1868), 16 Mich. 269, 277, citing People, ex rel. Drake, v Mahaney (1865), 13 Mich. 481, 494. The object of the Act was to provide for creation and collection of a state income tax. The appropriation in the Act was utterly germane to that object. A statute may authorize the doing of all things which are in furtherance of the general purpose of the Act without violating the `one object' limitation of art 4, § 24, and so an appropriation in the Act to finance its administration and provisions for disposition of the taxes collected are proper and constitutional." Similar language was used in People v Carey, 382 Mich. 285 (1969) in discussing an earlier version of art 4, § 24:

"The main purpose of Const 1908, art 5, § 21, was to prevent the legislature from passing laws not fully understood and to avoid bringing into one bill subjects diverse in their nature and having no necessary connection. It was intended that the legislature, in passing law, should be fairly notified of its design and that the legislature and public might understand from the title that only provisions germane to the expressed object would be enacted."

Also see Justice ADAMS' opinion in City of Gaylord v Gaylord City Clerk, 378 Mich. 273 (1966) where he quoted Justice COOLEY in saying art 4, § 24
"`[O]ught to be construed reasonably, and not in so narrow and technical a sense as unnecessarily to embarrass legislation.' Ryerson v. Utley, 16 Mich. 269, 277, citing People, ex rel. Drake, v. Mahaney, 13 Mich. 481, 494."

As indicated above, the goal is notice, not restriction of legislation. This Court, in Local No 1644, AFSC ME, AFL-CIO, v Oakwood Hospital Corp, 367 Mich. 79, 91 (1962), said:

"Numerous cases have held that the `object' of a statute is the general purpose or aim of the enactment. The legislature may empower a body created by it to do everything requisite, necessary or expedient to carry out the principal objective to be attained. Legislation, if it has a primary object, is not invalid because it embraces more than 1 means of attaining its primary object." (Emphasis added.)

In Metropolitan Funeral System Association v Commissioner of Insurance, 331 Mich. 185 (1951), plaintiffs were contesting the constitutionality of an act which required those engaged in the mortuary business to sever all connection with the insurance business. One argument was that the act regulated both the insurance and mortuary business whereas the title of the act spoke only to the regulation of insurance. This allegedly was a violation of the predecessor to art 4, § 24. In rejecting the claim, the Court quoted at 192 from Regents of University of Michigan v Pray, 264 Mich. 693 (1933):

"`Being a codification, the statute necessarily embodies various and somewhat diversified provisions of the drain law. But as against objections here raised, we do not find that the act violates article 5, § 21, of the Constitution, in that it embraces more than one object or because the title is deficient in that it is not sufficiently broad to cover the provisions of the act. Title to a codification statute can scarcely be expected to embody reference to every detail of the act. Such is not the constitutional requirement. If the title fairly apprises legislators and the public generally of the act as a whole, such title is sufficient. Vernor v Secretary of State, 179 Mich. 157 (Ann Cas 1915D 128) [1914]. If the title is adequate, and the statute contains only that which is germane to its general purposes, it does not offend article 5, § 21, of the State Constitution.'"

Perhaps the most explicit explanation of the purpose behind the one-object provision is found in Rohan v Detroit Racing Association, 314 Mich. 326 (1946), where the Court at 355-356 quoted the following provisions from Commerce-Guardian Trust Savings Bank v Michigan, 228 Mich. 316 (1924):

"`This provision was adopted in our first Constitution, and has remained in the several subsequent revisions without change. Its purpose and the effect to be given to it by the legislature have been many times discussed and passed upon by this court. It may be said at the outset that the provision is designed to serve two purposes. First, to prevent action by the legislature without receiving the concurrence therein of the requisite number of members by — "bringing together into one bill subjects diverse in their nature, and having no necessary connection, with a view to combine in their favor the advocates of all." — What is commonly spoken of as log-rolling in legislation — and also to prevent clauses being — "inserted in bills of which the titles gave no intimation, and their passage secured through legislative bodies whose members were not generally aware of their intention and effect." People, ex rel. Drake, v. Mahaney, 13 Mich. 481, 494. And, second, to "challenge the attention" of those affected by the act to its provisions. People v Wohlford, 226 Mich. 166, 168.'"

To like effect are Blades v Board of Water Commissioners of Detroit, 122 Mich. 366 (1899), Wardle v Cummings, 86 Mich. 395 (1891) and People ex rel Secretary of State v State Insurance Co, 19 Mich. 392 (1869).

Precedent is clear and the careful consideration of the various facets of the first question dictates the opinion of the Court that the act embraces only one subject which is expressed in the title.

2.

The second question posed is whether 1972 PA 294 violates art 4, § 25 of the 1963 Michigan Constitution which reads:

"No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length."

The 1850 Michigan Constitution provided in art 4, § 25:

"No law shall be revised, altered or amended by reference to its title only; but the act revised and the section or sections of the act altered or amended shall be re-enacted and published at length."

Except for some punctuation and some rearrangement of words in the latter half of the provision, this language has continued through to this date (also see 1908 Const, art 5, §§ 21, 22).

The first consideration given to determining the meaning of constitutional language simply should be to read it. It is especially important that we do so in this matter before the Court because interpretations over the years seem to be leading away from the "plain and simple language" of the section.

The language of § 25 is quite clear. It says succinctly and straightforwardly that no law (meaning statutory enactment) shall be revised, altered or amended by reference to its title only. The constitutional language then proceeds to state how it shall be done (i.e., the section[s] of the act in question shall be amended by reenacting and republishing at length).

There are only two sentences in § 25. Although the second word is "law", it is obvious from the reading of the entire section that "law" means act or section of an act. Section 25 is worded to prevent the revising, altering or amending of an act by merely referring to the title of the act and printing the amendatory language then under consideration. If such a revision, alteration or amendment were allowed, the public and the Legislature would not be given notice and would not be able to observe readily the extent and effect of such revision, alteration or amendment.

A second consideration in determining the meaning of constitutional language is the analysis of precedent. How have the courts interpreted this language? In pursuing precedent, those cases decided at a time proximate to the ratification of the constitution are important in that they better reflect the meaning of the language of the constitution at the time it was written.

In this instance, the most important source case is People v Mahaney, 13 Mich. 481 (1865). As noted above, the language of § 25 first appeared in the 1850 constitution. In Mahaney, the Court, speaking through Justice COOLEY, had to resolve several challenges to the enactment of a law "to establish a police government for the city of Detroit". (p 490.) The act called for a transfer of duties of various public officials and repealed all inconsistent acts. The legislation was quite broad for it not only instituted a police government but modified "the powers and duties of sheriffs, constables, water and sewer commissioners, marshals, mayors and justices, and imposes new duties upon the executive and the citizen". (p 497.)

Much of Justice COOLEY'S discussion in Mahaney is particularly pertinent to the present case. An example is this statement found on pp 496, 497:

"If, whenever a new statute is passed, it is necessary that all prior statutes modified by it by implication should be re-enacted and published at length as modified, then a large portion of the whole code of laws of the state would require to be republished at every session, and parts of it several times over, until from the mere immensity of the material, it would be impossible to tell what the law was."

From the arguments presented to this Court, it appears that over 200 statutes might be related in some way to 1972 PA 294. It is conceded that there are others related but not even shown on the computer print-outs. To hold that each of these possibly hundreds of acts or portions thereof, in addition to the subject act, must be reenacted and republished clearly illustrates the unreasonableness of such an interpretation. To require such a recital would result in the ultimate of confusion.

Cf. Alan v Wayne County, 388 Mich. 210, 282-285 (1972).

Further, the constitutional division of powers mandates that the courts not interfere with legislative action by fabricating standards not constitutionally required. Considerations of practicality and common sense indicate that the Legislature must be allowed sufficient discretion at this point, provided that such discretion is exercised within constitutional limitations.

Const 1963, art 3, § 2.

Justice COOLEY stated further in Mahaney:

"This constitutional provision must receive a reasonable construction, with a view to give it effect. The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that the legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws." (p 497.)

This citation indicates that another reason for the language in § 25 is to require that notice be given to the Legislature and the public of what is being changed and the content of the act as revised, altered or amended. This is similar in command to § 24 (see above). The language and content of 1972 PA 294 is entirely sufficient to give that notice.

To continue the language from Mahaney at p 497:

"An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to but not republished, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was introduced into the law, and the constitution wisely prohibited such legislation."

1972 PA 294 does not violate these standards set forth in this reference. It does not revise, alter or amend in such prohibited fashion.

Mahaney then ruled:

"But an act complete in itself is not within the mischief designed to be remedied by this division and cannot be held to be prohibited by it without violating the plain intent." (p 497.) (Emphasis added.)

The subject act details all that is required for institution of a "no-fault" system of motor vehicle insurance. It is an act complete within itself. It falls squarely within the rule set forth in Mahaney.

Also see, In re Roberts, 51 Mich. 548 (1883); Evans Products Co v State Board of Escheats, 307 Mich. 506 (1943); Checker Mutual Automobile Insurance Co v Wayne Circuit Judge, 330 Mich. 553 (1951) and In re Wright, 360 Mich. 455 (1960).

It is argued, however, that there can be no supplemental or partial alterations to an act which are inconsistent with or which otherwise do violence to any other statute. That language is not in the constitution. It is not our function to introduce it therein. This is not a matter of policy nor a question of whether the provision can be interpreted so as to apply to a newly perceived problem. We should not ask "What can it mean?" Rather, we must determine "What does the constitution require?" Our task is to apply the constitution as adopted by the people. We cannot and should not attempt to anticipate and resolve all imagined difficulties.

In attempting to determine what § 25 requires, we have sought guidance from the debates which occurred in the conventions convened to write the 1963, 1908 and 1850 constitutions. None was enlightening as to the specific intent which prompted passage of § 25.

In A Comparative Analysis of the Michigan Constitution, prepared for the last convention by the Citizens Research Council of Michigan, it was noted that procedure in the United States Congress differed in that it was the practice there "to amend laws by reference to their title only and to set forth only the amendatory language in the bill" (p 85). It was said at p 85 that the "Michigan practice, requiring bills to set forth the text of the whole section to be amended, is salutory in that it places the proposed amendment in context." There is no indication here of the theory that every statute affected by the new act must be republished or reenacted.

Attention is also directed to Justice COOLEY'S discussion of enactment of laws which comprises ch VI of his Constitutional Limitations (5th ed). In this chapter, he focuses on the predecessor to § 25. After quoting the passage from Mahaney set forth on p 497 supra, he said at 182:

"If this is a correct view of the purpose of the provision, it does not seem at all important to its accomplishment that the old law should be republished, if the law as amended is given in full, with such reference to the old law as will show for what the new law is substituted * * *."

He further wrote at p 183:

"[S]tatutes which amend others by implication are not within this provision; and it is not essential that they even refer to the acts or sections which by implication they amend."

This analysis by Justice COOLEY and the interpretation of the Citizens Research Council reinforce the determination that § 25 is directed at preventing undesirable conduct with respect to amendment of a particular act. It does not seek to correct tangential effects which the amendment, revision or alteration may have on those statutes not directly affected.

At this juncture, consideration should be given to Mok v Detroit Building and Savings Association No 4, 30 Mich. 511 (1875). There an 1869 act provided a procedure for incorporating building and savings associations which required reference to an 1855 act. This in turn directed the reader to refer to an 1853 act which dealt with the creation of mining corporations. The 1869 act did alter some of the procedures and requirements of the 1853 act. This scheme was found to violate the constitution.

The actual hard fact in the Mok case was that the act of 1869, taken in connection with that of 1853 (and an act of 1855) did not furnish any distinct outline or prescribe any definite course of action by which associations could be sufficiently guided in perfecting organizations under it. The two acts had purposes and objects so entirely different it was impossible to determine what part of the general and manufacturing incorporations act was meant to be applied to the building and savings corporation.

In that case, there were amendments by reference that patently were contrary to the constitution and so are distinguishable from the matter of 1972 PA 294. In the matter before us, there is no attempt to alter or amend the statute by reference or by striking out or insertion of words without reproduction of the statute in its amended form. (See Mok, pp 515-517). Alan v Wayne County, 388 Mich. 210 (1972) also is distinguishable. There the offending statutory language was not an amendment by implication. As Justice WILLIAMS said at p 270:

"This is not a case of so-called `amendment by implication' such as cases which were considered and held valid in People v Mahaney, 13 Mich. 481, 496 (1865) (transfer of powers from one statute to another is not an `amendment' requiring republication); Underwood v McDuffee, 15 Mich. 361, 366 (1867) (overall revision of statute and system of references adding new sections with the reference number of an old one is permissible where new section is not foreign to subject indicated by title of law in which inserted); People v Wands, 23 Mich. 384, 388-389 (1871) (an amending act which properly amends two sections of law may have the effect of amending by implication other parts of the same body of law); Swartwout v Mich Airline R Co, 24 Mich. 388, 399 (1872) (following Wands in holding that a new statute which adds a new section to a body of law may amending by implication other sections of the same body of law); and a continuing line of cases not cited here."

In speaking of Mok, Justice WILLIAMS also said:

"The Court noted that it was confusing to be sent by the act of 1869 to the act of 1855 only to be told to turn to the act of 1853 * * *."

The so-called "No-Fault Insurance" amendment modifies the title of and adds a chapter to the Insurance Code. It is a complete act and does not confuse or mislead, but publishes in one act for all the world to see what it purports to do.

We emphasize the philosophy that constitutional language must be given reasonable and practical interpretations. We must not extend and expand the wording out of its original context and meaning in order to respond to imagined or even real mischief.

See, North Carolina v Alford 400 U.S. 25, 37; 91 S Ct 160; 27 L Ed 2d 162 (1970): "[T]he Constitution is concerned with practical consequences."

Amendments by implication are an inevitable by-product of the legislative scheme of government. It boggles the mind to contemplate the laws which would be rendered unconstitutional ab initio and the avalanche of litigation which would follow were we to construe § 25 in so extended a manner as to find unconstitutional its effect upon 1972 PA 294.

This act does not purport by its terms to directly revise, alter or amend any act or section of an act other than the Insurance Code. It does amend the title of the Insurance Code and it sets forth in full the additions to the body of the Code. To the extent which this act cuts across and affects other acts, it does not present the kind of problem toward which this constitutional provision is directed.

The notice requirement of § 25 has been met, the enactment standards have been met and the act is complete within itself and meets the test of constitutionality as applied by art 4, § 25 of the Michigan Constitution.

3.

The final question is whether the phrases "serious impairment of body function" and "permanent serious disfigurement" provide standards sufficient for legal interpretation.

This Court holds that such phrases are capable of legal interpretation and, indeed, that juries or judges sitting without juries frequently have and do interpret comparable phrases bearing upon various facets of the law. Such findings result from denominated fact questions and thus are within the exclusive province of the triers of fact. Only when interpretation approaches or breaches permissible limits does it become a question of law for the Court. Such questions must be approached on a case by case basis.

When construing a statute, the Court must give effect to the legislative intent and read the language in the light of the general purpose sought to be accomplished.

Ballinger v Smith, 328 Mich. 23 (1950).

MCLA 8.3; MSA 2.212, reads:

"In the construction of the statutes of this state the rules stated in sections 3a to 3w shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature."

Section 3a of said statute (MCLA 8.3a; MSA 2.212[1]) instructs:

"All words and phrases shall be construed and understood according to the common and approved usage of the language * * *. "

Although there is a paucity of Michigan cases bearing upon the interpretation of "serious impairment of body function" because our laws have not employed such language heretofore, the word "serious" has been construed from early dates. Relevant cases from other jurisdictions appear by footnote.

See, Brown v Metropolitan Life Insurance Co, 65 Mich. 306 (1887).

Accident Insurance Co v Crandal, 120 U.S. 527; 7 S Ct 685; 30 L Ed 740 (1887). (Bodily infirmities or diseases.) American Nat Ins Co v Denman, 260 S.W. 226 (Tex Civ App, 1924). (Bodily disease or illness.) State of California v Industrial Accident Commission, 147 Cal.App.2d 818; 306 P.2d 64 (1957). (Permanent partial, disability or impairment. Loss of function of the body in whole or part.) Corniak v Cohen, 150 Pa. Super. 140; 27 A.2d 560 (1942). (Permanent loss or loss of use.) Crown Products Co v Brandenburg, 126 Ind. App. 48; 129 N.E.2d 134 (1955). (Impairment is loss of a function. Permanent partial impairment.) Davey v Aetna Life Ins Co, 20 F 482 (CC D NJ, 1884). (Impairment of health.) Edward Iron Works v Thompson, 80 Ind. App. 577; 141 N.E. 530 (1923). (Impairment is loss of a function.) Guardian Life Ins Co of America v Richardson, 23 Tenn. App. 194; 129 S.W.2d 1107 (1939). (Disabled by bodily injury or disease.) Inman v Carl Furst Co, 92 Ind. App. 17; 174 N.E. 96 (1930). (Impairment refers to total or partial loss of function of member or of body as a whole.) State of Kansas v Brown, 181 Kan. 374; 312 P.2d 832 (1957) (Bodily harm.) Northwestern Barb Wire Co v Industrial Commission, 353 Ill. 371; 187 N.E. 468 (1933). (Permanently ceased to function.) Novak v State Workmen's Insurance Fund, 113 Pa. Super. 555; 173 A 827 (1934). (Loss of use.) People v Tanner, 3 Cal.2d 279; 44 P.2d 324 (1935) (Bodily harm.) Provident Life Accident Ins Co v Campbell, 18 Tenn. App. 452; 79 S.W.2d 292 (1934). (Bodily injuries.) Smith v L H Gilmer Co of Louisiana, 11 La App 336; 123 So. 451 (1929). (Serious permanent impairment of physical function.) Spillers v Jonesboro Gin Co, 193 So. 509 (La App, 1939). (Serious and permanent impairment of the usefulness of a physical function.) Tarr v Industrial Accident Commission, 164 Cal.App.2d 834; 331 P.2d 417 (1958). (Impairment is loss of hearing.) Terre Haute Electric R Co v Lauer, 21 Ind. App. 466; 52 NE 703 (1899). (Bodily injuries.) Vukelich v Industrial Commission of Utah, 62 Utah 486; 220 P. 1073 (1923). (Loss of bodily function.)

Phrases comparable to "permanent serious disfigurement" have confronted courts over the years and there has been no apparent reluctance to construe the terminology.

Brandt v C F Smith Co, 242 Mich. 217 (1928). (Injury was permanent in character.) Deneen v Houghton County Street-Railway Co, 150 Mich. 235 (1907). (Injury was permanent.) Fogel v Sinai Hospital of Detroit, 2 Mich. App. 99 (1965). (Permanent injuries.) Fortin v Bay City Traction Electric Co, 154 Mich. 316 (1908). (Permanent injury; impairment.) Kethledge v Petoskey, 179 Mich. 301 (1914). (Permanent injuries.) Main v Grand Rapids, G H M R Co, 207 Mich. 473 (1919). (Permanently injured; physical impairment; permanently disfigured.) McDuffie v Root, 300 Mich. 286 (1942). (Seriously and permanently injured; permanent physical defect.) Ott v Wilson, 216 Mich. 499 (1921). (Permanent injury.) Tabor v Carey Leach Bus Lines, 242 Mich. 9 (1928). (Injuries were permanent.) Other Jurisdictions:
Arkin v Industrial Commission of Colorado, 145 Colo. 463; 358 P.2d 879 (1961). (Seriously permanently disfigured.) Branham v Denny Roll Panel Co, 223 N.C. 233; 25 S.E.2d 865 (1943). (Permanent and serious disfigurement.) Bethlehem — Sparrows Point Shipyard, Inc v Damasievwicz, 187 Md. 474; 50 A.2d 799 (1947). (Permanent disfigurement.) Bowen v Chiquola Manufacturing Co, 238 S.C. 322; 120 S.E.2d 99 (1961). (Serious bodily disfigurement.) Cagle v Clinton Cotton Mills, 216 S.C. 93; 56 S.E.2d 747 (1949). (Bodily disfigurement; serious facial disfigurement.) Davis v Sanford Construction Co, Inc, 247 N.C. 332; 101 S.E.2d 40 (1957). (Serious facial or head disfigurement; serious bodily disfigurement.) Dawkins v Commonwealth, 186 Va. 55; 41 S.E.2d 500 (1947). (Permanently disabled.) Dombrowski v Fafnir Bearing Co, 148 Conn. 87; 167 A.2d 458 (1961). (Serious and permanent disfigurement.) J J Grady Co v The Industrial Commission, 46 Ill.2d 471; 263 N.E.2d 809 (1970). (Serious and permanent disfigurement.) General Motors Corp v Shannon, 52 Del. 221; 155 A.2d 237 (Del Super, 1959). (Serious and permanent facial or head disfigurement.) Godfrey v Watts Mills, 199 S.C. 437; 19 S.E.2d 902 (1942). (Serious body disfigurement.) Hamilton v Little, 197 S.C. 434; 15 S.E.2d 662 (1941). (Bodily disfigurement.) Haynes v Ware Shoals Mfg Co, 198 S.C. 75; 15 S.E.2d 846 (1941). (Serious and permanent disfigurement.) Jewel v Pond Co, 198 S.C. 86; 15 S.E.2d 684 (1941). (Serious disfigurement.) Jones v General Accident Fire and Life Assurance Corp, 1 La App 88 (1924). (Seriously permanently disfigured.) Kelly v Postal Telegraph-Cable Co, 204 S.C. 530; 30 S.E.2d 369 (1944). (Serious bodily disfigurement.) Lee v Commonwealth, 135 Va. 572; 115 S.E. 671 (1923). (Permanent disfigurement.) Manning v Gossett Mills, 192 S.C. 262; 6 S.E.2d 256 (1939). (Serious bodily disfigurement.) Mitchum v Inman Mills, 209 S.C. 307; 40 S.E.2d 38 (1946). (Serious facial disfigurement.) State of New Mexico v Ortega, 77 N.M. 312; 422 P.2d 353 (1966). (Serious disfigurement.) Parrott v Barfield Used Parts, 206 S.C. 381; 34 S.E.2d 802 (1945). (Serious bodily disfigurement.) Pavik v Glen Alden Coal Co, 140 Pa. Super. 165; 14 A.2d 161 (1940). (Serious and permanent disfigurement.) Poole v Saxon Mills, 192 S.C. 339; 6 S.E.2d 761 (1940). (Serious facial or head disfigurement.) Phillips v Coxe Brothers Co Inc, 135 Pa. Super. 185; 5 A.2d 445 (1939). (Disfigurement.) Rapp v Kennedy, 101 Ill. App.2d 82; 242 N.E.2d 11 (1968). (Disfigurement.) Shillinglaw v Springs Cotton Mills, 209 S.C. 379; 40 S.E.2d 502 (1946). (Serious bodily and facial disfigurement.) Skelly Oil Co v Skinner, 162 Okla. 150; 19 P.2d 548 (1933). (Serious and permanent disfigurement.) Smith v Daniel Construction Co, 253 S.C. 248; 169 S.E.2d 767 (1969). (Serious bodily disfigurement.) State v Nieuhaus, 217 Mo 332; 117 S.W. 73 (1909). (Disfiguring.) Stone v Ware Shoals Mfg Co, 192 S.C. 459; 7 S.E.2d 226 (1940). (Serious bodily disfigurement.) Superior Mining Co v Industrial Commission, 309 Ill. 339; 141 N.E. 165 (1923). (Permanent and serious disfigurement.) Tinsley v Walgreen Drug Co, 197 S.C. 415; 15 S.E.2d 667 (1941). (Serious bodily disfigurement.) Vick v Springs Cotton Mills, 209 S.C. 372, 40 S.E.2d 409 (1946). (Serious facial disfigurement.)

A reading of the Standard Jury Instructions for civil cases indicates further the wide range of questions which our Court permits triers of fact to decide. For example, in negligence cases the jury is permitted to determine "what a reasonably careful person would do or not do" under the circumstances (10.01). It is permitted to determine questions of "contributory negligence" (11.01), "willful and wanton misconduct" (14.02), "gross negligence" (14.03), "proximate cause" (15.01) and "intervening negligence" or "outside force" (15.05, 15.06).

The jury must also decide the amount of damages to be awarded in order "reasonably, fairly and adequately" to compensate the injured party (30.01). The jury may decide if the injury is "continuing" or "permanent" (30.01). The jury may determine "the reasonable expenses of necessary medical care, treatment and services" (30.05) and "the loss of earning capacity" (30.06). In wrongful death actions, the jury may determine awards for losses of "parental training and guidance" or "society and companionship".

Clearly the subject phrases "serious impairment of body function" and "permanent serious disfigurement" as used in § 3135 of this act are comprised of no less commonly used or understood words of the English language, nor is the language presently before the Court less precise than that which has been adopted to express other standards for determining tort liability. The phrases are within the province of the trier of fact and are sufficient for legal interpretation.

T.E. BRENNAN, T.G. KAVANAGH, SWAINSON, and LEVIN, JJ., concurred with M.S. COLEMAN, J.

WILLIAMS, J.

I — INTRODUCTION

The passage of the no-fault act through the Michigan Legislature generated much controversy and publicity as to whether no-fault under any circumstances was a constitutional concept. This controversy and publicity spilled over into two full days of argument by numerous vigorous and distinguished counsel before this Court.

The "no-fault" act was enacted by 1972 PA 294 which added a chapter to the Insurance Code, 1956 PA 218; MCLA 500.100 et seq.; MSA 24.1100 et seq. The "no-fault" act is now chapter 31 of the Insurance Code, MCLA 500.3101 et seq.; MSA 24.13101 et seq. The no-fault act has in turn been amended since its passage by 1972 PA 345, amending §§ 3171 through 3176.

However, the three questions officially asked us pursuant to Const 1963, art 3, § 8 are limited in scope and impact. This Court is in no way asked its opinion about the constitutional validity or invalidity of the no-fault concept. We assume that the no-fault concept is perfectly constitutional and nothing in this opinion expresses any thought to the contrary.

In the briefs and oral arguments upon the preliminary hearing in this case, many interesting questions were suggested by lawyers participating on an amicus basis regarding particular details of the statute and other legal theories that might be applied to other sections of the statute. None of these questions are within the scope of the advisory opinions requested and consequently may not properly be considered by the Court. We raise this point only to underscore the fact that no litigant is precluded from raising those or other questions or for that matter the questions in this opinion in adversary cases and no inference one way or the other about the merits of questions can be drawn from our failure to consider them because, lacking jurisdiction, we simply did not consider them one way or the other at all.

Quite obviously the Legislature has power under Const 1963, art 3, § 7 to originate or abolish statutory forms of tort liability as well as the power, concurrent with the inherent and express constitutional power of the Court to change common-law tort liability.

As a matter of fact Questions 1 and 2 do not even go to the substance of the no-fault act. They only relate to whether the no-fault act was enacted by proper and constitutional procedure. Question 3 raises the issue whether certain words used are sufficiently precise to allow constitutionally operational interpretation.

Question #1, text above, p 462, asks whether anything in any part of Act 294 violates the title requirements of Const 1963, art 4, § 24. Question #2 asks only whether the "amendment by reference" accomplished by § 3135 (and that section alone) violates the reenactment requirements of Const 1963, art 4, § 25.

Question 3, text above, p 462, limits itself to phrases found in § 3135(1) of Act 294.

This opinion concurs in finding the matters raised by Questions 1 and 3 constitutional. We find no problem with Question 3. We concur with the result in Question 1 because of the presumption of constitutionality and the possibility of severability which dictate that our doubt on this issue should be resolved for the present in favor of constitutionality.

Question 1 deals with Const 1963, art 4, § 24 which requires an act's title to have only one object and that everything in the act must be "expressed" in the title. The no-fault act title and text raise issues such as the title purporting to require security only for losses arising out of "certain" specified accidents, whereas the text requires security not only for such "certain" accidents but security for accidents generally.

That portion of the title concerning mandatory insurance or "security" reads:
"[T]o require security for losses arising out of certain accidents; * * *." (Emphasis added.)

Section 3101; MCLA 500.3101; MSA 24.13101 requires that owners and registrants not only keep in effect the so-called "no-fault" insurance ("personal protection insurance" and "property protection insurance") but the section also requires that the owner or registrant keep in effect "residual liability insurance". Under § 3131 of the act; MCLA 500.3131; MSA 24.13131, we find that "residual liability insurance" must cover bodily injury and property damage occurring anywhere in the United States, its territories and possessions or in Canada. We further find that "In this state this insurance shall afford coverage for automobile liability retained by Section 3135". Thus, Act 294 requires that a person "shall maintain security" not only for no-fault insurance but he must maintain security for the situations excluded by no-fault. As regards the requirement of mandatory security, therefor, the object of Act 294 is to require security for losses arising out of all accidents, whereas the title only speaks of requiring security for losses arising out of "certain accidents".

However, in the brief time available to this Court for properly considering and preparing an advisory opinion to be useful in this matter and the problem for both counsel and this Court in analyzing comprehensively the broad spectrum of possible issues raised by Question 1, it is difficult to challenge with confidence the general presumption of constitutionality protecting an act of the Legislature, particularly where the constitutional provision involved admits of the remedy of severability. For these reasons, I concur with the result of constitutionality reached by my colleagues.

Moving briefly to Question 3, since we will deal with Question 2 more particularly later, this opinion finds no difficulty in concurring in constitutionality under the particular question raised.

Finally, although this opinion finds in dealing with Question 2 that the constitutional procedures required by art 4, § 25 were not complied with, since this is an advisory opinion, this is not a decision declaring the no-fault act unconstitutional. The no-fault act is not invalidated and continues to stand. Furthermore, this opinion may be only the advice of a portion of this Court in an individual capacity, although the exact consequences of an advisory opinion under the Constitution of 1963 have not yet been decided by this Court.

Prior expressions of this Court referred to in Justice COLEMAN'S opinion were written in regard to other state constitutions which contain the words "opinions of the justices". Our constitution refers not to the several opinions of the justices, but to the "opinion of the Court".

The Legislature consequently is perfectly free to take such action as it conceives to be advisable to promote the operability of the no-fault act, if it so desires. As a matter of fact, at least one bill, SB 284, has already been introduced for the purpose of amending the civil liability act "with respect to `no-fault' insurance effect on tort liability." 52 MSBJ 261, April, 1973.

In short, this opinion cannot, and does not, consider or attack the concept that the Legislature in legislating on no-fault can pass perfectly valid and constitutional legislation. The opinion concurs in the constitutionality of the issues raised by Questions 1 and 3 and advises that the Legislature failed to follow procedural requirements of Const 1963, art 4, § 25 but that this can be remedied, if the Legislature so wishes, without having to begin from scratch and enact the no-fault act again.

The following parts of this opinion will all deal with Question 2.

II — QUESTION 2: BASIC ISSUE

The real question here is not whether the concept of "no-fault" is constitutionally viable but whether the Legislature followed the constitutional procedures art 4, § 25 requires in the legislative process.

The question asked under Const 1963, art 3, § 8 follows:

"DOES THE `MODIFICATION OR AMENDMENT BY REFERENCE OF ANY OTHER MICHIGAN STATUTORY PROVISIONS WITH RESPECT TO THE SUBSTANTIVE LAW OF TORTS BY REASON OF SECTION 3135' VIOLATE THE FOLLOWING MICHIGAN CONSTITUTIONAL LIMITATION: `NO LAW SHALL BE REVISED, ALTERED OR AMENDED BY REFERENCE TO ITS TITLE ONLY. THE SECTION OR SECTIONS OF THE ACT ALTERED OR AMENDED SHALL BE REENACTED AND PUBLISHED AT LENGTH.' CONST 1963, ART 4, SEC 25."

When art 4, § 25 is applied to § 3135 of the no-fault act no amount of legal talking around the subject can hide four plain facts:

1. The no-fault act plainly is meant to "modify" existing law — in fact its very title says so.

2. When the no-fault act uses the term "to modify" and what it does pursuant thereto is plainly what art 4, § 25 is talking about when it refers to "revised, altered or amended".

3. Art 4, § 25 plainly says the Legislature cannot "modify", or, to use the constitutional words, "revise, alter or amend" existing law without reenactment and republication.

4. Since the Legislature did not reenact and republish these sections or acts the no-fault act purports to amend and since the no-fault act purported to "revise, alter or amend" existing law, the no-fault act plainly was not enacted properly pursuant to the procedures required by art 4, § 25.

Let us examine this more in detail.

III — NO-FAULT "MODIFIES" EXISTING LAW

The title of the no-fault act in stating its purpose includes: "[T]o MODIFY tort liability arising out of certain accidents * * *." (Emphasis added.)

The no-fault act, § 3135(2) follows up the "modification" notice in the title as follows:

"Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance or use within this state of a motor vehicle * * * is abolished except as to: * * *."

That § 3135(2) does in fact "modify" existing law is clear by reference to the civil liability act for example. The civil liability act, § 401 pertinently provides:

"The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle whether such negligence consists of a violation of the provisions of the statutes of the state or in the failure to observe * * * the common law * * *." 1949 PA 300; MCLA 257.401; MSA 9.2101.

No legal argument or exegesis is necessary to prove that § 3135(2) and § 401 are mutually contradictory and that therefore § 3135(2) as the later passed "modifies" § 401.

Section 3135 purports equally to modify the wrongful death act by superseding it except where death is intentionally caused (§ 3135[2] [a]), where noneconomic losses are involved in a death (§ 3135[2] [b] and § 3135[1]) and where a survivor's damages exceed those allowed under the no-fault act (§ 3135[2] [c]).

In short, § 3135 purports "to modify" existing law.

IV — NO-FAULT "MODIFY" EQUALS ART 4, § 25 "REVISED, ALTERED, OR AMENDED"

As already noted the no-fault act purports to, and does, "modify" existing law.

What does "MODIFY" mean? The leading dictionaries, legal and non-legal, use "modify" interchangeably with "alter" and "amend":

Black's Law Dictionary —

MODIFY — "To alter * * * [citing cases]. See Modification." ALTER — "To make a change in; to modify * * * [citing cases]. See Alteration, Change."

AMEND — "To `amend' implies that the modification made in the subject improves it, which is not necessarily the case with an alteration. [citing case.]" (Emphasis added.) (This language appears under "alter.")

Webster's New International Dictionary (2d ed unabridged) —

MODIFY — "4. To change somewhat the form or qualities of; to alter somewhat * * *."

ALTER — "1. To change in one or more respects, but not entirely; to make (a thing) different without changing it into something else; to vary; to modify * * *." AMEND — "4. To change or modify in any way for the better * * * 5. [T]o change or alter in any way * * *."

Random House Dictionary of the English Language (1966 ed unabridged) — MODIFY — "1. to change somewhat the form or qualities of; alter partially * * *."

ALTER — "1. to make different in some particular, as size, style, course, or the like; modify * * *." AMEND — "1. to alter, modify * * *."

It cannot be gainsaid that the no-fault act's "to modify" is the same as art 4, § 25's "revised, altered or amended".

V — "MODIFICATION" OF CIVIL LIABILITY ACT IS REVISION OF STATUTORY AS WELL AS COMMON LAW

There is no doubt that § 3135 purports to modify, alter or amend both common law and statutory law. Because of the limitation of time we will consider only the effect on the so-called "owners liability" statute. Vicarious owners liability, qua owner, is not derived from common law and is purely statutory in Michigan, governed by the so-called "owners liability act", MCLA 257.401; MSA 9.2101 The owners liability statute has been said, in fact, to be in derogation of the common law, not merely in affirmance of it, Wieczorek v Merskin, 308 Mich. 145, 148 (1944).

The liability of an owner for "negligent entrustment" is common law derived but is not based merely on his status as owner but rather upon his conduct in the entrusting, Perin v Peuler, 373 Mich. 531 (1964).

Section 3135(2) does not purport to "modify" only common-law tort liability because it refers not merely to tort liability arising from "maintenance or use," but also refers to that tort liability arising purely from "ownership." Since there is no common-law liability arising purely from ownership, it can only be the owners liability in the civil liability act that is being referred to. MCLA 257.401 is the only "provision of law" giving rise to tort liability for mere "ownership".

It may not be said that the owners liability statute is conditioned exclusively upon only common-law liability of the operator. The violation of statutes constitutes negligence per se so that the only question for the jury is whether there was causation, not whether there was negligence, Vaas v Schrotenboer, 329 Mich. 642, 650 (1951). The common-law duty of due care is independent of statutory duties and the rule of negligence per se, Holmes v Merson, 285 Mich. 136, 140 (1938); Dempsey v Miles, 342 Mich. 185, 192-193 (1955). Any number of fact situations easily come to mind where a person might be found not "negligent" by a jury under common-law rules even though his violation of a statute constitutes negligence per se which removes from the jury the question of negligence, leaving only that of causal relation.

All parties arguing here on this question agree that the only purpose of § 3135 is to modify or amend the owners liability statute, among others.

The Attorney General's briefs are the primary briefs pursuant to this Court's order of February 2, 1973, directing the Attorney General to file briefs on the affirmative and negative sides of the questions. The only other briefs addressing Question 2 are the amicus briefs of the Michigan Trial Lawyers Association and that part of the combined League General Insurance — American Insurance Association — UAW — CAP amicus briefs prepared by Honigman, Miller, Schwartz and Cohn representing the American Insurance Association (AIA).
The brief of the Attorney General Supporting Constitutionality states on pp 19-20 as follows:
"These proponents of the constitutionality of 1972 PA 294 cannot argue that § 3135 of said act does not violate art 4, § 25 of the 1963 Constitution. To do so, and be sustained, would only result in further examination of said act which could result in a determination that other sections of the act violate the constitutional limitation."
The Attorney General's Brief Opposing Constitutionality obviously concurs that § 3135 violates art 4, § 25. The AIA brief, p 14, readily concedes that § 3135 modifies many other statutes and that "the most obvious statute affected is the Civil Liability Act" but endeavors to bring the no-fault act within "the act complete in itself exception" to art 4, § 25. 1950 PA (Ex Sess) 27.

VI — NO-FAULT NOT AN ACT COMPLETE IN ITSELF EXCEPTION TO ART 4, § 25

It has been argued that the no-fault act falls within the "act complete in itself" exception to the art 4, § 25 requirement of reenactment and republication. Reference is made to two quotations from Justice COOLEY in People v Mahaney, 13 Mich. 481 (1865):

1. "The act before us does not assume in terms, to revise, alter or amend any prior act, or section of an act, but by various transfers of duties it has an amendatory effect by implication, and by its last section it repeals all inconsistent acts. We are unable to see how this conflicts with the provision referred to." ( 13 Mich. 481, 496).

2. "But an act complete in itself is not within the mischief designed to be remedied by this provision [art 4, § 25] * * *." ( 13 Mich. 481, 497)

There is no doubt about there being "an act complete in itself" rule. Equally there should be no misunderstanding that the no-fault act is "an act complete in itself". There are three tests of what constitutes "an act complete in itself" and the no-fault act does not meet any of these tests.

The first test is "[t]he act * * * supersedes and repeals all other acts in relation thereto." Attorney General ex rel Fuller v Parsell, 100 Mich. 170, 173 (1894). To the same effect: In re Roberts, 51 Mich. 548, 554-555 (1883); Ripley v Evans, 87 Mich. 217, 231-232 (1891); Grinnell Brothers v Moy, 230 Mich. 26, 30 (1925). See also Porter v Edwards, 114 Mich. 640, 643 (1897).

This case is relied upon and quoted by the AIA brief (p 23) as to apply the "complete in itself" doctrine to Act 294. Attorney General ex rel Fuller v Parsell, 100 Mich. 170 (1894) involved a "revision and consolidation" of laws governing penal institutions. The "repealer" clause said that "parts of acts" contravening the provision of the new act "are repealed". On this it was argued that parts of earlier law not in conflict were not repealed. The Court held that because the act was "complete," all prior law on the subject was repealed. Some of the language of the Court in Parsell gives meaning to the quote from Parsell in the AIA brief, p 23:
"It would seem in accordance with reason to hold that, when the Legislature revises and consolidates certain acts, and covers the entire subject, the act, as revised and consolidated, supersedes and repeals all other acts in relation thereto. * * * The act in question contains 66 sections, and its provisions cover the entire management and control of and [sic] discipline in the penal institutions named. There is not a single provision of the former laws which is requisite or necessary for the management and control of these institutions. "But it is argued that the language in the repealing clause, that `all acts and parts of acts contravening any of the provisions of this act are hereby repealed', indicates an intention to retain those provisions of the old law which may be held not to conflict with the new. We are of the contrary opinion. It would be unreasonable to hold that the Legislature, while covering the entire subject, and declaring its intention to be to revise and consolidate all the laws upon the subject, intended to leave in force any provisions of the former laws which the courts might determine did not contravene the provisions of the new act." 100 Mich. 170, 173-174. (Emphasis added.) 1952 PA 19.

In re Roberts, 51 Mich. 548 (1883). This case holds that the 1883 substitute charter of the City of Detroit repeals all provisions of the former act, even if they are completely consistent. The act complete in itself "covers the whole subject." Some of the opinions in Roberts were quoted in the concurring opinion in the Parsell case as follows:
"`It [the 1883 charter] does not purport to be a partial or supplementary, but to be the only charter. There can be no doubt of this purpose, and there can be no doubt that * * * it cannot be admissible to select out of older charters matters omitted in this as still in force. If this could be done on one subject no one can see where the process would stop. There are many omitted provisions which no one would consider repugnant. We must assume that things omitted are designedly omitted.'"
And further on the meaning of "an act complete in itself" Justice MONTGOMERY pointed out that:
"The rule is well settled that, even though two acts are not repugnant, yet if the later covers the whole subject of the first, and contains provisions showing that it was a substitute, it will operate as a repeal. See Shannon v People, 5 Mich. 85 * * *." Parsell, 100 Mich. 170, 178-179, quoting in part from Roberts, 51 Mich. 548, 554-555. (Emphasis added.) RS 1846, ch 81.

Ripley v Evans, 87 Mich. 217 (1891). The "complete" act here was an act governing enforcement of stockholders' personal liability for certain corporate debts. The act contained a "repealer" like that in Parsell, supra, repealing all acts or "parts of acts". The Court said the prior act giving another form of remedy was not merely "amended", but was repealed outright by the later act. See p 231, last paragraph and following. 1881 PA 117.

Grinnell Brothers v Moy, 230 Mich. 26 (1925) also involved a later act with an "all acts or parts of acts" repealer clause. The later act provided a different period of time on a procedural matter. The case makes clear that the later act repealed the earlier provision, not that it merely "amended" it. See p 30, last paragraph and following. 1939 PA 290.

To begin with the title of the no-fault act is "to modify" tort liability rather than "supersede and repeal". Furthermore there is no general repealer.

Not only is there no general repealer but the no-fault act, 1972 PA 294 title was amended by striking at the end "and to repeal certain acts" suggesting that any repealer might not be within the coverage of the title. 1947 PA 180.

It is quite clear that the no-fault act does not purport to "supersede" or "repeal" all acts related to it. In fact, § 3135 attempts to preserve certain parts of prior acts or actions. For example, § 3135(1) and § 3135(2)(a) refer necessarily to the wrongful death and civil liability acts in case of "[d]amages for noneconomic loss" where "the injured person has suffered death".

The no-fault act does not meet the "supersede and repeal" test.

The second test is "[t]here is not a single provision of the former laws which is requisite or necessary for the management and control of" motor vehicle liability. Parsell, supra, 100 Mich. 170, 173.

We have already discussed this under the first test above. Section 3135 specifically indicates that no-fault act actions and remedies are not all inclusive but other law including statutes must be relied on.

The no-fault act does not meet the second test of not having to rely on "a single provision of the former law".

The third test is formulated by Justice COOLEY himself in Mahaney, where he said:

"An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to but not republished, was well calculated to mislead the careless as to its effect * * * and the constitution wisely prohibited such legislation. But an act complete in itself is not within the mischief designed to be remedied by this provision * * *." Mahaney, supra, 13 Mich. 481, 497.

The no-fault act certainly inserts certain words, to wit, the civil liability act's § 401's first sentence is modified in some such way as "the right of any person EXCEPT THOSE COVERED BY NO FAULT INSURANCE EXCEPT AS EXCEPTED BY SECTION § 3135 to prosecute a civil action * * *." (Added part in capitals.)

This necessity of interpolation falls afoul of another rule generated by art 4, § 25 and articulated by Justice COOLEY in Mok v The Detroit Building Savings Association No 4, 30 Mich. 511, 523 (1875):

"[These] changes and modifications * * * [were] not made by the re-enactment of the sections changed or modified, but only by indicating the extent of the changes, leaving the parties concerned to fit the new act to the old as best they may."

See also Alan v Wayne County, 388 Mich. 210, 272 (1972).

The no-fault act does not meet the third test, because it purports as far as tort liability is concerned "only to insert certain words, or to substitute one phrase for another".

In short, the logic of the matter is contained in the No. 1 reference to Mahaney above. The point is that "an act complete in itself * * * does not assume in terms to revise, alter or amend * * * but * * * repeals all inconsistent acts." Dramatically we can see the difference between a modification or alteration which leaves in doubt what of the old law is good, what bad and a complete repeal which wipes out the old law altogether. Obviously the no-fault act is dealing in modification or alteration and not a complete repeal. Equally obviously no-fault is not "an act complete in itself".

VII — IS NO-FAULT A PERMISSIBLE "AMENDMENT BY IMPLICATION"?

As the Attorney General noted in one of his briefs the words "amendment by implication" can be very confusing. Actually, the words "amendment by implication" in no way constitute a precise semantical test but must be viewed in the context in which they are used. These contexts are various and must be viewed in relation to their several fact situations.

Justice COOLEY articulated the most important such fact category in Mahaney, namely, "acts complete in themselves". We have just examined this and discovered the no-fault act does not meet the "act complete in itself" fact tests.

A second fact category of so-called "amendments by implication" is that group where there is no alteration of anything that existed but only the addition of a not inconsistent but harmonious provision. Swartwout v The Michigan Air Line R Co, 24 Mich. 389, 399 (1872); People v Wands, 23 Mich. 385, 388-389 (1871). We have already considered how the no-fault act modifies and alters the civil liability act. Hence it cannot be considered as only making a harmonious addition.

A third permissible fact category called amendment by implication involves repeal by implication and incorporation by reference. Fornia v Wayne Circuit Judge, 140 Mich. 631 (1905) is an example of this. Here an 1893 act set up a jury commission and prescribed its duties, and a 1903 act provided that the county clerk draw the juries and repealed all inconsistent acts. The Fornia Court said:

"By the act of 1903 the clerk is designated as the officer to perform this duty. The act in no other way changed the duties of the jury commissioners. The clerk is substituted in the place of the commissioners. * * * and all the provisions of the law as to the details of the proceeding must be followed strictly. This act does not assume, in terms, to revise, alter, or amend any prior act or section of an act, but, by various transfers of duties, has an amendatory effect by implication * * *." 140 Mich. 631, 634. (Emphasis added.)

The no-fault act does not purport to repeal any part of an act outright and incorporate by reference the rest of the prior act without change.

The no-fault act rather falls in that category where the incorporation by reference is with change rather than without change. The leading case illustrating the negative application of this rule is Justice COOLEY'S, Mok v The Detroit Building Savings Association No 4, 30 Mich. 511 (1875). An 1869 act provided for the incorporation of building and savings associations under an 1855 act authorizing the formation of corporations for building and leasing housing. The 1855 act in turn provided such corporations could be formed under an 1853 act providing for the formation of mining and manufacturing corporations. The Mok Court said:

"But while the act of 1869 referred parties in this circuitous manner to that of 1853 for the requirements in organization, it undertook at the same time to dispense with some things required by that act, and to make some changes." Mok, 521.

* * *

" * * * [these] changes and modifications * * * [were] not made by the re-enactment of the sections changed or modified, but only by indicating the extent of the changes, leaving the parties concerned to fit the new act to the old as best they may." Mok, 523, quoted in Alan, 272. (Emphasis added.)

Mok also says:
"[T]he constitutional provision [art 4, § 25] * * * forbids the enactment of fragments which are incapable of having effect or of being understood until fitted in to other acts after by construction or otherwise places have been made for them * * *." Mok, 529, quoted in Alan, 272, quoted in AIA brief, p 20. (Emphasis added.) In addition to the provisions concerning the establishment of courts and court procedures, the Revised Judicature Act deals with such diverse subjects, originally enacted as separate statutes with separate objects, as the prohibition of actions for alienation of affections (the heartbalm act), 1935 PA 127; 1948 CL 551.301, now MCLA 600.2901; MSA 27A.2901; abolition of the defense of governmental function resulting from the negligent operation of a motor vehicle, 1945 PA 127; 1948 CL 691.151, now MCLA 600.2904; MSA 27A.2904; limitation on the liability of a merchant for conduct involving persons suspected of larceny of goods, 1958 PA 182; 1948 CL 692.861, now MCLA 600.2917; MSA 27A.2917; the wrongful death act itself, 1848 PA 38; 1948 CL 691.581, 691.582, now MCLA 600.2922; MSA 27A.2922; the contribution among joint tortfeasors' act, 1941 PA 303; 1948 CL 691.561-691.564, now MCLA 600.2925; MSA 27A.2925; assignments for the benefit of creditors, 1879 PA 198; 1897 CL 9539, et seq., now MCLA 600.5201; MSA 27A.5201; assignments of accounts receivable, 1945 PA 309; 1948 CL 691.901, et seq., subsequently MCLA 600.5401, et seq.; MSA 27A.5401, et seq.
The assignments of accounts receivable act as codified by the Revised Judicature Act was repealed when its substance became embodied in the Uniform Commercial Code. If the subject of assignments of accounts receivable was within the object of the Revised Judicature Act, how could that subject also be within the object of the Uniform Commercial Code? — only by finding in each enactment a common denominator with other provisions of the enactment.

More recently this Court had a similar case in Alan v Wayne County, 388 Mich. 210, 268-288 (1972). There the building authority act (1948 PA [1st Ex Sess] 31) sought to incorporate part of the Revenue Bond Act ( 1933 PA 94) and at the same time amend it to permit tax bonds. We held the part attempting the change to tax bonds without reenactment and publication offensive to art 4, § 25. Of like effect, Clay v Pennoyer Creek Improvement Co, 34 Mich. 204 (1876); dissenting opinion in People v Stimer, 248 Mich. 272 (1929) adopted in Alan, supra, 277; In re Petition of Auditor General, 275 Mich. 462 (1936).

Clay v Pennoyer Creek Improvement Co, 34 Mich. 204, 208-210 (1876) is like Mok and the purported amending was also held invalid. (Discussed in Alan, pp 273-274.) The Clay Court also saw art 4, § 25 as a mandate for all possible clarity and precision in statutes so that where prior acts are referred to:
"[I]t will not be necessary that parties should either omit from or add important words or provisions to the sections referred to in order to render them applicable." Clay, 209, quoted in Alan, 274. (Emphasis added.) See 1917 PA 256, the schedule of repealed laws is over two solid pages; 1956 PA 218, enacting the current Insurance Code.

A quotation from In re Petition of the Auditor General, supra, is instructive both as to how the no-fault act offends art 4, § 25, viz. by not repealing in toto but altering in part, and how the Legislature should have proceeded:

"What was done is the very thing that the Constitution aimed to prevent. The so-called repeal of section 66 (section 3458) actually is an amendment of this section for a large portion of it remains unaffected, and provides for the publication in the instant case. This section, as amended, should have been reenacted and published at length in the amended form so as to conform with the constitutional mandate, hereinbefore quoted." 275 Mich. 462, 468.

The no-fault act falls into the Mok category, because as previously indicated it leaves it to the public to try to figure out where the no-fault act fits in with the civil liability and wrongful death acts by inserting and removing words here and there. The no-fault act therefore is not a permissible repeal by implication and incorporation by reference.

VIII — CAN ART 4, § 25 BE AVOIDED BY MAKING NO REFERENCE TO LAW AMENDED?

It has been suggested that the reenactment and publication requirement of art 4, § 25 can successfully be avoided by making no reference to the law which would be amended.

Did total omission of any reference to the law to be amended in the no-fault act successfully avoid the requirements of art 4, § 25?

The answer is no on two counts. "A" assuming there were no reference to the law to be amended, if a minimal reference such as to "title only" is insufficient, no reference at all is even less sufficient. "B" finding that there is some reference in the no-fault act to the law to be amended, such reference is inadequate.

A — Assuming No Reference

Can art 4, § 25 be avoided by making no reference at all to the law to be amended?

To ask this question should, in common sense, answer it. The purpose of art 4, § 25 is to give notice and certainty. Obviously, if reference to the title only is not enough for notice and certainty, giving no reference at all is a fortiori not enough.

That the purpose of art 4, § 25 is to give notice and certainty is readily confirmed by reading and considering the whole section together. Const 1963, art 4, § 25 reads:

"No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length."

Immediately clear on reading § 25 is that amendment "by reference to its title only" is constitutionally not good enough AND "the section or sections of the act altered or amended" must be "reenacted and published at length."

Publication provides notice.

Reenactment of the section altered or amended at length provides certainty.

A moment's reflection on "re-enactment" emphasizes the purpose of requiring the words of the amendatory act and the words of the amended act to be fitted together in a new text. This eliminates any guessing as to what word goes where, as we have seen exists in comparing § 3135 of the no-fault act and § 401 of the civil liability act.

Two quotations from Justice COOLEY illustrate and confirm these two purposes.

Notice is particularly stressed in People v Mahaney, 13 Mich. 481, 497 (1865):

"The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws."

Certainty is stressed in Mok v Detroit Building Savings Association No 4, 30 Mich. 511, 516 (1875):

"Alterations made in the statutes by mere reference, and amendments by the striking out or insertion of words, without reproducing the statute in its amended form, were well calculated to deceive and mislead, not only the legislature as to the effect of the law proposed, but also the people as to the law they were to obey, * * *."

Logical construction of art 4, § 25 seems to invalidate the idea that this section can be avoided by omitting any reference to the law to be amended. But let us consider — can't technical reliance on the words "by reference to its title only" avoid the requirements of reenactment and publication.

Justice COOLEY himself spoke quite plainly on the subject of trying to avoid a constitutional purpose by a technical construction. In People ex rel Bay City v State Treasurer, 23 Mich. 499, 506 (1871) he said:

"[I]t cannot be permissible to the courts that in order to aid evasions and circumventions, they shall subject these instruments * * * to a literal and technical construction, as if they were great public enemies standing in the way of progress, and the duty of every good citizen was to get around their provisions whenever practicable, and give them a damaging thrust whenever convenient."

More recently this Court again spoke pertinently in Lockwood v Commissioner of Revenue, 357 Mich. 517, 556-557 (1959):

"The literal construction of the words, without regard to their obvious purpose of protection, is to make the constitutional safeguard no more than a shabby hoax, a barrier of words, easily destroyed by other words. This canon of constitutional construction we reject. A constitutional limitation must be construed to effectuate, not to abolish, the protection sought by it to be afforded."

Furthermore this Court has not only looked to the real purpose of the constitution but investigated not only the apparent purpose of possibly conflicting statutes but any, even unintentional, side effect. Our Brother T.G. KAVANAGH said in Gallegos v Glaser Crandell Co, 388 Mich. 654, 672 (1972):

"A court is not confined to a sterile examination of the statute itself, but must look to its effect. Such effect alone may dictate a finding that [a constitutional provision] has been denied. * * * If the effect is direct we have little trouble in determining discrimination. If the direct effect is not constitutionally offensive however, we must look for any indirect effect. An indirect effect is no more legitimate than a direct effect, and we must assay the effect apart from the purpose. `The existence of a permissible purpose cannot sustain an action that has an impermissible effect.'" (Footnotes omitted, emphasis added.)

In short this Court enforces the purposes the people intended in their constitution. Here art 4, § 25 intends that where there is amendment of prior law "reference to title only" is not enough, there must be reenactment and publication at length so that legislators and the public alike can read for themselves the language of the law as amended without having to pick a word from one act and fill in with a word from another. Omission of all reference to the act to be amended and failure to reenact and publish violates art 4, § 25.

B — No-Fault Makes Oblique Reference to Act to be Amended

As the furthest extreme from "reference to its title only", we have examined whether complete omission of reference to the act to be amended could obviate the art 4, § 25 requirements of reenactment and publication. We found it did not.

It appears, however, that the no-fault act is not as far away from the wording of art 4, § 25 as to make no reference to the act to be amended. Section 3135 makes specific reference to abolition of tort liability arising purely from "ownership". There is only one statute, one "provision of law" governing liability purely from "ownership". There is no common-law liability arising purely from ownership (see above) so § 3135(2) can only be "referring" to the owners liability statute. There IS an amendment "by reference" to the owners liability statute.

Measuring this interpretation of the no-fault act situation against the purposes of notice and clarity found in "A", we must find again that no-fault violates art 4, § 25.

In re Petition of Auditor General, 275 Mich. 462 (1936) is instructive as to how this Court has handled a case where there was not a complete omission of reference and neither a reference to title only nor reenactment. In Auditor General the amendatory act made no reference to the title of the act to be amended but did purport to repeal the prior act. This Court said:

"Appellants contend that in addition to other constitutional defects, Act No. 243 is in direct violation of the Constitution, 1908, art. 5, § 21, which provides that:

"`No law shall be revised, altered or amended, by reference to its title only; but the act revised and the section or sections of the act altered or amended shall be reenacted and published at length.'

"The last sentence of Act No. 243, Pub. Acts 1935, states that provisions of Act No. 206, §§ 64, 65, 66, Pub. Acts 1893 (1 Comp. Laws 1929, §§ 3456, 3457, 3458), requiring publication of the list of lands delinquent for taxes are repealed. What was done is the very thing that the Constitution aimed to prevent. The so-called repeal of section 66 (section 3458) actually is an amendment of this section for a large portion of it remains unaffected, and provides for the publication in the instant case. This section, as amended, should have been reenacted and published at length in the amended form so as to conform with the constitutional mandate, hereinbefore quoted." ( 275 Mich. 462, 467-468).

To sum up,

1 — The clear intention of the people in art 4, § 25 is to require the Legislature to "amend" by reenactment and publication in order to provide notice and clarity.

2 — If a subsequent act is "complete in itself" and conflicts with a prior act, it can repeal but not amend it, although it is sometimes called an "amendment by implication".

3 — If a subsequent act repeals a portion of a prior act by implication and incorporates all the rest of the prior act without any change or amendment, this too is a permissible so-called "amendment by implication" although in reality it is a repeal in part.

4 — If a subsequent act adds to a prior act but is harmonious and not inconsistent with the prior act, it is not a "revision, alteration or amendment" within the meaning of art 4, § 25.

5 — Omission of reference to the title of an act to be amended in the amendatory act does not avoid the necessity of reenactment and publication required under art 4, § 25.

6 — Reference of some sort to the act to be amended and failure to reenact and publish violates art 4, § 25.

IX — CONCLUSION

The no-fault act, as its very title indicates, "modifies" or "revises, alters or amends" prior law. It comes within no category such as "an act complete in itself" repealer or partial repealer and incorporation by reference without change or harmonious addition. Furthermore, this Court has not recognized an actual amendment which simply omits language of reference as avoiding the consequences of art 4, § 25. As a consequence, it is our opinion that the no-fault act violates art 4, § 25 and Question 2 must be answered "Yes, the no-fault act by reason of § 3135 does violate Const 1963, art 4, § 25."