Briggs v. Campbell, Wyant & Cannon Foundry Co.

379 Mich. 160 (1967) 150 N.W.2d 752 BRIGGS v. CAMPBELL, WYANT & CANNON FOUNDRY COMPANY. HABETLER v. SAME. HARRIS v. SAME. WRIGHT v. SAME. HARRINGTON v. GALE MANUFACTURING COMPANY. Calendar No. 23, Docket Nos. 51,412-51,416. Supreme Court of Michigan. Decided June 6, 1967. Rehearing denied October 2, 1967. Cholette, Perkins & Buchanan (Edward D. Wells, of counsel), for defendant Campbell, Wyant & Cannon *163 Foundry Company, Division of Textron American, Inc., and Liberty Mutual Insurance Company. Charles H. King, for added defendants Campbell, Wyant & Cannon Foundry Co., Inc., and Michigan Mutual Liability Company. Lacey & Jones (E.R. Whinham, Jr., of counsel), for defendant Gale Manufacturing Company. Stanley F. Dodge and Peter B. Munroe, for defendants Brooks Foundry Company and Michigan State Accident Fund. BLACK, J. Trellsite Foundry & Stamping Company v. Enterprise Foundry, 365 Mich 209, flatly held that the provision in section 9 of part 7 of the workmen's compensation act (CL 1948, § 417.9 [Stat Ann 1960 Rev § 17.228]) which relates to the apportionment *164 of an award was unconstitutional. Pointing to the distinction between substantive due process and procedural due process, we went on to say (pp 214, 215): "Naturally, a statutory provision affecting private substantive rights in the interests of the general welfare might be reasonable and hence valid in its application to certain circumstances and the reverse as applied to others. The test of reasonableness has not, however, been applied to the right of procedural due process. It is absolute. Statutory enactments authorizing proceedings for taking life, liberty, or property without providing for procedural due process therein cannot stand under constitutional exactments. As applied to the instant case, the apportionment provision of the statute, in failing to provide for notice of hearing on compensation to prior employers, is unconstitutional, leaving no legal basis for a right of apportionment or contribution, regardless of whether notice is or is not served on former employers in a given case." When the legislature considered and enacted amendatory PA 1962, No 189, that body presumptively held Trellsite's majority opinion in one hand and, in the other, the decision upon which the seated panel of the Court of Appeals (2 Mich App 204) relied principally for holding that Act 189 was not effective retroactively. That decision is In re Davis' Estate, 330 Mich 647.[*] Therein the Court quoted and applied, from Detroit Trust Co. v. City of Detroit, 269 Mich 81, 84, this firm rule: "We think it is settled as a general rule in this State, as well as in other jurisdictions, that all statutes are prospective in their operation excepting in such cases as the contrary clearly appears from the context of the statute itself. *165 "`Indeed, the rule to be derived from the comparison of a vast number of judicial utterances upon this subject, seems to be, that, even in the absence of constitutional obstacles to retroaction, a construction giving to a statute a prospective operation is always to be preferred, unless a purpose to give it a retrospective force is expressed by clear and positive command, or to be inferred by necessary, unequivocal and unavoidable implication from the words of the statute taken by themselves and in connection with the subject matter, and the occasion of the enactment, admitting of no reasonable doubt, but precluding all question as to such intention.' Endlich, Interpretation of Statutes, § 271." Act 189 was conceived and born of Trellsite. The legislature sought to enact a statute providing that which, in the constitutional sense, its membership had never provided before. By legal presumption all of the senators and representatives knew at the time that an unconstitutional statutory provision though in form and name a law is from the beginning no law at all; that the invalidity thereof dates from the time of enactment rather than the time of decision branding the provision as unconstitutional, and that such a provision is at no time effective for any purpose. The panel below so held. Now with that knowledge at hand, what did the senators and representatives do by way of prospective or retroactive hint to the judicial branch? Nothing in the "context of the statute" (referring to Act 189) "clearly" or otherwise suggests an intention to render it retro-effective. Neither does the wording thereof manifest or imply unavoidably a purpose other than that which is presumptive, that is, prospective operation and effect. I think we should apply the Davis and Detroit Trust Cases rather than ignore them, thereby upholding a settled rule of statutory construction and thereby reining *166 up short our past tendencies to manufacture more and more now-for-then law by undue and unjudicious process. To summarize: I agree specifically with the panel below that Trellsite's prevailing opinion "destroyed CL 1948, § 417.9 ab initio" and that Act 189 provides no hint of legislative intent that it should apply retroactively as claimed. On that ground my vote to affirm is cast. KELLY, T.M. KAVANAGH, and ADAMS, JJ., concurred with BLACK, J. SOURIS, J. (concurring). In Leonard v. Lans Corporation (1967), 379 Mich 147, the undersigned in dissent wrote to hold that the amendment of section 9, part 7, of the workmen's compensation law by PA 1962, No 189, effective March 28, 1963,[1] is applicable to an occupational disease disability claim arising prior thereto. In Leonard, all proceedings before the workmen's compensation department, including the filing of claimant's application for hearing and adjustment of claim and his last employer's motion for apportionment of liability between it and prior employers, were taken after March 28, 1963, the amendatory act's effective date, and pursuant to its provisions, although claimant's disability occurred prior to that date. In the five cases considered herein,[2] however, proceedings *167 before the department had been commenced and the referee's hearing on liability concluded before the act's effective date. Notwithstanding the absence of statutory authority in effect at the time, our decision in Trellsite Foundry & Stamping Company v. Enterprise Foundry (1961) 365 Mich 209, having invalidated the procedure theretofore specified in section 9, part 7,[3] prior employers of the claimants in Habetler, Harris, Wright, and Harrington were ordered added as parties defendant before the effective date of the amendatory act in proceedings either before the hearing referee or the appeal board. In Briggs, the referee's award of compensation to claimant was before the appeal board for review when, in April of 1963, that board added prior employers as parties defendant. In none of the cases, however, was apportionment of liability ordered by the appeal board, it having concluded that Act 189 was not applicable to claims arising before its effective date. On appeal to the Court of Appeals, that Court affirmed for the same reason. Briggs v. Campbell, Wyant & Cannon Foundry Company (1966), 2 Mich App 204. We affirm also, but for other reasons. In Trellsite, we denied that a valid apportionment award could be entered in apportionment proceedings of which prior employers were given notice and in which they were accorded an opportunity to participate and to contest the hearing referee's previous award of compensation as then provided by section 9, part 7. In our decision in Trellsite, p 213, our majority expressly disavowed the contention there made upon us that a valid apportionment award may enter, even absent constitutionally valid statutory procedures therefor, when notice of the hearing on compensation before the referee has been served upon prior employers and they have participated *168 therein. Considering the statutory nature of the powers exercised by the department and by its appeal board and our many decisions requiring strict compliance with statutory requirements in such proceedings, we conclude that the apportionment proceedings conducted in Habetler, Harris, Wright and Harrington before the effective date of Act 189 and without statutory authority therefor were beyond the powers of the department and its appeal board and, consequently, that no valid apportionment orders could have been entered in those cases. In Briggs, while the order adding a prior employer and its carrier as parties defendant was made following the effective date of the amendatory act, the amended provisions of the statute were not followed, the referee's hearing already then having been concluded. Failure to follow the statutory procedure, because the compensation hearing before the referee already had been concluded when the act became effective, is fatal to appellants' claims. Affirmed. Costs may be taxed. DETHMERS, C.J., and O'HARA, J., concurred with SOURIS, J. BRENNAN, J., did not participate in the decision of this case. NOTES [*] In Welsh v. Ohanesian, 378 Mich 24, four Justices, the undersigned being one, followed and applied the rule of Davis. [1] Amending CL 1948, § 417.9 (Stat Ann 1963 Cum Supp § 17.228). See, currently, CL 1948, § 417.9, as amended by PA 1965, No 44 (Stat Ann 1965 Cum Supp § 17.228). [2] Four of the cases (Briggs, Habetler, Harris, and Wright v. Campbell, Wyant & Cannon Foundry Company, Division of Textron American, Inc., Liberty Mutual Insurance Company, Campbell, Wyant & Cannon Foundry Co., Inc., and Michigan Mutual Liability Company) were consolidated on appeal to the Court of Appeals and the fifth (Harrington v. Gale Manufacturing Company, Brooks Foundry Company and Michigan State Accident Fund) was submitted with them for decision by the Court of Appeals. That court held that Act 189 was not applicable to claims arising prior to its effective date. Briggs v. Campbell, Wyant & Cannon Foundry Company (1966), 2 Mich App 204. We granted leave to appeal to this Court. [3] CL 1948, § 417.9 (Stat Ann 1960 Rev § 17.228).