author: Allen, J.

text:
    SAGINAW VALLEY TROTTING ASSOCIATION, INC. v MICHIGAN RACING COMMISSIONER
    Docket No. 77-4086.
    Submitted May 10, 1978, at Lansing.
    Decided July 6, 1978.
    The Saginaw Valley Trotting Association, Inc. and the Saginaw County Agricultural Society entered into a 10-year renewable lease to conduct harness racing and on August 23, 1977, the trotting association applied to the racing commissioner for a track license. On October 13, 1977, the commissioner denied the application for a track license. The association and the society then filed a complaint, in the Court of Appeals, for mandamus and in addition moved that the racing commissioner be ordered to show cause why mandamus should not be entered against him. On November 18, 1977, the Court of Appeals granted the order to show cause and further ordered that the parties submit briefs on the issue of whether a complaint for mandamus in the Court of Appeals is an appropriate remedy in view of the fact that MCL 431.38; MSA 18.966[8] provides for a circuit court appeal from a refusal to grant a track license and that MCL 600.4401; MSA 27A.4401 now provides for mandamus against a state officer in circuit court, in addition to briefing the merits. Held:

    1. The denial of a racing license by the racing commissioner should be reviewed by appeal coupled with mandamus in circuit court because circuit courts now have mandamus jurisdiction over state officers under the changes in the Revised Judicature Act, effective January 1, 1977. However, since the issue of the appropriateness of mandamus in the Court of Appeals was raised by the Court of Appeals and since the issue presented is one of first impression and plaintiffs did follow the standard procedure for mandamus as it existed up to this time, plaintiffs will not be denied access to the remedy they invoked on the ground that they brought their action in the wrong court. The decision in this case is limited to complaints for mandamus filed in the Court of Appeals after the date of this opinion and the opinion is limited to complaints for mandamus brought under the racing act.

      References for Points in Headnotes
    [1] 52 Am Jur 2d, Mandamus §§ 7, 46 et seq.

    [2-4, 6] 4 Am Jur 2d, Amusements and Exhibitions § 30.
    51 Am Jur 2d, Licenses and Permits §§ 81, 149.
    52 Am Jur 2d, Mandamus §§ 26, 44.
    [3] 52 Am Jur 2d, Mandamus § 207.
    [5] 4 Am Jur 2d, Amusements and Exhibitions § 30.
    51 Am Jur 2d, Licenses and Permits §§ 45-47.

      2. It was appropriate for the commissioner to take into consideration reasons appearing outside the application itself. Also, the availability of sufficient racing stock was a proper consideration; however, before full consideration can be given to this matter by the Court of Appeals, it is necessary for the commissioner to update and detail findings with supporting reasons on the question of the availability of stock.
    Remanded to the racing commissioner, with the Court of Appeals retaining jurisdiction.
    1. Mandamus — Other Adequate Remedy.
    Mandamus will not issue if another adequate remedy is available.
    2. Mandamus — Circuit Courts — State Officers — Statutes—Court of Appeals — Denial of Racing License.
    Circuit courts now have mandamus jurisdiction over state officers; therefore, a party feeling aggrieved by the denial of a racing license by a state officer now has an adequate remedy in circuit court, and the Court of Appeals may decline to issue mandamus even though that Court has concurrent mandamus jurisdiction with circuit courts and even though a plaintiff has a choice of forum (MCL 431.38[4], 600.4401; MSA 18.966[8] [4], 27A.4401).
    3. Mandamus — Licenses—Denial of License Application — Racing Commissioner — Court of Appeals — Circuit Court — Statutes.
    Review of a denial of a license by the racing commissioner should be by appeal, coupled with mandamus, in the circuit court; however, where the issue of the appropriateness of bringing the mandamus action in the Court of Appeals subsequent to an amendment of the Revised Judicature Act which gave circuit courts concurrent mandamus jurisdiction with the Court of Appeals is one of first impression and was raised by the Court of Appeals after plaintiffs had brought the mandamus action in the Court of Appeals, the plaintiffs should not be denied access to the remedy they invoked on grounds that they brought their action in the wrong court (MCL 600.4401; MSA 27A.4401).

      4. Licenses — Horse Track Licenses — Denial of Licenses — Standard of Review.
    The standard of review, when reviewing the denial of an application for a horse track license, is whether the racing commissioner’s denial was for good and reasonable cause or whether the rejection was arbitrary, capricious and unreasonable.
    5. Licenses — Horse Track Licenses — Racing Commissioner — Extrinsic Considerations.
    The racing commissioner, in considering an application for a track license, is permitted to give consideration to extrinsic circumstances such as the availability of racing stock and the opportunity for the sport to develop as part of the race track decisional process.
    6. Licenses — Initial Issuance — Due Process — Hearing—Administrative Law — Judicial Review.
    Due process ordinarily does not require an opportunity for a hearing where the question is whether a license should issue initially; however, in a mandamus action against the racing commissioner, despite the fact that the court cannot remand for an evidentiary hearing because no hearing is statutorily required, it is inherent in the process of judicial review that the commissioner’s reasons and conclusions be set forth in a sufficiently full and understandable manner to make review possible and, therefore, remand for more detailed findings should be made.

      Borrello, Geyer, & Scorsone, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and George M. Elworth, Assistant Attorney General, for defendant.
    Before: Beasley, P. J., and Allen and H. E. Deming, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Allen, J.

Plaintiffs ask this Court to issue an order of mandamus requiring racing commissioner, Fedele F. Fauri, to issue a license to operate a harness race track at the Saginaw County Fairgrounds.

Plaintiff Saginaw County Agricultural Society is a quasi-public body owning the Saginaw County Fairgrounds. Plaintiff Saginaw Valley Trotting Association, Inc., is a nonprofit corporation incorporated in 1977, for the purpose, inter alia, of conducting harness racing with parimutuel betting. On August 11, 1977, plaintiffs entered into a 10-year renewable lease to conduct harness racing and, on August 23, 1977, the trotting association applied to the racing commissioner for a track license pursuant to § 8 of the Racing Law, and for race meeting dates from May 22 through July 29, 1978, pursuant to § 9 of the Racing Law. On September 15, 1977, the commissioner requested additional information and documentation which was promptly submitted by the trotting association. In a ruling dated October 13, 1977, the commissioner denied the application for a track license. The principal reason for denial was that, even if a track license were granted, racing dates could not be given because competition from existing tracks and the unavailability of racing stock made the grant of new racing dates inconsistent with the commissioner’s duty under regulations to provide opportunity for the sport to properly develop. 1964-1965 AACS R 431.67 (Rule 339). Plaintiffs then filed this complaint for mandamus and, in addition, moved that the defendant be ordered to show cause why mandamus should not be entered against him. By order dated November 18, 1977, this Court granted the order to show cause and further ordered that the parties submit briefs on issue I, infra, in addition to the merits.

I. Is a complaint for mandamus in the Court of Appeals an appropriate remedy in view of the fact that MCL 431.38; MSA 18.966(8) provides for a circuit court appeal from a refusal to grant a track license and that MCL 600.4401; MSA 27A.4401 now provides for mandamus against a state officer in circuit court?

In his brief submitted in response to this Court’s directive to brief the above question, the Attorney General argues that the amendment to the Revised Judicature Act governing mandamus, MCL 600.4401; MSA 27A.4401, now gives a party feeling aggrieved by denial of a license an adequate remedy in the circuit court and, this being so, mandamus in the instant case must be had in the circuit court. In response, plaintiffs argue that the very same amendment contains language explicitly providing that the choice of bringing mandamus in the Court of Appeals or the circuit court is "at the option of the party commencing the action”.

In deciding which of the two points of view on this question of first impression should prevail, it is helpful to distinguish between (1) the right to seek mandamus in either the court of appeals or circuit court and (2) the discretionary right of the court in which mandamus is sought, to issue mandamus. It has always been the law that mandamus will not issue if another adequate remedy is available. Constantine v Liquor Control Comm, 374 Mich 259; 132 NW2d 146 (1965), Hazel Park Racing Ass’n, Inc v Racing Comm’r, 336 Mich 508, 518; 58 NW2d 241 (1953). Prior to the amendment, supra, it was the circuit court’s inability to order issuance of the denied license which made relief in the circuit court inadequate. Schweitzer v Board of Forensic Polygraph Examiners, 77 Mich App 749, 753; 259 NW2d 362 (1977). Review in the circuit court was in the nature of certiorari, and certiorari permitted only affirmation, reversal or quashing of the proceedings reviewed. The court was without power to make an affirmative order. Constantine v Liquor Control Comm, supra, Kelly Downs, Inc v Racing Comm, 60 Mich App 539, 549; 231 NW2d 443 (1975). Where a state officer was defendant, as is the case here, the circuit court was also restricted by the rule forbidding a circuit court to issue mandamus against a state officer under any guise. Minarik v State Highway Comm’r, 336 Mich 209, 213; 57 NW2d 501 (1953), Lord v Genesee Circuit Judge, 51 Mich App 10, 16; 214 NW2d 321 (1973). But this bar was removed, effective January 1, 1977, by the amendment to § 4401 and, today, circuit courts have mandamus jurisdiction over state officers.

In our opinion, a party feeling aggrieved by denial of a racing license now has an adequate remedy in circuit court. Section 4401 as amended allows the circuit court to issue mandamus against state officers. Section 8(4) of the racing act explicitly provides that the racing commissioner’s decision in refusing or revoking a track license may be reviewed by the circuit court of the county in which the track is located. MCL 431.38(4); MSA 18.966(8X4). Section 4401 and § 8(4) combined, clearly give the party denied a racing license an adequate remedy. The remedy exists because, upon denial of the license, the party may appeal under § 8(4) to circuit court which, upon review in the nature of certiorari now under § 4401 may issue mandamus. We therefore conclude that in the case before us the Court of Appeals may decline to issue mandamus even though the Court has concurrent mandamus jurisdiction with circuit courts and even though plaintiff has a choice of forum under RJA § 4401.

Our conclusion admittedly changes the heretofore existing rules governing review of a denial of a racing license. But we believe it is supported on both sound legal and policy grounds. As we noted earlier, it has always been the law that this Court would deny mandamus where an adequate remedy existed elsewhere. The Legislature amended the statute to give circuit courts mandamus jurisdiction over state officers but did not amend the existing rule allowing a court to decline to issue the writ where another adequate remedy is available. On policy grounds, our conclusion is supported by the Supreme Court in People v Flint Municipal Judge, 383 Mich 429, 432; 175 NW2d 750 (1970), where the Court said:

"Reasons of policy dictate that such complaints [for superintending control] be directed to the first tribunal within the structure of Michigan’s one court of justice having competence to hear and act upon them.”

Our decision is also in conformity with the policy announced by the high Court in Superx Drugs Corp v State Board of Pharmacy (On Rehearing), 375 Mich 314, 320; 134 NW2d 678 (1975):

"The policy of this Court is to adhere in all but extremely rare instances to the method of review of the decisions of administrative agencies which is provided by specific statutes.”

Finally, our holding is consistent with the policy expressed in GCR 1963, 801.2:

"Where any administrative action is subject to review concurrently by direct appeal to the Supreme Court or the Court of Appeals (or by any writ or remedy for which appeal is a substitute) and by suit, action or proceedings authorized by law in the circuit court for the same or similar ultimate relief, the circuit court shall have the duty to proceed in any such suit, action or proceeding brought in said court as if the same were the sole method of review, unless otherwise ordered by the Court of Appeals or the Supreme Court.”

Though we conclude that review of a denial of a license by the racing commissioner should be by appeal, coupled with mandamus, in the circuit court, we acknowledge that application of the rule to plaintiffs in the present case would be unfair. The issue presented is of first impression and was raised by this Court. Plaintiffs did follow the standard procedure for mandamus as it existed up to this time. Therefore, we limit our decision in this case to complaints for mandamus filed in this Court after the date of this opinion, and will not deny plaintiffs access to the remedy they invoked on grounds that they brought their action in the wrong court. Furthermore, we limit our opinion to complaints for mandamus brought under the racing act. We do not hold that all mandamus actions against state officers must start in circuit court but we leave this issue for future decision on a case by case basis.

II. Was the racing commissioner’s denial of the application for a race track license arbitrary, capricious and unreasonable?

In reviewing the denial of an application for a horse track license, the standard of review is whether the commissioner’s denial was for good and reasonable cause or whether the rejection was arbitrary, capricious and unreasonable. Mount Clemens Harness Ass’n v Racing Comm’r, 360 Mich 467, 474; 104 NW2d 363 (1960), Kelly Downs, Inc v Racing Comm’r, supra, 550. The claim that the commissioner’s denial in the case before us was arbitrary, capricious and unreasonable is posited on two grounds: First, that denial of a track license may not be based on reasons for denial of a racing date license; Second, that the commissioner grieviously erred in concluding there would be an insufficiency of racing stock. The first ground of error presents a question of law. The second involves a question of fact.

We do not read Kelly Downs, supra, as holding that in denying a track license the commissioner may not take into consideration reasons appearing outside of the application itself. While a brief section of the Court’s written opinion in that case suggests such holding, we believe that the opinion, when read as a whole, holds that the commissioner’s reason for denial of the application, viz.: that the administration was not prepared to extend pari-mutuel horse racing into new areas of the state — was too general and conclusionary only. In contrast, the denial in the instant case was predicated upon specific findings of fact which, although disputed as to their accuracy by plaintiffs, were spelled out in detail in the commissioner’s formal ruling.

Assuming, arguendo, that the holding in Kelly Downs does preclude the commissioner from taking into consideration the unavailability of race stock or the pending development of harness racing in the Flint-Saginaw region, we disagree with Kelly Downs. So narrow an interpretation of Kelly Downs is impractical, is contrary to § 2 of the racing act, MCL 431.32; MSA 18.966(2), and is inconsistent with decisions in other courts. It would be a futile gesture to force the commissioner to grant a track license knowing full well that subsequently a racing date license would be denied. It would also be unfair to the petitioning party. Plaintiffs’ argument is inconsistent with this Court’s decision in South Haven Racing Ass’n, Inc v Michigan Racing Comm’r, 42 Mich App 125; 201 NW2d 314 (1972). In that case the commissioner had denied an application for a track license and racing date license on grounds that because of the recent expansion of racing dates and until such time as such expansion could be evaluated " 'it would not be in the best interest of horse racing in Michigan to expand existing facilities and programs’ ”, 42 Mich App at 126. On appeal to our Court, plaintiff argued, as does plaintiff here, that the denial was not based on any deficiency in the application for a track license but was wrongfully based on extrinsic considerations pertaining to the opportunity for the sport of horse racing to properly develop. The argument was rejected:

"It would appear that defendant racing commissioner based his decision on sub-rule 339(a), the opportunity for the sport to properly develop. The defendant deemed it in order to observe and study the effect of his allocation of additional racing dates for the year 1971 from the view of the public welfare and the industry generally, before investigation, or an extended consideration of applications for licenses for new tracks and race meeting licenses in the State of Michigan. In that respect, we find that the letter to the plaintiff setting forth the commissioner’s reasons for denying the license was only an interlocutory order pending his study of the horse racing program in Michigan for 1971. This, in our opinion, he had a right to do under the 'necessary and proper’ power granted to him in the statute and under the regulations which the commissioner has prescribed.” 42 Mich App at 130-131. (Emphasis supplied.)

The "necessary and proper” power to which the Court referred is found in § 2 of the racing act, MCL 431.32; MSA 18.966(2). In our opinion, § 2 permits the commissioner to give consideration to such matters as the availability of racing stock and the opportunity for the sport to develop as part of the race track decisional process. Finally, we note that the commissioner’s power to consider track location in relation to other existing tracks is supported by North Hampton Racing & Breeding Ass’n, Inc v New Hampshire Racing Comm, 94 NH 156, 163; 48 A2d 472 (1946). There, the court held that the racing commissioner properly denied a track license for the reason that the "granting of another permit to conduct horse racing with pari-mutuel wagering in the southeastern section of New Hampshire would not be for the best interests of the State”. (Emphasis added.)

On the factual question of whether the commissioner acted arbitrarily in finding that there was a shortage of harness stock, plaintiffs appear to be on stronger grounds. We recognize that in reviewing a finding of fact made by the commissioner, an appellate court will not superimpose its judgment over the judgment of the commissioner but will confine itself to determining whether there was good and reasonable cause to sustain the commissioner’s findings. Mount Clemens Harness Ass’n v Racing Comm’r, 360 Mich 467, 474; 104 NW2d 363 (1960). As stated before, the principal reason assigned by the commissioner for denying the track license was the insufficiency of racing stock. Events transpiring subsequent in date to the denial of the license suggest that perhaps the commissioner erred on this key fact. As plaintiff’s brief of December 20, 1977, and accompanying chart points out, the present Jackson racing dates overlap the major circuit (Detroit) tracks completely. If there are enough horses to race in Detroit and Jackson at the same time, it seems to follow that there would be enough horses to race in Saginaw and Detroit when Jackson was not running. The problem for this panel is that in the absence of a record we cannot determine whether the commissioner exercised his discretion reasonably. We recognize that the racing commission is not an agency within the protection of the Administrative Procedures Act and, as such, no hearing is required. Kelly Downs v Racing Comm, supra, 546. Where the question is whether a license should issue initially, due process ordinarily does not require an opportunity for a hearing. 2 Am Jur 2d, Administrative Law, § 403, p 210; 51 Am Jur 2d, Licenses & Permits, § 16, p 22. This being so, we also recognize we may not remand for an evidentiary hearing. But we can require the racing commissioner to be moro explicit in his findings and reasons concerning the unavailability of horses. This is particularly true in relation to new developments occurring since the original decision was made. No matter what a statute may require or not require by way of hearing, it is inherent in the process of judicial review that the agency’s reasons and conclusions be set forth in sufficiently full and understandable manner to make review possible. Viculin v Dep’t of Civil Service, 386 Mich 375, 405; 192 NW2d 449 (1971).

Accordingly, this cause is remanded to the racing commissioner for updated and more detailed findings with supporting reasons on the question of the availability of stock and the current situation in the Saginaw-Flint area. Such findings should respond to the charges of inaccuracy made by plaintiff in this appeal. The commissioner’s updated report and finding should be made within 30 days of the date of this opinion. Our action in this regard is compatible with the final ruling of this Court in Kelly Downs, supra. We retain jurisdiction, deferring our decision as to whether mandamus shall issue until we have reviewed the commissioner’s report.

Remanded in accordance with this opinion. No costs, a public question being involved.

       The Racing Law was amended by 1977 PA 63. Sections 8 and 9 are found at MCL 431.38, 431.39; MSA 18.966(8), 18.966(9).

       The commissioner ruled in part:
      "Saginaw Valley’s eligibility for a track license is necessarily conditioned upon its eligibility for racing dates once such a track license is issued. It would be an exercise in futility for this office to grant a track license to an organization which would not qualify for racing dates.
      "The granting of the Genesee Raceway and Saginaw Valley track license applications at this time would raise serious questions as to the ability of one or all of the tracks in that area to conduct successful race meetings because of uncertainties as to the availability of sufficient racing stock, adequate patronage and community support, and the potentially adverse impact on non pari-mutuel horse racing at local and county fairs. The cumulative impact of these uncertainties is such that it mandates a cautious approach to track development by this office.”

       Prior to amendment, § 4401 stated:
      "All actions for mandamus against state officers shall be commenced in the court of appeals or in the supreme court, as provided by rules of the supreme court.”
      After amendment by 1976 PA 317, § 4401 reads:
      "1) An action for mandamus against a state officer shall be commenced in the court of appeals, or in the circuit court in the county in which venue is proper or in Ingham county, at the option of the party commencing the action.”

       We reject the argument that if appeal is taken to the circuit court under § 8(4) the scope of review is still limited by certiorari, since certiorari itself does not allow mandamus. The alleged deficiency may easily be overcome if appellant supplements his appeal with a motion for mandamus relief.

       However, it would seem that the rationale of this decision would apply to most mandamus proceedings for review, of state officers’ agency decisions where a remedy for review or appeal in circuit court is available under either the specific statute under which the agency proceedings were conducted, Chapter 6 of the Administrative Procedures Act, MCL 24.301 et seq.; MSA 3.560(201) et seq., or § 631 of the Revised Judicature Act, MCL 600.631; MSA 27A.631. Where circuit court review or appeal is available under one of those sources and mandamus is sought in the Court of Appeals, this Court could properly decline to entertain the complaint on the grounds that the circuit court remedy, coupled with a complaint, motion or prayer for mandamus relief, is an available adequate remedy.

       The commissioner’s denial included both a brief letter and a 2-1/2 page formal ruling spelling out in detail the limitations on available stock and the proximity of track licenses in the Flint-Saginaw region. See fn 2.

       "There is hereby created the office of racing commissioner, who is vested with the powers and duties prescribed in this act and also such powers necessary or proper to enable him to carry out fully and effectively all the purposes of this act.’’ (Emphasis supplied.)


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    GRUNOW v SANDERS
    Docket No. 77-2030.
    Submitted May 8, 1978, at Detroit.
    Decided July 6, 1978.
    Leave to appeal applied for.
    Walter E. Grunow was seriously injured when he was involved in an automobile accident on February 5, 1974. The driver of the other car, Samuel R. Sanders, was uninsured. Walter E. Grunow commenced an action against Samuel Sanders in June, 1975, which was subsequently dismissed without prejudice. On January 18, 1977, Walter E. Grunow and Edna M. Grunow, individually, and on behalf of others similarly situated, commenced another action against Samuel R. Sanders and certain state officials, including the governor, attorney general, secretary of state and the insurance commissioner. The plaintiffs sought monetary damages from the officials for negligence in allowing and/or encouraging the adoption of Michigan’s no-fault automobile insurance law. The suit also sought a declaration that the no-fault law is unconstitutional and an injunction against the continued enforcement of the law. Accelerated judgment for the defendant state officials on the ground that the Court of Claims has exclusive jurisdiction over any and all claims against state officials acting in their official capacities, Macomb Circuit Court, Robert J. Chrzanowski, J. Plaintiffs appeal. Held:

    The Court of Claims has exclusive jurisdiction over suits against public officials acting in their official capacities. The Court of Claims is not precluded from hearing class action suits and has jurisdiction to render declaratory judgments.
    Affirmed.
    1. Courts — Court of Claims — Jurisdiction—Public Officials— States.
    The Court of Claims has exclusive jurisdiction over suits against public officials acting in their official capacities as well as suits against state agencies or departments (MCL 600.6419[1]; MSA 27A.6419[1]).

      References for Points in Headnotes
    [1-3] 20 Am Jur 2d, Courts § 33.
    32 Am Jur 2d, Federal Practice and Procedure § 429.
    [2] 32 Am Jur 2d, Federal Practice and Procedure §§ 432, 433.
    [3] 22 Am Jur 2d, Declaratory Judgments §§ 75, 76.

      2. Courts — Class Action — Court of Claims.
    The Court of Claims can hear class action suits where statutory authority otherwise exists.
    3. Declaratory Judgment — Court of Claims — Jurisdiction.
    The Court of Claims has jurisdiction to render declaratory judgments.

      Jack C. Chilingirian, for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Robert Ianni, Assistant Attorney General, for defendants state officials.
    Before: Cynar, P. J., and T. M. Burns and D. C. Riley, JJ.
   Per Curiam.

This matter involves the jurisdiction of the Court of Claims to (1) hear a class action suit against state officials for actions taken in the course of their official duties, and (2) to issue a declaratory judgment.

Plaintiff Walter Grunow was seriously injured in an automobile accident on February 5, 1974. The driver of the other car in the accident was uninsured. Plaintiff commenced a lawsuit in Macomb County Circuit Court in June, 1975, which was subsequently dismissed without prejudice. The present lawsuit was filed in Macomb County Circuit Court on January 18, 1977.

In addition to the counts in the complaint concerning the specific accident, plaintiffs’ class action complaint included several counts against certain state officials, including the Governor, Attorney General, Secretary of State, and Insurance Commissioner. These counts sought monetary damages from the officials for negligence in allowing and/or encouraging the adoption of Michigan’s no-fault automobile insurance law. 1972 PA 294 (MCL 500.3101 et seq.; MSA 24.13101 et seq.). The suit also asked for a declaratory judgment that the no-fault law is unconstitutional and an injunction against the continued enforcement of the law.

The defendant state officials moved for accelerated judgment on two grounds. First, they argued that any possible liability was precluded under the doctrine of governmental immunity. Second, they asserted that the circuit court lacked subject matter jurisdiction over this portion of the suit, contending that the Court of Claims has exclusive jurisdiction over any and all claims against state officials acting in their official duties.

The circuit court granted the motion for accelerated judgment on the jurisdictional issue, holding that the Court of Claims did have exclusive jurisdiction over these claims. GCR 1963, 116.1(2). Plaintiffs have brought the present appeal from the grant of accelerated judgment.

We have found no Michigan case which directly decides, one way or the other, whether the Court of Claims has the jurisdiction to hear class action suits. Therefore, we must examine the statutory law which sets the limits of the Court’s jurisdiction.

The general jurisdictional provision of the Court of Claims Act provides:

"Except as provided in section 6440, the jurisdiction of the court of claims as conferred upon it by this chapter over claims and demands against the state or any of its departments, commissions, boards, institutions, arms or agencies, shall be exclusive. * * * The court has power and jurisdiction:
"(a) To hear and determine all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its departments, commissions, boards, institutions, arms or agencies.” MCL 600.6419(1); MSA 27A.6419(1).

This provision has been interpreted to mean that the Court of Claims has exclusive jurisdiction over suits against public officials acting in their official capacities as well as suits against state agencies or departments. Abbott v Secretary of State, 67 Mich App 344; 240 NW2d 800 (1976), Roberts v Michigan, 45 Mich App 252; 206 NW2d 466 (1973).

On the face of the jurisdictional statute, the Court of Claims is not limited to any particular variety of suit but rather is empowered to hear "all claims and demands” against the state. This broad language alone would be sufficient to uphold the trial court’s ruling that the Court could hear this class action suit. However, we also wish to comment on plaintiffs’ claim that the Court of Claims lacks equitable jurisdiction and thus cannot entertain an equitable action such as a class action suit.

Although class actions were originally founded solely in equity, the legal-equity distinction has greatly dissipated under current law:

"By virtue of former Rule 16 and under the present Rule 208, class actions are no longer limited to equity practice. Class actions may be permitted in any civil action, whether legal or equitable in nature, which meets the requirements prescribed by the rule.” 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 601.

Even if this distinction were still flourishing, we cannot say that the Court of Claims lacks all vestiges of traditional equity jurisdiction (as we will discuss further in the accompanying issue). Therefore, we do not find that the Court of Claims is precluded from hearing class action suits where statutory jurisdiction otherwise exists. See Sellman v Dep’t of Natural Resources, 61 Mich App 455; 233 NW2d 35 (1975).

The remaining question is whether the Court of Claims can render declaratory judgments. A previous Michigan Supreme Court case has held that the Court of Claims cannot issue such judgments. Taylor v Auditor General, 360 Mich 146; 103 NW2d 769 (1960). See also Dorfman v State Highway Dep’t, 66 Mich App 1; 238 NW2d 395 (1975). However, the viability of the Taylor decision is in serious doubt following the Supreme Court’s recent decision in Greenfield Construction Co, Inc v Dep’t of State Highways, 402 Mich 172; 261 NW2d 718 (1978).

In Greenfíeld, supra, the lead opinion, signed by Justices Ryan, Coleman and Fitzgerald, discussed this issue in a footnote:

"In Taylor v Auditor General, this Court declared that the Court of Claims was without the jurisdiction to grant a declaratory judgment. This conclusion was premised on the fact that the declaratory judgment act did not authorize the rendition of declaratory judgments by any and all courts of record, but only those which had a law side and an equity side. Since the Court of Claims 'does not possess the broad and inherent powers of a constitutional court of general jurisdiction’, in other words does not have an 'equity side’, it could not render a declaratory judgment.
"With the repeal of the declaratory judgment act, 1948 CL 691.501, by the Revised Judicature Act, MCLA 600.9901; MSA 27A.9901, the former language which restricted the power to render declaratory judgments to those courts which have both an equity side and a law side is no longer controlling. However, because the power of the Court of Claims is not at issue in this case, we decline to decide whether the Court of Claims is now empowered to render declaratory judgments.” 402 Mich at 198, fn 10.

In a separate opinion Justice Levin and Chief Justice Kavanagh held that they would have reached this issue directly:

"We would, additionally, hold, however, that because of revisions of the statute and court rules regarding declaratory judgments after Taylor v Auditor General, 360 Mich 146; 103 NW2d 769 (1960), was decided, the Court of Claims has jurisdiction to render a declaratory judgment regarding a claim or demand against the state or a department of state government.” 402 Mich at 203.

In view of the fact that five justices of the current Supreme Court have held that the Taylor Court’s reasoning, if not its opinion, is no longer controlling, and because we find no other authority or valid argument to the contrary, we hold that the Court of Claims has jurisdiction to render declaratory judgments. See Duncan v Beres, 15 Mich App 318, 329, fn 22; 166 NW2d 678 (1968).

Affirmed. No costs, a public question being involved.


text:
    THOMAS v BURROUGHS CORPORATION
    Docket No. 77-2036.
    Submitted March 21, 1978, at Detroit.
    Decided July 6, 1978.
    On October 20, 1972, Ethel Thomas filed for workmen’s compensation benefits for injuries sustained in a fall in her employer’s parking lot in 1966. The administrative law judge applied the two year back rule and awarded Mrs. Thomas $69 per week from October 20, 1970. The workmen’s compensation appeal board affirmed the findings of the administrative law judge and modified the award to $74 per week from October 20, 1970, to May 1, 1973, the last day of Mrs. Thomas’s son’s dependency, and $69 a week after that until further order of the bureau, holding that Mrs. Thomas was entitled to the annual adjustment to the weekly maximum of benefits for 1969 and subsequent years provided for in the statute. Mrs. Thomas’s employer, Burroughs Corporation, appeals to this Court by leave granted alleging that the rate adjustment provision of the statute applies only to personal injuries suffered during the year for which the adjustment is made. Held:

    The annual adjustment of the maximum weekly benefits applies only to personal injuries suffered during the year for which the adjustment is made and does not affect individual payments for injuries from prior years. The correct rate of benefits is $69 per week from October 20, 1970, to May 1, 1973, and $64 per week thereafter.
    Reversed and remanded with instructions.
    Workmen’s Compensation — Maximum Weekly Benefits — Annual Rate Adjustment of Maximum Weekly Benefits.
    The annual rate adjustment of maximum weekly benefits provision of the workmen’s compensation statute applies only to personal injuries suffered during the year for which the adjustment is made (MCL 412.9[b]; MSA 17.159[b]).
    Reference for Points in Headnote
    82 Am Jur 2d, Workmen’s Compensation § 591.

      Kelman, Loria, Downing, Schneider & Simpson (by Robert W. Howes), for plaintiff.

      LeVasseur, Mitseff, Egan & Capp, P. C. (by John P. Baril), for defendant.
    Before: D. C. Riley, P. J., and T. M. Burns and Cynar, JJ.
   Per Curiam.

We granted Burroughs Corporation’s application for leave to appeal in this workmen’s compensation case to consider the narrow question of the correct rate of compensation to be paid by the employer to a worker injured in 1966 for the year 1968 and subsequent years under MCL 412.9(a), 412.9(f); MSA 17.159(a), 17.159(f). We do not consider what differential benefits Mrs. Thomas may possibly be entitled to from the Second Injury Fund or any other questions.

Plaintiff filed a petition for hearing on October 20, 1972, seeking compensation for a back injury sustained in a fall in the employer’s parking lot on August 17, 1966. The administrative law judge entered an open award of benefits of $69 per week, based on one dependent, from October 20, 1970, after applying the two year back rule (now MCL 418.381(2); MSA 17.237(381X2)). The Workmen’s Compensation Appeal Board affirmed the finding of disability and modified the award to $74 per week from October 20, 1970, to May 1, 1973, inclusive (the last date of plaintiff’s son’s dependency) and $69 per week until November 15, 1974, and $69 per week until further order of the bureau (no dependents). The WCAB held that plaintiff, injured in 1966, was entitled to the annual adjustment to the weekly maximum of benefits for 1969 and subsequent years provided for in MCL 412.9(f); MSA 17.159(f).

1965 PA 44 amended subsection (a) of § 9 and added subsection (f). Insofar as relevant to this appeal, these subsections provide:

"Sec. 9. (a) While the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee, a weekly compensation of 66-2/3% of his average weekly wages, but not more than $58.00 as of September 1, 1965, $61.00 as of September 1, 1966 and $64.00 as of September 1, 1967, if such injured employee has no dependents; $63.00 as of September 1, 1965, $66.00 as of September 1, 1966 and $69.00 as of September 1, 1967 if 1 dependent; * * * .
"(f) The maximum weekly rate in each dependency classification shall be adjusted once each year in accordance with the increase or decrease in the average weekly wage in covered employment, as determined by the Michigan employment security commission. The average weekly wage in covered employment determined by the Michigan employment security commission for the year ending September 30, 1967, shall be the base on which such adjustments are made.
"The first adjustment, if any, shall be made on January 1, 1969, and shall reflect the change, if any, between the average weekly wage for September 30, 1968, and the average weekly wage for September 30, 1967, and the adjustments shall be made in like manner on each January 1 thereafter, utilizing the average weekly wage for the preceding September 30. There shall be an adjustment made of $1.00 in the maximum rates for each $1.50 increase or decrease in the average weekly wage. The maximum weekly rate as so determined for the year in which the date of injury occurred shall remain fixed without further change as to the personal injury occurring within such year.” MCA 412.9; MSA 17.159.

The question is whether the rate adjustment made pursuant to § 9(f) is to apply only to personal injuries suffered during the year for which the adjustment is made, or to all injuries occurring since September 1, 1965. We agree with the conclusion stated in Christopher v Chrysler Corp, 1969 WCABO 1226, that the adjustment applies only to injuries sustained in the year that the adjustment is made.

In Christopher Chairman Iverson traced the path of the legislation which became 1965 PA 44. As introduced, the original Senate bill required that "weekly payments” be adjusted once each year. This provision was amended to require that the "maximum and individual weekly payments” be adjusted. The Senate deleted the reference to "individual weekly payments” before it passed the bill and sent it to the House. The House made changes in the maximum benefit level in each classification and added the last sentence of subsection (f): "The maximum weekly rate as so determined for the year in which the date of injury occurred shall remain fixed without further change as to the personal injury occurring within such year”.

It seems clear to us, as it did to the WCAB in Christopher, that the Legislature, in light of the changes in the original bill, did not intend that individual payments for injuries from prior years be affected by the adjustments required by § 9(f), but only the maximum rate in each classification set out in § 9(a). This is inferentially supported by Justice Levin’s statement in Martin v Ford Motor Co, 401 Mich 607, 611; 258 NW2d 465 (1977):

"Since 1965 the act has provided for an annual adjustment in the maximum weekly rate of compensation to reflect changes in the average weekly wage paid employed workers. An upward adjustment in the maxi mum rate benefits only workers subsequently injured, except that a worker who is totally and permanently disabled is entitled to receive, from the Second Injury Fund, differential benefits reflecting post-injury adjustments.” (Emphasis added, footnote omitted.)

We therefore conclude that the WCAB erred and that the correct rate of benefits is $69 per week from October 20, 1970, to May 1, 1973, and $64 per week thereafter.

Reversed and remanded for entry of an order conforming to this opinion. No costs.

       These provisions were replaced by the worker’s disability act of 1969. Similar provisions are now found in MCL 418.351, 418.355; MSA 17.237(351), 17.237(355).
      Because of MCL 418.891(3); MSA 17.237(891)(3) our review is of the former act. Dalton v Candler-Rusche, Inc, 65 Mich App 282, 283, fn 1; 237 NW2d 290 (1975).

       Only two members of the WCAB signed the opinion in this case, while three others concurred in the result.


author: Per Curiam:.

text:
    NYQUIST v AETNA INSURANCE COMPANY
    Docket No. 77-2281.
    Submitted May 3, 1978, at Detroit.
    Decided July 6, 1978.
    Leave to appeal applied for.
    Judith Nyquist and eight other named plaintiffs, on behalf of themselves and all others similarly situated, brought an action in Wayne Circuit Court against Aetna and four other insurance companies to recover amounts which had been withheld by the companies because they were paid by Blue Cross-Blue Shield for required hospitalization resulting from automobile accidents. Plaintiffs contend that their Blue Cross-Blue Shield coverages were improperly coordinated with the personal injury benefits payable by their automobile insurance carriers. Defendants claim that plaintiffs are not entitled to double recovery of these benefits because they elected, at a reduced premium rate, to coordinate their automobile personal injury protection benefits with other health and accident coverages. Summary judgment for defendants. Plaintiffs appeal. Held:

    Blue Cross-Blue Shield benefits may be coordinated with personal injury benefits payable by automobile insurance carriers where such deductibles and exclusions are approved by the commissioner of insurance and where because of such deductibles and exclusions coverage is offered to policyholders at a reduced rate.
    Affirmed.
    1. Insurance — Blue Cross-Blue Shield — Automobile No-Fault— Coordinated Benefits — Statutes.
    Blue Cross-Blue Shield benefits may be coordinated with personal injury insurance benefits under Michigan’s no-fault act (MCLA 500.3101 et seq.; MSA 24.13101 et seq.).

    2. Insurance — Automobile No-Fault — Deductibles and Exclusions —Reduced Premiums — Eligibility for Benefits — Statutes.
    No-fault insurers are required to offer, at appropriately reduced premium rates, deductibles and exclusions reasonably related to other health and accident coverage; these deductibles and exclusions are subject to the prior approval of the Commissioner of Insurance and apply only to benefits payable to the named insured, his spouse, or relative of either domiciled in the same household (MCL 500.3109a; MSA 24.13109[1]).

      References for Points in Headnotes
    [1, 2] New Topic Service, No-Fault Insurance § 22.
    [3] 73 Am Jur 2d, Statutes § 46.

      3. Statutes — Construction—Appeal and Error.
    The Court of Appeals gives particular weight to the interpretations of those charged with the implementation and enforcement of a statute.

      Lopatin, Miller, Bindes, Freedman & Bluestone (by Michael Gagleard), for plaintiffs.

      Downs & Pirich, for defendant League General Insurance Company.

      Bodman, Longley, Bogle & Dahling (by James R. Buschmann), for defendant Allstate Insurance Company.

      Dykema, Gossett, Spencer, Goodnow & Trigg (by James D. Tracy and Michael J. McGuigan), for defendants Detroit Automobile Inter-Insurance Exchange and Michigan Mutual Insurance Company.
    Before: M. F. Cavanagh, P. J., and Bronson and D. F. Walsh, JJ.
   Per Curiam:.

The issue presented in this case is whether Blue Cross-Blue Shield benefits may be coordinated with personal injury insurance benefits under Michigan’s no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq. We hold that insurers must offer a coordination of these benefits.

MCL 500.3109a; MSA 24.13109(1) provides:

"An insurer providing personal protection insurance benefits shall offer, at appropriately reduced premium rates, deductibles and exclusions reasonably related to other health and accident coverage on the insured. The deductibles and exclusions required to be offered by this section shall be subject to prior approval by the commissioner and shall apply only to benefits payable to the person named in the policy, the spouse of the insured and any relative of either domiciled in the same household.” (Emphasis added.)

Plaintiffs’ position is premised on the fact that Blue Cross-Blue Shield is not "insurance”. See Michigan Hospital Service v Sharpe, 339 Mich 357; 63 NW2d 638 (1954). They contend that the Legislature used the term "health and accident coverage” in a technical sense, intending to require insurers to offer coordination of benefits only with disability insurance coverage. However, plaintiffs’ argument is untenable for three reasons.

First, the legislative history of this provision demonstrates that coordination of Blue Cross-Blue Shield benefits with personal injury insurance protection was a primary concern. A report on HR 5724 prepared by the Analysis Section of the House Insurance Committee states in part:

"The Apparent Problem to Which the Bill Addresses Itself:
"Since the advent of compulsory no-fault automobile insurance last October, auto insurance premiums have not been reduced as some persons had anticipated. Many believe the average driver is overbuying in regards to accident and medical insurance since no-fault coverage overlaps with portions of the medical coverage offered by the private accident and health insurers and the group plans of Blue Cross and Blue Shield. Some persons claim Michigan residents should not be required to pay for this duplicate coverage and that automobile insurers should offer deductions and exclusions at reduced premiums to those who pay for similar coverage under other health and accident plans. Further, many contend this elimination of duplicate coverage by the no-fault insurers would result in a substantial savings to Michigan drivers.”

Section 3109a met this problem by requiring insurers to offer benefit coordination at reduced premiums. Thus, this legislation was inextricably tied to coordination of insurance protection with Blue Cross-Blue Shield-type benefits. We also note that § 3109a uses the word "coverage” rather than "insurance”; the use of the broader term militates against plaintiffs’ restrictive reading of the section at issue.

Secondly, documents that were part of the record below show that the Commissioner and Deputy Commissioner of Insurance have taken the position that medical and hospitalization plans such as Blue Cross-Blue Shield fall within § 3109a. We give particular weight to the interpretations of those charged with the implementation and enforcement of a statute. See Boyer-Campbell Co v Fry, 271 Mich 282; 260 NW 165 (1935).

Finally, the plain purpose of § 3109a was to reduce premiums by eliminating duplicate coverage. It is undisputed that personal injury insurance benefits overlap with medical and hospitalization benefits. Thus, plaintiffs’ restrictive reading of § 3109a would subvert the clear purpose of the legislation.

Affirmed. No costs, a public question being involved.


text:
    BROADDUS v FERNDALE FASTENER DIVISION, RING SCREW WORKS
    Docket No. 77-2299.
    Submitted May 9, 1978, at Detroit.
    Decided July 6, 1978.
    Leave to appeal denied, 403 Mich —.
    Edward Broaddus was injured in the course of his employment with Ferndale Fastener Division, Ring Screw Works, and received workmen’s compensation benefits from Ferndale Fastener’s workmen’s compensation insurer, Fireman’s Fund Insurance Company. Eighteen months later Fireman’s Fund discontinued payment of benefits, and Broaddus filed a claim for restoration of benefits and also filed an insurance claim against Connecticut General Life Insurance Company, the insurer which covered Ferndale Fastener’s employees for non-work-related accidents and illness. A settlement was reached wherein Fireman’s Fund renewed payment of benefits. Broaddus, and his wife Alice Broaddus, then filed suit against Ferndale Fastener, Fireman’s Fund and Connecticut General, seeking damages and alleging that Ferndale Fastener and Fireman’s Fund intentionally and wrongfully acted in collusion to deprive Broaddus of benefits due him, and that Connecticut General wrongfully failed to provide benefits under its contract. The Oakland Circuit Court, Robert B. Webster, J., granted motions for summary judgment in favor of all three defendants. Plaintiffs appeal. Held:

    1. The summary judgment in favor of Connecticut General was proper. The plaintiffs’ complaint alleged that the injury occurred in the course of Mr. Broaddus’ employment, and the Connecticut General insurance contract specifically excluded work-related injuries. Therefore, there could be no breach of the contract.
    2. The summary judgments against Ferndale Fastener and Fireman’s Fund were improper. The exclusive remedy provision of the Worker’s Disability Compensation Act does not bar an action for the intentional tort of acting in collusion to deny benefits for a compensable injury where the damages alleged are not for the compensation benefits required to be paid but rather for emotional distress caused by the alleged intentional and wrongful denial of the compensation benefits.

      References for Points in Headnotes
    [1] 43 Am Jur 2d, Insurance § 1162.
    [2] 81 Am Jur 2d, Workmen’s Compensation § 76.

      Affirmed in part, reversed in part, and remanded.
    1. Insurance — Contracts—Breach op Insurance Contract — Judgment — Summary Judgment.
    A suit for intentional breach of an insurance contract requires that the contract in fact mandates that benefits be paid; summary judgment in favor of an insurer was therefore proper where a plaintiff’s complaint alleged that his injury occurred in the course of his employment and the insurance contract specifically excluded work-related injuries.
    2. Workmen’s Compensation — Exclusive Remedy — Bar to Suit— Emotional Distress — Statutes.
    The exclusive remedy provision of the Worker’s Disability Compensation Act does not bar a suit by an injured employee against his employer and the employer’s insurer for wrongfully acting in collusion to deprive the plaintiff of workmen’s compensation benefits where the suit is instituted after the insurer discontinued paying workmen’s compensation benefits to the employee and where the damages alleged are not for the compensation benefits required to be paid but rather for emotional distress caused by the alleged intentional and wrongful denial of the compensation benefits (MCL 418.131; MSA 17.237[131]).

      Hazen, Clark & Knight, P. G, for plaintiffs.

      Hyman, Gurwin, Nachman, Friedman & Winkelman (by Royce Baum, Jr.), and Joselyn, Rowe, Jamieson & Grinnan, P. C., for Ferndale Fastener Division, Ring Screw Works.

      Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark (by William P. Hampton), for Fireman’s Fund Insurance Company.

      Miller, Canñeld, Paddock & Stone (by Wolfgang Hoppe and Jerome R. Watson), for Connecticut General Life Insurance Company.

      Before: Cynar, P. J., and T. M. Burns and D. C. Riley, JJ.
   Per Curiam.

The present matter concerns a question that has not as yet been answered under the laws of this state; i.e., is a suit by an employee against his employer and the employer’s workmen’s compensation carrier alleging that compensation benefits were intentionally and wrongfully terminated barred by the exclusive remedy provision of Michigan’s Worker’s Disability Compensation Act. MCL 418.131; MSA 17.237(131).

Plaintiff Edward Broaddus was employed by Ferndale Fastener on January 5, 1972, when he suffered a work-related injury to his back. At this time Ferndale Fastener carried workmen’s compensation insurance with defendant Fireman’s Fund and insurance from defendant Connecticut General covering its employees for non-work-related accidents and illness.

Plaintiff was paid workmen’s compensation benefits from Fireman’s Fund until July 2, 1973. Benefits were discontinued on that date on the basis of a medical report received by Fireman’s Fund to the effect that plaintiff was able to resume light work. Plaintiff did not in fact return to work.

Plaintiff thereupon filed a workmen’s compensation claim with Fireman’s Fund to restore his benefits and also attempted to submit a claim against Connecticut General under the general accident and illness policy provisions.

Fireman’s Fund answered the workmen’s compensation claim by denying that plaintiff had suffered a work-related, compensable injury. The claim against Connecticut General was rejected, plaintiff alleges, because Ferndale Fastener informed Connecticut General that the injury was work-related and therefore outside the provisions of their policy.

On December 17, 1973, Fireman’s Fund renewed payment of compensation benefits, and paid benefits retroactively to July 2, 1973, in accordance with an out-of-court settlement of plaintiffs claim for workmen’s compensation.

The present lawsuit was initiated on August 6, 1976. The complaint alleged that Ferndale Fastener and Fireman’s Fund intentionally and wrongfully acted in collusion to deprive plaintiff of workmen’s compensation benefits. It also alleged that Connecticut General intentionally and wrongfully failed to provide benefits as mandated by its contract. Plaintiff sought damages from all three defendants for pain and suffering due to lack of proper medical care, mental anguish, emotional hardship on his familial relationship, and permanent and total disability and loss of wages. Plaintiffs wife also asserted a claim for loss of consortium.

All three defendants filed motions for summary judgment. GCR 1963, 117. Ferndale Fastener and Fireman’s Fund asserted that plaintiffs’ claims were precluded under the exclusive remedy provision of the compensation law. Connecticut General asserted that it was under no contractual liability to pay benefits for plaintiffs’ injuries. After a hearing on May 24, 1977, the trial court granted summary judgment for all defendants.

We can dispose of the summary judgment in favor of Connecticut General in quick order. A suit for intentional breach of an insurance contract requires, as should be obvious, that the contract in fact mandated benefits to be paid. Kewin v Massachusetts Mutual Life Ins Co, 79 Mich App 639; 263 NW2d 258 (1977). Plaintiffs’ complaint alleged that Mr. Broaddus’ injury occurred in the course of his employment. The insurance contract of Connecticut General specifically excluded work-related injuries. Since there thus could be no breach of the contract, the summary judgment in favor of Connecticut General was proper.

The summary judgments granted in favor of Ferndale Fastener and Fireman’s Fund present a significantly more complex issue. We must decide whether the exclusive remedy provision of MCL 418.131; MSA 17.237(131) bars not only a personal injury suit against an employer but also an action for the intentional tort of acting in collusion to deny benefits for a compensable injury.

While we have found no Michigan case directly on point, we have found cases construing the effect of the exclusive remedy provision on causes of action that, as in the case at bar, seek damages for allegedly intentional acts which result in mental rather than physical suffering.

In Moore v Federal Department Stores Inc, 33 Mich App 556; 190 NW2d 262 (1971), plaintiff, a sales clerk at one of defendant’s stores, alleged that she was falsely accused and imprisoned by her employer for failing to ring up sales. She brought an action for false imprisonment, seeking damages for humiliation, embarrassment, and nervous stress. The trial court granted summary judgment for defendant on the grounds that plaintiff’s sole remedy for the acts of her employer was the workmen’s compensation act.

This Court reversed, holding that an action for false imprisonment does not seek recovery for an injury that is compensable under the act:

"The Act has been interpreted to encompass physical and mental injuries which arise out of and in the course of one’s employment. However, the gist of an action for false imprisonment is unlawful detention irrespective of any physical or mental harm. * * * We do not feel, therefore, that the plaintiff has suffered the type of personal injury covered under the Act.” (Footnotes and citations omitted.) 33 Mich App at 559.

The Moore Court went on to hold that where the act does not provides a remedy for a particular injury there is no bar on bringing a common-law action seeking recovery outside of the act.

In Milton v Oakland County, 50 Mich App 279; 213 NW2d 250 (1973), the Court held that the exclusive remedy provision does not bar a suit brought by an employee against his employer for the employer’s alleged wrongful discharge of the employee and failure to comply with a merit system under the employment contract. The Milton Court held, as did the Court in Moore, supra, that a common-law tort action may be maintained where the injury, here wrongful discharge, is not compensable under the act.

Recently this Court held that the exclusive remedy provision does not bar an employee’s action for sexual discrimination. Stimson v Michigan Bell Telephone Co, 77 Mich App 361; 258 NW2d 227 (1977). Although the Stimson Court held that particular damages sought in the action would be barred since the employee could get compensation benefits for those damages, the suit itself was allowed to continue on the allegations of wrongful denial of promotions and wrongful discharge.

The basic claim raised by plaintiffs in the present action is, as was argued at the trial court hearing, that defendants intentionally caused plaintiffs’ emotional distress by wrongfully denying benefits mandated by the workmen’s compensation act. Defendants assert that plaintiffs were merely seeking to litigate the compensability of Mr. Broaddus’ back injuries. While it is true that plaintiffs must prevail on a showing that the physical injuries were compensable prior to showing that defendants acted in collusion to deny those benefits, a subtle yet crucial distinction must be made clear. Plaintiffs are not seeking as damages in this lawsuit the compensation benefits they alleged were required to be paid from July 2, 1973, to December 17, 1973. They are seeking, in part, separate damages for emotional distress caused by the alleged intentional and wrongful denial of these compensation benefits. It is the emotional and mental injuries which are the subject of the lawsuit, and which are claimed by plaintiffs to be not compensable under the act and thus actionable in a common-law tort suit.

In his treatise on workmen’s compensation law, Professor Larson discusses the issue of whether an exclusive remedy provision bars a suit for intentional infliction of emotional distress. He states:

"If the essence of the tort, in law, is non-physical, and if the injuries are of the usual non-physical sort, with physical injury being at most added to the list of injuries as a makeweight, the suit should not be barred. But if the essence of the .action is recovery for physical injury or death, the action should be barred even if it can be cast in the form of a normally non-physical tort.” 2A Larson, Workmen’s Compensation Law, § 68.34, pp 13.31-13.32.

Applying Larson’s test to the present case, we conclude that the summary judgments granted to Ferndale Fastener and Fireman’s Fund were improper. The essence of the tort alleged, and the damage alleged, is nonphysical. This is not an action for mental damages. incidentally resulting from an industrial injury. Were we to hold otherwise, employers and insurance companies could, with impunity, withhold benefits for undeniably compensable injuries until ordered to pay benefits by the workmen’s compensation referee or appeal board. See Martin v Travelers Ins Co, 497 F2d 329 (CA 1, 1974). We do not find such a result to comport either with the intent of the act or with the public interest.

Accordingly, the summary judgments in favor of Ferndale Fastener and Fireman’s Fund are reversed and the matter remanded to the trial court. The summary judgment in favor of Connecticut General is affirmed. Costs to plaintiffs against Ferndale Fastener and Fireman’s Fund and to Connecticut General.

       The provision reads:
      "The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer. As used in this section and section 827 'employee’ includes the person injured, his personal representatives and any other person to whom a claim accrues by reason of the injury to or death of the employee, and 'employer’ includes his insurer, a service agent to a self-insured employer, and the accident fund insofar as they furnish, or fail to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance or incident to a self-insured employer’s liability servicing contract.” MCL 418.131; MSA 17.237(131).

       These payments are already being paid as a result of the settlement of the workmen’s compensation claim.

       In reaching this conclusion we are not unaware that in at least one other jurisdiction, as cited by defendants, suits similar to the action below were found to be barred by an exclusive remedy provision. See Escobedo v American Employees Ins Co, 547 F2d 544 (CA 10, 1977), and Chavez v Kennecott Copper Corp, 547 F2d 541 (CA 10, 1977). We reject the invitation to follow these cases for two reasons: (1) New Mexico’s workmen’s compensation law differs substantially from Michigan’s, and (2) in each case the out-of-court settlement on the compensation claim included a provision waiving all additional claims against the employer.

       On remand defendants are still free to challenge particular allegations of damages and requests for recovery raised by plaintiffs on the grounds that they are compensable under the act and thus barred by the exclusive remedy provision. See Stimson v Michigan Bell Telephone Co, 77 Mich App 361, 367-369; 258 NW2d 227 (1977).


text:
    PEOPLE v HAMILTON
    Docket No. 77-2989.
    Submitted March 15, 1978, at Detroit.
    Decided July 6, 1978.
    Henry Hamilton was convicted of obtaining money under false pretenses in Recorder’s Court of Detroit. He was sentenced to three years probation and ordered to pay restitution. He violated his probation and was sentenced by Joseph A. Gillis, J., to a term of five to ten years in prison or payment of a $7,500 fine. Defendant appeals contending that his probation should not have been revoked for failure to pay restitution and that, under the statute, a sentence of both fine and imprisonment is discriminatory and unconstitutional. Held:

    1. Appeal is not preserved where a defendant fails to timely make his argument that revocation of his probation for failure to pay restitution because of indigency is discriminatory and unconstitutional.
    2. A fine and imprisonment cannot be conjoined in one sentence where the court is limited by statute to either a sentence of ten years in prison or a fine of not more than $5,000.
    Remanded for resentencing.
    1. Criminal Law — Probation—Revocation of Probation — Restitution — Nonpayment—Ability to Pay — Violation of Other Conditions — Constitutional Law — Equal Protection — Appeal and Error.
    Appeal is not preserved where a defendant failed to timely make his argument that revocation of his probation for failure to pay restitution was based on his indigency and was therefore unconstitutionally discriminatory under the Fourteenth Amendment, and where an examination of the record shows that defendant admitted having violated other conditions of probation in addition to nonpayment of restitution (US Const, Am XIV).

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error §§ 545 et seq., 574.
    21 Am Jur 2d, Criminal Law §§ 565-567.
    Ability to pay as necessary consideration in conditioning probation or suspended sentence upon reparation or restitution, 73 ALR3d 1240.
    [2] 21 Am Jur 2d, Criminal Law §§ 535, 537.

      2. Criminal Law — Sentence—Ability to Pay — Fine or Imprisonment — Sentence Limitations.
    A fine and imprisonment cannot be conjoined in one sentence where the court is limited by statute to either a sentence of ten years in prison or a fine of not more than $5,000.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Robert T. Monk, Assistant Prosecuting Attorney, for the people.

      Donald R. Gold, for defendant.
    Before: R. M. Maher, P. J., and V. J. Brennan and N. J. Kaufman, JJ.
   Per Curiam.

Defendant Henry Hamilton failed to preserve for appeal his argument that revocation of his probation for failure to pay restitution was based on his indigency, and was therefore unconstitutionally discriminatory under the Fourteenth Amendment. US Const, Am XIV. Appeal is therefore precluded. People v Billy Williams, 66 Mich App 67, 72; 238 NW2d 407 (1975).

Furthermore, examination of the record shows that defendant admitted having violated other conditions of probation in addition to nonpayment of restitution.

The trial judge did not err in revoking defendant’s probation, but he did err by sentencing defendant to five to ten years or payment of $7,500. Under the statute as worded, the court was limited to either a sentence of 10 years in prison or a fine of not more than $5,000, not both. Both imprisonment and a fine may not be conjoined in the one sentence so as to make defendant’s ability to pay the determinant of imprisonment were he not able to pay. He may be sentenced to prison or fine, one only.

Remanded to another judge for resentencing.


text:
    PEOPLE v BERRY
    Docket No. 77-3638.
    Submitted June 5, 1978, at Lansing.
    Decided July 6, 1978.
    Lee H. Berry was convicted in Midland Circuit Court of conspiring to utter and publish a forged instrument, Tyrone Gillespie, J. On appeal, defendant contends that he cannot be convicted of a conspiracy where his sole alleged coconspirator received immunity from prosecution, that admission of the alleged coconspirator’s testimony was improper, that the court erred in failing to give a cautionary instruction concerning the testimony of the accomplice, that there was insufficient proof of whether the accomplice had the necessary intent to be a coconspirator and that a typewriter admitted into evidence was obtained by an unconstitutional search and seizure. Held:

    1. A defendant cannot be convicted of conspiracy where all other alleged conspirators have been previously acquitted, but he may be convicted of conspiracy where his sole coconspirator has been granted immunity or is otherwise unavailable because the coconspirator has not been acquitted and no determination of his guilt has been made.
    2. Testimony of an accomplice-conspirator concerning previous criminal conduct with the defendant is admissible to show a similar method of operation over a period of time where it is relevant to the charge.

      References for Points in Headnotes
    [1-5] 16 Am Jur 2d, Conspiracy §§ 19, 33.
    Prosecution or conviction as affected by disposition of case against other parties. 91 ALR2d 700.
    [3] 16 Am Jur 2d, Conspiracy § 35.
    29 Am Jur 2d, Evidence §§ 321, 322, 326.
    Admissibility at trial of criminal case, of evidence of defendant’s criminal acts other than those charged. 93 L Ed 185.
    [4] 75 Am Jur 2d, Trial §§ 687, 690.
    [6, 7] 68 Am Jur 2d, Searches and Seizures §§ 67-70.
    [7] 68 Am Jur 2d, Searches and Seizures § 65.
    Search warrants: disputing matters stated in supporting affidavit. 5 ALR2d 394.
    Propriety of considering hearsay or other incompetent evidence in establishing probable cause for issuance of search warrant. 10 ALR3d 359.

      3. The intent to be a coconspirator to uttering and publishing a forged instrument may be inferred where the record reveals that the alleged coconspirator forged an endorsement on a check before cashing it.
    4. A search warrant based on information from an informant which indicates a continuing criminal enterprise which would give probable cause to believe that the object of the search was used in the commission of a crime and was still in defendant’s apartment is proper.
    Affirmed.
    1. Conspiracy — Criminal Law — Definition—One-Man Conspiracy.
    There is no such thing as a one-man conspiracy; once all alleged coconspirators are acquitted a defendant may not be convicted of conspiracy.
    2. Conspiracy — Criminal Law — Coconspirators—Grant of Immunity.
    A defendant may be convicted of conspiracy despite the fact that his sole coconspirator has been granted immunity from prosecution.
    3. Conspiracy — Criminal Law — Testimony of Coconspirator — Admissibility — Similar Acts — Statutes.
    The testimony of an accomplice-conspirator who has been granted immunity from prosecution concerning prior criminal conduct with the defendant is admissible under the similar acts statute where such testimony shows a similar method of operation over a period of time and strongly supports the charge (MCL 768.27; MSA 28.1050).
    4. Conspiracy — Testimony of Coconspirator — Instructions to Jury — Criminal Jury Instructions.
    The testimony of an accomplice-conspirator who has been granted immunity from prosecution is suspect and should be safeguarded by a cautionary instruction to the jury; there are no grounds for error where the court gives such an instruction (CJI 5:2:03).
    5. Conspiracy — Testimony of Coconspirator — Forgery—Intent to Defraud.
    It can be inferred that a defendant’s immunity-clad accomplice had the intent necessary to be a coconspirator to uttering and publishing a forged instrument, known to be false and with intent to defraud, where the record reveals that the accomplice-witness forged an endorsement on a check before cashing it.
    6. Searches and Seizures — Search Warrants — Reliable Information — Constitutional Law — Probable Cause — Statutes.
    A search warrant based upon information indicating a continuing criminal enterprise which gives probable cause to believe that the object of the search was used in the commission of a crime and was still in defendant’s possession meets constitutional requirements (MCL 780.651; MSA 28.1259[1]).
    7. Searches and Seizures — Search Warrants — Informants—Credibility — Reliable Information.
    The fact that a search warrant is partially supported by hearsay information from a person whose credibility may not have been established becomes irrelevant where the search warrant is otherwise properly supported.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Doyle A. Rowland, Prosecuting Attorney, and Richard L. Lee, Jr., and Thomas C. Panian, Assistant Prosecuting Attorneys, for the people.

      Durance & Rhead, for defendant on appeal.
    Before: Allen, P. J., and Cynar and D. R. Freeman, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

Defendant was convicted by a jury of conspiring to utter and publish a forged instrument, MCL 750.157a; MSA 28.354(1), MCL 750.249; MSA 28.446, on February 24, 1977. He was sentenced to 3 to 14 years in prison and now appeals of right.

At trial it was first shown that on March 11, 1976, someone passed a forged check. The key prosecution witness, Nadine Walmsley, was then called. She was allegedly defendant’s accomplice and coconspirator in the charged offense, but had been granted immunity from prosecution in exchange for her testimony. Walmsley testified as to how she assisted defendant in passing a forged check on March 11, 1976, as well as on other dates during the preceding three months.

On appeal, defendant contends that he cannot be convicted of a conspiracy charge where his sole alleged coconspirator received immunity from prosecution. Defendant reaches this conclusion by analogy from cases which have held that where all but one coconspirator is acquitted, the remaining coconspirator cannot be convicted on a conspiracy charge. People v Alexander, 35 Mich App 281; 192 NW2d 371 (1971). See generally, Anno: Prosecution or Conviction of One Party to Alleged Conspiracy as Affected by Disposition of Case Against Other Parties, 91 ALR2d 700. This result is based on the fact that a conspiracy is a partnership in criminal purposes that requires more than one conspirator. There is no such thing as a one-man conspiracy, and once all alleged coconspirators are acquitted, what would remain would be a one-man conspiracy. People v Alexander, supra, at 282; People v Atley, 392 Mich 298, 310; 220 NW2d 465 (1974).

Defendant’s analogy is not valid, however. When alleged coconspirators are acquitted, a finding of not guilty of the charged conspiracy has been made. When alleged coconspirators are granted immunity (or when they are unavailable for prosecution for some reason), no determination as to their guilt has been made. A grant of immunity is not inconsistent with guilt. The instant defendant may still be convicted despite his sole codefendant’s immunity from conviction. This holding is in accord with the decision of other jurisdictions which have passed on similar situations. See Anno: Prosecution or Conviction of One Party to Alleged Conspiracy as Affected by Disposition of Case Against Other Parties, 91 ALR2d 700, 722.

Defendant also attacks the actual testimony of Walmsley, the coconspirator. Walmsley testified to other instances when she and defendant passed bad checks. Defendant claims such testimony was improper, but we find that it fell squarely within the similar acts statute, MCL 768.27; . MSA 28.1050. The testimony showed a similar method of operation over a period of time and strongly supported the conspiracy charge. The evidence was quickly presented and not belabored by the prosecution. Defendant also contends that the immune testimony of an accomplice-conspirator is suspect and should be safeguarded by a cautionary instruction. The short answer to this contention is that the court did give such an instruction when it gave CJI 5:2:03 almost verbatim.

The final issue concerning defendant’s immunity-clad accomplice was whether she had the intent necessary for her to be a coconspirator to uttering and publishing a forged instrument. The record reveals that Walmsley herself forged the endorsement on the check before cashing it. From this, it can be inferred that she was involved in uttering and publishing a check she knew to be false and that she did so with the intent to defraud.

In another issue on appeal, defendant claims that a typewriter which was introduced into evidence was seized pursuant to a search warrant unconstitutionally based on stale and unreliable information. The typewriter was seized from defendant’s residence, and expert testimony indicated that it could have been the typewriter used to type the forged check. The search warrant (issued on April 1, 1976) was based on information from Walmsley that she had seen defendant use a typewriter in his apartment to prepare forged checks in January, 1976, and that she had been involved in a series of other forged check-passings through March, 1976. This information indicates a continuing criminal enterprise which would give probable cause to believe that the typewriter was still in defendant’s apartment, and a warrant could properly issue under MCL 780.651; MSA 28.1259(1). The fact that the warrant was further supported by hearsay information from another person whose credibility may not have been established becomes irrelevant in light of the adequate support for the warrant given by Walmsley.

Affirmed.


author: Per Curiam. M. F. Cavanagh, J.

text:
    PEOPLE v GUY
    Docket No. 77-1301.
    Submitted November 2, 1977, at Grand Rapids.
    Decided July 13, 1978.
    Larry G. Guy was charged with possession of a gas ejecting device, weapon, cartridge, container or contrivance designed or equipped for or capable of ejecting any gas which will either temporarily or permanently disable, incapacitate, injure or harm any person with whom it comes in contact. The Calhoun County Court, Stanley Everett, J., dismissed the case on the basis that the statute was overbroad. The people appeal. Held:

    The statute is unconstitutionally vague and no judicial paring of language can save it.
    Affirmed.
    M. F. Cavanagh, J., dissented. He would hold that while the statute is unconstitutional, it would not be unconstitutionally vague if it only proscribed gas ejecting weapons and that the unconstitutional parts should be severed and the case remanded for further proceedings.
    Opinion of the Court
    1. Criminal Law — Constitutional Law — Statutes—Vagueness— Gas Ejecting Devices.
    The portion of a statute making it unlawful to possess any gas ejecting device, weapon, cartridge, container or contrivance designed or equipped for or capable of ejecting any gas which will either temporarily or permanently disable, incapacitate, injure or harm any person with whom it comes in contact is unconstitutionally vague, and, while an act should be construed to avoid unconstitutionality and unenforceable provisions severed from the remainder when possible, no severing of portions of this provision can save it (MCL 750.224; MSA 28.421).
    References for Points in Headnotes
    [1] 16 Am Jur 2d, Constitutional Law §§ 181, 552.
    [2 — 4] 73 Am Jur 2d, Statutes § 346.
    [3, 4] 16 Am Jur 2d, Constitutional Law § 552.

      Dissent by M. F. Cavanagh, J.
    2. Constitutional Law — Statutes—Overbreadth.

      A clear and precise enactment may nevertheless be overbroad if in its reach it prohibits constitutionally protected conduct.

    3. Constitutional Law — Statutes—Vagueness.

      A statute may be challenged for vagueness on three grounds: (1) it does not provide fair notice of the conduct proscribed; (2) it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed; and (3) its coverage is overbroad and impinges on First Amendment freedoms.

    4. Criminal Law — Statutes—Vagueness.

      The portion of a statute making it unlawful to possess any gas ejecting device, weapon, cartridge, container or contrivance designed or equipped for or capable of ejecting any gas which will either temporarily or permanently disable, incapacitate, injure or harm any person with whom it comes in contact is unconstitutionally vague in two respects: (a) by leaving it to the police, the prosecution and, ultimately, the trier of fact to determine the difference between legal and illegal devices for ejecting harmful gases, the statute confers an impermissible discretion to determine whether an offense has been committed; and (b) the statute does not provide fair notice of the conduct proscribed; however, if that portion of the statute is pared down to prohibit only possession of gas ejecting weapons, the uncertainty ceases since a weapon is generally understood to be anything used or designed to be used to injure another.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James Norlander, Prosecuting Attorney, and Theodore P. Hentchel, Assistant Prosecuting Attorney, for the people.

      Dobbins & Schaeffer, for defendant.
    Before: R. M. Maher, P. J., and M. F. Cavanagh and N. J. Kaufman, JJ.
   Per Curiam.

We agree wholeheartedly with the conclusion reached in Judge Cavanagh’s dissenting opinion that MCL 750.224; MSA 28.421 is unconstitutionally vague. We also agree that wherever possible an act should be construed to avoid unconstitutionality, if necessary severing unenforceable provisions.

After much deliberation, however, we cannot see how the statutory provision in question can be saved in this case. For example, if a person buys a can of hairspray or deodorant, we do not believe that the question of whether or not that person is violating the statute should be left to the whim or caprice of law enforcement officials. Rather than have each prosecution effect a common-law construction of the provision, the Legislature, if it so desires, should enact a new law which would include a clearly defined "intent” element.

The trial court’s order to dismiss is affirmed.

Affirmed.

M. F. Cavanagh, J.

(dissenting). Defendant was charged with having violated that part of MCL 750.224; MSA 28.421 which prohibits possession of a gas-ejecting device. The trial court found this part of the statute unconstitutional, and granted defendant’s motion to dismiss. The prosecution appeals.

The relevant part of the statute provides as follows:

"Any person who shall * * * possess * * * any gas ejecting device, weapon, cartridge, container or contrivance designed or eqüipped for or capable of ejecting any gas which will either temporarily or permanently disable, incapacitate, injure or harm any person with whom it comes in contact, shall be guilty of a felony * * * .” MCL 750.224; MSA 28.421.

The Supreme Court construed this statute’s nearly identical predecessor in People v Brown, 253 Mich 537, 539; 235 NW 245, 246 (1931):

"The statute applies to all persons except peace officers, certain manufacturers, military, and licensed persons, and contains no limitations of place, time, purpose, or use. It prohibits the possession of the enumerated weapons by anyone, other than an excepted person, in private as well as in public, in the home or elsewhere, and whatever the purpose and contemplated use.”

Defendant contended before the lower court that the statute was unconstitutionally vague. In support of this contention defendant cited the preliminary examination testimony of a state police firearms and explosives identification expert, who testified that possession of an ordinary can of freon gas-powered hairspray would be within the statutory proscription. Based on this testimony, and relying on cases which indicate that the Legislature may not prohibit conduct which is entirely innocent in character, the court sustained defendant’s constitutional challenge, but did so on the ground of overbreadth:

"[T]he portion of the statute under consideration here is unconstitutional for the reason that its language is so broad that it does cover acts which are clearly innocent as well as those which are criminal in nature.”

In Grayned v City of Rockford, 408 US 104, 114-115; 92 S Ct 2294, 2302; 33 L Ed 2d 222, 231 (1972), the United States Supreme Court suggested the following test for overbreadth challenges:

"A clear and precise enactment may nevertheless be 'overbroad’ if in its reach it prohibits constitutionally protected conduct.
''The crucial question, then, is whether the ordinance sweeps within its prohibitions what may not be punished”. (Footnotes omitted.)

The current pressure for legislation to prohibit use of freon-powered aerosols gives reason for serious doubt that they or similar products are so innocuous as to be beyond the state’s police power. If possession of such products is not a constitutionally protected freedom, then the statute would not be unconstitutionally overbroad in the sense in which that term was used in Grayned.

However, the real thrust of defendant’s argument, and the lower court’s finding, is not that the statute covered conduct which couldn’t be regulated. Rather, it was argued, and found, that the statute’s language is broad enough to cover conduct, such as possessing cans of hairspray, which the Legislature surely didn’t intend to prohibit.

I agree that the statute’s sweeping language opens it to constitutional attack. However, I also believe that the statute’s defect is, as defendant argued below, its vagueness. This doctrine was summarized by the Michigan Supreme Court in People v Howell, 396 Mich 16, 20; 238 NW2d 148, 149-150 (1976):

"A statute may be challenged for vagueness on three grounds:
"1. It does not provide fair notice of the conduct proscribed.
"2. It confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed.
"3. Its coverage is overbroad and impinges on First Amendment freedoms.” (Footnote omitted.)

Measured by these tests, the statute before us is deficient in two respects. By leaving it to the police, the prosecution and, ultimately, the trier of fact to define the difference between legal and illegal devices for ejecting harmful gases, the statute confers an impermissible "discretion to determine whether an offense has been committed”. By abdicating its duty to define the offense, the Legislature has left the actor without "fair notice of the conduct proscribed”. I conclude that the statute is unconstitutionally vague.

The prosecution concedes that the statute as written is unconstitutionál, but contends that, by severing certain offending language, the remainder’s constitutionality can be saved. See MCL 8.5; MSA 2.216. Although I do not find the construetion offered by the prosecution satisfactory, I do find it unnecessary to declare unconstitutional the Whole of the provision under consideration here.

As previously explained, the statute’s vice is the uncertainty as to which gas ejecting devices, etc., it outlaws. If the list of "device[s], weapon[s], cartridge^], * * * [and] container^]” is pared down to just "weaponfs]”, the uncertainty evaporates. A weapon is generally understood as anything used or designed to be used to injure another. Thus construed, the statute proscribes possession of only two kinds of objects: (1) those actually used to eject a gas for the purpose of injuring another; and (2) those specifically designed for this purpose. In neither case need people of common understanding guess at whether such conduct falls within a statutory proscription on possession of gas-ejecting Weapons. This construction also eliminates the factfinder’s discretion to expand the statute’s reach.

Moreover, limiting the statutory proscription to possession of gas-ejecting weapons is consistent with the statute’s scope as described in Brown, supra:

"The list of weapons in section 16751, supra, is significant and demonstrates a definite intention of the legislature to protect society from a recognized menace. It does not include ordinary guns, swords, revolvers, or other weapons usually relied upon by good citizens for defense or pleasure. It is a partial inventory of the arsenal of the 'public enemy,’ the 'gangster.’ It describes some of the particular weapons with which he wars on the State and reddens his murderous trail.” 253 Mich at 542, 235 NW at 247.

Accordingly, I would hold that the statute, so construed, is constitutional and consistent with the legislative purpose. I would reverse the lower court and remand the case for proceedings consistent with this opinion.

       "Q. Okay. Would a can of ladie’s [sic] hair spray fall under that?
      "A. I would — if it contained just hair spray?
      "Q. No. If it contained — I mean, the assumption that it contains freon gas with the hair spray.
      "A. Did you read the entire Statute as to — does it say anything about the gas?
      "Q. No. Let me read it to you, again. Pertinent language is: Any gas ejection device, weapon, cartridge, container or contrivance designed or equipped for or capable of ejecting any gas which may either temporarily or permanently disable, incapacitate, injure or harm any person.
      "A. You didn’t read it entirely the first time.
      "Q. No, I read it in entirety this time. I don’t think the Judge did either.
      "A. Okay. Now, if you were to take a chemical that is designed with [sic] specifically stated in there, that will cause those injuries, according to the way that is written and my understanding of it, that would come under a gas ejecting device.” Preliminary Examination Transcript, pp 32-33.

        Detroit v Bowden, 6 Mich App 514, 520; 149 NW2d 771 (1967), lv den, 379 Mich 772 (1967), Detroit v Sanchez, 18 Mich App 399, 403; 171 NW2d 452, 454 (1969).

       The prosecution argues that the statute would be constitutional if we severed the language lined out in the following quote:
      "Any person who shall * * * possess * * * any gas ejecting device, weapon, cartridge, container or contrivance designed or equipped- for or capable of- ejecting any gas which will either temporarily or permanently disable, incapacitate, injure or harm any person with whom it comes in contact, shall be guilty of a felony.”
      Certainly this would narrow the statute’s scope. However, as was noted above, the statute punishes possession without regard to purpose or contemplated use. Thus, even so construed the statute would outlaw possession of devices designed to eject injurious gases for innocuous purposes, e.g., a can of hairspray. I therefore conclude that the prosecution’s suggested construction fails to cure the constitutional defect.

       "[A] weapon is broadly defined as anything used or designed to be used in destroying, defeating, or injuring an enemy — an instrument of offensive or defensive combat * * * .” 79 Am Jur 2d, Weapons and Firearms, § 1, pp 3-4.
      "A weapon is an instrument of offensive or defensive combat, or anything used, or designed to be used, in destroying, defeating, or injuring an enemy.” (Footnotes omitted.) (4 CJS, Weapons, § 1, p 469.

       Although the quoted language in fact refers to 3 Comp Laws 1929, § 16751, a comparison of that statute’s language with that of the statute before us reveals no basis for distinguishing Brown.