author:
Per Curiam.
      T. M. Burns, J.

text:
    STANEK v BERGEON
    Docket No. 77-3641.
    Submitted November 9, 1978, at Lansing.
    Decided February 22, 1979.
    William J. Stanek sustained a fracture of his arm and wfas treated by Milton C. Bergeon, M.D., at Mason General Hospital. Stanek allegedly has lost the use of the arm, and he broughtj an action against Dr. Bergeon for damages for medical malpractice, and against Mason General Hospital on a theory of agency. The Ingham Circuit Court, Jack W. Warren, J., entered a judgment on the jury verdict of no cause of action. Plaintiff appeals, alleging several errors. Held:

    1. The trial court’s refusal to read back to the jury the testimony of an X-ray technician was not a clear abuse of discretion, because the testimony was not admissible to establish the standard of care to which Dr. Bergeon was bound, and there was no expert medical testimony that failure to take immediate post-casting X-rays was not in accord with customary practice. Such expert testimony was a prerequisite to a recovery for malpractice.
    2. Medical textbooks are admissible in a malpractice case for impeachment purposes only.
    3. A medical doctor’s opinion as to the quality of care the plaintiff received was properly admitted.
    4. The trial court properly precluded the plaintiff from expanding his theory of malpractice beyond what he alleged in his complaint.
    Affirmed.
    T. M. Burns, J., dissented. He would hold that the trial court’s instruction to the jury, given in explanation of why the X-ray technician’s testimony would not be read back to them when they requested it, was such that it undoubtably caused confusion in the minds of the jurors because it would lead the jury to believe that testimony which had been offered as fact testimony was expert opinion testimony. He would reverse.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 700.

       29 Am Jur 2d, Evidence § 764.
    76 Am Jur 2d, Trial § 1041. Right to Have reporter’s notes read to jury. 50 ALR2d 176.

       61 Am Jur 2d, Physicians and Surgeons § 202.

       29 Am Jur 2d, Evidence §§ 834, 890.

       61 Am Jur 2d, Pleading § 75.

       75 Am Jur 2d, Trial § 668.
    76 Am Jur 2d, Trial § 1041.

      Opinion of the Court
    1. Appeal and Error — Pleading — Failure to Cite Authority.
    Failure of an appellant to cite authority for his position on an issue is sufficient to preclude appellate review of that issue.
    2. Trial — Evidence — Rereading Testimony — Discretion.
    A trial court’s refusal to reread certain testimony of an X-ray technician in a medical malpractice action was not a clear abuse of discretion where the testimony, regarding the technician’s routine work, was not admissible to establish the standard of care of the defendant doctor.
    3. Negligence — Malpractice — Medical Malpractice — Evidence — Expert Testimony.
    Expert medical testimony regarding the customary practice of skilled doctors in the community practicing under similar conditions is an absolute prerequisite to a plaintiffs right to recover for alleged medical malpractice.
    4. Negligence — Malpractice — Medical Malpractice — Evidence — Medical Texts — Impeachment.
    Medicad textbooks are admissible in a medical malpractice case for impeachment purposes only (MRE 707).
    5. Pleading — Trial — Theory of Recovery — Court Rules.
    A plaintiff may not expand his theories of recovery beyond what is alleged in his complaint (GCR 1963, 111.1).
    Dissent by T. M. Burns, J.
    6. Evidence — Instructions to Jury — Fact Testimony — Opinion Testimony.

      A trial court’s instruction to a jury, in explanation of why it refused to read back the testimony of a witness, was erroneous in that it would unavoidably confuse the jury where the testimony of the witness had been offered as fact testimony while the court’s instruction essentially characterized the testimony as expert opinion testimony.

      Newman & Mackay, for plaintiff.

      Fraser, Trebilcock, Davis & Foster (by Eugene F. Townsend, Jr. and Michael H. Perry), for Milton C. Bergeon, M.D.

      Kitch & Suhrheinrich, P.C. (by Gregory Drutchas and Lawrence J. Acker), for Mason General Hospital.
    Before: D. F. Walsh, P.J., and T. M. Burns and D. E. Holbrook, Jr., JJ.
   Per Curiam.

Plaintiff, William Stanek, filed a complaint against defendant Milton Bergeon seeking damages for medical malpractice. Plaintiff also sought damages from defendant Mason General Hospital on an agency theory. Plaintiff appeals the jury verdict of no cause of action as to each defendant.

On appeal plaintiff raises several issues. In his discussion of five of the nine issues raised plaintiff cites no authority. Such a practice has been held sufficient to preclude appellate review. Kucken v Hygrade Food Products Corp, 51 Mich App 471; 215 NW2d 772 (1974).

We find no clear abuse of discretion in the trial court’s refusal to reread certain testimony of X-ray technician John Twichell. Klein v Wagenheim, 379 Mich 558; 153 NW2d 663 (1967). Although Mr. Twichell’s testimony as to what he himself routinely did was perhaps admissible because it was based on his own personal knowledge and observations, it was not admissible to establish the standard of care to which Dr. Bergeon was bound. Plaintiff presented no expert medical testimony that the failure to take immediate post-casting X-rays was not in accord with customary practice of skilled doctors in the community practicing under similar conditions. Such expert medical testimony was an absolute prerequisite to plaintiff’s right to recover for alleged malpractice. Lince v Monson, 363 Mich 135; 108 NW2d 845 (1961), Siirila v Barrios, 398 Mich 576; 248 NW2d 171 (1976) (Coleman, J., concurring, 398 Mich 602; Williams, J., concurring, 398 Mich 611-612), Bivens v Detroit Osteopathic Hospital, 77 Mich App 478, 488; 258 NW2d 527 (1977). None of the recognized exceptions to this rule is applicable to the instant facts. Lince v Monson, supra, at 141-142, Haase v De-Pree, 3 Mich App 337, 346; 142 NW2d 486 (1966).

Nor do we find error in the trial court’s refusal to admit as substantive evidence a medical textbook offered by plaintiff. Such texts are admissible for impeachment purposes only. MRE 707; Bivens v Detroit Osteopathic Hospital, supra.

The trial court properly permitted Dr. Kent Wu to give his opinion as to the quality of care received by plaintiff. Groth v DeGrandchamp, 71 Mich App 439, 443; 248 NW2d 576 (1976), lv den 400 Mich 808 (1977). The burden of attacking the foundation for such opinions rested on plaintiff in cross-examination. Campbell v Charles J Rogers Construction Co, 58 Mich App 411, 416; 228 NW2d 398 (1975).

The court properly precluded plaintiff from expanding his theory of malpractice beyond what he had alleged in his complaint. Serafin v Peoples Community Hospital Authority, 67 Mich App 560, 565; 242 NW2d 438 (1976), lv den 397 Mich 880 (1976), Simonelli v Cassidy, 336 Mich 635, 644; 59 NW2d 28 (1953), GCR 1963, 111.1.

We have reviewed the remaining issues raised on appeal and find them to be without merit.

Affirmed. Costs to appellees.

T. M. Burns, J.

(dissenting). I cannot fully agree with the majority’s treatment of the issue regarding the jury’s request to have the testimony of X-ray technician Twichell repeated. The majority states:

"Although Mr. Twichell’s testimony as to what he himself routinely did was perhaps admissible because it was based on his own personal knowledge and observations, it was not admissible to establish the standard of care to which Dr. Bergeon was bound.”

As I view the problem, the majority has not dealt with the real question presented.

Twichell testified without objection:

"Q. Do you ever remember taking an X-ray of Mr. Stanek’s arm after the cast was applied and before February 12th, 1973?
"A. Yes, I did.
"Q. Do you know where that is?
"A. What?
"Q. Is that X-ray here?
"A. I don’t know. I — I don’t know. I saw one with a cast on the 12th.
"Q. No, I mean did you ever take an X-ray of Mr. Stanek’s arm after the cast was applied on 2-10-73?
"A. Oh, oh, okay.
"Q. And before February 12th, 1973?
"A. Oh. Routinely, but I really — routinely this is done, but I don’t remember on his case at all. Routinely this is done. I don’t remember there for sure.”

After the jury had begun its deliberation, it requested that certain testimony be reread, including what Twichell had said regarding the normal procedure of taking post-casting X-rays. Plaintiffs counsel opposed rereading any testimony. I would agree that had the trial court merely refused to have the testimony reread, there would have been no error; indeed, that was plaintiffs position. But, the court went further and instructed the jury:

"I instruct you that Mr. Twichell was not qualified as an expert to render an opinion as to what is normal procedure in relation to taking post-casting X-rays. And, so, I will not comply with your request because he is an X-ray technician, he is not one who a foundation was laid that would demonstrate that he has the qualifications of an expert to say what the, quote, 'normal procedure’, unquote is in relation to post-casting X-rays. We don’t know how many broken arm cases he took pictures of. We don’t know what his total experience is, you see. What may be a procedure in an area that he worked in in one hospital may or may not be a procedure in another, I don’t know. But, I tell you that the Court will not comply with your request because this witness was not qualified to render that opinion and you would have no right to rely upon his opinion as to what is, quote, 'normal procedure of taking post-casting X-rays’, unquote.”

This instruction was erroneous, not in what it said, but in the confusion it would unavoidably cause in the jurors’ minds.

Twichell was not an expert. But, the testimony he gave required no expertise. He was only relating what he routinely did. He was certainly competent to testify to these facts. He was never asked and he never indicated an opinion that failure to order post-casting X-rays violated the physician’s standard of care. The question to which this testimony was relevant was whether X-rays were taken, not whether the failure to take them was malpractice.

Somehow, what had been offered as fact testimony became opinion testimony in the minds of the defendants and the trial court. By striking the testimony, at the state of proceedings at which it did, the trial court undoubtedly caused some confusion among the jurors on specifically this point.

I would reverse and remand for a new trial.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    McELMURRY v NINE
    Docket No. 77-4994.
    Submitted October 10, 1978, at Lansing.
    Decided February 27, 1979.
    Leland R. McElmurry brought an action for damages against defendants Paul L. Nine and the Law Offices of Paul L. Nine charging the defendants with legal malpractice. The Ingham Circuit Court, Ray C. Hotchkiss, J., granted the defendants’ motion for accelerated judgment based on a mutual general release signed by the plaintiff and defendant Paul L. Nine following institution of the suit. Plaintiff appeals. Held:

    1. The trial court did not err in determining that the release was fairly and knowingly made.
    2. The release was not unenforceable for lack of consideration since the settlement of the parties’ respective disputed claims furnished good consideration.
    Affirmed.
    1. Appeal and Error — Findings op Fact — Legal Malpractice — Witnesses — Credibility.
    A trial judge’s findings of fact in a suit charging legal malpractice are given considerable weight on review since the trial judge is in a better position to test the credibility of the witnesses.
    2. Release — Validity.
    A release must be fairly and knowingly made in order to be valid.
    3. Release — Attorney and Client — Legal Malpractice — Consideration — Settlement as Consideration.
    A general release signed by the plaintiff and defendant, following institution of a suit charging legal malpractice, is not without adequate consideration where the settlement of the parties’ respective disputed claims furnishes good consideration.
    References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 839.

       66 Am Jur 2d, Release § 30.

       17 Am Jur 2d, Contracts § 92 et seq.

    66 Am Jur 2d, Release § 8.

      Lavey & Taber, for plaintiff.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by John P. Jacobs and Charles T. McGorisk), for defendants.
    Before: M. F. Cavanagh, P.J., and D. E. Holbrook, Jr., and N. J. Kaufman, JJ.
   Per Curiam.

Plaintiff filed suit charging the defendants with legal malpractice and seeking damages therefor. Defendants filed a motion for accelerated judgment. The basis for this motion was a mutual general release signed by the plaintiff and defendant, Paul L. Nine, following institution of this suit. The release referred specifically to the instant litigation.

At the hearing on the motion the defendants argued that the release was an absolute bar to the action. Plaintiff countered that defendant had violated the Code of Professional Responsibility by contacting plaintiff directly and inducing him to sign the release and that this conduct constituted fraud and duress. Plaintiff also argued that the defendant made certain false representations to the plaintiff which induced him to sign the release, including that the defendant would be financially ruined by the litigation, that he had never been sued for malpractice at any prior time, and that such litigation would adversely affect the plaintiff’s business relationship with a business partner of the defendants. Plaintiff argued, therefore, that the release was obtained by fraud and duress. It was lastly urged by plaintiff that the release must fail for want of adequate consideration.

The trial court, after considering the foregoing arguments, granted accelerated judgment for defendants. Plaintiff now appeals by right.

We have reviewed the record and briefs and have given, as we must, considerable weight to the trial court’s findings. Biske v City of Troy, 381 Mich 611; 166 NW2d 453 (1969). We concur in its determination that the release was "fairly and knowingly” made. See Denton v Utley, 350 Mich 332; 86 NW2d 537 (1957), and Farwell v Neal, 40 Mich App 351, 355; 198 NW2d 801 (1972).

Lastly, plaintiff’s suggestion that the release was unenforceable for lack of consideration is without merit. The settlement of the parties’ respective disputed claims furnishes good consideration. 6 Michigan Law & Practice, Contracts, § 58, p 319. See also MCL 566.1; MSA 26.978(1).

Affirmed. Costs to appellees.


author: Per Curiam. N. J. Kaufman, J.

text:
    PEOPLE v BURT
    Docket No. 77-4371.
    Submitted December 6, 1978, at Detroit.
    Decided February 27, 1979.
    Defendant, Terrance Burt, was convicted of unarmed robbery in Recorder’s Court of Detroit, George W. Crockett, III, J. At trial defendant offered the alibi that, at the time of the crime, he and four friends were watching a football game on television. The prosecutor proposed to introduce the Detroit News T.V. Guide to rebut the alibi evidence but, after several attempts to lay a foundation, the prosecutor abandoned his attempt to introduce it. During deliberations, the jury asked to see the T.V. Guide but were refused by the judge for the reason that it was not in evidence. Defendant appeals. Held:

    While the trial court erred in ruling that the T.V. Guide might be introduced to prove what programs were scheduled to be aired, the Court of Appeals takes judicial notice that no football games between Washington and Dallas or between any other professional football teams were televised on the day in question, December 24, 1976, and, therefore, the error is harmless, in that the outcome of a new trial would not likely be any different.
    Affirmed.
    N. J. Kaufman, J., concurred in the result for the reason that the trial court instructed the jury to consider only the evidence and exhibits which were admitted. He would be hesitant to take judicial notice for the first time on appeal of a fact for which no proof was offered below.
    Opinion of the Court
    1. Appeal and Error — Evidence — Judicial Notice.
    Appellate courts can review the propriety of the judicial notice taken by the court below and can even take judicial notice on their own initiative of facts not noticed below.
    References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 739.

       29 Am Jur 2d, Evidence §§ 24, 99.

      2. Evidence — Judicial Notice — Rules op Evidence.
    A judicially noticed fact must be one capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned; the question of whether or not a given football game was played on a given day is capable of judicial notice (MRE 201[b][2]).
    Concurrence by N. J. Kaufman, J.
    3. Appeal and Error — Evidence — Judicial Notice.

      A reviewing court should be hesitant to take judicial notice for the ñrst time on appeal of a fact for which no proof was offered below.

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

      Patricia Rossi Galvin, for defendant on appeal.
    Before: Beasley, P.J., and Bronson and N. J. Kaufman, JJ.
   Per Curiam.

Defendant was convicted by a jury of unarmed robbery, contrary to MCL 750.530; MSA 28.798. After sentence, he appeals as of right, raising two issues, only one of which merits discussion.

Defendant offered as an alibi that he and four friends were watching a football game on television at the time of the alleged crime. At trial, on cross-examination, the prosecutor asked three of the alibi witnesses and defendant which teams had played in the game.

Out of the presence of the jury, the prosecutor announced that he intended to introduce the Detroit News T.V. Guide in evidence to rebut the testimony offered by the alibi witnesses. He asked the trial judge to take judicial notice of its authenticity. The court ruled, over defendant’s objection, that the T.V. Guide could be admitted into evidence to show what was scheduled to be aired on the day in question, but it was not admissible as evidence of what actually appeared on television that day.

When the jury reentered the courtroom, the prosecutor had his witness identify the proposed exhibit. After several attempts to lay a foundation for admission of the T.V. Guide into evidence, the prosecutor abandoned his attempt to introduce it for the reason that his witness lacked the information necessary to lay the foundation.

During deliberations, the jury asked the trial judge to permit them to see the T.V. Guide. In the presence of the jury, the court said that they could not examine the T.V. Guide. The judge stated: "The reason for that is that it’s not an exhibit. It’s not in evidence.”

Defendant contends that the court made an erroneous ruling when it determined that the T.V. Guide was not admissible as probative of what actually appeared on television, but was admissible for the purpose of showing what was scheduled to be shown. Although the evidence was not formally admitted, defendant argues that had the court ruled differently, the jury would not have been exposed to the physical presence of and the discussion concerning the T.V. Guide, and defendant’s case would not have been prejudiced.

Where a newspaper is admissible, extrinsic evidence of its authenticity is not required. Generally, however, newspapers are hearsay evidence of the facts stated within them and are not admissible in evidence to prove such facts. A T.V. Guide is an out-of-court statement of what was scheduled. If it was being offered by the prosecutor to prove the truth of the matter asserted, i.e., as evidence of what was actually aired so as to rebut defendant’s alibi, it would be hearsay. The T.V. Guide defied cross-examination concerning its reliability. The prosecutor could have brought in a witness from the television station to testify or introduced records kept by the station in the regular course of business.

The trial judge ruled that the T.V. Guide was not admissible to prove what was actually aired, but only for what was scheduled. We find what was scheduled to be aired to be irrelevant in this case. MRE 401 states:

" 'Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

Showing what was scheduled would in no way dispute defendant’s alibi; the relevant evidence would be proof that the football game which defendant and the alibi witnesses claimed they were watching at the time of the alleged crime, was not aired at that time. However, the T.V. Guide would be inadmissible for that purpose, as it is merely hearsay evidence of the facts stated and incompetent to prove what was actually shown on the date in question.

We must then consider if the erroneous ruling by the judge is grounds for reversal. In determining whether the error was harmless, we take into consideration that although the T.V. Guide was never formally admitted into evidence, the jury was exposed to it and could well have inferred from the prosecutor’s line of questioning the purpose for which it was being introduced. We also consider that when the jury asked to see the T.V. Guide during their deliberations, the judge instructed them that the T.V.uide was not in evidence and could not be viewed by them.

Under MRE 201(c), a court may take judicial notice whether or not requested to do so. MRE 201(c) allows judicial notice to be taken at any stage of the proceeding. At the very least, the rule implies that appellate courts can review the propriety of the judicial notice taken by the court below and can even take judicial notice on their own initiative of facts not noticed below. A judicially noticed fact must be one "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”.

We find it capable of accurate demonstration by resorting to easily accessible sources of unquestioned accuracy whether a football game was played between Washington and Dallas, or between any other professional football teams, on the afternoon of December 24, 1976, and have done so.

Consequently, even if we find that the jury’s exposure to the T.V. Guide was prejudicial, we do not find it necessary to return the, case for a new trial. We take judicial notice that, in fact, no football game between Washington and Dallas, or between any other professional football teams, was televised on the date in question, namely, December 24, 1976. Therefore, any harmful inferences made by the jury upon seeing the T.V. Guide would not be erased by a new trial in which the prosecution could offer testimony of an official programmer from the station which would appear to raise serious questions regarding the credibility of the alibi witnesses.

We, therefore, find that, under the circumstances of the case, the outcome of the trial would not likely be changed upon retrial; therefore, the error is found to be harmless.

Affirmed.

N. J. Kaufman, J.

(concurring in result). I concur in the result reached by the majority on the basis that the jury was told to consider only the evidence and exhibits admitted. The judge expressly stated that the jury could not examine the T.V. Guide, because it was not an exhibit. I am hesitant to take judicial notice for the first time on appeal of a fact for which no proof was offered below. Compare 31 CJS, Evidence, § 13(b), pp 841-842 and 22A CJS, Criminal Law, § 531, pp 234, 236.

       MRE 902(6).

       32 CJS, Evidence, § 726, p 1031.

       McCormick, Evidence (2d ed), § 333, pp 771, 773. See, Comment, 42 Mich L Rev 509 (1943).

       MRE 201(b)(2).


author: Bashara, J. M. F. Cavanagh, P.J.,

text:
    COUNTY ROAD ASSOCIATION OF MICHIGAN v BOARD OF STATE CANVASSERS MICHIGAN ROAD BUILDERS ASSOCIATION, INC v BOARD OF STATE CANVASSERS
    Docket Nos. 43001, 43126.
    Submitted March 6, 1979, at Lansing.
    Decided March 30, 1979.
    Leave to appeal and cross appeal granted, 406 Mich 982.
    The County Road Association of Michigan and others and Michigan Road Builders Association, Inc., and others brought original actions for mandamus in the Court of Appeals against the Board of State Canvassers seeking permanently to restrain the defendant from declaring the sufficiency of petitions to refer to referendum vote at the 1980 general election the 1978 public act which increases taxes on gasoline and diesel fuel (1978 PA 426) and the 1978 public act which increases weight (registration) taxes on most motor vehicles (1978 PA 427). The People Against Higher Taxes intervened as defendants in these actions.
    On January 12,1979, the Court of Appeals entered an order to show cause and set the matters for expedited submission on March 6, 1979. The Court also enjoined the Board of State Canvassers from certifying the sufficiency or insufficiency of the petitions during this proceeding.
    The two actions were consolidated for hearing. Held:

    1. An act is not subject to referendum if the act, by itself or when read in pari materia with other acts, makes an appropriation for a state institution.
    2. The 1978 public act which increased the taxes on gasoline and diesel fuel does make an appropriation for a state institution, the Department of State Highways and Transportation. Therefore, this act is not subject to referendum.

      References for Points in He adnotes

       42 Am Jur 2d, Initiative and Referendum § 15.
    Construction and application of constitutional or statutory provisions expressly excepting certain laws from referendum. 100 ALR2d 314.

       39 Am Jur 2d, Highways, Streets, and Bridges §§13,200.

       42 Am Jur 2d, Initiative and Referendum § 12.

       73 Am Jur 2d, Statutes § 187.

       73 Am Jur 2d, Statutes § 194.

       42 Am Jur 2d, Initiative and Referendum § 5.

       73 Am Jur 2d, Statutes § 178.

      3. The power of referendum may be properly invoked to challenge the act which increases the weight tax for most motor vehicles registered in the state. This act does not make an appropriation to a state institution. Therefore, this act is subject to referendum.
    An order of mandamus to issue as to 1978 PA 426. Mandamus will not issue as to 1978 PA 427.
    M. F. Cavanagh, P.J., concurred in part and dissented in part, He agrees that the act raising taxes on gasoline and diesel fuel makes an appropriation to a state institution and is not subject to referendum. However, he would also hold that the act which increases the weight taxes on motor vehicles must be read as part of a comprehensive system appropriating monies for highway purposes and thus indisputably appropriates funds for a state institution and is not subject to referendum. He would issue mandamus permanently restraining the defendant from certifying the sufficiency of the petitions as to both of the acts.
    Opinion of the Court
    1. Statutes — In Pari Materia — Appropriation Acts — State Institutions —Referendum.
    An act which, by itself or when read in pari materia with other acts, makes an appropriation for a state institution is not subject to referendum.
    2. Administrative Law — Department of Transportation — Executive Branch of Government — State Institutions.
    The Department of State Highways and Transportation is one of the principal departments of the executive branch of state government and is clearly a state institution.
    3. Taxation — Gasoline Tax — Appropriation—Statutes—Public Acts — Referendum—State Institutions,
    The 1978 public act which, among other things, raised the tax on gasoline from nine cents per gallon to eleven cents per gallon and the tax on diesel fuel from seven cents per gallon to nine cents per gallon is an act which makes an appropriation for a state institution and, therefore, is not subject to referendum (1978 PA426).
    4. Taxation — Weight Taxes — Motor Vehicles — Statutes—Public Acts — Referendum—Appropriations—State Institutions.
    The 1978 public act which increased weight taxes on most motor vehides does not make an appropriation for a state institution and is not to be read in pari materia with any other acts which make appropriation for state institutions and, therefore, is subject to referendum (1978 PA 427).
    5. Statutes — Statutory Construction — In Pari Materia.

      In pari materia is a rule of statutory construction used to ascertain legislative intent.
    6. Statutes — Statutory Construction — Ambiguity.
    Rules of statutory construction should not be invoked where legislation is not ambiguous or conflicting.
    7. Constitutional Law — Statutes—Referendum Provisions — Liberal Construction.
    Constitutional and statutory initiative and referendum provisions should be liberally construed to effectuate their purposes and to facilitate rather than hamper the exercise by the people of these reserved rights.
    Partial Concurrence and Partial Dissent by M. F. Cavanagh, P. J.
    8. Statutes — Amendments to Acts — System of Legislation.

      Amendments to an act are to be viewed with the original act as constituting a system of coherent legislation.

    9. Statutes — In Pari Materia — Legislative Purpose.

      The doctrine of in pari materia is implicitly a development of the judicial belief that legislators do not legislate in a vacuum; where separate laws involve the same subject matter and purpose they should be viewed as part of one system to carry out the legislative purpose.

    10. Taxation — Gasoline Taxes — Weight Taxes — Motor Vehicles —Statutes—Public Acts — System of Legislation — Referendum.

      The 1978public act which raised taxes on gasoline and diesel fuel and the 1978 public act which increased weight taxes on most motor vehicles are part of an overall legislative scheme the purpose of which, in part, is to appropriate funds to state institutions; therefore, both of the public acts, as acts making appropriations to state institutions, are exempt from referendum (1978 PA 426, 1978 PA 427).

      Downs, Pirich & Downs, P.C., for plaintiff County Road Association of Michigan.

      Butzel, Long, Gust, Klein & Van Zile (by William M.

      Saxton, John B. Weaver and James E. Stewart), for plaintiff Michigan Road Builders Association, Inc.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Varda N. Fink, Assistant Attorney General, for defendant.

      Sinas, Dramis, Brake, Boughton, McIntyre & Reisig, P.C., for intervening defendant.
    Before: M. F. Cavanagh, P.J., and Bashara and D. E. Holbrook, Jr., JJ.
   Bashara, J.

These consolidated actions seek an order of mandamus to permanently restrain the Board of State Canvassers from declaring the sufficiency of petitions to refer 1978 PA 426 and 1978 PA 427 to referendum vote at the November 1980 general election.

1978 PA 426 amends §§ 2, 12, 18b, 22, 34, 64, 86 and 93 of 1927 PA 150, as amended, the gasoline and diesel motor fuel tax act, MCL 207.101 et seq.; MSA 7.291 et seq. Among other things, the act raises the tax on gasoline from nine cents to eleven cents per gallon (§ 2) and the tax on diesel fuel from seven cents to nine cents per gallon (§ 22).

1978 PA 427 amends §§ 801, 801e, 802 and 803a of 1949 PA 300, as amended, which is chapter VII of the Michigan vehicle code, MCL 257.1 et seq.; MSA 9.1801 et seq. 1978 PA 427 increases weight (registration) taxes on most motor vehicles, with the heaviest increases falling on automobiles and pick-up trucks.

On January 2,1979, People Against Higher Taxes filed referendum petitions on 1978 PA 426. On January 9,1979, they filed referendum petitions on 1978 PA 427.

The County Road Association of Michigan commenced this action January 3, 1979. The Michigan Road Builders Association filed a similar action January 12, 1979. On that date, this Court entered an order to show cause and set the matter for expedited submission on March 6,1979. The Court also enjoined the Board of State Canvassers from certifying the sufficiency or insufficiency of the petitions during this proceeding.

Plaintiffs contend that the acts make an appropriation for a state institution and, therefore, are not subject to referendum under that part of Const 1963, art 2, § 9, which provides, "The power of referendum does not extend to acts making appropriations for state institutions.”

Motor vehicle fuel tax increases in this state have frequently been challenged. See Detroit Automobile Club v Secretary of State, 230 Mich 623; 203 NW 529 (1925), Moreton v Secretary of State, 240 Mich 584; 216 NW 450 (1927), Michigan Good Roads Federation v State Board of Canvassers, 333 Mich 352; 53 NW2d 481 (1952), Boards of County Road Comm’rs v Board of State Canvassers, 50 Mich App 89; 213 NW2d 298 (1973), afFd, 391 Mich 666; 218 NW2d 144 (1974). Those cases establish the proposition that if the challenged act, by itself or when read in pari materia with other acts, makes an appropriation for a state institution, then the act is not subject to referendum. Plaintiffs contend that 1978 PA 426, either by itself or when read in pari materia with 1978 PA 427 and 444, is an act making an appropriation for a state institution.

Specifically, 1978 PA 426 amends chapter 2, § 34 of 1927 PA 150, as amended, the gasoline and diesel motor fuel tax act to provide for disposition of diesel motor fuel taxes, as follows:

"All sums of money received and collected by the secretary of state under this chapter, except the license fees herein provided, shall be deposited in the state treasury to the credit of the Michigan transportation fund, and after the payment of the necessary expenses incurred in the enforcement of this chapter shall be appropriated, allocated and apportioned therefrom to the department of transportation, the several county road commissions and incorporated cities and villages of the state in the manner and for the specific highway purposes prescribed by law.” MCL 207.134; MSA 7.316(14). (Emphasis added.)

The above emphasized language is sufficient language of appropriations to make 1978 PA 426 an appropriations act under the definition adopted and approved by this Court in County Road Comm’rs v Board of State Canvassers, supra. In that case, the Court said:

"In Black’s Law Dictionary (4th ed), p 131, an appropriation in public law is defined as follows:
" 'The act by which the legislative department of government designates a particular fund, or sets apart a specified portion of the public revenue or of the money in the public treasury, to be applied to some general object of governmental expenditure, or to some individual purchase or expense.’
"Applying Black’s definition of the word appropriation to § 18b would in our opinion qualify it as an appropriations act.” 50 Mich App at 95-96.

Section 18b, construed to be an appropriations act by the Court in the prior case, read:

"All sums of money received and collected under the provisions of this act, except the license fees provided for herein and after the payment of the necessary expenses incurred in the enforcement of this act, shall be deposited in the state treasury to the credit of the motor vehicle highway fund.” MCL 207.118b; MSA 7.308(2).

Section 18b was again amended by 1978 PA 426, essentially to change the name of the Motor Vehicle Highway Fund to the Michigan Transportation Fund.

If former § 18b is construed as an appropriations act, then even more so can § 34 of 1978 PA 426 be considered an appropriations act because of the specific mandatory provision, "shall be appropriated, allocated and apportioned therefrom.” (Emphasis added.)

Although in the prior case this Court declined to hold that the Motor Vehicle Highway Fund, referred to in § 18b, was a state institution, the Department of State Highways and Transportation in present § 34 is clearly a state institution. The Department of State Highways and Transportation is one of the principal departments of the executive branch. See § 4 of the Executive Organization Act, as amended by 1978 PA 483, MCL 16.104; MSA 3.29(4). Furthermore, most of the prior gas tax cases expressly recognize that the former State Highway Department, county road commissions and/or cities and villages are state institutions within the meaning of the constitution.

In addition, § 34 of 1978 PA 426 makes the act an appropriation for a state institution on grounds suggested but not utilized as definitive by this Court in County Road Comm’rs v Board of State Canvassers, supra. In that case, this Court said:

"A more tenable position for plaintiffs to stand on in relation to this issue would be to assert that 1972 PA 326 is but a part by amendment of 1927 PA 150. Without question 1927 PA 150, as amended by 1951 PA 54 and 1967 PA 5 (Ex Sess), is an appropriations act in which appropriations are made to state institutions in §§ 34 and 91. It is, of course, an axiom of statutory construction that an amendatory act is construed in the context of the act which it is designed to amend, the policy being to harmonize and give effect to all legislative language whenever possible. Doyle v Election Commission of the City of Detroit, 261 Mich 546; 246 NW 220 (1933), Fowler v Board of Registration in Chiropody, 374 Mich 254; 132 NW2d 82 (1965).
"Although it appears that standing on this premise we could justifiably rule that the act is not subject to referendum, we do not predicate our decision on this added premise because we do not deem it necessary in view of our subsequent determination.” 50 Mich App at 99-100. (Footnotes omitted.)

In this case, 1978 PA 426 amends § 34 in language nearly identical to 1951 PA 54 which this Court held in the prior case "without question * * * is an appropriations act in which appropriations are made to state institutions in §§ 34 and 91”. 50 Mich App at 99-100.

We reject defendants’ contention that 1978 PA 426 cannot be held to be an appropriation act without violating Const 1963, art 4, § 31. That section is inapplicable because 1978 PA 426, 427 and 444 were part of general appropriation bills as defined by Const 1963, art 4, § 31, and those bills were part of the Governor’s budget. Article 4, § 31 seeks to avoid the passage of appropriation bills for items not in the budget before general appropriation bills for items in the budget are approved.

Defendants also contend that § 34 does not take effect in the next ensuing fiscal year and is therefore just an authorization or merely the expression of an intention to appropriate. Defendants cite Board of Education of Oakland Schools v Superintendent of Public Instruction, 392 Mich 613; 221 NW2d 345 (1974), in support of that proposition.

However, in that case the specific appropriation made was vetoed by the Governor and only the enabling act was passed. School board appropriations are made on a year-by-year basis. Our Supreme Court determined that the bill was in conflict with Const 1963, art 4, § 31, and art 5, § 18, since the Legislature could not accurately forecast available revenues to balance the appropriations. In the instant case, no more is appropriated than the actual net revenue from the tax. The statute here in question is clearly distinguishable from that in Board of Education, supra. We also note that the Supreme Court there indicated that it was not passing upon the validity of a continuing appropriation. Furthermore, we allude to the definition of an appropriation in public law as found in Black’s Law Dictionary, and in County Road Comm’rs, supra, previously cited in this opinion.

Accordingly, we conclude that 1978 PA 426 is an act which makes an appropriation for a state institution and, therefore, is not subject to referendum.

1978 PA 427 does not make an appropriation for a state institution and is subject to referendum, unless that act is to be read in pari materia with 1978 PA 426 and 444.

1978 PA 444 extensively amends 1951 PA 51, the classification of roads act, as amended, MCL 247.651 et seq.; MSA 9.1097(1) etseq. 1978 PA 444 not only contains clear appropriation language to the Department of State Highways and Transportation, but § 10 thereof specifically refers to, incorporates and appropriates, among others, the gas tax increases of 1978 PA 426 and the weight tax increase of 1978 PA 427. If the doctrine of in pari materia applies, 1978 PA 444 is the catalyst.

The doctrine of in pari materia was used by the Courts in County Road Comm’rs v State Canvassers, supra, and in Good Roads Federation v Board of Canvassers, supra. In those cases, the acts involved were passed on the same day and contained tie-bars to each other. In the present case, the acts were not passed on the same day and contain no tie-bar provisions. 1978 PA 426 and 427 were approved September 30,1978, but 1978 PA 444 was not approved until October 10,1978. Moreover, none of those acts has tie-bar provisions. Even more significant than that is the fact that as originally introduced and in subsequent legislative versions, those three acts did have tie-bar provisions which were deleted when the acts were finally passed.

In affirming this Court’s denial of referendum in County Road Comm’rs v State Canvassers, the Supreme Court did so reluctantly only because of the past construction of the constitutional referendum language in Detroit Automobile Club, Moreton, and Good Roads, supra. The Court noted:

"The construction placed by this Court on this exception to the right of referendum in the 1925 Detroit Automobile Club, 1927 Moreton and 1952 Good Roads cases may, indeed, in many instances deny the people a right to vote on new or increased taxes. If the question were one not previously considered, a different result might obtain. However, the identical question involving substantially the same language has been considered by this Court and settled.” 391 Mich at 676.

We are reluctant to extend the referendum exception beyond the prior gas tax cases. In pari materia is a rule of construction to ascertain legislative intent. However, rules of construction should not be invoked where the legislation is not ambiguous or conflicting. See 21 Michigan Law & Practice, Statutes, § 81, p 79. Perhaps then the in pari materia doctrine should not have been applied in the prior gas tax cases where no allegation was made that the statutes under consideration were ambiguous or conflicting. Therefore, even though the doctrine was utilized in County Road Comm’rs and in Good Roads Federation, we do not feel that it should be extended to the present case where the acts were neither tie-barred nor approved simultaneously. The principal consideration must be to implement the constitutional right of referendum. In Kuhn v Dep’t of Treasury, 384 Mich 378, 385; 183 NW2d 796 (1971), the Court said:

"Furthermore, under a system of government based on grants of power from the people, constitutional provisions by which the people reserve to themselves a direct legislative voice ought to be liberally construed. * * * Previous decisions of this Court requiring strict compliance with constitutionally mandated procedures for exercise of the powers of initiative and referendum should not be read as limiting the occasions upon which these powers may be exercised.” (Citations omitted.)

In Michigan Farm Bureau v Secretary of State, 379 Mich 387, 393; 151 NW2d 797 (1967), the Court said:

"There is nevertheless an overriding rule of constitutional construction which requires that the commonly understood referral process, forming as it does a specific power the people themselves have expressly reserved, be saved if possible as against conceivable if not likely evasion or parry by the legislature.”

The same thought was expressed by this Court in Newsome v Board of State Canvassers, 69 Mich App 725, 729; 245 NW2d 374 (1976):

"Constitutional and statutory initiative and referendum provisions should be liberally construed to effectuate their purposes, to facilitate rather than hamper the exercise by the people of these reserved rights.”

We are thus cautioned by respectable authority against restricting the right of referendum. Accordingly, we decline to apply the doctrine of in pari materia to the 1978 acts. As noted earlier, the doctrine probably should not have been applied in prior gas tax cases in the absence of ambiguous or conflicting provisions. Since it was applied in prior cases, however, we must restrict its application to situations, like the prior cases, where the acts were approved on the same day and were tie-barred to each other. Since 1978 PA 426, 427 and 444 were not enacted simultaneously and do not contain tie-bars to each other, we decline to read them in pari materia.

Good Roads Federation and County Road Comm’rs, supra, gave special (perhaps undue) significance to the presence of tie-bar language in those gas tax controversies. Because of the precedential force of those decisions, we are compelled similarly to give significance to the absence of tie-bar language in this controversy. However, we caution that tie-bar should not be raised to the level of an absolute principle of statutory construction in other contexts. Tie-bar language may be some legislative indication that statutes are intended to be read together; but, tie-bar language or its absence, alone, should not necessarily be controlling injudicial interpretation of legislative intent in other situations.

We conclude, therefore, that 1978 PA 426 is not subject to referendum, but that 1978 PA 427 is. The power of referendum under Const 1963, art 2, § 9, was properly invoked with reference to 1978 PA 427. See 1978 PA 587.

An order of mandamus will issue in 20 days from the date of the release of this opinion permanently to restrain the Board of State Canvassers from certifying the sufficiency of petitions to refer 1978 PA 426 to referendum. In 20 days also, our stay of certification of petitions to refer 1978 PA 427 to referendum will be vacated. Our stay of the certification process remains in effect for that 20-day period.

D. E. Holbrook, Jr., J., concurred.

M. F. Cavanagh, P.J.,

(concurring in part, dissenting in part). To view this controversy in proper perspective, we must bear in mind that the provision which renders the basic right of referendum inapposite is itself an integral part of this state’s constitution. This Court has the duty to treat both provisions with equal deference. By the same token, the Legislature cannot, by the mere use of tie-bar language, abrogate either provision. We delude ourselves when we allow the use of sophistic phraseology to determine which constitutional provision controls in any given situation.

While I concur with the majority with respect to 1978 PA 426, I dissent from their conclusion that 1978 PA 427 does not constitute an appropriation to a state institution and is therefore subject to referendum. After careful analysis of the statutory scheme that 1978 PA 427 was designed to amend and of prior Supreme Court interpretations of that scheme, I would conclude that 1978 PA 427 is an integral part of an act clearly making an appropriation to a state institution and is not subject to referendum.

First, it is axiomatic that amendments are to be viewed, with the original act, as constituting a system of coherent legislation. Fowler v Board of Registration in Chiropody, 374 Mich 254, 257; 132 NW2d 82 (1965). Boards of County Road Comm’rs v Board of State Canvassers, 50 Mich App 89, 100; 213 NW2d 298 (1973), aff'd, 391 Mich 666; 218 NW2d 144 (1974). Secondly, the doctrine of in pari materia is implicitly a development of the judicial belief that legislators do not legislate in a vacuum; rather where separate laws involve the same subject matter and purpose, they should be viewed as part of one system to carry out the legislative purpose. Wayne County v Auditor General, 250 Mich 227, 232-233; 229 NW 911 (1930). Applying these established principles, the conclusion is inescapable that 1978 PA 427 is part of a comprehensive system appropriating monies for highway purposes, established in 1949 and interpreted, as amended, in 1951 in Michigan Good Roads Federation v State Board of Canvassers, 333 Mich 352; 53 NW2d 481 (1952).

1949 PA 300, which 1978 PA 427 amends, established, inter alia, a schedule of weight taxes (§ 801), collected and deposited these taxes in the state treasury to the credit of the state highway fund and appropriated them for various highway purposes (§ 805). 1949 PA 300, § 810, also deposited various other fees to the credit of the highway fund.

In 1951, 1949 PA 300 was amended in several respects. 1951 PA 51 repealed § 805 and replaced it with PA 51, § 10. Section 10 of this act established the Motor Vehicle Highway Fund (MVHF) and appropriated money credited to the MVHF and received from, among other sources, weight taxes on motor vehicles. 1951 PA 55 also amended 1949 PA 300, § 810, to collect and deposit weight taxes and other fees collected under PA 300 to the credit of the MVHF. 1951 PA 55 contained tie-bar language to 1951 PA 51.

In Michigan Good Roads Federation v State Board of Canvassers, supra, at 360-361, the Supreme Court construed 1951 PA 51-1951 PA 55 as a comprehensive system to collect registration and gas taxes and to use them for highway purposes. In that case, the Court read PA 51 and PA 54 (the appropriation of gas taxes) in pari materia to conclude that they could not be treated separately since PA 54 necessarily points to PA 51 as the act distributing the monies appropriated under 1951 PA 54.

This same analysis applies with even greater validity in regard to 1951 PA 55. PA 55 merely credits money to a particular fund. It does not establish the fund nor explain how the money is to be spent. PA 51, to which PA 55 was tie-barred, establishes the Motor Vehicle Highway Fund and appropriates the money collected under 1951 PA 55.

To paraphrase the language in Good Roads, therefore, 1951 PA 55, provides that it shall not take effect unless PA 51 is enacted. The funds collected in PA 55 and credited to the MVHF could not be appropriated and allocated withr out PA 51. "Without construing them [51 and 55] together, * * * [these acts] would be unworkable.” Good Roads, supra, at 360.

The position of 1978 PA 427 in the appropriations and funding framework established by 1949 PA 300, as amended by 1951 PA 55 and as modified by 1951 PA 51, is evident. As of September 30,1978, the legislation imposing and appropriating weight taxes consisted of 1978 PA 427, amending 1949 PA 300, 1951 PA 55, also an amendment to the 1949 act and, as per the Good Roads case, 1951 PA 51. On October 10, 1978, 1951 PA 51 was amended by 1978 PA 444, which indisputably makes an appropriation to a state institution. Based on the foregoing legislative history and established precedent, I would conclude that 1978 PA 427 forms part of a standing appropriation to a state institution whose details are laid out in 1978 PA 444.

Unquestionably, the right of referendum would apply to 1978 PA 426 and 427 unless these acts could be fairly and reasonably construed to constitute appropriations to a state institution. Our Supreme Court has clearly indicated in Good Roads that the statutory scheme which the acts before us amend, qualifies them for an exemption from referendum. The absence of tie-bar language between the 1978 acts thus becomes immaterial and makes the existence of a statutory appropriations scheme no less clear. I am persuaded, therefore, that that case requires us to view these acts also as integral parts of an overall legislative scheme and to afford them a similar exemption.

       Although we find the right of referendum inapplicable to 1978 PA 426, it should be noted that the people of the State of Michigan may always institute a petition to amend the constitution or propose an initiative petition on any issue, regardless of its fiscal implications.


author: Allen, P.J.,

text:
    WEMMER v NATIONAL BROACH & MACHINE COMPANY (AFTER REMAND)
    Docket Nos. 77-301, 77-584.
    Submitted January 9, 1978, at Detroit.
    Decided April 2, 1979.
    Leave to appeal denied, 406 Mich 1002.
    Arthur R. Wemmer became totally and permanently disabled from a work-related injury occurring on November 4, 1968. Benefits and statutory increases were paid by National Broach & Machine Company and the second injury fund until Wemmer’s total benefits reached (actually exceeded) the ceiling imposed by the Worker’s Disability Compensation Act, which limits payment to two-thirds of the average weekly wage at time of injury. Wemmer’s payments were limited to two-thirds of his average weekly wage at the time of his compensable injury. Meanwhile, on January 12, 1974, Wemmer reached age 65. At this point, the age 65 reduction provisions in the compensation statute called for a 5% reduction in benefits. A dispute arose as to whether differential benefits payable by the second injury fund were subject to these 5% reductions and, if so, which of several methods of calculation should be employed to determine payment. This dispute came before the Workmen’s Compensation Appeal Board (WCAB). The board’s opinion was issued on December 21, 1976. Wemmer appealed. The second injury fund, in a separate appeal, also appealed to the Court of Appeals. The Court of Appeals affirmed the WCAB opinion in part and remanded in part, Wemmer v National Broach & Machine Co (Docket Nos. 77-301, 77-584, August 9, 1978, [unreported]). Wemmer then requested leave to appeal to • the Supreme Court. The application for leave to appeal was denied, 405 Mich 835 (1979). On the Court of Appeals remand the WCAB issued its opinion on August 25, 1978, holding that a totally and permanently injured employee is limited to benefits consisting of two-thirds of his average weekly wage at the time of his injury and that this is the absolute ceiling on both the employer and second injury fund, except where minimum rates set by the compensation bureau exceed two-thirds of the average weekly wage, at which time the minimum becomes the floor beneath which total payments may not fall, and that an injured employee should receive incremental increases from the second injury fund between the age of 65 and 75. The questions to be resolved on the appeal after the remand are (1) should benefits be limited to two-thirds of an injured employee’s average weekly wage at the time of the injury as an absolute ceiling on differential benefit payments by the second injury fund, and (2) what method of calculation should be used to compute the 5% benefit reductions required by statute for the recipient of a total and permanent disability award after he reaches age 65? Held:

      References for Points in Headnotes

       82 Am Jur 2d, Workmen’s Compensation §§ 344, 368, 378, ■ 486.

       2 Am Jur 2d, Administrative Law § 241.

       82 Am Jur 2d, Workmen’s Compensation § 344.

       82 Am Jur 2d, Workmen’s Compensation § 340.

      1. The WCAB properly decided that the limitation of two-thirds of an injured employee’s average weekly wage at the time of injury is a ceiling governing the calculation of differential benefit payments by the second injury fund when there are increases in the maximum benefits set by the bureau of worker’s compensation but that when the minimum rates exceed the two-thirds limitation, the minimum becomes the floor beneath which total payments may not fall.
    2. The only correct formula for calculating benefits for totally and permanently disabled employees who attain age 65 is to set down employer and second injury fund statutory reductions in payments in separate columns for each year after age 65 until payments by both have been reduced by 50%. Differential increases made by the bureau of worker’s compensation prior to the recipient’s 65th birthday continue to be paid by the fund but any increases after the recipient’s 65th birthday are not included. The WCAB erred in concluding that plaintiff should receive incremental increases from the second injury fund between ages 65 and 75.
    Affirmed in part, reversed in part, and remanded.
    1. Workmen’s Compensation — Worker’s Disability Act — Date of Injury — Second Injury Fund — Differential Benefit Payments — Two-Thirds Limitation — Statutes.
    Employees who are or become disabled on or after July 1, 1968, shall receive differential benefit payments from the second injury fund in accordance with the limitation to two-thirds of the average weekly wage at time of injury as provided by the Worker’s Disability Compensation Act (MCL 418.351[1], 418.355; MSA 17.237[351][1], 17.237[355]).

      2. Statutes — Construction — Administrative Interpretation.
    The interpretation given a statute by those charged with the statute’s administration is given great weight and is not to be overruled without the most cogent of reasons.
    3. Workmen’s Compensation — Worker’s Disability Act — Employee Benefits — Two-Thirds Limitation — Minimum Weekly Rates — Statutes.
    An injured employee’s benefits are generally held at two-thirds of his average weekly wage at the time of injury; however, under a section of the Worker’s Disability Compensation Act, the Director of the Bureau of Worker’s Disability Compensation establishes minimum weekly rates of compensation and whenever the minimum rate as so established exceeds the two-thirds limitation, the minimum rate prevails (MCL 418.355; MSA 17.237[355]).
    4. Workmen’s Compensation — Second Injury Fund — Minimum Rates — Differential Benefits — Adjustments — Statutes.
    A permanently and totally disabled employee may receive differential benefits from the second injury fund equal to the difference between what he was receiving from his employer at the time of his injury and the adjusted minimum rate set at a later date by the Bureau of Worker’s Disability Compensation (MCL 418.521[2]; MSA 17.237[521][2]).
    5. Workmen’s Compensation — Benefits — Two-Thirds Limitation.
    A present day applicant for total and permanent disability is limited to benefits equal to two-thirds of his average weekly wage.
    6. Workmen’s Compensation — Employers — Second Injury Fund — Reduction of Benefits — Differential Increases — Methods of Computation.
    The proper method for determining how total and permanent benefits should be split between an employer and the second injury fund after a recipient reaches age 65 is to set down employer and second injury fund statutory reductions in payments in separate columns for each year until payments by both the employer and the fund have been reduced by 50%; differential benefit increases made by the Bureau of Workmen’s Compensation prior to the recipient’s 65th birthday continue to be paid by the fund but any increases after the recipient’s 65th birthday are not included; if the total amount paid by the employer and the fund combined falls below the statutory minimum, the difference between that total and the minimum rate must be paid by the fund.
    7. Workmen’s Compensation — Total Disablement — Age 65 — Reduction of Benefits — Statutes.
    An employee receiving or with a right to weekly benefits for total and permanent disability who reaches or has reached or passed the age of 65 is entitled to weekly payments for each year following his 65th birthday; however, such benefits shall be reduced by 5% of the weekly payment paid or payable at age 65, but not less than 50% of the weekly benefit paid or payable at age 65, so that on his 75th birthday the weekly payments shall have been reduced by 50%, after which there shall be no further reduction for the duration of the employee’s life; in no case shall the weekly payments be reduced below the minimum weekly benefit provided by statute (MCL 418.357; MSA 17.237[357]).

      Kelrnan, Loria, Downing, Schneider & Simpson (by Robert W. Howes), for Arthur R, Wemmer.

      Lacey & Jones (by John L. Salter), for Liberty Mutual Insurance Company.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Eileen D. Zielesch and Joseph M. Binno, Assistants Attorney General, for the Second Injury Fund.
    Before: Allen, P.J., and D. E. Holbrook, Jr., and M. J. Kelly, JJ.
   Allen, P.J.,

Do the provisions of MCL 418.351(1); MSA 17.237(351X1) limiting workmen’s compensation benefits to two-thirds of the injured party’s average weekly wage at the time of the injury place an absolute ceiling on differential benefit payments by the second injury fund resulting from increases in maximum benefits payable under MCL 418.355; MSA 17.237(355)? What method of calculation should be used to compute the 5% benefit reductions required by MCL 418.357; MSA 17.237(357) for the recipient of a total and permanent diability award who attains age 65? These questions, the second of which is of first impression, are raised on return of this case from the Workmen’s Compensation Appeal Board pursuant to remand in this panel’s unpublished per curiam opinion released August 9, 1978.

In proceedings which are no longer disputed, plaintiff was found totally and permanently disabled from a work-related injury occurring on November 4, 1968. At the time of the injury, plaintiff’s average weekly wage was $150.80. Two-thirds of that amount is $100.53. The statutory maximum benefit limit then in effect was $69. Because of that limit, the initial award to plaintiff was $69 per week, payable in full by his employer’s insurance carrier. Between 1968 and 1973, the maximum benefit limit was increased on several occasions pursuant to MCL 418.355; MSA 17.237(355). These increases were absorbed by defendant second injury fund pursuant to MCL 418.521; MSA 17.237(521). During calendar year 1973, the total payment to plaintiff was $99 per week — $69 from the insurance carrier and $30 from defendant second injury fund. The statutory maximum benefit was again increased to $106 effective January 1, 1974. With this new increase, plaintiff’s total benefits reached (actually exceeded) the ceiling imposed by the two-thirds of average weekly wage limitation in MCL 418.351; MSA 17.237(351). Because of that ceiling, the imposition of which is contested by plaintiff in Issue I of this opinion, payment to plaintiff during calendar year 1974 was in the weekly sum of $100.53, i.e., two-thirds of his average weekly wage when he suffered the compensable injury. In 1975, 1976, and 1977, the maximum was increased to $112, $120 and $132 respectively but, because Of the two-thirds limitation, payments to plaintiff remained at $100.53. Then, on January 1, 1978, the maximum was raised to $147 and the minimum to $108. Because the minimum then exceeded the two-thirds limitation, plaintiff’s payments were raised.

Meanwhile, on January 12, 1974, plaintiff reached age 65. At that point, the age 65 reduction provisions in MCL 418.357; MSA 17.237(357) — as interpreted by the WCAB — called for a 5% reduction in benefits. At that point a dispute arose as to whether differential benefits were subject to the 5% age reductions and, if so, which of several methods of calculation should be employed; The dispute came before the WCAB which, on December 21, 1976, issued the opinion referred to in footnote 1, and which was affirmed in part arid remanded in part to the WCAB by the unpublished per curiam opinion of this panel on August 9, 1978. The WCAB entered its opinion on the remand on August 25, 1978, and returned the cause to this panel. Issues posed by the August 25, 1978, opinion are the subject of this opinion.

I. Does the Provision in MCL 418.351(1); MSA 17.237(351)(1) Limiting Beneñts to Two-Thirds of a Recipient's Average Weekly Wage at the Time of Injury Provide an Absolute Ceiling on Differential

Beneñt Payments by the Second Injury Fund Resulting from Increases in the Maximum Beneñts

Pursuant to MCL 418.355; MSA 17.237(355)?

Plaintiff contends that § 351(1) only limits the employer’s contribution to two-thirds of the recipient’s average weekly wage at the time of injury, and that the section does not apply to the differential benefits required to be paid from the second injury fund. On remand, all WCAB members rejected plaintiff’s construction, saying:

"Unresolved, and returned to this Board for an expression of its opinion, is the question of whether the provision in Section 351 [MCL 418.351(1)] limiting benefits to two-thirds of an injured employee’s average weekly wage is an absolute ceiling on both employer and Second Injury Fund payments (an absolute ceiling, that is, until such time as minimum rates for total disability exceed the two-thirds average weekly wage, at which time said mínimums become the floor beneath which total payments may not fall, per Jolliff v American Advertising Co, 49 Mich App 1; [211 NW2d 260 (1973)], and Vrahamdedes v McDonald's of Ann Arbor, 1978 WCABO 1624, No. 312, dated June 14, (1978). Believing the Court to have (correctly) answered this question in the affirmative on the only occasion the question was before the Court [Kunde v Teesdale Lumber Co, 55 Mich App 546; 223 NW2d 67 (1974)], we answer 'yes’. Interestingly, both here and in Kunde, supra, the parties declined to raise the issue before the Board and introduced it instead at the Court.”

The obligation of the second injury fund to pay differential benefits first appeared in § 9(a) in 1955 PA 250. Section 9(a) was amended by 1956 PA 195 to read that payments should be made "according to the full rate provided in the schedule of benefits”. This language was repeated verbatim when the statutue was amended by 1965 PA 44. The question of whether the statute as so worded required the second injury fund to pay in excess of the two-thirds limitation first arose in King v Second Injury Fund, 382 Mich 480; 170 NW2d 1 (1969). In June, 1966, the hearing referee held the limitation applied. That decision was affirmed in a 4-3 decision by the Workmen’s Compensation Appeal Board in 1967. 1967 WCABO 941. Bypass of the Court of Appeals was granted by the Supreme Court which, in September, 1969, reversed, holding that the two-thirds limitation did not apply because to hold otherwise would disregard the statutory words "according to the full rate provided in the schedule of benefits”. King v Second Injury Fund, supra.

Within a few months following the split decision of the WCAB in King, legislation was introduced to amend the statute. In the amendment process, the words "according to the full rate provided in the schedule of benefits” were deleted. That legislation became law in 1968 PA 227, effective July 1, 1968. Elimination of the quoted words caused the fund trustees to request an opinion from the Attorney General as to whether the fund was still required to pay differential benefits without regard to the two-thirds limitation for injuries occurring after July 1968 (the effective date of the act). The Attorney General concluded that, as so amended, the two-thirds limitation would apply:

"The King decision is no longer applicable where the injury occurred subsequent to June 30, 1968 because the statutory language that provided for payments from the second injury fund 'according to the full rate provided in the schedule of benefits’ was deleted by Act 277, PA 1968. Therefore, in respect to employees who are or become disabled because of an injury occurring on or after July 1, 1968, they shall receive differential benefits in accordance with the two-thirds limitation.” OAG, 1969-1970, No. 4711, p 187 (November 9, 1970).

We agree with the Attorney General. Any other conclusion would disregard the basic rules of statutory construction.

The constitutionality of the statute as interpreted by the Attorney General’s opinion was challenged on grounds of violation of equal protection of the laws in Kunde v Teesdale Lumber Co, 55 Mich App 546; 223 NW2d 67 (1974). Our Court held that there were legitimate legislative purposes served by application of the two-thirds limitation to differential benefit payments for injuries occurring after June 30, 1968. We do not believe Kunde decided that the 1968 amendment imposed a two-thirds limitation on payments for employees injured subsequent to June 30, 1968. In this respect we disagree with the WCAB and agree with plaintiff. Kunde assumed that the Attorney General’s construction of the statute was correct and, based on that assumption, decided only the question of the law’s constitutionality. But our agreement with plaintiff on this narrow point is more than offset by the striking fact that although four years had elapsed since the Attorney General’s opinion no one, not even the claimants, challenged the construction given the statute. Only the constitutionality of the statute was questioned until the instant suit was commenced. The WCAB, the second injury fund and claimants have all accepted the two-thirds limitation on differential benefits for post-June 30, 1968, injuries. The interpretation given a statute by those charged with the statute’s administration is given great weight and is not to be overruled without the most cogent of reasons. Magreta v Ambassador Steel Co, 380 Mich 513, 519; 158 NW2d 473 (1968), Miller v Dunn Paper Co, 47 Mich App 471, 478; 209 NW2d 519 (1973).

The main thrust of plaintiffs claim that the Attorney General erred in ruling that the 1968 amendment reversed King is that to so conclude is inconsistent with the then legislative intent to increase benefits. Why should the Legislature create a plan to provide additional benefits for totally and permanently disabled persons — obviously to cope with rising prices — and then proceed to limit the amount to two-thirds of the injured person’s wage at the time of the injury. The argument is flawed in three respects.

First, it is not true that the injured person’s benefits are held at two-thirds of the average weekly wage at the time of injury. Under the statute, the Director of the Bureau of Worker’s Disability Compensation establishes minimum weekly rates of compensation. Whenever the minimum rate as so established exceeds the two-thirds limitation, the minimum rate prevails. Stein v Director, Bureau of Workmen’s Compensation, 77 Mich App 169; 258 NW2d 179 (1977). In 1977, the minimum rate was $93 for a disabled employee with one dependent. In 1978, it was raised to $108. Immediately, the second injury fund increased its differential payment to plaintiff to $39 per week which is the difference between the employer’s basic weekly rate of $69 per week and the 1978 minimum benefit rate of $108.

Second, plaintiff errs in construing § 521(2) as automatically allowing him the present-day maximum rate. Section 521(2) provides that a permanently and totally disabled person shall receive differential benefits equal to the difference between what he is now receiving from his employer under the provisions in effect at the time of his injury "and the amount now provided” by the act. No provision of the act allows a present-day applicant to receive the maximum benefit rate if it exceeds two-thirds of his average weekly wage. The present-day applicant is limited to two-thirds of the average weekly wage. Thus, if plaintiff were allowed to receive the present maximum rate without regard to the two-thirds limitation, he would receive more than is provided for a present-day applicant. While it is true that a present-day applicant’s average weekly wage generally would be greater than that of an applicant from previous years, the adjustment of the minimum rate, as explained above, remedies this situation. If the Legislature had intended so major a change we believe it would have clearly so stated.

Third, sound policy reasons exist for imposing the two-thirds limitation. The limitation avoids the unfairness in giving all recipients the same yearly wage. In the absence of any limitation a party, who at the time of injury was earning less than the then average weekly wage, would receive the same increase as a party who was earning more than the average weekly wage at the time of injury. The two-thirds limitation avoids this unfairness. Further, as the Kunde Court pointed out, budgetary and other reasons may well have led the Legislature to impose the two-thirds limitation.

"There are potentially many rational reasons why the Legislature constructed the classification it did. It may have anticipated the King, supra, ruling and its effects, and thus sought to equalize the compensation responsibility owed by employers and the Second Injury Fund. It may have felt that any added burden placed on the Second Injury Fund by requiring it to pay the full rate as set out in the schedule of beneñts might damage the fund, and thus destroy its effectiveness.” (Emphasis supplied.) Kunde, supra, at 557.

This Court’s request in its opinion on remand that cost data be supplied was made for the purpose of possibly identifying legislative intent. The data so furnished in response to our request, and summarized in footnote 2, provides a sound basis for the Legislature to conclude that continuation of payments "at the full rate” would impose an excessive drain on the fund.

II. Given the Following Sequence of Events, How Should Differential Beneñt Payments by the Second Injury Fund be Calculated? (1) Award for Total and Permanent Disability, (2) Increase in Maximum Rates Causing Differential Beneñts by the Second Injury Fund, (3) Recipient Reaches Age 65, (4) Maximum Rates are Further Increased and Minimum Rate Exceeds the Two-Thirds Limitation.

Five proposed methods of calculating differential payments to a recipient who has attained age 65 were submitted for this Court’s consideration in its opinion August 9, 1978. The respective methods are labeled A, B, C, D, E. In our August 9, 1978, opinion we rejected method B as totally inconsistent with the statutory language and remanded the other proposals to the appeal board for further consideration. In its opinion on remand, the WCAB retained its separate positions on method C (board panel majority) and D (board panel minority). Plaintiffs method E was calculated on the assumption that the two-thirds limitation did not apply. In view of our discussion in Issue I, supra, that the limitation does apply, method E is rejected. This leaves only methods A, C and D as the viable alternatives for our consideration at this time.

Under method A, the method supported by the second injury fund, the compensation payable by the employer on the claimant’s 65th birthday, and the compensation payable by the fund on the same date, are set down in separate columns. In the instant case, the respective totals are $69 and $31.53, or a total of $100.53, which is two-thirds of plaintiff’s average weekly wage of $150.80. On January 12, 1974, (the day after plaintiffs 65th birthday) the $69 is reduced by 5% ($3.45) and the $31.53 is reduced by 5% ($1.58). Thereafter, for nine consecutive years, the employer’s share is each year reduced by $3.45, and the fund’s share is each year reduced by $1.58. Thus, on the 10th year following plaintiffs 65th birthday, payments by both the employer and the fund will have been reduced by 50%. The differential benefit increases made prior to the 65th birthday continue to be paid by the fund but any such increases made after the 65th birthday are not included. However, if the total amount then actually paid by the employer and the fund combined, falls below the statutory minimum, the difference between that total and the minimum rate must be paid by the fund. In January, 1978, the minimum rate was raised from $93 to $108, an amount which for the first time exceeded two-thirds of plaintiff’s average weekly wage of $100.53. However, as will be discussed later, the fund claims that under method A the differential rate should be increased by the difference between the employer’s basic rate before the first 5% discount was taken ($69) and the minimum rate of $108 rather than the difference between the amount actually being paid by the fund, viz — the employer’s rate as then discounted ($55.20) — and $108.

Method C, the method espoused by the appeal board majority, is the same as method A except that all incremental increases made during the 10-year period and to which plaintiff would be entitled had he not attained age 65, are added to the fund’s payment, with no reduction in those increases. Under method C, the injured party receives the incremental increases between ages 65 and 75, whereas under method A they are not paid.

Method D was proposed by the appeal board minority. The total amount of benefits to which the claimant is entitled had his 65th birthday not intervened, is first determined. Of this total, the employer pays no more than the employer would have paid on the 65th birthday and is entitled to a 5% reduction each year. The difference between the employer’s amount and the total sum due if claimant’s 65th birthday had not occurred is added to the fund in a percentage equal to 100% minus 5% times the number of birthdays after age 64. Under method D, the claimant receives the incremental increases less 5% of the total amount the first year, 10% the second, etc. Thus, on his 75th birthday, the claimant receives 50% of the compensation which he would have received had he not become 65, rather than 50% of the amount to which he was entitled on his 65th birthday.

The difference between the three methods may be summarized as follows. Under method A, the claimant receives no part of differential benefits paid while claimant is between age 65 and age 75. Under method C, the claimant receives such differential payments in full but the differential benefits due before age 65 are reduced 5% each year. Under method D, the claimant receives the differential payments, less 5% of the total payment the first year had the 65th birthday not occurred, 10% the second year, etc. The respective weekly payments due plaintiff in 1978 under each method is set forth below. The question posed is which of the three methods complies with the statute.

The statutory authority for age 65 reductions is found in MCL 418.357; MSA 17.237(357) which reads:

"Sec. 357. When an employee who is receiving weekly payments or is entitled to weekly payments reaches or has reached or passed the age of 65, the weekly payments for each year following his sixty-fifth birthday shall be reduced by 5% of the weekly payment paid or payable at age 65, but not to less than 50% of the weekly benefit paid or payable at age 65, so that on his seventy-ñfth birthday the weekly payments shall have been reduced by 50%; after which there shall be no further reduction for the duration of the employee’s life. In no case shall weekly payments be reduced below the minimum weekly benefit as provided by this act.” (Emphasis supplied.)

Method D is conspicuously incompatible with the provisions of § 357 — an incompatibility noted in the appeal board majority’s analysis of method D:

"Sec. 357 of the Act states in part: 'payments for each year following his 65th birthday shall be reduced by 5% of the weekly payment paid or payable at age 65.’ (Emphasis added.) It does not state that payments for each year following his 65th birthday shall be reduced by 5% of the total weekly payment payable in a year subsequent to the claimant’s 65th birthday. The statutory reduction is clearly a ñxed sum and is 5% of the payments paid or payable at age 65.” (Emphasis in original.)

Method C is only slightly less conspicuously inconsistent with § 357. That section provides for a fixed sum reduction (viz — the same dollar amount reduction per year) calculated on the weekly payments "paid or payable at age 65”. If differential benefit increases under § 355 are paid after age 65, weekly payments will not have been reduced by 50% at age 75. Only method A complies with the express provisions of the statute. Accordingly, we find that the WCAB erred in applying a different formula in the instant case.

Having approved method A as we have described it we nevertheless find an error in the way it has been calculated by the second injury fund. At page 321, and again in footnote 3, of this opinion we noted that when the minimum rate was raised to $108 in 1978, the fund immediately increased its differential payment to $39 per week, this being the difference between the employer’s basic rate before the first 5% discount was taken ($69) and the 1978 minimum benefit rate of $108. The language in the last sentence of § 357(1) "In no case shall weekly payments (emphasis supplied) be reduced below the minimum weekly benefit as provided in this act” is clear and unambiguous. To us, "weekly payments” means payments actually being made rather than weekly payments made at an earlier date years back when the employee first attained age 65. We believe that a proper application of the statute, and consequently method A, requires the fund to increase its payment by $52.80 — this being the difference between what the employer was actually paying on January 1, 1978, ($55.20) and $108. The employer’s actual payment of $55.20 plus a fund contribution of $52.80 (rather than $39) would total $108.

This brings us to the question of retroactivity which, in our former opinion, we asked the parties and the WCAB to address on remand. At that time we did not know that when the case returned to us we would be approving method A, the method which has always been applied by the fund. Because the fund’s method has been approved except for the fund’s error in computing the amount due in cases where the injured party has attained 65, and since only 31 cases are being reduced, the fiscal problem of correcting past error is de mini mis. Legally, there is no question of retroactivity since this is the first case to construe the method of age-65 reductions required under MCL 418.357; MSA 17.237(357). This is not a case of further development of an old injury or an application for further compensation, thus neither the one-year back rule, MCL 418.833(1); MSA 17.237(833)(1), nor the two-year back rule, MCL 418.381(2); MSA 17.237(381)(2), apply.

In Summary

As to Issue I, we hold that the two-thirds provision of § 351(1) provides an absolute ceiling on differential benefit payments by the second injury fund resulting from increases in the maximum benefits made pursuant to § 355. We do so for the reasons set forth by the WCAB in the opinion on remand. We reject the argument that our holding is totally incompatible with the purpose for which differential benefits were authorized. When the minimum rates exceed the two-thirds limitation, the mínimums become the floor beneath which total payments may not fall. When minimum rates are properly applied, the increase in benefits is substantial. On Issue I the WCAB is affirmed.

As to Issue II, we hold that method A is the only correct formula for calculating benefits for persons who attain age 65, with the correction that the fund is liable for the full dollar difference between the actual benefits then being paid by the employer and the established minimum weekly benefit rate. On Issue II, the WCAB is reversed and the cause remanded for payment by the fund in accordance with this opinion.

Affirmed in part, reversed in part and remanded in accordance with this opinion. No costs, neither party having prevailed in full.

       The unpublished August 9, 1978, opinion affirmed in part and remanded in part a Workmen’s Compensation Appeal Board (WCAB) opinion dated December 21, 1976. As to three issues the WCAB was affirmed: (1) that under MCL 418.357(1); MSA 17.237(357X1) the 5% reduction in benefits commences on the recipient’s 65th birthday, and not on the 66th birthday; (2) differential benefit payments made by the second injury fund before the recipient reaches age 65 are subject to later 5% annual reduction under MCL 418.357(1); MSA 17.237(357X1); (3) Section 357(1) is not unconstitutional as violative of equal protection of the law as to recipients over age 65, or as to totally and permanently disabled recipients over age 65. Plaintiff filed leave to appeal these three issues to the Michigan Supreme Court. The application for leave was denied 405 Mich 835 (1979). On two issues, viz: — the two questions appearing above — the Court remanded to the WCAB which issued its opinion on remand August 28, 1978. This Court retained jurisdiction.

       In our opinion August 9, 1978, ordering remand, request was made that the fund advise the Court as to the number of cases which would be affected by the Court’s eventual decision. In response to this request, the fund stated that as of August 31, 1978, the fund was paying benefits on 1208, of which 721 involved injuries prior to July 1, 1968, and 487 cases involving injury after July 1, 1968. The 721 case claimants are receiving benefits "at the full rate” in accordance with King, supra, and the remaining 487 case claimants are paid subject to the two-thirds limitation until such time as the minimum rate for total disability exceeds the two-thirds limitation. Of the 487 cases, 101 are presently being increased each year to keep the claimant at the § 355 minimum rates. Only 31 cases are being reduced under the § 357 age 65 reduction. Without the § 351(1) two-thirds limitation, the fund estimated that for calendar 1978, the fund’s payments to present claimants would be increased by $360,262.24.

       Prior to plaintiffs 65th birthday, six incremental increases totaling $37 had been made. Plaintiff received all of these, subject to the two-thirds limitation which in plaintiffs case was $31.53. From 1975-1978, incremental increases of $6, $8, $12 and $5 were announced. Under method A none of the 1975-1978 increases are chargeable to the fund.

       On January 13, 1978, the fifth reduction of 5% was made on the compensation payable by the employer ($69) and the compensation payable by the fund ($31.53) on the claimant’s 65th birthday, January 12, 1974. On January 1, 1978, the minimum rate had been raised from $93 to $108. Since the minimum rate of $108 exceeded the total sum which otherwise would be due plaintiff, the minimum rate prevails.

       See footnote 2, supra.