author: Allen, J. J. H. Gillis, P.J.

text:
    PEOPLE v JERRY JOHNSON (AFTER REMAND)
    Docket No. 77-1573.
    Submitted February 9, 1978, at Grand Rapids.
    Decided October 17, 1978.
    Leave to appeal denied, 406 Mich —.
    Jerry R. Johnson was convicted of possession of marijuana with intent to deliver. The defendant appealed. The Court of Appeals remanded to the trial court for a Robinson hearing to determine whether the testimony of a res gestae witness, who was not produced at trial, might have affected the results in the case, 68 Mich App 697 (1976). The missing witness was located and produced for a hearing. After the hearing in Barry Circuit Court, Richard Robinson, J., it was determined that the testimony was merely cumulative and that the defendant was not entitled to a new trial. The defendant appeals, alleging that the trial court erred in ruling that the testimony of the witness was cumulative. Held:

    The defendant is entitled to a new trial since it is quite clear that the testimony of this witness may well lead to a different verdict.
    Reversed and remanded.
    J. H. Gillis, P.J., dissented. He would hold that the trial court’s determination was correct because the testimony of the witness offered no further enlightenment as to the transaction in question. He would affirm.
    Opinion op the Court
    1. Witnesses — Criminal Law — Res Gestae Witnesses — Failure to Produce Witness — New Trial — Robinson Hearing.
    A defendant is entitled to a new trial based upon the prosecution’s failure to produce a res gestae witness at trial where, in the defendant’s initial appeal, the Court of Appeals remanded to the trial court to hold a Robinson hearing, at which the formerly missing witness testified, and the Court of Appeals is now convinced that the witness’s testimony is clearly more than cumulative and may well lead to a different verdict at a new trial.

      References for Points in Headnotes
    [1, 2] 58 Am Jur 2d, New Trial §§ 41,169,171, 179.
    81 Am Jur 2d, Witnesses § 2.
    [3] 21 Am Jur 2d, Criminal Law §§ 349, 351-353.

      Dissent by J. H. Gillis, P. J.
    2. Witnesses — Criminal Law — Res Gestae Witnesses — Failure to Produce Witness — Robinson Hearing — New Trial.

      A defendant is not entitled to a new trial, based on the prosecution’s failure to produce a res gestae witness at trial, where the trial court, subsequent to trial, held a Robinson hearing at which the missing witness testiñed, and a careful review of the record supports the trial court’s determination that the witness’s testimony offered no further enlightenment as to the transaction in question other than the testimony originally presented at the defendant’s trial.

    3. Witnesses — Criminal Law — Constitutional Law — Privilege Against Self-Incrimination.

      It is improper for the prosecution or defense to call a witness to testify where it is known before-hand that the witness is going to assert his Fifth Amendment privilege against self-incrimination and refuse to answer questions.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gary R. Holman, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Thomas C. Nelson, Assistant Attorney General, of counsel), for the people.

      Wickett, Erickson, Bartl & Haslett, P.C., for defendant on appeal.
    Before: J. H. Gillis, P.J., and R. B. Burns and Allen, JJ.
   Allen, J.

On October 31, 1974, defendant was convicted by a jury in Barry County Circuit Court of possession of marijuana with intent to deliver, contrary to MCL 335.341(1)(c); MSA 18.1070(41)(l)(c). The case was subsequently appealed to this Court, People v Jerry Johnson, 68 Mich App 697; 243 NW2d 715 (1976), and remanded for a hearing pursuant to People v Robinson, 391 Mich 555; 218 NW2d 1 (1974). The record reveals that the prosecution failed to produce a res gestae witness whose testimony could have been relevant to important issues disputed at trial.

Upon remand, the missing res gestae witness was located and a hearing was held for the purpose of taking his testimony on September 3, 1976. After the hearing, the trial court ruled that the missing witness’s testimony was merely cumulative and, hence, defendant was not entitled to a new trial. Defendant appeals, contending that the trial court erred in ruling that the testimony of the missing witness was cumulative.

We agree with defendant. At the hearing upon remand the formerly missing res gestae witness invoked the Fifth Amendment on four occasions. On key questions his testimony was evasive. The transcript is illustrative:

"Q. [Mr. Wickett, defense counsel] It’s very simple. Question: You were there Sunday. Did you see that bag of marijuana there at that time?
"A. Mr. Wickett, I already asked you once. I said I really would have to advise my attorney over this case, because it’s getting involved.
"THE COURT: Mr. Magnum, I don’t think that your answer to that question would incriminate you, so I direct you to answer.
"THE WITNESS: Well, I think I have my own rights too, and to an attorney don’t I?”
"Q. Do you know how much that cost?
"A. Well —
"THE COURT: Again, your answer to this possibly could' incriminate, so I don’t know, so I instruct you again that you may not answer.
"THE WITNESS: I ain’t going to answer that.
"Q. (By Charles Wickett) Did you contribute any money towards its purchase? Again you should ask the Judge.
"THE COURT: Again, your answer might tend to incriminate you so have that in mind before you answer.
"THE WITNESS: I am not answering no more questions.”

We are convinced — and strongly so — that had the jury heard at trial the same testimony as the witness gave at the Robinson hearing, had the jury viewed and heard the witness’s evasiveness on the key question of the transaction forming the basis for the conviction, had defense counsel been able to impeach the witness for a prior conviction of receiving stolen property, the jury verdict may well have been different. Because the witness was not called by the prosecution the jury did not hear the testimony. In effect, the defendant was denied a fair trial. This being so, and but for People v Giacalone, 399 Mich 642, 645; 250 NW2d 492 (1977), the proper procedure in this case would be a new trial.

Does Giacalone preclude a new trial? The people argue that the answer is "yes” since Giacalone holds that where either the prosecution or defense knows a witness will assert his Fifth Amendment rights it is error to call such witness.

"The American Bar Association standards relating to the prosecution and defense functions provide that it is unprofessional conduct for a prosecutor or a lawyer representing a defendant
" — 'knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury to offer inadmissible evidence’;
" — 'to call a witness who he knows will claim a valid privilege not to testify, for the purpose of impressing upon the jury the fact of the claim of privilege.’ ” Giacalone, supra, at 645.

We are not persuaded that Giacalone goes so far. There, the prosecutor called as a witness an accomplice, whom the prosecutor knew in advance would take the Fifth. In that case, assertion of the Fifth Amendment rights was highly prejudicial to the defendant. Here, the situation is reversed since here the witness’s resort to remaining silent, if anything, helps the defendant and prejudices the plaintiff. For these reasons, Giacalone is clearly distinguishable. In our initial opinion in this case, People v Jerry Johnson, 68 Mich App 697; 243 NW2d 715 (1976), we held that the failure to call the missing res gestae witness was sufficient error to mandate remand. Now, on remand, it is quite clear to us that the witness’s testimony may well lead to a different verdict. This being so, the testimony is clearly more than cumulative. Accordingly, we reverse the trial court and remand for a new trial.

Reversed and remanded for a new trial.

R. B. Burns, J., concurred.

J. H. Gillis, P.J.

(dissenting). As pointed out by the majority, on appeal defendant contends, inter alia, that the trial court erred in ruling that the testimony of the missing witness was cumulative.

During his first appeal to this Court, defendant argued that the testimony of the missing witness was important to his defense for two reasons. First, the missing witness might have been able to testify about how the marijuana came to be in defendant’s house trailer since he had visited the trailer on the day previous to the police raid. Also, during the raid some marijuana was found in the missing witness’s automobile. Second, the missing witness could have been the secret police informant who had provided the police with information concerning the marijuana found in defendant’s trailer. Defendant had indicated a desire to put forth an entrapment defense if the police informant could be located.

This Court recognized the materiality of defendant’s arguments and stated:

"If the witness is produced, and, after hearing his testimony, the court is at that time convinced that it is merely cumulative, then defendant Jerry Johnson’s conviction will be affirmed. If the witness is produced, and, after hearing his testimony, the court is convinced that it contains new evidence of a material nature, then a new trial is ordered as to defendant Jerry Johnson.” People v Jerry Johnson, 68 Mich App 697, 702-703; 243 NW2d 715 (1976).

The circuit court’s opinion, which concluded that the missing witness’s testimony was cumulative, summarized the witness’s testimony as follows:

"That on January 31, 1974, he was in defendant’s home at the time the officers arrived and also present were the defendant, defendant’s wife, Dawn Johnson, Marty Warner and Warner’s wife, Mary Sue Warner; that witness had gone there on business; that he did not recall what the officers said while he was present; that the officers came in, went from room to room and found some 'pot’ — he doesn’t know where they found it; that the officers placed this substance on the counter and at the time it was in plastic bags; that he had been in defendant’s home for one-half to one hour before the officers arrived; that the defendant was a friend of witness and that witness went to defendant’s home every day; that the witness owned no part of the marijuana which was seized by the officers nor did he go with the defendant when he acquired it; that he was in defendant’s house on Sunday night before the raid and saw no bag of 'pot’ at that time; that he did not inform the police of the presence of marijuana in defendant’s house. Witness at one point exercised his 5th Amendment right when he was questioned by defense counsel as to his possible involvement in drug related activities.”

A careful review of the record supports the trial court’s determination. The missing witness’s testimony offered no further enlightenment as to the transaction in question other than the testimony originally presented at defendant’s trial. People v Keefe, 69 Mich App 431; 245 NW2d 78 (1976), People v Saunders, 68 Mich App 546; 243 NW2d 679 (1976).

It should also be noted that there is no indication whatsoever that the missing witness had any connection with the investigation which resulted in defendant’s arrest. The missing witness’s use of the Fifth Amendment in response to defense counsel’s questions suggests that he may well have been an accomplice. Additionally, in light of the witness’s assertion of his Fifth Amendment rights, it would be improper for the prosecution or defense to call him to testify at any subsequent trial. People v Giacalone, 399 Mich 642; 250 NW2d 492 (1977).

The other issues raised by defendant do not warrant a discussion by this Court and do not, in my opinion, constitute reversible error.

I would affirm the conviction.

       At the Robinson hearing the witness indicated that he had a prior conviction for receiving stolen property.

       On April 19, 1977, execution of defendant’s sentence to prison for 18 months to 4 years was stayed by the trial court pending the outcome of the present appeal.


source: Caselaw Access Project

author: D. E. Holbrook, Jr., J.

license: Public Domain

text:
    VAN SLOOTEN v LARSEN
    Docket No. 77-1991.
    Submitted February 9, 1978, at Lansing.
    Decided October 17, 1978.
    Limited leave to appeal granted, 405 Mich 824.
    H. John Van Slooten brought an action in Kalkaska Circuit Court against Myrtle Larsen and other defendants to quiet title to certain subsurface oil and gas interests. In 1943 Nellie Gill, owner of 40 acres, conveyed the parcel, excepting and reserving to herself and her heirs all of the oil and mineral rights. The deed conveyance was recorded in 1945. One of the defendants recorded an instrument affecting an interest in the rights reserved to the Gill heirs in 1970, other defendants recorded later. Plaintiff is the successor in interest of the grantee of the deed. Nellie Gill is now deceased and the defendants are her heirs. William R. Peterson, J., ruled that the dormant minerals act is unconstitutional as applied to these defendants because it deprived the defendants of property without due process of law and impaired the obligation of defendants’ contract with plaintiff. Judgment for defendants. Plaintiff appeals. Held:

    1. Oil and gas interests owned by a nonsurface owner may be abandoned if no specified activity occurs within a 20-year period. Defendants failed to file a notice of a claim of interest within 20 years; therefore, title vests in plaintiff as surface owner of the land.
    2. The clear and valid public purpose of the dormant minerals act is to encourage exploration for, and extraction of, needed oil and gas.
    3. The dormant minerals act is not arbitrary or capricious because there is a rational connection between an oil and gas owner’s inaction and the presumption of abandonment.

      References for Points in Headnotes
    [1, 7, 8] 38 Am Jur 2d, Gas and Oil §§ 54, 208-213.
    54 Am Jur 2d, Mines and Minerals §§ 119,147.
    [2] 54 Am Jur 2d, Mines and Minerals §§ 103, 108-110.
    [3, 4, 9] 16 Am Jur 2d, Constitutional Law §§ 292, 296, 301, 368-370.
    [5, 6] 16 Am Jur 2d, Constitutional Law §§ 281-283, 318.
    [6] 54 Am Jur 2d, Mines and Minerals §§ 2, 20, 31, 167.
    [10] 16 Am Jur 2d, Constitutional Law §§ 434, 450-452.
    [11-13] 16 Am Jur 2d, Constitutional Law §§ 298-301.
    [14] 16 Am Jur 2d, Constitutional Law § 495.

      4. Enforcement of the dormant minerals act is a valid exercise of police power.
    5. The dormant minerals act does not unconstitutionally impair the obligations of contract.
    Reversed and remanded.
    1. Mines and Minerals — Dormant Minerals Act — Oil and Gas Interests — Subsurface Owners — Abandonment—Preservation of Interests — Statutes.
    The dormant minerals act provides that when the ownership of subsurface oil and gas interests is severed from the ownership of the surface, the owner of oil and gas rights must do some act, enumerated in the statute, to indicate ownership or the oil and gas interests are deemed abandoned and become the property of the surface owner (MCL 554.291 et seq.; MSA 26.1163[1] et seq.).

    2. Mines and Minerals — Subsurface Interests — Subsurface Owners — Severance of Interests — Reservation in Deed.
    The ownership of subsurface mineral interests may be severed from ownership of the surface by a reservation in a deed.
    3. Constitutional Law — Deprivation of Property — Due Process— Police Power.
    The provision of the constitution declaring that property shall not be taken without due process of law is inapplicable where there is a valid exercise of police power.
    4. Constitutional Law — Police Power — Courts—Statutes—Evaluation of Statutes — Flexibility—Change of Social Conditions.
    Courts have remained flexible in evaluating various statutes in the light of evolving social conditions when determining what constitutes a valid exercise of police power; they have consistently and wisely declined to set any fixed limitations upon subjects calling for the exercise of this power because police power is elastic and is exercised from time to time as varying social conditions demand correction.
    5. Constitutional Law — Police Power — Legislative Judgment— Public Purpose.
    Courts give great deference to the legislative judgment in passing on the validity of police power legislation; generally, there is a two-step inquiry: (1) whether there is a valid public purpose, and if so, (2) is there a reasonable relationship between the remedy adopted and the public purpose.
    6. Mines and Minerals — Dormant Minerals Act — Oil and Gas— Public Purpose — Exploration and Extraction.
    The clear and valid public purpose of the dormant minerals act is to encourage exploration for, and extraction of, needed oil and gas.
    7. Mines and Minerals — Dormant Minerals Act — Oil and Gas— Subsurface Owners — Preservation of Interests — Abandonment — Presumptions.
    The dormant minerals act creates a rebuttable presumption that the owner of subsurface rights has abandoned them if he or she has done nothing to indicate ownership; the presumption is rebutted by the owner doing any one of a number of acts which would indicate ownership sometime within a twenty-year period; the requirements of the act place a minimal burden on the owner of the oil and gas rights to do something to indicate ownership and if the owner fails to carry that minimal burden, the law deems his rights abandoned; in essence, the act creates a statutory conclusive presumption of abandonment which may not be rebutted by other evidence.
    8. Mines and Minerals — Dormant Minerals Act — Oil and Gas— Subsurface Owners — Abandonment of Rights — Statutes— Presumptions — Appeal and Error — Arbitrary or Capricious Standard.
    Conclusive presumptions established by statute are reviewed under the arbitrary or capricious standard; the conclusive presumption that a subsurface owner of oil and gas rights has abandoned those rights by failing to indicate ownership within twenty years, as established by the dormant minerals act, is not arbitrary or capricious because there is a rational connection between an oil and gas owner’s inaction and the presumption of abandonment.
    9. Mines and Minerals — Dormant Minerals Act — Enforcement— Police Power.
    Enforcement of the dormant minerals act is a valid exercise of police power.
    10. Constitutional Law — Contracts—Impairment of Contractual Obligations — Balancing Test.
    The constitutional limitation on a state’s power to impair the obligation of contract is not to be read with mathematical exactness since it is not every modification of a contractual promise that impairs the obligation of contract; in each case where there is an alleged impairment of the obligation of contract, the state’s economic interests and sovereign right to protect the general welfare of the people must be balanced against the constitutional limitation.
    11. Constitutional Law — Police Power — State’s Economic Interests — Interference with Contracts.
    The economic interests of a state may justify the exercise of its continuing and dominant protective power, notwithstanding interference with contracts.
    12. Constitutional Law — Police Power — Contracts.
    A state enactment is not prohibited where there is a valid exercise of a state’s police power which only incidentally affects an existing contract.
    13. Constitutional Law — Dormant Minerals Act — Contracts—Impairment of Contracts.
    The dormant minerals act does not unconstitutionally impair the obligations of contract.
    14. Constitutional Law — Dormant Minerals Act — Equal Protection.
    The equal protection clause does not require the Legislature to choose between addressing every aspect of a problem or not addressing the problem at all; the fact that the dormant minerals act only applies to high priority gas and oil and not other minerals is not a violation of equal protection.

      Thompson, Zirnhelt & Bowron (by Peter J. Zirnhelt and Kenneth T. Bovee), for plaintiff.

      Dreyer & Braeuninger, for defendants.
    Before: N. J. Kaufman, P.J., and D. E. Holbrook, Jr. and D. F. Walsh, JJ.
   D. E. Holbrook, Jr., J.

Plaintiff appeals from the trial court’s ruling that the so-called "dormant minerals act”, MCL 554.291 et seq.; MSA 26.1163(1) et seq., violated both the Federal and state constitutions by depriving defendants of property without due process of law. Further the trial court held that the act impaired the obligation of defendants’ contract with plaintiff contrary to art I, § 10 of the Michigan Constitution of 1963 and art I, § 10 of the United States Constitution.

The case was submitted on stipulated facts and the only issue was the constitutionality of the dormant minerals act. In 1943 Nellie Gill, the owner of 40 acres of land in Kalkaska County, conveyed the parcel "excepting and reserving to herself and her heirs all of the oil and mineral rights * * * ”. The deed of conveyance was recorded on August 7, 1945. Plaintiff, H. John Van Slooten, is the successor in interest of the grantee of the deed. Ms. Gill is now deceased and the defendants are her heirs.

On June 29, 1970, one of the defendants recorded an oil and gas lease. This was the first recorded instrument affecting or asserting an interest in any of the rights reserved to heirs in the Gill deed. After the recording of this initial lease, all of the defendants or their ancestors executed oil and gas leases.

It is undisputed that neither Ms. Gill nor her heirs have recorded any written notice with the county register of deeds nor have any drilling permits been issued in the 20 year period following the recordation of the Gill deed on August 7, 1945, or in the three-year period following September 6, 1963.

The relevance of the three- and 20-year periods can be seen in the statutory sections, MCL 554.291 and 554.292; MSA 26.1163(1) and 26.1163(2).

"554.291 Oil or gas interest in land; abandonment; claim of interest; vesting in surface owner.
"Sec. 1. Any interest in oil or gas in any land owned by any person other than the owner of the surface, which has not been sold, leased, mortgaged or transferred by instrument recorded in the register of deeds office for the county where such interest is located for a period of 20 years shall, in the absence of the issuance of a drilling permit as to such interest or the actual production or withdrawal of oil or gas from said lands, or from lands covered by a lease to which such interest is subject, or from lands pooled, unitized or included in unit operations therewith, or the use of such interest in underground gas storage operations, during such period of 20 years, be deemed abandoned, unless the owner thereof shall, within 3 years after the effective date of this act or within 20 years after the last sale, lease, mortgage or transfer of record of such interest or within 20 years after the last issuance of a drilling permit as to such interest or actual production or withdrawal of oil or gas, from said lands, or from lands covered by a lease to which such interest is subject, or from lands pooled, unitized, or included in unit operations therewith, or the use of such interest in underground gas storage operations, whichever is later, record a claim of interest as hereinafter provided. Any interest in oil or gas deemed abandoned as herein provided shall vest as of the date of such abandonment in the owner or owners of the surface in keeping with the character of the surface ownership.
"Drilling permit. The phrase 'drilling permit’ shall mean a permit to drill an oil or gas well issued by the conservation department or its successor.
"554.292 Preservation of oil or gas interest; recording of interest notice claimed
"Sec. 2. Any interest in oil or gas referred to in this act may be preserved by the recording within the period specified in this act a written notice in the register of deeds office for the county where such interest is located, which notice shall be verified by oath, describe the land and the nature of the interest claimed, give the name and address of the person or persons claiming the interest, and state that such person or persons desire to preserve the interest and do not intend to abandon same: Provided, however, That any person holding such interests for use in underground gas storage operations may preserve his interests, and the interests of any lessor thereof, by recording a single such written notice, defining the boundaries of the underground gas storage field or pool, and the formations included therein, within which said interests are located, without the necessity of describing each separate interest claim therein by said person. The recording of such notice shall operate to preserve such interest from the operation of this act for a period of 20 years thereafter when, if the nondormant character of the interest has not been evidenced by sale, lease, mortgage or transfer by instrument recorded in the register of deeds office for the county where such interest is located, a drilling permit issued, oil or gas actually produced or withdrawn from said lands, or from lands covered by a lease to which such interest is subject, or from lands pooled, unitized, or included in unit operations therewith, or the use of such interest in underground gas storage operations, or a like notice filed, such interest shall be deemed abandoned. In the absence of prior abandonment, such interests may be preserved indefinitely from the operation of this act by the filing of the notices as herein provided or the performance of any of the acts specified herein evidencing nondormancy of the interest within each succeeding 20 year period.
"Nonapplication of act. This act shall not apply to any interest in oil or gas owned by any governmental body or agency thereof.” 1963 PA 42, § 2, eff. Sept. 6.

Essentially the act provides that when the ownership of subsurface oil and gas interests is severed from the ownership of the surface, the owner of oil and gas rights must do some act, enumerated in the statute, to indicate ownership or the oil and gas interests are deemed abandoned and become the property of the surface owner. The trial court found this legislative scheme to be unconstitutional since it deprived the defendants of property without due process of law and impaired the obligations of contract between plaintiff and defendant. On appeal, defendants also claim the statute deprives them of equal protection of the law.

We begin by noting that there is no question that ownership of subsurface mineral interests may be severed from ownership of the surface by a reservation in a deed. Rathbun v Michigan, 284 Mich 521, 534; 280 NW2d 35 (1938). That is the situation in the instant case.

While defendants and the trial court have focused on the issue of whether the statute deprives defendants of property without due process of law, Michigan courts have held that where there is a valid exercise of the police power, the provision of the constitution declaring that property shall not be taken without due process of law is inapplicable. Wyant v Director of Agriculture, 340 Mich 602, 608; 66 NW2d 240 (1954), Grayson v Board of Accountancy, 27 Mich App 26, 30; 183 NW2d 424 (1970), People v Raub, 9 Mich App 114, 118; 155 NW2d 878 (1967). Therefore if the dormant minerals act is a valid exercise of police power, defendants have not been deprived of property without due process of law.

In determining what constitutes a valid exercise of police power, courts have remained flexible in evaluating various statutes in light of evolving social conditions. In Clements v McCabe, 210 Mich 207, 215; 177 NW 722 (1920), the Michigan Supreme Court stated,

"The governmental authority known as 'police power’ is concededly an inherent attribute of State sovereignty. * * * As generally understood it operates in a conceded sphere relating to public safety, order and morals for the protection of health, person and property, which is never questioned; but with changing conditions and requirements of our modern civilization, increasing regulatory and restrictive legislation has expanded its application to new subjects and demands presenting a debatable sphere where compulsory control borders the line of claimed constitutional rights and private freedom of action.”

In People v Raub, supra, at 119, this Court commented on the exercise of the police power,

"Courts have consistently and wisely declined to set any fixed limitations upon subjects calling for the exercise of this power. It is elastic and is exercised from time to time as varying social conditions demand correction.”

In passing on the validity of "police power” legislation, courts give great deference to the legislative judgment. The Supreme Court stated in Carolene Products Co v Thomson, 276 Mich 172, 178; 267 NW 608 (1936),

"The primary determination of public need and character of remedy in the exercise of the police power is in the legislature. Unless the remedy is palpably unreasonable and arbitrary so as needlessly to invade property or personal rights as protected by the Constitution, the act must be sustained. The presumption favors validity and, if the relation between the statute and the public welfare is debatable, the legislative judgment must be accepted.”

There is a two-step inquiry: (1) whether there is a valid public purpose, and if so, (2) is there a reasonable relationship between the remedy adopted and the public purpose?

Public Purpose. The preamble of the act indicates what the act does but does not suggest a purpose. In Mask v Shell Oil Co, 77 Mich App 25; 257 NW2d 256 (1977), another panel recently construed the statute but they did not examine the statutory purpose nor did they pass on the constitutionality of the legislation.

We believe the clear purpose of the statute is to encourage development of valuable oil and gas reserves. The need for developing existing energy sources and creating new sources is even more crucial today than when the act was passed in 1963.

Because the surface owner can never acquire any of the severed oil or gas by adverse possession, legislation was required to prevent unknown and widely scattered heirs from preventing development of subsurface resources by inaction. The formidable task facing the surface owner in locating unknown heirs to valuable oil and gas deposits is outlined in Street, Need for Legislation to Eliminate Dormant Royalty Interests, Vol 42, No 3, Michigan Bar Journal, 49 (March 1963). At least five other states, Florida, Illinois, Indiana, Nebraska and Virginia, have adopted similar legislation. In discussing the rule that prevents the surface owner from adversely possessing the subsurface rights after severance, treatise writers Williams and Meyers point out:

"While the rule appears to be sound enough from the mineral owner’s point of view, it can cause economic inconvenience to the public. Severed minerals cannot be developed until the owners consent to their development. The older the severance (and many go back to the 19th century), the greater the difficulty in locating the owners. The problem is further complicated if the severance was of small undivided mineral interests, as was common for speculation purposes in some areas in the 1920’s. Present development of such areas depends upon obtaining the consent of nearly all the mineral owners, a task that could involve locating thousands of persons.” 1 Williams & Meyers, Oil and Gas Law, Adverse Possession and Trespass, § 224.1, p —

Another commentator has analyzed the problem and has suggested legislative action.

"It is generally accepted to be sound policy for a new oil and gas producing state to facilitate the rapid development of its oil and gas resources. The most effective way such a policy can be implemented is to force the owners of severed oil and gas interest to produce or lose their rights. This policy precludes any attitude of protecting at all costs the owner of a severed oil and gas interest and requires an avowed judicial and legislative intention not to tie up the development of these resources for an indefinite period of time. Thus, in a new oil and gas producing state the public would best be served by allowing the severed oil and gas interest in addition to the surface ownership to enure to an adverse possessor of only the surface after the prescriptive or statutory period has expired.” Silver, "Mines and Minerals-Oil and Gas-What Constitutes Adverse Possession of Severed Mineral Interest by Surface Possessor,” 17 Ala L Rev 126, at 130 (1964). 1 Williams & Meyers, Oil & Gas Law, Adverse Possession and Trespass, § 224.1, fn 8.1, p 345.

It cannot be disputed that the public benefits from the development of oil and gas reserves. Likewise the public is harmed when unknown and uninterested heirs are able to frustrate oil and gas development by their inaction. As noted earlier, courts give great deference to the Legislature in determining the public need. We conclude that the dormant minerals act has a clearly valid public purpose — to encourage exploration for, and extraction of, needed oil and gas.

Relationship Between Remedy and Purpose. It is true that the operation of the statute is not exactly like, though perhaps similar to, a statute of limitation, a recording act or marketable title acts. However, the fact that the Legislature has opted for a unique remedy for a difficult problem is not fatal.

There were several complex problems facing the Legislature in divising a solution. First there was an inherent problem of how to deal with subsurface oil and gas rights which are incapable of physical possession. Of course if the owners of those rights were extracting oil and gas or transferring their rights, there would be no difficulty in ascertaining ownership. The problem arose, however, when the owner or owners of the subsurface rights had done nothing to indicate ownership and this problem was particularly acute when the owners were unknown heirs of former owners.

Essentially the act creates a rebuttable presumption that the owner of the subsurface rights has abandoned them if he or she has done nothing to indicate ownership. The presumption is rebutted by the owner doing any one of a number of acts which would indicate ownership sometime within a 20-year period. The requirements of the act place a minimal burden on the owner of the oil and gas rights to do something to indicate ownership and if the owner fails to carry that minimal burden, the law deems his rights abandoned. In essence, the act creates a statutory conclusive presumption of abandonment. Unlike a common-law presumption, which may not be "conclusive” and may be rebutted by testimony, In re Mercure Estate, 391 Mich 443, 448; 216 NW2d 914 (1974), a statutory conclusive presumption may not be rebutted by other evidence. Pearo v Mackinac Island, 307 Mich 290; 11 NW2d 893 (1943). Conclusive presumptions established by statute are reviewed under the "arbitrary or capricious” standard. In re Mercure Estate, supra at 448. We conclude that there is a rational connection between an oil and gas owner’s inaction for 20 years and the presumption of abandonment, People v Bankston, 78 Mich App 733, 736; 261 NW2d 39 (1977), and that the presumption is not arbitrary or capricious.

We hold that the dormant minerals act is a valid exercise of the police power. By failing to comply with the minimal requirements of the statute, defendants have abandoned their rights.

Defendants raise two other issues with which we deal summarily. Specifically defendants argue the act unconstitutionally impairs the obligation of contract and that the act denies equal protection of the laws.

The United States Supreme Court has stated that the constitutional limitation on a state’s power to impair the obligation of contract is not to be read with mathematical exactness and that "it is not every modification of a contractual promise that impairs the obligation of contract”. El Paso v Simmons, 379 US 497, 506-507; 85 S Ct 577; 13 L Ed 2d 446 (1965), reh den, 380 US 926; 85 S Ct 879; 13 L Ed 2d 831 (1965), Washtenaw Community College Education Ass’n v Board of Trustees of the Washtenaw Community College, 50 Mich App 467, 472; 213 NW2d 567 (1973), Michigan Transportation Co v Secretary of State, 41 Mich App 654, 663; 201 NW2d 83 (1972), lv den, 389 Mich 767 (1973). In each case where there is an alleged impairment of the obligation of contract, the state’s economic interests and sovereign right to protect the general welfare of the people must be balanced against the constitutional limitation. Washtenaw Ass’n, supra at 472, citing El Paso, supra at 508. In another United States Supreme Court case, Home Building & Loan Ass’n v Blaisdell, 290 US 398, 437; 54 S Ct 231; 78 L Ed 413 (1934), the Court stated:

"The economic interests of the State may justify the exercise of its continuing and dominant protective power notwithstanding interference with contracts.”

See Metropolitan Funeral System Ass’n v Commissioner of Insurance, 331 Mich 185, 195; 49 NW2d 131 (1951), Keefe v Oakland County Drain Commissioner, 306 Mich 503, 512-513; 11 NW2d 220 (1943), aff'd 332 US 393; 64 S Ct 1072; 88 L Ed 1346 (1944).

In another case involving a challenge to a statute which allegedly impaired the obligation of contract, this Court stated:

"Where there is a valid exercise of the state’s police power which only incidentally affects the existing contract then the state enactment is not prohibited.”

Brda v Chrysler Corp, 50 Mich App 332, 335; 213 NW2d 295 (1973).

In applying the standards set forth in the above cases, we conclude that the dormant minerals act does not unconstitutionally impair the obligations of contract. We have already concluded that the act represents a legislative judgment that encouraging oil and gas exploration is in the public welfare and that the act is a valid exercise of the state’s police power. The statute does not prevent the defendants from enforcing any contract with the plaintiff, but rather requires defendants to indicate their continuing interest in the oil and gas rights by complying with the minor registration requirements of the statute. Because the act is a valid exercise of the police power which imposes only a minimal burden on defendants, the Legislature has not unconstitutionally impaired the obligation of contract.

Although the defendants did not raise their equal protection argument at trial court level, we address it briefly on appeal. Since the act does not involve any suspect classification, the proper standard of evaluation is the “rational basis” test. Cruz v Chevrolet Grey Iron Division of General Motors Corp, 398 Mich 117, 128-129; 247 NW2d 764 (1976), Schigur v Secretary of State, 73 Mich App 239; 251 NW2d 567 (1977). The defendants argue that the act denies equal protection because it applies only to gas and oil and not other minerals. We disagree. The Legislature has placed a high priority on development of oil and gas. Perhaps in the future the need for other minerals may be as great as the current need for oil and gas and at that time special legislation may be enacted. However, the equal protection clause does not require the Legislature to choose between addressing every aspect of a problem or not addressing the problem at all. Manistee Bank & Trust Co v McGowan, 394 Mich 655, 672; 232 NW2d 636 (1975). There is a rational basis between the legislative policy of encouraging oil and gas development and the statutory scheme adopted to carry out that policy. Further the act treats all those similarly situated equally; all owners of severed oil and gas rights run the risk of abandoning their rights if they do not comply with the statutory requirements. Defendants have not been denied equal protection of the laws.

We hold the dormant minerals act, MCL 554.291 et seq.; MSA 26.1163(1) et seq., to have a legitimate public purpose, to be a valid exercise of the police power and to be constitutional. In view of our disposition we need not address the other issue raised by plaintiff.

Reversed and remanded. No costs, constitutionality of a statute being involved.

       "AN ACT to provide for the termination of dormant oil and gas interests in land owned by persons other than the owners of the surface and for the vesting of title to same in the surface owners in the absence of the filing of a notice of claim of interest within a specified period of time.”

        See generally, 1 Williams and Meyers, Oil and Gas Law, Adverse Possession and Trespass, § 224.1, p 344.

       FSA § 704.05.

       Smith-Hurd Ill Ann Stat, § 30:197-30:198.

       Ind Code of 1971, § 32-5-11-1 to § 32-5-11-8.

       Rev Stat Neb 1943, § 57-228 to § 57-231.

       Va Code, § 55-154 to § 55-155. Held constitutional in Love v Lynchburg National Bank & Trust Co, 205 Va 860; 140 SE2d 650 (1965).


author: D. E. Holbrook, P.J. M. F. Cavanagh, J.

text:
    LOCAL 1917, METROPOLITAN COUNCIL NO. 23, AFSCME v BOARD OF COMMISSIONERS OF WAYNE COUNTY
    Docket No. 77-2257.
    Submitted February 14, 1978, at Detroit.
    Decided October 17, 1978.
    Leave to appeal applied for.
    In December 1974 an examination was given by the Wayne County Civil Service Commission for the position of communications supervisor in the Wayne County. Sheriffs Department. A collective bargaining agreement which expired in June 1974 contained no promotional criteria for the position of communications supervisor. Local 502-M, National Union of Police Officers, AFL-CIO, which represents nonsupervisory employees in the sheriffs department, and the county were unable during 1974 to agree on the terms of a new contract, and had submitted the matter to compulsory arbitration pursuant to statute. In April 1975 the arbitration panel awarded a new labor agreement, and in July 1975 two of the arbitrators ruled that all items in the April award were retroactive to July 1, 1974. The new contract contained promotional criteria for the communications supervisor position different from the criteria which had been used for the December 1974 examination. Local 502-M filed a grievance complaining that if the new contract were given retroactive effect, then the examination was given in violation of the contract, and that more employees were eligible to take the examination. The grievance was processed to arbitration and the arbitrator’s award ordered that a new examination be given, and the county prepared to do so. Local 1917, Metropolitan Council No. 23, American Federation of State, County and Municipal Employees, which represented two employees who had been promoted to communications supervisor positions as a result of the December examination, filed an action against the Board of Commissioners of Wayne County, the Wayne County Civil Service Commission, Local 502-M, and William Lucas, the Wayne County Sheriff, to enjoin the county from administering an examination which interfered with the appointments of the two employees. The county defendants filed a crossclaim against Local 502-M, alleging that the arbitration panel was without authority to grant retroactive application of noneconomic terms of a labor agreement. The county moved for summary judgment on the crossclaim, and the Wayne Circuit Court, Joseph A. Moynihan, Jr., J. granted the summary judgment. Local 502-M appeals, alleging that the arbitration panel did have the power to order retroactivity of all terms of the arbitration award, both economic and noneconomic. Held:

      References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes §§ 145, 146, 155, 156, 300.
    [2, 3, 5, 7] 48 Am Jur 2d, Labor and Labor Relations §§ 1196, 1197, 1401.
    [4, 6] 48 Am Jur 2d, Labor and Labor Relations §§ 1191, 1194, 1195.
    [7] 73 Am Jur 2d, Statutes §§ 211, 212.

      The grant of the summary judgment was proper. The Legislature, when it enacted the statute providing for compulsory arbitration of labor disputes involving public police and fire departments, did not intend to give arbitration panels the power to grant retroactivity to noneconomic provisions.
    Affirmed.
    M. F. Cavanagh, J., dissented. He would hold that the issue of retroactivity, having been raised in an employer’s counterclaim in an action by the union to enjoin enforcement of a grievance arbitration award, was not properly before the court. However, the issue having been addressed by the court, Judge Cavanagh would hold that retroactivity of the promotional criteria was a mandatory subject of bargaining and thus within the arbitration panel’s jurisdiction. The fact that the Legislature did not mention retroactivity of noneconomic terms, while it did provide a limit on the retroactivity of economic terms, does not necessarily mean that the Legislature intended not to empower arbitration panels to grant retroactivity of noneconomic terms. He would reverse.
    Opinion of the Court
    1. Statutes — Construction—Intent of Legislature.
    The construction of any statute is for the court and the purpose of the court in interpreting a statute is to give effect to the legislative intent.
    2. Labor Relations — Arbitration and Award — Police and Fire Departments — Statutes—Noneconomic Benefits — Retroactivity.
    The statute which provides for arbitration of contract disputes in the case of public police and fire departments, while it grants an arbitration panel broad powers to settle a dispute, does not include, and was not intended by the Legislature to include, the power to grant retroactivity to noneconomic benefits (MCL 423.231 et seq.; MSA 17.455[31] et seq.).

    Dissent by M. F. Cavanagh, J.
    3. Labor Relations — Arbitration and Award — Noneconomic Benefits — Retroactivity.

      The issue of whether a statutory arbitration panel in a contract dispute between a county and its sheriffs department employees has the jurisdiction to order retroactivity of a noneconomic beneñt is not properly before the court where the issue was raised by the county as a cross-claim in an action by a union to enjoin enforcement of a grievance arbitration award, and where the county did not Me the cross-claim until 18 months after the county was given notice that all the terms of the new agreement were to be retroactive.

    4. Labor Relations — Subjects of Collective Bargaining — Police Officers — Promotional Qualifications — Arbitration and Award.

      QualiBcations for police ofBcers’ promotions to supervisory positions are a mandatory subject of collective bargaining, and are therefore within the jurisdiction of an arbitration panel where a contract dispute has been submitted to arbitration.

    5. Labor Relations — Public Employment Relations Act — Labor Contracts — Noneconomic Terms — Retroactivity—Arbitration and Award — Statutes.

      The retroactivity of noneconomic terms of a labor contract, like qualiBcations for promotions, is a mandatory subject of collective bargaining under the public employment relations act; therefore the retroactivity of promotional qualiBcations is a mandatory subject of collective bargaining and is within the jurisdiction of a statutory arbitration panel in a dispute between a county and its sheriffs department employees (MCL 423.215; MSA 17.455[15j).

    6. Labor Relations — Arbitration and Award — Public Police Departments — Power of Arbitrators.

      The power of an arbitration panel in a labor contract dispute involving public police ofBcers must be expansively construed in order to protect adequately the employees’ rights because public police ofBcers are forbidden to strike in resisting an order of an arbitration panel.

      7. Labor Relations — Statutes—Construction—Arbitration and Award — Retroactivity.

      The principle of statutory construction that the express mention of one thing implies the exclusion of others does not apply to a statute which provides a limit on the retroactivity of economic terms of an arbitrated public police department labor contract but makes no mention of noneconomic terms because the potential conñict between an arbitration award and a public employer’s budgeting restraints is a special reason for limiting the retroactivity of economic terms, while there are no such potential conñicts in the case of noneconomic terms (MCL 423.240; MSA 17.455[40]).

      Jenkins & Nystrom, P. C. (by Stephen J. Hitchcock), for appellant.

      Aloysius J. Suchy, Corporation Counsel, and Joseph P. Girolamo, Assistant Corporation Counsel, for appellees.
    Before: D. E. Holbrook, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   D. E. Holbrook, P.J.

On June 25, 1976, plain-

tiffs, Metropolitan Council No. 23 and Local 1917, filed a complaint requesting an injunction prohibiting the defendants from cancelling the appointments of two men to permanent communications supervisor positions. On January 28, 1977, defendants and cross-plaintiffs filed a cross-claim asking the court to set aside the July 7, 1975, ruling of the 1969 PA 312 arbitration panel insofar as it relates to retroactivity of noneconomic matters. On March 11, 1977, cross-plaintiffs-appellees then brought a motion for summary judgment.

Cross-defendant-appellant, National Union of Police Officers, Local 502-M, AFL-CIO (hereafter "Local 502”) appeals from an amended order of summary judgment in favor of cross-plaintiffs-appellees, Wayne County Board of Commissioners, Wayne County Civil Service Commission and Sheriff William Lucas (hereafter "the county”) which was granted on June 8, 1977. On appeal, Local 502 challenges the circuit judge’s conclusion that the 1969 PA 312 arbitration panel (hereafter "arbitration panel”) was without authority to grant retroactive application of noneconomic terms in a labor agreement.

The facts in the instant case are not in dispute and are as follows:

On November 11, 1968, and on September 29, 1969, deputy sheriffs' Saulter and Marchand were provisionally appointed to the positions of communication supervisors in the Wayne County Sheriff’s Office. In 1974, the county wanted the positions permanently filled, however, a dispute arose regarding the criteria to be used for selecting communication supervisors.

While the parties were negotiating for a new contract, the president of Local 502 wrote a letter to the Wayne County Labor Relations Board concerning a new contract. For several months prior to August 26, 1974, the Wayne County Labor Relations Board (hereafter the "labor relations board”) attempted to negotiate a compromise with Local 502 and Metropolitan Council No. 23 and Local 1917 regarding the promotional criteria for the position of communication supervisor. The negotiations were unsuccessful and no agreement resulted. On August 26, 1974, the labor relations board instructed the Wayne County Civil Service Commission to "proceed with the examination as previously announced”.

The communication supervisor examination was announced on November 1, 1974, and administered on December 6, 1974. The announcement stated in part as follows:

"Eligible Persons
"This examination is open only to employees of the Sheriffs Office who, at the time of application, have regular status in one of the police classes and have, at least, four years of experience in the Sheriffs Department which includes two years of experience in the Communication Division. ” (Emphasis added.)

Marchand and Saulter placed number one and two on the examination and were certified to the communication supervisor positions on December 13, 1974.

During 1974, Local 502 and the county were unable to agree on the terms of a new labor agreement to replace the 1971-1974 collective bargaining agreement which expired on June 30, 1974. The matter was submitted to compulsory arbitration pursuant to the provisions of 1969 PA 312, MCL 423.231 et seq.; MSA 17.455(31) et seq., (hereafter "Act 312”). The 1971-1974 labor agreement contained no provisions regarding promotional criteria for the job classification of communication supervisor.

Subsequently, on April 1, 1975, the arbitration panel resolved the dispute and awarded a new labor agreement. The agreement contained a provision (article XV) which contained promotional criteria and examination procedures for communication supervisor.

On July 7, 1975, one of the arbitrators issued a letter of clarification wherein he and the union panelist ruled that all items in the April 1, 1975, arbitration award were retroactive with the exception of certain items not relevant to this proceeding. The employer panelist dissented on the following basis:

"In regards to the effective date of contract benefits, it was never the intention of the employer panelist to concur in transfer and promotion provisions being retroactive to July 1, 1974. That, in effect, would open to dispute the transfers and promotions made and accepted by the parties in good faith under the old contract.”

At the time the examination was given, the county was complying with the provisions of its contract covering the 1971-1974 contractual period. The qualifications and criteria specified in the April 1, 1975, arbitration award differed from those on which Marchand and Saulter had been previously promoted.

Local 502 filed a grievance on July 25, 1975, complaining that the examination was given in violation of the arbitrator’s collective bargaining agreement provisions, if given retroactive effect, which increased the number of employees who were eligible to sit for the examination. The grievance was processed to arbitration and on April 16, 1976, an arbitrator issued an award in which a new examination for communication supervisor was ordered.

Pursuant to the last arbitrator’s award, the labor relations board instructed the Wayne County Civil Service Commission to announce and administer a new examination for the position of communication supervisor. Metropolitan Council No. 23 and Local 1917, the collective bargaining representative of Saulter and Marchand, filed this action in Wayne County Circuit Court to prevent the county from administering an examination which interfered with the appointments of Marchand and Saulter.

Subsequently, the county filed a cross-claim against Local 502 on the basis that the Act 312 arbitration panel was without authority to grant retroactive application of noneconomic terms in a labor agreement. On April 13, 1977, a Wayne County Circuit Judge granted the county’s motion for summary judgment on its cross-claim. On June 8, 1977, the order was amended to reflect a final judgment. Local 502 appealed the amended order of summary judgment.

The sole issue raised on appeal is whether the trial court erred as a matter of law by ruling that the arbitration award reached pursuant to the provision of Act 312 may not be employed retroactively with respect to noneconomic issues and also as to employment.

This issue is one of first impression in Michigan and deals with the statute, MCL 423.231 et seq.; MSA 17.455(31) et seq., passed by the Michigan Legislature which provides for compulsory arbitration of labor disputes involving municipal police and fire departments. None of the statute’s sections specifically provide for retroactive application of the noneconomic provisions of arbitrated collective bargaining agreements. Thus, it becomes necessary to determine the Legislature’s intent when it enacted this legislation. By ascertaining this intent, we are able to learn whether or not the Legislature intended an Act 312 arbitration panel to have the power of granting retroactivity to noneconomic benefits. It is well settled that the construction of any statute is for the court and the purpose of the court in interpreting that statute is to give effect to the legislative intent. Aikens v Department of Conservation, 387 Mich 495, 499; 198 NW2d 304 (1972).

The statute, MCL 423.231; MSA 17.455(31), sets out the public policy of the act as follows:

"It is the public policy of this state that in public police and fire departments, where the right of employees to strike is by law prohibited, it is requisite to the high morale of such employees and the efficient operation of such departments to afford an alternate, expeditious, effective and binding procedure for the resolution of disputes, and to that end the provisions of this act, providing for compulsory arbitration, shall be liberally construed.”

Keeping this policy of the Legislature in mind, we proceed to construe the statute.

In Local 1518, American Federation of State, County and Municipal Employees, AFL-CIO, Michigan Council 55 v St Clair County Board of Commissioners, 43 Mich App 342, 344-345; 204 NW2d 369 (1972), the Court interpreted MCL 423.231, et seq.; MSA 17.455(31) et seq. and held that the arbitration panels were granted broad powers to settle contract disputes. However, we hold that these broad powers do not include the power to grant retroactivity to noneconomic benefits. Our decision is based on the following review of the statute.

MCL 423.240; MSA 17.455(40) is the only section of the act which mentions retroactivity. The statute provides:

"A majority decision of the arbitration panel, if supported by competent, material and substantial evidence on the whole record, shall be final and binding upon the parties, and may be enforced, at the instance of either party or of the arbitration panel in the circuit court for the county in which the dispute arose or in which a majority of the affected employees reside. The commencement of a new municipal fiscal year after the initiation of arbitration procedures under this act, but before the arbitration decision, or its enforcement, shall not be deemed to render a dispute moot, or to otherwise impair the jurisdiction or authority of the arbitration panel or its decision. Increases in rates of compensation awarded by the arbitration panel under section 10 may be effective only at the start of the ñscal year next commencing after the date of the arbitration award. If a new ñscal year has commenced since the initiation of arbitration procedures under this act, the foregoing limitation shall be inapplicable, and such awarded increases may be retroactive to the commencement of such ñscal year any other statute or charter provisions to the contrary notwithstanding. At any time the parties, by stipulation, may amend or modify an award of arbitration.” (Emphasis added.)

The Michigan Legislature clearly states that "increases [in rates of compensation] may be retroactive”, but only back to the commencement of the fiscal year, i.e., December 1, 1974. The Legislature specifically speaks of retroactivity but only in regards to economic benefits. The Legislature was conspicuously silent on retroactivity of noneconomic benefits. We hold that had the Legislature intended for arbitration panels acting under the 1969 act to have the power to grant retroactivity to the subject noneconomic provisions, they would have so provided. This Court is constrained to hold that the intent of the Michigan Legislature was not to grant such retroactivity. The trial court properly granted the county’s motion for summary judgment on its cross-claim.

Affirmed, costs to cross-plaintiffs-appellees.

V. J. Brennan, J., concurred.

M. F. Cavanagh, J.

(dissenting). I dissent. In order adequately to explain my reasons for doing so I find it necessary to restate the facts.

This case involves a three-cornered conflict between two unions and an employer. The employer is the Wayne County Board of Commissioners. On November 11, 1968, and September 29, 1969, it provisionally appointed Messrs. Saulter and Marc-hand, respectively, as Sheriff’s Department Communications Supervisors. As supervisory employees their collective bargaining agent was one of the unions here involved, Local 1917, a bargaining unit represented by Metropolitan Council No. 23, AFSCME.

The second union involved in this case is Local 502-M of the National Union of Police Officers, APL-CIO. Local 502 represents deputy sheriffs employed by the Wayne County Board of Commissioners. On June 27, 1974, shortly before the 1971-1974 contract between these two was due to expire, the president of Local 502 wrote to the employer through its collective bargaining agent, the Wayne County Labor Relations Board, and stated Local 502’s intent that all terms of the new agreement, economic and noneconomic, would be retroactive to the expiration of the old agreement. On June 30, 1974, the old agreement expired, and compulsory arbitration commenced pursuant to 1969 PA 312.

During the succeeding months the employer attempted to negotiate a compromise between the two unions regarding criteria for promotion to the position of communications supervisor. No compromise was reached. However, a bilateral "Letter of Understanding” between the employer and Council 23 regarding promotional criteria in general was signed. On August 26, 1974, the employer instructed the Wayne County Civil Service Commission to proceed with an examination for the position of communications supervisor. Among the agreed-upon prerequisites to sit for this examination were four years of experience in the sheriffs department, including at least two years of experience in the communications division. The appellant concedes that these prerequisites complied with the then-expired 1971-1974 contract between the county and its employees.

This examination was not announced until November 1, 1974. In the meantime, the Act 312 compulsory arbitration between the county and Local 502 continued. The arbitration hearing transcript of September 30, 1974, indicates that the county had agreed that the experience qualification for promotion to communications supervisor would be just four years in the department; two years of experience in the communications division was not required.

When the examination announcement was subsequently posted on November 1st, representatives of Local 502 protested to the county, pointing out that the eligibility criteria were more restrictive than had been agreed to by the parties in the ongoing arbitration.

On December 6, 1974, the county proceeded with the examination as announced. Marchand and Saulter placed first and second, respectively, and were certified to the positions on December 13, 1974.

On April 1, 1975, the arbitration panel awarded a new agreement containing the less restrictive promotional qualifications. In a letter of clarification issued July 7, 1975, two of the panel’s three members stated that all items of the award were retroactive to the expiration of the previous agreement.

Shortly thereafter, on July 25, 1975, Local 502 filed a grievance in which it charged that the examination had been given in violation of the collective bargaining provisions, if given retroactive effect. The arbitration of this grievance resulted in an April 15, 1976, order that a new examination be given.

On June 23, 1976, Metropolitan Council No. 23 and Local 1917 brought an action against the county and Local 502 to enjoin giving the new exam. On January 28, 1977, the county filed a cross-claim against Local 502, asking the court to set aside the retroactivity of the interest arbitration award as it related to promotional qualifications, to vacate the grievance arbitration award of a new examination, and to uphold the permanent appointments of Saulter and Marchand. The county had summary judgment on its cross-claim, and Local 502 appealed.

The sole issue addressed by the majority is whether an Act 312 arbitration panel has jurisdiction to make an interest arbitration award with retroactive effect for noneconomic terms. However, before reaching the merits of this issue I must express my concern at the manner in which the cross-plaintiffs and appellees were permitted to raise it.

Section 12 of Act 312 makes specific provision for circuit court review of interest arbitration awards rendered pursuant to the act. However, the challenge to the award in the instant case was not an original action for review under § 12. Here the jurisdictional issue was raised as a cross-claim in an action to enjoin enforcement of a grievance arbitration award. Moreover, this claim was not filed until some 18 months after the county was given explicit notice, through the letter of clarification, that all terms of the new agreement were retroactive.

A very similar case was before this Court in Dearborn Fire Fighters Ass’n, Local 412, IAFF, AFL-CIO v Dearborn, 78 Mich App 59; 259 NW2d 240 (1977). In that case, as here, an Act 312 panel had made an interest arbitration award, and the union had subsequently filed a grievance. The union thereafter brought suit to enforce the grievance arbitration award. The employer attempted to attack the Act 312 panel’s award by a counterclaim in the enforcement suit. In Dearborn Fire Fighters this Court held that the employer’s attack on the interest arbitration award was not "timely and appropriately made in a suit filed to enforce the grievance award”, and refused to consider the issue. The only distinction between Dearborn Fire Fighters and the instant case is that here the employer’s counterclaim attack on the interest arbitration award came in a rival union’s suit to enjoin, rather than compel, enforcement of the grievance arbitration award. I find this difference insignificant. Dearborn Fire Fighters is fully applicable to the instant case, and indicates that it was improper to permit the county to raise this issue as it did.

However, even if the issue has properly come before this Court, I feel that it has been wrongly decided.

It is generally held that, where the challenged provision of an award is a mandatory subject of collective bargaining, it is within the arbitration panel’s jurisdiction. Thus, wages, hours, and conditions of employment, all mandatory subjects of bargaining, are within the arbitration panel’s jurisdiction.

More specifically, and squarely on point in the instant case, this Court has held that the qualifications for police officers’ promotions to supervisory positions are a mandatory subject of collective bargaining:

"The standards and criteria for promotion are a mandatory subject of bargaining between the City and the DPOA under section 15 of PERA and the DPOA must be allowed to bargain with the City about a subject which so vitally affects them.”

It follows that promotional qualifications are within the Act 312 panel’s jurisdiction. But what of the retroactivity of these terms? On this subject we have no direct pronouncement by a court of this state. However, the public employer’s duty to bargain is imposed by § 15 of the Michigan public employment relations act. In determining the scope of the employer’s obligation to bargain under PERA § 15, which was patterned on the National Labor Relations Act § 8(d), Michigan courts may look to and rely on legal precedents developed under the Federal statute. The National Labor Relations Board has held that the employer’s refusal to bargain over the union’s demand for retroactive application of the collective bargaining agreement, including noneconomic provisions, constitutes an unfair labor practice as a violation of the employer’s statutory duty to bargain collectively. I would therefore conclude that the retroactivity of noneconomic terms is a mandatory subject of collective bargaining under PERA § 15.

If collective bargaining is mandatory for promotional qualifications, and for the retroactivity of noneconomic terms in general, then I see no reason why the retroactivity of promotional qualifications should not also be a mandatory subject of collective bargaining. If it is, then it would follow that this subject is within the Act 312 panel’s jurisdiction.

This construction of the panel’s jurisdiction is consistent with our statutory obligation to construe Act 312 "to afford an alternate, expeditious, effective and binding procedure for the resolution of disputes [by] * * * compulsory arbitration.”

In addition, because public police officers are forbidden to strike in resisting an order imposed under Act 312 the arbitrators’ power to grant a complete award must be expansively construed in order to protect adequately the employees’ rights.

The majority’s construction of Act 312 may tend to inhibit speedy and binding resolution of bargaining disputes and to increase the likelihood of labor strife. The incentive to settle disputes is reduced when the employer knows that it can forestall the application of important terms of a new agreement simply by prolonging the bargaining and arbitration procedures as long as possible.

Moreover, from the viewpoint of a policy to prevent strikes among vital public servants, there is no basis for the majority’s distinction between retroactivity of economic and noneconomic benefits. Disputes over certain noneconomic terms may hold as much potential for a strike as those over economic terms. Therefore, the need for arbitrator power to settle these disputes with awards of retroactive effect is equally great.

In § 10 of Act 312 the Legislature provided for a limited retroactivity for arbitration panel awards of economic terms. From the Legislature’s failure to address the retroactivity of noneconomic terms, and from this alone, the majority infers that the Legislature did not intend that Act 312 panels have the power to make retroactive awards of noneconomic terms. The form of the reasoning suggests the familiar principle of statutory construction that the express mention of one thing implies the exclusion of others.

However, if one closely examines the substance of § 10, it will be seen that § 10 provides for a limit on the retroactivity of economic terms. Thus, if the Legislature’s reference only to economic terms implies anything about legislative intent, it is that the Legislature intended to limit the retroactivity of economic terms only, leaving the arbitrators fully empowered to settle noneconomic terms retroactively.

My doubts as to whether the majority has properly applied the constructional rule are confirmed by the rule’s limits:

"The maxim, Expressio unius est exclusio alterius, is applicable only where in the natural association of ideas the contrast between a specific subject matter which is expressed and one which is not mentioned leads to an inference that the latter was not intended to be included within the statute. Accordingly, the maxim is inapplicable if there is some special reason for mentioning one thing and none for mentioning another which is otherwise within the statute, so that the absence of any mention of such other will not exclude it.”

In this case there is an excellent reason for the Legislature to have referred only to the retroactivity of economic terms, and to have limited only their retroactivity. It seems quite likely that § 10 was designed to preclude conflicts between, on the one hand, the public employer’s economic obligations imposed by Act 312 arbitration, and, on the other, the public employer’s budgeting restraints which arise from other statutes or city charters. Because there is no potential conflict between noneconomic terms and such budgeting constraints, it makes perfect sense to limit only the retroactivity of economic terms and not to limit the retroactivity of noneconomic terms. Section 10 does just that.

The county has also argued on this appeal that § 13 of Act 312 precludes retroactive application of noneconomic terms. This statute plainly prohibits only the parties from changing the status quo during arbitration, and furthermore prohibits only unilateral changes by the parties. The statute makes no reference to the arbitration panel, and is not reasonably read as a restriction on the panel’s power.

Finally, I am untroubled in this case by the equities of a retroactive interest arbitration award and ensuing grievance arbitration award. The county held the promotional examination after notification from Local 502 of its intent to seek retroactive application of noneconomic as well as economic provisions, after the county and Local 502 had orally agreed on new qualifications for the examination, after Local 502 had protested the giving of the examination as being contrary to the oral agreement, and at a time when there was no apparent need for immediate appointment of permanent personnel.

For the foregoing reasons I conclude that the lower court erred by ruling that the Act 312 arbitration panel exceeded its jurisdiction by making an interest arbitration award including retroactive noneconomic terms. Because this ruling was the apparent basis of the order entering summary judgment for cross-plaintiffs, I vote to reverse.

       Plaintiff Council 23 is a labor organization representing "public employees” within the meaning of § 2 of the public employment relations act, MCL 423.202; MSA 17.455(2). Plaintiff Local 1917 is affiliated with Council 23 and represents certain supervisory employees, including those in the job classification of communication supervisor, in the Wayne County Sheriff’s Office for purposes of collective bargaining.

       "Huey A. Ferguson, Chairman
      Wayne County Labor Relations Board
      728 City-County Building
      Detroit, Michigan 48226
      "Dear Chairman Ferguson:
      "This letter is in response to your June 18 and June 26, 1974 communications informing our Union of your willingness to extend the present contract forward past the July 1, 1974 expiration date; with the understanding that all economic agreements shall be retroactive to said July 1, 1974.
      "In order that there will be no misunderstanding as to our position on this matter, we fully expect all elements of the new agreement, economic and non-economic, to be fully retroactive to July 1, 1974; and the institution of Act 312 gives us said assurance.
      "We put absolutely no faith in your promise to make even the economic portions of a new contract retroactive to July 1, 1974 in light of our past experience; we are more than willing to lay before you our reasons to mistrust you at the Friday, June 28, 1974 meeting.
      "As previously indicated, we are more than willing to meet with your staff and preferably elected members of your Board in order to negotiate a full agreement without letting a third party do our work for us.
      "Very truly yours,
      "Jamil Akhtar, President”

       The Board of Commissioners had established and authorized the Wayne County Labor Relations Board to represent the Board of Commissioners in collective bargaining relations.

         Local 502 represents the nonsupervisory employees within the Wayne County Sheriffs office.

       MCL 423.231 et seq.; MSA 17.455(31) et seq. Hereinafter "Act 312”.

       MCL 423.242; MSA 17.455(42).

       78 Mich App at 63; 259 NW2d at 242.

       "If the defendant is allowed to successfully challenge the merits of the Act 312 panel’s decision in this case there is nothing to stop defendant from tomorrow ignoring a different provision of the new contract, thereby forcing another grievance proceeding and appeal. The plaintiff could also adopt this tactic and refuse to live up to its side of the agreement. The result would be disaster for the statutory scheme of Act 312.
      "If police and fire fighter strikes are to be avoided, the alternative method of labor negotiation set up by Act 312’s compulsory arbitration scheme must be both expedient and secure. A direct challenge concerning any alleged deficiencies in the arbitration procedure, as allowed by §§ 10 and 12 of the act, is a necessary protection of the rights of the parties, but the challenge procedures are also designed for a quick and binding resolution of all complaints. If a decision of an Act 312 panel is to be 'final and binding upon the parties’, as called for by § 10, a section-by-section review of that decision, as attempted here, must be rejected on policy as well as legal grounds.” 78 Mich App at 66; 259 NW2d at 243.

        Alpena v Alpena Fire Fighters Ass’n, AFL-CIO, 56 Mich App 568, 575; 224 NW2d 672, 676 (1974), lv den, 394 Mich 761 (1975), Roseville v Local 1614, Int’l Ass’n of Firefighters, AFL-CIO, 53 Mich App 547, 558-559; 220 NW2d 147, 153 (1974), lv den, 393 Mich 759 (1974), Local 1518, AFSCME, AFL-CIO, Michigan Council 55 v St Clair County Board of Commissioners, 43 Mich App 342, 345-346; 204 NW2d 369, 370-371 (1972).

       MCL 423.215; MSA 17.455(15).

        Alpena v Alpena Fire Fighters Ass’n, supra, n 5, 56 Mich App at 575; 224 NW2d at 676.

        Detroit Police Officers Ass’n v Detroit, 61 Mich App 487, 497; 233 NW2d 49, 54 (1975), lv den, 395 Mich 756 (1975).

      MCL 423.215; MSA 17.455(15).

        Detroit' Police Officers Ass’n v Detroit, 391 Mich 44, 53; 214 NW2d 803, 807-808 (1974); Roseville v Local 1614, Int’l Ass’n of Firefighters, supra, n 5, 53 Mich App at 551; 220 NW2d at 149.

        Big John Food King, 171 NLRB No. 197; 68 LRRM 1273 (1968), Bergen Point Iron Works, 79 NLRB 1073, No. 143; 22 LRRM 1475 (1948). See also, NLRB General Counsel Administrative Ruling, Case No. SR-1410; 48 LRRM 1428 (1961).

      MCL 423.231; MSA 17.455(31).

       MCL 423.241; MSA 17.455(41).

        Detroit Police Officers Ass’n v Detroit, supra, n 8, 61 Mich App at 491; 233 NW2d at 51.

       MCL 423.240; MSA 17.455(40).

       See 82 CJS, Statutes, § 333, pp 666-670; 73 Am Jur 2d, Statutes, §§ 211-212, pp 405-406.

       82 CJS, Statutes, § 333, p 670 (footnotes omitted).

       See, e.g„ MCL 110.10, 110.12, 110.14, 110.15; MSA 5.1939, 5.1941, 5.1943, 5.1944. See generally, Rehmus, Constraints on Local Governments in Public Employee Bargaining, 67 Mich L Rev 919, 921-928 (1969), McAvoy, Binding Arbitration of Contract Terms: A New Approach to the Resolution of Disputes in the Public Sector, 72 Colum L Rev 1192, 1196-1197 (1972). '

       MCL 423.243; MSA 17.455(43).
      "During the pendency of proceedings before the arbitration panel, existing wages, hours and other conditions of employment shall not be changed by action of either party without the consent of the other but a party may so consent without prejudice to his rights or position under this act.”

       The two men subsequently appointed permanent communications supervisors pursuant to the examination, Marchand and Saulter, were already occupying that position on a provisional basis and had done so for several years.


author: Allen, J.

text:
    DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE v COMMISSIONER OF INSURANCE
    Docket No. 77-2469.
    Submitted March 14, 1978, at Lansing.
    Decided October 17, 1978.
    Defendant, the Commissioner of Insurance, issued an administrative decision and order declaring insurance policy forms which contain named driver exclusion clauses to be in violation of the no-fault insurance act. Plaintiffs, Detroit Automobile Inter-Insurance Exchange, Motor Land Insurance Company and Group Insurance Company of Michigan, filed a petition for review of the commissioner’s decision and order. The Ingham Circuit Court, Michael G. Harrison, J., ordered the commissioner to set aside his withdrawal of approval of such clauses. The commissioner appeals. Plaintiffs cross-appeal challenging the defendant’s authority to make such a decision and also challenging the constitutionality of the defendant’s interpretation. Held:

    The Legislature has, by statute, expressly permitted the exclusion from automobile insurance coverage of a named person. No part of the section of the statute permitting such an exclusion has been impliedly repealed by the no-fault act. There are countervailing public policy considerations favoring named driver exclusions. The Legislature balanced the competing public policy considerations of coverage versus lower costs by retaining within the broad coverage of no-fault the named driver exclusion provisions. The scope of such a named driver exclusion is only for residual liability since personal protection insurance and property protection insurance should be provided by the victim’s own no-fault insurance and the owner of the vehicle driven by the excluded driver remains, by statute, personally liable, thus creating an effective constraint to the use of automobiles by noninsured, excluded drivers.
    Affirmed.
    ■ References for Points in Headnotes
    [1] [No Reference]
    [2, 3, 5] Am Jur 2d, New Topic Service, No-Fault Insurance §§ 18, 20, 23.
    [4] 73 Am Jur 2d, Statutes §§ 145, 146, 155, 156, 300, 396.

      1. Insurance — No-Fault Insurance — Supreme Court.
    The Michigan Supreme Court has recognized the innovative and experimental nature of the no-fault act.
    2. Insurance — Named Driver Exclusions — Liability—Repeal of Statute — No-Fault Insurance — Statutes.
    The Legislature has, by statute, specifically permitted named driver exclusion provisions in automobile insurance policies and has provided that the vehicle owner and others legally responsible for the excluded person remain fully, personally liable; no part of the statute permitting such an exclusion has been repealed expressly or by implication by the no-fault act (MCL 257.1104[2], 500.3009[2]; MSA 9.2804[2], 24.13009[2]).
    3. Insurance — Legislature—Public Policy — No-Fault Insurance —Driver Exclusion Provisions — Countervailing Considerations.
    The Legislature balanced the competing public policy considerations of coverage versus lower costs by retaining within the broad coverage of no-fault the named driver exclusion provisions; there are countervailing public policy considerations regarding named driver exclusion provisions, therefore, such determinations are best left to the Legislature, and the courts will not question the wisdom of the Legislature’s determination.
    4. Statutes — Construction—Primary Rule — Legislative Intent— Ambiguity — Repeals by Implication.
    The primary rule of statutory construction is to determine and effectuate the Legislature’s intent; where a statute is ambiguous, it must be construed consistent with reason; another rule of construction provides that repeals by implication are not favored.
    5. Insurance — Named Driver Exclusions — Residual Liability— Personal Protection Insurance — Property Protection Insurance — Owner’s Liability — Statutes.
    The named driver exclusion provision permitted in an automobile insurance policy is an exclusion only for residual liability; personal protection insurance and property protection insurance should be provided by the victim’s own no-fault insurance; the owner of a vehicle driven by an excluded driver is, by statute, personally liable, thus creating an effective constraint to the use of automobiles by noninsured, excluded drivers (MCL 500.3009[2]; MSA 24.13009[2]).

      Forrest G. Shaw, William H. Morman, and Daniel K. Converse, for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harry G. Iwasko, Jr., and Louis J. Porter, Assistants Attorney General, for defendant.
    Before: Bashara, P.J., and Allen and M. J. Kelly, JJ.
   Allen, J.

For many years plaintiffs provided optional, named driver exclusion provisions for its automobile insurance policies. These exclusions permitted an insured to obtain automobile insurance at rates calculated on the exclusion of a certain person. The excluded person would typically be a high-risk driver in the insured’s household, and the resultant rate without the excluded driver would be considerably less than with the high-risk driver included. The Commissioner of Insurance approved of the named driver exclusion provisions by approving the forms through which the exclusions were provided.

On March 13, 1975, defendant commissioner issued notices of withdrawal of approval of forms which contained such exclusions. After the issue had proceeded through the administrative process, defendant commissioner issued a decision and order on March 2, 1976, which declared that policy forms containing named driver exclusion clauses violated the no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq. The circuit court subsequently found that named driver exclusions did not violate the no-fault act, and, on June 14, 1977, ordered the defendant commissioner to set aside its withdrawal of approval. Defendant commissioner now appeals from the circuit court’s decision. Plaintiffs cross-appeal challenging the defendant commissioner’s authority to make its decision and also challenging the constitutionality of the defendant’s interpretation.

In 1972 the Legislature passed the no-fault automobile insurance act, 1972 PA 294, MCL 500.3101 et seq; MSA 24.13101 et seq. This was a major piece of legislation constituting a fundamental change in the nature of automobile insurance in Michigan. Our Supreme Court has recognized the innovative and experimental nature of the no-fault act. Shavers v Attorney General, 402 Mich 554, 578-579, 615, 627; 267 NW2d 72 (1978).

In pertinent part the no-fault act provides:

"Sec. 3101. (1) The owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance, property protection insurance, and residual liability insurance. Security shall be in effect continuously during the period of registration of the motor vehicle.” MCL 500.3101(1); MSA 24.13101 (1).
"Sec. 3131. Residual liability insurance shall cover bodily injury and property damage which occurs within the United States, its territories and possessions or in Canada. This insurance shall afford coverage equivalent to that required as evidence of automobile liability insurance under the financial responsibility laws of the place in which the injury or damage occurs. In this state this insurance shall afford coverage for automobile liability retained by section 3135.” MCL 500.3131; MSA 24.13131.

Section 3135, MCL 500.3135; MSA 24.13.135, provides for tort liability in certain specified instances, such as noneconomic loss for death or permanent serious disfigurement, intentionally caused harm, and work loss benefits exceeding those provided elsewhere by no-fault.

It is defendant’s position that since the Legislature enacted a comprehensive, compulsory insurance scheme, it would be inconsistent to permit named driver exclusions, as this would force accident victims to obtain a recovery from the personal holdings of those responsible. Defendant contends that the Legislature would not permit a class of drivers, named excluded drivers, to drive totally uncovered by some residual liability insurance. While such a class might have existed before no-fault, that situation was remedied by the requirement of uninsured motorist coverage.

Defendant’s position is appealing until one confronts MCL 500.3009(2); MSA 24.13009(2). That statute expressly permits the exclusion from coverage of a named person, and provides that the vehicle owner and others legally responsible for the excluded person remain fully, personally liable. Section 3009(1) (which provides for minimum policy limitations) and (2) were adopted in December 1971, 1971 PA 210, less than a year before the no-fault scheme was adopted. The named driver exclusion provision was adopted by the Legislature in response to a Court decision, Allstate Ins Co v Motor State Ins Co, 33 Mich App 469; 190 NW2d 352 (1971), which in May, 1971, had held such exclusions to be contrary to public policy and void. Thus, the Legislature specifically permitted named driver exclusions. No part of § 3009 was expressly repealed by the no-fault act, and § 3009(1) is expressly referred to in § 3103 of the no-fault act.

Since the adoption of no-fault, the Motor Vehicle Accident Claims Act, MCL 257.1101 et seq.; MSA 9.2801 et seq. has been amended, 1975 PA 322, by the Legislature, and § 4(2), MCL 257.1104(2); MSA 9.2804(2), of this act alludes directly to named driver exclusions:

"The certificate [of insurance] shall state the name of each person named on the policy, policy declarations or declaration certificate whose operation of the vehicle causes the liability coverage to become void.”

The 1975 amendment also added a section making the act inapplicable to accidents after January 1, 1976, MCL 257.1133; MSA 9.2833, but there was no mention of repealing 3009(2).

The history of and concerning § 3009 makes defendant’s contention that § 3009(2) was impliedly repealed by the passage of no-fault difficult to accept. The passage of § 3009(2) was a legislative response of major significance and took place within a year of the passage of no-fault. Furthermore, the no-fault act, itself a major legislative undertaking, refers to § 3009(1), albeit not to § 3009(2). MCL 500.3103; MSA 24.13103.

Defendant counters with the argument that the section was retained to cover motorcyclists who were not initially covered by no-fault. This argument is somewhat weakened in light of the approval of MCL 500.3103; MSA 24.13103, in early 1976, 1975 PA 329. But it is true that § 3103 does not require residual liability coverage for motorcyclists (who have a far lower potential for incurring such liability to others than an automobile driver), and it is arguable that § 3009(2) and § 4(2) of the Motor Vehicle Accident Claims Act, MCL 257.1104(2); MSA 9.2804(2), have been retained to cover residual liability for excluded drivers of motorcycles.

Ultimately, the strongest argument defendant has to support its theory of implied repeal of § 3009(2) is based on public policy. That is, named driver exclusions are inconsistent with a policy of compulsory insurance designed to provide accident victims with assured, adequate, and prompt reparation for certain economic losses. The exclusions are intended to reduce premiums, and the excluded drivers are generally the highest risk drivers. Once excluded, these drivers would have to pay the highest rates for residual liability insurance, and this would not encourage such drivers to maintain their own insurance.

On the other hand, named driver exclusions do bring the cost of insurance down for some automobile owners and thereby make insurance feasible when it would otherwise be prohibitively expensive. Such a situation might exist where a family has a teenage driver with a poor driving record. Hence, there are countervailing policy considerations favoring named driver exclusions. In this regard the scope of the exclusion should be noted. It is an exclusion only for residual liability — personal protection insurance and property protection insurance should be provided by the victim’s own no-fault insurance. Moreover, § 3009(2) expressly makes the owner of the vehicle driven by the excluded driver personally liable, thus creating an effective constraint to the use of automobiles by noninsured, excluded drivers. In any event, even residual liability coverage has limits beyond which a victim must rely upon the personal assets of the individual responsible for the accident.

The primary rule of statutory construction is to determine and effectuate the Legislature’s intent. Shulevitz v Dept of Treasury, 78 Mich App 655; 261 NW2d 31 (1977). If a statute is ambiguous, it must be construed consistent with reason. Stover v Retirement Board of the City of St. Clair Shores Firemen and Police Pension System, 78 Mich App 409; 260 NW2d 112 (1977). Defendant’s position is especially difficult to accept in the face of the rule of construction that repeals by implication are not favored. Ottenwess v Hawkeye Security Ins Co, 84 Mich App 292, 298; 269 NW2d 570 (1978).

We find that the Legislature balanced the competing policy considerations of coverage versus lower costs by retaining within the broad coverage of no-fault the named driver exclusion provisions. Given the legislative history surrounding the statute, an express repeal or modification of § 3009(2) would otherwise be expected. Seldom is the legislative process without compromise. Defendant’s strongest argument is based on policy considerations opposed to which are other, equally weighty policy considerations. Such determinations are best left to the Legislature, and the courts will not question the wisdom of the Legislature’s determination. City of Lansing v Twp of Lansing, 356 Mich 641, 648; 97 NW2d 804 (1959), Melia v Employment Security Comm, 346 Mich 544, 561; 78 NW2d 273 (1956). The no-fault act is experimental and innovative, and in creating this scheme of insurance the Legislature was faced with difficult policy issues. The question of named driver exclusions was one such issue.

In passing we note that several cases have involved, in one way or another, consideration of § 3009(2) since the passage of no-fault. While apparently none of these cases has directly considered the issue in the instant case, all of the cases have proceeded on the unquestioned assumption that § 3009(2) remains in force. See Detroit Automobile Inter-Insurance Exchange v Van Slyke, 82 Mich App 237; 266 NW2d 771 (1978), Allstate Ins Co v DeFrain, 81 Mich App 503; 265 NW2d 392 (1978), Gurwin v Alcodray, 77 Mich App 97; 257 NW2d 665 (1977), State Farm Fire & Casualty Co v Peckham, 74 Mich App 551; 254 NW2d 575 (1977), Allstate Ins Co v Detroit Automobile Inter-Insurance Exchange, 73 Mich App 112; 251 NW2d 266 (1976), Citizens Mutual Ins Co v Central National Ins Co of Omaha, 65 Mich App 349; 237 NW2d 322 (1975).

Affirmed. Our decision makes it unnecessary to consider plaintiffs’ counterclaim. No costs, a public question being involved.

       This coverage was mandated by MCL 500.3010; MSA 24.13010, which has since been repealed by the assigned claims provisions of no-fault, MCL 500.3171; MSA 24.13171, 1972 PA 345. Thus, defendant concludes that § 3009(2) was impliedly repealed by the passage of the no-fault act.

       The basic no-fault provisions were approved as of October 31, 1972. 1972 PA 294.