Docket No. 50, Calendar No. 45,429.

335 Mich. 339 (1952)

55 N.W.2d 857


Supreme Court of Michigan.

Decided December 9, 1952.

Attorney(s) appearing for the Case

Robinson, Robinson & Robinson, for plaintiff.

Frank G. Millard, Attorney General, Edmund E. Shepherd, Solicitor General, and John J. Long, Assistant Attorney General, for Unemployment Compensation Commission.


The defendant commission, on October 22, 1948, issued a determination that plaintiff was at a time therein stated, an employer within the provisions of the Michigan unemployment compensation act [Michigan employment security act], CL 1948, § 421.1 et seq. (Stat Ann 1950 Rev § 17.501 et seq.), and made a determination of liability from which an appeal was taken to a referee. The referee on March 3, 1949, affirmed the commission's determination. On appeal to the appeal board of the commission, that board on August 30, 1949, affirmed the decision of the referee. The decision of the board was reviewed by the circuit court on certiorari proceedings. The circuit court on December 15, 1951, reversed the decision of the appeal board. The circuit court held that subsection (7) of section 42 of the act, CL 1948, § 421.42 (Stat Ann 1947 Cum Supp § 17.545), was an unlawful delegation of legislative power by the State legislature to congress and therefore unconstitutional.

Before the circuit court, plaintiff acknowledged his liability under the act if said section 42, subs 7 is held to be constitutional. We need therefore consider only the constitutionality of said section 42, subs 7.

Section 42, subs 7 was as follows, as the section stood at the period in question:

"Notwithstanding the provisions of subsection (6) of this section, any services performed for an employing unit, with respect to which such employing unit is liable for any Federal tax against which credit may be taken for contributions required to be paid into a State unemployment compensation fund, shall be deemed to constitute employment for the purposes of this act, but only to the extent that such services constitute employment with respect to which such Federal tax is payable."

The trial judge so construed section 42, subs 7 as to make Federal enactments or interpretations enacted or adopted after the enactment of said section 42, subs 7, to affect future liability of employers under the Michigan statute. It would seem the trial judge construed the words, "is liable" to mean, is or shall hereafter become liable under future acts; the words "is payable" to mean, is now payable or shall hereafter be made payable by future acts of congress or future interpretations of acts of congress.

We note that the word "is" sometimes is construed to include the meaning "shall be;" but this of course is exceptional and evidently depends on the context, the nature of the whole situation, and the rules of construction. For cases where "is" has been construed to include futurity, see Hammond v. Buchanan, 68 Ga. 728, 731; Providence & Worcester R. Co. v. Yonkers Fire Ins. Co., 10 R.I. 74, 77; King Arthur Restaurant v. London Terrace, Inc. (NYSup), 73 N.Y.S.2d 663, 664, and other cases cited in 22 Words and Phrases, 686, and 22 Words and Phrases Supp 190.

If the trial judge is correct in his construction of section 42, subs 7, and if consequently the legislature is to be considered as intending to enact that future acts of congress or rulings by Federal authorities could change the liability of a Michigan employer, then the Michigan act in question would to that extent be an unconstitutional delegation of legislative authority to congress or some Federal authority. Minor Walton Bean Co. v. Unemployment Compensation Commission, 308 Mich. 636, 653, 654.

"Even if the law could be construed in two ways, one consistent with the constitutionality, and the other inconsistent therewith, the former will be considered as the one presumptively intended by the legislature." People v. Dubina, 304 Mich. 363, 369 (145 ALR 886). See cases there cited.

Following the rule just cited from People v. Dubina, we construe the words in section 42, subs 7, "is liable" and "is payable," to mean liable and payable as the Federal law stood enacted and construed, at the time said section 42, subs 7 of the Michigan statute was enacted.

As thus considered, we find section 42, subs 7, a valid enactment, adopting by reference the Federal laws and constructions thereof in existence when the Michigan act was enacted.

The judgment of the trial court is reversed. The case is remanded to the trial court with instructions to enter judgment in accordance with this opinion, and to remand the matter to the defendant commission for such further action as shall be found necessary. Costs to defendants.



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