The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5417

December 20, 1978

CONSTITUTION OF MICHIGAN:

Art 9, Secs. 6 and 31 (Tax Limitation)

TAXATION:

Tax Limitation

Const 1963, art 9, Sec. 6 as amended by Proposal E prohibits municipalities from levying ad valorem taxes to pay the principal and interest for (1) issuance of bonds, (2) issuance of other evidences of indebtedness or (3) agreements to pay assessments of contractual obligations in anticipation of which bonds are issued without an affirmative vote of a majority of the electors.

Dr. Gerald Miller

Director

Department of Management & Budget

Cass Building

1st Floor

Lansing, Michigan 48909

In view of the adoption of Proposal E by the voters at the November 7, 1978, General Election, you have requested my opinion relative to the following question:

Does the wording of Secs. 6 and 31 of Proposal E allow the issue of bonds with a pledge of full faith and credit after the effective date of this amendment without a vote of the people when such bonds are authorized under statutes existing before the effective date of this act whose provisions did not require a vote of the people and allow the pledge of unlimited taxing authority?

Proposal E, popularly referred to as the 'Headlee Amendment' added Secs. 25, 26, 27, 28, 29, 30, 31, 32, 33 and 34 to Const 1963 and amended Sec. 6 of Const 1963, art 9.

Const 1963, art 9, Sec. 6, as so amended, with the changes noted in capital letters, provides:

'Sec. 6. Except as otherwise provided in this constitution, the total amount of general ad valorem taxes imposed upon real and tangible personal property for all purposes in any one year shall not exceed 15 mills on each dollar of the assessed valuation of property as finally equalized. Under procedures provided by law, which shall guarantee the right of initiative, separate tax limitations for any county and for the townships and for school districts therein, the aggregate of which, shall not exceed 18 mills on each dollar of such valuation, may be adopted and thereafter altered by the vote of a majority of the qualified electors of such county voting thereon, in lieu of the limitation hereinbefore established. These limitations may be increased to an aggregate of not to exceed 50 mills on each dollar of valuation, for a period of not to exceed 20 years at any one time, if approved by a majority of the electors, qualified under Section 6 of Article II of this constitution, voting on the question.

'The foregoing limitations shall not apply to taxes imposed for the payment of principal and interest on bonds APPROVED BY THE ELECTORS or other evidences of indebtedness APPROVED BY THE ELECTORS or for the payment of assessments or contract obligations in anticipation of which bonds are issued APPROVED BY THE ELECTORS, which taxes may be imposed without limitations as to rate or amount; OR, SUBJECT TO THE PROVISIONS OF SECTIONS 25 THROUGH 34 OF THIS ARTICLE, to taxes imposed for any other purpose by any city, village, charter county, charter township, charter authority, or other authority, the tax limitations of which are provided by charter or by general law.

'In any school district which extends into two or more counties, property taxes at the highest rate available in the county which contains the greatest part of the area of the district may be imposed and collected for school purposes throughout the district.'

[the amendatory language is capitalized]

Const 1963, art 9, Sec. 31 as added, provides:

'Sec. 31. Units of Local Government are hereby prohibited from levying any tax not authorized by law or charter when this section is ratified or from increasing the rate of an existing tax above that rate authorized by law or charter when this section is ratified, without the approval of a majority of the qualified electors of that unit of Local Government voting thereon. If the definition of the base of an existing tax is broadened, the maximum authorized rate of taxation on the new base in each unit of Local Government shall be reduced to yield the same estimated gross revenue as on the prior base. If the assessed valuation of property as finally equalized, excluding the value of new construction and improvements, increases by a larger percentage than the increase in the General Price Level from the previous year, the maximum authorized rate applied thereto in each unit of Local Government shall be reduced to yield the same gross revenue from existing property, adjusted for changes in the General Price Level, as could have been collected at the existing authorized rate on the prior assessed value.

'The limitations of this section shall not apply to taxes imposed for the payment of principal and interest on bonds or other evidence of indebtedness or for the payment of assessments on contract obligations in anticipation of which bonds are issued which were authorized prior to the effective date of this amendment.' (Emphasis added)

While Const 1963, art 9, Sec. 6 as amended is quite clear, an ambiguity may be created by the above-underlined language in Const 1963, art 9, Sec. 31 as added by Proposal E.

When interpreting the Constitution it is necessary to consider the circumstances surrounding the adoption, and the purpose sought to be accomplished thereby. Schwartz v Secretary of State, 393 Mich 42, 47; 222 NW2d 517 (1974); State Highway Commission v Vanderkloot, 392 Mich 159, 179; 220 NW2d 416 (1974); Michigan Farm Bureau v Secretary of State, 379 Mich 387, 390-391; 151 NW2d 797 (1967). Moreover, Constitutional provisions relating to the same subject matter must be construed together. Jones v City of Ypsilanti, 26 Mich App 574, 579; 182 NW2d 795 (1970); Thomas v City of Lansing, 315 Mich 566, 571; 24 NW2d 213 (1946).

With respect to construing constitutional amendments, the Supreme Court stated in City of Jackson v Commissioner of Revenue, 316 Mich 694, 26 NW2d 569 (1947) that a court should have regard to the circumstances leading to their adoption and the purpose sought to be accomplished.

Proposal E was widely publicized in the news media as a means whereby limitations would be imposed on the taxing power of certain units of government. Further, voters were confronted with the following ballot description:

'PROPOSAL FOR TAX LIMITATION.

'The proposed amendment would:

'1. Limit all state taxes and revenues, excepting federal aid, to its current proportion of total state personal income and to provide for exception for a declared emergency.

'2. Prohibit local government from adding new or increasing existing taxes without voter approval.

'3. Prohibit the state from adopting new or expanding present local programs without full state funding.

'4. Prohibit the state from reducing existing level of aid to local governments, taken as a group.

'5. Require voter approval of certain bonded indebtedness.' (Emphasis added)

Hence, the circumstances surrounding the adoption of Proposal E make the intent of the voters manifest.

In order to properly consider the amendatory language to Section 6, a brief historical review is helpful.

Prior to 1932 the power of taxation for public purposes was deemed to be inherent in the government and was without general limitation. School District of City of Pontiac v City of Pontiac, 262 Mich 338, 344-345; 247 NW 474 (1933). In that year, the people of the State of Michigan initiated an amendment to Article 10 of the 1908 Constitution, by adopting Section 21, which limited the amount of ad valorem taxes that could be assessed against property for all purposes in any one year, without voter approval, to one and one-half percent of assessed property valuation.

However, upon adoption of the current Constitution, Const 1908, art 10, Sec. 21 was replaced by Const 1963, art 9, Sec. 6.

In Butcher v Township of Grosse Ile, 387 Mich 42; 194 NW2d 845 (1972); the Michigan Supreme Court was called upon to determine whether, pursuant to the second paragraph of Const 1963, art 9, Sec. 6, supra, the defendant township could levy ad valorem taxes, without limitation, or voter approval, in order to pay an assessment imposed by a Drainage District Board under Chapter 20 of the Drain Code, 1971 PA 60, MCLA 280.461 et seq; MSA 11.1461 et seq.

The Court found that the second paragraph of Const 1963, art 9, Sec. 6 eliminated the former limitations of Const 1908, art 10, Sec. 21, thereby permitting the Legislature to authorize municipalities to incur indebtedness and to levy ad valorem taxes as to rate or amount without limitation and without voter approval.

Justice Black, in an opinion which was adopted by the majority of the Court, stated:

'Whether the money borrowed is or is not to be used for operating expenses, 'taxes imposed' to retire all such borrowing may be levied without limit as to rate or amount, subject only to legislative restriction, if any. I hold then, though loath, that Division 1 was right when it concluded (24 Mich App at 395, 396):

"We find that although plaintiffs' contentions as regard the 15-mill tax limitation would be correct if we were still acting under Const 1908, art 10, Sec. 21 (See Township of Southfield v Drainage Board for Twelve Towns Relief Drains (1959), 357 Mich 59, under the present constitutional provisions, Const 1963, art 9, Sec. 6, however, the limitation does not apply to taxes levied to discharge bonded indebtedness."

Further, Justice concluded:

'Behold the dismal end of that great effort of a beset and embittered people who, in the property tax crisis of 1932, rose up and successfully initiated the since battered and now extinct Sec. 21 of the tenth article of the former constitution. To one who lived through that crisis and the property tax moratorium effected by 1934 PA (Ex Sess) 11, and through the tragic sales of property which finally took place pursuant to the land board act of 1937 (No 155), it is not difficult to predict that, sooner doubtless than later, the people will have to repeat their initiatory action of 1932 lest they endure again what this Court--unaided at the time by legislation--had to stop on March 1, 1933, that is, the annual sale for unpaid taxes of more than half the taxable property in Michigan. See Thompson v Auditor General, 261 Mich 624 (1933), particularly the reporter's footnote 628.'

In keeping with Justice Black's predictions, the people amended the second paragraph of section 6 to require voter approval before taxes may be imposed, in excess of the limits contained in the first paragraph of the section, for the payment of principal and interest on bonds or other evidences of indebtedness and for the payment of assessments of contract obligations in anticipation of which bonds are issued. Therefore, the amendatory language of Proposal E clearly precludes municipalities from issuing bonds, and levying ad valorem taxes for purposes of paying principal and interest thereon without prior approval of the electors nor may they agree to pay assessments or contract obligations in anticipation of which bonds are issued without a vote of the people.

Section 31, does not diminish the effect of the amendment to section 6 because section 31 does not purport to deal with the authority of local units of government to borrow money or to enter contractual obligations on assessments in anticipation of which bonds are issued; it pertains to the levy of taxes for other purposes and the language provided therein states:

'. . . units of local government are hereby prohibited from levying any tax not authorized by law or charter when this section is ratified or from increasing the rate of an existing tax above that rate authorized by law or charter when this section is ratified, without the approval of the majority of the qualified electors of that unit of local government voting thereon . . .,'

Therefore, it is my opinion that Const 1963, art 9, Sec. 6, as amended by Proposal E, does not permit municipalities to issue bonds, other evidences of indebtedness, or to agree to pay assessments or contractual obligations in anticipation of which bonds are issued and to levy ad valorem taxes to pay the principal and interest thereon without an affirmative vote of a majority of the electors.

Frank J. Kelley

Attorney General