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. 5523 July 12, 1979 LEGISLATURE: Resolution to approve subway program CONPREHENSIVE TRANSPORTATION FUND: Resolutions for subway disbursements The legislature must approve by separate concurrent resolution funding for preliminary engineering plans for a subway. Legislative approval of entire public transportation program including funding of preliminary engineering plans for a subway is insufficient to fund subway portion thereof without a separate concurrent resolution approving the subway program. Honorable Robert C. Law Honorable Thomas H. Brown Honorable Edward E. Mahalak State Representatives The Capitol Lansing, Michigan 48909 You have requested my opinion on three questions regarding 1978 PA 444 as it relates to the 1979-1980 Public Transportation Program that was submitted to the Michigan legislature by the Michigan State Transportation Commission. In your letter of request you inform me that there appears to be funding in the Public Transportation Program for a program relating to transportation development capital program for the Southeastern Michigan Transportation Authority (SEMTA) for a rapid rail program. You further advise that this program is for the preliminary engineering for subway work in the City of Detroit. The questions are: 1. May the Legislature approve such a program in the funding program until they have waived the prohibition against the subway by the necessary votes? 2. If the Legislature should approve the Public Transportation Program including pages 220, 221, and 222, does that, in effect, constitute approval of a subway if the proposal is passed by the necessary votes as required by P.A. 444 of 1978? 3. If the Legislature does not approve the 1979-80 Transportation Program, can they eliminate the programs in pages 220, 221, and 222 or will they be negated under the previous public act banning subways? 1951 PA 51, as last amended by 1978 PA 444, MCLA 247.651 et seq; MSA 9.1097(1) et seq, provides for the establishment and administration of a comprehensive transportation fund. 1951 PA 51, supra, Sec. 10h(1) provides: '. . . the state transportation commission shall report to each member of the legislature, the governor, and the auditor general its recommendations for a transportation program. . . .' The legislature has provided in 1951 PA 51, supra, Sec. 10h(4) as follows: '. . . money deposited in the state transportation department fund, shall not be distributed until the legislature, by concurrent resolution adopted by a majority of those elected and serving in each house by a record roll call vote, shall approve the entire proposed program and the proposed distributions submitted by the state transportation commission as eligible for funding. . . .' In addition, 1951 PA 51, supra, Sec. 11(3), provides: 'The money deposited in the state treasury to the credit of the comprehensive transportation fund shall be expended for the purposes described in Section 10e, after approval of the transportation program pursuant to Section 10(h)(4).' Pursuant to the above provisions, the legislature must approve the entire 1979-1980 Public Transportation Program and the proposed distribution before any funds designated for use in the Program can be distributed. Since the 1979-1980 Public Transportation Program contains funding for a program dealing with the preliminary engineering for subway work in the City of Detroit, attention must also be focused on 1951 PA 51, supra, Sec. 10b(4)(f), as added by 1976 PA 257, which provides in pertinent part that: '. . . The state shall not expend money as a local match or otherwise, and an eligible authority or eligible governmental agency shall not expend money distributed pursuant to this act, as a local match or otherwise, for the preliminary or final construction engineering plans or the construction of a subway system within the area of the southeastern Michigan transportation authority until that expenditure is approved by concurrent resolution of the legislature. The concurrent resolution shall be approved on a record roll call vote of each house. . . .' Although 1951 PA 51, Sec. 10h(4), supra, requires the entire transportation program to be approved by a concurrent resolution by a majority of the legislators elected and serving in each house, 1951 PA 51, Sec. 10b, supra, imposes the additional restriction that before any funds can be expended for either the preliminary or final construction engineering plans or the construction of a subway system within the area of SEMTA, the legislature must also approve the expenditure by a separate concurrent resolution. The intent of the legislature in requiring two votes to permit expenditures for a subway is clear from a plain reading of the statute. Had the legislature intended only one vote on the entire transportation program to permit expenditure for a subway, it would not have made specific provision for the separate vote for the subway in its amendment of 1951 PA 51, Sec. 10b, supra, by adding, by means of 1978 PA 444, the provision found in subsection (4)(f). Therefore, in answer to the first and second questions, it is my opinion that the legislature should first separately approve, by a concurrent resolution, the funding for the preliminary engineering plans of a subway system. In so doing, the legislature would be waiving the prohibition against funding for the preliminary engineering plans for a subway. Whenever any additional program for the subway is presented, the legislature must vote separately upon such program. Whether the legislature first acts upon the entire transportation program or upon the program for the subway in a separate concurrent resolution, any approval given the entire transportation program, including the subway program, will not be effective as to the subway program unless, by separate concurrent resolution, the legislature approves the subway program. Two approving resolutions are necessary to approve the subway program. It is further my opinion that the subway funding could not be approved, nor its prohibition waived, by only a concurrent resolution approving the entire transportation program. The legislative intent is clear that a separate vote must be taken to approve any program for the expenditure of funds for subway purposes. In view of the answer to the first two questions, it is not necessary to answer your third question. Frank J. Kelley Attorney General