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Opinion No. 5358

September 6, 1978


Subject to special assessments


Land subject to special assessments


Special assessments of state land

In the absence of a statute specifically authorizing it to do so, a municipality may not levy a special assessment against state property.

Howard A. Tanner, Director

Department of Natural Resources

Stevens T. Mason Building

Lansing, Michigan

You have requested my opinion as to whether the State may be assessed for benefits accruing to lands under jurisdiction of the Department of Natural Resources, over which a drain has been constructed under provisions of the Drain Code of 1956, 1956 PA 40; MCLA 280.1 et seq, MSA 11.1001 et seq.

In People, ex rel Auditor General v Ingalls, 238 Mich 423; 213 NW 713 (1927), the question arose whether the City of Detroit may impose special assessments against the State to cover the cost of sewers, street paving, sidewalks and street widening. Concluding that such assessment may not be imposed, the Supreme Court stated:

'The doctrine has been pretty well settled in this State and elsewhere that property owned by the State or by the United States is not subject to taxation unless so provided by positive legislation. And municipalities and State agencies are included in this class when their property is used for public purposes. The reason which supports this doctrine is that, if taxes were permitted to be levied against the sovereign, it would be necessary to tax itself in order to raise money to pay over to itself. This would be an idle thing to do. And, besides, it is rather incongruous that the creature should have the right to tax its creator without its consent. Out of this reason has grown an implied presumption that the State is exempt from all taxes unless the one asserting it can point to some legislation in support of it. We are not aware of any law, nor has any been called to our attention, which authorizes the city of Detroit to levy any tax or assessment against State property. Unless it can do this, its contention must fail. . . .' (emphasis added) 238 Mich at 425

Thus, State lands are not subject to special assessment unless such assessment is explicitly authorized by statute. See also concurring opinion of Chief Justice Sharpe in Municipal Investors Ass'n v City of Birmingham, 298 Mich 314; 299 NW 90 (1941), aff'd 316 US 153, 86 Ed 1341; 62 S Ct 975 (1942); and II OAG 1958, No. 3099, p. 11, (January 13, 1958).

As neither 1956 PA 40, supra, nor any other statute drawn to my attention, authorizes the imposition of any assessment for drainage purposes against State-owned lands under jurisdiction and control of the Department of Natural Resources (1), it is my opinion that no special assessments for drainage purposes may be assessed against State-owned lands under jurisdiction and control of the Department of Natural Resources.

Frank J. Kelley

Attorney General

(1) In contrast, see 1961 PA 146, Sec. 9, MCLA 281.69 MSA 11.300(9), providing for a special assessment of benefits against Department of Natural Resources for maintenance of normal lake levels; 1956 PA 40, Secs. 154, 321-327, 474, 526; MCLA 280.154, 280.321-280.327, 280.474 and 280.526; MSA 11.1154, 11.1321-11.1327, 11.1474 and 11.1526, relative to assessment of benefits for drains against State Highway Commission.