STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5558

September 10, 1979

HIGHWAYS AND ROADS:

Transportation fund

CONSTITUTION OF MICHIGAN:

Art 9, Sec. 9 (Transportation fund)

With respect to the use of not less than 90% of fuel taxes, revenue reserved for transportation purposes in Const 1963, Art 9, Sec. 9 shall be used exclusively for the transportation purposes of planning, administering, constructing, reconstructing, financing, and maintaining roads, streets, and bridges designed primarily for the use of motor vehicles using tires and reasonable appurtenances thereto. No transfer, loan, diversion or appropriation of these funds may be designated for any other use.

With respect to the use of the balance of fuel taxes for comprehensive transportation purposes, the Legislature may not define any governmental program to be a comprehensive transportation purpose; it must define the term in light of the purpose sought to be accomplished by the constitutional provision.

Honorable James DeSana

State Senator

The Capitol

Lansing, Michigan

You have asked for my opinion on the following questions arising from the voter approval of Proposal M on November 7, 1978, amending Const 1963, Article 9, Sec. 9:

In answer to the first question, attention must be first directed to Const 1963, Article 9, Sec. 9, as amended, which provides in pertinent part that:

The language of the Constitution has established the parameters within which revenues reserved for road programs may be spent as being the planning, administering, constructing, reconstructing, financing, and maintaining of state, county, city, and village roads, streets, and bridges and their appurtenances.

Prior to the adoption of Proposal M, supra, the parallel provision of the Constitution stated:

The omission of the phrase 'as defined by law' in the newly-adopted constitutional provision and the explicit recitation of six transportation purposes compels the conclusion that the revenue reserved for transportation in the current provisions of Const 1963, Art 9, Sec. 9, shall be used for these purposes and none other.

Your second question inquires whether transfers, loans, or advances for other than road programs from funds restricted for road programs would be constitutional?

By referring to funds restricted for road programs, I presume you are referring to a provision of Const 1963, Article 9, Sec. 9, supra, which provides for funds to '. . . be used exclusively for the transportation purpose of planning, administering, constructing, reconstructing, financing, and maintaining state, county, city, and village roads, streets, and bridges designed primarily for the use of motor vehicles using tires . . .' (emphasis added)

81A C.J.S. States Sec. 228, pp. 799-800 (1977), speaks to the issue of transfer or diversion of special funds to other purposes:

The court, in Michigan Sheriffs' Association v Department of Treasury, 75 Mich App 516, 528; 255 NW2d 666, 671 (1977), recognized that executive transfers of special funds to other purposes is generally prohibited, while a legislative type transfer '. . . is within the power of the Legislature unless such diversion would conflict with a constitutional provision . . .' (emphasis added)

As an example, in footnote 10 of the opinion, the court said that:

By allowing a transfer, diversion, or final appropriation of road program funds to programs other than road programs, the executive or legislative branches of the government would be acting in direct contravention of the Constitution, since Article 9, Sec. 9, provides for the purposes for which the funds shall be exclusively used.

Therefore, answering your second question, in order to avoid a direct conflict with a constitutional provision, there may not be any transfer, loan, diversion, or appropriation of those funds designated for use in road programs to some other use not contemplated by the Constitution. I am aware that OAG 1951-1952 No. 1451, p 326 (August 1, 1951) considered the question of whether it was proper to loan gasoline and weight tax funds for the purchase of parking meters. In that opinion the Attorney General held that a temporary loan from one fund to another was permissible. In light of the current language of Const 1963, Art 9, Sec. 9, this opinion is no longer viable.

Your third and fourth questions may be considered together. The third paragraph of Const 1963, Art 9, Sec. 9, as amended, provides in pertinent part:

The above-quoted section of the Constitution provides that 'comprehensive transportation purposes' shall be defined by law. The phrase 'as defined by law' was included in Proposal M rather than including a specific definition of 'comprehensive transportation purposes'. By including 'as defined by law' in Proposal M, the Legislature was given the power to define and limit the meaning of the term 'comprehensive transportation purposes'.

Although the Legislature has discretion in defining and limiting the meaning of the term 'comprehensive transportation purposes', however, in exercising its discretion, the Legislature must define the term to mean 'that which will carry out the purpose of the context in which it is used'. ⁽²⁾ Therefore, the Legislature may not provide for a use of the fund for other than a transportation purpose.

It is my opinion therefore, that the Legislature may not define any governmental program to be a comprehensive transportation purpose; it must define the term in light of the purpose sought to be accomplished by the constitutional provision.

Frank J. Kelley