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. 5616

December 27, 1979

WATERS AND WATER COURSES:

Imposition of tax, excise or toll, by local governmental unit upon vessels using the St. Mary's River

MUNICIPALITIES:

Imposition of tax, excise or toll, by local governmental unit upon vessels using the St. Mary's River

TAXATION:

Imposition of tax, excise or toll, by local governmental unit upon vessels using the St. Mary's River

The State and its municipalities may not impose a tax, excise or tariff, for use of the St. Mary's River unless the exaction is made for use of public improvements facilitating navigation made by the State or the municipality and owned or under the jurisdiction of the State or the municipality.

Except for the service of civil and criminal process, neither the State nor its municipalities have jurisdiction over the Soo Locks or over federally-owned land appurtenant thereto.

Mitch Irwin

State Senator

State Capitol

Lansing, Michigan 48909

You have asked my opinion as to:

(1) whether the State of Michigan or any of its counties, cities, villages, or townships may impose user fees or tariffs on all vessels passing through the St. Mary's River system in the Eastern Upper Peninsula; and

(2) whether the State or any of its municipalities have any jurisdiction over the Soo Locks.

Neither the State nor any of its political subdivisions may impose any tax, excise, or toll upon vessels for the use of the St. Mary's River in the absence of any improvement made by the public body to assist navigation.

In Manistee River Improvement Co v Sands, 53 Mich 593, 596-597; 19 NW 199 (1884); aff'd 123 US 288, 8 S Ct 113, 31 LEd 149 (1887) the Plaintiff pursuant to state law improved navigation over a stretch of the Manistee River and pursuant to the same state legislation collected tolls for the floating of logs over the improved portions. Defendant challenged the exaction on ground inter alia that the statute granted rights violative of the Ordinance of 1787. The Michigan Supreme Court held:

'[T]he object of the Ordinance of 1787 was chiefly, if not entirely, to secure the same rights to non-residents as should be granted to residents, and to prevent any discriminating burdens. The Constitution of the United States has secured this equality of rights among citizens of different states, and the Constitution of Michigan has secured the common right of passage in all navigable waters. The controversy, therefore, is narrowed down to the inquiry whether the State has a right to provide for improving waters that need improvement, and for allowing tolls to be charged for using the improvements. . . .

'In the grants made to this State of lands to build canals and improve streams tolls have been expressly provided for and authorized by Congress. 10 Stat. at L. 35; 13 Stat. at L. 519; Attorney Gen. v Lake Superior Ship Canal Co., 32 Mich 233. In both the statutes referred to the waters improved by the St. Mary's river canal and Portage canal were within the same Ordinance of 1787, and were parts of our great public waters, and not log-ways. . . .

'And we do not think there is anything, either in the action of Congress, or in the views thus far expressed by the United States judiciary, which in any way opposes the improvement of this river, or the right to demand tolls, and sue for them when not paid by the parties using the improvements. . . .' [Emphasis supplied]

I further note the Treaty Between the United States and Great Britain Relating to Boundary Waters, and Questions Arising between the United States and Canada, 36 Stat 2448, TS 548 (proclaimed May 13, 1910) provides under Article I:

'The High Contracting Parties agree that the navigation of all navigable boundary waters shall forever continue free and open for the purposes of commerce to the inhabitants and to the ships, vessels and boats of both countries equally subject, however, to any laws and regulations of either country, within its own territory, not inconsistent with such privilege equally and without discrimination to the inhabitants, ships, vessels and boats of both countries.

'It is further agreed that so long as this treaty shall remain in force, this same right of navigation shall extend to waters of Lake Michigan and to all canals connecting boundary waters, and now existing or which may hereafter be constructed on either side of the line. Either of the High Contracting Parties may adopt rules and regulations governing the use of such canals within its own territory and may charge tolls for the use thereof, but all such rules and regulations and all tolls charged shall apply alike to the subjects or citizens of the High Contracting Parties and the ships, vessels and boats of both of the High Contracting Parties, and they shall be placed on terms of equality in the use thereof.'

See also Protocol of Exchange, dated May 5, 1910 relative to St. Mary's River relative to riparian rights. Boundary Waters Problems, Canada and the United States Carswell Co., Ltd; Toronto, 1958, p. 218.

Accordingly it is my opinion that the State and its municipalities may not impose a tax, excise, or tariff for use of the St. Mary's River unless the exaction is made for use of public improvements facilitating navigation, made by the State or its municipalities and owned or under jurisdiction and control of the State or the municipality. I am not informed of any such improvements.

Turning to the second question, neither the State of Michigan nor any of its political subdivisions are possessed of any legislative jurisdiction over the St. Mary's Ship Canal or over any federally owned land appurtenant thereto. Exclusive jurisdiction is vested in the United States of America. The State of Michigan has retained jurisdiction only for purposes of the execution of civil and criminal process. Willis v Oscar Daniels Co., 200 Mich 19; 166 NW 496 (1918); 1873 PA 39, 1881 PA 17. (See also 1889 PA 104)

Initial construction of the ship canal at Sault Ste. Marie was undertaken by the State of Michigan. In 1852 under provisions of the Act of Congress of August 26, 1852; 10 Stat 35, the United States:

'granted to [the State of Michigan], the right of locating a canal through the public lands, known as the military reservation at the Falls at St. Mary's River in said State; and that 400 feet of land in width extending along the line of such canal be and the same is hereby granted, to be used by said State, or under the authority thereof, for the construction and convenience of such canal, and the appurtenances thereto, and the use thereof is hereby vested in the State forever, for the purposes aforesaid, and no other. . . .' [Emphasis supplied]

The act further appropriated and granted to the State 750,000 acres of land to cover the costs of construction.

Under provisions of 1853 PA 38, the State of Michigan accepted the federal grant, authorized and completed construction of the initial canal.

With respect to the canal, the Supreme Court in Willis v Oscar Daniels Co., supra, 22-23, stated:

'By Act No. 39, Laws 1873, it was provided:

"That the jurisdiction of this State is hereby ceded to the United States of America over all such pieces or parcels of land as are required and selected by the United States for the enalrgement and improvement of the Saint Mary's Falls ship canal.

"And this cession is upon the express condition that the State of Michigan shall so far retain jurisdiction with the United States in and over the tracts aforesaid, that all civil and criminal process issued under the authority of this State, or any officer thereof, may be executed on said lands, and in the buildings that may be erected thereon, in the same manner as if jurisdiction had not been ceded as aforesaid; and all crimes committed on said territory shall be cognizant by the State courts as though this act had not been made.'

'The financial condition of that part of the canal under the control of the State having finally become satisfactory, congress authorized the secretary of war to accept on behalf of the United States from the State, the Saint Mary's canal and the public works thereon; whereupon the State authorized the board of control of the canal to transfer the 'canal and public works thereon, with all its appurtenances and all the right and title of the State of Michigan in and to the same, to the United States in accordance with' the provisions of the act of congress authorizing the secretary of war to accept the same. The cession was upon the express condition:

"That the State of Michigan shall so far retain concurrent jurisdiction with the United States over the Saint Mary's Falls ship canal, and in and over all lands acquired, or hereafter acquired, for its use; that all civil or criminal process issued by any court of competent jurisdiction, or officers having authority of law to issue such process, and all orders made by such court, or any judicial officer duly empowered to make such orders, and necessary to be served upon any such person, may be executed upon said Saint Mary's Falls ship canal, its lands, and in the buildings that may be erected thereon, in the same way and manner as if jurisdiction had not been ceded as aforesaid. . . ."

In the Willis case the Court addressed the question of whether the State of Michigan had retained civil jurisdiction under the provision of 1881 PA 17, in particular whether the State's compensation law of 1912 had any application to injuries (or death) occuring on federally owned lands at the canal.

The lower court had ruled and the Supreme Court affirmed that:

'In the Act No. 17, Pub. Acts 1881, instead of retaining concurrent general jurisdiction, as claimed by plaintiff, the State retained concurrent jurisdiction only in so far that civil or criminal process or court orders may be executed upon the canal lands in the buildings thereon in the same way and manner as if jurisdiction had not been ceded. This condition and reservation have no effect upon the cession of legislative authority and do not reserve to the State any jurisdiction other than to serve its process on the lands. . . .' Willis v Oscar Daniels Co., supra, 25-26.

In summary it is my opinion that (1) neither the State nor its municipalities may impose any tax, tariff, excise or toll upon vessels for use of the St. Mary's River; and except for service of civil process, (2) neither the State nor its municipalities have jurisdiction over the Soo Locks or over Federally owned land appurtenant thereto.

Frank J. Kelley

Attorney General