STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5706

May 13, 1980

AMBULANCES:

Financing of

CITIES:

Financing of ambulance service

CONSTITUTIONAL LAW:

Const 1963, art 9, Secs. 6 and 31

Const 1963, art 4, Secs. 24 and 25

TAX ASSESSMENTS:

Special assessments for ambulance services

A home rule city may provide ambulance services and finance such services by means of fees, general fund monies or taxes voted by the people for such services as required by Const 1963, art 9, Secs. 6 and 31.

In order for a home rule city to establish a special assessment district for the purpose of providing ambulance services, the electors must approve the special assessment district and vote taxes for such services.

1978 PA 368, authorizing a city to provide ambulance services, does not violate Const 1963, art 4, Secs. 24 and 25.

Honorable John C. Hertel

State Senator

The Capitol

Lansing, Michigan 48909

You have requested my opinion on several questions relating to the establishment and financing of an emergency ambulance system by a city, pursuant to the Public Health Code, 1978 PA 368, Sec. 20346; MCLA 333.20346; MSA 14.15(20346).

Your questions may be phrased as follows:

1978 PA 368, Sec. 20346, supra, provides:

(1) Must a city create a special ambulance district?

1978 PA 368, Sec. 20346, supra, authorizes a city to operate an ambulance service 'for the use and benefit of its residents.' While a city is authorized to provide such service, the legislature has not commanded the city to provide such service. If the city determines to provide ambulance service, it must be available to all the residents of the city. OAG, 1977-1978, No 5254, p ___ (January 17, 1978). It is my opinion, therefore, that a city in its discretion, may operate an ambulance service that will be available to all its residents.

(2) If the creation of a special district is necessary, must the voters approve the establishment and financing of such district?

1978 PA 368, Sec. 20346(2)(b), supra, authorizes cities to defray the cost of ambulance service for its residents by (1) a collection of fees for services; (2) a special assessment method; or (3) a combination of both methods. If the city utilizes the fees for services method, no voter approval is required. If however, the city determines to employ the special assessments method, in whole or in part, the creation, levying, collection and determination of the assessment, pursuant to 1978 PA 368, Sec. 20346(2)(b), supra, must conform 'as near as possible to the procedure set forth in section 1 of Act No. 33 of the Public Acts of 1951, as amended,' [1951 PA 33, MCLA 41.801 et seq; MSA 5.2640(1) et seq, governing fire protection for township and incorporated villages and cities under 15,000 population ⁽³⁾. The procedures set forth in 1951 PA 33, supra, apply to cities without regard to the 15,000 population limitation relative to cities, found in 1951 PA 33, Sec. 10, supra, since the specific language of 1978 PA 368, Sec. 20346(2)(b), supra, contains no population limitation.

1951 PA 33, supra, Sec. 1(4), provides that:

The underscored language of 1951 PA 33, Sec. 1(4), supra, clearly requires approval of city electors prior to the establishment of the city ambulance service (see OAG, 1951-1952, No 1461, p 358 (September 18, 1951)), as the entire city must be provided ambulance service.

1978 PA 368, Sec. 20346, supra, authorizes cities to operate an ambulance service 'for the use and benefit of its residents.' 1978 PA 368, supra, Sec. 20102(4) provides that an 'ambulance operation' provides services for 'patients', who are defined in 1978 PA 368, supra, Sec. 20306(2) as individuals. Thus, these provisions make it clear that a city's provision of ambulance service is meant to benefit persons, and not property.

A 'special assessment', as that term is understood in the law, is an imposition or levy upon property for the payment of the costs of public improvements which confer a corresponding and special benefit upon the property assessed. Fluckey v City of Plymouth, 358 Mich 447; 100 NW2d 486 (1960). In Blake v Metropolitan Chain Stores, 247 Mich 73, 76; 225 NW 587, 588 (1929), the Michigan Supreme Court defined 'special assessment' and distinguished it from 'taxes' as follows:

In St. Joseph Township v Municipal Finance Comm, 351 Mich 524; 88 NW2d 543 (1958), the Michigan Supreme Court cited with approval the following statement:

Accord: Johnson v City of Inkster, 401 Mich 263; 258 NW2d 24 (1977); Crampton v City of Oak Park, 362 Mich 503; 108 NW2d 16 (1961); City of Lansing v Jenison, 201 Mich 491; 167 NW 947 (1018), City of Detroit v Weil, 180 Mich 593; 147 NW 550 (1914); Capaldi Contracting v City of Fraser, 70 Mich App 227; 245 NW2d 575 (1976); Stybel Plumbing, Inc v Oak Park, 40 Mich App 108; 198 NW2d 782 (1972).

While a true special assessment is not subject to the general 15 mill limitation set forth in Const 1963, art 9, Sec. 6, ⁽⁴⁾ (See Graham v City of Saginaw, 317 Mich 427; 27 NW2d (1947)), a general tax is subject to the limitations set forth therein. Accord, OAG, 1979-1980, No 5562, p ___ (September 17, 1979).

Since a municipality's ambulance service must benefit all its residents, and since the property specially assessed does not receive a corresponding special benefit not provided the general public (City of Lansing v Jenison, supra, 201 Mich 491, 497), the imposition or assessment levied against all real property within a city may not be characterized as a 'special assessment.' Cf Stevens v City of Port Huron, 149 Mich 536; 113 NW 291 (1907) (city may not specially assess for the sprinkling of streets since that service does not specially enhance the value of abutting property). Notwithstanding the fact that the statute denotes it as a special assessment, the levy in question is a 'general tax', which has been defined as

In re Petition of Auditor General, 226 Mich 170, 173; 197 NW 552, 553 (1924)

Since all real property within a city must be taxed to defray the cost of a city-wide ambulance system, such assessment is in the nature of a general ad valorem property tax, it is not a special assessment, and, therefore, is subject to the 15 mill limitation set forth in Const 1963, art 9, Sec. 6, supra.

Const 1963, art 9, Sec. 31, added by the voters at the November 7, 1978, general election, and which became effective December 23, 1978, provides:

Thus, Const 1963, art 9, Sec. 31, supra, requires that city electors must approve the levy of a tax to fund the provision of ambulance service established pursuant to 1978 PA 368, Sec. 20346(2)(b), supra, where the tax to be levied does not fall within the city's tax limitations. OAG, 1979-1980, No 5506, p ___ (June 12, 1979) (p 3). Further, the general 15 mill limitation set forth in Const 1963, art 9, Sec. 6, supra, may be increased up to a maximum 50 mills by the electors pursuant to Const 1963, art 2, Sec. 6. ⁽⁶⁾ In addition, Const 1963, art 9, Sec. 6, supra, in its second paragraph states the 15 mill limitation is not applicable to taxes imposed by a city, among other local units, whose tax limitations are provided by charter, or whose electors, pursuant to Const 1963, art 9, Sec. 31, supra, vote to levy a tax (for ambulance service). OAG, No 5506, supra.

Where a city votes to establish ambulance service under 1978 PA 368, Sec. 20346(2)(b), the city may not provide for such service by the issuance of special assessment bonds pursuant to 1951 PA 33, Sec. 1(2)(b), supra, and 1951 PA 33, supra, Sec. 3, ⁽⁷⁾ for the reason that any assessment for such service is a general tax, not a special assessment. ⁽⁸⁾ Thus, bonds issued to fund ambulance service must be general obligation bonds which must be approved by the electors prior to their issuance, pursuant to the second paragraph of Const 1963, art 9, Sec. 6, supra, and 1951 PA 33, Sec. 1(4), supra. Where the electors approve the issuance of general obligation bonds to fund a city ambulance service, the second paragraph of Const 1963, art 9, Sec. 6, supra, is applicable. It provides that the general 15 mill limitation shall not apply

Where a municipality levied a tax or issued bonds, pursuant to 1951 PA 33, supra, prior to December 23, 1978, the presently-operative provisions of Const 1963, art 9, Secs. 6 and 31, supra, which became effective December 23, 1978, are inapplicable. After December 23, 1978, the funding of ambulance services, as well as fire protection services, established on or after such date and funded pursuant to the provisions of 1951 PA 33, supra, must be approved by majority vote of the electors where taxes are to be levied, or bonds are to be issued, pursuant to Const 1963, art 9, Secs. 6 and 31, supra.

Therefore, in response to your second question, it is my opinion that under Const 1963, art 9, Secs. 6 and 31, supra, city electors must approve the levying of and tax, or the issuance of bonds to finance the cost of a city-wide ambulance service, pursuant to 1978 PA 368, Sec. 20346(2)(b), supra, and pursuant to the otherwise valid procedures set out in 1951 PA 33, supra.

(3) Does 1978 PA 368, Sec. 20346(2)(b), by its reference to and incorporation of 1951 PA 33, violate Const 1963, art 4, Sec. 24, in that the title and body of 1951 PA 33 does not refer to ambulance service?

Const 1963, art 4, Sec. 24, provides in pertinent part that:

This provision has been part of the Michigan Constitution since 1850. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 463; 208 NW2d 469, 472 (1973). It seeks to promote two objectives: (1) that legislators approve statutes that they fully understand; and (2) that the public is aware of the laws of this state. Adams v Wayne County Treasurer, 71 Mich App 275; 248 NW2d 232 (1976).

The purpose of 1951 PA 33, supra, is expressed in its title as:

The object embraced by the act, as set forth in its 10 sections, is the provision and financing of fire protection for municipalities. That object is clearly expressed in its title.

The title to the Public Health Code, 1978 PA 368, supra, expresses its purpose, in relevant part, as

Clearly, the principal object of 1978 PA 368, supra, is the protection and promotion of public health, and the financing of ambulance services, as through 1951 PA 33, supra, as previously addressed, is a component part of such purpose.

See also OAG, 1979-1980, No 5485, p ___ (April 26, 1979).

Accordingly, it is my opinion that, 1978 PA 368, Sec. 20346(2)(b), supra, by its reference to and incorporation of the provisions of 1951 PA 33, supra, as previously discussed, does not violate Const 1963, art 4, Sec. 24, supra. ⁽⁹⁾

(4) Does 1978 PA 368, Sec. 20346(2)(b) amend by implication 1951 PA 33, contrary to Const 1963, art 4, Sec. 25?

Const 1963, art 4, Sec. 25, provides that:

This provision has also been part of the Michigan Constitution since 1850. Alan v Wayne County, 388 Mich 210, 273; 200 NW2d 628, 659 (1972). It seeks to avoid confusion and deception in the legislative process.

Where the legislature intends to revise, alter or amend statutes so that their operation is narrower or broader, Const 1963, art 4, Sec. 25, supra, requires that the altered or amended provision be reenacted and published. Alan, supra, 388 Mich 210, 285. However, the legislature has both the power and the right to refer in one statute to provisions of another statute and to render them applicable and binding as though incorporated and reenacted therein so long as the sections referred to are germane. Clay v Penoyer Creek Improvement Co, 34 Mich 204, 208-209 (1876), cited with approval in Alan, supra, 388 Mich 210, 273-274.

In Midland Township v State Boundary Commission, 401 Mich 641; 259 NW2d 326 (1977), appeal dismissed, 435 US 1004, 98 S Ct 1873, 56 L Ed 2d 386 (1978), the decision and reasoning of Mahaney, supra, was approved.

Clearly, the financing of ambulance service according to the provisions of 1951 PA 33, supra, as previously discussed is germane to the protection and promotion of public health enunciated by 1978 PA 368, supra.

Thus, it is my opinion that, 1978 PA 368, Sec. 20346(2)(b), supra, does not amend by implication 1951 PA 33, supra, contrary to Const 1963, art 4, Sec. 25, supra.

Frank J. Kelley