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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. 5967 August 27, 1981 NATURAL RESOURCES, DEPARTMENT OF: Liability for fire protection fees imposed by township. TOWNSHIPS: Imposition of fees for fire protection services on State-owned lands Duty to provide fire protection services for State properties The Legislature has not authorized townships to impose upon the State or its Department of Natural Resources any service charge or fees for fire protection. A township may not refuse to provide fire protection services to the State or any of its lands, institutions or facilities. Dr. Howard A. Tanner Director Department of Natural Resources Stevens T. Mason Building Lansing, Michigan You have requested my opinion regarding the following question: Is the Department of Natural Resources liable for the payment of fees imposed by a township board for fire protection services provided by or through the township, if those services are rendered in suppressing a fire occurring on State-owned lands, within the township, under the jurisdiction and control of the department? A township board may, by law, operate and maintain a fire department for purposes of providing fire protection within the township or contract for such fire protection. 1951 PA 33, MCLA 41.801 et seq; MSA 5.2640(1) et seq. To defray the costs incurred in providing such service, the board may utilize general funds raised by taxation, but may also utilize special assessments or fees collected for such service. 1951 PA 33, supra, Sec. 1, provides, in relevant part: '(3) The township board . . . may provide that the sums prescribed in subsections (1) and (2) for purchasing and housing equipment, for the operation of the equipment, or contracting for protection may be defrayed by either or both of the following methods: '(a) Collection of fees for services. '(b) Special assessment on the lands and premises in the township or townships to be benefited thereby, and may issue bonds in anticipation of the collection of these special assessments.' OAG, 1979-80, No 5538, p 339 (August 10, 1979), held that a township board is expressly authorized by the above quoted act to defray the cost of fire protection services by the imposition and collection of fees. The opinion further holds that persons receiving fire protection services may not refuse to pay the fees. The term 'person' as used in that opinion does not, however, extend to the State or any of its departments or lands owned by it. Neither does the opinion extend to any other governmental unit of this State as owner of lands used for public purposes. As stated in OAG, 1981-82, No 5915, p 216 (June 5, 1981): '[a] city may not [under provisions of 1951 PA 33 (1), supra] impose a service charge or fee upon another city for fire or police protection relating to that [latter] municipality's property located within its [the former municipality's] boundaries. . . .' The same logic as expressed in the latter opinion (and the cases and authorities therein cited) compels the conclusion that the State of Michigan and Department of Natural Resources may not, under provisions of 1951 PA 33, supra, be assessed any ad valorem real property taxes, special assessments, or fees for fire protection services. In particular: State-owned lands are exempt from both ad valorem taxation and special assessments for local improvements unless the Legislature by public act affirmatively subjects such lands to such taxation or assessment. 1893 PA 206, Sec. 7, 1897 CL 3830; 1915 CL 4001; 1929 CL 3395; MCLA 211.7, exempts from ad valorem real property taxes all State-owned lands, except 'licensed homestead lands, part-paid lands held under certificate, and lands purchased at tax sales, and still held by the state. (2) ' Such exemption extends implicitly to special assessments. People ex rel Auditor General v Ingalls, 238 Mich 423, 213 NW 713 (1927). In People ex rel Auditor General v Ingalls, supra, the city attempted to specially assess State-owned lands utilized for state fair purposes, as well as for sewers, street paving, sidewalks and street widening. In reaching its conclusion that special assessments may not be levied against State-owned lands, it was stated at 426: "Some things are always presumptively exempted from the operation of general tax laws, because it is reasonable to suppose they were not within the intent of the legislature in adopting them. Such is the case with property belonging to the State and its municipalities, and which is held by them for governmental purposes. All such property is taxable if the State shall see fit to tax it; . . . It cannot be supposed that the legislature would ever purposely lay such a burden upon public property, and it is therefore a reasonable conclusion that, however general may be the enumeration of property for taxation, the property held by the State and by all its municipalities for governmental purposes was intended to be excluded, and the law will be administered as excluding it in fact. The grant, therefore, in general terms, to a city of the power to tax will not be held to confer power to tax State or county property." "The sound principle is that property owned by the United States, by a State or by a municipality for public uses, is not subject to be taxed unless so provided by positive legislation." The exemption of the State from all such taxes, assessments and collections unless expressly authorized by the Legislature is further supported by an examination of 1917 PA 116, MCLA 221.581 et seq; MSA 7.871 et seq; and 1925 PA 91, MCLA 211.491, et seq; MSA 7.711 et seq. In 1917 PA 116, supra, an annual specific tax of $1.50 per acre is paid to the county treasurer of each county in which there is situated any State-owned lands under the control and supervision of the Department of Natural Resources (excepting any such lands as were purchased on or after January 1, 1933 for natural resource purposes). Under 1925 PA 91, supra, as distinguished from the requirements of 1917 PA 116, supra, the Department of Natural Resources also makes payments annually in lieu of taxes on all State-owned land under control of the department which have been acquired on or after January 1, 1933. The amount of such tax is determined by multiplying the unimproved value of such lands (equalized) as established by the State Tax Commission, by the total millage being assessed by taxing authorities within whose jurisdictions the land is situated. 'No assessment for special improvements shall be included.' 1925 PA 91, supra, Sec. 2; OAG, 1957-58, No 3099, p 11 (January 13, 1958). The logic of the cited and quoted authorities applies with equal force to exactions for services under 1951 PA 33, supra. Where the Legislature has intended that the State shall make or shall be authorized to make payments for fire protection services, it has so provided by positive legislation. 1929 PA 98, MCLA 17.71 et seq; MSA 4.191 et seq, and 1977 PA 289, MCLA 141.951 et seq; MSA 4.208(1) et seq. 1929 PA 98, supra, authorizes the State to contract with municipalities for fire protection to be furnished to state institutions. It is not compelled, however, to enter into such contracts. Neither may it be compelled to account for or pay for fire protection services rendered. Nor may the municipality within which such State lands or institutions are situated refuse to provide such services. Lucking v People, 320 Mich 495, 31 NW2d 207 (1948); 2 OAG, 1958, No 3242, p 131 (May 14, 1958); 1976 PA 366, MCLA 320.61 et seq, MSA 13.268(1) et seq. 1977 PA 289, supra, provides for annual appropriation by the Legislature for payments to municipalities for fire protection services received by State facilities. (3) The adoption of such specific positive legislation negates any argument that 1951 PA 33, supra, by necessary implication includes the State or any of its departments. It is my opinion, therefore, that townships are not authorized by 1951 PA 33, supra, to impose upon the State or its Department of Natural Resources (or any other State department, commission, board, agency or officer) any tax, special assessment or service charge or fee for fire protection. It is further my opinion that a township may not refuse to provide fire protection services to the State or any of its lands, institutions, or facilities. Frank J. Kelley Attorney General (1)
(2)
There remains in Michigan no licensed homestead land. There remains only one tract of 'part-paid lands,' a parcel of 'swampland' in Chippewa County.(3)
1977 PA 289, supra, was introduced as Senate Bill No. 602 (SJ, p 764, May 19, 1977). As introduced 'State facility' was defined as meaning:'state owned real property, except a park, game area, forest, recreation area, or tax reverted property; . . .'
As so defined, the term included all state owned real property except real property under jurisdiction of the Department of Natural Resources.
The Senate substitute for SB No. 602 (SJ, p 1181, June 30, 1977) redefined the term 'State facility' as meaning:
'state owned real property associated with buildings primarily used for office purposes, or hospitals, institutions of higher education, . . .'
This definition again, by its terms, would exclude almost all lands under jurisdiction of the Department of Natural Resources, the sole exception to such exclusion being lands associated primarily with office buildings.
The House of Representatives in introducing its substitute (HJ p 3185, November 15, 1977) retained the definition last quoted adding only the words 'state prisons' after the word 'purposes'. In this form the bill was adopted and signed into law.
It is manifest from the definitions employed by both House and Senate in their consideration of SB 602 and its substitutes that it was the legislative intent to preclude any state liability for fire protection services by municipal units of government to lands useful primarily as parks, game areas, forests, recreation areas or tax reverted properties under control of the Department of Natural Resources.
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