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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. 6036 January 29, 1982 CONSTITUTIONAL LAW: Const 1963, art 4, Sec. 25--amendment by implication by appropriation acts TRANSPORTATION, DEPARTMENT OF: Appropriation act to change statutory formula for apportionment of grants for public transportation. 1980 PA 363, Sec. 53(2) and 1981 PA 32, Sec. 21(2), which limit the authority of the Department of Transportation to pay out grants for public transportation under 1951, Sec. 10e, violate Const 1963, art 4, Sec. 25. Line item appropriations in 1981 PA 32 for public transportation are invalid to the extent that they are inconsistent with 1951 PA 51, Secs. 10e and 10f, in violation of Const 1963, art 4, Sec. 25. Mr. John P. Woodford Director Department of Transportation 425 West Ottawa Lansing, Michigan You have requested my opinion on two questions regarding the appropriation bills for fiscal years 1980-1981 and 1981-1982. The first question is: '1. Is the language 'only upon reappropriation by the legislature' in 1980 PA 363, Sec. 53(2) and 1981 PA 32, Sec. 21(2) invalid on the ground that it attempts to alter and amend 1951 PA 51, Sec. 10e(1), (i), without reenacting and publishing that section at length as required by Const 1963, art 4, Sec. 25?' Const 1963, art 4, Sec. 25, provides: 'No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length.' In a May 12, 1981 letter opinion addressed to Representative Crim and Senator Faust, the requirements of Const 1963, art 4, Sec. 25, supra, were considered and the opinion stated: 'The Court in Alan v Wayne County, 338 Mich 210; 200 NW2d 628 (1972) held void pursuant to that section a provision of the Revenue Bond Act, 1933 PA 94; MCLA 141.101 et seq; MSA 5.2731 et seq, which had been incorporated into the building authority act, 1948 1st Ex Sess PA 31; MCLA 123.951 et seq; MSA 5.201(1) et seq, where the provision so incorporated was amended in the latter statute without reenactment and republication of the former provision. "This is because [the building authority act] incorporated [a provision of the Revenue Bond Act] by reference . . . and therefore . . . anything [in the building authority act] or any act to amend [the building authority act] that purports 'to dispense with something required by that Act [the Revenue Bond Act], and to make changes' offends Const 1963, art 4, Sec. 25.' 388 Mich 210, 265-266. 'See OAG, 1975-1976, No 4896, p 132, 138-141 (September 9, 1975); OAG 1975-1976, No 5138, p 704 (December 10, 1976). Thus, "[i]f a bill under consideration is intended whether directly or indirectly to revise, alter, or amend tne operation of previous statues, then the constitution, unless and until appropriately amended, requires that the Legislature do in fact what it intends to do by operation.' [Original emphasis.] 388 Mich 210, 285. 'Const 1963, art 4, Sec. 25, supra, and its antecedents, has been held not to apply to 'an act complete within itself.' Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 473; 208 NW2d 441 (1973). Further, Const 1963, art 4, Sec. 25, supra "is directed at preventing undesirable conduct with respect to amendment of a particular act. It does not seek to correct tangential effects which the amendment, revision or alteration may have on those statutes not directly affected.' 389 Mich 441, 475. 'In Midland Township v State Boundary Commission, 401 Mich 641; 259 NW2d 326 (1977), app dism 435 US 1004; 98 S Ct 1873; 56 L Ed 2d 386 (1978), the Court held that Const 1963, art 4, Sec. 25, supra, was not violated where the Legislature amended certain annexation-related provisions of the Home Rule Cities Act, 1909 PA 279, Sec. 9; MCLA 117.9; MSA 5.2088, which consequently affected related provisions of the State Boundary Commission Act, 1968 PA 191; MCLA 123.1001 et seq; MSA 5.2242(1) et seq. 'In Midland Township, supra, the amendment to the Home Rule Cities Act specifically incorporated by reference the Boundary Commission Act and provided that in the event of conflict between the two statutes, the Boundary Commission Act 'shall govern.' Thus, the amendment to the Home Rules Cities Act was determined to supplement germane provisions of the Boundary Commission Act, which act was specifically referred to in the amendatory statute. Therefore, the Court held the amendment to the Home Rule Cities Act did not expressly 'dispense with' or 'change' any provision of the Boundary Commission Act and, accordingly, there was no need to re-enact and publish affected provisions of the Boundary Commission Act. 401 Mich 641, 656-663. 'In this context, the Court in Midland Township, supra, also held that while the amendment to the Home Rule Cities Act rendered defunct four (4) separate provisions of the same Act "The Constitution does not require, nor would a useful purpose be served by reenacting and republishing the defunct portions . . .; the Constitution does not require a useless gesture. Nor does it require that the defunct portions be excised from those sections and the viable portions reenacted and republished. . . . "While this non-express method of legislating may be 'confusing' to some and appear to be 'lazy,' legislation cannot on that ground be invalidated.' [Citations and footnote omitted.] 401 Mich 641, 662-663. 'The decisions in Alan, supra, Advisory Opinion, supra, and Midland Township, supra, stand for the proposition that where a statute seeks to 'dispense' with or 'make changes' in another statute, the amended provisions of the statute must be re-enacted and republished. Where a statute is complete within itself, or where a statute does not 'dispense' with or 'make change,' and merely supplements a prior act, then re-enactment and republication is not constitutionally required.' It is clear under the principles set forth above that where an appropriation bill dispenses with or makes changes in another statute, the amended provisions must be reenacted and republished. Both the 1980-81 and 1981-82 appropriation bills, 1980 PA 363 and 1981 PA 32, specifically require that at the end of the respective fiscal year any unencumbered balance in the comprehensive transportation fund, other than that allocated during the two preceding fiscal years: '[s]hall remain in the comprehensive transportation fund and shall be used pursuant to section 10e(1)(i) of Act No. 51 of the Public Acts of 1951, as amended, for projects contained in an annual state transportation program approved by the legislature pursuant to section 10h(4) of Act No. 51 of the Public Acts of 1951, as amended, only upon reappropriation by the legislature,' (Emphasis provided.) 1980 PA 363, Sec. 53(2) and 1981 PA 32, Sec. 21(2). 1951 PA 51, as amended, Sec. 10e(1)(i); MCLA 247.660e(1)(i); MSA 9.1097(10f)(1)(i), on the other hand, provides: 'The unencumbered balance of public transportation distributions remaining in the fund in each year after meeting the purposes described in subdivisions (a), (b), (c), (d), (e), (f), (g), and (h) shall be distributed as grants to eligible authorities and eligible governmental agencies for acquisition of public transportation facilities for consolidation, for capital improvements, and for equipment replacements, for public transportation systems in accordance with the approved public transportation programs of eligible authorities and eligible governmental agencies, or for direct expenditures by the state transportation department for public transportation purposes. Funds distributed pursuant to this subdivision for a project which is funded in part with federal funds distributed pursuant to the urban mass transportation act of 1964, 49 U.S.C. 1601 to 1614, shall be distributed as a direct grant without a contract between the state transportation department and the eligible authority or eligible governmental agency receiving those funds after approval of the state annual transportation program by the legislature. However, a grant shall not be made for preliminary or final construction engineering plans or the construction of a subway until the legislature, by a concurrent resolution adopted by a majority of those elected and serving in each house by a record roll call vote approves the grant. The supervision and control by the state transportation department of funds distributed pursuant to this subdivision shall be limited to a post-project audit or an audit on an annual basis, whichever occurs first, to determine whether adequate records and accounts have been maintained which verify that those funds were properly expended in accordance with this act. In making distributions from the comprehensive transportation fund in accordance with this subdivision, priority shall be given to improvements for which federal assistance is available.' A comparison of 1951 PA 51, Sec. 10e(1)(i), supra, with the language 'only upon reappropriation by the legislature' included in 1980 PA 363, Sec. 53(2), supra, and 1981 PA 32, Sec. 21(2), supra, indicates that the Legislature is attempting by the appropriation process to limit the authority of the Department of Transportation to distribute the unencumbered balance of public transportation distributions remaining in the comprehensive transportation fund, even though the distribution is authorized by 1951 PA 51, Sec. 10e(1)(i), supra, without any requirement that the funds be reappropriated. The only restrictions and controls included in 1951 PA 51, Sec. 10e(1)(i), supra, are as follows: 'However, a grant shall not be made for preliminary or final construction engineering plans or the construction of a subway until the legislature, by a concurrent resolution adopted by a majority of those elected and serving in each house by a record roll call vote approves the grant. The supervision and control by the state transportation department of funds distributed pursuant to this subdivision shall be limited to a post-project audit or an audit on an annual basis, whichever occurs first, to determine whether adequate records and accounts have been maintained which verify that those funds were properly expended in accordance with this act.' To require the new restriction of having the unencumbered balance reappropriated would have the effect of altering and amending 1951 PA 51, Sec. 10e(1)(i), supra, without reenacting and publishing that section, in violation of Const 1963, art 4 Sec. 25. Additionally, imposing such a restriction would ignore the special nature of 1951 PA 51; MCLA 247.651 et seq; MSA 9.1097(1) et seq., which the Michigan Supreme Court recognized in County Road Association of Michigan v Board of State Canvassers, 407 Mich, 101 119-120; 282 NW2d 774 (1979) as follows: 'In addition, Const 1963, art 9, Sec. 9, and 1951 PA 51, as amended, (1978 PA 444), are self-executing and make transportation tax legislation unique. MCLA 247.667; MSA 9.1097(17), for example, clearly explains what the State Treasurer's duties are regarding disbursement of the fund; these duties would have to be executed regardless of what the appropriation act for the Department of State Highways and Transportation had provided.' (Emphasis provided.) It is my opinion, therefore, that the clause 'only upon reappropriation by the legislature' included in 1980 PA 363, Sec. 53(2), supra, and 1981 PA 32, Sec. 21(2), supra, is constitutionally invalid because it is an attempt to alter and amend 1951 PA 51, Sec. 10e(1)(i), supra, without reenacting and publishing that section at length. Inasmuch as the remaining provisions of 1980 PA 363, supra, and 1981 PA 32, supra, are complete, independent and capable of being carried out unaffected by the defective portions thereof, the aforesaid defective portions may be severed from 1980 PA 363, supra and 1981 PA 32, supra, respectively, without invalidating the remainder of the said acts. People v McMurchy, 249 Mich 147; 228 NW 723 (1930); OAG, 1979-1980, No 5688, p 723 (April 21, 1980). Your second question is: '2. Are the line-item appropriations in 1981 PA 32 for the Formula Operating Assitance Program invalid to the extent where they are inconsistent with the population mileage formula, one-third limit, and 21 percent limitations set forth in 1951 PA 51, Secs. 10e(1)(d), (i), (ii), (iv), (v), and 10e(1)(e); MCLA 247.660e(1)(d), (i), (ii), (iv), (v), and MCLA 247.660e(1)(e); MSA 9.1097(10f)(1)(d), (i), (ii), (iv), and MSA 9.1097(10f)(1)(e)?' The 1981-82 appropriations bill, 1981 PA 32, supra, Sec. 1, provided, in pertinent part, for the funding of the following: OPERATING ASSISTANCE: STATUTORY OPERATING ASSISTANCE Adrian ..................................... $ 51,400 Alma ........................................... 105,000 Alpena .......................................... 61,800 Ann Arbor .................................... 2,337,600 Antrim ......................................... 134,600 Baraga .......................................... 72,800 Battle Creek ................................... 502,100 Bay county metro transportation authority .... 1,210,500 Belding ......................................... 16,400 Big Rapids ...................................... 89,900 Cadillac ........................................ 81,800 Capital area transportation authority ........ 2,243,900 Crawford ....................................... 107,000 Davison ......................................... 43,200 Dowagiac ........................................ 25,600 EUPTA (bus) ..................................... 96,900 Eaton Rapids .................................... 16,100 Gladwin ......................................... 39,600 Gogebic ......................................... 12,400 Grand Haven .................................... 141,700 Grand Rapids ................................. 2,546,300 Hillsdale ....................................... 66,000 Holland ........................................ 102,700 Houghton ....................................... 109,500 Iosco ........................................... 83,100 Isabella ....................................... 493,700 Ishpeming ....................................... 41,900 Jackson ........................................ 441,500 Kalamazoo .................................... 1,484,500 Lenawee ......................................... 63,900 Ludington ...................................... 121,500 Manistee ....................................... 234,500 Marquette ....................................... 88,900 Marshall ........................................ 35,300 Flint ........................................ 2,007,200 Mecosta ........................................ 130,800 Midland ........................................ 206,000 Muskegon ....................................... 285,600 Niles ........................................... 84,700 Saginaw ........................................ 710,200 Sault Ste. Marie ................................ 77,300 SEMTA ....................................... 28,333,800 Traverse City .................................. 103,000 Benton Harbor .................................. 120,800 Van Buren ....................................... 95,100 Yates Township .................................. 41,900 ----------- GROSS APPROPRIATIONS ....................... $45,500,000 To be consistent with 1981 PA 32, supra, the Department of Transportation subsequently submitted to the Legislature a revised 1981-82 public transportation program which included the same estimated statutory operating assistance distributions that were included in 1981 PA 32, supra. The revised program noted, however, that the estimated distributions were not consistent with the population/mileage formula contained in 1951 PA 51, Secs. 10e(1)(d)(i) and (ii), supra. Additionally, the revised program indicated that the estimated distributions were not consistent with the one-third limit required by 1951 PA 51, Sec. 10e(1)(d)(iv) (1), supra, nor with the 21 percent minimum required by 1951 PA 51, Sec. 10e(1)(e), supra. Nevertheless, the revised program was approved by the Legislature. 1951 PA 51, Sec. 10e(1)(d), (i)(ii), supra, provides in pertinent part: '(1) The comprehensive transportation fund shall be expended in the following order of priority: '(d) [An] eligible authority or eligible governmental agency providing public transportation services as part of an approved public transportation plan in an urban or rural area shall receive a direct distribution by the state transportation department from the comprehensive transportation fund money as follows: '(i) Quarterly or more frequently as determined by the state transportation department, 12.5% of the total amount annually distributed for operating assistance grants shall be multiplied by the ratio of the annual transit vehicle miles projected by the eligible authority or eligible governmental agency operated in accordance with the approved public transportation program of the eligible authority or eligible governmental agency to the total annual transit vehicle miles operated under the approved annual public transportation program of all areas in the state which qualify for the operating assistance grants. In determining the distribution to be made to an eligible governmental authority or eligible governmental agency under this subparagraph, the amount of transit vehicle miles operated shall be the amount certified annually by the eligible authority or eligible governmental agency subject to review and testing of the methodology and procedures used by the eligible authority or eligible governmental agency to calculate and certify transit vehicle miles. '(ii) Quarterly or more frequently as determined by the state transportation department, 12.5% of the total amount annually distributed for operating assistance grants shall be multiplied by the ratio of the population of an eligible authority or eligible governmental agency to the total population of all eligible authorities and eligible governmental agencies which qualify for the operating assistance grants.' (Emphasis provided.) Thus, 1951 PA 51, Sec. 10e(1)(d)(i) and (ii), supra, requires that certain funds distributed for operating assistance grants are to be based upon transit vehicle miles and population formulas. 1951 PA 51, Sec. 10e(1)(d)(iv), (v) and (i)(e), supra, provides: '(iv) Notwithstanding subparagraphs (i), (ii), and (iii) the total amount to be distributed to an eligible authority or eligible governmental agency during a state fiscal year shall not exceed 1/3 of the operating costs of the public transportation services provided in accordance with the annual public transportation program of the eligible authority or eligible governmental agency. However, the amount to be distributed during a state fiscal year from the comprehensive transportation fund for operating assistance to an eligible authority or eligible governmental agency which provides a transportation service that is not eligible for federal funds pursuant to the urban mass transportation act of 1964, 49 U.S.C. 1601 to 1614, shall be supplemented by an amount so that the total shall not exceed 1/2 of the operating costs of that service provided by that authority or agency. '(v) If after the funds have been distributed as described in subparagraphs (i), (ii), (iii), and (iv), an amount remains which is undistributed because of the limitation set forth in subparagraph (iv) but which was appropriated under this subdivision, those undistributed funds shall be distributed to those eligible authorities and eligible governmental agencies eligible to receive those funds to which the limitation set forth in subparagraph (iv) is not applicable using the formula set forth in subparagraphs (i) and (ii). Funds which were appropriated but remain undistributed after the first distribution made under this subparagraph shall be distributed in a second or any further distribution which shall be made in the same manner and subject to the same restrictions as the first distribution made under this subparagraph. Distributions shall be made under this subparagraph until all funds appropriated for eligible operating expenses are distributed. '(e) To supplement the amount distributed under subdivision (d) to an eligible authority which creates a transportation district pursuant to section 16a of Act No. 204 of the Public Acts of 1967, being section 124.416a of the Michigan Compiled Laws, for its eligible operating expenses. The amount distributed under this subdivision when added to the amount distributed under subdivision (d) to an eligible authority which creates a transportation district, shall equal not less than 21% of the eligible authority's eligible operating expenses. This subsection expires October 1, 1982.' (Emphasis provided.) 1951 PA 51, Sec. 10e(1)(d)(iv), supra, provides for either a 1/3 or 1/2 of eligible operating costs limitation on the amounts to be distributed to an eligible authority or eligible governmental agency during a state fiscal year. 1951 PA 51 Sec. 10e(1)(d)(v), supra, provides that appropriated funds remaining, if any, after the requirements of 1951 PA 51, Sec. 10e(1)(d)(i), (ii), (iii), and (iv) are met, are to be distributed in the same manner required by 1951 PA 51, Sec. 10e(1)(d)(i) and (ii), aupra. 1951 PA 51, Sec. 10e(1)(e), supra, provides that an eligible authority (SEMTA) which was created pursuant to 1967 PA 204, Sec. 16a; MCLA 124.416a; MSA 5.3475(116a), and thus created a transportation district thereunder, shall receive an amount not less than 21 percent of its eligible operating expenses. The figures in the line-item appropriations included in 1981 PA 32, supra, and the revised 1981-82 transportation program for the statutory operating assistance program must not contravene the requirements of 1951 PA 51 Sec. 10e(1)(d), (i), (ii), (iv), (v), and Sec. 10e(1)(e), supra. In line with my answer to your first question, where an appropriation bill seeks to dispense with or makes changes in the provisions of another statute, that statute must be reenacted and published as required by Const 1963, art 4, Sec. 25. Where the Legislature has appropriated funds designating lesser or greater amounts to the various authorities and agencies than would be due them under the statutory formulas and requirements contained in 1951 PA 51, Sec. 10e, supra, the Department of Transportation must distribute the total funds appropriated according to the statutory formulas and requirements contained in 1951 PA 51, Sec. 10e, supra. Under the authority of County Road Association of Michigan v Board of State Canvassers, supra, where the court recognized 1951 PA 51, supra, as a self-executing statute, no further appropriation or action on the part of the Legislature is required before those funds many be distributed. It is my opinion, therefore, that where the Legislature has appropriated funds for the statutory operating assistance program contrary to the requirements of 1951 PA 51, Sec. 10e, supra, the appropriation is unlawful, notwithstanding the fact that the Department of Transportation incorporated the same figures in its revised transportation program. Frank J. Kelley Attorney General (1)
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