STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6188

October 17, 1983

CONSTITUTIONAL LAW:

Const 1963, art 8, Sec. 9--authority of governing bodies of libraries to impose fees on non-residents for exercise of borrowing privileges

LIBRARIES:

Imposition of fees on nonresidents for exercise of borrowing privileges

The governing body of a public library may, pursuant to Const 1963, art 8, Sec. 9, adopt reasonably regulations imposing fees for borrowing privileges upon nonresident users who are not entitled to the services of the library pursuant to a contract entered into with the governmental unit of the borrower's residence, provided that fees imposed reasonably relate to the costs incurred by the library in making borrowing privileges available to such nonresidents and provided that the fees are not disproportionate to the cost, direct or indirect, of issuing a library card, facilitating the return of loaned books, and the attendant cost of administration.

Honorable William Faust

State Senator

The Capitol

Lansing, Michigan

Dr. Phillip E. Runkel

Superintendent of Public Instruction

Department of Education

Lansing, Michigan

You have requested my opinion on the following question:

Const 1963, art 8, Sec. 9 provides:

The predecessor provision was Const 1908, art 11, Sec. 14:

A comparison of these two provisions reveals that the language of Const 1963, art 8, Sec. 9, in which the people have commanded that public libraries 'shall be available to all residents of the state under regulations adopted by the governing bodies thereof' is new language. In the quoted portion of Const 1963, art 8, Sec. 9, the people of the state have required the Legislature to enact laws to establish and support public libraries. In addition, in the new language, the people have directed that all residents of the state be entitled to the full use of public library facilities, subject only to the regulations adopted by the governing boards of such libraries.

Const 1963 derives its force from the people who ratified it. The intent of the people must be ascertained and given effect, giving words of the Constitution their commonly understood meaning. Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9, 14 (1971); Michigan National Leasing Corp v Cardillo, 103 Mich App 427, 432; 302 NW2d 888, 890-891, lv den 412 Mich 857 (1981).

Where the words of a constitution are clear, explicit and unambiguous, there is no room for construction and the plain meaning of those words may not be disregarded in search of some other surmised intent. People v Board of State Canvassers, 323 Mich 523, 528-529; 35 NW2d 669, 671 (1949); Michigan National Leasing Corp v Cardillo, supra.

While the words of Const 1963, art 8, Sec. 9 are reasonably precise, the scope of the term 'regulations' is not entirely clear. It is not facially evident whether a nonresident borrowing fee may be imposed by a library board through the medium of a 'regulation' under the language of Const 1963, art 8, Sec. 9. Therefore, resort must be had to other rules of constitutional construction:

In resorting to these approved sources, it must be recognized that the debates of the constitutional convention are individual expressions of concepts as the delegates perceive them. In the absence of a recurring thread of explanation binding together the constitutional concept as a whole, they may not always be decisive nor necessarily representative of the intent of the convention or of the people in adopting the measures. In such event, it may be necessary to afford greater weight in construing the constitution to the 'Address to the People,' which was approved by the convention as an explanation of the proposed provisions. Regents of the University of Michigan v Michigan, 395 Mich 52, 59-60; 235 NW2d 1, 4 (1975).

To determine whether borrowing fees may be constitutionally imposed upon state residents not residing within the geographical boundaries of the local library unit, in light of the lack of clarity attendant to Const 1963, art 8, Sec. 9, these rules of constitutional construction must be applied to Const 1963, art 8, Sec. 9 to ascertain whether it was the intent of the people to authorize by regulations the imposition of fees upon nonresident persons seeking to borrow books from a library.

Before pursuing this task, reference is made to OAG, 1979-1980, No 5739, p 872, 874 (July 15, 1980), which concluded that under this constitutional provision declaring that public library facilities be available to all residents of the state, 'the right of state residents to use the facilities of any public library includes not only the right to enter a public library and read books there, but the same right to borrow books that is offered to residents of the community in which the library is located, subject to reasonable regulations.'

The first rule of constitutional construction to be observed is that words in the constitution be given their commonly understood meaning, the meaning that the great mass of people adopting Const 1963 must have given them. Traverse City School Dist, supra. Webster defines the noun 'regulation' as 'an authoritative rule or principle dealing with details of procedure; esp: one intended to promote safety and efficiency.' Webster's Third New International Dictionary.

This may be an appropriate definition for 'regulation' as it appears in Const 1963, art 8, Sec. 9. Defining 'regulation' as an 'authoritative rule or principle' comports with the Address to the People, which says that the availability of library facilities is subject to 'reasonable rules.' 2 Official Record, Constitutional Convention 1961, p 3397.

Webster's definition also recognizes that 'regulations' deal with details of procedure and are especially intended to promote safety and efficiency. It is apparent that library regulations may be perceived as procedural rules to promote the safety of the library's facilities and its efficient administration. Such regulations could include the setting of library hours and the manner of use of certain special materials, such as fragile old documents and microfilm. See, statement of Delegate Dehnke, 1 Official Record, Constitutional Convention 1961, p 836.

For a nonresident fee to qualify as a 'regulation,' it must be pursuant to a validly promulgated rule; it must deal with a detail of procedure; and it must serve to promote safety or efficiency. A rule imposing a nonresident borrowing fee adopted by a library board may be phrased in a manner making it a rule dealing with a detail of procedure. Whether the imposition of such a fee for the purpose of recouping the costs attributable to nonresident borrowing is intended to promote the safety and efficiency of library facilities, is not clear. Imposition of nonresident borrowing fees by a library board as a means of recouping any integral library expenses may represent an attempt to provide for the general support of the public library.

It is demonstrable that local library boards are not expressly authorized by Const 1963, art 8, Sec. 9 to promulgate rules imposing fees for the general support of public libraries.

Because the underscored language of Const 1963, art 8, Sec. 9, is new, it is appropriate to consult the debates of the constitutional convention to ascertain the surrounding circumstances and the purpose sought to be accomplished by the revised provision. Regents of the University of Michigan v State, supra; Advisory Opinion on Constitutionality of 1978 PA 426, supra.

Const 1963, art 8, Sec. 9, the replacement provision for Const 1908, art XI, Sec. 14, originated as the constitutional convention's Committee Proposal 31 offered by the Committee on Education. The language of that proposal shows the words to be deleted from Const 1908, art XI, Sec. 14 brackets and the new words in capital letters:

Delegate Bentley, Chairman of the Committee on Education submitting Committee Proposal 31, offered the following reasons in support of the Committee Proposal:

After debating and amending other aspects of the proposal, opposition to permitting nonresident access to public library facilities arose:

Delegates Bentley and Andrus, the Chairperson of the subcommittee on libraries of the Committee, responded that the purpose of the new language was to extend library services to residents of the state not served by libraries, primarily through contracts. Delegate Bentley indicated that the committee presumed that legislation would be drafted enabling local library boards to make rules within such paramenters that the Legislature deemed appropriate. 1 Official Record, Constitutional Convention 1961, p 835.

An amendment allowing libraries to adopt reasonable regulations was substituted for the Delegate Leibrand amendment to strike the availability language:

Following a reading of the proposal, with the proposed amendment, neither Delegate Leibrand nor Delegate Dehnke took the opportunity to speak further on the matter. While it may be contended that Delegate Leibrand may have thought Delegate Dehnke's amendment of Proposal 31 would permit the imposition of nonresident borrowing fees, Delegate Dehnke's statement offered no express indication that imposing nonresident borrowing fees was contemplated by the phrase 'under reasonable regulations.' Delegate Dehnke indicated that the amendment would permit local library boards to set hours for the library 'and all that sort of thing.'

While no delegate supporting or objecting to Delegate Dehnke's amendment discussed whether the added language would authorize the imposition of nonresident borrowing fees, Delegates Kuhn and Faxon, as members of the subcommittee on libraries, expressed their intent that contracts between public libraries and neighboring municipalities without a public library would not be affected by the proposed amendment. 2 Official Record, Constitutional Convention 1961, p 836-837. The Dehnke amendment was adopted by the convention. 1 Official Record, Constitutional Convention 1961, p 836-837.

The committee on style and drafting made minor changes in wording to omit 'reasonable' and add 'ADOPTED BY THE GOVERNING BODIES THEREOF.' Delegate Bentley and Delegate Gadola engage in the following colloquy:

It must be concluded that the convention debates are inconclusive and provide no clarification whether the intended scope of 'regulations' included the imposition of fees to be paid by nonresident persons not eligible to receive contracted services within the intendment of Const 1963, art 8, Sec. 9. However, there is a common thread meaning indicated of the intent of the drafters that Const 1963, art 8, Sec. 9, shall in no way impede the authority of public libraries to enter into contracts with neighboring municipalities to provide library services for residents of such neighboring municipalities.

It follows that the framers intended that the constitutional grant of authority to adopt regulations relating to the availability of library services be restricted to those persons who resided in townships which do not have a public library and which are not under contract with a public library for the provision of full library services for its residents. It is necessary, therefore, to determine whether the governing body of a library, in the exercise of the authority conferred by Const 1963, art 8, Sec. 9, may promulgate regulations imposing fees upon nonresident borrowers who are not eligible, pursuant to contract, to receive full services from the library.

Recognizing that Const 1963, art 8, Sec. 9 does not expressly authorize the imposition of borrowing fees upon nonresident borrowers pursuant to regulations adopted by the governing body of a library does not terminate the inquiry into the validity of such fees in light of the fact that said constitutional provision directs the Legislature to provide for the establishment and support of public libraries.

Research reveals no Michigan statutes expressly authorizing or directing the imposition by libraries of borrowing fees upon nonresidents.

In the statutes providing for the establishment of various types of libraries, the Legislature has conferred certain powers upon the governing boards of libraries. 1931 PA 250, Sec. 5; MCLA 397.155; MSA 15.1785 (regional libraries); 1877 PA 164, Secs. 5, 11; MCLA 397.205, 397.211; MSA 15.1665, 15.1672 (city, township and village libraries); 1955 PA 164, Sec. 4; MCLA 397.274; MSA 15.1780(4) (district libraries). Although none of these statutes expressly authorizes the imposition of fees, each contains a general grant of authority to library boards to pass any bylaws, rules and regulations which may be expedient for the government of the board or the library, so long as the bylaws, rules or regulations are not inconsistent with the enabling acts.

Since each of the statutes enumerating the powers of the library boards contains substantially similar general grant of regulation authority, consideration of only one of the general grants is appropriate. 1931 PA 250, Sec. 5, supra, setting forth the powers of the board of trustees of each regional library, provides, in pertinent part:

As to authority to enter into contracts, it should also be observed that 1877 PA 164, Sec. 14; MCLA 397.214; MSA 15.1675, empowers cities, incorporated villages and townships operating free public libraries to contract with townships for full use of such library by its residents and the township to levy not more than one mill upon the assessed valuation of the township upon approval of the township electors.

In order to read 1931 PA 250, Sec. 5, supra, as well as the comparable provision in the other cited statutes providing for the establishment of libraries cited above in a constitutional manner, they must be read in harmony with Const 1963, art 8, Sec. 9 as they relate to nonresidents seeking to borrow books from a library where the township in which such persons reside has not availed itself of such services for its residents through contract authorized by 1877 PA 164, Sec. 14, supra.

The imposition of a borrowing fee appears to be in the nature of a license. 'A license is the permission by competent authority to do an act which, without such permission, would be illegal.' People v Henderson, 391 Mich 612, 616; 218 NW2d 2, 4 (1974). By paying a fee, and presumably receiving some sort of library card, a nonresident receives permission under the regulations of the library board to remove books from a public library. Without such permission, removal may constitute larceny from a public library punishable as a misdemeanor. 1931 PA 328, Sec. 364; MCLA 750.364; MSA 28.596. Thus, the imposition of a nonresident borrowing fee as a condition to removing books from a library serves to operate as a license.

Although research reveals no Michigan case directly on point, it has been held that the power to regulate implies the power to license. State, ex rel Hollywood Jockey Club, Inc v Stein, 133 Fla 530, 543; 182 So 863, 868 (1938); and 76 CJS, Regulate, 613, defining 'regulate.'

Recognizing that the Legislature has implicitly authorized library boards to license potential borrowers of books, Const 1963, art 8, Sec. 9 must be read to include authority to impose fees upon those nonresident users seeking to borrow from a library who are not eligible to receive full library services under existing contract with the library.

The standard for assessing the validity of a license fee was set by the Michigan Supreme Court in Vernor v Secretary of State, 179 Mich 157, 167-168; 146 NW 338, 341-342 (1914):

It has also been held in Merrelli v City of St. Clair Shores, 355 Mich 575, 588; 96 NW2d 144 (1959), that the police power may not be used as a subterfuge to enforce what is in reality a revenue raising measure. The law does not require a precise correlation between costs and fees, only a reasonable relation. The revenue derived from the licensing fees may not be disproportionate to the cost of issuing the license and the direct and indirect cost of administration.

If a nonresident borrowing fee is imposed as a means of producing revenue in that it bears no reasonable relation to the borrowing costs, then it is a tax. If, however, the fee is charged to recoup the costs of issuing a library card and to defray the expenses, direct and indirect, of regulating the borrowing of books, the return of books and the attendant administrative costs, then the fee may be upheld as a reasonable regulation.

It must be stressed that the power to tax rests solely with the Legislature pursuant to Const 1963, art 9, Secs. 1 and 2, so that neither a state agency nor a subdivision of the state may impose a tax not authorized or mandated by law. OAG, 1977-1978, No 5366, p 623 (September 18, 1978).

Since neither Const 1963, art 8, Sec. 9 nor Acts of the Legislature cited above authorize a library board to impose any form of taxation, no library board in this state may impose taxes in the form of a fee to be paid by nonresident persons seeking to borrow books from a library.

It is my opinion, therefore, that the governing body of a public library may, pursuant to Const 1963, art 8, Sec. 9, adopt reasonable regulations imposing borrowing privilege fees upon nonresident users who are not entitled to the services of said library pursuant to contract entered into with the governmental unit of the borrower's residence, provided that the fees imposed reasonably relate to the costs incurred by the library in making borrowing privileges available to such nonresident, and provided that the fees are not disproportionate to the cost, direct and indirect, of issuing a library card, facilitating the return of loaned books, and the attendant cost of administration.

Frank J. Kelley

Attorney General