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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. 6496 February 9, 1988 CONSTITUTIONAL LAW: Const 1963, art 9, Sec. 9--use of fee for registration of motorcycles for motorcycle safety education purposes MOTOR VEHICLES: Motorcycle registration fee use for motorcyle safety education purposes The $3.00 additional fee imposed upon the registration of motorcycles for motorcycle safety education purposes is a lawful regulatory fee under Const 1963, art 9, Sec. 9. James P. Pitz Director Michigan Department of Transportation Transportation Building 425 W. Ottawa Street Lansing, Michigan 48909 You have requested my opinion on whether the $3.00 motorcycle registration charge imposed by the Michigan Vehicle Code, 1949 PA 300, Sec. 801(1)(n), MCL 257.801(1)(n); MSA 9.2501(1)(n), to finance a motorcycle safety education program is violative of Const 1963, art 9, Sec. 9. Prior to its amendment in 1982, Act 300, Sec. 801(1)(n) (1), provided in pertinent part: '(1) The secretary of state shall collect the following taxes at the time of registering a vehicle, . . . '(o) For each motorcycle . . . 12.00' The Legislature amended Act 300, Sec. 801, in 1982, but only the last amendment needs to be examined to answer your question. 1982 PA 439 (2) amended Act 300, Sec. 801(1)(o), to read as follows: '(1) The secretary of state shall collect the following taxes at the time of registering a vehicle, . . . '. . . . '(o) For each motorcycle . . . $14.00 '. . . . 'Beginning January 1, 1984, the registration tax for each motorcycle shall be increased by $3.00. The $3.00 increase shall not be considered as part of the tax assessed under this subdivision for the purpose of the annual October 1 revisions but shall be in addition to the tax assessed as a result of the annual October 1 revisions. Beginning January 1, 1984, $3.00 of each motorcycle fee shall be placed in a motorcycle safety fund in the state treasury and shall be used only for funding the motorcycle safety education program as provided for under sections 312b and 811a.' (3) (Emphasis added.) The Michigan Vehicle Code, 1949 PA 300, Sec. 312b, as last amended by 1987 PA 85, MCL 257.312b; MSA 9.2012(2), provides as follows regarding the motorcycle safety education program: '(1) Before a person who is less than 18 years of age is issued an original motorcycle indorsement on an operator's or chauffeur's license, the person shall pass an examination as required by this section and a motorcycle safety course as provided in section 811a or 811b. '(2) Before a person who is 18 years of age or older is issued an original motorcycle indorsement on an operator's or chauffeur's license, the person shall pass an examination as required by this section. A person who fails this examination 2 or more times is required to successfully complete a motorcycle safety course as provided in section 811a or 811b. Each written examination given an applicant for a motorcycle indorsement on an operator's or chauffeur's license as provided in section 309 shall also include subjects designed to cover a motorcycle. A person shall pass an examination which shall include a driving test designed to test the competency of the applicant for the first motorcycle indorsement on an operator's or chauffeur's license to operate a motorcycle upon the highways of this state with safety to himself or herself and other persons and property. All examinations shall be administered as provided in this act. The requirement of a motorcycle driving test shall be waived for an applicant, other than an applicant under subsection (1), who has successfully completed a motorcycle safety course as provided in section 811a or 811b. The motorcycle safety course skills test must meet or exceed the motorcycle skills test from the department of state. The requirement of a motorcycle driving test may be waived if the applicant has a valid license or indorsement to operate a motorcycle from another state. '. . . . '(4) The secretary of state is responsible for establishing and conducting the motorcycle operator driving test and shall promulgate rules under the administrative procedures act of 1969, Act No. 306 of the Public Acts of 1969, as amended, being sections 24.201 to 24.328 of the Michigan Compiled Laws, for purposes of this subsection. The secretary of state shall be reimbursed from the motorcycle safety fund for additional reasonable costs incurred by the department in developing and administering the driving test required under this section. . . .' (Emphasis added.) The Michigan Vehicle Code, 1949 PA 300, Sec. 811a, as last amended by 1987 PA 85, MCL 257.811a; MSA 9.2511(1), provides as follows regarding the motorcycle safety education program: '(1) A motorcycle safety course required under section 312b conducted by a college or university, an intermediate school district, a local school district, a law enforcement agency, or any other governmental agency located in this state shall be conducted under this section. '. . . . '(7) An 8-hour motorcycle safety course that meets the standards established by the state board of education may be offered to an applicant who has passed a motorcycle operator skill test which has been approved by the state board of education. Successful completion of a motorcycle safety course under this subsection shall fulfill the waiver requirement of section 312b.' (Emphasis added.) Based upon the foregoing statutory provisions, it is apparent that the purpose of the motorcycle safety education program, funded in part by the $3.00 increase in the motorcycle registration fee, is to educate persons seeking licensure (4) to operate a motorcycle. Indeed, the statute makes completion of a motorcycle safety course a prerequisite for such licensure under specified circumstances. Const 1963, art 9, Sec. 9, imposes restrictions on the expenditure of fees imposed on registered motor vehicles. Since the $3.00 increase is imposed as part of the 'registration tax for each motorcycle,' (5) expenditure of it must perforce fall within the constitutional limitations. Const 1963, art 9, Sec. 9, provides in pertinent part: 'All specific taxes, except general sales and use taxes and regulatory fees, imposed directly or indirectly . . . on registered motor vehicles . . . shall, after the payment of necessary collection expenses, be used exclusively for transportation purposes as set forth in this section.' The answer to your question turns on an application of that language to the relevant provisions of the Michigan Vehicle Code. In Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971), the court set forth the primary rule of constitutional construction as follows: 'The primary rule is the rule of 'common understanding' described by Justice Cooley: "A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. 'For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.' (Cooley's Const Lim 81)" (Emphasis supplied by the court.) Utilizing this principle of construction, it may be noted as obvious that the additional $3.00 motorcycle registration fee does not fall within 'general sales and use taxes' and the intended expenditure of it does not constitute the 'payment of necessary collection expenses.' Accordingly, this specific tax must be evaluated to determine whether it is a regulatory fee, is being used exclusively for transportation purposes or falls outside constitutionally permissible purposes. Act 300, Sec. 801(1)(n), refers to the additional $3.00 charge both as a 'registration tax' and as a 'motorcycle fee.' The label assigned, however, is not conclusive in determining whether a charge is a 'tax' or a 'fee.' In SEMTA v Secretary of State, 104 Mich App 390, 339; 304 NW2d 846, 850-851, lv den 411 Mich 979 (1981), the court stated: 'The designation given by the Legislature to a tax is not controlling, although entitled to be given great weight. Banner Laundering Co v State Board of Tax Administration, 297 Mich 419, 429; 298 NW 73 (1941). In passing upon the constitutionality of a statute, the court looks to the operation of the tax imposed rather than to the labels or descriptive words used to define the tax.' In Melconian v Grand Rapids, 218 Mich 397, 410; 188 NW 521, 526 (1922), the court distinguished a license fee from a revenue measure while considering the validity of a city licensing ordinance: 'Section 3 provides for an annual license fee of $25 for the first taxicab and $10 for each other. These are said to be 'unjust, unreasonable and discriminatory;' that they 'are not for the purpose of regulation, but are for the purpose of revenue.' Such fees may include the cost of issuing the license, the cost of inspection and any expense incident to a reasonable supervision of the use of the streets by taxicabs. In fixing them, consideration may also be given to any consequences likely to subject the city to cost by reason of their use for the purpose permitted. We agree with the trial court that the fees fixed are not so large as to be subject to the objections stated.' The amount of a fee will be presumed to be reasonable and not taxation, unless the contrary appears on the face of the law itself or is established by proper evidence. Vernor v Secretary of State, 179 Mich 157; 146 NW 338 (1915). The term 'regulatory fee' was defined by the court in Emerson College v Boston, 391 Mass 415; 462 NE2d 1098, 1105, n 16 (1984), as follows: '[R]egulatory fees are not taxes if commensurate with governmental expenditures occasioned by the regulated party. The general rule as to regulatory fees is 'that the costs to the municipality which may be considered are [not] simply those which arise directly in the enforcement of the regulatory provisions themselves. The license fee may properly be fixed with a view to reimbursing the city, town, or county for all expenses imposed upon it by the business sought to be regulated." (Emphasis added.) The court also stated with regard to both user and regulatory fees: 'Such fees share common traits that distinguish them from taxes: they are charged in exchange for a particular governmental service which benefits the party paying the fee in a manner 'not shared by other members of society,' . . . they are paid by choice, in that the party paying the fee has the option of not utilizing the governmental service and thereby avoiding the charge, . . . and the charges are collected not to raise revenues but to compensate the governmental entity providing the services for its expenses.' 462 NE2d at 1105 (Citations omitted.) In Clements v McCabe, 210 Mich 207, 218; 177 NW 722 (1920), the court stated: 'To regulate a business, trade, occupation or amusement under the police power contemplates that it may be engaged in subject to prescribed rules or methods deemed essential for public peace, health and safety, . . ..' Those standards may be applied to your question. If the fee in question is a regulatory fee imposed on the registration of motorcycles, it is valid under Const 1963, art 9, Sec. 9. Insofar as motorcycles are concerned, measures to enhance their safe operation on the highways are undeniably proper concerns of any regulatory program. Just as the state may require that a motorcycle have safety equipment, the state may require that the person operating a motorcycle be trained in the safe operation of that vehicle. Enhancing the likelihood of such safe motorcycle operation is the express purpose of the $3.00 additional fee imposed to register a motorcycle. It is apparent that expenditures to assure the qualification of motorcycle operators are occasioned by the registration of motorcycles to operate on the highways. Expenditures to qualify motorcycle operators benefit those who register motorcycles in a manner not shared by other members of society. Indeed, there is no purpose for qualifying motorcycle operators except to enhance the safe operation of motorcycles on the highways. It is also important to note that the $3.00 additional fee is strictly controlled. It is not a revenue measure; it cannot be expended for purposes other than a motorcycle safety education program. That is an express requirement of Act 300, Sec. 801(1)(n). Moreover, Act 300, Sec. 811a(8), mandates an annual audit to confirm that there is no improper diversion of the fund: 'An annual audit of the motorcycle safety fund shall be conducted by the office of the auditor general to determine compliance with the requirements of this act with regard to the collection and expenditure of fees authorized under this section. A copy of this audit shall be transmitted to the legislature upon completion.' It must also be borne in mind that a statute is presumed to be constitutional and every reasonable presumption or intendment must be indulged in favor of its constitutionality. Rohan v Detroit Racing Ass'n, 314 Mich 326, 341; 22 NW2d 433 (1946). A statute will not be declared unconstitutional unless clearly so, or so beyond a reasonable doubt. Cady v Detroit, 289 Mich 499, 505; 286 NW 805 (1939). It is my opinion, therefore, that the $3.00 additional fee imposed upon the registration of motorcycles for motorcycle safety education purposes is a lawful regulatory fee under Const 1963, art 9, Sec. 9. Having reached that conclusion, it is unnecessary to consider whether financing a motorcycle safety education program is a 'transportation purpose' under that provision. Frank J. Kelley Attorney General (1)
(2)
1982 PA 187 first amended Sec. 801 to impose the $3.00 fee for a motorcycle safety education program; however, before the statutory effective date of that increase, January 1, 1984 (see, Sec. 2(1) of 1982 PA 187), 1982 PA 350 was enacted to again amend Sec. 801, but not in pertinent part. While 1982 PA 350 went into effect December 21, 1982, Act 300, Sec. 801(1)(o) was again amended by 1982 PA 439, effective January 1, 1984 (see Sec. 2 of 1982 PA 439) to delay implementation of the $3.00 increase until January 1, 1984.(3)
Subsequent to 1982 PA 439, Sec. 801, has been amended several times; however, the quoted language of the subsection has not been changed.(4)
Pursuant to the Michigan Vehicle Code, 1949 PA 300, Sec. 312a, MCL 257.312a; MSA 9.2012(1), '[a] person before operating a motorcycle upon a public street or highway in this state, shall procure a motorcycle indorsement on the operator's or chauffeur's license.' This indorsement, rather than a separate and distinct license, serves to 'license' a person to operate a motorcycle.(5)
Act 300, Sec. 801(1)(n). A motorcycle is a 'motor vehicle.' See the Michigan Vehicle Code, Act 300, Secs. 31 and 33, MCL 257.31 and 257.33; MSA 9.1831 and 9.1833.
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