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. 6745 December 22, 1992 CONSTITUTIONAL LAW: Const1963, art 4, Sec. 25--requirement that a section or sections of an act to be amended must be reenacted and published at length 1992 PA 154, section 318, does not amend 1954 PA 99, or 1941 PA 205, contrary to Const1963, art 4, Sec. 25. The following language in 1992 PA 154, section 321, "the limited access highway located in the vicinity of the International bridge in the city of Sault Ste. Marie" is unconstitutional because it indirectly amends 1941 PA 205, section 2, without reenactment and publishing of its provisions, in violation of Const1963, art 4, Sec. 25. Honorable Wilfred D. Webb State Representative The Capitol Lansing, MI You have asked whether the enactment of sections 318 and 321 of 1992 PA 154 violate Const1963, art 4, Sec. 25, by amending 1954 PA 99, MCL 254.221 et seq; MSA 9.1331(1) et seq, or 1941 PA 205, MCL 252.51 et seq; MSA 9.1094(1) et seq. These two sections of the 1992-1993 appropriations act for the Michigan Department of Transportation (MDOT) provide: Sec. 318. The department may permit space on public passenger transportation properties to be occupied by public or private tenants on a competitive market rate basis. The department may require that revenue from the tenants be placed in an account to be used for the costs of maintaining and improving the property. Sec. 321. The department may provide for use of the limited access highway located in the vicinity of the International bridge in the city of Sault Ste. Marie and the limited access highway located in the vicinity of the Blue Water bridge in Port Huron for facilities to sell only those articles which are for export and consumption outside the United States to the extent that such use is not restricted by federal law. Revenue derived from these facilities shall be deposited in the fund created pursuant to section 7 of Act No. 99 of the Public Acts of 1954, being section 254.227 of the Michigan Compiled Laws, in the case of the International bridge and in the state trunk line fund in the case of the Blue Water bridge. Section 318 of 1992 PA 154 purports to confer permissive authority on MDOT to allow the occupancy of space on public passenger transportation property and earmarks revenue from the leases for maintenance and improvement of the property. (1) While conditions may validly be placed on appropriations, such "boilerplate" has but a one year life span. OAG, 1989-1990, No 6603, pp 229, 236 (October 9, 1989). However, it is not necessary to address whether there are any circumstances under which section 318 could properly be invoked since your request is expressly limited to whether sections 318 and 321 amend 1954 PA 99, supra, or 1941 PA 205, supra, in violation of Const1963, art 4, Sec. 25. Section 321 of 1992 PA 154 authorizes MDOT to permit use of certain limited access highways for the sale of articles for export and consumption outside the United States. These retail facilities are commonly referred to as duty-free outlets. Section 321 would grant this authority for duty-free outlets in the vicinity of the International Bridge at Sault Ste. Marie, Michigan, and in the vicinity of the Blue Water Bridge in Port Huron, Michigan. Section 321 would also earmark the revenue from those duty-free facilities. Both bridge facilities are located, in part, on limited access highways. 1935 PA 237, section 2, MCL 254.202; MSA 9.1312, established the International Bridge Authority of Michigan composed of three members, empowered by 1954 PA 99; section 3(m), MCL 254.223(m); MSA 9.1331(3)(m), "[t]o make and enter into all contracts and agreements necessary or incidental to the performance of its duties and execution of its powers under this act." By its terms, section 318 deals with the lease of space in public passenger transportation properties and section 321 relates to use of limited access highway premises at the International Bridge for duty-free outlet purposes. From a plain reading, neither section 318 nor section 321 of 1992 PA 154 conflicts with the general grant of power to the International Bridge Authority of Michigan conferred by 1954 PA 99, section 3(m), supra, to enter into contracts. Thus, there is no amendment of that statute by either section 318 or section 321 of 1992 PA 154. Section 2(2) of 1941 PA 205, MCL 252.52(2)(2); MSA 9.1094(2)(2), authorizes MDOT to allow the installation of vending machines at locations on the limited access highways to be operated by the Commission for the Blind. That subsection then sets forth a general prohibition against any other commercial enterprise being conducted within a limited access highway, as follows: (2) The state transportation department shall allow the installation of only vending machines at selected sites on the limited access highway system to dispense food, drink, and other articles as the department determines are appropriate. The department shall allow the installation of only vending machines at selected travel information centers. Following a 2-year trial period the department shall use its discretion with the advise [sic] of the commission for the blind to allow only vending machines at other locations on the limited access highway system. The vending machines shall only be operated by the commission for the blind which is designated as the state licensing agency under section 2(a)(5), chapter 638, 49 Stat. 1559, 20 U.S.C. 107a. Except as otherwise provided in this section, no other commercial enterprise shall be authorized or conducted within or on property acquired for or designated as a limited access highway.... [Emphasis added.] A specific exception from that prohibition, however, is set forth in section 2(3) and (5) of 1941 PA 205, supra, as added by 1990 PA 97, and recently amended by 1992 PA 243, authorizing MDOT to permit a duty-free outlet in the vicinity of the Blue Water Bridge: (3) In conjunction with the exemption granted by federal law from the restrictions contained in section 1 of Public Law 85-767, 72 Stat. 895, 23 U.S.C. 111, this section shall not prohibit the use of facilities located in part on the right-of-way of I-94 in the vicinity of the interchange of I-94 and I-69 business loop/I-94 business loop (2) for the sale of only those articles which are for export and consumption outside the United States. (5) The state transportation department may enter into a lease for facilities described in subsection (3) or (4) the revenue from which shall be deposited in the state trunk line fund if attributable to the blue water bridge site. A comparison of section 2 of 1941 PA 205, supra, and sections 318 and 321 of 1992 PA 154 discloses no conflict with regard to the Blue Water Bridge location. The authority which section 321 confers on MDOT for a duty-free outlet at the Blue Water Bridge is essentially duplicative of powers MDOT already has under section 2 of 1941 PA 205, supra. Thus, there is no conflict between the two provisions. With regard to the International Bridge, however, the express language of section 2(2) of 1941 PA 205, supra, prohibits the conduct of a duty-free outlet or other commercial enterprise within this limited access highway. (3) Section 321 would indirectly amend section 2(2) of 1941 PA 205, supra, to create an additional exception for the International Bridge similar to the exception created expressly in 1941 PA 205, section 2(3) and (4), supra, for the Blue Water Bridge. Const1963, 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 Alan v Wayne County, 388 Mich 210, 281; 200 NW2d 628 (1972), the Supreme Court adopted a succinct formulation of that constitutional requirement, citing an earlier case: (4) Mok stands for the rule that you cannot amend statute C even by putting in statute B specific words to amend statute C, unless you republish statute C as well as statute B under Const1963, art 4, Sec. 25. We adopt the rule of Mok.... If a bill under consideration is intended whether directly or indirectly to revise, alter, or amend the operation of previous statutes, then the constitution, unless and until appropriately amended, requires that the Legislature do in fact what it intends to do by operation. 388 Mich at 285. See, OAG, 1975-1976, No 4896, pp 132, 138-148 (September 9, 1975), for a thorough discussion and application of Const1963, art 4, Sec. 25. Section 321, as it applies to the International Bridge, was enacted without observing the requirements of reenactment and publication of the provisions of 1941 PA 205, section 2, supra. It is my opinion, therefore, that the enactment of 1992 PA 154, section 318, does not amend 1954 PA 99, supra, or 1941 PA 205, supra, contrary to Const1963, art 4, Sec. 25. It is my further opinion that the following language in 1992 PA 154, section 321, "the limited access highway located in the vicinity of the International bridge in the city of Sault Ste. Marie" is unconstitutional because it indirectly amends 1941 PA 205, section 2, supra, without reenactment and publishing of its provisions, in violation of Const1963, art 4, Sec. 25. Since the remaining provisions of section 321 may be given effect without the unconstitutional language, they are valid. MCL 8.5; MSA 2.216; OAG, 1989-1990, No 6603, 229, 244 (October 9, 1989). If it is the desire of the Legislature to amend 1941 PA 205, supra, so as to permit operation of a duty-free outlet within the limited access highway in the vicinity of the International Bridge, it must directly amend that statute. (5) Frank J. Kelley Attorney General (1 To the extent that it would be consistent with the furtherance of transportation purposes, MDOT already has the implied statutory authority to permit the occupancy of space on public passenger transportation properties as described in section 318)
(2 This describes the vicinity of the Blue Water Bridge in the City of Port Huron)
(3 Such retail selling of goods would be a "commercial enterprise)
" In Stribley v Michigan Marine, Inc., 42 MichApp 218, 221; 201 NW2d 702 (1972), the court stated: "Commercial activity has to do with business transactions with profit as the motive." A dredging operation in front of defendant's lots to permit ingress and egress for boats and to supply fill for a proposed marina complex was found to be part of a "commercial enterprise."(4 Mok v Detroit Building & Savings Ass'n, 30 Mich 511 (1875))
(5 SB 786 and SB 787 currently pending before the Legislature would amend 1954 PA 99 and 1941 PA 205, respectively, for this purpose)
To date, neither bill has been enacted. It may also be necessary to seek an amendment to federal law. See, section 2 of 1941 PA 205, supra, for a reference to restrictive federal law.