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


CONSTITUTIONAL LAW:

LEGISLATURE:


Legislature's authority to require greater vote than authorized by constitution

Legislature's authority to restrict itself and subsequent Legislatures


The Legislature may not, by statute, require a three-fifths vote to enact legislation for which the constitution otherwise requires a simple majority vote.

The Legislature may not, by statute, restrict the ability of itself and subsequent Legislatures to adopt, amend and repeal statutes.


Opinion No. 6990

August 10, 1998


Honorable John J. H. Schwarz, M.D.
State Senator
The Capitol
Lansing, Michigan


You have asked two questions concerning whether the Legislature may require that it and subsequent Legislatures may not, without a "super majority" vote, adopt, amend or repeal statutes imposing taxes. Your inquiry is prompted by four bills recently introduced in the Senate (SBs 1163, 1164, 1165 and 1166) which, if enacted into law, would amend the Single Business Tax Act1, the Use Tax Act2, the General Sales Tax Act3, and the Michigan Income Tax Act of 19674, to require a three-fifths vote on legislation increasing taxes, expanding the tax base, or reducing or repealing existing tax exemptions or preferences.

You first ask whether the Legislature may, by statute, require a three-fifths vote to enact legislation for which the constitution otherwise requires a simple majority vote.

Const 1963, art 4, 1, provides that: "The legislative power of the State of Michigan is vested in a senate and a house of representatives." This legislative power has been described as plenary and equivalent to the legislative powers asserted by the Parliament of the United Kingdom, except so far as the people of this state have limited it. Harsha v Detroit, 261 Mich 586, 590; 246 NW 849 (1933); Advisory Opinion on Constitutionality of 1976 PA 240, 400 Mich 311; 254 NW2d 544 (1977); and Sessa v State Treasurer, 117 Mich App 46, 54; 323 NW2d 586 (1982). The court in Harsha, supra, p 590, quoted with approval 1 OAG 1959-1960, No 3424, p 110-111 (June 4, 1959), as follows:

The legislative power is the authority to make, alter, amend, and repeal laws. 1 Cooley, Constitutional Limitations (8th Ed.), p. 183. In this State, it is co-extensive with that of the parliament of England, save as limited and restrained by the State and Federal Constitutions. 1 Cooley, Constitutional Limitations (8th Ed.), p. 177; 12 C. J. p. 749. One legislature cannot limit or restrict the power of its successor. 12 C. J. p. 806.

The People have, by constitutional provision, limited the methods by which the Legislature exercises this otherwise unrestricted legislative power. For example, Const 1963, art 4, 22 and 26, respectively, require that:

All legislation shall be by bill and may originate in either house.

No bill shall become a law without the concurrence of a majority of the members elected to and serving in each house.

In at least five instances, the People have required a larger "super majority" vote to enact specific types of legislation.5 Similarly, in at least six instances, the People have required a "super majority" vote with respect to other legislative matters.6

Unlike the provisions referenced in footnotes 5 and 6, there is no constitutional authorization for the Legislature to impose a "super majority" voting requirement in the circumstances implicated by your question. Indeed, 82 C.J.S., Statutes, 243, p 412, explicates:

Generally, the power to amend statutes resides in the lawmaking body . . . . While it is as competent for the people to withhold from the legislature the power of amending an act as to withhold the power of amending the constitution itself, generally the power to amend or modify statutes resides in the legislature, in any manner not inconsistent with some provision of the constitution limiting the legislative power in that respect; [citing inter alia Ziegler v Witherspoon, 331 Mich 337; 49 NW2d 318 (1951).]

(emphasis added) (footnotes omitted).

The People, by their constitution, have mandated the procedures by which the Legislature may enact laws and have specified the vote needed for passage of bills enacting, amending and repealing legislation. The Legislature is powerless to limit the constitutional authority granted to itself with respect to the votes required for adopting, amending, and repealing public acts. Accordingly, it has been held that, "'[n]either the legislature, nor [the judiciary], has any right to amend or change a provision in the Constitution.'" House Speaker v Governor, 443 Mich 560, 592; 506 NW2d 190 (1993), quoting Pillon v Attorney General, 345 Mich 536, 547; 77 NW2d 257 (1956).

It is my opinion, therefore, in response to your first question, that the Legislature may not, by statute, require a three-fifths vote to enact legislation for which the constitution otherwise requires a simple majority vote.

Your second question asks whether the Legislature may, by statute, restrict the ability of itself and subsequent Legislatures to adopt, amend and repeal statutes.

A "legislature cannot restrict or limit its right to exercise the power of legislation by prescribing modes of procedure for the amendment of statutes." 82 C.J.S., Statutes, 243, p 413, citing inter alia, Atlas v Wayne County Bd of Auditors, 281 Mich 596; 275 NW 507 (1937). Consistent with this proposition, the court in State ex rel Nevada County v Hicks, 48 Ark 515, 521; 3 SW 524 (1886), noted a Legislature's inability to restrict its own powers:

In passing on a somewhat similar statute the Supreme Court of Illinois holds that "it is not competent for the legislature to limit its own legislative powers by prescribing rules intended to govern the method of repealing and amending statutes. The power to repeal and amend statutes is vested in the legislature by the constitution, and the legislature cannot deprive itself of the right to exercise this power by prescribing rules as to the method in which it shall be done." Mix v Ill Cen. Rd. Co. (Syllabus), 6 North Eastern Rep., p 42.

As the text of the Mix opinion succinctly states:

It is hardly necessary to say it is not competent for the legislature to limit its own legislative powers, even if it should attempt to do so.

Mix v Illinois Cent R Co, 116 Ill 502; 3 NE 42, 44 (1886).

A Legislature may not tie the hands of future Legislatures. In Atlas v Wayne County Bd of Auditors, supra, 281 Mich at 599, the court restated the rule that the Legislature is powerless to restrict itself or its successors.

The presumption is against making a statute irrepealable. Cooley's Constitutional Limitations (6th Ed.), p. 146; Black on Interpretation of Laws, 51; Saginaw County Board of Supervisors v. Hubinger, 137 Mich. 72 (4 Ann. Cas. 792). The act of one legislative body does not tie the hands of future legislatures. Cooper, Wells & Co. v. City of St. Joseph, 232 Mich. 255. The power to amend and repeal legislation as well as to enact it is vested in the legislature, and the legislature cannot restrict or limit its right to exercise the power of legislation by prescribing modes of procedure for the repeal or amendment of statutes; nor may one legislature restrict or limit the power of its successors. 12 C. J. p. 806.7 One legislature cannot enact irrepealable legislation or limit or restrict its own power, or the power of its successors, as to the repeal of statutes; and an act of one legislature is not binding on, and does not tie the hands of, future legislatures. 59 C. J. p. 900.8

(Emphasis added.)

Through the Senate bills described in your letter, the Legislature is purporting to limit its own constitutional authority, thereby restricting itself as well as future Legislatures. Based on the above authorities, however, the Legislature lacks the authority to so restrict itself and its successors.

It is my opinion, therefore, in response to your second question, that the Legislature may not, by statute, restrict the ability of itself and subsequent Legislatures to adopt, amend, or repeal statutes.


FRANK J. KELLEY
Attorney General



1 MCL 208.1 et seq; MSA 7.558(1) et seq.

2 MCL 205.91 et seq; MSA 7.555(1) et seq.

3 MCL 205.51 et seq; MSA 7.521 et seq.

4 MCL 206.1 et seq; MSA 7.557(101) et seq.

5 See, e.g., Const 1963, art 4, 30 (two-thirds approval of both houses required for the appropriation of public money or property for local or private purposes); Const 1963, art 9, 3 (laws increasing the maximum amount of ad valorem property taxes levied for school district operating purposes require three-fourths approval by both houses); Const 1963, art 9, 27 (provides that the revenue limit of section 26 of that article may be exceeded only if three specified conditions are met, including a two-thirds vote by each house); Const 1963, art 4, 33 (gubernatorial veto may be overridden by a two-thirds vote of the members elected to and serving in each house); and Const 1963, art 10, 5 (Legislature may designate certain state-owned real property as state land reserves if adopted by a two-thirds vote of the members elected to and serving in each house).

6 See, e.g., Const 1963, art 11, 7 (concurrence of two-thirds of the senators elected to and serving is required to convict a person impeached by the house of representatives); Const 1963, art 12, 1 (legislative proposals to amend the constitution be concurred in by not less than two-thirds of the members elected to and serving in each house). See also, Const 1963, art 4, 27 (two-thirds majority required to give a public act immediate effect); Const 1963, art 4, 29 (two-thirds majority to enact or repeal a local or special act); Const 1963, art 4, 12 (two-thirds majority required for concurrent resolution rejecting state officer compensation commission determination of salaries and allowance of state officers); and Const 1963, art 6, 25 (removal by concurrent resolution of a judge by two-thirds majority for a reasonable cause which is not a sufficient grant for impeachment).

7 12 Corpus Juris, Constitutional Law, p 806.

8 59 Corpus Juris, Statutes, 900.