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

JENNIFER M. GRANHOLM, ATTORNEY GENERAL


ASSESSMENTS:

CONSTITUTIONAL LAW:

REAL ESTATE:

STATE LANDS:

TOWNSHIPS:

Township assessing university lands for fire protection services

Legislature's power to subject university lands to special assessments

Lands owned by the Michigan State University Board of Trustees cannot be specially assessed by a municipality for fire protection services under 1951 PA 33.

The Legislature may, without offending Const 1963, art 8,  5, amend 1951 PA 33 to subject lands owned by the Michigan State University Board of Trustees to special assessments.


Opinion No. 7075

February 7, 2001


Honorable Jerry Vander Roest
State Representative
The Capitol
Lansing, MI

You have asked whether lands owned by the Michigan State University Board of Trustees can be specially assessed by a township for fire protection services under 1951 PA 33.

1951 PA 33, MCL 41.801 et seq; MSA 5.2640(1) et seq, authorizes townships to provide police and fire protection and to levy and collect special assessments to defray the cost of such services. Your question asks if Michigan State University lands are subject to special assessments levied under this statute.

The Michigan State University Board of Trustees is a constitutional body corporate. Const 1963, art 8, 5. The university's lands, buildings and equipment controlled by its board of trustees "are public property, owned by the State of Michigan." See Lucking v People, 320 Mich 495, 503; 31 NW2d 707 (1948). By constitution and statute, the lands remain under the exclusive control and management of the board of trustees. Const 1963, art 8, 5, supra; 1909 PA 269, MCL 390.106; MSA 15.1126; Michigan United Conservation Clubs v Bd of Trustees of Michigan State Univ, 172 Mich App 189, 191-192; 431 NW2d 217 (1988).

The law is well-settled that lands owned by the state are exempt from special assessments unless assessment is expressly authorized by legislation. People ex rel Auditor General v Ingalls, 238 Mich 423, 425; 213 NW 713 (1927); 2 OAG, 1958, No 3099, p 11, 13 (January 13, 1958); OAG, 1981-1982, No 5967, p 342 (August 27, 1981), and OAG, 1999-2000, No 7042, p 85 (February 18, 2000). 1951 PA 33 includes no language subjecting state university lands1 to special assessment for fire protection purposes.

It is my opinion, therefore, that lands owned by the Michigan State University Board of Trustees cannot be specially assessed by a municipality for fire protection services under 1951 PA 33.

You have also asked whether the Legislature may, without offending Const 1963, art 8,  5, amend 1951 PA 33 to subject lands owned by the Michigan State University Board of Trustees to special assessments.

Const 1963, art 8,  5, places the entire control and management of the universities' property and affairs in their governing boards and provides for autonomy in the educational sphere.

The regents of the University of Michigan and their successors in office shall constitute a body corporate known as the Regents of the University of Michigan; the trustees of Michigan State University and their successors in office shall constitute a body corporate known as the Board of Trustees of Michigan State University; the governors of Wayne State University and their successors in office shall constitute a body corporate known as the Board of Governors of Wayne State University. Each board shall have general supervision of its institution and the control and direction of all expenditures from the institution's funds.2 Each board shall, as often as necessary, elect a president of the institution under its supervision. He shall be the principal executive officer of the institution, be ex-officio a member of the board without the right to vote and preside at meetings of the board. The board of each institution shall consist of eight members who shall hold office for terms of eight years and who shall be elected as provided by law. The governor shall fill board vacancies by appointment. Each appointee shall hold office until a successor has been nominated and elected as provided by law. [Emphasis added.]
The constitutional autonomy granted to the three named universities in Const 1963, art 8,  5, primarily concerns educational and financial matters. Federated Publications, Inc v Michigan State Univ Bd of Trustees, 460 Mich 75, 87; 594 NW2d 491 (1999). This autonomy, however, does not exempt these institutions from the realm of state law or allow them to thwart the public policy of the state. Regents of the Univ of Michigan v Employment Relations Comm, 389 Mich 96, 108; 204 NW2d 21 (1973).

In 1 OAG, 1955, No 2227, p 721 (December 9, 1955), a question was raised whether certain legislation was inconsistent with the constitutional delegation of authority to the State Board of Agriculture as the controlling body of Michigan State University. After surveying case law that discussed the powers of the Legislature vis-a-vis the State Board, it was concluded that the appropriate test was one of exclusiveness, p 727:

The only possible way to reconcile the exclusive constitutional power of control given the State Board of Agriculture and the general legislative power of the Legislature is, in our opinion, to apply the test we have hereinbefore described, that is, the test of exclusiveness. To give the Legislature law making power in matters dealing exclusively with the operation of . . . [Michigan State] University would be to render meaningless the provisions of [Const 1908] Article XI, section 8. To hold that the Legislature did not have powers in matters of general law not relating exclusively to the operation of the University would be to make the campus of the Michigan State University an island exempt from all law other than that formulated and applied by the State Board of Agriculture.

Clearly, neither was the intent of the Constitution. Such a division of authority is not new under our Constitution. We have it in Article XI, section 5, with reference to the Regents of the University of Michigan. We find it in Article VI, section 22, with reference to the Civil Service Commission. The rights and powers can be reconciled. They must be reconciled. We conclude that this solution does reconcile them.
The exclusive power to authorize the imposition of taxes and special assessments is vested in the Legislature pursuant to Const 1963, arts 4 and 9. No provision of the constitution precludes the Legislature from subjecting state-owned lands under the supervision of a governing body named in Const 1963, art 8, 5, to the imposition of taxes and special assessments.

It is my opinion, therefore, in answer to your second question, that the Legislature may, without offending Const 1963, art 8,  5, amend 1951 PA 33 to subject lands owned by the Michigan State University Board of Trustees to special assessments.

JENNIFER M. GRANHOLM
Attorney General

1 If state-owned real property located within a municipality includes buildings, the municipality may be able to seek reimbursement from the state for fire protection services provided to such buildings. See 1977 PA 289, MCL 141.951 et seq; MSA 4.208(1) et seq.

2 The text of this sentence is virtually the same as that set forth in Const 1850, art 13,  8, and Const 1908, art 11,  5, with respect to the board of regents and Const 1908,
art 11,  8, with respect to the then state board of agriculture with respect to the "agricultural college," now Michigan State University.