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
Vote required for amendments to home rule village charter
A village established under the Home Rule Village Act may not enforce a charter requirement that proposed charter amendments be approved by a two-thirds vote of electors where the Legislature has required only a majority vote for such amendments.
Opinion No. 7081
April 17, 2001
Honorable Gary C. Peters
You have asked if a village established under the Home Rule Village Act may enforce a charter requirement that proposed charter amendments be approved by a two-thirds vote of electors where the Legislature has required only a majority vote for such amendments.
The Home Rule Village Act, 1909 PA 278, MCL 78.1 et seq; MSA 5.1511 et seq, provides for the incorporation of villages and for revising and amending their charters. The law is settled that "every municipal charter is subject to the Constitution and general laws of this State." City of Hazel Park v Municipal Finance Comm, 317 Mich 582, 599; 27 NW2d 106 (1947). Moreover, section 27 of the Home Rule Village Act provides that "[n]o provision of any village charter shall conflict with . . . any general law of the state . . . ." When there is a conflict between a state statute and a city charter provision with regard to the vote required to approve the issuance of bonds, the state statute prevails. City of Lansing v Bd of Canvassers, 380 Mich 496, 506-507, 510-511; 157 NW2d 264 (1968); OAG, 1921-1922, p 138 (May 19, 1921). Thus, we must examine whether a village charter requirement that its amendments be approved by more than a majority of the electors voting on the amendment conflicts with the Home Rule Village Act.
With regard to adopting charters and charter amendments, section 26(1)(d) of the Home Rule Village Act provides as follows:
(1) A village shall not do any of the following:
(d) Adopt a charter or amendment to a charter, unless approved by a majority of the electors voting on the charter or amendment at a general or special election. [Emphasis added.]
No reported Michigan case addresses whether section 26(1)(d) of the Home Rule Village Act prevents a village from requiring more than a majority vote for approval of charter amendments. The Michigan Supreme Court has, however, addressed this question in the context of virtually identical language in section 5(e) of the Home Rule City Act, MCL 117.1 et seq; MSA 5.2071 et seq, dealing with the approval of city charters and charter amendments. Section 5(e) of that act provides, with regard to approving city charters and amendments, as follows:
A city does not have power:
(e) To adopt a charter or an amendment to the charter unless approved by a majority of the electors voting thereon . . . . [Emphasis added.]
In Wagner v Ypsilanti Village Clerk, 302 Mich 636; 5 NW2d 513 (1942), the court addressed the adoption of a statute by the voters of a home rule city. By statute, the manner of adoption by a city was that "provided by law for amending charters." Id., at p 640. By resolution, the city council determined that a three-fifths vote was needed for adoption of the statute. Although a majority of the voters voted to adopt the statute, adoption was not approved by the three-fifths margin required by the city council. On that basis, the city council concluded that the state statute had not been adopted. The court found that where the Legislature has required a majority vote for charter amendments, a city lacks authority to impose a more stringent requirement. The court granted a writ of mandamus compelling the city to comply with the Home Rule City Act because city voters had lawfully adopted the statute by the simple majority vote required for adopting charter amendments. Finding that the city's requirement for a super majority vote was "mere surplusage," the court ruled as follows:
Charter amendments required only a simple majority for adoption. If Act No. 345, supra, is to be adopted in the same manner as a charter amendment, then it needs no more than a simple majority for passage. [Id., at pp 638, 640.]
Wagner, supra, holds that the Home Rule City Act provision "unless approved by a majority of the electors" requires only a majority vote to approve a city charter amendment. In setting forth the approval process for village charter amendments, section 26(1)(d) of the Home Rule Village Act uses the same phrase, "unless approved by a majority of the electors." The Legislature passed these two acts back to back in 1909. Given the identical phrases in the two statutes, there is no reason to believe that the Legislature was imposing a majority vote requirement for the approval of city charter amendments while only establishing a minimum vote requirement for the approval of village charter amendments. The court's interpretation of the Home Rule City Act regarding approval of city charter amendments is persuasive in interpreting identical language in the Home Rule Village Act regarding approval of village charter amendments. It must therefore be concluded that a village established under the Home Rule Village Act may not require that proposed charter amendments be approved by a two-thirds vote of the voters voting on the amendment.1 The Legislature is, of course, free to amend the Act to authorize a vote greater than a majority vote for adopting village charter amendments.
My staff is advised that at least two Michigan home rule villages have charter provisions requiring voter approval of charter amendments by a two-thirds vote of the electors voting on the amendment. In these two villages, a number of proposed charter amendments have been approved by a majority of the electors but were determined to have failed because they were not approved by two-thirds vote. Under MCL 600.4545(2); MSA 27A.4545(2), an action to challenge the results of a ballot question must be brought "within 30 days after such election." This mandatory thirty day time period begins to run when the "election results are certified by the applicable board of canvassers." Wills v Iron County Bd of Canvassers, 183 Mich App 797, 804; 455 NW2d 405 (1990). Thus, as to any village election in which the results were certified by the applicable board of canvassers more than thirty days ago, it is too late to successfully challenge the results.
It is my opinion, therefore, that a village established under the Home Rule Village Act may not enforce a charter requirement that proposed charter amendments be approved by a two-thirds vote of electors where the Legislature has required only a majority vote for such amendments.
JENNIFER M. GRANHOLM
1 This result is consistent with OAG, 1999-2000, No 7037, p 75 (October 19, 1999), which concluded that a downtown development authority board may not require that all board members have an interest in property located in the downtown development authority district where the controlling statute only required that "[n]ot less than a majority of the members [of the board] shall be persons having an interest in property located in the downtown district."