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

MIKE COX, ATTORNEY GENERAL

CONST 1963, ART 4, § 25:

APPROPRIATIONS:

SUPPLEMENTAL APPROPRIATIONS:

Constitutionality of certain appropriation acts

Laws enacting appropriations, whether general or supplemental appropriation acts, are subject to the provisions of the constitution governing the enactment of laws, including Const 1963, art 4, § 25. Section 805 of 2004 PA 309 (Enrolled Senate Bill 267) violates Const 1963, art 4, § 25 because it purports to make changes to another law without reenacting and publishing the affected section of that law.

Insofar as section 806 of 2004 PA 309 (Enrolled Senate Bill 267) and section 628 of 2004 PA 361 (Enrolled House Bill 5528) change the conditions imposed on appropriations enacted by 2003 PA 161 and 2003 PA 162 or would change the laws governing the Mackinac Bridge Authority and management of the Mackinac Bridge, they violate Const 1963, art 4, § 25.

To the extent the Detroit Transportation Corporation qualifies as an "eligible authority" or "eligible governmental authority" under MCL 247.660c(b) and (c), section 707 of 2004 PA 361 (Enrolled House Bill 5528) violates Const 1963, art 4, § 25 insofar as it would exclude the Detroit Transportation Corporation from the 1951 PA 51 definition of "eligible authority" or "eligible governmental agency," or would exclude it from receiving a grant under MCL 247.660e (4)(a)(i) without reenacting and publishing the relevant definitions and formulas in 1951 PA 51.

Opinion No. 7179

September 8, 2005

Honorable Dan Acciavatti
State Representative
The Capitol
Lansing, MI 48913

You have asked several questions concerning Const 1963, art 4, § 25 and its application to both appropriation bills and supplemental appropriation bills. In particular, you ask whether sections 203, 602, 802, 804, and 805 of Enrolled Senate Bill 267 of 2004, enacted as 2004 PA 309, and sections 365, 628, and 707 of Enrolled House Bill 5528 of 2004, enacted as 2004 PA 361, violate Const 1963, art 4, § 25. Generally, this constitutional provision requires that, if a law is modified, the affected sections must be re-enacted and published at length.

Your letter acknowledges that Const 1963, art 4, § 25 applies to appropriation bills that would amend public acts published in the Michigan Compiled Laws,1  but you question whether that provision applies to supplemental appropriation bills, such as Enrolled Senate Bill 267, that would amend general appropriation acts.

Several provisions of the Michigan Constitution address appropriation bills. The Governor presents a proposed budget, embodied in general appropriation bills, at the beginning of each fiscal period as required by Const 1963, art 5, § 18. These general appropriation bills for the ensuing fiscal period must be passed or rejected in either house of the Legislature before that house passes any appropriation bill for items not covered in the budget "except bills supplementing appropriations for the current fiscal year's operation." Const 1963, art 4, § 31.

Const 1963, art 9, § 17 requires that no money be paid out of the State treasury except in pursuance of appropriations "made by law." No distinction is made for supplemental appropriations. Const 1963, art 4, § 22 provides that all legislation shall be by bill. Const 1963, art 4, § 26 requires that no bill may become law without the concurrence of a majority of the members elected to and serving in each house. Every bill passed by the Legislature must be presented to the Governor. Const 1963, art 4, § 33. While the Governor may disapprove any distinct item appropriating money in an appropriation bill, the parts approved "shall become law." Const 1963, art 5, § 19. Every appropriation bill must go through this process. Thus, original appropriation acts are "laws," as are supplemental appropriation acts. The requirements of the state constitution for the enactment of "laws" apply equally to both general and supplemental appropriations.

Const 1963, art 4, § 25 states:

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.

If the Legislature intends to revise, alter, or amend a statute,2  it must use the constitutionally prescribed process to actually revise, alter, or amend the statute. In City of Livonia v Dep’t of Social Services, 423 Mich 466, 490 n 15; 378 NW2d 402 (1985), quoting Dearborn v Dep't of Social Services, 120 Mich App 125, 133-134; 327 NW2d 419 (1982), lv den 417 Mich 1078 (1983), the Michigan Supreme Court explained that "Const 1963, art 4, § 25 is not violated unless the statute amending the act which has not been reenacted or published dispenses with or changes any provision of the amended act."

OAG, 1981-1982, No 6036, p 548, 550 (January 29, 1982), addressed the constitutionality of a provision of an appropriation act that would have amended a provision of 1951 PA 51, MCL 247.651 et seq, pertaining to grants for public transportation. Citing Alan v Wayne County, 388 Mich 210; 200 NW2d 628 (1972), Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 473; 208 NW2d 441 (1973), and Midland Twp v State Boundary Comm, 401 Mich 641; 259 NW2d 326 (1977), the Attorney General summarized the application of Const 1963, art 4, § 25:

It is clear under the principles set forth above that where an appropriation bill dispenses with or makes changes in another statute, the amended provisions must be reenacted and republished. [OAG No 6036 at p 550; emphasis added.]

The Attorney General concluded that the provisions of the appropriation act that would have amended 1951 PA 51, without doing so directly, were unconstitutional.

However, if a statute or appropriation act simply refers to another act or incorporates an act by reference, that does not render the statute or appropriation act unconstitutional. OAG, 1981-1982, No 5883, p 101 (April 10, 1981). In that opinion, the Attorney General found that the Legislature may incorporate by reference entire sections of a previously adopted appropriation act or a new act constituting general limitations upon appropriations:

An entire act, or sections of an act, may be incorporated by reference in a subsequent act, where the entire act, or entire sections or section of an act are incorporated without amendment or alteration. However, where an entire act or entire portions of an act are incorporated by reference in a later statute or act, which are amended or altered by a subsequent statute or act, such later provisions must be reenacted and published pursuant to Const 1963, art 4, § 25. [OAG No 5883 at p 103; citations omitted.]

Thus, under Const 1963, art 4, § 25, where an amendatory statute or appropriation act substantively alters or amends provisions of another statute or appropriation act, the affected provisions of the amended or altered statute or appropriation act must be reenacted and published at length.

The first part of your inquiry concerns 2004 PA 309. By its title, 2004 PA 309 is a supplemental appropriation for the 2003-2004 and 2004-2005 fiscal years:

AN ACT to make, supplement, and adjust appropriations for various state departments and agencies and capital outlay for the fiscal years ending September 30, 2004 and September 30, 2005; to provide for the expenditure of the appropriations; and to repeal acts and parts of acts.

Your letter refers to sections 203, 602, and 802 of 2004 PA 309. These three provisions attempt to change previously enacted appropriation acts for the 2002-2003 and 2003-2004 fiscal years. As both these fiscal years have been closed in accordance with the Management and Budget Act, 1984 PA 431, MCL 18.1101 et seq, your questions regarding these sections are moot.

You next inquire about section 805 of 2004 PA 309. Your letter states that the intent of section 805 is to "amend transportation appropriations act PA 162 of 2003."

Sec. 805. Except as otherwise provided in this section, a public transportation entity shall not receive state operating assistance for a scheduled regular route service which is competing with another private or public carrier over the same route. In situations where there is duplicate service, either both the public and private carriers shall receive the same level of operating assistance or neither one shall receive operating assistance.

In accordance with the principles stated above, section 805 of 2004 PA 309 violates Const 1963, art 4, § 25 insofar as it would amend section 10e (4)(a)(i) of 1951 PA 513  without reenacting and publishing that section.4

The second part of your inquiry concerns 2004 PA 361. 2004 PA 361 is a general appropriation act for MDOT for the 2004-2005 fiscal year, as expressed in its title:

AN ACT to make appropriations for the state transportation department and certain transportation purposes for the fiscal year ending September 30, 2005; to provide for the imposition of fees; to provide for reports; to create certain funds and programs; to prescribe requirements for certain railroad and bus facilities; to prescribe certain powers and duties of certain state departments and officials and local units of government; and to provide for the expenditure of the appropriations.

Section 8065 of 2004 PA 309 attempts to limit the use of funds appropriated in that act and two previous appropriation acts:

Funds appropriated in part 1 of this act, in 2003 PA 161, or in 2003 PA 162 shall not be used to transfer investment management functions from the Mackinac Bridge Authority to the state treasurer. All bridge operating functions currently performed by the Mackinac Bridge Authority remain within the Mackinac Bridge Authority established under section 2 of 1950 (Ex Sess) PA 21, MCL 254.302. The legislature concurs with the findings of the Governor’s Mackinac Bridge Task Force established under Executive Order No. 1986-14 that the Mackinac Bridge Authority remain in existence and continue to operate and maintain the bridge in the future.

Section 628 of 2004 PA 361 similarly provides:

Funds appropriated in part 1 shall not be used to transfer investment management functions from the Mackinac Bridge Authority to the state treasurer. All bridge operating functions currently performed by the Mackinac Bridge Authority remain within the Mackinac Bridge Authority established under section 2 of 1950 (Ex Sess) PA 21, MCL 254.302. The legislature concurs with the finding of the Governor's Mackinac Bridge Task Force established under Executive Order No. 1986-14 that the Mackinac Bridge Authority remain in existence and continue to operate and maintain the bridge in the future.

The first sentence of each section prohibits the use of funds appropriated in part 1 "to transfer investment management functions from the Mackinac Bridge Authority to the state treasurer." The Department of Treasury has provided correspondence indicating that direct investment management functions for Mackinac Bridge funds were requested to be transferred by the Mackinac Bridge Authority on July 30, 2004, before the August 17, 2004, effective date of 2004 PA 309. In addition, section 2 of 1950 PA 21, MCL 254.302, already provides that the Mackinac Bridge funds will be handled by the State Treasurer:

The treasurer of the state shall serve as treasurer of the [Mackinac Bridge] authority. . . . All funds shall be handled by the state treasurer in the same manner and shall be governed by the same provisions of law as apply to state funds.

To the extent that the language in the first sentences of section 628 of 2004 PA 361 and section 806 of 2004 PA 309 would change MCL 254.302 and prevent the State Treasurer from carrying out the statutory responsibility stated there, it would violate Const 1963, art 4, § 25.

The intent of the remainder of section 806 of 2004 PA 309 and section 628 of 2004 PA 361 is unclear; it either reiterates existing law concerning the Mackinac Bridge Authority and management of the Mackinac Bridge,6 or changes how the bridge is managed under existing law. The former purpose would not violate Const 1963, art 4, § 25 as no existing law would be changed. To the extent that section 806 and section 628 would change how the Mackinac Bridge is managed under existing law, they violate Const 1963, art 4, § 25 because they do not reenact and publish the sections of existing law that are being changed.

Next you ask if section 365 of 2004 PA 361 is unconstitutional as contrary to the requirements of federal law. Section 365 provides that no funds appropriated by part 1 may be expended for the development of design plans or the construction of "Practical Alternative 5" or "Practical Alternative 5 modified" and states a legislative intent that MDOT construct a full limited access freeway within the US-131 corridor:

No funds appropriated in part 1 may be expended for the development of design plans or for the construction of either Practical Alternative 5 or Practical Alternative 5 modified, as identified in US-131 Improvement Study in St. Joseph County. It is the intention of the legislature that the department proceed with the construction of a full limited access freeway development within the US-131 planning corridor from the Indiana state line to north of the city of Three Rivers to Lovers Lane. The highway location must be determined with public input and using Practical Alternative numbers 1 through 4.

There is insufficient information in your request to determine whether this section is contrary to the requirements of federal law or to assess the implications of such a conflict. A determination as to this section’s constitutionality would require significant factual development beyond the scope of this opinion.

Finally, you ask whether section 707 of 2004 PA 361 violates Const 1963, art 4, § 25. Section 707 provides that the Detroit Transportation Corporation is not an eligible authority or eligible governmental agency under 2004 PA 361 and is not entitled to receive grant funding:

For the fiscal year ending September 30, 2005, each eligible authority and each eligible governmental agency which provides public transportation services in urbanized areas with a Michigan population of less than or equal to 100,000 and nonurbanized areas under section 5311 of title 49 of the United States Code, 49 USC 5311, shall receive a grant of up to 60% of its eligible operating expenses. Each eligible authority and each eligible government agency which provides public transportation services in urbanized areas with a Michigan population of greater than 100,000 under section 5307 of title 49 of the United States Code, 49 USC 5307, shall receive a grant of up to 50% of its eligible operating expenses. The Detroit Transportation Corporation is not an eligible authority or eligible governmental agency under this act and is not eligible for grants funded from appropriations made in this act. [Emphasis added.]

Your letter states that the Governor indicated that this emphasized sentence conflicts with 1951 PA 51, which provides for disbursement of funds to eligible authorities and eligible governmental authorities. Section 10c of 1951 PA 51, MCL 247.660c, defines "eligible authority" and "eligible governmental agency" and section 10e of 1951 PA 51, MCL 247.660e, provides the relevant formula for the distribution of operating funds.

Section 10c provides in relevant part:

(b) "Eligible authority" means an authority organized pursuant to the metropolitan transportation authorities act of 1967, 1967 PA 204, MCL 124.401 to 124.426.

(c) "Eligible governmental agency" means a county, city, or village or an authority created pursuant to 1963 PA 55, MCL 124.351 to 124.359; the urban cooperation act of 1967, 1967 (Ex Sess) PA 7, MCL 124.501 to 124.512; 1967 (Ex Sess) PA 8, MCL 124.1 to 124.13; 1951 PA 35, MCL 124.1 to 124.13; the public transportation authority act, 1986 PA 196, MCL 124.451 to 124.479; or the revenue bond act of 1933, 1933 PA 94, MCL 141.101 to 141.140. [MCL 247.660c(b) and (c).]

Section 10e provides in relevant part:

(4) After making or setting aside payments required by subsections (2) and (3), the balance of the comprehensive transportation fund shall be expended each fiscal year as appropriated annually by the legislature pursuant to the state transportation program approved by the commission as follows:

(a) The third priority shall be the payment of operating grants to eligible authorities and eligible governmental agencies according to the following formulations and subject to the following requirements:

(i) For the fiscal year ending September 30, 1998, and for each fiscal year thereafter, each eligible authority and eligible governmental agency which provides public transportation services in urbanized areas under Public Law 103-272, 49 U.S.C. 5307, with a Michigan population greater than 100,000 shall receive a grant of up to 50% of their eligible operating expenses as defined by the state transportation department. [MCL 247.660e(4)(a)(i); emphasis added.]

Thus, MCL 247.660e (4)(a)(i) is not self-executing but is dependent on annual appropriations. The Legislature is free to appropriate the total amount of money that will be available for distribution to "each eligible authority and eligible governmental agency." The Legislature may not, however, change the distribution formula as to specific authorities or agencies, or change the statutory definition of "eligible authority" or "eligible governmental agency," without complying with Const 1963, art 4, § 25. To the extent the Detroit Transportation Corporation qualifies as an "eligible authority" or "eligible governmental authority" under the definitions in MCL 247.660c(b) and (c), section 707 is unconstitutional because the Legislature failed to reenact and publish MCL 247.660c and 247.660e. See OAG No 6036, supra, and OAG No 6063, supra.

It is my opinion, therefore, that laws making appropriations, whether general or supplemental appropriation acts, are subject to the provisions of the constitution governing the enactment of laws, including Const 1963, art 4, § 25. Your questions regarding sections 203, 602, and 802 of 2004 PA 309 are moot because the 2002-2003 and 2003-2004 fiscal years have closed. Section 805 of 2004 PA 309 violates Const 1963, art 4, § 25 because it purports to make changes to other laws without reenacting and publishing the affected sections of those laws. Insofar as section 806 of 2004 PA 309 and section 628 of 2004 PA 361 change the conditions imposed on appropriations enacted by 2003 PA 161 and 2003 PA 162 or would change the laws governing management of the Mackinac Bridge Authority and its funds, they violate Const 1963, art 4, § 25. The constitutionality of section 365 of 2004 PA 361 cannot be determined without additional factual information. Finally, to the extent the Detroit Transportation Corporation qualifies as an "eligible authority" or "eligible governmental authority" under MCL 247.660c(b) and (c), section 707 of 2004 PA 361 violates Const 1963, art 4, § 25 insofar as it would exclude the Detroit Transportation Corporation from the 1951 PA 51 definition of "eligible authority" or "eligible governmental agency," or would exclude it from receiving an operating assistance grant under MCL 247.660e (4)(a)(i) without reenacting and publishing the relevant definitions and formulas in 1951 PA 51.

MIKE COX
Attorney General

1Unlike other laws, most appropriation acts are not assigned a Michigan Compiled Laws number for inclusion within the Michigan Compiled Laws.  At least two appropriations acts, the Revised School Aid Act and the State Trunk Line Highway System Act, are published in the Michigan Compiled Laws.  Regardless of these exceptions, all appropriations acts, general and supplemental, are published in the annual volumes of the Public Acts as required by Const 1963, art 4, § 35:  "All laws enacted at any session of the legislature shall be published in book form within 60 days after final adjournment of the session, and shall be distributed in the manner provided by law."

2
The term "statute" is equivalent to the term "law" as used in Const 1963, art 4, § 25 for purposes of this analysis.  See Vagts v Perry Drug Stores, Inc, 204 Mich App 481, 485; 516 NW2d 102 (1994).

3Section 805 would also change how funds are expended under another act.  Section 805 would change section 10e (4)(a)(i) of 1951 PA 51, MCL 247.660e, as that section allows MDOT to define "eligible operating expenses" that qualify for the grant:  "(i) For the fiscal year ending September 30, 1998, and for each fiscal year thereafter, each eligible authority and eligible governmental agency which provides public transportation services in urbanized areas under Public Law 103-272, 49 U.S.C. 5307, with a Michigan population greater than 100,000 shall receive a grant of up to 50% of their eligible operating expenses as defined by the state transportation department."  [Emphasis added.]

4Should the Legislature wish to amend 1951 PA 51, care should be taken to follow the guidance in OAG, 1981-1982, No 6063, p 638, 640 (April 29, 1982).  Amendments to 1951 PA 51 "must be made by reenacting and republishing the provisions of 1951 PA 51 . . . intended to be amended rather than by way of enactment of provisions in an appropriation act."  

Moreover, to the extent that compliance with Const 1963, art 4, § 25 in the enactment of supplemental appropriations may be considered burdensome, the Supreme Court has made clear that such a burden must be borne: 

[C]onstitutional duties and requirements may not be avoided on the ground that it might be a lot of work to comply with the constitution.  [Alan v Wayne County, 388 Mich 210, 282; 200 NW2d 628 (1972); emphasis omitted.]

5While your letter cites section 804 of 2004 PA 309 regarding the Mackinac Bridge Authority, it appears that it is section 806 of 2004 PA 309, and not section 804, that refers to the Mackinac Bridge Authority.

6
The Mackinac Bridge Authority was transferred by Type I transfer to the predecessor to the Michigan Department of Transportation (MDOT).  See section 357 of the Executive Organization Act of 1965, MCL 16.457.  The resulting restructuring of the powers of the Mackinac Bridge Authority, and the successor, MDOT, was explained in OAG, 1965-1966, No 4479, p 209 (March 9, 1966), and OAG, 1965-1966, No 4468, p 291 (May 24, 1966).