Advisory Opinion on Constitutionality of 1976 PA 295, 1976 PA 297

1976 PA 297, 259 N.W.2d 129, 401 Mich. 686, 1977 Mich. LEXIS 191
CourtMichigan Supreme Court
DecidedNovember 7, 1977
Docket59096, (Calendar No. 24)
StatusPublished
Cited by22 cases

This text of 1976 PA 297 (Advisory Opinion on Constitutionality of 1976 PA 295, 1976 PA 297) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Advisory Opinion on Constitutionality of 1976 PA 295, 1976 PA 297, 1976 PA 297, 259 N.W.2d 129, 401 Mich. 686, 1977 Mich. LEXIS 191 (Mich. 1977).

Opinions

Ryan, J.

The Court has been asked by the Governor for an advisory opinion on the constitutionality of 1976 PA 295; MCLA 474.51 et seq.; MSA 22.180(21) et seq., and 1976 PA 297; MCLA 247.660b et seq.; MSA 9.1097(10c) et seq.

1976 PA 295 (hereafter PA 295) is labelled the State Transportation Preservation Act of 1976 and is designed to improve and maintain transportation services in Michigan.

1976 PA 297 (hereafter PA 297) was added to 1951 PA 51; MCLA 247.651 et seq.; MSA 9.1097(1) et seq. Broadly speaking, the portions of this act which are presently under scrutiny provide for the establishment and administration of the General Transportation Fund, the establishment and functions of the transportation council, conditions for grants and the issuance of bonds and notes for public transportation services.

The Court has agreed to provide an opinion advising whether PA 295 violates either Const 1963, art 3, § 6 which prohibits state involvement in internal improvements which are not public internal improvements, or Const 1963, art 9, § 18 which prohibits the state from granting or pledging its credit to or for another, except as authorized in the Constitution. In addition, the Court has agreed to provide an opinion advising whether PA 297 violates Const 1963, art 9, § 9 which requires that the proceeds of all specific taxes, other than general sales and use taxes and regulatory fees, imposed on motor vehicle fuels and on regis[694]*694tered motor vehicles, be used exclusively for highway purposes as defined by law, and further advising whether the issuance of notes and bonds under PA 297, to be repaid from gasoline tax revenues in the General Transportation Fund, violates Const 1963, art 9, § 9 or the state borrowing provisions of Const 1963, art 9, § 15.

I. 1976 PA 295 and Const 1963, art 3, § 6

Const 1963, art 3, § 6 provides:

"The state shall not be a party to, nor be financially interested in, any work of internal improvement, nor engage in carrying on any such work, except for public internal improvements provided by law.”

PA 295, among its provisions, empowers the State Highway Commission to exercise the powers necessary to obtain qualification on behalf of the state for rail service continuation contractual grants pursuant to the Federal Regional Rail Reorganization Act of 1973, 45 USC 701 et seq., (§ 4); to provide financial assistance for the operation and maintenance of a railroad within the state as provided by relevant Federal legislation (§ 5); to acquire rail property or other facilities necessary for the operation of a railroad and to acquire a portion or portions of a railroad right of way (§ 6); to acquire railroad rights of way approved for abandonment within the state by purchase or the exercise of eminent domain (§ 8); to co-operate with other states in connection with the purchase of rail property within the state and to acquire trackage rights and rail property in other states (§ 9); to acquire abandoned properties for other specified public bodies; to preserve, use and dispose of, grant the right to occupy, develop or lease [695]*695abandoned rail property (§ 10); to apply for an acquisition or modernization loan, or a guarantee of a loan under certain Federal programs (§ 12); to purchase intercity bus equipment and related station and servicing facilities, ferry equipment, dock, port, and water equipment servicing facilities (§ 14); to spend sums for the modernization, rehabilitation, rebuilding and relocation of rail property, and perform or contract for maintenance and improvements on rail property, whether such property is owned by the state or by a private carrier (§ 15); to contract for the provision of rail, intercity bus or ferry service (§ 16); to provide financial assistance for the continuation and improvement of operations, and the maintenance of equipment and support facilities of intercity bus and ferry carriers (§ 17); and, with the approval of the Michigan Public Service Commission, to contract for substitute services and relocation assistance within the state to serve shippers and communities affected by the termination of rail freight services (§ 18).

In enacting the statute, the Legislature found:

"(2) There exists a need to provide authorization for financial assistance for the capital improvement, maintenance, and operation of rail, intercity bus, and ferry services in this state. To undertake the planning, development, acquisition, and operation of these services is in the best interest of the state and is a valid public purpose.
"(3) The preservation of abandoned railroad rights of way for future rail use and their interim use as public trails is declared to be a public purpose.” MCLA 474.51; MSA 22.180(21).

Initially, it is assumed that rail, bus and ferry services are works of internal improvement, for otherwise there would be no constitutional infir[696]*696mity under Const 1963, art 3, § 6. The question for the Court then is whether this statute impermissibly empowers the state to become a party to, and financially interested in, such works which are not public internal improvements.

At the outset it should be noted that this Court has recognized that the determination of what constitutes a public purpose is primarily the responsibility of the Legislature, and that the concept of public purpose has been construed quite broadly in Michigan. Advisory Opinion on Constitutionality of 1975 PA 227 (Questions 2-10), 396 Mich 465, 495-498; 242 NW2d 3 (1976). For example, this Court has found that promoting the sale of Michigan apples,1 the payment of dues by a city for a membership in the Michigan Municipal League,2 the construction of a port marina by a city,3 the issuance of bonds by a city to finance the construction of privately owned industrial buildings,4 *the construction of a sports arena,5 public financing of gubernatorial elections6 and the creation of a state authority authorized to make loans directly to, or guarantee loans made to, private business enterprises for financing job development projects7 may all serve a valid public purpose.

Two major arguments are presented to support the contention that the activities authorized under [697]*697PA 295 are not similar, permissible works of public internal improvement: 1) that, historically, the constitutional ban on state involvement in internal improvements has prohibited involvement in railroads and 2) that the provisions for direct grants to private rail companies under PA 295 do not constitute expenditures for public internal improvements.

1) A Brief History of Article 3

Michigan’s first Constitution stated that internal improvement was to be encouraged by the state and indicated that the Legislature had the authority to appropriate funds for such purpose. Const 1835, art 12, § 3. Under this authority, the state incurred large debts for the construction of railroads and canals. The public’s reaction to the tax burdens imposed by these debts prompted a ban on state involvement in works of internal improvement in the Constitution of 1850, art 14, § 9.

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Cite This Page — Counsel Stack

Bluebook (online)
1976 PA 297, 259 N.W.2d 129, 401 Mich. 686, 1977 Mich. LEXIS 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/advisory-opinion-on-constitutionality-of-1976-pa-295-1976-pa-297-mich-1977.