Advisory Opinion Re Constitutionality of PA 1966, No 346

158 N.W.2d 416, 380 Mich. 554
CourtMichigan Supreme Court
DecidedMay 6, 1968
DocketCalendar 11, Docket 51,684
StatusPublished
Cited by54 cases

This text of 158 N.W.2d 416 (Advisory Opinion Re Constitutionality of PA 1966, No 346) 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 Re Constitutionality of PA 1966, No 346, 158 N.W.2d 416, 380 Mich. 554 (Mich. 1968).

Opinions

BbbNNAN, J.

On January 4, 1967, this Court received the following request for an advisory opinion:

“Now comes George Bomney, governor of the State of Michigan, and invokes the jurisdiction of this Court under the provisions of article-3, §8, Constitution of 1963. In support of this’ request the governor shows unto the Court the following:
[561]*561“1. That on October 28, 1966, Enrolled House Bill No 3898, having been duly enacted by the legislature, was signed by me into law and became PA 1966, No 346.
“2. That said Act No 346 was not given immediate effect by the legislature, is not presently effective, and will not become effective until March 10, 1967.
“3. That said Act No 346 has as its general purpose the providing of low cost housing, and the creation of a State housing development authority which is the vehicle for accomplishing this purpose. (Attached hereto for the information and convenience of the Court is a copy of Public Act No 346.) The act contemplates that the authority would borrow money and make loans to associations for the purpose of providing financing for the construction of low cost housing; that bonds issued by the authority would pledge for their payment the moneys received from the repayment of the loans to the authority by the associations; that a capital reserve fund is established which includes the borrowed money and State appropriations.
“4. That article 9, § 18 of the Constitution of 1963 prohibits the State from granting its credit to any person, association or corporation, public or private. Thus, a question arises as to whether Public Act 346 lends the credit of the State so as to violate the provisions of article 9, § 18 of the Constitution of 1963.
“6.1 That Public Act 346 allows the legislature to appropriate funds to the capital reserve fund, which would be used to pay principal and interest on the bonds, and a question arises as to whether this is such a borrowing by the State which would require a two-thirds vote of the legislature and approval by the electors as provided in article 9, § 15, of the Constitution of 1963.
[562]*562“7. That the questions involved are of great statewide importance and solemn concern to the people of the. State of Michigan, and serious questions have arisen relative to the constitutionality of Public Act 346.
“Wherefore, and pursuant to the above-cited provisions of the Constitution of 1963, I, George Romney, governor of the State of Michigan, request the Supreme Court of this State to render its opinion as to the constitutionality of PA 1966, No 346.
“Respectfully submitted,
/s/ George ROMNEY George Romney Governor.
January 3, 1967.”

I. DESCRIPTION OP THE ACT.

PA 1966, No 346, was adopted by the legislature and approved by the governor on October 28, 1966. It is an act to create a State housing authority, to define the powers and duties of the authority, to establish a housing development revolving fund and a capital reserve fund, to authorize loans to qualified nonprofit sponsors and municipalities, to provide tax exemptions and to authorize payments in lieu of taxes by nonprofit housing corporations.

The act declares that there is a seriously inadequate supply of safe and sanitary dwelling accommodations within the financial means of low income or moderate income families. It declares that the construction of such housing is a valid public purpose and declares further that the authority and powers conferred by the act to be known as the “state housing development authority act of 1966” constitute a necessary program and serve a valid public purpose.

The act creates the State housing development authority which is declared to be a body politic [563]*563and corporate. It gives the authority general corporate powers, including the power to borrow and to loan money, to hold and convey real estate, to sue and be sued, and to do all other things. necessary for the accomplishment of the purposes of' the act.

II. The Bqreowing Power of. the State of Michigan.

In considering the constitutionality of Act No 346, it is well at the outset to have in mind the limited power of the State of- Michigan to borrow money. The State of Michigan is not authorized generally to borrow. Article 9, § 12,, of the Constitution of 1963, says,

“No evidence of state indebtedness shall be issued except for debts authorized pursuant to this constitution.”

The prohibition is clear and unequivocal. The State is without authority to borrow money except as constitutionally granted.

The Constitution of 1963 discloses only four specific instances in which the State is constitutionally permitted to borrow:

A. Short term borrowing to meet current appropriations.2 '

B. Long' term borrowing adopted by two-thirds of the legislature, and approved by the electorate.3

C. For the making of loans to school districts.4
D. To retire Mackinac bridge, bonds.5.

The framers of the 1963 Constitution created a pay-as-you-go government for the State of Michigan. In furtherance of that scheme, the State of [564]*564Michigan is specifically prohibited from becoming a guarantor or surety for anyone. It would be an obviously useless thing for the Constitution to prohibit the State from borrowing money and then permit the State to incur liabilities by becoming party to the borrowing of others. Thus, article 9, § 18, of the Constitution provides :

“The credit of the state shall not be granted to, nor in aid of any person, association or corporation, public or private, except as authorized in this constitution.”

The purpose of this provision is to make certain that the State, which itself cannot borrow, except as authorized, does not accumulate unauthorized debts by indorsing or guaranteeing the obligations of others.

III. The BobbowiNG Power oe State Authorities and Public Corporations.

While the State of Michigan has no authority to borrow money except as specifically authorized in the Constitution, this is not true of public bodies corporate. Article 9, § 13, of the Constitution of 1963, provides:

“Public bodies corporate shall have power to borrow money and to issue their securities evidencing debt, subject to this constitution and law.”

Public corporations, unlike the State, have general power to borrow money except as prohibited by the Constitution and by the statutes.

Nothing in section 13 refers to the purposes for which public bodies corporate may borrow money. Nor does the Constitution expressly limit the purposes for which public bodies corporate may spend money, which they obtain either by process of [565]*565borrowing or by gift, appropriation, or profit-making.

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Bluebook (online)
158 N.W.2d 416, 380 Mich. 554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/advisory-opinion-re-constitutionality-of-pa-1966-no-346-mich-1968.