Graham v. Miller

84 N.W.2d 46, 348 Mich. 684

• Court: Michigan Supreme Court
• Decided: June 29, 1957
• Docket: Calendar 47,353
• Status: Published

Opinions

Dethmers, 0. J.

The board of education of Haslett Public Schools, a public school district, after authorization by its electors, adopted a resolution to borrow money for school construction and issue bonds therefor under authority and pursuant to provisions of Michigan Constitution 1908, art 10, § 27, and directing the president and secretary of the board to sign them. The secretary, defendant Miller, refused on the ground that said section of the Constitution is invalid. Plaintiff board members and the school district as intervening plaintiff invoke the original jurisdiction of this Court, seeking mandamus to compel defendant to sign. In this case we have the benefit of briefs, not only of counsel for plaintiffs and defendant, but also of the attorney general, intervening in behalf of the people of the State under authority of CL 1948, §§ 14.28, 14.101 (Stat Ann 1952 Rev §§ 3.181, 3.211), and of counsel appearing for several amici curiae.

Defendant’s claim of invalidity is based bn. 3 grounds. We consider them seriatim.

(1) Is the constitutional amendment under which plaintiffs sought to proceed (Michigan Constitution 1908, art 10, § 27) invalid because the form of the question submitted to the electors of the State for adoption or rejection'of the amendment was changed by the secretary of State from the form set forth in the joint resolution of the legislature authorizing submission of the amendment to the electors? The amendment need not here be quoted at length. Suffice it to say that after authorizing the State to borrow money and to pledge its faith and credit and issue bonds therefor, for the purpose of making loans to school districts for payment of principal and interest on school construction bonds under certain circumstances and conditions, and providing for levying in the districts of certain millage as taxes for repayment of such loans and for the application of such tax collections, and prescribing that the last maturity date of bonds issued by districts thereunder shall be not less than 25 years from date of issue, the amendment concludes with a final paragraph containing the following language:

“The tax limitation prescribed in section 21 of this article shall not apply to tax levies for any future issue of school district bonds issued prior to July 1, 1962, including refunding bonds, and such tax levies shall be without limitation as to rate or amount: Provided, that the bonds of such issue last maturing shall be due in not less than 25 years from date of issuance but may be subject to prior redemption in accordance with the provisions thereof.”

The pertinent provisions of Michigan Constitution 1908, art 10, § 21, as amended in 1948, are:

“The total amount of taxes assessed against property for all purposes in any one year shall not exceed one and one-half per cent of the assessed valuation of said property, * * * Provided, that this limitation may be increased for a period of not to exceed twenty years at any one time, to -not more than a total of five per cent of tbe assessed valuation, by a majority vote of the electors of any assessing district, or when provided for by the charter of a municipal corporation.”

The question as set forth in the joint resolution read:

“Shall article 10 of the State Constitution be amended by adding thereto a new section to stand as section 27 thereof, authorizing the bonding of the State in the sum of not to exceed $100,000,000.00 for the purpose of advancing funds to school districts for the acquiring, constructing, enlarging, improving and equipping school buildings and sites and for the funding 'or refunding of obligations incurred for 1 or more of the aforesaid purposes, and the pledging of the full faith and credit of the State for the payment thereof?”

The question as changed by the secretary of State, and submitted to the electors on the ballot follows:

“No. 3. Shall the Constitution be amended to authorize the State to borrow not to exceed $100,000,-000.00 and to pledge its full faith and credit for the payment thereof for the purpose of loaning school districts moneys .with which to pay principal and interest on certain school bonds; to authorize the legislature, subject to limitations, to prescribe the conditions of such loans, including maturities, through at least 25 years subject to prior redemption; and to authorize the levy of taxes without limitation as to rate or amount for the payment of certain school bonds issued prior to July 1, 1962?”

It is conceded on all sides, and we think rightly so, that the form of the question as changed and submitted by the secretary of State was sufficient and fairly apprised the electors of the substance and purpose of the amendment, but that the form of the question in the joint resolution was inaccurate for failure to fully and fairly state the purpose of the amendment, particularly because it made no reference to the provision of the last paragraph of the amendment, just above quoted, concerning the inapplicability of the tax limitation of article 10, § 21, to certain tax levies. Michigan Constitution 1908, art 17, § 3, as last amended April 7, 1941, relating to submission of constitutional amendments, provides:

“All proposed amendments to the Constitution and other questions to be submitted to the electors shall be published in full, with any existing provisions of the Constitution which would be altered or abrogated thereby, and a copy thereof shall be posted in each polling place. The purpose of any such proposed amendment or question shall be designated on the ballots for submission to the electors in not more than 100 words, exclusive of caption. Such designation and caption shall be prepared by the secretary of State or by such other authority as shall be hereafter designated by law within 10 days after the filing of any proposal and shall consist of a true and impartial statement of the purpose of the amendment or question in such language as shall create no prejudice for or against such proposal.”

CL 1948, § 192.6 (Stat Ann 1953 Cum Supp § 6.594) provided:

“Sec 6. Whenever a proposed constitutional amendment or other special question is to be submitted to the electors of the State for popular vote, the secretary of State shall, not less than 35 days before election, certify the same to the clerk of each county in the State and shall at the same time prescribe the form in which such amendment or other special question shall be submitted.”

We are not in agreement with defendant’s theory that article 17, § 3, governing the submission of constitutional amendments, applies only to those initiated by the people’s filing of petitions with the secretary of State and not to amendments proposed »y the legislature. Defendant bases this on the provision of section 3 that the secretary of State shall act “within 10 days after the filing of any proposal” and urges that legislatively proposed amendments need not he filed with the secretary of State. Section 3 does not specify the place of filing. Inasmuch, however, as the secretary of State is designated by law as the official charged with the duty of submitting amendments to the people, regardless of how initiated, it follows that it was contemplated by said section 3 that both kinds need to be filed in his office. No person other than the secretary of State has been designated by law to prepare the designation on the ballots of the purpose of a proposed amendment as provided in said section 3. By its provisions the duty continues to rest, therefore, on the secretary of State. The only constitutionally imposed requirement on the subject thus having been complied with in the instant case and the object of section 3 of fairly acquainting the electors with the purpose of the amendment having been served, it is of no moment that the question prepared and submitted by the secretary of State to the electors in compliance with the constitutional mandate differs in form from that set forth in the joint resolution where, in constitutional contemplation, it was surplusage.

Not in point is Barnett v. Secretary of State, 285 Mich 494, in which decision antedated the 1941 amendment of article 17, § 3, for the reason that we there held on authority of Murphy Chair Co. v. Attorney General, 148 Mich 563, that under Michigan Constitution 1908, art 17, § 1 (previously Michigan Constitution 1850, art 20, § 1) the legislature had the power to prescribe the manner in which an amendment is to he submitted to the electors. As we have seen, that is now changed by the 1941 amendment of article 17, § 3, pláeing on the secretary of State the duty of preparing the designation or statement of the question. Furthermore, in Barnett we held that to submit the proposed amendment in full on the ballot, together with the inconsistent question with respect thereto propounded by the legislature in its joint resolution, as then but no longer required by the Constitution, would have created confusion in the minds of the voters and, if the amendment were adopted, would have left the results in the realm of conjecture. Hence, this Court declined to compel the secretary of State by mandamus to submit the mutually inconsistent proposed amendment and question to the electors. In the case at bar there was no conflict or inconsistency between the amendment adopted and the question as submitted, no possibility of confusion in the minds of the voters as to what they were adopting, nor any uncertainty concerning the result achieved by the favorable vote thereon by the people.

(2) Is the amendment invalid because it covers more than one purpose or subject and was submitted to the electors of the State as a single question on the ballot? Defendant urges that there is duality of purpose in the amendment in that it both provides for loans to school districts and, in addition, makes the 15-mill tax limitation of article 10, § 21, inapplicable to tax levies for payment of certain school bonds. It is claimed that this is fatal to the validity of an amendment submitted as a single question, citing 15 McQuillin on Municipal Corporations (3d ed), § 40.09; House v. City of Saginaw, 334 Mich 241; and Livingstone v. Wayne County Election Commissioners, 174 Mich 485. Livingstone holds merely that several constitutional amendments may not be submitted on one, but must be placed on separate ballots. Here but one amendment is involved. House involved the propriety of submission to the voters as a single proposition of a city charter amendment limiting the ad valorem tax on property and providing for an income tax. Our holding that opportunity should have been afforded to vote separately on the 2 tax proposals, even though they might be held to be related propositions, was predicated on the provision of the home-rule act, with respect to charter amendments, which reads as follows:

“Any proposed amendment shall be confined to 1 subject and in case a subject should embrace more than 1 related proposition, each proposition shall be separately stated to afford an opportunity for an elector to vote for or against each such proposition.” CL 1948, § 117.21, as amended by PA 1955, No 117 (Stat Ann 1955 Cum Supp § 5.2100).

There is no comparable provision in the Michigan Constitution limiting the subject matter of a constitutional amendment or prohibiting the inclusion in one amendment of proposals for more than one purpose. In City of Jackson v. Commissioner of Revenue, 316 Mich 694, 711, we rejected as without merit the claim that the sales tax diversion amendment (Michigan Constitution 1908, art 10, § 23) was void because it contained proposals for more than one purpose, namely, distribution of 1 cent of the 3-cent State sales tax levy to school districts and local governments and also an annual legislative grant to school districts from the State’s general funds according to a fixed formula.

Furthermore, we consider the amendment in question to be in furtherance of but 1 purpose, namely, enabling school districts to finance the building of schools without placing oppressive burdens on taxpayers in any 1 year by making a new source of funds available and permitting issuance of bonds with longer maturities than was theretofore permissible with a consequent greater marketability and lower interest rates and, when previously existing tax-millage limitations have been reached, permitting additional millage increases to assure payment and thus facilitate the sale of bonds, without which the object of the amendment, financing of further school building projects, must fail. To have submitted the 2 phases of the program, State loans to school districts and lifting of tax limitations, separately might have resulted in adoption of the former and rejection of the latter, which would have amounted to defeat of the plan altogether inasmuch as authorization of a State loan fund and issuance of longer maturity bonds would have been futile without the assurance of sufficient means for their retirement resulting from easing of the tax limitation. The tax limitation provision is germane to the rest of the amendment.

The fact that removal of the limitation applies to all school bonds of 25-year maturity issued before July 1,1962, even though the district may not borrow from the State loan fund provided for in the amendment, does not render the tax-limitation provision to that extent not germane to the rest of the amendment, as urged by defendant. The position is perfectly tenable that, the object of the amendment being to aid school districts to obtain additional financing for building schools, the first means to that end provided by the amendment is its provision easing the tax limitation and that the rest of the amendment merely serves the purpose of providing supplemental machinery for implementing the additional financing made possible by the more favorable taxing atmosphere created by the amendment. The fact that dis-. tricts are thus left with the option of availing themselves of the benefits of the State loan fund renders the provision lifting the tax limitation no less germane to the overall purpose of the amendment to facilitate the financing of school building with the lowest possible burden on taxpayers. In Norton School District v. Municipal Finance Commission, 339 Mich 96, we held it not necessary to submit to electors as separate questions a proposal for a bond issue to finance new school building and the purchase of a new school bus on the ground that the latter was a necessary incident of the former and both were part of a comprehensive plan to provide for the increased educational needs of the district. The same should be said in the case at bar.

(3) Is the amendment invalid on the theory that it altered or abrogated the 15-mill tax limitation amendment, article 10, § 21, which was not published in full before the election nor was a copy thereof posted in polling places as required in Michigan Constitution 1908, art 17, § 3, with respect to constitutional provisions which would be “altered or abrogated” by the amendment? Does the last paragraph of the amendment, hereinbefore set forth, alter or abrogate article 10, § 21? Again City of Jackson v. Commissioner of Revenue, supra, is in point, as also is School District v. City of Pontiac, 262 Mich 338. We there held that the words “altered or abrogated” in article 17, § 3, mean “amended or replaced.” Consonant with the reasoning in that respect in those cases we hold that the amendment in question neither amends article 10, § 21, nor does it replace it, although, in the language of the Pontiac Case, possibly they may need to be construed in conjunction with each other.

• Article 5, § 21, requires acts altered or amended to be re-enacted and published at length. In Evans Products Co. v. State Board of Escheats, 307 Mich 506, we upheld the constitutionality of the escheats statute (CL 1929, § 13455 et seq., as amended by PA 1941, No 170 [Stat Ann and Stat Ann 1943 Cum Supp § 26.1021 et seq.~\), even though it altered or amended some sections and repealed others of the general statute of limitations without republishing the altered sections in full. We said (p 537):

“The Michigan escheat law is an act referring to a special subject and is complete in itself. It removes escheat proceedings from the operation and effect of the general statute of limitations and thereby merely modifies the effect of ‘the statute'of limitations only to that extent.”

The situation at bar is analogous. The provisions of article 10, § 21, are left intact, to be applied generally in situations to which they have application. The new" amendment, article 10, § 27, refers to a special subject, is complete in itself and, at most, merely modifies article 10, § 21, with respect to that special subject. It does not amend or replace article 10, § 21, and accordingly publication of the latter in full was not required. Defendants say that the purpose of requiring the publication not only of the proposed amendment but also of all constitutional provisions to be altered or abrogated thereby is to thoroughly inform the electorate of what is being presented. That purpose was fully accomplished here by publishing of the proposed amendment, the last paragraph of which, above quoted, expressly refers to article 10, § 21, and specifically provides that its limitation shall not apply to mentioned tax levies.

See the City of Jackson Case for discussion of considerations to be observed by courts in determining the validity of constitutional amendments already adopted by the people.

We hold article 10, § 27, lawfully adopted and valid. Under its implementing act and particularly section 683 of the school code of 1955 (Act No 269) (CL 1948, §340.683 [Stat Ann 1955 Cum Supp § 15.3683]) the duty reposes on defendant secretary to sign the bonds. The writ of mandamus will issue as prayed.

Sharpe, Smith, Edwards, Voelkbr, Kelly, and Carr, JJ., concurred with Dethmers, C. J.