Wikman v. City of Novi

322 N.W.2d 103, 413 Mich. 617

• Court: Michigan Supreme Court
• Decided: July 2, 1982
• Docket: 62843, (Calendar No. 6)
• Status: Published

Opinions

Coleman, C.J.

As a preface to this Opinion, an abbreviated sequential history is appropriate. An opinion initially was filed addressed to the issues briefed and argued by the parties.¹ All proceeded by accepting the consistent rulings of the Tax Tribunal and the Court of Appeals that challenges to special assessments levied by a governmental unit for public improvements relating to real property are within the jurisdiction of the Tax Tribunal. The key issue was whether the claim for injunctive relief on this set of facts can remove the case from the tribunal’s exclusive jurisdiction.

Now an opinion has been filed which turns upon a question neither briefed nor argued by the parties. It concludes that the Tax Tribunal has no jurisdiction over municipal special assessments such as herein concerned, so there is no question of removal. It is the opinion of my colleague that the words "ad valorem ” must be read into the Tax Tribunal jurisdictional statute preceding the words "special assessments”. Otherwise, the words must be read as referring only to the ministerial acts involved in the collection of special assessments. Essentially, the argument is that the Legislature made a mistake.

For purposes of structure, this opinion will address both the issues as briefed and argued and those raised by my colleague. We hold that the Tax Tribunal Act, MCL 205.701 et seq.; MSA 7.650(1) et seq., grants the Tax Tribunal exclusive jurisdiction over this proceeding seeking direct review of the governmental unit’s decision concerning a special assessment for a public improvement.

I

The Tax Tribunal Act is a culmination of numerous attempts by the Legislature to secure the prompt and fair resolution of disputes concerning the collection of government revenues. The efficient resolution of such disputes is important to both the taxpayer and the government. In Eddy v Lee Twp, 73 Mich 123, 129-130; 40 NW 792 (1888), this Court acknowledged this fact, stating:

" 'The object of that law, as it is of this, is to enable the government to collect its revenues without delay. The obligations of the government must be met promptly, and it is better that the citizen should resort to his common-law remedies to secure his rights, so far as a mere payment of what he claims may be an illegal tax is concerned, than the government should be embarrassed in the collection of revenues necessary to defray its expenditures.

" 'Courts have frequently remarked upon the impossibility of the government calculating with any certainty upon its revenues, if the collection of taxes was subject to be arrested in every instance in which a tax-payer or tax collector could make out prima facie a technical case for arresting such collection, and it is justly said to be much better to let the individual pay to the government the demands it makes upon him, and, if he considers them in whole or in part illegal, apply for the refunding of the money, with interest afterwards.’ Cooley, Taxation (2d ed), p 762.

"This same learned jurist remarks that—

" 'So serious have been the embarrassments by an improvident employment of the writ of injunction, and other obstructive process, that the legislature has in some cases deemed it necessary to interpose and forbid the issue of injunction, replevin, or other specified writs, the tendency of which would be to embarrass collections.’ ”

The significant public interest underlying the collection of revenues by the government resulted in limitations upon a taxpayer’s ability to contest tax assessments and obtain refunds of general revenue taxes. Similar, although possibly less compelling, considerations imposed limitations on a landowner’s ability to challenge a local special assessment for a public improvement.

In attempts to remove some of these limitations and provide a forum in which aggrieved taxpayers could obtain relief, the Legislature created statutory procedures for taxpayers to utilize in contesting the legality of their taxes. Statutes provided that a taxpayer could appeal to the State Tax Commission, see MCL 211.152; MSA 7.210, or pay the tax under protest and bring an action in circuit court for a refund, see MCL 211.53; MSA 7.97.² Challenges concerning special assessments were governed by different standards. MCL 211.53; MSA 7.97,³ provided that one could pay a special assessment under protest and sue for a refund in circuit court. However, the most common way to contest a special assessment was to sue to enjoin the collection of it, see Brill v Grand Rapids, 383 Mich 216; 174 NW2d 832 (1970).⁴

The proliferation of these available remedies created problems of forum shopping and increased the possibility of inconsistent decisions.⁵ These problems led to the passage of the Tax Tribunal Act with its provisions for exclusive jurisdiction.

The Tax Tribunal is a "quasi-judicial agency”⁶ designed to provide a forum in which taxpayers may obtain relief from adverse agency decisions. The primary functions of the Tax Tribunal are to find facts and review the decisions of agencies within its jurisdiction. The Tax Tribunal specializes in reviewing these determinations. To assure that it possesses the necessary expertise to resolve these cases efficiently, the Tax Tribunal Act requires that certain members of the tribunal have special qualifications.⁷

II

The facts in the instant case, except for the substantive issue of whether plaintiffs property benefited from the public improvement, are not in dispute. On April 26, 1976, the Council of the City of Novi passed a resolution confirming special assessment rolls for the paving of a portion of Taft Road. Plaintiffs claim the tax bills for the special assessments were mailed on May 14, 1976. On June 9, 1976, plaintiffs, owners of properties abutting that portion of Taft Road, filed suit in circuit court seeking injunctive relief and claiming that the assessments were determined in an arbitrary and inequitable manner. Plaintiffs requested the court to preliminarily enjoin collection during the pendency of this case, to determine that their properties were not especially benefited, to adjudge the assessments null and void with any liens thereof discharged, and to grant any other relief the court determined just and equitable.

The court issued a preliminary injunction. After a hearing, the court found that the properties received no additional benefit from the improvement not received by the general public and that the assessments were higher than the benefits received. The court declared the assessments void and permanently enjoined collection of them. The Court of Appeals reversed and remanded the case to the Tax Tribunal.

Ill

Because our first task is to resolve a question of Tax Tribunal jurisdiction, we look to the statutory provisions of this relatively new act (effective July 1, 1974).

MCL 205.731; MSA 7.650(31) provides:

"The tribunal’s exclusive and original jurisdiction shall be:

"(a) A proceeding for direct review of a final decision, finding, ruling, determination, or order of an agency relating to assessment, valuation, rates, special assessments, allocation, or equalization, under property tax laws.

"(b) A proceeding for refund or redetermination of a tax under the property tax laws.” (Emphasis added.)

A "proceeding” is defined as an "appeal” in MCL 205.703; MSA 7.650(3). The tribunal’s jurisdiction is based either on the subject matter of the proceeding (e.g., a direct review of a final decision of an agency relating to special assessments under property tax laws) or the type of relief requested (i.e., a refund or redetermination of a tax under the property tax laws). In the instant case, the jurisdiction of the Tax Tribunal is governed by the first subsection since plaintiffs are seeking to enjoin permanently the collection of a special assessment rather than to obtain a refund of a tax.⁸

Although neither party raises the issue, my colleague’s opinion concludes that these municipal special assessments cannot be within the jurisdiction of the Tax Tribunal. We disagree.

A

Whether the jurisdiction of the Tax Tribunal includes special assessments is an issue of statutory construction. The primary and fundamental rule of statutory construction is that it is the court’s duty to ascertain the Legislature’s purpose and intent as expressed in the provision in question, White v Ann Arbor, 406 Mich 554; 281 NW2d 283 (1979). In reviewing such questions, the court first considers the language of the statute in order to ascertain the intention of the Legislature, Kalamazoo City Education Ass’n v Kalamazoo Public Schools, 406 Mich 579; 281 NW2d 454 (1979). Every word of the statute should be considered and no word should be treated as surplusage or rendered nugatory if at all possible, Baker v General Motors Corp, 409 Mich 639; 297 NW2d 387 (1980), State v Levenburg, 406 Mich 455; 280 NW2d 810 (1979).

Focusing on the language of the statute and applying the rules mentioned above, we conclude that the Legislature intended that the Tax Tribunal exercise jurisdiction over this case.

B

MCL 205.731; MSA 7.650(31) grants the Tax Tribunal jurisdiction over proceedings challenging both assessments and special assessments. In the context of taxation, the word "assessment” denotes the determination of the share of the tax to be paid by each taxpayer, Williams v Mayor of Detroit, 2 Mich 560, 565 (1853). For the purpose of collecting ad valorem taxes, or taxes based on the value of property, the word "assessment” means the determination of the value of property for tax purposes, MCL 211.10; MSA 7.10.

MCL 205.731(a); MSA 7.650(31)(a) also expressly grants the Tax Tribunal jurisdiction over decisions relating to special assessments. These special assessments are different from the assessment decisions discussed above. Special assessments are not special procedures for determining the value of property for tax purposes. The words "special assessments” refer to pecuniary exactions made by the government for a special purpose or local improvement, apportioned according to the benefits received; see In re Petition of Auditor General, 226 Mich 170; 197 NW 552 (1924), Detroit v Weil, 180 Mich 593, 599; 147 NW 550 (1914), MCL 211.761(e); MSA 5.3536(l)(e). The impositions in the instant case are clearly special assessments as that term is used in MCL 205.731(a); MSA 7.650(31)(a).

C

Although everyone agrees that these pecuniary exactions are special assessments, a difference of opinion has arisen over whether these special assessments are ones "under property tax laws” as that term is used in MCL 205.731; MSA 7.650(31). Justice Levin’s opinion reasons that the term property tax laws must refer only to ad valorem property taxes because Const 1963, art 6, § 28 uses the same term in reference to ad valorem taxes and because such a construction is consistent with past practices. Therefore, the opinion concludes that the phrase limits the tribunal’s jurisdiction to reviewing the ministerial acts involved in collecting special assessments pursuant to the ad valorem tax law.

We agree that the phrase "under property tax laws” modifies the words "special assessments”. However, it does not exclude these local special assessments for public improvements from the Tax Tribunal’s jurisdiction. Rather, the phrase distinguishes between the special assessments involved in this case and other special assessments not levied under property tax laws.

We recognize that significant differences exist between special assessments and other forms of taxation.⁹ In fact, if the Tax Tribunal Act did not mention special assessments, we would agree that special assessments are not within the jurisdiction of the tribunal.¹⁰ However, the jurisdiction of the tribunal is not limited to general taxes. It also expressly includes special assessments under the property tax laws. Special assessments and the property tax laws are not mutually exclusive concepts.

Most special assessments, like this one for a public improvement, are levied pursuant to the taxing power. In Woodbridge v Detroit, 8 Mich 274, 281 (1860), another road paving case, this Court stated:

"Taxes for purely local public improvements, like the one before us, more generally called assessments, are not mentioned in the constitution, nor is it necessary they should be to give the legislature power over them. The power to impose and collect such taxes, like all other legislative powers not mentioned in the constitution, is plenary, and in the exercise of it is subject to legislative discretion only.”

See, also, Weil, supra, Roberts v Smith, 115 Mich 5, 8; 72 NW 1091 (1897), Motz v Detroit, 18 Mich 495 (1869), Williams, supra, 566, 14 McQuillin, Municipal Corporations (3d ed), § 38.01, p 10, 1 Cooley on Taxation (4th ed), § 31, p 107. Special assessments of this type have been described as a peculiar species of taxation, Weil, supra, 599. 2 Cooley on Taxation (3d ed), p 1153.¹¹

The special assessments in the instant case are clearly in the nature of a property tax, Motz, supra, 523. They are assessed against real property according to the benefits received. They may be collected at the same time and in the same manner as other property taxes. If unpaid, they may become a lien on the property like other property taxes,¹² or may be collected by an action against the owner of the property.¹³ Several recently enacted legislative definitions of the term "property taxes” suggest that special assessments may be included in the definition of "property taxes” unless otherwise excluded.¹⁴

In contrast to these special assessments which are levied under the taxing power, some special assessments are clearly not related to property taxes. Such special assessments are exacted through the state’s police power as part of the government’s efforts to protect society’s health and welfare; see Motz, supra, MCL 103.4; MSA 5.1823. Also, special assessments may be collected in connection with a regulatory program to defray the cost of such regulation, see Dukesherer Farms, Inc v Director of Dep’t of Agriculture (After Remand), 405 Mich 1; 273 NW2d 877 (1979). Such assessments are not ones under the property tax laws and are not within the jurisdiction of the Tax Tribunal.

However, special assessments levied against property owners for public improvements to realty which especially benefit their property are special assessments under the property tax laws for the purposes of the Tax Tribunal Act.

D

These special assessments for public improvements, a form of taxation, are not outside the property tax laws simply because they are levied pursuant to a municipal charter and ordinance rather than a state statute. The power to levy special assessments for public improvements is a sovereign legislative power. Accordingly, the Legislature has the inherent power to levy such special assessments, Const 1963, art 4, § 1, subject to any applicable constitutional limitations, see Woodbridge, supra, 281, Williams, supra, 70 Am Jur 2d, Special or Local Assessments, § 4, pp 845-846. The Legislature also has the ability to delegate such powers to the appropriate authorities, Turner v Detroit, 104 Mich 326; 62 NW 405 (1895).

However, in the absence of such delegation, a municipality does not have the power to levy special assessments, Special or Local Assessments, supra, § 6, p 847. Thus, any special assessment levied by a municipal corporation is levied under authority delegated by law from the Legislature. Therefore, such assessments are levied under the property tax laws even though the Legislature has chosen to exercise its power by delegating it to a municipal authority.

The provisions of MCL 117.24; MSA 5.2103, also support this conclusion. They provide that after approval and filing, a city charter shall "thereupon become law”. The assessments in the instant case were levied pursuant to a home-rule city’s chárter. In other contexts, the Legislature’s use of the word "law” has included municipal charters, see Sykes v Battle Creek, 288 Mich 660, 663; 286 NW 117 (1939), Hudson Motor Car Co v Detroit, 282 Mich 69, 78; 275 NW 770 (1937).¹⁵ Therefore, we conclude that the word "laws” in MCL 205.731; MSA 7.650(31) encompasses both statutes and municipal charters and ordinances.

This construction is supported by the multitude of references to special assessments in The General Property Tax Act and the chapter on taxation.¹⁶ Because these provisions do not authorize any special assessments, they must refer to special assessments levied under other laws. We conclude that they refer to special assessments levied pursuant to statutes, municipal charters and ordinances.

E

This construction is also supported by the Legislature’s decision not to amend MCL 205.731; MSA 7.650(31) after the courts have held that the Tax Tribunal has jurisdiction over special assessments. Since the initial passage of the act, the Tax Tribunal and the Courts have consistently held that the Tax Tribunal has jurisdiction over special assessments; see Emerick v Saginaw Twp, 104 Mich App 243; 304 NW2d 536 (1981), Rogoski v Muskegon, 101 Mich App 786; 300 NW2d 695 (1980), Anderson v Selma Twp, 95 Mich App 112; 290 NW2d 97 (1980), lv den 408 Mich 946 (1980), Sisbarro v City of Fenton, 90 Mich App 675; 282 NW2d 443 (1979), Eggermont v City of Clawson, 88 Mich App 246; 276 NW2d 574 (1979), Edros Corp v Port Huron, 78 Mich App 273; 259 NW2d 456 (1977), Calder v DeWitt Twp, 75 Mich App 674; 256 NW2d 47 (1977), lv den 402 Mich 819 (1977). This consistent construction of the act is entitled to respectful consideration.

Furthermore, the Legislature has amended the act twice since the earlier decisions without changing this jurisdictional provision, see 1978 PA 439, 1980 PA 437. This silence or acquiescence is an indication that the Legislature agreed with the accuracy of these interpretations, Magreta v Ambassador Steel Co (On Rehearing), 380 Mich 513; 158 NW2d 473 (1968), In re Clayton Estate, 343 Mich 101; 72 NW2d 1 (1955).

Considering this acquiescence and the source, nature and effects of special assessments for public improvements, and contrasting them with assessments made pursuant to the police power, we conclude that the special assessments herein are ones under the property tax laws for the purposes of MCL 205.731; MSA 7.650(31).

F

Although we have no arguments or briefs from the parties on this issue, Justice Levin’s opinion concludes that the term "property tax laws” must refer only to ad valorem property taxes because Const 1963, art 6, § 28,¹⁷ and another section of the Tax Tribunal Act, MCL 205.753(1); MSA 7.650(53X1),¹⁸ which have no application to special assessments, use that phrase. While we agree with our colleague that the noted sections have no application to special assessments, this nonapplication does not arise from the use of. the phrase "property tax laws”, but rather from the context of its use. Both provisions relate to the appeals of valuation and allocation decisions from a "final agency provided for the administration of property tax laws”. Since valuation and allocation are not issues in special assessment cases, there was no need for the delegates to the Constitutional Convention to consider whether the phrase "property tax laws” included or excluded special assessments. Thus, the Constitutional Record is silent on whether the phrase "property tax laws” includes special assessments. 2 Official Record, Constitutional Convention 1961, pp 3240-3243.

The silence of the Constitutional Convention Record certainly provides no indication that the meaning of "property tax laws” excludes special assessments. The argument that because valuation and allocation are said to be under the property tax laws, special assessments are not under the property tax laws, is analogous to arguing that because Great Danes and Dachshunds are said to be dogs, a Pekinese is not a dog. Therefore, we see no relevance of the use of "property tax laws” in the 1963 Constitution or MCL 205.753(1); MSA 7.650(53X1) to its use in the jurisdictional section.

Hence, we see no basis for concluding, as our brother does, that when the Legislature wrote "special assessments * * * under property tax laws” it was referring only to the ministerial acts involved in the collection of special assessments. If such was its intention, one would expect, at the very least, that it would have used the phrase "special assessments * * * under ad valorem property tax laws”. Since our brother’s interpretation would drastically change the undisputed meaning of "special assessments” by the use of a phrase whose meaning in this context is far less clear, we decline to follow it.

A more reasonable interpretation of the effect on "special assessments” of the phrase "under property tax laws”, which would not so drastically change its meaning, would be that the phrase distinguishes special assessments that are under the taxing power and that relate to real property from other types of special assessments.

G

Also, we cannot accept the contention that the jurisdiction of the Tax Tribunal does not include special assessments because its predecessors did not review special assessments. The statutes creating and defining the functions of the Board of State Tax Commissioners,¹⁹ the State Tax Department²⁰ and the State Tax Commission²¹ do not address or mention special assessments. In contrast, MCL 205.731; MSA 7.650(31) expressly grants the tribunal jurisdiction over special assessments. The conclusion that the Tax Tribunal’s jurisdiction is more extensive than that of the State Tax Commission is also supported by the provisions of MCL 205.741; MSA 7.650(41) and MCL 205.771-205.773; MSA 7.650(71)-7.650(73). These provisions implement the tribunal’s broad-based jurisdiction over proceedings previously conducted before both the State Tax Commission and the circuit court. Because the tribunal has jurisdiction over matters formerly heard in circuit court, its jurisdiction is not limited to matters heard by the State Tax Commission. This reasoning is particularly applicable to special assessments, because many of the. actions challenging special assessments were heard in circuit court.²²

We recognize that the Legislature’s decision to include special assessments within the jurisdiction of the Tax Tribunal is one which changes past practices. However, in the absence of any constitutional objection, this is not a valid reason to frustrate the expressed intention of the Legislature. The decision whether to experiment with new procedures is a legislative one. The Court’s role is to effectuate, if possible, that legislative decision.

The Legislature’s decision to include special assessments within the jurisdiction of the Tax Tribunal is not unwarranted or unreasonable. Since before the turn of the century, the Legislature has been involved in supervising special assessments, see 1899 PA 39, 1895 PA 3. Currently, a substantial number of statutes address the various aspects of levying a special assessment for a public improvement.²³

The Legislature’s decision to channel appeals from special assessments decisions to an administrative agency instead of the circuit court is consistent with similar actions in other contexts. The action did not create a new level of review, see Emmet County, supra, but only substituted one forum for another and broadened its jurisdiction. Ideally, this consolidation will foster standardization and equality in the levying of special assessments.

In contrast to the rational basis the Legislature demonstrated for channeling appeals from special assessments to the Tax Tribunal, the argument is unpersuasive that the Legislature intended only decisions relating to the collection of special assessments under the ad valorem tax law be within the jurisdiction of the tribunal.

First, if the Legislature intended to provide for such limited jurisdiction, it could have clearly expressed this intention. MCL 205.731; MSA 7.650(31) could have been drafted to limit jurisdiction to "decisions * * * relating to * * * the collection of special assessments * * * under the general property tax act”.

Second, the suggested construction of the act could result in forum shopping and increase the possibility of inconsistent decisions in similar cases. Under that interpretation, assessments collected by separate bills would not be within the jurisdiction of the Tax Tribunal while those collected with the regular tax roll would be. No justification for this difference has been advanced. The argument appears to elevate form over substance. Also, assuming that two forums would not always resolve the same problem the same way, this construction could lead a municipality into forum shopping via determining whether to collect special assessments on their regular tax rolls or otherwise. One of the main reasons underlying the creation of the Tax Tribunal was to reduce or eliminate forum shopping and the possibility of inconsistent decisions.

The claim that the tribunal’s jurisdiction over special assessments extends only to ad valorem taxes inaccurately described in a statute as "special assessments” is equally unpersuasive. No statute has been cited which inaccurately describes an ad valorem tax as a special assessment. The Drain Code, MCL 280.1 et seq.; MSA 11.1001 et seq., does not incorrectly use the term "special assessment”. Rather, the revenues, whether special assessments or otherwise, are entitled drain "tax” or "taxes”.²⁴ MCL 41.721 et seq.; MSA 5.2770(51) et seq., does not inaccurately describe an ad valorem tax as a special assessment, but authorizes the raising of revenue by both special assessments, MCL 41.725; MSA 5.2770(55), and by pledging the full faith and credit of the township, MCL 41.735; MSA 5.2770(65), which could lead to payment from other revenues. Neither does MCL 333.20346; MSA 14.15(20346) inaccurately use the term "special assessments”. It authorizes paying the cost of ambulance service from available funds, fees for service, and special assessments. In OAG 1979-1980, No 5706, p 770 (May 13, 1980), the Attorney General opined that the cost of such service could not be imposed as a special assessment since no property was especially benefited. Thus, any levy upon property for that purpose must be exacted as an ad valorem tax. I interpret this opinion as indicating that the municipality should defray its costs from available funds (general taxes), see MCL 333.20346(1); MSA 14.15(20346X1), rather than indicating that the reference in subsection (2) to special assessments meant ad valorem taxes.

Since no statute has been cited which inaccurately describes an ad valorem tax as a special assessment, there is no basis upon which to conclude that the words "special assessment” in the Tax Tribunal Act refer only to such non-existent statutes.

IV

Although an understanding of the Tax Tribunal’s jurisdiction is necessary to the resolution of this case, the more immediate concern is the jurisdiction of the circuit court over these proceedings. The jurisdiction of the circuit court is governed by Const 1963, art 6, § 13, which provides:

"The circuit court shall have original jurisdiction in all matters not prohibited by law; appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law; power to issue, hear and determine prerogative and remedial writs; supervisory and general control over inferior courts and tribunals within their respective jurisdictions in accordance with rules of the supreme court; and jurisdiction of other cases and matters as provided by rules of the supreme court.”

MCL 600.601; MSA 27A.601 provides:

"Circuit courts have the power and jurisdiction

"(1) possessed by courts of record at the common law, as altered by the constitution and laws of this state and the rules of the supreme court, and

"(2) possessed by courts and judges in chancery in England on March 1, 1847, as altered by the constitution and laws of this state and the rules of the supreme court, and

"(3) prescribed by rule of the supreme court.”

Historically, the circuit courts exercised jurisdiction over actions to enjoin the collection of special assessments. The courts continue to exercise this jurisdiction except as prohibited by the laws of this state. The divestiture of jurisdiction from the circuit court is an extreme undertaking. Statutes so doing are to be strictly construed. Divestiture of jurisdiction cannot be accomplished except under clear mandate of the láw, Leo v Atlas Industries, Inc, 370 Mich 400, 402; 121 NW2d 926 (1963), Crane v Reeder, 28 Mich 527, 532-533 (1874).

Even under these strict rules of construction, the Tax Tribunal Act clearly evidences a legislative intention that the circuit court not have jurisdiction over matters within the tribunal’s exclusive jurisdiction. The tribunal’s jurisdiction over proceedings under the property tax laws is "exclusive”, meaning to the exclusion of others, Black’s Law Dictionary (4th ed), p 673.

MCL 205.741; MSA 7.650(41) provides:

"A person or legal entity which, immediately before the effective date of this act, was entitled to proceed before the state tax commission or circuit court of this state for determination of a matter subject to the tribunal’s jurisdiction, as provided in section 31, shall proceed only before the tribunal.” (Emphasis added.)

MCL 205.774; MSA 7.650(74) provides:

"The right to sue any agency for refund of any taxes other than by proceedings before the tribunal is abolished * *

We find that these provisions sufficiently express the Legislature’s intent to make the tribunal’s jurisdiction exclusive and to prohibit the circuit court from exercising jurisdiction over matters within the tribunal’s exclusive jurisdiction.

Plaintiffs respond that these proceedings raise constitutional issues and seek equitable relief which the Tax Tribunal lacks the power to grant. Because the tribunal lacks the power to decide constitutional issues and to grant an injunction, plaintiffs conclude that the Tax Tribunal Act does not prohibit the bringing of this action in circuit court.²⁵

Generally speaking, an agency exercising quasi-judicial power does not undertake the determination of constitutional questions or possess the power to hold statutes unconstitutional, Dation v Ford Motor Co, 314 Mich 152; 22 NW2d 252 (1946). However, the constitutional claims in this case do not involve the validity of a statute. Rather, plaintiffs’ claim is merely an assertion, in constitutional terms, that the assessment was arbitrary and without foundation.

The law requires that special assessments be made according to the benefits received, see Dix-Ferndale Taxpayers’ Ass’n v Detroit, 258 Mich 390, 395; 242 NW 732 (1932). Plaintiffs’ claim is that these special assessments were not made according to the benefits received as required by law. The resolution of this claim involves many fact determinations. The membership of the Tax Tribunal is structured to provide it with experience in resolving these fact issues. The tribunal’s de novo review²⁶ gives it the opportunity to rectify any errors in the agency’s determination. This review is sufficient to resolve any of the claims raised by the plaintiffs. Since the issues raised by plaintiffs do not involve the validity of the tribunal’s action or a statute, they do not remove this proceeding from the exclusive jurisdiction of the Tax Tribunal.

We agree with plaintiffs’ contention that the Tax Tribunal lacks the power to issue an injunction. The issuance of an injunction is an exercise of judicial power. The constitution limits the Legislature’s power to transfer judicial power to administrative agencies, see Const 1963, art 3, § 2, Johnson v Kramer Bros Freight Lines, Inc, 357 Mich 254, 258; 98 NW2d 586 (1959). Generally, quasi-judicial agencies lack judicial power, see Dation v Ford Motor Co, supra, Michigan Mutual Liability Co v Baker, 295 Mich 237, 242; 294 NW 168 (1940), Mackin v Detroit-Timkin Axle Co, 187 Mich 8; 153 NW 49 (1915). MCL 205.732; MSA 7.650(32) does not expressly grant the tribunal the power to issue injunctions, and such power will not be extended by implication.

Although injunctive relief may not be directly available, the tribunal is empowered to issue "writs, orders, or directives”, see MCL 205.732; MSA 7.650(32), and nothing in the Tax Tribunal Act prohibits one from seeking equitable relief to enforce a tribunal decision, see Edros, supra, Niedzialek v Journeymen Barbers, Hairdressers & Cosmetologists’ International Union of America, Local 552, AFL, 331 Mich 296; 49 NW2d 273 (1951), Van Buren Public School Dist v Wayne Circuit Judge, 61 Mich App 6, 14; 232 NW2d 278 (1975).

Case law exists indicating that the constitution places some limitations on the Legislature’s power to divest the court completely of equity jurisdiction and the judicial power to grant an injunction; see Haggerty v City of Dearborn, 332 Mich 304; 51 NW2d 290 (1952). Thus, while there may be an extraordinary case which justifies the exercise of equity jurisdiction in contravention of a statute, this is not such a case. Where the Legislature has provided a plain, adequate remedy at law, it has the constitutional authority to impose limitations on other available remedies, Eddy v Lee Twp, 73 Mich 123; 40 NW 792 (1888). The legal remedy available in this case is a proceeding before the Tax Tribunal. As indicated above, the tribunal has the jurisdiction and ability to resolve all the claims presented.

Although exceptions to statutes purportedly conferring exclusive jurisdiction on other administrative agencies and courts have been recognized by this Court, see Emmet County, supra, Michigan Mutual, supra, plaintiffs’ requests for preliminary and permanent injunctions in these proceedings do not take them out of the exclusive jurisdiction of the tribunal pursuant to MCL 205.731; MSA 7.650(31), see Eggermont v City of Clawson, 88 Mich App 246; 276 NW2d 574 (1979); Edros Corp v Port Huron, 78 Mich App 273; 259 NW2d 456 (1977).

While plaintiffs further argue that the circuit court is the proper forum for this proceeding because the Tax Tribunal lacks jurisdiction to resolve class actions, defendants state that, in effect, the tribunal has jurisdiction to decide suits affecting an entire class. This suit is a proper example. The further resolution of the issue is not necessary to the determination of this case. The tribunal’s exclusive jurisdiction includes all proceedings for review of an agency’s decision under the property tax laws. Allowing such class actions to be brought in the circuit court while prohibiting suits by a single taxpayer would elevate form over substance. In essence, §§41 and 74 prohibit the circuit court from exercising jurisdiction in these proceedings. However, plaintiffs can obtain in the Tax Tribunal the same relief sought by another name in the circuit court.

V

Upon reversing the judgment of the circuit court, the Court of Appeals remanded the case to the Tax Tribunal pursuant to MCL 205.773; MSA 7.650(73)²⁷ and GCR 1963, 820.1(7).²⁸ On appeal, defendants contend that the Court of Appeals erred in remanding this case because the tribunal lacked jurisdiction "over this equitable matter. MCL 205.735; MSA 7.650(35), the only provision establishing procedures for invoking the jurisdiction of the tribunal, provides:

"The jurisdiction of the tribunal shall be invoked by the filing of a written petition by a party in interest, as petitioner, within 30 days after the final decision, ruling, determination, or order which he seeks to review or within 30 days after the receipt of a bill for a tax he seeks to contest. The unit of government shall be named as respondent. Service of the petition on the respondent shall be by certified mail.”

Defendants claim that a timely filing, within 30 days after the final decision is necessary to invoke the jurisdiction of the Tax Tribunal, 2 Am Jur 2d, Administrative Law, § 328, pp 150-151. The word "shall” has been construed to mean "must”, see Sauder v Dist Board of School Dist No 10, Royal Oak Twp, Oakland County, 271 Mich 413, 418; 261 NW 66 (1935). The Tax Tribunal has applied a similar construction of the statute to determine that the 30-day limit is jurisdictional²⁹ and this construction of the statute is entitled to respectful consideration, Magreta, supra.

Defendants argue that MCL 205.773; MSA 7.650(73) does not apply because it applies only to cases heard in the circuit court or State Tax Commission before the creation of the Tax Tribunal and remanded after appeal.

Although MCL 205.735; MSA 7.650(35) provides that the tribunal’s jurisdiction shall be invoked by a timely filing, the statute does not state the consequences of failing to file a timely petition. It does not contain any language prohibiting the tribunal from exercising jurisdiction in cases filed later than 30 days after a final ruling or receipt of a tax bill. It contains none of the prohibitive language normally present in statutory limitations.³⁰ In this respect, MCL 205.735; MSA 7.650(35) is not free from ambiguity.

Although defendant’s construction of MCL 205.731; MSA 7.650(31) might be persuasive if it were the only statutory pronouncement on this issue, other statutory provisions expressly set forth different limitations on actions brought by taxpayers seeking relief. In contrast to the absence of any language in this section expressly creating a limitation or bar, some statutes within the jurisdiction of the tribunal contain clear expressions of limitations. Many of these periods of limitation are different from or longer than the 30-day period provided in the Tax Tribunal Act.³¹

If the provisions of the Tax Tribunal Act were intended to supersede these express limitation periods, the Tax Tribunal Act does not clearly indicate such an intention. The existence of these longer periods of limitation are not inconsistent with the provisions of the Tax Tribunal Act so as to be repealed by MCL 205.707; MSA 7.650(7).³² Also, repeals by implication are not favored, see Yarger v City of Hastings, 375 Mich 413; 134 NW2d 726 (1965). In such cases the canon of statutory construction is that:

" '[I]f the courts can by any fair, strict or liberal construction find for the two provisions a reasonable field of operation, without destroying their evident intent and meaning, preserving the force of both, and Construing them together in harmony with the whole course of legislation upon the subject it is their duty to do so.’ ” Rathbun v Michigan, 284 Mich 521, 544-545; 280 NW 35, 44 (1938), quoting with approval from State ex rel Ellis v Givens, 48 Fla 165, 174; 37 So 308 (1904).

In light of the existence of longer periods of limitations, the reasonableness of relying on such provisions and the severe consequence to aggrieved taxpayers from a determination that the limitation periods were repealed by implication, we hold that the provisions of § 35 do not supersede the other applicable periods of limitation. When a specific limitation for such actions has been established, the provisions of § 35 will not prohibit the tribunal from exercising jurisdiction in a proceeding brought within the specific time limitation. This construction of MCL 205.735; MSA 7.650(35), does not render it meaningless. It applies in cases in which a specific provision providing a longer period of limitation does not exist.

In the instant case, the assessment rolls were confirmed on April 26, 1976. Suit was filed on June 9, 1976. Plaintiffs’ filing would have been timely-under the City of Novi’s Charter § 11.4 and Special Assessment Ordinance, No 69-01, § 26.01, because it was filed within 60 days after the confirmation of the rolls.³³ Considering the periods of limitation provided, plaintiffs’ action was timely filed in the circuit court.

The timely filing in the circuit court was not sufficient to invoke the jurisdiction of the Tax Tribunal. However, through this action, the circuit court acquired jurisdiction over defendants. MCL 600.5856; MSA 27A.5856,³⁴ provides that the statute of limitations is tolled whenever jurisdiction over the defendant was otherwise acquired.³⁵ Because the period of limitations was tolled and did not expire during the pendency of this suit, MCL 205.735; MSA 7.650(35) did not remove this proceeding from the jurisdiction of the Tax Tribunal. The Court of Appeals did not err in ordering that this case be remanded to the Tax Tribunal pursuant to GCR 1963, 820.1(7).

Affirmed. No costs, this being a public question.

Williams, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Coleman, C.J._

Addendum

In order to clarify the sequence of opinions, I invite the reader’s attention to the fact that the final opinion of the Court was written in response to an initial dissent which raised a new issue neither briefed nor argued. An entirely new dissent now is filed, during conference consideration, which blurs the references of the majority opinion and raises new arguments. Because of the long history of this case and Romulus City Treasurer v Wayne County Drain Comm’r, we do not again write to conform the two opinions or state arguments contra to new matter, but leave the reader with this note, the intent of which is to enhance understanding of the two opinions which at first sight may appear as "ships that pass in the night”.

1 In the order granting leave to appeal, this Court directed the following issues to be addressed:

(1) whether the circuit court has jurisdiction of a complaint for injunctive relief from a special assessment levied by a governmental unit in light of the provision for exclusive and original jurisdiction of the Tax Tribunal,

(2) whether the 30-day filing requirement is jurisdictional, and

(3) whether, under the facts of this case, the plaintiffs have complied with the requirements necessary to invoke the jurisdiction of the Tax Tribunal. Wikman v Novi, 406 Mich 977 (1979).

2 A third avenue of relief, an injunction to stay the collection and assessment of a tax, was prohibited by MCL 211.114; MSA 7.168. However, this statute has not always been construed as an absolute prohibition, see Haggerty v City of Dearborn, 332 Mich 304, 316; 51 NW2d 290 (1952).

3 Prior to being amended by 1976 PA 292; MCL 211.53; MSA 7.97 provided:

"Any person may pay the taxes or special assessments, or any one of the several taxes or special assessments, on any parcel or description of land, or on any undivided share thereof, and the treasurer shall note across the face of the receipt in ink any portion of the taxes or special assessments remaining unpaid. A person may protest any tax or special assessment which is paid within 60 days of such payment, whether levied on personal or real property, to the treasurer, specifying in writing, signed by him, the grounds of the protest, and the treasurer shall minute the fact of the protest on the tax roll. The person may, within 30 days after such protest, sue the township or city for the amount paid, and recover, if the tax or special assessment is shown to be illegal for the reason shown in the protest.” The constitutionality of this provision as it relates to special assessments was questioned in Knott v Flint, 363 Mich 483; 109 NW2d 908 (1961). Although four justices concluded that the statute was unconstitutional, a majority of the Court did not reach this conclusion. Therefore, it is not binding on later cases, see LeVasseur v Allen Electric Co, 338 Mich 121; 61 NW2d 93 (1953), Zirkalos v Zirkalos, 326 Mich 420; 40 NW2d 313 (1949).

4 See Forest Hill Cemetery Co v Ann Arbor, 303 Mich 56; 5 NW2d 564 (1942), and the cases cited in the dissenting opinion in fn 24. In cases involving assessments for a drain, the availability of injunctive relief is limited by statute, see MCL 280.267; MSA 11.1267, MCL 280.268; MSA 11.1268.

5 See Consumers Power Co v Big Prairie Twp, 81 Mich App 120, 156-157; 265 NW2d 182 (1978), Mohawk Data Sciences Corp v Detroit, 63 Mich App 102; 234 NW2d 420 (1975), Fisher-New Center Co v Detroit, 38 Mich App 750; 197 NW2d 272 (1972).

6 MCL 205.721; MSA 7.650(21) provides in part:

“The tax tribunal is created and is a quasi-judicial agency which, for administrative purposes only, is in the department of treasury.”

7 MCL 205.722; MSA 7.650(22) provides in part:

"(1) The members of the tribunal shall be citizens of the United States, residents of this state, of which at least 2 shall be attorneys admitted to practice in this state and shall have been engaged for at least 5 years immediately preceding the appointment in active government, corporate, or private practice dealing with federal and state-local tax matters, including the property tax, or in the discharge of a judicial or quasi-judicial office; at least 1 shall be a certified assessor holding the highest level of certification granted by the state assessors board; at least 1 shall be a professional real estate appraiser holding a recognized certification indicating competence in the valuation of complex income producing and residential property of the type subject to property taxation, with a certification having required a review of sample appraisals, and 5 years of experience as an appraiser; and at least 1 shall be a certified public accountant with 5 years’ experience in state-local tax matters. Not more than 3 members shall be members of the same professional discipline. Additional appointees who are not attorneys, certified assessors, professional real estate appraisers, or certified public accountants shall have at least 5 years’ experience in state or local tax matters.

"(2) Each member shall take and subscribe the constitutional oath of office before entering on the discharge of his duties.

“(3) Each member shall devote his entire time to, and personally perform the duties of, his office and shall not engage in other business or professional activity for remuneration.”

8 MCL 205.731(b); MSA 7.650(31)(b) is not involved in this proceeding. It refers to taxes without mentioning special assessments. In many instances, such a reference would be construed as including taxes but not special assessments; see Lake Shore & M S R Co v Grand Rapids, 102 Mich 374; 60 NW 767 (1894). Whether the reference to special assessments in subsection (a) changes this analysis is a decision which must wait for the appropriate case raising this issue.

9 See Dukesherer Farms, Inc v Director of Dep’t of Agriculture (After Remand), 405 Mich 1; 273 NW2d 877 (1979), and Knott, supra.

10 Graham v Saginaw, 317 Mich 427; 27 NW2d 42 (1947), Forest Hill Cemetery, supra, In re Petition of Auditor General, 226 Mich 170; 197 NW 552 (1924), Lake Shore, supra, Motz v Detroit, 18 Mich 495 (1869), and Woodbridge v Detroit, 8 Mich 274 (1860).

11 The Legislature, in enacting the Drain Code, has described the revenues received as taxes even though they are special assessments for the purpose of constitutional analysis, see MCL 280.263; MSA 11.1263.

12 MCL 41.728; MSA 5.2770(58), MCL 67.10; MSA 5.1294, MCL 104A.3; MSA 5.1854(3), MCL 123.758; MSA 5.570(28).

13 MCL 68.18; MSA 5.1366, MCL 104A.3; MSA 5.1854(3), MCL 211.501; MSA 7.721.

14 MCL 206.512(2); MSA 7.557(1512X2) provides:

" 'Property taxes’ means general ad valorem taxes due and payable for periods after December 31, 1972, levied on a homestead within this state, including collection fees, but not including special assessments, penalties, or interest.”

This definition is limited to determining property tax credits, see MCL 206.501; MSA 7.557(1501). See also MCL 554.702(12); MSA 26.1287(2X12).

15 But cf. Delta County v Gladstone, 305 Mich 50; 8 NW2d 908 (1943), and Fennell v Common Council of Bay City, 36 Mich 186 (1877).

16 MCL 211.53; MSA 7.97, MCL 211.58; MSA 7.102, MCL 211.98; MSA 7.151, MCL 211.108; MSA 7.162, MCL 211.135; MSA 7.194, MCL 211.360; MSA 7.960, MCL 211.372; MSA 7.965(2), MCL 211.381; MSA 7.771, MCL 211.403-211.404; MSA 7.863-7.865, MCL 211.406; MSA 7.867, MCL 211.421; MSA 7.941, MCL 211.492; MSA 7.712, MCL 211.501; MSA 7.721, MCL 211.531; MSA 7.761, MCL 211.711; MSA 7.680, MCL 211.761 et seq.; MSA 5.3536(1) et seq.

17 Const 1963, art 6, § 28 provides in part:

"In the absence of fraud, error of law or the adoption of wrong principles, no appeal may be taken to any court from any final agency provided for the administration of property tax laws from any decision relating to valuation or allocation.”

18 MCL 205.753(1); MSA 7.650(53)(1) provides:

"Subject to section 28 of article 6 of the constitution of 1963, and pursuant to section 102 of Act No. 306 of the Public Acts of 1969, as amended, being section 24.302 of the Michigan Compiled Laws, and in accordance with general court rules, an appeal from the tribunal’s decision shall be by right to the court of appeals. For purposes of the constitutional provision, the tribunal is the final agency for the administration of property tax laws.”

19 1899 PA 154; MCL 211.146 et seq.; MSA 7.204 et seq.

20 1925 PA 155; MCL 209.152; MSA 7.621.

21 1927 PA 360; MCL 209.101; MSA 7.631.

22 The decision in Emmet County v State Tax Comm, 397 Mich 550; 244 NW2d 909 (1976), does not dictate a different result. In Emmet County this Court held that the Tax Tribunal did not have jurisdiction to review decisions relating to intercounty equalization. The Court construed the term "equalization” in MCL 205.731; MSA 7.650(31) to refer only to intracounty equalization. This construction was based, in part, on the fact that the Legislature has never provided for administrative review of decisions relating to intercounty equalization. Also, granting the Tax Tribunal jurisdiction over these decisions would insert an additional level of review in the process, thereby endangering the commission’s ability to function within the time limits established for the collection of taxes.

However, granting the tribunal jurisdiction to review special assessments does not create similar problems. It does not insert a new and additional level of review for such assessments. Rather, the Legislature only changed the forum in which this review is conducted. Actions which had been brought in the circuit court must now be brought before the Tax Tribunal. Furthermore, review of special assessments by the tribunal will not endanger the timely and orderly collection of taxes or present the risks indicated in Emmet County.

23 See fn 16.

24 See MCL 280.51; MSA 11.1051, MCL 280.130; MSA 11.1130, MCL 280.135; MSA 11.1135, MCL 280.151; MSA 11.1151, MCL 280.161; MSA 11.1161, MCL 280.197; MSA 11.1197, MCL 280.198; MSA 11.1198, MCL 280.244; MSA 11.1244, MCL 280.245; MSA 11.1245, MCL 280.263; MSA 11.1263, MCL 280.265-280.275; MSA 11.1265-11.1275. See MCL 280.262; MSA 11.1262, MCL 280.279; MSA 11.1279.

25 Plaintiffs also contend that the action brought in circuit court seeking injunctive and other relief was not an "appeal” under MCL 205.703(e); MSA 7.650(3)(e) but an original action. Although plaintiffs’ complaints were not appeals in the narrow sense of the word, the word "appeal” in MCL 205.703(e); MSA 7.650(3)(e), was not intended to mean review by a judicial body of an action taken by another judicial body. The word is used in the sense that the tribunal is the forum in which all aggrieved taxpayers must file their complaints, see Newell v Kalamazoo Circuit Judge, 215 Mich 153; 183 NW 907 (1921), Slicho v New Orleans, 235 La 305, 312; 103 So 2d 454, 457 (1958).

26 See MCL 205.735(1); MSA 7.650(35)(1).

27 MCL 205.773; MSA 7.650(73) provides:

"When a matter is decided by a forum described in section 41 and the decision is appealed, and when, after the effective date of this act, the matter is remanded, the remand shall be to the tribunal for such action as the appellate court may direct.”

28 GCR 1963, 820.1(7) provides:

"The Court of Appeals may, at any time, in addition to its general powers, in its discretion and on such terms as it deems just:

"(7) Give any judgment and make any order which ought to have been given or made, and make such other and further orders and grant such relief, as the case may require.”

29 L & C Development Co v Torch Lake Twp, 1 MTTR 91 (Docket No. 3665, May 20, 1975), Lake Geneva Associates, Ltd v Oakland County, 1 MTTR 95 (Docket No. 3799, May 15, 1975), Schimmel v Oakland County Tax Allocation Board, 1 MTTR 61 (Docket No. 3674, May 6, 1975); see, also, Sisbarro v City of Fenton, 90 Mich App 675; 282 NW2d 443 (1979).

30 See MCL 104A.4; MSA 5.1854(4), "An action of any kind shall not be instituted * * * unless * * * commenced within 90 days”;

MCL 205.59(6); MSA 7.530(6), "The taxpayer shall not claim refund * * * after the expiration of 4 years”;

MCL 211.53; MSA 7.97 (until amended by 1976 PA 292), "The person * * * may, within 30 days after such protest, sue”;

MCL 280.265; MSA 11.1265, "No suit shall be instituted * * * unless brought within 30 days”;

MCL 600.5801-600.5809; MSA 27A.5801-27A.5809, "No person may bring or maintain any action”, "No person shall bring or maintain any action”, "A person shall not bring or maintain an action”;

MCL 600.5813; MSA 27A.5813, "All other personal actions shall be commenced within the period * * * and not afterwards”.

31 In addition to the statutes cited in fn 30, supra, see MCL 205.508; MSA 7.411(8); MSA 206.421(3); MSA 7.557(1421)(3).

32 MCL 205.707; MSA 7.650(7) provides:

"The provisions of this act are effective notwithstanding the provisions of any statute, charter, or law to the contrary.”

33 The provisions of MCL 104A.4; MSA 5.1854(4) are directly applicable only to fourth-class cities, see MCL 81.1; MSA 5.1591, and MCL 81.1b; MSA 5.1591(2); but see MCL 81.1c; MSA 5.1591(3). However, MCL 81.1b; MSA 5.1591(2) authorizes home-rule cities to adopt the provisions of the act as part of their charters. The Charter of the City of Novi, § 11.4, provides:

"No action of any kind shall be instituted for the purpose of contesting or enjoining the collection of any special assessment, unless (a) within thirty (30) days after the confirmation of the special-assessment roll, written notice is given to the City Council indicating an intention to file such action and stating the grounds on which it is claimed such assessment is illegal; and unless (b) such action shall be commenced within sixty (60) days after the confirmation of the roll. If the City Attorney submits a written opinion finding said roll illegal, in whole or in part, the City Council shall revoke its confirmation, correct the illegality, if possible, and reconfirm the same. Property which is not involved in the illegality shall not be assessed more than was imposed upon the original confirmation without further notice and hearing thereon.”

City of Novi Ordinance, No 69-01, § 26.01, provides:

"Except and unless notice is given to the Council in writing of an intention to contest or enjoin the collection of any special assessment for the collection of any special assessment for the construction of any pavement, sewer or other public improvement, the construction of any sidewalk, or the removal or abatement of any public hazard or nuisance, within thirty (30) days after the date of the meeting of the Council at which it is finally determined to proceed with the making of the improvement in question, which notice shall state the grounds on which the proceedings are to be contested, no suit or action of any kind shall be instituted or maintained for the purpose of contesting or enjoining the collection of such special assessments; and regardless of whether or not any public improvement is completed in any special assessment district, no owner of real property located in such district shall be entitled to commence any suit or action for the purpose of contesting or enjoining the collection of any such special assessment after he has received the benefits from the substantial completion of that portion of such public improvement for which he is assessed, or unless such suit or action shall be commenced within sixty (60) days after confirmation of the roll.”

34 MCL 600.5856; MSA 27A.5856 provides:

"The statutes of limitations are tolled when

"(1) the complaint is filed and a copy of the summons and complaint are served on the defendant, or when

"(2) jurisdiction over the defendant is otherwise acquired, or when,

"(3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an ofiicer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.”

35 See Elgammal v Macomb County Intermediate School Dist Board of Education, 83 Mich App 444; 268 NW2d 679 (1978), Kiluma v Wayne State University, 72 Mich App 446; 250 NW2d 81 (1976), Ralph Shrader, Inc v Ecclestone Chemical Co, 22 Mich App 213; 177 NW2d 241 (1970).