Boards of County Road Commissioners of Van Buren Counties v. Riley

• Decision Date: 21 May 1974
• Docket Number: No. 42,42
• Citation: 218 N.W.2d 144,391 Mich. 666
• Parties: BOARDS OF COUNTY ROAD COMMISSIONERS OF the COUNTIES OF VAN BUREN ET AL., Plaintiffs-Appellees, v. Wallace RILEY et al., Defendants-Appellants, and Russell D. Gould, Intervening Defendant-Appellant.
• Court: Michigan Supreme Court

Page 144

218 N.W.2d 144

391 Mich. 666

BOARDS OF COUNTY ROAD COMMISSIONERS OF the COUNTIES OF VAN BUREN ET AL., Plaintiffs-Appellees, v. Wallace RILEY et al., Defendants-Appellants and Russell D. Gould, Intervening Defendant-Appellant.

No. 42.

Supreme Court of Michigan.

May 21, 1974.

Tom Downs, Lansing, John P. Cushman, Timothy Downs, Detroit, L. W. McEntee, Pontiac, William S. Farr, Grand Rapids, for plaintiffs-appellees.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Charles D. Hackney, Asst. Atty. Gen., Lansing, for defendants-appellants.

Richard Durant, Michael J. Talbot, Detroit, for intervening defendant-appellant.

Before the Entire Bench.

PER CURIAM.

Const.1963, art. 2, § 9 reserves to the people 'the power to approve or reject laws enacted by the legislature, called the referendum.' This constitutional provision provides, however, that the power of referendum does not extend to acts 'making appropriations for state institutions.'

On March 29, 1973, petitions were filed with the Board of State Canvassers requesting a referendum on 1972 P.A. 326 (M.C.L.A. § 207.102 et seq.; M.S.A. § 7.292 et seq.), which increased the motor vehicle gasoline tax.

The plaintiffs, the Boards of County Road Commissioners of a number of counties, commenced an original action in the Court of Appeals asserting that Act 326 is not subject to referendum and seeking a writ of mandamus permanently restraining the Board of State Canvassers from ruling on the sufficiency of the petitions. ¹

The question is whether Act 326 is exempt from a referendum on the ground that it makes 'appropriations for state institutions.'

Act 326, in addition to raising the gasoline tax from seven to nine cents a gallon, provides that the revenue derived from the tax, less license fees and necessary expenses, 'shall be deposited in the state treasury to the credit of the motor vehicle highway fund.' ²

The Court of Appeals declined to hold that Act 326 standing by itself makes appropriations to state institutions. However, on the authority of Michigan Good Roads Federation v. State Board of Canvassers, 333 Mich. 352, 53 N.W.2d 481 (1952), the Court of Appeals, construing Act 326 In pari materia with 1972 P.A. 327, read them as 'one act' making appropriations to state institutions and issued a writ of mandamus. Boards of County Road Commissioners v. Board of State Canvassers, 50 Mich.App. 89, 107, 213 N.W.2d 298 (1973).

Act 327, enacted on the same day as Act 326, ³

--creates a general transportation fund, primarily for public transportation ('mass transit') and appropriates a stated percentage of the highway fund revenue for this new fund; ⁴

-- provides, and this also is new, for an annual appropriation of $1,000,000 from the highway fund for a 'critical bridge program * * * to provide financial assistance to highway authorities for the improvement or reconstruction of existing bridges or for the construction of bridges to replace existing bridges in whole or in part'; ⁵

--'apportion(s) and appropriate(s)' the remaining monies in the motor vehicle highway fund on a percentage basis to the department of state highways, to the county road commissions, and to incorporated cities and villages. ⁶

We conclude that the Court of Appeals properly relied on Michigan Good Roads Federation v. State Board of Canvassers, Supra, which we decline to overrule. Acts 326 and 327 are In pari materia. Act 326 is exempt under the Constitution from referendum because, read together with Act 327, it makes 'appropriations for state institutions.' We affirm the issuance of the writ of mandamus.

I

In Kuhn v. Department of Treasury, 384 Mich. 378, 385, 183 N.W.2d 796, 799 (1971), this Court stated that 'under a system of government based on grants of power from the people, constitutional provisions by which the people reserve to themselves a direct legislative voice ought to be liberally construed.'

This is in accord with the general view. But in other jurisdictions, as in Michigan, there are exceptions to the right of referendum. 'Generally the courts have held that the power of referendum should be construed liberally. However, for practical reasons, the people's power or right of referendum has usually been subjected to certain constitutional restrictions.' Anno: Referendum--Laws Excepted, 100 A.L.R.2d 314, 315.

The early Michigan constitutions did not provide for a right of referendum; legislative power was vested exclusively in the Legislature. ⁷ The amendment to Const.1908, 1908, art. 5, § 1, which reserved to the people the right of referendum, excepted those legislative acts which make 'appropriations for state institutions and to meet deficiencies in state funds.'

This Court, construing this exception, held, in Detroit Automobile Club v. Secretary of State, 230 Mich. 623, 203 N.W. 529 (1925), that the state highway department is a state institution and that an act which levies a gasoline tax and makes an appropriation of the tax revenue for the use of the highway department is not subject to referendum and, in Moreton v. Secretary of State, 240 Mich. 584, 216 N.W. 450 (1927), that an act making appropriations to the counties of money received from the gasoline tax, to be used by them to build roads under the direction and supervision of the state, was not subject to referendum.

In Michigan Good Roads Federation v. State Board of Canvassers, Supra, sufficient petitions had been filed with the Secretary of State to require a referendum on 1951 P.A. 54. That act raised the tax on gasoline from three to four and one-half cents a gallon, provided that the net tax revenue be credited to the motor vehicle highway fund and 'appropriated, allocated and apportioned' the funds money to the state highway department, the several county road commissions and incorporated cities and villages 'in the manner and for the specific highway purposes prescribed by law.' 1951 P.A. 54, § 18b.

Yet § 10 of 1951 P.A. 51 'apportioned and appropriated' the money in the motor vehicle highway fund among the various governmental units on a fixed percentage basis (see footnote 6) in a manner repeated in subsequent acts through 1972 P.A. 327 now before us. ⁸

A unamimous Court, declaring that Acts 51 and 54 of 1951 were part of 'a comprehensive system for the collecting of specific taxes on motor vehicles and motor vehicle fuels, the allocation of funds therefrom and the use thereof for highway purposes' and noting that they were both enacted by the Legislature at the same time, construed the acts In pari materia and found Act 54--the act which increased the gasoline tax--not subject to referendum because, so read together with Act 51, Act 54 appropriated money for state institutions, and issued a writ prohibiting the State Board of Canvassers from certifying the act for a referendum.

II

The defendants attempt to distinguish Good Roads by asserting it was the Legislature's intent to pass P.A. 326 and P.A. 327 as separate acts. We are, however, persuaded that the Court of Appeals correctly construed the two acts In pari materia.

The acts were enacted on the same day as part of a single legislative program. Each act included a so-called tie-bar provision that it 'shall not take effect' until the other act is 'enacted into law.' ⁹

While Act 327 (apportioning and appropriating the monies in the highway fund) would be viable even if Act 326 (raising the gasoline tax) were subjected to a referendum and defeated, as the motor vehicle highway fund would still be receiving and apportioning the net revenue from the former seven cents a gallon tax, it is apparent that the Legislature predicated the new appropriations for mass transit and the critical bridge program on a nine cents gasoline tax.

If these new appropriations were effective independently of the validity of the nine cents gasoline tax, a defeat of P.A. 326 would mean that the state highway department and county road commissioners would receive less money than before from the highway fund to finance previously authorized and contemplated programs. We are persuaded that was not the intention of the Legislature.

III

The referendary provision and exceptions of the 1908 Constitution were retained in the 1963 Constitution as art. 2, § 9 without change in the pertinent language. ¹⁰ Although this is our first opportunity to construe this language in the 1963 Constitution, ¹¹ we are bound by the meaning given these very words in Good Roads and the earlier decisions.

The following principle of constitutional adjudication has been recognized by this Court:

"Where a constitutional provision has received a settled judicial construction, and is afterwards incorporated into a new or revised constitution, or amendment, it will be presumed to have been retained with a knowledge of the previous construction, and courts will feel bound to adhere to it." Richardson v. Secretary of State, 381 Mich. 304, 311, 160 N.W.2d 883, 887 (1968). ¹²

In Richardson we applied this principle in adhering to the settled construction by this Court of the limitation of the eligibility of a member of the Legislature to receive 'any civil appointment within this state from the governor * * * or from any other state authority during the term for which he is elected.' Const.1963, art. 4, § 9. Similarly, see Young v. Detroit City Clerk, 389 Mich. 333, 207 N.W.2d 126 (1973). ¹³

Further, on recent consideration of the constitutional limitation on the incurment of state indebtedness, we referred to a judicial construction preceding the adoption of the 1963 Constitution:

'(W)hatever the logic of it, we are committed to its acceptance, since the people, presumably aware of the exception (created by the judicial construction preceding the 1963 Constitution), did not eliminate it in the 1963 Constitution.' Advisory Opinion re Constitutionality of 1973 P.A. 1 and 2, 390 Mich. 166, 176--177, 211 N.W.2d 28, 31 (1973).

The construction placed by ...