Butcher v. Grosse Ile Tp.

• Decision Date: 09 March 1972
• Docket Number: No. 33,33
• Citation: 194 N.W.2d 845,387 Mich. 42
• Parties: , 4 ERC 1018 Robert E. BUTCHER and Gladys K. Butcher, individually and on behalf of all taxpayers of the Township of Grosse Ile, Michigan, Plaintiffs and Appellants, v. The TOWNSHIP OF GROSSE ILE, an unchartered Michigan Township, et al., Defendants and Appellees.
• Court: Michigan Supreme Court

Page 845

194 N.W.2d 845

387 Mich. 42, 4 ERC 1018

Robert E. BUTCHER and Gladys K. Butcher, individually and on behalf of all taxpayers of the Township of Grosse Ile, Michigan, Plaintiffs and Appellants, v. The TOWNSHIP OF GROSSE ILE, an unchartered Michigan Township, et al., Defendants and Appellees.

No. 33.

Supreme Court of Michigan.

March 9, 1972.

Robert E. Butcher, Lincoln Park, individually and for plaintiffs and appellants and for the Class.

Moll, Desenberg, Purdy, Glover and Bayer, by Frederic S. Glover, Jr., Detroit, for defendant and appellee Township of Grosse Ile.

Miller, Canfield, Paddock & Stone, by John H. Nunneley, Stratton S. Brown, Gilbert E. Gove, Detroit, for defendant and appellee Grosse Ile Sanitary Interceptor Drain and Treatment Plant Drainage District.

William L. Cahalan, Wayne County Pros. Atty., W. Leo Cahalan and Lawrence O. Hinkle, Asst. Pros. Attys., by Lawrence O. Hinkle, Detroit, for defendants and appellees County of Wayne and Louis H. Funk, Wayne County Treasurer.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Maxine Boord Virtue, Asst. Atty. Gen., Lansing, amicus curiae.

Bauckham, Reed & Lang, by John H. Bauckham, Kalamazoo, for Michigan Townships Assn., amicus curiae.

Chester C. Pierce, Hamtramck, for amicus curiae State Assn. of County Drain Commissioners.

Before the Entire Bench.

BLACK, Justice (for affirmance in part and reversal in part).

This appeal was argued first on June 24 last. The presentations that day apprised the Court fully that the main issue on review was of such statewide concern as to call for representation of the People by the Attorney General under CL 1948 §§ 14.28 and 14.101. Accordingly, an order entered directing reargument of the appeal during the instant September session with request that the Attorney General brief the posed questions and participate in resubmission of the case. That has been done. The briefs and arguments of the plaintiffs, the defendants and those of the Attorney General, and the briefs of volunteering counsel Amicus, have been most helpful in reaching one clear conclusion of uniform agreement. It is that an insidious 'sleeper' has rested and now rests comfortably in the finance and taxation article of the Constitution of 1963. What if anything can be done about it is, of course, something else. That we perceive by conflicting quotations, Post, of the respective briefs.

It is fair to say that one of the ten most notable opinions recorded in American jurisprudence was contributed by Mr. Justice Holmes, dissenting in Northern Securities Co. v. United States (1904), 193 U.S. 197 400--411, 24 S.Ct. 436, 48 L.Ed. 679. With argument and reargument as noted, this appeal like Northern Securities has grown to the status of a Great case as well as a Hard case. Hopefully, it will not make Bad law on account of desperate or implausible effort to save that which, sadly, no longer is. ¹

Justice Holmes opened his review of Northern Securities with these oft quoted and ultimately prophetic words:

'Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend. What we have to do in this case is to find the meaning of some not very difficult words. We must try,--I have tried,--to do it with the same freedom of natural and spontaneous interpretation that one would be sure of if the same question arose upon an indictment for a similar act which excited no public attention, and was of importance only to a prisoner before the court.'

The Court in Northern Securities was concerned with the interpretation and application of a Congressional Act; whereas our main question calls for the interpretation and application of a constitutional provision. The principle in today's instance is nonetheless the same. It consists of judicial duty 'to read English intelligently' (Holmes, J., in Northern Securities at 401, 24 S.Ct. 436, 48 L.Ed. 679); English written with clever clarity into the Giving first paragraph and the Taking second paragraph of section 6 of the finance and taxation article (Const.1963, art. 9).

Section 6 in the constitution proper is headed 'Limits on ad valorem taxes.' In Callaghan's Michigan Statutes Annotated and in West's Michigan Compiled Laws Annotated the first paragraph of the section is headed '15 mill limitation' and '15 mill limitations' respectively, and the second paragraph (in both) is headed 'Nonapplication of Limitation.' There is no such 'Nonapplication' notice in the constitution. The two paragraphs, pertinent here, read as follows:

'Except as otherwise provided in this constitution, the total amount of general ad valorem taxes imposed upon real and tangible personal property for all purposes in any one year shall not exceed 15 mills on each dollar of the assessed valuation of property as finally equalized. Under procedures provided by law, which shall guarantee the right of initiative, separate tax limitations for any county and for the townships and for school districts therein, the aggregate of which shall not exceed 18 mills on each dollar of such valuation, may be adopted and thereafter altered by the vote of a majority of the qualified electors of such county voting thereon, in lieu of the limitation hereinbefore established. These limitations may be increased to an aggregate of not to exceed 50 mills on each dollar of valuation, for a period of not to exceed 20 years at any one time, if approved by a majority of the electors, qualified under Section 6 of Article II of this constitution, voting on the question.'

'The foregoing limitations shall not apply to taxes imposed for the payment of principal and interest on bonds or other evidences of indebtedness or for the payment of assessments or contract obligations in anticipation of which bonds are issued, which taxes may be imposed without limitation as to rate or amount; or to taxes imposed for any other purpose by any city, village, charter county, charter township, charter authority or other authority, the tax limitations of which are provided by charter or by general law.'

First: Section 6 of article 9 considered, may the defendant township levy ad valorem taxes--without limit as to rate or amount--that are required to pay an assessment imposed upon the township by a drainage district board under chapter 20 of the drain code, There being no approving vote of the electorate?

This question with another to be considered was brought here for review of Butcher v. Twp. of Grosse Ile (1970), 24 Mich.App. 389, 180 N.W.2d 367. If upheld by the Court my reluctantly inevitable answer is bound to startle and then pain grievously thousands and thousands of property taxpayers of Michigan. It is that they no longer have any of that former 1933--1963 elective control over the fact, extent, or amount of monetary obligations their local public officers may incur on strength of property taxes to be collected, and that all such 'taxes may be imposed without limitation as to rate or amount.' This is plain constitutional talk. The prodigal sky is now the Constitutional limit and the only restraint left is that which the legislature may choose to impose upon local public debts--whether they are authenticated by bonds or by 'other evidences of indebtedness'--when those debts are contractually made payable out of to-be-levied property taxation.

The exhaustive briefs submitted by plaintiffs' counsel and defendant's counsel, and those submitted by the attorney general and counsel Amicus, favor us with an abundance of necessarily complex reviews of statutes, decisions, official opinions, and interpretations of past and present statutory and constitutional provisions. All this however is mostly irrelevant. We are exclusively and presently interested in what the people chose to adopt when they voted in April of 1963. That brings us to the conflicting interpretive positions counsel take when, in the difficult ultimate, each has faced the stark question posed by our clerk's letter, post at 848 (footnote 2).

Plaintiffs' counsel says:

Plaintiffs' Contentions

'It seems to plaintiffs that the only thing that the constitutional convention did and the only thing that the convention attemped to do in drafting the nonapplication provisions of section 6 of article IX relating to bonds, etc., was to provide that money borrowed in anticipation of the collection of ad valorem taxes on the strength of a vote of the qualified electors could be certainly repaid regardless of whether the proceeds from the specific millage authorized by the electors for that purpose were sufficient to retire the indebtedness.' (Brief filed March 4, 1971)

The defendants join in telling us:

Defendants' Contentions

'The concise answer to this question ² arrived at by a consideration of the specific provisions of section 6 is that the taxes which remain subject to the limitation are those which are not specifically excepted from such limitation by the provisions of the second (or nonapplication) paragraph of said section 6. As to any increases in the limitation to provide additional taxing power for purposes not specifically excluded by said second paragraph, such increases remain in the direct control of the qualified electorate. For example, general purpose taxes necessary for the operation of school districts, counties and unchartered townships, under existing law, remain subject to the limitation and the allocation of taxes thereunder, and any increase in said limitation for such purposes still remains in the direct control of the qualified electorate the same as it was under the provisions of the 1908...