Elba Tp. v. Gratiot Cnty.

• Decision Date: 02 February 1939
• Docket Number: Motion No. 72.
• Citation: 283 N.W. 615,287 Mich. 372
• Parties: ELBA TP. et al. v. GRATIOT COUNTY et al.
• Court: Michigan Supreme Court

287 Mich. 372

283 N.W. 615

ELBA TP. et al.

v.GRATIOT COUNTY et al.

Motion No. 72.

Supreme Court of Michigan.

Feb. 2, 1939.

Proceeding by the Township of Elba and others against the County of Gratiot, Michigan, and others, for a peremptory writ of mandamus requiring respondents to allocate, apportion, and pay from moneys received pursuant to statute $10,680 for the retirement of good roads bonds of Elba Township. From an adverse decree, the petitioners appeal.

Judgment vacated and case remanded with directions.Appeal from Circuit Court, Gratiot County; Kelly S. Searl, judge.

Argued before the Entire Bench.

O. G. Tuttle, of Ithaca, and Anderson, Wilcox and Lacy & Lawson, all of Detroit (Clarence J. Huddleston, of Detroit, on the brief), for appellants.

Charles H. Goggin and Robert L. Arnold, both of Alma, for appellees.

NORTH, Justice.

Petitioners in the circuit court of Gratiot County by suit started in January, 1936, sought a peremptory writ of mandamus requiring the respondents and appellees to allocate, apportion and pay, from monies received by the County of Gratiot pursuant to the provisions of Acts No. 7 and No. 8, Extra Session, 1934, and Acts No. 81 and No. 107, Pub.Acts 1933, $10,680.00 for the retirement of good roads bonds of Elba Township.

The trial court denied the relief sought, holding Acts No. 7 and No. 8, Extra Session, 1934, were unconstitutional because the Governor had not, in his call for that extra session nor in his message, submitted the subject matter of these acts as required by Article 5, Section 22 of the Constitution; but finally basing decision on the fact that the petitioner, Elba Township, could not compel payment to it until it had actually levied the tax for the payment of the bonds in question.

At the time of filing the petition herein there was past due and unpaid $10,680 of principal and interest of good roads bonds issued by the Township of Elba for the construction of roads within that township, which roads subsequently became county, state trunk line, or federal aid roads. It appears from the record that the defendant county has in its possession highway funds received from the state treasurer out of which the apportionment sought by petitioners can be made in the event they establish their right thereto.

We quote the following from the opinion of the trial judge:

‘In this case we are concerned only, at the outset, with the provisions of Acts 7 and 8, mentioned above. Act 7 contains provisions dealing with the distribution and allocation of the Weight Tax; while Act 8 contains provisions for distribution and allocation of the Gas Tax. In each of these Acts, after other recitals as to distribution of these moneys, appears the following:

“(3) Monies remaining after the application of a county's share to any of the above and foregoing purposes, shall be used to reduce the tax levied for general highway township bonds, as township roads for which said bonds were issued, become county, state trunk line or federal aid roads, or to reduce the tax levied for general highway township bonds where such bonds were issued for roads that are now county, state trunk line or federal aid roads; allocation of money available for this purpose as between townships, to rest within the discretion of the board of county road commissioners, subject to the approval of the board of supervisors.'

‘On the trial it was conceded that the roads in the Township of Elba for which the bonds in question were issued are of a class which bring them under these statutes; and it was conceded also that Elba Township is the only township in Gratiot County having any such outstanding bonds. It follows, therefore, that the last clause, in these statutes, relative to discretion of the official boards has no application to the case at bar. If these statutes are valid and the Township of Elba has taken the proper steps to bring itself under them, it is entitled to the relief prayed for in the petition filed in this cause.’

* * *

‘The proofs show, and no question as to that is raised, that the County of Gratiot has funds on hand which came from the gas tax to an amount greater than the amount of the Elba Township (matured) road bonds, and to which said township would be entitled, providing it is entitled to any relief in the present case * * *.’

In passing upon respondents' contention that the mentioned Acts are unconstitutional, the trial court further said:

‘As to the Gas Tax the Governor did not in his Call nor in his message make any reference to that subject directly or indirectly.

‘As to the Weight Tax the Governor in his message submitted:

“12. A Bill to amend the ‘weight’ tax applicable to motor vehicles except motorcycles and commercial vehicles from the present rate of fifty-five cents per hundred pounds of weight to thirty-five cents per hundred pounds of weight.”

The recitals of the circuit judge above quoted are fully sustained by the record. Neither in the call for the 1934 session nor in his message to that legislature did the Governor refer in any way to a change in the so-called gas tax law, and the extent of his suggestion as to a change in the weight tax law was that such tax should be reduced from the then prevailing rate of 55¢ per hundred pounds to 35¢ per hundred pounds. The bill to which reference is made in the quoted portion of the Governor's message does not appear in this record. We are not advised as to its contents. The 1934 extra session of the legislature, when convened, passed Act No. 7 and thereby amended Sec. 7 and Sec. 34 of the weight tax law. The material change made in Sec. 7 was the reduction of the weight tax on specified vehicles from 55¢ per cwt. to 35¢ per cwt. The amendment to this section was in full accord with the Governor's special message. But the legislature also amended Sec. 34, by entirely changing the method of distribution of the weight tax and also entirely changing the specific purposes for which designated portions of this tax should be used. Further, as noted above, at this extra session the legislature also passed Act No. 8, thereby amending the gas tax act. The pertinent provision of the constitution reads: ‘No bill shall be passed at a special session of the legislature on any other subjects than those expressly stated in the governor's proclamation or submitted by special message.’ Mich.Const. Art. 5, § 22. Appellants contend that Sec. 34 of Act 7 and Act 8 should be held valid on the theory that this legislation is germane to that specifically called for in the quoted portion of the Governor's special message. Commonwealth ex rel. v. Liveright, 308 Pa. 35, 161 A. 697.

In passing it may be noted that decision herein will not materially affect the present statutory law governing either the weight tax or the gas tax, because the noted provisions enacted by the extra session of 1934 were reenacted in 1937. See Act 340, § 19, Subdiv. (d), (3) and Act 320, § 34, Subdiv. (3) Pub.Acts 1937. In our view this appeal can be decided under the assumption, without so holding, that Sec. 34 of Act No. 7, Extra Session 1934, which is an amendment to the so-called weight tax, and Act No. 8 of the same session are unconstitutional on the ground that the newly enacted provisions therein contained are not within or germane to the Governor's call or his special message. By their petition, as amended in the circuit court, petitioners also assert their right to relief under Act No. 81 and Act No. 107, Pub.Acts 1933 in event Acts No. 7 and No. 8, Extra Session 1934, are held unconstitutional. Each of these 1933 gas tax acts contains the same so-called ‘relief provision’ as to township highway bonds as that embodied in Acts No. 7 and No. 8 Extra Session 1934. We quote the provision from Act 81, p. 97, § 19-a, Subdiv. (3), Pub.Acts 1933: ‘Monies remaining after the application of a county's share to any of the above and foregoing purposes, shall be used to reduce the tax levied for general highway township bonds, as township roads for which said bonds were issued, become county, state trunk line or federal aid roads, or to reduce the tax levied for general highway township bonds where such bonds were issued for roads that are now county, state trunk line or federal aid roads; allocation of money available for this purpose as between townships, to rest within the discretion of the board of county road commissioners, subject to the approval of the board of supervisors.’

Because of the provision above quoted and the like provision in Act 107, Pub.Acts 1933, it seems clear that if the petitioning township has qualified itself as a recipient under the quoted relief provision, a question hereinafter considered, it would be entitled to the relief sought notwithstanding Acts No. 7 and No. 8, Extra Session 1934, are unconstitutional for the reason hereinbefore noted; unless, as appellees assert, the relief provisions in all of these acts are unconstitutional for reasons about to be considered.

Appellees contend that all of these ‘relief provisions' are unconstitutional for the following reasons:

1. They violate Art. 10, § 12 of the constitution of this state which forbids improper use of the state credit or public money. The provision reads: ‘The credit of the state shall not be granted to, nor in aid of any person, association or corporation, public or private.’

2. They violate the Fourteenth Amendment to the Federal Constitution, U.S.C.A., wherein are the provisions for due process and equal protection of the laws.

Appellees state in their brief: ‘The real decisive point in this litigation involves the validity and constitutionality of the payment and retirement of a purely local township debt from funds collected from the State at large through general privilege and/or franchise taxes. This is an important public question.’

A comprehensive consideration of all the circumstances out of which these statutory provisions have arisen and the purpose sought to be...