Sch. Dist. of City of Pontiac v. City of Pontiac

• Decision Date: 14 March 1933
• Docket Number: No. 169.,169.
• Citation: 262 Mich. 338,247 N.W. 474
• Parties: SCHOOL DIST. OF CITY OF PONTIAC v. CITY OF PONTIAC (OAKLAND COUNTY et al., Interveners).
• Court: Michigan Supreme Court

262 Mich. 338

247 N.W. 474

SCHOOL DIST. OF CITY OF PONTIAC

v.CITY OF PONTIAC (OAKLAND COUNTY et al., Interveners).^*

No. 169.

Supreme Court of Michigan.

Mar. 14, 1933.

Appeal from Circuit Court, Oakland County, in Chancery; Glenn C. Gillespie, Circuit Judge.

Suit by the School District of the City of Pontiac against the City of Pontiac, wherein the County of Oakland and Patrick H. O'Brien, Attorney General, intervened. From a decree dismissing plaintiff's bill of complaint, plaintiff, the City of Pontiac, and the County of Oakland appeal.

Affirmed.

Argued before the Entire Bench.A. L. Moore and James H. Lynch, both of Pontiac, for appellant School Dist. of City of Pontiac.

Patrick H. O'Brien, Atty. Gen., in pro. per., and Francis K. Young, Asst. Atty. Gen., for appellee O'Brien.

William A. Ewart, City Atty., of Pontiac, for appellant City of Pontiac.

Arthur P. Bogue, Pros. Atty., and Robert D. Heitsch, Asst. Pros. Atty., both of Pontiac, for intervening defendant and appellant County of Oakland.

John R. Rood, of Detroit, amicus curiae.

Clarence E. Wilcox, Corp. Counsel, and John H. Witherspoon, Asst. Corp. Counsel, both of Detroit, for the City of Detroit, a municipal corporation, Board of Education of the City of Detroit, a municipal corporation, and Detroit Library Commission, a municipal corporation.

Miller, Canfield, Paddock & Stone, of Detroit, on behalf of City of Muskegon, the Public Schools of City of Muskegon, Berrien County, and City of Wyandotte.

A. M. Cummins, of Lansing, amicus curiae.

NORTH, Justice.

This appeal from a decree entered in the circuit court of Oakland county, in chancery, dismissing plaintiff's bill of complaint presents for review the following questions:

(I) Was section 21, article X, legally adopted and made a part of the Michigan Constitution at the November, 1932, election?

(II) If legally adopted what is its proper construction in the particulars hereinafter noted?

The amendment reads: ‘Section 21. 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, except taxes levied for the payment of interest and principal on obligations heretofore incurred, which sums shall be separately assessed in all cases: Provided, that this limitation may be increased for a period of not to exceed five years at any one time, to not more than a total of five per cent of the assessed valuation, by a two-third vote of the electors of any assessing district, or when provided for by the charter of a municipal corporation; Provided further, that this limitation shall not apply to taxes levied in the year 1932.’

The Constitution (article 17) provides how amendments may be originated and adopted. It can be amended only in the manner therein provided. Scott v. Secretary of State, 202 Mich. 629, 168 N. W. 709. Failure to comply with the requisite provisions would defeat the proposed amendment. 6 R. C. L. 31; Simpson v. Hill, 128 Okl. 269, 263 P. 635, 56 A. L. R. 706. The above quoted amendment was proposed by the requisite number of qualified electors, submitted at the November, 1932 election, and received the necessary votes for its adoption. Validity of the amendment is challenged on the ground of failure of the secretary of state to comply with section 3, article 17, of the Constitution, which provides: ‘All proposed amendments to the constitution 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 at each registration and election place. Proposed amendments shall also be printed together with any other special questions to be submitted at such election in full on a single ballot separate from the ballot containing the names of candidates or nominees for public office.’

The amendment was published in full with the following notice or comment: ‘This is a new section to limit the amount of taxes assessed against property. This proposed amendment, if adopted, will limit the total amount of taxes assessed against property for all purposes in any one year (except 1932) to one and one-half per cent of the assessed valuation, except taxes levied for the payment of obligations already incurred; provided that said limitation may be increased for not to exceed 5 years at any one time to not more than 5 per cent of the assessed valuation by a two-thirds vote of the electors of any assessing district or when provided for by the charter of a municipal corporation.’

The exact objection urged is that this amendment alters or abrogates some sixteen or eighteen other provisions of the Constitution, and that failure to publish the ‘existing provisions of the Constitution which would be altered or abrogated’ nullifies the attempted amendment. Some of the provisions as to which this argument is urged are-article 8, §§ 20, 22, 23, 24, 26; article 10, §§ 1, 2, 3, 5, 10; article 11, §§ 9, 10, 14; article 15, § 2. We think this position is not tenable. The duty of submitting all proposed constitutional amendments initiated by the people is placed by the Constitution upon the secretary of state, article 17, § 2. Any provision as to such duty should, if possible, be so construed as to make the requisite course of conduct entirely clear and plain. Perplexities and uncertainties will be pitfalls for the officer charged with this duty regardless of a zealous and honest effort to fully comply with the law, and the officer's nonperformance might jeopardize and possibly nullify the effort of electors to amend the Constitution. The instant case affords an apt illustration of such difficulties. Here able counsel disagree which, if any, of the other sixteen or eighteen constitutional provisions are altered by the amendment. It may almost be said that no two agree that certain of these provisions are altered and others are not. How then could the secretary of state determine or be advised with any degree of certainty which of these other provisions of the Constitution he should publish? As hereinafter noted a more clear and definite meaning than that asserted by appellants must be given to the constitutional provision last above quoted.

In determining what constitutes compliance with the constitutional requirement as to publication, a matter of prime importance is the purpose that prompted the people of the state of Michigan to include such a provision in the Constitution. All will agree that this was a means adopted by which it was believed the elector would be definitely advised as to the purpose of the proposed amendment and what provision of the constitutional law it modified or supplanted. Being so advised the elector could intelligently determine whether his vote would be for adoption or rejection. But the ordinary elector, not being a constitutional lawyer, would be confused rather than helped by a publication of all the other constitutional provisions which were or might be directly or only remotely, and possibly only contingently, affected by the proposed amendment. We think the requirement in substance is this: That in case a proposed constitutional provision amends or replaces (‘alters or abrogates') a specific provision of the Constitution, that such provision should be published along with the proposed amendment; that other provisions which are still operative, though possibly they may need thereafter to be construed in conjunction with the amending provision, need not necessarily be published.

This amendment is a wholly new and additional constitutional provision in this state. It is not a grant of power, but instead a constitutional limitation upon the exercise of the general power of taxation. Heretofore our Constitution contained no such general limitation. The general power of taxation has been and is inherent in state government. Cooley on Taxation, vol. I, §§ 64 and 102. Prior to this amendment the extent to which the Legislature might authorize the exercise of this power for public purposes was without general limitation; though there were numerous special limitations in the Constitution. This was clearly pointed out in the first sentence of the notice to the electors which was published with this proposed amendment. It read: ‘This is a new section to limit the amount of taxes assessed against property.’ Being a new section which did not specifically and definitely ‘alter or abrogate’ any other provision of the Constitution, it follows that there was no other provision of the Constitution to be published in order that there might be full compliance with section 3, article 17.

The validity of the 1932 amendment is further challenged on the ground that it is not an amendment, but instead it is so far reaching in its modification and restriction of governmental powers that it amounts to a revision of the state Constitution, and, not having been accomplished in the manner provided in the Constitution for revision (article 17, § 4), it is wholly ineffective and invalid. We are fully convinced that the adoption of this new limitation upon the power of taxation, under the construction hereinafter placed upon it, does not so interfere with or modify the operation of governmental agencies as to render it other than an amendment by way of an addition to the Constitution. As an amendment it was legally adopted and became a part of our fundamental law.

We are asked to construe in certain particulars this amendment to the Constitution. Unfortunately it is couched in language so ambiguous that able counsel, after much study and reflection, are far from being in accord as to its proper construction. Even some of those who were instrumental incident to initiating the amendment seem to differ widely as to what was to be accomplished thereby. Because of such ambiguity, it becomes the duty of the court to construe the amendment as worded in the light of established rules for...