Thoman v. City of Lansing

• Citation: 24 N.W.2d 213,315 Mich. 566
• Decision Date: 11 September 1946
• Docket Number: No. 16,January Term, 1946.,16
• Parties: THOMAN v. CITY OF LANSING et al.
• Court: Michigan Supreme Court

315 Mich. 566

24 N.W.2d 213

THOMAN

v.CITY OF LANSING et al.

No. 16, January Term, 1946.

Supreme Court of Michigan.

Sept. 11, 1946.

SHARPE, J., dissenting.

Appeal from Circuit Court, Ingham

Action in assumpsit by Frank H. Thoman against the City of Lansing, the School District of such city, and another to recover the amount of an additional school district tax paid by plaintiff under protest. Judgment for defendants, and plaintiff appeals.

Affirmed.

Affirmed.

Before the Entire Bench, except BOYLES, J.

Foster & Cameron, of Lansing, for plaintiff and appellant.

Kelley & Seelye, of Lansing, for defendant and appellee School District.

Maurice F. Cole, of Ferndale, for School District of City of Ferndale, amicus curiae.

Ernest C. Smith, of Lansing, amicus curiae.

NORTH, Justice.

In the opinion of Mr. Justice SHARPE, Act No. 162, Pub.Acts 1933, Stat.Ann. § 15,511 et seq., is held unconstitutional. I am unable to concur in that result. The pertinent portions of the act are quoted in my brother's opinion. The statute is one pertaining to taxation:

‘The presumption of constitutionality following taxing statutes is stronger than applies to laws generally and only where a taxing system clearly and palpably violates the fundamental law will it be held invalid.’ Michigan Central Railroad v. Powers, 201 U.S. 245, 267, 26 S.Ct. 459, 50 L.Ed. 744, citing numerous decisions of the U. S. Supreme Court.

Decision in the instant case necessitates construction of two constitutional provisions which in a measure conflict with each other. Under the circumstances it is the Court's duty to reconcile as far as possible the conflicting provisions, and with an eye to accomplishing the result intended by the pertinent sections of the Constitution when considered together. So far as they are material to decision herein the respective constitutional provisions read:

‘The legislature shall provide by law a uniform rule of taxation, except on property paying specific taxes * * *.’ Michigan Constitution of 1908, art. 10, § 3.

‘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 payment of interest and principal on obligations heretofore incurred * * *: Provided, That this limitation may be increased * * * when provided for by the charter of a municipal corporation * * *.’ Michigan Constitution of 1908, art. 10, § 21.

In the instant case we have a single unit, a school district, in which taxes are assessed for school purposes. By far the major portion of the district is composed of the city of Lansing. A portion of Lansing township has been attached to the city school district. Lansing city is not under the above quoted 15 mill limitation. As a Home Rule city its maximum rate of taxation under its charter is 2 per cent of assessed valuation. 1 Comp.Laws 1929, § 2241, Stat.Ann. § 5.2084. But Lansing township is subject to the 15 mill provision. The record fairly discloses that the amount of money necessary to properly maintain the Lansing schools together with other city taxes results in a tax rate in the city in excess of ‘one and one-half per of the assessed valuation,’ but within the tax rate ‘provided for by the charter of a (the) municipal corporation.’ The question presented is whether it is possible to comply with the constitutional provision that the tax must be uniform and still permitthe city of Lansing to exercise its charter power, recognized by the Constitution, to levy on the city property a tax in excess of the 15 mill limitation, while in the township portion of this school district the rate of taxation is restricted by the 15 mill limitation. Obviously under the circumstances of this case the two noted constitutional provisions are in conflict; and it becomes impossible to literally comply with both.

It is a fundamental rule of construction that if there is an amendment to the law, in this case an amendment to the Constitution, and by such amendment an earlier provision of law is qualified or restricted, the later or amendatory provision must control. People ex rel. Chapoton v. Common Council of City of Detroit, 38 Mich. 636;Bernier v. Bernier, 72 Mich. 43, 40 N.W. 50;People v. Thompson, 161 Mich. 391, 126 N.W. 466. The provision in article 10, § 3, as to a uniform rule of taxation was carried into the Constitution of 1908 from the 1850 Constitution, but in 1932 article 10 of the Constitution was amended by the addition of § 21, in part above quoted. By § 21 there was embodied in the Constitution a limitation of the rate of taxation to one and one-half per cent of assessed valuation, except for obligations theretofore incurred: ‘Provided, That this limitation may be increased * * * when provided for by the charter of a municipal corporation.’ This last quoted provision is a plain and definite declaration that the 1932 amendment should not deprive municipal corporations of their right to levy taxes in excess of the 15 mill limitation ‘when provided for by the charter’ of such corporations. In School District of City of Pontiac v. City of Pontiac, 262 Mich. 338, 351, 247 N.W. 474, 479, 787, we said:

‘The result of the above construction (of § 21) is that the 1932 amendment neither increased nor decreased the charter power of a city to levy taxes for its municipal purposes.’

It must be held that the 1932 constitutional provision controls as against the earlier provision in § 3, as to a uniform rule of taxation. Unless literal compliance with § 3 is held to yield to the later constitutional provision as to rate of taxation permissible under a city charter, the later provision becomes wholly inoperative under circumstances such as are presented in the instant case. To so hold would not only be in violation of established rules of construction, but we think it would be in direct violation of the 1932 constitutional provision for taxation in excess of the 15 mill limitation ‘when provided for by the charter of a municipal corporation.’

Further, it may be noted that to hold otherwise than herein determined would be to say in effect that by annexing township territory to the Lansing city school district, the Lansing city charter was amended-i. e., the city lost its charter right to tax in excess of the 15 mill rate. Surely such a fantastic result was not intended by the adoption of § 21, article 10, of the Constitution. Instead the very wording of the quoted proviso in § 21 clearly preserves for cities their charter right to impose a tax rate in excess of 15 mills, notwithstanding the earlier provision in § 3 as to uniformity. To some extent the two provisions are repugnant to each other and the earlier provision must yield to the later under the circumstances of this case.

‘Constitutional provisions must be construed with reference to each other when relating to the same subject matter.’ (Syllabus) Dullam v. Willson, 53 Mich. 392, 19 N.W. 112,51 Am.Rep. 128.

‘This court could not be called upon to enforce a constitutional provision incapable of enforcement.’ Stenson v. Secretary of State, 308 Mich. 48, 60, 13 N.W.2d 202, 207.

‘It cannot be too distinctly borne in mind that any possible system of tax legislation must inevitably produce unequal and unjust results in individual instances; and, if inequality in result must defeat the general law, then taxation becomes impossible, and governments must fall back upon arbitrary exactions.’ Stumpf v. Storz, 156 Mich. 228, 235, 120 N.W. 618, 620,132 Am.St.Rep. 521.

‘Courts cannot annul tax laws because of their operating unequally and unjustly. If they could, they might defeat all taxation whatsoever; for there never yet was a tax law that was not more or less unequal and unjust in its practical workings.’ Youngblood v. Sexton, 32 Mich. 406, 414,20 Am.Rep. 654.

The statute here involved (Act No. 162, Pub.Acts 1933) merely embodies a plan for providing what the legislature deemed was just taxation in the various school districts in the State Constituted as that in the instant case. We find no merit in appellant's claim of double taxation. True, the statute used two rates in fixing the final amount of school tax on each of plaintiff's assessed city properties; but he is required to pay only one school tax annually. That is not double taxation. All other property owners similarly situated pay a like tax. The rate by which the amount of the tax is computed is fixed in accord with orderly statutory procedure. In paying the school tax imposed under the statutory provisions appellant was not deprived of property without due process of law.

It is urged by appellant that since Lansing is a Home Rule city, Act No. 162, Pub.Acts 1933, ‘attempting to authorize an additional (school) tax in certain municipalities, is not applicable to the city of Lansing;’ and in this connection appellant points out that Act No. 62, Pub.Acts 1933, Stat.Ann. § 7.62 et seq., which created the county tax allocation board with power to allocate millage among tax units, excludes from its operation ‘cities for which there are provisions in their charters' fixing maximum limits for taxation. See Act No. 62, § 2(a), Pub.Acts 1933. This contention is fallacious because we are herein concerned with school district taxes, not taxes for city purposes; and the section last above cited specifically includes school districts as local units for taxation purposes.

Out conclusion is that as against any ground asserted on this appeal Act No. 162 Pub.Acts 1933, is constitutional, and that the school taxes levied on plaintiff's properties were valid. Judgment for defendants is affirmed with costs.

BUTZEL, C. J., and CARR, BUSHNELL, REID, JJ., concurred with WORTH, J.

STARR, J., took no part in this decision.

SHARPE, Justice (dissenting).

The school district of the city of Lansing consists of the territory within the corporate limits of the city of Lansing together with a portion of...