Advisory Opinion on Constitutionality of 1986 Pa 281

Levin, J.

(dissenting in part). We agree with the majority that the capture of ad valorem tax revenues by a local development finance authority and use of such revenues by the authority for purposes authorized by the Local Development Financing Act do not unconstitutionally lend the credit of the state or of a municipality in violation of Const 1963, art 9, § 18 or art 7, § 26.

We also agree with the majority that the act does not unconstitutionally divert ad valorem tax revenues from taxing entities in violation of Const 1963, art 9, § 6,1 insofar as the generation of the revenues is not dependent on millage authorized by a vote of the electors. We disagree insofar as ad valorem tax revenues generated as a result of a vote of the people are so diverted. Ad valorem tax revenues generated as a result of tax limitations adopted or increased by the vote of the electors may not be so diverted and may only be used for the purposes of the school district or other district *134or authority, the electors of which authorized the additional millage that generated the revenue.

Art 9, § 6, provides that the total amount of the general ad valorem taxes imposed upon real and tangible personal property shall not exceed fifteen mills on each dollar of the assessed valuation of property. It provides further that separate tax limitations for any county and for the townships, and school districts therein, not exceeding eighteen mills on each dollar, may be adopted and thereafter altered by a majority of the qualified electors of the county in lieu of the fifteen-mill limitation. It is still further provided that these limitations may be increased to an aggregate not to exceed fifty mills if approved by a majority of the electors.

We recognize that the constitution does not expressly require, when voters have approved a millage increase from fifteen to eighteen mills and have established separate township, school district, and county tax limitations, that the ad. valorem tax revenues generated by these specific separate limitations be allocated to the particular township, school district or the county for which established. Such a requirement is, however, in our opinion, implicit in the constitution. The Legislature may not constitutionally divert ad valorem tax revenues generated by the separate tax limitations adopted for, say, school districts to township or county purposes or possibly even to state purposes.

Nor do we agree with the majority’s conclusion that the constitution does not require that ad valorem tax revenues generated by increased millage voted by the electors of a school district be used for school purposes. The majority states that "the first paragraph of art 9, § 6 does not address the question of purpose’; it places a limitation on *135the tax rate, not on tax revenues or their use.”2 (Emphasis in original.) According to the majority, when school district electors authorize the levy of additional millage they have simply authorized an increase in the ad valorem tax that may be levied upon their real and tangible personal property; the constitution does not imply that the ad valorem tax revenues generated as a result of such a voter-authorized increase in the tax rate shall be used solely for school purposes. The Legislature might, under the majority’s reading of the constitution, constitutionally divert ad valorem tax revenues generated by school district voted millage to other local uses and purposes or possibly even to statewide uses or purposes.

A statute does indeed provide that ad valorem tax revenues generated by millage authorized by the vote of school district electors shall be used solely for school purposes.3 Many statutes restate constitutional requirements. The enactment of a statute restating a constitutional requirement does not imply that absent the statute the constitution does not require what the statute states. Otherwise, the Legislature could repeal a constitutional requirement by enacting and then repealing a statute enunciating that constitutional requirement.

The majority does not reach the question whether the statutory provision takes precedence over the provision of the Local Development Financing Act that it is claimed permits the diversion to purposes authorized by the Local Development Financing Act of ad valorem tax revenues generated by a voter-authorized increase in the millage leviable against property located in a school district. We agree with the majority that we *136may not properly reach that question, both because it is not presented by the request for an advisory opinion and because an advisory opinion can only be given on constitutional questions4 and not on a question of statutory construction.

The justices have not heretofore agreed to give an advisory opinion on the constitutionality of the Local Development Financing Act; we expressly left open until after oral argument, and only today, by issuing our opinions, have we decided whether to do so.5 The justices could justifiably, and, we believe, should decline to answer whether revenues generated by millage approved by the voters of a school district may be used for non-school purposes. This aspect of the request need not be decided until after the Court decides, when presented,6 the statutory construction question whether one legislative enactment or the other takes precedence. It is well established that a constitutional question will not be reached if the matter can appropriately be decided on some other basis.7

The majority distinguishes the first paragraph of art 9, § 6 from the second paragraph of art 9, § 6, which provides that the "foregoing [fifteen-mill] limitation[] shall not apply to taxes imposed for the payment of principal and interest on bonds approved by the electors . . . which taxes may be *137imposed without limitation as to rate or amount.”8 The majority finds that the second paragraph "does speak of [the] purpose or use” to which ad valorem tax revenues generated by millage approved by the electors pursuant to the second paragraph may be put9 and does not simply place a limitation on the tax rate.

The majority has not stated an adequate reason for concluding that the second paragraph speaks of the purpose or use to which ad valorem tax revenues generated pursuant to that paragraph may be put, but that the first paragraph does not. The first paragraph provides that separate tax limitations may be "adopted and thereafter altered,” and that such limitations may be "increased” "by the vote” of or if "approved” by the electors. The second paragraph provides that such limitations "shall not apply” when the additional tax imposition is "approved” by the electors. Those are, however, just different ways of saying the same thing.

The policy arguments and rationalizations advanced in support of the diversion of ad valorem tax revenues generated by millage voted pursuant to the first paragraph of art 9, § 6, apply with equal force to revenues generated by millage voted for the payment of bonds or other evidence of indebtedness pursuant to the second paragraph of art 9, § 6.

We would advise that the Local Development Financing Act does not unconstitutionally divert ad valorem tax revenues insofar as the revenues diverted are not generated as the result of tax limitations adopted or increased by the electors. We would, however, advise that revenues generated as the result of a tax limitation adopted or *138increased by the electors may not constitutionally be so diverted.

Riley, C.J., concurred with Levin, J.

See ante, p 105.

Ante, p 111.

MCL 380.1216; MSA 15.41216.

Const 1963, art 3, § 8. See ante, p 97.

Ante, p 98.

It appears that there may be some urgency in obtaining a definitive ruling from this Court. The parties so concerned could commence an action for a declaratory judgment in a circuit court respecting the statutory construction question. We could urge that if they do so the circuit judge give the cause a high priority and promptly decide the question. After decision by the circuit court, we could grant leave to appeal prior to decision by the Court of Appeals and resolve this remaining aspect of the request for an advisory opinion.

Lisee v Secretary of State, 388 Mich 32, 40; 199 NW2d 188 (1972); Cole v Battle Creek, 298 Mich 98, 104; 298 NW 466 (1941).

Const 1963, art 9, § 6.

Ante, p 112.