Renne v. Oxford Township

T. M. Kavanagh, J.

(dissenting). Plaintiff filed a complaint in circuit court to restrain defendants from holding a referendum election on an amendment to the zoning ordinance of Oxford township'. The trial court denied the relief sought. Plaintiff appealed to the Court of Appeals, which affirmed the trial court. (5 Mich App 415.) This Court granted leave to appeal.

The facts in this case are that plaintiff obtained rezoning of certain lands he owned in defendant township. The zoning was changed from agricultural to commercial to permit construction of a mobile home park. The- township board enacted the amendment to the zoning ordinance on December 8, 1965. On January 5, 1966, petitions signed by more than 15% of the persons residing in and owning property assessed for taxes located in the unincorporated portion of the township were filed with the township board requesting submission of' the amendment fo.r approval or rejection by the persons residing in and owning property assessed for *45taxes in the unincorporated portion of Oxford township. The election sought to he restrained by-plaintiff was ordered by the township board by resolution on January 12, 1966.

Plaintiff contends the township rural zoning act1 is unconstitutional because it is contrary to the provision of Const 1963, art 2, § 6, which reads :

“Whenever any question is required to be submitted by a political subdivision to the electors for the increase of the ad valorem tax rate limitation imposed by section 6 of article 9 for a period of more than five years, or for the issue of bonds,, only electors in, and who have property assessed for any ad valorem taxes in, any part of the district or territory to be affected by the result of such election or electors who are the lawful husbands or wives of such persons shall be entitled to vote thereon. All electors in the district or territory affected may vote on all other questions.”

Plaintiff states the last sentence of section 6 provides that all the electors in the district or territory affected may vote in the referendum election on the amendment to the zoning ordinance. He argues the people in the township other than property owners living in the unincorporated portion thereof are people affected by the election and therefore may vote.

In determining the meaning of constitutional provisions, it is proper that we make reference to the constitutional debates. Burdick v. Secretary of State (1964), 373 Mich 578. Prom a reading of the debates of the Constitutional Convention of 1961, we find many discussions of the delegates concerning the overall effect of article 2, § 6. It was thought by many of the delegates that the property requirement therein should not be included in the new Con*46stitution. It was this with which the debates were concerned. '

Const 1963, art 2, § 6, originated as committee proposal 58f, which when passed by the committee of the whole, read in pertinent part as follows:

“All persons having the qualifications of electors may vote on all other questions involving an increase in any ad valorem tax rate and on borrowing by this state.” (2 Official Record, Constitutional Convention 1961, p 2899.)

This proposal was revised by the committee on style and drafting and reported to the convention on May 7, 1962, and read in pertinent part as follows :

“All electors in the district or territory affected may vote on all other questions.” (2 Official Record, Constitutional Convention 1961, p 3049.)

We find this same wording in the Constitution as adopted.

The delegates intended section 6 to be read as a whole. Both sentences concern ad valorem tax rate limitations and the issuance of bonds in the territory in which the property to be taxed is located. To hold otherwise would make the last sentence of article 2, § 6 redundant and in conflict with the express provisions of article 2, § 1.

We hold that since section 6 concerns itself only with increases of ad valorem tax limitations and bond issues, it does not apply to a zoning case. Therefore, we need not concern ourselves with the lack of proof as to whether electors within the village were affected by the amendment to the zoning ordinance.

Const 1963, art 2, § 1, reads as follows:

“Every citizen of the United States who has attained the age of 21 years, who has resided in *47this state six months, and who meets the requirements of local residence provided by law, shall be an elector and qualified to vote in any election except as otherwise provided in this constitution. The legislature shall define residence for voting purposes.” (Emphasis supplied.)

Looking to the other portions of the Constitution to determine whether it is “otherwise provided” that an elector is not qualified to vote, we find the only exceptions in section 6 of article 2. There are no provisions restricting the voting franchise on referendums concerning zoning ordinances.

Article 2, § 1, provides that the legislature shall define residence for voting purposes. Looking to the Michigan election law — PA 1954, No 1162 — we find the residence requirements. Section 103 reads as follows:

“The term ‘qualified elector’, as used in this act, shall he construed to mean any person who possesses the qualifications of an elector as prescribed in section 1 of article 2 of the State Constitution and who has resided in the city or township 30 days.” (Emphasis supplied.)

This Court held in Bray v. Stewart (1927), 239 Mich 340, 344:

“The territory taken into the village when incorporated is in no way separated from the township. It still remains a part thereof, is subject to taxation therein, and its residents are electors thereof.”

Justice Black, writing for this Court, in Taylor v. Township of Dearborn (1963), 370 Mich 47, 50, recognized this statement and quoted it in a footnote. See, also, to the same effect, Village of DeWitt v. Township of DeWitt (1929), 248 Mich 483.

*48We bold that by virtue of the provisions of article 2, § 1, and the implementing legislation, the electors of the village of Oxford by virtue of their qualifications as electors of the township, having resided in the township 30 days, are eligible to vote in all elections save the exceptions in article 2, § 6.

We now turn to the provisions of the township rural zoning act, as amended. Pursuant to section 12 thereof, as amended by PA 1961, No 225,4 only those persons residing in and owning property assessed for taxes located in the unincorporated portion of the township may sign the petition or vote for approval or rejection of zoning ordinance amendments. These provisions are clearly in conflict with Const 1963, art 2, § 1, and the residency requirements defined by the legislature pursuant to that section.

We therefore hold that section 12 of the township rural zoning act, insofar as it limits voting only to those persons residing in and owning property assessed for taxes located in the unincorporated portion of the township, is unconstitutional.

The order of the Court of Appeals affirming the lower court should be reversed and the case remanded to the trial court for entry of a judgment in accordance with this opinion.

Plaintiff should have costs.

Souris and Adams, JJ., concurred with T. M. KavaNagh, J.

CL 1948, § 125.271, et seq., as amended (Stat Ann 1958 Bey and Stat Ann 1965 Cum Supp § 5.2963[1] et seq.).

CLS 1961, § 168.1 et seq., as amended (Stat Ann 1956 Key and Stat Ann 1965 Cum Supp § 6.1001 et seq.).

Section 10 as amended by PA 1963 (2d Ex Sess), No 3.

CLS 1961, § 125.282 (Stat Ann. 1965 Cum Supp § 5.2963 [12]).