American Axle & Manufacturing, Inc v. City of Hamtramck

Corrigan, J.

(concurring). I join parts I through iv of the majority opinion. I concur in the result reached in part v, but write separately because I disagree with the majority’s construction of MCL 117.3(g); MSA 5.2073(g) and MCL 117.5(a); MSA 5.2084(a). I would construe those provisions as allowing a home rule city to raise tax rates above the charter limitation only when the Legislature has expressed its intent that a specific tax fall outside the limitation. Because the language of the judgment levy statute, MCL 600.6093(1); MSA 27A.6093(1), evinces the requisite intent, I concur in the result reached by the majority.

*368I. STATUTORY CONSTRUCTION

A

The question in this case is whether the judgment levy tax violated the municipal tax limitations established by the home rule cities act, MCL 117.1 et seq.-, MSA 5.2071 et seq., and the Hamtramck Charter.1 The *369Hamtramck Charter includes provisions that incorporate MCL 117.3(g); MSA 5.2073(g) and MCL 117.5(a); MSA 5.2084(a). MCL 117.3(g); MSA 5.2073(g) directs that a charter shall provide:

For annually laying and collecting taxes in a sum, except as otherwise provided by law, not to exceed 2% of the assessed value of the real and personal property in the city. Unless the charter provides for a different tax rate limitation, the governing body of a city may levy and collect taxes for municipal purposes in a sum not to exceed 1% of the assessed value of the real and personal property in the ciiy, *370subject to section la of chapter 7 of the [Municipal Finance Act, MCL 137.1a; MSA 5.3188(45a)].

This limitation applies only to ad valorem taxation. Dooley v Detroit, 370 Mich 194, 215; 121 NW2d 724 (1963).

MCL 117.5(a); MSA 5.2084(a) provides that a city does not have the power:

To increase the rate of taxation now fixed by law, unless the authority to do so is given by a majority of the electors of the city voting at the election at which the proposition is submitted, but the increase in any case shall not be such as to cause the rate to exceed 2%, except as provided by law, of the assessed value of the real and personal property in the city.

The majority essentially reasons that the judgment levy tax falls within the exception to the charter limitation because it is a tax “provided by law” for purposes of MCL 117.3(g); MSA 5.2073(g). I agree that MCL 117.3(g); MSA 5.2073(g) is controlling,2 but disagree with the majority’s construction of the statutory language. I would construe the provision as allowing a city to raise tax rates above the charter limitation only where the Legislature has expressed its intent that a specific tax fall outside the limitation.

*371In construing a statute, this Court begins with an examination of its language. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). We read the statutory language in context to determine whether ambiguity exists. Id. at 237; see Consumers Power Co v Public Service Comm, 460 Mich 148, 163, n 10; 596 NW2d 126 (1999). If the language is unambiguous, we enforce the statute as written. 460 Mich 236. Where ambiguity exists, this Court seeks to effectuate the intent of the Legislature through a reasonable construction, considering the purpose of the statute and the object sought to be accomplished. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). Further, under Const 1963, art 7, § 34, this Court must “liberally” construe constitutional provisions and laws concerning counties, townships, cities, and villages in their favor.

The Legislature amended the home rule cities act to add “except as otherwise provided by law” in 1973. 1973 PA 81. The statute directs that the charter must provide for laying and collecting taxes “in a sum, except as otherwise provided by law, not to exceed 2% . . . .” MCL 117.3(g); MSA 5.2073(g) concerns the maximum tax rate, not the purpose for which the tax is levied. Indeed, MCL 117.3(f); MSA 5.2073(f) squarely addresses those purposes, providing that “the subjects of taxation for municipal purposes be the same as for state, county, and school purposes under the general law.”3 Thus, when read in context, the phrase “otherwise provided by law” in MCL *372117.3(g); MSA 5.2073(g) is not the equivalent of the “authorized by law” language in the Headlee Amendment, but rather references whether the Legislature has specifically excepted a tax from the maximum rate. Accordingly, I would construe the statutory language as requiring some expression of legislative intent that a specific tax fall outside the charter limit before the city may exceed the charter limitation.

B

An examination of statutes granting a city authority to levy specific taxes supports this construction of MCL 117.3(g); MSA 5.2073(g). The Legislature has demonstrated in those statutes that it will explicitly provide that a tax is not subject to charter and statutory limitations when it intends that those limitations not apply.

For example, MCL 123.261; MSA 5.2681 authorizes a 3 mill tax for garbage services and provides that the tax “shall be in addition to the amount authorized to be levied for general purposes by the general law or special charter under which the city or village is incorporated.” Similarly, MCL 397.201(2); MSA 15.1661(2) authorizes a one-mill tax for a public library and provides that the tax levied “shall be in addition to any tax limitation imposed by a city charter.” The Legislature has also authorized a tax to fund pensions for police and firefighters, MCL 38.559(2); MSA 5.3375(9)(2), and provided that, except in municipalities subject to the fifteen-mill limitation under the constitution, the amount required by taxation to meet appropriations “shall be in addition to any tax limitation imposed upon tax rates in those municipalities *373by charter provisions or by state law,” subject to Const 1963, art 9, § 25.

By contrast, the Legislature has not exempted other specific taxes from the charter limitation. MCL 400.576; MSA 5.3439(6) authorizes a one-mill levy for services to older citizens, but provides that the city must submit the millage proposition to the electorate. Similarly, MCL 123.861 et seq.; MSA 5.3391 et seq. authorizes a city of less than 50,000 inhabitants to levy a tax not exceeding two mills for the maintenance of a band, but requires voter approval. Thus, a comparison of these statutes authorizing the levy of a property tax for a specific purpose reveals that the Legislature will expressly provide that a tax falls outside charter and statutory limitations if it intends to grant cities that authority.

c

This construction also comports with the Attorney General’s construction of MCL 117.3(g); MSA 5.2073(g) before the 1973 amendment. Although this Court is not bound by Attorney General opinions, Frey v Dep’t of Management & Budget, 429 Mich 315, 338; 414 NW2d 873 (1987), they can be persuasive and provide insight into the historical development of a statute that may aid in construing ambiguous language. Indenbaum v Michigan Bd of Medicine (After Remand), 213 Mich App 263, 274; 539 NW2d 574. (1995).

In OAG, 1925-1926, p 102 (April 23, 1925), the Attorney General considered whether a home rule city could levy two mills for the support of a municipal band under MCL 123.861 et seq.; MSA 5.3391 et *374seq., in addition to the full two percent authorized by charter. At the time the Attorney General issued his opinion, the home rule cites act contained the voting requirement, § 5(a), but not the tax limitation now contained in § 3(g). 1909 PA 279. The Attorney General opined that the city did not have the authority to raise more than a total of two percent, including the amount raised for the band, because the Legislature merely permitted municipalities to raise money for a band—a purpose for which they were not authorized to tax before enacting of the statute.

The Attorney General next considered the question in OAG, 1945-1946, No 0-3867, p 444 (August 29, 1945). He opined that a home rule city could exceed the charter limitation by levying up to two mills4 to fund garbage or disposal systems under MCL 123.261; MSA 5.2681, but could not exceed the limitation for the purpose of maintaining a band. The Attorney General recognized that the Legislature had added § 3(g) to the list of provisions required in a charter, 1929 PA 126,5 but concluded that the garbage collection act did not conflict with the amendment:

It is our opinion that the garbage collection act is in no way in conflict with the later amendment to the Home Rule Act, which simply makes it mandatory on Home Rule cities to provide for laying taxes within 2% of the assessed valuation. The Legislature must be presumed to have been aware of the general provision in the garbage collection act by which all cities must, if they desire a garbage collection sys*375tem, levy a tax over and above any charter rate limit. It is our opinion, therefore, that the City of Ironwood may levy not to exceed two mills beyond the charter rate limit of 2% for this purpose. [OAG, 1945-1946, p 445.]

The Attorney General, however, once again opined that the city could not exceed the limitation for purposes of maintaining a band because the Legislature did not grant it that authority.

In OAG, 1949-1950, No 1049, p 353 (September 16, 1949), the Attorney General concluded that MCL 211.107a; MSA 7.161(1)6 did not repeal the garbage tax act or the police and firefighters’ pension and retirement fund act, MCL 38.559(2); MSA 5.3375(9)(2). The Attorney General further opined that a city could exceed the two percent limitation under MCL 211.107a; MSA 7.161(1) in levying the tax under both acts.

Thus, before the 1973 amendment, the Attorney General consistently construed the statute to require an expression of legislative intent that the specific tax fall outside the charter limit. The Legislature’s insertion of the phrase “except as otherwise provided by law” in the first sentence of the provision of the home *376rule cities act concerning the maximum tax rate, MCL 117.3(g); MSA 5.2073(g), essentially codified the Attorney General’s construction.7 The plain language of the statute now requires some expression of legislative intent that the specific tax fall outside the charter limit before the city may exceed the charter limitation.

D

This Court’s decisions do not support the majority’s construction of the statute. The majority erroneously relies on Simonton v Pontiac, 268 Mich 11; 255 NW 608 (1934), and Hazel Park v Municipal Finance Comm, 317 Mich 582; 27 NW2d 106 (1947), for the proposition that the judgment levy statute controls over the otherwise applicable limitations of the home rule cities act. First, Simonton and Hazel Park were decided before the Legislature amended MCL 117.3(g); MSA 5.2073(g) to include the “except as otherwise provided by law” language. Second, those cases did not involve the judgment levy statute, but rather a bond statute that expressly provided that no limitation in any statute or charter would prevent the levy and collection of the full amount necessary to service the debt, 1929 CL 2694.8

*377Simonton relied on the general principles stated in Hammond v Place, 116 Mich 628; 74 NW 1002 (1898), in considering whether a city was required to include an assessment in its tax levy to cover bond debt under 1929 CL 2694, when to do so would increase the amount of taxation beyond the limit set by charter. This Court observed that under Const 1908, art 8, §§ 20, 21, the charter was subject to the constitution and the general laws of the state. It reasoned that the Legislature enacted the bond statute under that reserved power and specifically provided that no limitation in statute or charter shall prevent the levy and collection of the amount necessary to service the debt.

This Court further concluded that the fifteen-mill limitation on taxes contained in Const 1908, art 10, § 21 did not apply to home rule cities. Rejecting the city’s reliance on §§ 5(a) and 3(g) of the home rule cities act, this Court explained that home rule cities were subject to the general laws: “In Harsha v City of Detroit, 261 Mich 586 [246 NW 849 (1933)], we held that the legislature might modify the charters of municipal corporations at will and that the State still retained authority to amend charters and enlarge and diminish their powers.” Simonton, supra at 20.

*378In Hazel Park, supra at 598-599, this Court discussed the statutory provision that no limitation in any charter or statute shall prevent the levy in clarifying its comment in Simonton that the fifteen-mill limitation in Const 1908, art 10, § 21 did not apply to home rule cities:

We do not overlook the fact that in the instant case, by an amendment to the charter of the plaintiff city, the maximum of taxes for city purposes in any one year was increased to 1.8 per cent, (instead of the constitutional limit of 1.5 per cent.) on the assessed valuation of the property in the city. But we also assume that under that limitation, if these bonds be issued and sold, the result will be that the city will not be able to pay the principal and interest thereon and in addition raise sufficient money by taxation to defray the necessary municipal expenses, unless the annual tax rate should exceed 1.8 per cent. Under such circumstances the charter limit of 1.8 per cent, does not control, inasmuch as every municipal charter is subject to the Constitution and general laws of this State. The municipal finance act ... is a general law of the State, and applies here. It provides that no limitation in any statute or charter shall prevent the levy and collection of the full amount of taxes required to pay the bond issue which has been approved by the electors of Hazel Park and the municipal finance commission.

This Court concluded:

The provision in the municipal finance act, supra, that no limitation in any statute or charter shall prevent the levy and collection of the full amount of taxes to pay the bond issue, must be read into plaintiff’s charter, and controls the instant case notwithstanding the 1.8 per cent, tax limitation in the charter. [Id. at 606.]

In Bullinger v Gremore, 343 Mich 516; 72 NW2d 777 (1955), this Court similarly focused on a statutory *379provision that evinced the Legislature’s intent that taxes by member municipalities to fund a hospital authority under the hospital authority act, MCL 331.1 et seq.; MSA 5.2456(1) et seq., were in addition to charter or statutory limitations. This Court reasoned:

Insofar as legislative intent is concerned, the answer to this question is indicated by the declaration in section 1 of the hospital authority act that:
“The power herein granted shall be deemed an enlargement of any power granted to cities, incorporated villages and townships by their respective charters or the laws of the State.”
As pointed out in City of Ecorse v Peoples Community Hospital Authority [336 Mich 490; 58 NW2d 159 (1953)], an authority created pursuant to this statute is a State agency. It is invested with functions concerning the health of the people of the State. With reference to the performance of such functions the legislature has a broad measure of control. Harsha v City of Detroit, supra.
In City of Hazel Park v Municipal Finance Commission, supra, the Court quoted with approval from the Harsha Case, discussing at some length the power of the legislature with reference to municipal charters and taxation. A repetition of what was said in these decisions would serve no useful purpose. The levy of taxes expressly authorized by the hospital authority act of 1945, as amended, to enable the members of a hospital authority to meet the obligations imposed on them thereunder is not subject to charter or statutory limitations as to tax rates, other than as provided in said act, but the power so given is in addition to taxing authority otherwise granted. [Id. at 553-554.]

Contrary to the majority’s conclusion, this Court did not determine before the 1973 amendment of the home rule cities act that the mere authority to levy a tax for a specific purpose authorizes the city to exceed charter and statutory limitations. Rather, *380Simonton, Hazel Park, and Bullinger reveal that this Court examined the provisions of the particular statute for an expression of legislative intent that the tax fall outside the otherwise applicable limitations. Accordingly, the majority’s conclusion is contrary to both the plain language of MCL 117.3(g); MSA 5.2073(g), as well as this Court’s construction of the statute before the 1973 amendment.

H. APPLICATION

In this case, I conclude that the judgment levy statute, MCL 600.6093(1); MSA 27A.6093(1), contains the requisite expression of legislative intent that the tax fall outside the charter limit. It provides, in part:

Whenever judgment is recovered against any township, village, or city, or against the trustees or common council, or officers thereof, in any action prosecuted by or against them in their name of office, the clerk of the court shall, on the application of the party in whose favor judgment is rendered, his attorney, executor, administrator, or assigns, make and deliver to the party so applying a certified transcript of the judgment, showing the amount and date thereof, with the rate of interest thereon, and of the costs as taxed under the seal of the court, if in a court having a seal. The party obtaining the certified transcript may file it with the supervisor of the township, if the judgment is against the township, or with the assessing officer or officers of the city or village, if the judgment is against a city or village. The supervisor or assessing officer receiving the certified transcript or transcripts of judgment shall proceed to assess the amount thereof with the costs and interests from the date of rendition of judgment to the time when the warrant for the collection thereof will expire upon the taxable property of the township, city, or village upon the then next tax roll of such township, city, or village, without any other or further certificate than the certi*381fied transcript as a part of the township, city, or village tax, adding the total amount of the judgment to the other township, city, or village taxes and assessing it in the same column with the general township, city, or village tax. [MCL 600.6093(1); MSA 27A.6093(1) (emphasis added).]

The statute directs that the assessing officer shall “add[] the total amount of the judgment to the other . . . city . . . taxes . . . .” Id. The Legislature’s use of the verb “add” reflects its intent that the city levy a tax in a sum that will both satisfy the judgment and finance its other expenses. Accordingly, the assessment under the judgment levy statute falls outside the tax limitation under the Hamtramck Charter and MCL 117.3(g); MSA 5.2073(g).

m. conclusion

I construe MCL 117.3(g); MSA 5.2073(g) and MCL 117.5(a); MSA 5.2084(a) to allow a home rule city to raise tax rates above the charter limitation only when the Legislature has expressed its intent that a specific tax fall outside the limitation. The language of the judgment levy statute, MCL 600.6093(1); MSA 27A.6093(1), contains the requisite expression of legislative intent. Therefore, I join parts I through iv of the majority opinion and concur in the result reached in part v.

Weaver, C.J., concurred with Corrigan, J.

In Hammond v Place, 116 Mich 628; 74 NW 1002 (1898), this Court considered whether a municipality was required to assess taxes under the predecessor of the current judgment levy statute, 1897 CL 10482, when the assessment would increase total taxes beyond the rate allowed by charter. This Court held that the statute provided for payment of judgments “exclusive of the limitations to taxation established by municipal charters.” Id. at 632. In so concluding, this Court observed that because the Constitution of 1850 imposed no limit on taxation by municipalities, the Legislature possessed the power to limit taxation. Hammond, however, does not control this case because of changes in our constitution and the enacting of the home rule cities act, MCL 117.1 et seq.-, MSA 5.2071 et seq.

The Legislature enacted the home rule cities act in response to Const 1908, art 8, §§ 20, 21, which provided:

The legislature shall provide by a general law for the incorporation of cities, and by a general law for the incorporation of villages; such general laws shall limit their rate of taxation for municipal purposes, and restrict their powers of borrowing money and contracting debts. [Id., § 20.]
Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter, and to amend an existing charter of the city or village heretofore granted or passed by the legislature for the government of the city or village and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this state. [Id., § 21.]

Const 1963, art 7, §§ 21, 22, are similar to the provisions of the Constitution of 1908. They provide:

The legislature shall provide by general laws for the incorporation of cities and villages. Such laws shall limit their rate of ad valorem property taxation for municipal purposes, and restrict the powers of cities and villages to borrow money and contract debts. *369Each city and village is granted power to levy other taxes for public purposes, subject to limitations and prohibitions provided by this constitution or by law. [Id,., § 21.]
Under general laws the electors of each city and village shall have the power and authority to frame, adopt and amend its charter, and to amend an existing charter of the city or village heretofore granted or enacted by the legislature for the government of the city or village. Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law. No enumeration of powers granted to cities and villages in this constitution shall limit or restrict the general grant of authority conferred by this section. [Id., § 22.]

In Detroit v Walker, 445 Mich 682, 690; 520 NW2d 135 (1994), this Court explained the development of these constitutional provisions:

Our municipal governance system has matured to one of general grant of rights and powers, subject only to certain enumerated restrictions instead of the earlier method of granting enumerated rights and powers definitely specified. The convention comment to the most recent amendment of the Michigan Constitution announces best the current relationship between municipalities and the state. It provides that “a revision of Sec 21, Article VH, of the present [1908] constitution reflects Michigan’s successful experience with, home rule.”

The home rule cities act, however, includes limitations on a city’s power to tax. It also provides that “[n]o provision of any ciiy charter shall conflict with or contravene the provisions of any general law of the state.” MCL 117.36; MSA 5.2116.

The voting provision, MCL 117.5(a); MSA 5.2084(a), limits the power of the city to increase the “rate of taxation now fixed by law” unless voters grant it the authority to do so. MCL 117.3(g); MSA 5.2073(g) governs the rate of taxation and contains an exception to the tax limitation when the Legislature so provides by law. MCL 117.5(a); MSA 5.2084(a) recognizes this restriction by providing that any increase authorized by voters may not cause the tax rate to exceed two percent, “except as provided by law.” Thus, construing the provisions together, the city need not obtain voter approval to increase the rate of taxation beyond the charter limit if the Legislature directs that the tax is in addition to other taxes collected by the city.

Const 1963, art 7, § 21 grants cities and villages the “power to levy-other taxes for public purposes, subject to limitations and prohibitions provided by this constitution or by law.”

The Legislature increased the amount of the tax to three mills in 1975. 1975 PA 38.

1929 PA 126, § 3(g), required that the charter shall provide “[flor annually laying and collecting taxes in a sum not to exceed two per centum of the assessed value of all real and personal property in the city . . . .”

MCL 211.107a; MSA 7.161(1) provides:

No city shall have power to increase the rate of taxation now fixed by law, unless the authority to do so shall be given by a majority of the electors of said city voting at the election at which said proposition shall be submitted, but the increase in any case shall not be such as to cause such rate to exceed 2 per centum of the assessed value of the real and personal property in such city: Provided, That no tax rate of any city shall be fixed which will reduce the combined taxing power of the county, state, school district, metropolitan district, and port district, or any combination of these units, over any parcel of property, below 15 mills per dollar of assessed valuation, except as provided in [MCL 211.211; MSA 7.71],

More recently, in OAG, 1997-1998, No 6998, pp 193, 194 (October 29, 1998), the Attorney General opined that “a city may not, in the absence of specific statutory authority, levy a property tax millage in excess of the millage limitations imposed by its city charter or by the Home Rule Cities Act.” The Attorney General determined that a city could not levy a property tax in excess of the millage limitations for the purpose of demolishing abandoned buildings because the Legislature has not authorized the levy of a tax for that purpose.

In 1943, the Legislature repealed the bond statute involved in Simon-ton and Hazel Park (1925 PA 273) and enacted the Municipal Finance Act, MCL 131.1 et seq.\ MSA 5.3188(1) et seq. That act provides that bonds *377which qualify as obligations under the act are subject to the limitations and conditions of the act “in addition to the requirements of such charter or law . . . .” MCL 135.2; MSA 5.3188(22). Regarding the refunding of outstanding indebtedness, MCL 136.4; MSA 5.3188(31) provides:

The refunding obligations and the tax levies therefor shall not be deemed to be within any statutory or charter limitation of tax rate or of bonded indebtedness, but shall be deemed to be authorized in addition thereto. However, no obligations except refunding obligations shall be issued which would cause the total debt to exceed any such limitation.