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untanglingwebs
El Supremo
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Donating Public Property May Raise Constitutional Problems ...
www.martindale.com/government/article_Foster-Swift-Collins-Smith...
The Michigan Supreme Court has held that "municipalities may not give away ... the Michigan Constitution, municipalities do ... Attorney General concluded ...
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[PDF]
Section 4: Finance Chapter 21: Municipal expenditures
www.mml.org/pdf/glv/chapter21.pdf
that a city cannot give away funds or other ... donated part of the land to Lansing . Chapter 21 ... Opinions of Attorney General |
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Thu Mar 27, 2014 7:42 am |
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untanglingwebs
El Supremo
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martindale.com
Legal Library
Donating Public Property May Raise Constitutional Problems
by:
Laura J. Genovich
Foster, Swift, Collins & Smith, P.C. - Grand Rapids Office
November 8, 2013
Previously published on October 30, 2013
As public servants, municipal officials and employees are often eager to help people and organizations in the community - even by contributing funds or property from the municipality. Unfortunately, although donations of public funds and property are well-intended, they may be unlawful.
Municipalities only possess the powers conferred on them by statute or the state constitution. Mosier v Bd of Auditors, 295 Mich 27, 29; 294 NW 85 (1940). The Michigan Constitution prohibits municipalities from loaning their credit for any public or private purpose unless provided for by law. Mich Const, Art 9, § 18. This means that municipalities may transfer public property or donate public funds only under limited circumstances.
TRANSFERRING PUBLIC PROPERTY
The Michigan Supreme Court has held that "municipalities may not give away public property without a consideration." Kaplan v City of Huntington Woods, 357 Mich 612 (1959). The consideration must have "fair value." Alan v Wayne Co, 388 Mich 210, 330; 200 NW2d 628 (1972).
For example, the Michigan Legislature has provided that a township may transfer public property under certain circumstances:
By resolution of the township board, a majority of the members serving may acquire property for public purposes by purchase, gift, condemnation, lease, construction, or otherwise and may convey or lease that property or part of that property not needed for public purposes.
MCL 41.2 (emphasis added). Thus, property that is not needed for public purposes may be transferred. Such a transfer, however, requires consideration if the public property has value. If the property does not have any value, then a transfer without consideration may be acceptable because there would be no "fair value" for the property.
DONATING PUBLIC FUNDS
Generally, unless specifically authorized by statute or the Michigan Constitution, municipalities do not have authority to donate funds, even to non-profit organizations. Without such specific authority, the Michigan Attorney General has written that public bodies may not appropriate or contribute public funds to private non-profit corporations, even if that corporation is performing activities for the public benefit. OAG, 1935-36, p. 5 (Village has no authority to appropriate public funds for lighting a recreation field controlled by a veterans’ organization even though the entertainment provided on the field was free to the public); 1 OAG, 1957, No. 3066, p. 476 (October 9, 1957) (City funds may not be used for contributing to the expenses of private voluntary groups operating recreation facilities for children); OAG, 1977-1978, No 5212, p 199, 200 (August 17, 1977) (prohibiting contributions by a county to a private, non-profit hospital). Thus, in most cases, municipalities cannot make monetary donations, even to good causes.
EXCEPTIONS
Expenditures may be authorized if they constitute a proper public purpose. For example, paying dues to the Michigan Municipal League has been held to be a proper public expenditure. Hays v City of Kalamazoo, 316 Mich 443; 25 NW2d 787 (1947). Paying dues must, however, be reasonably related to the services provided to the governmental units. OAG, 1989-1990, No 6563, p 28, 30 (January 26, 1989).
Additionally, public bodies may expend public funds to private, non-profit corporations pursuant to a contract. OAG, 1977-1978, No 5212, p 199, 200-201 (August 17, 1977). Typically, the corporation would then perform services on behalf of the municipality as consideration. For example, the Attorney General concluded that a county could pay public funds to a private non-profit hospital if the county enters into a contract and the hospital’s services aid the county in the performance of a governmental function. OAG, 1987-1988, No 6431, p 60 (April 16, 1987). The public body would have to receive adequate consideration in return.
CONCLUSION
Determining whether a proposed expenditure or transfer of property is lawful requires a review of the circumstances in light of the constitution, statutes, and case law discussed above. Municipalities should consult with legal counsel before donating money or property.
The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
Author
Laura J. Genovich
Practice Area
Government
Foster, Swift, Collins & Smith, P.C. Overview
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Thu Mar 27, 2014 8:04 am |
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untanglingwebs
El Supremo
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STATE OF MICHIGAN
FRANK J. KELLEY, ATTORNEY GENERAL
Opinion No. 6431
April 16, 1987
CONSTITUTIONAL LAW:
Const 1963, art 9, Sec. 18--county support of private, nonprofit hospital
COUNTIES:
Payment of funds in aid of a private, nonprofit hospital
Power to contract with private, nonprofit hospital for services
The payment of public funds by a county to aid a private, nonprofit hospital violates Const 1963, art 9, Sec. 18.
A county may enter into a contract with a private, nonprofit hospital and pay public funds to such a hospital for the contracted services if the services aid the county in the performance of its governmental functions.
Mark E. Luoma, Esq.
Alger County Prosecuting Attorney
Courthouse Complex
Munising, Michigan 49862
You have requested my opinion on the following question:
"Is Alger County constitutionally prohibited from using funds generated from a county-wide approved millage to support the operation of a private non-profit hospital located within the county?"
In your letter you state that on April 7, 1986, a millage proposal was submitted to the voters of the county to assess two mills over three years on all taxable property within the county, in accordance with MCL 331.101; MSA 14.1121, to support, finance, and maintain the Munising Memorial Hospital, a private, nonprofit facility. The monies collected by the county would be turned over to the Munising Memorial Hospital, without the county acquiring anything of value in return. The millage proposal was approved by the voters.
In this connection, it is to be noted that MCL 331.101; MSA 14.1121, provides, in pertinent part, that:
"The several boards of county supervisors of this state may raise by a tax to be levied on the property of said county, subject to taxation for county purposes, a sum of money to be used for constructing or maintaining or assisting to construct or maintain any hospital or sanatarium [sic] within said county."
Const 1963, art 9, Sec. 18, provides: "The credit of the state shall not be granted to, nor in aid of any person, association or corporation, public or private, except as authorized in this constitution." This provision is applicable to political subdivisions and instrumentalities of the state, including counties. Oakland County Drain Comm'r v City of Royal Oak, 306 Mich 124; 10 NW2d 435 (1943).
In Alan v Wayne County, 388 Mich 210, 325-326; 200 NW2d 628, 684 reh den, 388 Mich 626 (1972), the court discussed Const 1963, art 9, Sec. 18, in regard to the state acquiring or transferring something of value in return for value as not being violative of the constitutional provision:
"Michigan case law interpreting Const 1963, art 9, Sec. 18 is neither ample nor precise. It is clear the state or its subdivision the county cannot give anything away without consideration. Detroit Museum of Art v Engel, 187 Mich 432 (1915) (salary of employee of private museum, no consideration, no public purpose); Younglas v Flint, 345 Mich 576 (1956) (transfer of city park to US reserve armory) but see contra Sommers v Flint, 355 Mich 655, 663 (1959). See generally 15 McQuillan Municipal Corporations (3rd ed), Sec. 39.30. Note that the constitution as far as the state and county are concerned makes no difference between a public and private purpose in this regard. When the state acquires or transfers something of value in return for value the state does not offend Const 1963, art 9, Sec. 18. Walinske v Detroit-Wayne Joint Building Authority, 325 Mich 562, 583 (1949) (lease of building); Jackson Broadcasting Television Corp v. State Board of Agriculture, 360 Mich 481, 498 (1960) (time-sharing on rental basis of studio); Hays v Kalamazoo, 316 Mich 443 (1947) (Michigan Municipal League membership)."
If a county provides public funds to a private, nonprofit hospital in the county and receives nothing of value in return, a political subdivision of the state is giving away something of value without consideration. Doing so would violate Const 1963, art 9, Sec. 18.
On the other hand, OAG, 1973-1974, No 4851, p 196 (November 4, 1974), and OAG, 1977-1978, No 5212, p 199 (August 17, 1977), concluded that a municipality may enter into a contract for services with a private agency if the services contracted for aid the municipality in the performance of its governmental functions. The terms of the contract would control the manner and use of the public funds appropriated to the private entity to assure compliance with the stated governmental services sought.
The fact that the voters of the county, by approval of the ballot question, imposed the two-mill increase for the support and maintenance of the private hospital rather than by legislative action of the county board of commissioners does not alter the fact that the appropriation of public funds to a private, nonprofit hospital, without the county acquiring anything of value in return, is prohibited by Const 1963, art 9, Sec. 18. See, Bates v Hastings, 145 Mich 574; 108 NW 1005 (1906).
It is my opinion, therefore, that payment of public funds by a county to aid a private, nonprofit hospital violates Const 1963, art 9, Sec. 18. It is my further opinion that a county may enter into a contract with a private, nonprofit hospital and pay public funds to such a hospital for the contracted services if the services aid the county in the performance of its governmental functions.
Frank J. Kelley
Attorney General
[ Previous Page] [ Home Page ]
http://opinion/datafiles/1980s/op06431.htm
State of Michigan, Department of Attorney General
Last Updated 11/10/2008 16:49:34 |
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Thu Mar 27, 2014 8:20 am |
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untanglingwebs
El Supremo
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Const 1963, art 9, Sec. 18, provides: "The credit of the state shall not be granted to, nor in aid of any person, association or corporation, public or private, except as authorized in this constitution." This provision is applicable to political subdivisions and instrumentalities of the state, including counties. Oakland County Drain Comm'r v City of Royal Oak, 306 Mich 124; 10 NW2d 435 (1943).
In Alan v Wayne County, 388 Mich 210, 325-326; 200 NW2d 628, 684 reh den, 388 Mich 626 (1972), the court discussed Const 1963, art 9, Sec. 18, in regard to the state acquiring or transferring something of value in return for value as not being violative of the constitutional provision:
"Michigan case law interpreting Const 1963, art 9, Sec. 18 is neither ample nor precise. It is clear the state or its subdivision the county cannot give anything away without consideration. Detroit Museum of Art v Engel, 187 Mich 432 (1915) (salary of employee of private museum, no consideration, no public purpose); Younglas v Flint, 345 Mich 576 (1956) (transfer of city park to US reserve armory) but see contra Sommers v Flint, 355 Mich 655, 663 (1959). See generally 15 McQuillan Municipal Corporations (3rd ed), Sec. 39.30. Note that the constitution as far as the state and county are concerned makes no difference between a public and private purpose in this regard. When the state acquires or transfers something of value in return for value the state does not offend Const 1963, art 9, Sec. 18. Walinske v Detroit-Wayne Joint Building Authority, 325 Mich 562, 583 (1949) (lease of building); Jackson Broadcasting Television Corp v. State Board of Agriculture, 360 Mich 481, 498 (1960) (time-sharing on rental basis of studio); Hays v Kalamazoo, 316 Mich 443 (1947) (Michigan Municipal League membership)."
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Note there are two Flint cases cited! |
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Thu Mar 27, 2014 8:23 am |
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untanglingwebs
El Supremo
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Younglas v. City of Flint
345 Mich. 576 (1956)
77 N.W.2d 84
YOUNGLAS v. CITY OF FLINT.
Docket No. 31, Calendar No. 46,590.
Supreme Court of Michigan.
Decided May 14, 1956.
Maurice D. Wilbur and Chester J. Antieau, for plaintiffs.
William J. Kane and Don W. Mayfield, for defendants.
DETHMERS, C.J.
Plaintiffs, as taxpayers of defendant city, seek to enjoin defendants from conveying, without consideration therefor, city property, used as a public park, to the United States government *578 as a site for a reserve armory school. After hearing on a show cause order and on the merits a decree entered denying injunctive relief and dismissing plaintiffs' bill of complaint. They appeal.
Plaintiffs urge, as controlling, Michigan Constitution of 1908, art 8, § 25, which reads, in part:
"No city or village shall have power * * * to loan its credit, nor to assess, levy or collect any tax or assessment for other than a public purpose."
and article 10, § 12, which reads:
"The credit of the State shall not be granted to, nor in aid of any person, association or corporation, public or private."
These constitutional provisions were held applicable to and controlling of the situation in Detroit Museum of Art v. Engel, 187 Mich 432. There the plaintiff, a private corporation, served a public purpose and its operations were conducted solely for the benefit of the general public, the city had title to the property it used and occupied, and the city had representation on its board of directors. This Court, nonetheless, held violative of the above constitutional provisions a statute empowering the city to appropriate public funds for plaintiff's support and maintenance because it was not a municipal agency and did not serve a city public purpose. This Court quoted therein from Attorney General v. Board of Supervisors, 34 Mich 46, 48, the following:
"Taxes and loans, when authorized to be raised by any public body, must be raised under the implied condition that they are to be applied to the public uses under the control or care of that body."
Such was the language employed by this Court in the latter case to arrive at the conclusion that a resolution of a county board of supervisors was void *579 which provided for the raising of money by the county to be paid over to the towns within it for expenditure by the latter on their roads and bridges.
Defendants contend that the mentioned constitutional provisions have no application to the facts at bar under our holding in Hays v. City of Kalamazoo, 316 Mich 443 (169 ALR 1218). With that we are not in accord. We there upheld a city appropriation for a service which we found to be beneficial to the city government. In so doing (p 455) we distinguished that case from the Detroit Museum Case on the express grounds that, although in the Museum Case the invalid appropriation for the museum would have been "for the benefit of the general public," nevertheless, it "did not serve a city public purpose" while that in the Kalamazoo Case did serve a city public purpose. Under the reasoning of the above cases it follows in the case at bar that the proposed transfer of the city property, without consideration, to the United States government, even though beneficial to the general public, amounts to an appropriation which is not for a city public purpose, an application thereof to public uses not under the control or care of the city, and, hence, void. To same effect, in a situation directly in point, see Opinions of the Attorney General 1935, 1936, p 394, and cases therein cited.
Decree below reversed and set aside. A decree may enter here providing for permanent enjoining of defendants from making the proposed conveyance without consideration. No costs, a public question being involved.
SHARPE, KELLY, and CARR, JJ., concurred with DETHMERS, C.J.
BLACK, J. (dissenting).
In 1947 this Court adopted as Michigan law (Hays v. City of Kalamazoo, 316 Mich 443, 453, 454 [169 ALR 1218]) the text appearing *580 in 37 Am Jur, Municipal Corporations, § 120, pp 734, 735, as follows:
"A public use changes with changing conditions of society, new appliances in the sciences, and other changes brought about by an increase in population and by new modes of transportation and communication. The courts as a rule have attempted no judicial definition of a public as distinguished from a private purpose, but have left each case to be determined by its own peculiar circumstances. * * * The modern trend of decision is to expand and liberally construe the term `public use' in considering State and municipal activities sought to be brought within its meaning. The test of public use is not based upon the function or capacity in which or by which the use is furnished. The right of the public to receive and enjoy the benefit of the use determines whether the use is public or private."
The act of adoption of the foregoing text did succeed in rendering more palatable Hays' ruling that the regular contribution of municipal funds, to and for yes lobbying purposes, was valid as against the same objection plaintiffs make in the instant case. True, the court clothed the abhorrent word "lobbying" with the elegant language of a Chesterfield, but the disrobed purport of Hays nevertheless was that of legalization of hiring by Kalamazoo of a corporate "legislative agent" with consequent devotion of municipal funds raised by taxes to such "city public purpose."
Now it is said, through majority opinion signed by several of the justices whose signatures bolster Hays, that the transfer "without consideration" of municipal property hitherto constituting a part of a public park in Flint, to the United States for combined use as a military reserve training center and "local public purposes," amounts to an invalid "appropriation which is not for a city public purpose." *581 To be perfectly frank about it, our Court is now on record as holding that contribution of municipal property to the purpose "of giving to the legislature information with reference to the subject matter of proposed or anticipated (municipal) legislation" is quite right by Constitution and law, and as holding that the contribution of municipal property for the combined purpose just noted a purpose that includes, with other public use, Flint's part in educating her youth in the defense of our country is quite wrong by the same laws of our peninsular land.
Since the parallel ruler by which we chart constitutional and statutory course through Flint and Kalamazoo is the same for both cases "the promotion of the public health, safety, morals, general welfare, security, prosperity and contentment," I respectfully suggest that we either step up with Hays-overruling signatures or follow the quoted rule of Hays in this definitely clearer case of devotion of public property to a swiftly developing and provably necessitous public purpose. That purpose, I apprehend, will subserve to greater extent the health, welfare, security and contentment of Flint's inhabitants than will the regular devotion of Flint's tax-raised funds to lobbying services.
The chancellor, by opinion filed below, said of the mentioned "purpose":
"The evidence further revealed that the army proposes to erect a building, I believe, on the southern portion of this parcel, a building whose cost will run between a quarter and a half million dollars. The colonel who will be in charge of the establishment, if one is established, testified that other installations of a like nature have been run on a certain plan of use: that while it is used or erected for the purpose of providing a reserve training center, that all the installations presently established in the State of Michigan on a like basis are used for local public purposes *582 greatly in excess of the time devoted to training purposes."
His reasoning, based on the foregoing, fits the leading case of Opinion of the Justices (1937), 297 Mass 567 (8 NE2d 753).[*] There the supreme court of Massachusetts held that the city of Salem might lawfully be authorized to transfer, by deed of conveyance to the United States "without monetary consideration," certain to-be-acquired park lands to be used under act of congress as "an historic monument." The court said (pp 575, 576):
"The act of congress authorizes the United States to accept a gift of this nature. There seems to be no limitation upon its power to accept conveyance of the land from the city of Salem after the latter has acquired title to the land. Transfer of title to the land to the United States after its taking by the city of Salem would not affect the main public uses for which it was taken. The conveyance to the United States by the city of Salem must be made for the purposes described in the proposed statute. We think that the act of congress authorizes the acceptance of a conveyance of that nature. Conveyance of the land, after being taken by the city of Salem for the purposes enumerated in the proposed statute, to the United States, to be administered in compliance with the act of congress, would not render the park any the less public in its nature than it would be if the title were retained by the city. The proposed ultimate ownership would not make the taking in the first instance any less a taking for a public use. After such conveyance, the land will remain in the same place and will be available for the benefit of the public of Salem in company with the general public as if there were no conveyance. The management *583 and operation, however, must be in accordance with the specified act of congress. Local control will no longer exist. There are numerous decisions upholding the constitutionality of statutes similar to the one here proposed. We are not aware of any decisions to the contrary. (Citing cases at length.)"
The opinion of Attorney General Crowley to which my Brother refers (OAG, No 167, 1935, 1936, p 394), has not been overlooked. I will only say (as this Court did 10 years later) that permissible public uses change and expand with changing conditions, and I will add that this country, and every municipality therein, is burdened with duties respecting local as well as national security that were unknown in the nineteen thirties; that devotion of municipal property thereto has indeed become a public use, and that it is error to assert that a conveyance of the nature proposed by Flint will be made "without consideration" simply because no money passes from sovereign government to local government.
Stanley v. Schwalby, 162 US 255 (16 S Ct 754, 40 L ed 960), speaks with clarity in support of the point that consideration if required is amply existent here. The court said (p 276):
"A valuable consideration may be other than the actual payment of money, and may consist of acts to be done after the conveyance. (Citing authority.) The advantage inuring to the city of San Antonio from the establishment of the military headquarters there was clearly a valuable consideration for the deed of the city to the United States."
We may see the day when every village and every city will find it necessary with or without conveyance to Uncle Sam to devote a portion of the municipal lands to actual as well as educational preparation for national defense. This Court, following its own Hays-made precept, should, hence, get in step and *584 not get in the way. Such an essential "city public purpose" can as much be served as "public use changes" on land titled in the United States as in the city itself, and that should be the essence of our decision in this case.
The remaining question posed by plaintiffs is deemed unsubstantial.[**] The defendant city does not propose to "sell" Kearsley Grove. It does propose to transfer it by lawful means to a new and dual public use. The city commission's judgment that the new public use will be of equal or greater service to the inhabitants of Flint than the present is well within the discretion vested in these elective officials and the judiciary has no right to interpose its judgment with respect thereto. The ultimate fact of this case is that Kearsley Grove will, if title, as proposed, be transferred to the national government, continue in genuine public service under new public management. Once that is settled, our inquiry should end because there will have been no sale so far as present section 5 of the home-rule act is concerned. It is consequently unnecessary to determine whether Kearsley Grove is or is not "required" under an official master plan of the defendant city within meaning of the exception set forth in said section 5.
Believing that the chancellor's decree is right as against presently reviewed objection to the city commission's action, I vote to affirm with remand, however, for due assurance to the inhabitants of Flint of that which was testified to, by the mayor of Flint, with respect to cooperative public use and reversionary stipulations in the intended deed of conveyance. Pursuing the doctrine that equity, having once become possessed of a cause, will retain it for the purpose of administering full and complete relief, *585 it is our duty to see by instructed supplemental decree, to be entered below, that the mentioned asseverations as shown in the mayor's testimony and in the park board's resolution of April 27, 1955 (on which the city commission of Flint assumed to act), are appropriately reflected in the resolved conveyance and are made consistent with the act or acts of congress under which the secretary of the army and the city commission are assuming to proceed.
The chancellor's decree should be affirmed, without costs and the case remanded with instructions as indicated.
SMITH, J., concurred with BLACK, J.
BOYLES, J., concurred in the result.
The late Justice REID took no part in the decision of this case.
NOTES
[*] This case is included in present counsel Antieau's third edition of Professor Seasongood's "Cases On Municipal Corporations" (Callaghan, 1953), commencing at page 191, and it is presented therein to law students, with other leading cases, as showing the "present state of the law of municipal corporations."
[**] Counsel for plaintiffs rely upon the restriction against sales of municipal park lands set forth in section 5 of the home-rule act (CLS 1954, § 117.5 [Stat Ann 1955 Cum Supp § 5.2084]).
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Thu Mar 27, 2014 8:28 am |
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untanglingwebs
El Supremo
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This Court quoted therein from Attorney General v. Board of Supervisors, 34 Mich 46, 48, the following:
"Taxes and loans, when authorized to be raised by any public body, must be raised under the implied condition that they are to be applied to the public uses under the control or care of that body."
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The courts ruled the Towers was worth $10 million.
Flint gave it away for $1 and then used $880,000 in lock grant funds to demolish the Towers. |
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Thu Mar 27, 2014 8:31 am |
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untanglingwebs
El Supremo
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Gregory Marina, Inc. v. City of Detroit :: 1966 :: Michigan Supreme ...
Plaintiffs contend: (1) That the case of Edward Gray, Inc. v. ...... City of Kalamazoo, 316 Mich 443 (169 ALR 1218); Younglas v. ... City of Flint, 355 Mich 655.
law.justia.com/cases/michigan/supreme-court/1966/378-mich-364-2.html |
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Thu Mar 27, 2014 8:37 am |
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