Dеfendant Elk Rapids is a village incorporated under PA 1895, No 3 (CL 1948 and CLS 1956, § 61.1 et seq. [Stat Ann 1961 Rev § 5.1201 et seq.]), which is its charter. Chapter 7, § 24, of that act (CL 1948, § 67.24 [Stat Ann 1961 Rev § 5.1308]), empowers village councils to construct sewers. The next section, section 25, provides in part:
“And if the council shall declare that the expense of any sewer, drain or water course, or any part of such expense, shall be paid by a special assessment upon the lands and premises benefited, then such *8 special assessment may be levied in a sing-le assessment, or, in the discretion of the council, the special assessment rolls to defray the cost and expense of such improvement may be made in 5 рarts or instalments.” CL 1948, § 67.25 (Stat Ann 1961 Rev § 5.1309).
Chapter 8, §5, of the act (CL 1948, § 68.5 [Stat Ann 1961 Rev § 5.1353]), reads as follows:
“The costs and expenses of any improvement which may be defrayed by special assessment shall include the costs of surveys, plans, assessments, and costs of construction. In no case shall the whole amount to be levied by special assessment upon any lot or premises for any I improvement exceed 25% of the value of such lot or land, as valued and assessed in the last preceding tax roll. Any cost exceeding that per cent, which would otherwise be chargeable on such lot or premises, shall be paid from the general funds of the village.”
Chapter 9, § 5 (CL 1948, § 69.5 [Stat Ann 1961 Rev § 5.1375]), reads:
“The council may raise by special assessment upon lands in sewer districts and special assessment districts, for the purpose of defraying the cost and expense of grading, paving, planking, and graveling streets, and for constructing drains and sewers, and for making other local improvements, charged upon ■ thе lands in the district in proportion to frontage or benefits, such sums as they shall deem necessary to ■defray the costs of such improvements, but not to exceed in any 1 year 5% of the assessed value of the property in the district chargeable with such ex- ' pense.”
The village council, by resolution, submitted to the , electors and a majority of them voted for adoption of amendments to the above provisions, for the pur,pose of increasing the 5-instalment limitation on .special assessments to 20. and of eliminating the *9 limitations on special assessments to 25% of the value of each individual property as assessed in the last preceding tаx roll and to not to exceed in any 1 year 5 % of the assessed value of all of the property in the special assessment district.
Deeming the charter amendments to have become effective, the village council thereafter submitted to the electors a proposition authorizing the village to issue not to exceed $80,000 worth of special assessment bonds pledging the full faith and credit of the village, to pay for sewer construction. A majority of the electors voted for the proposition. The council then determined to make $20,000 of the cost chargeable against the village as a whole and proceeded to prepare and confirm a special assessment roll calling for assessment of $60,000 against properties in a special assessment district, to be payable in 20 instalments. The individual assessments on at least some of the properties exceeded 25% of the value thereof as assessed in the last preceding tax roll, and the sum of all the instalment assessments for each year did exceed 5% of the total assessed value of all the properties in the special assessment district, contrary to the above quoted limitations of PA 1895, No 3.
Plaintiffs are property owners in the special assessment district. They brought this action, challenging the validity of the special assessments against their properties, on the grounds that they are excessive under and in violation of the mentioned limitations of Act No 3. They prayed for an injunction against the village to enjoin assessing, levying or collecting any special tax in excess of .those limitations. Prom decrеe for plaintiffs granting the injunctive relief prayed, defendant village and defendant village treasurer appeal here.
Questions as to the alleged defects in the assessing •procedures, as charged by plaintiffs, which might *10 lead to relief greater than that granted plaintiffs ;by the trial court such as holding the entire assessment void altogether, we need not consider inasmuch as plaintiffs have not cross-appealed and we are in agreement with the trial court’s conclusion concern^ ing what he and we deem a question controlling of the result which that court reached, requiring our affirmance of the decree. That question: May the defendant village amend PA 1895, No 3, which is its charter, to eliminate therefrom the mentioned limitations? We agree with the trial court’s answer in the negative;
There is apparent agreement between the parties that it would not have been competent for the village to make such amendments to its charter, Act No 3, prior tо adoption by the people of Michigan of the ' Constitution of 1908 and particularly article 8, § § 20, 21, thereof providing for enactment by the legislature of a general law for incorporation of villages and the power of village electors to adopt and amend its charter or prior to the legislature’s heеding of that constitutional mandate in the enactment of the so-called home-rule act for villages, PA 1909, No 278 (CL 1948, § 78.1 et seq., as amended [Stat Ann 1961 Rev §5.1511 et seq.]). Has that village disability been removed by adoption of these sections of the Constitution of 1908 and the mentioned legislative enactment ?
The Michigan Constitution of 1908, art 8, §§ 20, 21, read as follows:
“Sec. 20. 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.
“Sec. 21. Under such general laws, the electors of eаch city, and village shall have power and author *11 ity 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.”
PA 1909, No 278, § 1, reads as follows:
“All villages within the State of Michigan, heretofore incorporated by any general or special act of the legislature, shall continue their corporate character as such villages, and any and all general and speсial charter provisions for the government of such villages shall continue in force until superseded, amended or repealed in accordance with the provisions of this act. All villages that now are incorporated or hereafter may be incorporated under the provisions of this act shall be subject tо all general laws which have been or may hereafter be passed. They shall have a seal and may sue and be sued.” CL 1948, § 78.1 (Stat Ann 1961 Rev § 5.1511).
Section 17 of the act reads, in part:
“Any amendment to any existing charter, whether passed pursuant to the provisions of this act or heretofore granted or passed by the State legislature, for the government of a village, may be submitted to the electors by a 2/3 vote of the legislative body of the village, or may be petitioned for by not less than 20% of the number of electors voting for president at the last preceding election, which petition shall be verified by the oath of the party or parties securing the same and filed with the village cleric. Every such amendment shall be submitted to the electors at the next general or special election.” CL 1948, § 78.17 (Stat Ann 1961 Rev § 5.1527).
Section 28, which was added by PA 1913, No 95, reads:
“It is hereby intended by this act to re-enact sections 17, 18, 19 and 20, as above amended, pursuant *12 to the adoption of the amendment to section 21 of article 8 of the State Constitution by vote of the electors оn November fifth, 1912, so that villages-under existing charters heretofore granted by the legislature shall have the same right and power to amend such charters as villages that have adopted complete charter revisions under the act herebv amended.” CL 1948, § 78.28 (Stat Ann 1961 Rev § 5.1538). ■
Defendants’ reliance is on these constitutional and statutоry provisions for authority to make the attempted amendments to its general village charter.
Conceding that there is no case directly in point, defendants urge as analogous,
Utica State Savings Bank
v.
Village of Oak
Park,
Defendants also cite several othеr cases upholding “the right of village electors, under the mentioned •constitutional provisions and village home-rule act, to make certain amendments to village charters. Of this there can be no doubt. Some of the cases so cited are:
Gallup
v.
City of Saginaw,
It will be noted that the Constitution, art 8, § 20, in providing for legislative enactment of a village home-rule act, provides that such act, “shall limit their ratе of taxation for municipal purposes, and restrict their powers of borrowing money and contracting debts”. The statutory limitations here complained of do exactly that. Although their enactment antedates the mentioned constitutional requirement, by leaving them in effect in the 1895 act while not expressly incorporаting them or comparable provisions in the 1909 home-rule act, the legislature must be deemed to have intended, by those means, to give heed to the constitutional mandate.
The nub of the dispute between parties comes down to this, then, whether the Act No 3 limitations and attempted charter amendments with respect thereto, relate to matters of strictly municipal concerns as to which certain powers reside in the electors to govern by charter provision and amendment, or are of State-wide interest subject to general laws of the State, and, specifically, whether the Act No 3 limitations are general laws of the State to which village charters and amendments are subject.
It is not decisive of that question to answer that the construction and maintenance of a sewer in a village are matters of purely local concern or, on the contrary, pertain to public health and safety and are, therefore, of general, State-wide concern. The question is not as to power to lay the sewer, but, *15 rather, the exercise of taxing powers for the purpose of paying for the sewer.
The amount of special assessment tax which a village may levy on private property, its relation to the total value of such property, and thе extent and degree that such assessment may approximate confiscation, as charged in this case, involve and affect the constitutional rights of property owners. They are matters of general concern to the people of this State. The people recognized this in adopting Michigan Constitution of 1908, art 8, § 2Ó, in providing that the legislature, in enacting home-rule acts, should limit city and village powers of taxation. It was equally recognized hy the legislature in enacting the limitations here sought to be avoided by defendants. We think the limitations are general laws of this State of the character contemplated by article 8, § 21, to which it provides that village laws shall be subject. We see no distinction, in this respect, between villages incorporated under the 1895 act or those incorporated under or which have revised their charters to come under the provisions of the village home-rule act of 1909.
In this connection, attention should be directed to cases cited by plaintiffs, such as:
City of Kalamazoo
v.
Titus,
“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 reаd into plaintiff’s charter, and controls the instant case notwithstanding the 1.8% tax limitation in the charter.”;-
City of Grand Haven
v.
Grocer’s Cooperative Dairy Co.,
Affirmed. No costs, a public question being involved.