330 Mich. 239 | Mich. | 1951
Plaintiff seeks mandamus in this Court to compel defendants, until such time as the final 1950 census figures are promulgated by the director of census, to make the State’s 1950 and later distributions of sales-tax and intangible s-tax collections to local governmental units on the basis of the 1940 Federal decennial census, in accord, as plaintiff contends, with the pertinent provisions of the Constitution and laws of the State, which read as follows:
“There shall be returned to local governmental units and school districts by the method hereinafter set forth, one cent of a State sales tax levy on each dollar of sales of tangible personal property on the present statutory base (not rate). The State tax collecting authority shall divide the entire said sum without deduction and remit fifty per cent thereof among the school districts on the basis of the school census on which primary school money is distributed for that fiscal year. The balance of fifty per cent, shall be returned to counties as a whole on a population basis and payment shall be made to the county treasurer who shall remit to the respective cities, townships and villages within the ■county on a per capita basis.- Population computation shall be based-on the last State-wide Federal census for purposes of division among counties and upon the same basis or upon any special Federal county-wide census, whichever is later, for intra-county division purposes. All remittances provided shall be made on a quarterly basis.” (Italics supplied.) Const 1908, art 10, § 23.
“During the month of July of each year the auditor general shall distribute to the several county treasurers the net revenues received under this act [intangibles tax act] during the previous fiscal year, less 3 per cent, of said revenues, which amount shall be credited to th,e general fund of the State as repayment of the cost of collection of this tax. The*243 distribution to the county treasurers shall be upon a per capita basis according to the latest or each succeeding Federal decennial census. The county treasurer shall distribute the amount received by him among the cities, townships and villages within his county on a per capita basis according to the■ latest or each succeeding Federal decennial census or according to any special Federal county-wide census, whichever is later: * * * The moneys so returned to the cities, townships and villages shall be credited to the general fund and shall he available for general fund purposes.” (Italics supplied.) Part of PA 1949, No 308 (CL 1948, § 205.136, as amended [Stat Ann 1949 Cum Supp § 7.556(6)]).
Defendants insist that the 1950 census figures must he used. At issue is the meaning, in particular, of those portions of the quoted provisions set forth above in italics. The parties, together with respective amici curiae supporting each, are agreed that the primary question is: “At what date can it be said there is a new Federal decennial census?” Plaintiff answers, at the completion of the census, when its final figures and results are officially promulgated by the director of the census. (As to the 1950 census this has not yet occurred.) At the outset of the census, say defendants, on the date as of which the enumeration is taken. (April 1, 1950, for census of that year.) In the briefs on both sides there appears at times, however, a wavering, on the basis of holdings in other jurisdictions, in favor of some intermediate date representing the time of release by census officials of preliminary bulletins or reports of census results, which are subject to subsequent correction and change. The question is novel in this State.
Plaintiff admits that defendants’ position is supported by Underwood v. Hickman, 162 Tenn 689 (39 SW2d 1034) and City of Twin Falls, ex rel. Cannon,
Defendants appear to concede that plaintiff’s position is supported by the 2 cases of Lewis v. Lackawanna County, 200 Pa 590 (50 A 162), in which an elected official was denied salary increase because the date of legal ascertainment of census results, showing a population warranting such increase, did not occur until after the official’s election; (Involving the same question and with similar holding is Commonwealth, ex rel. Woodring, v. Walter, 274 Pa 553 [118 A 510]. In neither is it held that date of legal ascertainment is necessarily that of final promulgation.) and Varble v. Whitecotton, 354 Mo 570 (190 SW2d 244), in which it was held that a conviction by a jury selected in a manner .provided by statute for counties with less than 400,000 population according to the last preceding national census was not invalid, despite the fact that the jury had been selected after the date of enumeration in a census, the results of which, when officially promulgated, disclosed a population of over 400,000. The court held that the statutory provision applicable to the county for the selecting of juries could not change until the official record of the new census was promulgated. To these cases supporting plaintiff perhaps should be added Childers v. Duvall, 69 Ark 336 (63 SW 802), in which it was held that the appointment of a county clerk, permissible under State constitution when the county reached a certain population as shown by the last Federal census, could be made only after the results of the census, showing such appointment to be warranted, were officially announced by the director of census.
To summarize, it appears that as to the effective date .of salary increases or decreases which are dependent upon a population status, 2 of the above cases hold it to be the enumeration date, 2 the date of a preliminary bulletin, and 2 the date of legal ascertainment of census results; that in 1 case the drawing of a jury in the manner provided by statute applicable to a smaller population was upheld on the theory that the new census, showing a changed population status, was not to be considered until
It is not surprising that in the cited cases the courts, in determining the jurisdiction of courts, or the validity of the drawing of juries or of the appointment or election of public officials, have rejected the date of enumeration as the time as of which the statutory effects of a changed population status shall become operative and, instead, have accepted for that purpose some subsequent date when census results were published or became known, inasmuch as to do otherwise would result in the creation of a period of chaos and confusion, between those 2 dates, during which the jurisdiction of courts and the validity of proceedings and of official acts would be in doubt, incapable of immediate ascertainment. Such result, destructive of the orderly processes and functioning of government, could not have been the legislative intent in the enactment of the statutes under consideration in those cases. (Whether, in such cases, the change of status resulting from reaching a certain population level were to be held in effect as of the date of a preliminary bulletin as dis
“Had these cases involved the jurisdiction of courts, the selecting of jurors, the conducting of elections, the powers of cities, townships or villages, penal statutes, annexation proceedings * * . * we doubt very much that these courts would have been ■ able to adopt the theory which would relate back to the time of enumeration, the powers, duties or liabilities involved in such situations.”
Despite a lack of uniformity in the decisions,, the observation may be drawn from the cited cases that, when ascertainable, legislative intent is the guiding-star. Accordingly, we' are not impressed that the solution is to be found in the instant case, as indicated in the briefs, by the mere process of settling upon some definition, of general or universal application, of the term “last Federal census,” which definition would be appropriate and controlling, as plaintiff suggests, in the construction of each of the several statutes in this State making some right,
Had the fact of population alone been intended to be constantly controlling, there would have been no occasion for reference to the Federal decennial census. Had such been the intent, an enumeration for purposes of intangible s-tax distribution would have been necessary annually, and quarterly for the return of sales-tax moneys, both State-wide and for each county, city, township and village in the State. Failure to provide for such census by the State and reference to the last Federal census rule out any such intent.
It is evident that use of Federal census figures was prescribed for the purpose of avoiding the duplication and multiplication of expense and effort which would be involved in such enumerations by State agencies. On the other hand, the people and the legislature were not content to let the matter rest with some out-of-date Federal census. The provisions for the use not only of the latest Federal State-wide
Should the 1950 census figures apply to distributions made on or after April 1, 1950, of tax moneys collected before that date? The clear import of the constitutional and statutory language under consideration is that the population basis or per capita basis obtaining at the time of distribution shall apply thereto, without regard to what it may have been at the time of collection. This squares with the purpose of making .moneys available to local units commensurate with contemporary needs. Plaintiff
Plaintiff contends that sales-tax moneys collected ■by the State in the first quarter of 1950 were distributable before April 1, 1950, and that, accordingly, returns' thereof should be made on the basis of 1940 census figures. In this plaintiff errs. The first quarter of 1950 and collections made during that quarter continued to the end of March 31st. Remittance to the local units, required by the constitutional amendment to be made on a quarterly basis, could not be made until the quarter had ended, viz., April 1st.
Plaintiff is a proper party plaintiff despite the fact that the State’s distribution is required to be made to the county treasurers. The counties have no beneficial interest in the distribution, their treasurers serving merely as conduits between the State1 and the local units. Plaintiff has a direct financial, interest in the determination of the question of what; proportionate amount of the distribution made by the State shall be apportioned to Wayne county, as well as how the distribution of that amount shall subsequently be made by the Wayne county treasurer to the several cities, townships and villages within that county. It is a real party in interest.
Writ denied. No costs, a public question being involved.