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OPINIONS OF THE ATTO RNE Y GENER AL
ELECTIO NS:
MUNI CI PALITI ES: VILLAGES:
Vote required for am endment s to home ru le vill age chart er
A vill age es ta blis hed un der th e Home Rule Village Act ma y not enforce a chart er requirement that proposed chart er am endment s be app roved by a two-th irds vote of electors where th e Legisl atur e ha s required only a majority vote for such am endment s.
Opi nion No. 7081 April 17, 2001 Honora ble Gar y C. Peters
Stat e Senat or
The Capitol Lan sing, MI
You ha ve asked if a vill age es ta blis hed un der th e Home Rule Village Act ma y enforce a chart er requirement that proposed chart er am endment s be app roved by a two-th irds vote of electors where th e Legisl atur e ha s required only a majority vote for such am endment s.
The Home Rule Village Act, 1909 PA 278 , MCL 78.1 et seq; MSA 5.1511 et seq, provides for th e incor porat ion of vill ages an d for revisi ng an d am ending th eir chart ers. The law is sett led that "every mun icipal chart er is subject to th e Constitut ion an d genera l laws of th is Stat e." City of Hazel Par k v Mun icipal Finance Comm, 317 Mich 582 , 599; 27 NW2 d 106 (1947 ). Moreover, section 27 of th e Home Rule Village Act provides that "[n]o provision of an y vill age chart er sha ll conflict with . . . an y genera l law of th e stat e . . . ." When th ere is a conflict betwee n a stat e statut e an d a city chart er provision with regar d to th e vote required to app rove th e iss uan ce of bonds, th e stat e statut e prevails. City of Lansing v Bd of Canvassers, 380 Mich 496 , 506-507 , 510-511; 157 NW2 d 264 (1968 ); OAG, 1921 -1922 , p
138 (May 19, 1921 ). Thu s, we mu st exam ine wheth er a vill age chart er requirement that its
am endment s be approved by more than a ma jority of th e electors voting on th e am endment con flict s with th e Home Rule Village Act .
With regar d to adopting chart ers an d chart er am endment s, section 26(1)(d) of th e Home Rule Village Act provides as follows :
(1) A village sha ll not do an y of th e following:
* * *
(d) Adopt a chart er or am endment to a chart er, un less appr oved by a m ajority of the electors voting on th e chart er or am endment at a genera l or spe cial election. [Em pha sis added .]
No report ed Michigan case addresses wheth er section 26(1)(d) of th e Home Rule Village Act prevent s a village from requiring more than a ma jority vote for approval of chart er am endment s. The Michigan Supreme Court ha s, however, addressed th is question in th e cont ext of virtua lly ident ical lan gua ge in section 5(e) of th e Home Rule City Act, MCL 117 .1 et seq; MSA 5.2071 et seq, dealing with th e approval of city chart ers an d chart er am endment s. Section 5(e) of that act provides , with regar d to approving city chart ers an d am endment s, as follows :
A city does not ha ve power:
* * *
(e) To adopt a chart er or an am endment to th e chart er un less appr oved by a m ajority of the electors voting th ereon . . . . [Em pha sis added .]
In Wagner v Ypsila nti Villag e Clerk , 302 Mich 636 ; 5 NW2d 513 (1942 ), th e court addressed th e adoption of a statut e by th e voters of a home ru le city. By statut e, th e mann er of adoption by a city was that "provided by law for am ending chart ers." Id ., at p 640 . By resolut ion, th e city coun cil determ ined that a thr ee-fifth s vote was needed for adoption of th e statut e. Alth ough a ma jority of th e voters voted to adopt th e statut e, adoption was not approved by th e thr ee-fifth s mar gin required by th e city coun cil. On that basis, th e city coun cil con cluded that th e stat e statut e ha d not been adopted. The court foun d that where th e Legisl atur e ha s required a ma jority vote for chart er am endment s, a city lacks auth ority to impose a more str ingent requirement . The court grant ed a writ of man damu s com pelling th e city to com ply with th e Home Rule City Act becau se city voters ha d lawfully adopted th e statut e by th e simple ma jority vote required for adopting chart er am endment s. Finding that th e city's requirement for a super ma jority vote was "mere sur plusage," th e court ru led as follows :
Chart er am endment s required only a simple ma jority for adoption. If Act No. 345 , supra , is to be adopted in th e sam e mann er as a chart er am endment , th en it needs no more than a simple ma jority for passage. [Id ., at pp 638 , 640 .]
Wagner, supra , holds that th e Home Rule City Act provision "un less approved by a m ajority of th e electors" requires only a ma jority vote to approve a city chart er am endment . In sett ing forth th e approval pr ocess for villa ge chart er am endment s, section 26(1)(d) of th e Home Rule Village Act uses th e sam e phra se, "un less approved by a ma jority of th e electors." The Legisl atur e passed th ese two acts back to back in 1909 . Given th e ident ical phra ses in th e two statut es, th ere is no reason to believe that th e Legisl atur e was imposing a ma jority vote requirement for th e approval of city chart er am endment s while only esta blishing a minimum vote requirement for th e approval of villa ge chart er am endment s. The court 's int erpretat ion of th e Home Rule City Act regar ding approval of city chart er am endment s is persua sive in int erpreting ident ical lan gua ge in th e Home Rule Village Act regar ding approval of village chart er am endment s. It mu st th erefore be concluded that a village esta blished un der th e Home Rule Village Act ma y not require that proposed chart er am endment s be approved by a two-th irds vote of th e voters voting on th e am endment .1 The Legisl atur e is, of cour se, free to am end th e Act to auth orize a vote great er than a ma jority vote for adopting village chart er am endment s.
My sta ff is advised that at least two Michigan home ru le villages ha ve chart er provisions requiring voter approval of chart er am endment s by a two-th irds vote of th e electors voting on th e am endment . In th ese two villages, a num ber of proposed chart er am endment s ha ve been approved by a ma jority of th e electors but were determ ined to ha ve failed becau se th ey were not approved by two-th irds vote. Und er MCL 600 .4545 (2); MSA 27A.4545 (2), an action to cha llenge th e results of a ballot question mu st be brought "with in 30 days after such election." This man dat ory th irt y day t ime period begins to run when th e "election results ar e cert ified by th e applicable boar d of can vasse rs." Wills v Iron Coun ty Bd of Canvassers, 183 Mich App 797 , 804 ; 455 NW2d 405 (1990 ). Thu s, as to an y village election in which th e results were cert ified by th e applicable boar d of can vasse rs more than th irt y days ago, it is t oo lat e to su ccess fully cha llenge th e results.
It is my opinion, th erefor e, th at a village esta blished un der th e Home Rule Village Act ma y not en for ce a chart er requirement that proposed chart er am endment s be approved by a two-th irds vote of electors where th e Legisl atur e ha s required only a ma jority vote for such am endment s.
J ENN IFE R M. GRANH OLM
Att orn ey Genera l
1 This result is consistent with OAG, 1999 -2000 , No 7037 , p 75 (October 19, 1999 ), which concluded that a downt own development auth ority boar d ma y not require that a ll boar d members ha ve an int erest in propert y locat ed in th e downt own development auth ority distr ict where th e contr olling statut e only required that "[n ]ot less than a ma jor ity of th e members [of th e boar d] sha ll be persons ha ving an int erest in propert y locat ed in th e downt own distr ict ."
