Covert Township Assessor v. State Tax Commission , 53 Mich. App. 300 ( 1974 )

53 Mich. App. 300 (1974) 218 N.W.2d 807

COVERT TOWNSHIP ASSESSOR
v.
STATE TAX COMMISSION

Docket No. 15199.

Michigan Court of Appeals.

Decided May 2, 1974.

Bauckham, Reed, Lang & Schaefer, for plaintiff.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Richard R. Roesch, Assistant Attorney General, for defendant State Tax Commission.

Dykema, Gossett, Spencer, Goodnow & Trigg (by Robert L. Nelson and James L. Parris) (Robert J. Byers, of counsel), for defendant Consumers Power Company.

Before: J.H. GILLIS, P.J., and HOLBROOK and DENEWETH,^[*] JJ.

PER CURIAM.

The Tax Exemption of Air Pollution Control Facilities Act^[1] (hereinafter referred to as the Exemption Act), MCLA 336.1 et seq.; MSA 7.793(1) et seq., provides for property tax exemption for those facilities determined by the State Tax Commission (hereinafter referred to as the STC), in conjunction with the Director of Public Health, to be operated primarily for the control of air pollution. In May, 1968, Consumers Power Company applied for an exemption for the nuclear reactor containment building at its Palisades Plant, located in Covert Township, Van Buren County. The STC denied Consumers' original petition but approved an amended version in January 1972. This Court granted plaintiff's application for leave to appeal on March 12, 1973. September 21, 1973 this Court ordered the parties to file supplemental briefs on the question of whether appellate jurisdiction lies with the Court of Appeals or with the circuit court. It is that question we decide here.

Section 7 of the Exemption Act, MCLA 336.7; MSA 7.793(7), provides:

"A party aggrieved by the issuance or refusal to issue, revocation or modification of a pollution control tax exemption certificate may appeal from the finding and order of the state tax commission in the manner and form and within the time provided by Act No. 197 of the Public Acts of 1952, as amended."

Act No. 197 of the Public Acts of 1952 is the old Administrative Procedures Act (hereinafter referred to as the APA). The APA was completely revised in 1969.^[2] Section 112 of the revised APA provides:

"A reference in any other law to * * * Act No. 197 of the Public Acts of 1952, as amended, is deemed to be a reference to this act." MCLA 24.312; MSA 3.560(212).

Thus, if we follow § 7, appeals from STC decisions under the Exemption Act are governed by the APA. Under the APA, appeal of a final agency decision is to the circuit court.^[3] Up to this point the statutory scheme appears clear and straightforward.

The problem arises when we consider 1969 PA 270, an amendment to § 152 of the General Property Tax Law:^[4]

"In all of its proceedings the contested case provisions of Act No. 197 of the Public Acts of 1952 as amended, shall not be applicable to the state tax commission, and in its determination, article VI, section 28, of the constitution of the state of Michigan shall apply."

This Court has construed this amendment to mean that jurisdiction to review STC decisions is directly in the Court of Appeals instead of the circuit courts.

"Clearly then, the State Tax Commission is exempt from the provisions in the Administrative Procedures Act dealing with contested cases. It therefore follows that the provisions for judicial review of contested cases are equally inapplicable.

"It is our opinion that the Legislature intended to eliminate judicial review of actions taken by the State Tax Commission at the circuit court level." Republic Development Corp v State Tax Commission, 38 Mich App 166, 168, 169; 195 NW2d 923, 924 (1972); see Fisher-New Center Co v Detroit, 38 Mich App 750; 197 NW2d 272 (1972).

This language is too sweeping. Both Republic Development and Fisher-New Center concerned appeals by taxpayers from unfavorable STC reviews of their property assessments, pursuant to § 152 of the General Property Tax Law. Neither action had anything to do with the Exemption Act, and, therefore, neither decision has any applicability here.

We hold that § 7 — the appeals section — of the Exemption Act has not been repealed by 1969 PA 270. The 1969 Act was incorporated into § 152; it was not enacted as a separate law. Its language cannot be construed to give it extrinsic effect sufficient to impliedly repeal § 7. The presumption is against repeals by implication. Lansing School District v School District No 3, 327 Mich 436, 42 NW2d 132 (1950); Flynn v City of Fraser, 45 Mich App 346; 206 NW2d 448 (1973). In addition, the 1969 Act says article 6, § 28, of the Michigan Constitution — not the APA — shall apply to STC proceedings. Article 6, § 28, provides in pertinent part:

"Property tax valuation or allocation; review. In the absence of fraud, error of law or the adoption of wrong principles, no appeal may be taken to any court from any final agency provided for the administration of property tax laws from any decision relating to valuation or allocation."

This prescribes the standard of appellate review from final agency proceedings relating to property assessment. Its applicability to § 152 STC proceedings is, therefore, clear. It is equally clear that it has no applicability to Exemption Act STC proceedings.

Since § 7 of the Exemption Act has not been repealed, appellate jurisdiction over this matter lies with the circuit court. Nevertheless, all the parties urge us to decide the substantive issues raised in this appeal. They argue that since we have before us a complete record of all proceedings and written correspondence, it would be a waste of time and money to remand this case to circuit court. We disagree. There are many questions which the written record doesn't answer. For example, the Exemption Act requires the Director of Public Health's approval of a facility before the STC can issue a tax exemption certificate. There is no evidence of this approval in the written record.^[5] If there was no such approval, was there oral approval? If not, did Consumers Power know that there had not been approval? If they didn't know, should they have known and would this make a difference in the outcome? These are important questions of fact. Only a trial can provide the answers.

Lastly, we think the failure of the STC to give Covert Township notice of the informal hearing held October 20, 1970, between the Chairman of the STC and Consumers Power, was a denial of Covert Township's right to due process of law. It would appear to this Court that it is incumbent upon the STC to give all interested parties notice of all meetings it may wish to have with any of the parties either formal or informal. To do anything less certainly opens the whole procedure to suspicion, innuendo, and attack. This principle is so elementary as to be worthy of no further discussion.

We remand to the 36th judicial circuit. No costs, a public question being involved.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] 1965 PA 250.

[2] 1969 PA 306; MCLA 24.201 et seq.; MSA 3.560(101) et seq.

[3] MCLA 24.301-24.306; MSA 3.560(201)-3.560(206).

[4] MCLA 211.152; MSA 7.210. This section gives taxpayers the right to have their real property assessments reviewed by the STC.

[5] In the written record there is a memorandum from the Division of Air Pollution Control of the Department of Public Health to the State Tax Commission stating that in its opinion Consumer's containment building is an air pollution control facility. In our view, this does not constitute approval of the Director of Public Health. See Cooper, State Administrative Law, pp 92-94; Davis, Administrative Law Text, § 9.06, pp 175-176; School District No 3 of Town of Adams v Callahan, 237 Wis 560; 297 NW 407 (1941); State v City of Seattle, 61 Wash 2d 658; 379 P2d 925 (1963).