Smith v. City Comm'n of City of Grand Rapids

• Decision Date: 01 September 1937
• Docket Number: No. 45.,45.
• Parties: SMITH et al. v. CITY COMMISSION OF CITY OF GRAND RAPIDS.
• Court: Michigan Supreme Court

281 Mich. 235

274 N.W. 776

SMITH et al.

v.CITY COMMISSION OF CITY OF GRAND RAPIDS.

No. 45.

Supreme Court of Michigan.

Sept. 1, 1937.

Proceeding on the petition of Henry Smith and others to the City Commission of the City of Grand Rapids for the refund of a special assessment levied against their property to defray the cost of construction of a state trunk line highway. To review an order of the superior court refusing the plaintiffs relief, on appeal from the action of the City Commission in refusing to allow such refund, the plaintiffs bring an appeal in the nature of certiorari.

Judgment of the Superior Court reversed and case remanded for further proceedings.

Appeal from Superior Court of Grand Rapids; Thaddeus B. Taylor, judge.

Argued before the Entire Bench.

Fred P. Geib, of Grand Rapids, for Henry Smith.

Cornelius Hoffius, of Grand Rapids, for Thomas E. Graham.

Linsey, Shivel, Phelps & VanderWal, of Grand Rapids, for Annie Graham.

Ganson Taggart, of Grand Rapids, for City Commission.

POTTER, Justice.

Plaintiffs, owners of land in the westerly part of the city of Grand Rapids, claiming they were entitled to refund of a special assessment levied against their property to defray the cost and expense of the construction of state trunk line highway M-50, which passed by or through their premises, petitioned the City Commission of Grand Rapids therefor. The City Commission refused to allow such refund to plaintiffs, who appealed from the action of the City Commission to the superior court of Grand Rapids, which court refused plaintiffs relief. ‘No appeal shall be allowed from the decision of said court.’ Comp.Laws 1929, § 3594, subd. d(5)(d), as last amended by Act No. 8, Pub. Acts 1934 (1st Ex. Sess.). Plaintiffs bring certiorari from the order of the superior court of Grand Rapids to this court.

Act No. 17, § 1, Pub. Acts 1925 (Comp. Laws 1929, § 4425), provides: ‘On and after the first [1st] day of January, A. D., nineteen hundred twenty-six, [1926] the cost of constructing, improving and maintaining trunk line highways shall be met entirely by the state.’

‘The important change affected by the 1925 act was that the entire cost of constructing, improving, and maintaining trunk line highways was placed upon the state, thereby relieving the counties and townships of the portion of such cost imposed upon them by the 1919 act.’ Johnson v. Board of County Com'rs, 253 Mich. 465, 235 N.W. 221, 222.

Plaintiffs base their claim upon Comp.Laws 1929, § 3594, subd. d(5)(d), as last amended by Act No. 8, Pub. Acts 1934 (1st Ex. Sess.), and Comp.Laws 1929, § 4651, subd. 5(d), as last amended by Act No. 7, Pub.Acts 1934 (1st Ex. Sess.). The language of these sections is identical, section 3594 relating to the distribution of funds derived from the gasoline tax so-called, and section 4651 relating to the distribution of the moneys derived from the weight tax so-called.

The determination of the question involved depends upon the construction of the statutes above quoted. There is no question that plaintiffs' property abuts state trunk line highway M-50, in the city of Grand Rapids, that such property was assessed for the construction of such highway. The only question is whether plaintiffs are entitled to a refund under these provisions of the statutes. The question involved has not been directly passed upon by this court, though in Grand Rapids v. Iosco Land Co., 273 Mich. 613, 263 N.W. 753, 754, 105 A.L.R. 695, it is said: ‘The obvious purpose of Act No. 107, supra, was to make it possible to secure relief to taxpayers through the use of weight and gasoline tax collections for the payment or refund of special assessments levied for the construction of highways.’

It is true in that case the court said, ‘The statute established the right to the refund in the grantor.’ But the question in controversy there was between a grantor and grantee as to the right to a refund which had been made by the city.

The gist of appellants' contention is that the statute is to be construed as mandatory upon the City Commission instead of directory, and the essence of defendant's contention is that the statute is to be construed as vesting discretionary power in the City Commission.

The proper construction of a statute is for the court. Albert v. Gibson, 141 Mich. 698, 105 N.W. 19. The object of statutory construction is to discover the legislative intent. People v. Marxhausen, 204 Mich. 559, 171 N.W. 557, 3 A.L.R. 1505;Miles v. Fortney, 223 Mich. 552, 194 N.W. 605;Gwitt v. Foss, 230 Mich. 8, 203 N.W. 151;People v. Gould, 237 Mich. 156, 211 N.W. 346. In construing a statute, it is the duty of the court to construe it as it is, Ellis v. Boer, 150 Mich. 452, 114 N.W. 239, and to attempt to carry out the intention of the Legislature, Attorney General v. Joyce, 233 Mich. 619, 207 N.W. 863. Primarily, the legislative intention is to be ascertained from the language of the act itself. Bidwell v. Whitaker, 1 Mich. 469;Ellis v. Boer, 150 Mich. 452, 114 N.W. 239. When the language of a statute is plain and unambiguous, there is no room for construction, Luyk v. Hertel, 242 Mich. 445, 219 N.W. 721;Detroit v. Township of Bedford, 253 Mich. 453, 235 N.W. 217; but the statute must be given effect according to its plain meaning. Barstow v. Smith, Walk. Ch. 394; People v. Lowell, 250 Mich. 349, 230 N.W. 202;MacQueen v. Port Huron City Comm., 194 Mich. 328, 160 N.W. 627;Crary v. Marquette Circuit Judge, 197 Mich. 452, 163 N.W. 905,166 N.W. 954. Where, however, the language of a statute is of doubtful meaning, the court should give it a reasonable construction looking to the purpose to be subserved thereby, Attorney General v. Bank of Michigan, Har. 315; Bennett v. Michigan Pulpwood Co., 181 Mich. 33, 147 N.W. 490, and the object sought to be accomplished, In re Estate of Ticknor, 13 Mich. 44, and its occasion and necessity, Bennett v. Michigan Pulpwood Co., 181 Mich. 33, 147 N.W. 490;Sibley v. Smith, 2 Mich. 486, 487. Such construction should be placed upon the statute as to affect its purpose. People v. Stickle, 156 Mich. 557, 121 N.W. 497. The spirit and intention of the statute should prevail over its strict letter. Stambaugh Tp. v. Iron County Treasurer, 153 Mich. 104, 116 N.W. 569. Ordinarily, if a statute is open to construction at all, it will be so construed if possible as to prevent injustice, Attorney General v. Marx, 203 Mich. 331, 168 N.W. 1005, and obviate absurd consequences, Attorney General v. Detroit U. Ry., 210 Mich. 227, 177 N.W. 726, 1023. The whole act is to be construed together, Attorney General v. Bank of Michigan, Har. 315; People v. Detroit, etc., Railway Co., 228 Mich. 596, 200 N.W. 536; and every part of it should be given effect if possible, City of Grand Rapids v. Crocker, 219 Mich. 178, 189 N.W. 221;People v. Burns, 5 Mich. 114;Attorney General v. Detroit & Erin Plank Road Co., 2 Mich. 138, 139. Resort may be had to other statutes relating to the same subject. Miles v. Fortney, 223 Mich. 552, 194 N.W. 605;In re Kreiner, 156 Mich. 296, 120 N.W. 785. It is, of course, the duty of the court to ascertain the purpose of the Legislature, Ray Corporation v. Secretary of State, 241 Mich. 457, 217 N.W. 334;Miles v. Fortney, 223 Mich. 552, 194 N.W. 605; and statutes in pari materia should be construed together, Board of Control of State Prison v. Auditor General, 197 Mich. 377, 163 N.W. 921.

‘Whether a statute is mandatory or directory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form. Accordingly, when a particular provision of a statute relates to some immaterial matter, as to which compliance with the statute is a matter of convenience rather than substance, or where the directions of a statute are given merely with a view to the proper, orderly, and prompt conduct of business, it is generally regarded as directory, unless followed by words of absolute prohibition; and the same is true where no substantial rights depend on the statute, no injury can result from ignoring it, and the purpose of the legislature can be accomplished in a manner other than that prescribed, with substantially the same results. But a provision relating to the essence of the thing to be done, that is, to matters of substance, is mandatory, and when a fair interpretation of a statute, which directs acts or proceedings to be done in a certain way, shows that the legislature intended a compliance with such provision to be essential to the validity of the act or proceeding, or when some antecedent and prerequisite conditions must exist prior to the exercise of power, or must be performed before certain other powers can be exercised, then the statute must be regarded as mandatory.’ 59 C. J. pp. 1074, 1075.

‘Other statements of the rules for determining the legislative intent are that statutes which affect the public interest or claims de jure of third persons, or promote the ends of justice, or confer a new right, privilege, or immunity, and prescribe the mode for the acquisition, preservation, enforcement, or enjoyment thereof, are mandatory.’ 59 C.J. p. 1075.

‘Statutes which confer upon a public body or officer power to act for the sake of justice, or which clothe a public body or officer with power to perform acts which concern the public interests or the rights of individuals, are generally regarded as mandatory,although the language is permissive merely, since they are construed as imposing duties rather than conferring privileges.’ 59 C.J. pp. 1076, 1077.

‘A mandatory constructon will usually be given to the word ‘may’ where public interests are concerned, and the public or third persons have a claim de jure that the power conferred should be exercised, or whenever something is directed to be done for the sake of justice...