Benjamin v. City of Huntington Woods

• Decision Date: 04 September 1957
• Docket Number: No. 42,42
• Citation: 349 Mich. 545,84 N.W.2d 789
• Parties: Harry S. BENJAMIN, Jr., and Mary D. Benjamin, Plaintiffs and Appellees, v. CITY OF HUNTINGTON WOODS, a Municipal Corporation, Defendant and Appellee, and City of Royal Oak, a Municipal Corporation, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 789

84 N.W.2d 789

349 Mich. 545

Harry S. BENJAMIN, Jr., and Mary D. Benjamin, Plaintiffs and Appellees, v. CITY OF HUNTINGTON WOODS, a Municipal Corporation, Defendant and Appellee and City of Royal Oak, a Municipal Corporation, Defendant and Appellant.

No. 42.

Supreme Court of Michigan.

Sept. 4, 1957.

Harcourt S. Patterson, Pontiac, for plaintiffs and appellees Harry S. Benjamin, Jr., and Mary D. Benjamin.

James S. Thorburn, City Atty., Royal Oak, for defendant and appellee, City of Huntington Woods.

Allan G. Hertler, Royal Oak, for defendant and appellant City of Royal oak.

Before the Entire Bench.

EDWARDS, Justice.

There may be more to this litigation than meets the eye. For here we have a suit in equity which on its face recites little if any damage to the two individuals concerned. And it comes to us on appeal from a circuit judge's decree in favor of those individuals but without any indication as to the basis for his holding. It appears that plaintiffs and appellees, Mr. and Mrs. Benjamin, earnestly desire to maintain taxpayer status in both Huntington Woods and Royal Oak. Just why does not appear.

Under these circumstances we must deal with the rather technical questions which are presented. The first attacks an error in two resolutions one of the city council of Huntington Woods and the other of the city council of Royal Oak. The second requires a construction of the statute provision pertaining to annexation of fractional lots formed by the boundary line of two adjacent cities.

Mr. and Mrs. Benjamin own a lot which was crossed by the Huntington Woods--Royal Oak boundary line. What the resolutions sought to accomplish may be quickly portrayed to the eye by the before and after sketches below:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The Benjamins' lot is No. 150 of the Huntington Woods subdivision and their address is given as 26020 York Road, Huntington Woods. In view of the portrayal of the original boundary line crossing the rearmost portion of the lot in question and in view of the Huntington Woods address, we assume that the Benjamin home was and is located in Huntington Woods. It would seem therefore that what the Benjamins had lost was the privilege (if such it be) of having the fractional rearmost portion of their lot taxed by the city of Royal Oak. The stipulation of facts does recite that by the change the Benjamins lost certain tax-supported services of the city of Royal Oak:

'The plaintiffs, since the adoption of the resolutions set forth in Exhibits 'A' and 'B' and the carrying out of such resolutions, are no longer entitled to police and fire protection, library facilities, recreation facilities, garbage and rubbish collection, and other services afforded to taxpayers within the City of Royal Oak, which services the plaintiffs were entitled to, and had, as taxpayers in the City of Royal Oak, prior to the adoption and carrying out of the resolutions * * *.'

There is however, no allegation, testimony or stipulation that indicates that the same or similar services are not available to the Benjamins from the City of Huntington Woods or that such services are in any wise inferior.

We turn now to the legal issues. The first pertains to plaintiffs' complaint that Exhibits 'A' and 'B' (the resolutions of the two cities purporting to effect the above described boundary change) are ineffective and void because they recite reliance upon P.A.1947, No. 36. Defendant and appellant concedes that this citation was in error but contends that since no recital of the statute was essential that the error was in the area of surplusage and hence not fatal to the effectiveness of the resolution.

We agree. An official resolution otherwise effective to accomplish a lawful purpose is not rendered void by the erroneous citation of the wrong statute when no statute is required to be cited. North Mainland Co. v. Willson, 245 Mich. 537, 222 N.W. 705; Thomson v. City of Dearborn, 348 Mich. 23, 81 N.W.2d 423.

The second issue requires consideration of a recent amendment to the statute pertaining to incorporation of cities and more particularly to sections 6 and 9 thereof which are quoted in full below:

'Sec. 6. Cities may be incorporated or territory detached therefrom or added thereto, or consolidation made of 2 or more cities or villages into 1 city, or of a city and 1 or more villages into 1 city, or of 1 or more cities or villages together with additional territory not included within any incorporated city or village into 1 city, by proceedings originating by petition therefor signed by qualified electors who are free-holders residing within the cities, villages or townships to be affected thereby, to a number not less than 1 per centum of the population of the territory affected thereby according to the last preceding United States census, or according to a census to be taken as hereinafter provided, which number shall be in no case less than 100, and not less than 10 of the signatures to such petition shall be obtained from each city, village or township to be affected by the proposed change: Provided, That in the incorporation of a city from an existing village without change of boundaries the requisite number of signatures may be obtained from throughout the village without regard to the townships in which the signers are residents: Provided further, That as an alternate method in the case of an annexation proceeding in which there are less than 10 persons qualified to sign the petition living in that unincorporated territory of any township or townships proposed to be annexed to a city, that the signatures on the petition of persons, firms, corporations the United States government, or the state or any of its subdivisions who collectively hold record legal title to more than 1/2 of the area of the land exclusive of streets, in the territory to be annexed at the time of filing the petition, will suffice in lieu of obtaining 10 signatures from the township in which such area to be annexed lies: And provided further, That on such petition each signature shall be followed by a description of the land and the area represented thereby and a sworn statement shall also accompany such petition giving the total area of the land, exclusive of streets, lying within the area proposed to be annexed: Provided further, That before any signatures are obtained on a petition as hereinbefore provided, such petition shall have attached to it a map or drawing showing clearly the territory proposed to be incorporated, detached, or added, and each prospective signer shall be shown such map or drawing before signing the petition. Such petition shall be verified by the oath of 1 or more petitioners: Provided, That in proceedings for the incorporation of a new city or the consolidation of 2 or more cities or villages...