Board of Sup'rs of Saginaw County v. Hubinger

• Decision Date: 07 July 1904
• Citation: 137 Mich. 72,100 N.W. 261
• Parties: BOARD OF SUP'RS OF SAGINAW COUNTY v. HUBINGER.
• Court: Michigan Supreme Court

100 N.W. 261

137 Mich. 72

BOARD OF SUP'RS OF SAGINAW COUNTY v. HUBINGER.

Supreme Court of Michigan

July 7, 1904

Certiorari to Circuit Court, Saginaw County; Byron A. Snow, Judge.

Application for mandamus by the board of supervisors of Saginaw county against John G. Hubinger, as supervisor of the township of Frankenmuth. The writ was refused by the circuit court, and relator brings certiorari. Reversed.

John F O'Keefe (James H. Davitt, of counsel), for relator.

Ferdinand Brucker and Fred L. Travers, for respondent.

MOORE C.J.

Application was made in the court below for mandamus to compel the respondent, John G. Hubinger, as supervisor of the township of Frankenmuth, in Saginaw county, to spread upon the rolls of his township certain county road taxes, as ordered by the board of supervisors under the authority of Act No. 419 p. 221, of the Local Acts of 1899, as amended by Act No. 335 p. 114, of the Local Acts of 1901. The circuit judge declined to issue the writ of mandamus. This is certiorari to review his action.

It is the claim of the respondent that it had a township road system, making Act No. 419, p. 221, Loc. Acts 1899, as amended by Act No. 335, p. 114, Loc. Acts 1901, inapplicable to it. Act No. 230, p. 522, Sess. Laws 1895, has the following provision: Section 26 of this amendment provides 'that any township in any county in the state, except Marquette,' etc., 'where the board of supervisors refuse to submit the question of adopting the county road system, or where the question has been submitted and it has failed to carry, may submit the question of a township system of roads in the same manner and by the same proceedings as is described for the county road system, by substituting the words township board for board of supervisors, and township clerk for county clerk, and township roads for county roads.' Section 26 also provides 'that the township board of any township adopting such road system shall, by resolution to be entered of record, designate the roads and bridges within such township to be built or mintained under such road system, and shall determine the amount of tax to be raised in such township each year for that purpose.' Section 27 provides 'that any township that shall adopt the provisions of the act, and shall raise money and build roads in good faith, shall not, without their consent by a two-thirds vote, be liable to any tax for a county road system, should the county in which said township is situated afterwards adopt the same.' It is claimed by respondent that its system of roads is governed by these provisions, and that these provisions are not repealed by the local act of 1899. It is conceded they are not repealed in direct terms, and it is also conceded repeals by implication are not favored, but it is insisted the provisions of the local act are inconsistent with the provisions of the earlier act, and thereby repeal it. We have already quoted from the earlier act, which the township claims should govern its highway system. The local act and its amendments already mentioned relate to Saginaw county alone. They are too long to insert here, but a reference to section 24, Act No. 335, p. 115, Loc. Acts 1901, and sections 25, 26, 27, and 28 of Act No. 419, pp. 229, 230, Sess. Laws 1899, will show provisions in relation to the control of the roads in the county, their improvement, and the raising of the funds to pay therefor, that are inconsistent with the idea that the township of Frankenmuth may control its own roads. There is no provision in the local acts that Frankenmuth shall be exempt from its provisions. We think it follows that the provisions of the entire act are repealed by implication. See 23 Am. & Eng. Ency. of Law (1st Ed.) 479; Morrison v. Kent County Treasurer (Mich.) 97 N.W. 45; People v. Bussell, 59 Mich. 104, 26 N.W. 306; People v. Furman, 85 Mich. 110, 48 N.W. 169; Attorney General v. Parsell, 100 Mich. 170, 58 N.W. 839; Porter v. Edwards, 114 Mich. 640, 72 N.W. 614; Graham v. County Clerk, 116 Mich. 571, 74 N.W. 729; Attorney General v. Commissioner of R. R., 117 Mich. 477, 76 N.W. 69.

It is claimed that, as the township acted under the legislation of 1895, it constituted a contract, which could not by subsequent legislation be impaired without doing violence to section 10, art. 1, of the federal Constitution, and section 43, art. 4, of the state Constitution. The presumption is against making a statute irrepealable. Section 51, Black on Inter. of Laws, p. 109, and authorities cited; Cooley, Const. (6th Ed.) p. 146. We have examined the authorities cited by counsel for respondent in support of their proposition, but none of them relate to legislative action of the character involved here. In the sixth edition of Cooley on Constitutional Limitations, where there is a discussion relating to laws which impair the obligation of contracts, it is said: 'But can these laws be regarded as contracts between the state and the officers and corporations who are or the citizens of the state who expect to be, benefited by their passage, so as to preclude their being repealed? On these points it would seem that there could be no difficulty. When the state employs officers or creates municipal corporations as the mere agencies of government, it must have the power to discontinue the agency whenever it comes to be regarded as no longer important. The framers of the Constitution did not intend to restrain the states in the regulation of their civil institutions adopted for internal government. * * * And although municipal corporations, as respects the property which they hold, control, and manage, for the benefit of their citizens, are governed by the same rules and subject to the same liabilities as individuals, yet this property, so far as it has been derived from the state, or obtained by the exercise of the ordinary powers of government, must be held subject to control by the state, but under the restriction only that it is not to be appropriated to uses foreign to those for which it has been acquired. And the franchises conferred upon such a corporation for the benefit of its citizens must be liable to be resumed at any time by that authority which may mold the corporate powers at its will, or even revoke them altogether. The greater power will comprehend the less.' See, also, the long note at the bottom of page 333 for a...