Carpenter v. Board of Sup'rs of Genesee County

• Decision Date: 10 October 1963
• Docket Number: No. 35,35
• Citation: 123 N.W.2d 708,371 Mich. 295
• Parties: Spencer J. CARPENTER and the Township of Flint, Plaintiffs and Appellants, v. BOARD OF SUPERVISORS OF GENESEE COUNTY, Defendant and Appellee, and City of Flint, a Municipal Corporation, Intervenor.
• Court: Michigan Supreme Court

Page 708

123 N.W.2d 708

371 Mich. 295

Spencer J. CARPENTER and the Township of Flint, Plaintiffs and Appellants, v. BOARD OF SUPERVISORS OF GENESEE COUNTY, Defendant and Appellee, and City of Flint, a Municipal Corporation, Intervenor.

No. 35.

Supreme Court of Michigan.

Oct. 10, 1963.

Morrissey, Bove & Yeotis, by William H. Morrissey, Flint, George R. Sidwell, Lansing, of counsel, for plaintiffs and appellants.

John G. David, Corp. Counsel, Flint, for defendant and appellee.

Edward P. Joseph, Wade D. Withey, Richard R. Lovinger, Charles A. Forrest, Jr., Flint, for intervenor.

Before the Entire Bench.

CARR, Chief Justice.

This case involves the interpretation of certain provisions of the city home rule act ¹ of the State. Pursuant to the statute petitions seeking the incorporation as a city of Flint township in Genesee county, for presentation to the board of supervisors and action thereon, were filed with the county clerk of said county on August 15, 1961. Said petitions included 'the entire township of Flint' and the territory embraced therein was described at length by metes and bounds. Attached to said petitions was a map depicting the land to be embraced within the limits of the proposed new city. The board of supervisors was requested to call an election within said territory, pursuant to the statute, in the event that a pending proposition to annex the township to the city, on which an election had been ordered held on September 12, 1961, resulted in the defeat of the proposal. Apparently such was the result of said election, and on September 18th following the county clerk submitted the petitions to the board of supervisors which referred them to its legislative committee for examination and report as to their compliance with statutory requirements.

Prior to any action by the supervisors, other than the reference to the committee, the city commission of the city of Flint adopted a resolution, on September 25, 1961, in accordance with section 9 of the home rule act, annexing approximately 33 acres of city owned land in Flint township, adjacent to the city's boundary, which land, as recited in the resolution, consisted of a park or vacant property owned by the city, and having no residents thereon. The statutory provision authorizing such action, set forth in C.L.S.1956, § 117.9 (Stat.Ann.1961 Cum.Supp. § 5.2088), reads as follows:

'Where the territory proposed to be annexed to any city is adjacent to said city and consists of a park or vacant property located in a township and owned by the city annexing the same, and there is no one residing thereon, such territory may be annexed to said city solely by resolution of the city council of said city * * *.'

At the time of such annexation the board of supervisors had not acted with reference to the approval or disapproval of the petitions filed for the incorporation of Flint township as a city. On December 19, 1961, a resolution was adopted declaring that the petitions did not conform to the statutory requirements and that, in consequence, 'no further proceeding pursuant to said petition shall be had.' Said resolution recited the attachment of 33 acres, included in the description of the proposed new city, to the city of Flint, and gave the situation in such respect as one reason for not approving the incorporation petitions. No proceeding was instituted in court for the purpose of testing the legality of the annexation which the resolution assumed to be effected under the provision of the statute providing therefor. It was further indicated in the resolution that the map accompanying the petitions at the time of action thereon by the supervisors, while purporting to describe the township of Flint, actually included therein territory constituting a part of the city of Flint. Other reasons for rejecting the petitions were also set forth but require no discussion herein.

It is apparent that the board of supervisors in adopting the resolution above referred to relied on the language of section 8 of the home rule act (C.L.S.1956, § 117.8 [Stat.Ann.1961 Com.Supp. § 5.2087]), which section reads in part as follows:

'Said petition shall be addressed to the board of supervisors of the county in which the territory to be affected by such proposed incorporation, consolidation or change of boundaries is located, and shall be filed with the clerk of said board not less than 30 days before the convening of such board in regular session, or in any special session called for the purpose of considering said petition, and if, before final action thereon, it shall appear to said board or a majority thereof that said petition or the signing thereof does not conform to this act, or contains incorrect statements, no further proceedings pursuant to said petition shall be had * * *.' (Emphasis supplied).

Following the adoption of the resolution by the board of supervisors on December 19, 1961, a petition for a writ of mandamus to compel the board to submit the question of incorporation of Flint township as a city was filed in the circuit court of Genesee county. In substance it was alleged therein that the petitions complied in all respects with statutory requirements and that the action of the board was improper, arbitrary, and contrary to its legal duty. It was further asked that the court determine that the annexation of 33 acres of land from the township to the city of Flint was a nullity. It was, and is, the position of the plaintiffs that the city of Flint was inhibited from exercising statutory authority to annex the property in question until 'all action on the prior incorporation petitions concerning the same territory' had been completed. It was further the theory of the plaintiffs, notwithstanding the language of the statute, that the sufficiency of the incorporation petitions should have been determined as of the time of the filing thereof on August 15, 1961. We think it must be said, however, that if the legislature had intended the interpretation advanced by plaintiffs explicit language to that effect would have been set forth in the statute. Obviously this was not done and the claim must be rejected as at variance with the clear and specific language used. In other words, the mandate of the statute to the board of supervisors was to consider the sufficiency of the petitions as of the date of final action thereon. The use of the words 'final action' negatives the suggestion of counsel that the reference to the committee to check the petitions was 'action' thereon. Obviously it was merely the preliminary step in the proceeding and may not be regarded as in any way a recognition of the sufficiency of the petitions.

The city of Flint intervened in the case as a party defendant. Answers to the petition were filed disputing the right of plaintiffs to the relief sought and asserting that the action of the board of supervisors was taken in accordance with the statute and was, in consequence, not open to the charges made on behalf of petitioners. The circuit court, the four judges thereof sitting en banc, declined to accept plaintiffs' claims as to the sufficiency of the petitions and the action of the board of supervisors thereon, and...