City of Detroit v. General Foods Corp.
| Decision Date | 21 March 1972 |
| Docket Number | No. 1,Docket No. 10437,1 |
| Citation | 39 Mich.App. 180,197 N.W.2d 315 |
| Parties | CITY OF DETROIT, a Michigan municipal corporation, Plaintiff- Appellee, v. GENERAL FOODS CORPORATION, a Delaware corporation, Defendant-Appellant, and Detroit Income Tax Board of Review, Defendant-Appellee |
| Court | Court of Appeal of Michigan — District of US |
McClintock, Fulton, Donovan & Watson, Detroit, for defendant-appellant.
Michael M. Glusac, Corporation Counsel, Detroit, for plaintiff-appellee.
Before HOLBROOK, P.J., and T. M. BURNS and DANHOF, JJ.
This is an appeal from an order of superintending control dismissing defendant-appellant's motion to dismiss the complaint and remanding the matter to the Detroit Income Tax Board of Review to redetermine the issue of whether the defendant General Foods Corporation is subject to the Detroit income tax for the years of 1966, 1967, and 1968.
The pertinent facts have been stated by defendant-appellant and agreed to by plaintiff except as to revised figures which have been supplied by plaintiff City, as follows:
On May 16, 1969, appellant General Foods Corporation received from Mr. A. L. Warren, Director of the Income Tax Division of appellee, City of Detroit, notice of three separate Detroit city income tax assessments for the fiscal years 1966, 1967, and 1968 as follows:
ASSESSMENT
YEAR NO. AMOUNT
------- ---------- ----------------
FY 4-66 L45671 $10,472.91 1
FY 4-67 L45673 18,388.00
FY 3-68 L45672 15,920.64 2
----------------
$44,781.55 3
On June 2, 1969, appellant filed a timely notice of protest of the above assessments with the controller of the City of Detroit, and a hearing before the controller, Bernard W. Klein, was duly held on July 16, 1969. On August 8, 1969, the controller issued his opinion upholding the assessments and determining appellant to be subject to the City of Detroit Income Tax Ordinance (Ordinance 900--F).
On August 15, 1969, appellant filed a timely notice of protest of the aforesaid decision of the controller with appellee, Detroit Income Tax Board of Review (hereinafter the Board). The record of the proceedings before the controller was thereafter forwarded to the Board, and on November 5, 1969, a hearing was held before the Board. Shortly after the hearing, additional information and documents were sent to the Board, at its request, by appellant, and on December 9, 1969, the Board rendered its decision which overturned the aforesaid assessments on the grounds that appellant was not 'doing business' in the City of Detroit under the provisions of the Detroit Income Tax Ordinance, supra.
On March 9, 1970, three months after the decision of the Board, appellee, City of Detroit, filed a complaint for superintending control, praying that the circuit court issue an order to show cause why an order of superintending control should not be entered reversing the decision of the Board. Appellant duly answered said complaint and filed a motion to dismiss. This motion was denied by Judge Nathan Kaufman of the Wayne County Circuit Court in an opinion dictated from the bench on September 8, 1970, and the case was remanded to the Board. Appellant filed timely objections to said opinion, but on October 16, 1970, two orders were entered pursuant to such opinion, denying appellant's motion to dismiss and remanding the proceedings to the Board.
On October 20, 1970, a claim of appeal from the above orders was filed by appellant in this Court.
Defendant-appellant states two issues to be considered by the Court which we rephrase and deal with in proper order.
Under the facts in this case, was the writ of superintending control available to plaintiff City to review the adverse decision of the Detroit Income Tax Board of Review?
Defendant Company asserts that (1) if the City had a right to appeal the decision of the Board but neglected to do so, it has lost any right to request a writ of superintending control; (2) if the City did not have the right, the circuit court should have granted defendant's motion to dismiss because the plaintiff was guilty of laches; (3) plaintiff should have filed under the Administrative Procedures Act within 30 days after the Board's decision, however, it failed to do so, and is, therefore, barred from seeking a writ of superintending control; and (4) the plaintiff may have had the right to appeal to the State Commissioner of Revenue under the Michigan City Income Tax Act, but this question was not answered by the trial judge and he erred in ignoring the question.
Plaintiff City claims that it did not have the right to appeal to the State Commissioner of Revenue because he lacked jurisdiction to hear the appeal. Plaintiff could not appeal the decision of the Board under the State Administrative Procedures Act as the Board did not constitute an agency of the state. The remedy before the plaintiff was to seek a writ of superintending control, and the circuit court was correct when it denied the motion to dismiss as the plaintiff was not guilty of laches since the defendant had not been prejudiced in any way.
GCR 1963, 711.2 states:
In 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 56, under the committee notes following GCR 1963, 711.2, the committee quotes from 112 A.L.R. 1351 at 1373:
'The generally accepted view is that a court will exercise its superintending control over inferior tribunals only in extreme cases and under unusual circumstances.'
The committee also quoted from 112 A.L.R. 1351 at 1384:
'A court will refuse to exercise its power of superintending control, where the party seeking to invoke such power has not exhausted his remedies in the tribunal sought to be controllled or has an adequate remedy in another court inferior to the court whose power is invoked.'
In authors' comments on p. 57 it is stated:
'The determination as to the adequacy of another available remedy rests within the sound discretion of the court which has been petitioned to exercise superintending control.'
Also see Lenz v. Mayor of Detroit, 343 Mich. 599, 73 N.W.2d 285 (1955).
Plaintiff could not appeal under the Administrative Procedure Act as it applies only to state agencies as is stated in the title of the act. 1952 P.A. 197:
'An act to prescribe the rights of the public in the administrative procedure Before state administrative agencies; * * *.' (Emphasis supplied.)
M.C.L.A. § 24.101(1); M.S.A. § 3.560(21.1) defines agency as:
"Agency' means any state board, commission, department, bureau or officer, authorized by law to make rules or to adjudicate contested cases, except the workmen's compensation commission, the employment security commission, the department of revenue, the public service commission and those in the legislative and judicial branches.' 4
This Court has also recognized that the State Administrative Procedure Act applies only to state administrative agencies. Righter v. Adrian Civil Service Commission, 1 Mich.App. 468, 473, 136 N.W.2d 718 (1965).
Before July 17, 1969, the City was precluded from appealing to the State Commissioner of Revenue as M.C.L.A. § 141.693; M.S.A. § 5.3194(103) allowed only:
'A taxpayer, employer or other person aggrieved by a rule or regulation adopted by the administrator or by a determination of the board of review on a final assessment, * * *.'
In M.C.L.A. § 141.504; M.S.A. § 5.3194(4), providing for the publishing of rules and regulations by a State Commissioner of Revenue, it is again stated:
'* * * governing the form and manner of appeal from a final determination by a city affecting a Taxpayer, employee or other person * * *.' (Emphasis supplied.)
Therefore, before July 17, 1969, the City was definitely precluded from appealing to the State Commission of Revenue. However, the statute was amended by 1969 P.A. 42, § 1, effective July 17, 1969, M.C.L.A. § 141.693; M.S.A. § 5.3194(103) so the City was also allowed to appeal from a determination by the Board. This amendment took effect approximately 5 months before the Board rendered its decision and it would seem the City could appeal on the basis of this statute. However, a city cannot adopt an amendment except as provided by the Legislature. M.C.L.A. § 141.503; M.S.A. § 5.3194(3). Under the authority of M.C.L.A. § 141.503; M.S.A. § 5.3194(3), the City adopted this amendment in its ordinance provisions so that it took effect on January 1, 1970. The ordinances adopted are deemed to take effect on or after January 1, of the following year unless otherwise provided. Since the city council did not provide otherwise, the ordinance took effect on January 1, 1970.
Statutes passed to take effect at a future date are to be understood as speaking from the time they go into operation and not from the time of passage. Weaver v. Haney, 32 Mich.App. 424, 188 N.W.2d 905 (1971). It seems logical to extend this rule to city ordinances as well as state statutes.
Therefore, when the Board rendered its decision on December 9, 1969, this was before the effective date of the ordinance, so the City could not appeal from the decision because it was rendered prior to the effective date of the ordinance.
Since the City had no appeal under the Administrative Procedure Act or the City Income Tax Act, the only way it could obtain a review was to file for an order of superintending control in the circuit court.
Under GCR 1963, 711.3, the writ of certiorari is superceded and an order of superintending control shall be used in its place. In the case of Hartz v. Wayne Circuit Judge, 164 Mich. 231, 234, 129 N.W. 25, 27 (1910), it is stated:
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