City of Highland Park v. Dearborn Tp.

• Decision Date: 30 June 1938
• Docket Number: No. 130.,130.
• Citation: 280 N.W. 820,285 Mich. 440
• Parties: CITY OF HIGHLAND PARK et al. v. DEARBORN TP.
• Court: Michigan Supreme Court

285 Mich. 440

280 N.W. 820

CITY OF HIGHLAND PARK et al.

v.DEARBORN TP.

No. 130.

Supreme Court of Michigan.

June 30, 1938.

Suit by the City of Highland Park and others against Dearborn Township. From a decree for plaintiff, defendant appeals.

Affirmed.

Appeal from Circuit Court, Wayne County; Allan Campbell, judge.

Argued before the Entire Bench, except BUTZEL, J.

Oscar A. Kaufman, of Detroit (David A. Howell, of Detroit, of Counsel), for appellant.

Miller, Canfield, Paddock & Stone, of Detroit, for appellees.

NORTH, Justice.

The city of Highland Park, and the other plaintiffs who constitute the Dearborn Township Bondholders' Protective Committee, brought this suit in equity to recover on matured bonds issued by defendant and also seek a general tax levy for their payment. During the period from August 1, 1927, to December 1, 1930, the defendant issued special assessment district bonds for the construction of water and sewer improvements in thirteen separate districts. On September 22, 1927, approximately 50 per cent of the real property in the township was annexed to the city of Dearborn. The bonds of district number one were issued prior to the annexation but the balance were issued at a subsequent time. However, water districts 2, 3 and 4, as well as number 1, were establishedprior to the annexation. The principal amount of the bonds issued was $625,850. The bondholders' protective committee holds past due bonds in the amount of $339,000 and, at the present time, the city of Highland Park's past due holdings amount to $46,000. The bonds in question were issued under the authority of Act No. 116, Pub.Acts 1923, as amended by Act No. 263, Pub.Acts 1925, and Act No. 58, Pub.Acts 1927, now found in 1 Comp.Laws 1929, §§ 2385 to 2388, inclusive.

Plaintiffs contend that under the statute they are entitled to have the township officers levy a general tax in order that the matured bonds and accrued interest may be paid. As opposed to this, appellant urges that the portion of § 3, Act No. 58, Pub.Acts 1927, hereinafter quoted, is unconstitutional; that Act No. 24, Pub.Acts 1934, (Ex.Sess.), which amends § 3, Act No. 58, Pub.Acts 1927, by substituting the word ‘may’ for the word ‘shall,’ should be applied; that § 3, Act No. 58, Pub.Acts 1927, does not authorize a general tax levy; and that the liability of the township should be reduced in proportion to the amount of territory that has been annexed by the city of Dearborn. From a decree for the plaintiffs, defendant appeals.

Plaintiffs assert their right to recover under the amended statute found in Act No. 58, Pub.Acts 1927. By this statute and under such circumstances as are presented in the instant case a township wherein there are platted lands outside the boundaries of incorporated villages is given authority incident to making public improvements specified in the act ‘to levy and collect special assessments to pay the cost thereof and to issue bonds in anticipation of the collection of said special assessments, upon filing the petition and subject to the terms and conditions hereinafter provided.’ Act No. 58, Pub.Acts 1927, § 1. One of the conditions under which such authority may be exercised is set forth in § 3 of the act in the following language: ‘If any such special assessment fund is insufficient to pay such bonds and interest thereon when due, the township board shall advance the amount necessary to pay such bonds, and shall be reimbursed from such assessments when collected, or by re-assessment of the deficiency if necessary.’

Appellant's contention that the provision above quoted from § 3 of the statute is unconsitutional cannot be sustained. We have already passed upon this question.

‘Under Act No. 58, P.A.1927, the township was required to advance the amount of money necessary to pay the bonds, and to reimburse itself from special assessments when collected, or by reassessment of the deficiency if necessary. Under the holdings of Moore v. Harrison, 224 Mich. 512, 195 N.W. 306, and Regents of University of Michigan v. Pray, 264 Mich. 693, 251 N.W. 348, this act is constitutional.’ Whitman v. Township of Royal Oak, 269 Mich. 146, 256 N.W. 835, 836.

We are mindful in the instant case appellant stresses the contention that the act is unconstitutional as being an unwarranted interference by the legislature in a matter of purely local concern. The proposition of law is not here applicable. Instead the legislature by general law has conferred upon townships the optional power of issuing bonds of the character here in suit. The constitution empowers the legislature to enact such laws. Constitution of Michigan, Art. 8, § 17. In passing such statutes the legislature may place limitations and conditions upon the exercise of the powers granted. By the statute under consideration the legislature has authorized townships to issue special assessment bonds but upon the condition that in case the special assessment fund is insufficient to pay the bonds and interest thereon then the township at large shall be liable for their payment. The quoted statutory provision does not attempt to compel a township acting through its officers to authorize the issuance of district special assessment bonds, but if a township elects to do so, the legislature by Act No. 58, Pub.Acts 1927, renders such bonds payable out of the township's general funds in event the ‘special assessment fund is insufficient.’ Such a statutory provision is not unconstitutional on the ground that it is an unwarranted interference by the legislature in a matter of purely local concern. Instead it is a limitation upon or a condition incident to the exercise of a power granted by the legislature to townships.

Appellant is not in position to raise the question as to the act being unconstitutional in event an attempt were made to apply it to special assessment bonds issued prior to the 1927 amendment, which is above quoted as part of § 3. All of the bonds involved in the instant case were issued after this amendment became effective. As to these subsequently issued bonds the act must be held valid. In the instant case we are not concerned with the validity or invalidity of the act as applied to bonds issued prior to the above noted amendment. As to such prior issued bonds appellant contends the act would be unconstitutional on the ground of its being retroactive. Certainly statutory construction should not be more strict in civil than in criminal cases. In the administration of the law in a criminal case the Supreme Court of the United States has said (page 72): ‘The rule upon this subject which we consider applicable, is that ‘a legislative act may be entirely valid as to some classes of cases and clearly void as to others. A general law for the punishment of offenses, which should endeavor to reach by its retroactive operation acts before committed, as well as to prescribe a rule of conduct for the citizen in future, would be void so far as it was retrospective; but such invalidity would not affect the operation of the law in regard to the cases which were within the legislative control.’ Cooley, Const.Lim. 5th Ed., 215.' Jaehne v. New York, 128 U.S. 189, 9 S.Ct. 70, 32 L.Ed. 398.

It should be noted, however, that notwithstanding the foregoing would be sufficient answer to appellant's contention, nothing hereinbefore said should be construed as indicating a departure by this court from its former holdings that a...