Council of City of Hamtramck v. Matulewicz

• Decision Date: 30 June 1938
• Docket Number: Motion No. 424.
• Citation: 280 N.W. 801,285 Mich. 390
• Parties: COUNCIL OF CITY OF HAMTRAMCK v. MATULEWICZ, City Clerk.
• Court: Michigan Supreme Court

285 Mich. 390

280 N.W. 801

COUNCIL OF CITY OF HAMTRAMCK

v.MATULEWICZ, City Clerk.

Motion No. 424.

Supreme Court of Michigan.

June 30, 1938.

Mandamus proceeding by the Council of the City of Hamtramck to compel Frank Matulewicz, city clerk, to sign so-called emergency bonds.

Writ denied.

McALLISTER and BUSHNELL, JJ., dissenting.

Argued before the Entire Bench.

William Cohen, City Atty., of Hamtramck (Miller, Canfield, Paddock & Stone, of Detroit, of counsel), for plaintiff.

John Sklar, of Detroit, for defendant.

POTTER, Justice.

The city council of the city of Hamtramck seeks mandamus to compel the city clerk of the city to sign so-called emergency bonds. The city clerk refused to sign them because of doubt as to the legality of the proposed bond issue.

Plaintiff, January 27, 1938, adopted the following resolution:

That this council does hereby declare the present business depression to be a calamity affecting most of the people of the city of Hamtramck, and does hereby declare an exigency and emergency to exist involving the peace, health and safety of the city of Hamtramck.'

February 25, 1938, plaintiff adopted a resolution authorizing the issue of $125,000 of emergency bonds for the relief of the inhabitants from distress due to the calamity of unemployment. Its action was taken under section 30, chapter 18, of the city charter, which provides:

‘In case of fire, flood or other calamity, the council may borrow for the relief of the inhabitants of the city and for the preservation of municipal property, a sum, not to exceed one-fourth of one per centum of the assessed valuation of all real and personal property in the city, due in not more than three years, even if such loan would cause the indebtedness of the city to excees the limit fixed in this charter.’

This charter provision follows 1 Comp.Laws 1929, § 2231, the home rule act for cities.

Plaintiff does not mention Act No. 14, Pub.Acts 1932 (1st Ex. Sess.), except in a supplemental statement filed after the hearing.

The right to issue the bonds in question ‘in case of fire, flood or other calamity’ is somewhat indefinite. Where no intention to the contrary appears, general words used after specific terms are confined to things ejusdem generis with the things previously specified. American Transportation Co. v. Moore, 5 Mich. 368; Hawkins v. Great Western Railroad Co., 17 Mich. 57, 97 Am.Dec. 179;McDade v. People, 29 Mich. 50;Brooks v. Cook, 44 Mich. 617, 7 N.W. 216,38 Am.Rep. 282;Macumber v. White River Log, etc., Co., 52 Mich. 195, 17 N.W. 806;Roberts v. City Detroit, 102 Mich. 64, 60 N.W. 450,27 L.R.A. 572;People v. Shurly, 124 Mich. 645, 83 N.W. 595;Jacobs v. E. Bement's Sons, 161 Mich. 415, 126 N.W. 1043; Rogers v. Kuhnreich, 247 Mich. 204, 225 N.W. 622. The words ‘other’ or ‘any other’ following an enumeration of particular classes are, therefore, to be read as ‘other such like,’ and to include only others of like kind or character. Commonwealth v. Dejardin, 126 Mass. 46, 30 Am.Rep. 652;Wood v. Williams, 142 Ill. 269, 31 N.E. 681,34 Am.St.Rep. 79; Rasure v. Hart, 18 Kan. 340, 26 Am.Rep. 772; Patton v. State, 93 Ga. 111, 19 S.E. 734,24 L.R.A. 732;Benson v. Chicago, St. P., M. & O. Ry. Co., 75 Minn. 163,77 N.W. 789,74 Am.St.Rep. 444;Erwin v. Jersey City, 60 N.J.L. 141, 37 A. 732,64 Am.St.Rep. 584;People v. Richards, 108 N.Y. 137, 15 N.E. 371,2 Am.St.Rep. 373;In re Barre Water Co., 62 Vt. 27, 20 A. 109,9 L.R.A. 195;Lynchburg v. Norfolk & W. R. Co., 80 Va. 237, 56 Am.Rep. 592;Ripley v. Evans, 87 Mich. 217, 49 N.W. 504. Applying these general rules of construction to the words ‘or other calamity’ contained in the charter, the applicable statute should be limited to calamities of the same general kind and character as those previously enumerated, such as cyclones, earthquakes, or other analogous causes resulting in the destruction of the property of the inhabitants of the city. Were it not for the decision of this court in Muskegon Heights v. Danigelis, 253 Mich. 260, 235 N.W. 83, 73 A.L.R. 696, the writer would favor holding the charter and the statute has no application to cases of this kind.

Bonds were issued under the above charter provision to the amount of $275,000, October 1, 1931, for relief from the calamity of unemployment at that time. The assessed valuation of the city is $73,546,210.70. So the proposed bond issue of $125,000 does not exceed the limit set by the charter of the city or by Act No. 14, Pub.Acts 1932 (1st Ex.Sess.), although if the former issue of $275,000 is counted, the total of the two issues would exceed both limits.

Facts and figures, it is urged by plaintiff, show that the situation confronting the city of Hamtramck is a calamity different and distinct from that for the relief of which the bonds dated October 1, 1931, were issued. We shall assume for the purposes of this case that this is so.

The city of Hamtramck refunded its entire bonded debt in pursuance of Act No. 13, Pub.Acts 1932, 1st Ex.Sess., as amended, by issuing $1,530,143.37 refunding bonds, dated September 1, 1933, and payable September 1, 1963, with the option of redemption on any interest date; and by the exchange of such refunding bonds for the bonds outstanding. Said refunding bonds were issued in several series and the $275,000 of emergency bonds of 1931 were exchanged for a like amount of refunding bonds designated as series F and numbered 564 to 838, inclusive.

The city of Hamtramck again refunded its entire bonded indebtedness under Act No. 42, Pub.Acts 1935, for the purpose of reducing the rate of interest, by the issuance of $1,527,850 refunding bonds, dated August 1, 1936, and payable serially on September first of each year from 1937 to 1963, inclusive. Refunding bonds of series F replacing the emergency bonds to the amount of $275,000, together with bonds of series G, H, I and J, were replaced by refunding bonds to the amount of $882,500 designated as series BB, numbered 544 to 1426, inclusive. The bonds of series BB were sold for cash and with the proceeds all bonds of series F, G, H, I and J were called, redeemed and retired. Refunding bonds of series BB, numbered 544 to 576, inclusive, to the amount of $32,500, became due September 1, 1937, and were paid.

On account of the city clerk refusing to sign the bonds proposed to be issued until their legality was determined by court decision, plaintiff asks a writ of mandamus compelling him to do so.

Plaintiff presents two theories to support the legality of the proposed bond issue: (1) That the charter provision for borrowing ‘not to exceed one-fourth of one per centum of the assessed valuation of all real and personal property in the city’ for relief from ‘fire, flood or other calamity’ does not limit to that amount the total amount that can be borrowed for several different calamities; and (2) that the emergency bonds of October 1, 1931, lost their identity as such and were merged by the refunding of the city debt in 1933 and 1936 and the payment of refunding bonds.

After the decision of Muskegon Heights v. Danigelis, 253 Mich. 260, 235 N.W. 83, 73 A.L.R. 696, the legislature amended 1 Comp.Laws 1929, § 2231, by Act No. 14, Pub.Acts 1932 (1st Ex.Sess.), to read as follows:

‘Sec. 4-a. Each city may in its charter provide:

‘(1) For the borrowing of money on the credit of the city and issuing bonds therefor, for any purpose within the scope of its powers: Provided, That the net bonded indebtedness incurred for all public purposes shall not at any time exceed ten per centum of the assessed value of all the real and personal property in the city: Provided further, That in case of fire, flood or other calamity, the legislative body may borrow for the relief of the inhabitants of the city and for the preservation of municipal property, a sum not to exceed three-eighths of one per centum of the assessed value of all the real and personal property in the city, due in not more than five years, even if such loan would cause the indebtedness of the city to exceed the limit fixed in its charter.’

This act not only increased the amount that might be borrowed by one-eighth of one per cent of the assessed valuation, but extended the time for payment two years.

In plaintiff's charter and 1 Comp.Laws 1929, § 2231, and in the 1932 act above mentioned, ‘a sum’ was authorized to be borrowed and not several sums. The proviso in each case states that this amount may be borrowed ‘even if such loan’ increases the indebtedness beyond the charter limits. Nowhere is it intimated the legislature intended there might be several transactions with resulting increases beyond the charter provision for calamity relief. The limit fixed in the charteris eight per cent of the assessed value, and not eight per cent plus any number of one-fourth of one per cent additions necessary to take care of new calamities as they arise, though plaintiff urges this as consonant with liberal construction.

There is a difference between liberal construction and misconstruction,-a judicial destruction of the legislative will to accomplish what may momentarily seem to be a desirable object. The charter authorizes borrowing in case of fire, flood or other calamity even if such loan causes the indebtedness of the city to exceed the limit fixed in its charter, but this authority does not authorize the city to successively exceed its borrowing limit even though it may allow its indebtedness to be one-fourth of one per cent above the limit.

Doubt as to the powers of a municipal corporation must be resolved against the corporation. United States v. Le Page, 1 Cir., 59 F.2d 165;City of Chicago v. Wonder Heating Systems, 345 Ill. 496, 178 N.E. 192;Federal Shipbuilding & Drydock Co. v. Bayonne, 102 N.J.Eq. 475, 141 A. 455;Van Eaton v. Town of Sidney, 211 Iowa 986, 231 N.W. 475, 71 A.L.R. 820;American Aniline Products, Inc., v. Lock Haven, 288 Pa. 420, 135 A. 726, 50 A.L.R. 121;Brink v. Village of Elmira Heights, 139 Misc. 818, 249 N.Y.S. 378;...