Dussia v. Merman, 5

• Decision Date: 09 November 1971
• Docket Number: No. 5,5
• Citation: 386 Mich. 244,191 N.W.2d 307
• Parties: Vallie W. DUSSIA, now Deceased, by Rev. Emil J. Dussia, Administrator of the Estate of Vallie W. Dussia, Plaintiff and Appellant, v. L. E. MERMAN et al., Defendants and Appellees.
• Court: Michigan Supreme Court

Page 307

191 N.W.2d 307

386 Mich. 244

Vallie W. DUSSIA, now Deceased, by Rev. Emil J. Dussia Administrator of the Estate of Vallie W. Dussia Plaintiff and Appellant, v. L. E. MERMAN et al., Defendants and Appellees.

No. 5.

Supreme Court of Michigan.

Nov. 9, 1971.

Griffin & Griffin, Monroe, for plaintiff-appellant.

James J. Rostash, Pros. Atty., Monroe, for defendants-appellees.

Before the Entire Bench, except BLACK, J.

WILLIAMS, Justice.

The issue in this case is of first impression and turns on the interpretation of the following statute:

'Any plan hereafter adopted and established by a county for the payment of pension and retirement benefits to its employees, under the provisions of this section, shall be approved as complying with the provisions of this section, as amended, by a county pension plan committee consisting of the auditor general, the state treasurer and the executive secretary of the state employees' retirement system, established under the provisions of Act No. 240 of the Public Acts of 1943, as amended, being sections 38.1 to 38.43 of the Compiled Laws of 1948, before the plan shall become effective or operative in such county. Any such plan in effect at the time this amendatory section becomes effective shall be approved by said county pension plan committee as complying with the provisions of this section, as amended, within 1 year after the effective date hereof, and each county retirement plan operating under the provisions of this section shall be approved by said committee as complying with the provisions of this amendatory section biennially thereafter.' M.S.A. § 5.333(1); 1948 C.L. § 46.12a.

The controlling question is whether rights in the Monroe County Employees Retirement Plan vest when the plan is 'adopted and established' by the Board of Supervisors, or whether rights vest when the plan becomes 'effective or operative' after the required approval by the County Pension Plan Committee.

Plaintiff's decedent was the probate judge of Monroe County for many years prior to his retirement on December 31, 1964. In February of 1965 the Monroe County Board of Supervisors voted to establish a pension plan pursuant to M.C.L.A. Sec. 46.12a with a retroactive effective date of November 30, 1964, one month before Judge Dussia's retirement. The plan was submitted to the County Pension Plan Committee as required by statute and in May of 1965 it was returned to the County Board of Supervisors for several amendments which were necessary to bring the plan within the provisions of the statute.

In making these necessary amendments, however, the Board of Supervisors also changed the effective date to 'the first day of the calendar month next following the approval of the retirement system by the County Pension Plan Committee.' The plan was submitted to the County Pension Plan Committee with these amendments and was approved in June of 1965, thus making the effective date of the plan July 1, 1965.

In February of 1967, Judge Dussia filed suit in Monroe County Circuit Court seeking an order compelling the County Board to include him within the plan under the original retroactive date. The trial court held for the plaintiff on the ground that the original retroactive date was 'adopted and established' in February of 1965 and the Board of Supervisors could not reconsider that date under their own rules. ¹ The Court of Appeals, 27 Mich.App. 398, 183 N.W.2d 583, reversed on the ground that the plan was not 'effective or operative' under the statute until approved by the County Pension Plan Committee and that the rule limiting reconsideration did not come into play until such approval. Application for rehearing was denied in the Court of Appeals and we granted leave to consider the question of statutory interpretation.

The key words of the statute are as follows:

'Any plan hereafter Adopted and Established by a county * * * Shall be approved * * * by a county pension plan committee * * * before the plan shall become effective or operative in such county.' (Emphasis added.)

The theory of the trial court is that when the plan was 'adopted and established' in February Judge Dussia had enforceable rights. Counsel for plaintiff points out the case of Muskegon Traction & Lighting Co. v. City of Muskegon, 167 Mich. 331, 132 N.W. 1060 (1911) where this Court said that:

"To establish' means 'to originate and secure the permanent existence of; to found; to institute; to create and regulate; to make stable and firm." Id. 337, 132 N.W. 1063.

The words of a statute, however, should not be construed in the void but must be read together to effectuate the intention of the legislature. People v. Burns, 5 Mich. 114 (1858). The general rule of statutory construction was stated by this Court in City of Grand Rapids v. Crocker, 219 Mich. 178, 189 N.W. 221 (1922):

'There seems to be no lack of harmony in the rules governing the interpretation of statutes. All are agreed that the primary one is to ascertain and give effect to the intention of the Legislature. All others serve but as guides to assist the courts in determining such intent with a greater degree of certainty. If the language employed in a statute is plain, certain, and unambiguous, a bare...