Finlayson v. W. Bloomfield Tp.

• Decision Date: 16 February 1948
• Docket Number: No. 78.,78.
• Parties: FINLAYSON et al. v. WEST BLOOMFIELD TP. et al.
• Court: Michigan Supreme Court

320 Mich. 350

31 N.W.2d 80

FINLAYSON et al.

v.WEST BLOOMFIELD TP. et al.

No. 78.

Supreme Court of Michigan.

Feb. 16, 1948.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Oakland County, in Chancery; H. Russel Holland. Judge.

Suit by John C. Finlayson and another against the Township of West Bloomfield and another for a declaratory decree that election relating to the issuance of licenses for sale of liquor by the glass was void. From an order dismissing the bill of complaint, the plaintiffs appeal.

Affirmed.

Before the Entire Bench.

Robert D. Heitsch, of Pontiac, for appellants.

A. Floyd Blakeslee, of Pontiac, for appellee West Bloomfield Tp.

Estes & Cooney, of Pontiac, for appellee City of Sylvan Lake.

CARR, Justice.

This suit was instituted in the circuit court of Oakland county, April 25, 1947, for the purpose of obtaining a declaratory decree under the provisions of Act No. 36, Pub.Acts 1929, Comp.Laws 1929, § 13903 et seq., Stat.Ann. § 27.501 et seq. The bill of complaint alleged that plaintiff Finlayson was a duy qualified elector of the defendant township and that plaintiff Schied was a duly qualified elector of the defendant city of Sylvan Lake. It was further averred that on February 20, 1947, an election was held in said township on the question whether licenses should be issued for the sale of liquor by the glass, that the proposition failed to carry by five or six votes, and that some of the residents of Sylvan Lake were permitted to take part in said election. Plaintiffs asserted that the election was in consequence void and asked that the court so decree. They also requested that the proper officers of the township be ordered to conduct a new election. However, no officers of the township were made parties defendant in the case.

The bill also alleged that on March 20, 1946, an election was held in the village of Sylvan Lake on the question of incorporation as a city, that the proposition carried, and that the report of such result was filed in the county clerk's office June 27, 1946. The bill did not allege the existence of any controversy with reference to this election, the averments apparently being incorporated in support of the claim that electors residing within the city were not entitled to participate in the township election on the question of issuing licenses for the sale of liquor by the glass. Presumably, the averments with reference to the effectual date of the incorporation of the city were based on Comp.Laws 1929, § 2249, Stat.Ann. § 5.2092, as construed by this court in Dearborn Township v. City of Dearborn, 308 Mich. 284, 13 N.W.2d 821.

Defendant township filed its answer to the bill of complaint and joined with the other defendant in a motion to dismiss based on the following grounds:

‘(1) Because such bill of complaint does not state a cause of action;

‘(2) Because such bill of complaint does not state a cause of action cognizable in a court of equity;

‘(3) Because it appears from the face of said bill of complaint that the plaintiffs' remedy, if any they have, is in a court of law;

‘(4) Because the plaintiffs' bill of complaint was not filed within thirty (30) days after February 20, 1947, the date of the election involved in this suit, as required by law, and as required by Section 27.2343, Michigan Stat.Ann. (being Sec. 15299, C. L.1929);

‘(5) Because the plaintiffs are not entitled to maintain an action of this character in their own behalf and names without leave of court.’

Following argument of the motion the trial court dismissed the bill of complaint, primarily on the ground that the action had not been seasonably brought. From such order plaintiffs have appealed.

Under the specific terms of the declaratory judgment act, above cited, the existence of an actual controversy is necessary to enable the court to make a binding declaration of rights. The interpretation and application of the statute were before this court in Gross Pointe Shores v. Ayres, 254 Mich. 58, 235 N.W. 829, where it was said: ‘A requisite to the proceeding is an actual controversy over a specific issue to be set up in the pleadings, in order that a binding declaration of rights may be made thereon. The proceeding is special, is not a substitute for the regular actions, and is not an exercise of general equity jurisdiction in which the court may grant consequential relief under a general prayer or upon general equitable considerations. Washington-Detroit Theatre Co. v. Moore, 249 Mich. 673, 229 N.W. 618, 68 A.L.R. 105; 50 A.L.R. 42, 19 A.L.R. 1124, 12 A.L.R. 52, notes.’

As before noted the only controversy alleged in the bill of complaint in the instant case had reference to the township election. Construing the pleading in its entirety it is apparent that plaintiffs desired to have this election set aside because persons not qualified to vote had been permitted to do so. The motion to dismiss and the determination thereon were clearly based on such theory. The right of the plaintiffs to maintain their action must be determined accordingly.

Defendant township averred in its answer that the election was held January 20, 1947, rather than on February 20th, as set forth in the bill of complaint. In reply to the answer plaintiffs merely asserted that the actual date of the election was immaterial. The return to the county clerk as to the results of the election appears in the record and supports the claim of the defendant. It thus appears that over three months had elapsed following the election before plaintiffs started their suit.

On behalf of defendants it is contended that if plaintiffs desired to contest the validity of the township election they should have proceeded under the provisions of Comp.Laws 1929, § 15298, Stat.Ann. § 27.2342, which reads as follows: ‘A petition may be field in the circuit court of any county of this state whenever it shall be made to appear that material fraud or error has been committed at any election in such county at which there shall have been submitted any constitutional amendment, question, or proposition to the electors of the state or any county, township or municipality thereof.’

The next ensuing section, Comp.Laws 1929, § 15299, Stat.Ann. § 27.2343, further requires that: ‘Such petition shall be filed within thirty (30) days after such election by the attorney general or the prosecuting attorney of the proper county on his own relation, or on the relation of any citizen of said county without leave of the court, or by any citizen of the county by special leave of the court or a judge thereof. Such petition shall be filed against the municipality wherein such fraud or error is alleged to have been committed.’

With reference to these sections of the statutes it was said in Youells v. Morrish, 218 Mich. 194, 187 N.W....