Genesee Tp. v. Genesee County

• Decision Date: 05 April 1963
• Docket Number: 88,Nos. 87,s. 87
• Parties: TOWNSHIP OF GENESEE, a Michigan Municipal Corporation, Plaintiff and Appellant, v. GENESEE COUNTY, a Michigan Municipal Corporation, Board of Supervisors of Genesee County, Michigan, George G. Dunn as County Clerk of Genesee County, Michigan, City of Mt. Morris, a Michigan Municipal Corporation, James L. Kidman as City Clerk of City of Mt. Morris, and Harold D. Wright as Township Clerk of Township of Genesee, Defendants and Appellees. TOWNSHIP OF GENESEE, a Michigan Municipal Corporation, Plaintiff and Appellant, v. Homer DAY, Joseph Martin and Eunice Richards, as Board of County Canvassers of Genesee County, Michigan, and George G. Dunn, as Clerk of Board of County Canvassers of Genesee County, Michigan, and as Clerk of Genesee County, Michigan, defendants and Appellees. City of Mt. Morris, a Michigan Municipal Corporation, Intervening Defendant and Appellee.
• Court: Michigan Supreme Court

Page 759

120 N.W.2d 759

369 Mich. 592

TOWNSHIP OF GENESEE, a Michigan Municipal Corporation, Plaintiff and Appellant, v. GENESEE COUNTY, a Michigan Municipal Corporation, Board of

Supervisors of Genesee County, Michigan, George G. Dunn as

County Clerk of Genesee County, Michigan, City of Mt.

Morris, a Michigan Municipal Corporation, James L. Kidman as

City Clerk of City of Mt. Morris, and Harold D. Wright as

Township Clerk of Township of Genesee, Defendants and Appellees.

TOWNSHIP OF GENESEE, a Michigan Municipal Corporation, Plaintiff and Appellant, v. Homer DAY, Joseph Martin and Eunice Richards, as Board of

County Canvassers of Genesee County, Michigan, and George G.

Dunn, as Clerk of Board of County Canvassers of Genesee

County, Michigan, and as Clerk of Genesee County, Michigan,

defendants and Appellees.

City of Mt. Morris, a Michigan Municipal Corporation,

Intervening Defendant and Appellee.

Nos. 87, 88.

Supreme Court of Michigan.

April 5, 1963.

Neithercut & Neithercut, and M. Bushnell Trembley, Flint, for plaintiff and appellant.

Dilley & Dilley (Albert R. Dilley), Grand Rapids, Evans & Evans (William R. Evans), Flint, for defendants and appellees City of Mt. Morris and James L. Kidman.

John G. David, Flint, for defendants Genesee County, Board of Supervisors of Genesee County, George G. Dunn, and Board of County Canvassers of Genesee County.

Before the Entire Bench.

CARR, Chief Justice.

This case involves proceedings by which it was sought to annex to the city of Mt. Morris in Genesee county three areas located in plaintiff township. Separate petitions were filed with the board of supervisors, each describing one of the areas involved. One, designated as the 'Lewis Road' petition, described land contiguous to the city of Mt. Morris within the boundaries of which electors resided. Said petition contained 305 signatures of persons residing in Mt. Morris and 52 signatures of residents of the township, as found by the legislative committee of the board of supervisors. The second petition covered an area referred to as 'Orchard Hills', within which there were resident electors. The petition bore the same number of signatures as did the Lewis Road petition. The petitions were found to comply with section 6 (C.L.S.1956, § 117.6 [Stat.Ann.1961 CumSupp. § 5.2085]) of the city home rule act*, and submission to a vote of the electors of the city of Mt. Morris and of the respective areas proposed to be annexed was ordered, the date of the special election therefor being fixed as February 27, 1962. On such submission annexation was rejected by the electors residing in the areas proposed to be annexed. In consequence of such results we are not concerned in this litigation with the Lewis Road and Orchard Hills projects.

A third petition, designating the lands included therein as 'Morris Hills', was also considered by the board of supervisors and found sufficient. There were no electors residing in the area proposed to be detached from the township. The resolution, however, followed the form of the action taken on the other two petitions and provided for the submission of the question of annexation 'to the qualified electors of the City of Mt. Morris and that portion of the Township of Genesee proposed to be annexed.' Said petition contained the same number of signatures as did each of the other petitions above mentioned, and directed the election to be held on February 27, 1962. The defendant county clerk, apparently acting in accordance with the resolution of the board of supervisors, declined to prepare election materials and supplies for the use of the electors of Genesee township, taking the position that, there being no electors in the district proposed to be annexed to the city, submission should be made to the electors of Mt. Morris only.

Plaintiff township instituted the present litigation on January 4, 1962, seeking injunctive relief against the holding of the election and a declaratory judgment on certain legal issues raised involving the sufficiency of the petitions, the right to annex the territory designated as 'Morris Hills' on the alleged ground that it was not contiguous to the city, and also presenting the issue as to whether the electors of the entire township were under the circumstances entitled to vote on the proposition. A decree was entered dismissing the bill of complaint and an application for a rehearing was denied. From such action plaintiff appealed to this Court.

Because of the refusal of the county clerk to cause ballots to be printed and distributed to the voting precincts in Genesee township and in reliance on the claim that the electors of said township were entitled to vote on the annexation of the Morris Hills area, the election board and the clerk of the township prepared and distributed such ballots, and notice of the election was posted and published. Following the election on February 27, 1962, the defendant county board of canvassers determined that the annexation proposal as to Morris Hills had carried within the city by a vote of 634 to 102. Said vote was certified by the board. It was further determined that the electors in Genesee township had cast 207 votes in favor of annexation and 3,036 against the proposition. Such vote, however, was not officially canvassed. On refusal to take such action plaintiff instituted a proceeding in mandamus to compel the board to certify the township vote. The city of Mt. Morris intervened as a party defendant. Following a hearing the circuit court denied the petition by order entered March 26, 1962. Thereupon plaintiff sought leave to appeal from said order and leave was granted by this Court, it being provided that the appeal in the mandamus action should be submitted with the appeal in the equity case.

It is conceded that the population of the city of Mt. Morris was less than 15,000. The bill of complaint filed on behalf of the township alleged that, according to the census of 1960, the population of the city was 3,484 and that of the township 21,011. The answer filed on behalf of the city and its clerk admitted the correctness of the statement in plaintiff's pleading. The claim of the defendants that the electors in plaintiff township were not entitled to vote on the annexation of the Morris Hiss area rests on a provision in section 9 (C.L.S.1956, § 117.9 [Stat.Ann.1961 Cum.Supp. § 5.2088]) of the home rule act, relating to annexations to cities of less than 15,000 that only city electors and electors living in the area sought to be annexed to the city were entitled to vote. It is argued that in case there are no such electors in such area the question is to be determined by a vote of the electors residing within the city. On behalf of plaintiff it is contended that other provisions of the section are controlling, under the circumstances presented, with reference to the issue. Said section 9, insofar as material here, reads as follows:

'The district to be affected by every such proposed incorporation, consolidation or change of boundaries shall be deemed to include the whole of each city, village or township from which territory is to be taken or to which territory is to be annexed: Provided, however, That when a territory is proposed to be incorporated as a city only the residents of the territory to be incorporated shall vote on the question of incorporation: Provided further, That when a petition signed by the state by the appropriate agency designated by the state administrative board which holds the record legal title to the entire area of the land in the territory adjacent to the city to be annexed, is filed with the governing body of said city and with the township board of the township in which such territory is situated, such annexation may be accomplished by the affirmative majority vote of the governing body of such city and the approval of the township board of such township. Any proposed consolidations or changes of boundaries shall be submitted to the qualified electors of the city, and to the qualified electors of the city, village or township from which the territory to be taken is located, and at the election when said question is voted upon, the city, village or township shall conduct the election in such manner as to keep the votes of the qualified electors in the territory proposed to be annexed or detached in a separate box from the one containing the votes from the remaining portions of such city, village or township: Provided, however, That territory may be attached or detached to or from cities having a population of 15,000 or less if a majority of the electors voting on the question in the city to or from which territory is to be attached or detached, and a majority of the electors from that portion of the territory to be attached or detached, as the case may be, both vote in favor of such proposition. If the returns of said election shall show a majority of the votes cast in the district to be annexed, voting separately, to be in favor of the proposed change of boundary, and if a majority of the electors voting in the remainder of the district to be affected as herein defined, voting collectively, are in favor of the proposed change of boundary, then such territory shall become a part of the corporate territory of the city or shall be detached therefrom, as the case may be. If no qualified electors reside in the territory proposed to be annexed or detached at the time of filing said petition with the clerk of the board of supervisors, as provided in section 8 of this act, and if a majority of the electors voting in the district to be affected as herein defined, voting collectively, are in favor of the proposed change of boundaries, then such territory shall become a part of the corporate territory of the city or shall be detached therefrom, as the case may...