Hart v. Wayne County, 9

CourtSupreme Court of Michigan
Citation240 N.W.2d 697,396 Mich. 259
Docket NumberNo. 9,9
PartiesGeorge Z. HART, Plaintiff-Appellee, v. The COUNTY OF WAYNE et al., Defendants-Appellants, The Judges of the Recorder's Court of the City of Detroit, Intervening Defendants-Appellants.
Decision Date01 April 1976

James Thomson, Dearborn, for plaintiff-appellee.

Kermit G. Bailer, Corp. Counsel, Maureen P. Reilly, John E. Cross, Asst. Corp. Counsels, Detroit, for defendants-appellants.

Alphonso R. Harper, Detroit, for intervening defendants-appellants Judges of the Recorder's County of the City of Detroit.

Aloysius J. Suchy, Corp. Counsel, County of Wayne, David R. Kaplan, Asst. Corp. Counsel, Detroit, for defendants-appellees County of Wayne, et al.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Jann C. Ryan, Asst. Atty. Gen., Lansing, for State of Mich.


On February 9, 1972, plaintiff-appellee filed a complaint against Wayne County for an injunction restraining the county from paying salaries of the recorder's court judges. The city of Detroit was added as a party defendant and judges of the recorder's court intervened as defendants. Wayne Circuit Judge Blair Moody, Jr., rendered summary judgment for defendants. The Court of Appeals reversed the summary judgment in an opinion by two members of a three-judge panel (the third not participating by reason of illness) finding summary judgment for plaintiff. Wayne County was enjoined from assessment for payment of salaries of recorder's court judiciary. Defendants-appellants, judges of the recorder's court, appealed. This Court granted leave to appeal and entered an order staying the Court of Appeals order. We reverse the Court of Appeals and reinstate the trial court's order of summary judgment in favor of defendants, judges of the recorder's court and the city of Detroit.


Was the Municipal Courts of Record Act, 1919 P.A. 369, providing for county supplementation of salary for recorder's court judges, adopted in violation of Const.1908, art. 5, § 30?


In 1824 criminal jurisdiction in the city of Detroit was in the mayor's court for ordinance violations, in the justice of the peace court for state misdemeanors and preliminary examinations and in the Wayne circuit court for all other state law offenses. 2 Territorial Laws 226. 1850 P.A. 301 established the police court to take over jurisdiction of the former justice of the peace court. The police justice and clerk of police court were, by court order, paid by the county, as were justices of the peace. People, ex rel. Schmittdiel v. Wayne County Board of Auditors, 13 Mich. 233 (1865).

Recorder's court was created in 1857 by 1857 P.A. 55 as a Detroit municipal court. It was given jurisdiction of the former mayor's court for Detroit ordinance violations. It also was given jurisdiction formerly held by Wayne County circuit court over state law offenses committed in Detroit, except for those still triable in police court (state misdemeanors). The one judge of recorder's court was paid by the State, and the clerk was paid by Detroit. Detroit and Wayne County shared costs of prosecution in recorder's court, with the county paying costs of state law cases and boarding of those prisoners and Detroit paying costs of ordinance cases and boarding of those prisoners. Juries were paid by the county.

1883 L.A. 326, 1 in Ch. XII, § 6, provided that the recorder was to be paid by the state and Detroit. This 1883 act encompassed all provisions governing recorder's court. It was amended by 1893 L.A. 408 1919 P.A. 369, 2 among other provisions, changed recorder's court by abolishing police court, thus giving recorder's court jurisdiction over all state offenses committed in Detroit.

The instant case concerns provisions for recorder's court found in the 1883 (as amended by 1893 L.A. 408) and 1919 acts.

Section 6 of 1893 L.A. 408 provides:

'Each of said judges shall receive from the treasury of the state of Michigan the same annual salary as may be payable to circuit judges. They shall also each receive from the treasury of the city of Detroit such additional salary as shall be sufficient, with the sum so received from the state, to make the salary of each of said judges 5,000 dollars.' 3

However, § 13 of 1919 P.A. 369 provides:

'Each judge of said court, including the presiding judge, shall receive an annual salary from the county in which said court is located in the same amount as that paid by the state to circuit judges . . ..' 4

Section 7 of 1919 P.A. 369 5 required referendum approval by Detroit before the act would take effect. Approval was voted by Detroit.

Plaintiff and Wayne County argue that the 1919 act was never validly adopted, therefore, the 1883 act as amended controls on salaries of recorder's court judges and Wayne County is not responsible for those salaries. They contend the 1919 act is a local act requiring a referendum under Const.1908, art. 5, § 30, which provides:

'The Legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act excepting acts repealing local or special acts in effect January 1, 1909 and receiving a 2/3 vote of the legislature shall take effect until approved by a majority of the electors voting thereon in the district to be affected.'

Plaintiff and Wayne County argue that the district affected by § 13 of 1919 P.A. 369 was Wayne County, not the city of Detroit, because the burden of recorder's court salaries was shifted from the State to Wayne County. Because Wayne County did not approve by referendum, the 1919 Act was not validly adopted.

Judges of the recorder's court argue that recorder's court performs a state function and § 13 of 1919 P.A. 369 provides a fair way of apportioning public expenses. The Legislature has authority to require the county to pay under § 13.

The city of Detroit argues that establishment and funding of a municipal court is a state legislative function under Const.1850, art. 6, § 1 and not subject to local control. Moreover, this state legislative function is not affected by Const.1908, art. 5, § 30.

Other arguments made by the parties are not necessary to resolution of this case.

Wayne Circuit Judge Moody held that recorder's court performs a state, not local, function and it is reasonable for the Legislature to charge the county for part of the salaries of the recorder's court judges. The 1919 act was partly a local act and partly a general state funding act. The general funding section did not require referendum approval under Const.1908, art. 5, § 30.

The Court of Appeals reversed, holding that 1919 P.A. 369 was a local act requiring referendum approval by Wayne County. The Court of Appeals held the entire act invalidly adopted.


In Attorney General, ex rel. Cotter v. Lindsay, 221 Mich. 533, 191 N.W. 826 (1923), 1921 P.A. 364 was challenged. It amended 1919 P.A. 369, but contained no referendum approval provision (as did the 1919 act). The 1921 act was challenged under Const.1908, art. 5, § 30, the local act section.

The Court held that the 1921 act (amending the 1919 act) was a local act. Therefore, it was unconstitutional because of lack of compliance with the referendum requirement. The Court's reasoning worked in two steps: (1) The 1919 act is a local act because it amended local acts, its object as expressed in its title indicates a local act, the entirety of the act indicates a local act and the § 7 referendum requirement indicates a local act; and (2) Since the 1921 act amended the 1919 act which is a local act, the 1921 act is a local act requiring referendum approval under the 1908 Constitution.

As the Court of Appeals noted, the Lindsay Court conceded validity of the 1919 act. This would seemingly end the instant litigation in favor of the judges, and the parties have so argued. However, the Court of Appeals did not find that this foreclosed the present challenge to the 1919 act because its constitutionality was not squarely before the Lindsay Court. Rather, focus was on the 1921 act.

Similarly, the question of whether the funding section of the 1919 act is a local act has never been squarely presented to this Court. It is true that the Lindsay Court generally characterized the 1919 act as a local act. However, the funding section is a unique section of the act and it has not been the point of discussion. Therefore, Lindsay does not control the instant case.

In Common Council of Detroit v. Engel, 202 Mich. 536, 168 N.W. 462 (1918), the Court held unconstitutional an act containing no referendum provision. The challenged act, 1915 L.A. 322, amended 1842 and 1869 laws governing Detroit public schools. The 1915 amendment increased the interest on bonds.

The court classified the 1915 amendment as a local act, requiring a referendum under Const.1908, art. 5, § 30.

The Court rejected the argument that the act was not local because it was concerned with education. The fact that it pertained only to Detroit made the act local. The subject of education did not place the Legislature above and beyond constitutional limitations (Const.1908, art. 5, § 30).

In discussing the relation between Const.1908, art. 5, § 30 and the Legislature's authority to legislate on education, the Court said:

'It cannot in reason be otherwise than that all powers of the Legislature, whatever they may be, are under and by virtue of the Constitution subject to general constitutional mandates and limitations imposed on legislation without reservation.' (p. 543, 168 N.W. p. 464.)

Engel raises a serious question, i.e., is the subject of judicial funding above and beyond constitutional limitations? Engel is more 'on point' in declaring that a subject of general legislation is not exempted from the local act referendum requirement where the challenged statute pertains to a particular location. However, several cases ...

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