Hempel ex rel. Mich. Limestone & Chem. Co. v. ROGERS TP.

• Decision Date: 03 December 1945
• Docket Number: No. 60.,60.
• Citation: 20 N.W.2d 787,313 Mich. 1
• Court: Michigan Supreme Court
• Parties: HEMPEL, Pros. Atty., ex rel. MICHIGAN LIMESTONE & CHEMICAL CO. et al. v. ROGERS TP. et al.

313 Mich. 1

20 N.W.2d 787

HEMPEL, Pros. Atty., ex rel. MICHIGAN LIMESTONE & CHEMICAL CO. et al.

v.ROGERS TP. et al.

No. 60.

Supreme Court of Michigan.

Dec. 3, 1945.

Appeal from Circuit Court, Presque Isle County; Earl C. pugsley, judge.

Action in quo warranto by Frederick P. Hempel, as Prosecuting Attorney for the County of Presque Isle, on his own relation, and on the relation of Michigan Limestone & Chemical Company and others, against the Township of Rogers in the County of Presque Isle, Rogers City, so styled, either a municipal corporation in such county or a voluntary association whose status is questioned; Ernest K. Shirtum and others in their assumed official capacity as members of a charter commission; Sam Jackson, President of the Village of Rogers City; Theodore Bruning, Clerk, and Fred Fisch and others, trustees of such village, Fred Fisch and others, members of the township board of the township of Rogers, to test the validity of the election to incorporate the village or Rogers City as a home rule city. From an adverse judgment, plaintiffs appeal.

Affirmed.

Before the Entire Bench.

Frederick P. Hempel, of Rogers City, for appellants.

Miller, Canfield, Paddock & Stone, of Detroit, for appellant Michigan Limestone & Chemical Co.

A. W. Wilcox, of Alpena, for appellees.

George R. Sidwell, of Lansing, amicus curiae.

BOYLES, Justice.

Plaintiff appeals from a judgment of the circuit court in Presque Isle county upholding the legality of election proceedings whereby Rogers City was incorporated as a home rule city. At a special election held October 2, 1944, the qualified electors of the territory proposed to be incorporated as a city voted overwhelmingly in favor of the incorporation. The territory to be incorporated included the village of Rogers City and some parts of Rogers township outside the village limits. After the election the prosecuting attorney of Presque Isle county in his official capacity and on the relation of Michigan Limestone & Chemical Company and others commenced the instant quo warranto proceedings to test the validity of the election. A lengthy hearing was held by the circuit judge who decided that the election was legal, and that the city was legally established and incorporated as a home rule city. From the judgment dismissing his petition plaintiff appeals. The several alleged errors upon which appellant relies for voiding the election may be grouped and will be considered seriatim.

1. Was it necessary to the validity of the election that qualified electors residing in the township outside of the territory proposed to be incorporated be afforded an opportunity to vote at the election?

The statutory provisions governing the incorporation of home rule cities are in Act No. 279, Pub.Acts 1909, and amendments thereto, being 1 Comp.Laws 1929, § 2228 et seq., Stat.Ann. § 5.2071 et seq. The question as to who is entitled to vote at an election to incorporate a home rule city is settled by section 9 of this act, being 1 Comp.Laws 1929, § 2245, Stat.Ann. § 5.2088. This section begins 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.’

To the foregoing the following proviso was added by Act No. 314, Pub.Acts 1931: ‘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.’

At the election in question only qualified electors in the territory proposed to be incorporated were allowed to vote. Appellant contends that by including the incorporated area of the village of Rogers City with a part of Rogers township outside of the village to make up the territory proposed to be incorporated as a home rule city, under other provisions in section 9 the instant case must be construed as a ‘consolidation’ as distinguished from a ‘new incorporation’ and that therefore a vote of the ‘district to be affected,’ i. e., the entire township, was necessary. This might have been true prior to the amendment of 1931. However, under the 1931 amendment, it is quite obvious that the present proposal was to incorporate a new city, although of course it involved a consolidation of territory into the new municipality. The adoption of the above-quoted 1931 amendment to the act has made applicable to the incorporation of new cities the construction given by his court to the corresponding statute governing the incorporation of a new village, ¹ in Bray v. Stewart, 239 Mich. 340, 214 N.W. 193, namely, that only those residing within the territory proposed to be incorporated should be permitted to vote. The 1931 amendment, to the city home rule act, following shortly after that decision, removed the distinction between those who might vote on the proposed incorporation of a village and of a city under like circumstances.

It may be admitted that the voters and taxpayers in the remaining part of the township have an interest in seeing that a part of the township property is not removed from the township tax rolls, but the Legislature has seen fit to declare that the residents in the remaining part of the township cannot defeat the will of the residents in that part who desire that their territory be made a part of the newly incorporated city. As we have often repeated, the wisdom of legislation is for the Legislature, and not within the province of the court. The claim of appellant that this is a consolidation or change of boundary within the meaning of other provisions of said section 9, and not the incorporation of a new city, is not tenable, although unquestionably there is some conflict and much ambiguity between different expressions in the statute. Prior to the election there was no city in this area, hence it is not a consolidation, or a change of boundaries of a city with a village or other territory, or of two cities; neither is it a consolidation of two villages. It seems to us that the claim that it is a ‘consolidation’ of a village and additional territory is untenable because the result is not a village with additional territory; the result is a newly incorporated city. The 1931 amendment as to who may vote adds strength to this construction of the legislative intent. Under existing statute law the residents of that part of Rogers township outside of the territory proposed to be included in the new corporation were not entitled to vote on the question of incorporation.

2. Was the inclusion of certain lands into the territory proposed to be incorporated in the new city so unreasonable as to require judicial voiding of the election? This question involves a preliminary determination whether the court has the power to pass on the reasonableness of the boundaries as fixed by the original petition and the vote of the residents in the area.

Proceedings for the incorporation are initiated by a petition signed by the requisite number of qualified electors residing in the territory to be affected thereby Also, in proceedings for the incorporation of a new city, a separate petition may be filed with the county clerk for the taking of a census of the inhabitants affected thereby. Enumerators are then appointed to take a census of the inhabitants of each city or village affected thereby and the portion of each township proposed to be so incorporated. Act No. 279, § 6, Pub.Acts 1909, 1 Comp.Laws 1929, § 2242, as amended by Act No. 314, Pub.Acts 1931, Stat.Ann. § 5.2085. The amendment to section 6 by Act No. 231, Pub.Acts 1939, Stat.Ann. 1944 Cum.Supp. § 5.2085, has no bearing on the issues at bar. The plain purpose of a census thus defined is to determine who is entitled to vote, as well as the place where such voters reside. The only way such a census could be taken is when the original petition for incorporation and the petition for the census describe the territory proposed to be incorporated in the new city. Section 9 of the act, 1 Comp.Laws 1929, § 2245, as amended Stat.Ann. § 5.2088, as hereinbefore stated, provides that where territory is proposed to be incorporated as a city only the residents of the territory proposed to be incorporated shall vote on the question. Obviously the territory to be incorporated must be defined before the election can be held. The original petition by which the proceedings are initiated is addressed to the board of supervisors of the county and filed with the county clerk. If the petition is found to conform to the provisions of the act, the board of supervisors orders the election and sets the date. Sec tion 8 of the act, 1 Comp.Laws 1929, § 2244, Stat.Ann. § 5.2087 The board of supervisors has no power to change the territory fixed by the petition. Bray v. Stewart, supra.

Appellant relies on People ex rel. Shumway v. Bennett, 29 Mich. 451, 18 Am.Rep. 107, in support of his claim that the bound aries of the proposed incorporation cannot be fixed by the signers of the petitions, that the territory and the question of its suitability, as well as the reasonableness and necessity for its ‘acquisition,’ must be submitted to a responsible official body, e. g., the courts. The Shumway case, supra, was discussed by the court in Oakman v. Board of Supervisors of Wayne County, 185 Mich. 359, at page 362, 152 N.W. 89, at page 90, and in considering the home rule incorporation act here involved, the court said:

‘The argument is made that because the act fails to vest the board of supervisors or some other public board with discretion to determine the question, but leaves it to the electorate to decide, the act is void, and this argument is based upon the holding in [People ex rel.] Shumway v. Bennett, 29 Mich. 451, 18 Am.Rep. 107. That was a case in which the general village incorporation act of 1873 was held unconstitutional, principally upon the...