Horton v. City of Kalamazoo

• Decision Date: 24 January 1978
• Docket Number: Docket No. 77-1376
• Citation: 81 Mich.App. 78,264 N.W.2d 128
• Parties: Jeffrey B. HORTON, Plaintiff-Appellant, v. CITY OF KALAMAZOO, Francis P. Hamilton, Robert D. Dunbar, Edwin L. Walters, Caroline R. Ham, Raymond L. Hightower, Patricia Cayemberg, Moses L. Walker, Members of the City Commission, James F. Bishop, Donald Schmidt and Robert Cinabro, Kalamazoo City Attorneys and Norman Fouts, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 128

264 N.W.2d 128

81 Mich.App. 78

Jeffrey B. HORTON, Plaintiff-Appellant, v. CITY OF KALAMAZOO, Francis P. Hamilton, Robert D. Dunbar Edwin L. Walters, Caroline R. Ham, Raymond L. Hightower Patricia Cayemberg, Moses L. Walker, Members of the City Commission, James F. Bishop, Donald Schmidt and Robert Cinabro, Kalamazoo City Attorneys and Norman Fouts Defendants-Appellees.

Docket No. 77-1376.

Court of Appeals of Michigan.

Jan. 24, 1978.

Released for Publication April 6, 1978.

Holman, Pelletier & Horton by Jeffrey B. Horton, Kalamazoo, for plaintiff-appellant.

William H. Culver, Kalamazoo, for defendants-appellees.

Before DANHOF, C. J., and KELLY and T. M. BURNS, JJ.

PER CURIAM.

Defendant City, through its City Commission, furnished legal counsel to defendant Fouts, a city police officer, and agreed to pay his costs in three actions brought by Fouts in the name of the state under the padlock law, M.C.L.A. § 600.3805; M.S.A. § 27A.3805, to abate public nuisances. Plaintiff sued to enjoin the providing of funds and services, sought restitution and an accounting. The trial court held that the expenditures were for a public purpose. From its grant of summary judgment in favor of the defendants, plaintiff appeals.

The Michigan Constitution forbids a city to loan its credit for a private purpose, Const.1963, art. 7, § 26, or to exercise its taxing power for anything but public purposes, Const.1963, art. 7, § 21. The state and its political subdivisions are limited to "such legislative acts and such governmental powers as exhibit a public purpose". Gaylord v. Gaylord City Clerk, 378 Mich. 273, 295, 144 N.W.2d 460, 467 (1966). Public funds cannot be used to further a private enterprise. McManus v. Petoskey, 164 Mich. 390, 395, 129 N.W. 681 (1911), Skutt v. Grand Rapids, 275 Mich. 258, 266 N.W. 344 (1936). But what constitutes a public purpose cannot be precisely defined; to a considerable extent each case has to be decided on its own facts. Gregory Marina, Inc. v. Detroit, 378 Mich. 364, 393, 144 N.W.2d 503 (1966) (opinion by T. M. Kavanagh, C. J.), 2 McQuillin, Municipal Corporations (3d ed), § 10.31, pp 817-818.

The actions brought by Fouts with the city's assistance are intended to abate alleged nuisances which are claimed to be the scenes of illegal activity. "It cannot be doubted that the protection of the public from illegal activity is a proper purpose for the exercise of police power". Tally v. Detroit, 54 Mich.App. 328, 336, 220 N.W.2d 778, 782 (1974).

The actions of a municipal legislative body enjoy a presumption of validity. Id. at 335, 220 N.W.2d 778, Watnick v. Detroit, 365 Mich. 600, 606, 113 N.W.2d 876 (1962). The courts are especially deferential toward legislative determinations of public purpose, "(f)or determination of what constitutes a public purpose involves considerations of economic and social philosophies and principles of political science and government. Such determinations should be made by the elected representatives of the people". Gregory Marina, Inc. v. Detroit, 378 Mich. 364, 394, 144 N.W.2d 503, 515 (1966) (opinion by T. M. Kavanagh, C. J.), see 2 McQuillin, supra, § 10.31, p 817. Justice O'Hara's opinion in Gregory Marina went even further: "In Michigan, constructing and operating a marina is a 'public purpose' because the legislature, whose business it is, said so". 378 Mich. at 406, 144 N.W.2d at 521. Long ago Justice Cooley, in The People ex rel The Detroit & Howell R. Co. v. The Township Board of Salem, 20 Mich. 452, 475, 4 Am.Rep. 400 (1870), stated:

"I do not understand that the word public, when employed in reference to this power, is to be construed or applied in any narrow or illiberal sense, or in any sense which would preclude the Legislature from taking broad views of State interest, necessity or policy, or from giving those views effect by means of the public revenues. Necessity alone is not the test by which the limits of State authority in this direction are to be defined, but a wise statemanship must look beyond the expenditures which are absolutely needful to the continued existence of organized government, and embrace others which may tend to make that government subserve the general well-being of society, and advance the present and prospective happiness and prosperity of the people." (Emphasis in original.)

Since that time the trend in Michigan and nationally has been toward an even more flexible concept of public purpose. Gaylord v. Gaylord City Clerk, supra, 378 Mich. at 299, 144 N.W.2d 460, 2 McQuillin, supra, § 10.31, p 818.

Although the nuisance abatement suits brought by Fouts are nominally the actions of a private...