Jones v. City of Ypsilanti, Docket No. 7129

CourtCourt of Appeal of Michigan (US)
Writing for the CourtW. J. WEIPERT
Citation26 Mich.App. 574,182 N.W.2d 795
PartiesSiller E. JONES, Plaintiff-Appellee, v. CITY OF YPSILANTI, a Michigan municipal corporation, Defendant-Appellant
Docket NumberDocket No. 7129,No. 2
Decision Date29 September 1970

Walter J. Zotter, Martin, Bohall, Joselyn, Halsey & Rowe, Detroit, for defendant-appellant.

C. J. Hurbis, Stripp & Roberts, Ypsilanti, for plaintiff-appellee.

Before J. H. GILLIS, P.J., V. J. BRENNAN and WEIPERT,* JJ.

W. J. WEIPERT, Judge.

Plaintiff, a 63-year-old widow, was injured when she tripped on a defective sidewalk adjoining Michigan Avenue, a state trunkline highway, in the City of Ypsilanti in November 1966. Plaintiff brought this action against Defendant City seeking recompense for her injuries and claiming that defendant had jurisdiction over the sidewalk and a duty to maintain it.

Defendant City originally admitted jurisdiction over the sidewalk, denied negligence, and alleged contributory negligence by Plaintiff. Defendant subsequently moved for summary judgment and also moved to allow an amendment to its amended answer to deny jurisdiction. The motion for summary judgment was denied and that to allow amendment granted.

A jury trial in Washtenaw Circuit Court resulted in a verdict for Plaintiff in the amount of $5,000.00. Defendant moved for a judgment notwithstanding the verdict prior to entry of the judgment; the motion was denied in February 1969 and defendant appealed.

Defendant urges that the 1963 constitution places jurisdiction of state trunkline highways in the state highway department; that highways are defined so as to include sidewalks (C.L.1948, § 691.1401, as added by P.A.1964, No. 170 (Stat.Ann.1969 Rev. § 3.996(101))); that the sate has the exclusive responsibility to maintain state trunkline highways and accepts all legal liability for them (C.L.1948, § 250.61, as amended by P.A.1959, No. 185 (Stat.Ann.1970 Cum.Supp. § 9.901)); and that, therefore, defendant city is relieved of all liability for defects in sidewalks adjacent to Michigan Avenue as it passes through the city. This interpretation oversimplifies the question that is before the Court.

Prior to 1960, the responsibility of Michigan municipalities as to public ways was set out in C.L.1948, § 242.3 (Stat.Ann.1958 Rev. § 9.593), stating in part:

'It is hereby made the duty of townships, villages, cities, or corporations to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, All public highways, streets, bridges, Sidewalks, cross walks, and culverts that are within their jurisdiction, and under their care and control, and which are open to public travel.' (Emphasis added).

Separate reference is made in the statute to public highways and to sidewalks.

Before 1960, counties and townships were exempted from the liability imposed by C.L.1948, § 242.3, quoted Supra, when the highway concerned is a state trunkline highway:

'On and after the first day of January, A.D., 1926, the cost of constructing, improving and maintaining trunk line highways shall be met entirely by the state, and the counties and townships shall thereafter be relieved of all expenses and legal liabilities in connection therewith.' (C.L.1948, § 250.61 (Stat.Ann.1958 Rev. § 9.901)).

In 1959, the statute exempting counties and townships from liability for state trunkline highways was amended. The 1959 amendment to the statute reads:

'On and after January 1, 1960, the cost of constructing, improving and maintaining trunk line highways shall be met entirely by the state, and the counties, townships and incorporated cities and villages shall thereafter be relieved of all expenses and legal liabilities in connection therewith as imposed by section 21 of chapter 4 and chapter 22 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 and sections 242.1 to 242.8 of the Compiled Laws of 1948.' (C.L.1948, § 250.61, as amended by P.A.1959, No. 185 (Stat.Ann.1970 Cum.Supp. § 9.901)).

This amendment effected two significant changes. It included incorporated cities and villages in the exclusion regarding state trunkline highways. More significantly, it spelled out from what law these municipal bodies were being excluded. The 1959 amendment to the statute provided that the liability imposed on cities by C.L.1948, § 242.3 quoted Supra, with respect to sidewalks no longer existed when the sidewalk in question was adjacent to and included within a state trunkline highway right-of-way. If liability were imposed on the city by any other source, The 1959 amendment would not have excluded it; the limit of the exclusion was specifically defined. As long, therefore, as the city's source of liability was C.L.1948, § 242.3, the 1959 amendment explicitly excludes liability where, as here, a state trunkline highway is involved. In 1964 a new governmental tort liability statute was enacted (C.L.1948, § 691.1401 Et seq. as amended by P.A.1964, No. 170 (Stat.Ann.1969 Rev. § 3.996 (101))). This Act repealed, among others, the provisions relating to the duty of counties and townships for sidewalks (C.L.1948, § 242.3). The exclusion as to cities provided by the 1959 amendment, quoted above, no longer exists; the specific source of that exclusion has been repealed. Since the effective date of P.A.1964, No. 170, the liability of government bodies is determined by the wording of that act alone.

Defendant cites the wording of the Michigan Constitution of 1963, Article V, Section 28, which reads:

'There is hereby established a state highway commission, which shall administer the state highway department and have jurisdiction and control over all state trunkline highways and appurtenant facilities, and such other public works of the state, as provided by law.'

Defendant then refers to the definition of 'highway' found in P.A.1964, No. 170 and infers that this definition refers to the use of the word 'highway' in section 28 of the Constitution. It should be noted, however, that the Michigan Constitution of 1963 became effective January 1, 1964 while P.A.1964, No. 170, which contains the definition urged by defendants, became effective July 1, 1965. Further, P.A.1964, No. 170, begins, 'As used in this act.'

We agree with plaintiff's contention that as to sidewalks, jurisdiction in the state does not necessarily eliminate jurisdiction in the city. Article VII, Sec. 29, of the 1963 Constitution reads in part:

'Except as otherwise provided in this constitution the right of all counties, townships, cities and villages to the reasonable control of their highways, streets, alleys and public places is hereby reserved to such local units of government.'

The context of Section 29 of Article VII is changed from its predecessor in the 1908 Constitution in that the phrase, 'Except as otherwise provided in this constitution,' is added. Nothing similar to the present section 28 of Article V existed in the 1908 Constitution. The question then is whether section 28 vested 'exclusive' jurisdiction over state trunkline highways in the state or only 'paramount' jurisdiction, leaving room for local jurisdiction in those areas particular to local government, such as sidewalks, where the exercise of local jurisdiction would not interfere with the state's paramount jurisdiction.

Constitutional provisions relating to the same subject matter are to be construed together. Thoman v. City of Lansing (1946), 315 Mich. 566, 24 N.W.2d 213. The framers of the constitution are presumed to have knowledge of the judicial construction of existing constitutional provisions. Richardson v. Secretary of State (1968), 381 Mich. 304, 160 N.W.2d 883. The existing law with respect to a city's jurisdiction over state trunkline highways at the time the present constitution was adopted is stated in Allen v. State Highway Commissioner (1953), 338 Mich. 407, 415, 61 N.W.2d 625, 629:

'The reasonable control of streets reserved to cities under the Constitution (article 8, § 28) does not give them exclusive control, preventing the State from assuming any control over State trunk line highways running through cities.'

The existing law was more fully set forth in People v. McGraw (1915), 184 Mich. 233, 238, 150 N.W. 836, 837:

'In other words, the municipality retains Reasonable control of its highways, which is such control as cannot be said to be unreasonable and inconsistent with regulations which have been established, or may be established, by the state itself with reference thereto. This construction allows a municipality to recognize local and peculiar conditions, and to pass ordinances regulating traffic on its streets, which do not contravene the state laws.' (Emphasis in McGraw.)

Reading the two constitutional provisions relating to control of highways with reference to each other and in light of existing law when the provisions were framed, we believe that municipalities were meant to retain reasonable control over state trunkline highways located within their boundaries so long as that control pertains to local concerns and does not conflict with the paramount jurisdiction of the state highway commission.

This view is further supported by the legislative action following adoption of the Constitution of 1963. Article V, Section 28 provides that jurisdiction and control shall exist in the state highway commission, 'as provided by law.' The legislature responded in 1964 with P.A.1964, No. 170, which reads in part:

'Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. * * *...

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