Kalamazoo Tp., Kalamazoo County v. Stamm

• Decision Date: 07 June 1954
• Docket Number: No. 12,12
• Citation: 339 Mich. 619,64 N.W.2d 595
• Parties: KALAMAZOO TP., KALAMAZOO COUNTY et al. v. STAMM.
• Court: Michigan Supreme Court

Page 595

64 N.W.2d 595

339 Mich. 619

KALAMAZOO TP., KALAMAZOO COUNTY et al. v.STAMM.

No. 12.

Supreme Court of Michigan.

June 7, 1954.

Smith & Bauckham, Kalamazoo, for plaintiff(appellant), Tp. of Kalamazoo, Kalamazoo County.

Troff, McKessy, Lilly, Uridge & Bonow, Kalamazoo, for plaintiffs(appellants), Milwood Property Owners Ass'n, and Orson W. Peck.

Sharpe, Stapleton, Huff & Adams, Kalamazoo, for plaintiffs(appellants), School DistrictNo. 6 Fractional, Tps. of Kalamazoo and Portage, Kalamazoo County, Mich., a municipal corporation and Robert B. Boyce.

John M. Pikkaart, Kalamazoo, for defendants(appellees), Anthony Stamm, as Clerk of Kalamazoo County, Mich., Bd. of Sup'rs of Kalamazoo County, Mich., and County of Kalamazoo, Mich., a municipal corporation.

Richard H. Paulson, Kalamazoo, for appellees.

Before the Entire Bench.

KELLY, Justice.

Appellants seek reversal of a judgment of the circuit court of Kalamazoo county, upholding the annexation of a part of the township of Kalamazoo to the city of Kalamazoo.Appellants assign 14 errors as grounds for appeal.Two of these deal with the court's refusal to grant a temporary injunction and the court's holding that the annexation was legal; 8 refer to the contents of the petition for annexation, and the manner of filing same.The remaining 4 present the following questions:

Was the resolution calling an annexation election passed at a regular, valid and legal meeting of the board of supervisors?

Did the court err in transferring the cause from the equity to the law side of the court?

Was the board of supervisors' decision that the petition was sufficient subject to judicial review?

Was the act¹ under which annexation was accomplished unconstitutional?

The petition requesting the election was filed August 14, 1952.The resolution calling for the election was passed by the Kalamazoo county board of supervisors on September 18, 1952.Plaintiffs filed their bill of complaint September 26, 1952, requesting an injunction.Injunctive relief was denied October 2, 1952.

On November 4, 1952, over 36,000 electors of the township and city voted on the annexation proposal and a majority voted 'yes.'The annexation became effective January 3, 1953.

Two weeks after the election, plaintiffs filed their supplemental bill of complaint, reaffirming the contents of the original bill and setting forth that the election had been held.On December 8, 1952, plaintiffs again amended their bill of complaint, alleging that as a result of the election the township would lose a substantial part of its valuation both for special assessments and for future general tax purposes, and would be required to turn over and transfer to the city of Kalamazoo a substantial portion of the personal property of said township.The opinion of the trial court, was filed May 14, 1953.

That portion of the township which was annexed, exclusive of streets, consisted of 278.86 acres.It was a part of the township which had been commercially developed and no electors resided in the area.The assessed valuation of both real and personal property of the township of Kalamazoo for 1952 was $43,260,755.That portion of the assessed valuation attributable to the area annexed was $3,641,600, or approximately 8.4% of the total assessed valuation.

None of the appellants or property owners within the area detached from the township and annexed to the city complained of the action of the board in calling for the election, or of the manner in which the election was conducted.In fact, this record is devoid of any inference that the question was not properly presented on the ballot, or that any fraud was practiced in giving proper notice of the pending election, or in conducting same.

Sections 6and8 of P.A.1909, No. 279(home rule act), apply to annexation petition requirements and the board of supervisors' approval or disapproval of same.No gualified signers resided in the territory proposed to be annexed and, therefore, the petition was governed by the provisions of section 6 providing that a petition would be adequately signed if it contained the signatures 'of persons, firms, [or] corporations * * * who collectively hold record legal title to more than 1/2 of the area of the land exclusive of streets, in the territory to be annexed'.The petition was signed by 8 corporations and 1 individual, and contained the following statement, which was not challenged or disputed:

'That the undersigned persons, firms and corporations collectively hold record legal title to more than 1/2 of the area proposed to be annexed, exclusive of streets.'

Section 6 provides for certain requirements for a petition of annexation as follows:

'That on such petition each signature shall be followed by a description of the land and the area represented thereby and a sworn statement shall also accompany such petition giving the total area of the land, exclusive of streets, lying within the area proposed to be annexed: Provided further, That before any signatures are obtained on a petition as hereinbefore provided, such petition shall have attached to it a map or drawing showing clearly the territory proposed to be incorporated, detached, or added, and each prospective signer shall be shown such map or drawing before signing the petition.Such petition shall be verified by the oath of 1 or more petitioners.'

The legislature placed the responsibility of determining the adequacy of the petition upon the board of supervisors when they provided in section 8 that if it,

'appear to said board or a majority thereof that said petition or the signing thereof does not conform to this act or contains incorrect statements, no further proceedings pursuant to said petition shall be had, but, if it shall appear that said petition conforms in all respects to the provisions of this act, and that the statements contained therein are true, said board of supervisors shall, by resolution, provide that the question of making the proposed incorporation, consolidation or change of boundaries shall be submitted to the qualified electors of the district * * *.'

The legislature concluded this section with the following expressive and pointed directive:

'After the adoption of such resolution neither the sufficiency nor legality of the petition on which it is based may be questioned in any proceeding.'

Appellants claim the petition was not properly verified.The stipulation of facts contains the following statement in regard to an objection to the verification made by plaintiffs to the board of supervisors at its meeting on September 18, 1952, prior to the board's resolution authorizing the election:

'Objections were made to the board by attorneys for plaintiffs herein, concerning the validity of the petition for annexation as outlined in the bill of complaint in this cause.After much discussion, and without any order or resolution from the board authorizing it, the words 'and that the same is true' were inserted in the verification by attorney Gould Fox, in the presence of Cameron L. Davis and under his authorization and in the board room.'

Appellants insist that the petition was deficient because there was not a proper description of the area represented following each signature.The petition was of such length that it required 15 pages of the record to reprint, due mainly to the fact that each signer's property was described by metes and bounds.The petition contained a sworn statement of a registered surveyor that there were 278.86 acres, exclusive of streets, in the area to be annexed.

Appellants contend that the petition failed to show that each signer inspected a map attached to the petition before signing same.Preceding the signatures was the following statement:

'That a map or drawing showing clearly the territory to be annexed to the city of Kalamazoo was attached to this petition at the time the undersigned and each of the undersigned did sign and that the undersigned and each of the undersigned were shown and did inspect such a map or drawing before signing this petition.'

Appellants also attack the petition because the signers in behalf of the petitioning corporations did not show they had authority to sign for such corporations.The statute does not contain any such requirement of proof of officer's authority, and it is a well recognized general principle that in the absence of evidence to the contrary the presumption prevails that the officer signing had authority to do so.

Appellants contend that these defects invalidated the petition, the resolution, and the election.Over 1 year has elapsed since the election and the annexation was completed.In the case of Holt v. Board of Supervisors of Ogemaw County, 186 Mich. 241, 152 N.W. 1038, it was said:

'It is one thing to determine in advance of an election that an illegal provision for the method of holding it shall not be enforced * * * and quite another thing to determine that the actual result of an election which has been held shall not be conclusive.'

In the case of City Commission of Jackson v. Hirschman, 253 Mich. 596, 235 N.W. 265, 267, we said:

'Further objections affecting the validity of the charter amendments are that they were not lawfully submitted to the electors.* * * There were irregularities, but the important fact is that there is no claim or showing that any elector was misled or hindered in his voting by reason of such irregularities.'

In the case of Hulan v. Township of Greenfield, 229 Mich. 273, at page 279, 200 N.W. 980, at page 982, this Court considered objections to an annexation election held under P.A.1909 No. 279, and stated:

"As the execution of these statutes must very often fall to the hands of men unacquainted with the law and unschooled in business, it is inevitable that mistakes shall sometimes occur, and that very often the law will fail of strict compliance.Where an election is thus rendered irregular, whether the...