Kelly v. Laing

• Decision Date: 06 June 1932
• Docket Number: Motion No. 493.
• Citation: 259 Mich. 212,242 N.W. 891
• Parties: KELLY v. LAING, City Clerk, et al.
• Court: Michigan Supreme Court

259 Mich. 212

242 N.W. 891

KELLY

v.LAING, City Clerk, et al.

Motion No. 493.

Supreme Court of Michigan.

June 6, 1932.

Appeal from Circuit Court, Bay County; Clarence M. Browne, Judge.

Mandamus by William J. Kelly against Carrie C. Laing, Clerk of Bay City, and others. From a judgment granting the writ, defendants appeal.

Reversed and writ set aside.

Argued before the Entire Bench.

A. H. McMillian, of Bay City, for appellants.

Charles A. Higgs, of Bay City (G. C. Leibrand, of Bay City, of counsel), for appellee.

Ganson Taggart, City Atty., of Grand Rapids, John W. Patchin, City Atty., of Traverse City, and Fremont Evans, City Atty., of St. Joseph, amici curiae.

FEAD, J.

This is review of judgment ordering writ of mandamus to compel defendants to provide for an election to vote upon thirteen sections of ‘amendments' to the charter of the city of Bay City, proposed by initiative petition of electors.

The charter was adopted under the Home Rule Act, Comp. Laws 1929, § 2228 et seq. It provides for a city commission of five persons, elected from districts, and a mayor without power of veto. It also requires the appointment of a city manager, whose powers and duties are defined or mentioned in some sixty-seven places of the charter and who is an executive officer of the city.

Ten of the proposed amendments provide for abolishing the districts, for increase of the commission to nine members, to be elected from wards, and for conferring power of veto on the mayor. Another is to abolish the office of city manager and vest his powers and duties in the city commission with ‘power to delegate such of said powers and duties to other city officers as the said commission shall by ordinance provide.’ Another is to prohibit city officers or employees from being interested in city contracts and to require public bids on certain expenditures. Another is to prohibit diversion of water and light revenues and to provide for service at cost.

The first question is whether the petition is in form to require submission of the proposed amendments to the electors.

Under Comp. Laws 1929, § 2257, which provides that the initiatory petition may set up the form in which proposed amendments shall be submitted on the ballot, the petition provides for separate vote on each of the thirteen sections. This would make it possible for the electors to approve some and reject others of the sections pertaining to the increase of the number of commissioners. A certain combination of approvals and rejections would render the charter unworkable. For example, if the electors should approve the abolishing of districts and reject increase of the number of commissioners, the territory from which the five commissioners are to be elected would not be stated in the charter. Other combinations would seriously impair the conduct of municipal business, certainly be productive of litigation or result in absurdity in government. A statute should not be construed to produce such results if another construction is fairly possible.

An amendment may be to the charter, to a subject of it, or to a specific section, by alteration, subtraction, or addition. It was the intention of the Legislature to provide for orderly change of the charter, not to encourage or sanction confusion in city government. To carry out its intention and to avoid absurdity of result, it is necessary that all proposals pertaining to the same subject and directed to the same purpose be treated as one amendment, as they are in fact, and be voted on as such, although they contemplate change of more than one section. See State v. City of Portland, 65 Or. 273, 133 P. 62.

Comp. Laws 1929, §§ 2257 to 2261, inclusive, in providing for submitting and adopting an amendment to the charter, uses the word ‘amendment’ in the singular. Section 2261 provides that other proposals, whether initiated by petition or proposed by the legislative body of the city, may be submitted at the same election. The consistent use of the singular demonstrates that it was deliberate on the part of the Legislature, and precludes the joining of two or more unrelated amendments in the same petition. It was evidently the intention of the Legislature to insure the considered action of the electors on each separate proposal and not to permit the securing of signatures through the trick of combining different proposals in the same petition.

We hold that the petition may embrace only one proposed amendment, to be so voted upon, although it may consist of more than one section, if all sections are germane to the purpose of the amendment. The petition on its face is not in the form required by law, and raised no duty in defendants to provide for an election.

Counsel discuss at length another question, upon which attorneys of other cities have filed a brief amici curiae because of its public interest. Counsel disagree upon whether it is proper for present consideration or should be raised by quo warranto after the election. The determination of the question is more important than decision of the matter of procedure, and, as it will enable electors to take proper steps to change charters and probably save further litigation, we are moved to consider it.

The question is whether the changes of the nature here proposed may be made by amendment to the charter or only by revision.

Comp. Laws 1929, § 2254 provides: ‘Any city desiring to revise its charter shall do so in the following manner. * * *’

Comp. Laws 1929, § 2257 provides: ‘Any existing city charter * * * may from time to time be amended in the manner following. * * *’

Either revision or amendment may be initiated by petition of electors. On amendment, the proposal is submitted at the election in the form set up in the petition, if it sets up a form. The sections of the statute pertaining to amendment of a charter adopted under the Home Rule Act contain no express language indicating that a change in the form of government may be so made. On revision, the charter is prepared by a charter commission, elected by the people, and submitted to the electors. At the initial election to determine whether the charter shall be revised, the legislative body of the city or the initiative petitions ‘may provide for the submission with such question for an advisory vote the question of a change in the form of government of such city.’ Comp. Laws 1929, § 2254. Thus the statute rather clearly points out revision of the charter as the method of changing the form of government, and, moreover, by providing for an advisory rather than a mandatory vote, that the final determination of such change is committed to a charter commission, subject to later approval of the electors.

‘Revision’ and ‘amendment’ have the common characteristics of working changes in the charter, and are sometimes used inexactly, but there is an essential difference between them. Revision implies a re-examination of the whole law and a redraft without obligation to maintain the form, scheme, or structure of the old. As applied to fundamental law, such as a constitution or charter, it suggests a convention to examine the whole subject and to prepare and submit a new instrument, whether the desired changes from the old be few or many. Amendment implies continuance of the general plan and purport of the law, with corrections to better accomplish its purpose. Basically, revision suggests fundamental change, while amendment is a correction of detail.

‘Revision. The act of reexamination to correct, review, alter or amend; review re-examination, looking at again.’ 54 C. J. 771.

‘The term ‘amendment’ implies such addition to or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.' 25 R. C. L. 904; Livermore v. Waite, 102 Cal. 113, 36 P. 424,25 L. R. A. 312;People v. Stiner, 248 Mich. 272, 287, 226 N. W. 899, 67 A. L. R. 552.

In City and County of Denver v. New York Trust Co., 229 U. S. 123, 143, 33 S. Ct. 657, 666, 57 L. Ed. 1101, upon the claim that a proposed charter amendment in regard to the acquisition of a municipal water plant was a revision of the charter, the court said: ‘The section is in form and in substance a mere amendment. It does not alter the form of the city government, or make extensive changes in the existing charter, but is confined to matters pertaining to public utilities, more especially the acquisition, maintenance, and operation of a municipal water plant.’

In State v. Taylor, 22 N. D. 362, 133 N. W. 1046, 1048, the Constitution provided for two state normal schools, and that no other institution of like character should be established without a revision of the Constitution. In holding that...