L. A. Darling Co. v. Water Resources Com'n, 86

• Decision Date: 12 January 1955
• Docket Number: No. 86,86
• Citation: 67 N.W.2d 890,341 Mich. 654
• Parties: L. A. DARLING COMPANY, H. A. Douglas Manufacturing Company and Bronson Plating Company, Plaintiffs and Appellants, v. WATER RESOURCES COMMISSION, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 890

67 N.W.2d 890

341 Mich. 654

L. A. DARLING COMPANY, H. A. Douglas Manufacturing Company and Bronson Plating Company, Plaintiffs and Appellants, v. WATER RESOURCES COMMISSION, Defendant and Appellee.

No. 86.

Supreme Court of Michigan.

Jan. 12, 1955.

Wunsch & Coleman, Battle Creek, for appellant.

Frank G. Millard, Atty. Gen., Nicholas V. Olds, Asst. Atty. Gen., florence Clement Booth, Asst. Atty. Gen., for appellee.

Before the Entire Bench, except SMITH, J.

KELLY, Justice.

This appeal involves the validity of an order made by the water resources commission on March 21, 1950, directing appellant, L. A. Darling Company, to install suitable waste treatment and disposal system 'which will render its electro-plating waste discharges noninjurious to public health.' An order of discontinuance was entered in the lower court as to plaintiffs H. A. Douglas Manufacturing Company and Bronson Plating Company.

Appellant's plant is located in the city of Bronson, Michigan, and it is the claim of the commission that under authority granted to it by P.A.1929, No. 245, as amended by P.A.1949, No. 117, ¹ it had authority to issue its order 'to abate the pollution of the underground waters of the state in Bronson township and vicinity.'

The water resources commission was created by P.A.1929, No. 245, as amended by P.A.1949, No. 117, and consists of the director of conservation, the commissioner of health, the highway commissioner, the director of agriculture, and 3 citizens of the State appointed by the governor with the consent of the senate; the citizens to be selected from industrial, municipal and conservation groups.

A meeting of the commission was held February 21, 1950, after notice duly served upon the city of Bronson and 3 industries (including appellant) located in said city. This was not a hearing in the sense that witnesses were sworn, examined or cross- examined, but was more of a conference. Mr. Oeming, sanitary engineer employed by the commission, and Mr. Adams, executive secretary of the commission, advised the commission as to the nature of the problem as follows: That the city of Bronson had provided a lagoon to receive the waste from the plating companies; that the lagoon located northwest of the city would not take any more waste and that 'last spring through arrangements between the industries and the city the industries put up some money and the city sponsored the construction of sewers through the north end of town and the building of 2 lagoons, 60' X 120' to get rid of the wastes by infiltration'; that there were several homes across the street from the lagoon that used wells for water supply and that water from one of the wells showed a yellow color and an examination of the water disclosed chromium of sufficient amount to constitute a health hazard; that since then the city has constructed a water supply line providing the homes with connections free of charge, with instructions to the people to abandon the wells. The commission was advised by its representatives that 'the other phase of the problem is a serious one in that one of the city's wells is located 840' from these ponds. There is a very definite possibility that this city well will be contaminated. There is too short a distance between the ponds and the well. * * * It's too late to wait until the condition reaches the wells to do something about it, once contaminated it can never be corrected. Something should be done now to prevent contamination.'

In addition to the representatives of the 3 industrial companies, there was also present at this meeting several representatives of the city of Bronson. Mr. Brewer, city attorney, speaking for both groups, said that tests had been made at the time of the drilling of the Washington street well which showed that the ground water flow was from the east, that there was a solid stratum of clay which would prevent any seepage from the ponds; that the second set of ponds, the new ponds, were an attempt to conform to the desires of the commission; that they did not understand just what the tests of the commission showed; that they did make tests of the well water in that vicinity through Detroit testing laboratories which showed no undue pollution; that there was a limited amount of money available in a town of 1,800 to 2,000 population.

Mr. Robert Stocker, of the Darling Company, suggested the use of another well, and Mr. Rissman, vice-mayor, stated that the iron content in the new well had dropped 50%; that the city was checking the toxic materials and could show the commission ground water that had no chromium content.

Plaintiff appealed to the Branch county circuit court, in chancery, contending that the commission acted in an arbitrary and capricious manner in entering the order against it, and asked that the order be set aside and held for naught.

At the outset of the hearing, counsel for the commission argued that the provision of the statute providing for 'review de novo' meant that the court was limited to reviewing the proceedings had before the commission on the basis of what was developed at the meeting resulting in the issuance of the order appealed from. Counsel for appellant insisted that the court should hear the whole controversy based on evidence submitted to the court anew by the parties. On this point the court said:

'To me the word 'de novo' means 'anew' or 'fresh', 'to start from the beginning'. The word 'review' to me means to 're-examine' or 'to look over', something along that line. Putting them both together means to me to look over again, to review de novo, to look over afresh what has been done before, and after doing that, determine whether or not the order previously entered is a valid order.'

After hearing testimony of witnesses for both parties, the court, in its written opinion, stated:

'Once a fair hearing has been given by a State agency to which power to abate dangers to public health has been given, the proper findings made and other statutory requirements satisfied, a court cannot intervene in the absence of a clear showing that the limits of due process have been overstepped or that the order was unreasonable, arbitrary, unlawful, capricious or confiscatory.

'In this case the court finds that the commission acted within the limits of its statutory authority, that the findings were proper and that they were supported by the evidence before it, and therefore the petition must be dismissed and the order of the commission sustained.'

Appellant contends that the commission does not have jurisdiction over underground waters, but merely surface waters, and bases such contention upon the fact that the word underground is not found in the title, the definition section, ² nor the key section providing for unlawful discharges. ³

'Wherever the word 'person' is used in this act, it shall be construed to include any municipality, industry, public or private corporation, co-partnership, firm or any other entity whatsoever. Wherever the words, 'waters of the state' shall be used in this act, they shall be construed to include lakes, rivers and streams and all other water courses and waters within the confines of the state and also the great lakes bordering thereon.'

Appellant points to the fact that the words 'and all other water courses and waters' follow the specific words 'lakes, rivers and streams', and contends that 'it is a well established rule that general words which follow specific words in a statute are restricted to a sense analogous to the less general.'

C.L.S.1952, § 323.6, provides:

'It shall be unlawful for any person to discharge or permit to be discharged into any of the lakes, rivers, streams, or other waters of this state any substance which is injurious to the public health * * *.'

The pertinent part of section 2 of the statute, C.L.S. § 323.2, Stat.Ann.1952 Rev. § 3.522, reads:

'The commission shall protect and conserve the water resources of the state and shall have control of the pollution of surface or underground waters of the state of Michigan and the great lakes, which are or may be affected by waste disposal of municipalities, industries, public or private corporations, individuals, partnership associations, or any other entity. The commission is empowered to make or cause to be made surveys, studies and investigations of the uses of waters of the state, both surface and underground, and to cooperate with other governments, governmental units and agencies thereof in making such surveys, studies and investigations.' (Emphasis supplied.)

This Court in Reynolds v. Great American Insurance Co., 328 Mich. 391, 397, 43 N.W.2d 901, 904, commenting upon the use of 'and' and 'or,' said:

'It might be said that in reaching our conclusion we are construing 'and' as used in said section as a disjunctive. Under proper circumstances this may be done, in order to reach a proper conclusion as to the legislative intent.

"The mere literal construction of a statute ought not to prevail if it is opposed to the intention of the legislature apparent from the statute; and if the words are sufficiently flexible to admit of some other construction by which that intention can be better effected, that construction should be adopted.

"While words 'or' and 'and' are not to be treated as interchangeable and are to be followed when their accurate reading does not render the sense dubious, their strict meaning is more readily departed from than that of other words and one read in place of the other in deference to the meaning of the context.' Heckathorn v. Heckathorn (syllabi), 284 Mich. 677, 280 N.W. 79.'

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