Maki v. East Tawas

• Citation: 385 Mich. 151,188 N.W.2d 593
• Decision Date: 07 July 1971
• Docket Number: No. 17,17
• Parties: Virginia MAKI, Administratrix of the Estate of Leo V. Maki, Deceased, Plaintiff-Appellee, v. EAST TAWAS, a Municipal Corporation, Defendant-Appellant.
• Court: Supreme Court of Michigan

Page 593

188 N.W.2d 593

385 Mich. 151

Virginia MAKI, Administratrix of the Estate of Leo V. Maki, Deceased, Plaintiff-Appellee, v. EAST TAWAS, a Municipal Corporation, Defendant-Appellant.

No. 17.

Supreme Court of Michigan.

July 7, 1971.

Cicinelli, Mossner, Majoros, Harrigan & Alexander, Saginaw, for plaintiff-appellee; by Eugene D. Mossner, Saginaw.

Michael N. Freel, East Tawas, Egloff, Mainolfi, Taylor, McGraw & Collison; by Charles C. Collision, Saginaw, for defendant-appellant.

Before the Entire Bench.

T. G. KAVANAGH, Justice.

In December of 1965, the plaintiff, Leo Maki, went to the defendant's city dump to discard some refuse. He dumped the refuse at an area designated by the attendant city employee and then remained to talk to the attendant. While inquiring about a bicycle part, a small explosion occurred in a nearby refuse fire and the plaintiff was struck in the left eye by what appeared to be a .22 caliber bullet.

The plaintiff later lost the use of his left eye and he sued the defendant city for his ensuing disability.

The plaintiff originally based his claim upon negligence and counts of gross negligence and nuisance were later added. In answer, the City filed a motion for accelerated judgment asserting that 1964 P.A. 170, § 7; M.C.L.A. 691.1407; M.S.A. 3.996(107) held them immune from such a suit. The circuit judge denied the defendant's motion stating that the foresaid § 7 was unconstitutional as it did not fall within the object embraced in the title of the act. With the defendant thus stripped of immunity and after the plaintiff had voluntarily struck from his complaint his allegations of negligence and gross negligence the case proceeded to a jury trial solely on the theory of nuisance. The jury returned a verdict of $12,500 for the plaintiff and found unanimously on a special finding that the City had not maintained an intentional nuisance but did find on a vote of ten to two that the City had maintained a nuisance arising 'out of the manner of operation'.

The court of appeals affirmed the trial judge and the defendant appealed to this court.

The governmental immunity statute, 1964 P.A. 170, § 7; M.C.L.A. 691.1407; M.S.A. 3.996(107) states:

'Except as in this act otherwise provided, all governmental agencies shall be immune from Tort liability in all cases wherein said government agency is engaged in the exercise and discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is hereby affirmed.' (Emphasis added.)

The plaintiff claims that the created immunity of § 7 encompasses on its face immunity from All tort liability and if such is the scope of § 7, plaintiff claims it would create a broader and more inclusive governmental immunity than is expressed in the title to 1964 P.A. 170:

'An act to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in a governmental function, for injuries to property and persons Caused by negligence; to define and limit such liability; to define and limit the liability of the state when engaged in a proprietary function; to authorize the purchase of liability insurance to protect against loss arising out of such liability; to provide for defending certain claims made against public officers and paying damages sought or awarded against them; and to repeal certain acts and parts of acts.' (Emphasis supplied.)

If the act's created immunity from 'tort liability' is broader in reach than the title's immunity 'for injuries to property and persons caused by Negligence', the plaintiff claims § 7 would violate the prohibition of Const.1963, art. 4, § 24 that no law shall embrace more than one object which shall be expressed in its title.

In 1888 we quoted the observations made in Justice Cooley's treatise on Constitutional limitations on our duty in determining whether an act was within the scope of its title. As in other areas his comments are still relevant today:

"As the legislature may make the title to an act as restrictive as they please, it is obvious that they may sometimes so frame it as to preclude many matters being included in the act which might, with entire propriety, have been embraced in one enactment with the matters indicated by the title, but which must now be excluded because the title has been made unnecessarily restrictive. The courts cannot enlarge the scope of the title. They are invested with no dispensing power. The constitution has made the title the conclusive index to the legislative intent as to what shall have operation. It is no answer to say that the title might have been made more comprehensive, if in fact the legislature have not seen fit to make it so." (In the Matter of Hauck, 70 Mich. 396, 403, 38 N.W.2d 269, 273 (1888))

We have often held that this constitutional stricture on statutory enactments was not a hollow formality. MacLean v. State Board of Control, 294 Mich. 45, 292 N.W. 662 (1940) synopsizes our consistent adherence to the principle that an act shall not exceed the scope of its title. We said in MacLean, 48--49, 292 N.W. 663:

'The constitutional provision was designed mainly to prevent the legislature from passing laws not fully understood, Thomas v. Collins, 58 Mich. 64, 24 N.W. 553; it was intended that the legislature, in passing an act, should be fairly notified of its design, Attorney General (ex rel. Longyear) v. Weimer, 59 Mich. 580, 26 N.W. 773; and that legislatures and parties interested might understand from the title that only provisions germane to the object therein expressed would be enacted, Blades v. Board of Water Commissioners of Detroit, 122 Mich. 366, 81 N.W. 271; and to avoid bringing into one bill subjects diverse in their nature and having no necessary connection, but with a view to combining in their favor the advocates of all--or what is commonly spoken of as log-rolling in legislation, State Mutual Rodded Fire Ins. Co. v. Foster, 267 Mich. 118, 255 N.W. 174.'

The title to 1964 P.A. 170 indicates that the act should create immunity for governmental acts of Negligence. However, the act itself, in § 7, creates immunity for the much broader area of governmental torts. It is apparent from even a cursory examination of any legal encyclopedia or dictionary that an action based on 'negligence' is a species of a generic action based in torts. As the trial judge pointed out, the headings in Prosser on Torts refer to actions based on nuisance, direct trespass, assault and battery, false arrest, deceit, defamation, abuse of process, malicious prosecution and economic duress--all of which are tort actions apart from negligence and all of which might be brought against a governmental body.

It would appear, then, that to hold § 7 constitutional we would be required to reduce the scope of the government's § 7 immunity from immunity for All 'torts' to immunity from 'torts caused by negligence'. Such an interpretation, however would require this court to engage in judicial legislation. ¹

Such interpretation in the name of preserving a statute's constitutionality ² would exhaust Const.1963, art. 4, § 24 ³ of all meaning. 'Negligence' and 'tort' remain legal terms of art and while their precise definitions are often elusive they are not synonymous. ⁴ To treat them as synonymous now would be reminiscent of Lewis Carroll's Humpty Dumpty as he ascornfully chastised Alice 'when I use a word it means just what I choose it to mean--neither more nor less.' We decline to overtly engage in such activity. Rather our duty and our problem

'is to construe what Congress has written. After all, Congress expresses its purpose by words. It is for us to ascertain--neither to add nor to subtract, neither to delete nor to distort.' 62 Cases, etc., Jam v. United States, 340 U.S. 593, 596, 71 S.Ct. 515, 518, 95 L.Ed. 566, 570 (1951). See also People v. Blumrich, 183 Mich. 133, 137, 149 N.W. 1040 (1914).

So construing, we hold that § 7 exceeds the scope of its title and is therefore unconstitutional and invalid. We further hold that § 7 is independent of the remainder of 1964 P.A. 170 and can therefore be severed from the act. ⁵ The remainder of 1964 P.A. 170 is otherwise complete in itself and capable of being carried out without reference to the unconstitutional § 7. ⁶

In this posture it is unnecessary to decide what effect the nature of this nuisance recovery (i.e. 'manner of operation') has on municipal immunity. ⁷

Accordingly we affirm the judgment.

No costs, a public question being involved.

T. M. KAVANAGH, C.J., and ADAMS, T. G. KAVANAGH and SWAINSON, JJ., concur.

BLACK, Justice (concurring in affirmance).

When the defendant municipal corporation applied for leave to review the decision of Division 3 (granted February 10, 1970; 383 Mich. 766), I concluded upon review of the papers submitted and the opinions below that Judges Danhof and Holbrook had reasoned out the right response for those combined and obviously difficult questions of statutory construction and constitutional validity which their opinion portrays (Maki v. City of East Tawas, 18 Mich.App. 109, 170 N.W.2d 530). As I recall most here came then to similar conclusion, yet as recommended to us by one of our Commissioners we granted the application on account of the widespread importance of such questions. In a word, it was deemed best that the defendant-stated question:

'Was plaintiff's cause of action barred by provisions of Act 170 of P.A.1964, being M.S.A. 3.996(101) et seq.?';

should come to decision by this Court in the light of the specific facts of the case as specially determined by the jury's verdict.

The appeal was submitted January 8, 1971. Since then two opinions submitted by two Justices have been submitted to us for consideration. One as I read it stands for affirmance of...