Muskegon Tp. and City of Muskegon, Matter of, Docket No. 20954

• Decision Date: 08 December 1975
• Docket Number: Docket No. 20954
• Citation: 238 N.W.2d 578,66 Mich.App. 193
• Parties: In the Matter of the Proposed Incorporation of Certain Areas of MUSKEGON TOWNSHIP AND Portions of the CITY OF MUSKEGON. Robert BUTLER, Plaintiff-Appellee, v. STATE BOUNDARY COMMISSION, Defendant-Appellant. 66 Mich.App. 193, 238 N.W.2d 578
• Court: Court of Appeal of Michigan — District of US

Page 578

238 N.W.2d 578

In the Matter of the Proposed Incorporation of Certain Areas

of MUSKEGON TOWNSHIP AND Portions of the CITY OF

MUSKEGON.

Robert BUTLER, Plaintiff-Appellee, v. STATE BOUNDARY COMMISSION, Defendant-Appellant.

Docket No. 20954.

66 Mich.App. 193, 238 N.W.2d 578

Court of Appeals of Michigan.

Dec. 8, 1975.

Released for Publication Feb. 26, 1976.

[66 MICHAPP 194] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Charles D. Hackney, Asst. Atty. Gen., for defendant-appellant.

[66 MICHAPP 193] Dickinson, Wright, McKean & Cudlip by [66 MICHAPP 194] Charles R. Moon, Detroit, Dickinson, Wright, McKean & Cudlip by Judson M. Werbelow, Lansing, for plaintiff-appellee.

Before QUINN, P.J., and R. B. BURNS and D. E. HOLBROOK, Jr., JJ.

PER CURIAM.

The State Boundary Commission appeals by leave granted from an Ingham County Circuit Court order remanding a petition of incorporation for a public hearing before the Boundary Commission. The Township of Muskegon petitioned the State Boundary Commission to incorporate the township into a new city. The Boundary Commission rejected the petition without a public hearing because of a legal defect in the petition; the petition included parts of the City of Muskegon that had formerly been part of the township. The petitioners for the incorporation then sought review in the Ingham County Circuit Court and that court ordered the State Boundary Commission to conduct a public hearing pursuant to M.C.L.A. § 123.1008(3); M.S.A. § 5.2242(8)(3).

The issue as framed by the parties on appeal may be broken down into two parts. (1) Must the State Boundary Commission hold a public hearing if a petition for incorporation, consolidation or annexation presented to it is legally defective? (2) Is a petition for incorporation of a township legally defective when that petition includes territory of an already incorporated city?

We must answer the first question in the negative. All that the statute requires the State Boundary Commission to do if it finds the petition for [66 MICHAPP 195] incorporation to be defective is to certify its reason for finding the petition defective to the petitioner. M.C.L.A. § 123.1008(2); M.S.A. § 5.2242(8)(2). The Commission's order and findings of March 10, 1971, comply with the statute. There is no requirement that the Commission hold a public hearing prior to making this determination. While the State Boundary Commission has the power to revise the territory included within the petition, M.C.L.A. § 123.1010(1); M.S.A. § 5.2242(10)(1), this power is only available if the incorporation petition is not legally defective on its face.

We must answer the second question in the affirmative. In Carpenter v. Genesee County Board of Supervisors, 371 Mich. 295, 123 N.W.2d 708 (1963), the Supreme Court unanimously affirmed the denial of a writ of mandamus to compel the county board of supervisors to hold an incorporation election in Flint Township. Chief Justice Carr, writing for himself and three other justices, stated that the petition for incorporation was defective because it included territory of the City of Flint. Justice Souris, speaking for the other four justices, simply affirmed the denial of the writ on the...