Sch. Dist. of City of Ferndale v. Royal Oak Tp. Sch. Dist. No. 8

• Decision Date: 01 April 1940
• Docket Number: No. 63.,63.
• Parties: SCHOOL DIST. OF CITY OF FERNDALE v. ROYAL OAK TP. SCHOOL DIST. NO. 8 et al. (KEPLEY et al., Interveners).
• Court: Michigan Supreme Court

293 Mich. 1

291 N.W. 199

SCHOOL DIST. OF CITY OF FERNDALE

v.ROYAL OAK TP. SCHOOL DIST. NO. 8 et al. (KEPLEY et al., Interveners).

No. 63.

Supreme Court of Michigan.

April 1, 1940.

Suit by the School District of the City of Ferndale, a municipal corporation, against the Royal Oak Township School District No. 8, and others, to determine, for school district purposes, the legal status of lands within School District No. 8, which had been annexed by the village of Ferndale and the city of Ferndale. Charles L. Kepley and others, residents and taxpayers of annexed land, sought to intervene. From an order denying intervention, Charles L. Kepley and others appeal.

Order affirmed.Appeal from Circuit Court, Oakland County, in Chancery; Frank L. Doty, judge.

Argued before the Entire Bench.

Bernard E. Konopka and Walter M. Nelson, both of Detroit, for appellants.

Robert C. Baldwin, of Hazel Park (Claude H. Stevens, of Detroit, of counsel), for appellee School Dist. No. 8 of Royal Oak Tp.

McALLISTER, Justice.

On April 1, 1918, Ferndale was incorporated as a village. It included within its borders a part of the Royal Oak township school district No. 9, a graded school district. The territory of the school district, in course of time, was organized into several different municipalities. The district continued as a graded school district until 1927, when the school code of 1927, Act No. 319, Pub.Acts 1927, 2 Comp.Laws 1929, § 7094 et seq. (Stat.Ann. § 15.1 et seq.), was adopted. At the time the village of Ferndale was incorporated, it annexed to its easterly border a strip of land which was included in Royal Oak township school district No. 8. In April, 1927, the village of Ferndale became a home-rule city. In February, 1928, the city of Ferndale annexed additional lands which were comprised in Royal Oak township school district No. 8. After these annexations of territory, the electors of school district No. 9 voted to become a third class school district known as the ‘School District of the City of Ferndale.’ No steps were ever taken to place any part of school district No. 8 under the jurisdiction of the school district of the city of Ferndale, excepting that at an informal meeting of the school boards of the two districts it was denied that any part of the territory annexed by the village of Ferndale, and subsequently by the city of Ferndale, was a part of the school district of the city of Ferndale. In September, 1938, the school district of the city of Ferndale filed a bill of complaint in the circuit court for the county of Oakland against Royal Oak township school district No. 8 and others, praying that the court determine the legal status, for school district purposes, of the lands which had been so annexed. It was claimed that by virtue of certain statutes (2 Comp.Laws 1929, §§ 7219, 7220, 7222, 7236 [Stat.Ann. §§ 15.181, 15.182, 15.184, 15.198]) the annexations, by the village of Ferndale and the city of Ferndale, of territory comprised within school district No. 8 automatically brought such land into the school district of the city of Ferndale when it was organized as a third class district under the school code. After a full hearing, the circuit court held that the annexed lands did not become a part of the school district of the city of Ferndale, but remained a part of school district No. 8 of the township of Royal Oak, and dismissed plaintiffs' bill of complaint. Appellants sought to intervene in the suit, and, upon dismissal of their petition, asked for review of the court's order denying intervention.

The bill of complaint was filed September 6, 1938. Answer was filed by Royal Oak township school district No. 8 on October 21, 1938. The case was tried, and the court filed its opinion determining the issue on January 26, 1939. It was not until 19 days later, after the filing of the opinion and after notice of settlement of decree had been filed, that appellants filed their petition to intervene.

It appears that in 1928 the Grand Trunk Railway Company sought to vacate certain streets and alleys in the city of Ferndale in order to construct freight yards and switching tracks. These tracks were to be constructed on an embankment made necessary by a grade separation. Teh railway company entered into an agreement whereby it paid school district No. 8 the sum of $18,000 in consideration of permission to build the embankment and tracks. The embankment was erected across a corner of the school district, with the result that the citizens residing in the triangular piece of terriroty were cut off from direct access to the other part of school district No. 8, and school children in such isolated portion of the district were obliged to travel a much more circuitous route around the embankment than had been the case previously. It appears to have been assumed that the school district would use the fund received from the railway company to furnish more convenient and adequate school facilities in the triangle; and a building was purchased for such purposes and has been used for a school within the so-called isolated territory; but it appears that facilities are inadequate and that the school is overcrowded. The residents of the districthave apparently been unable to secure adequate school facilities through action of the school board. In their petition to intervene, appellants set forth that they ‘have at all times depended upon the various public bodies in charge of furnishing school facilities, and for several years following 1928 these petitioners and their neighbors awaited appropriate action by the responsible public bodies to furnish school facilities for the children of the Campbell Park triangle, and for a number of years petitioners did not appreciate the fact that said Royal Oak township school district No. 8 did not furnish fair or adequate school facilities, and they were not advised and did not know or suspect that they were not legally within the jurisdiction of the said school district No. 8 in the matter of public school facilities until some years later when the total disregard of the school requirements of the said triangle was persisted in and it came to be suspected by some of the petitioners that they had been and were legally entitled to the facilities of the public schools of the city of Ferndale and of the school district of the city of Ferndale, parties hereto, and continuously, persistently and repeatedly thereafter these petitioners and their neighbors have petitioned, interviewed, sought, and beseeched the responsible public officials for adequate school facilities for the said triangle, and for the right to be included in and regarded as a part of the school district of the city of Ferndale and entitled to the use of the school facilities thereof, as more fully appears by the records of the various boards of education and the common councils and by voluminous clippings from and notices in the public press for the last six or seven years, and petitioners and their neighbors have asserted, petitioned for and pressed their rights and claims without ceasing and to the best of their ability as ordinary citizens and laymen, and that petitioners' rights have been repeatedly and steadily denied for reasons and influences not understood by them.’

The court held that it could not grant the petition to intervene unless it came to a different conclusion in the case, and that it ‘had given that question very careful consideration and could see no way or reason for changing its former opinion.’ Pursuant to the opinion, a decree was entered April 28, 1939. No appeal from such decree has been taken by plaintiff or by appellants. Error is assigned upon refusal of the trial court to grant the petition for intervention.

It is provided in 3 Comp.Laws 1929, § 14019 (Stat.Ann. § 27.663): ‘In an action either at law, or in equity, anyone claiming an interest in the litigation may, at any time, be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the * * * main proceeding.’

‘Under the common law no right to intervention existed; and, in Michigan, none existed prior to the adoption of the Judicature Act. The statute provides for intervention in actions either at law or in equity.’ Searl's Michigan Pleading and Practice, Vol. 3, § 1360.

With regard to rights of appellants to intervene, it may be said that they were not necessary parties to the adjudication by the court of the legal question as to whether the annexed lands became subject to the jurisdiction of the school district of the city of Ferndale, or in the disposition of the other issues between the two school districts.

Ordinarily a municipality represents the citizen in litigation relating to municipal matters. In Kennedy v. Town of Normal, 359 Ill. 306, 194 N.E. 576, where a property owner brought suit to enjoin a municipality from opening an alley which the latter claimed to have accepted after a common law dedication, it was held that property owners desiring the opening of the alley should not be allowed to intervene and answer the bill, as their rights were fully represented by the municipality and the pleadings did not involve or determine their private rights.

In Skinner v. City of Slater, 159 Mo.App. 589, 592, 141 S.W. 733, 735, a party brought suit to enjoin defendant city from maintaining a sewer on the ground that it was a nuisance. Upon application of another to intervene, the court said:

‘After the cause had been heard and taken under advisement by the court, George J. Dyer, one of the parties who was using the sewer, made application to be made a party to the proceeding. The court dismissed his application, and this action of the court is assigned as error.

‘In the first place, we do not believe that a proper regard for the usual and ordinary method of court procedure would permit a party to interpose in a case on the ground that his rights would be...