Schipper v. Smith

• Decision Date: 04 December 1962
• Docket Number: No. 498,498
• Citation: 118 N.W.2d 250,368 Mich. 479
• Parties: D. W. SCHIPPER, Clerk of the City of Holland, and City of Holland, a Municipal Corporation of Ottawa and Allegan Counties, Michigan, Plaintiffs, v. The Honorable Raymond L. SMITH, Ottawa County Circuit Judge; Harris Nieusma, Ottawa County Clerk; Maurice Vander Haar, Holland Township Clerk; James M. Hare, Secretary of State of the State of Michigan; and Charles Vande Water, Defendants.
• Court: Michigan Supreme Court

Page 250

118 N.W.2d 250

368 Mich. 479

D. W. SCHIPPER, Clerk of the City of Holland, and City of Holland, a Municipal Corporation of Ottawa and Allegan Counties, Michigan, Plaintiffs, v. The Honorable Raymond L. SMITH, Ottawa County Circuit Judge Harris Nieusma, Ottawa County Clerk; Maurice Vander Haar Holland Township Clerk; James M. Hare, Secretary of State of the State of Michigan; and Charles Vande Water, Defendants.

No. 498.

Supreme Court of Michigan.

Dec. 4, 1962.

James Townsend, Holland, for plaintiffs.

Harvey L. Scholten, Grand Haven, for defendants.

Frank J. Kelly, Atty. Gen., intervener.

Before the Entire Bench.

CARR, Chief Justice.

In the month of July, 1962, there were filed with the county clerk of the county of Ottawa petitions pursuant to section 8 (C.L.S.1956, § 117.8 [Stat.Ann.1961 Cum.Supp. § 5.2087]) of the City Home Rule Act ¹ for the incorporation as a city of certain lands in said county. The record before us does not disclose when said petitions were presented to the board of supervisors of the county, if such submission was made by the clerk. It does not appear that any action by said board has been taken.

Under date of August 3, 1962, there was filed with the Secretary of State, under section 11 of the City Home Rule Act (C.L.S.1956, § 117.11 [1961 Cum.Supp. § 5.2090]) petitions for the annexation of certain lands to the city of Holland, including in part, at least, those described in the prior petitions for the incorporation of a city. Such petitions also affected land in Allegan county any, in consequence, they were filed with the Secretary of State as required by the statute cited. The latter officer on examination found that the petitions complied with statutory requirements and issued his order for the holding of an election November 6, 1962, on the question of the desired annexation.

Following the order referred to suit for injunctive relief was filed in the circuit court of Ottawa county under date of October 2, 1962, and a temporary injunction was sought restraining the holding of the election on the annexation petitions until such time as the board of supervisors of the county might pass on the petitions previously filed with the county clerk for the incorporation of a city to be known as 'Van Meer.' Motion to dismiss the suit was filed by the clerk of the city of Holland, and denied. An order to show cause why the temporary injunction sought should not issue was granted and hearing thereon was held October 16, 1962. The circuit judge concluded from the showing made before him that the filing of the petitions for incorporation of a new city, previously delivered to the county clerk, were entitled to priority and a temporary injunction was issued restraining the holding of the election on the date set by the Secretary of State.

The city of Holland and its clerk instituted the present action in original mandamus to compel the circuit judge to set aside the temporary injunction, claiming in substance that it was improvidently granted, that the holding of the election should be permitted, and that question affecting the legality thereof should be determined, if found expedient, in an action of quo warranto. Under date of October 25, 1962, this Court issued an order to the defendant circuit judge to show cause why the injunction should not be set aside, said order being returnable on October 30th. Return to the order was filed accordingly. There-upon the Court, after due consideration of the return and of the briefs of counsel on both sides of the controversy, concluded that in view of the questions of fact and of law involved the court of equity should not have intervened to restrain the holding of the election, and that the remedy by way of quo warranto furnished a proper and adequate remedy for the protection of asserted rights. An order was issued accordingly on October 31, 1962, directing the setting aside of the temporary injunction, it being noted therein that the opinion of the Court would be filed at a later date. It was further specifically stated that such order should not be regarded as an adjudication of any issues that might be raised in a subsequent quo warranto proceeding.

Obviously the question presented is whether the temporary injunction was improvidently issued by the circuit court. It is apparent from the pleadings and from the briefs of counsel that questions of fact are involved in the controversy and that legal issues raised are quite largely dependent on the determinations reached with reference to such disputed facts. The status of the petitions filed for the incorporation of the city of Van Meer is not clearly shown by the record, nor does it appear that the presentation of the controversy to the circuit judge was such as to enable him to form a definite conclusion in this respect. It is claimed on behalf of plaintiffs in the present mandamus case that the petitions were open to objection in several respects, that statutory requirements were not observed in their circulation, that the accompanying map was not accurate, and that there was a variance between the description of the property to be incorporated as stated in the petition and as indicated by the map.

As before suggested, the record here does not disclose what was done with the petitions subsequent to their filing with the county clerk. We cannot agree with the claim advanced by counsel that any presumption exists as to the sufficiency of the petitions or the regularity of the proceedings taken with reference thereto. Such matters are primarily for the determination of the board of supervisors. It may be noted in passing that the statutory requirements with reference to the circulation and substance of the petitions presented to the Secretary of State were duly observed. No question in this respect is raised.

This Court has recognized that under proper circumstances a court of equity may assume jurisdiction to pass on a controversy of this nature. See Attorney General v. Board of Supervisors of the County of St. Clair, 11 Mich. 63; Township of Kalamazoo v. Kalamazoo County Supervisors, 349 Mich. 273, 84 N.W.2d 475; Godwin Heights Public Schools v. Kent County Board of Supervisors, 363 Mich. 337, 109 N.W.2d 771. It will be noted, however, that in the last two cases cited the equitable relief sought was denied following consideration by the Court. The earlier decision involved the validity and application of provisions of a statute enacted by the legislature. The Court agreed with the claim of the plaintiff that such provisions were not complete and did...