Shearer v. Board of Sup'rs of Bay County

• Decision Date: 04 November 1901
• Citation: 128 Mich. 552,87 N.W. 789
• Parties: SHEARER et al. v. BOARD OF SUP'RS OF BAY COUNTY et al.
• Court: Michigan Supreme Court

87 N.W. 789

128 Mich. 552

SHEARER et al. v. BOARD OF SUP'RS OF BAY COUNTY et al.

Supreme Court of Michigan

November 4, 1901

Appeal from circuit court, Bay county, in chancery; Theodore F Shepard, Judge.

Bill by G. Henry Shearer and others against the board of supervisors of Bay county and others to restrain the issue of certain bonds. From a decree in favor of defendants, plaintiffs appeal. Reversed.

E. A. Cooley (J. L. Stoddard, of counsel), for appellants.

E. E Anneke, Pros. Atty. (U. R. Loranger, of counsel), for appellees.

MONTGOMERY C.J.

The bill in this case was filed by a number of taxpayers of the county, to restrain the issue of $100,000 of bonds, for the purpose of extending the county road system. The bill alleges that the levy of the tax to meet the bond issue would exceed $100, and that the amount levied upon the property of the several complainants individually would exceed $100. Under the amended pleadings, two questions are presented: First whether the county road system was legally adopted in Bay county; and, second, whether the issue of the $100,000 of bonds in question was lawfully authorized by a vote of the electors, and, if not, whether the curative act of the legislature has remedied the defects.

Section 49 of article 4 of the constitution provides that the county road system shall become operative only in such counties as shall adopt it by a majority vote of the electors of said county, after said question has been submitted to them by a two-thirds vote of all the members-elect of the board of supervisors, at a general or special election called for that purpose. Following the adoption of this constitutional amendment, the legislature of 1893 passed Act No. 149, to provide for a county and township system of roads. Comp. Laws 1897, � 4262 et seq. It is contended that this is obnoxious to section 20, art. 4, of the constitution, which provides that no law shall embrace more than one object, which shall be expressed in its title. We think the act is not open to the objection raised. The general purpose of the act is to provide for a system of highways, and, in its details, it provides in what cases the county shall assume control of them, and in what cases they shall remain in the jurisdiction of the township authorities. The case of Davies v. Board, 89 Mich. 295, 50 N.W. 862, presented no such question. It was there held that certain provisions of the act under consideration were not within the purview of the title. Such can not be said of the present act, as all of its provisions come within the scope of the general title.

It is further insisted that the vote by which it was determined by the electors of the county of Bay to adopt the county road system was never legally adopted, for the reason that a majority of all the electors in the county did not vote affirmatively upon the proposition. It does appear that a majority of all those who availed themselves of the opportunity to vote, voted affirmatively; and the question presented is whether, under the language of the constitution above quoted, a majority of the votes cast at the election is sufficient. As was said by Mr. Justice Grant in Stebbins v. Judge of Superior Court, 108 Mich. 695, 66 N.W. 594, the authorities which bear upon this question are very numerous, and not in harmony. But the determination, as a rule, depends upon the peculiar language of the constitutional provision, or of the statute which submits to a vote of the people the question to be determined. The purpose in every case must be to ascertain the intent of the enactment. Thus, in Stebbins v. Judge of Superior Court, above cited, the court construed a provision requiring an affirmative vote of the 'qualified electors,' 'by a majority of their votes cast at any regular election, or at a special election,' and held that a majority of votes cast upon the particular proposition in question was not sufficient. In so holding we distinguished cases which we think presented substantially the question involved in this case.

In that case it will be noted there was a ready means of determining, in case of a general election, what voters availed themselves of the opportunity of voting at the election. But in the present case there is no machinery provided, and the result could never be definitely ascertained, if the construction contended for by complainants is to prevail, until an investigation aliunde the record. In many cases, this consideration has been deemed a controlling one in determining the intent of the lawmakers. It is true that in North Carolina the provision requiring a vote of 'a majority of the qualified voters therein' was construed to mean voters who had, previous to the election, qualified themselves, and had their competency to vote determined by a board of registration. The very language of the provision of our constitution repels such a construction. In McCrary Elect. � 208, it is laid down that, 'where a statute requires a question to be decided or an officer to be chosen by the votes of 'a majority of the voters of the county,' this does not require that a majority of all persons in the county entitled to vote shall actually vote affirmatively, but only that the result shall be decided by a majority of the votes cast. * * * In such a case, the only proper test of the number of persons entitled to vote is the result of the election, as determined by the ballot box, and the courts will not go outside of that to inquire whether there were other persons entitled to vote, who did not do so. The 'voters of the county,' referred to by all such statutes, are necessarily the voters who vote at the elections, since the result in each case must be determined by a count of the ballots cast, and not by an inquiry as to the number not cast.' This view has the support of the supreme court of the United States in an opinion by Mr. Justice Matthews Carroll Co. v. Smith, 111 U.S. 556, 4 S.Ct. 539, 28 L.Ed. 517, at page 565, 111 U.S., page 543, 4 Sup. Ct., and page 520, 28 L.Ed. See, also, State v. Grace, 20 Or. 154, 25 P. 382; Walker v. Oswald, 68 Md. 146, 11 A. 711; Yesler v. City of Seattle, 1 Wash. St. 310, 25 P. 1014; Metcalfe v. City of Seattle, 1 Wash. St. 297, 25 P. 1010; State v. Renick, 37 Mo. 270. In our opinion, the county road system was properly and legally adopted in Bay county.

The next question is whether the bonds in question were properly authorized by a vote of the electors. The same section of the constitution provides that no county shall incur any indebtedness or issue any bonds for the construction or maintenance of county roads, except upon a vote of two-thirds of all the supervisors elected, and then to be approved by a majority vote at any general or special election. Acting under this constitutional provision, the legislature, in the act above referred to, authorized the issue of bonds to raise money for the construction of roads, upon a vote of the electors of the county. Comp. Laws 1897, � 4283. The board of supervisors of Bay county, assuming to act under this authority, submitted to the electors the proposition of issuing bonds to run for a period of 30 years. Under the statute, the bonds could only be made payable within 15 years. Comp. Laws 1897, � 2484; McMullen v. Circuit Judge, 102 Mich. 608, 61 N.W. 260; Supervisors v. Simmons, 104 Mich. 305, 62 N.W. 292.

It is also contended that irregularities occurred in the notice of the election and in the manner of taking the vote. It appears to be conceded by defendants that these bonds cannot legally be issued unless the curative act shall be upheld. This act was passed on February 20, 1901, and, after reciting the action taken in submitting the vote to the electors, enacts that the board of supervisors is authorized to issue the bonds of the county in the sum of $100,000, and that the bonds shall become due and payable 30 years from their date, and bear interest at 3 1/2 per cent., as provided in the original proposition. The rule as to what may properly be done by a curative act is clearly stated in Cooley, Const Lim. (6th Ed.) p. 457: 'If the thing wanting, or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statute; and if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by subsequent law.' It is urged by defendants' counsel that the curative act in question is within the rule; for it is said, with great appearance of plausibility, that the legislature might have provided in the first instance for submitting the...