Streat v. Vermilya

• Decision Date: 08 June 1934
• Parties: STREAT v. VERMILYA et al.
• Court: Michigan Supreme Court

268 Mich. 1

255 N.W. 604

STREAT

v.VERMILYA et al.

Supreme Court of Michigan.

June 8, 1934.

Action by Frank R. Streat against Ned Vermilya and another, in which Howard Polzin intervened as defendant. To review the judgment, intervening defendant applies for leave to appeal under Rule 60, §§ 4, 5.

Writ of mandamus issued directing dissolution of injunction, with directions.

Argued before the Entire Bench.

Edward N. Barnard, of Detroit, for appellant.

Carton & Gault, of Flint, for appellees.

POTTER, Justice.

This case is here under sections 4 and 5 of rule 60 which provide:

‘Section 4. On showing of emergency, of appellant's due diligence, and of the character of injury to him through observance of the above practice on application for leave to appeal, application may be made on ex parte statement of fact, showing of merit, and on proof of such notice to the parties as the circumstances permit, or excuse for lack of notice; and immediate consideration of the application may be prayed.

‘Section 5. Upon such application the court, in lieu of leave to appeal, may in its discretion order issuance of the proper original writ.’

The application is for leave to appeal from an order granting an injunction restraining an election of city officers on June 4, 1934, in the city of Flint, to take office under the proposed new charter if adopted. The case is presented under the sections of rule 60 above quoted, which provide that upon application to appeal, in case of emergency, the court may, in lieu of granting leave to appeal, issue its original writ, and the case will be treated and disposed of as upon application for a writ of mandamus to direct the dissolution of the injunction restraining the election called as above indicated.

Flint is a city organized under a charter adopted in pursuance of the Home Rule Act (Act No. 279, Pub. Acts 1909 as amended: Sections 2228 to 2274, C. L. 1929) providing for the incorporation of home rule cities. In pursuance of the Home Rule Act a charter commission was selected in the city of Flint, and it prepared and proposed for adoption a new charter for the city. The proposed charter is to be submitted for adoption or rejection to a vote of the electors of the city to be held June 4, 1934. Section 224 of the proposed charter provides: ‘This charter shall be submitted to the electors of the City of Flint, Michigan, for their approval or rejection at a special election on June 4th, 1934.’

Section 225 of the proposed charter provides: ‘There shall be elected at said special charter election one Mayor from the city at large, and one Alderman from each of the ten wards designated and provided for herein,’ etc.

The latter provision of the proposed charter is attacked as unconstitutional, invalid, and incapable of being obeyed or enforced.

City charters in Michigan were formerly special legislative enactments. This was true when Michigan was a territory, and for many years after it became a state. Public sentiment demanded uniformity in powers and duties in cities and villages, thus making possible unified judicial construction, and it was claimed, a consequent saving of expense. In 1895 a uniform village charter act was adopted by the Legislature (Pub. Acts 1895, No. 3) and a uniform city charter act (No. 215) providing for the incorporation of cities of the fourth class. The people were not satisfied with the results attained under the so-called uniform charter provisions, and in the Constitutional Convention of 1908 home rule was demanded; that is, the right of cities to frame and adopt their own charters. The Constitutional Convention compromised between these two ideas by giving cities the right to frame, adopt, and amend their charters, subject, however, to certain broad general restrictions and limitations fixed by the Legislature in the so-called Home Rule Act.

The proposed city charter provides for its submission to the qualified electors of the city of Flint on June 4, 1934, for ratification or rejection, and an election is proposed at the same time of the city officers named therein who, if the charter is adopted, will take office. This is said to be unconstitutional and invalid, in that it provides for the election of persons to office when it has not yet been determined such offices shall be created by the adoption of the proposed charter.

Section 20, of article 8 of the Constitution, provides the Legislature shall provide by a general law for the incorporation of cities; and section 21 of article 8 provides that under such general laws the electors of each city shall have power and authority to frame, adopt, and amend its charter. In pursuance of this constitutional mandate, the Legislature enacted Act No. 279 of the Public Acts of 1909.

‘It intended to, and did, pass a general law, giving to the electors of cities power to frame, adopt, and amend charters. To that act it gave the title under consideration. It provides for the ‘incorporation of cities.’ What cities? Obviously all cities-as well those already incorporated as those not yet incorporated, since there are no words of qualification or limitation. Every incorporated city must have a charter. Its charter is the definition of its rights and obligations as a municipal entity, so far as they are not otherwise legally granted or imposed. The very act of incorporation, therefore, necessarily includes the idea of a charter and the power to frame and adopt one. If the framing and adoption of a charter in toto is fairly within the meaning of the word ‘incorporation,’ and we believe it necessarily is so, it seems clear that the revision of a charter already adopted is likewise within that meaning upon the principle that the greater includes the less.' Jackson Common Council v. Harrington, 160 Mich. 550, 125 N. W. 383, 384.

There seems to be no question but that under the Home Rule Act for cities a charter commission has full power and authority to frame a proposed charter for the city and provide for its submission to the electors for adoption or rejection. Section 2256, Comp. Laws 1929, confers express authority upon the charter commission to fix a time of submission of the same to the electors.

A city may not have two separate and distinct charters at the same time. Butler et al. v. Walker et al., 98 Ala. 358, 13 So. 261,39 Am. St. Rep. 61. The proposed new charter, if adopted, will entirely supersede the former charter. People v. Bagley, 85 Cal. 343, 24 P. 716. The absolute and unconditional supersession of the present charter of the city by the proposed charter, if adopted, will abolish all offices under the present charter, People ex rel. v. Brown, 83 Ill. 95; it being the purpose and object of the proposed charter, if adopted, to completely supersede the present form of city government with all its officers and to substitute a new form of government in which the power of the city government will be vested in new officers. Adler v. Jenkins, 33 Okl. 117, 124 P. 29. The right to frame and adopt a charter for the city is conferred by the Constitution. The power to adopt, amend, and repeal the existing charter is granted by the Home Rule Act for cities. To effect the constitutionally designated purposes, the Legislature provided for the creation of a charter commission which...