Vill. of Kingsford v. Cudlip

• Court: Michigan Supreme Court
• Writing for the Court: SHARPE
• Citation: Vill. of Kingsford v. Cudlip, 258 Mich. 144, 241 N.W. 893 (Mich. 1932)
• Decision Date: 04 April 1932
• Docket Number: Jan. Term, 1932.,No. 45,45
• Parties: VILLAGE OF KINGSFORD et al. v. CUDLIP, County Clerk, et al.

258 Mich. 144

241 N.W. 893

VILLAGE OF KINGSFORD et al.

v.CUDLIP, County Clerk, et al.

No. 45, Jan. Term, 1932.

Supreme Court of Michigan.

April 4, 1932.

Appeal from Circuit Court, Dickinson County, in Chancery; Frank A. Bell, Judge.

Suit by the Village of Kingsford and others against W. S. Cudlip, County Clerk, and others. From a decree for plaintiffs, defendants appeal.

Decree reversed, and bill dismissed.

Argued before CLARK, C. J., and McDONALD, POTTER, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ.Paul Rahm, Pros. Atty., of Iron Mountain, for appellants.

Ray Derham, of Iron Mountain, for appellees.

SHARPE, J.

On August 7, 1931, an election was held pursuant to the provisions of Act No. 278, Pub. Acts 1909, as amended by Act No. 395, Pub. Acts 1919, to determine whether certain territory in the township of Breitung should be annexed to the village of Kingsford. The proceedings incident to the taking of a vote on the question are not attacked. Section 4 of the act (section 1766, Comp. Laws 1929) provides that the question ‘shall be submitted to the qualified electors of the district to be affected’ by the change of boundaries. Section 5, as amended in 1929 (section 1767, Comp. Laws 1929), reads as follows: ‘The district to be affected by every such proposed incorporation, consolidation or change of boundaries, shall be deemed to include the whole of each city, village, or township from which territory is to be taken or to which territory is to be annexed: Provided, however, That proposed incorporations, consolidations or changes of boundaries shall be submitted to the qualified electors residing within the territory proposed to be incorporated or residing within the village to which territory is to be annexed as the case may be, and also to the qualified electors of the city, village or township, from which the territory to be taken is located and at the election, when the said question is voted upon, the city, village or township shall conduct the election in such manner as to keep the votes of the qualified electors in the territory proposed to be incorporated or annexed or detached in a separate box from the one containing the votes from the remaining portions of such city, village, or township, and if the returns of said election shall show a majority of the votes cast in the district proposed to be incorporated or annexed, voting separately, to be in favor of the proposed incorporation or change of boundary as the case may be, and if a majority of the electors voting in the remainder of the district to be affected as herein defined, voting collectively, are in favor of the proposed incorporation or change of boundary as the case may be, then such territory shall become incorporated as a village or shall become a part of the corporate territory of the village or shall be detached therefrom, as the case may be: Provided further, That in case there are no qualified electors residing within the territory proposed to be detached, or annexed, if a majority of electors voting in the remainder of the district to be affected, as herein defined, are in favor of the proposed change of boundary, then such territory shall become a part of the corporate territory of the village or shall be detached therefrom, as the case may be: Provided further, That the question of incorporating a new village from territory located in a townships shall be determined by a majority of the votes cast at an election at which only the electors residing within the territory proposed to be incorporated shall vote.’

The count disclosed that in the territory to be annexed 193 votes were cast in favor of annexation and 4 against; in the village of Kingsford 517 for, and 683 against, and in the township, not including the territory to be annexed, 302 for and 24 against. It thus carried in the territory to be annexed, and ‘in the remainder of the district to be affected,’ as defined in the statute, there were 819 votes cast for, and 707 against, annexation. The returns of the election were made to the county clerk, and, pending the canvass thereof by the board of county canvassers, the plaintiff village and some of its taxpayers filed the bill of complaint herein, praying for an injunction restraining the consolidating of the vote of the village with that of the territory in the township not included in the territory to be annexed and its certification to the defendant county clerk by said board. The defendants answered, admitting the material facts alleged in the bill, and prayed for its dismissal. The case was submitted on bill and answer. Plaintiffs had decree, from which defendants have appealed.

It is plaintiff's claim that section 5, above quoted, is unconstitutional, in that it violates the provisions of sections 20 and 21 of article 8 of our state Constitution. These sections read as follows:

‘Sec. 20. The legislature shall provide by a general law for the incorporation of cities, and by a general law for the incorporation of villages; such general laws shall limit their rate of taxation for municipal purposes, and restrict their powers of borrowing money and contracting debts.

‘Sec. 21. Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter and to amend an existing charter of the city or village heretofore granted or passed by the legislature for the government of the city or village and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this state.’

The purpose of these and other provisions which follow undoubtedly was to secure to cities and villages a greater degree of home rule than they formerly possessed. The provision for a general law for their incorporation was intended to confer upon them almost exclusive rights in the conduct of their affairs, not in conflict with the Constitution or general laws applicable thereto.

The power vested in the Legislature to provide for their incorporation is in no way limited. The authorities are united as to its extent.

‘Unless restricted by the constitution, the legislature may not only establish the original limits of the municipal corporations, but may alter or change the boundaries at any time by directly annexing or detaching territory contiguous or otherwise, dividing or consolidating corporations, or, it may authorize such changes to be made by general...