Village of Inkster v. Board of Sup'rs of Wayne County, 67
| Decision Date | 26 April 1961 |
| Docket Number | No. 67,67 |
| Citation | 363 Mich. 165,108 N.W.2d 822 |
| Parties | VILLAGE OF INKSTER, a municipal corporation, Plaintiff and Appellant, v. BOARD OF SUPERVISORS OF WAYNE COUNTY, Michigan, and Edgar M. Branigin, Wayne County Clerk, Defendants and Appellees. Wayne County Board of Canvassers, Added Defendant and Appellee. Township of Dearborn, Wayne County, Michigan, a public corporation, Interventing Defendant and Appellee. John Canfield, Joseph McCarthy, Felexa Thirlwell, Intervening Defendants and Appellees. |
| Court | Michigan Supreme Court |
Albert H. Schlenker, Jr., Corporation Counsel, Village of Inkster, Inkster, Dickinson, Wright, McKean & Cudlip, Detroit (Claude H. Stevens, Detroit, of counsel; Charles R. Moon, George E. McKean, Detroit, on the brief), for appellant.
Richard D. Dunn, Inkster, Stanley E. Beattie, Detroit, for Dearborn Tp., intervening defendant and appellee.
Hobart Taylor, Jr., Asst. Pros. Atty. for Wayne County, Detroit, for appellees, Board of Sup'rs, Edgar M. Branigin, and Board of Canvassers.
George E. Wicklund, Inkster, for intervening defendants and appellees, John Canfield, Joseph McCarthy, Felexa Thirlwell.
Before the Entire Bench.
BLACK, Justice (for affirmance).
We scrutinize for validity statutory proceedings designed to incorporate the new home rule city of Dearborn Heights. If the proceedings are held to be of legal force, such new city will include--coterminously--all of former Dearborn township plus an area taken from the then and now incorporated home rule village of Inkster.
A map, appearing below, was attached to the statutory petition. The north-south (heavier shaded) rectangle shown as connecting the separated parts of Dearborn township was, prior to such election, a part of the village.
The remainder of the village lies immediately west of such rectangle. The incorporated city of Dearborn lies immediately east thereof. Thus we perceive the rectangle as an adopted means (probably the only means) of connecting, for incorporation purposes, a township which had been separated into two noncontiguous parts by previous incorporation proceedings.
The facts are stipulated and the parties agree that our answer to the sole and agreed question will determine the right or wrong of that which the defendant board of canvassers certified below. The agreed question:
'In proceedings to incorporate portions of Dearborn township as a home rule city under the home rule city act may a part of the village of Inkster, a home rule village duly incorporated under the home rule village act, be included in said home rule city without the consent of said village expressed in proceedings to detach said part of the village?'
The board's answer was affirmative. So was that of the chancellor. The plaintiff village, appealing, insists upon a negative answer. It relies upon sections 2 (C.L.1948, § 78.2; amended by P.A.1958, No. 140) and 5 (C.L.1948, § 78.5) of the Home Rule Village Act of 1909 and says that the only method by which part of an incorporated village may be separated from that village is by 'detachment or annexation proceedings in accordance with the Home Rule Village Act or by annexation proceedings in accordance with the Home Rule City Act.'
The defendant township, on the other hand, relies upon section 9 of the Home Rule City Act, of 1909 (C.L.S.1956, § 117.9); recently considered in Cavanagh v. Calhoun Co. Bd. of Canvassers, 361 Mich. 516, 105 N.W.2d 707) and particularly upon the proviso which, by P.A.1931, No. 314, was added to that section. 1 Citing Bray v. Stewart, 239 Mich. 340, 214 N.W. 193; Presque Isle Prosecuting Atty. v. Rogers Tp., 313 Mich. 1, 20 N.W.2d 787; City of Dearborn v. Village of Allen Park, 348 Mich. 449, 83 N.W.2d 447, and Ford Motor Co. v. Village of Wayne, 358 Mich. 653, 101 N.W.2d 320, the defendant township alleges that the questioned election 2 and its certified result effectively incorporated such new city.
Carefully bearing in mind that the proceeding before us is one to incorporate a new city (under sections 6 through 11 of the mentioned Home Rule City Act) and that it is not a proceeding to annex, detach, or consolidate, we find that the stated question is controlled by the interpretive declaration of legislative intent appearing in the cited cases of City of Dearborn v. Village of Allen Park and Ford Motor Co. v. Village of Wayne. In each of these cases like proceedings under the same statutory provisions were considered. Ruling was made that:
358 Mich. at page 665, 101 N.W.2d at page 326 of Village of Wayne; 348 Mich. at page 454, 83 N.W.2d at page 450 of Allen Park.
In this case the proceedings were designed and conducted in strict accordance with such declaration of legislative intent. They were, in fact, instituted and pursued within a few days after the handing down of our unanimous determination, in the Village of Wayne case, to reaffirm the quoted declaration. The case manifestly is one where all duty-bound public officials and their counsel have proceeded according to the guidance of recent and authoritative decisions. It is our duty in these circumstances to confirm their action.
This case, originally assigned to the writer, was fully submitted on briefs and oral argument October 12, 1960. The foregoing proposed opinion thereof was delivered December 17 to the other Justices for their consideration. The opinion omits--as I think it should--reference to the presently considered racial-constitutional question which, during oral argument, was injected into the case by a member of this Court. Now, on the eve of over-delayed decision of the briefed and argued question (with respect to which no member of the Court has as yet expressed disagreement), the attorney general has intervened and moved to remand for the taking of testimony to determine whether this incorporation proceeding 'represents an attempt unlawfully to segregate races of citizens * * * or an attempt to segregate white and colored voters by eliminating all Negro citizens from the proposed city of Dearborn Heights.'
Such question was neither raised nor tried below. It has not been raised, briefed, or discussed by the parties in this Court. It was repudiated by all counsel during oral argument when they were questioned with respect thereto. Nonetheless it is moved now that we make of this specific case of statutory construction a vehicle for presentation and trial of a fresh issue as in Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110. How that is to be done is not explained. Possibly it is contemplated that the case on remand shall be held in abeyance until some new suit, brought by necessary and proper parties plaintiff on necessary and proper original pleadings, is attemptedly tried through all courts to final determination of the new and Gomillion-suggested issue. In the meantime, as recently suggested by a Brother Justice, this abstruse statute may be amended again, thus necessitating new starts and new interpretive lawsuits.
I protest this gratuitous interposure of an issue which belongs only in an original class action, filed in a court of original jurisdiction and supported by such testimonial record as might raise, to the plane of due justiciability, that which the attorney general has alleged ex parte under date of February 24. Such an issue cannot even be framed until and unless the agreed question of statutory construction has been settled by this Court as the chancellor settled it. By failing to decide that question, and by order for remand on motion of a mere intervenor, we cast an important case adrift on an uncharted sea of doubt and delay.
The right and orderly way to go about raising and presenting the attorney general's stated issue is to pursue the route which, by original class complaint, was started in Gomillion v. Lightfoot, D.C., 167 F.Supp. 405 after the statute of Alabama had--per its tenor--changed the boundaries of Tuskegee. Here section 9 can have no Gomillion-attackable effect on the boundaries of the respectively involved municipal units until this Court determines the statutory propriety of that which was voted and upheld below.
I vote again to affirm. Affirmance will nowise impede or blockade an original suit based on the allegations of the attorney general. It will in fact open the way to prosperous prosecution of such a suit if there be provable ground therefor.
APPENDIX
(Taken from Stipulation of Facts)
The election on the proposed incorporation was held June 20, 1960,...
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