West v. City of Portage

• Citation: 72 A.L.R.3d 1016,221 N.W.2d 303,392 Mich. 458
• Decision Date: 06 September 1974
• Docket Number: No. 4,4
• Parties: Wayne WEST et al., Plaintiffs and Appellants, v. CITY OF PORTAGE, a municipal corporation, and Village Green Properties, Inc., Defendants and Appellees. 392 Mich. 458, 221 N.W.2d 303, 72 A.L.R.3d 1016
• Court: Supreme Court of Michigan

Page 303

221 N.W.2d 303

Wayne WEST et al., Plaintiffs and Appellants, v. CITY OF PORTAGE, a municipal corporation, and Village Green

Properties, Inc., Defendants and Appellees.

No. 4.

392 Mich. 458, 221 N.W.2d 303, 72 A.L.R.3d 1016

Supreme Court of Michigan.

Sept. 6, 1974.

Troff, Lilly, Piatt, File & Doyle, Kalamazoo, for plaintiffs and appellants.

John J. Peters, Kalamazoo, for appellee City of Portage.

Early, Starbuck & Lennon, Kalamazoo, for appellee, Village Green Properties, Inc.

Before the Entire Bench.

LEVIN, Justice.

The issue is whether an amendment to a city zoning ordinance changing the zoning of particular property is subject to a referendary vote of the electors of the city.

We would hold that such a change in zoning is not subject to referendum. The right of referendum extends only to legislative acts. A change in the zoning of particular property, although in form (amendment of a zoning ordinance) and in traditional analysis thought to be legislative action, is in substance an administrative, not legislative, act.

I

It is first necessary to reconsider this Court's holding in McKinley v. City of Fraser, 366 Mich. 104, 106, 114 N.W.2d 341, 342 (1962), for there the Court rejected the view that the provisions in the Home Rule Act for 'initiation of municipal ordinances are applicable only to acts 'which are legislative in character."

The Home Rule Act provides:

'Sec. 4--i. Each city may in its charter provide:

(6) Initiative, referendum, recall. For the initiative and referendum on all matters within the scope of its powers and for the recall of all of its officials.'

The McKinley Court declared, without further explanation, that the 'language' of both the Home Rule Act and the charter of the defendant city 'unequivocally and unitedly authorize initiation of Any kind or type of ordinance.' (Emphasis by the Court.)

The Court's statement that the 'language' of the Home Rule Act authorizes initiative (and by like token a referendum) ¹ 'of any kind or type of ordinance' seems to have been based on the 'on all matters within the scope of its power' clause.

The Court appears to have ignored what was most essential to the proper consideration of the question before it. Nowhere in the Court's opinion is there any reference to or discussion of the history or meaning of the words 'initiative' and 'referendum.'

There was no need to spell out in the Home Rule Act in so many words that the right of initiative and referendum applies only to legislative acts. That was implicit in the use of the words, ignored by the McKinley Court, 'initiative' and 'referendum.'

During the latter part of the 19th century, distrust of legislatures reached such proportions that many states, including Michigan, amended their constitutions to provide for the initiative and referendum. The people could thereby initiate needed laws which the Legislature had not been bestirred to enact and could reject unpopular laws which the Legislature, perhaps at the instance of some special interest, had improvidently enacted.

The amendment to the 1908 Constitution, reserving to the people in respect of the Legislature the rights of initiative and referendum, explicitly provided that those rights related to 'laws' and 'acts' which are legislative ('legislative measures, resolutions and laws'). ² (Emphasis supplied.)

What was carefully spelled out in the Constitution was left without explicit definition and limitation when the rights of initiative and referendum were conferred on home rule cities. The Home Rule Act, enacted in 1909, some 4 years before rights of initiative and referendum were reserved to the people in respect to the Legislature, provided simply, in language which has been retained without substantive change to the present, that a city's charter may provide 'for the initiative and referendum on all matters within the scope of its powers.' ³ By amendment the words 'initiative and' were added. ⁴

The question whether the rights of initiative and referendum extend to nonlegislative acts arises most frequently with reference to acts of municipalities or other local units of government. This is because legislatures exercise, with relatively few exceptions such as those spelled out in Michigan's Constitution, ⁵ only legislative power, ⁶ while, under the constitution of this and other states and by act of the legislature, legislative bodies of local units of government (cities, townships, counties) frequently exercise administrative, executive and sometimes even judicial functions. ⁷

It is in that context (action taken by a local unit of government) that many courts have drawn a distinction between administrative and legislative acts, limiting initiatory and referendary rights to those matters which are properly legislative in character:

'Actions of a legislative body which are administrative or executive in nature are generally not subject to initiative and referendum. The question arises generally in connection with municipal assemblies whose enactments may be either legislative or executive. Resolutions and ordinances of municipal bodies if not in fact legislative, are not subject to referendum.' 42 Am.Jur.2d, Initiative and Referendum, § 11, p. 659.

'Another major limitation on initiative and referendum arises from the distinction drawn by the courts between administrative and legislative action. Only legislative action is subject to initiative and referendum. This exception applies only to actions of local governments in which the administrative and legislative functions are combined in one body. The courts look to the substance of the matters passed by the governing units and not to the form in which they are passed. An 'ordinance' might be either legislative or administrative.' Note, Limitations on Initiative and Referendum, 3 Stan.L.Rev. 497, 502--503 (1951). ⁸

In Rollingwood Homeowners Corp., Inc. v. City of Flint, 386 Mich. 258, 268, 191 N.W.2d 325, 331 (1971), this Court recognized that all actions of a local legislative body are not necessarily legislative: 'There is nothing inherently legislative about a decision to acquire real estate.' ⁹

These are statements in cases decided in and around the time the Home Rule Act was adopted which support the view that the words 'initiative' and 'referendum' have a legislative connotation:

'(T)he electors by their vote at the ballot box directly exercise Legislative power.' In re Andrew Pfahler, 150 Cal. 71, 76, 88 P. 270, 273, 11 L.R.A.(N.S.) 1092, 11 Ann.Cas. 911 (1906). (Emphasis supplied.)

'The people have simply reserved to themselves a larger share of Legislative power * * *.' Kadderly v. Portland, 44 Or. 118, 145, 74 P. 710, 720 (1903). (Emphasis supplied.)

In 1910, the question whether the initiative and referendum extend to administrative acts of local units of government arose in Brazell v. Zeigler, 26 Okl. 826, 110 P. 1052 (1910), where the Court held that the action of the board of county commissioners in ordering its clerk to advertise for bids for the construction of a bridge was 'administrative, and not legislative, and for that reason the referendum could not be invoked against it.' In 1915, the Supreme Court of California concluded that acquisition of land by a city for the construction of a city hall (cf. fn 9) was legislative action, and therefore subject to the referendum. Hopping v. Council of Richmond, 170 Cal. 605, 150 P. 977 (1915).

We would hold that the words 'initiative' and 'referendum' are themselves an implicit limitation on the matters that may properly be the subject of an initiative or referendum, and that the Legislature did not in 1909 intend to confer on the electors of home rule cities the power to vote on questions not truly legislative in character.

The unlimited sweep of McKinley would authorize an initiative or referendum on the most mundane executive matters: whether a particular secretary or clerk is to be hired or terminated, whether the garbage is to be collected on Monday or Tuesday, and whether male municipal employees may wear short-sleeved shirts in the summer time and female employees may wear pantsuits at any time.

We recently had occasion to observe that, 'for practical reasons, the people's power or right of referendum has usually been subjected to certain constitutional restrictions.' ¹⁰ For reasons historical and practical and in implementation of the apparent intent of the Legislature, the rights of initiative and referendum under the Home Rule Act are limited to legislative measures.

It is the fate of all ideas, good and bad, that some will seek to extend them to an extreme beyond purpose and reason. It is the duty of the courts, in their area of responsibility, to guard against that tendency, and to confine this important reserved right of the people to its legitimate and proper scope lest, through misuse, it fall into disrepute.

II

Other state courts have, indeed, as my colleagues point out, held that zoning questions may be the subject of a referendum.

A respected authority states, however, that, in general, a distinction has been drawn between a comprehensive zoning ordinance and an amendment of a zoning ordinance, the former being subject to referendum and the latter not:

'Some states provide for legislation through referendum. The question arises as to the propriety of enacting zoning ordinances or amendments thereto by such means. The general rule is that such referendum provisions apply only to the question of whether a comprehensive zoning ordinance should be enacted, i.e., whether the legislative body is to be permitted to zone the community at all and has no reference to the detailed manner in which it is to be zoned nor to the modifications or amendments thereof.' 1 Rathkopf, The Law of Zoning and Planning, ch. 27, § 3, p. 31.

The Courts which have reached that conclusion have advanced various rationales. ¹¹ We reach that conclusion on the ground that a zoning amendment...