White v. City of Ann Arbor
| Decision Date | 24 July 1979 |
| Docket Number | Docket Nos. 60913,60919,Nos. 9,10,s. 9 |
| Parties | Elmer E. WHITE, Plaintiff-Appellee, v. CITY OF ANN ARBOR, Defendant-Appellant. Elmer E. WHITE, Plaintiff-Appellant, v. DETROIT EDISON COMPANY, a New York corporation doing business in Michigan, and Michigan CATV Associates, a Michigan limited partnership, Defendants-Appellees. Calendar |
| Court | Michigan Supreme Court |
White & Carter, Ann Arbor, for Elmer E. White.
R. Bruce Laidlaw, City Atty., Ann Arbor, for defendant-appellant, City of Ann Arbor.
Fraser Trebilcock Davis & Foster, Lansing, Michael E. Cavanaugh, David E. S. Marvin, Ronald L. Jacobs, Lansing, for amicus, Michigan Cable Television Ass'n.
James J. Daskaloff and Thomas P. Beagen, Detroit, for defendant-appellee, The Detroit Edison Co.
Dykema, Gossett, Spencer, Goodnow & Trigg, Robert D. Dunwoodie, Dennis M. Wilt, Carolyn D. Bell, Detroit, for Teleprompter Corp. as amicus curiae.
The two subject cases were consolidated in the Court of Appeals because both involve cable television and the meaning of the term "public utility" as that term is used in certain constitutional and statutory provisions.
We granted leave in White v. City of Ann Arbor to resolve the issue of whether a city ordinance which authorized the granting of a cable television franchise was unconstitutional under Const.1963, art. 7, § 25 because the franchise was (1) not revocable at the will of the city nor (2) approved by three-fifths of the electors. We hold that § 25 does not apply to cable television franchises.
We granted leave in White v. Detroit Edison to determine whether a cable television franchise can utilize Detroit Edison poles on property designated as a "public utility easement" pursuant to the Subdivision Control Act of 1967, M.C.L. § 560.190; M.S.A. § 26.430(190), to gain access to its subscribers in the subdivision. We hold that it can.
Initially, it should be noted that although both of these cases involve cable television and the term "public utility", the provisions in issue in each case are different. Const.1963, art. 7, § 25 is a constitutional provision concerning the distribution of political power in municipal governments. The Subdivision Control Act of 1967, on the other hand, is a statutory enactment regulating the recording and development of lands and subdivisions. (Other statutes regulating services for different purposes employ divergent definitions and terms. 1 ) Each provision and definition is directed to a different problem and was drafted with a different goal to be achieved.
However, this Court's duty is similar in both cases. The primary and fundamental rule of constitutional or statutory construction is that the Court's duty is to ascertain the purpose and intent as expressed in the constitutional or legislative provision in question. Also, while intent must be inferred from the language used, it is not the meaning of the particular words only in the abstract or their strictly grammatical construction alone that governs. The words are to be applied to the subject matter and to the general scope of the provision, and they are to be considered in light of the general purpose sought to be accomplished or the evil sought to be remedied by the constitution or statute. See General Motors Corp. v. Erves (On Rehearing), 399 Mich. 241, 255, 249 N.W.2d 41 (1976) (Opinion by Coleman, J.). Using these well recognized rules of construction and understanding that the provisions in question were directed to different areas of concern, we examine those provisions at issue herein.
The plaintiff in each case is the same resident and taxpayer of the City of Ann Arbor (City). The City entered into a contract with Michigan CATV Associates (CATV) for a specific term of years subject to certain provisions. The cable television enterprise in turn entered into a contract with Detroit Edison Company to string its cable on the poles owned and previously implanted by Detroit Edison. Some of these poles are placed in a public utility easement which runs across plaintiff's property.
Plaintiff brought suit seeking a declaratory judgment which would hold that a city ordinance which authorized the granting of a cable television franchise was unconstitutional because it did not state that the franchise was (1) revocable at the will of the city, or (2) provide for approval of the franchise by three-fifths of the city electors.
The trial court granted plaintiff's motion for summary judgment, holding that a cable television system franchise is a public utility franchise within the provisions of § 25. The Court of Appeals affirmed, White v. Ann Arbor, 80 Mich.App. 346, 263 N.W.2d 367 (1977). Defendant appeals, claiming that the Court of Appeals erred in holding that the requirements of § 25 apply to cable television franchises.
Const.1963, art. 7, § 25 provides:
On appeal, defendant argues that cable television is not a public utility in the general sense of the word. 2
Because of definitional variations appearing in the statutes and lack of specific definition in the Constitution, and because it is not necessary to reach such a definition for the purposes of this opinion, we do not address that issue. 3
The dispositive question addressed is the claim of the City that the requirements of Const.1963, art. 7, § 25 were not intended by the drafters to apply to cable television franchises, but only to "any public utility furnishing light, heat or power".
Mr. White argues, to the contrary, that the language of § 25 refers to "any public utility franchise" and that this should be construed to mean any and all public utility franchises, so it should not be limited to those relating to the preceding words "any public utility furnishing light, heat or power". Necessarily, he maintains that cable television is a public utility.
In Holland v. Clerk of Garden City, 299 Mich. 465, 300 N.W. 777 (1941), the Court held that a sewage treatment system was not a public utility within the provisions of Const.1908, art. 8, § 23 4 and § 25, the latter being the predecessor to the present Const.1963, art. 7, § 25. See, also, Mayor of Port Huron v. City Treasurer of Port Huron, 328 Mich. 99, 43 N.W.2d 77 (1950). Section 23 provided that "any city * * * may acquire, own and operate * * * public utilities for supplying water, light, heat, power and transportation." Section 25 provided:
"Nor shall any city or village acquire any public utility or grant any public utility franchise which is not subject to revocation at the will of the city or village, unless such proposition shall have first received the affirmative vote of 3/5 of the electors * * *."
In Holland, supra, the Court interpreted the term "public utility" so that it did not encompass every public utility but, rather, so that it applied only to utilities supplying water, light, heat, power and transportation as specified in § 23. The reason for this construction was that the functions listed in Const.1908, art. 8, § 23 were definite and were described as public utilities. 5
Thus, when Const.1963, art. 7, § 25 was drafted, the phrase "any public utility" had already been authoritatively construed by the Court to mean utilities supplying water, light, heat, power or transportation. Presumably the delegates to the Constitutional Convention were aware of this construction. In Richardson v. Secretary of State, 381 Mich. 304, 311, 160 N.W.2d 883, 886 (1968), the Court discussed rules of constitutional interpretation and stated:
There is nothing to indicate that the delegates to the 1961 Convention intended other than to incorporate a limited Holland -type definition of public utilities into § 25. There is nothing to indicate that the 1961 delegates attempted to expand the Holland construction or apply it broadly to include privately funded franchises providing services unrelated to light, heat or power. To the contrary, the drafters carefully considered the Holland construction when drafting the new § 25 and reduced the enumerated utilities subject to its requirements by inserting the phrase "furnishing light, heat or power" after the phrase "any public utility". 6
As this Court did in Holland, supra, 299 Mich. 470-471, 300 N.W. 777, we adhere to the standard set forth in Pfeiffer v. Board of Education of Detroit, 118 Mich. 560, 564, 77 N.W. 250, 251 (1898):
"In determining this question, we should endeavor to place ourselves in the position of the framers of the constitution, and ascertain what was meant at the time * * *."
This construction is supported in relevant part by the Convention Comment to Const.1963, art. 7, § 25. The comment states:
"This is a revision of Sec. 25, Article VIII, of the present (1908) constitution. Language in the first sentence relating to the elective franchise has been transferred to Article II, and provisions concerning credit are now covered in another section of this Article.
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