Carpenter v. Genesee County Board of Supervisors

123 N.W.2d 708, 371 Mich. 295, 1963 Mich. LEXIS 310

Opinions

Carr, C. J.

This case involves the interpretation of certain provisions of the city home-rule act

Footnotes

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* of the State. Pursuant to the statute petitions seeking the incorporation as a city of Flint township in Genesee county, for presentation to the board of supervisors and action thereon, were filed with the county clerk of said county on August 15,1961. Said petitions included “the entire township of Flint” and the territory embraced therein was described at’ length by metes and bounds. Attached to said petitions was a map depicting the land to be embraced within the limits of the proposed new city. The board of supervisors was requested to call an election within said territory, pursuant to the statute, in the event that a pending proposition to annex the township to the city, on which an election had been ordered held on September 12, 1961, resulted in the defeat of the proposal. Apparently such was the result, .of said...election, and on September 18th follow ing the county clerk submitted the petitions to the board of supervisors which referred them to its legislative committee for examination and report as to their compliance with statutory requirements.

Prior to any action by the supervisors, other than the reference to the committee, the city commission of the city of Flint adopted a resolution, on September 25, 1961, in accordance with section 9 of the home-rule act, annexing approximately 33 acres of city-owned land in Flint township, adjacent to the city’s boundary, which land, as recited in the resolution, consisted of a park or vacant property owned by the city, and having no residents thereon. The statutory provision authorizing such action, set ■forth in CLS 1956, § 117.9 (Stat Ann 1961 Cum Supp § 5.2088), reads as follows:

“Where the territory proposed to be annexed to any city is adjacent to said city and consists of a park or vacant property located in a township and owned by the city annexing the same, and there is no one residing thereon, such territory may be annexed to said city solely by resolution of the city council of said city.”

At the time of such annexation the board of supervisors had not acted with reference to the approval or disapproval of the petitions filed for the incorporation of Flint township as a city. On December 19,1961, a resolution was adopted declaring that the petitions did not conform to the statutory requirements and that, in consequence, “no further proceeding pursuant to said petition shall be had.” Said resolution recited the attachment of 33 acres, included in the description of the proposed new city, to the city of Flint, and gave the situation in such respect as 1 reason for not approving the incorporation petitions. No proceeding was instituted in court for the purpose of testing the legality of the annexaT tion which the resolution assumed to he effected under the provision of the statute providing therefor. It was further indicated in the resolution that the map accompanying the petitions at the time of action thereon by the supervisors, while purporting to describe the township of Flint, actually included therein territory constituting a part of the city of Flint. Other reasons for rejecting the petitions were also set forth but require no discussion herein.

It is apparent that the board of supervisors in adopting the resolution above referred to relied on the language of section 8 of the home-rule act (CLS 1956, § 117.8 [Stat Ann 1961 Cum Supp § 5.2087]), which section reads in part as follows:

“Said petition shall be addressed to the board of supervisors of the county in which the territory to be affected by such proposed incorporation, consolidation or change of boundaries is located, and shall be filed with the clerk of said board not less than 30 days before the convening of such board in regular session, or in any special session called for the purpose of considering said petition, and if, before final action thereon, it shall appear to said board or a majority thereof that said petition or the signing thereof does not conform to this act, or contains incorrect statements, no further proceedings pursuant to said petition shall be had.” (Emphasis supplied.)

Following the adoption of the resolution by the board of supervisors on December 19, 1961, a petition for a writ of mandamus to compel the board to submit the question of incorporation of Flint township as a city was filed in the circuit court of Genesee county. In substance it was alleged therein that the petitions complied in all respects with statutory requirements and that the action of the board was improper, arbitrary, and contrary to its legal duty. It was further asked that the court determine that the annexation of 33 acres of land from the township to the city of Flint was a nullity. It was, and is, the position of the plaintiffs that the city of Flint was inhibited from exercising statutory authority to annex the property in question until “all action on the prior incorporation petitions concerning the same territory” had been completed. It was further the theory of the plaintiffs, notwithstanding the language of the statute, that the sufficiency of the incorporation petitions should have been determined as of the time of the filing thereof on August 15,1961. We think it must be said, however, that if the legislature had intended the interpretation advanced by plaintiffs explicit language to that effect would have been set forth in the statute. Obviously this was not done and the claim must be rejected as at variance with the clear and specific language used. In other words, the mandate of the statute to the board of supervisors was to consider the sufficiency of the petitions as of the date of final action thereon. The use of the words “final action” negatives the suggestion of counsel that the reference to the committee to check the petitions was “action” thereon. Obviously it was merely the preliminary step in the proceeding and may not be regarded as in any way a recognition of the sufficiency of the petitions.

The city of Flint intervened in the case as a party defendant. Answers to the petition were filed disputing the right of plaintiffs to the relief sought and asserting that the action of the board of supervisors was taken in accordance with the statute and was, in consequence, not open to the charges made on behalf of petitioners. The circuit court, the 4 judges thereof sitting en banc, declined to accept plaintiffs’ claims as to the sufficiency of the petitions and the action of the board of supervisors thereon, and denied the writ of mandamus sought. From the order entered plaintiffs have appealed to this Court.

Our consideration of the statutory provisions involved brings us to the conclusion that the circuit court was right in denying the writ of mandamus. As above indicated, the board was required by the statute to base its final action on the petitions on the facts found as of the time of such action. A portion of the territory described in the petition under the legal description thereof was then within the city of Flint. The action of the city commission in the adoption of its resolution to annex said territory was taken in accordance with the authority granted by the statute. As noted, no proceeding was instituted in court directly challenging the validity of the annexation.

No provision of the home-rule act, as adopted by the legislature and amended from time to time, may be construed as limiting the authority of the city council because of the incorporation petitions that had been filed but on which no action determining the sufficiency thereof had been taken. It is significant in this regard that the legislature by section 8a of the home-rule act, added by PA 1951, No 158 (CLS 1956, § 117.8a [Stat Ann'1961 Cum Supp § 5.2087 '(1)]), contains the following provision applicable to the board of supervisors:

“In case a petition has been filed with the clerk pursuant to section 8, and subsequently another petition is filed by other petitioners proposing to affect the same territory in whole or part, then the subsequently filed petition shall not be submitted to the electors while in conflict with the prior petition.”

No such statutory restriction is imposed with reference to the city council in exercising the authority to annex certain uninhabited lands belonging to the city and adjacent to its boundary. At the time such annexation occurred no final action had been taken by the board of supervisors on the incorporation petitions here involved. No inference or presumption as to the sufficiency of said petitions existed. Holland City Clerk v. Ottawa Circuit Judge, 368 Mich 479, 485, and cases there cited. On the record before us we cannot hold, as appellants request, that the action of the Flint city commission was void..

In taking the final action indicated the board of supervisors was confronted with the fact that land included in the description of the proposed new city was not within the township of Flint, and that for such reason the map submitted in connection with the petitions was inaccurate. Obviously a conclusion other than that reached by the board would have meant an election on the incorporation of a new city including land within an existing city but not referred to in the petition or indicated on the map as so located. In passing on an analogous question in Taliaferro v. Genesee County Supervisors, 354 Mich 49, 59, this Court decided:

“That it was not the legislative intent that petitioner had the legal right to an election seeking to incorporate territory into a new city from territory occupied by a duly incorporated city.”

Submission of the question of incorporation to the voters of the township, as sought by the petitions, would have been a mere nullity.

Other questions considered by counsel in their briefs do not require consideration at this time. The judgment entered in circuit court was correct, and it is affirmed. In view of the nature of the controversy no costs are allowed.

Dethmers, Kelly, and O’Hara, JJ., concurred with Carr, C. J.

PA 1909, No 279, as amended (CL 1948 and CLS 1956, § 117.1 et seq., as amended '[Stat Ann 1949 Rev and Stat Ann 1961 Cum Supp § 5.2071 ei seg.]).