Henry v. City of Pontiac

109 N.W.2d 835, 363 Mich. 302, 1961 Mich. LEXIS 453

Opinion

Black, J.

Pursuant to resolution of the Pontiac city commission the proposal in question, to amend the Pontiac city charter, was submitted to the electors at the April, 1960, election. The purpose of the proposal appeared on the ballot as follows:

“Statement of purpose — Shall chapter 3 of the city charter be amended by repealing sections 51 to 58 except sections 53 and 57 and by adding sections 59 to 62 inclusive; to provide for the appointment and removal of the chief of police and dismissal of police officers; to remove the board’s power to adopt rules for duties of police officers; to authorize the chief of police to define duties of officers and prescribe rules for performance thereof and impose penalties for violations; to continue in office the present trial board; and to provide for citizen complaints against officers.”

The proposal was adopted, 4,606 electors voting in favor, and 4,043 voting against.

By this bill for declaratory relief plaintiffs assail the apparently adopted amendment, alleging that it is duplicitous under section 21 of the home-rule city act

* and that it should have been submitted to the electors in separate portions. Judge Ziem held against plaintiffs. They have appealed.

'Plaintiffs contend the proposal embraces 3 separate subjects, as follows:

“1. The amendment embraced the establishment of a trial board.

“2. It concerned the question of the removal of the chief of police from the protection of the trial board and his placement under the city manager, so. far as his right to tenure is concerned.

“3. It involved the city manager’s rights to fix and determine the number of police and fire department personnel, and the adoption of a scheme for the accomplishment of reduction of personnel in these departments for reasons of economy.”

We are referred to 3 cases, with respect to which counsel draw different conclusions as they accept or reject validity of the amendment as proposed and approved. These cases are Kelly v. Laing, 259 Mich 212; Michigan Public Service Company v. City of Cheboygan, 324 Mich 309; and House v. City of Saginaw, 334 Mich 241. In the Kelly Case it was said generally of said section 21, referring to the section as it stood at the time (CL 1929, § 2257 [Stat Ann § 5.2100]):

“It was the intention of the legislature to provide for orderly change of the charter, not to encourage or sanction confusion in city government. To carry out its intention and to avoid absurdity of result, it is necessary that all proposals pertaining to the same subject and directed to the same purpose be treated as 1 amendment, as they are in fact, and be voted on as such, although they contemplate change of more than 1 section.” (p 215)

This quotation stands today as an excellent guide for relevant application of said section 21. The quoted bolstering amendment of the section, employing as it does the expression “more than 1 related proposition,” makes such conclusion clear if clarity was not present before. So it remains necessary that amendatory proposals pertaining to the same subject and directed “to the same purpose be treated as 1 amendment” and “voted on as such.”

The amendment plaintiffs would invalidate pertains to the same subject and is aimed to the same purpose, that of administrative and disciplinary control of the police department by municipal authority. It does not embrace “more than 1 related proposition” since the allegedly “slipped in” authority of the city manager to fire the police chief is well within the objective scope of the unitary subject and purpose I find as stated above.

Even if there, were fair doubt or fair difference of opinion respecting the presented question, Judge Ziem’s decree should be affirmed for reasons considered and applied under the heading of questions 3 and 4 in the Cheboygan Case. No effort was made, by these plaintiff members of the city commission, to seek — prior to election day — relief against the allegedly improper submission as one of separately submissible propositions. Courts weigh these questions with different scales after, distinguished from before, election day. See quotations and conclusions of the Court in the Cheboygan Case, starting at page 337.

I vote to affirm, without an award of costs.

Dethmers, C. J., and Carr, Kelly, Smith, Edwards, Kavanagh, and Souris, JJ., concurred.

Section 21 of the home-rule city act (CLS 1956, § 117.21 [Stat Ann 1959 Cum Supp § 5.2100] provides in part:

“Any proposed amendment shall be confined to 1 subject and in case a subject should embrace more than 1 related proposition, each proposition shall be separately stated to afford an opportunity for an elector to vote for or against eaeh such proposition.”