Heritage Hill Ass'n v. Kinsey

381 N.W.2d 831, 146 Mich. App. 803

• Court: Michigan Court of Appeals
• Decided: November 5, 1985
• Docket: Docket No. 78575
• Status: Published

Opinion

Per Curiam.

On March 23, 1984, plaintiffs filed a complaint and motion for receivership of a four-apartment residential building in the Heritage Hill Historic District of Grand Rapids, citing numerous housing code violations and disconnection of water, electrical and gas services. A hearing was held on March 30, 1984. Plaintiffs relied on MCL 125.535(1); MSA 5.2891(15)(1)¹ as providing authority for the court to appoint a receiver of the premises. The court ruled from the bench that the above statute had been repealed but that, in any event, the court would not appoint a receiver in the exercise of its discretion. An order granting summary judgment to defendants was entered on May 9, 1984. Plaintiffs appeal as of right.

Plaintiffs present as their sole question on appeal whether the Housing Law of Michigan, MCL 125.401 et seq.; MSA 5.2771 et seq., was repealed by the Public Health Code, MCL 333.1101 et seq,; MSA 14.15(1101) et seq.

In answering this question, our primary goal is to ascertain and give effect to the intention of the Legislature. Browder v International Fidelity Ins Co, 413 Mich 603, 611; 321 NW2d 668 (1982); Miles ex rel Kamferbeek v Fortney, 223 Mich 552, 557; 194 NW 605 (1923). Rules of statutory construction serve as guides to assist us. Browder, supra.

Section 25101 of the Public Health Code, MCL 333.25101; MSA 14.15(25101), repealed numerous acts and parts of acts. In the next four sections of the Public Health Code, the Legislature provided for repeal of some other statutes with specific conditions attached. Section 25103, MCL 333.25103; MSA 14.15(25103), of interest in this case, provides:

"Act No. 167 of the Public Acts of 1917, as amended, being sections 125.401 to 125.543 of the Compiled Laws of 1970, is repealed when all or the principal part of the rules promulgated under section 12211 take effect.”

By 1980 PA 431, § 2, effective March 31, 1981, the housing section² of the Public Health Code was repealed. No rules had been promulgated under § 12211 before its repeal.³ Therefore, the condition for repeal of the Housing Law of Michigan had not been and apparently cannot be met. The condition for repeal of the Housing Law not being fulfilled, we conclude that the Housing Law is still in effect.

The lower court found otherwise, relying on § 25201 of the Public Health Code, MCL 333.25201; MSA 14.15(25201), which provides in part:

"(1) Where a section of this code authorizes or directs the promulgation of rules, including rules fixing fees, but rules dealing with the subject matter do not exist when the section takes effect, a statutory provision covering the matter, which is repealed by this code, shall nevertheless continue in effect until rules covering the matter take effect or for three years, whichever is sooner.”

The lower court ruled that the three-year limit on the length of the time repealed statutes may remain in effect applied to the Housing Law. We cannot agree.

We first review the specific language of the relevant statutes. Kalamazoo City Education Ass’n v Kalamazoo Public Schools, 406 Mich 579, 603; 281 NW2d 454 (1979). We believe that § 25201(1) by its terms does not apply to § 25103. Section 25201(1) speaks of repealed statutes being given continuing effect until rules take effect. In contrast, the Housing Law specifically was not to be repealed until rules had taken effect.

Our review of § 25103 and § 25201(1) is supported by application of two other principles of statutory construction. First, "where, in the same statute, there is a specific provision and also a general provision which would include matters embraced in the specific provision, the specific provision shall control”. Bannan v Saginaw, 120 Mich App 307, 319; 328 NW2d 35 (1982), aff'd 420 Mich 376; 362 NW2d 668 (1984). Here, we give controlling effect to the specific provision of § 25103.

Second, "every word and phrase of the statute should be given meaning and not treated as mere surplusage or rendered nugatory”. Michigan Harness Horsemen’s Ass’n v Racing Comm’r, 123 Mich App 388, 391; 333 NW2d 292 (1983); Bannan, supra, p 320. If the Legislature intended that the three-year limit apply to the repeal of the Housing Law, it would not have provided the specific repealer in § 25103 but would have included the Housing Law in the long list of statutes named in § 25101 to which § 25201(1) clearly applies. Its separate treatment of the Housing Law persuades us to give effect to the condition for repeal as worded.

We hold that the court below erred in concluding that it was not authorized under the Housing Law to appoint a receiver. However, we do not reverse, because the court very clearly stated an alternative basis for its decision:

"I’m satisfied that we no longer have a State Housing Code.

"However, if I am incorrect in that assessment, and the Court still has statutory receivership powers under that statute, I note that the granting of receivership under the Housing Code is in terms of the discretion of the Court under all of the conditions that it deems fit. This moves us on to the second basis for receivership here in the law, as I understand the presentation of the Plaintiffs, and that is the general common law principles of receivership powers of the Court acting in equity.”

After reviewing at length the principles of receivership, the court declined to exercise its assumed authority in favor of plaintiffs. On appeal, plaintiffs do not challenge the court’s exercise of its discretion so we will not review further the court’s decision.

Affirmed.

1 The statutory provision, § 135(1) of the Housing Law of Michigan, provides:

"When a suit has been brought to enforce this act against the owner the court may appoint a receiver of the premises.”

2 MCL 333.12201-333.12222; MSA 14.15(12201)-14.15(12222).

3 On March 28, 1984, the Secretary of State certified that a search of records on file in the Department of State failed to disclose the filing of administrative rules by the Department of Public Health relating to minimum housing standards during the period September 30, 1978, through March 30, 1981. Our own research has not revealed any such rules to date in the Administrative Code.