Sabaugh v. City of Dearborn

185 N.W.2d 363, 384 Mich. 510, 1971 Mich. LEXIS 238

• Court: Michigan Supreme Court
• Decided: April 5, 1971
• Docket: 10, January Term 1971, Docket No. 52,387
• Status: Published

Opinions

Per Curiam.

*

The council of defendant City of Dearborn, proceeding under authority of the Revenue Bond Act of 1933, Act No 94, PA 1933, as amended (MCLA § 141.101 et seq.; Stat Ann 1969 Rev § 5.2731 et seq.), adopted a resolution for submission of a bid to the Federal Housing Administration on an 88-unit apartment in Clearwater, Florida. The bid was submitted and was successful. Thereafter, under direction of the council, the purchase was consummated and the city became owner of the apartment, intended to be used for rental to senior citizens of defendant city who could not endure the rigors of Michigan winters.

Plaintiffs, as taxpayers of the city, brought this action praying that the resolution of the city council be set aside and held illegal, that defendants’ purchase of the property be restrained, and for a determination that the action of the city council is illegal, ultra vires, unconstitutional and void.

The trial court granted defendants’ motion for accelerated or summary judgment dismissing plaintiffs’ complaint. The Court of Appeals affirmed, holding that defendant city has the power to establish, own and operate public housing facilities outside this state. The matter is here on leave granted to plaintiffs to appeal.

Plaintiffs state the question involved in this appeal as follows:

“Can the defendant purchase, own and operate with tax funds an 88-unit apartment building in the State of Florida?”

Plaintiffs appear to advance as reasons for answering in the negative the following:

1. The grant of power to cities in the Michigan Constitution of 1963, art 7, § 23, to acquire, own, establish and maintain certain properties and facilities therein specified does not include in the list public housing. The answer to that is that it does expressly include “all works which involve the public health or safety”. In Advisory Opinion re Constitutionality of PA 1966, No 346 (1968), 380 Mich 554, we held that the construction of housing is an enterprise affected with a public interest. In Thomson v. City of Dearborn (1957), 348 Mich 300, where counsel for plaintiffs here was the plaintiff, he urged this same argument against this same city’s acquisition of off-street parking facilities. This Court upheld the right of the city to do so, stating that it was a work involving public health or safety. Public housing is no less so. Thomson v. City of Dearborn (1960), 362 Mich 1, tends to support this view. It is to be noted, also, that Michigan Constitution of 1963, art 7, § 22, provides:

“No enumeration of powers granted to cities and villages in this constitution shall limit or restrict the general grant of authority conferred by this section.”

This indicates that the grant of itemized powers contained in the subsequent § 23 is not to be deemed exclusive.

2. Plaintiffs say that the Revenue Bond Act of 1933, Act No 94, under which the city has presumed to act, is not applicable here because no bonds were involved in the transaction. This overlooks § 4 of the act, MCLA § 141.104 (Stat Ann 1969 Rev § 5.2734), which reads:

“The powers in this act granted may be exercised notwithstanding that no bonds are issued hereunder.”

We are satisfied that the acquiring and maintaining of public housing for senior citizens of the city is a public work, involving public health, within the competence of the city. The Revenue Bond Act of 1933, authorizing acquisition of public improvements by cities, defines public improvements, in § 3 of the act, as including, at the head of the list, “housing facilities”. Accordingly, public housing should be considered no less a public work, with expenditures therefor being for a public purpose, than we held a marina to be in Gregory Marina, Inc., v. City of Detroit (1966), 378 Mich 364.

Section 4 of the Revenue Bond Act authorizes the acquisition and operation of “public improvements * * * within or without its corporate limits.” This implements the provisions of Michigan Constitution of 1963, art 7, § 23, authorizing a city to acquire public works “within or without its corporate limits.” There can ,be no doubt, then, that a city may do that which defendant city has done here if on a location without its corporate limits but within the State of Michigan.

Was it the intent of the framers of the Michigan Constitution and of the electors in the adoption thereof, and of the legislature, that the noted language “within or without” in the Constitution and the statute might include places outside of this state? If such was the intent, would that be violative of the Constitution of the United States?

Nothing in the language of the Michigan Constitution or in the Revenue Bond Act granting the power in question to cities expresses an intent to limit the meaning of the term “within or without its corporate limits” so as to confine its scope to places within this state. We hold that such was not the intent. In 1968, House Bill No. 3595 was introduced in the legislature which proposed to amend the Revenue Bond Act to provide that no out-of-state acquisitions were permissible thereunder. The bill did not pass.

Plaintiffs cite no authority for the proposition that the conferring by the Michigan Constitution or statute upon its cities of authority to acquire and operate public works in another state would be unconstitutional under the Constitutions of this state or of the United States and we find none.

As for the provision of Michigan Constitution of 1963, art 7, § 23, authorizing city acquisition of public works “within or without its corporate limits” and the like provision in § 4 of the Revenue Bond Act, a similar provision in a Tennessee statute (Williams Ann Code, § 2726.13) was construed in McLaughlin v. City of Chattanooga (1944), 180 Tenn 638 (177 SW2d 823), to mean that the City of Chattanooga had power to expend public funds in the purchase of lands for municipal airport purposes located outside of its corporate limits, lying partly in the State of Tennessee and extending over into the State of Georgia. The court observed that the words “within and without” embraced every place in the universe, including locations outside of the state. The Tennessee court went on to say:

“For more than one hundred years the State of Georgia has owned valuable property in Tennessee, located within the City of Chattanooga, with clearly implied, if not expressed, legislative, municipal and judicial recognition by this State, the City of Chattanooga, and the Courts. Twenty years ago the Supreme Court of the United States clearly recognized the right of ownership by Georgia of property in Tennessee. State of Georgia v. City of Chattanooga [1924], 264 US 472, 480, 481, 44 S Ct 369, 370, 68 L Ed 796, 799.”

An examination of the opinion in State of Georgia v. City of Chattanooga (1924), 264 US 472 (44 S Ct 369, 68 L Ed 796), discloses a situation in which the State of Georgia owned property in Chattanooga, Tennessee, which the latter was seeking to condemn in part for street purposes. The United States Supreme Court held that Georgia’s ownership of land in Tennessee was not in a sovereign capacity but a proprietary one, and, hence, the property was subject to condemnation by the city. The court took the right of Georgia to own property in its proprietary capacity in the State of Tennessee as a matter of course, with no suggestion of involvement of a Federal constitutional question in that regard. Had the court considered that there was such a question, this would have been the occasion to consider and decide it. Not having done so, we think it follows that no such question exists.

Affirmed. No costs, a public question being involved.

Black, T. E. Brennan, Swainson and Williams, JJ., concurred.

This Opinion rendered in Per Curiam form was originally prepared by Justice John R. Dethmers prior to his retirement and is adopted verbatim.