Sebewaing Industries, Inc. v. Village of Sebewaing

60 N.W.2d 444, 337 Mich. 530

• Court: Michigan Supreme Court
• Decided: October 5, 1953
• Docket: Calendar 45,762
• Status: Published

Opinion

Dethmers, C. J.

I do not concur in affirmance. Mr. Justice Adams writes that it is necessary “to determine whether the method used by the village to purchase and finance equipment falls within 1 of the methods prescribed by statute or Constitution * * * or is * * * a permitted alternative not specifically mentioned in either the statute or Constitution.” He finds that it does not fall within Constitution 1908, art 8, §§ 23, 24 and 25, or either of the 2 alternatives provided in chapter 12, § 5, the general village act, PA 1895, No 3 (CL 1948, § 72.5 [Stat Ann § 5.1424]). I agree. In that connection, he develops the reasons for that view as relates to the noted sections of the Constitution and the second alternative (pertaining to a borrowing approved by 3/5 of the electors) contained in chapter 12, § 5 of the statute, without discussing the inapplicability of its first alternative. Defendants’ projected course of action does not fall within the first alternative because that clearly applies to and contemplates expenditures for improvements to be made out of revenues from taxes derived from the exercise of the general taxing power. The words “the council may then raise and expend * * * such sum as it may deem advisable” .make obvious the legislative intent that the sum thereby authorized to be “expended” is a sum which is to be “raised”, and the entire section makes manifest that the word “raise”, as therein used, means the levying of a tax. Even if it were to be conceded that the word “expend”, as there employed, is broad enough to include the spending of current revenues of the utility or reserves built up from previous revenues, on the theory that the express grant of power to operate the utility gives rise to the implied right to operate it at a profit and to use such profits for the benefit of the utility, the first alternative in chapter 12, § 5 definitely does not authorize defendant to borrow or become obligated for the cost of purchased equipment, to pledge future utility revenues for that purpose, to agree to raise electric rates to consumers in the future, if necessary for the purpose of paying the obligation, or to promise not to dispose of, but, on the contrary, to keep the utility in operation and competition out of business until the equipment is paid for, all as provided in defendants’ contract with the seller. That the intended transaction involves borrowing, secured by specific pledges and funds of defendant, there can be no clonbt. The equipment is to be delivered to defendant in exchange for its delivery to seller of coupon-bearing revenue certificates, due at specified dates, serially, with interest thereon at 3-1/2%. Even though the obligations to be incurred by defendant are not, under the holdings of cited cases, debts within the meaning of constitutional limitations because they do not constitute charges against the general fund or revenues to be derived from taxation on which such limitations wTere designed to place a ceiling, the revenue certificates are, nevertheless, evidences of indebtedness, chargeable against future revenues—promises to pay in the future, with interest, an obligation presently assumed. The first alternative of chapter 12, § 5 of the statute contains no express, implied, or included authority therefor.

Having determined that defendants’ proposal does not fall within the mentioned or any other constitutional or statutory provisions or grants of power, Mr. Justice Adams points out that no constitutional or statutory provision prohibits it and concludes that, therefore, the methods provided in the statute are not exclusive and “the right to use an alternative method of financing is implied”, quoting, in support of such theory of implied power, from Torrent v. City of Muskegon, 47 Mich 115 (41 Am Rep 715). With that conclusion I do not agree.

Villages are not autonomous entities with inherent powers. They have only those granted by the State through constitutional provision or statutory enactment. Despite the holding in yases such as Gallup v. City of Saginaw, 170 Mich 195, and City of Pontiac v. Ducharme, 278 Mich 474, that cities enjoy a general grant of rights and powers under the home-rule act, subject only to certain enumerated restrictions, instead of the former method of having only enumerated rights and powers definitely specified, the home-rule act and the constitutional provision upon. which it is based have not altered the fact that cities must find their powers in the statute directly and can exercise only those expressly or impliedly conferred'by statute. Streat v. Vermilya, 268 Mich 1; City of Niles v. Michigan Gas & Electric Co., 273 Mich 255; Skutt v. City of Grand Rapids, 275 Mich 258; City of Pontiac v. Ducharme, supra; Hudson Motor Car Co. v. Detroit, 282 Mich 69 (113 ALR 1472). Not only is defendants’ projected course of action outside the contemplation of article 8, §§ 23, 24, 25, but in the area in which those sections have application they are not self-executing, do not of themselves confer power upon a municipality, but require statutory implementation. Sault Ste. Marie City Commission v. Sault Ste. Marie City Attorney, 313 Mich 644. In this connection it is of interest to note that article 8, § 20, in directing the legislature to provide by general law for the incorporation of cities and villages, provides that such law shall restrict their powers of borrowing money and contracting debts. If it be found, then, that chapter 12, § 5 of the act operates restrictively in this particular, it can scarcely be said to be without constitutional sanction.

The power contended for by defendant not having been expressly granted nor prohibited, is it to be implied from others which are conferred? The quotation from Torrent v. City of Muskegon, supra, that charters cannot be expected to spell out in detail all powers conferred upon a city and that, of necessity, something must be left to implication was apt enough when, as there, the question was whether a city might acquire a city hall without express statutory authorization. The statute conferring the express power to function as a city being silent on the subject of where the functions of city government should be performed, it was but natural to infer from that express grant of power the implied right to funetion in a building acquired by the city for that purpose. The case is not authority, however, for the proposition that from the express power to operate as a city an implied power could be inferred to borrow money and assume an obligation for the purpose of acquiring a city hall. Neither does it follow from the express power conferred upon defendant to acquire and improve its utility that a power is to be implied to borrow for that purpose. Further distinguishing the instant case from Torrent is the fact that here the statute is not silent on the subject for which an implied power is asserted by defendant. Chapter 12, § 5 of the statute expressly provides 2 methods of financing the acquisition of the equipment in question. Expression facit cessare taciturn. That which is expressed puts an end to or renders ineffective that which is implied. Galloway v. Holmes, 1 Doug (Mich) 330. So stated in the opinion of 4 members of this Court, the other concurring in the result, in Taylor v. Public Utilities Commission, 217 Mich 400 (PUR1922D, 198). Ex-pressio unius est exclusio alterius. Express mention in a statute of one thing implies the exclusion of other similar things. Perry v. Village of Cheboygan, 55 Mich 250; Weinberg v. Regents of the University of Michigan, 97 Mich 246; Marshall v. Wabash Railway Co., 201 Mich 167 (8 ALR 435); Taylor v. Public Utilities Commission, supra; Van Sweden v. Van Sweden, 250 Mich 238. When a statute creates an entity, grants it powers and prescribes the mode of their exercise, that mode must be followed and none other. Taylor v. Public Utilities Commission, supra (4 Justices); (2 Lewis’ Sutherland Statutory Construction [2d ed], §§491-493). When powers are granted by statute to its creature the enumeration thereof in a particular field must be deemed to exclude all others of a similar nature in that same field. So held in Bank of Michigan v. Niles, 1 Doug (Mich) 401 (41 Am Dec 575), in which this Court, in considering powers conferred upon a bank by its charter, said :

“The very grant of specified powers under restrictions, is an exclusion of other powers in reference to the same subject matter, not granted by the charter.”

Similarly, as relates to the powers of a corporation created under a general statute, 4 members of this Court, speaking in People v. Gansley, 191 Mich 357 (Ann Cas 1918E, 165), said: '

■ “It has been held that the powers are simply such as the statute confers, and that the enumeration of them implies exclusion of all others. Thomas v. Railroad Co., 101 US 71 (25 L ed 950); Pennsylvania R. Co. v. Railroad Co., 118 US 290, 309 (6 Sup Ct 1094, 30 L ed 83).”

In Michigan Wolverine Student Co-operative, Inc., v. Wm. Goodyear & Co., 314 Mich 590, this Court said:

“While section 57, supra , states in the affirmative the manner in which a corporation may sell all or substantially all of its assets, under a well-egtablished rule of statutory construction it must be held that no other or greater power is given to boards of directors by the statute than as thus specified therein.

“ ‘It is a well-established rule of statutory construction that where powers are specifically conferred they cannot be extended by inference, hut that the inference is that it was intended that no other or greater power was given than that specified.’ Eikhoff v. Detroit Charter Commission, 176 Mich 535, 540.

“ ‘Under the legal maxim of construction that express mention of one thing implies the exclusion of other similar things, there is reason in'the contention that, the act having expressly named certain liens made subordinate, it by implication excludes others not mentioned, upon.the presumption that, having designated some, the .legislature designated all it was intended the act should include.’ Marshall v. Wabash Railway' Go., 201 Mich 167,172 (8 ALE 435).

“ ‘It is a familar xmle that inclusion by specific mention excludes what is not' mentioned.’ Van Sweden v. Van Sweden, 250 Mich 238, 241.

• “ ‘ “It is a general principle of interpretation that the mention of one thing implies the exclusion of another thing; expressio unius esf exclusio alterius.” 25 ECL, p 981.’ Dave’s Place, Inc., v. Michigan Liquor Control Commission, 277 Mich 551, 555.”

The Eikhoff Case, mentioned in the above quotation, involved the statutory powers of a city charter commission. There we held that the power to unseat one of its members, being absent from its statutorily enumerated powers, such power in the commission could not be implied. In Dearborn Township v. Dearborn Township Clerk, 334 Mich 673, the Michigan Constitution of 1908, art 7, § 16, was the subject of construction. It reads

“In civil cases, justices of the peace shall have exclusive jurisdiction to the ainount of 100 dollars and concurrent jurisdiction to- the amount of 300 dollars, which may be increased to 500 dollars, with such exceptions and restrictions..as may be provided by law. They shall also have .such criminal jurisdiction and perforin such duties..a^ shall be prescribed by law.” (Emphasis supplied.)'

The question was whethér the words “such duties”, as therein used, included nonjudicial duties. We said:

“There being other judicial duties not enumerated in section 16, it appears that the rule of ejusdem generis applies inasmuch as judicial duties are specifically mentioned and such inclusion by specific mention thereof excludes other types of duties not mentioned.” (Emphasis supplied.)

Accordingly, it was held that a justice of the peace might perform judicial duties only. In City of Detroit v. Township of Bedford, 253 Mich 453, plaintiff city, after annexing portions of defendant township, claimed the right to division not only of the township’s real property, as provided in the home rule act, hut also of the township’s personal property. After giving expression to the maxim, expressio unius est exclusio alterius—that express mention in a statute of one thing implies the exclusion of other similar things—this Court held that because the statute provided for division of realty .without a like ^provision as. relates to personalty, the expression of the former right excluded the latter and that, hence, plaintiff could not share in defendant’s personalty. In Schurtz v. City of Grand Rapids, 208 Mich 510, the defendant city had for some years owned, and operated a city water plant. It contended for the right to add thereto by the acquisition of a privately-owned waterworks, without vote of the people. Section 28, title 8, of the city charter provided that a .utility might be acquired, if approved by a vote of the electors. Defendant city insisted that it was not seeking the acquisition of a utility, but merely the extension of the city’s existing utility and that, hence, a vote of the people was not required. In rejecting defendant city’s theory, and holding that such voto was required, this Court said:

“The unequivocal language of section 28 of title 8 of the charter does not permit the construction claimed for it by defendant’s counsel. It is a familiar maxim that, ‘That which is expressed makes that which is implied to cease.’ ”

Order dissolving temporary injunction reversed and cause remanded for trial, if deemed necessary by the parties, in accord herewith. No costs, a public question being involved.

Butzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred with Dethmers, C. J.